Just recently, the Arizona Supreme Court ruled that the Original Tortfeasor Rule (OTR) is no longer applicable. This ruling comes after the Cramer v. Starr decision was taken up to the Arizona Supreme Court. The Court decidedly ruled that the OTR should be discontinued as it is a direct contradiction of the comparative negligence framework which has been the standard of negligence in the state of Arizona for the past few decades. And quite frankly, the OTR is an illogical and rather unfair means of establishing liability.
Original Tortfeasor Rule – The Wrong Approach
Cramer v. Starr is a case where the plaintiff was injured in a car accident with defendant. As a result of the injury, plaintiff had to undergo spinal surgery. The defendant designated the physician who was responsible for the surgery as a nonparty at-fault. The trial court held that this nonparty at-fault designation was inconsistent with the OTR. In other words, defendant could by extension be found liable for the negligence brought on by a medical provider.
The liability would not be placed on the physician or the medical staff but rather it would indirectly transfer to the defendant by way of the OTR. OTR states that the defendant will be held liable for any injuries that arise from the surgery performed on the plaintiff. Even if the medical staff is negligent in their operation, the liability will be transferred to the defendant. The case worked its way up to the Arizona Supreme Court, where the Court ultimately decided that the OTR is no longer applicable and that the defendant’s liability should be in accordance with the comparative negligence framework.
A More Accommodating Standard
This does not mean to say that a defendant cannot be liable for injury brought on by medical providers; rather it limits defendant’s liability to what is deemed as “foreseeable” harm brought on by medical providers. If it can be proven that defendant was aware that a certain surgical operation could foreseeably lead to added injury to the plaintiff, then they can be held liable.
This approach is still in compliance with the comparative negligence framework. Just to step back for a moment, a comparative negligence framework is the standard of negligence that is slowly becoming the accepted standard in states all around the country. This framework on its face seems like the more fair and equitable standard than its counterpart, contributory negligence, which is slowly but surely fading out.
Comparative negligence allocates liability based on the degree of fault of both parties. If say that the defendant was only partially at fault, then he will be held liable for something like 30% of the damages. At the same time, if the plaintiff is remotely at fault, damages will be reduced accordingly. In a contributory negligence framework, the defendant will be free from liability if the plaintiff is even slightly liable. This seems rather extreme. The comparative negligence framework gives a fair treatment of the case by allocating liability in accordance with the facts of the case.
The OTR does not go hand in hand with the comparative negligence framework, because now the defendant will be held liable for the actions of a medical professional who has engaged in medical malpractice or the like. Comparative negligence is contrary to this and that is why the OTR has been tossed aside by the Arizona higher courts. If both systems were to exist concurrently, this would create a void in the legislative map. It would be a tug of war between an almost extinct and rather unrealistic law with a more modern and well defined law which suits both parties.
Comparative Fault as a Fairness Standard
Comparative fault, as mentioned before, is taking over the legal landscape. Most states, including California, have conformed to this standard and it won’t be long before it becomes uniform across the states. The significance of such an approach is that it is not slanted towards one side or the other. A system that throws everything it has at the defendant is simply not fair. Of course, the “foreseeability” which has been ingrained in the civil law framework for a long time is still a factor and can still pin the defendant if they reasonably should have known that an incident was likely. Otherwise, a defendant who has no involvement in the plaintiff’s medical treatment should not be held responsible. All the same, it would not be fair if the plaintiff was not allowed to recover.
Under the comparative standard, plaintiff can recover all or nothing, depending on the circumstances of the case. This is good because they can recover as much as 100% if the defendant is entirely at fault or they might be limited to a lesser amount, which is fair to the defendant and also gives plaintiffs an incentive to not bring frivolous lawsuits. Of course, this is not to say that this standard is perfect but it currently is the best choice available and is a sign of things to come. The mindset has been to point fingers at the guy who caused the accident and there is obviously merit to this but there have to be boundaries and holding one man liable for a chain of events is not always the most moral or legally sound move.
