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Read v Keyfauver (2013) H&FLR 2015-15

Ross Read v Brittini Alexa Keyfauver (2013) H&FLR 2015-15

Arizona Court of Appeals

27 August 2013

Coram: Norris PJ, Gemmill and Brown JJ

Appearing for the Plaintiff: Mr Thomas Richardson and Ms Raechel Barrios (of Friedl Richardson) and Mr David Abney (of Knapp & Roberts)
Appearing for the Defendant: Messrs Joel DeCiancio and Christopher Robbins (of DeCiancio Robbins) and Ms Diane Lucas and Mr Michael Ferraro (of Diane M Lucas PC)

Catchwords: Arizona – police officer – rescue – negligence – firemans rule

Facts: The plaintiff was a police officer.  While issuing a ticket to a motorist on Interstate Highway 17, he saw a vehicle driven by the defendant go out of control and roll, coming to rest on its roof.  The plaintiff ran to the vehicle and saw the defendant scratching at the window.  The plaintiff instructed her to cover her face, after which he kicked the window in, placed his foot on the door frame, extracted the defendant and placed her on the ground.  He administered first aid until paramedics arrived.  While extracting the defendant the plaintiff suffered a significant left knee injury.

The plaintiff sued the defendant on the basis that her negligent driving had led to his injury.  The defendant sought to have the claim dismissed based on the “fireman’s rule”, whereby injured emergency services workers cannot sue a person whose negligence has created the situation to which the worker was responding and suffered injury (1).  The trial court agreed and dismissed the claim: Read v Keyfauver (Maricopa Co. Super. Ct., Miles J., date unknown, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that

1. In general, an injured rescuer is entitled to claim damages from the person whose negligence created the need for rescue.  As a matter of legal policy, injury to a rescuer is taken to be a foreseeable consequence of the original negligence. (2)

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006), approved.

2. An exception to the rule, however, is that a rescuer cannot recover damages if they are performing their duties as a professional emergency services worker.  This includes firefighters and police officers.  Ultimately this rule is justified as a matter of public policy. (3)

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006); White v State, 220 Ariz. 42, 202 P.3d 507 (Ariz. Ct App., 2008); and Grable v Varela, 115 Ariz. 222, 564 P.2d 911 (Ariz. Ct App., 1977) approved.

3. The fireman’s rule does not apply to off-duty emergency services workers who voluntarily respond to an emergency.  The key to this exception is whether the worker is on the scene as a result of their on-duty obligations.  Because the plaintiff was on already on the scene as a result of his professional duties, he was covered by the fireman’s rule and unable to sue.

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006)

Judgment

The Court’s judgment is available here.

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

(1) The leading case on the point is Krauth v Geller, 157 A.2d 129 (N.J. 1960).
(2) Accord Videan v British Transport Commission [1963] 2 QB 650 (Eng. Ct App.) and Horsley v MacLaren [1972] SCR 441 (Can.)
(3) The rule does not have uniform jurisprudential support.  See Club Italia (Geelong) Inc v Ritchie, 3 VR 447 (Vic., 2001).

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In re death of Peoples (2010) H&FLR 2015-14

Inquest into the death of Scott David Peoples (2010) H&FLR 2015-14

Coroners’ Court of Victoria

11 October 2010

Coram: Coroner Bryant

Counsel assisting the Coroner: Mr John Goetz
Appearing for the family of the deceased: Mesdames Jane Dixon SC and Esther James (instructed by Riordan Legal).
Appearing for the Blay family*: Mr Barrett (Instructed by Barretts Lawyers)
Appearing for VicRoads: Mr Trevor Wraight (instructed by DLA Phillips Fox)
Appearing for the Chief Commissioner of Police: Ms Julia Greenham (instructed by the Victorian Government Solicitor’s Office)
Appearing for the Cycling Victoria: Mr K. Mueller.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – fitness to drive – duty to report

Facts**: The deceased was a 20 year old cyclist.  At the time of his death he was on the verge of cycling professionally.  While on a training ride on the Maroondah Highway near Merton he was struck from behind by a Nissan patrol driven by a Mr Kenneth Blay.  Mr Peoples died as a result of his injuries.

