Recently in Liability Category

It's that time of year again. Bob Dorigo Jones's 13th Annual Wacky Warning Label contest announced a winner: The "Drive 'N' Talk Speakerphone - Not for use while driving."

Runners up include:
• a motorized go-cart that warns "This product moves when used"
• a Bluetooth headset that cautions "Use of a headset that covers both ears will impair your ability to hear other sounds"
• a swine growth supplement labeled "for animal use only"
• and a pair of swim goggles that advises consumers "not [to] pull goggles away from face, as they may snap back and cause injury."

As John Stossel points out in this recent video clip, studies show that when people are overloaded with warning labels they quit reading them. Even more dangerously, they may miss entirely warnings that actually matter.

So why include them? To avoid getting sued!

Our entry last year didn't make the cut, but we're working on one for next year's contest. No doubt there will be no shortage of candidates.

We've been a bit busy documenting how some legislators were eager to please the trial lawyers this week, (here and here) so we're a little late bringing to your attention the latest twist on a classic lawsuit.

Reuters reported earlier this week that Starbucks has been sued by a customer in Manhattan who says she suffered second-degree burns after she spilled hot tea on herself.

Zeynep Inanli stated she was served tea that was "unreasonably hot, in containers which were not safe," resulting in second-degree burns and "great physical pain and mental anguish."

Yes, that should sound familiar as it's the same basic claim a New Mexico woman made in 1994 against McDonald's after she spilled hot coffee on herself. After that case was settled, restaurants everywhere have printed warnings to remind customers that hot beverages are, in fact, hot.

Our Turkish isn't very good, but a Google news search indicates the plaintiff is a star Turkish tennis player, who we'd imagine should be good at handling serves.

WPIX-TV in New York pointed out that Starbucks' lids prominently warn "Contents Hot." And some of the person-on-the-street comments are priceless.

Tuesday was the annual Lobby Day for the state's trial lawyers, the day more than 100 plaintiffs' attorneys visit legislative offices to remind lawmakers that the trial lawyers need more opportunities to file and win lawsuits - and certainly do not like any ideas that might limit their ability to do so.

A number of bills in the latter category were scheduled for Tuesday, presumably so legislators supported by personal injury attorneys could kill legal reform bills while the lawyers were in the hearing rooms.

The fate of one such bill really demonstrated the trial lawyers' single-mindedness and the support it enjoys in Sacramento. Senator Alex Padilla (D-Pacoima) presented a bill, SB 1281, to further encourage businesses and building owners to install automatic external defibrillators. AEDs are life-savers used to administer an electric shock through the chest wall to the heart after someone suffers cardiac arrest. Designed to be used by almost anyone in an emergency, they use built-in computers assess the patient's heart rhythm, determine whether the person is in cardiac arrest, and signal whether to administer the shock. Audible cues guide the user through the process.

Dr. James Dunford, the medical director of the city of San Diego, a professor in the Department of Emergency Medicine at UCSD Medical Center, and the president of the Greater San Diego Board of the American Heart Association, testified that AEDs are the only thing standing between a person who goes into cardiac arrest and almost certain death.

Dunford, who in 2000 helped found San Diego Project Heart Beat, a program designed to increase the use of AEDs, noted that the survival rate without an AED is just 6 percent, but the survival rate jumps to 50 percent or more if there's a public defibrillator program in place. "The only thing that is going to make a difference is the shock. CPR is merely a bridge to hold the person until the shock arrives" he told members of the Senate Judiciary Committee.

Current law provides building owners and people who use the devices when someone goes into cardiac arrest limited immunity from being sued. However, the law mandates a number of requirements that must be met, including developing a written plan describing the procedures to be used, training a fixed number of employees or tenants on how to use them, and checking them every 30 days to make sure they are in good working order. Failure to comply with any one of these requirements would remove the limited liability protection and open the door for a lawsuit.

The not-surprising result: many property owners are reluctant to buy and install AEDs because they don't want to open yet another avenue for being sued.

Jan Ogar, representing the Emergency Nurses Association, said AEDs need to be as ubiquitous as fire extinguishers in public buildings, but that too many companies, non-profits, churches and other groups are fearful of liability, a point confirmed by Matt Hargrove of the California Business Properties Association.

