In re deaths of Nkondogoro and Ndirangu (2015) H&FLR 2015-32

Inquests into the deaths of Bobdeb Nkondogoro and John Kabiru Ndirangu (2015) H&FLR 2015-32

Coroners Court of Victoria

3 March 2015

Coram: Coroner White

No appearances recorded

Catchwords: Victoria – death – drowning – recent migrants – not able to swim – danger – failure to warn

Facts: Bobdeb Nkondogoro was aged 12 years.  He had recently arrived in Australia from Tanzania.  He went swimming in a creek in their neighbourhood despite being unable to swim.  It was not possible to be certain whether he was accompanied while swimming but it appeared to be the case that he had accidentally drowned after becoming trapped underwater.

John Ndirangu was aged 23 years and had recently migrated to Australia from Kenya.  With some family members he went wading at Frankston Beach in the late afternoon of 7 February 2009*.  A passing wave caused him to be unable to become unable to touch the bottom.  Not being able to swim, he lost his footing and drowned.  At the time there were no lifeguards on duty, and the ‘no swimming’ flags had been removed; such that swimmers were expected to look out for themselves and each other.

The coroner noted that new migrants to Australia were provided with a booklet which included a significant amount of information, including as to the dangers of swimming in open waters for non-swimmers.  He also noted that a number of community programs existed to aid new migrants to learn to swim, but that there were some difficulties with communication and also sustaining the involvement of participants.

Held: No criticism was made of the emergency services response in either matter. It was recommended that the Victorian Department of Sports and Recreation, in partnership with the Commonwealth Department of Immigration, examine how members of newly arrived migrant groups might best be taught to swim and to provide help with achieving that objective.


The Court’s judgment in relation to Mr Nkondogoro is available here and in relation to Mr Ndirangu is available here.


* From personal recollection I can confirm that 7 February 2009 was an extremely hot day in Melbourne, and that by late afternoon the attention of police and emergency services across the state were very heavily focussed on the outbreak of the disastrous “Black Saturday” bushfires.

Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Dennis Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Superior Court of New Jersey (Appellate Division)

19 July 2013

Coram: Reisner, Yannotti and Harris JJ.

Appearing for the Plaintiff: Herbert Korn, Robert Westreich and William Reutelhuber (of Herbert M Korn PC)
Appearing for the Defendant: Robert Kelly, Christen Moffa, Jason Schmitz and Christine Delany (of Littleton Joyce Ughetta Park & Kelly)

Catchwords: New Jersey – personal injury – product liability – failure to warn – defective product – misuse

Facts: The plaintiff was a recreational rider of snowmobiles.  On 5 February 2005 he was at he home of a friend in upstate New York and borrowed a snowmobile (manufactured by the defendant) belonging to that friend.  He noticed that it was running erratically and concluded that it had a fouled sparkplug.  In an attempt to clear the sparkplug the plaintiff and another man lifted the rear of the snowmobile by a handle attached to the back of the machine while a third man revved the engine (“the process”).  During this process the snowmobile’s track broke and flew backwards, severely injuring the plaintiff’s leg.  The leg was ultimately amputated.

At trial there was considerable lay evidence that the process was commonly used among snowmobilers in order to clear sparkplugs.  However, the machine’s owner’s manual contained warnings against standing behind the snowmobile or lifting its rear while the engine was running. It was not known whether the manual had been available to the plaintiff (let alone read by him) on the day of the accident.  New Jersey’s Product Liability Act provides that a manufacturer –

… shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably … safe for its intended purpose because it … failed to contain adequate warnings or instructions (1)

The plaintiff brought proceedings against the defendant in the Superior Court of New Jersey on the basis that the snowmobile had a design defect and that the defendant had provided an inadequate warning against lifting the machine while it was running.  A jury upheld the claim based on failure to warn and damages of approximately $2,500,000.00 were awarded: Mohr v Yamaha Motor Co Ltd (2011), Daily Record, 14 April 2011.  The defendant appealed.

