State v Nisbet (2014) H&FLR 2014-58

State v Andrew Nisbet (2014) H&FLR 2014-58

Alameda County Superior Court (California)

9 October 2014

Coram: Grimmer J

Appearing for the Prosecution: Edward Viera-Ducey (Deputy District Attorney)
Appearing for the Defendant: Timothy Rien

Catchwords: California – criminal law – golf – coach – assault on student – sentence

Facts:  The defendant was a prominent 32 year old youth golf instructor.  He sexually assaulted three of his students who were aged between 12 and 17 years.  He ultimately pleaded guilty to one count of “lewd and lascivious acts” on each of his victims, forced oral copulation, possession of child pornography and three counts of solicitation to murder (concerning an attempt to hire an assassin to kill his victims).  As a result of a plea agreement 79 other charges were withdrawn.

Held:  The offender was sentenced to 27 years and four months imprisonment and fined $10,000.00.  He was ordered to pay compensation to his victims and to register as a sex offender.


No written reasons are available.  This report has been prepared based on reports in the Contra Costa TimesNew York Daily News and ESPN.


The sentence imposed bears comparison to the 28 year sentence imposed in R v John Xydias (2009), The Age, 30 June 2009. for a much greater array of offences.  This suggests the significance that might be attached by Californian courts to the breach of trust involved in an assault by a sports coach on one of their charges.

Young v United States (2014) H&FLR 2014-57

Young and Ors v United States (2014) H&FLR 2014-57

Court of Appeals (Ninth Circuit)

17 October 2014

Coram: Alarcón, Tashima and Murguia JJ

Appearing for the Appellants: Wayne Mitchell (of Anderson & Mitchell PLLC)
Appearing for the Respondent: Priscilla To-Yin Chan (Assistant US Attorney) and Jenny Durkan (US Attorney)

Catchwords: Washington – National Park – electric transformer – melted snow – failure to warn – discretionary immunity.

Facts:  The defendant operated a visitor centre at Mount Rainer National Park in Washington State.  To supply electricity to the visitor centre, a power transformer was installed in a snowfield approximately 150 feet from the building.  The transformer releases heat as it operates.  The visitor centre is in an area which receives approximately inches of snow annually.  The snowfield in which the visitor centre was located would often contain an even greater amount of snow because the National park Service’s road ploughing operations would deposit even greater amounts of snow there.  At the relevant time, the transformer was entirely buried by snow and there was no warning of its presence.

The appellants were a Californian family who travelled to the Park.  They entered the snowfield near the visitor centre and while there Mrs Young walked on the snow over the top of the transformer.  As she did so the snow collapsed and she fell twelve feet onto the concrete pad supporting the transformer, suffering injury.  It was later identified that the transformer’s heat had melted a large amount of the surrounding snow, leaving only a thin ‘ceiling’ over a cavity.

The plaintiffs brought proceedings under the Federal Tort Claims Act (28 USC §1346(b)(1)) (Act), alleging that the National Park Service had negligently failed to warn them of a known hazard which the Service had created.  The defendant applied to dismiss the claim under §2680(a) of the Act, alleging that the government retains an immunity from claims based on the performance (or failure to perform) a discretionary function by a government agency.  The District Court granted the application and dismissed the claim: Young v US (US Dist. Ct., Settle J, 25 March 2013, unreported)  The plaintiffs appealed.

Held: Per curiam, allowing the appeal –

1.  To assess whether a claim is barred by the discretionary function exception requires first identifying the specific allegations of agency wrongdoing.  One must then ask two questions –

(a)  Was the allegedly negligent conduct discretionary?  That is, does it involve an element of judgment or choice for the agency?
(b)  Was the particular exercise of discretion one which the discretionary function exception was intended to protect?  The decision must be grounded in social, economic and political policy.

Berkovitz v United States, 486 US 531 (1988) and Whisnant v United States, 400 F.3d 1177 (9th Cir., 2005), followed.

2.  In this case the plaintiffs alleged a negligent failure to warn of a danger the government itself knew of and had created.  This failure may prima facie not be covered by the discretionary exception and so it was appropriate to move on to the two further questions.  It was common ground that the decision whether or not to install warning signs near the transformer was discretionary.  However, a decision not to warn of a specific, known danger for which the agency is responsible is not the kind of broader policy decision which the exception was meant to protect.  The decision was not susceptible to considerations of social, economic or political policy which the defendant identified.

