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
Photo by Markus Spiske temporausch.com on Pexels.com

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)

Angry mob next 10 miles

Road hazards come in all shapes and sizes.  Sometimes they take the form of an angry mob.

On 24 December 1972 Peter Moini was a passenger in a motor vehicle owned by the government of Papua New Guinea (PNG).  The vehicle was driven by a government employee, Luke Rovin.  On the Highlands Highway near the town of Goroka, Rovin’s driving caused the vehicle to hit and kill a child nameds Linda Sapulo.  The vehicle ran off the road and turned over.  In the ensuing riot the people of the area murdered Rovin and Moini in a “payback kiling”.  Moini’s widow successfully sought damages from the government in the PNG National Court on the grounds that Rovin’s negligence had caused her husband’s death: Moini v The State [1977] PNGLR 39.  The government appealed.

Goroka (1973)
Countryside near Goroka, Papua New Guinea, in 1973 [NAA: B6295, 3511Q]
Among the grounds of appeal presented to the Supreme Court of PNG was that there was no evidence that Moini’s death was foreseeable.  The Court rejected this argument.  Prentice CJ strikingly observed that –

In many parts of Papua New Guinea the payback is becoming a thing of the past. But it is indeed a matter of notoriety that inspires dismay, that some 40 years of government administration in the Highlands, including criminal sanctions, insurance, and special provisions for automatic compensation to tribal non-dependent relatives, have not yet removed among Highlanders the instant reaction towards payback for tribal loss of blood or death. … It must be known to all driving members of the community that even in Port Moresby, as a matter of prudence, one does not stop after a motor vehicle accident … but proceeds straight to the nearest police station — in some districts even to seek sanctuary for oneself against payback, despite completely blameless behaviour.

As a result, “a reasonable man in Rovin’s position would reasonably have foreseen the killing of Moini and/or himself as the likely consequence of his killing of the child and overturning of his vehicle”.

The State v Moini [1978] PNGLR 184

What was the worker doing?

British India was always an odd blend of compassion and ruthlessness.  By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent.  It then proceeded to enforce them fairly ruthlessly.

In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler.  On the day in question, however, he had been asked to hand-deliver a letter between two company officials.  On his way back he was attacked by a bear, suffering fatal injuries.  The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother.  The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.

Elephant at work - Rangoon
Elephant working in Rangoon, 1907 (Image from here)

The Workmen’s Compensation Act 1923 (Br. Ind.) relevantly defined a workman at 2(1)(n) as

… any person … who is –…

(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;

Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently.  As a result –

it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the  pur­poses of this appeal.

A similar line of reasoning was followed by Dunkley J.  As a result the employer could not be ordered to pay compensation in relation to the death.

Bombay Burmah Trading Corp’n Ltd v Ma E Nun, AIR 1937 Rang 45

She wasn’t driving

Where a person sues for death benefits, can their own contributory negligence be raised against them?

Facts

Walter Meek was about to have a very bad evening.  Meek, employed as a bus driver by Guiseppe Locco, was driving on Williams Road in East St Kilda, Australia on the night of 5 June 1941.  It was never clear how he came to hit the car driven by Alfred Carstein.  There had been no rain that dayThe collision killed a 40 year old passenger in the car, Margaret Carstein, who was Alfred’s mother.

Litigation

Mrs Carstein left behind a husband and thirteen children.  Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan).  He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928.  Sections 15 and 16 of the Act relevantly provided that

15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.

16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …

These provisions live on in ss.16 and 17 of the Wrongs Act 1958.

MMTB Buses 1940
Leyland Titan buses, Melbourne, 1940 (Image from here)

Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”.  George Carstein applied to strike out that part of the defence.

Ruling

The application was ruled on by Gavan Duffy J.  His Honour ordered that the relevant parts of the defence be struck out.  He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case.  If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable.  It followed that the negligence of either George or Alfred Carstein was simply irrelevant.