At the point of collision the road was paved, with a two metre paved shoulder.  The road runs straight and slightly uphill.  Mr Blay stated that he did not see the deceased prior to the collision and was only made aware of the collision by the noise of impact.  He subsequently pleaded guilty to a charge of careless driving: Police v Blay (Mansfield Magistrates court, 1 August 2007, unreported).

Blay’s speed at the time of the collision was estimated at 73 kph (45 mph).  Police considered that he would have had 500-600 metres of unimpeded vision.  The collision was considered to have occurred on the paved shoulder of the road.  Blay had a significant left-side blind spot as a result of a stroke.  In 2004 he had also been involved in a collision with a cyclist on the same road.

Held: 1. The Court strongly recommended mandatory reporting by doctors to licensing authorities of patients considered unfit to drive on medical grounds.  It was not sufficient merely to recommend the patient not drive.

2. Cyclists and motorists share an obligation to use the roads in a safe manner.  However, the particular vulnerability of cyclists imposes an obligation on motorists to drive in a manner that does not put cyclists’ lives at risk

Judgment

The Court’s judgment is available here.

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

* Blay had died by the time of the inquest.
** In assessing the facts, note that the Coroner was scathingly critical of the police investigation.

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Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Dennis Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Superior Court of New Jersey (Appellate Division)

19 July 2013

Coram: Reisner, Yannotti and Harris JJ.

Appearing for the Plaintiff: Herbert Korn, Robert Westreich and William Reutelhuber (of Herbert M Korn PC)
Appearing for the Defendant: Robert Kelly, Christen Moffa, Jason Schmitz and Christine Delany (of Littleton Joyce Ughetta Park & Kelly)

Catchwords: New Jersey – personal injury – product liability – failure to warn – defective product – misuse

Facts: The plaintiff was a recreational rider of snowmobiles.  On 5 February 2005 he was at he home of a friend in upstate New York and borrowed a snowmobile (manufactured by the defendant) belonging to that friend.  He noticed that it was running erratically and concluded that it had a fouled sparkplug.  In an attempt to clear the sparkplug the plaintiff and another man lifted the rear of the snowmobile by a handle attached to the back of the machine while a third man revved the engine (“the process”).  During this process the snowmobile’s track broke and flew backwards, severely injuring the plaintiff’s leg.  The leg was ultimately amputated.

At trial there was considerable lay evidence that the process was commonly used among snowmobilers in order to clear sparkplugs.  However, the machine’s owner’s manual contained warnings against standing behind the snowmobile or lifting its rear while the engine was running. It was not known whether the manual had been available to the plaintiff (let alone read by him) on the day of the accident.  New Jersey’s Product Liability Act provides that a manufacturer –

… shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably … safe for its intended purpose because it … failed to contain adequate warnings or instructions (1)

The plaintiff brought proceedings against the defendant in the Superior Court of New Jersey on the basis that the snowmobile had a design defect and that the defendant had provided an inadequate warning against lifting the machine while it was running.  A jury upheld the claim based on failure to warn and damages of approximately $2,500,000.00 were awarded: Mohr v Yamaha Motor Co Ltd (2011), Daily Record, 14 April 2011.  The defendant appealed.

Held: Dismissing the appeal, that –

1. In proving that a product was dangerous and required a warning, a plaintiff is required to address the issue of product misuse, either by showing that there was no misuse or that the misuse that occurred would have been foreseeable to a reasonably prudent manufacturer.

Johansen v Makita USA Inc, 128 NJ 86, 607 A.2d 637 (1992); Cepeda v Cumberland Engineering Co, 76 NJ 152, 386 A.2d 816 (1978); Jurado v Western Gear Works, 131 NJ 375, 619 A.2d 1312 (1993); and Ridenour v Bat Em Out, 309 NJ Super 634 (App. Div. 1998), followed.

