Article published!

I had a bit of luck recently with the publication of an article on liability of landowners for accidents on adjoining roadways.  This goes directly to a matter I have on foot presently.  In case it’s of broader interest, the citation is – ‘Bumps in the Road’ [Winter 2020] ABA Committee News: Automobile Litigation and Staff Counsel 8

A copy is here-

‘Bumps in Road’ (Winter 2020) ABA Cmte Newsl 8

vintage car wrecked grayscale photo
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Did blame end with death?

An interesting case on liability and causation was recently decided by the Supreme Court of South Carolina.

On 3 February 2011 pharmacist John Wickersham was involved in a road accident while driving a Ford Escape.  The airbag system was defective and enhanced his injuries.  After enduring severe pain for some months, he committed suicide.  His widow sought compensation from the manufacturer of the car  based on his wrongful death.  Ford argued that the deceased’s suicide was an intervening act that could not have been caused by a defective airbag.

white airbag instruction label
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After a number of procedural twists and turns (including removing the case to federal court) a jury awarded the widow $4.65 million, albeit with a discount for Mr Wickersham’s contributory negligence.  Ford appealed to the Fourth Circuit Court of Appeals.  The Court of Appeals then asked the South Carolina Supreme Court to determine whether that State’s law recognised an exception to the principle that suicide will break the chain of causation in wrongful death claims.

The Supreme Court responded that it did not recognise such a principle.  Instead, the ‘traditional’ principles of causation applied: that is, the court must first decide whether the suicide was foreseeable as a matter of law.  That is, was it the “natural and probable” consequence of the defendant’s act or omission?  If so, then the jury must determine whether in the facts of the case the suicide was foreseeable and whether the alleged act  was causative: that is, did it cause the deceased  to suffer an involuntary and irresistible urge to end his life.

Wickersham v Ford Motor Co (So. Carolina, 24 July 2019)

French Republic v A Firefighter (2014) H&FLR 2015-11

French Republic v A Firefighter (2014) H&FLR 2015-11

Amiens Criminal Court

11 December 2014

Coram: Not identified.

Appearing for the Prosecution: Not identified.
Appearing for the Defendant: Not identified.

Catchwords: France – criminal law – emergency services – road accident – manslaughter – emergency

Facts: The accused was a firefighter with 33 years experience and, in particular, 10 years experience driving under emergency conditions.  On 6 October 2011 at around 10:00pm he was driving a tanker in a built-up area to the scene of a gas leak.  It was agreed that the driver had been complying with all applicable safety regulations when he passed through a red light with flashing lights and sirens activated.  Despite this, the truck collided with a scooter which entered the intersection pursuant to a green light.  The scooter driver was killed in the collision.  The driver was charged with “homicide involontaire” (≈ manslaughter).

The accused’s evidence was that he had slowed the truck, that he had not needed to speed as he had not yet been given the precise address of the gas leak, and that the scooter had entered the intersection at high speed.

Held: Convicting the driver, that the Court was not convinced that the gas leak was so urgent as to require driving under emergency conditions and disregarding the red light.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the newspapers Le Figaro of 22 December 2014, Courrier Picard of 6 November 2014 and 21 December 2014, Libération of 22 December 2014, an undated report in Pompier Magazine, and the account of television channel France3 of 22 December 2014.

Note: the accused has announced his intention to appeal.

Comment: This case has obvious relevance from a fitness perspective, noting that the scooter driver could equally have been a runner, cyclist or equestrian.  It should be noted that the court’s rationale – that it was able to second-guess the driver’s assessment of the situation, that it had done so and found it wanting – has been deduced second-hand from a comment made on the case by the union representing firefighters.  That said, it is the only variable which would explain the driver’s conviction in light of the other evidence.

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Le Moullac v Daylight Foods Inc (2014) H&FLR 2015-8

Denis Le Moullac and Jessie Jewitt v Daylight Foods Inc and Gilberto Alcantar (2014) H&FLR 2015-8

San Francisco Superior Court

15 January 2015

Coram: Lam J.

Appearing for the Plaintiff: William Veen and Anthony Label (of The Veen Firm) and Micha Star Liberty  (of Liberty Law)
Appearing for the Defendant: Brent Anderson, Ronald Lenert and Kevin Taylor (of Taylor Anderson); Keith Bremer and Tyler Offenhauser (of Bremer Whyte Brown & O’Meara)

Catchwords: California – road accident – cyclist – wrongful death – damages.

Facts: At around 7am on 24 August 2013 24-year-old Amelie Le Moullac (“the deceased”) was cycling to work in a bicycle lane on Folsom Street in the South-of-Market district of San Francisco. As she approached the intersection of Folsom Street and Sixth Street she was struck and killed by a right-turning* semi-trailer belonging to Daylight Foods and driven by its employee Gilberto Alcantar. The evidence indicated that the bike lane was ‘dashed’ at the relevant point, so that the truck could cross it to enter Sixth Street, but that Alcantar failed to give way to the deceased.

The deceased was wearing a helmet. The evidence was unclear as to whether she was wearing earbuds while riding. It appears Alcantar gave a history of seeing the deceased, passing her, and then losing sight of her shortly before turning. It was unclear what speed either party was travelling.

The San Francisco District Attorney’s office elected not to charge the driver with vehicular manslaughter and the police elected not to issue a traffic infringement to the driver**. The deceased’s parents sought compensation for wrongful death from the driver and his employer.

Held: A jury of the San Francisco Superior Court found that Alcantar had driven negligently and that his employer was vicariously liable for his actions. It found no negligence on the part of the deceased. Damages of $4,000,000.00 were awarded.

Judgment

The matter was finalised by a jury verdict and no written reasons were issued.  The report is prepared based on the Court’s case record, on reports KQED News on 15 January 2015, 18 December 2014, 13 May 2014 and 27 August 2013, and on a memorial website prepared by the deceased’s co-workers.

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* British and Australian readers should remember that American drivers use the right-hand side of the road, and so Mr Alcantar was turning towards the side of the intersection closest to his truck.

** The decision not to prosecute for vehicular manslaughter is perhaps understandable, if conservative: the California Penal Code §192(c) requires at least negligence on the part of a driver; however, the various gradations of negligence in law are tending to become conceptually blurry and there may have been genuine doubt as to how a criminal jury would assess the driver’s conduct: see Stephen Tuck, ‘A recent decision of the Fourth Florida District Court of Appeal’ [Winter 2014] Comm’l Transp. Litig. Cmte Newsl. 10.  The decision not to issue an infringement notice is less explicable. While the California Vehicle Code §21717 required Mr Alcantar to enter the deceased’s lane, safe driving required him to give way to any vehicle already in the lane. An almost identical Victorian case involving a collision between a truck and a pedestrian resulted in a plea of guilty for failing to give way while turning under the predecessor section to Road Safety Road Rules 2009 §72(5)(c): Police v Biagio Favala (Melbourne Magistrates Court, unknown magistrate, 23 September 2008, unreported)

Note: Grateful thanks to Lenore Shefman of Shefman Law Group (Cyclistlaw), Austin, Texas, for alerting me to this case.