Who owns the mosquitoes?

The Body Shop used to sell bags saying something like “if you think you’re too small to be noticed, go to bed when there’s a mosquito in the room”.  Apparently they were right.

William Nami was a railway worker whose job was to work in a team operating a ‘tamper’ (a machine for repairing railway lines). Sometimes he worked inside the machine’s poorly-sealed cabin, and sometimes outside. Unfortunately, the area in which he worked was mosquito-infested town of Sweeny in Brazoria County, Texas.  The railway’s right of way was narrow and weed-strewn and sometimes had pools of water.  In late September 2008 Nami was diagnosed with West Nile virus and suffered significant ill effects.  He sued his employer under §51 of the the Federal Employees Liability Act:

Every common carrier by railroad  … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury … resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

He alleged that the employer had failed to provide a safe workplace.  A jury at trial found tat the employer had been negligent and awarded damages: Nami v Union Pacific Railroad Co. (267th District Court, Koetter J, 2012, unreported).  The employer’s appeal to the Court of Appeals was rejected: Union Pacific Railroad Co v Nami 499 SW 3d 452 (Tex. Ct App., 2014).

Mosquito Day
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Union Pacific appealed to the Supreme Court of Texas.  The Supreme Court noted that insects are considered to be wild animals (ferae naturae) and

… under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee. … The same rule applies to an employer’s duty to provide a safe workplace.

In this case the employer had done nothing to increase (and could have done nothing to decrease) the risk of mosquitoes to Mr Nami.  Accordingly negligence was not made out.

Union Pacific Railroad Co v Nami, 498 SW 3d 890 (Tex., 2016)

Postscript – The Supreme Court of the United States declined to hear Nami’s appeal: Nami v Union Pacific Railroad Co., 137 S.Ct. 2118 (2017).

 

Streetlights and Trees

Local councils seem to be fond of trees.  Apparently, so much so that allowing them to disable public infrastructure is uncontroversial. Until it causes a death.

The sun had set about half an hour before Mary Fillipas got off the bus in Station Street, Burwood on 8 May 2017.  The bus stop was adjacent to Talbett Street.  Fillipas, aged 75 years, was slowly crossing Station Street just after the crest of the road.  A driver approaching from the other side of the crest saw her in his headlights at the last minute and braked.  He could not avoid hitting her.  She died of her injuries some weeks later.

bus stop
Image from here

Police determined that the driver bore no criminal liability for the death.  The police noted that although there were two street lamps in the vicinity of the collision, a large tree blocked most of the light from one.

Mrs Fillipas’ death was investigated by the Coroner.  In the investigation the local government body (Whitehorse City Council) submitted that street lighting in the area was adequate and that the tree was healthy and maintained in line with legislation and appropriate standards.  The Council and a number of other agencies also recommended moving the bus stop to the top of the crest to improve visibility of people crossing Station Street after getting off the bus.

The Coroner agreed with the proposal to move the bus stop.  Her Honour also recommended the Council consider removing suitable trees to ensure overhead lighting was not affected.

In the Death of Fillipas (Coroners Ct of Vic., Hodgson C, 27 July 2018, unreported)

Not naked in Tel Aviv

On 31 August 2015 a traveller booked an air ticket from Freetown to Tel Aviv. The airline mis-tagged his luggage which was lost en route. He bought replacement clothing in Tel Aviv during his stay from 9 to 21 September 2015.

The traveller sued for general and special damages in the High Court of Sierra Leone. The court found that the Warsaw Convention 1929 had been given statutory force in Sierra Leone in 1968 and so strict liability applied.