Carstein v Locco [1941] ALR 330

Postscript

The matter was ultimately heard by a jury which found Meek and Locco to have been negligent.  Mr Carstein and his family were awarded damages of £2,000 (current value $161,936.21): Carstein v Locco (1941) Morwell Advertiser, 27 November 1941 at 1.

Towelie is not a role model

South Park devotees will no doubt remember the character Towelie, a drug-addicted towel with a surprisingly annoying personality.  One of his scenes was essentially a model for a recent case in Texas (and after you’ve watched it, maybe watch a few other cartoons, because today’s casenote is kind of depressing).

On 10-11 April 2016 Karalee Williams made nine visits to a Walmart store in Houston, Texas.  Each time she bought tins of dust removing spray.  She bought at least sixty tins of spray, each time returning to her car in the parking lot to inhale it.  On her second visit to the store she was noticed to have soiled herself and to have vomit in her hair.  On her third visit she was naked from the waist down.  The staff gave her a sundress and otherwise continued to serve her.  On the morning of 12 April 2016 she died of an overdose of Difluoroethane inhaled from the tins.

Karalee Williams
Karalee Williams (Image from Facebook).  Personal injury lawyers – plaintiff and defendant – can get awfully jaded.  Sometimes we forget that real people are at the heart of what we do. Photos remind us that every litigant is a person who ended up somewhere they never wanted to be.

Williams mother sued the store operator and a number of other parties.  Proceedings were commenced in the 11th Harris County District Court.  They were removed to the US District Court for the Southern District of Texas.  The plaintiff, represented by Jeffrey Steidley, relied on a number of grounds to establish negligence.  Several grounds relied on Texan statutes, but one in particular may be of general interest to common lawyers: the plaintiff alleged that the defendant’s employees had assumed (and breached) a duty when they took steps to assist the deceased by providing her with a towel and a sundress.

Walmart (represented by Daw & Ray LLP) sought dismissal of the claim, which was granted.  The plaintiff appealed to the Fifth Circuit Court of Appeals.

The appeal was dismissed.  Concerning the allegation of negligence mentioned above, the Court agreed that a duty to use reasonable care could arise where –

  1. A undertakes to perform services necessary for B’s protection
  2. A fails to exercise reasonable care in performing those services; and either –
  3. B relied upon A’s performance, or
  4. A’s performance increased B’s risk of harm.

Here there was  no allegation that Walmart’s staff had caused Williams to rely on them or that they had increased her risk of harm.  As a result no duty of care arose.

Allen v Walmart Stores LLC, 907 F.3d 170 (5th Cir., 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)

Too soon?

An interesting case recently came out of California relating to prematurely commencing litigation.

Sherri_Rasmussen
Sherri Rasmussen (Image credit)

On 24 February 1986 Sherri Rasmussen was murdered.  The offender (Stephanie Lazarus) was not identified until 2009. Astonishingly, she was by then a detective with the Los Angeles Police Department. Lazarus was convicted of murder on 8 March 2012.

On 26 July 2010 Mrs Rasmussen’s parents issued proceedings against Lazarus in the Superior Court of Los Angeles County.  Lazarus raised a defence that their claim had been commenced too early (that is, before her conviction) (a “plea in abatement”).  California’s Code of Civil Procedure §340.3 states that

in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.

Judge White rejected Lazarus’ argument and ordered her to pay $10,000,000.00 compensation.  Lazarus appealed.

The California Court of Appeal agreed with the trial judge.  The Court found (first) that a plea in abatement must be pleaded promptly by the defendant or it is taken to be waived.  Here Lazarus could have raised the argument when she was served with proceedings in 2011.  She did not do so until 2016.

The Court also found that by the time Lazarus raised the point, the defect identified (lack of a criminal conviction) no longer existed.  The trial court was correct to ignore the issue.

