Duty, breach, causation, and damages. Those are the elements of a negligence claim, one that a Mississippi lawyer tried to pursue because a Popeye’s chicken failed to provide him with a knife for his drive-through order. Yes, you read that right.
Paul Newton Jr. of Gulfport, Mississippi had to undergo emergency surgery to remove a piece of chicken lodged in his throat that he claims he choked on because the fast-food chain failed to provide him a knife to cut the chicken into pieces. Newton ordered two chicken breasts, red beans and rice, a biscuit and a soft drink. What did he get with his meal? A spork. Instead of being able to use a knife to cut the chicken into appropriate pieces, Newton claims he was left to “hold a chicken breast in his hands and to tear off pieces thereof with his teeth.”
Newton is suing Popeye’s Chicken because he says it’s their duty to provide customers with the proper utensils needed in order to eat the food they ordered. Not only does he want Popeye’s to start providing the correct utensils to their patrons, but he asked for medical expenses, pain and suffering, and any other damages that could be shown at trial. As ridiculous as this claim sounds, does it have a legitimate basis for an award of damages?
Did Popeye’s Owe a Legal Duty to its Customers?
You can’t win a negligence claim if there was no legal duty to begin with; this is the first step to look at when determining whether a negligence claim has any standing. Newton claims Popeye’s owes a duty to provide appropriate utensils for safe consumption of purchased food orders.
The most common example of a created duty is through a doctor-patient relationship. A doctor has a legal duty to provide a patient with competent medical care. The outcome of these cases are dependent on the facts and circumstances of the case at hand—competent medical care doesn’t always mean the same thing in each situation. Think of it more in terms of what care is reasonable. What kind of care is expected from a doctor in a relatively similar situation with relatively similar credentials?
Same rules apply for a consumer and a fast food chain they choose to visit. Now restaurants usually have premise liability where they have a duty to exercise reasonable care to protect their patrons from harm. Was there foreseeable harm to the patron on behalf of the owner? No foreseeable harm, no duty. Think slip and fall accidents.
Does this apply to choking on a piece of chicken? Certainly not under premise liability, but you could argue the same general principles. Is it foreseeable that a customer would choke because they didn’t receive the correct utensils? Seems a bit of a stretch but crazier rulings have come out before.
Did Popeye’s Breach Any Duties?
Once again, there’s so many aspects involved in a negligence claim, but if there was in fact a legal duty for Popeye’s to provide appropriate utensils, the next question becomes what’s considered appropriate. Is a knife appropriate for chicken? Would a reasonable customer expect to receive utensils in their fast-food order? If you order a salad at McDonald’s, don’t you expect to receive a fork?
Did the Breach Cause Damages?
Would a reasonable patron have eaten the chicken without a knife? Mississippi is a pure comparative fault state, which means Newton can still collect damages from Popeye’s even if he was partially at fault for choking. Regardless of actual fault, though, first causation needs to be proven and this can get tricky.
Would a failure to provide a knife really have caused Newton to choke? It’s definitely arguable, but I don’t think Newton could win based on the theory of actual cause that “but for” Popeye’s failure, the harm wouldn’t have occurred. He certainly could have very easily taken smaller bites of the chicken. Most reasonable patrons would exercise ordinary care for their own protection when eating and chewing food, which leaves me to believe Newton assumed the risk of eating a piece of uncut chicken. Had Popeye’s actually provided a knife, there’s no way to know whether Newton wouldn’t have still choked.
What about proximate cause? Was it reasonably foreseeable to Popeye’s that failing to provide appropriate utensils would cause a customer to choke? In my opinion, no. When you order that salad at McDonalds—yes, of course you expect to receive a fork because it’s easier to eat that way. You can still eat the salad without a fork, though, and doing so wouldn’t foreseeably cause choking.
The case certainly has standing, but whether or not it’s legitimate enough to win is a question Popeye’s luckily won’t have to wait to find out, as Newton has since dropped his case.
There’s a lot wrong with the trucking industry. Cutting corners is far too frequent. But what can you do to address that?
