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Biro Amador Torres lost three fingers when his hand was caught in a meat grinder which he was operating while employed by Tropical Sun Supermarket. Manufactured by Biro Mfg., it was sold by Siegmeister Sales & Service who serviced it after installation. Tropical altered the machine by sawing off the bowl guards. There are three possible causes of action: against Biro and Siegmeister for sale of a defective product; against Siegmeister for negligent servicing of the machine; and for intentional injury by the employer - Tropical Sun. Whether one uses the consumer expectation test fathered by the Second Restatement § 402A, the risk utility tests of design defect which developed from that (e.g. the Wade factors embraced in New Jersey, New York and elsewhere; or the Barker “excessive preventable danger” factors), or the reasonable alternative design test embraced by the product liability Restatement the meat grinder as sold was not defective in design. It had an interlocked guard system, and there is no evidence of a safer alternative design (a saw stop type mechanism would not work because it sense flesh and this machine is designed to grind flesh!). The employer apparently sawed off the guards and somehow defeated the interlocked guard mechanism. This intentional act made a safe machine dangerous. Altering a safe machine to make it dangerous is generally fatal to a plaintiff’s product liability claim against the sellers. Jones v. Ryobi. Liriano v. Hobart recognizes that a failure to warn claim can survive an unsafe alteration by an employer, but here warning is of little help. It is obvious that the grinder would do to your hand what it is doing to the beef you are grinding. Siegmeister sold the machine and serviced it. It thereby undertook to keep the machine in safe operating condition. Their salesman claims that he never serviced it with guards not in place. There is some ambiguity there - and it is the testimony of several employees that the guard had long been absent. That fact dispute will go to the jury. If the jury believes the workers, Torres’s claim is quite strong. Siegmeister was contractually committed to proper maintenance - which surely includes attention to the guards. If the machine were unsafe they should have tagged it as unsafe or even locked it out. Their distribution agreement with Biro included an obligation to report absent guards to Biro which said it would report the unsafe condition to OSHA. Ajury could find that any of those measures would probably have prevented this accident. Tropical Sun intentionally made a safe machine unsafe. Tropical put its workers at great risk contrary to its common law duty to provide a safe place to work. The jury might conclude that this conduct created a substantial certainty of injury, which the Crippen v. Central Jersey case says is sufficient to avoid the workers compensation bar which makes comp workers’ exclusive remedy against the employer - except for intentional harms. If the jury believes the Siegmeister tech that would lead to a no-cause for Siegmeister but sink Tropical! If the jury concludes that Tropical hid the guard removal from Siegmeister that would support a finding that Tropical’s conduct was so aggravated as to constitute an intentional injury, freeing Torres from the limited 1
remedy of workers compensation. In sum we should abandon the product defect claims and press the claims for negligent servicing by Siegmeister and intentional injury against Tropical Sun. It’s a tricky posture but it is possible that Siegmeister could become our ally against Tropical. I hope the supermarket has enough liability insurance because this is a nasty, disabling and permanent injury. The sort of negligence that Torres may be charged with (standing on a crate) is the routine sort of thing that a machine designer (and an employer) must anticipate and guard against. I don’t see any significant finding of negligence by Torres. It is barred in New Jersey because he was at his assigned task. But even where that defense is not barred, the fact that he was going about his job taking a rather routine shortcut is unlikely to be held against him by a jury. Damages The medical bills will probably be stipulated. They have been covered by workers comp. If the jury holds against Siegmeister Tropical gets paid back its comp lien for medical, temporary, and permanent partial disability benefits. If it holds against Tropical they will get credit for all they have paid, but will be liable for any wage loss beyond that covered by comp (which usually pays 70% of wage loss). The other element of economic loss is the reduction of earning capacity in the future due to the injury. He has lost three fingers and a good deal of hand strength. A vocational expert could show the kinds of jobs for which he could be retrained. An economist could estimate Torres losses in the future due to inability to do the heavy lifting that he has done to date. The biggest element that Siegmeister and Tropical face is probably pain, suffering, and disfigurement for the amputation injury, surgery, recovery and rehabilitation, and the embarrassment of going through life with such a dramatic and disfiguring loss of three fingers. Q. 2 Ryals v. U.S. Steel This is a wrongful death and survival action by the family and estate of David Ryals who suffered fatal injuries when he touched a wire at a power substation owned by U.S. Steel. The Ryals brothers went quail hunting on the property of U.S. Steel. The largest steel manufacturer in the United States, its Muscoda Mines apparently used a great deal of electrical power. Their substation however was neglected - as was the fence which permitted access to their land. The substation gave every appearance of having been abandoned. We have all seen power substations. They are typically well guarded, with fences, barbed wire, and warnings of the deadly danger they present. Not so here. The station was in shocking disarray. The brothers, after failing to flush out any quail from the brush, got curious about the substation. There were copper pipes lying about. That sort of thing is pretty handy for a guy who does home improvement projects. It’s the sort of thing one might stack in the basement for when you finally 2