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By Kipp Jones – Flickr: Freetown airport, CC BY-SA 2.0,

The plaintiff claimed (inter alia) special damages in the form of the cost of replacing clothing and personal effects lost with his luggage.  He particularised his loss at $500 USD.  He was not able to produce receipts or other evidence.  The defendant argued that absence such proof the claim should be rejected, citing Jaber v Basma (1952) 14 WACA 140.  The Court disagreed:

[It] has been proved that the Plaintiff lost his luggage whilst in the custody of the Defendant and that he stayed in Tel Aviv for a period of 12-13 days without receiving it. In such a situation one need not be a magician to conjure that the Plaintiff would need to buy clothes and related items for his daily use. … Counsel for the Defendant has argued that since the loss had not been specifically proved, the claim must not be countenanced by this Court. My response to that submission is to ask whether it would serve the interest of justice to do so? It has not been disputed that the Plaintiff stayed in Tel Aviv for 12-13 days without his luggage and as such the Plaintiff must have procured some clothes to use. It will be most unreasonable to believe that he used the clothes he traveled in for that period. In the circumstance, I hold that the Plaintiff is entitled to special damages based on the special circumstances of this particular case.

Twenty-five per cent interest was ordered to be paid on the special damages from from 10 September 2013 to the date of judgment.

Nicol v Air Maroc (Koroma J, High Court of Sierra Leone, 10 October 2015, unreported)

The oil of speculation

Expert evidence comes in many shapes and sizes.  Circular shouldn’t be one of them.

On2 February 2014 Rose Peralta entered a California supermarket to buy bread.  As she approached the bakery her left foot slid and she fell, suffering injury.  She did not see anything on the floor before or after falling but said she felt as though she had slipped on oil or grease.  She was observed to be wearing shoes with a 3-inch stiletto heel.

Peralta issued proceedings in the Los Angeles County Superior Court.  She relied on an opinion from a civil engineer.  The engineer opined that the flooring would be dangerously slippery if grease or oil were present, and that the fall would not be expected to occur without such substances on the floor.

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Image from here

The defendant sought summary dismissal of the claim which was granted: Peralta v The Vons Companies Inc (L.A. Co. Sup. Ct, Oki J, 14 February 2017, unreported).  Peralta appealed.

The appeal was dismissed.  Concerning the engineer’s opinion the Court said –

Peraltas … attempt to establish there was a slippery substance on the floor through Avrit’s declaration, in which he opines that the manner in which Rose fell is consistent with a slip created by a foreign substance. Mere conjecture, however, is “legally insufficient to defeat summary judgment.” (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) The mere possibility that there was a slippery substance on the floor does not establish causation. Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to Vons, Peraltas cannot sustain their burden of proof.

The opinion was considered to be, in effect, speculation.

Peralta v The Vons Companies Inc (California Court of Appeal, 30 May 2018)

Don’t wait!

Lorenza Kopacz was 80 years old when she came to the emergency room at Banner Health in Arizona. She complained of chest heaviness and shortness of breath. One of the facility’s doctors examined her and recommended cardiac catheterisation. The procedure was performed in 23 December 2013 by way of an incision in the right groin allowing access to the femoral artery.

Mrs Kopacz did not enjoy a good result. Severe pain, bleeding and swelling of the groin followed, spiralling into cardiogenic shock, atrial fibrillation, severe sepsis and hypotension. There was a succession of hospital care and rehabilitation. Her condition stabilised between March and July 2014.

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On 21 January 2016 Mrs Kopacz issued proceedings in negligence against the hospital in Maricopa County Superior Court. the hospital sought dismissal of the claim on limitations grounds. The application was granted: Kopacz v Banner Health (Maricopa Co. Sup. Ct, Brnovich J, 2017, unreported). Kopacz appealed.

The appeal was dismissed. Arizona law provided that a medical negligence claim accrued when the plaintiff had reason to connect their injury with some causative factor in a way that would put a reasonable person on notice to investigate whether the injury may be someone’s fault. Once that intellectual threshold was crossed, the plaintiff had two years to commence a claim.  Mrs Kopacz knew or should have known of a possible claim by 27 December 2013. She responded that her medical condition prevented her understanding what had happened and its cause. While Arizona law allowed for a limitation period to be delayed while a claimant was “of unsound mind”, hard evidence of incapacity was required. The plaintiff’s self-report was insufficient, even when supported by an affidavit from a family member. Accordingly, Mrs Kopacz had issued out of time.

