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Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Second District Court of Appeal (Florida)

6 February 2013

Coram: Silberman CJ, Casanueva and Black JJ

Appearing for the Plaintiff: Matthew Moore and David Rash (inst. Alters Law Firm)

Appearing for the Defendant: J. Matthew Belcastro and Traci T. McKee (inst. Henderson, Franklin, Starnes & Holt)

Catchwords: Florida – soccer – high school – collapse of player – automated external defibrillator – brain damage – negligence

Facts: Abel Limones Jr was a member of the East Lee County High School soccer team in a match against the team of Riverdale High School on the evening of 13 November 2008. During the game he collapsed on the field , following which he rapidly lost consciousness, stopped breathing and apparently ceased to have a pulse. Emergency services were called and cardio-pulmonary resuscitation was commenced. There was evidence that the coach of the East Lee County team called for an automated external defibrillator (AED) and that such a device was available at the ground. About 26 minutes after collapsing, Limones Jr was resuscitated by emergency services but suffered catastrophic brain damage.

The plaintiffs (Limones Jr and his parents) sought compensation based on a common law duty by the defendant to provide a reasonably safe environment and based on a failure to comply with §1006.165 of Florida Statutes 2008. The action was dismissed on the basis that there was no common law duty to provide or use an AED and that the claimed section did not establish a cause of action in negligence. The plaintiffs appealed.

Held: Dismissing the appeal –

(1) In relation to athletic activities, a school’s duty includes doing what a reasonably prudent person would do in the circumstances to (a) provide adequate instruction; (b) supply suitable equipment; (c) select and match competitors; (d) supervise; and (e) should injury occur, take appropriate steps to prevent aggravation of the injury.

(2) A school is not obliged at common law to provide medical care or rescue, including by means of an AED.

LA Fitness International LLC v Mayer, 980 So. 2d 550 (Fla. 4th DCA, 2008), followed.

The Court declined to decide whether §1006.165 of Florida Statutes 2008 created a private cause of action in negligence.

Judgment

The Court’s judgment is available here.  Note that an appeal will be considered in the matter by the Supreme Court of Florida.

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Sibley v Milutinovic (1990) H&FLR 2014-4

Sibley v Milutinovic (1990) H&FLR 2014-4

Supreme Court of the Australian Capital Territory

9 February 1990

Coram: Miles CJ

Appearing for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
Appearing for the Defendant: Self-represented

Catchwords: Australian Capital Territory – soccer – non-competitive match – tackle – punch – consent – rules.

Facts: The parties were members of two soccer teams which held a friendly training match on 27 May 1987. The match was unrefereed. Two incidents took place between the parties. In the first incident the plaintiff undertook a “low sliding tackle” which caused both men to fall over. The defendant abused the plaintiff and told him to watch out. In the second incident the plaintiff performed another slide tackle on the defendant, who again fell. The defendant got up and punched the plaintiff breaking his jaw. The defendant received a kick to the ankle in the tackle and for which he made a cross-claim. Both parties pleaded a defence of voluntary assumption of risk.

There was no evidence as to the rules of soccer. The court relied on judicial knowledge to find that while soccer involved some inevitable physical contact between players, the intentional use of force by one player against another was outside the rules where the force was likely to cause injury.

Held: Upholding both claims –

(1) The defence of voluntary assumption of risk is not appropriate to an action for assault. The court worked on the assumption that the parties had actually intended to raise a defence of consent.

(2) The blow to the plaintiff’s jaw was outside the rules and outside the scope of the plaintiff’s consent to some physical contact during the game. Hence, the plaintiff’s claim succeeded.

(3) Because the match was non-competitive, “the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposiiung player is … to be distinguished from conduct justifiable during a competition match”.

(4) The court was not satisfied that the plaintiff’s slide tackles were within the rules that the parties had expected to be observed. Because the plaintiff had not proved that the defendant consented to the sliding tackle, the cross-action succeeded.

Judgment

The Court’s judgment is available here.

