Archive for the 'Personal Injury' Category

Should the Parents of the Boy Who Fell Into a Gorilla Enclosure Have Been Held Liable?

What would you do if your child wandered away from you in public and you found yourself facing national scrutiny as well as possible criminal liability? That’s just what happened to Michelle Gregg and Deonne Dickerson after an incident with their three-year-old son at the Cincinnati Zoo over Memorial Day weekend.

On May 28th, the three-year-old boy climbed over a 3-foot barrier before falling 15 feet into a moat inside a gorilla enclosure. The boy was then confronted by Harambe, a 450- pound silverback gorilla. Harambe violently dragged and tossed the child around the enclosure before he was fatally shot by zookeepers.

Harambe’s death sparked international outrage. Critics lambasted the zookeepers for resorting to killing a member of an endangered species, as well as the boy’s parents for what they saw as their negligent behavior. In fact, a petition posted on change.org calling for Michelle Gregg to be investigated by Child Protective Services has over 60,000 signatures.

The Cincinnati police announced that they would look into filing criminal charges against the boy’s parents. However, on June 6th Ohio prosecutors announced that they would not be pressing charges.

But exactly what sort of legal liability could the boy’s family have faced? And could a case against the parents be seen as anything but frivolous?

Could the Boys Parents Have Been Charged For Harambes Death?

The outrage directed at Michelle Gregg and Deonne Dickerson after Harambe’s death is reminiscent of the backlash against Minnesotan Walter James Palmer. In 2015, Palmer shot and killed Cecil the lion while on a hunting expedition in Zimbabwe.

Like Harambe, Cecil was a member of an endangered species. Also like Harambe, Cecil lived under human observation—he resided in a national park where he was popular with tourists. While zookeepers shot Harambe in order to protect a child, Palmer hired two guides to assist him in killing the lion. Once in Africa, Palmer allegedly assisted in tying an animal carcass to the back of a vehicle to lure Cecil out of the park. Palmer later shot and killed Cecil after 40 hours of stalking him through the wilderness. Gorilla

However, the most important difference is that Palmer potentially faced charges under the Lacey Act, which makes it a federal crime to trade in wildlife killed in violation of foreign law. Palmer’s accomplices faced $20,000 in fines and up to 10 years in jail on poaching charges. There isn’t a comparable statute in the Harambe case. Ultimately, however, Palmer was not charged with a crime in Cecil’s death.

In lieu of a law that could directly charge anyone with Harambe’s death, outraged animal lovers urged supporters to sign a petition to instate “Harambe’s Law.” The petition, which will be delivered to an Ohio representative and a senator, asks that in the event of an incident similar to Harambe’s death “…the negligent party and or party’s [sic] be held financially and criminally responsible for any harm and or loss to an animal, specifically when said animal is Critically Endangered.”

Could the Parents Actions be Considered Child Endangerment?

If the boy’s parents had been found criminally liable, they might have been charged with child endangerment. According to Ohio Revised Code (ORC 2919.22), a caregiver commits child endangerment when he or she creates a “substantial risk to the health or safety of the child, by violating a duty of care, protection or support.” In other words, a parent or guardian who puts the child under their care in a situation where it is likely that the child will be exposed to harm could be found guilty of child endangerment.

While it might seem that a prohibition against exposing a child to harmful situations could make allegations of child endangerment a slam dunk to prosecute, this is not always the case. For example, while leaving a toddler unattended in a bathtub for up to four minutes could possibly be a situation that poses a “substantial risk to the health or safety” of a child, an Ohio court ruled that the mother in the case was not guilty. Similarly, another Ohio mother was not charged after she left her child unsupervised in a car in a mall parking lot.

However, there is an example of a parent who was held legally liable for an incident at a zoo. In 2015, a woman was sentenced to probation and parenting classes after she dropped her young child into a Cleveland zoo’s cheetah pit. The two-year-old child lunged out of his mother’s arms after she dangled him over a railing. The woman was charged with child endangerment, but eventually pleaded no contest to aggravated trespassing.

Although some animal lovers have been critical of what they see as Michelle Gregg’s parenting failure that day at the zoo, the charge of child endangerment does not hold up so easily in her case. According to witnesses, Gregg lost track of her child for perhaps two minutes. Unlike the Cleveland Cheetah case, Hamilton County prosecutor Joe Deters stated that he did not believe she acted in a way that put her son in danger.

So Would Charging the Boys Parents Have Made Any Sense?

While the death of Harambe was a loss to the Cincinnati Zoo and animal lovers everywhere, the prosecution’s decision not to press charges against Michelle Gregg is correct. After all, Michelle Gregg did not poach Harambe, as was alleged in the case of Walter Palmer. Additionally, the couple of minutes Gregg lost of her son does not rise to the standard of child endangerment.

