Earlier this year Pope Francis gave an address to the Italian Sports Centre. His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”. Recently the Supreme Court of Utah had to look at what this means in practice.
A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay. The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.
Nixon brought proceedings seeking damages in the Utah County District Court. Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player. Mr Nixon appealed.
The Supreme Court of Utah dismissed the Appeal. The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind. It expressed the relevant common law to be –
that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.
In the circumstances, a grant of summary judgment was appropriate.
Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.
Road hazards come in all shapes and sizes. Sometimes they take the form of an angry mob.
On 24 December 1972 Peter Moini was a passenger in a motor vehicle owned by the government of Papua New Guinea(PNG). The vehicle was driven by a government employee, Luke Rovin. On the Highlands Highway near the town of Goroka, Rovin’s driving caused the vehicle to hit and kill a child nameds Linda Sapulo. The vehicle ran off the road and turned over. In the ensuing riot the people of the area murdered Rovin and Moini in a “payback kiling”. Moini’s widow successfully sought damages from the government in the PNG National Court on the grounds that Rovin’s negligence had caused her husband’s death: Moini v The State [1977] PNGLR 39. The government appealed.
Countryside near Goroka, Papua New Guinea, in 1973 [NAA: B6295, 3511Q]Among the grounds of appeal presented to the Supreme Court of PNG was that there was no evidence that Moini’s death was foreseeable. The Court rejected this argument. Prentice CJ strikingly observed that –
In many parts of Papua New Guinea the payback is becoming a thing of the past. But it is indeed a matter of notoriety that inspires dismay, that some 40 years of government administration in the Highlands, including criminal sanctions, insurance, and special provisions for automatic compensation to tribal non-dependent relatives, have not yet removed among Highlanders the instant reaction towards payback for tribal loss of blood or death. … It must be known to all driving members of the community that even in Port Moresby, as a matter of prudence, one does not stop after a motor vehicle accident … but proceeds straight to the nearest police station — in some districts even to seek sanctuary for oneself against payback, despite completely blameless behaviour.
As a result, “a reasonable man in Rovin’s position would reasonably have foreseen the killing of Moini and/or himself as the likely consequence of his killing of the child and overturning of his vehicle”.
Mrs Carstein left behind a husband and thirteen children. Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan). He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928. Sections 15 and 16 of the Act relevantly provided that
15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.
16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …
Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”. George Carstein applied to strike out that part of the defence.
Ruling
The application was ruled on by Gavan Duffy J. His Honour ordered that the relevant parts of the defence be struck out. He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case. If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable. It followed that the negligence of either George or Alfred Carstein was simply irrelevant.
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 (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 –
A undertakes to perform services necessary for B’s protection
A fails to exercise reasonable care in performing those services; and either –
B relied upon A’s performance, or
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.
Maybe the railway needed a sign. Something like “Warning: this train may seriously damage your health”.
Ja’Lin Williams was 17 years old when he went with some friends to Whihala Beach in Whiting, Indiana. The group was approached by a police officer who told them they were trespassing and would have to leave. They fled on foot across a set of railway tracks as a train approached. Subsequent video footage showed that the train’s horn and bells were sounding, its lights were on, and that warning lights on surrounding gates were also flashing. Despite this, Williams ran into the path of the train and was struck. He sought compensation from the railway. He and his friends stated that they had neither seen flashing lights nor heard warning bells.
(a) In an action based on fault that is brought against:
(1) one (1) defendant; or
(2) two (2) or more defendants who may be treated as a single party;
the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.
The railway sought and was granted summary dismissal of the claim by the US District Court. Mr Williams appealed.