A long list of people echoed their support, including a man whose life was saved by the device, his wife, nurses, the California Hospital Association, the American College of Cardiology, the California Medical Association, the League of California Cities, and a representative of church groups.

A slam dunk? Not so fast. It's the trial lawyers' Lobby Day, remember.

Testifying against the bill was John Montevideo, a Santa Ana trial lawyer and president-elect of their lobbying group, who piously proclaimed that of course trial lawyers support AEDs but said without proper training and maintenance, the devices may not be as effective as they could be. Then he got to the main point: "This bill is a blanket immunity bill. The law as it stands grants a qualified immunity...why should that be changed?"

His point was echoed by Greg Landin, a paramedic who also owns a company that makes money training people and businesses in the use of AEDs, CPR, and other emergency rescue procedures. Ironically, Landin conceded the supporters' point, saying it was "very possible" that more businesses would install AEDs if the threat of liability was eliminated, but he said the training that his company offers is critical.

Senator Padilla tried to refocus the committee members by pointing out that even if people aren't trained, the devices are nearly foolproof and can't possibly hurt anyone since the patient is almost certainly going to die without one. And again, he pointed out that even if some AEDs weren't as well maintained as everyone would like, having them available greatly increases the chances that more people who go into cardiac arrest will live.

But committee Democrats - the Chair, Ellen Corbett of San Leandro, and Mark Leno of San Francisco and Loni Hancock of Berkeley - agreed with the trial lawyers.

"I do believe that you are asking us a very serious question today, and that is whether we allow for some liability in cases where people have not felt it's important to be trained and maintain their devices," Corbett told Padilla.

That settled, the committee voted 3-1 to kill the bill, even with last-minute amendments Padilla offered to try and mollify the trial lawyers.

The moral of the story? Better hope you don't go into cardiac arrest in a store or office building whose owner decided quite appropriately that the risk of facing a multi-million dollar lawsuit outweighed buying life-saving devices and making sure that every step of the legal requirements were followed to the letter.

A bill that would add SCUBA diving to a list of "hazardous recreational activities" -- which immunizes public entities and employers from liability when people engage in risky activities -- passed the state Assembly and will now go to the Senate for consideration.

In Assembly Bill 634, authored by Assemblywoman Diane Harkey and supported by CJAC, SCUBA diving would join a host of other activities in Government Code section 831.7, including diving, animal riding, bike racing, kayaking, surfing, waterskiing, white water rafting, rock climbing, and hang gliding, among others.

In a letter to the California Assembly, Kim Stone, Vice President-Legislation for CJAC, noted: "SCUBA diving certainly fits with those other kinds of hazardous activities. State and local governments should not face liability for risks assumed by people who engage in hazardous activities."

AB 634 - Letter to California Assembly.pdf

The 8th U.S. Circuit Court of Appeals has ruled that a name brand prescription drug manufacturer could not be held liable for injuries caused by a generic competitor's version of the drug.

In a statement, CJAC President John H. Sullivan commended the Court's ruling and said, "the court got it right, showing a refreshing abundance of common sense in telling us that 'Traditional products liability requires a plaintiff to show that she actually consumed the defendant's product.'"

"It makes no sense to tie a company's product liability to a drug that it invented but has lost patent protection -- and which the plaintiff was not taking when the injury occurred," he added.

The plaintiff in the case, Mensing v. Wyeth, brought a failure to warn and misrepresentation case against a number of manufactures of a drug, Reglan, and its generic form. She also sued the name brand defendants for fraud and negligent misrepresentation on the theory that her doctor relied on Reglan's label when assessing the risks and proper uses of the generic.

The Court also considered and rejected an appellate court's holding in a November 2009 California court of appeal decision in Conte v. Wyeth that found Wyeth Pharmaceuticals liable for the plaintiff's negative reaction to a medication used to treat stomach conditions -- which Wyeth pioneered but no longer produced. The plaintiff in that case took a generic drug, manufactured and sold by a generic drug manufacturer, but sued Wyeth for failure to warn of risks associated with the drug. The California Supreme Court declined to review that case.

Read the opinion in Mensing v. Wyeth by clicking here. (Click the link and search for case number 08-3850.)

Previous blog posts on Conte v. Wyeth can be found by clicking here, here, and here.

