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Monthly Archives: April 2012

Ill. court revives distracted pedestrian’s trip and fall suit

Sometimes there’s a decision in a trip and fall case that makes you wonder why the court just didn’t dispense with the legal gymnastics and announce a rule of strict liability. Take the case of Norma Waters.

On Aug. 22, 2005, 72-year-old Norma tripped over the metal base of a construction barrier that had been set up at the intersection of Milwaukee and Higgins Avenues in Chicago. Norma broke her wrist in the fall.

According to Norma, the metal base that tripped her up was protruding into the crosswalk. Norma claims that she had succeeded in avoiding two of these metal legs on her passage through the crosswalk, but the third one tripped her up because she was startled by the sound of a jackhammer as she tried to step over it.

Norma filed a personal injury suit against the city of Chicago, but a state trial court came to the not so unreasonable conclusion that the danger posed by the construction barrier was open and obvious.

With her lawsuit dismissed on summary judgment, Norma sought and found some sympathetic judges in the Illinois Appellate Division.

Last month, the appeals court revived Norma’s lawsuit, honing in on her allegation that she was distracted by the sound of the jackhammer. You see, Illinois law recognizes an exception to the open and obvious doctrine which imposes a duty of care when the property owner should reasonably anticipate that an invitee will be distracted from recognizing or avoiding the patent hazard.

The appeals court decided that the distraction exception applied to save Norma’s lawsuit. In concluding that jury issues existed in the case, the court explained:

[D]espite the obviousness of the barricade and its base, [Norma] became distracted upon hearing the loud noise from the jackhammer. … It is reasonable to expect that a defendant who places a barricade over a sidewalk and places a portion of their bases in an area of ingress and egress on a public sidewalk without signs warning people to avoid walking in the area could foresee that people could reasonably become injured and would likely become injured if they used the walkway. … For these reasons, we cannot say, as a matter of law, that [the city] should not have reasonably anticipated the distraction and should not have foreseen the injury to [Norma].

(Waters v. Chicago

According to the court, what the city could have done was barricade the entire walkway so that no one could use it until the construction was complete. That may be. In these trip and fall cases, there will always be that one more thing that the property owner could have done to prevent the injury.

On the other hand, all too frequently there’s a handy excuse for the plaintiff’s failure to avoid everyday hazards that most of us manage to avoid without a second thought.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Passengers stuck for hours on tarmac can’t sue JetBlue

A federal judge last week ended a class action brought by JetBlue passengers who claimed they had to endure hellish conditions when their planes were stranded on an airport tarmac in Connecticut for over seven hours in 2011.

Each of the plaintiffs’ state law claims were preempted by federal law regulating the airline industry, concluded U.S. District Judge Thomas J. McAvoy of the Northern District of New York in Joseph v. JetBlue Airways.

“While claims falling outside of the scope of [Airline Deregulation Act] preemption such as claims for bodily injury or wrongful death, and for which the [Federal Aviation Act’s] savings clause is often invoked, are allowed, state law claims that plainly relate to an air carrier’s prices, routes, or services are expressly preempted,” the judge explained in his April 11 decision. 

The class action was spawned by an Oct. 29, 2011 storm that produced wintry conditions in the Northeast. Numerous flights had to be diverted from New York City-area airports to Bradley International Airport near Hartford, Connecticut. Six JetBlue flights wound up on the tarmac at Bradley International, including two flights that held the two named plaintiffs in the eventual class action. 

Plaintiff Viviane Joseph was stuck on JetBlue Flight 504 (Fort Lauderdale-Newark), and Timothy Moffit found himself trapped on Flight 1013 (Boston-New York). Both plaintiffs are from Florida.

According to the plaintiffs, their planes were stranded on the tarmac at Bradley International for over seven hours. And it was not a happy time.

The plaintiffs alleged that the conditions on the aircraft became “inhumane and intolerable,” with “rolling power outages” leaving the aircraft in “total darkness” for periods of time. JetBlue allegedly ran out of food and drinking water for its passengers. What’s more, there was allegedly no water to operate the lavatories and sinks.

Evidently, the plaintiffs’ fellow passengers also didn’t respond well to adversity. The plaintiffs alleged that “passengers began to argue and fight with one another” and “physical and verbal violence between passengers was rampant.” Things got so out of hand that the captain of Flight 504 called the flight tower and asked for a police officer to come aboard.

