The Lawletter Vol 38 No 6
Fred Shackelford, Senior Attorney, National Legal Research Group
A "golden rule" argument asks jurors to place themselves in the position of a party. For example, an attorney may ask jurors how much the loss of the use of their legs would mean to them or ask them to "do unto others as you would have them do unto you." Virtually all courts have considered such arguments to be improper if made in regard to damages. However, courts appear to be split as to whether such arguments are permissible with reference to liability.
The U.S. Court of Appeals for the District of Columbia recently addressed this issue in Caudle v. District of Columbia, 707 F.3d 354 (D.C. Cir. 2013). In Caudle, several employees sued their employer for retaliation under the Civil Rights Act of 1964. During closing argument, their attorney made four statements to the jury that were challenged on appeal.
First, counsel instructed the jury to "ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office[?]" Id. at 358 (emphasis omitted). Second, counsel argued, "Ask yourself this: Wouldn't you think twice about complaining about workplace discrimination[?]" Id. (emphasis omitted). Third, counsel asked the jurors "to put yourselves in the plaintiffs' shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded[?]" Id. (emphasis omitted). Finally, counsel argued:
By protecting plaintiffs' right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.
Id. (emphasis omitted).
The Caudle court noted that at least four circuits have held that golden rule arguments are proper when they relate to liability, while the Third Circuit found no distinction between golden rule arguments relating to damages versus liability. The Caudle court decided that a golden rule argument is improper regardless of whether it relates to liability or to damages and that such an argument may require a new trial. The court concluded that the rationale for prohibiting a golden rule argument as to damages—preventing a verdict based on inappropriate considerations such as emotion—applies equally to liability arguments.
Turning to the specific arguments by plaintiffs' counsel, the Caudle court found that all four were inappropriate. The first three arguments were improper because they asked the jurors to decide how each of them—not how a reasonable person—would feel in the plaintiffs' situation. The fourth argument was not a golden rule argument, but the court found it to be inappropriate as well. It was a "send a message" argument which, like the golden rule arguments, diverted the jury's attention from its duty to decide the case based on the facts and law as opposed to emotion, personal bias, or interest. Id. at 361.
Next, the court found that a new trial was warranted, for several reasons. The case was a close one, yet the jury awarded $1 million in damages. Counsel's statements related to central issues in the case, and there were multiple improper arguments. The court found that the trial court's general instruction—to decide the case without prejudice, sympathy, fear, favor, or public opinion—was insufficient to eliminate unfair prejudice in the case.
The Lawletter Vol. 38 No. 3
Fred Shackelford, Senior Attorney, National Legal Research Group
In many states, one of the elements of the tort of malicious prosecution is initiating or procuring the institution of a criminal proceeding. See generally Restatement (Second) of Torts § 653. This element focuses on whether the alleged tortfeasor had probable cause at the time he or she initiated or procured the criminal action against the plaintiff. What if probable cause exists initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue the action? Is there any liability when a party maintains the action thereafter? In a case of first impression, the Hawaii Supreme Court recently addressed this issue.
In Arquette v. State, 290 P.3d 493 (Haw. 2012), the respondents initiated an action in 2004 against the petitioner (Arquette) and others, alleging that Arquette had participated in a scheme to sell long-term deferred annuities to elderly consumers through unfair or deceptive acts. The scheme allegedly involved Arquette and an insurance agent, an attorney (Wong), and others, who were accused of using Wong's name and law practice on mailings that offered information about elder law. Individuals who responded to the mailings were then contacted at their homes, where Arquette and others falsely identified themselves as "paralegals" working for Wong. After personal and confidential financial information was obtained from the persons who were contacted, Arquette and others allegedly marketed annuities to them without providing them with the information necessary for making an informed decision. In 2006, the action against Arquette was dismissed without prejudice.
In 2008, Arquette sued the respondents for malicious prosecution and other causes of action, based on both initiation and maintenance of the 2004 action. The trial court granted summary judgment for the respondents as to the claim for maintaining the 2004 action, and the Hawaii Intermediate Court of Appeals affirmed, ruling that Hawaii does not recognize a tort action for maintaining a prosecution when probable cause to continue no longer exists.
On appeal to the Hawaii Supreme Court, the court noted that such a cause of action has been recognized in Restatement § 674 and in 13 other states. Explaining the rationale for this cause of action, the court explained:
Although litigation may be warranted in the eyes of the plaintiff at its commencement, if that plaintiff becomes aware that the litigation is no longer justified, then the plaintiff should terminate the litigation. Indeed, "litigation 'has a profound effect upon the quality of one's life that goes beyond the mere entitlement to counsel fees.'" [Young v. Allstate Ins. Co., 119 Haw. 403,] 421, 198 P.3d [666,] 684 [(2008)] (quoting Aranson v. Schroeder, 140 N.H. 359, 671 A.2d 1023, 1028 (1995)).
If a plaintiff fails to terminate litigation when he or she knows it would be appropriate to do so, then the same harms are inflicted on the defendant's quality of life that would have been inflicted if the plaintiff knew that the litigation was unjustified in the first instance. In order to properly guard against the harms associated with protracted litigation, the tort of maintaining malicious prosecution should be recognized.