Kansas may not be known for many things, but now it can be known for having the world’s tallest water slide and the terrible accident that decapitated a ten-year-old boy.
Caleb Schwab rode the water slide at Schlitterbahn Water Park in Kansas City with two female adult strangers. The ride is a 168-foot-tall “Verruckt,” which means “insane” in German. Two to three thrill-seekers ride on a multi-person raft down the drop in a tube encased with netting, and all are strapped in separately. According to eyewitness accounts, Caleb was somehow ejected from his seat and bounced around between the netting surrounding the slide. Other patrons claimed that Caleb sat in the front seat, but the Velcro harness in the front didn’t work effectively. According to news reports, the combined weight of all three riders must reach at a minimum 400 pounds. Witnesses claimed that Caleb and the two female riders did not reach 400 pounds.
Caleb’s cause of death was ruled a “neck injury.” The other two riders were treated for minor facial injuries. His death is being investigated as a civil, not criminal, matter. However, details are vague and authorities have not disclosed much information regarding the accident.
Questions remain as to how Caleb died and whether his death was caused by the ride itself, the safety equipment, or some other malfunction. What causes of action can Caleb’s family bring and against whom for this tragic accident?
Wrongful death is a legal cause of action brought by a victim’s surviving family members when a person dies due to the negligent misconduct of another person or entity. The surviving family members have a right to bring a civil lawsuit seeking damages from the responsible party.
So what does a family member have to prove in a wrongful death case? First, the party (plaintiff) would have to prove that the accused party (defendant) owed a duty of care to the deceased person. In this case, the water park owes all of its patrons a duty of care to ensure that all the rides are safe. Evidently the water slide was not safe, either from some machinery malfunction, a faulty harness, failure to enforce the rules, or some combination of them.
Second, defendant must have breached the duty of care. Here, Caleb’s family members could show that the water park’s duty of care was breached if they didn’t follow specific safety standards required of all water park rides. For instance, let’s say there’s a requirement that all water park slides over 70 feet tall must have an over-the-shoulder harness that is strapped in with seatbelt. Reports state that Schlitterbahn Water Park’s harnesses used Velcro. If that were the case, the park breached its duty of care to Caleb.
Finally and perhaps most importantly, plaintiff must demonstrate that defendant’s particular action directly caused the wrongful death. If there’s a motor vehicle accident and defendant ran a red light while driving, the defendant still wouldn’t be liable if the decedent’s death was actually caused by an airbag that deployed moments before the accident (depending on the state’s laws).
Given what we know about Caleb’s death and the eyewitness accounts, his family should pursue a wrongful death cause of action as their claim seemly has evidence to support it.
Negligent Infliction of Emotional Distress to Bystanders
When someone is injured, they can bring a cause of action known as negligent infliction of emotional distress. It is a claim that is used when the defendant acts so carelessly that he or she must compensate the injured person for his or her mental or emotional injury. “Bystanders” may also claim this cause of action if they are a close family member and witnessed or arrived immediately on the scene of an accident where another family was injured or killed by the defendant’s negligence.
It’s unclear whether Caleb’s family was waiting at the end of the slide for his arrival. If they were, we can only imagine the horrific scene that they witnessed moments after Caleb was decapitated. While reports remain unclear as to what anyone saw, witnesses do corroborate that a crowd of people gathered at the bottom of the slide, and that Caleb’s body was found there. Assuming that was the case and his family saw or came upon the scene later, they could claim negligent infliction of emotional distress as bystanders.
Legal claim aside, one can only hope that Caleb’s family members didn’t witness the scene.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
IKEA, the multinational home furnishings company, has recalled millions of its dressers and chests after another child’s death has been linked to the products. This latest incident involved a 22-month-old boy from Minnesota who was killed when a six-drawer dresser tipped over and crushed him. This is not the first time that IKEA products have brought tragedy. Numerous cases of children and toddlers being killed as a result of these dressers sold by IKEA have been reported in the past few decades.
