Utah Supreme Court holds that waivers signed by parents on behalf of children are not enforceable

Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.

Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.

Should a doctor be subject to liability to non-patients who suffer an injury because of negligence toward a patient?

Suppose a doctor misdiagnoses a contagious condition on a patient, and the patient then causes an injury to a third person.  Should the third person have a cause of action against the doctor?  This is a question that has been addressed by a number of cases, many of them involving sexually transmitted diseases.

Now, in a case called Jane Doe v Charles Cochran, available here, the Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after the doctor had mistakenly informed the patient he was free of infection.

Two judges dissented, here, arguing that it is wrong to extend the duty of the doctor to include non-patients.

Debate about safety netting around baseball parks continues

One of the more talked about themes during this baseball season is the increased amount of home runs (and the speculation that it has something to do with the way baseballs are manufactured).  Another continues to be the debate about whether baseball parks should extend the protective netting along the baselines.

If you are a baseball fan, you know that baseball parks offer safety netting to protect fans close to home filed from foul balls, errant throws and bats flying into the stands. Traditionally, the netting extends from just about half way to first base to about half way to third base.  

Yet, last year, in response to a number of incidents in which spectators were seriously hurt by foul balls along the baselines beyond the ends of protective netting some ballparks decided to extend the netting further down along the baselines.

Unfortunately, this season has already seen several such accidents and the debate about the netting has reignited.  Here in Chicago, at least two star Cubs players (Javier Baez and Kris Bryant) have called for the use of more netting.  

As you probably know, spectators usually do not have a remedy in tort available because of the so called "baseball rule" which is essentially a derivation of the notion of assumption of the risk.  I have argued the use of the rule is inconsistent with general principles of tort law, but it continues to be applied in many jurisdictions.  (Idaho is one which has refused to adopt it. See here.)   For some of my comments on the rule in general, go here, here and here.  For my posts on this and other topics related to baseball go here.

NPR recently posted a short radio segment on the issue.  You can listen to it below, or you can read the full story here.  It includes a video of one of the recent incidents (I also included it below).  It does NOT show the fan (in this case a young child) getting hit.  What it shows is the reaction of the players on the field.  Notice the reaction of the catcher the moment the ball goes into the stands; while the batter needed to be consoled by teammates and his manager.

Lawsuit filed against gun manufacturers related to Las Vegas Music Festival shooting

Back in March I reported (here) that the Connecticut Supreme Court allowed to proceed a lawsuit against Remington, the manufacturer of the rifle that was used during the school shooting at Sandy Hook Elementary School. 

Now, Courthouse News is reporting that attorneys for victims of the Newtown school shooting have filed a new lawsuit against the companies whose assault rifles were used by the gunman in the shooting at the Harvest Musical Festival in Las Vegas.  You can read the full story here.

For my recent posts related to the gun industry go here.

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)

Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times!  Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so.  Will those waivers really work to prevent a lawsuit?  Are they a valid form of contract that can be argued support a defense of express assumption of the risk.  Not in many states.  (I have not done a state by state survey, but I suspect this would be the case in a majority of states.) 

The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has a little more on the story.

New update to Report on Medical Malpractice

The Center for Justice & Democracy at New York Law School recently released the 12th update to its Medical Malpractice: By The Numbers report. The fully-sourced 172-page volume includes the latest statistics and research on issues related to medical malpractice, including over 500 footnotes linking to original sources.  You can get a copy of the full report here; or a summary here.

House and Senate Democrats introduce bill to allow victims of gun violence to sue the gun industry

Last week House and Senate Democrats presented a bill called The Equal Access to Justice for Victims of Gun Violence Act which seeks to repeal federal protections blocking firearm and ammunition manufacturers, dealers and trade groups from most civil lawsuits when a firearm is used unlawfully or in a crime.  Given that Mitch McConnell has asserted he will not let any progressive legislation pass during his reign, the bill has little to no chance of ever becoming law, though.

NPR has the full story here.

Comment on recent Supreme Court case on preemption in prescription drug cases

A few days ago I reported that he Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs.  (See here).

Since then, Max Kennerly, of the excellent Litigation and Trial blog, has published a detailed discussion of the case. You should read the full article here.  Here is his conclusion:

On May 20, 2019, the United States Supreme Court decided Merck v. Albrecht ... destroying most of the arguments routinely used by drug companies to claim that plaintiffs’ cases are “preempted” and have to be dismissed. The law for people injured by branded prescription drugs is far better now than it was before Albrecht, and as a result, it is likely that far more victims will get to see their day in court. 

After Albrecht, a branded prescription drug manufacturer can only establish impossibility preemption — which happens when federal law makes it “impossible” for defendants to comply with state tort laws that enable victims to seek compensation — if they can show: 

-- The manufacturer “fully informed” the FDA by providing both all “material” safety information and an “evaluation or analysis concerning the specific dangers” raised by the plaintiff; and 

-- The FDA took action, “carrying the force of law,” to disapprove the warning proposed by the plaintiffs. 

The Supreme Court’s analysis in Albrecht is far more narrow than any preemption argument ever proposed by drug manufacturers, and far more narrow than the “clear evidence” tests many lower courts have been using since Wyeth v. Levine, 555 U.S. 555 (2009). As the Supreme Court itself said, “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.”

Podcast on internet defamation

The most recent edition of the podcast "Digital Detectives" is devoted to a discussion of what lawyers need to look out for when handling a defamation case that originates in comments made on the internet.  You can listen to the program by going here.