Showing posts with label personal injury. Show all posts
Showing posts with label personal injury. Show all posts

Tuesday, May 18, 2021

Automatic-door failures fuel injuries, tort claims, but road to recovery in litigation can be bumpy

Pixabay by djedj
An Australian woman struck by a malfunctioning airport security door was denied recovery in April after failing to prove that the malfunction caused her injury.  The outcome strikes me as questionable, and the case is instructive of tort principles anyway.

If you travel much, as I do, you probably have passed through those one-way transparent security doors that whip open and closed to allow only a person at a time to pass.  They frighten me a bit, and I never linger on the threshold.  The plaintiff in the instant case likewise denied having paused upon egress from Wagga Wagga City Airport arrivals in New South Wales, yet was struck by one of the doors.  She complained of shoulder and back injury, requiring surgery, and the court confirmed that the impact of the door at least worsened a preexisting condition.

Arrivals at Wagga Wagga Airport
(2012 photo by Bidgee CC BY-SA 3.0 AU)
The doors were in fact malfunctioning.  There are two batteries, at different heights, of photoelectric cells that sense a person in the way and prevent the doors from closing.  The lower set were out of commission.  However, tests and maintenance on the doors showed that the non-functioning cells were not essential for safety; the higher set still kept the doors open when so much as a person's leg was in the way.  The plaintiff therefore failed to show a causal connection between her injury and the malfunction, nor any alleged misfeasance by the airport defendant, such as a failure to warn.

The outcome strikes me as questionable, because there seems to be no dispute that the 44-year-old plaintiff was struck by the door, and that that's never supposed to happen.  Even if the photoelectric cell failure cannot be blamed, the case seems well suited to res ipsa loquitur, which, to the best of my knowledge, is recognized in New South Wales common law, and is not mentioned by the court.  Maybe the plaintiff failed to plead the theory.  Or maybe this is a Palsgraf-esque scenario in which the court concealed skepticism of the plaintiff's injury.  Of 100,000 arriving passengers annually, there were no other reported incidents, the court troubled to say.

Anyway, the case reminds me of one that I use sometimes in torts class to teach punitive damages with a dash of professional responsibility.  In 2015, 61-year-old James Hausman won a $21.5m verdict against the Holland America Line (HAL) after being hit by an automatic sliding door on a cruise ship, in an incident captured on camera.

There's plenty to inform a class discussion just there.  Hausman's injury did not look too bad in the video, but traumatic brain injury is tricky.  And the court awarded $16.5m in punitive damages after hearing about 16 other sliding-door injuries on HAL ships.  The plaintiff's lawyer accused HAL of trying to save on air conditioning, which HAL denied, the ABA Journal reported.

Then the case took a turn.  In 2016, the district court threw out the verdict after revelations of spoliation.  The ugly dissolution of an employment relationship between Hausman and a personal assistant led to an undiscovered personal email account and deleted messages that cast doubt on Hausman's veracity (ABA Journal, Seattle Times).  The court ordered a new trial and clarified that there was no evidence the plaintiff's attorney was complicit in wrongdoing.  The docket suggests that the case ended in settlement later that year.

The Australian case is Gray v. Wagga Wagga City Council, [2021] NSWDC 108, 07 April 2021 (Wolters Kluwer).  Simon Liddy at HWLEbsworth published commentary.  The American case is Hausman v. Holland America Line-USA, No. 2:13-cv-00937 (W.D. Wash. 2016) (Court Listener).

Tuesday, November 3, 2020

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay
Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org
In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Friday, April 3, 2020

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.
In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.
The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).
Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade
Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

Monday, November 11, 2019

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)
The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.


Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Thursday, November 7, 2019

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0
Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.
On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.
The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.
In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.
[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).
Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):
(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;
(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;
(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;
(D) to ask the jurors to put themselves in the position of any person involved in the case;
(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and
(F) to ask the jury to disregard the court's instructions.
Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Monday, September 16, 2019

Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules

On a "zone of danger" theory, the Massachusetts Appeals Court last week reinstated the claim of negligent infliction of emotional distress by the teenage best friend of a girl struck and killed by an MBTA commuter train in Lawrence, Massachusetts.

