Posted on by Stephen Tuck

State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

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(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

Posted on by Stephen Tuck

Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

Tanya Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

California Court of Appeal (Second Appellate District)

21 October 2014

Coram: Mosk PJ, Kriegler and Goodman JJ

Appearing for the Plaintiff: Marilyn H. Nelson and Abram Charles Zukor (of Zukor & Nelson)
Appearing for the Defendant: Anthony J Ellrod and Ladell Hulet Muhlestein (of Manning & Kass, Ellrod, Ramirez, Trester)

Catchwords: California – negligence – kickboxing – assumption of risk – waiver – instructor – inherent risk

Facts: The plaintiff attended a kickboxing class at the defendant’s premises taught by instructor Hakeem Alexander.  Before the class the plaintiff signed an assumption of risk agreement and waiver of liability for injury. While assisting the plaintiff to perform properly a roundhouse kick, Alexander grabbed her right ankle between the ankle and knee and instructed her to ‘rotate’ without providing further direction.  She rotated her left knee, suffering a significant knee injury.

The plaintiff sought compensation for personal injury caused by negligence and gross negligence.  The trial court granted the defendant’s application for summary judgment based on the waiver signed by the plaintiff: Honeycutt v Meridian Sports Club LLC (Los Angeles County Superior Court, Cotton J, 7 January 2014, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1.  Primary assumption of risk arises when a defendant owes no duty to protect a plaintiff from a particular harm. It precludes liability for injuries arising from risks inherent in a sport.

Avila v Citrus Community College District (2006) 38 Cal.4th 148, followed.

2.  Coaches and instructors have a duty not to increase the risks inherent in sports participation, and breach their duty of care to a student or athlete if they intentionally injure the athlete or engage in conduct that is ‘reckless’ (that is, wholly outside the range of the ordinary activity involved in teaching or coaching the sport.

Kahn v East Side Union High School District (2003) 31 Cal.4th 990, followed.

3.  Injuries to shoulders, hands and knees are inherent risks in a vigourous physical activity like kickboxing.  In this case the plaintiff’s injury was squarely within the doctrine of primary assumption of risk.  The coaches actions did not increase the inherent risks.

4.  Gross negligence (which if found would avoid the waiver) is a “want of even scant care” or “an extreme departure from the ordinary standard of conduct”. That another instructor would have acted differently is not evidence of cross negligence

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.
Decker v City of Imperial Beach (1989) 209 Cal.App.3d 349, considered.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

State v Corrigan (1998) H&FLR 2014-63

State v Marlene Corrigan (1998) H&FLR 2014-63

Contra Costa County Superior Court (California)

27 February 1998

Coram: Arnason J.

Appearing for the Prosecution: Brian Haynes (1) (of Contra Costa District Attorney’s Office)
Appearing for the Defendant: Laurie Saunders and Michael Cardoza (of Cardoza Law Offices)

Catchwords: California – child abuse – obesity – heart failure – bed sores – sentence.

Facts: The defendant was the mother of Christina Corrigan, who died of congestive heart failure in November 1996 aged 13 years.  At the time of her death, the deceased weighed 680 pounds (309 kilograms) (2).  The evidence indicated that she was suffering from bedsores, that excrement was lodged in the folds of her skin, and that she had spent her final months immobile on a dirty sheet in front of a television in the family home.  She had not attended school since Grade 6.   She had been seen by medical practitioners 90 times up to age 9 (at which time she weighed 237 pounds / 108 kilograms) but had received little or no medical care since that time.

The defendant was charged with felony child abuse.  She contended that she had been overwhelmed with personal responsibilities and posited that the deceased may have suffered from Prader-Willi Syndrome.  She denied being aware of her daughter’s bedsores.

Held: Convicting the defendant of misdemeanour child abuse, that –

1.  Conviction of a misdemeanour rather than a felony was appropriate because it was her passive rather than active misconduct that contributed to the deceased’s congestive heart failure (3).

2.  The maximum penalty for this offence was six months imprisonment; the court however imposed a sentence of 240 hours community service, three years probation (to include counselling and being barred from working in child care) and a $100.00 fine.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Philadelphia Inquirer of 10 January 1998, the Los Angeles Times of 2 March 1998 and the San Francisco Chronicle of 28 February 1998.

Note

This case suggests that a person’s duty to take active steps to prevent a family member coming to harm (4) will take priority over the absence of a general duty to rescue a person intent on injuring themselves (5)

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(1) Since appointed to the Contra Costa County Superior Court.

