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
When can a hospital be held responsible for losing a patient’s property? Virginia Koss recently sued Ephraim McDowell Regional Medical Center in Danville, Kentucky, after her wedding ring and her late husband’s wedding ring disappeared following a surgery.
According to the lawsuit, Koss (along with her family) instructed employees not to remove her two wedding rings, but Ephraim McDowell hospital staff later confirmed that the rings were in fact removed sometime during surgery. The lawsuit seeks compensatory and punitive damages, as well as attorney’s fees.
What Claims Could Virginia Koss Make Against the Hospital?
Koss could have made a claim that Ephraim McDowell Regional Medical Center violated bailment law. Bailment refers to the process of placing personal property in the temporary custody of another. The new holder of the property (who is responsible for its eventual return), is known as the bailee. The person who delivers the property to the bailee is known as the bailor. The bailor can order the property returned to them at any time. Although Virginia Koss never asked hospital staff to take possession of her rings, she could argue that the hospital became responsible for the rings when they removed them from her hand.
All bailment situations stipulate that the bailee has a duty of care to ensure the safety of the property they have been entrusted with. A bailee can be held legally liable for a failure to uphold the duty of care. A bailee can also be held liable if he uses the property without the bailor’s permission or (as in the case of Virginia Koss) doesn’t return the property to the bailor upon request.
Could Koss’s Lawsuit against the Hospital Be Successful?
However, just stating that Ephraim McDowell Regional Medical Center violated its duty as a bailor does not guarantee that Virginia Koss will be compensated for her lost rings. This is because the degree of the bailee’s duty of care can depend on whether the bailment was intended for the sole benefit of the owner of the property (the bailor) or the bailee.
To be more specific, if the bailee entered into a bailment that came with no benefit for the bailor, the bailee only has to answer for gross neglect or fraud. On the other hand, if goods are entrusted to the bailee for their sole benefit (like if your neighbor asks to borrow your car) then the bailee owes the bailor “extraordinary care.”
Making the case that Virginia Koss lost her rings as a result of the hospital’s gross negligence could prove difficult. If gross negligence can be defined as serious carelessness, what sort of actions, exactly, would the hospital have to have taken for the loss of Koss’s rings to meet that standard? After all, hospital staff asked Koss to remove her rings before her surgery, but she refused to comply. To be sure, Koss’s wish to not have her rings removed does not mean that she deserved to lose them. However, it does raise the question: did Koss herself violate hospital policy?
Many hospitals require patients to sign a form acknowledging the risk of loss of property, including a waiver of liability for their property. Also, hospitals generally warn patients not to bring in valuable items like jewelry before a procedure. Could the hospital staff’s removal of Koss’s rings have been an effort to follow hospital policy, with the loss of the rings an unfortunate but not necessarily grossly negligent action?
Koss’s attorney Joshua S. Harp doesn’t think so. He called Koss’s case “really kind of simple,” saying: “They [hospital staff] asked her to take off her rings. She said no. And they took them off anyway.”
Though the way Harp describes Koss’s case makes it sound open-and-shut, this is not necessarily true. The court will have to decide if the hospital’s removal of Koss’s rings constituted gross negligence or if it was in adherence to procedure that led to an unfortunate mistake that the hospital was not liable for.
Authored by Andrea Babinec, LegalMatch Legal Writer
A trip to the bank turned tragic for a Florida man in 2008 when an employee mistook him for a robber. Rodolfo Valladares was trying to cash a $100 check when a Bank of America employee triggered a silent alarm, causing the SWAT team to storm the bank and violently apprehend him. When it was all over, Valladares was left with permanent, life-changing injuries and Bank of America faced a lawsuit.
While some might think that what happened to Valladares is, while certainly tragic, an unavoidable outcome of the Bank of America’s employee’s fear, the Florida Supreme Court ultimately sided with Valladares.
Why Can a Person Be Liable For Filing a Police Report With a Mistaken Identity?
The Florida Supreme Court’s decision on Valladeres v. Bank of America stated that the court set out to address whether those who falsely report criminal conduct to law enforcement “have a privilege or immunity from civil liability for the false report.” In other words, should someone who has made a false police report be excused from having to pay up in civil court?
The court noted the dangers that could arise if those who report crimes were given absolute immunity from prosecution—even if the reports were false. The decision in Valladeres v. Bank of America then mentioned another case where it was decided that false statements made to police officers are not protected from liability for defamation, because this would prevent the court from being a place where every wrong can be addressed.
The Supreme Court further stated that someone who has been injured as a result of a false police report (as in Rodolfo Valladares’s case) does have grounds for instigating a civil suit when the report is made by someone who has “knowledge or by the exercise of reasonable diligence should have knowledge that the accusations are false or acts in a gross or flagrant in reckless disregard of the rights of the party exposed” (italics mine).
Put another way, a person who files a false police report is liable when they act in such a way that they ignore information that indicates their accusations are false or when their reckless oversight of the rights of the person they have accused puts that person in danger.
How Is Calling the Police “Reckless?”
The legal concept of “recklessness” mentioned by the Florida Supreme Court in its decision can be defined as when someone proceeds with risky behavior even as they recognize its possible implications—although they are not looking for their behavior to have harmful consequences Alternatively, recklessness can be defined as a state of mind in which a person does not care about the consequences of their actions.
