Posted on by Stephen Tuck

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.

Advertisement

Heather ad March 2015

Posted on by Stephen Tuck

S.F. v Archer Daniels Midland Co (2014) H&FLR 2015-19

S.F. v Archer Daniels Midland Co, Cargill Inc, Ingredion Inc, Tate & Lyle Ingredients Americas LLC and Roquette America Inc (2014) H&FLR 2015-19

United States Court of Appeals (Second Circuit)

11 December 2014

Coram: Chin and Carney JJ, Sweet DJ

Appearing for the Plaintiff: John Michael Hayes (of Law Office of J. Michael Hayes)
Appearing for the First, Second, Third and Fourth Defendants (Archer, Cargill, Ingredion, and Tate): Stephen Victor D’Amore, Dan K. Webb, Scott P. Glauberman, Cornelius M. Murphy and William P. Ferranti (all of Winston & Strawn LLP) and Kevin M. Hogan (of Phillips Lytle LLP)
Appearing for the Fifth Defendant (Roquette): David Ray Adams (of Hurwitz & Fine PC) and Peter N Wang (of Foley & Lardner LLP)

Catchwords: New York – High Fructose Corn Syrup – diabetes – negligence – products liability – defective design – market share liability

Facts: The plaintiff was the father of SEF, an infant who had consumed high fructose corn syrup, of which the defendants were (and are) major manufacturers.  It was alleged that this product was a substanial factor in SEF’s development of Type 2 diabetes.  SF brought proceedings against the defendants based on negligence, gross negligence, strict products liability (in relation to defective design), and failure to warn.  The defendants sought and were granted summary dismissal of the claim: S.E.F. v Archer Daniels Midland Co (2014) H&FLR 2014-8.  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. In general, New York law views claims based on strict products liability and negligence to be functionally synonymous.  To state a claim for defective design in relation to a products liability (or, by extension, negligence) claim, the plaintiff must allege that the the product as designed posed a substantial risk of harm, that it was practicable to design the product more safely, and that the defective design was a substantial factor in causing injury.  The plaintiff’s claim failed because she did not allege a safer alternative design.

Lewis v Abbott Labs, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701 (S.D.N.Y. July 24, 2009); Voss v Black & Decker Manufacturing Co, 59 N.Y.2d 102 (1983); Goldin v Smith & Nephew Inc., No. 12 Civ. 9217(JPO), 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013).

2. Obiter, a complete ban on a product is not a permissible “safer alternative design” in a design defect case

Clinton v Brown & Williamson Holdings Inc., 498 F.Supp.2d 639 (S.D.N.Y. 2007) and Adamo v Brown & Williamson Tobacco Corp, 11 NY.3d 545 (2008), considered.

3. The case was not appropriate for analysis under the principle of “market share liability” for the substantially the same reasons as those outlined by the trial court.

Hymowitz v Eli Lilly & Co, 73 NY.2d 487 (1989), considered.

Judgment

The Court’s judgment is available here.

Advertisement

Logo-and-Coat-of-Arms-2

Posted on by Stephen Tuck

Boroondara City Council v Cattanach (2004) H&FLR 2015-17

Boroondara City Council v Ellen Cattanach (2004) H&FLR 2015-17

Court of Appeal (Victoria)

20 August 2004

Coram: Winneke P, Chernov JA and Bongiorno AJA

Appearing for the Appellant: Messrs A.G. Uren Q.C. and G.J. Moloney (instructed by Hunt & Hunt)
Appearing for the Respondent: Messrs D.A. Kendall Q.C. and David Martin (instructed by Hounslow & Associates)

Catchwords: Victoria – runner – defective pavement – trip and fall – injury – negligence

Facts: On the morning of 12 December 2000 the plaintiff was running recreationally along a footpath in the defendant’s municipality.  She ran with two small dogs which were at the end of a leash which she was holding.  As she passed in front of 39 Gordon Street, Balwyn, she tripped on an uneven section of footpath and fell, suffering significant injuries.

The occupant of 39 Gordon Street, Balwyn, had alerted the defendant to the damage to the footpath in 1995 and 1996.  In 1997 the defendant had removed a tree adjacent to the defect but took no steps to repair the footpath..  Within two weeks of the plaintiff’s fall repairs were effected; it was common ground that the repairs were inexpensive.

