Follow up on the possible criminal liability of a parent

 A few days ago I posted a comment on the ongoing prosecution of the mother of a child who engaged in a mass shooting at a school.  The case is a criminal prosecution but some of the issues are similar and relevant for tort law because they involve the possibility of imposing vicarious liability (which is not what is being charged) and the underlying issue of causation (which is very much at issue in the case).  

I am following up on this today because Joseph Margulies. a Professor of Government at Cornell University, recently published a comment on these issues over at Justicia. In it he points out, correctly, that one important issue in the case (as in a torts case) is the question of proximate cause and, although he does not mention it by name, the question of duty.  And, in the end, he questions whether it would be a good idea to impose a duty on parents that could result in criminal liability under the circumstances of the case.  The comment is short and you can read it here.  

News reports that a case in Michigan will decide if parents can be criminally responsible for a child's actions are wrong

 If you have been paying attention to the news, you may have heard that a criminal case is just underway in Michigan in which the mother of a child who killed a number students in a school shooting spree is on trial for involuntary manslaughter.  And, you may have noticed that an often repeated version of the story is that the case is about whether parents can be held responsible for the conduct of their child.

This formulation of the issue is wrong.  

The parents are not on trial for the conduct of their child.  That would mean that the state is looking to convict them based on vicarious liability.  Instead, the parents are on trial for their own conduct, which led to and resulted in the conduct of the child.  That's very different.  In other words, the parents are being tried for direct (as opposed to vicarious) liability.  They are not facing convictions "for the conduct of their child"; they are facing conviction for their own conduct.

Now, before we go any further, let's remember that this case is a criminal case, not a torts case.  But the implications of the possible liability of a parent for the results of the conduct of a child are obviously important for tort law.

In torts, parents are typically not held vicariously liable for the conduct of their children.  But they can be held liable for their own conduct if their conduct is a cause that leads to the injury of the plaintiff. Thus, the principle at issue is the same.  

However, making the case for tort liability is easier.  There seems to be pretty solid support for the arguments of all the elements of the cause of action, including proximate cause since it is relatively easy to argue that the injury was a foreseeable consequence of the negligent conduct, which included giving the child a gun knowing the child was mentally unstable.  Of course, the defendant will argue that the conduct of the child was a superseding cause, but the argument will come down to whether the child's conduct was unforeseeable, and there is good support to defeat that argument.

BUT back to the actual case in Michigan, what is different is that for criminal liability, the conduct in question must have been defined as a crime by the penal law.  And that is the issue in the criminal case.  The state is trying to extend the definition of manslaughter to include the conduct of the parents which allegedly "facilitated" the manslaughter committed by the child.  This creates the confusion.  Rather than charge the parents for the "facilitation" of the crime, or with a crime like "reckless endangerment" or aiding and abetting or something like that, the state is charging the parents with the actual manslaughter.  

Whether that is the proper charge given the evidence is a matter of criminal law about which I am not an expert.  But the issue was argued before the court.  The court held against the parents, and was affirmed by two higher courts on appeal.  Here is the decision of the Michigan Court of Appeals which holds that the lower court did not abuse its discretion in finding The district court did not abuse its discretion in determining that the child's decision to shoot four classmates was not a superseding cause because it was foreseeable.

Interestingly, take a look at the finding of the trial court on the issue, which if you did not know otherwise you would think was taken from a torts case (other than the reference to "as alleged by the People"):

The Court concludes that sufficient evidence has been presented to allow a reasonable juror to find factual causation and to allow a reasonable juror to conclude that the deaths of the victims were a direct and natural result of the Defendants’ gross negligence.  The Court further concludes that the criminal misconduct of the Defendants’ son was an intervening cause but that a reasonable juror could conclude that his actions were reasonably foreseeable.  Therefore, the causal link between Defendants’ actions and their liability for the deaths of the victims, as alleged by the People, is not severed by the actions of their son.  A reasonable juror could conclude that the action of the Defendants’ son was a related link in the causal chain. 