It was probably sometime during this descent into hell that it occurred to Viviane Joseph and Timothy Moffit that they would sue JetBlue. And after surviving the experience, that’s exactly what Joseph and Moffit did.

In their class action complaint filed last November, the plaintiffs alleged that JetBlue engaged in unfair and deceptive trade practices in violation of New York law by “unfairly and deceptively” diverting their flights and creating “intolerable and inhuman conditions” on its aircraft.

The plaintiffs also claimed that JetBlue breached the implied covenant of good faith and fair dealing in their contracts with them, particularly citing JetBlue’s passenger bill of rights and the airline’s tarmac contingency plan required under federal regulations. 

Then, of course, were the personal injury claims: false imprisonment, negligence, and negligent infliction of emotional distress. 

JetBlue moved to dismiss, arguing that the plaintiffs’ state law claims were expressly preempted by the Airline Deregulation Act of 1978 and impliedly preempted by the Federal Aviation Act and its implementing regulations. 

In granting JetBlue’s motion to dismiss, Judge McAvoy took his cue from the 2nd Circuit’s decision in Air Transport Association of America v. Cuomo that federal law preempted New York’s Passenger Bill of Rights, which happened to address tarmac delays.

Addressing the deceptive business practices claim in this case, McAvoy said that the plaintiffs “have provided no compelling reason to distinguish New York’s tarmac delay legislation from the substance of their New York General Business Law claim, both of which seek to impose obligations upon airlines to provide certain services during ground delays. Enforcing the state law deceptive practices statute in this case would have the ‘force and effect of law related to a price, route, or service of an air carrier,’ as prohibited by the ADA’s preemption clause.” 

Similarly, the judge found that the plaintiffs’ implied covenant claim “seeks to add to the terms of JetBue’s contractual obligations on matters related to routes and services. The claim, which is functionally indistinguishable from the statutory unfair and deceptive practice claim, would interfere with the ADA’s purpose of deregulating air carriers, and, therefore, is expressly preempted by the ADA.”

In dismissing the plaintiffs’ personal injury claims, Judge McAvoy observed that each tort claim relied on the “facts arising from the tarmac delays and the nature of the services received from JetBlue.”

Accordingly, they could not survive preemption.

“Allowing a common law tort claim challenging an airline’s ability to make decisions such as whether to divert and land a plane safely in the face of a winter storm subjects airlines to a patchwork of obligations that would eviscerate federal regulations aimed at air safety control,” the judge said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Concrete parking stop isn’t ‘open and obvious’

You’d think that you could leave it to shoppers to keep from tripping over those concrete barriers that so frequently populate our parking lots. But a federal judge in Kentucky just ruled that something about as common and visible as a dandelion cannot be considered an “open and obvious” hazard.

The Target store in Elizabethtown, Kentucky, wants to keep cars in the adjoining parking lots from striking the sides of its building. That sounds reasonable enough.

To prevent this problem, the store installed concrete parking barriers – also called parking stops or parking bumpers – at the end of the parking spaces alongside the store to ensure an open space between parked cars and the building.

Perhaps to save money, instead of having a parking bumper for each space, Target set it up so that every pair of parking spaces shares a single barrier that extends halfway across each space.

According to U.S. District Judge Thomas B. Russell, this simple cost-saving measure may wind up costing the retail chain big bucks in the form of personal injury claims.

The problem for Target was illustrated by the mishap suffered by shopper Mary Edwards on Feb. 27, 2010. Mary and her husband, Lew, drove from their home in Greensburg to Elizabethtown to shop and run errands. At around 4:00 pm, the couple arrived at the Elizabethtown Target. Lew was driving and parked in the store’s south lot in the third or fourth space in the row abutting the store.

When Mary exited the vehicle to go shopping, she went toward the traffic lane in the parking lot, so she didn’t encounter the concrete parking stops.

However, after shopping, Mary returned by walking the path between the building and the parked cars. And Mary had her hands full. In addition to her shoulder bag, Mary had her shopping bag and a bag of popcorn.

As chance would have it, her path was blocked by a shopping cart. So Mary turned to walk between the first and second cars parked alongside the building. Mary claims that she didn’t see the parking barrier at her feet and tripped over it. Mary suffered a broken right hip in the fall.