So what, exactly, happened at that Bank of America that day in 2008 that made the conduct alleged in a false police rise to the level of recklessness?
Several hours before Valladares arrived at the bank branch on July 3rd, an e-mail was sent out to staff members to be on the lookout for a robber. As the Supreme Court decision noted, Bank of America employee Meylin Garcia believed that Rodolfo Valladares was the bank robber from the moment he walked through the door. As she told the court: “As soon as Mr. Valladares walked in the bank, I saw him, and since he was wearing a Miami Heat hat, the sunglasses—I mean I saw him, and automatically I panicked, I got scared.” As Valladares approached her desk, Garcia pressed a silent alarm.
Although pictures of the robber showed him wearing a Miami Heat hat and sunglasses, he was also a white man. Valladares is Hispanic. Additionally, the robber appeared to be in his 60s and weighed about 145 pounds. Valladares was 46 and weighed more than 200 pounds. Even after Valladares showed Garcia his driver’s license (with the name on the driver’s license matching the name on his check), she did nothing to cancel the alarm. As is written in the Supreme Court decision, Garcia: “studied his license again and looked at Valladares, but still failed to differentiate Valladares’s Hispanic characteristics from those of the white male depicted in the e-mail she had seen earlier that day and failed to take any steps to report the innocent transactional facts.”
Later, Meylin Garcia would say that Valladares did not act suspiciously as he interacted with the bank employees. He never made any threats, presented a note, or made a demand. He didn't appear to be armed or act with a criminal intent. Nonetheless, Garcia informed a colleague that the bank robber from the e-mail had approached her. This colleague, in turn, took Garcia at her word, doing nothing to verify whether Valladares was an armed bank robber or a customer.
The Supreme Court summed up its support of Valladares, its rejection of the idea that Bank of America had just made a mistake when it wrote: “Public policy supports a limited immunity for those who make innocent, simple mistakes, but that limited immunity cannot extend to conduct that recklessly disregards the rights of others.” A person can make a mistake, but once you realize it’s a mistake, you should correct it before someone gets hurt.
Authored by Andrea Babinec, LegalMatch Legal Writer
We’ve all heard the headlines lately involving Uber. The company will yet again be forced to defend themselves in court after a federal judge refused to dismiss the company’s claims that its drivers were not employees. The lawsuit was brought against the company after alleged acts of sexual assault were committed against Uber customers by the company’s drivers. Under the doctrine of Respondeat Superior, an employer is responsible for the actions of their employees.
Uber claims no responsibility, on the grounds that its drivers are independent contractors, rather than employees. Companies usually aren’t liable for the actions of independent contractors. If the drivers are found to be independent contractors, Uber gets off scot free. It’s not the first time a lawsuit hinges on the employee versus independent contractor argument and it probably won’t be the last.
Plaintiffs brought claims of sexual assault, battery, false imprisonment and negligent hiring. One plaintiff claims she was asked to perform oral sex as payment for her ride and then, when she refused, was taken to a remote parking lot and raped. One of the alleged attackers has a criminal history and, despite the fact that Uber does background checks on all potential hires, the company decided to hire him anyways.
Uber filed to dismiss the claims against the company, but since the crux of the case hinges on whether or not Uber drivers are considered employees of the company, the judge found the decision couldn’t be decided as a matter of law (as Uber had hoped) but should be left up to a jury as a matter of fact.
Should Uber Be Held Responsible?
Employee vs. Independent Contractor
An independent contractor is a person who renders a service for a specified compensation and a specified result. Further, an independent contractor is under the control of the principal (in this case, Uber) as to the result of his work only and not as to the means by which the result was accomplished.
Under California law, the basic test for determining whether a worker is an independent contractor or an employee is whether the principal has the right to control the manner and means by which the work is performed. If an employer can control when and how you do a job, then you’re most likely under the employee category. The outcome is always going to be based upon the totality of the circumstances and courts place an emphasis on whether or not an employer exercised control over an employee’s performance.
The plaintiffs filing suit against Uber have a pretty strong argument that the alleged attackers were, in fact, Uber employees. Although most drivers are not paid a salary, there are many factors that could lead one to the conclusion that Uber drivers are Uber employees. Among those are: Uber sets the fare prices without driver input (drivers cannot renegotiate fees), Uber retains control of customer information, drivers require no professional skills, Uber has the right to terminate a driver at will, Uber controls the manner and means at which a driver offers rides through the Uber application and drivers must accept all requested rides when they’re logged in to the application or face potential discipline for not following procedure.
Should Courts Adopt a Hard Line Rule to Hold Companies Responsible for Sexual Assault?
Each case is going to be based on the facts of that individual case and those facts are always going to vary. Uber has previously tried to argue their company is a technology-based company, but that has already been denied by a court in a previous case against the company. Uber’s entire business is based off hiring drivers to taxi customers around. If the company can control how the drivers operate, then they should be considered employees. The question then becomes whether or not a driver committed an act during the course of his employment as an Uber driver. This again raises a question of fact.
It would be nearly impossible to come up with a hard-lined rule that holds a company responsible in every sexual assault case. Honestly, the judge got it right in this instance; Uber’s motion to dismiss was rightfully denied since the outcome of Uber’s liability relies solely on whether or not the alleged attackers were employees of Uber and that’s clearly a question based on facts for a jury to decide.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law