Posted on by Stephen Tuck

What did police not see?

An interesting case was mentioned on the ABA Journal’s website recently.  The case concerns litigation against the US Federal government for failing to identify that the perpetrator of the Charlestown massacre was not able to purchase a firearm.

The article notes that

A federal appeals court has ruled that the federal government can be sued for failing to uncover information about the Charleston, South Carolina, church shooter during a background check that would have barred him from being able to buy a gun from a licensed dealer before the mass shooting. …

The review was run by the FBI’s National Instant Criminal Background Check System. … The government reviewer contacted the wrong police department for records of Roof’s arrest because of a misstatement in a government database. …

If the government reviewer had been using discretion and decided against obtaining the arrest report, the government would be immune, the 4th Circuit said. But the examiner instead was required to get the report from the arresting agency under internal operating procedures that remove any discretion from reviewers. “The government can claim no immunity in these circumstances,” the 4th Circuit said.

This poses an interesting light on the broad principle that the state has only a limited duty to detect and prevent crime.  The law has traditionally been unwilling to be an armchair-quarterback to decisions made by police in exercising their discretion as to discharging their role: see Hill v Chief Constable of West Yorkshire [1989] AC 53.  In this case, however, there was expressly no discretion and so the failure by the reviewer would have lacked a common law immunity.  As a result, one can infer that the more prescriptive a government (or police force) is about its members’ duties, the less likely it is that a court may need to adopt the wide approach to liability taken by (say) South African law in Van Eeden v Minister of Safety and Security, 2003 (1) SA 389 (SCA).

Posted on by Stephen Tuck

Towelie is not a role model

South Park devotees will no doubt remember the character Towelie, a drug-addicted towel with a surprisingly annoying personality.  One of his scenes was essentially a model for a recent case in Texas (and after you’ve watched it, maybe watch a few other cartoons, because today’s casenote is kind of depressing).

On 10-11 April 2016 Karalee Williams made nine visits to a Walmart store in Houston, Texas.  Each time she bought tins of dust removing spray.  She bought at least sixty tins of spray, each time returning to her car in the parking lot to inhale it.  On her second visit to the store she was noticed to have soiled herself and to have vomit in her hair.  On her third visit she was naked from the waist down.  The staff gave her a sundress and otherwise continued to serve her.  On the morning of 12 April 2016 she died of an overdose of Difluoroethane inhaled from the tins.

Karalee Williams
Karalee Williams (Image from Facebook).  Personal injury lawyers – plaintiff and defendant – can get awfully jaded.  Sometimes we forget that real people are at the heart of what we do. Photos remind us that every litigant is a person who ended up somewhere they never wanted to be.

Williams mother sued the store operator and a number of other parties.  Proceedings were commenced in the 11th Harris County District Court.  They were removed to the US District Court for the Southern District of Texas.  The plaintiff, represented by Jeffrey Steidley, relied on a number of grounds to establish negligence.  Several grounds relied on Texan statutes, but one in particular may be of general interest to common lawyers: the plaintiff alleged that the defendant’s employees had assumed (and breached) a duty when they took steps to assist the deceased by providing her with a towel and a sundress.

Walmart (represented by Daw & Ray LLP) sought dismissal of the claim, which was granted.  The plaintiff appealed to the Fifth Circuit Court of Appeals.

The appeal was dismissed.  Concerning the allegation of negligence mentioned above, the Court agreed that a duty to use reasonable care could arise where –

  1. A undertakes to perform services necessary for B’s protection
  2. A fails to exercise reasonable care in performing those services; and either –
  3. B relied upon A’s performance, or
  4. A’s performance increased B’s risk of harm.

Here there was  no allegation that Walmart’s staff had caused Williams to rely on them or that they had increased her risk of harm.  As a result no duty of care arose.

Allen v Walmart Stores LLC, 907 F.3d 170 (5th Cir., 2018)

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)

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

Posted on by Stephen Tuck

What did you know?

A constantly vexing question for plaintiff lawyers is when a person’s liability for another’s drunkenness kicks in.

On June 2011 four young men threw a party in Boulder, Colorado. It must have been a good one, because it attracted many people beyond the invitees. One such person was 20-year-old Hank Sieck, who attended with Jared Przekurat. They were friends of a friend of a friend of the organisers (no, really).  Alcohol was served and Sieck became drunk. He and Przekurat left in the latter’s car, with Sieck driving. Inevitably an accident occurred, causing Prezkurat severe brain injuries.

