Injury and Wrongful Death Liability of Franchisors

Under what circumstances can a franchisor be held vicariously liable for torts that occur on the premises of a franchisee?

A relatively recent court opinion has an excellent discussion of the law in this area, addressing not only the law of the state where the cause of action arose (New Mexico) but also the law from around the nation.  In Estate of Anderson v. Denny's, 2013 WL 6506319 (D.N.M. Nov. 13, 2013) the court held that a genuine issue of material fact existed on the issue of whether the franchisor was vicariously liable for the franchisee's alleged negligence, turning on the issue of right of control.


Can The Owner of LLC Also Be A Defendant in a Tort Action Against the LLC?

The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

At trial, however, the same claims that the plaintiff made against the individual defendant – negligent and professional misrepresentation – were tried against the auction company, and resulted in a defense verdict. Since the trial court had concluded that any conduct by the individual defendant must be imputed to the auction company as his principal, that meant the plaintiff effectively lost on the proof anyway. Accordingly, the Court of Appeals affirmed the trial court in all respects.

I am not sure why the trial court would dismiss the individual defendant even if the individual was alleged to be acting in the course and scope of his agency relationship with the company. For tort claims like misrepresentation, a plaintiff may sue the principal, the agent, or both. An agent cannot evade personal financial responsibility for torts like misrepresentation merely because it was committed partly or fully for the benefit of the principal. The result in this case, though, is still the same – the misrepresentation claims were tried by the plaintiff and lost on the facts, and there’s no reason for a do-over.

General Contractor Liability for Subs

Interested in the circumstances under which a general contractor can be held liable for the acts of a sub-contractor?  Here is my article on one aspect of the subject in the TBA Journal.

Use of Internal Policies Can Be Used to Prove Violations of Reasonable Care

A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees.  Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

The Court quoted its prior holding regarding the relevance of company policies to determining the duty owed by company employees:

Courts customarily define the scope of a duty or a particular standard of care by looking to the statutes, regulations, principles, and other precedents that make up the law. Dill v. Gamble Asphalt Materials, 594 S.W.2d 719, 721 (Tenn. Ct. App. 1979); Restatement (Second) of Torts § 285 (1964). However, they may also consider evidence that tends to establish a custom representing the common judgment concerning the risks of a particular situation and the precautions required to meet them. Restatement (Second) of Torts § 295A cmt. b (1964). Thus, company work rules, while not controlling, are admissible to demonstrate what the company’s employees should have done in a particular situation. 3 Fowler V. Harper, et al., The Law of Torts § 17.3 at 587 (2d ed. 1986); Fleming James, Jr. & David K. Sigerson, Particularizing Standards of Conduct in Negligence Trials, 5 Vand. L. Rev. 697, 712-13 (1952);  , 215 Conn. 377, 576 A.2d 474, 479 (1990).

White v. Metro. Gov’t of Nashville & Davidson Cty., 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993).

The case is Wilson v. East Tennessee Human Resource Agency, Inc.,  No. E2010-0172-COA-R3-CV (Tenn. Ct. App. April 29, 2011).  Use this decision as a weapon not only to introduce those policies and procedures into evidence but also to be permitted to discover their existence.

State of Tennessee Litigation Statistics From the AOC Annual Report

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary.   Over the next few days I will share some data from the Report.

We begin with medical malpractice cases.  In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal.  Only 324 new cases were filed.  

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year.  The total awards for the patient in those cases were $7,128,800.  Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider.  Historically, that number is about 20% of all trials.

Here are the medical malpractice filings and dispositions for the larger counties"

County                              Filings                                 Dispositions

Davidson                            67                                           107

Shelby                                100                                          117

Knox                                     33                                           45

Hamilton                             14                                           25

Sullivan                                11                                           16

Madison                                 6                                            8

Washington                           9                                           10

Green                                      0                                             2

These numbers are exactly what we would expect given prior data after the adoption of the pre-suit notice and certificate of good faith statutes.  For example, in the fiscal year ending June 30, 2008, the last fiscal year before the reform act went into effect October 1, 2008, there were 537 cases filed.  The data once again demonstrates that there are an extremely few number of medical malpractices cases filed in Tennessee state courts and that the number is dropping.