Id. at 501.
The Arquette court concluded that "the tort of the continuation of a malicious prosecution is not an unwarranted enlargement of the current doctrine but, rather, logically stems from the policies underlying the tort." Id. at 504. The court set forth three elements for the cause of action, all of which must be satisfied to establish liability, as follows:
A workable standard for continuation of malicious prosecution is easily garnered from the elements that must be shown to prove the initiation of a malicious prosecution. Thus, the standard for continuing a malicious prosecution would be (1) that the prior proceedings were terminated in the plaintiff's favor, (2) that the prior proceedings were maintained without probable cause, and (3) that the prior proceedings were maintained with malice.
Id. at 503.
Examining the record, the court concluded that the respondents did have probable cause to bring the original complaint against Arquette. As to whether probable cause existed thereafter, the court found that throughout the proceedings, there had been a reasonable belief in the underlying facts of the case. Moreover, the court found no independent evidence of malice in continuing the prosecution.
Following the decision in Arquette
, Hawaii now joins at least 13 other states in recognizing a cause of action in tort for maintaining a prosecution when probable cause to continue no longer exists.
April 25, 2013
Fred Shackelford, Senior Attorney, National Legal Research Group
At a baseball stadium, what duty of care is owed to spectators with respect to errant balls? The Idaho Supreme Court recently addressed this issue in Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013). The plaintiff in Rountree lost an eye as a result of being struck by a baseball while he was in Memorial Stadium's "Executive Club" section, which was located at the very end of the third-base line. This area was one of the stadium's only sections that was not covered by vertical netting.
The Rountree court noted that the precise duty owed by stadium owners and operators to spectators injured by foul balls was a matter of first impression in Idaho. The court recognized that other courts have addressed the issue, stating:
The majority of jurisdictions to consider the issue have limited this duty by adopting some variation of the Baseball Rule. See generally James L. Rigelhaupt, Jr., Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp.2003); Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144 (1935); Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 180 P.3d 1172 (2008); Lawson, 901 P.2d 1013 (Utah 1995); Bellezzo v. State, 174 Ariz. 548, 851 P.2d 847 (Ariz.App.1992); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981); Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989); Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo.1950); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925).
Though many variations exist, the most common formulation of the Baseball Rule is that stadium owners and operators must provide "screened seats [ ] for as many [spectators] as may be reasonably expected to call for them on any ordinary occasion." Quinn, 46 P.2d at 146; see also Rigelhaupt, supra, 91 A.L.R.3d 24 § 3[a]. The rationale behind this is put bluntly by the Eno Court: "it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness" and "they are liable to be thrown or batted outside the lines of the diamond." Eno, 147 N.E. at 87. The Eno Court therefore concluded that "due care on the part on the management does not require all of the spectators to be screened in; that the management performs its duty toward the spectators when it provides screened seats in the grand stand and gives spectators the opportunity of occupying them." Id.
Id. at 377-78 (footnote omitted).
The court acknowledged that it had the authority to establish or limit existing tort duties. However, it declined to do so in this case, concluding that Idaho's existing premises liability principles provide an adequate framework for analyzing a stadium owner's duty of care. Thus, a baseball fan at a stadium is an invitee, to whom the premises owner owes a duty to keep the premises in a reasonably safe condition or to warn of hidden or concealed dangers.
The court concluded that it was not necessary to establish a special rule for baseball stadiums or that if a special rule were necessary, then the legislature would be better equipped to do research and formulate one. The court reasoned as follows:
Boise Baseball admits that at least for "seven seasons[, Mr. Rountree's] accident is the only time a spectator has suffered a 'major' injury because of a foul ball" at Memorial Stadium. The rarity of these incidents weighs against crafting a special rule. There is no history of accidents that we can look to, and draw from, to sensibly create a rule. Furthermore, Boise Baseball has not provided any broader statistical evidence regarding the prevalence of foul ball injuries in general, and—assuming they are so prevalent—how varying stadium designs might prevent them. Without this information, drawing lines as to where a stadium owner's duty begins, where netting should be placed, and so on, becomes guesswork. These kinds of questions are appropriate for the Legislature because it "has the resources for the research, study and proper formulation of broad public policy." Anstine v. Hawkins, 92 Idaho 561, 563, 447 P.2d 677, 679 (1968). Declining to adopt the Baseball Rule leaves policy formulation to the deliberative body that is better positioned to consider the pros and cons of the issue.
Id. at 379.