Mary sued Target under Kentucky premises liability law, alleging that the retail store negligently failed to protect her from a dangerous condition on the property.

Target countered by making the not so unreasonable argument that the danger posed by a concrete parking stop on a blacktop surface was an open and obvious hazard.

But Judge Russell just couldn’t get it out of his head that there was a basic problem with the way Target had positioned the parking barriers at the ends of the parking spaces.

Photographs entered into the record show that the parking barrier at issue is gray and distinguishable from the blacktopped parking lot it sits on. This alone is not enough to make the condition created by the barrier obvious, however, because its unique positioning concealed the risk created by it. It is undisputed that the parking barrier at issue straddles the first two spaces. At the time of Mrs. Edwards’s fall, cars occupied the first and second parking spaces, partially or entirely concealing the barrier. A reasonable person in Mrs. Edwards’s position would not look for or recognize a raised obstruction in the path between two parking spaces because this space is commonly used for ingress and egress from vehicles and is expected to be clear of obstructions.

Moreover, the judge provided an alternative ground for denying Target’s motion for summary judgment. He concluded that, even if the danger was open and obvious, Target had a duty to protect because the customer’s injuries were foreseeable.

“In the present case the evidence shows that Mrs. Edwards left the store carrying her shoulder bag, a bag of purchased items, and a bag of popcorn. Even if the parking barrier over which she tripped and fell was open and obvious, …. it was foreseeable to Target under the circumstances that she would be distracted from and not observe the danger,” the judge wrote. (Edwards v. Target)

So, barring settlement, Mary will get her chance to make her case to a jury. It will be interesting to see if a jury of her peers agrees that a six-foot slab of concrete isn’t open and obvious.  

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Mo. woman may get paid for her eggs after all

A Missouri woman says she’s owed $5,000 for eggs she donated for another woman’s in vitro fertilization.

Yesterday, a state court recognized that she may have a claim against the hospital that harvested her eggs – notwithstanding the absence of a contractual relationship.

The egg donor, Shannon Harris, entered into a contract with Mid-West Egg Donation to sell her eggs to a third party. Mid-West is a business that serves as a middle-man between egg donors and recipients.

The way it’s supposed to work is that Mid-West screens and locates potential donors and matches them with recipients. The egg donor enters into a contract with Mid-West under which the company collects the egg donor’s $5,000 fee from the recipient and places those funds in a trust account.

The donor is then sent to the Washington University Medical Center to have the eggs retrieved (the recipient pays the donor’s medical bills). Once the eggs are successfully harvested, the egg donor gets paid.

That’s the way it’s supposed to work.

Harris claims that she entered into just such an arrangement with Mid-West but then didn’t get her $5,000 after having her eggs harvested in February 2010. Mid-West has allegedly had problems paying other egg donors, so Harris is fishing around for another source of payment.

That’s why Harris sued the Washington University Medical Center in state court for fraudulent non-disclosure. According to Harris, Washington University had gotten wind that certain Mid-West egg donors weren’t getting paid, but then kept that information under wraps while going ahead and harvesting Harris’ eggs.

A state trial court granted Washington University’s motion for summary judgment. Although the trial court didn’t articulate its reasons, it’s a safe bet that it concluded that, because Harris’ contract was with Mid-West, the hospital had no liability.

Yesterday, the Missouri Court of Appeals took a look at the case and recognized that Harris may have several viable theories of liability on which to proceed:

For example, it appears to us that Harris and University were engaged in a commercial transaction. University was in the business of removing eggs from women, storing those eggs, and delivering them to the recipient for a fee. Harris was essentially in the business of providing eggs in exchange for financial compensation. … If this qualifies as a commercial transaction, then Missouri law provides at least five circumstances in which University may have been under a duty to disclose information when it in fact knew that other donors had not been paid.

In the alternative, the appellate court explained that, even if it is eventually determined that Harris and the hospital weren’t engaged in a commercial transaction, it’s possible that the parties had something akin to a doctor-patient relationship that imposed a duty of informed consent.