Governor Arnold Schwarzenegger today signed two important pieces of legislation that will shield Good Samaritans from civil liability: Senate Bill 39, authored by Senator John Benoit, and Assembly Bill 83, authored by Assemblyman Mike Feuer.

The bills, which CJAC supported, amend California's Health and Safety Code to ensure that liability protections extend to all persons -- both medical professionals and laypeople -- who help out in good faith at the scene of an emergency. Both bills have urgency clauses and will go into effect immediately.

The bills were authored in response to the California Supreme Court decision in December 2008 in Van Horn v. Watson, in which the court ruled that the Health and Safety Code provides liability protection only to medical professionals who provide emergency medical care.

In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Van Horn alleges that the movement caused her subsequent paralysis.

Click here to read more background on the bills. Watch CJAC's Vice President-Legislation, Kim Stone, testify on AB 83 here.

Also, click here to read a news release from Assemblyman Feuer's office.

A bill that will shield non-medical Good Samaritans who help out at the scene of an emergency from civil liability will now be considered by the full Senate.

Assembly Bill 83, which CJAC supports, passed 5-0 out of the Senate Judiciary Committee today. The bill was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued. It amends Health and Safety Code Section 1799.102 to ensure that it provides liability protections to all people, both medical and laypeople, who help out in good faith at the scene of an emergency.

Click here to read a news release from Assemblyman Feuer's office, which includes a comment from CJAC President John H. Sullivan.

Kim Stone, CJAC's Vice President - Legislation, testified on AB 83 in front of the Senate Judiciary Committee today.

Assembly Bill 83, one of several Good Samaritan bills authored this legislative session, is set for hearing on Tuesday before the Senate Judiciary Committee. It was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill, which CJAC supports, states that non-medical Good Samaritans who help out in an emergency are exempt from civil liability unless their actions constitute gross negligence or willful or wanton misconduct.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued.

In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Alexa Van Horn alleges that the movement caused her subsequent paralysis.

A hypothetical result following this approach: If a potential drowning victim is pulled from the water by one Good Samaritan and given CPR by another -- but is injured during the process -- the saved person can sue the person who got him ashore but not the person who administered CPR. This awkward result has been criticized by The New York Times, Time Magazine, the Los Angeles Times and others.

Assembly Bill 874, authored by Lori Saldana (D-San Diego), passed the Assembly Judiciary Committee today on the consent calendar. The consent calendar is for bills with no dissenting votes, and bills are voted on without discussion.

The bill, which CJAC supports, would remove the requirement that city and county owned or operated skateboard parks require users to wear elbow and knee pads. Under California Health and Safety Code Section 115800, skateboard parks owned or operated by a local government receive civil immunity from lawsuits because skateboarding is a hazardous recreational activity under Section 831.7 of the Government code. In order to receive that immunity, the local government must comply with a list of safety rules and regulations.

Removing the requirement that skateboarders must use elbow and knee pads will encourage more skateboarders to use safer city or county parks, without the dangers of collisions with cars or pedestrians. California courts have agreed that skateboarding is a hazardous activity and have declined to find liability when skateboarders are injured in the course of their sport.

Position Paper - Assembly Judiciary - AB 874.pdf

Do we need to be told that there is gasoline at the gas station, or that breathing too much engine exhaust might not be good for us? Or that an electrical cord has a small amount of lead in it, even if it's not enough to harm us?

Maybe not, but warnings signs are posted anyway -- not to protect us, but to prevent frivolous litigation being brought against the businesses that post them, Lisa L. Halko wrote in an op-ed in the Daily Journal legal paper (subscription only). You can also read it here.

Halko, a shareholder in the Sacramento office of Greenberg Taurig, noted that copious warning signs were not what voters intended when they passed Proposition 65. The initiative requires warnings if people's cancer or birth-defect risk would be increased by exposure to "toxic chemicals." Deciding which chemicals are toxic would be "based strictly on scientific testing," because the law "does not apply to insignificant (safe) amounts of chemicals."

But, as Halko wrote, that didn't happen.

"We got signs telling us things that aren't true. Businesses post Proposition 65 signs just so that the plaintiffs cannot accuse them of 'exposing' people to everyday chemicals without a warning.

