Wingfield v Hill Bros Transp. Inc (2014) H&FLR 2014-30

George Wingfield v Hill Brothers Transportation Inc (2014) H&FLR 2014-30

Supreme Court of Nebraska

16 May 2014

Coram: Heavican CJ, Wright, Connolly, Stephan, McCormack, Miller-Lerman and Cassell JJ.

Appearing for the Plaintiff: Mr Stacy L. Morris (of Lamson, Dugan & Murray LLP)
Appearing for the Defendant: Caroline M. Westerhold (of Baylor, Evnen, Curtiss, Grimit & Witt LLP)

Catchwords: Nebraska – workers compensation – deep vein thrombosis – pulmonary embolism – pre-existing condition – causation

Facts: The plaintiff commenced work with the defendant as a truck driver in or about late January 2010. On 26 February 2010 he was found to be suffering a deep vein thrombosis (DVT) and pulmonary embolism. It was accepted that he was required to work approximately ten hours a day and would be seated during that time period.

The plaintiff had been a truck driver for around 35 years. He had suffered two similar incidents previously, once in September 2005 in Missouri and once on 31 December 2009 (that is, about a month before beginning work with the defendant). Following the 2009 incident he was prescribed anticoagulation medication which was expected to be long term, although there was medical evidence that it was prescribed at a subtherapeutic level. There was further evidence that the injuries could have arisen from non-work related factors including obesity, heredity and smoking.

The plaintiff filed a workers compensation claim which was rejected: Wingfield v Hill Bros Transp’n Inc (Neb. Workers’ Comp. Crt, Hoffert J, date not known, unreported). The plaintff appealed.

Held: per curiam, dismissing the appeal –

1. It was appropriate in cases of DVT and pulmonary embolism to use the same test for causation as is used in heart attack cases. That is, requiring both legal causation and medical causation.

2. The test for legal causation where there is a pre-existing condition is whether the exertion or stress experienced by the claimant in employment is greater than that experienced in the ordinary non-employment life of the employee or any other person. Medical causation would be established when a preponderance of the evidence showed that employment contributed in a material and substantial degree to the injury.

Zessin v Shanahan Mechanical and Electrical, 251 Neb. 651, 558 NW. 2d 564 (1997), followed.

3. In non-cardiac cases, a plaintiff with a pre0existing condition must establish that the injury was caused by employment and not simply the progression of the pre-existing injury.

Swanson v Park Place Automotive, 267 Neb. 133, 672 NW. 2d 405 (2003), considered.


The Court’s judgment is available here.

NHS Trust v K (2012) H&FLR 2014-29

A National Health Service Trust v K and Anor (2012) H&FLR 2014-29

Court of Protection (UK)

15 October 2012

Coram: Holman J

Appearing for the Applicant: Mr Charles Utley (instrusted by the applicant’s legal department)
Appearing for the First Respondent: Ms Amy Street (instructed by the Official Solicitor)
Appearing for the Second Respondent: Mr Charles Utley (instrusted by Kennedys Law LLP)

Catchwords: United Kingdom – Person under disability – cancer – surgery – obesity – diabetes – asthma – heart dysrhythmia – best interests – sedation

Facts: A 61 year old lady was diagnosed with uterine cancer. The National Health Service (NHS) Trust responsible for her care considered that she should undergo a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy. Non-surgical treatments were available but there was reason to doubt their efficacy. She suffered from a 40 year history of a psychotic disorder and chronic schizophrenia and (among other things) denied that she suffered cancer or required surgery. It was common ground that she was unable to make informed decisions as to major medical treatment.

The patient suffered marked co-morbidities including superobesity, diabetes and pronounced asthma, all of which increased the risk of serious complications resulting from the surgery. She also had a heart dysrhythmia which created a risk that agitation (such as that caused by fighting physical restraints) might be fatal.

The Official Solicitor, as her litigation friend, considered the proposed surgery too dangerous. The NHS Trust applied to the Court of Protection for approval to perform the surgery.

Held: Granting the application –

1. The Court of Protection is required to make the decision for the patient in her best interests. To assess where her best interests lie, the court must consider all relevant circumstances including advantages and disadvantages.

2. In order to minimise the risk of the patient reacting advsersely to the prospect of surgery, it would be lawful to sedate her before telling her of the operation to be performed, and before administering anaesthesia.

