Riva v Pepsico Inc (2015) H&FLR 2015-30

Paul Riva and Danielle Ardagna v Pepsico Inc. (2015) H&FLR 2015-30

United States District Court (Northern District of California)

4 March 2015

Coram: Chen J

Appearing for the Plaintiffs: Roy Arie Katriel (of The Katriel Law Firm)
Appearing for the Defendant: Christopher Chorba (of Gibson, Dunn & Crutcher LLP)

Catchwords: California – product liability – soft drink – carcinogen – dosage – pleadings

Facts: The plaintiffs  consumed “Diet Pepsi” and “Pepsi One” (drinks).  Mr Riva asserted that he consumed Pepsi One two to three times a week; Ms Ardagna that she drank nearly 30 cans of Diet Pepsi a week.  They alleged that each can of these drinks contained 43.5 and 30.5 micrograms respectively of 4-methylimidazole (4-MeI).  A report from the National Toxicology Program found that high doses of 4-MeI resulted in increased levels of bronchioloalveolar cancer in mice.

The plaintiffs brought proceedings against Pepsico alleging that its products had caused them to experience an increased risk of cancer.  They alleged negligence and also strict liability based on defective design and on failure to warn.  They sought the establishment of a fund from which people who consumed the drinks between 2010 and 2013 could be paid for the costs of medical monitoring of potential bronchioloalveolar cancer. The defendant sought to dismiss the proceedings for failure to state a claim.

Held: Dismissing the plaintiffs’ claim, that –

1. The plaintiffs had failed to establish constitutional standing to sue.  To establish standing it was necessary to show that (a) there was an actual (or imminent), concrete and particularizable invasion of a legally protected interest; (b) that the injury was fairly traceable to the defendant’s actions; and (c) that it was likely that the injury would be redressed by a favourable decision. While an increased risk of injury can establish the necessary invasion of an interest, the increased risk must be credible and not simply a matter of conjecture.  In this case the plaintiffs had not shown that their increased cancer risk was credible and substantial, but merely speculative.

Central Delta Water Agency v United States, 306 F.3d 938 (9th Cir. 2002), followed.

2. In a case of toxic exposure, the cost of periodic future medical examinations intended to encourage early detection and treatment of the disease caused by the exposure (“medical monitoring”) can be claimed.  The need for future monitoring must be a reasonably certain consequence of the exposure.  In considering whether the monitoring is reasonable and necessary, a court must consider five factors –

  • the significance and extent of the exposure suffered by the plaintiff;
  • the chemicals’ toxicity;
  • the relative increase in the plaintiff’s risk of developing the disease due to the exposure, compared with the risk the plaintiff would have had without exposure or the risk of the public at large;
  • the seriousness of the potential disease; and
  • the medical value of early detection and diagnosis.

In the present case, the plaintiffs had not sufficiently alleged a causal connection between drinks and an increased risk of developing the cancer given the significance and extent of their exposure, nor sufficiently pleaded their injury or the toxicity of 4-MeI, nor shown the necessary relative increase in risk.

Potter v Firestone Tire & Rubber Co, 6 Cal.4th 965 (1993), followed.

Judgment

The Court’s judgment is available here.

Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

Timothy Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

California Court of Appeal (Second District)

29 January 2015

Coram: Kitching PJ, Lavin and Aldrich JJ

Appearing for the Plaintiff: Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein (of Wingert Grebing Brubaker & Juskie)
Appearing for the Defendant: Jack C. Nick and Robert R. Willis (of Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz)

Catchwords: California – personal injury – faulty machine – waiver – negligence – product liability

Facts: The plaintiff was injured on 9 May 2012 while using a “low row” weight training machine at the defendant’s “24 Hour Fitness” club in La Mirada.  The clip securing the handlebar of the machine gave way, causing the plaintiff to suffer injuries to his head, back and neck.  The defendant conceded that the machine had been fitted with the wrong clip.

The plaintiff brought proceedings against the defendant for negligence, negligent products liability, strict products liability and breach of the implied warranty of merchantability.  The defendant sought and was granted summary dismissal of the proceeding based on the release signed by the plaintiff, relieving the defendant of liability for injury resulting from the negligence by it or anyone acting on its behalf: Grebing v 24 Hour Fitness USA, Inc (L.A. Co. Sup. Ct, Jessner J, 28 February 2014, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. A release of liability for future negligence will be valid, unless it is barred by statute or is against the public interest.  The public interest is not generally considered to be impaired by releases relating to exercise facilities or recreational sport.