Sutton v Earles, 26 F.3d 903 (9th Cir., 1994), approved.


The Court’s judgment is available here.

On studying international law.

There was an interesting piece on the university study of international law on the Marquette University Law Blog recently.

I found it interesting but was a little unsure whether “international law” here means law between nations or foreign law. If the latter, it may be less critically needed in Australian law schools, where foreign cases are routinely used for teaching purposes.

Speaking generally, I’m always intrigued by American lawyers’ relationship with transnational law. I have some sympathy with the scepticism and caution of someone like William Safire (‘The purloined treaty‘, NY Times, 9 April 2001). For example, the International Criminal Tribunal for the former Yugoslavia can be said to have failed, noting that it has been so procedure-heavy that it remains prosecuting offenders some 20 years after the events in question, when national courts have moved significantly faster (eg Prosecutor v Saric (High Court of Denmark, Okten, Linæs and Øesterborg JJ, 25 November 1994, unreported).

The problem is that this caution rapidly shades into an unattractive scorn for international legal norms, including orders of the International Court of Justice (eg Ted Cruz. ‘SCOTUS rejects authority of World Court‘, Human Events, 1 April 2008). Its reductio ad absurdum, incidentally, seems to be in the non-ironic claim of the Eagle Forum that international law does not exist at all!

X v French Republic (2007) H&FLR 2014-56

Dr Eric X v French Republic (2007) H&FLR 2014-56

Court of Cassation (France)

5 June 2007

Coram: Cotte P, Blondet and Farge (conseillers)

Appearing for the Appellant: Didier Le Prado and Jean-Jacques Gatineau
Appearing for the Respondent: Francis Fréchède (Public Prosecutor)

Catchwords: France – criminal law – doctor – surgery – obese patient – pulmonary embolism – death – manslaughter – compensation

Facts: The appellant was a surgeon specialising in plastic and reconstructive surgery.  On 13 January 2000 he performed an abdominoplasty on an obese 56 year old woman patient in order to remove excess skin and fatty tissue.  In the course of the surgery the patient developed a pulmonary embolism which caused her death.

It was found that the danger to the patient had been increased by the appellant’s decision not to delay the procedure pending the patient losing weight by following a dietary regime recommended by an endocrinologist; in the circumstances the surgery performed should have been considered only as a last resort.  It was further found that he had not drawn the attention of the attending anaesthetist to the risk of thromboembolisation and that he had also not drawn those dangers to the patient’s attention.

The defendant was convicted at first instance of homicide involontaire (≈ manslaughter).  The Court of Appeal at Versailles quashed the conviction but declared the defendant liable to pay compensation to the deceased’s heirs pursuant to article 470-1 of the Code du Procedure Pénale*.  The defendant appealed.

Held: Per curiam, dismissing the appeal –

1.  While the doctor’s responsibility relates to the choice of medical means and not to the ultimate result, this principle is displaced where it is established that there has been an error in the carrying out of those means.

2.  While a doctor is obliged to inform their patient of the risks of proposed treatment, the doctor is entitled to adduce a range of evidence (including presumptions) to demonstrate that they have fulfilled that obligation.  It was not open to the Court of Appeal to find that Dr X had failed to fulfil this obligation solely from the absence of a signature by the deceased.

3.  On the available evidence, the Court of Appeal was able to find that Dr X’s errors had directly contributed to the patient’s death and justified it ordering him to make recompense to her heirs.


The Court’s judgment is available here.


* No copy of the decision can be located.

Verdugo v Target Corporation (2014) H&FLR 2014-55

Michael Verdugo v Target Corporation (2014) H&FLR 2014-55

Supreme Court of California

23 June 2014

Coram: Cantil-Sakauye CJ, Baxter, Chin, Corrigan, Liu, Nicholson and Werdegar JJ.

Appearing for the Plaintiff: Robert A Roth (of Tarkington, O’Neill, Barrack & Chong) and David G Eisenstein (of Law Offices of David G Eisenstein)
Appearing for the Defendant: Richard Caldarone, Donald Falk and Foster Johnson (of Mayer Brown).