Held: Dismissing the appeal, that –

1. In proving that a product was dangerous and required a warning, a plaintiff is required to address the issue of product misuse, either by showing that there was no misuse or that the misuse that occurred would have been foreseeable to a reasonably prudent manufacturer.

Johansen v Makita USA Inc, 128 NJ 86, 607 A.2d 637 (1992); Cepeda v Cumberland Engineering Co, 76 NJ 152, 386 A.2d 816 (1978); Jurado v Western Gear Works, 131 NJ 375, 619 A.2d 1312 (1993); and Ridenour v Bat Em Out, 309 NJ Super 634 (App. Div. 1998), followed.

2. It was effectively conceded that the plaintiff had misused the snowmobile but that the misuse was foreseeable.  Accordingly the real issue for the jury was whether it was sufficient for the manufacturer to place a warning about the relevant risk of injury only in the owner’s manual, or whether a waning should have been affixed to the snowmobile itself.  On the evidence it was amply open to the jury to find that the defendant had provided an inadequate warning.

3. Obiter, A user’s modification of a product will not relieve a manufacturer of liability for a defective product if the defect remains a contributing proximate cause of the accident or the modification was foreseeable.

Soler v Castmaster, 98 NJ 137, 484 A.2d 1225 (1984) and Butler v PPG Industries Inc, 201 NJ Super 558, 493 A.2d 619 (App. Div. 1985), approved.


The Court’s judgment is available here.


(1) N.J.S.A., 2A:58C-2(b).



Young v United States (2014) H&FLR 2014-57

Young and Ors v United States (2014) H&FLR 2014-57

Court of Appeals (Ninth Circuit)

17 October 2014

Coram: Alarcón, Tashima and Murguia JJ

Appearing for the Appellants: Wayne Mitchell (of Anderson & Mitchell PLLC)
Appearing for the Respondent: Priscilla To-Yin Chan (Assistant US Attorney) and Jenny Durkan (US Attorney)

Catchwords: Washington – National Park – electric transformer – melted snow – failure to warn – discretionary immunity.

Facts:  The defendant operated a visitor centre at Mount Rainer National Park in Washington State.  To supply electricity to the visitor centre, a power transformer was installed in a snowfield approximately 150 feet from the building.  The transformer releases heat as it operates.  The visitor centre is in an area which receives approximately inches of snow annually.  The snowfield in which the visitor centre was located would often contain an even greater amount of snow because the National park Service’s road ploughing operations would deposit even greater amounts of snow there.  At the relevant time, the transformer was entirely buried by snow and there was no warning of its presence.

The appellants were a Californian family who travelled to the Park.  They entered the snowfield near the visitor centre and while there Mrs Young walked on the snow over the top of the transformer.  As she did so the snow collapsed and she fell twelve feet onto the concrete pad supporting the transformer, suffering injury.  It was later identified that the transformer’s heat had melted a large amount of the surrounding snow, leaving only a thin ‘ceiling’ over a cavity.

The plaintiffs brought proceedings under the Federal Tort Claims Act (28 USC §1346(b)(1)) (Act), alleging that the National Park Service had negligently failed to warn them of a known hazard which the Service had created.  The defendant applied to dismiss the claim under §2680(a) of the Act, alleging that the government retains an immunity from claims based on the performance (or failure to perform) a discretionary function by a government agency.  The District Court granted the application and dismissed the claim: Young v US (US Dist. Ct., Settle J, 25 March 2013, unreported)  The plaintiffs appealed.

Held: Per curiam, allowing the appeal –

1.  To assess whether a claim is barred by the discretionary function exception requires first identifying the specific allegations of agency wrongdoing.  One must then ask two questions –

(a)  Was the allegedly negligent conduct discretionary?  That is, does it involve an element of judgment or choice for the agency?
(b)  Was the particular exercise of discretion one which the discretionary function exception was intended to protect?  The decision must be grounded in social, economic and political policy.