This recall comes subsequent to the company’s aim to prevent such accidents from occurring. A repair program had been announced, which aimed to encourage parents to anchor these dressers to the wall. Now, with the latest incident, IKEA is forced to recall such products. Should IKEA be held responsible for such incidents? Is this a clear case of products liability? Should the parents be at least partially responsible?
As a product that is sold and distributed by IKEA, they could be held liable for their role as distributor. Also, whoever manufactured the product could potentially be held liable as well. All the same, it is difficult to pin the deaths to IKEA or the manufacturer. The product design seems not to have flaws and only if it is handled recklessly can such tragic incidents actually happen. For starters, other dressers distributed by other such retail chains have similar features as the ones under the IKEA name.
With the IKEA dressers, there does not seem to be any blatant defects with the product. The consumer should know upon purchase that these things could be dangerous if handled carelessly. An argument can be made that these dressers should have come with hooks or some form of wall support. This would ultimately be a weak argument as many such dressers these days don’t come with such accessories.
The Parents Were Negligent, not IKEA
As for negligence standards, based on which state the incident occurred, either comparative or contributory negligence standard would be applied. Under the comparative framework, the plaintiff will only recover up to the amount that they are not liable for. In other words, if the plaintiff’s negligence was at all responsible for the death of the child, then a certain percentage would be deducted from the recovery. Under contributory framework, which is slowly fading out and is frowned upon by the legal community, if plaintiff is even 1% at fault, then they will have no recovery.
For instance, if the parents left the child to himself and he is hurt by the dresser, it is the parents’ fault. They should have known better than to allow their child to be around something as unstable as a dresser. Under the comparative standard, the parents could partially recover from IKEA and under the contributory framework, they would not be entitled to any damages.
The standard of care for parents is adults of same age and like-mindedness. Standard of care is used when determining if someone has been negligent or not. Most parents would know better than to leave their children around dangerous objects. It would likely be the case that placing your child in the vicinity of the dresser in question would likely be a sign of negligence. Children are not aware that these dressers are unstable. It is up to the parent to use common sense to ensure that the child is safe from harm. You can’t just go suing anyone you like whenever something happens. As cliché as it sounds, sometimes you have to take responsibility for your actions.
IKEA should not be held responsible in cases like this. Now if the dresser had a faulty design that the parents could not have avoided under any circumstance or if it was a recurring problem, then they would have a better case against IKEA. Even though many related cases have been made against IKEA with regards to these dressers, it seems that the parents in these cases deserve some blame too. This is not a typical products liability case. Honda recently had a major recall because of defective airbags. With regards to Honda, that is a blatant defect which the driver has no control over. The scenario posed here with the parents and the dresser is more line with say a driver who gets into a car accident while he was texting. There is a good degree of negligence involved.
Assumption of Risk Could Protect IKEA
Furthermore, IKEA has a good case of assumption of risk. Assumption of risk is a defense against a personal injury and other related claims. Assumption of risk, just as it sounds, is when the plaintiff knowingly assumes the risk when it comes to something. The defendant, aka IKEA, is free from liability if they can establish assumption of risk.
For example, in a jet ski trip, there usually is an assumption of risk as the person riding the jet ski knows and is aware of such inherent dangers that the activity poses. The defendant must establish that the plaintiff knows or is aware of such a risk before assumption of risk kicks in. A contract is one way of establishing that an assumption of risk exists. Whether there was terms and conditions that had to be signed by buyer when purchase was made is not known at this time. With a ski trip or skydiving or other such activity, it is rather easy to establish that assumption of risk has been made.
Here, it is a bit tricky to establish whether the parents knew that a dresser could pose any risk. Personally, although not so obvious, it seems like there are some dangers to a dresser. If parents are not willing to have kids play with small items, what makes us think that they don’t consider a dresser as a possible threat? Going back to the standard of care, it is more reasonable to believe that the parents do believe that dressers and chests and other pieces of furniture can pose some danger, especially around their kids. At the end of the day, both IKEA and the parents have a case to make but if I had to bet on it, IKEA is in a better position.