Finally, as a matter of equity the trial court was right to disregard the defence.  If the judgement in favour of the Rasmussens were overturned, they would be time-barred from beginning the proceedings again.  This was not acceptable:

A defendant cannot untimely raise prematurity and then hide behind a statute of limitations which ran while the defendant did nothing to assert the plea.

The decision of the trial court was affirmed.  On 11 April 2018 the Supreme Court of California declined to hear a further appeal.

Rasmussen v Lazarus (2018) California Court of Appeal, 8 January 2018.

Eriksson v Nunnink (2015) H&FLR 2015-10

Karan Eriksson and Stan Eriksson v Kristi Nunnink (2015) H&FLR 2015-10

California Court of Appeal (Fourth Appellate District)

27 January 2015

Coram: Richli AP; King and Miller JJ

Appearing for the Plaintiffs: Terrence L Butler (of Butler & Dodge)
Appearing for the Defendant: Garth M Drozin (of Soltman, Levitt, Flaherty & Wattles)

Catchwords: California – horse – release – waiver – wrongful death – parental consent – coach.

Facts: The plaintiffs were the parents of Mia Eriksson, a 17-year-old equestrienne who aspired to compete in eventing at an Olympic level.  In 2001 the plaintiffs retained the defendant as Mia’s coach.  In May 2006 Mia signed (and Karan Eriksson countersigned as her parent) an agreement releasing Nunnink from liability for damages aside from those caused by her “direct, willful and wanton negligence”.

On 20-22 October 2006 Mia competed in an eventing competition at Ram Tap. During the event her horse fell, suffering swelling on his chest and a concussion.  It was subsequently agreed that Mia and the same horse would compete in a competition at Galway Downs on 3-5 November 2006 (there was dispute as to precisely what events it was agreed she would compete in). Prior to competing at Galway Downs the horse was inspected by two event judges and a veterinarian and considered fit to compete.  On the second day of the competition (a cross country event) Mia’s horse refused to jump fences four times and she was disqualified.  However, she continued with the event and attempted to jump a further fence.  The horse struck the fence, causing a rotational fall in which the horse landed on its back (and on top of its rider). Mia suffered fatal injuries in the accident.

The plaintiffs sued the defendant in Riverside County Superior Court for wrongful death and negligent infliction of emotional distress.  The defendant sought and was granted summary dismissal of the plaintiffs’ claim (1).  This dismissal was reversed on appeal and the matter remitted for trial (2). At trial, the proceeding was dismissed after presentation of the plaintiff’s case and without hearing from the defendant (3).  The plaintiffs appealed.

Held: Dismissing the appeal, that –

1. Because Karan had signed the release as Mia’s parent, it became final and binding and could not be disaffirmed.  Karan did not, however, thereby become a party to the release or bound by the promises made by Mia in it.

Hohe v San Diego Unified School District (1990) 224 Cal.App.3d 1559; Aaris v Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, followed.
Daniels v Sunrise Senior Living Inc (2013) 212 Cal.App.4th 674, considered.

2. The release did, however, curtail the plaintiffs’ rights.  Although wrongful death claims do not derive from the deceased’s putatively-infringed rights and are an independent cause of action, the plaintiff in such a case is bound by the deceased’s agreement to waive the defendant’s negligence and assume the risk.  The relevant duty of care in such a case is that owed by the defendant to the deceased; this duty can be limited or eliminated by the deceased’s signing a release.  A defendant cannot owe a greater duty to a person bringing a wrongful death claim than was owed to the deceased.

Ruiz v Podolsky (2010) 50 Cal.4th 838; Horwich v Superior Court (1999) 21 Cal.4th 272, followed.
Coates v Newhall Land & Farming Inc (1987) 191 Cal.App.3d 1, considered

3. The claim for negligent infliction of emotional distress failed on a similar basis to the claim for wrongful death: the release removed the defendant’s duty of ordinary care toward the deceased and as a corollary also removed the defendant’s duty to protect her parents from the risk of the emotional distress.  A defendant is able to assert the same defences against claims by bystanders (the position of the plaintiffs) as the defendant could assert against the direct victim, including signing of a release.