DH NHS Foundation Trust v PS [2010] Med LR 320, [2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, considered.

3. A lymphnodectomy would add to the duration and gravity of the surgery and increased the risks involved. In the circumstances, this element of the surgery was not approved.


The Court’s judgment is available here.

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed


The Court’s judgment is available here.

Biery v United States (2014) H&FLR 2014-27

Dorothy L Biery and Ors v United States (2014) H&FLR 2014-27

United States Court of Appeals (Federal Circuit)

4 June 2014

Coram: Prost CJ, Schall and O’Malley JJ

Appearing for the Plaintiffs (Appellants): Mark F Hearne, Meghan S Largent, Lindsay SC Brinton, Stephen S Davis and Debra J. Albin-Riley (all of Arent Fox LLP) .
Appearing for the Defendant (Respondent): Nina Robertson (US Dept of Justice) and Robert G Dreher (Acting Assistant Attorney-General)

Catchwords: Kansas – real property – rails to trails – taking – deeds – National Trail Systems Act – fee simple – right-of-way – easement

Facts: The plaintiffs were landowners in Kansas whose properties abutted a rail corridor. The corridor was the subject of various deeds granted by the landowners’ predecessors in favour of a series of operators of the railway. The railway operator abandoned its interest in the rail corridor, which was converted into a recreational trail under the National Trail Systems Act.

The plaintiffs alleged that the conversion of the rail corridor was a taking (or compulsory acquisition) of their property interests and sought compensation. The proceeding was dismissed on the basis that the plaintiffs held no fee-simple interests that could be the subject of a taking*. Their claims were dismissed**. The plaintiffs appealed.

Held: per curiam, upholding the appeal in part and dismissing it in part –

1. State law controls the nature and scope of a property interest in a rail corridor.

Preseault v United States, 100 F. 3d 1525 (Fed. Cir., 1996), followed.

2. In Kansas law, railway operators do not take fee-simple ownership of narrow strips of land taken as rights-of-way.

Harvest Queen Mill & Elevator Co v Sanders, 370 P.2d 419 (Kan., 1962).

3. A deed which directly or indirectly describes or refers to the land’s use or purpose as a right-of-way is considered to have granted an easement. However, where a deed to a railway operator contains no restrictions, reversionary clause or other indications that it is solely for a right of way, the title will be considered to have been granted in fee simple.

Stone v USD No. 222, 91 P.3d 1194 (Kan., 2004) followed.


The Court’s judgment is available here.


* Biery v United States (Court of Federal Claims, 20 August 2009, unreported).

** Biery v United States (Court of Federal Claims, 9 April 2013, unreported)

Wittorf v City of New York (2014) H&FLR 2014-26

Rhonda Wittorf v City of New York (2014) H&FLR 2014-26

Court of Appeals of New York

5 June 2014

Coram: Lippman CJ, Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam JJ

Appearing for the Plaintiff (Appellant): Brian J Shoot (of Sullivan Papain Block McGrath & Cannavo)
Appearing for the Defendant (Respondent): Ronald E Sternberg (of New York City Law Department
Appearing as Amicus Curiae: New York State Trial Lawyers Association

Catchwords: New York – negligence – road works – closure of road – cyclist – road defect – fall off bicycle – governmental function – proprietary function

Facts: On 5 November 2005, an employee of the defendant with a works crew attended Central Park to repair certain defects in the roadway beneath an underpass. Before starting work, the employee went to an entrance to the park to close it to vehicular transport with traffic cones. As he did so, the plaintiff and a third party arrived and asked if they could use the roadway on bicycles. They were told it was “okay to go through”. As they did so, the plaintiff encountered the defects which he crew had been sent to repair, fell off her bicycle and was injured. She commenced proceedings seeking compensation from the defendant in the Supreme Court of New York.

At trial, a jury found that the defendant’s employee was negligent in allowing the plaintiff to use the roadway and that this negligence was a substantial factor in causing her injuries. The defendant successfully applied to the Court to set the verdict aside on the grounds that the employee was carrying on a governmental function at the time of the accident*. An appeal to the Appellate Division was dismissed**. The plaintiff appealed to the Court of Appeals.