The US Seventh Circuit Court of Appeals dismissed the appeal. On the video evidence, Williams had had ample warning of the trains approach but had ignored it. Moreover, the Court noted that in Indiana law a train operator has no duty to slow a train on seeing a person crossing, but may generally presume the person will take steps to avoid injury: Ohio & M Railway Co v Walker, 15 NE 234 (Ind. 1888) and New York Cent R Co v Casey, 14 NE2d 714 (Ind. 1938). As a result, the Court of Appeals agreed with the District Court’s conclusion that no reasonable fact-finder could conclude that Williams was 50% or less at fault.
Sports coaches don’t always have the world’s happiest job. Every coach from the New England Patriots down to the Bullamakanka Netball Club gets castigated by supporters when the team fails to win. And when things go really bad off the sporting field, every decision that lead there may be scrutinised as well.
On 27 December 2014 Kristen Galuardi, a pupil of Trumbull High School in Connecticutt, was engaged in a practice at the Fairfield Gymnastics and Cheerleading Academy. It was alleged that the team’s director made two critical decisions in setting up the training. First, one of the team was permitted to train in socks without shoes. Second, the team were practising without spotters. When Galuardi was thrown into the air, her team-mates attempted to catch her. The team-mate wearing socks slipped and Galuardi hit the floor, suffering injuries. She lost consciousness, but (it was alleged) the manager declined to seek medical assistance for her.
Galuardi sued for her injuries. The case settled at the door of the Court for an undisclosed sum. It is always difficult to draw lessons from a case that resolves by agreement rather than judgment; nevertheless, a few points can be made –
The fact that an activity is sporting rather than (say) work-related does not reduce the standard of care on administrators: Wilson v O’Gorman High School (2008).
Coaches should not increase the risks inherent in sports participation, at least outside the range of the ordinary activity involved in teaching or coaching the sport: Honeycutt v Meridian Sports Club LLC (2014).
An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).
Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”
Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy. The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute. That section relevantly says –
If —
(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and
(b) it appears to the first court that …
(ii) having regard to—
(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and
(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
The defendant pointed out that –
The plaintiffs were residents of NSW.
The defendant was a creation of NSW law with no presence in the ACT.
The alleged negligence occurred in NSW.
The applicable law was that of NSW.
The defendant’s likely witnesses were based in NSW.
The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.
Despite this, the Court declined to transfer the matter. The test was to balance the competing interests to establish what the interests of justice required. It noted that –
The plaintiffs’ home in Wagga Wagga was much closer to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
The lead plaintiff was aged six years, severely disabled and required constant care.
The estimated dutation of the trial was three weeks.
At least some of the plaintiffs’ witnesses were based in Canberra.
It was possible the matter would be heard sooner in Canberra than in Sydney.
Her Honour’s concluding observation was particularly pointed:
it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.
The Court dismissed the application to transfer the case to the Supreme Court of NSW.
On 12 December 2008 Apple Inc. sought a patent over a smartphone lockout mechanism. Despite having such a patent, it did not implement it in the iPhone 5. On 30 April 2014 Ashley Kubiak was driving in Texas when her iPhone 5 received a text message. She looked down to read it. The distraction caused her to collide with another vehicle, killing two people and catastrophically injuring a third. Kubiak was convicted of criminally negligent homicide and sentenced to 180 days imprisonment with five years probation: State v Kubiak, Tyler Morning Paper, 12 August 2014 (4th Texas Jud’l Ct, 2014).
The accident victims and their representatives sued Apple, alleging that it had negligently failed to design the lockout device into the iPhone. Specifically they argued that receiving a text message causes “an unconscious and automatic, neurobiological compulsion to engage in texting behavior.” Apple successfully applied to dismiss the claim: Meador v Apple Inc (US Dist. Ct., Schroeder J, 17 August 2017, unreported). The plaintiffs appealed.
The US 5th Circuit Court of Appeals dismissed the appeal. The Court noted that it was to apply the law of the forum state as well as that court be determined, without adopting any novel approaches to the law. In this case the key issue was whether the lack of a lockout device had caused the accident. That is, would common, practical experience consider it to be a substantial factor. The Court noted that
No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge … no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.