Fence gap in NECN coverage, Oct. 31, 2014.  More from WCVB below.
Be warned, video surveillance captured girls' screams. 
Thirteen-year-old best friends Kiandra Calderon and Jenaira Fuentes were crossing rail tracks in between their homes and shops, where they bought Halloween costumes.  The court recounted, "For most, if not all, of the ten years during which the defendant [Royal Park, LLC] has owned the property, there have been large holes and gaps in the fence through which adults and children pass on a daily basis in order to reach nearby shopping plazas and the Lawrence High School." On Halloween 2014,Jenaira was struck and killed by an MBTA train.  "Kiandra, who was not struck by the train, tried to perform life saving measures on her friend and then remained close by as rescue personnel unsuccessfully tried to save Jenaira's life."



Kiandra sued on two counts, first, for negligence under the Massachusetts child trespasser statute, and second, for negligent infliction of emotional distress (NIED).  The court recognized that the two claims were essentially the same, because the trespasser statute provided the standard of care for the NIED, and the NIED provided the alleged injury required by the trespasser statute.  According to the pleadings, Kiandra's suffering was so severe that it manifested physically, as NIED claims typically require at minimum, requiring medical treatment for "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."

Even so, NIED claims are typically disallowed in the United States.  Negligence, or foreseeable accident, is regarded as too thin a reed on which to hold a defendant responsible for the merely emotional suffering of another, in the absence of physical injury.  Imagine if every romantic breakup resulted in an NIED lawsuit.  Whatever tort reformers or foreign observers might think, the United States isn't that lawsuit crazy.

There are exceptions, though, to the no-NIED rule.  Massachusetts is among the states that have kept the door open for the occasional compelling theory of NIED, not rejecting the notion outright.  And there are exceptions that are widely accepted.  Courts throughout the states are willing to award NIED recoveries to plaintiffs who were in the "zone of danger" themselves, even if narrowly escaping physical injury, reasoning that the physical threat was sufficient to make emotional distress claims credible and verifiable.  A smaller number of states are willing to award NIED recoveries to a narrow class of bystanders, those who contemporaneously witness physical injury inflicted on a close family member.

Kiandra's counsel tried to bring her within the bystander category by pleading the closeness of the teens' best friendship; the trial court was not moved.  However, the Appeals Court held, the trial court failed to consider Kiandra's own position in the zone of danger.  The girls were walking the tracks together, and just one was struck and killed.  Pending further development of the facts, it looks like Kiandra was in much the same jeopardy as her friend (see the WCVB video above, but be warned, the audio tough to hear).  The court sharply distinguished bystander NIED recovery from zone-of-danger recovery.  In the latter case, the plaintiff is a direct victim of the defendant's negligence, not an indirect sufferer as witness, and need not prove a close family relationship.  The court reversed and remanded for Kiandra to pursue her day in court.

The case is Calderon v. Royal Park, LLC, No. 18-P-1014 (Mass. App. Ct. Sept. 10, 2019).  Vuono, Wolohojian, and McDonough, JJ., were on the panel.

Friday, September 13, 2019

Appeals court rejects landowner liability for 'open and obvious' danger of backyard zipline

The same day the Massachusetts Supreme Judicial Court decided the Boston Globe case this week, the Court of Appeals affirmed summary judgment for the defendants against a landowner liability claim in which a six-year-old was injured on a backyard zipline.

A backyard zipline with a child safety seat. (Larry Koester CC BY 2.0.)
A handy defendant had installed the backyard zipline himself.  Six-year-old Aaron was visiting with his father to pick up Aaron's older brother from a sleepover.  The father aided Aaron in trying out the zipline, but after giving the boy some freedom, Aaron lost his grip, fell, and suffered compound fractures to his arm, requiring multiple surgeries.

Plaintiffs sued in landowner liability, alleging an unreasonably dangerous condition, as the zipline lacked a safety seat that could have prevented such an accident.  Defendants answered that the danger of the zipline, including the lack of a safety seat, was open and obvious, so negated the landowner's duty.

The court agreed that the condition was open and obvious, which somewhat negates the duty of a landowner, because it is the open-and-obvious nature of the hazard that makes it unforeseeable that the guest would fail to exercise reasonable care.  Plaintiffs argued that the condition was not open and obvious to the perception of a six-year-old.  The court held that when the child is under adult supervision, it is the perception of the adult, not that of the child, that controls.

However, the court held that an open and obvious condition does not necessarily negate a duty to abate an unreasonably dangerous condition "when the owner knows or has reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, including being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks."  Still, the court found the record "devoid of evidence that the zip line was unreasonably dangerous, or that the defendants facilitated an 'improper' or 'highly dangerous use' ...."