Held: per curiam, upholding the appeal –

1. If a municipality is engaged in a proprietary (as opposed to governmental) function when the claim arises, it is subject to being sued under the ordinary rules of negligence. It will be engaging in a proprietary function if the activity substitutes for or supplements traditionally private activity. It will be engaging in a govenmental function if its acts are undertaken for the protection and safety of the public under the general police power.

Applewhite v Accuhealth Inc, 21 NY.3d 420 (2013), followed.

2. A municipality has a proprietary duty to keep roads and highways in a reasonably safe condition, and the function remains proprietary regardless of limitations on liability imposed by “prior written notice” laws or whether the function is carried out by the municipality’s maintenance crews.

Friedman v State of New York, 67 NY.2d 271 (1986), followed. Bruni v City of New York, 2 NY.3d 319 (2004) and Amabile v City of Buffalo, 93 NY.2d 471 (1999), considered.

3. In the present case, although the City’s employees had not yet begun the repairs, the works could not be performed without closing the road to traffic and so the closure was integral to the repair work and part of the proprietary function. By contrast, had the crew been seeking to control access to the scene for the protecion of the public in general (a governmental function), this may have rendered the traffic control decision governmental.

Balsam v Delma Engineering Corporation, 90 NY.2d 966 (1997), distinguished.


The Court’s judgment is available here.


* Wittorf v City of New York , 33 Misc 3d 368 (2011).

** Wittorf v City of New York, 104 AD.3d 584 (1st Dept, 2013)

Bell v Nichols and Inman (2014) H&FLR 2014-25

Alexias Bell v Kurt Nichols and Thomas Inman (2014) H&FLR 2014-25

Tenth Texas Court of Appeals

24 April 2014

Coram: Gray CJ, Davis and Scoggins JJ

Appearing for the Appellant: Renee E. Moeller and Susan Allison Kidwell
Appearing for the First Respondent: David Bradley and Trisha Danielle Ross (both of Walters, Balido & Crain)
Appearing for the Second Respondent: Russell Chip Pelley (of Pelley Law Office) and Joe Neal Smith  

Catchwords: Texas – college football – mascot – motorcycle – punch – civil procedure – admissions – want of prosecution

Facts: Bell (appellant) was employed by Sam Houston State University to attend a football game as a mascot*.  She was being driven to a pre-game function on the front of a four-wheel motorcycle driven by Inman (second respondent).  The second respondent allegedly ran into Nichols (first respondent), the coach of the opposing team, who punched the appellant and caused her to fall off the motorcycle.  She brought proceedings against the second respondent for negligence and against the first respondent for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.

The appellant’s lawyer withdrew during the proceedings and for a period of time she was unrepresented.  During this time the first respondent sent requests for admissions to the appellant.  Four of the proposed admissions were to the effect that the respondents neither harmed her nor were the proximate cause of harm to her, had not caused intentional harm to her, and acted reasonably and prudently.  She objected to these admissions and the respondents applied to the court to deem the requests admitted.

After an abortive hearing on 28 December 2012 the matter was refixed for consideration on 26 March 2013, by which time the appellant had secured new representation.  Her new lawyer amended her response to the request for admissions to deny those to which she had previously objected.  The trial court granted the respondents’ motion to deem the admissions sought and dismissed the proceedings for want of prosecution.  The appellant appealed.

Held: Allowing the appeal –

1.  A court at first instance may dismiss a case for what of prosecution based on a defendant’s motion.  If the dismissal is appealed, and the dismissal order does not state the grounds on which it was dismissed, the appellant must show that each of the grounds alleged in the motion to dismiss is insufficient to support the decision to dismiss.  Here, the motion to dismiss was based solely on the appellant’s failure to appear at the (non-)hearing on 28 December 2012 and was an abuse of discretion.

Nichols v Sedalco Construction Services, 228 SW.3d 341 (Tex. App. – Waco 2007), followed.

2.  Where a party objects to an admission, Rule 215 of the Texas Rules of Civil Procedure allows a court to consider whether the objection is justified.  If not, it shall order that an answer be served.  It is not able to deem a matter admitted because of an improper objection.


The Court’s judgment is available here.

An appeal appears to have been lodged.


* Known as “Airkat“.

Cole v Boy Scouts of America (2011) H&FLR 2014-24

Karen Cole & Ors v Boy Scouts of America & Ors (2011) H&FLR 2014-24

Supreme Court of South Carolina

5 December 2011

Coram: Toal CJ, Beatty, Kittredge, Hearn and Pleicones JJ.