Catchwords: California – premises liability – Automated External Defibrillator – cardiac arrest – negligence

Facts:  On 31 August 2008 one Mary Verdugo, aged 49 years, (the deceased) suffered a cardiac arrest at the Target store in Pico Rivera.  There was no automated external defibrillator (AED) in the store.  Paramedics were called and attended within minutes.  They were unable to revive the deceased.

The deceased’s mother and brother issued proceedings in the Los Angeles County Superior Court against the defendant on the basis that it been negligent in not having an AED available for use in an emergency.  On the defendant’s application the matter was transferred to the Federal District Court, which then granted the defendant’s application to dismiss the matter on the basis that Target was not obliged to make an AED available for use by customers.  The plaintiff appealed to the Court of Appeals for the Ninth Circuit, which referred a question of law to the Supreme Court of California: Verdugo v Target Corp., 704 F.3d 1044 (9th Cir., 2012).  The referred question was expressed as follows –

“Whether, under California law, the common law duty of reasonable care that defendant Target Corporation … owes to its business customers includes an obligation to obtain and make available on its business premises an … AED … for use in a medical emergency”.

Held: Per Cantil-Sakauye CJ (Baxter, Chin, Corrigan, Liu and Nicholson JJ concurring) –

1.  California Civil Code §1714.21 and Health & Safety Code §1797.196 were not intended to supplant the common law on whether business establishments must acquire or use an AED.  In general, statutes should not be construed to alter or conflict with the common law.  A statute will not supplant the common law entirely in an area unless the legislature has shown an intention to “cover the field”.  General and comprehensive legislation, minutely describing courses of conduct, parties, things affected, limitations and exceptions, will suggest such an intention.

I.E. Associates v Safeco Title Insurance Co., 39 Cal.3d 281 (1985); California Association of Health Facilities v Dept of Health Services, 16 Cal.4th 284 (1997), followed

Rotolo v San Jose Sports & Entertainment LLC, 151 Cal.App.4th 307 (2007), distinguished.

Breaux v Gino’s, Inc., 153 Cal.App.3d 379 (1984), doubted.

2.  At common law, a business entity’s duty of reasonable care to its business patrons does not include an obligation to acquire an make available an AED for use in a medical emergency.  When the precautionary medical safety measures that a plaintiff argues a business ought to have provided are costly or burdensome (and not minimal), the business is not required to provide them unless there was a heightened or high degree of foreseeability of the medical danger in issue.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666; Delgado v Trax Bar & Grill, 36 Cal.4th 224 (2005); Castaneda v Olsher, 41 Cal.4th 1205 (2007), approved*.

Per Werdegar J –

3.  Target’s common law duty of care to patrons does not include an obligation to acquire and make available and AED for use in a medical emergency.  Relevant to this conclusion was that it was no more likely the deceased would suffer a cardiac arrest in the store than in any other place, and that the connection between her death and the defendant’s failure to provide an AED was uncertain.  In addition, the defendant was not morally blameworthy, and the practical and insurance consequences of imposing a duty were problematic.

Rowland v Christian, 69 Cal.2d 108 (1968), applied.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666, doubted.


The Court’s judgment is available here.
* This is consistent with more general common law principles: see Stephen Tuck, ‘To the Rescue: Liability in Negligence for Third Party Criminal Acts in the United States and Australia’, 23 Ind. Int’l & Comp. L. Rev 183 at 195-199 (2013)

Lambden v Doyle (1914) H&FLR 2014-54

Sergeant Lambden v Ray Doyle (1914) H&FLR 2014-54

Seymour Police Court (Australia)

3 August 1914

Coram: Unidentified Magistrate

Appearing for the Plaintiff: Inspector Corkill (Police Prosecutor)
Appearing for the Defendant: Mr Minogue (instructors not identified).

Catchwords: Australia – football – assault between players – charges withdrawn – costs

Facts:  On 18 July 1914 the defendant (Doyle) was playing football for Seymour against Avenel.  He was playing in a ‘rather aggressive’ manner that day.  During the first half he was pushed backwards by an Avenel player (Robert Fontana).  He was caught by another Avenel player (Albert Robinson).  Doyle turned around and struck Robinson on the side of the face.  Sergeant Lambden was present and the game and took it upon himself charge the defendant with unlawful assault.

