Harsted v Prior Lake-Savage School District (2013) H&FLR 2014-51

Beverly Harsted (as Mother and Natural Guardian of Tiffany Harsted) v Prior Lake-Savage Independent School District 719 (2013) H&FLR 2014-51

Scott County District Court (Minnesota)

20 June 2013

Coram: Fahey J

Appearing for the Plaintiff: Martin Montilino
Appearing for the Defendants: Not represented

Catchwords: Minnesota – school sport – gymnastics – action by coach – back injury – damages – quantum

Facts: The 14 year old plaintiff (Tiffany Harsted) was a student at Prior Lake High School and part of its gymnastics team. During a gymnastics practice on 26 January 2011 she was lying on her stomach on the floor of a training venue with an icepack on her back. An assistant coach stepped on her back for reasons which were unclear. She experienced persistent pain after this incident which was eventually identified as a vertebral facet fracture (in addition to stress fractures which were attributed to repetitive trauma associated with gymnastics). The stress fractures recovered but the facet fracture did not fully heal. The evidence was that the plaintiff would continue to have back pain with activity. She was ultimately able to resume gymnastics.

The plaintiff sought compensation for her injury from the school. Damages were agreed with the operator of the school at $24,000.00 (inclusive of legal costs of $8,000.00). Application was made to the court for approval of an infant’s compromise.

Held: The Court’s records indicate that the compromise was approved, offering an insight into the damages considered appropriate for a blameless plaintiff with an injury of the type described.


No written reasons are available. This report has been prepared based on the Court’s Register of Actions and the report prepared by Kaitlyn Egan in the Prior Lake American of 16 June 2013.

Wilson v O’Gorman High School (2008) H&FLR 2014-50

Andrea Wilson v O’Gorman High School and Others (2008) H&FLR 2014-50

United States District Court (District of South Dakota)

26 June 2008

Coram: Schreier CJ

Appearing for the plaintiff: Steve Landon (of Cadwell Sanford Deibert & Garry LLP)
Appearing for the Defendants: Jim McMahon (of Murphy, Goldammer & Prendergast, LLP)

Catchwords: South Dakota – gymnastics – coaching – injury – standard of care – assumption of risk

Facts: The plaintiff was a gymnast and took part in high school gymnastics with the defendant. On 22 January 2003 as part of school gymnastic training she was practicing a manoeuvre known as the “reverse hecht” under the supervision of a coach supplied by the school. She had attempted the manoeuvre about thirty times that day. On her final attempt she released the bar late and fell, suffering severe injuries.

The plaintiff brought proceedings in negligence against the school and coach, alleging (inter alia) that the coach had attempted to instruct her in the reverse hecht despite not being trained to do so, that he had failed to prevent her practicing the manoeuvre as many as thirty times, and that he had not moved her to a foam pit where she could more safely practice the manoeuvre despite her multiple failed attempts.

The defendants disputed the applicable standard of care and also asserted voluntary assumption of risk and contributory negligence. The defendants sought summary dismissal of her claim.

Held: Refusing the application for summary judgment –

1. To establish negligence a plaintiff must establish that there was a duty on the part of defendants, that they failed to meet that duty, and that this failure resulted in injury*.

Kuehl v Horner (JW) Lumber Co, 678 NW.2d 809 (SD 2004), followed.

2. The standard of care is not reduced for people engaged in sporting activities, like coaches or sports administrators. The general standard of care applies.

Kahn v East Side Union High School District, 75 P.3d 30 (Cal. 2003), not followed.
Gasper v Freidel, 450 NW.2d 226 (SD 1990), distinguished.
Rantapaa v Black Hills Chair Lift Co, 633 NW.2d 196 (SD 2001), considered.

3. Application of the general negligence standard still allows the defendant to allege assumption of risk.  To succeed on this basis a defendant must show that the plaintiff had actual or constructive knowledge of the risk, appreciated its character, and voluntarily accepted the risk (having had the time, knowledge, and experience to make an intelligent choice). However, a plaintiff is not obliged to anticipate the negligent conduct of others.

Goepfert v Filler, 563 NW.2d 140 (SD 1997) and Ray v Downes, 576 NW.2d 896 (SD 1998), followed.

The Court’s judgment is available here.

* The defendants did not dispute that they owed the plaintiff a duty of care.