SIECK-157091
Hank Sieck (Image from here)

Sieck was imprisoned for four years and ordered to pay restitution to Przekurat of $833,194.10: People v Sieck, 351 P.3d 502 (Colo. Ct App., 2014). Prezkurat sued the party organisers. Colorado’s Dram Shop Act (12-47-801, CRS (2017)) provides at (4)(a)(I) that

No social host who furnishes any alcohol beverage is civilly liable to any injured individual … for any injury to such individual …, because of the intoxication of any person due to the consumption of such alcohol beverages, except when … It is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.

The District Court summarily dismisses the claim, finding that a social host must actually know a guest is underage to sustain dram shop liability. The Court of appeal agreed: Przekurat v Torres, 2016 COA 177. Przekurat appealed to the Supreme Court of Colorado.

The Supreme Court agreed with the District Court. It found, firstly, that the requirement to act knowingly applied both to provision of a place to drink and also the (under)age of the drinker.

[T]he provision of a place to provide for consumption of alcohol must be done knowingly, as it is difficult to conceive how a social host could unknowingly provide a place for alcohol consumption and still be considered a social host. To conclude that “knowingly” only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.

The next question for the Court was whether the host must actually know the drinker’s age or whether constructive knowledge would suffice. Specific knowledge was found to be required under the norms of statutory construction –

Affording “knowingly” its “plain and ordinary meaning,”…, we conclude that actual knowledge is required. When the General Assembly imposes a constructive knowledge requirement, it typically provides that a person “should have known” of a particular thing. … Statutory interpretation in Colorado has consistently construed the words “know” or “knowingly” without that qualifying “should have known” to require actual knowledge.

Przekurat’s claim was dismissed.

Przekurat v Torres, 2018 CO 69

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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)

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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.

GIFSec.com
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)

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Don’t wait!

Lorenza Kopacz was 80 years old when she came to the emergency room at Banner Health in Arizona. She complained of chest heaviness and shortness of breath. One of the facility’s doctors examined her and recommended cardiac catheterisation. The procedure was performed in 23 December 2013 by way of an incision in the right groin allowing access to the femoral artery.

Mrs Kopacz did not enjoy a good result. Severe pain, bleeding and swelling of the groin followed, spiralling into cardiogenic shock, atrial fibrillation, severe sepsis and hypotension. There was a succession of hospital care and rehabilitation. Her condition stabilised between March and July 2014.

banner_health
Image from here

On 21 January 2016 Mrs Kopacz issued proceedings in negligence against the hospital in Maricopa County Superior Court. the hospital sought dismissal of the claim on limitations grounds. The application was granted: Kopacz v Banner Health (Maricopa Co. Sup. Ct, Brnovich J, 2017, unreported). Kopacz appealed.

The appeal was dismissed. Arizona law provided that a medical negligence claim accrued when the plaintiff had reason to connect their injury with some causative factor in a way that would put a reasonable person on notice to investigate whether the injury may be someone’s fault. Once that intellectual threshold was crossed, the plaintiff had two years to commence a claim.  Mrs Kopacz knew or should have known of a possible claim by 27 December 2013. She responded that her medical condition prevented her understanding what had happened and its cause. While Arizona law allowed for a limitation period to be delayed while a claimant was “of unsound mind”, hard evidence of incapacity was required. The plaintiff’s self-report was insufficient, even when supported by an affidavit from a family member. Accordingly, Mrs Kopacz had issued out of time.

Kopacz v Banner Health (Arizona Court of Appeals, 5 July 2018)

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A tragedy in Paradise

Road accident lawyers sometimes fall into the lazy trap of thinking that because there’s a problem in a vehicle, negligence is a given.  A recent case from the Pacific islands offers a reminder about thinking through causation.

On 12 September 2011, a truck driven by a member of Kiribati Protestant Church on church business hit a young girl who ran across the road.  The accident caused her fatal injuries.  Because of rain, the vehicle was travelling at 20-30 kilometres (12-18 miles) an hour.  The uncontested evidence of the driver was that the child had run in front of the vehicle suddenly.  The police investigation found that the truck’s breaks were defective and had to be pumped to operate.

So Tarawa
South Tarawa, Kiribati (Image from here)

The defendant was charged with dangerous driving causing death: Traffic Act 2002 (Kiribati), §31 –

The driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road.

Penalty:

… (c) for an offence causing death – a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

He was acquitted on the basis that (inter alia) there was no evidence that the defective brakes had contributed to the accident.  There had been no time to brake before impact: Republic v Mikaere (Zehurikize J, High Court of Kiribati, 10 November 2016, unreported).

An appeal was lodged on the basis that the verdict was against the weight of evidence, in particular the “finding that the evidence did not establish that the respondent had driven in a dangerous manner by driving when he knew the brakes to be defective”.