Dillon v Legg (1968) 68 Cal.2d 728

4. Once the defendant had shown that the release was applicable, the burden was on the plaintiffs to show that the defendant had been grossly negligent.  The plaintiffs’ own evidence did not establish that the defendant had acted with either gross negligence or willful and wanton negligence.

Judgment

The court’s judgment is available here.

Note: The plaintiffs’ determination to pursue this matter more understandable when one notes that they had previously sued unsuccessfully for the death of another daughter in a separate riding accident (4). It is difficult to imagine a worse set of tragedies for a parent.
======================
(1) Eriksson v Nunnink [2011] Metropolitan News-Enterprise, 11 January 2011, at 1.
(2) Eriksson v Nunnink (2011) 191 Cal.App.4th 826
(3) Eriksson v Del Mar Eventing Inc (2012) Chronicle of the Horse, 1 February 2012.
(4) Eriksson v California State University Fresno (5th Dist. Ct App. Calif., Wiseman APJ, Levy and Gomes JJ, 25 September 2007, unreported)

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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.

=======================================

* 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.

Vesely v Armslist LLC (2013) H&FLR 2014-10

Vesely v Armslist LLC (2013) H&FLR 2014-10

United States District Court (N.D. Illinois)

29 July 2013

Coram: Norgle J

Appearing for the Plaintiff: Jonathan Lowy and Lindsey Merikas (Brady Center to Prevent Gun Violence) and Jay Dobrutsky and Alexander Marks (Burke, Warren, MacKay & Serritella)
Appearing for the DefendantAndrew Lothson and James Vogts (Swanson Martin & Bell LLP)

Catchwords: Illinois – firearm – illegally purchased – advertisement – website – wrongful death – negligence – public policy – duty – foreseeability

Facts: On 13 April 2011 Demetry Smirnov (a resident of Canada) killed Jitka Vesely in Illinois using a firearm he had purchased illegally from a third party in Washington State. The firearm had been advertised for sale on http://www.armslist.com, a website operated by the defendant (a company registered in Oklahoma).

The plaintiff sought compensation from the defendant for wrongful death on the basis of negligence, as well as for the deceased’s pain and suffering pre-death, and for the deceased’s family’s costs associated with his funeral and burial. In particular, it was alleged that public policy required the court to recognise that the defendant owed a duty to the public at large, and that the defendant had negligently designed its website so that firearms could be sold illegally to dangerous people..

The defendant sought to have the claim dismissed on the grounds that it did not owe any duty to the deceased.

Held: dismissing the claim –

(1) A claim under Illinois’ Wrongful death Act requires the plaintiff to demonstrate that (a) the defendant owed a duty to the deceased; (b) that the duty was breached; (c) that the breach proximately caused the death; and (d) financial loss was caused to certain categories of people identified in the act.

Lough v BNSF Railway Co., 988 NE.2d 1090 (Ill. App. Ct. 2013), applied.

(2) In considering whether public policy requires a duty to exist a court should consider the reasonable foreseeability and likelihood of the injury, the burden to be imposed in preventing it and the consequences of so burdening a defendant.

Chicago v Beretta USA Corp., 821 NE.2d 1099 (Ill. 2004), applied.

(3) In this case it was relevant to the question of foreseeability that the defendant’s website was not involved in the sale or delivery of the firearms advertised on its website. Crimes by third parties who used the website to buy and sell firearms illegaly were not reasonably foreseeable. Further, requiring the defendant to alter its mode of business to prevent unlawful sales would impose an effectively business-ending burden on it.

Pavlides v Niles Gun Show, Inc., 93 Ohio App.3d 46, 637 N.E.2d 404 (Ohio App. Ct. 1994), distinguished

Judgment

The Court’s judgment is available here.

An appeal has been lodged.