Posted on by Stephen Tuck

Evidence: it’s rather useful

I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court.  The Magistrate asked her “what’s the estimated duration of the hearing?”

AC: “I don’t have instructions on that, Your Honour”

Court: “Well, how many witnesses do you intend to call?”

AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]

Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?

A recent appeal out of California suggests how such a scenario might play out.

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Image from here

You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.

The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported).  The plaintiff appealed.

The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience.   The only expert evidence available in this case was supplied by the defendant.  It said that he had observed the relevant standard of care.

Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.

The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of  injury which she associated with yoga.  These were not considered sufficient to raise a causation issue for a jury to resolve.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

Posted on by Stephen Tuck

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)

Posted on by Stephen Tuck

Bad weather can be murder

What happens when a civilian is conscripted into police work?

On 13 March 2011 Kristine Constantino phoned the California Highway PAtrol from her home in Kettenpom, California.  She whispered “help me” and that she lived at the end of the Kettenpom airstrip.  The dispatcher formed the impression that she was trying to avoid being overheard.  The message was passed to the dispatcher of Trinity County Sheriff’s Office, who tried to call Constantino without success.  The call for help was passed to the Office’s Corporal Ron Whitman.

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Christopher Richardson and Kristine Contantino (Image from here)

Apparently because Kettenpom is a remote town, Whitman called Norma Gund who lived near the airfield.  He asked her to do a welfare-check on Constantino.  He said that Constantino has called 911 for help, which probably related to bad weather.  He did not advise her that the caller was whispering or trying not to be overheard.  Gund and her husband went to Constantino’s home.  Constantino and her partner Christopher Richardson had immediately before been murdered by Tomas Gouverneur, who was still at the scene and attacked the Gunds, causing significant injuries (the full sequence of events is detailed in an article from radio station KMUD).

The Gunds sued Trinity County as Whitman’s employer.  Thye alleged that he had negligently misrepresented that the call for help was likely weather related and did not suggest a crime in progress.  The County applied to dismiss the claim  On the grounds that the Gunds’ only remedy was in workers’ compensation: Labour Code §3602.  California’s Labour Code §3366 provides that:

… each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.

The trial court agreed and dismissed the claim: Gund v County of Trinity (Trinity County Superior Court, Scheuler J, 27 April 2014, unreported).  The Gunds appealed.

The trial court’s decision was affirmed by the Third District Court of Appeal.  The Court noted that if Corporal Whitman had responded to Constantino’s call for unspecified ‘help’, he would have been engaged in active law enforcement because

any 911 call seeking unspecified help presents a risk of criminal activity.  Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs that the call was likely weather-related and omission of facts that the caller whispered for help, was disconnected, and did not answer a return call. Even though plaintiffs were unaware of the facts suggesting potential criminal activity and felt lulled into a false sense of security by the deputy’s misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call for help, the nature of which was not certain.

It followed that §3366 applied.  Because the Gunds could claim workers compensation, they had no common law damages claim.

Gund v County of Trinity (2018) __ Cal.App.4th __.

Posted on by Stephen Tuck

Too soon?

An interesting case recently came out of California relating to prematurely commencing litigation.

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Sherri Rasmussen (Image credit)

On 24 February 1986 Sherri Rasmussen was murdered.  The offender (Stephanie Lazarus) was not identified until 2009. Astonishingly, she was by then a detective with the Los Angeles Police Department. Lazarus was convicted of murder on 8 March 2012.

On 26 July 2010 Mrs Rasmussen’s parents issued proceedings against Lazarus in the Superior Court of Los Angeles County.  Lazarus raised a defence that their claim had been commenced too early (that is, before her conviction) (a “plea in abatement”).  California’s Code of Civil Procedure §340.3 states that

in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.

Judge White rejected Lazarus’ argument and ordered her to pay $10,000,000.00 compensation.  Lazarus appealed.

The California Court of Appeal agreed with the trial judge.  The Court found (first) that a plea in abatement must be pleaded promptly by the defendant or it is taken to be waived.  Here Lazarus could have raised the argument when she was served with proceedings in 2011.  She did not do so until 2016.

The Court also found that by the time Lazarus raised the point, the defect identified (lack of a criminal conviction) no longer existed.  The trial court was correct to ignore the issue.

Finally, as a matter of equity the trial court was right to disregard the defence.  If the judgement in favour of the Rasmussens were overturned, they would be time-barred from beginning the proceedings again.  This was not acceptable:

A defendant cannot untimely raise prematurity and then hide behind a statute of limitations which ran while the defendant did nothing to assert the plea.

The decision of the trial court was affirmed.  On 11 April 2018 the Supreme Court of California declined to hear a further appeal.

Rasmussen v Lazarus (2018) California Court of Appeal, 8 January 2018.