Man Held Hostage Demands Portion of Award Money for Aiding Capture of Jail Escapees

If you’ve been kidnapped and convince your kidnappers to turn themselves in, should you get a share of the reward for their capture? A 71-year old taxi driver was reportedly kidnapped by 3 escapees from a California jail and held hostage for at least a week. Lon Hoang Ma, the victim, has sued in a court of law for a share of the $200,000 reward that was posted for the capture of the 3 escaped men.

After escaping from jail, inmates Bac Duong, Hossein Nayeri, and Jonathan Tieu called for a taxi. The unsuspecting taxi driver happened to be Ma, who drove them, at their request, to a local Walmart and Target shopping center. All seemed normal until the men walked out of Target with a gun, threatened Ma, and forced him to drive to a hotel where he was held hostage. Tieu and Nayeri, according to Ma, would often argue about wanting to kill Ma, but Duong was against it. Even so, Ma feared for his safety, as all 3 men were violent felons.

Ma reported that Duong was often cordial to him, despite the fact his partners wanted to kill him. Eventually, while Nayeri and Tieu were out with a stolen van, Ma claims he was able to persuade Duong to flee. Ma convinced Duong that the other 2 men would eventually kill him and that Duong would be an accessory to that crime even if he didn’t take part. Presuming Duong didn’t want to be an accessory, the pair decided to flee and took off on roughly a 400-mile drive south. It was during that drive that Ma says he persuaded Duong to surrender himself to the police. Wanted Poster

Duong was arrested and Ma proceeded to give the Sheriff’s department more information about the events that took place during his kidnapping, which included information identifying Tieu and Nayeri’s known location and information regarding the stolen van that was in their possession. This information was then broadcast on local airways. A homeless man saw the broadcast and realized he had just spotted the missing men and flagged down a police officer. As a result, Tieu and Nayeri were ultimately caught.

The homeless man got $10,000 for reporting that he had spotted the men to a police officer, the owner of the stolen van received $20,000 for making a vehicle theft report, and 2 Target employees received $15,000 for recognizing that the men had purchased cell phones at their store. Ma received nothing even though he provided information leading to the capture of the escapees.

Who Qualifies For Reward Money?

In terms of contract law, a contract exists when there is offer, acceptance, and consideration. A reward offer is an offer for a unilateral contract, which is accepted by performance and that performance would be providing information leading to an arrest.

Ma isn’t the first to sue for reward money, but rewards will often not be issued to a victim while a case is pending because it can affect the outcome at trial when an eyewitness has to testify and disclose that they’ve received a reward. That doesn’t mean Ma shouldn’t be entitled to a portion of the reward, it just may need to be a delayed reward.

It’s Probably a Slippery Slope…

Consider a man commits a crime, decides to turn himself in, and then tries to claim the reward money for his own crime. Does the criminal have a legally valid claim to do so? No. The problem arises with the consideration portion of the equation. Consideration can come in the form of a promise (or performance) to do something that you’re not legally obligated to do or a promise not to do something you have the right to do (like file a lawsuit). A criminal can’t claim his own reward because he doesn’t have any consideration to give.

You obviously don’t want criminals claiming reward money for turning themselves in, but a hostage should be entitled to a portion of the reward if his information helped lead to the arrest of his captors. Ma accepted the offer when he provided information that ultimately led to the arrest of the jail escapees.

Ma wasn’t obligated to provide any of that information, so that’s his consideration. Whoever is paying out the reward has the ability to set the terms of eligibility for claiming the reward, but unless there is some missing information, the fact that Ma was a hostage shouldn’t hinder his ability to claim part of the reward.

Batman Shooting: Should Movie Theaters Provide Extra Security?

When people go to see a movie in a movie theater, the last thing they expect is to be a part of a shooting massacre. That’s exactly what happened in Aurora, Colorado in 2012 when approximately 400 movie enthusiasts went to see the premiere of the Batman film, The Dark Knight Rises.

During the midnight showing, a heavily armed and gas mask-clad gunman entered the movie theater, set off tear gas grenades, and shot into the audience. He killed 12 and wounded 70 during the shooting rampage. The gunman was sentenced to life in prison without parole and was convicted of 24 counts of first-degree murder – two for each of the slain victims.

After the gunman’s conviction, the victims and their families filed a civil suit against Cinemark USA Inc., the movie theater where the shooting occurred, claiming Cinemark and the property owners should be held liable for lapses in security which contributed to the tragedy.

According to plaintiffs’ attorney, Cinemark failed to have armed security, roving guards around the building, and silent door alarms on the auditorium exit. The jury ruled that Cinemark was not liable for the mass shooting because it was completely unpredictable, unforeseeable, and unpreventable.