Tunkl v Regents of University of California (1963) 60 Cal.2d 92 and Capri v L.A. Fitness International LLC (2006) 136 Cal.App.4th 1078, followed.

2. A release of liability for future gross negligence will generally be considered unenforceable as a mater of public policy.  Gross negligence is considered to be an extreme departure from ordinary standards, or a “want of even scant care”.  The available evidence did not suggest the presence of gross negligence.

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.

3. The release covered the risk of defective maintenance or assembly of exercise equipment because this risk was reasonably related to use of the facility and equipment.

Leon v Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, followed.

4. The plaintiff’s claim based on product liability was defective.  A defendant is not liable in products liability if the dominant purpose of the transaction with the plaintiff is provision of services rather than a product, which was the case given the services supplied.

Ontiveros v 24 Hour Fitness USA Inc (2008) 169 Cal.App.4th 424

Judgment

The Court’s judgment is available here.

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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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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.

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* 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.

Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

Tanya Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

California Court of Appeal (Second Appellate District)

21 October 2014

Coram: Mosk PJ, Kriegler and Goodman JJ

Appearing for the Plaintiff: Marilyn H. Nelson and Abram Charles Zukor (of Zukor & Nelson)
Appearing for the Defendant: Anthony J Ellrod and Ladell Hulet Muhlestein (of Manning & Kass, Ellrod, Ramirez, Trester)

Catchwords: California – negligence – kickboxing – assumption of risk – waiver – instructor – inherent risk

Facts: The plaintiff attended a kickboxing class at the defendant’s premises taught by instructor Hakeem Alexander.  Before the class the plaintiff signed an assumption of risk agreement and waiver of liability for injury. While assisting the plaintiff to perform properly a roundhouse kick, Alexander grabbed her right ankle between the ankle and knee and instructed her to ‘rotate’ without providing further direction.  She rotated her left knee, suffering a significant knee injury.

The plaintiff sought compensation for personal injury caused by negligence and gross negligence.  The trial court granted the defendant’s application for summary judgment based on the waiver signed by the plaintiff: Honeycutt v Meridian Sports Club LLC (Los Angeles County Superior Court, Cotton J, 7 January 2014, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1.  Primary assumption of risk arises when a defendant owes no duty to protect a plaintiff from a particular harm. It precludes liability for injuries arising from risks inherent in a sport.

Avila v Citrus Community College District (2006) 38 Cal.4th 148, followed.

2.  Coaches and instructors have a duty not to increase the risks inherent in sports participation, and breach their duty of care to a student or athlete if they intentionally injure the athlete or engage in conduct that is ‘reckless’ (that is, wholly outside the range of the ordinary activity involved in teaching or coaching the sport.

Kahn v East Side Union High School District (2003) 31 Cal.4th 990, followed.

3.  Injuries to shoulders, hands and knees are inherent risks in a vigourous physical activity like kickboxing.  In this case the plaintiff’s injury was squarely within the doctrine of primary assumption of risk.  The coaches actions did not increase the inherent risks.

4.  Gross negligence (which if found would avoid the waiver) is a “want of even scant care” or “an extreme departure from the ordinary standard of conduct”. That another instructor would have acted differently is not evidence of cross negligence

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.
Decker v City of Imperial Beach (1989) 209 Cal.App.3d 349, considered.

Judgment

The Court’s judgment is available here.

State v Corrigan (1998) H&FLR 2014-63

State v Marlene Corrigan (1998) H&FLR 2014-63

Contra Costa County Superior Court (California)

27 February 1998

Coram: Arnason J.

Appearing for the Prosecution: Brian Haynes (1) (of Contra Costa District Attorney’s Office)
Appearing for the Defendant: Laurie Saunders and Michael Cardoza (of Cardoza Law Offices)

Catchwords: California – child abuse – obesity – heart failure – bed sores – sentence.

Facts: The defendant was the mother of Christina Corrigan, who died of congestive heart failure in November 1996 aged 13 years.  At the time of her death, the deceased weighed 680 pounds (309 kilograms) (2).  The evidence indicated that she was suffering from bedsores, that excrement was lodged in the folds of her skin, and that she had spent her final months immobile on a dirty sheet in front of a television in the family home.  She had not attended school since Grade 6.   She had been seen by medical practitioners 90 times up to age 9 (at which time she weighed 237 pounds / 108 kilograms) but had received little or no medical care since that time.

