Posted on by Stephen Tuck

Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Supreme Court of New York (Appellate Division)

30 April 2014

Coram: Eng PJ, Dillon, Leventhal and Miller JJ

Appearing for the Plaintiff:  Stephen R Loeb.

Appearing for the Defendant: Kevin J. O’Donnell (instructed by Kenny & Zonghetti LLC)

Catchwords: New York – body sculpting – exercise ball – negligence – assumption of risk – summary dismissal

Facts: St George Health & Racquetball Associates (defendant) operates the Eastern Athletic Club in Brooklyn.  In May 2009 Rosenblatt (plaintiff), aged 72 years, attended a ‘body sculpting’ class at the club.  The instructor (a substitute filling in for the regular instructor) gave each of the participants an exercise ball to sit on.  The plaintiff had not previously used an exercise ball.  When she sat on it, it rolled, causing her to fall and suffer injury.

The plaintiff brought proceedings against the club on the basis that it had negligently failed to train, supervise or provide for an appropriate instructor.  However, she conceded that she was responsible for her own safety in class and that she was able to decide what activities she could safely perform.  She also conceded that she had not expressed concern over her lack of experience with an exercise ball nor expressed unwillingness to use it. The defendant responded that any injuries sustained by the plaintiff were caused by her own conduct and that the doctrine of primary assumption of risk barred her from recovering compensation.  It sought summary dismissal of the complaint.  The Supreme Court declined to dismiss on procedural grounds*.  The defendant appealed.

Held: Allowing the appeal and dismissing the proceedings, that the trial court’s refusal of the application on procedural grounds was mistaken.  Considering the application to dismiss on the merits –

1. The doctrine of primary assumption of risk** does not bar liability if the risk is not assumed, is concealed or is unreasonably increased. Alqurashi v Party of Four Inc, 89 AD.3d 1047 (2011) and Demelio v Playmakers Inc, 63 AD.3d 777 (2009), followed.

2. (Sua sponte) The plaintiff, by voluntarily sitting on an exercise ball , assumed the inherent risk that it could roll and cause her to fall. Berry v Bally Total Fitness Corp, 272 AD.2d 354 (2000), considered.

3. It was relevant that the plaintiff was not required to use the exercise ball. Quaere whether the position would be different if the plaintiff had been obliged to use it. Calouri v County of Suffolk, 43 AD.3d 456 (2007)

Judgment

The Court’s judgment is available here.  The plaintiff elected not to pursue an appeal.

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* Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (Sup. Ct. N.Y., Battaglia J, 17 August 2011, unreported).

** As to which, see Custodi v Town of Amherst (2012) H&FLR 2014-18.

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Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Augsburg District Court

c. 9 January 2013

Coram: Wieser M.

Appearing for the Prosecutor: Not known

Appearing for the Defendants: Not known

Catchwords: Germany – Bavaria – criminal law – dog – overfeeding – obesity – cruelty to animals

Facts: The defendants were a couple aged 69 and 71 years.  In October 2010 they came into possession of a Pekinese dog.  It was alleged that they overfed her such that her weight increased to 22 kilograms (48.4 pounds).  The standard weight of a Pekinese is around 6 kilograms (13.2 pounds).  Advice from a veterinarian as to proper feeding had been rejected.

In April 2012 the dog’s condition was reported to authorities by one of their neighbours.  The dog was found to be suffering two torn cruciate ligaments, extreme shortness of breath and had an inaudible heartbeat.  The animal was unable to walk and instead moved by dragging itself.  Destruction of the animal was recommended*.  The owners were charged with breaches of the Animal Welfare Act.  They responded that the dog was overweight when they acquired it and in particular denied feeding it chocolate.

Held: The charges were upheld.  A penalty of several thousand Euros was imposed and the offenders were ordered to perform 80 hours of community service**.

Judgment

No written judgment is available.  The report was compiled based on reports in the Augsburger Allgemeine on 3 August 2012 and 9 January 2013, the Welt of 8 January 2013, the Süddeutsche Zeitung of 24 August 2012 and the Sächsischen Zeitung of 2 August 2012.  Translations by Google.

==============================

* The dog was ultimately given to another owner and at last report weighed 12 kilograms.