The trucking industry’s been in a pretty rough place for the past several years. Already severely overworked and at-risk for a wide range of health problems (truck driving is one of the unhealthiest jobs in America), truckers are in shorter and shorter supply. Due to tough economic conditions, trucking companies are putting even more pressure on these drivers, leading them to cut corners and take risks they ordinarily wouldn’t.
And all of this is in the face of falling pay and higher driving costs.
How did we get here? How did we arrive at the point where negligence and violation of federal rules is a regular thing? Why are so many trucking companies so cavalier about road safety?
There’s no one answer to that - but part of it can be traced back, ironically, to federal hours-of-service rules released in 2013. These rules, meant to make working conditions better for employees, were a swift kick in the gut for the trucking industry.
“The key provision was a limit to the use of a 34-hour restart,” writes Business Insider’s Mamta Badkar and Rob Wile. “Drivers have a 70-hour-a-week cap on how much time they can be on the road. Previously, they'd been able to artificially reset that cap to zero if they took 34 consecutive hours off. Now, many are unable to do so. As a result, according to a survey from the American Transportation Research Institute, more than 80% of motor carriers have experienced a productivity loss, with nearly half saying that they require more drivers to haul the same amount of freight.”
As a result of these changes, many smaller trucking firms have been unable to continue operations, and their drivers must either leave the profession entirely or move to a larger company, likely one with lower wages. And those few small operators that do hold on have to cut corners in order to survive. A skipped maintenance check here, some low-quality parts there...no harm, no foul, right?
One of the big issues with trucking companies is that they often pressure drivers to violate compliance rules, working hours far longer than what should be legally allowed. One driver, Jeff, recounts how the owner of a trucking company had him make two five-and-a-half hour drives in the same day - something which legally, he wasn’t allowed to do.
“When you’re non-compliant as a driver, you run the risk of fatigue and the risk of hurting other people,” Jeff says to Business Insider. “And as a driver, it’s my license on the line. I was also asked by multiple trucking companies to falsify my logs.”
“I consider myself a safety-oriented driver,” he continues. “I have found that’s a bad thing.”
Small wonder so many experienced drivers are getting disillusioned with the industry, and retiring. And small wonder today’s drivers have nowhere near the level of competence or training as drivers did years ago. Just look at what’s been happening in Canada recently, where a professional driver and road-tester regularly has inexperienced, borderline-incompetent drivers show up for their road test.
“You can tell within the first five minutes,” he says, speaking to Truck News. “You can tell from the way they open the hood, if they’re opening it from the side. There are only so many engine manufacturers out there. If they can’t find the dipstick, you know there’s a problem right off the bat.”
The difference is that Canada has systems designed to weed out such drivers. It’s much easier for these people to fly under the radar here. That’s because while other countries work towards better road safety and more extensive protections for both drivers and citizens, trucking companies in the States lag far behind. One might even go so far as to say that the firms which cut costs would rather accept the risk of lawsuits in lieu of actually trying to improve things.
Long story short, trucking companies are horrendously negligent, truckers are getting more inexperienced, and corners are being cut left and right. These cut corners and poor decisions are putting far more than your safety at risk. They’re a threat to your very life.
That may change in the near future. As the Internet of Things continues its march forward, self-driving rigs could very soon take to the roads. While that may not completely solve the driver shortage, it will certainly go a long way towards improving things for drivers - and making the roads a bit safer.
Of course, autonomous trucks come with their own unique set of challenges and threats...but that’s a bridge our society will have to cross when it reaches it.
In the meantime, what can you do about short-term negligence in trucking? How can you protect yourself, and inspire trucking companies to be better? The answer is somewhat unfortunate:
For the moment, not much. Drive defensively. Pay careful attention to long-haul trucks while you’re on the road. And in the event that you’re injured in an accident involving one of these trucks, it’s advisable to contact an injury lawyer.