DPP v Ryan (2007) H&FLR 2014-49

Director of Public Prosecutions v Stephen Newton Ryan (2007) H&FLR 2014-49

County Court of Victoria (Australia)

c. 20 March 2007

Coram: Judge McInerney

Appearing for the Prosecution: Carolyn Burnside (instructed by the Office of Public Prosecutions)
Appearing for the Defendant: Brian Bourke (instructors not known)

Catchwords: Australia – Victoria – soccer – altercation between spectators -serious injury – assault – sentencing considerations

Facts: On 29 June 2003 the accused attended an under-11s soccer match at Caloola Reserve, Oakleigh, in which his son was playing. It was alleged that he had been telling players from his son’s team to kick and punch a player on the opposing team after a penalty shot was awarded. The victim – the father of one of the players on the opposing team – remonstrated with him. In the ensuing altercation the victim grabbed the accused’s umbrella and suffered a hand injury when it was yanked away. When the victim turned to walk away, the accused struck him from behind with the umbrella, causing a spoke to become lodged in his back.

The accused was charged with intentionally or recklessly causing serious injury*. He pleaded not guilty at a committal hearing in the Melbourne Magistrates Court and was committed to stand trial in the County Court: McLean v Ryan (2006), The Age, 15 September 2006. At trial he pleaded guilty to assault**.

Held: The Court accepted that the offence had been committed in the heat of the moment and that the accused had allowed himself to be overcome by circumstances. However, His Honour also considered that it was becoming too common for parents at soccer matches to lose their self-control, and that neither the accused nor victim had brought credit to themselves and had set a bad example to the children present.

A conviction was recorded against the accused and a fine of $3,000.00 imposed.


No written judgment has been made available. The report has been prepared based on newspaper accounts in The Age of 1 July 2003  and 15 September 2006 and the Herald Sun of 14 September 2006 and 21 March 2007.

* Crimes Act 1958 (Vic.), §16 and §17.
** Summary Offences Act 1966 (Vic.), §23

Spady v Bethlehem Area School District (2014) H&FLR 2014-48

Mica Spady v Bethlehem Area School District and Ors (2014) H&FLR 2014-48

United States District Court (Eastern District of Pennsylvania)

30 July 2014

Coram: Slomsky J

Appearing for the Plaintiff: Richard J. Orloski and Steven C. Ameche (of Orloski Law Firm)
Appearing for the Defendants: Paul G. Lees (of Marshall, Dennehey, Warner, Coleman & Goggin)

Catchwords: Pennsylvania – school – physical education – death – constitutional violations – officials immunity – exceptions – training

Facts: Juanya Spady was a student at Liberty High School, operated by the defendant. On 2 December 2010 he attended a swimming class as part of Physical Education (PE). During the class he complained to the teacher of feeling unwell but finished the lesson. The evidence was conflicted as to whether the teacher compelled him to complete the lesson. During his next class (which was in a classroom) he collapsed and had difficulty breathing. First aid was administered, including CPR and use of an automated external defibrillator. An ambulance was called, but Master Spady died in hospital later that day. The cause of death was disputed, although one theory alleged toxicity caused by swimming pool chlorine.

The deceased’s mother commenced proceedings on behalf of his estate under 42 U.S. Code §1983, alleging breaches of the deceased’s constitutional rights to personal security, life, liberty and freedom from state-created dangers and unconscionable arbitrary government action. She also brought claims in State law for ‘wrongful death’ as well as a survival action on behalf of his estate. The defendants sought summary dismissal of the constitutional claims.

Held: Rejecting the defendant’s application, that –

1. The State may be liable where it has created or exacerbated a danger which causes a plaintiff to be deprived of their Fourteenth Amendment rights. For the claim to succeed, the plaintiff must show that the harm alleged caused was foreseeable and fairly direct, that a State officer was culpable to a degree that shocks the conscience, that the plaintiff (or a person in the plaintiff’s position) was a foreseeable victim of the defendant’s actions, and that the officer affirmatively used their authority so to endanger (or worsen the danger) to the plaintiff

Morrow v Balaski, 719 F.3d 160 (3d Cir. 2013)

2. Government officials are not liable for civil damages, unless the plaintiff can establish that the official violated a statutory or constitutional right which was clearly established at the time of the alleged wrongful act. For the immunity to be lost, the unlawfulness of the official’s actions should have been apparent to a reasonable official.

