A split Washington Supreme Court on Thursday found that Washington State University owed a duty to protect a freshman who died from alcohol poisoning during a fraternity hazing ritual in 2019. You can read the opinion here and more on the story here (on the Court of Appeals decision) and here (on the Supreme Court decision).
Showing posts with label Washington. Show all posts
Showing posts with label Washington. Show all posts
Thursday, July 30, 2026
Thursday, March 12, 2026
Washington Court allows claim against Amazon based on plaintiffs' decedent's suicide -- UPDATED
February 22, 2026
Long time readers of this blog may remember that I have posted a number of times about cases dealing with whether Amazon can (or should) be considered a "seller" for purposes of product liability law. (Go here and scroll down.)
The most recent of those cases involved that claims of the families of three teenagers and a young adult who died after ingesting sodium nitrite purchased on Amazon. The trial judge denied a motion to dismiss the complaint but the Washington Court of Appeals reversed, finding that the plaintiffs could not support the element of duty because the decedents had intentionally misused the product.
I am writing about this today because earlier this week, the Washington Supreme Court unanimously reversed holding that the plaintiffs could continue to pursue their claim against Amazon. You can read more about the case in Courthouse News Service, and you can read the decision of the court here.
In deciding the case, the court rejected the so-called "suicide rule" which is still in place in many jurisdictions and according to which the act of suicide is, as a matter of law, a superseding cause that defeats the cause of action. The court's rejection of this rule follows a recent ruling in Nevada and what appears to be a new trend on the issue. Go here for more on that story.
UPDATE (3-12-26): Courthouse News Service has a story on the case here.
Thursday, July 21, 2016
Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer
Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue. The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.
Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice. The case is called Piris v Kitching and you can read the opinion here. The Legal Profession blog has more details here.
One Justice dissented in Piris, making what I think is a persuasive argument. Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice. The case is called Piris v Kitching and you can read the opinion here. The Legal Profession blog has more details here.
One Justice dissented in Piris, making what I think is a persuasive argument. Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct. Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway. The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority. I agree with the dissent in this case. This view is not justified. It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client. I don't see why it makes sense to give the attorney such a free pass.
Tuesday, December 8, 2015
Washington Supreme Court to decide whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care
Last month the Supreme Court of the State of Washington heard oral arguments in a case called Volk v. DeMeerleer which raises the issue of whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care. In the case, a psychiatrist was sued after one of his patients shot and killed an ex-girlfriend and her son before killing himself. The trial court dismissed the complaint (on summary judgment) on the grounds that the doctor did not have a duty because the patient haad made no specific threats the victims during his treatment. The appeals court reversed (with one judge dissenting), however, holding that the plaintiff could support a cause of action because the patient's conduct was foreseeable and holding that "a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from violent behavior of patient Jan DeMeerleer." You can read the full appeals court's opinion here.
Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting. It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with. In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim. The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable. The plaintiffs are asking for a duty to "protect the general public."
Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions. Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.) For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals. Yet, it will be very interesting to see what happens.
A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality. It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach. Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).
The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship. You can read it here. The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest. In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story. (The article generated two letters to the editor, one of which points out this issue.)
On the question of a possible duty in tort, I do agree the court should rule for the defendant. Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad.
Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting. It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with. In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim. The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable. The plaintiffs are asking for a duty to "protect the general public."
Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions. Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.) For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals. Yet, it will be very interesting to see what happens.
A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality. It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach. Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).
The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship. You can read it here. The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest. In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story. (The article generated two letters to the editor, one of which points out this issue.)
On the question of a possible duty in tort, I do agree the court should rule for the defendant. Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad.
Monday, October 13, 2014
Washington State Supreme Court decides "uncollectability" is not an element of a legal malpractice cause of action
As you probably know, if a legal malpractice claim is based on alleged negligent conduct in handling a litigation, the plaintiff has to argue that he/she would have won the original case had it not been for the negligent conduct of the defendant. But what if the plaintiff does not show that he or she would have been able to actually recover compensation from the original defendant?
Addressing this issue for the first time in the jurisdiction, four days ago, the Washington State Supreme Court issued an opinion in a case called Schmidt v. Coogan, holding that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove.
In other words, in the malpractice case against the attorney, the plaintiff only has to argue that he or she would have won the original case. The plaintiff will not have to show he or she would have been able to recover the compensation. The defendant lawyer can, however, bring up the issue as a defense.