If you had the feeling that the defense is pushing more cases to trial you are correct.  For example, in 2007-08 only 20 medical malpractice cases were tried in state court.

The data also confirms the complaints of the medical malpractice defense bar.  The number of cases being filed is down significantly and the number of pending cases is also declining (because dispositions exceed new filings).   This is one reason why we see defense lawyers working existing cases harder - they simply have less to do.  

Tomorrow I will file a post on tort cases in general.

Lawsuits Arising From Participation in Athletic Activities

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports?  The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball .  Defendant hit the ball and let go of the bat at the same time.  The bat flew through the area, striking and injuring plaintiff (who was playing first base).  Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that 

[w]hile the duty to exercise reasonable care accompanies each individual in most all activities of life, some activities or circumstances have been excepted from the reasonable-care duty in favor of the imposition of a less stringent duty of care for participants in the activity to protect others from injury.  . . . One such activity that has been identified as an exception is contact sports. Prior to our decision in Thompson to follow the analytical framework of the Restatement (Third) of Torts for claims of negligence involving physical harm, we followed other states in excepting participants in contact sports from constraining their actions under the conventional duty to act as a reasonable person. See Leonard ex rel. Meyer v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999).  In finding the game of paintball to be a contact sport in Leonard, we imposed a duty for participants in the sport to merely refrain from reckless or intentional conduct. Id. at 81 ...  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport, and it is inapposite to the competitiveness of contact sports to impose a duty on participants to protect coparticipants from such known and accepted risks through the exercise of reasonable care.  See Leonard, 601 N.W.2d at 79 & n.3 (noting assumption of the risk in its primary sense is a defense to negligence). The standard also recognizes that athletes who step onto the playing field to compete are not completely free from legal responsibility for their conduct that creates a risk of injury, but are restrained under a substantially lower duty of care. See Nabozny v. Barnhill, 334 N.E.2d 258, 260-61 (Ill. App. Ct. 1975).   (Footnotes omitted).

A majority of the Iowa Court went on to conclude that   "softball for purposes of tort liability is a contact sport, and this conclusion is sufficient to transform liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness. Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants in a number of ways, including a risk that the bat will be released during the swing in some way and will become an instrument of harm to participants in some way."   Thus, the Court held that the plaintiff had to demonstrate that defendant was reckless before liability could be imposed for the injuries.

Finally, the Court concluded that reasonable minds could differ on whether as to whether defendant's swing and release of the bat was reckless, and thus reversed the earlier dismissal of the case.

The case is Feld v. Borkowski,  No. 07-133 (Iowa Oct. 22, 2010).

A New Way of Looking at Duty and Causation

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after  "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline."  The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005).  As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

The Court went on to explain that 

The drafters [of the Restatement] acknowledge that courts have frequently used foreseeability in no-duty determinations, but have now explicitly disapproved the practice in the Restatement (Third) and limited no-duty rulings to “articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id. at 98–99. We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it.

The Iowa Court then had to confront the issue of causation and once again turned to the Restatement (Third) to clarify its law on the issue.   In the Restatement, 

the drafters have opted to address factual cause and scope of liability (proximate cause) separately. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 575. The assessment of scope of liability under the Restatement (Third) no longer includes a determination of whether the actor’s conduct was a substantial factor in causing the harm at issue, a question properly addressed under the factual cause rubric. See id. § 27 cmt. j, at 427–29. 

Most importantly, the drafters of the Restatement (Third) have clarified the essential role of policy considerations in the determination of the scope of liability. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. § 29, at 575. This principle, referred to as the “risk standard,” is intended to prevent the unjustified imposition of liability by “confining liability’s scope to the reasons for holding the actor liable in the first place.” Id. § 29 cmt. d, at 579–80.