According to the news, the case is the first instance in which a parent is charged (for her own conduct) with the crime that corresponds to the conduct of the child.  Not too long ago, the mother of a 6-year-old who shot a teacher was tried in relation to the incident, but she was tried (and convicted) of child neglect, not with the crime that would correspond to the conduct of the child -- which is what the prosecutors are trying to do in Michigan.

The case is clearly an attempt to send a message and put pressure on parents to take better care or control of a child when there are signs that the child needs it.  This may start a trend in prosecutions and it may influence how courts deal with similar issues in torts cases. 

You can read coverage about the case here:

NPR (audio)

The Hill (includes video)

The Hill (includes video of the opening statements)

Teacher can sue school district system for injuries suffered when a 6 year old, first grade, student shot her

In an important, and somewhat surprising, decision, a state judge has ruled that a teacher who was shot by a 6-year-old student in Virginia can proceed with a $40 million lawsuit against a school system over claims of negligence by school administrators.  

The issue in the case was whether the claim should be considered to be a claim for a work related injury. If so, the claim could only be brought as a workers’ compensation claim which would have provided much lower compensation for the plaintiff.

Given the ruling, the plaintiff can proceed with the torts claim she filed in court, which asked for $40 million in damages. 

The judge based its decision on the conclusion that the plaintiff's injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.”  The judge also concluded that “[t]he danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”

You can read more about the story Courthouse Network News, NPR and The Hill.

As the case moves forward now, I expect it will raise issues related to intervening causes, proximate cause, and governmental immunity.  Stay tuned!

Article on possible negligence claims and liability for mishandling of matters related to the coronavirus

On March 9, 2020, a couple quarantined on the Grand Princess cruise ship, sued Princess Cruise Lines Ltd. after docking in Oakland, CA. This case marks the first negligence lawsuit filed in direct response to the rising coronavirus epidemic gripping the world. 

There are sure more claims to follow.  Here is a short comment that previews some of the issues.

Why it might be difficult to determine when a person is an employee or an independent contractor

Although know the basics related to the concept of vicarious liability, we don't have time to discuss the details or to read cases that explore the different types of issues that can arise when trying to apply the doctrine.  For that reason, I thought I would provide a link to a recent article discussing three reasons why it is difficult to determine whether a worker is an employee or an independent contractor.

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Case against Uber based on alleged sexual assault by driver can go forward; Court rejects motion to dismiss based on allegation that the driver was independent contractor

The ABA Journal is reporting today that a San Francisco federal judge has denied Uber’s motion to dismiss cases based on sexual assaults committed by Uber drivers.  Uber's argument was based on the allegation that the drivers in question were independent contractors.

Obviously, if it is true that the drivers are independent contractors, the claims based on vicarious liability will be dismissed eventually.  But the judge thought it is too early to tell.  The question of the relationship between Uber and its drivers is being litigated elsewhere.  There are at least two pending class actions against Uber, regarding whether drivers should be classified as employees or independent contractors.

So the claims based on vicarious liability are still in play.  In addition, the plaintiffs have alleged claims based on direct liability based on negligence in hiring.  Those claims would not be affected if it is ultimately decided that the drivers are independent contractors.

Recent Illinois case clarifies the extent of vicarious liability, kind of...

As you probably know, the principle of vicarious liability allows a plaintiff to recover compensation from an employer for the conduct of an employee, but only if the conduct of the employee is "within the scope of employment."  For this reason, there is a lot of case law out there attempting to explain how to determine if a certain act is within the scope of employment and the case law is not always consistent.  Also, some courts have a tendency to define the scope of employment too narrowly, thus allowing employers to escape liability.

Now comes a decision from the Illinois Appellate court that adds to the confusion.  In this case, called Dennis v. Pace,  the plaintiff alleged that after becoming intoxicated she passed out while riding a Pace bus, and that, rather than calling for help or notifying his supervisor, the driver took her home at the end of his shift and sexually assaulted her.  She then sued Pace Suburban Bus Service. 