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Smith v Emerson (1986) H&FLR 2014-3

Smith v Emerson (1986) H&FLR 2014-3

Supreme Court of the Australian Capital Territory

23 May 1986

Coram: Miles CJ

Appearing for the Plaintiff: Not recorded
Appearing for the Defendant: Not recorded

Catchwords: Australian Capital Territory – Australian Rules football – deliberate punch – contact sports – consent – aggravated or exemplary damages.

Facts: The plaintiff and defendant were involved in two incidents while playing on opposite sides of an Australian Rules football match on 13 May 1984. In the first incident the plaintiff alleged that after he had tackled the defendant, the defendant punched him a glancing blow just under his left ear. The defendant alleged that he had simply pushed the plaintiff away after that person stepped on his foot. In the second incident the plaintiff alleged that the defendant had run at him and struck him while he (the plaintiff) was shepherding a team-mate. The plaintiff’s jaw was broken in this incident. The defendant alleged that he had simply tried to push the plaintiff’s right arm downwards and upper body to the left.

It was agreed that the actions the defendant claimed to have performed were within the rule of the game. The court noted that the incidents alleged by the plaintiff – deliberate punches to the head – were outside the rules.

Held: (1) Upholding the plaintiff’s claim, that it was well established that players of contact sports consent to physical contact (which would normally be an assault) as long as the acts are within the relevant sport’s accepted rules. The Court found the plaintiff’s case more probable than that of the defendant and therefore his claim succeeded.

(2) Rejecting the claim for aggravated or exemplary damages, that while the defendant’s actions were assaults, they did not go so far beyond acceptable conduct on a football field that there was a need for punishment or making an example of the defendant.

Judgment

The Court’s judgment is available here.

 

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Dunagan v Coleman (2014) H&FLR 2014-2

Dunagan v Coleman (2014) H&FLR 2014-2

Texas Court of Appeals (Fifth District)

7 April 2014

Coram: Moseley, FitzGerald and Evans JJ

Appearing for the Appellant (Defendant): Gregory Ave and Jay Harris (inst. Walters, Balido & Craine)

Appearing for the Respondent (Plaintiff): Niles Illich (inst. Law Office of Ben Abbott)

Catchwords: Texas – softball – negligence – inherent risk – recklessness

Facts: The parties were teammates on a slow pitch softball team and had played together many times. Prior to the first game of the season the defendant asked the plaintiff to catch a few pitches from him to assist him (the defendant) to focus his pitches. The defendant threw a rising fastball which the plaintiff failed to catch. The ball hit the plaintiff in the mouth causing significant injuries.

The plaintiff sued, alleging both negligence and gross negligence. A jury in the 134th Judicial District Court found that the defendant had been negligent and awarded significant damages.

Held: That the verdict ought be reversed. It is an inherent risk of softball that a ball will hit a participant and cause injury. The plaintiff’s injuries resulted from a risk inherent in the sport he was playing. As such, the defendant was not at fault based on ordinary negligence. A defendant will be found liable, however, if his conduct was grossly negligent, intentional (1) or reckless. Recklessness in this context would have taken the form of the defendant knowing or having reason to know that his pitch resulted in an unreasonable risk of physical harm, and that the risk of such harm was substantially greater than that which would be classed as “mere negligence”.

The Court observed that the fact that the incident occurred during a warm up rather than a game was not relevant: the inherent risks of a sport did not change depending on whether the conduct in issue occurred in practice or in competition.

(1) The court did not explore liability for harms caused by intentional conduct in cases where intentional and forceful contact is part of the sporting activity.

Judgment 

 The Court’s judgment is available here.

 

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Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Livingston Sheriff Court (Scotland)

Circa 4 October 2013

Coram: Sheriff Rafferty

Appearing for the prosecutor: Not known

Appearing for the defendant: Alan Jackson (solicitor)

Catchwords: Scotland – fraud – fail to attend – sentencing – arrest – obesity

Facts: On four occasions in or about 2013 the defendant bought pizzas valued at about £30.00 each using another person’s credit card.  He pleaded guilty to obtaining goods by fraud.  He was ordered to pay compensation to the relevant Domino’s Pizza outlet (it is unclear why he was not ordered to compensate the card holder) but failed to do so.