Wood v Moss, 572 US __ (2014); Halsey v Pfeiffer, No. 13-1549, 2014 WL 1622769 (3d Cir. Apr. 24, 2014)

3. The School district can be liable under §1983 where it had a policy or custom which lead to the alleged constitutional violation. Where the policy was a failure to train an employee, the failure must amount to deliberate indifference (in the form of disregarding a known or obvious consequence*) to the rights of people who will deal with the employee and also have in fact caused the violation.

Natale v Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003); Thomas v Cumberland County, 749 F.3d 217 (3d Cir. 2014)


The Court’s judgment is available here.
* Cf ‘gross negligence’: Stephen Tuck, ‘A Recent Decision of the Florida DCA on Gradations of Negligence‘, Amer. Bar Assoc. Commercial Transp. Litigation Comm. News 10 (Winter 2014).

Heskel v San Diego (2014) H&FLR 2014-47

Menahem Heskel v City of San Diego (2014) H&FLR 2014-47

California Court of Appeal (Fourth Appellate District)

13 June 2014

Coram: Huffman APJ, McDonald and O’Rourke JJ

Appearing for the Plaintiff: Mr Michael Feldman (of Law Offices of Michael A Feldman)
Appearing for the Defendant: Messrs Jan Goldsmith and Andrew Jones and Mesdames Jennifer Gilman and Stacy Plotkin-Wolff (of the San Diego City Attorney’s Office)

Catchwords: California – San Diego – negligence – pedestrian – sidewalk – trip – fall – constructive notice

Facts: On the night of 29 September 2009 the plaintiff was walking on the sidewalk of Mission Gorge Road between Jackson Street and Echo Dell Road, San Diego. He tripped on the protruding base of a hollow metal post which was cemented into the sidewalk, causing him to fall and suffer injury. The base appears to have been a few inches tall, but the evidence adduced by the plaintiff was unclear as to how obvious it in fact was.

Section 835 of the Californian Government Code renders a public entity liable for injury caused by a dangerous condition of its property, subject to a plaintiff establishing (a) the dangerous condition of the property at the time of injury, (b) that the dangerous condition proximately caused the plaintiff’s injury, (c) that the dangerous condition created a reasonably foreseeable risk of injury of the kind which was sustained* and (d) the entity had constructive notice of the dangerous condition for a sufficient time prior to the accident to have addressed it. Constructive notice exists where the dangerous condition existed for so long and was so obvious that the entity should have identified it by (inter alia) an adequate inspection system.

The defendant sought and was grated summary judgment on the grounds that it lacked constructive notice: Heskel v City of San Diego (Superior Court of San Diego County, Taylor J, 21 November 2011, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. A claim of constructive notice has two elements: the plaintiff must establish that the dangerous condition existed for a sufficient period of time, and that it was obvious. Here, the evidence was that the base had been present for up to two years, but did not make a prima facie showing that the condition was obvious. Accordingly summary judgment was properly given.

State v Superior Court (1968) 263 Cal.App.2d 396, followed.

2. The fact that the base was above ground and visible was not enough to require the defendant, in the exercise of reasonable care, to identify it. Semble, for a hazard to be identifiable in the exercise of reasonable care, it should be of a substantial size or visible from public thoroughfares**.


The Court’s judgment is available here.


* Cf Hughes v Lord Advocate [1963] AC 837, [1963] 2 WLR 779, [1963] 1 All ER 705, 1963 SC (HL) 31
** Cf Inquest into the Death of Stephen Clough (Coroners Court of Victoria, Coroner Olle, 4 March 2010, unreported)



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Phee v Gordon (2013) H&FLR 2014-46

Anthony Phee v James Gordon and Niddry Castle Golf Club (2013) H&FLR 2014-46

Inner House – Court of Session (Scotland)

14 March 2013

Coram: Lord Clarke, Lord Hodge and Lord Philip

Appearing for the First Defender and Reclaimer* (Gordon): Laurence Murphy QC (instructed by HBM Sayers (now BLM)
Appearing for the Second Defender and Reclaimer (Club): Graham Primrose QC and Alan Cowan (instructed by Simpson & Marwick)
Appearing for the Pursuer** and Respondent (Phee): Nicholas Ellis QC and Bryan Heaney (instructed by Lawford Kidd)

Catchwords: Scotland – golf – design of course – mis-hit golf ball – warning – injury – negligence – apportionment

Facts: On 10 August 2007 the pursuer, a novice golfer, was playing golf on a course operated by the second defender. The course was ‘tight’ and had a number of holes which crossed or were in close proximity to each other. Among other things, the path between sixth hole and the seventh tee ran along the edge of the 18th hole. A player on the 18th tee, looking to the 18th fairway, could see people walking on the path towards the seventh tee. The club did not require any minimum standard of skill of its players and did not provide warnings as to how to protect oneself from a mis-hit golf ball.