2. It was effectively conceded that the plaintiff had misused the snowmobile but that the misuse was foreseeable.  Accordingly the real issue for the jury was whether it was sufficient for the manufacturer to place a warning about the relevant risk of injury only in the owner’s manual, or whether a waning should have been affixed to the snowmobile itself.  On the evidence it was amply open to the jury to find that the defendant had provided an inadequate warning.

3. Obiter, A user’s modification of a product will not relieve a manufacturer of liability for a defective product if the defect remains a contributing proximate cause of the accident or the modification was foreseeable.

Soler v Castmaster, 98 NJ 137, 484 A.2d 1225 (1984) and Butler v PPG Industries Inc, 201 NJ Super 558, 493 A.2d 619 (App. Div. 1985), approved.

Judgment

The Court’s judgment is available here.

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

(1) N.J.S.A., 2A:58C-2(b).

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Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

James Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

United States District Court (Northern Dist. of Alabama)

23 May 2013

Coram: Acker J.

Appearing for the Plaintiffs: Steven Nichols and Shay Samples (both of Hare Wynn, Newell & Newton)
Appearing for the Defendant: Hobart Arnold and James Porter (both of Porter, Porter and Hassinger), Jeffrey Malsch and Anthony Pisciotti (both of Pisciotti, Malsch & Buckley) and David Welborn.

Catchwords: Alabama – tort – firearms – personal injury – product liability – merchantability

Facts: The plaintiff (James Avery) was the owner of a Cobra Model C32 derringer handgun (made by the defendant), which he had been given in around 2004.  He was experienced in using and handling firearms and routinely carried the gun in anticipation of using it for self defence.  In order to be able to use it for this purpose without delay, he customarily carried it without engaging the safety catches.

On 10 February 2010 the plaintiff was carrying the gun in his hands along with a number of other items including soft drink bottles.  As he attempted to throw the empty bottles in a rubbish bin, he dropped the gun, which discharged and shot him in the abdomen.

The plaintiff brought proceedings against the defendant, seeking damages for (as relevant here) breach of an implied warranty of merchantability.  The defendant sought summary dismissal of the claim.

Held: Denying the defendant’s application, that –

1. A claim based on breach of an implied warranty of merchantability can be brought to seek compensation for injury caused by an unreasonable dangerous product.  It is not dependent on (in particular) also having a connected claim under the Alabama Extended Manufacturer’s Liability Doctrine.

Spain v Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala. 2003), followed.

2. In order to claim for breach of an implied warranty a plaintiff must show that there was such a warranty, that it was breached, and that the breach proximately caused harm.

Storey v Day Heating and Air Conditioning Co., 319 So.2d 279 (Ala. Civ. App. 1975) and Barrington Corp. v Patrick Lumbar Co. Inc., 447 So.2d 785 (Ala. Civ. App. 1984), followed.

2(a). Alabama Code §7-2-314(1) implies a warranty of merchantability of goods into a contract for their sale if the vendor is a merchant with respect to goods of that sort.  A manufacturer can be considered to be such a merchant, despite not having a direct contractual relationship with an injured person, if that person was injured and it was reasonable to expect that they would use the goods in question (1).

Bishop v Sales, 336 So.2d 1340 (Ala. 1976), followed
Ex Parte General Motors Corp., 769 So.2d 903 (Ala. 1999), distinguished.

2(b). Alabama Code §7-2-314 lists a number of conditions for goods to be considered merchantable, including that the goods are fit for the ordinary purposes for which goods of that type are used.  It is a jury question whether (a) self-defence is an ordinary use of a derringer-type handgun, and (b) whether it would therefore be normal to carry it with the safety features unused, such that (c) for the gun to be merchantable it should not fire when dropped with the safety off.

2(c). It is a question for a jury whether any particular event is a proximate cause of a plaintiff’s injury.

Judgment

The Court’s judgment is available here.