(2) The weight may be considered significant: a weight of this magnitude, even in an adult, is noted to pose very considerable problems for both mobility and medical care: Dr Edward Thompson, ‘Supersize Me’, Pulse, 22 November 2013.  Medical care is likely to require long-term hospitalization and may cause irreparable injury: Dr Karen Hitchcock, ‘Fat City’, 87 The Monthly __ (2013).  An indication of the potential for significant discomfort associated with pronounced skin folds is offered by the post “Day in the Life: Shower, Chafing, & Jock Itch” on the blog Living ~400lbs … and believe me I am still alive.

(3) Cf R v Stone and Dobinson [1977] 2 All ER 341 (Eng. Ct. of App.), in which the defendants were convicted of manslaughter for failing to take adequate steps to prevent a mentally unbalanced relation who lived with them from starving and mistreating herself to death.

(4) R v Russell [1933] VLR 59 at 67-68 (per Cussen ACJ) and semble 76-77 (per Mann J); but see 83 (McArthur J, dissenting) (Sup. Ct. of Vic.)

(5) Stuart v Kirkland-Veenstra (2009) 254 ALR 432 at 457 (per Gummow, Hayne and Heydon JJ) and semble 463 (per Crennan and Kiefel JJ) (High Ct. of Aust.)

Posted on by Stephen Tuck

Police v Unidentified Driver (2014) H&FLR 2014-62

Police v Unidentified Driver (2014) H&FLR 2014-62

Wonthaggi Magistrates Court (Victoria)

c. 26 November 2014

Coram: Magistrate Raleigh

Appearing for the Prosecution: Leading Senior Constable Kimberly Stewart (instructed by Victoria Police)
Appearing for the Defendant: Ruby Oldham (of Oakleys McKenzie-McHarg)

Catchwords: Victoria – traffic offences – stop sign – school crossing – children – recklessly endangering life – sentence

Facts: The defendant drove dangerously on two occasions.  On 11 November 2013, while on her way to take her children to school, she ‘ran’ a stop sign.  She then sped through a school crossing at 60 km/h.  After dropping off her children, she ‘smoked’ her tyres while performing a U-turn, and then sped through the school crossing again.  Subsequently, on 8 March 2014, she was seen travelling between 60-70km/h in a 60 km/h zone.  She stopped at an intersection and again ‘smoked’ the tyres when accelerating away.

These incidents breached a community corrections order which had previously been imposed for another matter.  She was charged with a number of offences including reckless conduct endangering life (Crimes Act 1958 (Vic), §22).

Held: The Court noted that the defendant’s actions had the potential to kill her own children as well as those of others.  His Honour oberserved that the children may be safer without their mother and that her previous court appearance had not affected her behaviour.  He noted there was evdience she was continuing to use marijuana.

The defendant was sentenced to three months imprisonment, suspended for 12 months.  Her drivers licence was cancelled for 12 months and fined her $500.00.

Judgment

No written judgment is available.  The report prepared based on the account in the South Gippsland Sentinel-Times, 2 December 2014, p.25.

Note

The case is reported here because of its potential relevance to dangerous driving in the vicinity of athletic events.

Posted on by Stephen Tuck

R v Unidentified Sports Coach (2014) H&FLR 2014-61

The Queen v Unidentified Sports Coach (2014) H&FLR 2014-61

Albury District Court (New South Wales)

2 December 2014

Coram: Judge Whitford

Appearing for the Appellant: Christine Mendes (instructors not identified)
Appearing for the Respondent: Andrew Hanshaw (instructed by NSW Director of Public Prosecutions)

Catchwords: New South Wales – sports coach – indecent assault on a girl under 16 years – grooming – appeal – sentence

Facts:  The defendant was a 25 year old sporting coach from a small community in the Riverina.  In 2013 he committed a number of offences in relation to a 14 year old girl.  It appears the victim was known to him in their community but not part of the sports team he coached.  Over a period of some months he sent her a number of sexually explicit text messages and suggested both sexual activity and developing a relationship.  On two occasions he touched her in a sexual manner.  He was charged with indecent assault on a girl under 16 years (Crimes Act 1900, §61L), and with grooming (Crimes Act 1900, §66EB).

The NSW Local Court (Magistrate Greenwood) noted the impact of the offences on the victim, including her loss of reputation and feeling judged and blamed.  A pre-sentence report indicated that the offender had little insight or remorse into his offending.  He was sentenced at first instance to 20 months imprisonment, to serve a minimum of 15 months:  R v Unidentified Sports Coach (2014), Border Mail, 15 July 2014, p.__.  The defendant appealed against the severity of the sentence.

Held: allowing the appeal, that the defendant had extensive support from his family and community.  A variation of the penalty was considered to have the potential to continue the defendants efforts at rehabilitation.  The sentences imposed by Magistrate Greenwood were converted to suspended sentences.

Judgment

No written judgment is available.  The report prepared based on the account in the Border Mail (Albury Wodonga), 3 December 2014, p.3.