Spirit Airlines, Weightlifting and Mail

My co-worker and good friend Sarah has recently completed a trip to the United States.  Unfortunately, thanks to the sterling work of Spirit Airlines, she returned with only the clothes she was wearing and without her weightlifting gear.  She is, not unreasonably, just a little miffed.

Sorch

Long time readers may recall that I posted a note on Nicol v Air Maroc, a decision from the High Court of Sierra Leone in which an airline’s liability for the costs of lost luggage was explored.  No doubt, if all else fails, suitable litigation under the Warsaw Convention will set things to rights.  But this got me thinking: “I’m an old-fashioned sort of solicitor.  Is there an old-school way of dealing with this?”

There is, and it comes to us out of a foggy night on 5 April 1900, just off of Table Bay in South Africa.  The SS Winkfield, a troopship, collided with SS Mexican, a ship carrying passengers, freight and mail.  No lives were lost, but a quantity of mail went down with the Mexican.

SS Mexican
SS Mexican (Image from here)

Inevitably, litigation began for the value of the lost mail, lead by the Postmaster-General as bailee of the items.  Damages were agreed at £32,514, 17s 10d (current value £3,925,832.83 / AU$7,439,488.97 / US$5,052,959.06).  At first instance the claim was rejected on the grounds that, as bailee, the Postmaster had no liability for loss of the mail and therefore no standing to sue.  The Postmaster appealed.

Cockerham, Charles, active c.1900-1935; SS 'Winkfield' Bound for South Africa with Troops, July 1890
SS Winkfield (Image from here)

The English Court of Appeal (Collins MR, Stirling and Mathew LJJ) stated decisively that the Postmaster, being possessor of the mails, had a perfect right to sue for their loss.

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession is title.  The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped.

The Court also made an observation which would be on point for my friend Sarah if Spirit Airlines find they cannot come up with her belongings in a timely way.

[T]he obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned.

Loss of baggage by an airline being determined by case law from before the age of flight?  Sounds like fun to me!

The Winkfield [1902] P 42

Too soon?

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

Sherri_Rasmussen
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.

Courtside Coffee

Because it’s Friday, it’s a good time for a lighter post.

I was in the County Court a couple of days this week in a workers compensation matter. The morning of the first day was rather busy. How busy? It was 1pm when I finally had my first cup of coffee of the day (headaches were starting).

County Court, Melbourne
County Court, Melbourne

There was, however, a consolation. The forecourt of the County Court contains the Octane Coffee stand. It doesn’t look like much, but the coffee is always first class and served quickly. The hot chocolate is a particular highlight: some of the best I’ve ever had in Melbourne.

Octane Coffee, Melbourne
Octane Espresso, Melbourne

My dog-walking, real-estating friend Allie recently blogged about her delight at being able to drink Dunkin’ Donuts coffee again.  Anyway, it crossed my mind that most lawyers probably have a preferred courtside pit stop, where they can get a strong coffee or a soothing cup of tea for a stressed client. So lawyers, tell us what your court area haven is?

Gatecrasher gets crashed!

In case you’re wondering, simply being in uniform won’t get you immunity.

Seal_of_the_Honolulu_Police_Department

On 31 December 2009 Dillon Bracken gatecrashed a party at a hotel in Honolulu.  Kinchung Chung, a police officer, had been hired by the venue as a “special duty officer”.  While he wore his uniform and this work was approved by the police department, he was paid by the hotel directly and was considered to be off-duty from the police force.  Chung and a number of bouncers confronted Bracken.  A scuffle broke out between Bracken and the bouncers (not including Chung) in which Bracken was injured.

Bracken sued Chung for violating his rights to due process by failing to intervene and stop the alleged assault by the bouncers.

Every person who, under color of any [law] … of any State … subjects, or causes to be subjected, any … person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured … for redress: 42 USC §1983.

The US District Court dismissed the claim, finding that Chung was immune from suit and the claim in any event lacked merit.  Bracken appealed.

The appeal was upheld by the Ninth Circuit Court of Appeals.  It was accepted that Chung acted under colour of State law by invoking the authority of his uniform and badge.  However, he was not entitled to immunity from suit: There was no tradition of immunity for off-duty police acting as private security guards.  He was not carrying out public duties or doing the work of government [although one may wonder, then, why the Honolulu Police Department allowed “special duty” policing in the first place].