The plaintiff successfully sued the municipality for negligently failing to make repairs and was awarded damages:  Cattanach v Boroondara City Council (County Ct. of Vic., Judge Bourke, 20 June 2003, unreported).  The defendant appealed.

Held: Per curiam, allowing the appeal and dismissing the claim, that

1. A municipality is not under a duty to prevent or eliminate all dangers in footpaths.  In most cases, where a municipality knows or ought to know of such a danger, it is obliged to remedy it only if the danger would not be obvious to an ordinary, reasonable pedestrian taking proper care for their own safety.  The onus is on the plaintiff to establish that the hazard was not one which could have been avoided with the exercise of reasonable care.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Newcastle City Council v Lindsay (NSW Ct App., Giles and Tobias JJA, McLellan AJA, 22 June 2004, unreported); and Temora Shire Council v Stein (2004) 134 LGERA 407, considered.

2. Whether a defect in a footpath causes a reasonable foreseeability of harm, and whether the hazard is obvious, must be considered from the perspective of the ordinary, reasonable pedestrian keeping a proper lookout.  That is, from the perspective of a person walking.  Persons who are not walking but (for example) running, skating, cycling are required to pay greater attention to the state of the path given the greater difficulty in observing hazards when moving faster than a walk.  These users should not expect councils to maintain footpaths to a higher standard than that required for safe walking.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Judgment

The Court’s judgment is available here.

Advertisement

cyclistlaw 2015

Posted on by Stephen Tuck

Read v Keyfauver (2013) H&FLR 2015-15

Ross Read v Brittini Alexa Keyfauver (2013) H&FLR 2015-15

Arizona Court of Appeals

27 August 2013

Coram: Norris PJ, Gemmill and Brown JJ

Appearing for the Plaintiff: Mr Thomas Richardson and Ms Raechel Barrios (of Friedl Richardson) and Mr David Abney (of Knapp & Roberts)
Appearing for the Defendant: Messrs Joel DeCiancio and Christopher Robbins (of DeCiancio Robbins) and Ms Diane Lucas and Mr Michael Ferraro (of Diane M Lucas PC)

Catchwords: Arizona – police officer – rescue – negligence – firemans rule

Facts: The plaintiff was a police officer.  While issuing a ticket to a motorist on Interstate Highway 17, he saw a vehicle driven by the defendant go out of control and roll, coming to rest on its roof.  The plaintiff ran to the vehicle and saw the defendant scratching at the window.  The plaintiff instructed her to cover her face, after which he kicked the window in, placed his foot on the door frame, extracted the defendant and placed her on the ground.  He administered first aid until paramedics arrived.  While extracting the defendant the plaintiff suffered a significant left knee injury.

The plaintiff sued the defendant on the basis that her negligent driving had led to his injury.  The defendant sought to have the claim dismissed based on the “fireman’s rule”, whereby injured emergency services workers cannot sue a person whose negligence has created the situation to which the worker was responding and suffered injury (1).  The trial court agreed and dismissed the claim: Read v Keyfauver (Maricopa Co. Super. Ct., Miles J., date unknown, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that

1. In general, an injured rescuer is entitled to claim damages from the person whose negligence created the need for rescue.  As a matter of legal policy, injury to a rescuer is taken to be a foreseeable consequence of the original negligence. (2)

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006), approved.

2. An exception to the rule, however, is that a rescuer cannot recover damages if they are performing their duties as a professional emergency services worker.  This includes firefighters and police officers.  Ultimately this rule is justified as a matter of public policy. (3)

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006); White v State, 220 Ariz. 42, 202 P.3d 507 (Ariz. Ct App., 2008); and Grable v Varela, 115 Ariz. 222, 564 P.2d 911 (Ariz. Ct App., 1977) approved.

3. The fireman’s rule does not apply to off-duty emergency services workers who voluntarily respond to an emergency.  The key to this exception is whether the worker is on the scene as a result of their on-duty obligations.  Because the plaintiff was on already on the scene as a result of his professional duties, he was covered by the fireman’s rule and unable to sue.

Espinoza v Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006)

Judgment

The Court’s judgment is available here.

