LegalMatch: Personal Injury

Sixteen Year Old Died In Detention Center While Staff Allegedly Did Nothing

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.

Liability?

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.

Troubling Times

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 21^st 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

Young Boy Decapitated on World’s Tallest Water Slide

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

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 Products on Recall after Another Toddler Is Killed by Dressers

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?

Legal Analysis

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

Woman Files Lawsuit after Injury on Skyscraper Slide

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:

• The plaintiff had actual knowledge of the risk involved in the conduct or activity; and,
• The plaintiff voluntarily accepted the risk, either expressly through agreement or implicitly by their words and conduct.

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 and the Future of Product Liability

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.

Strict Liability

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

Should Hospitals Be Held Liable for Losing Their Patient’s Property?

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

When Can You Be Held Liable For Calling the Police?

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

The Basics of Hiring a Personal Injury Lawyer

Personal Injury Lawyer Basics

Jamie Foxx’s Heroism and the Duty to Rescue

In January 2016, Jamie Foxx rescued a man from his crashed pickup truck before it caught on fire. Brett Kyle’s truck crashed in front of Foxx’s home. Foxx and an off-duty EMT cut Kyle’s seatbelt and pulled him out of the overturned truck before the vehicle became engulfed in flames.

During Foxx’s interview with KCAL, he stated that he didn’t consider his act heroic, “I just look at it as… you just had to do something.” But did Jamie Foxx have any legal responsibility toward Brett Kyle? Did Foxx have to do anything at all?

Duty to Rescue

In general, an average person does not have a duty to rescue someone just because they encounter them. Usually, a duty to rescue only arises when a special relationship exists.

Special relationships can include employer-employee relationships, owners of property and their invitees, and carriers such as bus drivers and their passengers. Jamie Foxx didn’t have a special relationship with Brett Kyle, so he had no duty to rescue. Foxx could have ignored the accident instead without any worry of prosecution for failing to do something. 

The off-duty EMT who assisted Foxx also does not have an obligation to stop and assist in the state of California. Some jurisdictions have statutes that require off-duty first responders and physicians to act if they encounter someone in danger or in need of medical assistance. California, however, does not require any off-duty first responders from acting. But, if an off-duty EMT does start a rescue, they can only perform basic medical procedures. Advanced medical procedures can only be conducted by those on-duty. 

However, once Foxx and the EMT started their rescue efforts, they could be held liable from stopping their rescue if stopping would have been unreasonable. Reasonable care should always be taken during a rescue. No one expects a regular person to put themselves in harm to rescue another person. However, once a rescue is started, the rescuers are legally obligated to see the rescue through. A duty to rescue can also be created if you are the one who created the dangerous situation.

What If Foxx Was Injured During the Rescue?

Jamie Foxx is a wealthy man and probably wasn’t too worried about affording medical treatments for any number of scrapes during the rescue, but what happens to the average rescuer? Who covers his injuries?

Rescuers themselves are usually not responsible for the injuries they acquire during the rescue. Instead, the person who created the emergency is usually held responsible. This concept, called the rescue doctrine, encourages rescuers to try and do what they can by ensuring that they can potentially sue the person at fault for the emergency situation.

When someone causes an emergency situation (such as a fire), they should reasonably assume that rescuers will make reasonable attempts to save people from that situation. So, any injuries that the rescuer gets from the rescue should be something that the person at fault should expect.

The rescuer doctrine only applies to those who don’t have a special relationship or legal obligation to do the rescue in the first place. First responders who are on-duty, such as firefighters and police, cannot hold anyone liable for the injuries they receive during a rescue.

What If Kyle Was Injured By Foxx During His Rescue?

Depending on the jurisdiction, a Good Samaritan law may shield a rescuer from liability if their rescue results in injury. Good Samaritan laws usually cover most injuries unless the Good Samaritan acted negligently. In other words, if a Good Samaritan uses a reasonable amount of care that any ordinary person would use in that situation, they would be shielded from liability.

