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
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