Ignoring the Train

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.

train by trees against blue sky
Photo by RAJAT JAIN on Pexels.com

The Indiana Comparative Fault Act provides that –

(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.

Williams v Norfolk Southern Corporation (7th Cir., 19 March 2019)

When cheerleading goes bad

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.

group of cheerleader on green field
Photo by Pixabay on Pexels.com

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).

Note: this report is largely based on the report in the Trumbull Times.

Galuardi v Town of Trumbull and Gymnastics & Cheerleading Academy (Superior Court of Connecticutt, 2019)

Welcome to Canberra

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”

ACT welcome
Image from here

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.

Bailey-Brown v Southern New South Wales Local Health Authority [2019] ACTSC 78

No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

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).

Grim Reaper phone
Image from here

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.

Meador v Apple Inc., 911 F.3d 260 (5th Cir. 2018)

Did anyone subpoena Bob the Builder?

Watching Bob the Builder is not an adequate substitute for having a construction industry White Card.

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.

bob-the-builder-mini-playsets-assorted
This is not a training resource (Image from here)

It was common ground that Alex was trespassing at the time of the accident.

Kentucky statute law provides that [KY Rev Stat § 381.232 (2013)] –

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 –

  1. The place is one where the possessor knows children are likely to trespass;
  2. The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
  3. The children, because of their youth, do not appreciate the danger;
  4. 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
  5. The possessor fails to exercise reasonable care to eliminate the danger or protect the children.

The defendants sought summary dismissal of the claims which was granted: Hayes v DCI Properties – D KY LLC (Campbell Circuit Court, Judge Stine, 22 July 2016, unreported).  The plaintiffs appeal was dismissed: Hayes v DCI Properties – D KY LLC (Kentucky Court of Appeals, Combs, Lambert and Nickell JJ, 16 June 2017, unreported). The plaintiffs appealed to the Supreme Court of Kentucky.

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.

Hayes and Hayes v DCI Properties LLC, __ S.W.3d __ (KY, 13 December 2018)

What did you see (or not)?

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.

Ziniti Accident
Accident scene (Image: Barre-Montpelier Times Argus)

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 –

  1. 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.
  2. The court erred by refusing to direct a verdict finding liability as a matter of law due to breach of a safety statute.
Crossbuck
Crossbuck Sign (image from here)

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.

Slaughterhouse
Accident scene from driver’s view (Image: Google)

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.

Ziniti v New England Central Railroad Inc, 2019 VT 9

The challenges of maturity

When a worker is of mature years, a damages claim for work injuries can present particular challenges

country west
Image from here

Ms Schofield was aged in her mid-fifties.  She suffered a right knee injury while employed by a butcher.  At the time of her accident she was receiving average weekly earnings of around $375.00.

She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury.  The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –

If—
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …

It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss.  The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.

Judge Dyer noted that

Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.

She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely.  She was granted leave to sue for damages.

Schofield v Country West Gourmet Meat & Chicken Pty Ltd [2018] VCC 614

Who let the dogs out?

I have a pet theory that the period from 28 February 1991 to 10 September 2001 was “history’s long weekend”.  But despite the general laid-back feel of the era, some serious questions needed answering.  The Baha Men, for instance, asked –

Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?

We now know the answer.  And thanks to the Supreme Court of Vermont, we also know where the fault lay.

who-let-the-dogs-out-back-in-the-90s
Image from here

On 15 January 2016 the Flores family went to the home of the Pearo family. The Pearos has invited the Flores to let themselves in and left the door unlocked. As the Flores’ son opened the door, the Pearos’ three dogs (later claimed to be pit bulls) bolted from the house. The dogs ran up to passerby Eric Gross. They attacked his dog and grabbed the man’s arm, dislocating his shoulder.

Gross commenced proceedings in the Vermont Superior Court, alleging that the Pearos’ landlord and the Flores’ had negligently failed to control or restrain the dogs. The defendants sought summary dismissal of the case which was granted. Gross appealed.

The key question on appeal was whether either defendant owed a duty of care to protect third parties off the premises from harm caused by the Pearos’ dogs.  The Supreme Court of Vermont said no. The landlord had a duty to

… take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. … By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person’s injuries. … Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land.

The plaintiffs did not offer evidence that the landlord knew or should have known of a vicious tendency in the dogs.

The court accepted for the sake of argument that the Flores’ were the dogs’ keepers at the relevant time. Vermont law considered keepers to face the same standard of care as owners of dogs. That is, they are not liable for injuries to persons unless they have some reason to know the animal is a probable source of danger.  When an owner or keeper knows a dog is dangerous, they must “exercise reasonable control and restraint” of the
dog to avoid injury to others. The case against the Flores’ failed for the same reason as the case against the landlord: they did not know the dogs were a danger to anyone.

Interestingly, the court took time to consider pit bulls are an inherently dangerous breed, stating that

this Court has never held that a dog’s breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Gross v Turner and Flores, 2018 VT 80

Evidence: it’s rather useful

I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court.  The Magistrate asked her “what’s the estimated duration of the hearing?”

AC: “I don’t have instructions on that, Your Honour”

Court: “Well, how many witnesses do you intend to call?”

AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]

Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?

A recent appeal out of California suggests how such a scenario might play out.

evidence
Image from here

You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.

The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported).  The plaintiff appealed.

The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience.   The only expert evidence available in this case was supplied by the defendant.  It said that he had observed the relevant standard of care.

Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.

The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of  injury which she associated with yoga.  These were not considered sufficient to raise a causation issue for a jury to resolve.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

Who owns the mosquitoes?

The Body Shop used to sell bags saying something like “if you think you’re too small to be noticed, go to bed when there’s a mosquito in the room”.  Apparently they were right.

William Nami was a railway worker whose job was to work in a team operating a ‘tamper’ (a machine for repairing railway lines). Sometimes he worked inside the machine’s poorly-sealed cabin, and sometimes outside. Unfortunately, the area in which he worked was mosquito-infested town of Sweeny in Brazoria County, Texas.  The railway’s right of way was narrow and weed-strewn and sometimes had pools of water.  In late September 2008 Nami was diagnosed with West Nile virus and suffered significant ill effects.  He sued his employer under §51 of the the Federal Employees Liability Act:

Every common carrier by railroad  … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury … resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

He alleged that the employer had failed to provide a safe workplace.  A jury at trial found tat the employer had been negligent and awarded damages: Nami v Union Pacific Railroad Co. (267th District Court, Koetter J, 2012, unreported).  The employer’s appeal to the Court of Appeals was rejected: Union Pacific Railroad Co v Nami 499 SW 3d 452 (Tex. Ct App., 2014).

Mosquito Day
Image from here

Union Pacific appealed to the Supreme Court of Texas.  The Supreme Court noted that insects are considered to be wild animals (ferae naturae) and

… under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee. … The same rule applies to an employer’s duty to provide a safe workplace.

In this case the employer had done nothing to increase (and could have done nothing to decrease) the risk of mosquitoes to Mr Nami.  Accordingly negligence was not made out.

Union Pacific Railroad Co v Nami, 498 SW 3d 890 (Tex., 2016)

Postscript – The Supreme Court of the United States declined to hear Nami’s appeal: Nami v Union Pacific Railroad Co., 137 S.Ct. 2118 (2017).