In California, where Foxx rescued Kyle, a Good Samaritan is someone who renders care at the scene of an emergency and does not take any form of compensation for their actions. So, Jamie Foxx would be considered a Good Samaritan under California law and would be protected from lawsuit if he accidentally injured Brett Kyle during his rescue.

Jamie Foxx didn’t have any duty to help Brett Kyle, but he went above and beyond expectations to rescue a man in potential danger. Although Foxx remains humble about the rescue, his act is heroic nonetheless.

Authored by Emily Yu, LegalMatch Legal Writer

Why Won’t Universities Protect Their Students From Sexual Assault?

Soon, parents and seniors will be waiting for acceptance letters from their "dream" universities. Parents have watched their children grow through the years, knowing that their children will leave the home and begin their journey to adulthood.

A parent’s worst nightmare is for their child to be sexually assaulted while attending school. What compounds the nightmare is when the attacker is a fellow student. In the end, the university may refuse to act. Their child must attend classes with the person that hurt and damaged them beyond measure.

Do universities have a duty of care to their students? Are universities legally obligated to protect their students from sexual assault?

Campus Sexual Assault Is Not Just A Headline.

In 2015, news headlines were full of stories of young women who were raped or had an attempted rape while they were at university. Each year in the United States there are around 293,000 victims of sexual assault. Both men and women are open and susceptible to sexual assault with 4 out of 5 assaults committed by someone that the victim knows.

While campus sexual assault may also affect male students, the reality is that both genders are ignored and hushed by their schools. In 2014, a female student received no aid or understanding from her university and had to withdraw because of failing grades. In 2015, a male student was raped by a female student. She claimed he was the assailant after changing her narrative and he was expelled.

Surveys in universities across the nation report large numbers of sexual assault against male and female students. But in the end, 68% of sexual assaults are not reported to the police. 98% of rapists will never see prison or jail.

Rape and sexual assault are criminal acts. The university must protect students from other criminal acts like a violent, physical attack with a dangerous weapon, so why should rape be any different?

According To the Court of Appeal in California, Apparently Not.

At UCLA, a student attacked another student with a kitchen knife in a campus laboratory. The attacker has a known and long history of schizophrenia known to campus employees. The attacker was ejected from on campus housing in 2009 due to unwarranted aggression to his roommate. The attacker’s father warned a university employee that the attacker could “hurt other residents.”

The victim argued that the attacker’s actions were foreseeable. The university had a duty to protect the victim and any other student that may have been harmed. She was on campus for academic reasons at the time of the attack. In the end, it could have been another student and the attack could have been fatal.

UCLA argued that they took every precaution to prevent an attack from the student. They put him through intensive therapy in the university’s mental health program. They had a system of checks and monitoring. But UCLA refused to admit it had a duty to protect the victim.

But the Court ruled that the university has no duty to protect a student from other students. Universities and colleges are not like elementary or secondary schools. Adults attend their school and engage in adult activities. Since their students are adults, the university can no longer be charged to have the same duty of care as a secondary school.

The courts reason that sexual assault is not limited to a college campus. So universities cannot be held liable for a criminal wrongdoing by another student on campus grounds even if the assault was foreseeable.

Your Child Is Not Just A Student, They’re A Profit.

In the end, universities refuse to take steps to protect their students because it costs too much. Universities are there to provide higher education. In the end, they must market to students and corporations to keep their lecture halls and laboratories open. Tuition rates and textbook prices climb higher. Yet students go to universities for their dining halls, greek life, on-campus activities, and athletics.

College is no longer solely about getting an education; it's also about getting an experience. A university is now a brand. Schools come up with mascots, apparel, chants, rituals, and market themselves in the most appealing ways to get the best students on their campus. Schools spend an extraordinary amount of money to recruit the best minds and athletes in the nation. Like any good business: they spend money to make money.

It is true that sexual assault is not limited to a college campus. It is prevalent across the nation and every 107 seconds another American is sexually assaulted. But universities should not use it as an excuse to not act. Universities should realize their students are part of the school’s community. They implicitly trust their school to keep their environment safe and welcoming.

For a university to turn its back on a victim of sexual assault breaks the trust with all students.

Authored by Janice Lim, LegalMatch Legal Writer