========================================================

(1) The leading case on the point is Krauth v Geller, 157 A.2d 129 (N.J. 1960).
(2) Accord Videan v British Transport Commission [1963] 2 QB 650 (Eng. Ct App.) and Horsley v MacLaren [1972] SCR 441 (Can.)
(3) The rule does not have uniform jurisprudential support.  See Club Italia (Geelong) Inc v Ritchie, 3 VR 447 (Vic., 2001).

Advertisement

BABL ad 2015

Bay Area Bicycle Law

Posted on by Stephen Tuck

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.

Posted on by Stephen Tuck

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.

Posted on by Stephen Tuck

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.
========================================================
* 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)

Posted on by Stephen Tuck

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.

========================================================

* 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)

 

 

For your fitness needs in Southern California, call Heather Deaver Beachbody Coaching
For your fitness needs in Southern California, call Heather Deaver Beachbody Coaching
Posted on by Stephen Tuck

Phee v Gordon (2013) H&FLR 2014-46

Anthony Phee v James Gordon and Niddry Castle Golf Club (2013) H&FLR 2014-46

Inner House – Court of Session (Scotland)

14 March 2013

Coram: Lord Clarke, Lord Hodge and Lord Philip

Appearing for the First Defender and Reclaimer* (Gordon): Laurence Murphy QC (instructed by HBM Sayers (now BLM)
Appearing for the Second Defender and Reclaimer (Club): Graham Primrose QC and Alan Cowan (instructed by Simpson & Marwick)
Appearing for the Pursuer** and Respondent (Phee): Nicholas Ellis QC and Bryan Heaney (instructed by Lawford Kidd)

Catchwords: Scotland – golf – design of course – mis-hit golf ball – warning – injury – negligence – apportionment

Facts: On 10 August 2007 the pursuer, a novice golfer, was playing golf on a course operated by the second defender. The course was ‘tight’ and had a number of holes which crossed or were in close proximity to each other. Among other things, the path between sixth hole and the seventh tee ran along the edge of the 18th hole. A player on the 18th tee, looking to the 18th fairway, could see people walking on the path towards the seventh tee. The club did not require any minimum standard of skill of its players and did not provide warnings as to how to protect oneself from a mis-hit golf ball.

The pursuer was walking on the path between the sixth hole and the seventh tee when the first defender, a moderately experienced golfer, teed off from the 18th tee. He gave evidence that he aimed his shot slightly to the right of the normal target line from the tee to the centre of the normal target area on the fairway. He played a bad shot (a “duck hook”) in which the ball initially travelled straight and then swerved to the left. He and his companion shouted “fore”. Mr Phee responded by leaning forwards, placing his left hand in front of his face and looking for the origin of the ball. As he did so he was struck on the left side of his head, causing the loss of his left eye.

The pursuer brought proceedings against Gordon in negligence at common law and against the Club under the Occupiers Liability (Scotland) Act 1960, §2(1). The trial judge upheld the claim and apportioned liability 70% against Gordon and 30% against the Club: Phee v Gordon, 2011 GWD 38-786, 2011 Rep LR 108. The defenders appealed.

Held: Per curiam, allowing the first defender’s appeal in part –

1. The appeal points raised by the first defender were rejected. Obiter, that had the appeal court considered the matter de novo, it would have considered that the first defender’s failure to ensure that the pursuer was aware that he (Gordon) was about to tee off and were alert to the danger would have amounted to negligence.

2. The second defender was not entitled to assume that all users of the course were aware of the rules of golf or knew how to respond to a warning shout. It was not entitled to assume that all golfers would play in a safe manner at all times. Among other things, the danger could have been minimized at little cost with suitable warning signs on the 18th tee or on the path from the sixth green to the seventh tee.

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 (PC), followed.

3. The inner House of the Court of Session should only alter the trial judge’s apportionment of fault if the trial judge has manifestly and substantially erred. This was the case here, where the trial judge had not explained the basis for his apportionment and had overlooked evidence that the club’s failure to warn inexperienced players of dangers on the course. A more appropriate apportionment of fault was 20% to the first defender and 80% to the second.

McCusker v Saveheat Cavity Wall Insulation Ltd, 1987 SLT 24 and Boy Andrew (Owners) v St Rognvald (Owners), 1947 SC (HL) 70, followed

Judgment

The Court’s judgment is available here.