After declining to adopt the Baseball Rule, the court turned to the issue of assumption of risk. Specifically, the court decided whether primary implied assumption of risk is a viable defense in Idaho. Answering in the negative, the court first distinguished between primary and secondary assumption of risk. "Secondary" implies that assumption of risk is an affirmative defense to an established breach of duty and is a phase of contributory negligence. Id. at 380. "'Primary . . . assumption of risk' essentially means that the defendant was not negligent, because there was no breach, or no duty." Id. (emphasis omitted). Elaborating on prior Idaho case law, the court ruled that assumption of risk is a defense in Idaho only when a plaintiff expressly assumes the risk, either in writing or orally. The court stated:
Allowing assumption of risk as an absolute bar is inconsistent with our comparative negligence system, whether the risks are inherent in an activity, or not. Moreover, cases involving primary implied assumption of the risk are "readily handled" by comparative negligence principles; as in any case, fault will be assessed, and liability apportioned, based on the actions of the parties. Whether a party participated in something inherently dangerous will simply inform the comparison, rather than wholly preclude it. Here, whether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury. Because comparative negligence can adroitly resolve these questions, there is no need for this Court to disturb its holding in Salinas [v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985)]: assumption of the risk—whether primary or secondary—shall not act as a defense.
Id. at 381.
The Rountree decision clarifies Idaho law as to the duty of care that is owed to fans at baseball games. More importantly, the case confirms that assumption of risk is not a defense in Idaho except when a plaintiff expressly assumes risks. Thus, the court's decision has broad implications for negligence cases generally.
The Lawletter Vol 37 No 11
Fred Shackelford, Senior Attorney, National Legal Research Group
In a case of first impression, the Montana Supreme Court has joined courts from many other states in recognizing a cause of action for negligent credentialing of a physician. In Brookins v. Mote, 2012 MT 283, ___ P.3d ___ (not yet released for publication), an expectant mother hired an obstetrician who maintained a practice in his home. The obstetrician ("Dr. Mote") had previously resigned his position at Mineral Community Hospital ("the Hospital") and pleaded guilty to misdemeanor sexual abuse of a child. The Montana Board of Medical Examiners had placed the doctor on probation and prohibited him from treating minor patients unless a third party was present. Aware of these facts, the Hospital declined to rehire him as an employee but did extend credentials for him to use the Hospital's facilities as an independent physician.
Medical problems persisted during the pregnancy and after delivery, and a medical malpractice action was filed against the Hospital and Dr. Mote. The complaint alleged that the doctor had had unauthorized sexual contact with the baby during delivery, examination, and subsequent circumcision. A claim for negligent credentialing was asserted against the Hospital. Following a settlement with Dr. Mote, the trial court granted summary judgment for the Hospital.
On appeal, the court noted that it had not formally recognized the tort of negligent credentialing but that 40 years earlier it had observed that hospitals have a duty to take steps to ensure patient safety in the process of accreditation and granting of privileges. The court also noted that it recognizes analogous torts, such as negligent selection or hiring of an independent contractor. Finally, the court acknowledged that at least 30 other states recognize the tort of negligent credentialing. The court concluded:
Based on these authorities, we are persuaded that the "gradual evolution" of the common law supports the recognition of the tort of negligent credentialing. Sacco, 271 Mont. at 234, 896 P.2d at 426. We therefore recognize negligent credentialing as a valid cause of action in Montana. Similar to a medical malpractice claim, a plaintiff in a negligent credentialing action must establish the following elements: "(1) the applicable standard of care, (2) the defendant departed from that standard of care, and (3) the departure proximately caused plaintiff's injury." Estate of Willson [v. Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, ¶ 17, 258 P.3d 410, ¶ 17].
Id. at ¶ 60.
The Brookins court also ruled that expert testimony was required in order to establish that the Hospital had deviated from the standard of care. Since the mother did not present such testimony, the court affirmed the grant of summary judgment for the Hospital.
The Lawletter Vol 37 No 9
Suzanne Bailey, Senior Attorney, National Legal Research Group
As any plaintiff's attorney will tell you, even the best case can meet an early demise if service of process is not properly effected on the defendant. A recent unpublished decision from the U.S. Court of Appeals for the First Circuit—of some interest because it was authored by Retired U.S. Supreme Court Associate Justice David H. Souter—illustrates the need to do one's homework on proper service, particularly when the defendant resides outside the country. The case also demonstrates the power of the court to dismiss for dilatory practices, even when there is no deadline for service of process.