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

(1) This type of relationship seems indistinguishable from the test for manufacturer’s liability established in the classic case of Donoghue v Stevenson [1932] A.C. 562 (U.K. 1932)

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French Republic v A Firefighter (2014) H&FLR 2015-11

French Republic v A Firefighter (2014) H&FLR 2015-11

Amiens Criminal Court

11 December 2014

Coram: Not identified.

Appearing for the Prosecution: Not identified.
Appearing for the Defendant: Not identified.

Catchwords: France – criminal law – emergency services – road accident – manslaughter – emergency

Facts: The accused was a firefighter with 33 years experience and, in particular, 10 years experience driving under emergency conditions.  On 6 October 2011 at around 10:00pm he was driving a tanker in a built-up area to the scene of a gas leak.  It was agreed that the driver had been complying with all applicable safety regulations when he passed through a red light with flashing lights and sirens activated.  Despite this, the truck collided with a scooter which entered the intersection pursuant to a green light.  The scooter driver was killed in the collision.  The driver was charged with “homicide involontaire” (≈ manslaughter).

The accused’s evidence was that he had slowed the truck, that he had not needed to speed as he had not yet been given the precise address of the gas leak, and that the scooter had entered the intersection at high speed.

Held: Convicting the driver, that the Court was not convinced that the gas leak was so urgent as to require driving under emergency conditions and disregarding the red light.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the newspapers Le Figaro of 22 December 2014, Courrier Picard of 6 November 2014 and 21 December 2014, Libération of 22 December 2014, an undated report in Pompier Magazine, and the account of television channel France3 of 22 December 2014.

Note: the accused has announced his intention to appeal.

Comment: This case has obvious relevance from a fitness perspective, noting that the scooter driver could equally have been a runner, cyclist or equestrian.  It should be noted that the court’s rationale – that it was able to second-guess the driver’s assessment of the situation, that it had done so and found it wanting – has been deduced second-hand from a comment made on the case by the union representing firefighters.  That said, it is the only variable which would explain the driver’s conviction in light of the other evidence.

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Eriksson v Nunnink (2015) H&FLR 2015-10

Karan Eriksson and Stan Eriksson v Kristi Nunnink (2015) H&FLR 2015-10

California Court of Appeal (Fourth Appellate District)

27 January 2015

Coram: Richli AP; King and Miller JJ

Appearing for the Plaintiffs: Terrence L Butler (of Butler & Dodge)
Appearing for the Defendant: Garth M Drozin (of Soltman, Levitt, Flaherty & Wattles)

Catchwords: California – horse – release – waiver – wrongful death – parental consent – coach.

Facts: The plaintiffs were the parents of Mia Eriksson, a 17-year-old equestrienne who aspired to compete in eventing at an Olympic level.  In 2001 the plaintiffs retained the defendant as Mia’s coach.  In May 2006 Mia signed (and Karan Eriksson countersigned as her parent) an agreement releasing Nunnink from liability for damages aside from those caused by her “direct, willful and wanton negligence”.

On 20-22 October 2006 Mia competed in an eventing competition at Ram Tap. During the event her horse fell, suffering swelling on his chest and a concussion.  It was subsequently agreed that Mia and the same horse would compete in a competition at Galway Downs on 3-5 November 2006 (there was dispute as to precisely what events it was agreed she would compete in). Prior to competing at Galway Downs the horse was inspected by two event judges and a veterinarian and considered fit to compete.  On the second day of the competition (a cross country event) Mia’s horse refused to jump fences four times and she was disqualified.  However, she continued with the event and attempted to jump a further fence.  The horse struck the fence, causing a rotational fall in which the horse landed on its back (and on top of its rider). Mia suffered fatal injuries in the accident.

The plaintiffs sued the defendant in Riverside County Superior Court for wrongful death and negligent infliction of emotional distress.  The defendant sought and was granted summary dismissal of the plaintiffs’ claim (1).  This dismissal was reversed on appeal and the matter remitted for trial (2). At trial, the proceeding was dismissed after presentation of the plaintiff’s case and without hearing from the defendant (3).  The plaintiffs appealed.