"Businesses that get caught without warnings receive notices from private attorneys who sue for civil penalties and attorney fees. Since all the exemptions are affirmative defenses requiring expensive expert testimony, most cases settle. Of the $11.8 million in Proposition 65 settlements that businesses paid in 2007, less than 20% was for civil penalties. More than half was for attorney fees, and the rest was for payments 'in lieu of civil penalties.'"

Assembly Bill 83, one of several Good Samaritan bills authored this legislative session, passed the Assembly Judiciary Committee unanimously on Tuesday and was amended to add an urgency clause.

The urgency clause requires a two-thirds vote and means that as soon as the bill passes and is signed into law, it will go into effect. Other bills go into effect on January 1 the year following passage.

The bill was authored by Mike Feuer (D-Los Angeles), the chair of the Assembly Judiciary Committee. The bill's principal coauthor, Senator John Benoit (R-Palm Desert), previously introduced SB 39 on the same subject.

This bill states that non-medical good Samaritans who help out in an emergency are exempt from civil liability unless their actions constitute gross negligence or willful or wanton misconduct. The bill was authored in response to the December 2008 California Supreme Court decision case Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102. The plain language of that section says, "No person who in good faith and not for compensation renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission." The Court interpreted that language to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. A non-medical person who provides non medical help can be sued by the person she rescued.

In the Van Horn case, Lisa Torti was sued by Alexandra Van Horn for pulling her out of a car that Torti believed was about to explode. The implications for California law mean, for example, that if someone is a drowning victim in a lake, and is rescued by one person, and given CPR by another, the saved person can sue the person who pulled them out of the lake, but not the person who administered CPR. This awkward result has been criticized by The New York Times, Time Magazine, the Los Angeles Times and others.

Assembly Bill 83 is supported by CJAC, the trial lawyer's lobbying group, the California Association of Nonprofits, Citizens Against Lawsuit Abuse, the California Fire Chiefs Association, and the Los Angeles County Sheriff's Department. There was no registered opposition at the hearing. It is not entirely without detractors, though. Michael Newman, in an op-ed in the Daily Journal, notes that AB 83 only provides qualified immunity to Good Samaritans -- that is, immunity except for gross negligence or willful or wanton misconduct, whereas AB 90, authored by Assembly Member Anthony Adams (R-Hesperia) would provide unqualified immunity.

The bill will next go to the Assembly Floor for a vote.

State legislators quickly introduced three bills after the California Supreme Court ruled in December that non-medical Good Samaritans are not protected from lawsuits if they inadvertently or negligently cause harm for rendering non-medical care at the scene of an emergency.

One of those bills -- Assembly Bill 83 -- has been amended from an intent bill to a bill with specific language. The bill states that non-medical good Samaritans who help out in an emergency are exempt from civil liability unless their actions constitute gross negligence or willful or wanton misconduct.

This bill would, in effect, change the law after the Court's decision in Van Horn v. Watson. See our earlier blog post for more details.

AB 83 is authored by Mike Feuer (D-Los Angeles), the new chair of the Assembly Judiciary Committee. Its principal coauthor is Senator John Benoit (R-Palm Desert), who previously introduced SB 39, on the same subject. Also introduced was AB 90, authored by Anthony Adams (R-Hesperia) on the same subject.

You see a car crash on the side of the road. You think the car might explode. You see a person inside. Should you remove the person? If you do, and inadvertently cause injury, can you be sued?

In California, the answer depends on if you are a medical professional or not. Medical Professionals -- doctors, nurses and emergency medical technicians -- are specifically protected under the Good Samaritan law in California's Health and Safety Code Section 1799.102.

But last month, the California Supreme Court said non-medical Good Samaritans are not protected from lawsuits if they inadvertently or negligently cause harm. In the case of Van Horn v. Watson, the court held that non-medical Good Samaritans are not entitled to liability protection when there is injury as a result of their actions. In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Alexa Van Horn alleges that the movement caused her subsequent paralysis.

A quick look at the situation would cause many to conclude (as the New York Times did) that the majority should have applied more common sense and less legal parsing. However, the liability immunity code section at issue is steeped in "medical" references that do back up the opinion. What was missing in the current law is "rescue and care" ("reasonably provided") language, which the Legislature can readily supply to subdue any ambiguity. This change would mesh with the existing common law rule which shields any person who acts with due care in coming to the aid of another.