“In relationships of trust and confidence, Missouri law imposes a duty to disclose information if one party (University) had superior knowledge or information not within the fair and reasonable reach of the other party (Harris),” the court said. (Harris v. Mid-West Egg Donation

With the summary judgment in favor of Washington University reversed, Harris now will have the opportunity to flesh out her claims in the trial court and perhaps collect her cash after all.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Is dog owner strictly liable for rabies scare?

A Connecticut court this week had to decide whether a state law imposing strict liability on dog owners could be stretched to compensate a babysitter who was forced to take precautions for rabies exposure despite never suffering a bite.

The unfortunate girl who was on the receiving end of a battery of rabies shots is Emma Atkinson. On July 17, 2007, Lorraine Santore hired Atkinson to babysit her two children at her home in Newtown.

Santore has dogs as pets. When Atkinson went outside to bring the dogs in for the evening, she observed them keenly interested in something at the end of the driveway. That something turned out to be a raccoon lying in the grass. The raccoon was alive but apparently sick.

Atkinson promptly gathered Santore’s dogs and brought them into the house. Authorities later determined that the raccoon had rabies.

When Atkinson first spotted the raccoon, Santore’s dogs were about five to ten feet from the dying animal. Atkinson admitted later that she did not actually observe the dogs come in contact with the raccoon. Nor did she see anything that would indicate that the dogs had been scratched or bitten by the rabid animal.

In fact, Santore’s dogs were their normal friendly selves when they returned to the house and by all accounts never did contract rabies. But given the circumstances, the dogs needed rabies shots.

Moreover, Atkinson’s pediatrician recommended that she undergo a series of rabies shots.

Fortunately, Atkinson didn’t get rabies. But for her troubles Atkinson decided to sue Santore under Connecticut’s dog bite statute. The law generally makes a dog owner liable when a dog “does any damage.”

According to Atkinson, under the law Santore was strictly liable for her potential exposure to the rabies virus as a result of her contact with Santore’s dogs in the aftermath of the raccoon incident. Atkinson wanted compensation for the cost of and pain associated with her rabies injections.

A state trial court granted summary judgment to Santore, concluding that the state’s dog bite statute could not be stretched as far as Atkinson proposed. In particular, the court read the law as limiting a dog owner’s strict liability to damage resulting from the active or affirmative conduct of the animal.

The Connecticut Appellate Court this week issued a decision affirming that judgment. In construing the statute, the court said:

Strict liability appropriately is imposed on dog owners and keepers for damage caused by the volitional and vicious or mischievous conduct of their dogs because it is reasonably foreseeable that dogs as a species will engage in such inherently dangerous behavior. Strict liability is not imposed, by contrast, for damage caused by the involuntary or innocent behavior of dogs because no special risk of harm foreseeably arises from such passive, nonaggressive behavior. In sum, … we agree with the trial court that strict liability under [the dog bite law] does not extend to damage caused by a dog’s merely passive, and, thus, innocent or involuntary, behavior.

(Atkinson v. Santore

In a feeble attempt to salvage her claim, Atkinson tried to argue that Santore’s dogs had engaged in affirmative conduct by coming into contact with the dying raccoon.

But the court pointed out that Atkinson hadn’t witnessed any such contact, and rejected her argument that contact could be inferred.

“An inference that is based on speculation and is unsupported by the evidence is insufficient to raise a genuine issue of material fact,” the court said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Children may get nothing from wrongful death

Must a jury award damages to the adult children of a man who died from medical malpractice when the evidence of a loving relationship is uncontroverted?

The Arizona Supreme Court decided Friday that a jury’s award of zero damages under such circumstances does not necessarily require a new trial.

Jerome Walsh died from an infected replacement heart valve in 2004. An Arizona jury decided that a Florence, Ariz. cardiology practice was liable for wrongful death based on its doctors’ failure to diagnose and treat the infection. The jury awarded Jerome’s wife Elizabeth $1 million.

Jerome’s four adult children were also claimants in the wrongful death case, but the jury entered a “0” on the verdict form in the spaces designated for each child’s damages.

The Walsh children asked for a new trial on damages, arguing that the jury had obviously disregarded their testimony that they enjoyed a warm relationship with their father and experienced loss by his death. The children’s testimony was uncontested by the defense.