Held: Dismissing the appeal, that –

1. Because Karan had signed the release as Mia’s parent, it became final and binding and could not be disaffirmed.  Karan did not, however, thereby become a party to the release or bound by the promises made by Mia in it.

Hohe v San Diego Unified School District (1990) 224 Cal.App.3d 1559; Aaris v Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, followed.
Daniels v Sunrise Senior Living Inc (2013) 212 Cal.App.4th 674, considered.

2. The release did, however, curtail the plaintiffs’ rights.  Although wrongful death claims do not derive from the deceased’s putatively-infringed rights and are an independent cause of action, the plaintiff in such a case is bound by the deceased’s agreement to waive the defendant’s negligence and assume the risk.  The relevant duty of care in such a case is that owed by the defendant to the deceased; this duty can be limited or eliminated by the deceased’s signing a release.  A defendant cannot owe a greater duty to a person bringing a wrongful death claim than was owed to the deceased.

Ruiz v Podolsky (2010) 50 Cal.4th 838; Horwich v Superior Court (1999) 21 Cal.4th 272, followed.
Coates v Newhall Land & Farming Inc (1987) 191 Cal.App.3d 1, considered

3. The claim for negligent infliction of emotional distress failed on a similar basis to the claim for wrongful death: the release removed the defendant’s duty of ordinary care toward the deceased and as a corollary also removed the defendant’s duty to protect her parents from the risk of the emotional distress.  A defendant is able to assert the same defences against claims by bystanders (the position of the plaintiffs) as the defendant could assert against the direct victim, including signing of a release.

Dillon v Legg (1968) 68 Cal.2d 728

4. Once the defendant had shown that the release was applicable, the burden was on the plaintiffs to show that the defendant had been grossly negligent.  The plaintiffs’ own evidence did not establish that the defendant had acted with either gross negligence or willful and wanton negligence.

Judgment

The court’s judgment is available here.

Note: The plaintiffs’ determination to pursue this matter more understandable when one notes that they had previously sued unsuccessfully for the death of another daughter in a separate riding accident (4). It is difficult to imagine a worse set of tragedies for a parent.
======================
(1) Eriksson v Nunnink [2011] Metropolitan News-Enterprise, 11 January 2011, at 1.
(2) Eriksson v Nunnink (2011) 191 Cal.App.4th 826
(3) Eriksson v Del Mar Eventing Inc (2012) Chronicle of the Horse, 1 February 2012.
(4) Eriksson v California State University Fresno (5th Dist. Ct App. Calif., Wiseman APJ, Levy and Gomes JJ, 25 September 2007, unreported)

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Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Turin Magistrates Court (Fifth Criminal Division)

26 January 2015

Coram: Minucci J.

Appearing for the Prosecution: Barbara Badellino (of the Italian Ministry of Justice)
Appearing for the Defendant: Not identified

Catchwords: Italy – criminal law – parent – psychological abuse – “tough love” – sport – competition – skiing – dieting

Facts: The accused was the father of two daughters and separated from their mother.  Between 2008 (at which time they were aged roughly 11 and 14 years) the girls saw him at weekends.  As they entered adolescence they gained a certain amount of weight and lost interest in skiing.  The accused compelled his daughters to follow a restricted and macrobiotic diet and forced them to train for and take part in competitive skiing.  In 2011 the accused’s daughters complained to their mother of ill-treatment by their father and the matter was referred to the Turin prosecutor’s office.  The accused was charged with mistreatment of his daughters.

The evidence (including statements from the girls’ school principal and skiing trainer) indicated that they were subjected to significant psychological pressure and repeatedly told that they were fat and had to do more sport.  It appears that identifiable psychological harm had been caused to the girls.  There was no evidence of physical abuse.

The accused’s position was that he was acting only as a concerned father, and that any verbal abuse was only to encourage them.