** An appeal against the penalty was abandoned.

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Wati v Attorney-General (2007) H&FLR 2014-20

Indira Wati v Attorney-General & Ors (2007) H&FLR 2014-20

Court of Appeal of Fiji

9 March 2007

Coram: Ward P, Barker and Scott JJA

Appearing for the Appellant: S. Maharaj (of Suresh Maharaj & Associates)

Appearing for the Respondent: A. Tuilevuka* and P. Prasad (instructed by the Office of the Attorney-General)

Catchwords: Fiji – medical negligence – myocardial infarction – risk factors – misdiagnosis – loss of chance of survival

Facts: On 23 March 2002 Mr Raj Kumar Singh died at Nadi Public Hospital from an acute inferior myocardial infarction.  He had several risk factors for the infarction including being in his mid fifties, somewhat overweight, a smoker and had elevated blood pressure and a family history of heart attack and high blood pressure.  Despite this, he was initially diagnosed with a gastric complaint.  This misdiagnosis was not rectified before the hospital’s employee left treatment and monitoring of the deceased’s condition to his family.  For the last 12 hours of his life the deceased experienced severe pain and extreme distress was caused to his family.

The plaintiff (the deceased’s widow and the administratrix of his estate) brought negligence proceedings in the Lautoka High Court against the Attorney-General as representing the State, which operated the hospital.  The trial judge found that the Hospital and its employees had been negligent in providing treatment to the deceased.  However, this negligence had not lead to his death.  There was no evidence on whether the deceased was more likely than not to have died had he received proper medical care.  The Court awarded $5,000.00 to the widow for mental anguish and $15,000.00 to the estate in respect of the deceased’s suffering.

The plaintiff appealed to the Fiji Court of Appeal.

Held: Per curiam, dismissing the appeal, that for the plaintiff’s case succeed, it was necessary to show that proper treatment of the deceased would (as opposed to may) have prevented his death when it occurred.  Loss of a mere chance of survival is not a recoverable head of damage.

Gregg v Scott [2005] 2 AC 176; 2 WLR 268; 4 All ER 812; UKHL 2 (UK House of Lords), followed.

Judgment

The Court’s judgment is available here.

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* Since appointed to the bench.

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Jamu v City of Harare (2009) H&FLR 2014-19

Annamore Jamu v City of Harare (2009) H&FLR 2014-19

Supreme Court of Zimbabwe

26 January 2009

Coram: Sandura, Ziyambi and Garwe JJA

Appearing for the Appellant: E. Matinenga (instructed by TH Chitapi & Associates)

Appearing for the Respondent: D Kanokanga (instructed by Kanokanga & Partners)

Catchwords: Zimbabwe – administrative law – medical practitioners – town planning – residential clinic – disease – litter – traffic – desirability – necessity

Facts: The appellant was a medical practioner operating a private surgery at Borrowdale West in Zimbabwe.  She applied to the respondent for a permit to convert the surgery into a fifteen bed residential clinic.  Objections were raised by her neighbours on the grounds that the proposed clinic would expose them to bacteria and infection and also on grounds of litter and increased human and vehicular traffic.  The respondent refused the application.

Dr Jamu’s appeal to the Administrative Court was dismissed.  She appealed to the Supreme Court of Zimbabwe.

Held: Dismissing the appeal, that in considering whether to grant a permit, the decision maker was required to consider the desirability of a development.  If it is found to be undesirable, it was proper to consider whether it is nonetheless necessary.  A “need” for a development would be made out if the public would suffer serious disadvantage if the development were not allowed.  In the present case it was not necessary in that sense because there was another clinic in the vicinty and the concerns raised by the objectors carried additional problems.

Amalgamated Sales (Pvt) Ltd v City of Salisbury*, followed.

Tobacco Warehouse  & Export Co (1946) Ltd v City Council of Salisbury (1966)* and City of Salisbury v Sagit Trust Ltd, 1981 ZLR 479(S), considered

Judgment

The Court’s judgment is available here.

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*Citation not available.

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Custodi v Town of Amherst (2012) H&FLR 2014-18

Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.

Judgment

The Court’s judgment is available here.

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*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)

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Naushad v State of Uttar Pradesh (2010) H&FLR 2014-17

Naushad v State of Uttar Pradesh (2010) H&FLR 2014-17

Supreme Court of India

27 October 2010

Coram: Bedi and Prasad JJ

Appearing for the Prosecutor: Not Known
Appearing for the Defendant: Not Known

Catchwords: India – food – milk – non-fatty solids – adulteration – delay

Facts: It was alleged that on 4 August 1981 the appellant breached the Prevention of Food Adulteration Act 1954 by retailing milk containing 6.7% non-fatty solids, rather than the prescribed 9%. He was convicted and sentenced to a fine and a term of imprisonment.

An appeal and an application for review were dismissed. The defendant appealed to the Supreme Court of India.

Held: Dismissing the appeal –

1. There was no basis for interfering with the findings of fact.

2. Because the offence had occurred almost thirty years earlier and the defendant was by then aged 84 years, justice would best be served by reducing the sentence to the 15 days already served.