The matter was again brought before Livingston Sheriff Court for formal sentencing.  The defendant – whose reported weight was approximately 254 kilos / 560 pounds – did not attend.  Counsel for the defendant advised the Court that he (the defendant) had“extreme difficulty getting out of the house [and] … can’t physically get out of the house even with assistance”.

Held: Semble, that a defendant’s physical size can be a relevant consideration for the Court in considering whether to grant a warrant for their arrest.  Per Sheriff Rafferty: “’It’s only because I can see huge practical difficulties with him being apprehended by the police that I’ll not grant a warrant in this case.”

Judgment

No written judgment available.

Sources: Reports in the Mirror, Daily Mail, and Scotsman.

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The Crimean crisis – my $0.02

A lake’s worth of ink has been spilled on the subject of the Crimean crisis already and I’m not sure I have anything of value to share, but I’ll have a go here.

Two pieces of news landed in my inbox this week that seem to me to connect to each other. One was a column comparing the annexation of the Crimea into Russia with annexation of the Sudetenland into Nazi Germany in 1938. I think this a potentially dangerous misreading of history. It seems to be a commonplace that the Second World War might have been averted if Britain and France had resisted the annexation of the Sudeten or the remilitarization of the Rhineland, and therefore the statesmen of that age failed gravely. Extrapolating from this analysis to the present leads to the conclusion that now is the time to “stand up to Putin” in a suitably aggressive way. Right on cue came the other thing in my inbox: Senator (and possible Presidential aspirant) Ted Cruz declaring that

Tomorrow it could be Estonia, Latvia, Moldova, Romania, the Czech Republic or Poland. … Meeting his [Putin’s] challenge now with strength, not appeasement, would be the best way to ensure that this does not happen.

Much as it pains me to quote from an old Marxist like Humphrey McQueen, his book Suspect History contained one of the fairest assessments of Neville Chamberlain ever written: He could not imagine Auschwitz, but he didn’t need to imagine Passchendaele. Too ready an equating of Vladimir Putin with Adolf Hitler prevents us drawing the lesson Chamberlain could have taught: leaving an authoritarian nation to its own devices may – may well – lead to bloodletting. But an aggressive and ill-considered response will virtually guarantee it.

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Welcoming the Microparties

There’s been a lot of talk lately about the rise of “microparties” in Australia, particularly following the unexpected successes of the Australian Motoring Enthusiasts Party

and the Australian Sports Party.

Many people have pointed to their inexperience, and there have been questions as to the desirability of single issue parties having influence at all –

This is (or at least should be !) the biggest talking point of this election – single issue crazies potentially holding the government to ransom. The “states house” is a joke & Keating’s comments about them have never rung louder. Who is going to be strong enough to initiate reform in the upper house?

This concern is misplaced. The microparties tell us something rather encouraging about the world we live in.

Francis Fukuyama’s influential book The End of History and The Last Man argued that modern capitalist liberal democracy represented the endpoint of political development: once a society had come to look like Australia, or the United States, or western Europe, further development was neither possible nor likely to be sought. It follows from this that the problems that exist in a society once it reaches this point are not “curable”, but only “manageable” (homelessness would be a good example). In other words, a natural limit to the power of the state would be found. This seems to be the state Australia has reached, where on all of the big questions the major parties agree. By way of example, despite the hyperventilations of Mungo Macallum, it’s hard to imagine anyone seriously thinks Tony Abbott will disband Medicare. And even though the Rudd/Gillard government’s asylum seeker policy was incoherent and confused, one can’t really say credibly that it was actually a “welcome mat” to unlawful arrivals.