Authored by Sam Behbehani, LegalMatch Legal Writer
How much would you pay for the thrill of a lifetime? Los Angeles, California created an open glass-enclosed slide attached to the exterior of a downtown skyscraper. The slide is one thousand feet above Los Angeles and is one of the newest tourist attractions in the city. Called the “Skyslide,” the slide is a 45-foot long glass tube attached to the side of the city’s U.S. Bank tower. The tower is owned by a Singapore-based real estate company, OUE Skyspace LLC, who bought the tower three years ago and invested $50 million to renovate the building. The cost to ride is $33 and opened last month. It is said to offer riders the thrill of a lifetime.
But now the tower is faced with its first lawsuit only a month after its grand opening. A woman visiting Los Angeles with her husband from Woodmere, New York, claims she suffered a broken ankle sliding down the slide. Her complaint alleges OUE Skyspace LLC is negligent for failing to slow the rider down enough before reaching the end of the slide. Currently, there are a stack of mats in the runout area that “catches” the rider. According to the complaint, there was a gap that trapped the plaintiff’s feet and caused her ankle to break.
What is Negligence?
Negligence is the most common type of personal injury lawsuit. Negligence is the failure to use the amount of care that an ordinary person would in similar circumstances. In layman terms, negligence means that a person or entity acted in a careless (or negligent) manner. As a direct result of the negligence, someone was injured or property was damaged. Negligence differs from other areas of the law in that it is based on a person’s failure to take certain precautions that caused harm to another, rather than from a person’s direct action.
The plaintiff in this case argues OUE Skyspace LLC, as the builder of the slide, was negligent for creating a slide that did not adequately slow down the riders before landing.
Defense: Waiver of Liability
Extreme sport enthusiasts, such as people who bungee jump or skydive, sign what’s called a “waiver of liability.” A liability waiver is a form used to protect a person, business or entity from liability for dangerous activities by allowing the participant to sign a release before participating. Have you ever checked the back of your ski lift ticket? Even ski resorts include a liability waiver section on the back of their lift tickets in small print.
It is unclear whether the slide riders had to sign a liability waiver before riding the ride. However, even if there was a waiver, the owners of the slide are not protected from liability if the slide was not run safely. A finding of negligence would negate any waiver of liability signed prior to riding on the slide.
Defense: Assumption of the Risk
Assumption of the risk is a defense to a personal injury claim that bars or reduces the plaintiff’s right to recovery, even if the defendant is found to be negligent. The legal theory requires a demonstration that the plaintiff voluntarily and knowingly assumed the risk of injury as it’s inherent in the dangerous activity.
In order to prove the defense of assumption of risk, the defendant must show that:
It is important to note that “actual knowledge” means the risks associated with the activity were obvious or apparent, and that the risk must not be forced upon the plaintiff.
Slides are found on playgrounds and were created for the enjoyment of young children. Slide injuries are relatively uncommon. Therefore, plaintiff would be found to have had no “actual knowledge” that she might break her ankle on the slide. Although she voluntarily rode on the slide, because she did not have actual knowledge of the danger associated with riding a slide, which society deems a relatively safe act, an assumption of the risk defense would not prevail.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
3-D technology has been ubiquitous these past few years, in that it is all around us, whether it be on the big screen while viewing a cinematic feature or when accessing the 3-D option on the Nintendo handheld system. When it comes to 3-D printers, which has carved the way for a new wave of technological advancement and has provided new opportunities for innovation, it is in a precarious spot with regards to the law. 3-D printers are a new breed of technology and aren't easily categorized by legal experts.
On the one hand, this kind of technology can be placed under the intellectual property framework, but there is so much more to it than just that. Most definitely, these 3-D printers have patent application to them and potentially some copyrights as well. However, a facet of law that also warrants attention with regards to 3-D technology is product liability. Just as the manufacturer of an automobile might be faced with a lawsuit even though the accident occurred thousands of miles away, here too the question becomes how far-reaching is the scope of the 3-D printer when it comes to commencing lawsuits.