The pursuer was walking on the path between the sixth hole and the seventh tee when the first defender, a moderately experienced golfer, teed off from the 18th tee. He gave evidence that he aimed his shot slightly to the right of the normal target line from the tee to the centre of the normal target area on the fairway. He played a bad shot (a “duck hook”) in which the ball initially travelled straight and then swerved to the left. He and his companion shouted “fore”. Mr Phee responded by leaning forwards, placing his left hand in front of his face and looking for the origin of the ball. As he did so he was struck on the left side of his head, causing the loss of his left eye.

The pursuer brought proceedings against Gordon in negligence at common law and against the Club under the Occupiers Liability (Scotland) Act 1960, §2(1). The trial judge upheld the claim and apportioned liability 70% against Gordon and 30% against the Club: Phee v Gordon, 2011 GWD 38-786, 2011 Rep LR 108. The defenders appealed.

Held: Per curiam, allowing the first defender’s appeal in part –

1. The appeal points raised by the first defender were rejected. Obiter, that had the appeal court considered the matter de novo, it would have considered that the first defender’s failure to ensure that the pursuer was aware that he (Gordon) was about to tee off and were alert to the danger would have amounted to negligence.

2. The second defender was not entitled to assume that all users of the course were aware of the rules of golf or knew how to respond to a warning shout. It was not entitled to assume that all golfers would play in a safe manner at all times. Among other things, the danger could have been minimized at little cost with suitable warning signs on the 18th tee or on the path from the sixth green to the seventh tee.

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 (PC), followed.

3. The inner House of the Court of Session should only alter the trial judge’s apportionment of fault if the trial judge has manifestly and substantially erred. This was the case here, where the trial judge had not explained the basis for his apportionment and had overlooked evidence that the club’s failure to warn inexperienced players of dangers on the course. A more appropriate apportionment of fault was 20% to the first defender and 80% to the second.

McCusker v Saveheat Cavity Wall Insulation Ltd, 1987 SLT 24 and Boy Andrew (Owners) v St Rognvald (Owners), 1947 SC (HL) 70, followed


The Court’s judgment is available here.

A further substantive appeal by the second defender was abandoned, although an appeal did proceed on the question of costs: Phee v Gordon [2014] CSIH 50


* Defendant and Appellant.
** Plaintiff

NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health (2014) H&FLR 2014-45

New York Statewide Coalition of Hispanic Chambers of Commerce and Ors v New York City Department of Health and Mental Hygiene and Ors (2014) H&FLR 2014-45

New York Court of Appeals

26 June 2014

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

Appearing for the Appellant: Mr Richard Dearing (of New York City Law Department – Appeals Division)
Appearing for the Respondent: Mr Richard P. Bress (of Latham & Watkins LLP)
Numerous parties appeared as amici curiae.

Catchwords: New York – sugary drinks – containers – limitation – separation of powers – tests – arbitrary.

Facts: In 2012 the appellant Board adopted an amendment to the New York City Health Code (§81.53) which prohibited the sale of sugary drinks in containers of greater than 16 fluid ounces. The rule included a specific definition of ‘sugary drink’ and did not apply to supermarkets or convenience stores.

The respondent Coalition sought a declaration that the amendment was invalid. This declaration was initially made by the Supreme Court of New York County: NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health, 2013 NY Slip Op 30609(U). An appeal by the Board was dismissed: NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health, 110 AD.3d 1 (1st Dept, 2013). The Board appealed.

Held: Per Pigott, Graffeo and Smith JJ, dismissing the appeal –

1. The Board’s authority is limited to enacting regulations for carrying out the powers and duties delegated to it by Federal, State or local law. It does not have legislative power.

Grossman v Baumgartner, 17 NY.2d 345 (1966); Shulman v NYC Health & Hospitals Corp, 38 NY.2d 234 (1975); People v Blanchard, 288 NY 145 (1942), considered.