get around to putting in a half-bath there, so the curiosity and temptation were quite understandable. Unfortunately the station was not abandoned - just neglected. The unsuspecting David was horribly burned, suffered terribly for a couple of weeks, and died leaving a wife and two teenagers who had depended on his schoolteacher’s salary and benefits. The widow faces two major obstacles: that David was a trespasser and that he was careless. The latter is less of a problem. It seems clear that he did not realize the danger - expecting that a live power station would be locked and well maintained. Trespass is a real problem. At common law - and the cases are legion - the only duty owed to a trespasser is to avoid intentional injury or setting a trap. 2d Restatement Section 333. There are a few exceptions - such as the attractive nuisance doctrine which excuses trespass by children (like those who come onto land attracted by a pond dug for swimming), or regular trespass as in a beaten path long tolerated. Neither of those fits here. It is clear though that US Steel had given up trying to prevent trespass - their fence was neglected and they were in bird-hunting territory. But that is probably not enough to overcome the common law rule. The Third Restatement, following the California Supreme Court in Rowland v Christian, uses a totality of the circumstances approach which abandons the rigid common law categories of trespasser, licensee, invitee. A more flexible approach is taken to the duty question. This has become the dominant approach. Generally a person lawfully on premises is entitled to the exercise of due care by one in possession of land. Heins v. Webster County. The Third Restatement addresses the trespasser problem in an innovative way that the widow and estate must here embrace. All but the flagrant trespasser is owed a duty of ordinary care. But what constitutes a flagrant trespasser whose entrance on the land is “inimical” to the interests of the landowner? Some courts will rule as a matter of law, and others give it to the jury. Here the facts are sufficiently debatable that it should go to the jury. Certainly the entrance on the land was not inimical to U.S. Steel’s interest. They weren’t running a wildlife preserve, but a mine. Entry into the substation to pilfer some copper tubing is a greater problem for plaintiffs. I think the better argument is that David Ryals was not a flagrant trespasser and was owed a duty of reasonable care - which was certainly not afforded by the dilapidated fencing and unlocked gate at the power station. Perhaps he was negligent - or just drew the tragically wrong conclusion from the neglected condition of the area. The contributory negligence of ryals may be found to exceed 50% which is fatal in a modified comparative jurisdiction - but I don’t see it going that way. U.S. Steel knew the dangers - and David Ryals didn’t. Their fault is greater, I think we can argue persuasively. But I don’t know how the jury will assess all that - so I’ll just call it a 50/50 shot at recovery. We should be ready to take a steep discount in settlement. A bird in hand, etc. Damages The survival action - brought by the estate - includes pain and suffering and all the medical bills 3
except those covered by health insurance if the Commonwealth of Pennsylvania has modified the collateral source rule to protect liability insurers (and self-insureds like U.S. Steel) in the way New Jersey and New York have done. Two weeks of hell from such severe burns will yield a big number. We should look at some databases to see what kinds of settlements and awards have been made for such burns. Depending on state law the wrongful death action on behalf of the dependents may include losses for grief, but certainly will include the financial losses by the two teenagers and the wife. The kids certainly expected help with college from their schoolteacher father. The wife expected to have the continued benefits of the joint household they maintained - and the benefit of the pension and other benefits that schoolteachers usually get from their employers. These elements of loss will have to be estimated by a forensic economist - and reduced to present value either by the expert, or - if New York practice is followed - by the court after the jury has rendered its verdict on future losses. Q. 3 Marsha O’Brien v. Century 21 Realty of Tucson, Inc., Hovnanian Homes of Tucson, Inc., and ABC Construction: General Contractors, Inc., et al. Marsha O’Brien was house hunting with her daughter when she slipped on gravel and fell, striking construction materials (a steel re-bar and concrete form) at the site of a residential housing development under construction. She has sued Century 21 - the real estate brokerage whose sales agent was showing her homes under construction by Hovnanian, the developer, and its general contractor ABC. It really doesn’t matter how Arizona states its law on the liability of occupiers of land. In common law parlance O’Brien - as a prospective buyer - and her daughter were business invitees owed a duty of ordinary care. Here that meant a reasonably safe place to walk. Arizona has embraced the Third Restatement regarding duty determinations, so it probably treats anyone lawfully on the premises as owed a duty of ordinary care - under the totality of the circumstances approach to duty determinations pioneered by neighboring California in Rowland v. Christian. Our most straightforward case is against Century 21 whose agent Jane Brewer was escorting O’Brien and her daughter. Construction sites are dangerous places and Brewer undertook responsibility for guiding the potential buyers through the site to interest them in the homes being built. As an authorized real estate broker permitted access to the building sites Century 21 owed O’Brien and her daughter a duty of ordinary care. Looking at the expected motions for summary judgment we have to assess whether there are duties owed and at any disputed questions of material fact. Leading the two across a yard with construction materials and debris could be found by a jury to be a careless undertaking by Brewer/Century 21. O’Brien followed Brewer’s lead, trusting that there was a safe path. In such circumstances, chatting and looking around, a customer like O’Brien is not giving her full attention to the surroundings. Brewer’s conduct was ill advised and her employer Century 21, of Tucson, Inc. is vicariously liable for her careless shepherding of O’Brien. A summary judgment motion by Century 21 would be frivolous. 4