So the facts, did the landowners have a duty to the motorist?  Yes, under the Restatement test they had a duty to protect others from a risk of foreseeable harm.  Should the case have dismissed on the causation issue?

We conclude the question of whether a serious injury to a motorist was within the range of harms risked by disassembling the trampoline and leaving it untethered for a few weeks on the yard less than forty feet from the road is not so clear in this case as to justify the district court’s resolution of the issue as a matter of law at the summary judgment stage. A reasonable fact finder could determine [defendants] should have known high winds occasionally occur in Iowa in September and a strong gust of wind could displace the unsecured trampoline parts the short distance from the yard to the roadway and endanger motorists. Although they were in their home for several hours after the storm passed and approximately two-and-a-half hours after daybreak, Kaczinski and Lockwood did not discover their property on the nearby roadway, remove it, or warn approaching motorists of it. On this record, viewed in the light most favorable to the Thompsons, we conclude a reasonable fact finder could find the harm suffered by the Thompsons resulted from the risks that made the defendants’ conduct negligent.

I would urge my fellow tort law lovers to read this opinion.  Many of you who are also Tennesseans would note that the approach to duty adopted by the Iowa Supreme Court is one that Chief Justice Janice Holder has (unsuccessfully) urged on her colleagues at the Tennessee Supreme Court for many, many years. For but one example, read then-Justice Holder's dissent  in Hale v. Ostrow, 166 S.W. 3rd 713 (Tenn. 2005).

Thanks to Torts Prof for bringing this opinion to my attention.


Amusement Parks, Carnivals, and Carnies

I grew up in Spencer, Wisconsin, a village of about 1000 (less in the 1960 census, more in the 1970 census) in North Central Wisconsin.  The closest city was Marshfield, at eight miles to the south on Highway 13,  which at the time had about 15,000 people, a J.C. Penny store,  a mail order-only Sears store and, by the time I was a senior in high school in 1973-74, a McDonald's.   My home county had more dairy cows than people.  When I tease my wife about her hometown (Karns, Tennessee), she quickly reminds me that at least her birthplace had a red light and a Hardee's.  We had neither, although from time to time in some summers we had a local family run a root beer stand that we referred to as the "ringworm stand" because of a physical affliction suffered by several employees.

You get the picture.

Every June we had a three-day festival called "Spencerama," which provided not only a parade, a Spencerama Queen, and a carnival but, most importantly, a three-day excuse to drink beer to excess in an outdoor public place (as opposed to a indoor public place offered by one of the six bars in town).  This extravaganza was held in the Spencer Village Park, just across the parking lot from the fire station.  The carnival surrounded a wooden pavilion built to house (you guessed it) the beer garden.

To say that Spencerama was the highlight of the year in this little town would be a gross understatement.  The Lions Club and the Jaycees worked like dogs to plan for this event.  Who would work the beer garden when?  Who would cook the brats and burgers when?  Who would run the tractor pull?  Who would run the mini-tractor pull?  Who would supply the pigs for the greased pig contest? 

The town was abuzz  with questions for months preceding Spencerama Days.  Would Mike Engle be willing to take on the wrestling bear again this year?  You know he's over 70!  (That's no BS, Mike was as agile and tough as hell and used to wrestle a bear when he ((not the bear)) was over 70.)   Would the Spencer Volunteer Fire Department beat the jerks from Loyal in the water barrel fight?  Would the Woodkey boys beat the hell out of someone else or each other this year at bar time?  Would the greasers from Colby start a big fight on Saturday night just like they did last year?

Of course, for most of the kids the carnival was the big deal.  We had a Ferris wheel, an octopus ride, a mixer ride, and an assortment of kiddy rides.  We had the obligatory games - floating ducks, knock-over-the-cats-with-a-baseball, pitch-the-penny-into-the-glass-dish, etc.  And, we had the dunking machine, occupied by local dignitaries who were willing to take a cold bath in public if a citizen could hit the bull's-eye.

