Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Turin Magistrates Court (Fifth Criminal Division)

26 January 2015

Coram: Minucci J.

Appearing for the Prosecution: Barbara Badellino (of the Italian Ministry of Justice)
Appearing for the Defendant: Not identified

Catchwords: Italy – criminal law – parent – psychological abuse – “tough love” – sport – competition – skiing – dieting

Facts: The accused was the father of two daughters and separated from their mother.  Between 2008 (at which time they were aged roughly 11 and 14 years) the girls saw him at weekends.  As they entered adolescence they gained a certain amount of weight and lost interest in skiing.  The accused compelled his daughters to follow a restricted and macrobiotic diet and forced them to train for and take part in competitive skiing.  In 2011 the accused’s daughters complained to their mother of ill-treatment by their father and the matter was referred to the Turin prosecutor’s office.  The accused was charged with mistreatment of his daughters.

The evidence (including statements from the girls’ school principal and skiing trainer) indicated that they were subjected to significant psychological pressure and repeatedly told that they were fat and had to do more sport.  It appears that identifiable psychological harm had been caused to the girls.  There was no evidence of physical abuse.

The accused’s position was that he was acting only as a concerned father, and that any verbal abuse was only to encourage them.

Held: Convicting the accused of mistreating his daughters, that a sentence of nine months imprisonment was appropriate.

Judgment

No written judgment is available.  This report has been prepared based on accounts prepared by duerighe.com, Il Secolo XIXRAI News, La Voce and La Repubblica, all of 26 January 2015, with the aid of Google Translate

Note: the accused has announced his intention to appeal.

Comment: This case forms an interesting companion to State v Corrigan (1998) H&FLR 2014-63, in which the defendant was convicted of felony child abuse as a result of not addressing health issues caused by her daughter’s significant obesity.  Viewed as part of a bigger jurisprudential picture, it suggests that notwithstanding the serious health and economic effects of obesity (1), the ‘fat shaming’ identified by some bloggers will at some point stray from being socially inappropriate to being a legal wrong.

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(1) Jim Landers, ‘Cost of Care: The U.S. health care system is bleeding green’, Dallas Morning News, 1 February 2015.

Bagley v Mt Bachelor Inc (2014) H&FLR 2015-4

Myles A. Bagley and Ors v Mt Bachelor Inc and ors (2014) H&FLR 2015-4

Supreme Court of Oregon

18 December 2014

Coram: Court en banc

Appearing for the Plaintiff: Arthur C Johnson (of Johnson Johnson & Schaller) and Kathryn H. Clarke.
Appearing for the Defendant: Arthur C. Balyeat (of Balyeat & Eager)
Appearing for the Oregon Association of Defence Counsel (amicus curiae): Michael J. Estok (of Lindsay Hart)
Appearing for the Oregon Trial Lawyers Association (amicus curiae): Kristian Roggendorf (of Roggendorf Law)

Catchwords: Oregon – skiing – injuries – liability – release – waiver – public policy – unconscionability.

Facts: The plaintiff was an experienced snowboarder. On 29 September 2005 he purchased a season pass from the defendant for use at its ski area. Purchase of the pass involved signing an extensive prospective release of liability, of which he was reminded while on site by wording on his pass and by signs. On 19 February 2006 the plaintiff sustained very serious injuries while going over a snowboard jump, allegedly because it had been negligently designed, constructed and maintained by the defendant.

The plaintiff brought proceedings against the defendant in Deschutes County Circuit Court, which were summarily dismissed based on the release signed by the plaintiff: Bagley v Mt Bachelor Inc (2010) The Bulletin, 6 September 2013. The plaintiff’s appeal to the Court of Appeals was dismissed: Bagley v Mt Bachelor Inc, 258 Or. App. 390, 310 P.3d 692 (2013). The plaintiff further appealed to the Supreme Court.

Held: allowing the appeal, that –

1. (a) The Courts will not enforce contracts which are illegal. An agreement will be illegal if it is (inter alia) contrary to public policy as expressed in constitutional provisions, statute or case law, or if it is unconscionable.

Uhlmann v Kin Daw, 97 Or. 681, 193 P. 435 (1920); Delaney v Taco Time International Inc, 297 Or. 10, 681 P.2d 114 (1984), followed.

(b) Quaere whether the concepts of public policy and unconscionability are separable.

2. A contract may be unconscionable on procedural or substantive grounds.

(a) Procedural unconscionability considers whether there was oppression or surprise when the contract was formed.  Oppression will exist when there is such an inequality of bargaining power between the parties that there is no real opportunity to negotiate the terms of the contract and there is no meaningful choice.  Suprise occurs when the terms are hidden or obscured (for example, by being in fine print or ambiguously worded) from the perspective of the party claiming unconscionability

Vasquez-Lopez v Beneficial Oregon Inc, 210 Or. App. 553, 152 P.3d 940 (2007); Acorn v Household International Inc, 211 F. Supp. 2d 1160 (ND Cal., 2002), followed

(b) Substantive unconscionability considers whether the terms of the contract contravene public interest or public policy.  It will be necessary for the court to consider whether enforcing the release will cause a harsh or inequitable result, whether the party claiming the benefit of the release serves an important public function, and whether the release absolved the releasee from more than ordinary negligence.

Commerce & Industry Insurance v Orth, 254 Or. 226, 458 P.2d 926 (1969); Estey v MacKenzie Engineering Inc, 324 Or. 372, 927 P.2d 86 (1996); Real Good Food v First National Bank, 276 Or. 1057, 557 P.2d 654 (1976), followed

(c) The factors listed as relevant to unconscionability are not exclusive, and no single factor is critical.  The determination that a release breaches public policy or is unconscionable reflects the totality of the circumstances as well as any other factor (including societal expectations).

Judgment

The Court’s judgement is available here.