The lower court dismissed the complaint finding that vicarious liability did not extend to a sexual assault that occurs after work at an employee’s home.  However, the appellate court reversed concluding that the plaintiff could support the claim because the driver “initiated the sexual assault when plaintiff was riding on the bus at a time when she was a passenger and the common carrier and passenger relationship existed.”  This seems to suggest that the court was willing to define "within the scope of employment" more broadly to include conduct committed outside business hours and away from the work place as long as the conduct was initiated within business hours and within the workplace (thus being "within the scope of employment").

And I would agree with that application of the general principles to the facts.  However, although it reaches the correct result, the court's decision is not based on what can or cannot be considered to be "within the scope of employment."

The court's decision is based on an interpretation of case law in the state that appears to hold that vicarious liability rules are different in cases where the defendant is a common carrier.  According to the court, the law in Illinois has long held that a common carrier can be liable for the intentional acts of its employees even if the intentional act is outside the employee’s scope of employment and does not benefit the employer.

This is a strange result because it suggests that common carriers have strict liability over injuries caused by their employees, something I don't think is supported by the cases, particularly since the reasoning seems to be combining the principles of vicarious liability (for an employees conduct) and the high degree of care expected of a common carrier (for its own conduct).

I wonder if the case will be appealed to the state supreme court.  Stay tuned.

Court of Appeals for the 11th Circuit holds that a cruise line can be held liable for the medical malpractice of a ship's doctor

About a month ago, the Court of Appeals for the 11th circuit issued an opinion that breaks away from a longstanding approach to medical malpractice cases against cruise lines.  The case is called Franza v Royal Caribbean and you can read it here. 

Before this decision, courts typically ruled that plaintiffs could not recover from a cruise line for injuries caused by the medical personnel on board a cruise ship because either the doctors were not employees (but independent contractors) or because they were exercising independent medical judgment over which the cruise line had no control and for which it should not be held liable.  In Franza, however, the court held that things have changed and that cruise lines should be subject to liability for the medical personnel they employ.  Accordingly, the court stated

we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked modern infirmaries and urgent care centers. In place of truly independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters. And whereas ships historically went 'off the grid' when they set sail, modern technology enables distant ships to communicate instantaneously with the mainland in meaningful ways

The case may also have implications outside of the medical liability areas since cruise lines also employ many other people to provide services to passengers.

Bloomberg law has a short podcast discussing the case and its implications here.  The Daily Report has an article here.

Podcast on Georgia case regarding parents liability for negligence in handling child's use of social media

A few days ago, I reported on a recent case in which the Georgia Appellate Court held that parents could be held liable for failing to supervise their children use of social media, or perhaps more importantly, for failing to act to remedy the consequences of the use of social media.  The case is interesting in its own right, but it was made more interesting because it was quickly misinterpreted, as I explained in my previous post.

The case also generated some attention because it was reported that it was the first case in which a court imposed a duty on parents to supervise a child's computer use.  Today, Bloomberg Law posted a podcast on the case that you can listen to here.  Among other things, one of the panelists explains how the case is not really creating new law as much as applying old principles to a new type of scenario.

Wall Street Journal mistakenly reports that Georgia Court held parents can be liable for conduct of their children

Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity."  The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).

The case is interesting but the problem is that the headline of the reported story is wrong.  The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct.  That is a big difference.

As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.

In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense.  Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.

About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline.  As a result, the culprit's parents were informed in detail of the children's conduct.  Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it.  The page remained available for almost a year.

In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.

Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child.  The issue is whether the court should impose liability for the parent's own conduct.  More to the point, whether the court should impose a duty on the parents to do something more than what they did.

Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple.  The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did.  I am not even sure we need more facts to decide the question.   Let it go to the jury and let them decide.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not too uncommon.  The plaintiff sued two physicians (and "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  The both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   It is not entirely correct to say that because there is vicarious liability, the resident does not have to contribute to the settlement.  The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

NOTE I posted this in my Professional Responsibility blog too.