But for me it was all about the carnies.  You see, we had poor people back home - you don't make a lot of money milking 35 cows on an 80-acre farm.  And we had a fair number of losers, most of whom were plagued by an greater-than-usual addiction to alcohol and were completely harmless, drunk or sober. 

But when the carnies came to town a whole new world was opened to the honest souls of Spencer.  Carnies were different.   They had all dropped out of high school, a rarity in my hometown.  They had unshaven faces and greasy long hair.  They were really, really skinny but had muscular arms.  They had tattoos.  (In the old days, the only men who had tattoos were guys who either had been in the Navy or were carnies.)  Even the female carnies had tattoos.  (No women had tattoos in Northern Wisconsin in the 60s and 70s.)   Carnies had fingers stained yellow from chain-smoking Lucky Strikes.  They had bad teeth.  To the kids in Spencer the carnies were like the gypsies that roamed Wisconsin in the 1930s and 40s, the horrible people who would steal food and property and even children.  At least that what our parents told us, and we believed it.

The carnies moved into town on Tuesday night or Wednesday morning, a parade of old cars and trucks pulling ancient, small travel trailers in decrepit condition.  They smoked and they drank and they did drugs and they ogled the local girls and one of them stole my brother's bicycle.  (He really did - one of those damn carnies stole my brother Tom's  bicycle.)  And they put up rides, old rides comprised of rusty metal, rides that made an awful racket when they were working and an eerie silence when they did not.  Rides that shook and shimmered and  broke down, leaving teenage girls screaming at the top of their lungs at the top of the Ferris wheel.  These screams could be heard over the  rock 'n roll music blaring from carney 8-track tape players amplified through huge speakers, bass turned to "10," which competed with  the accordion player and the tuba player and the rest of the polka band  playing at the Beer Barrel Polka at the beer garden.

I observed this.  All of this.  Carefully.  For hours at a time.  Year after year.  And eventually, at the age of 13 or 14, I thought  "why in heaven's name would I risk my life by getting on an amusement ride of undeterminable age assembled and disassembled every single week by a bunch of skinny, uneducated, chain-smoking, drug-taking, tattoo-bearing, local girl-ogling, bicycle-stealing carnies?  So I didn't.

And to this day I won't.  Now, deep down inside I know that the folks that design, assemble and maintain the rides at Disneyland, Six Flags and the like probably have more education than I do.  And I know that if they smoked any dope they did it a long time ago and they didn't inhale.  But every time I look at an amusement ride I think of those carnies in Spencer, Wisconsin over 35 years ago and I just say "No."

So, my thirteen year-old son thinks I am a wimp and my seventeen year-old daughter refuses to understand why I will not get on a ride with her at Six Flags.  My daughter Kate, just eighteen months old, will assume that it is fear of a broken hip secondary to osteoporosis that causes me to avoid the wooden roller coasters at Wisconsin Dells when she becomes of age.  But my children have never seen a carnie, and I have, and I cannot erase the image forever burned in my mind:  that skinny, greasy chain-smoking carney, a naked woman tattooed on his arm, maniacally laughing  into the warm wind on a June night in America's Heartland as he rides off on my brother's green Schwinn across Clark Street and into the alley behind Minerva's Bar, secreting it amide the mass of metal that, in just a few days, will be the Ferris wheel at the Hodag Country Festival. Sorry kids, there ain't no way. 

So, patient reader, you might ask "what this has to do with torts?"  Well, Bill Childs at Torts Prof advised me of a story in the Tennessean that reminded me that Tennessee passed a law a couple years ago that mandates that amusement ride operators have a $1M in liability insurance.  T.C.A. Sec. 58-36-101 et seq.  A second statute just came into effect that mandates a system of inspection for rides.  T.C.A. Sec. 68-121-120.

That's what.

`Negligent Sale of Motorcycle?

Can a motorcycle dealer be held liable for selling a motorcycle to a person who did not have a motorcycle license?

Not in Mississippi.  The Mississippi Supreme Court recently considered a case where a dealer sold a motorcycle to an 18-year who it knew was not a licensed operator.  A representative of the dealer who knew the buyer was not licensed allowed him to leave the dealership on the bike and saw him operating it in town.  The buyer died in a motorcycle wreck three days later.