The trial court agreed that the verdict was “internally inconsistent and not responsive” because “the liability finding required an award at least of uncontroverted damages.” But the lower court denied the motion for a new trial, concluding that the children had waived the issue by not objecting to the inconsistent verdict before the jury was discharged.

Before the Arizona Supreme Court, the Walsh children argued that they were entitled to a new trial as a matter of law given that the testimony about their close, loving relationship with their father was uncontested.

But the court noted that, unlike a common-law negligence claim, damages are not an essential element of a statutory wrongful death claim. Because under Arizona’s wrongful death statute a jury may award whatever amount “it deems fair and just,” the court explained that a jury is not statutorily required to award any compensation.

In that light, the state supreme court concluded that the jury’s award of zero damages to the Walsh children was not necessarily inconsistent with the evidence:

In this case, the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” Moreover, the children’s damage claims are based solely on their own testimony. The children are interested witnesses, and the jury may thus have discounted their testimony on that ground. The jury verdict awarding no damages to the children was not impermissible as a matter of law.

Fortunately for the Walsh children, this conclusion did not end their case. The Arizona Supreme Court went on to decide that the children had not waived their right to challenge the jury’s verdict and that the trial court should have addressed the merits of their motion.

So the state high court remanded the case for the lower court to consider, in the first instance, whether the award of zero damages was insufficient or not justified by the evidence. (Walsh v. Advanced Cardiac Specialists Chartered)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Pain pump plaintiff loses bid for punitive damages

A product liability plaintiff who claims that his shoulder cartilage was destroyed by anesthetic medication injected by an I-Flow pain pump cannot seek punitive damages, a federal judge in Minnesota ruled Tuesday. 

“Plaintiff’s counsel in this case obviously had a wealth of information available through what has now been years of discovery from Defendants’ files to try to make out a prima facie case of entitlement to punitive damages by showing that Defendants knew or had reason to know that there was a high probability that the I-Flow pain pump would injure Plaintiff. Plaintiff has failed to do so,” wrote U.S. Magistrate Judge Jeffrey J. Keyes in Healey v. I-Flow Corporation

The plaintiff, Joseph L. Healey III, is a resident of Virginia. He had shoulder surgeries in October 2002, and May 2004. According to Healey, his doctors implanted I-Flow Pain Buster pain pumps in his shoulder joints following the surgeries to administer pain killers. Healey alleged that the continuous injection of anesthetic medication into the shoulder joint destroyed his shoulder cartilage. The debilitating condition is generally known as glenohumeral chondrolysis.

In December 2009, Healey sued I-Flow and its distributor, DJO, LLC, for negligence and civil conspiracy. The complaint filed in the U.S. District Court for the District of Minnesota alleged that the defendants never performed safety testing for the use of the pain pump to inject anesthetic medication into the joint space – the “intra-articular site” – and that the FDA three times turned down I-Flow’s applications for clearance to market the pumps for orthopedic or intra-articular uses because of the lack of safety data.

According to Healey’s complaint, even though the defendants had not established the safety of the use of the I-Flow pain pump in orthopedic surgery in an intra-articular space and had not obtained FDA clearance to market it for that use, “Defendants engaged in a lucrative and long-standing nationwide campaign to do precisely what the FDA had told Defendants they could not do: Promote their pain pumps to orthopedic surgeons for intra-articular uses, which Defendants successfully did with nary a word to anyone about the untested, uncleared, and literally experimental nature of their product for shoulder stabilization procedures.”

Healey further alleged that, had I-Flow done a meaningful review of the medical literature, the medical device manufacturer “would have learned that continuously exposing articular cartilage to anesthetics, or even to normal saline, can have a toxic effect on cartilage cells.”

Healey alleged that I-Flow did learn about an association between pain pumps and chondrolysis in 2005 or early 2006, but did nothing about it until January 2007, when it added a warning about chondrolysis to the pain pump’s directions.

Last November, Healey filed a motion to amend his complaint to add a claim for punitive damages. Judge Keyes’ decision this week denied that motion.

As a threshold issue, the judge concluded that, because there was no real conflict between Minnesota and Virginia law on this issue, Minnesota’s law on punitive damages applied. Thus, Healey had the heavy burden of showing by clear and convincing evidence that I-Flow and DJO acted with “deliberate disregard for the rights or safety of others.”