Appearing for the Appellant: Arthur K Aiken (of Aiken & Hightower PA)
Appearing for the Respondent: John M Grantland, Alice P Adams and Ashley B Stratton (of Murphy & Grantland)

Catchwords: South Carolina – Cub Scout function – softball – unscored – collision between players – contact sport – assumption of risk – nature of sport – breach of rules – recklessness

Facts: At a Cub Scout function, David Cole Sr and David Cole Jr participated in an unscored father-son softball game.  Cole Sr was playing in the catcher’s position and, during a play, moved to stand on top of home plate.  A father on the opposing team – Wagner – ran towards home plate in an attempt to score.  He collided with Cole Sr, causing significant injuries.  The incident was witnessed by Cole Jr.

Cole Sr, his wife Karen Cole and Cole Jr brought proceedings against (among others) Wagner and the organisers of the game.  Wagner sought summary judgment which the trial court granted.  The plaintiffs appealed.

Held: Dismissing the appeal, per Toal CJ, Beatty, Kittredge and Hearn JJ –

1.  A person who chooses to take part in a contact sport (which includes softball) assumes the risks inherent in the sport, and a defendant is not obliged to protect the person from those risks.  The key factor is the nature of the sport involved, and not whether the sport is professional or amateur, organised or unorganised, or supervised or unsupervised.

Hurst v East Coast Hockey League, 673 SE.2d 560 (SC 2006); Marchetti v Kalish, 559 NE.2d 699 (Ohio 1990); Keller v Mols, 509 NE.2d 584 (Ill. App. Ct. 1994), followed.

2.  Although Wagner may have breached the rules of softball by running into the catcher, the risk of a breach of the rules of a game is one of the risks taken when engaging in a sport.  In addition, some recklessness by players as to the risk of injury to others is inherent to contact sports.  However, intentional conduct causing injury, or alternatively very reckless conduct, is or may be outside the scope of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), considered.

3.  Semble, that the standard of care is not affected by the expectations of the participants of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), approved.

4.  Obiter, that a player can still owe a duty of care to a spectator of a game, and this duty will be greater than that owed to another player.

Per Pleicones J, that Wagner owed no duty to Cole based on the doctrine of implied primary assumption of risk.  However, quaere whether softball is a contact sport.


The Court’s judgment is available here.

Police v Morey and Hall (2014) H&FLR 2014-23

Police v Kylin Morey and Benjamin Hall (2014) H&FLR 2014-23

Albury Local Court

1 April 2014

Coram: Greenwood M

Appearing for the Prosecutor: Not known
Appearing for the Defendants: Not known

Catchwords: Australia – New South Wales – prominent football player – affray – sentence

Facts: The defendants pleaded guily to affray in connection with two assaults at the Boomerang Hotel on 26 October 2014.  Morey had repeatedly struck one man who did not retaliate, and another who tried to intervene.  He threw a table at the second man as he was being escorted off the premises.  Hall, his friend, had also been ordered to leave the Hotel, but ran back inside and struck another patron, rendering him unconscious.  Morey gave evidence that he had been too drunk to remember the incidents.  Evidence was given that Morey had argued with members of another group prior to the fight.

Morey was decribed in one account as a “Hume football premiership hero”, having kicked eight goals for the Brocklesby-Burrumbuttock ‘Saints’ in their premiership win over the Holbrook ‘Brookers’.  In connection with the assault, he expressed remorse and embarassment.

Held: The court described the matter as ‘really troubling’.  In connection with Morey, Her Honour noted that a gaol term would have been imposed but for his plea of guilty and the fact that he had voluntarily gone to police and admitted his involvement.  In relation to Hall, she noted that a blow rendering someone unconscious may cause fatal injuries*

Morey and Hall were both sentenced to 150 hours community service for affray.  Hall was also fined $1500.00 for being an excluded person on licensed premises.


Written reasons are not available.  Details in this report have been taken from the Newcastle Herald of 19 February 2014 and the Border Mail of 2 April 2014 at p. 7.


* Cf R v William John Lovel(Supreme Court of Victoria, Hollingworth J, 16 October 2013, reported in Shepparton News, 22 October 2013 at p. 1 and Campaspe News, 22 October 2013 at pp. 1 and 3)