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Personal Injury and Insurance Law Legal Research Blog

Technology Expands Recovery for Negligent Infliction of Emotional Distress

Posted by Alfred C. Shackelford III on Thu, Sep 23, 2021 @ 12:09 PM

Fred Shackelford—Senior Attorney, National Legal Research Group

        The concept of bystander liability was first recognized by American courts in the landmark California case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968). Today, most courts allow recovery under this doctrine, also known as negligent infliction of emotional distress ("NIED"). Under this theory of liability, a tortfeasor can sometimes be held liable to a bystander who experiences emotional distress from observing a direct injury to another person. Under Dillon, bystander liability was limited by foreseeability, and courts would take into account such factors as (1) whether the plaintiff was located near the scene of the accident as opposed to a distance away from it; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident rather than learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or only a distant relationship.

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Topics: Alfred C. Shackelford III, personal injury law, negligent infliction of emotional distress, bystander liability, live-stream audio and video

PERSONAL INJURY: Tort Immunity for Nonprofit Volunteers Is Limited to Their Organizational Roles

Posted by John M. Stone on Fri, Aug 20, 2021 @ 09:08 AM

John Stone—Senior Attorney, National Legal Research Group

            A youth mentor brought a 12-year-old boy to his farm for a weekend of outdoor activities, where he allowed the boy to drive an all-terrain vehicle ("ATV") without a helmet or supervision. When the boy suffered permanent serious injuries, including a brain injury and partial blindness, after he lost control of the ATV, he sued the mentor for negligent entrustment and supervision. A trial court granted summary judgment dismissing the suit, concluding that the Minnesota Nonprofit Corporations Act immunized the defendant from civil liability for his alleged negligence.

            An appellate court reversed the lower court because the Act applies only to a volunteer's actions that are undertaken "within the scope of the person's responsibilities as a[n] . . . agent[.]" Hogan v. Brass, No. A20-0846, 2021 WL 852073 (Minn. Ct. App. Mar. 8, 2021). In this case, the nonprofit organization through which the mentor and the boy became associated connected adult mentors with children affected by a parent's incarceration. It provided only same-day mentoring services, encouraging each volunteer mentor to connect with the child on a weekly basis for one to four hours. In various ways, the organization expressly declined a role in interactions that involve overnight or extended arrangements.

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Topics: personal injury, John M Stone, nonprofit volunteers, tort immunity, actual and express limits

INSURANCE: Business Interruption—COVID-19 Claims

Posted by Amy Gore on Thu, Oct 8, 2020 @ 11:10 AM

Amy Gore—Senior Attorney, National Legal Research Group

            During this pandemic, many business owners believed that valuable coverage they had purchased for the businesses would provide a source of some financial security. Prudent business entities purchased business interruption coverage to "indemnify the insured against losses arising from the inability to continue the normal operation and functions of the business, industry, or other commercial establishment insured." Annotation, William H. Danne Jr., Business Interruption Insurance, 37 A.L.R. 5th 41 (1996 & Westlaw 2020). A typical event that has triggered this kind of coverage would be a fire or a hurricane, or some other natural disaster that caused damage to the business premises and closure of the business.

            Today, more and more businesses have discovered that the claim to recover this valuable coverage is being denied by insurers. The need by the insurance industry to stop an anticipated onslaught of claims arising out of the pandemic is evidenced by the fact that "[i]n mid-March 2020, in response to inquiries from members of the United States House of Representatives, the CEOs of four leading insurance industry trade organization[s] jointly signed a letter stating, 'Business interruption policies do not, and were not designed to, provide coverage against communicable diseases such as COVID-19.'"

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Topics: Insurance, Amy Gore, retroactive coverage, denial of coverage, business owners, business interruption coverage

PERSONAL INJURY: Medical Malpractice—Liability Without a Doctor-Patient Relationship

Posted by Alfred C. Shackelford III on Fri, Dec 20, 2019 @ 09:12 AM

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a hospitalist be held liable for advising against admitting a patient to a hospital when he has no doctor-patient relationship and no direct contact with the patient? In Warren v. Dinter, 926 N.W.2d 370 (Minn. 2019), Susan Warren arrived at a health clinic with symptoms of abdominal pain, fever, and chills. A nurse practitioner (Simon) ordered tests and concluded that the patient had an infection that required hospitalization. Simon then called a local hospital to seek admission for the patient, and her call was randomly assigned to Dr. Richard Dinter, a hospitalist on call. Although the facts were disputed as to the nature of the conversation between Simon and Dr. Dinter, the Warren court accepted the nurse's account that Dr. Dinter decided that the patient did not need to be admitted to the hospital.

            Three days later, the patient died at home. Her son sued the doctor and the hospital, alleging negligence in caring for the patient, including advising the nurse that the patient did not require hospitalization. The lower courts ruled that there was no liability, concluding that the relationship between the nurse and the doctor was merely an informal conversation and did not create a doctor-patient relationship.

