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.

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.

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.

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.

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.