Posted on by Stephen Tuck

Taking a gamble at work

You don’t often see an employer using its own fault as a defence.  Except maybe in a jurisdiction where gambling is a way of life.

Mr Baiguen seems to have had a stroke before or just upon arriving for work. He was noticed to be dribbling, his face was drooping and he appeared unresponsive and disoriented. Two coworkers gave him a lift home. When his girlfriend found him two days later he was dribbling and unable to talk. He had missed entirely the three-hour window within which medical care might have substantially improved his outcome.

The Nevada Industrial Insurance Act (NRS 616A.020(1)) provides that

The rights and remedies provided in [this Act] for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive … of all other rights and remedies of the employee … on account of such injury.

Baiguen sued his employer for failing to provide him with timely medical help. The District Court found that his sole remedy lay in worker’s compensation and dismissed the claim:Baiguen v Harrahs Las Vegas LLC (Clark Co. Dist. Ct, Judge Herndon, 14 March 2016, unreported). The Court of Appeals disagreed and reversed the lower court: Baiguen v Harrahs Las Vegas LLC (Nev. Ct App., Silver CJ, Tao and Gibbons JJ, 28 February 2017, unreported). The employer appealed to the Supreme Court of Nevada.

Harrahs
Image from here

The Supreme Court agreed with the District Court. It followed its earlier decision of Mirage v Cotton, 121 Nev. 396; 116 P. 3d 56 (2005), finding that an injury occurs ‘in the course of employment’ when it occurs at the workplace while going to or from work within a reasonable time.

The Court also considered that the accident had arisen out of Mr Baiguen’s employment. Nevada law classes risks at work as “employment risks” (for example, getting a hand caught in a machine), “personal risks” (for example, epilepsy) and “neutral risks” (for example, getting struck by lightning).  A mix of an employment risk and another risk would be an employment risk. The court found that while Baiguen’s stroke was a personal risk, his employer’s defective response to his symptoms had caused him to lose his chance of a better medical outcome:

That Harrah’s might respond inadequately to Baiguen’s stroke in the workplace, due to inadequate workplace policies, procedures, or training, or fail to follow existing policies, procedures, and training, is a risk related to Baiguen’s employment. Such inadequate policies, procedures, and training are conditions of the workplace akin to well-recognized physical hazards, like the risk that the injury from a painter’s stroke will be worsened by falling off a ladder, or an epileptic cook who suffers a seizure and burns himself on a stove.

A second argument for the injury arising out of employment is intriguing. The court accepted the classic position that at common law a person is not obliged to aid a stranger in peril*. A duty exists where a special relationship (like employer/employee) exists. The court said that

Under the facts before us, any duty on Harrah’s part to render aid to Baiguen would have arisen out of the employer-employee relationship, not another special relationship such as innkeeper-guest or restaurateur-patron. … Thus, while the NIIA’s exclusive remedy provision cannot bar a guest or a patron from suing in court for negligence on facts analogous to these, the NIIA limits an employee’s remedy to workers’ compensation.

Baiguen v Harrahs Las Vegas LLC, 134 Nev. Adv. Op. 71 (2018)

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

* McKinnon v Burtatowski [1969] VR 899 (Vic., 1968); Lorelai Laird, ‘Bad Samaritan’, 104(6) ABA Journal 16 (2018)

Posted on by Stephen Tuck

Obscuring the drivers’ vision

Recently I shared a decision from the Coroners Court where a tree shading a streetlight contributed to a road death.  A recent case from Kansas has taken a different approach to the obligations of owners of trees.

It was mid-afternoon on 14 September 2011, and Darren Manley was driving north on Anderson Road in Labette County, Kansas.  At the same time a truck driven by John Patton was being driven west on the intersecting County Road 20000.  Trees growing on land adjoining the intersection obscured the drivers’ view of each other.  Manley was killed in the resulting collision.

Labette
Rural road, Labette County, KS (Image from here)

Mr Manley’s estate sued the owners of the land where the trees grew.  It was alleged that they had wrongfully caused his death by allowing the trees to obstruct the vision of passing motorists.  The owners sought summary dismissal of the claim which was granted by Labette County District Court.  The plaintiff’s appeal to the Court of Appeals was also dismissed: Manley v Hallbauer, 387 P. 3d 185 (2016).  They further appealed to the Supreme Court of Kansas.

