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Archive for the ‘Tort and Catastrophic Loss’ Category

Federal Court Considers Jurisdiction Over Japanese Autonomous Auto Accident

Posted on: September 18th, 2020

By: Wes Jackson

On September 8, 2020, a federal court in California heard arguments as to whether it will exercise jurisdiction over a wrongful death lawsuit against Tesla. While the case presents an interesting forum non conveniens issue, it is also a harbinger of the coming transformation of auto accident litigation: as more vehicles become autonomous, what were once run-of-the-mill negligence cases will become full-blown corporate products liability claims.

The accident at issue occurred on April 29, 2018, when the driver of a Tesla Model X operating in Autopilot mode fell asleep and crashed into some motorcycles, pedestrians, and a van parked along an expressway near Tokyo, Japan. A 44-year-old husband and father died in the accident. His survivors brought suit against Tesla in the Northern District of California, arguing that the manufacturer sold cars operating on substandard, untested autonomous technology.

The arguments on September 8, 2020 consisted of standard forum non conveniens fare—weighing the benefit of having direct access to Tesla employees with knowledge of the car’s technology in California against the benefit of having access to witnesses and physical evidence of the actual crash in Tokyo. But the case also foreshadows a major change in how auto accidents are litigated. If, as we expect, the multiple split-second decisions involved in driving a vehicle are outsourced from the individual driver to a manufacturer’s autonomous driving system, liability will gradually shift from the driver to the manufacturer.

One consequence of this shift might be that the driver’s insurer is no longer the deepest pocket in play in auto wreck cases, encouraging plaintiffs to turn their attention to products liability claims against the manufacturer. Such a shift could also bring about major changes in the automobile insurance industry itself. These changes are likely to unfold in the coming years, as autonomous vehicles become more prevalent.

If you have any questions about this post or transportation liability, please contact the author, attorney Wes Jackson, at [email protected].

Changes in the Landscape of Civil Litigation in the COVID-19 Era

Posted on: September 17th, 2020

By: Christopher Lee

As economic and social norms have been drastically altered over the course of these last several months in the COVID-19 era, so too has the effect been on civil litigants on both sides and the considerations being made by the parties engaged in litigation. As discussed more fully below,  many disputes will see an increased opportunity for early settlement and compromise, while others will simply encounter delays. Nonetheless, it is essential for all litigants to understand the consequences of the altered landscape to effectively navigate this environment in these difficult times. 

Considerations are now being made on both sides of the table that simply did not exist prior to the pandemic. Plaintiffs now are acutely aware of the potential for insolvency of their litigation adversaries and are now carefully considering whether to settle their disputes earlier rather than later, taking into account the financial position of their adversary as the pandemic continues to affect the economy. Thus, plaintiffs may consider early settlement terms that would have been less than ideal prior to the pandemic given the uncertainty of the defendant’s financial position later down the road. Further hampering the plaintiff’s bar more so than the defense are the social distancing guidelines and state of judicial emergency orders that have reduced courthouse function and access, tolled filing deadlines, and postponed trials and hearings. In a recent study, case activity in the federal district courts is down approximately 41% from 2019. This environment is considered by many as defense-friendly given the difficulty plaintiffs now have in pushing forward matters in the majority of cases and the inability to leverage inherent pressures created by impending deadlines.

As to the defense, the thought of engaging in multi-year, costly litigation without a certain outcome is changing the litigation approach for some of even the mostly financially healthy corporations who are now placing an emphasis on reducing costs and/or eliminating contingent liabilities as quickly as possible.  In these cases, the pressures created by the pandemic may also drive them to settle on terms that simply would not have been acceptable prior to the outset of the pandemic. Also in the purview of defendants settlement considerations is a plaintiff’s liquidity and solvency concerns that may promote early settlement on terms more favorable to the defendants. However, some corporations have decided to take a different approach and are now also looking increasingly to third-party funders to finance litigation costs. “Frankly, we’re drinking from a fire hose,” said Allison Chock, U.S. chief investment officer for litigation funder Omni Bridgeway. “One of the things we’ve been talking about for some time now is the trend in corporations that historically paid for the legal expenses beginning to explore using litigation financing instead. … That is now becoming a more urgent trend.”