The defendant was charged with felony child abuse.  She contended that she had been overwhelmed with personal responsibilities and posited that the deceased may have suffered from Prader-Willi Syndrome.  She denied being aware of her daughter’s bedsores.

Held: Convicting the defendant of misdemeanour child abuse, that –

1.  Conviction of a misdemeanour rather than a felony was appropriate because it was her passive rather than active misconduct that contributed to the deceased’s congestive heart failure (3).

2.  The maximum penalty for this offence was six months imprisonment; the court however imposed a sentence of 240 hours community service, three years probation (to include counselling and being barred from working in child care) and a $100.00 fine.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Philadelphia Inquirer of 10 January 1998, the Los Angeles Times of 2 March 1998 and the San Francisco Chronicle of 28 February 1998.

Note

This case suggests that a person’s duty to take active steps to prevent a family member coming to harm (4) will take priority over the absence of a general duty to rescue a person intent on injuring themselves (5)

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(1) Since appointed to the Contra Costa County Superior Court.

(2) The weight may be considered significant: a weight of this magnitude, even in an adult, is noted to pose very considerable problems for both mobility and medical care: Dr Edward Thompson, ‘Supersize Me’, Pulse, 22 November 2013.  Medical care is likely to require long-term hospitalization and may cause irreparable injury: Dr Karen Hitchcock, ‘Fat City’, 87 The Monthly __ (2013).  An indication of the potential for significant discomfort associated with pronounced skin folds is offered by the post “Day in the Life: Shower, Chafing, & Jock Itch” on the blog Living ~400lbs … and believe me I am still alive.

(3) Cf R v Stone and Dobinson [1977] 2 All ER 341 (Eng. Ct. of App.), in which the defendants were convicted of manslaughter for failing to take adequate steps to prevent a mentally unbalanced relation who lived with them from starving and mistreating herself to death.

(4) R v Russell [1933] VLR 59 at 67-68 (per Cussen ACJ) and semble 76-77 (per Mann J); but see 83 (McArthur J, dissenting) (Sup. Ct. of Vic.)

(5) Stuart v Kirkland-Veenstra (2009) 254 ALR 432 at 457 (per Gummow, Hayne and Heydon JJ) and semble 463 (per Crennan and Kiefel JJ) (High Ct. of Aust.)

Verdugo v Target Corporation (2014) H&FLR 2014-59

Michael Verdugo and Anor v Target Corporation (2014) H&FLR 2014-59

United States Court of Appeal (Ninth Circuit)

28 October 2014

Coram: Pregerson, Graber and Berzon JJ.

Appearing for the Plaintiff: Robert A Roth (of Tarkington, O’Neill, Barrack & Chong) and David G Eisenstein (of Law Offices of David G Eisenstein)
Appearing for the Defendant: Ryan Moore Craig and Benjamin R Trachtman (of Trachtman & Trachtman) and Richard Caldarone and Donald Falk (of Mayer Brown).

Catchwords: California – cardiac arrest in store – AED not available – negligence – duty of care – claim dismissed – moral obligation.

Facts:  On 31 August 2008 one Mary Verdugo (the deceased), aged 49 years, suffered a cardiac arrest at the Target store in Pico Rivera.  There was no automated external defibrillator (AED) in the store.  Paramedics were called and attended within minutes.  They were unable to revive the deceased.

The deceased’s mother and brother issued proceedings in the Los Angeles County Superior Court against the defendant on the basis that it been negligent in not having an AED available for use in an emergency.  On the defendant’s application the matter was transferred to the Federal District Court, which then granted the defendant’s application to dismiss the matter on the basis that Target was not obliged to make an AED available for use by customers.  The plaintiff appealed to the Court of Appeals for the Ninth Circuit, which referred a question of law to the Supreme Court of California: Verdugo v Target Corp., 704 F.3d 1044 (9th Cir., 2012).  The referred question was expressed as follows –

“Whether, under California law, the common law duty of reasonable care that defendant Target Corporation … owes to its business customers includes an obligation to obtain and make available on its business premises an … AED … for use in a medical emergency”.

