What did you know?

A constantly vexing question for plaintiff lawyers is when a person’s liability for another’s drunkenness kicks in.

On June 2011 four young men threw a party in Boulder, Colorado. It must have been a good one, because it attracted many people beyond the invitees. One such person was 20-year-old Hank Sieck, who attended with Jared Przekurat. They were friends of a friend of a friend of the organisers (no, really).  Alcohol was served and Sieck became drunk. He and Przekurat left in the latter’s car, with Sieck driving. Inevitably an accident occurred, causing Prezkurat severe brain injuries.

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Hank Sieck (Image from here)

Sieck was imprisoned for four years and ordered to pay restitution to Przekurat of $833,194.10: People v Sieck, 351 P.3d 502 (Colo. Ct App., 2014). Prezkurat sued the party organisers. Colorado’s Dram Shop Act (12-47-801, CRS (2017)) provides at (4)(a)(I) that

No social host who furnishes any alcohol beverage is civilly liable to any injured individual … for any injury to such individual …, because of the intoxication of any person due to the consumption of such alcohol beverages, except when … It is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.

The District Court summarily dismisses the claim, finding that a social host must actually know a guest is underage to sustain dram shop liability. The Court of appeal agreed: Przekurat v Torres, 2016 COA 177. Przekurat appealed to the Supreme Court of Colorado.

The Supreme Court agreed with the District Court. It found, firstly, that the requirement to act knowingly applied both to provision of a place to drink and also the (under)age of the drinker.

[T]he provision of a place to provide for consumption of alcohol must be done knowingly, as it is difficult to conceive how a social host could unknowingly provide a place for alcohol consumption and still be considered a social host. To conclude that “knowingly” only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.

The next question for the Court was whether the host must actually know the drinker’s age or whether constructive knowledge would suffice. Specific knowledge was found to be required under the norms of statutory construction –

Affording “knowingly” its “plain and ordinary meaning,”…, we conclude that actual knowledge is required. When the General Assembly imposes a constructive knowledge requirement, it typically provides that a person “should have known” of a particular thing. … Statutory interpretation in Colorado has consistently construed the words “know” or “knowingly” without that qualifying “should have known” to require actual knowledge.

Przekurat’s claim was dismissed.

Przekurat v Torres, 2018 CO 69

Obscuring the drivers’ vision

Recently I shared a decision from the Coroners Court where a tree shading a streetlight contributed to a road death.  A recent case from Kansas has taken a different approach to the obligations of owners of trees.

It was mid-afternoon on 14 September 2011, and Darren Manley was driving north on Anderson Road in Labette County, Kansas.  At the same time a truck driven by John Patton was being driven west on the intersecting County Road 20000.  Trees growing on land adjoining the intersection obscured the drivers’ view of each other.  Manley was killed in the resulting collision.

Labette
Rural road, Labette County, KS (Image from here)

Mr Manley’s estate sued the owners of the land where the trees grew.  It was alleged that they had wrongfully caused his death by allowing the trees to obstruct the vision of passing motorists.  The owners sought summary dismissal of the claim which was granted by Labette County District Court.  The plaintiff’s appeal to the Court of Appeals was also dismissed: Manley v Hallbauer, 387 P. 3d 185 (2016).  They further appealed to the Supreme Court of Kansas.

The Supreme Court rejected the appeal, finding that the landowners had no duty of care.  It noted that any duty of care would need to be consistent with public policy.  Kansas common law reflected a public policy not to impose tort liability on persons in the position of the landowners in this case.

As our primary policy consideration, this court adheres to precedent “‘unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'” …. Manley does not persuade us to abandon the traditional rule that a landowner owes no duty in the circumstances of this case. We conclude the determination of the existence of duty is better resolved by following our precedent that embraces the traditional rule, especially because of the public policy that underlies that rule.

The Court duly concluded that “a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property”.

Manley v Hallbauer (Supreme Court of Kansas, 10 August 2018)

Streetlights and Trees

Local councils seem to be fond of trees.  Apparently, so much so that allowing them to disable public infrastructure is uncontroversial. Until it causes a death.