The conclusion is sound, but the reasoning highlights a problem with persistent common law doctrines that revolve around "open and obvious danger."  There is a tendency for litigants and courts to indulge "open and obvious" as a magical incantation that changes the rules of the match, such as here, to negate a duty of care.  Yet as the court observes, the doctrine does not necessarily negate the duty of care.  This approach gets legal duty analysis tied up in a web of factual intricacy that is not what policy-driven landowner duty is supposed to be about.

Harry Potter magic duel 095/365 (Louish Pixel CC BY-NC-ND 2.0)
Rather than indulging in a tennis match between duty, no duty, and duty again!, the courts should recognize that "open and obvious" is a factual circumstance, so goes to the standard of reasonable care exercised in warning about the danger or abating it.  That's where this case winds up anyway.  And just because it's a reasonableness analysis doesn't mean the court cannot, as here, dispose of the case in pretrial summary judgment when ordinary minds could not differ on the outcome.

I teach landowner negligence (page 25), or premises liability, with "open and obvious" as a matter of evidence rather than a sort-of defense, and I think that's the cleaner doctrine.  But I always have to warn students to watch out, in any given jurisdiction, that a judge might be entranced when counsel waves her wand and utters the spell, "Openanobvius!"

The case is LaForce v. Dyckman, No. 18-P-1234 (Mass. App. Ct. Sept. 9, 2019).  Sullivan, Massing, and Lemire, JJ., were on the panel.

Wednesday, May 8, 2019

Mass. tort opinion journeys down coal hole of history

A narrow decision from the Massachusetts Supreme Judicial Court (SJC) today is important for keeping alive plaintiff personal injury claims based on road defect injuries, especially amid the trending privatization of public services.  The opinion stops off in Boston history en route to its conclusion.  The case is Meyer v. Veolia Energy North America, No. SJC-12606 (Mass. May 8, 2019).

Reversing summary judgment for defendant Veolia Energy North America, the SJC concluded that the statutory requirement of notice within 30 days to a potential defendant alleged to be responsible for road conditions giving rise to injury applies to the governmental defendants, but not to private-sector defendants.

Sudbury Street, at Court Street, Boston, 1912. City of Boston Archives.
Plaintiff Meyer was injured when on his bicycle, on Sudbury Street in Boston, he "struck a circular utility cover one foot or less in diameter that was misaligned with the road surface."  He gave notice to the City of Boston of a potential tort claim within 30 days.  But the city denied his claim on day 31, referring Meyer to private-sector Veolia as the party responsible for the utility cover.  Upon purportedly late notice to Veolia under the statute, the lower court awarded summary judgment to the energy company.  The SJC reversed, holding the statute inapplicable.

Most of the 32-page decision concerns statutory interpretation and is worth a read if that's your jam.  A couple of points stood out for me, though, as a general observer of law American-style.  The relevant Massachusetts statutes are found in General Laws chapter 84.  The SJC observed that section 1 "reflects its origins in the preindustrial era."  Indeed, the section states, "Highways and town ways, including railroad crossings ... shall be kept in repair at the expense of the town ... so that they may be reasonably safe and convenient for travelers, with their horses, teams, vehicles and carriages at all seasons."

The SJC traced interpretation of the relevant statutes to an 1883 opinion by Justice Holmes.  Yes, that Justice Holmes, the Honorable Oliver Wendell Holmes, Jr., when he served on the Massachusetts high court.  Explained today's SJC, Justice Holmes for the Court, in in Fisher v. Cushing, 134 Mass. 374 (1883) (electronic page 376 of this free ebook), had

interpreted the road defect and notice statutes, and the meaning of the reference to "persons," in the course of reviewing the statutes' legislative and legal history.  As a noted scholar of legal history and the author of The Common Law (1881), Justice Holmes brought special knowledge and expertise to this interpretation. The defendant in Fisher was sued for negligently maintaining a coal hole on a Boston sidewalk.