In Feliz v. MacNeill, Nos. 10-1549, 11-1308, 2012 WL 3590807 (1st Cir. Aug. 22, 2012) (not selected for publication), the plaintiff estate commenced a medical malpractice and wrongful death suit against three physicians, including Dr. Brian MacNeill, by filing the complaint in a Massachusetts trial court on January 29, 2009. Under the Massachusetts rules, the plaintiff had 90 days to obtain service. On the 90th day, April 30, 2009, the plaintiff both successfully moved for a 90-day extension of time to serve the complaint and improperly attempted to serve the complaint by leaving it with an assistant to the general counsel of the medical center where Dr. MacNeill formerly worked. While under no obligation to do so, Dr. MacNeill's lawyers informed the plaintiff in early June that Dr. MacNeill was a permanent resident of Ireland. Ten days later, the plaintiff improperly attempted to serve Dr. MacNeill in Ireland by certified mail. The extended period for service expired on July 29, 2009, and on August 10, 2009, Dr. MacNeill moved to dismiss for lack of service. Only after Dr. MacNeill had moved to dismiss did the plaintiff hire the services of an international process service company, APS, to make service on Dr. MacNeill in Ireland. Shortly after hiring APS and one month after the expiration of the extended time to obtain service, the plaintiff moved for a second 90-day extension, which the court granted. Two months later, the United States, as codefendant, removed the case to the U.S. District Court for the District of Massachusetts. One month after removal, the second 90-day extension granted by the Massachusetts trial court expired. One month after expiration of the second extension, Dr. MacNeill again moved to dismiss for lack of service. The plaintiff, who had not sought a third extension from the federal court, opposed the motion, citing difficulties with establishing APS's agency to the satisfaction of Irish authorities. The federal district court denied Dr. MacNeill's motion without prejudice and gave the plaintiff an additional 45 days (in addition to the 47 days that had already passed after the expiration of the second extension) to make service. At the end of the 45-day extension, the plaintiff moved for another 90-day extension, and Dr. MacNeill renewed his motion to dismiss. The district court denied the motion for an extension and granted the motion to dismiss with prejudice. The district court denied a subsequently filed motion to vacate the order of dismissal and entered final judgment for Dr. MacNeill. Two months later, the plaintiff filed another motion to vacate on the basis that APS, through a local Irish authority, had served Dr. MacNeill on May 5, 2010. The district court denied the motion for lack of jurisdiction, since the matter was already pending in the First Circuit Court of Appeals.
Using words like "dilatory," "lackadaisical," and "sluggish" to describe the attempts of the plaintiff's counsel to make service on Dr. MacNeill, the First Circuit affirmed the decision of the district court. The court noted that while the Massachusetts rule requiring service within 90 days of filing the complaint did not apply once the case was removed to federal court, the case had been pending in state court for 280 days at the time of removal, with no real effort to make service. The court also observed that although the 120-day time limit for making service set forth in Federal Rule of Civil Procedure 4(m) specifically does not apply to service in a foreign country, it is within the discretion of the court to dismiss for failure to serve abroad when a plaintiff is dilatory. As examples of the plaintiff's unexcused delay, the court cited the plaintiff's failure to attempt service for the first 90 days after filing the complaint, the entire time permitted under the Massachusetts rules; the plaintiff's attempt to serve Dr. MacNeill by leaving the complaint with a legal assistant of the medical center; the plaintiff's attempt to serve Dr. MacNeill in Ireland by certified mail; the two-month delay in contacting APS after Dr. MacNeill's attorneys advised the plaintiff of his permanent residence in Ireland; the failure to seek additional extensions of time to make service until prior extensions had expired; a 19-day delay in seeking an order from the federal district court after APS advised the plaintiff that the Irish authorities needed an order appointing APS as a special process server; and the 97-day delay in notifying the district court that service had taken place 461 days after the plaintiff had filed the original complaint. In spite of the difficulties posed by service outside the country, Justice Souter put these facts in context, stating:
[I]t is telling that once APS had its credentials in hand, on February 4, 2010, it took only 90 days to get approval from the Irish authorities and to serve process on Dr. MacNeill. If she had attempted service with any diligence, Feliz probably could have served MacNeill within 120 days of filing her complaint, within the period of only one extension of time for good cause under the applicable state rule, and well outside the zone of danger of dismissal under Federal Rule 4.
Id. at *5.
case is a primer in "how not to do it." While certainly no reader of this lawletter would commit all of the errors noted by Justice Souter in the First Circuit's opinion, the decision is a reminder of the importance of addressing unusual issues regarding service of process at the outset of the case rather than at its unnecessary end.
December 18, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
Under English common law, a right of action for personal injury abated upon the injured person's death, and the decedent's dependents were left without a legal remedy. In 1846, the English Parliament enacted the Fatal Accidents Act, better known as Lord Campbell's Act, creating a cause of action for wrongful death. Before long, all of the state legislatures in the United States had passed similar wrongful death statutes.
However, beginning as early as 1884, American courts interpreted these statutes to exclude recovery for the death of unborn children. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). This trend began to change in 1946, as courts started to allow recovery for the wrongful death of infants who had been injured before birth but died after being born alive. Cf. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946) (recognizing cause of action for prenatal injury incurred after fetus became viable). As of late 2011, at least 36 states generally recognized, whether by statute or case law, a cause of action for the death of an unborn child. Carranza v. United States, 2011 UT 80, & 14 n.9, 267 P.3d 912.