Tennessee Senate rejects tort reform bill

Day on Torts is reporting that the Tennessee Senate Judiciary Committee has voted to reject a tort reform bill that would have eliminated liability for punitive damages for employers for conduct of their employees (with a few exceptions).

Should victims of malpractice be allowed to sue medical students or residents?

Popular law blogger Eric Turkewitz has posted a very interesting comment on whether plaintiffs should be allowed to sue medical students and residents in malpractice cases. His comment is a reply to a post by Dr. Kevin Pho, a medical blogger, who has argued that Medical Students Should Not Be Liable for Malpractice. becasuse, there is little to gain by suing them when a supervising physician will answer the charges. Turkewitz replies by providing several good arguments as to why sometimes plaintiffs have no alternative but to include the students or interns as part of the lawsuit. His full comment is available here.

"Vicarious liability" for conduct of a dog?

If you live in Wisconsin and allow someone with a dog to live with you, you may well be liable for the dog's bite. The Wisconsin Supreme Court held recently that the homeowner was the "harborer" or "keeper" of the dog (as those terms are used in a specific statute) and for that reason reversed a summary judgment that had been entered in his favor by the lower court. The opinion is available here. This sounds a little bit like vicarious liability because it looks like the possible liability is based on the relationship between the defendant (homeowner) and the owner of the dog, rather than on the ownership of the dog. Thanks to the Legal Profession Blog for the information.

Interesting (and confusing) Illinois Court of Appeals opinion about medical malpractice

As we all know, ordinarily the plaintiff in a medical malpractice action must introduce expert testimony to prove the standard of care and that the defendant breached it. However, there may be circumstances where a plaintiff could support the claim without an expert. When I ask my students to give me examples where this could be justified, someone invariably (usually the first example that comes to mind) says “when they leave something in the patient’s body during surgery.” Why? Because "everyone knows" that is not supposed to happen.

 Interestingly, a couple of weeks ago, the Appellate Court of Illinois (2nd District) decided a new case involving this exact situation. Unfortunately, the decision displays a significant confusion regarding some basic tort law principles. The case is called Forsberg v. Edward Hospital and it is available here.

 The facts of the case are very simple. Patient goes in for surgery. Patient comes out of surgery. Patient later discovers a sponge was left inside her body. Patient sues. Simple. The hospital settled, but the surgeon decided to take the case to trial. The doctor then moved for summary judgment, arguing that the plaintiff did not have any expert evidence to support her argument of breach, that he had acted with due care and that he could not be held liable for the conduct of the nurses who were in fact in charge of keeping track of the surgical sponges.

 In response to the motion for summary judgment, the plaintiff argued that she did not need expert testimony to prove negligence because it is “common knowledge” that leaving a sponge inside a surgical patient's body is a breach of the standard of care and that the surgeon can be vicariously liable for the negligence of a nurse (even if the nurse is not the surgeon's employee) if the nurse was subject to his control and supervision. The trial court granted the motion to dismiss and the court of appeals affirmed.

In support of its decision, however, the appellate court used a very confusing analysis and missed the chance to do one of two things: either to clarify what has become an unnecessarily confusing area of the law or to break new ground and establish new law. There are two interesting questions here: whether the plaintiff’s argument based on “common knowledge” is enough to support her claim of breach of the standard of care and whether a surgeon can be vicariously liable for the conduct of a nurse under his supervision if she is not his employee.

The problem with the first issue is that the court confuses the concept of an argument sufficient to establish a prima facie case and the process of proving that argument. The court correctly starts by pointing out that expert testimony is not required if the conduct is such that a layman can safely conclude it does not meet the medical profession’s standard of care and that this applies in a case where the conduct in question involves leaving a sponge inside a patient. From there, however, the court goes on to say that “the fact that the sponge was left in the plaintiff's body established a prima facie case of medical negligence and the burden shifted to the hospital to explain the nurses' failure to keep an accurate sponge count.”