The Supreme Court of California responded that the defendant’s common law duty of care to its cutomers did not include a duty to acquire and make available an AED for use in a medical emergency: Verdugo v Target Corp., (2014) H&FLR 2014-55; 59 Cal.4th 312 (2014).

Held: Per curiam, dismissing the appeal, that the District Court’s decision that Target did not have a relevant common law duty of care was consistent with the Supreme Court’s statement of Californian law and so the decision was affirmed.

Per Pregerson J, obiter, that stores like Target have a moral obligation to provide AEDs for use in a medical emergency.  If that moral obligation is not recognised by the stores, it would be appropriate for the matter to be considered by the legislature.

Judgment

The Court’s judgment is available here.

State v Nisbet (2014) H&FLR 2014-58

State v Andrew Nisbet (2014) H&FLR 2014-58

Alameda County Superior Court (California)

9 October 2014

Coram: Grimmer J

Appearing for the Prosecution: Edward Viera-Ducey (Deputy District Attorney)
Appearing for the Defendant: Timothy Rien

Catchwords: California – criminal law – golf – coach – assault on student – sentence

Facts:  The defendant was a prominent 32 year old youth golf instructor.  He sexually assaulted three of his students who were aged between 12 and 17 years.  He ultimately pleaded guilty to one count of “lewd and lascivious acts” on each of his victims, forced oral copulation, possession of child pornography and three counts of solicitation to murder (concerning an attempt to hire an assassin to kill his victims).  As a result of a plea agreement 79 other charges were withdrawn.

Held:  The offender was sentenced to 27 years and four months imprisonment and fined $10,000.00.  He was ordered to pay compensation to his victims and to register as a sex offender.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Contra Costa TimesNew York Daily News and ESPN.

Note

The sentence imposed bears comparison to the 28 year sentence imposed in R v John Xydias (2009), The Age, 30 June 2009. for a much greater array of offences.  This suggests the significance that might be attached by Californian courts to the breach of trust involved in an assault by a sports coach on one of their charges.

Verdugo v Target Corporation (2014) H&FLR 2014-55

Michael Verdugo v Target Corporation (2014) H&FLR 2014-55

Supreme Court of California

23 June 2014

Coram: Cantil-Sakauye CJ, Baxter, Chin, Corrigan, Liu, Nicholson and Werdegar JJ.

Appearing for the Plaintiff: Robert A Roth (of Tarkington, O’Neill, Barrack & Chong) and David G Eisenstein (of Law Offices of David G Eisenstein)
Appearing for the Defendant: Richard Caldarone, Donald Falk and Foster Johnson (of Mayer Brown).

Catchwords: California – premises liability – Automated External Defibrillator – cardiac arrest – negligence

Facts:  On 31 August 2008 one Mary Verdugo, aged 49 years, (the deceased) suffered a cardiac arrest at the Target store in Pico Rivera.  There was no automated external defibrillator (AED) in the store.  Paramedics were called and attended within minutes.  They were unable to revive the deceased.

The deceased’s mother and brother issued proceedings in the Los Angeles County Superior Court against the defendant on the basis that it been negligent in not having an AED available for use in an emergency.  On the defendant’s application the matter was transferred to the Federal District Court, which then granted the defendant’s application to dismiss the matter on the basis that Target was not obliged to make an AED available for use by customers.  The plaintiff appealed to the Court of Appeals for the Ninth Circuit, which referred a question of law to the Supreme Court of California: Verdugo v Target Corp., 704 F.3d 1044 (9th Cir., 2012).  The referred question was expressed as follows –

“Whether, under California law, the common law duty of reasonable care that defendant Target Corporation … owes to its business customers includes an obligation to obtain and make available on its business premises an … AED … for use in a medical emergency”.

Held: Per Cantil-Sakauye CJ (Baxter, Chin, Corrigan, Liu and Nicholson JJ concurring) –

1.  California Civil Code §1714.21 and Health & Safety Code §1797.196 were not intended to supplant the common law on whether business establishments must acquire or use an AED.  In general, statutes should not be construed to alter or conflict with the common law.  A statute will not supplant the common law entirely in an area unless the legislature has shown an intention to “cover the field”.  General and comprehensive legislation, minutely describing courses of conduct, parties, things affected, limitations and exceptions, will suggest such an intention.