The Court first rejected a claim for negligent entrustment, saying that it did not exist in the context of a sales transaction.  It also found no duty under the common law for selling the motorcycle to an unlicensed driver. 

The case is Laurel Yamaha, Inc. v. Freeman,  NO. 2005-IA-01605-SCT  (May 31, 2007).  Read the opinion here.

 Note:  Would Tennessee reach a different result?  Consider these words written by Chief Justice Barker:

"[W][e conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because "foreseeability is the test of negligence,”  the convenience store employee must know that the individual is intoxicated and that the individual is the driver of the vehicle before a duty arises. It is a question of fact for a jury as to what the employee knew with respect to the individual's intoxication and status as driver. We also hasten to point out, as did the Court of Appeals, that by our decision today we do not hold that convenience store employees have a duty to physically restrain or otherwise prevent intoxicated persons from driving."   West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 552 (Tenn. 2005) (citation omitted).

And then these words from page 556 from the same opinion:  "we conclude that the plaintiffs have established a prima facie claim of negligent entrustment. However the plaintiffs' still bear the same burden at trial whether pursuing their theory of negligence or negligent entrustment. Both claims arise from the same facts, entail the same duty, and present the same factual issues to be resolved at trial regarding breach of duty, loss or injury, cause in fact, and proximate cause. We hold that a claim of negligent entrustment is applicable to this case and, therefore, the trial court erred in granting summary judgment in favor of the defendant."

Tennessee Supreme Court Accepts Statute of Limitations Case

The statute of limitations is tolled when the plaintiff is of unsound mind.  Tenn. Code Ann. §  28-1-106.  Does the fact that a Durable Power of Attorney (executed before the incompetency) is in existence trump the tolling statute and require the attorney-in-fact to take action within the original statute?

The Tennessee Court of Appeals said "no" in Sullivan v. Chattanooga Medical Investors, L.P.,  No. M2004-02264-COA-R3-CV -  (January 26, 2006).   See the original opinion here.

Judge Susano put the issue this way:  "Is the tolling effect  of Tenn. Code Ann. § 28-1-106 implicated when an individual, while competent, grants another a  durable power of attorney, including the power to act for the grantor with respect to “claims and  litigation”? The crux of both the defendant’s argument and the trial court’s holding in opposition  to the application of § 28-1-106 is that, by granting a durable power of attorney, the deceased  removed himself and the plaintiff from the ambit and protection of § 28-1-106."

The essential holding is this:  "The statute does not recite, expressly or by implication, that the tolling of the statute of  limitations only occurs in those situations where there is no one authorized to act for the disabled  individual. On the contrary, § 28-1-106 specifically grants the tolling protection not only to the  disabled individual but also to his or her “representatives and privies.” Though the plaintiff is the  individual who brought the action, he brought it in a representative capacity for the alleged wrong  done to the deceased. Thus, as we believe was intended by the legislature, the plaintiff, as  Administrator of the deceased’s estate, is a “representative[]” of the deceased and not “the person  entitled to commence an action.” We hold that the plain and ordinary meaning of the language of  § 28-1-106 simply does not permit this court to conclude that “representatives and privies” does not  cover the plaintiff in this case. We think it clearly does."

Yesterday the Tennessee Supreme Court said it would review the case.

Does that mean the decision of the Eastern Section will be reversed?  Not necessarily.  It is fair to say that usually in tort cases the TSC takes cases to reverse them.  But that was not true in  the Alsip case; Judge Susano was affirmed there.  And I predict he will be affirmed in this case.

I think the TSC took this case because it is somewhat similar to a Rule 23 case it is currently considering out of the Western District of the Federal Court.   That case involves the effect of the appointment of a conservator on the tolling of a statute of limitations.

Expect a decision in early Spring, 2007.

Tort of Negligent Supervision of Minors

The Kentucky Supreme Court has just released an opinion that discusses the elements of the tort of negligent supervision of a minor.