A further substantive appeal by the second defender was abandoned, although an appeal did proceed on the question of costs: Phee v Gordon [2014] CSIH 50

=========================

* Defendant and Appellant.
** Plaintiff

Posted on by Stephen Tuck

Estate of Shelmovitz v City of Tel Aviv (2014) H&FLR 2014-44

Estate of the late David Shelmovitz & Ors v City of Tel Aviv & Ors (2014) H&FLR 2014-44

Tel Aviv Magistrates Court (Israel)

23 July 2014

Coram: Klein J.

Appearing for the Plaintiffs: Not known
Appearing for the Defendants: Not known

Catchwords: Israel – half-marathon – dehydration – death – negligence – fitness to compete

Facts: In 2011 Mr David Shelmovitz competed in a half-marathon organized by the first defendant (City of Tel Aviv). The first defendant engaged the second defendant (Hands Promotional Marketing Ltd) to manage the event. The second defendant was insured by the third defendant (Harel Insurance Co. Ltd). Under the system set up by the defendants, race entrants were required to complete an online declaration that they were medically certified as fit to compete, but were not required to produce the certificate itself.  The deceased declared that he was certified fit, despite not being so.

During the race the 42-year-old Shelmovitz developed symptoms of heatstroke but continued to run. He collapsed and was hospitalized for heatstroke and dehydration. Some 38 minutes elapsed between when he collapsed and when he reached intensive care. Three days after collapsing he died in hospital from liver damage.

His family brought proceedings against the defendants. It was alleged that they had been negligent in not requiring production of a medical certificate, in allowing excessive delay before the deceased was taken to hospital, and in not having facilities available on the course to cool him directly after the collapse.

The defendants responded that medical certificates are not required in any jurisdiction to compete in a half-marathon, and would impose an unreasonable and excessive burden on race organizers. They contended that adequate care was provided after the deceased collapsed. They also contended that any negligence on their part had not caused harm to the defendant because there was no reason to consider that his doctor would not have certified him as fit to compete, and had previously run a similar distance in a gymnasium. They also alleged contributory negligence against the deceased.

Held: Upholding the claim, that –

1.  In order to establish negligence, the plaintiff must show that the defendant owed both a conceptual and a concrete duty of care, that the duty was breached, and the breach lead to the harm alleged. Given the relationship between the race organizers and the participants, and the competitive setting, such a duty existed. The defendants conceded that a concrete duty of care existed.

Vaknin v Bet Shemesh Local Council (1983) 37(i) P.D. 113, followed.

2.  There was a duty on the defendants to ensure race participants were in fact medically certified.  The defendants had breached that duty.  Requiring entrants to click the “I agree” button is not sufficient to bring to their awareness any risk to their health.

3. The defendants were negligent in not having available a means of cooling the deceased after his collapse, given that the cost of doing so was outweighed by the danger to a runner suffering heatstroke and dehydration*.

4. The defendants’ negligence was found on factual grounds to have lead to Mr Shelmovitz’s death. His Honour noted that the deceased’s running the same distance in a gym was not enough to conclude that he was fit to run in an outdoor event. Fault as between the defendants was apportioned 30% to the first defendant and 70% to the second and third defendants.

5. In assessing contributory negligence, the court must consider whether the plaintiff fell short of the actions of a reasonable person and (if so) to compare the actions of the plaintiff and defendant and assess what proportion of fault was borne by each. In the case, the deceased had been negligent by claiming falsely to have had a medical certificate and by continuing to run after developing symptoms of heatstroke. He was found to have contributed 30% to his own harm.

Alan Shore v State of Israel, IsrSC not (1) 299 and Levi Sternberg v Bnei Brak Municipality, IsrSC Meg (3) 343, applied.

6. His Honour assessed damages at NIS890,000 (US$257,591.62 / A$277,988).

Judgment

The court’s judgment is available here**.   Media reports suggest an appeal will be lodged.

===========================

* Cf Caledonian Collieries Ltd v Speirs, 97 CLR 202 (Austl., 1957)

** I have used a Google translation for the purposes of this report and (due to the sometimes questionable translation) have had to make some inferences as to meaning.  I have been assisted by reports in the Jerusalem Post of 29 July 2014, on reports here and here on the Israeli running website Shvoong, on this report on the News1 website and on this report on the ynet website