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Topics: Alfred C. Shackelford III, medical malpractice, personal injury, doctor-patient relationship, hospitalist, foreseeability of harm

TORTS: Government's Liability for Child Abuse by Foster Parents

Posted by Alfred C. Shackelford III on Wed, Jun 19, 2019 @ 12:06 PM

The Lawletter Vol 44 No 4

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a government agency be held liable in tort when a child is abused by a foster parent? The Washington Supreme Court addressed this issue of first impression in H.B.H. v. State, 429 P.3d 484 (Wash. 2018). In that case, several children were placed in foster care with a couple who abused the children physically, sexually, and psychologically over a five-year period. For a year during that period, social workers failed to conduct mandatory in-home health and safety checks, and the agency ultimately recommended that the foster parents be allowed to adopt the children. Years later, two of the children brought a tort action against the state Department of Social and Health Services (“DSHS”).

            The DSHS argued that it owed no common-law duty because the children were not in the agency's physical custody at the time the abuse occurred. Rejecting that argument, the court concluded that a detailed statutory scheme created a special relationship between the agency and the children. The custodial relationship between the DSHS and the children gives rise to a common-law duty in accordance with Restatement (Second) of Torts § 315(b). The court found that such a special relationship exists even though the DSHS did not have actual physical custody of the children.

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Topics: torts, Alfred C. Shackelford III, government liability, foster parent abuse

Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

Posted by Matthew T. McDavitt on Thu, Jan 24, 2019 @ 11:01 AM

Matthew McDavitt—Senior Attorney, National Legal Research Group

            Sometimes, through ignorance or neglect, employers subject to the state statutory workers' compensation mandates fail to obtain or maintain the requisite insurance. Where employers subject to the system's mandates are found on the date of an employee's workplace accident (or other compensable event) to lack such insurance (either as a self-insurer or through a third-party insurer), such noncompliance with the workers' compensation insurance mandate has serious consequences for the employer.

            First, a noncompliant employer loses a primary benefit of the workers' compensation system's exclusive remedy provision.  This provision bars injured workers from suing their employers in tort in exchange for statutorily defined wage replacement and medical benefits, thereby significantly limiting the potential legal exposure of the employer regarding such accidents.

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Topics: Matthew T. McDavitt, workers' compensation, noncompliance consequences, insurance requisite, state's employer mandates

TORTS: Therapist's Liability for Eliciting False Memories of Sexual Abuse

Posted by Alfred C. Shackelford III on Thu, Dec 27, 2018 @ 11:12 AM

Fred Shackelford—Senior Attorney, National Legal Research Group

            When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

            The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

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Topics: torts, Alfred C. Shackelford III, inappropriate treatment techniques, therapist, improper application of treament, false memories

INSURANCE: Automatic Revocation of Beneficiary upon Divorce

Posted by Amy Gore on Mon, Nov 26, 2018 @ 11:11 AM

Amy Gore—Senior Attorney, National Legal Research Group

            The area of presumed intent in the designation of life insurance policies has long been a source of dispute and litigation. When a state legislature enacts statutes that address an automatic revocation of insurance beneficiary status under particular circumstances, additional litigation is likely to result. Such was the case in Sveen v. Melin, 138 S. Ct. 1815, 1817 (2018). There, a couple were married in 1997 and the following year the named insured designated his wife as the primary beneficiary under his life insurance policy, and his two children from a prior marriage as contingent beneficiaries. The couple divorced in 2007, and the divorce decree never addressed the disposition of the life insurance policy or the rights of the contingent beneficiaries. Upon the named insured's death in 2011, both the wife and the two children made competing claims for the entire proceeds. The children of the named insured relied on Minnesota Statutes § 524.2-804, subd. 1, which provided that divorce revoked the beneficiary designation of any former spouse. The former spouse asserted that the statute, which was not in effect at the time the policy was purchased and the time she was designated as a beneficiary, violated the Contract Clause, U.S. Const. art. 1, § 10, cl. 1. 

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Topics: insurance law, presumed intent, Amy Gore, life insurance beneficiary

TORTS: Is Your Computer Tracking You?

Posted by Alfred C. Shackelford III on Mon, Oct 8, 2018 @ 11:10 AM

Fred Shackelford, Senior Attorney, National Legal Research Group

            In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

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Topics: invasion of privacy, personal injury, intrusion upon seclusion, computer tracking

TORTS: Social Host's Legal Duty to Render First Aid

Posted by Lee P. Dunham on Thu, Jan 25, 2018 @ 11:01 AM

Lee Dunham, Senior Attorney, National Legal Research Group

            During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?

            Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.

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Topics: torts, special relationship exception, legal duty to guest, first aid

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