 This sentence can be interpreted in two different ways – both of which are problematic.

First, it can be interpreted to mean that the fact that the sponge was left in the body is sufficient to conclude that the plaintiff has enough support to survive a motion to dismiss. This means that the argument is enough to suggest that reasonable people might disagree as to whether the conduct of the defendant was negligent and that, thus, the case should go to the jury for the jury to decide if in fact the defendant was negligent.

Interpreted this way, the second part of the statement is wrong because the fact that the prima facie case is established does not shift the burden of proof. The plaintiff still has to prove that the defendant was, in fact, negligent. And, in this case, the plaintiff could not do that. She simply did not have any evidence to suggest that it was the doctor who had not acted with due care.

On the other hand, the sentence could be interpreted to mean that the fact that the sponge was left in the body is sufficient to prove someone’s negligence – that the plaintiff does not have to present evidence of conduct to the jury at all. This interpretation might justify the shifting of the burden of proof, but it would make sense only in a jurisdiction that has adopted that effect to the application of the doctrine of res ipsa loquitur which the court did not mention at all.

Should the court have invoked the res ipsa doctrine? 

On the one hand, maybe you can say that the presence of the sponge establishes that someone was negligent, but even then, that fact alone does not necessarily mean that it was the doctor who was negligent.   On the other hand, the court could adopt the analysis developed by the California Supreme Court in the famous case Ybarra v. Spangard back in 1944, which recognized the possibility of invoking the res ipsa loquitur doctrine in a case in which a surgery patient could not identify the person who probably caused him an injury nor the conduct that caused the injury.  Having said that, though, for reasons explained below, even if the court had adopted this approach, I think the result would have been the same.

The court in Forsberg, however, does not talk about any of this which makes it difficult to figure out the basis of its analysis or whether it simply confuses the concept of the prima facie case and the way in which a plaintiff proves the prima facie case. 

Now, in all fairness, it must be stated that the court did not make these mistakes on its own. It cites a number of old cases that apparently have been dragging this unnecessarily convoluted type of analysis along for a number of years. It is unfortunate, though, that the court did not break away from that analysis and take a more logical view of the issues.

The court says that its decision is that the "common knowledge doctrine" does not apply in this case. The problem is that, even after reading the case, what the "common knowledge doctrine" holds is still a mystery. It is not clear if it is a doctrine that determines whether a plaintiff needs to present expert evidence or whether the plaintiff supports an argument in order to survive a motion to dismiss or whether the plaintiff proves her argument. (Quite frankly, I am not sure why it is called a "doctrine" at all, but that is another issue.) 

I don't think the big issue in this case was about common knowledge; it was about proof.  The court should have forgotten about the so-called "common knowledge doctrine" - whatever that means - and should have focused on the possible application of the principles of res ipsa loquitur.

The case was not about common knowledge because I think the court would have been justified in finding that the plaintiff should not have to present an expert to testify as to whether leaving a foreign object in her body constitutes a breach of the medical profession’s standard of care.

I think the case was about proof and res ipsa because, even if it is fair to conclude that the fact that the sponge was left in the patient's body showed that someone was negligent, it does not show that it was the surgeon who was negligent.  This, in my mind, opens the door to the use of res ipsa.

On the other hand, given that the surgeon presented uncontroverted evidence that he had used all reasonable care, that door was closed pretty quickly.  Under those circumstances, the plaintiff simply was unable to establish that there was a genuine issue of material fact as to the surgeon's negligence.

In the end, the case can be reduced to this: the plaintiff was arguing that the fact that the sponge was left in the body creates a genuine issue of material fact as to whether the surgeon acted negligently. Unfortunately for her, though, given that the surgeon had undisputed evidence that he acted with due care, absent evidence of negligent conduct on the part of the surgeon, the plaintiff's argument was not sufficient to survive the motion for summary judgment. That is all the court needed to say about that. All those references to the "common knowledge doctrine" and the shifting of the burden of proof were unnecessary.