In attempting to make a case for punitive damages, Healey made much out of the fact that the FDA in 1998 failed to clear the I-Flow pain pump for the expanded indication of use for the intra-articular site as requested by the medical device manufacturer.

According to Healey, the FDA’s failure to approve the pain pump for such a use placed I-Flow on notice that its product was unsafe for that purpose.

But Keyes concluded that Healey was reading too much into the FDA’s actions:

There is nothing in the evidence submitted by Plaintiff to show that the FDA ever concluded that use of the PainBuster® in the intra-articular joint space after orthopedic surgery was not safe and effective. At most, the FDA was simply saying that its previous §510(k) clearance for the I-Flow pain pump did not encompass the indication for use in the intra-articular site and thus it would require “additional information … to determine the safety and effectiveness of the device with this use”; I-Flow had not submitted such information. Significantly, the FDA did not require any contraindication labeling to warn surgeons about using the pain pump in the intra-articular space.

The judge likewise concluded that Healey failed to show that I-Flow knew or should have known about the risk of chondrolysis from the medical literature available at the time of the plaintiff’s surgeries in 2002 and 2004.

Keyes noted that none of the thirteen articles cited by Healey’s expert described any studies linking the use of a pain pump to slowly infuse an anesthetic into the joint space to chondrolysis. The judge said:

This lack of any association between pain pumps and chondrolysis is also illustrated by the fact that from the mid-1990’s to 2004, when Plaintiff’s second surgery was performed, surgeons chose pain pump infusion systems to treat pain management after joint surgery in hundreds of thousands of cases. Yet Plaintiff submits no evidence that a physician ever raised any issue about the use of I-Flow’s—or any other manufacturer’s—pain pumps causing the destruction of a patient’s cartilage resulting in glenohumeral chondrolysis during this time frame.

The judge also noted that it was not until November 2009 that the FDA required pain pump manufacturers to update their product labels to warn about the risk of chondrolysis.

In denying Healey’s motion to add a claim for punitive damages, the judge concluded that none of his evidence “constitutes clear and convincing evidence that the Defendants knew, or had a reason to know, that use of the I-Flow pain pump in orthopedic surgery would result in a high probability that Plaintiff would suffer devastating cartilage destruction as a result of the post-operative pain management.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Wife gets frozen embryos in divorce

A Pennsylvania appellate court yesterday upheld a divorce decree awarding the wife the frozen “pre-embryos” created from the husband’s sperm and her eggs.

“[B]ecause Husband and Wife never made an agreement prior to undergoing [in vitro fertilization], and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all, we agree with the trial court that the balancing of the interests tips in Wife’s favor,” wrote Pennsylvania Superior Court Judge Gene Strassburger in Reber v. Reiss

Andrea Lynn Reiss and Bret Howard Reber were married on Oct. 12, 2002. A year later, the wife was diagnosed with breast cancer. At the time of her cancer diagnosis, the wife was 36 years old.

Since the recommended cancer treatments would jeopardize the wife’s fertility, the parties were advised to undergo in vitro fertilization. The parties followed the doctors’ advice and the wife actually delayed her cancer treatment several months in order to undergo in vitro fertilization. In February and March 2004, the parties underwent the process and produced thirteen pre-embryos using the husband’s sperm and the wife’s eggs.

Pre-embryo is the technical term for an embryo between fertilization and implantation.

Following fertilization, the parties’ pre-embryos were cryopreserved and stored at a reproductive science clinic.

The wife thereafter underwent extensive breast cancer treatment, including two surgeries, eight rounds of chemotherapy and 37 rounds of radiation. According to the wife, her doctors have told her that she no longer can have children.

Unfortunately, the husband filed for divorce in December 2006. According to court records, he proceeded to further complicate matters by getting involved in a relationship with another woman. That extramarital relationship produced a son.

Meanwhile, back in the divorce case, the wife sought all thirteen pre-embryos for implantation. The wife saw the pre-embryos as her only chance to have children. The husband wanted the eggs destroyed, naturally fearing that at some point he would be called on to pay child support.

The trial court awarded the wife the pre-embryos, finding that under the circumstances the wife’s inability to achieve biological parenthood without the use of the pre-embryos outweighed the husband’s desire to avoid procreation.