This is the law in Kentucky: "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control."

The Court held that "It is not negligent supervision per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring. Parents owe no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know, or should know, of the need and opportunity to exercise such control and the parents have the ability to exercise such control. The mere fact that the parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others. The Fritz appellants have not presented any evidence to establish either that the Hugenbergs knew, or should have known, of a need to prevent Mikael from drinking and driving and of an opportunity to prevent him from doing so or that the Hugenbergs had the actual, physical ability to have prevented Mikael from drinking and driving on the evening of September 18, 1999. Therefore, summary judgment was properly granted on the negligent supervision claim."

The case is Hugenberg v. West American Insurance Company, NO. 2004-CA-001472-MR (April 7, 2006). Read the opinion here.


Can a community college be sued when a pitcher on its baseball team intentionally hits an opposing player in the head with a baseball?


Can the school be held liable?

No, not according to the California Supreme Court.

Avila was beaned with a baseball during a game. He believed that the pitch was thrown in retaliation for an earlier pitch thrown by one of his teammates that hit a teammate of the pitcher.

Avila sued several folks, including the community college of the pitcher. He argued that that the college was negligent by "(1) conducting the game at all; (2) failing to control [its] pitcher; (3) failing to provide umpires to supervise and control the game; and (4) failing to provide medical care." ( Note: In California "[u]niversities ordinarily are not vicariously liable for the actions of their student-athletes during competition." Therefore, there was no claim advanced on that point.)

The community college argued that it owed no duty to Avila, and the California Supreme Court agreed.

On Avila's first point, the Court held that "the only consequence of the District's hosting the game was that it exposed Avila, who chose to participate, to the ordinary inherent risks of the sport of baseball. Nothing about the bare fact of the District's hosting the game enhanced those ordinary risks ...."

On the "control of the pitcher" argument, the Court said "[i]t is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter's body-a permissible and essential part of the sport-for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct."

Concerning umpires, the Court said that "provision of umpires might might-have reduced the risk of a retaliatory beanball, Avila has alleged no facts supporting imposition of a duty on the District to reduce that risk."

Finally, on the failure to supply medical attention claim, the Court found that it failed on the alleged facts.

The case is Avila v. Community College of Citrus Grove, No. S119575 (April 6, 2006).

Thanks to the California Appellate Report for bringing it to my attention.

7th Circuit Rebufs Lawsuit of Wrongfully Imprisoned Man

Mr. Wallace was 15 years old when he was charged with murder. He served eight years in prison before an appellate court determined that he was arrested without probably cause and that his confession was tainted by the illegal arrest.

He sued, but the 7th Circuit Court of Appeals held (a) the suit was untimely because it had to be filed at the time of the arrest, not after the conviction was voided and (b) any damages would be limited to the period between the arrest and the arraignment, not for the eight years spent in prison. The case is Wallace v. City of Chicago, No. 04-3949; read it here.

The result is not only at odds with the 2nd, 4th, 5th, 6th and 9th Circuits but also with a decision of the 7th Circuit just a couple years earlier in Gauger v. Hendle, 349 F.3d 354 (2003).

I guess that stare decisis thing can be inconvenient.

Judge Posner authored Gauger and dissented from a denial of a petition for an en banc hearing. His concluding paragraph:

"I count 12 cases to 0 against the panel's approach, with the other three cases (Montgomery, Simmons, and Datz) noncommittal but consistent with the 12. So one-sided a score should give us pause. If there is a compelling practical reason for flouting conventional statute of limitations principles, forging a lonely path, and creating more work for the Supreme Court, which now faces an intercircuit conflict on a recurrent issue, the panel has not explained what it might be."

Drug Sharer to Face Jury

Mr. Kasey shared his Oxycontin with another, who gave it to her boyfriend (at the same party) who it turn consumed the drug with alcohol. The recepient/user died in his sleep from the combination of the drugs. His mother sued Kasey.