But the problems do not end there. Remember that there was a second issue here.

Given that the plaintiff could not prove the doctor’s own negligence, she made a second argument: that he should be vicariously liable for the conduct of those who were allegedly negligent - the nurses under his supervision.

Again, on this second issue the court's conclusion is also very confusing. It is important to remember that vicarious liability refers to circumstances where someone can be liable for someone else's conduct even if the person who is ultimately liable was not negligent at all. The most common example of this is a case where an employer is liable for the conduct of an employee. The basis for liability is not the employer's conduct but the relationship with the person who was negligent. The employer's liability is not based on anything that the employer did or did not do, it is just based on the fact that he or she is the employer and that the employee was negligent while in the course of employment.

In the Forsberg case, the surgeon argued that he was not negligent - and thus could not be liable for his own negligence - and that he was not the nurses' employer - and thus could not be vicariously liable for their negligence.

The only problem with this argument is that vicarious liability is not limited to the employer/employee relationship. Many jurisdictions have held that a surgeon can be vicariously liable for the negligence of an assisting nurse not in his employ if the negligent act is done while the nurse is under the surgeon's direct control or supervision. Often courts refer to the application of vicarious liability to a situation like this as the doctrine of the "captain of the ship."

The plaintiff here argued that the court should apply this doctrine but the court rejected the argument. Citing Foster v. Englewood Hospital Ass'n, 19 Ill. App. 3d 1055 (1974), the court concluded as follows: "The import of Foster here is plain. If defendant is not liable for his own negligence, then he is not vicariously liable for the nursing staff's negligence. Instead of extending vicarious liability via the "captain of the ship" doctrine, Foster held that a surgeon may not be held liable for the nursing staff's negligence without proof that the surgeon was independently negligent in relying on the nursing staff."

This statement does not make any sense. The import of Foster is plain, but it is not that. The import of Foster is that the captain of the ship doctrine does not exist in Illinois; period.

The captain of the ship doctrine allows for the imposition of vicarious liability. This would allow the plaintiff to support a claim against the defendant even if the defendant was not negligent. To say that the plaintiff has to prove the surgeon's negligence in order for the captain of the ship doctrine to apply does not make sense because if the plaintiff has evidence of the negligence of the defendant, the plaintiff does not have any need to argue the captain of the ship doctrine in the first place.

What the court is saying here is that a claim against a surgeon must be based on the surgeon's negligent conduct. It can't be based on the negligence of a nurse, unless the surgeon is the nurse's employer. Again, that is simple enough and all the court needed to say about that.

A more interesting question and the one reason the Illinois Supreme Court may want to consider an appeal is whether Illinois should adopt the captain of the ship doctrine. Assume the doctor here exercised all due care but the nurses did not. Should the doctor be liable? That is the question.

Tort liability or religious rights?

Elsewhere on this blog I have posted several comments on issues related to whether there should be liability for damages caused because of the exercise of religious rights. Professor Jonathan Turley has posted a note about a new case on the subject that is worth checking out. The case involves a mother who has sued the Church of Scientology after her 20 year old son committed suicide. He was on antidrepressants, but his father allegedly took away the prescription drugs as part of his Scientology beliefs. The mother, who is not part of the church, says that her son was put into a church-oriented drug treatment program and that two other Scientology members helped lock away the medicine. The Church is moving to dismiss on the ground that the death did not occur on church grounds and the men were not formal officials with the church. For the story and more links go here.

State liability for court appointed counsel's negligence?

Should a state be subject to liability if court-appointed criminal defense counsel provides negligent representation? According to a recent decision of the Arizona Supreme Court the answer is NO. The court held that the duty of the state begins and ends with the appointment of counsel. Counsel is an independent contractor that the state does not control or supervise. Thus, the state may not be held vicariously liable for counsel's negligence. Orginally posted by Legal Profession Blog