Das v State of West Bengal (1998) 9 SCC 678 and Bhagwan v State of Maharashtra (1987) 2 SCC 645, considered.

Judgment

The Court’s judgment is available here.

 

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The Queen v Lane (2011) H&FLR 2014-16

The Queen v Keli Lane (2011) H&FLR 2014-16

Supreme Court of New South Wales

15 April 2011

Coram: Whealy J

Appearing for the Crown: Mark Tedeschi SC (instructed by the Solicitor for Public Prosecutions)
Appearing for the Defendant: Keith Chapple SC (instructed by Archbold Legal)

Catchwords: New South Wales – murder – newborn – circumstantial – water polo – Olympics – sentencing – mother – premeditated

Facts: The defendant was convicted of the murder of her newborn daughter on or about 14 September 1996. Earlier that day (then aged 21 years) she had been discharged from Auburn Hospital with her daughter but later that day arrived home without her. She had concealed both the pregnancy and birth from her associates. The child’s body has never been located and the Crown’s case was entirely circumstantial. Lane pleaded not guilty and maintained at trial that she had given the child to her (the child’s) father to raise and not seen it since.

At the time of the offence the defendant was a sports enthusiast and semi-professional athlete, as were many of her friends and family members. The Crown argued at trial that the murder was prompted by the defendant’s wish not to have a child interfere with her goal of representing Australia in water polo at the 2000 Olympics in Sydney.

Held: Whealy J sentenced the defendant (by then aged 35 years) to 18 years imprisonment, to serve a minimum of 13 years and five months. He did not take the option of imposing a sentence of life imprisonment. Relevant to the sentencing decision were the factors that –

1. The killing of a child by its mother is “tore asunder the natural relationship between mother and daughter”

2. The offence had been premeditated for a short period.

3. Aggravating factors were the age of the victim and that the murder involved abuse of a position of trust.

4. The Court accepted that she had murdered her daughter “in a situation of desperation … [from which] from her perception there was simply no way out”. His Honour accepted that Lane was unlikely to reoffend and presented no risk to the community.

The defendant’s (perhaps excessive) passion for sports appears not to have been an aggravating factor.

Judgment

Whealy J’s sentencing remarks are restricted. This report has been prepared based on reports prepared by the Australian Broadcasting Corporation and the Sydney Morning Herald.

An appeal against conviction to the Court of Criminal Appeal was dismissed: Lane v R [2013] NSWCCA 317. It appears no attempt was made to appeal to the High Court of Australia.

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Michelle Rios v Grossmont Union High School District (2013) H&FLR 2014-15

Michelle Rios & Ors v Grossmont Union High School District (2013) H&FLR 2014-15

Fourth District Court of Appeal for California

16 December 2013

Coram: McConnell PJ, Irion and O’Rourke JJ.

Appearing for the Appellant: Mark C. Choate (of Choate Law Firm) and Jon R. Williams (of Boudreau Williams LLP)

Appearing for the Respondent: Daniel R. Shinoff and Paul Vincent Carelli (both of Stutz Atiano Shinoff & Holtz APC)

Catchwords: California – high school – football – ankle injury – returned to play – tackle – spinal injury – negligence – standard of care – jury instructions –  appeal

Facts: Michelle and Reymond Rios were the parents of Colter Rios, who suffered a spinal injury while playing for a high school football team organised by the defendant.  He sustained an ankle injury during play and, after having the ankle strapped by a college student who was studying athletic training (rather than the school’s athletic trainer himself), was returned to the field.  After rejoining play, he was tackled by an opposing player and suffered significant injuries.

Master Rios and his parents brought proceedings against the defendant school district.  They alleged that the District had negligently allowed him to continue to play following his ankle injury.  The parties agreed that the ordinary standard of care applied, with the further detail that adults must anticipate the ordinary behaviour of children and be more careful in dealing with children than in dealing with other adults.  The jury was permitted to consider the community’s customs or practices in assessing what a reasonable person would have done in the circumstances.  It was also agreed by the plaintiffs that the standard of care to be observed by school staff is that which a person of ordinary prudence and having comparable duties would exercise under the same circumstances.  They did not ask that the jury be given any particular instructions based on the standards of the National Athletic Trainers’ Association standards or of the California Interscholastic Federation.

The jury returned a finding of no negligence.  The plaintiffs appealed.

Held: Per curiam, dismissing the appeal –

1.            The court at first instance had correctly instructed the jury as to the law: in a claim for injuries suffered in a high school football game, the standard of care required of a school official is that which a person of ordinary prudence, with the same responsibilities and in the same circumstances, would exercise.