Held the Court in Fisher, "The whole scope of that [statutory notice] scheme shows that it is directed to the general public duty [to keep the way in repair], and that it has no reference to the common
law liability for a nuisance."  Explained today's SJC,

The court therefore held that the defendants could be sued in tort for the nuisance they created with their coal hole.
The court also went on to explain the meaning of "persons": "The mention of 'persons' in the statute, alongside of counties and towns obliged to repair, is easily explained. The outline of our scheme was of ancient date and English origin. In England, while parishes were generally bound to repair highways and bridges, a person might be, ratione tenurae, or otherwise .... [W]e cannot say, and probably the Legislature of 1786 could not have said, that there were no cases in the Commonwealth where persons other than counties or towns were bound to keep highways in repair.... Even if there were not, it was a natural precaution to use the words.

Coal hole at Wakefield Town Hall in Great Britain, 2018.
(Stephen Craven CC BY-SA-2.0.)
Footnotes elucidated, "A coal hole was an underground vault covered by a hatch with a cover where coal used for heating purposes was kept for easy access" (citing S.P. Adams, Home Fires: How Americans Kept Warm in the Nineteenth Century 105-106 (2014)).  And "'[r]atione tenurae' is a Latin phrase meaning by reason of tenure," as in being an occupier of land (citing Black's Law Dictionary 1454 (10th ed. 2014)).

I'm assuming that when the Court wrote that the late, great Justice Holmes "brought special knowledge and expertise" to the case, that assertion was strictly a function of the preceding clause, "as a noted scholar of legal history and [common law]," and not, as my mind hastened to wonder, because Justice Holmes had some particular tenura with coal holes.

Saturday, March 9, 2019

Advocates in SCOTUS case on tort and sovereign immunity stick to their guns, frustrate Court's search for middle ground

For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January.  You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.

The Tennessee River dips into northern Alabama, where the accident in
Thacker occurred. (Map by Shannon1, CC BY-SA 4.0).
Here is background on the case from the Federalist Society:

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.

In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. 

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. 

Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.

The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.

Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument.  Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative.  The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.

Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions.  But neither counsel was willing to bite.  That led to a lively oral argument.  Thacker's case seems the stronger, but it is unclear how the Court will get to either result.

Friday, January 18, 2019

SCOTUS ponders governmental immunity in boating accident suit against TVA


The Federalist Society produced a beautifully illustrated video, as part the SCOTUSbrief series, to accompany the January 14 oral argument (transcript) in the U.S. Supreme Court in Thacker v. Tennessee Valley Authority, a personal injury suit.  The case compels the Court to analyze what, if any, governmental immunity is afforded to a range of New Deal entities, such as the TVA, which Congress broadly authorized "to sue and be sued," decades before the Federal Tort Claims Act came into being.  The Federalist Society generously invited me to provide narration for this video.  At SCOTUSblog, Professor Gregory Sisk, of St. Thomas Law, has an expert analysis of Monday's oral argument.  When available, audio of the oral argument will be posted at Oyez and at C-Span.

Friday, February 24, 2017

Lawyers, read carefully: 'Presentment' held defective under state tort claims act



A cautionary tale from the Massachusetts Appeals Court yesterday, per Justice Peter Sacks, reminds lawyers to read statutes carefully.


Plaintiff was among five persons (perhaps family, based on the names of four) injured in a Massachusetts Bay Transportation Authority (MBTA) bus accident.  Her lawyer filed a claim with the "MBTA Claims Department," the transmittal asking that the claim be referred to the appropriate authority.  The MBTA made settlement offers to the five, and only Plaintiff turned down the offer and opted to pursue litigation instead.

The Massachusetts Tort Claims Act requires presentment of a claim to the "executive officer" of the defendant state entity.  The trial court let the difference slide under a statutory exception allowing for correction of defective presentment upon the executive officer's actual knowledge of the claim.

The appeals court reversed, ruling that the exception must be construed narrowly.  Neither the attorney's request to forward nor logical inference was sufficient.  The court awarded the MBTA summary judgment.

The court acknowledged that the ruling is "a harsh result," especially considering that it probably mattered not at all to the MBTA claims process whether its executive received notice.

The case is Coren-Hall v. MBTA, No. 16-P-300 (Mass. App. Ct. Feb. 23, 2017), here at Mass.gov, here at Mass. Lawyers Weekly, and here at Justia.

[UPDATE, Dec. 17, 2018: In a December 2018 negligence case against the MBTA under the state tort claims act, the Supreme Judicial Court affirmed "that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity." The case is Theisz v. MBTA, No. SJC-12559 (Mass. Dec. 12, 2018).]