However, not all of these states have specifically addressed the issue of whether a cause of action exists for the death of an unborn child where the death occurs prior to the child's viability. Courts that have decided this issue have reached different conclusions. For example, courts in New York, North Carolina, and South Carolina have refused to allow recovery for the wrongful death of nonviable fetuses or have suggested that there can be no such recovery. Johnson v. Ruark Obstetrics & Gynecology Assocs., 365 S.E.2d 909, 912 (N.C. Ct. App. 1988) (dictum), aff'd, 395 S.E.2d 851 (N.C. 1990); Crosby v. Glasscock Trucking Co., 532 S.E.2d 856 (S.C. 2000); Bacani v. Rosenberg, 861 N.Y.S.2d 24 (App. Div. 2008). Conversely, courts in Alabama, Illinois, Missouri, Oklahoma, South Dakota, and Utah have recognized causes of action for the wrongful death of nonviable fetuses. Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); Smith v. Mercy Hosp. & Med. Ctr., 560 N.E.2d 1164 (Ill. App. Ct. 1990); Connor v. Monkem Co., 898 S.W.2d 89, 92 (Mo. 1995); Pino v. United States, 2008 OK 26, 183 P.3d 1001; Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787; Carranza, 2011 UT 80, & 14 n.9, 267 P.3d 912. See generally Sheldon R. Shapiro, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411.
Of course, since wrongful death causes of action arise by statute, the issue is typically resolved by interpreting statutory language. The Restatement (Second) of Torts reflects this reality:
Harm To Unborn Child
(1) One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.
(2) If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.
Restatement § 869.
The more recent cases suggest that the trend is toward allowing recovery for the wrongful death of nonviable fetuses. For example, in the Carranza case, the Utah Supreme Court interpreted the term "minor child" to include any fetus from the moment of conception, reasoning that the term "minor" sets an upper age limit on the term "child" but not a lower limit. In the Pino case, the Oklahoma Supreme Court construed a statute that allowed recovery for the death of "one" and determined that the term "one" included a nonviable fetus. 2008 OK 26, & 20, 183 P.3d 1001.
In the Mack case, the Alabama Supreme Court focused on public policy and an Alabama criminal statute in deciding that recovery should be allowed for the wrongful death of a nonviable fetus. The court explained:
Given the purpose of the Wrongful Death Act of preventing homicide, we agree with the Huskey Court that it would be "incongruous" if "a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly." Huskey, 289 Ala. at 55, 265 So.2d at 597-98. Moreover, the viability rule, much like the born‑alive rule, actually benefits the tortfeasor who inflicts a more severe injury. Under the viability rule, a tortfeasor who inflicts an injury that causes the immediate death of a nonviable fetus escapes punishment, while a tortfeasor who inflicts an injury that does not result in death, or that results in death only after the fetus attains viability, may be liable for damages. As the Eich Court reasoned, "[i]t would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant," especially given the focus in the Wrongful Death Act on punishing the wrongdoer by allowing punitive damages. Eich, 293 Ala. at 97, 300 So.2d at 355.
In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover, it is an endeavor that unfairly distracts from the well established fundamental concerns of this State's wrongful‑death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that "logic, fairness, and justice" compel the drawing of such a line; instead, "logic, fairness, and justice" compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.
79 So. 3d at 611.
In Virginia, the trend toward more liberal wrongful death recovery has taken the form of legislative action. At its 2012 legislative session, the General Assembly amended the Wrongful Death Act, Va. Code Ann. § 8.01-50, to allow recovery for "fetal death," as defined in Code § 32.1-249(2). Under the statutory definition, "fetal death" is defined to occur "regardless of the duration of pregnancy." Va. Code Ann. § 32.1-249(2). The amendment to Virginia's wrongful death statute abrogates the holding in Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969), wherein the court held that there is no cause of action for the death of an unborn viable child, because such a child was not a "person" under the wrongful death statute.
In the absence of specific legislative action, it is likely that courts will continue to grapple with the issue of recovery for the wrongful death of nonviable fetuses. Cf. Jenkins ex rel. Hajeh v. Hearn Vascular Surgery, P.A., 719 S.E.2d 151 (N.C. Ct. App. 2011) (remanding personal injury case to determine whether personal injury claim exists for child who was injured prior to viability but born alive). If the present trend continues, it is likely that more states will allow such recovery in the future.
The Lawletter Vol 37 No 7
Fred Shackelford, Senior Attorney, National Legal Research Group
Businesses often require a child's parent to sign a release before the child may participate in an activity that the business conducts or sponsors. In some cases the release includes an indemnification provision that requires the parent to indemnify the business from any claim brought on behalf of the child. In a case of first impression, the Maryland Court of Special Appeals has ruled that such agreements are invalid on public policy grounds.
In Rosen v. BJ's Wholesale Club, Inc., No. 2861 Sept. Term 2009, 2012 WL 3764517 (Md. Ct. Spec. App. Aug. 30, 2012) (not yet released for publication), a membership warehouse club provided a play center for its customers' children, but a parent was required to sign a release and indemnity agreement in advance. While the plaintiff mother was shopping, her child was injured while playing on an apparatus known as "Harry the Hippo." The key issue in the case was whether the release agreement was enforceable to relieve the defendant of liability.