Held: Convicting the accused of mistreating his daughters, that a sentence of nine months imprisonment was appropriate.

Judgment

No written judgment is available.  This report has been prepared based on accounts prepared by duerighe.com, Il Secolo XIX, RAI News, La Voce and La Repubblica, all of 26 January 2015, with the aid of Google Translate

Note: the accused has announced his intention to appeal.

Comment: This case forms an interesting companion to State v Corrigan (1998) H&FLR 2014-63, in which the defendant was convicted of felony child abuse as a result of not addressing health issues caused by her daughter’s significant obesity.  Viewed as part of a bigger jurisprudential picture, it suggests that notwithstanding the serious health and economic effects of obesity (1), the ‘fat shaming’ identified by some bloggers will at some point stray from being socially inappropriate to being a legal wrong.

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

(1) Jim Landers, ‘Cost of Care: The U.S. health care system is bleeding green’, Dallas Morning News, 1 February 2015.

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Le Moullac v Daylight Foods Inc (2014) H&FLR 2015-8

Denis Le Moullac and Jessie Jewitt v Daylight Foods Inc and Gilberto Alcantar (2014) H&FLR 2015-8

San Francisco Superior Court

15 January 2015

Coram: Lam J.

Appearing for the Plaintiff: William Veen and Anthony Label (of The Veen Firm) and Micha Star Liberty  (of Liberty Law)
Appearing for the Defendant: Brent Anderson, Ronald Lenert and Kevin Taylor (of Taylor Anderson); Keith Bremer and Tyler Offenhauser (of Bremer Whyte Brown & O’Meara)

Catchwords: California – road accident – cyclist – wrongful death – damages.

Facts: At around 7am on 24 August 2013 24-year-old Amelie Le Moullac (“the deceased”) was cycling to work in a bicycle lane on Folsom Street in the South-of-Market district of San Francisco. As she approached the intersection of Folsom Street and Sixth Street she was struck and killed by a right-turning* semi-trailer belonging to Daylight Foods and driven by its employee Gilberto Alcantar. The evidence indicated that the bike lane was ‘dashed’ at the relevant point, so that the truck could cross it to enter Sixth Street, but that Alcantar failed to give way to the deceased.

The deceased was wearing a helmet. The evidence was unclear as to whether she was wearing earbuds while riding. It appears Alcantar gave a history of seeing the deceased, passing her, and then losing sight of her shortly before turning. It was unclear what speed either party was travelling.

The San Francisco District Attorney’s office elected not to charge the driver with vehicular manslaughter and the police elected not to issue a traffic infringement to the driver**. The deceased’s parents sought compensation for wrongful death from the driver and his employer.

Held: A jury of the San Francisco Superior Court found that Alcantar had driven negligently and that his employer was vicariously liable for his actions. It found no negligence on the part of the deceased. Damages of $4,000,000.00 were awarded.

Judgment

The matter was finalised by a jury verdict and no written reasons were issued.  The report is prepared based on the Court’s case record, on reports KQED News on 15 January 2015, 18 December 2014, 13 May 2014 and 27 August 2013, and on a memorial website prepared by the deceased’s co-workers.

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

* British and Australian readers should remember that American drivers use the right-hand side of the road, and so Mr Alcantar was turning towards the side of the intersection closest to his truck.

** The decision not to prosecute for vehicular manslaughter is perhaps understandable, if conservative: the California Penal Code §192(c) requires at least negligence on the part of a driver; however, the various gradations of negligence in law are tending to become conceptually blurry and there may have been genuine doubt as to how a criminal jury would assess the driver’s conduct: see Stephen Tuck, ‘A recent decision of the Fourth Florida District Court of Appeal’ [Winter 2014] Comm’l Transp. Litig. Cmte Newsl. 10.  The decision not to issue an infringement notice is less explicable. While the California Vehicle Code §21717 required Mr Alcantar to enter the deceased’s lane, safe driving required him to give way to any vehicle already in the lane. An almost identical Victorian case involving a collision between a truck and a pedestrian resulted in a plea of guilty for failing to give way while turning under the predecessor section to Road Safety Road Rules 2009 §72(5)(c): Police v Biagio Favala (Melbourne Magistrates Court, unknown magistrate, 23 September 2008, unreported)

Note: Grateful thanks to Lenore Shefman of Shefman Law Group (Cyclistlaw), Austin, Texas, for alerting me to this case.