Kasey defended by arguing that he did not owe a duty of care to the decedent and that his conduct was not the proximate cause of the death.

The Arizona Court of Appeals held that a duty was present, saying as follows:

"We conclude, on this record, that Kasey owed a duty to Followill when he gave the pills to Watters [the decedent's girlfriend]. Our recognition of a duty is based on the totality of the circumstances as reflected in the following factors: (1) the relationship that existed between Kasey and Followill, (2) the foreseeability of harm to a foreseeable victim as a result of Kasey giving eight pills to Watters, and (3) the presence of statutes making it unlawful to furnish one's prescription drugs to another person not covered by the prescription."

On the issue of proximate cause, the Court said that the acts of the girlfriend and the decedent were intervening causes but did not rise to the superceding causes as a matter of law.

They remanded the case for trial.

The case is Gipson v. Kasey, No. 1 CA-CV 05-0119, filed on March 2, 2006. Read it here.

Forseeability Case Out of Florida

Defendant Carter pumped gas into his vehicle and left the station without paying. The station owner gave chase, and during the pursuit the station owner's vehicle rear-ended Carter's vehicle, injuring the plaintiff's daughter. The daughter later died from the pain medication she was administered for treatment of her injuries

Carter moved for summary judgment, "argu[ing that his actions were not the proximate cause of the accident because he was not speeding or braking abruptly at the time the accident occurred." The trial judgment dismissed the case against him.

The Court of Appeals reversed a grant of summary judgment, saying "we cannot say that no reasonable person could differ in concluding that an accident on a public road of Bay County was unforeseeable as Carter was seeking to escape from the pursuit. ... This lawsuit does not concern Carter's actions only at the moment of the collision, however. We agree with the appellant that Carter's actions can be seen as a continuum beginning with the theft of the gasoline and continuing by fleeing through traffic from the [store owner's] vehicle."

Read the entire opinion here.

Thanks to Matt at Abstract Appeal for informing me about this opinion.

Exculpatory Language Struck Down

The Connecticut Supreme Court has ruled that an exculpatory clause in a form signed at a snowboarding and snowtubing facility did not bar the plaintiff's claim.

The Court rejected Plaintiff's argument that the agreement was ambigious. The Court said "[w]e conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence."

However, the Court said that the exculpatory clause was void as against public policy. The Court acknowledged that " most states
uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct." However, the Court held that several factors, including the fact that the plaintiff was relying on the defendants to make the premises safe and the fact that the contract was a "take it or leave it" proposition, to declare the clause void.

The decision has a great summary of the law around the nation on the enforceability of exculpatory clauses.

Does a Lawyer Owe a Duty to An Adverse Party?

The defendant (Dr. Clark) in a civil case sued the plaintiff's lawyers alleging "claims of negligence, intentional infliction of emotional distress, tortious interference with her business relationship with her insurance carrier and malicious prosecution. Dr. Clark sought compensatory and punitive damages arising from the filing and prosecution of the Dempsey action (the case filed originally filed by the plaintiff's lawyers) .

The attorneys moved for summary judgment, alleging that they did not owe a duty to Dr. Clark. The trial judge sent two certified questions to the West Virginia Supreme Court. The Court ruled that it "could find no justification for imposing a duty of care in favor of an opposing party upon counsel. Imposition of such a duty can only work to the detriment of counsel's own client and would adversely impact counsel's duty of zealous advocacy for his or her own client and would create an impossible and unjustified conflict of interest. Accordingly, we hold that an attorney for a party in a civil lawsuit does not owe a duty of care to that party's adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney."

Next, the Court discussed whether there was a litigation privilege applicable defeat the claims. The Court posed the issue as follows: "Is a party to a civil action barred, by virtue of the litigation privilege, from bringing claims for civil damages against the opposing party's attorney if the alleged act of the attorney in the course of the attorney's representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?"

The Court answered this question "Yes" saying "we believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney's duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party." The Court went on to note that the privilege would not bar the plaintiff from asserting a malicious prosecution claim.

Read the entire opinion here.