Counsel for the defendant noted that Doyle did not have a criminal record, that the incident occurred in the heat of the moment and the assault was trivial.  With the prosecution’s agreement it was submitted that it would be appropriate for the charge to be withdrawn, subject to the defendant agreeing to pay court costs.

Held: That the charge could be withdrawn with costs fixed at 27 shillings (in today’s value, approximately A$145.00 / US$127.00).  The Court considered however that there was sufficient evidence to convict the defendant of unlawful assault.  It was stressed that players must keep their temper while on the field and that any further such cases would be dealt with severely.


Unsurprisingly, no written judgment is available.  This report has been prepared based on the account in the Seymour Express of 7 August 1914, reprinted in the Seymour Telegraph of 1 October 1914 at p.12.


Poignantly, this case unfolded at the very earliest stages of the First World War.  Mr Fontana appears to have put his athletic skills to use and served in I Anzac Cyclist Battalion.  He was killed in action in France on 1 September 1918.  Ray Doyle served in the 4th Light Horse Regiment, served in Europe and was discharged in 1919.

I have not been able to trace Robinson, Lambden, Corkill or Minogue with confidence.

Whigham v Jackson Dawson Communic’ns (2014) H&FLR 2014-53

Stephen Whigham v Jackson Dawson Communications and The Hartford (2014) H&FLR 2014-53

Supreme Court of South Carolina

27 August 2014

Coram: Toal CJ, Hearn, Kittredge and Pleicones JJ, and Moore AJ

Appearing for the Plaintiff: Douglas A Churdar (of Churdar Law Firm)
Appearing for the Defendants: Benjamin M Renfrow and Wesley J Shull (of Willson Jones Carter & Baxley PA).

Catchwords: South Carolina – workers compensation – team building event – kickball – injury – compensability

Facts: The plaintiff was employed by the defendant (Jackson Dawson Communications) as Director of Creative Solutions.  The employer attached value to holding team building events and the plaintiff proposed holding a company kickball game.  The company endorsed the proposal and instructed him to proceed with it, including spending a certain amount of the company’s funds.  During the kickball game which ultimately took place, the plaintiff jumped and landed awkwardly, suffering a severe break of his right leg.

Section 42-1-160(A) of the South Carolina Code provides that for an injury to be compensable, it must arise “out of and in the course of employment”.

The plaintiff lodged a claim for workers compensation which was rejected by a single member of the Workers’ Compensation Commission and by the full Commission on the grounds that the injury had not arisen out of or in the course of employment.  The plaintiff’s appeal to the Court of Appeals was dismissed: Whigham v Jackson Dawson Communications, (S.C. Ct. App., Pieper, Konduros and Geathers JJ, 11 April 2012, unreported).  The plaintiff appealed to the South Carolina Supreme Court.

Held: per Toal CJ, Hearn J and Moore AJ, allowing the appeal, that –

1. In assessing whether a work injury is compensable, the Workers’ Compensation Act is liberally construed towards providing coverage.  Any reasonable doubt in the Act’s interpretation should be construed in favour of coverage*.

Shealy v Aiken County, 341 SC 448, 535 SE.2d 438 (2000), approved.

2. An injury arises out of employment where a rational mind would identify a causal relationship between the injury and the conditions under which the work was performed.

Crisp v SouthCo Inc, 401 SC 627, 738 SE.2d 835 (2013), approved.

3. To assess whether a recreational or social activity fell within the course of employment, the court considers whether it falls within the following factors –

(a) It occurred on the employers premises during a lunch or recreational period as a regular incident of employment.
(b) The employer made the activity part of the employee’s services or otherwise expressly or impliedly required participation.
(c) The employer derived a substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale.

Leopard v Blackman-Uhler, 318 SC 369, 458 SE.2d 41 (1995), followed.

4. In this case, the plaintiff was impliedly required to attend the game which he had organised and it became part of his services.  As such it arose out of the course of employment.

Per Kittredge and Pleicones JJ (dissenting), that there was insufficient evidence to warrant overturning the decisions of the courts below.


The Court’s judgment is available here.


* This may be seen as a norm of compensation statutes: cf Hegedis v Carlton & United Breweries (2000) 4 VR 296 at ¶32.