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Ind. School Dist. No. I-89, Okla. Co v Okla. Sec. School Activities Ass’n (2014) H&FLR 2015-7

Independent School District No. I-89 of Oklahoma County, Oklahoma v Oklahoma Secondary School Activities Association (2014) H&FLR 2015-7

District Court of Oklahoma County (Oklahoma)

11 December 2014

Coram: Jones J

Appearing for the Plaintiff: F. Andrew Fugitt and Anthony T. Childers
Appearing for the Defendant: Mark S. Grossman, Andre B. Caldwell and Meredith W. Wolfe (of Crowe & Dunlevy)

Catchwords: Oklahoma – high school – American football – umpiring – review of decisions – sporting associations – injunction.

Facts: A high school football team operated by the plaintiff took part in a playoff game overseen by the defendant on 28 November 2014. The plaintiff considered that its team had been disadvantaged by a particular umpiring decision and sought a replay of the game, which the defendant refused.  The plaintiff sought an injunction compelling the replaying of the last 64 seconds of the game or (alternatively) the replaying of the entire match.

Held: refusing to grant the injunction, that –

1. To obtain a temporary injunction a plaintiff must show (a) a substantial likelihood of success in the substantive issue; (b) irreparable harm to the plaintiff if the injunction is refused; (c) that the potential injury is not speculative and outweighs the harm of the temporary injunction to the respondent; and (d) that the injunction would not be contrary to the public interest.

Tulsa Order of Police Lodge No. 93 v City of Tulsa, 39 P.3d 152 (2001) and House of Realty v City of Midwest City, 109 P.3d 314 (2004), followed.

2. The necessary harm could not be shown simply by the defendant’s alleged breach of its own policies, particularly where the policies themselves and their application was a matter of the defendant’s discretion.

3. In general, courts should not intervene in matters where the parties have agreed to be bound by and submitted to the governance of activities associations.

4. The court would in any case decline to order the requested relief because there is no means of ensuring that it may be carried out fairly: it would be impossible to replicate entirely the conditions of the disputed match with regard to player fatigue, weather, field conditions, coaching and referee decisions, among other things, and an attempt to do so would invite uncertainty and error. Ultimately this would frustrate athletic pursuits themselves.

Judgment

The Court’s judgement is available here.

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McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

 

John McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

Multnomah County Circuit Court (Oregon)

5 October 2005

Coram: Not known

Appearing for the Plaintiff: Michael Ross (of Slater Ross)
Appearing for the Defendant: Alan Lee (of Bullard Law)

Catchwords: Oregon – truck driver – obesity – discrimination – compensation – quantum.

Facts: The plaintiff had worked as a commercial driver since 1987 and had been employed by the defendant since April 2003. He was classed as morbidly obese, being 6 feet tall and weighing 550 pounds (250 kilograms).

In May 2004 he was assigned to a truck which was smaller than usual and in which the steering mechanism could not be adjusted.  He was unable to fit in the cab and reported the problem, after which he was suspended from duty without pay.  In late May he was assigned a larger truck, but then again suspended pending medical clearance for work.  On examination by a doctor it was found that he was able to drive a truck and had only minor other limitations on his capacity to work. Despite this his suspension was not lifted.

The plaintiff brought proceedings against his employer for discrimination.  He tendered in evidence video footage of him performing his work duties.

Held: The jury upheld the plaintiff’s claim and awarded damages of $109,000.00.

Judgment

The outcome was a jury finding and no written reasons are available.  The report prepared based on an account in the Seattle Times of 7 November 2005 and the Oregonian of 6 November 2005.