2. The New York City Charter sets up a separation of powers. There is no bright-line test for assessing whether a regulatory agency has trespassed into the legislative arena. However, four factors may, when viewed in combination, indicate that an agency has breached the separation of power. The factors are –

(a) Has the agency balanced the competing interests of public health and economic cost in order to reach its own view of sound public policy? In considering this factor, it should be noted that undertaking such a cost-benefit analysis is part of reasonable regulation, and that an agency which enacted rules without considering whether the benefits outweigh the costs would be acting unreasonably*. However, it will be relevant to consider whether the legislature has given any guidelines as to how the costs and benefits are to be weighed. Judgments involving difficult and complex choices among broad policy goals are a matter for the legislature.

(b) Has the agency created a comprehnsive set of rules without the benefit of public guidance? In the present case it was relevant that the legislature had not established health policy goals with regard to sugary beverages which the rule could relate to.

(c) Does the challenged rule govern an area where a legislative body has repeatedly tried to reach agreement in the face of significant public debate?

(d) Did the development of the rule require expertise in a specialised area.

Boreali v Axelrod, 71 NY.2d 1 (1987), followed.

Per Abdus-Salaam J, concurring in the result –

3. The Board engaged in improper law making by setting broadly applicable policy affecting a large part of the New York population, enacting a rule which involved a value judgment as to voluntary behaviour, addressing a field the legislature has considered but not acted upon, and by adopting a rule which did not respond to a health problem with a clear cause**.

4. Semble, the law does not establish a rigid decisional framework to be applied in future when considering the actions of administrative agencies.

Boreali v Axelrod, 71 NY.2d 1 (1987), not followed.

Per Read J and Lippman CJ, dissenting –

5. The Board’s history establishes that has the delegated authority of the New York State Legislature to regulate public health in New York City. The Boards regulations have the force and effect of State law. As such, it is irrelevant that New York City Council has not chosen to regulate sugary drinks.

6. Any analysis of separation of powers issues should be flexible and case specific and consider the relevant agency’s decision in light of the legislative delegation it invokes. Considerations of delegation of State legislative power may not be apposite in considering delegations of local government power.

Boreali v Axelrod, 71 NY.2d 1 (1987), distinguished.

7. Where a regulation is not tainted by ultra vires or deparation of powers problems, the proper standard for review is whether the rule is so lacking in justification that it is essentially arbitrary*.

Bernstein v Toia, 43 NY.2d 437 (1977) and General Electric Capital Corp. v NY State Division of Tax Appeals, Tax Appeals Tribunal, 2 NY.3d 249 (2004), considered.


The Court’s judgment is available here.

* Cf Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.
** Cf Pelman v McDonald’s Corporation (2003) H&FLR 2014-33 and S.E.F. v Archer-Daniels-Midland Co (2014) H&FLR 2014-8.

Estate of Shelmovitz v City of Tel Aviv (2014) H&FLR 2014-44

Estate of the late David Shelmovitz & Ors v City of Tel Aviv & Ors (2014) H&FLR 2014-44

Tel Aviv Magistrates Court (Israel)

23 July 2014

Coram: Klein J.

Appearing for the Plaintiffs: Not known
Appearing for the Defendants: Not known

Catchwords: Israel – half-marathon – dehydration – death – negligence – fitness to compete

Facts: In 2011 Mr David Shelmovitz competed in a half-marathon organized by the first defendant (City of Tel Aviv). The first defendant engaged the second defendant (Hands Promotional Marketing Ltd) to manage the event. The second defendant was insured by the third defendant (Harel Insurance Co. Ltd). Under the system set up by the defendants, race entrants were required to complete an online declaration that they were medically certified as fit to compete, but were not required to produce the certificate itself.  The deceased declared that he was certified fit, despite not being so.

During the race the 42-year-old Shelmovitz developed symptoms of heatstroke but continued to run. He collapsed and was hospitalized for heatstroke and dehydration. Some 38 minutes elapsed between when he collapsed and when he reached intensive care. Three days after collapsing he died in hospital from liver damage.

His family brought proceedings against the defendants. It was alleged that they had been negligent in not requiring production of a medical certificate, in allowing excessive delay before the deceased was taken to hospital, and in not having facilities available on the course to cool him directly after the collapse.

The defendants responded that medical certificates are not required in any jurisdiction to compete in a half-marathon, and would impose an unreasonable and excessive burden on race organizers. They contended that adequate care was provided after the deceased collapsed. They also contended that any negligence on their part had not caused harm to the defendant because there was no reason to consider that his doctor would not have certified him as fit to compete, and had previously run a similar distance in a gymnasium. They also alleged contributory negligence against the deceased.