The sun had set about half an hour before Mary Fillipas got off the bus in Station Street, Burwood on 8 May 2017.  The bus stop was adjacent to Talbett Street.  Fillipas, aged 75 years, was slowly crossing Station Street just after the crest of the road.  A driver approaching from the other side of the crest saw her in his headlights at the last minute and braked.  He could not avoid hitting her.  She died of her injuries some weeks later.

bus stop
Image from here

Police determined that the driver bore no criminal liability for the death.  The police noted that although there were two street lamps in the vicinity of the collision, a large tree blocked most of the light from one.

Mrs Fillipas’ death was investigated by the Coroner.  In the investigation the local government body (Whitehorse City Council) submitted that street lighting in the area was adequate and that the tree was healthy and maintained in line with legislation and appropriate standards.  The Council and a number of other agencies also recommended moving the bus stop to the top of the crest to improve visibility of people crossing Station Street after getting off the bus.

The Coroner agreed with the proposal to move the bus stop.  Her Honour also recommended the Council consider removing suitable trees to ensure overhead lighting was not affected.

In the Death of Fillipas (Coroners Ct of Vic., Hodgson C, 27 July 2018, unreported)

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)

A tragedy in Paradise

Road accident lawyers sometimes fall into the lazy trap of thinking that because there’s a problem in a vehicle, negligence is a given.  A recent case from the Pacific islands offers a reminder about thinking through causation.

On 12 September 2011, a truck driven by a member of Kiribati Protestant Church on church business hit a young girl who ran across the road.  The accident caused her fatal injuries.  Because of rain, the vehicle was travelling at 20-30 kilometres (12-18 miles) an hour.  The uncontested evidence of the driver was that the child had run in front of the vehicle suddenly.  The police investigation found that the truck’s breaks were defective and had to be pumped to operate.

So Tarawa
South Tarawa, Kiribati (Image from here)

The defendant was charged with dangerous driving causing death: Traffic Act 2002 (Kiribati), §31

The driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road.

Penalty:

… (c) for an offence causing death – a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

He was acquitted on the basis that (inter alia) there was no evidence that the defective brakes had contributed to the accident.  There had been no time to brake before impact: Republic v Mikaere (Zehurikize J, High Court of Kiribati, 10 November 2016, unreported).

An appeal was lodged on the basis that the verdict was against the weight of evidence, in particular the “finding that the evidence did not establish that the respondent had driven in a dangerous manner by driving when he knew the brakes to be defective”.

The Kiribati Court of Appeal noted the trial judge’s finding that the deceased had run suddenly in front of the truck and that –

The defective brakes played no part in the accident. The respondent had no opportunity to apply the brakes until after impact. We note that when he did so he stopped 10 metres further on, confirming that he was driving at a moderate speed and was able to brake effectively.

The appeal was dismissed.

Attorney-General v Mikaere (Kiribati Court of Appeal, Blanchard, Handley and Hansen JJA, 16 August 2017, unreported)

The War got in the way

One of the beauties of law reports is that every so often you stumble across a long-forgotten case that you would otherwise never consider. This happened to me recently, when I found a case where the war got in the way of a plaintiff.

The case might be one of the earliest motor-accident injury claims. In the early twentieth century a lady named Wilkie was sitting in a jinker (a type of horse drawn buggy). The jinker was hit by a bus operated by the Melbourne Motor-Bus Co Ltd. She brought proceedings in the County Court of Victoria for her injuries. The jury rejected the claim and found for the defendant.

jinker
Horse and jinker (Image from here)

The plaintiff applied for a new trial. Before her application could be heard, she learned that some of her witnesses – soldiers in the Australian Army – were to leave the state on 4 April 1916 (one might infer that they were to leave for the War). On 3 April 1916 she applied to the Supreme Court of Victoria for an order for their oral examination. Section 4 of the then Evidence Act 1915 relevantly provided that

It shall be lawful for the Supreme Court … in any action or suit depending … in any county court … upon the application of any of the parties to such action or suit to order the examination on oath upon interrogatories or otherwise before some person to be named in such order of any witnesses within Victoria … ; and by the same or any subsequent order … to give all such directions touching the time place and manner of such examination … and all other matters and circumstances connected with such examinations as appear reasonable and just….

The modern analogue of this section is §4 of the Evidence (Miscellaneous Provisions) Act 1958.