The Court of Appeal also considered that Bracken’s claim had merit.  While in general the State was not liable for failing to prevent a person coming to harm, a police officer was obliged to intervene where he had placed a person in danger.  Here, although it was foreseeable that Bracken would be injured by the bouncers, Chung had prevented him leaving.

The case was returned to the District Court for further proceedings.

Bracken v Chung (2018), Ninth Circuit Court of Appeals, 23 August 2017

Who are you working for?

Frank Benedetti was employed by Schlumberger Technology Corporation. Pursuant to that employment he worked on an oil well owned and operated by Cimarex Energy Company. On 9 December 2013 he was injured in a work accident. He sued Cimarex in the Canadian County District Court.

oilfield
Image from here

Cimarex as well operator was considered to be immune from suit. The Oklahoma Workers Compensation Code [85 OS 2011 §302(A) and (H)] relevantly provided that –

The liability prescribed in this act shall be exclusive and in place of all other liability of the employer … at common law … for such injury … to the employee … except … where the employer has failed to secure the payment of compensation for the injured employee.

For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well … shall be deemed to be an … employer for services performed at a drill site or location with respect to injured … workers whose immediate employer was hired by such operator or owner at the time of such injury.

The District Court summarily dismissed Benedetti’s claim. His appeal to the Court of Civil Appeals was dismissed. He appealed to the Supreme Court of Oklahoma.

The Supreme Court upheld his appeal. Following Strickland v Stephens Production Co., 2018 OK 6 it found that paragraph (H) was an unconstitutional “special law” breaching Art. 5 §59 of the Oklahoma Constitution

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

The case was remanded for further proceedings in the District Court.

Benedetti v Cimarex Energy Co, 2001 OK 21

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

Nothing to See Here

Interesting decision out of Texas on the subject of video surveillance.

surveillance
Image from here

 

A worker suffered a back injury while working on an oil rig in January 2008.  He sued his employer under the Jones Act alleging negligence and supply of an unseaworthy vessel.  Four years and two spinal surgeries later he was placed under surveillance by his employer and filmed for about an hour performing a range of outdoor activities.

At trial the Harris County District Court considered the footage inadmissible without viewing it.  The jury found for the plaintiff.  On appeal the decision to exclude the footage was upheld. The employer appealed to the Supreme Court of Texas.

The Supreme Court found that the trial judge had erred.  A trial court could not properly exercise its discretion to exclude without viewing it.

We hold that, as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue. We recognize circumstances might arise where viewing is unnecessary or extremely onerous. For example, “[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice . . . substantially outweighs any probative value the evidence might have.” Additionally, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition. Exigencies of trial, moreover, could make it difficult to find time to view a late-offered video, especially if the video is lengthy. The parties could potentially address such timing issues by submitting representative excerpts for the trial court’s review. In any event, trial courts should “undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility.” Exceptions should be few and far between.

A new trial was ordered.

Diamond Offshore Services Ltd v Williams (Supreme Court of Texas, 2 March 2018)

Bringing a Lawbook to a Gunfight

An interesting case came out of the US Supreme Court ten days ago.  In May 2010 three officers of the University of Arizona Police Department responded to a callout regarding a woman [Amy Hughes] acting erratically (hacking a tree with a knife).  On scene they found the woman’s housemate [Sharon Chadwick] on the other side of a chainlink fence.  Hughes came and stood about six feet from her, still holding the knife.  She ignored officers’ demands to drop the weapon and was shot four times by officer Andrew Kisela.

U AZ Police

Hughes sued Kisela on the basis that he had used excessive force, violating her Fourth Amendment rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The US District Court for Arizona summarily dismissed the claim.  The Ninth Circuit Court of Appeals reversed the District Court and remanded the matter for further proceedings.  The defendant appealed to the US Supreme Court.

The Supreme Court expressed doubt that Hughes’ rights had been violated but in any case bypassed the question.  It concluded that Kisela was immune from being sued.  In essence, a police officer will be immune from suit where their action did not violate clearly established rights of which a reasonable person would have known.  The existence of the right must be well established and should not be defined at a very general level: defining a right very generally would empty the immunity of value.

Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for trial on the question of reasonableness.

On the undisputed facts it was not obvious that a competent police officer would have known that shooting Hughes to protect Chadwick would breach Hughes’ Fourth Amendment rights.

Kisela v Hughes, 584 US ___ (2018)