Berkovitz v United States, 486 US 531 (1988) and Whisnant v United States, 400 F.3d 1177 (9th Cir., 2005), followed.

2.  In this case the plaintiffs alleged a negligent failure to warn of a danger the government itself knew of and had created.  This failure may prima facie not be covered by the discretionary exception and so it was appropriate to move on to the two further questions.  It was common ground that the decision whether or not to install warning signs near the transformer was discretionary.  However, a decision not to warn of a specific, known danger for which the agency is responsible is not the kind of broader policy decision which the exception was meant to protect.  The decision was not susceptible to considerations of social, economic or political policy which the defendant identified.

Sutton v Earles, 26 F.3d 903 (9th Cir., 1994), approved.


The Court’s judgment is available here.

Pelman v McDonald’s Corporation (2003) H&FLR 2014-33

Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.


The Court’s judgment is available here.

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

United States District Court (W.D.N.Y.)

21 April 2014

Coram: Skretny CJ

Appearing for the Plaintiff: J. Michael Hayes (of Law Offices of J. Michael Hayes)
Appearing for the Defendant: Kevin Hogan (of Phillips Lytle LLP) and Dan K. Webb, Stephen V. D’Amore, Scott P. Glauberman and Cornelius M. Murphy (all of Winston & Strawn LLP)

Catchwords: New York – high-fructose corn syrup – diabetes – negligence – product liability – failure to warn – market-share liability – feasible redesign

Facts: The defendants* were manufacturers of high-fructose corn syrup (HFCS). The plaintiff was a 14 year old girl who alleged that she had consumed HFCS in common foods and that this caused her to develop Type 2 diabetes. She sought compensation from the defendants based on negligence, gross negligence, strict products liability and failure to warn of the danger of a product. She relied on the doctrine of market-share liability, whereby a defendant can be presumed liable for a plaintiff’s injury to the extent of its share of the relevant market**.

The defendants’ position was that the plaintiff could neither connect her condition to HFCS, nor to any particular defendant. It was also contended that Federal food-additive laws pre-empted her claim. The defendants applied to dismiss the claim.

Judicial notice was taken that type 2 diabetes could be caused by a number of factors including diet, exercise (or lack thereof) and family history. It was common ground that the law of the state of New York applied to the claim.

Held, dismissing the plaintiff’s claim,

(1) The plaintiff had failed to state a plausible ground for relief and therefore the claim failed.

(2) An implausible claim ought not be allowed to proceed on the basis that may be validated or undermined through discovery.

Ashcroft v Iqbal, 556 US 662 (2009) and Bell Atl. Corp. v Twombly, 550 US 544 (2007), followed.
Pelman v McDonald’s Corp., 396 F.3d 508 (2d Cir., 2005), not followed.

(3) New York law does not allow “market share liability” to apply in cases where the manifestation of injury is not alleged to be far removed from the time of the allegedly harmful product’s consumption. It also does not allow the doctrine to apply where there is no signature injury conclusively linking the product to the harm, and certainly not where there is no clear public policy that it should apply.

Hamilton v Beretta USA Corp., 96 NY.2d 222, 750 NE.2d 1055 (2001) and Brenner v American Cyanamid Co., 263 AD.2d 165 (4th Dept, 1999), followed.

(4) New York law recognizes claims of strict liability in relation to design defects where it can be shown that: the product as designed presented a substantial risk of harm; it was feasible to design it in a safer manner; and the design defect was a substantial factor in causing injury. However, if the necessary redesigning causes the product to cease to exist, a design defect claim must fail.

DiBartolo v Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y., 2012) and Clinton v Brown & Williamson Holdings Inc., 498 F. Supp. 639 (S.D.N.Y., 2007), followed.


The Court’s judgment is available here.


* Archer-Daniels-Midland Co, Cargill Inc, Ingredion Inc, Penford Products Co, Tate & Lyle Ingredients Americas LLC and Roquette America Inc.
** Hymowitz v Eli Lilly & Co, 73 NY.2d 487; 539 NE.2d 1069 (1989).