Kopacz v Banner Health (Arizona Court of Appeals, 5 July 2018)

The Mutiny continues

Pitcairn Island, some readers will know, was settled by the mutineers of HMAV Bounty.  Their descendants make up most of the 50-person population of the Island.  The national occupation, it appears, is keeping lawyers employed.

Michael Warren was the mayor of Pitcairn Island.  Alarmingly (since he worked in child protection), he was charged with possession of child pornography and of grossly indecent items.  The matter was dealt with in the Pitcairn Islands Supreme Court. He was sentenced to be imprisoned for 20 months: The State v Warren (2016) Radio New Zealand, 5 March 2016.. His appeal to the Pitcairn Islands Court of Appeal [6 July 2016] was dismissed: Warren v The State (2016) Radio New Zealand, 14 July 2016 . He appealed to the Privy Council.

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Pitcairn Island (Image from here)

Perhaps in keeping with the Island’s mutinous heritage the appellant submitted that the Pitcairn Constitution Order 2010 was undemocratic, thereby breaching the Bill of Rights 1688 and various international human rights norms.  It followed (he said) that all arrangements for trials relating to Pitcairn were unlawful.

The Pitcairn Constitution Order was made under §2 of the British Settlements Act 1887 (UK) which says –

It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such courts and officers, and make such provisions and regulations for the proceedings in the said courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty’s subjects and others within any British settlement.”

Following Sabally and N’Jie v Attorney General [1965] 1 QB 273, the Board accepted that the British Settlements Act 1887 did in fact enable the Crown to create a non-representative legislature where the population was too sparse or little-educated.  This was the situation of Pitcairn, whose population “is approximately 50 persons of whom fewer than 40 are adults”.

The appeal was dismissed

Warren v The State (Privy Council, 30 July 2018)

Pius wasn’t on the ballot

The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

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Nope! (Image from here)

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)

Quo usque tandem abutere, Catilina, patientia nostra?

Shoutout to my friend and New Orleans lawyer Brett Bonin who identified the flag of Tuvalu! Honourable mention to David Coale who law-blogs over at 600 Camp who deduced that it wasn’t Texas (being kinda the opposite of a Lone Star flag).

How long is too long?

Tuvalu is not a big country. Its legislature runs to some 15 people and there are no political parties. Section 62(3) of the Tuvaluan constitution specifically provides that the number of government ministers (aside from the Prime Minister) cannot be greater than one half of the Parliament’s membership.

On 6 January 2014 Leneuoti Maatusi MP was appointed Acting Minister for Health. He remained in that role as of 7 March 2015. His appointment brought the number of ministers to eight.

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Parliament House, Tuvalu (Image from here)

Other Members of Parliament applied to the High Court of Tuvalu for a declaration that Mr Maatusi’s appointment was unconstitutional and therefore void. In response an argument was made that his appointment under §69(1)(b) operated as an exception to §62(3) –

(1) When—

… (b) a Minister other than the Prime Minister is —

(i) absent from Tuvalu; or

(ii) for any other reason unable to perform the functions of his office,

the Head of State, acting in accordance with the advice of the Prime Minister, may appoint another member of Parliament to perform temporarily the functions of the Minister.

Among other arguments, the appointment was challenged as not being temporary. The Court said (I quote the slightly imperfect phrasing of the report) –

“Temporarily” is a word of inexact meaning. How long is something “temporary” before it becomes permanent? That depends on one’s interpretation: one person’s interpretation may not be another’s.Tot homines, quot sententiae!

A line may be drawn between a something being temporary and it having gone on for so long that no sensible person, could argue that it is still temporary. No need to work out where the line is to do that. Easy to tell which side of the line the something is.

