Articles Posted in General Negligence Action

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.

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 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.”

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?

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).

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:

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.”

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.