The lawsuit brings up an interesting question. When can a property owner be held liable for a personal injury sustained on their property?

Visitors on the Premises

When you enter someone’s property, you have a reasonable expectation of not getting injured. This means the property owner is responsible for maintaining a safe environment. Whether the property owner is subject to liability depends on the state in which the injury occurred. Movie Crime Scene

Many states focus on the status of the visitor to the property. In general, there are three labels for visitors:

An invitee is someone who either has express or implied consent of the owner to enter the premises, such as a customer to a store. They can also include friends, relatives, and neighbors. Because the visitor is “invited” onto the property, it is implied that the owner has taken reasonable steps to assure the safety of the premises.

A licensee has the either express or implied consent of the owner to enter the property, but is coming onto the property for his or her own purposes. Licensees are usually salesmen or mail carriers. The landowner owes a licensee a lesser duty only to warn the licensee of dangerous conditions that create an unreasonable risk of harm if the landowner knew about the condition or the licensee is not likely to discover it.

A trespasser is someone who is not given permission to be on the property. Landowners typically do not owe a duty to trespassers unless the trespasser is a child.

Premises Liability

Premises liability is a typical cause of action in personal injury cases where the injury was caused by an unsafe or defective condition on someone else’s property. Premises liability cases are based on the theory of negligence. To win a premises liability case, the injured person must prove that the property owner was negligent in some way with respect to his or her ownership and maintenance of the property. In that regard, the injured party must show the property owner knew or should reasonably have known that the premises were in an unsafe condition and, despite this knowledge, failed to take proper steps to remedy the unsafe condition.

Liability in Shooting Massacre

In this case, the jury ruled that it was not reasonably foreseeable that a crazed gunman would open fire on opening day of the movie Batman. If the plaintiffs could demonstrate it is common practice of movie theaters in Aurora to have extra security for movies that involve extreme violence, they may have prevailed in this lawsuit. Without such a common practice, the movie theater could not be found liable. The ruling is certainly a blow to the victims and their families who are trying to move forward from the tragedy, but it also goes to show that some random acts of violence are only the fault of the perpetrator.

Snapchatting Speed Demons: Is Snapchat Liable for their Speed Filter Function?

In 2014, approximately 431,000 people were injured due to distracted driving in the U.S. All these people, hurt because somebody was distracted by something like a text or using social media. One of the most popular social media applications available today is Snapchat. Snapchat allows users to take “self-destructing” pictures or videos of themselves that disappear soon after they are sent.

Snapchat recently added a “speed filter” to its product.  The filter detects what speed you are going and posts it with your snapchat as an overlay. This led, perhaps predictably, to a trend of people snapchatting themselves while driving as fast as possible.

Christal McGee—18-years-old—was driving with three of her friends last September and decided to snapchat herself going over 100mph.  She used her phone to record herself driving her Mercedes at 107 MPH in a 55 MPH zone. She ultimately recorded herself rear ending an Uber driver, Wentworth Maynard, as he pulled out into the road.

The people in Ms. McGee’s car suffered minor injuries. Shortly after the accident, McGee snapchatted a picture of herself strapped to a gurney captioned “Lucky to be alive.” Mr. Maynard was not so lucky, suffering permanent brain damage.

Mr. Maynard and his family are suing Ms. McGee, claiming negligence and loss of consortium. Ms. McGee’s family have issued statements that they believe Mr. Maynard was at fault for pulling out into traffic without giving Ms. McGee time to stop—calling the case “a big setup for somebody who is young and innocent.” However, with the passengers of the car coming forward to corroborate both Ms. McGee’s speed and the fact that she was recording herself, Mr. Maynard’s case against Ms. McGee is very strong.

Mr. Maynard’s injuries are tragic, but his case against Ms. McGee is a fairly standard negligence case. Or it would be if Mr. Maynard and his family weren’t also suing Snapchat for including the speed filter feature in their app.

An Unsafe Product?

The Snapchat speed filter seems like a functionality with very few safe uses. The filter is obviously dangerous while driving, but is there really a safe time to record yourself going as fast as possible? Do we want people distractedly recording themselves while they bike, or skateboard, or jet ski, or even while they run?

Mr. Maynard’s lawyers have described this case as a “products liability” case. Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product. Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product. SnapChat

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

The law in this area varies a bit from state to state, but cases all stem from the same three theories: negligence, strict liability, and breach of warrantee. The first two could come into play in Mr. Maynard’s case against Snapchat.

Negligence

Negligence is one of the most common civil causes of action.  While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty– That the accused had a duty.  You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty– The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact- But-for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause- A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages- The accuser has suffered some loss as a result of the accused’s negligent act.