As a result, for the Court to find that Texas law would view a smartphone’s effect on a user as a substantial factor in that person’s wrong would be an impermissible innovation of state law.
On the weekend of 13-14 September 2014, 16 year old Alex Hayes entered a construction site in Kentucky with some friends. They consumed whiskey and marijuana. A little after 1am they began to leave. Alex climbed onto a piece of equipment, started it and began to drive it up a floodwall. The machine tipped over and caused severe injuries to his right leg. Hayes’ parents sought compensation on his behalf from the the property developer and its construction contractor.
The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.
The rigour of this provision is moderated by Kentucky’s doctrine of “attractive nuisance”. This doctrine says that a landowner is liable for harm to children trespassing on land, if that harm is caused by an artificial condition on the land and if –
The place is one where the possessor knows children are likely to trespass;
The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
The children, because of their youth, do not appreciate the danger;
The value of the condition for the possessor and the cost of eliminating the risk are slight relative to the risk to the children; and
The possessor fails to exercise reasonable care to eliminate the danger or protect the children.
The Supreme Court dismissed the appeal. It was noted that Alex was licensed to drive a car, that he was an average high school student, and that earlier in the evening he had taken steps to prevent one of his friends injuring himself on a machine.
Although we no longer adhere to a strict age cutoff, e.g., children under fourteen years of age, a child must be unable to appreciate the risk involved in intermeddling with the condition. The evidence in this case clearly demonstrates that Alex not only was capable of appreciating but also in fact did appreciate the risk of operating a piece of heavy machinery.
As a result, Alex was not entitled to rely on the attractive nuisance doctrine.
It’s amazing how much you can get wrong without legally causing injury. Especially if you’re a railway.
On 3 November 2011 a keen runner in Northfield Falls, Vermont, USA, was driving around mapping out running routes. He drove down Slaughterhouse Road with the windows of his truck up and the music playing. Slaughterhouse Road crosses a railway line. As the driver crossed that rail line he was struck by a loaded freight train, suffering severe injuries. He sued the railway operator alleging, inter alia, that it had failed to provide adequate lines of sight for motorists to see oncoming trains and to install adequate warning devices.
At trial a jury in the Chittenden Superior Court found that there had been no negligence by the railway. The plaintiff appealed on a number of grounds. The two most interesting were that –
The trial court erred by preventing him arguing that the defendant was liable based on the absence of a “crossbuck” sign on the right hand side of the road and of an ‘advance warning’ sign.
The court erred by refusing to direct a verdict finding liability as a matter of law due to breach of a safety statute.
The Supreme Court of Vermont dismissed the appeal. On the first point it found that no reasonable jury could have found that the absence of a crossbuck sign on the right caused or contributed to the collision. That is, such a sign would not have given approaching motorists any warning greater than that already provided by the crossbuck sign on the left. The Court pointed out that –
Although causation is normally left for the jury to determine, “it may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.”
For much the same reason the Court also concluded that the trial court had been right to reject the argument relating to the advance warning sign.
On the second point, it was assumed that the plaintiff was correct in his assertion that the railway had breached Vermont statute 5 VSA §3673 which at the relevant time stated
A person or corporation operating a railroad in this State shall cause all trees, shrubs, and bushes to be destroyed at reasonable times within the surveyed boundaries of their lands, for a distance of 80 rods [about a quarter-mile] in each direction from all public grade crossings.
The plaintiff had sought (and the trial court refused to grant) a directed verdict as to “the vegetation violation of the Vermont statute”. The Supreme Court agreed with the trial court. It noted that even when a safety code breach is established, evidence that a defendant had acted as a reasonably prudent person would rebut the presumption of negligence arising from the breach. It was open to the jury to find that the railway had acted with reasonable care. Furthermore, even if negligence had been made out, the plaintiff still needed to establish causation which he had failed to do.
Stephen the Lawyer 