Guest Post by Ryan Bormaster
Ryan B. Bormaster is the managing attorney at Bormaster Law. The law firm practices in a number of areas but specializes in 18 Wheeler Accidents, Accidents with Commercial Vehicles such as Work Trucks and Catastrophic Injuries of all kinds. They are trial lawyers who will work hard to try to solve your problem out of the Courtroom but who will proudly stand by your side in the Courtroom if justice so requires.
In light of the police brutality that has been at the forefront of news today, this is a case that merits some attention. McMillen, a 16-year-old, was brought into a Kentucky juvenile detention center one morning. She was to be held there for the night. During the night, as one of the juvenile staffers checked in on her, they found her dead in her cell. Now, the family is filing a lawsuit against the juvenile detention facility for improper treatment and not acting accordingly.
At the time that McMillen was brought into the juvenile detention center, she was resistant to the demands of the staffers in charge. She was told to remove her sweatshirt so that she could be searched. She was resistant and the staffers forced themselves onto her. She was lowered to the floor face down and taken to a cell. Although this physical exertion was caught on one of the facility’s cameras, it did not provide a good angle. At some point later in the day, one of the staffers, Windham, heard McMillen coughing in her cell. Later that night, she was found dead.
The deceased’s family is now suing on two accounts: 1) forceful restraint and 2) negligence. On the former, the claim is made that the physical altercation between the detention center staffers and McMillen caused her untimely death. On the latter, the family claims that Windham, who was aware of McMillen’s coughing, should have done something. Windham did not report the coughing to anyone.
Of course, the detention facility says that the untimely death was not their fault. They say that there is no indication that simple coughing could possibly amount to something fatal. Windham believes that it was a harmless coughing fit. Moreover, they say that as McMillen had been diagnosed in the past for a cardiac condition, that was the only explanation. Experts have come into the foray. Doctors are saying that if McMillen had received medical attention on time, she could have been saved. Also, there are records that the staff did not properly treat McMillen during her stay, not giving her attention when needed. Supposedly, the staffers failed to “check on her 64 times.”
The most serious claim is negligence. It does seem, based on the video evidence provided, that the staffers as a whole were negligent. Negligence is apparent everywhere. It shows itself in the medical and legal field, when malpractice is committed, and in prison settings, when ample supervision is not given. In order to be liable for negligence though, the court must first determine the standard of care.
Standard of care is the standard by which the person or institution has performed their duty with care. If they have not, they have breached the duty and can be held for negligence. Here, the institution’s duty of care is to treat their inmates with care.
As it can be shown from the videotapes and other evidence, they have mistreated McMillen poorly. She is a 16-year-old and although she resisted frisking, the reaction was too extreme. They pinned her to the ground. They went overboard. She is no Rodney King. She is a seemingly innocent minor who doesn’t want to be there. Also, experts can attest that the institution was aware of McMillen’s worsening condition and yet did nothing. Regardless of the cause, they could have helped out.
Since the standard of care has been breached, the institution can be held for negligence. Once standard of care has been breached, the next thing that is looked at is cause. ‘But for’ causation means that if not for the mistreatment, she would not have died. This is hard to prove. After all, she had an ongoing cardiac condition and there is no evidence that the physical treatment she received was enough to warrant this unfortunate outcome. The other way of establishing causation is proximate cause. This means that if it were foreseeable to the institution that something like this would happen, then they will be held responsible. It is hard to show that the institution knew that this would happen. At the end of the day, it will be a tough task for the family to show that there was negligence.
As to the physical altercation, there probably is not enough on camera to indicate foul play. Otherwise, there could be criminal charges against the staffers. Yet it is hard to believe that if it was not in part because of the physical force imposed on McMillen, that things would not have turned out the way they did.
In light of police brutality that has taken the headlines, incidents like this are troublesome. Dating back to Rodney King and the L.A. riots to Michael Brown today, these abuses of power by the police department are reprehensible. Behavior like this is unacceptable in the 21st century. A new approach to these situations has to be implemented. Otherwise, more people will get hurt and there will be no one to answer for it.
Authored by Sam Behbehani, LegalMatch Legal Writer
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