In a products liability context, a duty to exercise ordinary care in providing safe, non-defective products to the public applies to everybody in the chain of distribution for a product—from the designer to the business selling the product. In this case, Snapchat is all of the above.

Where a business designs a product that is not safe when used as intended, they have breached their duty of care. Also, where a product does not include sufficient warnings, the duty of care is breached.

There have been numerous reported incidents of people snapchatting as they speed. A Brazilian woman snapchatted a picture of herself going 110 MPH only to snapchat pictures of her car wreck moments later. Draymond Green of the Golden State Warriors made headlines when he snapped himself driving 118 MPH.  There was even a petition, prior to Mr. Maynard’s accident, asking Snapchat to remove the speed filter.

This being said, Snapchat has taken some steps to try and make the speed filter safer. Snapchat has released a statement that they actively discourage “snapping and driving.”  The app itself includes a very visible warning when the speed filter is used that reads “Do NOT snap and drive.” Their terms of service include a section stating “do not use our Services in a way that could distract you from obeying traffic or safety laws.”

Warning Defect

Snapchat’s many warnings not to drive and snap seem like sufficient warning to avoid liability for deficient warning.  However, Snapchat’s speed filter is arguable unsafe when used as intended—recording yourself moving at a certain speed. If you introduce a product that records how fast people are going, people will record themselves going fast—a danger regardless of speed and mode of transportation.

It seems unlikely the speed filter was made to record people walking slowly and carefully. Snapchat, however, can credibly argue that the intended use of the filter does not involve recording yourself while you move at speed—instead it is for recording speed as a passenger or, if such a thing exists, at safe speeds.

Snapchat’s failure to recall their product after they knew its dangers, a step they still have not taken, could also open them up to negligence liability.

Proving negligent design has always been difficult. Courts are reluctant to question the cost-benefit decisions behind “reasonable” design. It generally comes down to expensive expert testimony. What’s more, a negligently dangerous design must usually be more dangerous than an ordinary customer might contemplate. Snapchat will be able to argue that their design was not the cause of Mr. Maynard’s injury—Ms. McGee’s poor judgment in her use of it was.

Snapchat has several defenses available to it, including asserting that Ms. McGee misused their product. No matter which theory Mr. Maynard ultimately uses, keep your speed filters at the ready, Snapchat will have to move quick to beat this lawsuit.

Jury: GM’s Faulty Ignition Switch was Not Cause of Crash

A New York jury recently reached a verdict in favor of GM Motors in a products liability lawsuit, finding that the defective ignition switch manufactured by the defendant was not to blame for a 2014 accident that injured the plaintiffs.

The plaintiffs alleged that the bad and faulty ignition switch in their 2007 Saturn Sky was the direct result of the accident. GM Motors was the manufacturer of the 2007 Saturn Sky that the plaintiffs were driving at the time of the crash and GM Motors had already recalled the faulty ignition switch on all affected GM vehicles prior to the crash.

After deliberation, the jury came to the conclusion that although the ignition switch in the plaintiff’s vehicle was unreasonably dangerous, the faulty switch was not the cause of the accident. Based on the jury’s decision, the plaintiffs were not able to collect damages to compensate them for the injuries in which they suffered in the 2014 crash.

What Was Required For the Plaintiffs to Recover?

Many would question the jury’s decision, wondering why the plaintiffs could not recover for their injuries even after the jury GM Ignitiondetermined the ignition switch on the plaintiff’s 2007 Saturn Sky involved in the 2014 crash was found to be faulty. In a product liability claim, a plaintiff may receive financial compensation for his or her injuries if the plaintiffs are able to prove that:

In the plaintiffs’ lawsuit against GM, the plaintiffs were successful in proving two of the three above elements. First, the plaintiffs were able to prove that the ignition switch manufactured by GM was defective since the product was already recalled and it was determined that the switch was made unreasonably dangerous. Second, the plaintiffs did suffer an injury from the 2014 accident.

However, the plaintiffs failed to prove that their injuries were a direct result of the faulty ignition switch. In order for the plaintiff to be able to recover damages in the product liability claim brought against GM Motors, the plaintiffs were required to show that the faulty ignition switch directly caused the accident. The jury in this case determined that slippery roadways caused the crash and it had nothing to do with the car’s ignition switch.

What Does the Jury’s Decision Mean for Plaintiffs and For GM?

In this case, since the plaintiff’s were unable to prove that the faulty ignition switch was the cause of their injuries, no damages would be awarded to the plaintiffs. For GM, they would not need to compensate the plaintiff’s any money damages in this case. However, GM needs to fix the problem quickly to avoid any future accidents and injuries that could be caused by the defective ignition switch.



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