One example of lawsuits in this field is with regards to adhesive products. Glue has been produced through 3-D technology but, sometimes the glue contains harmful chemicals. Who should the victim go after in cases like these?
The Quagmire That Is 3-D Technology
As it pertains to 3-D printers, product liability laws are up in the air as this is new technology that is yet to be tapped into fully. There are many overriding elements to it. The million dollar question is who should be held responsible if there ever is a lawsuit involving the 3-D printer technology. Before we delve any further, I will give a quick explanation as to how 3-D printers actually work so that we have a better understanding of the different factors that are at play here.
A 3-D printer uses a "computer-aided design" or better known as a CAD software, which acts as the blueprint for the product. This software is then used to generate the product. Now referring back to the question presented, should we go after the manufacturer of the printer, or rather the people responsible for the software that lent itself to the product? There are other players involved of course, such as the wholesaler and other distributors of the product. Even ad agencies can fall under the umbrella. For example, it is quite common for billboards to make statements that show the product in a positive light. Now if the product is defective and causes harm, then the ad agency has misrepresented. Usually, the manufacturer is the same as the CAD developer.
A big problem to this is that there is a good amount of transferring of ownership that takes place behind the scenes. Software licensing is one way of determining who is at fault, for whoever is the intellectual property holder will be the one who owns the rights to the work. However, the underlying issue is that licensing conflates who actually owns the software. Open source licensing (OSL gives IP right to third party to do whatever they like with it), which makes it even more difficult as this gives many third parties access to the underlying blueprint to tweak and alter it however they like. Then later, these third parties might use this modified blueprint as their basis for a different product altogether. This convolutes the situation.
Product liability laws are currently in flux because of this novel issue. Some states abide strictly to the strict liability standard whereas others hardly ever apply it. In my opinion, it seems that the law in this field is headed towards a more flexible strict liability standard. To elaborate, strict liability is the standard liability that is applied in many civil lawsuits. This standard is very prominent in product liability cases. However, at least as it pertains to this 3-D technology, it would be wise to apply the strict liability more flexibly. Strict liability holds the party that is involved to a very high standard, regardless of how detached they are to the actual issue itself.
For example, if Google is the developer of the software that controls self-driving cars and one of the cars is involved in an accident due to a systematic error, Google will be held liable regardless of the circumstantial evidence, such as the durability of the car, human error on the part of the driver, etc. This seems very intense, at least in a discipline that is currently under scrutiny such as 3-D technology. I believe that the strict liability standard will be re-vamped to some degree to give some breathing space to the people involved in the development of such technology. Another solution might be to do what a few states do, which is to not apply the strict liability standard at all. Currently, the majority of states such as New Jersey stick to the strict liability standard but some modification of this standard seems inevitable.
Improving Intellectual Property Laws
Because it is so difficult to establish who is at fault in product liability cases, an alternative method would be to tighten down on intellectual property laws. For instance, there are intellectual property experts such as Eugene Volokh of The Volokh Conspiracy who will attest to intellectual property laws being too lax when it comes to software licensing. As beneficial as the Creative Commons license and other such OSLs are, they have a potentially harmful aspect to them. I believe that the underlying software that provides the blueprint for the products could be licensed out with better terms and conditions. Ultimately, it comes down to what is stated in the contract.
Most of these open source licenses have tenuous terms and at times leave out essential provisions. This allows anyone to build off the source code. This complicates things because now we don't know who owns the rights to the copyright. If the terms are laid out clearly, then the person harmed by the product will know who to go after. As this whole issue deals with who should be held liable, the actual manufacturers could place safeguards against potential lawsuits by including indemnification clauses in their contracts. These indemnification clauses would be directed against the developers of the underlying software. Indemnification means that in a lawsuit, whoever is listed under the indemnification will pay for the damages that arise out of the lawsuit. This is one way of identifying who should be liable and also provides safeguards to parties that do not want to be held to the strict liability standard.
Authored by Sam Behbehani, LegalMatch Legal Writer