The California Supreme Court's decision has already led to the introduction of three bills in the legislature. Democrat Mike Feuer, the incoming chair of the Assembly Judiciary Committee, introduced AB 83, a bill that declares the intent of the legislature to look at the case. Republican John Benoit introduced SB 39, which would extend the liability protection to non-medical Good Samaritans as well. And Anthony Adams, R-Hesperia, has authored a bill, AB 90 that would extend the same legal protection to any Good Samaritan offering "medical or non-medical" emergency care.

The New York Times has editorialized against the California Supreme Court decision, saying it was " a disturbingly narrow interpretation that could discourage future good Samaritans from providing help out of fear of being sued." The Times continues, "The implications of the ruling are disturbing. When people see an accident, the law should not discourage them from offering the best help they can. Now, however, Californians will have reason to hesitate. If they offer nonmedical help -- like pulling someone out of a burning house, or rescuing a drowning person -- they may be putting their life savings at risk."

Read California's Health and Safety Code Section 1799.102 by going to http://www.leginfo.ca.gov/. Click on "California Law," then check "Health and Safety Code" and search for section 1799.102.

One Florida county settled 189 playground lawsuits in five years. Another Indiana school district was sued after a boy slid down a slide head-first and broke his femur. A 2004 survey reported that 78% of middle and high school teachers have been subjected to legal threats from students "bristling with rights," columnist George F. Will wrote in "Running at Recess."

The column explores America's pervasive legal culture and points to a new book on public affairs, attorney and author Philip Howard's "Life Without Lawyers: Liberating Americans from Too Much Law."

As a result of fears over liability, warnings multiply: "The warning label on a five-inch fishing lure with a three-pronged hook says, 'Harmful if swallowed;' the label on a letter opener says, 'Safety goggle recommended,'" Will wrote.

"Lawsuits express the theory that anyone should be able to sue to assert that someone is culpable for even an idiotic action by the plaintiff, such as swallowing a fishing lure," he wrote. "... A predictable byproduct of this theory is brazen cynicism, encouraged by what Howard calls trial lawyers 'congregating at the intersection of human tragedy and human greed.'"

Think lift tickets are expensive now? Some resorts are up to $79 a day. Prices may get higher if the California legislature imposes additional liability on ski resorts.

Last week, the Assembly Judiciary Committee held an informational hearing on "Ski and Snowboard Health, Safety and Liability Standards." Usually, informational hearings are precursors to bills. The California legislature convenes its 2009 Session in early January 2009, and legislators have until the end of February to introduce bills. We expect to see a bill relating to ski industry liability. Most likely, the bill will increase liability for ski resorts. If that's the case, you can expect to see even higher lift ticket prices.

Currently, skiing is considered by law to be a risky endeavor and many "mountains" are somewhat protected from expensive lawsuits by the legal doctrine of "assumed risk" as well as by contractual liability waivers, usually found on the back of the lift ticket.

Today and tomorrow in Valencia personal injury lawyers from around Europe are meeting to hear about American-style punitive damages and product liability from some people who would love to see them expand on the Continent. On the agenda are the president and president-elect of the U.S. national trial lawyer organization, currently named the "American Association for Justice."

The European group hasn't gone to the pseudonym well yet and goes by the name "Pan European Organization of Personal Injury Lawyers" (PEOPIL). The group's web site indicates official support from the European Union.

To the extent that members are trying to harmonize legal rules across borders in Europe, no harm. To the extent they are a vehicle for importing U.S. liability law, there's pushback. As CJAC reports in our soon-to-be-published 2nd quarter Balance newsletter, the head of a German shareholders group recently stated that: "We don't want a litigation industry." And the European Union itself has proposed rules that prevent American-style class action litigation.

A Canadian man won't collect the more than $345,000 he won in an Ontario courtroom after claiming that a dead fly in an unopened water bottle made him depressed, anxious and phobic, according to an Associated Press story.

The Supreme Court of Canada agreed in a 9-0 judgment that Martin Mustapha psychological harm, but his reaction was so "unusual or extreme" that bottling company Culligan of Canada Ltd., should not have to pay compensation.

Chief Justice Beverley McLachlin said the legal test for damages is whether a person of "ordinary fortitude" would suffer psychological harm. In Mustapha's case, she concluded, the reaction was so unique that Culligan could not reasonably have foreseen the consequences and should not be held liable.