Lacking on-point authority in Maryland, the Rosen court turned to case law from other states for guidance. In other states, the majority rule is that public policy precludes enforcement of such agreements, for several reasons. First, a statute or rule may require court approval in order to release a child's claim, although the Rosen court noted that such is not the rule in Maryland. Second, such agreements may remove an important incentive to act with reasonable care, and they are often imposed without any bargaining or opportunity to buy insurance. Third, commercial businesses are in a better position than children are to eliminate hazards and protect themselves. Finally, a state may act as parens patriae to protect children from harm.
court adopted the majority view, stating that its holding would provide incentives for commercial enterprises to take reasonable precautions in operating and maintaining their facilities, and to obtain adequate insurance to cover risks arising from the negligence of agents and employees. With regard to the agreement's indemnification provisions, the court ruled that they were an invalid attempt to circumvent the public policy that invalidated the release language. The court expressly declined to consider whether its ruling might apply when nonprofit or governmental entities are involved.
August 28, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
If an individual unsuccessfully attempts to monitor another's private activities, can he or she be held liable for invasion of privacy? The Iowa Supreme Court decided this issue in the case of Koeppel v. Speirs, 808 N.W.2d 177 (Iowa 2011). In Koeppel, an employee, Koeppel, discovered a video camera in a bathroom at her workplace. An investigation revealed that her employer, Speirs, had hidden the camera there in an effort to monitor another employee's activity, allegedly because he suspected that she was abusing drugs or engaging in other conduct detrimental to his business.
The camera, which was pointed toward a toilet, was designed to transmit a signal to a receiver located in Speirs's office, where it could be monitored. The camera's battery had a useful life of only a few hours, and at the time it was discovered, its battery was dead. However, when police replaced the battery, the camera operated, and the monitor briefly displayed a "snowy, grainy, foggy" image before its screen displayed a "no signal" message. Speirs claimed that he had not been able to detect an identifiable picture on the monitor and had planned to remove the camera from the bathroom.
Koeppel sued in tort for invasion of privacy—specifically, for the branch of this tort known as "unreasonable intrusion upon the seclusion of another." The trial court granted summary judgment for Speirs, holding that the tort required an actual, rather than an attempted, intrusion.
On appeal, the Iowa Supreme Court first analyzed the general nature of the tort at issue. The court observed that the cause of action is based upon the particular method that is used to obtain information, not the content of whatever information is obtained or how the information may be used or disseminated. The court recited the two elements of the tort: (1) that there be an intentional intrusion into a matter in which a plaintiff has a right to expect privacy, and (2) that the intrusion be highly offensive to a reasonable person. The court noted that although Restatement (Second) of Torts § 652B does not specifically define "intrusion," that section's illustrations include examples such as taking photographs of a sick patient in a hospital or of activities in a neighbor's bedroom, or installing a recording device on another's telephone.
Speirs conceded that placing a camera in a bathroom would be highly objectionable to a reasonable person, but the parties disagreed about what proof is required to establish that an intrusion occurred. The Koeppel court reviewed case law from various other jurisdictions, noting that other courts are divided on the question of whether a person can intrude without actually viewing or recording the victim. The court agreed with the approach taken by the New Hampshire Supreme Court in Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964), in which the court held that plaintiffs whose bedroom was bugged were not required to prove that the defendant landlord actually overheard or viewed activities in a secluded place. Instead, the Hamberger court found that an intrusion occurs when the defendant performs an act that has the potential to impair a person's peace of mind and comfort associated with an expectation of privacy. The Koeppel court reasoned as follows:
[W]e find the approach taken in Hamberger and its progeny is more consistent with the spirit and purpose of the protection of privacy. The secret use of an electronic listening or recording device is abhorrent to the interests sought to be protected by the tort. Amati, 829 F.Supp. at 1010. The approach is also consistent with the path we have started to follow. See Tigges, 758 N.W.2d at 829 (finding the installation of equipment, recording activities with the equipment, and attempting to view the activities recorded established an intentional intrusion). Additionally, the comments and illustrations contained in the Restatement (Second) of Torts make no suggestion that the intrusion into solitude or seclusion requires someone to actually see or hear the private information. See Restatement (Second) of Torts § 652B illus. 3, at 379. Finally, the minority rule fails to provide full protection to a victim, while giving too much protection to people who secretly place recording devices in private places. Direct evidence that an actual viewing occurred can be difficult to establish, and a person who is inclined to secretly place a camera in a private area can easily incapacitate the camera when it is not in use so as to minimize any responsibility upon discovery. A plaintiff who learns a camera was placed in a private place should not be forced to live with the uncertainty of whether an actual viewing occurred. Such an approach would leave those victims with a reasonable belief that someone could have listened to or seen a private moment without a remedy simply because the device was unable to actually operate to invade privacy at the time it was discovered.