Yesterday, the Pennsylvania Superior Court issued its decision in the husband’s appeal, addressing an issue of first impression in the state. The court upheld the award of the eggs to the wife.

What proved to be an insurmountable problem for the husband was that, when he and the wife agreed to in vitro fertilization, they failed to execute a form providing for the destruction of the eggs in the event of divorce.

Without the prior agreement, the state’s courts were left to apply a balancing test in which the wife’s medical issues weighed heavily.

The husband first argued that the wife needed medical testimony to substantiate her claim that she was no longer able to have children, but the court concluded that the wife’s testimony regarding what her doctors told her was sufficient.

Both the [trial court’s special] master and trial court essentially concluded that Wife’s doctors informed her that it would be highly unlikely, if not impossible, for her to become pregnant after undergoing chemotherapy treatments. After all, it is well known that “[l]ife-preserving treatments such as chemotherapy and radiation threaten fertility[.]”Furthermore, Wife’s age is a factor. Accordingly, Wife’s testimony was sufficient to support the conclusion; the trial court did not make a credibility determination; and additional medical evidence or testimony was unnecessary in this case.

The court further rejected the husband’s argument that the wife’s medical condition did not prevent her from adopting or becoming a foster parent.

There is no question that the ability to have a biological child and/or be pregnant is a distinct experience from adoption. Thus, simply because adoption or foster parenting may be available to Wife, it does not mean that such options should be given equal weight in a balancing test. Adoption is a laudable, wonderful, and fulfilling experience for those wishing to experience parenthood, but there is no question that it occupies a different place for a woman than the opportunity to be pregnant and/or have a biological child.

The husband argued that the court should not credit the wife’s vow that she would not seek child support from him given that Pennsylvania law clearly provides that a parent may not bargain away a child’s right to support.

But the court here concluded that the wife’s vow could properly be weighed in deciding the fate of the eggs, and in any event the issue of child support was not a present case or controversy ripe for review.

Finally, the court rejected the husband’s argument that it was against Pennsylvania public policy to force him to procreate with the wife when he did not want to do so.

The court recognized that state public policy is silent on the issue of forced procreation under these circumstances, meaning “unless and until our legislature decides to tackle this issue, our courts must consider the individual circumstances of each case.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Is Park Service liable for barracuda attack?

The 3rd Circuit yesterday gave a primer on the National Park Service’s duty to warn of the dangers of natural hazards in the case of a swimmer attacked by a barracuda in the Virgin Islands. 

Twelve-year-old S.R.P. didn’t have a care in the world on May 9, 2004. The boy and his mom were enjoying the beach at Buck Island. The island is part of the National Park System and is located off the northeast coast of St. Croix in the U.S. Virgin Islands.

S.R.P. was sitting on the beach with his feet in shallow water when he was attacked by a barracuda. Evidently, the barracuda mistook S.R.P.’s toes for prey. It’s not a common occurrence – barracudas don’t usually attack humans – but it does happen.

The boy suffered a severely lacerated foot in the attack. His third and fourth toes were nearly severed and surgery was required to save them.

Because the attack happened on government land, S.R.P. wants the U.S. taxpayer to pay his medical bills and otherwise compensate him for his troubles. So S.R.P. through his mom sued under the Federal Tort Claims Act, alleging that the Park Service negligently failed to warn of the dangers that barracudas pose to shallow water bathers.

Now, the Park Service’s signage and informational brochures for Buck Island warn visitors that “[b]arracuda and sharks, if encountered, should be treated with caution but are not usually aggressive toward snorkelers.”

But S.R.P. claimed that this warning wasn’t specific enough for those enjoying the shallow waters of the beach.

The Park Service countered that its warning was more than adequate, particularly in light of the fact that there was only one other recorded instance of a barracuda biting a human in the vicinity of Buck Island in the previous 22 years, and the victim in that incident was a fisherman offshore.

The U.S. District Court for the Virgin Islands dismissed the case, concluding that the government was immune under the discretionary function exception to the FTCA.

S.R.P.’s appeal prompted the 3rd Circuit to conduct an in-depth examination of the discretionary function exception in the context of the government’s obligation to warn of the dangers of natural hazards. Yesterday’s decision by the 3rd Circuit upheld the dismissal of S.R.P.’s lawsuit.