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Bus belonging to the defendant (Image from here)

A’Beckett J dismissed the application on the grounds that he had no jurisdiction. His concern seems to have been that because jury in the case at first instance had dismissed the claim, there was no pending case (presumably, at least, not until the plaintiff had successfully sought a new trial).

Wilkie v Melbourne Motor-Bus Co Ltd [1916] VLR 211

Eight years. One second.

It’s impressive he was even functioning.

In March 2017 a Melbourne truck driver was about to end an eight year ice binge.  He didn’t mean to.  He had been swerving erratically on the Calder Freeway.  The cars ahead were slowing for roadworks that morning.  He reacted, at most, a second before he crashed into the back of boilermaker Kari-Pekka Maunus’ utility, killing the 49-year old boilermaker.  He was charged with causing death by culpable driving.

highway
Image from here

The Crimes Act 1958 (Vic.) §318 relevantly provides that

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

(1A) The standard sentence for an offence under subsection (1) is 8 years.

(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle … whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

The charge was dealt with in the Melbourne County Court. Judge Wraight imposed a sentence of six years imprisonment with a minimum term of four years

Director of Public Prosecutions v Templeton (2018) Herald Sun, 2 June 2018, p.31.

Good news for a change

A recent amendment to the Transport Accident Act 1986 (Vic.) has made access to medical expense benefits easier for road accident victims.

Harston

On 13 February 2018 the Compensation Legislation Amendment Act 2018 (Vic.) received royal assent. Section 4 of the Act repealed s.43(1)(b) of the Transport Accident Act 1986. This disposed of the medical expense excess (currently $651.00) which previously had to be paid before the Transport Accident Commission would take on medical expenses when a person was not made a hospital in-patient.

As a result of this amendment, sub-ss. 43(1A), (1B) and (1C) of the Transport Accident Act 1986 became redundant and were also repealed.

This change applies to people injured in accidents occurring on or after 14 February 2018.

In visual form the amendments were as follows –

43 Liability for losses in first five days etc.

(1) The Commission

(a) is not liable to pay compensation under this Part to an earner injured as a result of a transport accident in respect of loss of earnings during the first five days after the accident or after the injury first manifests itself, whichever last occurs, in respect of which, or any part of which, the earner suffers any loss of earnings as a result of, or materially contributed to by, the injury. ; and

(b) subject to subsections (1A), (1B) and (1C), is not liable to pay the first $389 (as varied from time to time in accordance with section 61) of the reasonable costs of medical services received because of an injury as a result of a transport accident.

(1A) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person because of an injury as a result of a transport accident if the person dies as a result of that injury .

(1B) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person after that person has been an in-patient for 1 day because of an injury as a result of a transport accident .

(1C) For the purposes of subsection (1), a claim by a person injured as a result of a transport accident and a claim by any member of the immediate family of that person who is also injured as a result of the same transport accident is to be treated as if it were one claim .

(2) If, by reason of subsection (1)(a), the Commission is not liable to make a payment to an earner in respect of loss of earnings, the Commission may make such a payment if it is satisfied that the earner would suffer acute financial hardship if a payment were not made.

This is a significant improvement to a long standing issue with the Transport Accident Act which from time to time delayed claimants receiving necessary assistance.

Sometimes everyone loses

Sometimes nobody wins.

Harston
Image credit: Shepparton News

Mr Dajko was drinking on the night of 24 July 2016.  When he got in his car early the next morning he was tired and still had a blood alcohol concentration of 0.08.  A kangaroo hooped onto the road in front of him near Tatura, Australia.  He swerved to avoid it, lost control of his car and collided with a light truck, fatally injuring the driver.

The defendant was charged with exceeding the prescribed concentration of alcohol and with careless driving.  His ‘carelessness’ took the form of intoxication, fatigue and sudden swerving.  The Road Safety Act 1986 (Vic.) §65(1) provides that

A person who drives a motor vehicle on a highway carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units.

The defendant pleased guilty in Shepparton Magistrates Court.  Stuthridge M accepted that “this was an accident in the sense the kangaroo was involved and [the defendant] lost control of his vehicle”.  She also accepted that he was deeply troubled by the accident. Her Honour fined the defendant $1,000.00 and suspended his drivers licence for 16 months.

Police v Dajko (2017) Shepparton News, 29 August 2017, p.1.