Ultimately, the pandemic poses many new challenges and considerations for litigants on both sides of the table. Understanding the changes in litigation leverage, litigation risk, and other trends as they continue to develop will be vital to allow counsel to create strategies and tactics to effectively advocate and represent their clients’ interests in alternative dispute resolution and in the courtroom.

If you have questions or would like more information, please contact Christopher Lee at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Plaintiffs Dogged by the “Coming and Going” Rule

Posted on: September 16th, 2020

By: Jennifer Weatherup

In a June 2020 decision, a California court upheld a defendant hospital’s motion for summary judgment, finding that the “coming and going” rule precluded liability for an automobile accident involving a volunteer pet therapist, and further finding that no exceptions to the rule applied. Savaikie v. Kaiser Foundation Hospitals (2020) 52 Cal. App. 5th 223.

The pet therapist, who was considered an employee for purposes of vicarious liability, used his personal vehicle to transport himself and a dog to an assisted living facility in order to provide volunteer pet therapy to a Kaiser patient. After completing the session, the pet therapist drove to a credit union to conduct personal business and then began to drive home. On his way home, he struck and killed a pedestrian.

The “coming and going” rule provides that an individual is not considered to be within the scope of their duties when they are in the process of going to and from their place of employment.

Here, the plaintiffs claimed that the rule should not apply in light of the “required vehicle use” exception, which applies when an employer requires the employee to furnish a vehicle for transportation on the job. However, the court found that the need for the pet therapist to travel to a variety of locations, and the need for him to transport the dog, did not create an express or implied requirement that the pet therapist use his own vehicle. Although there was an agreement or arrangement that the pet therapist would drive his personal vehicle, the hospital would also permit him to use other means of transportation, such as rideshare apps. Similarly, the court dismissed the argument that the vehicle use exception should apply because the hospital derived an “incidental benefit” from the pet therapist’s use of the vehicle, because this exception only applies where the use of a personally owned vehicle is either an expressed or implied condition of employment.

The court further rejected the plaintiffs’ argument that the need to transport “necessary work material” (i.e. the dog), meant that the exception had to apply. Although certain methods of transit, such as public transportation, were not feasible under the circumstances, the record failed to show that transporting an animal could only be accomplished by using a personal vehicle.

Unless the transport of materials required a “special mode of transportation,” the need to transport materials does not warrant an exception to the coming and going rule. The fact that the pet therapist used a harness system to keep the dog in place was not relevant because there was no evidence that the harness was permanently installed or that the vehicle was modified in order to transport the therapy dog. The plaintiffs failed to provide evidence that a vehicle needed to be modified in order to transport the dog, or that the hospital required the pet therapist to use a modified vehicle.

This decision narrows the potential scope of exceptions to the “coming and going” rule, indicating that it should apply unless it is clear that the employer either mandated use of a personal vehicle or that the employee needed to transport work material using a specialized or modified vehicle.

If you have questions or would like more information, please contact Jennifer Weatherup at [email protected].

Can I get an Extra Hot Mint Tea in a Venti Cup, but Only Filled Halfway?

Posted on: September 15th, 2020

By: Parisa Saleki

Starbucks. The major corporation is more than just a coffee shop – for many, it is a way of life. Yet, not even Starbucks is safe from lawsuits. The California Court of Appeal, Second Appellate District, recently reviewed a case against Starbucks that will remind many of the infamous “McDonald’s hot coffee case.”

In 1994, the country was obsessed with Liebeck v. McDonald’s Restaurants, a product liability case out of New Mexico where a civil jury awarded the plaintiff $2.86 million dollars after she suffered third-degree burns from accidentally spilling her hot McDonald’s coffee on her lap.

Flashforward to 2020, and we have Shih v. Starbucks Corp., Cal. Ct. App. Case No. B299329. In this recently appealed and reviewed case, Plaintiff Tina Shih sued Starbucks after she suffered second-degree burns from accidentally spilling her hot cup of tea on her lap.

Based on Plaintiff’s complaint that was filed in the Superior Court of Los Angeles County, after ordering and retrieving a hot cup of tea from a local Starbucks coffee-counter, Tina Shih took her drink to a table to sit and enjoy her beverage. She noticed that her drink was served in a double-cupped fashion rather than with a sleeve. She sat down at a table and removed the lid on the cup. Then, rather than pick up the hot, double-cupped tea, Plaintiff Shih elected to lean towards her drink to take a sip. As she bent forward, she lost her balance, grabbed the edge of the table to regain her balance, and the wobbling table caused her tea to spill on her. After sustaining second-degree burns, she followed Liebeck’s lead and filed a lawsuit against Starbucks for negligence and product liability.