Circuit Judge D. Michael Fisher authored the opinion. As a threshold issue, the judge concluded that there was no statute, regulation, or other policy that required the Park Service to warn of hazardous conditions in a specific manner. He explained that this meant that Park Service officials “are explicitly vested with broad discretion regarding the manner in which to warn the public of dangerous conditions in national parks.”

Next, the judge tackled the issue of whether the discretionary judgment afforded to the Park Service was of a kind that the FTCA’s discretionary function exception was designed to shield. Fisher decided that the warnings at issue in this case plainly fell within the scope of the policy making that the Act was designed to protect:

[K]nowing that it could not warn of every potential hazard at Buck Island, the [Park Service] decided to focus on those it reasonably believed posed the most significant threat to visitors. Moreover, too many warning signs and brochures “would inevitably reduce the impact of the individual warnings on the public,” as would excessive warnings on any individual sign. Once an agency identifies a hazard, it “must then balance that risk against the cost of warning about that hazard and the possibility of overloading visitors with unnecessary warnings.” Such a judgment represents precisely the type of policy choice that the discretionary function exception prohibits us from second-guessing.

Fisher did throw the plaintiffs’ bar a bone, recognizing that “where the Government is aware of a specific risk of harm, and eliminating the danger would not implicate policy but would involve only garden-variety remedial measures, the discretionary function exception does not apply.”

But the judge decided that this rule didn’t help S.R.P., explaining that the record supported the district court’s conclusion that the Park Service was not aware of a specific risk.

“The key question under [our precedents] is not whether the Government was aware of danger in the most general sense, but whether it was on notice of a specific hazard,” he said. “With no shoreline barracuda attacks in the twenty-two years preceding the attack on S.R.P., the District Court did not err in finding that [Park Service] officials had no knowledge that such an attack was likely.” (S.R.P. v. National Park Service)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Rhino rollover claim against Yamaha revived

An Alabama woman will get another chance to convince a jury that Yamaha consciously disregarded a specific risk of arm and leg injuries in Rhino ATV rollovers, thanks to a decision by the state supreme court last month.

Jacklyn McMahon suffered arm and leg injuries in July 2007 when her 2007 Yamaha Rhino 660 rolled over as she attempted to make a right-hand turn. Her arm and leg injuries allegedly occurred as she extended them to support herself and/or the vehicle during the rollover.

The Yamaha Rhino has been the object of numerous lawsuits across the country, with plaintiffs’ attorneys claiming the four-wheeled all-terrain vehicle is prone to rollovers at even slow speeds because of its top-heavy narrow design, small tires and side-by-side seating.

In her lawsuit, McMahon sued Yamaha for design defect, common-law negligence and wantonness. In 2010, an Alabama jury found in favor of Yamaha on her design defect claim, but the negligence and wantonness claims never made it to the jury because the trial court granted Yamaha’s motion for judgment as a matter of law.

Last month, the Alabama Supreme Court agreed that McMahon’s common-law negligence claim failed because, implicit in its design defect verdict, the jury had already concluded either that the Yamaha Rhino was a safe product or that the accident was the result of McMahon’s contributory negligence. 

But the state high court decided that McMahon’s wantonness claim should have gone to the jury. This was so, the court explained, because there was sufficient evidence that Yamaha made various conscious decisions throughout the development and testing process of the Rhino – and after initial reports of Rhino accidents as well – knowing that arm and leg injuries like those suffered by McMahon would likely result from those decisions. 

In particular, the court noted a 2001 internal e-mail in which a Yamaha employee acknowledged that Rhino accidents would likely be of the rollover variety, and further identified the specific risk of arm/wrist and leg/ankle injuries when belted occupants tried to support themselves and/or the vehicle as it rolled over.

Yamaha tried to marginalize the import of this e-mail by pointing out that McMahon allegedly wasn’t wearing a seatbelt at the time of her accident, but the court nonetheless concluded that there was sufficient evidence for a jury to decide whether the company engaged in wanton misconduct.

“[W]e conclude that there was substantial evidence introduced at trial from which the jury could have concluded that the Yamaha defendants had specific knowledge of the risk of arm and leg injuries posed by a rollover in the Yamaha Rhino and that they wantonly failed to address that risk in a timely manner,” the court said. (McMahon v. Yamaha Motor Corp.)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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