The Supreme Court rejected the appeal, finding that the landowners had no duty of care.  It noted that any duty of care would need to be consistent with public policy.  Kansas common law reflected a public policy not to impose tort liability on persons in the position of the landowners in this case.

As our primary policy consideration, this court adheres to precedent “‘unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'” …. Manley does not persuade us to abandon the traditional rule that a landowner owes no duty in the circumstances of this case. We conclude the determination of the existence of duty is better resolved by following our precedent that embraces the traditional rule, especially because of the public policy that underlies that rule.

The Court duly concluded that “a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property”.

Manley v Hallbauer (Supreme Court of Kansas, 10 August 2018)

Posted on by Stephen Tuck

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
Image from here

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).

 

Posted on by Stephen Tuck

The Fourth is not with you

One of the more difficult parts of a personal injury lawyer’s job is explaining to the victim of tragedy that they don’t have a case.  The Fifth Circuit of the US Court of Appeals has to do the same thing.

On 21 January 2015 John Gorman was undertaking firearms training connected with his work for the Mississippi Gaming Commission.  Fellow instructor Robert Sharp forgot to replace his own real firearm with a dummy firearm.  In the course of training he shot Gorman in the chest causing fatal injuries.

loaded
Image from here

Gorman’s widow sought compensation from Sharp on the grounds that he had violated the American Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Sharp’s application to dismiss the proceedings was denied by the US District Court: Gorman v State of Mississippi, 258 F.Supp.3d 761 (2017).  He appealed to the Fifth Circuit Court of Appeals.

The appeal was upheld.  Existing case law had consistently said that there is no liability under the Fourth Amendment absent deliberate and intentional conduct.  In this case it was undisputed that Sharp genuinely believed he was using a dummy firearm and had not shot Gorman wilfully.  The court observed sadly that –

The circumstances that led to this lawsuit are unquestionably tragic — an accidental fatal shooting during an officer training session. But the Constitution does not afford a cure for every tragedy.

The District Court’s decision was reversed.  It was noted that the plaintiff was also pursuing a claim in State law.

Gorman v Sharp (2018), US Fifth Circuit Court of Appeals, 6 June 2018.

 

 

Posted on by Stephen Tuck

In God’s name, why?

Matthew Tirado suffered from severe intellectual disabilities and autism  At the age of 17 years, he was 5’9″ tall but weighed only 84 pounds (38 kgs).  His 34 year old mother* had (apparently to prevent him stealing food) screwed all of the cupboards closed and locked the refrigerator.  So severe were the restrictions that at the end the Connecticut teenager was reduced to foraging in the rubbish for food and to consuming oils and condiments.  On 14 February 2017 he died of fatal child abuse syndrome with dehydration and malnutrition.  His mother took no steps to secure medical help for him.  She was charged with first degree manslaughter.

The 2005 Connecticut Code §53a-55 relevantly provides that

A person is guilty of manslaughter in the first degree when … under circumstances evincing an extreme indifference to human life, [s]he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

The defendant pleaded guilty in the Hartford Superior Court.  Her lawyer noted that she was herself intellectually limited and had grown up in circumstances of neglect.  Judge Baldini noted that the defendant had “failed to provide her son the basic necessities of life”.  Painfully, she observed that “Ms Tirado’s intellectual limitations and becoming a parent at a very young age coupled with her son’s significant cognitive impairments created a perfect storm for Matthew’s untimely death”

Pursuant to a plea agreement the Court sentenced her to 17 years imprisonment, six years of which was suspended, with five years probation.

State v Tirado (2018), NY Times, 5 June 2018; Hartford Courant, 5 June 2018.

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

* Alert readers will note the age difference.  Matthew’s mother was impregnated at the age of 15 by then-40 year old Pedro Gomez.  In subsequent news reports, Gomez claimed to be upset at Matthew’s fate despite having left the defendant to raise her child as a single mother.  My views on that point are not fit to be put in writing.

Posted on by Stephen Tuck

But the tree had to fall

Nobody asked the tree what it thought about the matter.

big-catalpa-tree
Catalpa tree (Image from here)

In about 1930 a catalpa tree began to grow in the Washington Park neighbourhood of Denver. Eighty years of subdivisions and land transfers later, the tree was on the boundary of blocks owned by the Loves and the Kloskys (sadly, the case does not disclose that the blocks were called Blackacre and Whiteacre, which would have been rather cool). Specifically, 74% of the trunk was on Klosky’s land and 26% on Love’s land. The tree dropped leaves, braches and seed pods on both properties. Klosky decided to cut the tree down. Love objected and obtained a restraining order pending an injunction preventing Klosky felling the tree.  The Loves’ application was dismissed by the Denver District Court, although in words many garden lovers would understand  Judge Hoffman said –

[T]he law often requires me [to] do things I don’t want to do. If I [were] the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof.