Held: Upholding the claim, that –

1.  In order to establish negligence, the plaintiff must show that the defendant owed both a conceptual and a concrete duty of care, that the duty was breached, and the breach lead to the harm alleged. Given the relationship between the race organizers and the participants, and the competitive setting, such a duty existed. The defendants conceded that a concrete duty of care existed.

Vaknin v Bet Shemesh Local Council (1983) 37(i) P.D. 113, followed.

2.  There was a duty on the defendants to ensure race participants were in fact medically certified.  The defendants had breached that duty.  Requiring entrants to click the “I agree” button is not sufficient to bring to their awareness any risk to their health.

3. The defendants were negligent in not having available a means of cooling the deceased after his collapse, given that the cost of doing so was outweighed by the danger to a runner suffering heatstroke and dehydration*.

4. The defendants’ negligence was found on factual grounds to have lead to Mr Shelmovitz’s death. His Honour noted that the deceased’s running the same distance in a gym was not enough to conclude that he was fit to run in an outdoor event. Fault as between the defendants was apportioned 30% to the first defendant and 70% to the second and third defendants.

5. In assessing contributory negligence, the court must consider whether the plaintiff fell short of the actions of a reasonable person and (if so) to compare the actions of the plaintiff and defendant and assess what proportion of fault was borne by each. In the case, the deceased had been negligent by claiming falsely to have had a medical certificate and by continuing to run after developing symptoms of heatstroke. He was found to have contributed 30% to his own harm.

Alan Shore v State of Israel, IsrSC not (1) 299 and Levi Sternberg v Bnei Brak Municipality, IsrSC Meg (3) 343, applied.

6. His Honour assessed damages at NIS890,000 (US$257,591.62 / A$277,988).


The court’s judgment is available here**.   Media reports suggest an appeal will be lodged.


* Cf Caledonian Collieries Ltd v Speirs, 97 CLR 202 (Austl., 1957)

** I have used a Google translation for the purposes of this report and (due to the sometimes questionable translation) have had to make some inferences as to meaning.  I have been assisted by reports in the Jerusalem Post of 29 July 2014, on reports here and here on the Israeli running website Shvoong, on this report on the News1 website and on this report on the ynet website

Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-43

Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-42

Georgia Court of Appeals

11 July 2014

Coram: Barnes PJ, Boggs and Branch JJ

Appearing for the Appellant: The Hon Leah Ward Sears and Mr Ronald Gaither (of Schiff Hardin LLP) and Mr Bradley Wolff and Ms Pamela Lee (of Swift, Currie, McGhee & Hiers LLP)
Appearing for the Respondent: Mr Matthew Dwyer (of Dwyer Law Group), Messrs Peter Law and Michael Moran (both of Law & Moran) and Ms Amanda Evans.

Catchwords: Georgia – baseball – infant plaintiff – foul ball – injury – baseball rule – declaratory judgment – negligence

Facts: The plaintiff, a six year old girl, attended a baseball game at the home ground of the Atlanta Braves. While sitting in a part of the stadium behind the visitors’ dugout, she was hit in the head by a foul ball, suffering serious injuries. By her litigation guardian, she issued proceedings against the defendant for negligence.

The defendant applied for a declaratory judgment as to the applicable standard of care under Georgia’s Declaratory Judgment Act, which relevantly provides (OCGA §9-4-2) that –

(a) In cases of actual controversy, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration …; and the declaration shall have the force and effect of a final judgment … and be reviewable as such.

(b) In addition …, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration … in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

The court denied the application: FF v Atlanta National League Baseball Club (Fulton County State Court, Porter J, 3 January 2013, unreported). The defendant sought interlocutory review of the denial, arguing that the trial court should have declared that the ‘baseball rule’* formed part of the law of Georgia.

Held: Dismissing the application, that a party seeking a declaratory judgment must show that it is necessary in order to relieve the party of the risk of taking action that, without direction, would jeopardise their interests. It is not available where the parties rights and liabilities have already accrued. In this case, the event giving rise to the defendant’s putative liability had already occurred. The declaratory judgment process would not be an appropriate means of testing the defence that their duty of care was met by observing the requirements of the ‘baseball rule’.

Thomas v Atlanta Casualty Co, 253 Ga. App. 199, 588 SE.2d 432 (2001) and Porter v Houghton, 273 Ga. 407, 542 SE.2d 491 (2001), followed.


The Court’s judgment is available here.


* As to which, see South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39 and Coomer v Kansas City Royals (2014) H&FLR 2014-41

Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.


The Court’s judgment is available here.