808 N.W.2d at 184.
The court ruled that in cases involving an electronic device, there must be proof that the equipment was "functional," although it does not have to be "operational" at the time it is discovered. Id. at 184-85. There is no liability "if the device was not capable of being configured or operated to transmit or record in any conceivable way." Id. at 184. However, the court added that "[e]ven though the act of intentionally placing an inoperable camera or recording device into a private area may not support the intrusion element of invasion of privacy, it could give rise to the tort of intentional infliction of emotional distress." Id. at 185 n.2. The court ruled that the trial court had improperly granted summary judgment for Speirs, stating:
In this case, Speirs presented evidence tending to dispute Koeppel's claim the battery‑operated camera could have functioned at any time when she was in the bathroom. This evidence tended to show the camera did not send a strong enough signal to Speirs' office that would have exposed her privacy. Yet, Koeppel submitted evidence that the camera was capable of working when a fresh battery was in place. Under the standard we adopt in this case, a reasonable fact finder could conclude the camera was capable of exposing the plaintiff's activities in the bathroom. Importantly, there was evidence the camera was capable of operation, and there was evidence it operated in the past from a different location in the office. This evidence meets the standard and would lead a reasonable person to believe his or her privacy had been invaded.
Id. at 185.
Finally, the court emphasized that it was not recognizing a cause of action for attempted invasion of privacy. The court explained:
Speirs argues that a standard of intrusion that does not require evidence that the camera actually functioned to record an image essentially creates a tort of attempted invasion of privacy. We disagree. We recognize attempted conduct normally does not give rise to an intentional tort because the required element of actual harm does not occur. See Anthony J. Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L.Rev. 541, 565 (2005) [hereinafter Sebok]. It is axiomatic that there can be no tort if there is no injury. See United States v. Stefonek, 179 F.3d 1030, 1036 (7th Cir.1999) ("[T]here is no tort without an injury . . . a litigant may not complain about a violation of rights that does not harm the interest (whether in privacy or in a fair trial) that the rights protect. (There are no 'attempted torts.')."); see also Sebok, 64 Md. L.Rev. at 565. Thus, we agree with Speirs that our law does not recognize a tort of attempted invasion of privacy. See Meche, 692 So.2d at 547. However, the act of intrusion is complete once it is discovered by the plaintiff because acquisition of information is not a requirement. Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 709 (Ala.1983) (citing Restatement (Second) of Torts § 652B illus. 5, at 379). Additionally, harm from intrusion arises when the plaintiff reasonably believes an intrusion has occurred. See Amati, 829 F.Supp. at 1010 (recognizing same proposition). Therefore, the standard we establish to satisfy the intrusion element does not create a claim for attempted invasion of privacy.
As modern technology continues to produce devices that may be used to record the private activity of unwitting victims, the Koeppel
precedent may ease the burden of plaintiffs as they attempt to prove the elements of the tort of invasion of privacy.
The Lawletter Vol 37 No 3
Matthew McDavitt, Senior Attorney, National Legal Research Group
In all areas of law, long-established principles must at times be applied to novel circumstances or technologies, with a result that is often predictable, based upon the general legal elements of the underlying legal claim. Such is the case with a threat in the world of international shipping—the hijacking and ransom of commercial vessels in the Gulf of Aden. This threat is not truly novel, but the danger, often romanticized in popular culture due to its remoteness to modern life, has after more than a century reemerged in recent years as a major threat.
Maritime insurance policies are often named-risk policies, and one major class of risk is termed "general average," a broad category encompassing losses to be proportionately borne by all parties interested in the venture, so long as the losses were occasioned by voluntary sacrifice of part of the ship or a portion of the cargo in order to save the vessel or the voyage in an emergency. An examination of two types of losses experienced during a pirate hijacking—payment of ransoms and consumption of fuel and supplies by pirates—signals what losses are properly compensable under the general average named-risk category of an insurance policy.
There are three requisite elements to prove a general average sacrifice: (1) the vessel must be in imminent danger; (2) there must be an intentional, voluntary sacrifice of property by the crew or owners to avert that peril; and (3) by that intentional sacrifice, the safety of the vessel, the remaining cargo, or the voyage must be secured. See Am. Afr. Exp. Co. v. S.S. Exp. Champion, 442 F. Supp. 715 (S.D.N.Y. 1977). These elements needed to prove a general average sacrifice were later codified in the York-Antwerp Rules, incorporated into many marine insurance policies today:
There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.
York-Antwerp Rules 2004 R. A(1) (emphasis added). Under Rule C(3), "any indirect loss whatsoever, shall not be allowed as general average."
Thus, in light of these well-settled elements of general average, we may examine the two classes of losses that often occur during piracy events. First, payment of ransoms is clearly covered as a general average sacrifice, as ransoms represent property (money) paid by parties interested in the maritime venture in order to secure the safety of the vessel and crew during a time of peril.
In contrast, the supplies and fuel consumed by the hijackers while the vessel is under the control of the pirates are, under these same elements, clearly not a general average sacrifice. Such consumption of rations and fuel by pirates, (1) while certainly made during a period of peril for the vessel, is (2) not an intentional and voluntary sacrifice by the crew or owner but a theft by the hijackers, and (3) such consumption does not operate to secure the safety and freedom of the vessel. Thus, losses realized by pirate consumption of provisions and fuel during the hijacking event would not be covered as a general average sacrifice. The U.S. Supreme Court acknowledged this important distinction over a century ago, back when piracy was a then-modern threat:
The distinction between voluntary and compulsory sacrifice is well illustrated . . . [by the example that] money voluntarily paid by the master to ransom the ship and cargo from pirates is to be contributed for [i.e., general average sacrifice]; but not so as to goods or money forcibly taken by pirates.