The Kiribati Court of Appeal noted the trial judge’s finding that the deceased had run suddenly in front of the truck and that –

The defective brakes played no part in the accident. The respondent had no opportunity to apply the brakes until after impact. We note that when he did so he stopped 10 metres further on, confirming that he was driving at a moderate speed and was able to brake effectively.

The appeal was dismissed.

Attorney-General v Mikaere (Kiribati Court of Appeal, Blanchard, Handley and Hansen JJA, 16 August 2017, unreported)

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What do you mean “dangerous”?

Tewksbury, Massachusetts isn’t a big place. It still generated an interesting appeal on public liability though.

On 20 January 2012 Eileen Potvin and her boyfriend stopped to get fuel at a service station in Tewksbury. While her boyfriend was paying for the fuel she went looking for a squeegee to clean the windshield. She began to walk towards the car backwards (for reasons which were not explained). The heel of her shoe caught in a groove in the paving. She fell and was injured. The groove was part of a legally mandated barrier designed to catch fuel spills.

1907 Andover Street, Tewksbury MA (Image from here)

Potvin sued the operator of the service station. She alleged that the groove was a hazardous condition of the premises and that the operator had failed to warn of them.  She conceded however that they were open and obvious to the average poerson.  The defendant sought summary dismissal of the claim, which was granted by the US District Court for Massachusetts: Potvin v Speedway LLC, 264 F. Supp 3d 337. Potvin appealed.

The Court of Appeals for the First Circuit noted that it was common ground that  Massachusetts law applied. The Court accepted that a landowner generally owes a duty to protect lawful visitors from dangerous conditions. In practical terms, however, they need only maintain the premises to a standard that would be safe to a person exercising the minimum care required in the circumstances.

Under Massachusetts law, property owners are relieved of any duty to warn of open and obvious conditions, including those that present open and obvious dangers, since it is logical to expect that a lawful visitor exercising reasonable care for her own safety would not fall victim to such “blatant hazards.”

Because the grooves were open and obvious, the defendant was not obliged to warn visitors about them.

The plaintiff also contended that the defendant had a duty to remedy the danger presented by the grooves, on the basis that there was a heightened reason to foresee that even though the hazard was obvious an open, it presented a danger likely to cause harm.  This argument was also rejected.  She suggested signs and brightly coloured paints as remedies.  The court retorted that –

warnings are not remedies. … [A]llowing a plaintiff to conflate warnings with remedies would frustrate settled doctrine. … Where, as here, the plaintiff does not propose a feasible remedy, a property owner cannot be held to answer for a putative duty to remedy.

The appeal was dismissed

Potvin v Speedway LLC (2018) US First Circuit Court of Appeals, 4 June 2018

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Coppinger v Gray (2015) H&FLR 2015-27

Brendan Coppinger and Nessa Coppinger v Edwin Gray and Mozella Johnson (2015) H&FLR 2015-27

Superior Court of the District of Columbia

2 March 2015

Coram: Beck J

Appearing for the Plaintiffs: Eric Klein (of Beveridge & Diamond)
Appearing for the Defendants: Self-represented

Catchwords: District of Columbia – neighbour – smoking – tobacco – negligence – nuisance – trespass – injunction

Facts: The first defendant (Gray) lived in a Washington DC house owned by the second defendant (Johnson).  The house had been purchased by their mother in 1964.  In mid-2014 the plaintiffs and their infant daughter moved into the adjoining house.  The first defendant conceded that from time to time he would smoke tobacco and marijuana and burn incense.  The plaintiffs alleged that this caused their house to smell of (or become filled by) smoke, causing loss of amenity and a risk of personal harm.

There was significant evidence that there were cracks in the wall shared by the houses, that the defendants’ chimney was decaying, and that these factors were causing smoke to enter the plaintiffs’ house. The defendants alleged that shoddy renovations to the plaintiffs’ property had left the wall inadequately sealed.

Discussions between the parties did not resolve the matter and the plaintiffs issued proceedings in negligence, nuisance and trespass and claiming damages.  An interlocutory injunction on the defendant smoking in the premises was sought by the plaintiffs.

Held: Granting the injunction, that the defendant be forbidden from smoking any substance whatsoever inside his home.  Her Honour further ordered him to refuse to allow any person to reenter the house who smoked in breach of the order.  The order was to remain in force until further order or until the matter was finally heard.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Washington Post of 10 March 2015 (here and here), by radio station WTOP and television station WJLA-TV.

Comment: This matter invites comparison with the German case of Proprietor v Adolfs (2014) H&FLR 2014-36. One might infer that the law will be particularly receptive to claims of loss of amenity due to smoking, particularly in light of other cases which suggest tobacco use is coming to be considered a social burden (for example, Police v Dumughn (2002) H&FLR 2015-23 and State v Native Wholesale Supply (2014) H&FLR 2014-32).