Day on Torts

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."

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.

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?

Sure.

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.

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."

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.

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.

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.

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.