We really don’t need Hovnanian in the case - they have probably ceded everyday control to ABC. A jury might found, however, that the developer was negligent in permitting the realtor to show homes while the site was under construction. The first homes completed are commonly used as model homes - so that customers can see the homes without encountering the dangers of a construction site. A jury might find negligent Hovnanian’s failure to limit prospective buyers to such a limited area. We should survive that motion - and get a few bucks from Hovnanian when settlement discussions are held. Because they control the construction site the claim against ABC is stronger, though we don’t need them in the case, either. As the GC in charge of the site they should have - if realtors were to show homes under construction - instructed the sales agents and prepared safe paths for them and their prospects. We should defeat that motion. We can expect some contribution from them in settlement. I wouldn’t settle with them alone, though because if we settle low and the jury whacks them with a big number after settlement we could come up short. Although the question of O’Brien’s inattentiveness is for the jury, the judge should remind the jurors that the realtor owes a duty of care to its customers, and that a pedestrian like O’Brien is entitled to expect that she will be taken on a safe route. That, unfortunately, did not happen. O’Brien slipped and fell on a dangerous steel re-bar which could have skewered her if she fell on it with a lot of force. The jury should be told that the O’Briens as prospective customers were owed a duty of ordinary care: that the premises should be reasonably safe for a pedestrian, and that Century 21 was obligated to guide the prospects safely through the premises. The jury should be asked if Century 21, Hovnanian, and ABC were negligent and if so whether each party’s negligence was a proximate cause of the harm suffered. There is enough evidence of inattentiveness by Marsha O’Brien that the jury should also be instructed that O’Brien was obligated to use reasonable care under the circumstances - for her own and her daughter’s safety. For each party found to have breached its duty of ordinary care he jury should be asked if that departure from the standard of care was a proximate cause of the harm suffered. The negligence of each negligent party should be assessed a percentage of fault, with the total adding up to 100%. Comparative negligence on O’Brien’s part, if any is assessed by the jury, is likely to be minimal. Q. 4 Maria Cabral v. Ralph’s Grocery Company Andres Cabral suffered fatal injuries when his car - apparently without braking - struck an illegally parked tractor trailer operated by Herman Horn for Ralph’s Grocery. Horn had parked illegally in an area designated for emergency parking only near an intersection on busy Interstate 10 in San Bernardino, California. Ralph’s is vicariously liable for any negligence attributable to its driver Horn who was in Ralph’s Grocery’s tractor-trailer truck taking a short break to eat something. He was obviously in the course of his employment - on the clock. See, e.g. Christensen v. Swensen [security guard off duty and off premises for quick lunch break was within course of employment]. 5
So the question for Ralph’s Grocery is did the illegal parking cause the accident and was its driver’s negligence, if any, a proximate cause of Cabral’s death. As a matter of cause in fact the answer is Yes: if the truck driver had not violated the restriction on parking the truck would not have presented an obstacle to Cabral’s vehicle. In such a case Cabral might have recovered control of his vehicle without incident. So but-for the illegal parking this accident would never have happened. But the cause in fact element is not enough. The proximate cause requirement must be satisfied. The best way to understand proximate cause - especially in California which has embraced Prosser’s critique of it as a “hall of mirrors”, is to ask the question Cardozo asked in Palsgraf: did the illegal conduct raise the risk of the kind of harm that Cabral eventually suffered? If so, if a heightened risk of collision is why all but emergency parking was prohibited, then the accident was proximately caused by the illegal parking. But it appears much stronger to say that Horn chose a safe place to park. It was of course reserved for emergency - but parking there did not increase the hazards to other vehicles on the highway. Horn’s illegal parking might have prevented a vehicle compelled by emergency from finding a safe place to park and so endangered such a vehicle. But that is not the case here. Cabral was driving erratically, swerved onto the shoulder and struck the Ralph’s Grocery truck, which was parked 10 feet off the pavement on the shoulder. A travel lane is usually 12 feet. It is possible that 10 feet was not far enough off the right-hand lane to enable safe passing by a vehicle pulling off the road into the breakdown lane. If some evidence were developed that Horn had not in fact parked outside the breakdown lane that might be found to be negligent and a proximate cause of the accident. The facts, however, most strongly support the idea that Cabral was either ill, or fell asleep, or grossly inattentive. Nothing Horn did foreseeably increased the risk of harm to Cabral or any other driver operating a vehicle in that vicinity. Summary judgment should be granted to Ralph’s Grocery and its driver Herman Horn. To: Adjuster I think we have got a slam dunk here. Of course never say never but I really have no substantial doubt that we will get summary judgment here. Yes we were parked illegally, yes we are liable for the foreseeable consequences of such conduct, but NOTHING our driver did increased the risk of harm to any one on the road. So even though our vehicle had parked illegally it appears to have been safely parked. Summary judgment should be granted in our favor.
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