Starbucks filed a Motion for Summary Judgment of Plaintiff’s claims, asserting that the use of double-cups rather than a sleeve is not a product defect. In opposition, Plaintiff argued that the major coffee corporation should be liable for a manufacturing defect because of the double-cup, no sleeve method and because her drink was filled to the brim. Plaintiff argued that her beverage was too hot to hold, so it was reasonably foreseeable that she would be forced to remove the lid and lean forward to sip from the cup, and that the alleged defect proximately caused her second-degree burns.

While the facts between Liebeck and Shih are similar – the outcomes are not.

The key to this case is the inconsistency of Plaintiff’s claims. In opposing the Motion for Summary Judgment filed by Starbucks, the Plaintiff claimed that her tea order was too hot, and a sleeve should have been used rather than double cups. However, the court rejected this argument and noted that the tea was not too hot to transport from the coffee-counter to the table. Further, the court was not persuaded by Plaintiff’s claim that the cup’s fullness and the lack of a sleeve required her to remove the lid and lean forward into the cup, thereby making it reasonably foreseeable that she would lose her balance and the tea would spill on her.

The appellate court upheld the trial court’s order to grant Starbucks’ Motion for Summary Judgment basing their decision on the logic that (1) Starbucks did not have a duty to warn the Plaintiff about the dangers of hot beverages, and (2) because there was a lack of evidence that her drink’s fullness caused her injuries.

In the end, Plaintiff was out of luck. On the bright side, a new generation finally has its own Liebeck v. McDonald’s Restaurants, and for tea enthusiasts who love the sight of a cup filled with tea to the brim, you can thank the California courts for shutting Plaintiff’s case down.

If you have questions or would like more information, please contact [email protected] or your FMG relationship partner.

Preparing for Kick-Off…and Litigation?

Posted on: September 15th, 2020

By: Curt Graham

As universities across the country prepare to kick off this highly unusual college football season, the impact of COVID-19 and the safety of student athletes are predominant considerations. Additionally, colleges have been required to examine the legal implications of the decision to play. Some universities sought to reduce liability exposure by requesting their athletes sign liability waivers in advance of the season. For example, University of Louisville athletes were recently presented with a form entitled “Participation Assumption of Risk and Waiver of Liability.” This document provided that the athlete “release[s] the University…from any and all liability, claims, causes of action, damages or demands of any kind whatsoever related to COVID-19 that may arise from or in connection with my participation in any activities related to the strength and conditioning in furtherance of my continued participation with my athletic team.”

These waivers have faced vociferous opposition, and even NCAA President Mark Emmert has stated that he is “categorically opposed” to colleges requiring athletes to sign COVID-19 liability waivers. The enforceability of these releases is hotly debated. As Caleb Saggus noted in his September 2, 2020 blog post, enforceability will vary from state-to-state, and the enforceability of COVID-19 liability waivers has not yet been litigated in Kentucky’s courts. However, certain case law precedent offers clues as to the factors a court may examine. 

Kentucky’s Supreme Court recently noted that pre-injury release waivers are not per se invalid in the Commonwealth. See E.M. v. House of Boom Ky., LLC (In re Miller), 575 S.W.3d 656, 660 (Ky. 2019). Additionally, exculpatory provisions have been upheld when the parties are “dealing at arm’s length and upon an equal footing,” and when “the contract was entered into voluntarily without either party being compelled to enter into the contract on the basis of necessity.” Greenwich Ins. Co. v. L. & N. R. R. Co., 112 Ky. 598, 604, 66 S.W. 411, 413 (1902). However, courts closely examine public policy arguments in these cases, and exculpatory agreements are generally “strictly construed against the parties relying on them.” House of Boom, 575 S.W.3d at 660. Additionally, potential plaintiffs (presumably with scholarships on the line in the college football setting) can be expected to argue they were not on “equal footing” with their colleges when the agreement was signed.

As Caleb previously noted, there is much uncertainty surrounding the enforceability of COVID-19 liability waivers, and this is particularly true in the context of college athletics. While we know the games will go on this fall, the legal consequences of the decision to play may not be known for years.

If you have questions or would like more information, please contact Curt Graham at [email protected]

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**