Pirkle v Oakdale Union Grammar School District, 253 P.2d 1, 40 Cal.2d 207 (1953), followed.

2.            When the relevant law has been stated correctly in a general charge to the jury, a party may not argue on appeal that a more specific instruction should have been given, unless they at the time requested a more specific instruction be given.

White v Inbound Aviation, 69 Cal.App.4th 910, 82 Cal.Rptr.2d 71 (1999), followed.

No finding was made on whether more specific instructions should actually have been given to the jury.

Judgment

The court’s judgment is available here.  The Supreme Court of California declined to consider an appeal.

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Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Fifth District Court of Appeals of Texas

12 May 2014

Coram: Bridges, Fillmore and Lewis JJ

Appearing for the Appellant: William J. Akins and Bryan D. Pollard (both of FisherBroyles LLP)

Appearing for the Appellee: Richard Illmer and Elizabeth G. Bloch (both of Husch Blackwell LLP)

Catchwords: Texas – soccer – sports clubs – insurance – breach of contract – discrimination – duty to defend

Facts:  The United States Youth Soccer Association (respondent) was a corporation and a member of the United States Soccer Federation.  In 2009 the National Association of Competitive Soccer Clubs and some of its member clubs filed a grievance complaint with the US Soccer Federation alleging a number of breaches of Federation by-laws by (among others) the respondent.  These breaches included alleged discrimination.

At the relevant time, the respondent was insured by Arch Insurance Co (appellant).  The insurance policy included an exclusion exempting the appellant from liability for loss caused by a claim for breach of a contract or agreement.  The exclusion did not apply, however, so far as the respondent would have been liable for that loss absent the contract or agreement.  The appellant declined on the basis of the exclusion to defend the respondent.  The respondent sued for breach of contract, claiming the $365,620.24 legal fees it incurred in defending the grievance proceedings.  Both parties sought summary judgment, which was granted in favour of the respondent.  The appellant appealed.

Held: Allowing the appeal, that in assessing whether a claim is within the coverage of an insurance policy, the court must consider the factual allegations showing the origin of the damages, and not the legal theories alleged.  The factual allegations – including those with respect to discrimination – raised by the grievance against the respondent arose from the alleged breach of US Soccer Federation by-laws and regulations, and were within the exclusion.

Huffhines v State Farm Lloyds, 167 SW.3d   493 (Tex. App. 14th Dist 2005), followed.

Judgment

The Court’s judgment is available here.

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Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Regional Labour Court of Rio Grande do Sul

26 October 2010

Coram: Not reported.

Appearing for the Appellant: Not reported
Appearing for the Respondent: Vilson Natal Arruda Martins

Catchwords: Brazil – workers compensation – McDonald’s – manager obesity – required to consume products – meal break – mystery shoppers – compensation – liability

Facts: The appellant operated a McDonald’s franchise in Brazil. It employed the respondent as manager of one of its restaurants over a twelve year period. It was alleged that over this time his weight increased from around 70 kilograms (154 pounds) to 105 kilograms (231 pounds), by which time he was classed as obese. The respondent alleged that this was caused by the appellant’s policy of using “mystery shoppers” to assess the cleanliness, quality and management of its stores, which resulted in him needing to taste hamburgers, fries, soft drinks and ice cream regularly. He further alleged that, during meal breaks, the appellant’s employees were provided with a meal consisting of a burger, fries and soft drink which could not be exchanged for cash or food stamps. He further asserted that his work required long and irregular hours with inadequate rest breaks.

The respondent sought compensation from the appellant for his obesity. The claim was upheld at first instance and compensation was awarded of R40,000 (Brazilian Reals). The employer appealed.

Held: allowing the appeal in part and rejecting it in part –

1. Although genetic factors and a sedentary lifestyle were possible causes of obesity, this did not relieve the employer of liability.

2. While it was the worker’s responsibility to adopt a healthy diet, the conditions of his employment had forced him to consume the employer’s products.

3. The compensation awarded was properly to be reduced from R48,000.00 to R30,000.00. However, the appellant was required to assist the respondent to cover the costs of medical treatment aimed at weight reduction.

The court appears to have had regard to the fact that master brewers and winemakers are regularly compensated for developing alcoholism as a result of their duties.

It appears dissenting judgments were entered but details are not available.

Judgment

A copy of the Court’s written reasons cannot be located. Details in this report were obtained from the press office of the Court, the website of the firm Barça & Associates, the accounts in the journals Zero Hora and Economia & Negócios, and the blogs Nosso Povo, and Blog da Saúde. Translations by Google.

An appeal was considered but appears not to have been pursued.