I.E. Associates v Safeco Title Insurance Co., 39 Cal.3d 281 (1985); California Association of Health Facilities v Dept of Health Services, 16 Cal.4th 284 (1997), followed

Rotolo v San Jose Sports & Entertainment LLC, 151 Cal.App.4th 307 (2007), distinguished.

Breaux v Gino’s, Inc., 153 Cal.App.3d 379 (1984), doubted.

2.  At common law, a business entity’s duty of reasonable care to its business patrons does not include an obligation to acquire an make available an AED for use in a medical emergency.  When the precautionary medical safety measures that a plaintiff argues a business ought to have provided are costly or burdensome (and not minimal), the business is not required to provide them unless there was a heightened or high degree of foreseeability of the medical danger in issue.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666; Delgado v Trax Bar & Grill, 36 Cal.4th 224 (2005); Castaneda v Olsher, 41 Cal.4th 1205 (2007), approved*.

Per Werdegar J –

3.  Target’s common law duty of care to patrons does not include an obligation to acquire and make available and AED for use in a medical emergency.  Relevant to this conclusion was that it was no more likely the deceased would suffer a cardiac arrest in the store than in any other place, and that the connection between her death and the defendant’s failure to provide an AED was uncertain.  In addition, the defendant was not morally blameworthy, and the practical and insurance consequences of imposing a duty were problematic.

Rowland v Christian, 69 Cal.2d 108 (1968), applied.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666, doubted.

Judgment

The Court’s judgment is available here.
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* This is consistent with more general common law principles: see Stephen Tuck, ‘To the Rescue: Liability in Negligence for Third Party Criminal Acts in the United States and Australia’, 23 Ind. Int’l & Comp. L. Rev 183 at 195-199 (2013)

Heskel v San Diego (2014) H&FLR 2014-47

Menahem Heskel v City of San Diego (2014) H&FLR 2014-47

California Court of Appeal (Fourth Appellate District)

13 June 2014

Coram: Huffman APJ, McDonald and O’Rourke JJ

Appearing for the Plaintiff: Mr Michael Feldman (of Law Offices of Michael A Feldman)
Appearing for the Defendant: Messrs Jan Goldsmith and Andrew Jones and Mesdames Jennifer Gilman and Stacy Plotkin-Wolff (of the San Diego City Attorney’s Office)

Catchwords: California – San Diego – negligence – pedestrian – sidewalk – trip – fall – constructive notice

Facts: On the night of 29 September 2009 the plaintiff was walking on the sidewalk of Mission Gorge Road between Jackson Street and Echo Dell Road, San Diego. He tripped on the protruding base of a hollow metal post which was cemented into the sidewalk, causing him to fall and suffer injury. The base appears to have been a few inches tall, but the evidence adduced by the plaintiff was unclear as to how obvious it in fact was.

Section 835 of the Californian Government Code renders a public entity liable for injury caused by a dangerous condition of its property, subject to a plaintiff establishing (a) the dangerous condition of the property at the time of injury, (b) that the dangerous condition proximately caused the plaintiff’s injury, (c) that the dangerous condition created a reasonably foreseeable risk of injury of the kind which was sustained* and (d) the entity had constructive notice of the dangerous condition for a sufficient time prior to the accident to have addressed it. Constructive notice exists where the dangerous condition existed for so long and was so obvious that the entity should have identified it by (inter alia) an adequate inspection system.

The defendant sought and was grated summary judgment on the grounds that it lacked constructive notice: Heskel v City of San Diego (Superior Court of San Diego County, Taylor J, 21 November 2011, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. A claim of constructive notice has two elements: the plaintiff must establish that the dangerous condition existed for a sufficient period of time, and that it was obvious. Here, the evidence was that the base had been present for up to two years, but did not make a prima facie showing that the condition was obvious. Accordingly summary judgment was properly given.

State v Superior Court (1968) 263 Cal.App.2d 396, followed.

2. The fact that the base was above ground and visible was not enough to require the defendant, in the exercise of reasonable care, to identify it. Semble, for a hazard to be identifiable in the exercise of reasonable care, it should be of a substantial size or visible from public thoroughfares**.

Judgment

The Court’s judgment is available here.

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* Cf Hughes v Lord Advocate [1963] AC 837, [1963] 2 WLR 779, [1963] 1 All ER 705, 1963 SC (HL) 31
** Cf Inquest into the Death of Stephen Clough (Coroners Court of Victoria, Coroner Olle, 4 March 2010, unreported)

 

 

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