Ralli v. Troop, 157 U.S. 386, 393-94 (1895) (emphasis added) (citations omitted).
May 8, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
Courts in various jurisdictions have arrived at different conclusions when deciding whether umbrella insurance policies are statutorily required to provide uninsured ("UM") or underinsured ("UIM") motorist coverage. One article has summarized the case law as follows:
Although uninsured or underinsured motorist coverage is an almost universally statutorily required component of motor vehicle liability policies, the question whether "excess" or "umbrella" insurance policies are also required to provide such coverage varies jurisdictionally. Many courts addressing the issue have found that umbrella policies, which are designed to protect against an infrequent risk of catastrophic loss in the form of excess judgments, and for which proportionally low premiums are paid, do not fall within the scope of an uninsured motorist statute which was intended to apply only to primary policies . . . . Conversely, some courts have found that their uninsured motorist statutory schemes do contemplate the inclusion of umbrella policies. Those cases which consider whether an excess or umbrella policy is statutorily required to provide uninsured motorist coverage, as well as cases which consider whether coverage is provided by the terms of a policy, and, if so, at what point such coverage begins, have been collected and analyzed in this annotation.
Lisa K. Gregory, Annotation, "Excess" or "Umbrella" Insurance Policy as Providing Coverage for Accidents with Uninsured or Underinsured Motorists, 2 A.L.R.5th 922 (1992 & Westlaw database updated weekly).
This issue was recently resolved in Colorado in the case of Apodaca v. Allstate Insurance Co., 255 P.3d 1099 (Colo. 2011). In Apodaca, the insureds were covered under automobile and umbrella policies, both of which were issued by Allstate. The automobile policy included UM/UIM coverage in the amount of $100,000 per person and $300,000 per occurrence, while the umbrella policy provided $1 million in excess liability coverage for occurrences arising out of, among other things, "occupancy of a land vehicle . . . by an insured for personal transportation." Id. at 1100. The umbrella policy did not expressly provide UM/UIM coverage, and it specifically excluded coverage for "personal injury or bodily injury to an insured." Id. at 1101.
A Colorado statute requires that UM/UIM coverage be offered and included, unless rejected in writing, in any "automobile liability or motor vehicle liability policy" delivered or issued in Colorado. Colo. Rev. Stat. § 10-4-609(1)(a). The court framed the issue as whether an umbrella policy that includes supplemental liability coverage for automobiles or motor vehicles is within the scope of this statute. The court noted that an umbrella policy is a distinct type of excess liability policy, which may also provide primary coverage for certain risks that an underlying policy may not cover.
Turning to the language of the statute, the court observed that it does not purport to apply to all liability policies, but only to automobile or motor vehicle liability policies. In addition, the statute applies only to policies "with respect to any motor vehicle licensed for highway use in this state." Id. at 1105. The court viewed the statute as focusing on insurance policies that provide liability coverage for specifically identified vehicles licensed for use in the state and noted that the insureds' underlying policy designated four particular vehicles and required premiums that were calculated based on considerations specific to each vehicle. In contrast, the premium for the umbrella policy was "not tethered to specific aspects of the policyholder's automobiles or their use." Id. The umbrella policy was "not inherently tied to particular automobiles or motor vehicles, or even the activity of driving." Id. The court ruled that the umbrella policy was not the type of liability policy encompassed by the statute, stating:
But an umbrella policy is not transformed into an "automobile or motor vehicle liability policy" simply because it includes coverage for liability arising from the use of automobiles. An umbrella policy is an inherently different type of policy. As Allstate observes, it would be equally inaccurate to label the umbrella policy an "aircraft policy," "boat policy," or "homeowners policy."
The court declined to rule in favor of the insureds on the basis of public policy considerations. The court also declined to adopt a "minimum liability" analysis that some other courts have followed, whereby umbrella policies are excluded from UM/UIM statutes based on legislatures' presumed intention to offer insureds only minimum amounts of coverage. The Apodaca court noted that Colorado insureds can elect to have UM/UIM coverage in excess of minimum limits under financial responsibility laws, and it based its decision solely on the language of section 10-4-609(1)(a).
Although the court ruled that umbrella policies are not required to provide UM/UIM coverage, it did implicitly warn insurers that they cannot evade their obligation to offer UM/UIM coverage for automobile policies by disguising them as umbrella policies. The court stated:
Our holding, however, is not predicated on the superficial labeling or packaging of a policy. See, e.g., 4 New Appleman on Insurance Law Library Edition § 24.02 (explaining one must "analyze the policy language, rather than basing decisions on labels or headings" in determining whether a particular policy affords excess or umbrella coverage). Instead, we look to the plain language of the policy to determine whether it is fundamentally an "automobile liability or motor vehicle liability policy" within the meaning of the UM/UIM statute. An insurer could not, for example, remove an automobile liability policy from the reach of the UM/UIM statute merely by adding some coverage that is unrelated to automobiles, such as identity‑theft coverage.