In this context, the rise of microparties suggests the electorate has reached the same conclusion: that the first two rights of America’s Declaration of Independence – life and liberty – have been tolerably well secured. What is left, then, is the pursuit of happiness. Securing this is something that microparties are particularly well placed to secure, because their key concerns are the passions and interests that give life meaning and make life worth living. By way of example, the Australian Fishing & Lifestyle Party –

the Outdoor Recreation Party

and the Shooters’ and Fishers’ Party.

I suggest that, far from being a trend to be mocked, these new groups should be encouraged and their input sought into the political process. I look forward to the rise of the Philately Party, the Campaign for Comic Opera, and the People Who Like Rare Steak And Sing In The Shower Party.

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Police v Neville Betts (Albury Local Court, Murray M, 28 January 2014)

Police v Neville Betts (Albury Local Court, Murray M, 28 January 2014), reported in the Border Mail, 29 January 2014, p. 12.

Facts

The defendant was stopped by police and found to be driving with a blood alcohol reading of 0.170. On the day in question he had attended the grave of his son, who had died 17 years earlier as a result of an assault. After going to the grave, he attended a hotel and drank heavily.

Dispute

The defendant was charged with high range drink driving, to which he pleaded guilty. He was represented by solicitor Mark Cronin.

Ruling

The court noted (and presumably took into account) the date on which the offence occurred. The defendant was sentenced to a 12 month driving ban, a $400.00 fine and an 18 month bond (a condition of which was that he complete a drink-driver education course).

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Police v Ross Davidson (Shepparton Magistrates Court, O’Callaghan M, 28 January 2014)

Police v Ross Davidson (Shepparton Magistrates Court, O’Callaghan M, 28 January 2014), reported in the Shepparton News, 29 January 2014, p. 5.

Facts

The defendant was (and presumably still is) a professional driver. He routinely crossed the Goulburn River Bridge at Murchison in a 19 metre long heavy vehicle. The road narrowed when it reached the bridge and his evidence was that he had to swing the truck wide to avoid hitting a guard rail.

Dispute

The defendant was charged with failing to keep to the left of the centreline of the road at the bridge. He pleaded guilty but contended that it was impossible to comply with the law.

The defendant appears to have been unrepresented.

Ruling

Despite the defendant’s guilty plea, the Court declined to record a conviction or impose a fine, so that the only sanction was the statutory loss of demerit points on the defendant’s licence. His Honour observed that the motivation for his decision was that –

The message I am trying to send to VicRoads [the relevant authority] is that you have an inherently unsafe situation. If I can send a message to VicRoads it is to do something about this bridge. This seems to me to be a bridge whose architecture might have been fine in 1938 (when it was built), but in 2014 it needs revisiting”

Notes

The defendant regularly used the bridge and so presumably could not argue that his crossing of the centreline was exactly involuntary (although the evidence did not reveal where the nearest practicable alternative crossing of the river was). To that extent, the case perhaps has a faint echo of R v Larsonneur, 24 Cr App Rep 74 (CCA, Eng., 1933)

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Police v Harrison James Cowie (Albury Local Court, Murray M, 28 January 2014)

Police v Harrison James Cowie (Albury Local Court, Murray M, 28 January 2014), reported in the Border Mail, 29 January 2014, p. 8.

Facts

Police signalled to the defendant to stop for a breath test. He slowed his car, but then sharply accelerated and ran a red light at an intersection where 10-15 people were waiting to cross. He then accelerated again and ran a further red light. He then turned off the headlights on his car and continued to drive away.

The defendant voluntarily presented himself at a police station the next day in relation to this incident, stating that his behaviour was due to panicking. Less than a month before this incident the defendant had been convicted by a Victorian court of an assault and sentenced to serve an 8 month Community Corrections Order.

Dispute

The defendant was charged with dangerous driving and failing to comply with a request to stop.

Ruling

The defendant was placed on a 12 month bond, fined $500.00 and disqualified from driving for 14 months in relation to the dangerous driving charge. He was fined $100 for failing to stop. The court said “[y]our driving was disgraceful, but your behaviour after that was commendable”.

Notes

It is not stated whether the conviction in Victoria was considered relevant by the Court.