The Loves appealed to the Colorado Court of Appeals, which dismissed their application: Love v Klosky, 2016 COA 131. They appealed to the Supreme Court of Colorado.

The Supreme Court considered its earlier decision in Rhodig v Keck, 421 P.2d 729 (Colo., 1966). Rhodig was found to have embraced the very old English case of Masters v Pollie, 2 Rolle 141; 81 ER 712 (Kings Bench, 1620). That case had found that in a case like the present, where the tree encroached on anothers property, the tree belonged to the owner of the land where the tree was planted. Rhodig had added a gloss that where such a tree had been jointly planted, jointly cared for, or treated as a boundary between properties, it could become joint property between the neighbours. This was not the case here. There being no case for overturning Rhodig, Klosky was entitled to remove the tree.

Love v Klosky, 2018 CO 20

 

Posted on by Stephen Tuck

No, don’t put it on Facebook

I’m not sure what George Orwell would have made of Facebook. I like to think he’d have been amused by the idea that social media would have put the Thought Police out of work. Lawyers everywhere are discovering, however, that it can keep them in work.

Big bro
Image from here

Ms Kelly Forman fell from a horse. She suffered spinal injuries and also acquired brain injury. She alleged that her brain injury caused cognitive problems which made it difficult for her to express herself. Among other things, she claimed that she had trouble using a computer and, in particular, spelling and remembering the rules of grammar so to express herself coherently. She sued the owner of the horse.

The defendant sought an order that the plaintiff provide access to her entire Facebook account on the basis that the photographs and written content were relevant to his defense, including showing the time it took the plaintiff to compose or respond to messages. The Supreme Court of New York County ordered the plaintiff to produce all photographs posted privately on Facebook prior to the accident which she intended to produce at trial, all photographs of herself posted privately after the accident, and records detailing each time she had posted a private message after the accident and the number of characters or words in the message.

The plaintiff appealed and the Appellate Division narrowed the order. The Defendant appealed to the New York Court of Appeals.

The Court of Appeals reinstated the original order. It rejected the idea that the scope of discosure of social media materials should be controlled by the accountholder’s privacy settings. The Courts should instead employ their well-established rules as to discovery, including as to preventing ‘fishing expeditions. When called upon to decide a dispute as to social media discovery –

courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

As a generation rises whose entire life from conception onwards has been documented on Facebook, discovery disputes will be ever more important to personal injury lawyers.

Forman v Henkin (2018), New York Court of Appeals, 13 February 2018

Posted on by Stephen Tuck

Dr Judge, I presume?

Most personal injury practitioners see a string of radiological records in every case. A recent decision from the US Seventh Circuit is a reminder of the hazards of reading them without adequate training.

MRI meme
Image from here

Ms Akin applied for Supplemental Security Income. She alleged that she became disabled in 2011 as a result of fibromyalgia, back and neck pain and headaches. She saw a number of treating doctors and underwent an MRI. She was also assessed by two medicolegal examiners. The latter concluded that she was fit for sedentary work. Her claim was rejected by the Commissioner of Social Security. She appealed to an Administrative Law Judge (ALJ). The ALJ preferred the opinions of the medicolegal examiners and found that Ms Akin was not disabled because she was fit for sedentary work. The ALJ also said that the MRI scans (which the examiners had not seen) were consistent with Akin’s impairments but did not support her allegations of pain.

Ms Akin appealed to the US District Court which upheld the decision. She appealed to the United States Court of Appeals for the Seventh Circuit. Her appeal was upheld. The Court considered that –

… the ALJ’s evaluation of Akin’s MRI results is flawed because the ALJ impermissibly “played doctor.” … The ALJ stated that the MRI results were “consistent” with Akin’s impairments and then based his assessment of her residual functional capacity “after considering … the recent MRIs.” But, without an expert opinion interpreting the MRI results … the ALJ was not qualified to conclude that the MRI results were “consistent” with his assessment.

The ALJ’s decision was vacated and the matter remanded for further proceedings.

Akin v Berryhill (2018), US Court of Appeals for the Seventh Circuit, 4 April 2018.