All I need say is that Leneuoti Maatusi’s appointment has long crossed the line and become, to all intents and purposes, permanent. The gentleman’s appointment is against both the spirit and the letter of the Constitution.

The application was granted.

Latasi v Attorney-General (High Court of Tuvalu, Millhouse J, 23 March 2015, unreported)

Waddya know, Wal-Mart?

You can find everything at Wal-Mart. Except maybe a sponge.

Leoncio Garcia went to a Wal-Mart store in Houston, Texas at 6:21am on 9 June 2015.  Twenty-five minutes earlier a floor-scrubbing machine operated by a Wal-Mart employee had passed over – and briefly paused at – a point where the floor surface changed from vinyl to tiles.  It was this point where Mr Garcia slipped and fell, suffering a knee injury.  An employee of the store then put a warning cone down on the floor because she saw a liquid at the sit of the fall.

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Mr Garcia sued Wal-Mart for his injuries.  Wal-Mart responded that there was no evidence that it knew of the hazard before the accident.  It applied for summary judgment which was granted: Garcia v Wal-Mart Stores Texas LLC (US Dist. Ct SD Tex., Gilmore J, 9 June 2017, unreported).  The plaintiff appealed.

The appeal was upheld by the Fifth Circuit Court of Appeal.  The Court noted that four things must be proved in an occupiers liability claim:

  1. That the owner had actual or constructive knowledge of the hazard.
  2. That the hazard presented an unreasonable risk of harm.
  3. That the owner failed to take reasonable care to reduce or eliminate the risk.
  4. That the risk was the proximate cause of the injury.

Knowledge could be established by (inter alia) showing that the owner had placed the substance on the floor.  Garcia’s case was that there was circumstantial evidence that the fluid came from the scrubber, thereby meeting the knowledge requirement.  Because this was more plausible than Wal-Mart’s alternative explanations, it was appropriate for the factual dispute to be returned to the trial court for decision.

Garcia v Wal-Mart Stores Texas LLC (US 5th Circuit Court of Appeals, 18 June 2018)

But it doesn’t *say* that!

A fascinatingly technical decision recently came out of the West Virginia Supreme Court of Appeals.  The case is a good demonstration of the principle expressio unius est exclusio alterius.

William Moran was a Rhode Islander and employed by a construction company in that state.  The company sent him to work on a construction project in West Virginia in January 2012.  While there he died of carbon monoxide poisoning at a hotel.  His wife lodged claims for worker’s compensation in both West Virginia and Rhode Island.  Liability was accepted in both claims, although no benefits were actually paid on the West Virginia claim because the $711.30 weekly benefits which would have been payable were cancelled out by the $765.15 per week payable under the Rhode Island claim.  West Virginia Code §23-2-1c(d) provides that

If any employee or his or her dependents are awarded workers’ compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.

Mrs Moran subsequently reached a damages settlement with a number of defendants in connection with her husband’s death. Rhode Island law required her workers’ compensation benefits to be suspended.  The quantum of the settlement was such that the suspension would be greater than her life expectancy.  She then requested reinstatement of her West Virginia claim benefits.  A claims administrator and two review bodies determined that her Rhode Island benefits, though suspended, still cancelled out any West Virginia benefits.  Mrs Moran appealed to the West Virginia Supreme Court of Appeals.

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The Court upheld the appeal.  It concluded that the Code intended West Virginian benefits to be payable in a case such as Mrs Moran’s.  The Code applied a credit only for workers’ compensation benefits or damages recovered from the employer.  Absent reference to recovery from a third party, the legislature must have intended the section not to apply to such recoveries.  Further, where payments were suspended, benefits were not being paid and so the section was not engaged.

Because W. Va. Code § 23-2-1c(d) does not provide that suspended benefits awarded under the laws of another state be credited against workers’ compensation benefits awarded pursuant to West Virginia law, it is not the proper role of this Court to create such a credit.

Moran v Rosciti Construction Co LLC (W. Va Sup. Ct App., 4 June 2018)