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
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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).

 

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)

Waddya know, Wal-Mart?

You can find everything at Wal-Mart. Except maybe a sponge.

Leoncio Garcia went to a Wal-Mart store in Houston, Texas at 6:21am on 9 June 2015.  Twenty-five minutes earlier a floor-scrubbing machine operated by a Wal-Mart employee had passed over – and briefly paused at – a point where the floor surface changed from vinyl to tiles.  It was this point where Mr Garcia slipped and fell, suffering a knee injury.  An employee of the store then put a warning cone down on the floor because she saw a liquid at the sit of the fall.

walmart
Image from here

Mr Garcia sued Wal-Mart for his injuries.  Wal-Mart responded that there was no evidence that it knew of the hazard before the accident.  It applied for summary judgment which was granted: Garcia v Wal-Mart Stores Texas LLC (US Dist. Ct SD Tex., Gilmore J, 9 June 2017, unreported).  The plaintiff appealed.

The appeal was upheld by the Fifth Circuit Court of Appeal.  The Court noted that four things must be proved in an occupiers liability claim:

  1. That the owner had actual or constructive knowledge of the hazard.
  2. That the hazard presented an unreasonable risk of harm.
  3. That the owner failed to take reasonable care to reduce or eliminate the risk.
  4. That the risk was the proximate cause of the injury.

Knowledge could be established by (inter alia) showing that the owner had placed the substance on the floor.  Garcia’s case was that there was circumstantial evidence that the fluid came from the scrubber, thereby meeting the knowledge requirement.  Because this was more plausible than Wal-Mart’s alternative explanations, it was appropriate for the factual dispute to be returned to the trial court for decision.

Garcia v Wal-Mart Stores Texas LLC (US 5th Circuit Court of Appeals, 18 June 2018)

Didn’t do nuthin’

No wrong without a remedy.  No remedy without a wrong.

In the early hours of 3 March 2013 Kaitlyn Johnson was a passenger in a pickup truck driven by her then husband.  At about 2:30am he fell asleep.  The vehicle left the road, travelled some distance in a roadside ditch and hit a concrete embankment that had been build by a farmer in 1972.  Johnson suffered serious injuries.

Johnson
Image from here

Johnson issued proceedings against Humboldt County in the Iowa District Court for that County.  She alleged that the county had negligently failed to cause the embankment to be removed.  The defendant raised a defence under the public-duty doctrine.  The trial court dismissed her claim: Johnson v Humboldt County (Iowa Dist. Ct, Stoebe J, 23 September 2016).  Johnson appealed.

The Iowa Supreme Court noted that under the public duty doctrine, when a duty is owed to the public generally, no duty exists to an individual member of that group.  A breach of such a duty is not actionable unless the plaintiff can show a special relationship between the relevant government agency the the plaintiff.  The court concluded that the public-duty doctrine controlled the case:

Any duty to remove obstructions from the right-of-way corridor adjacent to the highway would be a duty owed to all users of this public road. It would thus be a public duty.

Johnson raised a number of reasons why the public-duty doctrine should not apply.  One of the arguments was particularly interesting.  She argued that the public-duty doctrine could not be raised when a claim was brought under the Iowa Municipal Tort Claims Act §670.2. The section provides that “every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their
employment or duties”.  The court rejected the argument:

Johnson erroneously equates immunity (as waived by the Iowa Municipal Claims Act) with the common law public-duty doctrine. … We have said, “Unlike immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place.”

The District Court’s decision was affirmed.

Johnson v Humboldt County (Supreme Court of Iowa, 8 June 2018)