You can read the opinion here.
UPDATE (10/22/14): As reported in the BNA/ABA Lawyer's Manual on Professional Conduct:
The Schmidt court acknowledged that it was departing from the majority view in holding that the uncollectibility of an underlying judgment is an affirmative defense that a malpractice defendant must prove, rather than holding that collectibility is an element the plaintiff must established as part of her prima facie case The lead opinion identifies Georgia, Iowa, Massachusetts and Nebraska as adhering to the traditional rule. See McDow v. Dixon, 226 S.E.2d 145 (Ga. 1976); Whiteaker v. State, 382 N.W.2d 112 (Iowa 1986); Jernigan v. Giard, 500 N.E.2d 806 (Mass. 1986); Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988). California and Ohio courts also take that view. See Garretson v. Miller, 121 Cal. Rptr.2d 317, 18 Law. Man. Prof. Conduct 421 (Cal. Ct. App. 2002); Paterek v. Petersen & Ibold, 890 N.E.2d 316, 24 Law. Man. Prof. Conduct 315 (Ohio 2008).
States that depart from the traditional view include Alaska, Indiana, Maine, Michigan, New Jersey, New Hampshire, New York and Pennsylvania. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. 1993); Hoppe v. Ranzini, 385 A.2d 913 (N.J. 1978); Carbone v. Tierney, 864 A.2d 308, 20 Law. Man. Prof. Conduct 442 (N.H. 2004); Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 20 Law. Man. Prof. Conduct 192 (N.Y. App. Div. 2004). See also Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 25 Law. Man. Prof. Conduct 617 (Tex. 2010) (evidence that underlying damages “probably would have been paid” despite debtor's insolvency would be enough); Visvardis v. Eric P. Ferleger P.C., 873 N.E.2d 436, 23 Law. Man. Prof. Conduct 427 (Ill. App. Ct. 2007) (plaintiff must plead facts supporting inference that opponent in underlying case would have been able to pay some part of damages).
Addressing this issue for the first time in the jurisdiction, four days ago, the Washington State Supreme Court issued an opinion in a case called Schmidt v. Coogan, holding that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove.
In other words, in the malpractice case against the attorney, the plaintiff only has to argue that he or she would have won the original case. The plaintiff will not have to show he or she would have been able to recover the compensation. The defendant lawyer can, however, bring up the issue as a defense.
You can read the opinion here.
UPDATE (10/22/14): As reported in the BNA/ABA Lawyer's Manual on Professional Conduct:
The Schmidt court acknowledged that it was departing from the majority view in holding that the uncollectibility of an underlying judgment is an affirmative defense that a malpractice defendant must prove, rather than holding that collectibility is an element the plaintiff must established as part of her prima facie case The lead opinion identifies Georgia, Iowa, Massachusetts and Nebraska as adhering to the traditional rule. See McDow v. Dixon, 226 S.E.2d 145 (Ga. 1976); Whiteaker v. State, 382 N.W.2d 112 (Iowa 1986); Jernigan v. Giard, 500 N.E.2d 806 (Mass. 1986); Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988). California and Ohio courts also take that view. See Garretson v. Miller, 121 Cal. Rptr.2d 317, 18 Law. Man. Prof. Conduct 421 (Cal. Ct. App. 2002); Paterek v. Petersen & Ibold, 890 N.E.2d 316, 24 Law. Man. Prof. Conduct 315 (Ohio 2008).
States that depart from the traditional view include Alaska, Indiana, Maine, Michigan, New Jersey, New Hampshire, New York and Pennsylvania. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. 1993); Hoppe v. Ranzini, 385 A.2d 913 (N.J. 1978); Carbone v. Tierney, 864 A.2d 308, 20 Law. Man. Prof. Conduct 442 (N.H. 2004); Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 20 Law. Man. Prof. Conduct 192 (N.Y. App. Div. 2004). See also Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 25 Law. Man. Prof. Conduct 617 (Tex. 2010) (evidence that underlying damages “probably would have been paid” despite debtor's insolvency would be enough); Visvardis v. Eric P. Ferleger P.C., 873 N.E.2d 436, 23 Law. Man. Prof. Conduct 427 (Ill. App. Ct. 2007) (plaintiff must plead facts supporting inference that opponent in underlying case would have been able to pay some part of damages).
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