Controversial Court Decisions: O'Brien v. Muskin Corp.

This is one in a series of posts designed to describe controversial, notorious, infamous, and outrageous court decisions. For similar posts, click here.

Case: O'Brien v. Muskin Corp., 94 N.J. 169 (1983).

Facts: O'Brien trespassed at the home of the Henrys and dove into their above ground pool (either from the platform by the pool or from the roof of the adjacent eight-foot high garage) made by Muskin Corp. As O'Brien’s hands hit the vinyl lined pool bottom, they slid apart and he sustained injuries when his head hit the bottom. The water in the pool was filled to a depth of three and one-half feet and a warning decal saying "Do Not Dive" appeared beneath the manufacturer’s logo in letters approximately one-half inch high. O'Brien sued the manufacturer of the pool on the grounds that it was liable for having failed to warn him of the risks of diving into the pool, and that the pool was defectively designed because its bottom had been lined with vinyl.

Trial Court: The trial court determined that O'Brien had failed to prove a design defect in the pool. The jury determined that the pool was defective, but that O'Brien was a trespasser at the time of the accident, thus exculpating the Henrys. Finally, the jury found that O'Brien was guilty of contributory negligence (85% to O'Brien and 15% to Muskin). Thus, under New Jersey's comparative negligence statute, O'Brien was barred from recovery.

Appellate Court: After the Appellate Division ordered a new trial, the New Jersey Supreme Court ruled that held that even though O'Brien could not show that the vinyl lined pool bottom could be designed more safely, he could still prevail if he could convince a jury that the "risk posed by the pool outweighed its utility."  The Court used a multi-factor risk-utility analysis test, which included examining "[t]he feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance."As a result, the Supreme Court affirmed the Appellate Division's order of a new trial. 

Why It's Controversial: Muskin Corp. was held strictly liable for O'Brien's injuries even though he trespassed onto the Henry's property and dove into a shallow pool despite the posted warning.

Controversial Court Decisions: Bigbee v. Pacific Tel. & Tel. Co.

This is one in a series of posts designed to describe controversial, notorious, infamous, and outrageous court decisions. For similar posts, click here.

Case: Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49 (1983).

Facts: Bigbee was was injured when an allgedly intoxicated driver lost control of her car, veered off the street into a parking lot, and crashed into a telephone booth in which the man was standing. The phone booth was about 15 feet from the road, and the door was allegedly "sticky."  Bigbee sued the driver and the companies that served her alcohol. In addition (and this is what this case is about), he also sued the companies responsible for the design, location, installation, and maintenance of the telephone booth. 

Appellate Court: The California Supreme Court ruled that the risk someone might veer off the road and crash into the telephone booth was not unforeseeable as a matter of law. The Court also determined that it was of no consequence that the harm to the plaintiff came about through the negligent or reckless acts of an allegedly intoxicated driver. The Court concluded that "there are no policy considerations which weigh against imposition of liability" against the defendants, and referred specifically to "the probable availability of insurance tor these types of accidents." After the case was remanded, the defendants settled with Bigbee for an undisclosed amount.

Why It's Controversial: The Court's decision that the companies responsible for the design, installation and maintenance of the telephone booth could be held liable endorsed a wide-ranging definition of forseeability: A jury need not find that the defendants could forsee an intoxicated driver crashing into a phone booth located on that particular street, but rather whether a jury could foresee any driver crashing into a man standing in any phone booth similarly situated (the dissent notes that public telephones have long been maintained adjacent to roads for the convenience of the public, despite obvious but remote risks). This broad definition of forseeability is a license for a considerable expansion of liability. For more background and a different perspective on the Bigbee case, see here.

Controversial Court Decisions: Walt Disney World v. Wood

This is one in a series of posts designed to describe controversial, notorious, infamous, and outrageous court decisions. For similar posts, click here.

Case: Walt Disney World v. Wood, 515 So. 2d 198 (Fla. 1987).

Facts: Aloysia Wood was injured in November 1971 at the grand prix attraction at Walt Disney World (Disney), when her fiance (and later husband) Daniel Wood, rammed from the rear the vehicle which she was driving. Aloysia Wood filed suit against Disney, and Disney sought contribution from Daniel Wood. Disney's contribution claim alleged that Daniel, who was not a party in the original suit, was at least partially liable for the injuries to Aloysia.

Trial Court: The jury returned a verdict finding Aloysia Wood 14% at fault, Daniel Wood 85% at fault, and Disney 1% at fault (for more information about apportioning fault via comparative negligence, see here). The jury assessed Wood's damages at $75,000. Because Daniel Wood was judgment proof (basically, financially insolvent), and because of the concept of joint and several liability, the court entered judgment against Disney for 86% of the damages.

Appellate Courts: The Fourth District Court of Appeal and the Florida Supreme Court affirmed the judgment.

Why It's Controversial: Despite a finding from the jury that the Woods were a combined  99% at fault (Aloysia 14% and Daniel 85%), Aloysia Wood received 86% of the damages: Disney's liability (1%), and Daniel's liability (85%, also paid by Disney). Because Disney was partially responsible (if only 1%), joint and several liability provided that Aloysia Wood could recover the entire amount of damages ($75,000), minus her liability (14%, or $10,500), from Disney. The Woods enriched themselves on their own negligence. Approximately 15 states follow the rule that defendants are joint and severally liable, even under a comparative negligence regime.

The Maryland Court of Appeals and judicial restraint

Judicial restraint is a theory that judges should limit their own power, primarily by giving deference to legislatures. Two recent cases from the Maryland Court of Appeals illustrate this theory.

Coleman v. Soccer Association of Columbia (case page): Coleman (a volunteer soccer coach) was retrieving a ball from a soccer goal when he jumped and grabbed the crossbar. The goal subsequently collapsed and injured him. The jury found that the Soccer Association of Columbia was negligent, but that Coleman was also negligent.

Maryland is one of only a few jurisdictions (the others being Alabama, the District of Columbia, North Carolina, and Virginia) that allows the defense of contributory negligence. When a plaintiff is found to have contributed to his own injuries, he cannot recover (even if his contribution was minimal). Because the jury found that Coleman was partially negligent in causing his own injuries, he could recover nothing.

Most states allow a defense of comparative negligence, which reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. In other words, if a plaintiff is found to be 30% responsible for an injury based upon a $100,000 claim, he would recover 70%, or $70,000.

The question before the Maryland Court of Appeals was whether the Court should ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime.

In a 5-2 decision, the Maryland Court of Appeals ruled that the General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. As a result, the Court declined to repudiate the doctrine of contributory negligence and replace it with comparative negligence.

The Court said that:

The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence...For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s long-standing jurisprudence.

Warr v. JMGM Group: The Warrs filed suit against JMGM Group, LLC, which owns the Dogfish Head Alehouse (Dogfish Head), to recover for injuries they and their daughter sustained and for the death of their second daughter in a car accident. The Warrs alleged that the driver of the vehicle that struck the car Mr. Warr was driving had been served alcohol while “clearly intoxicated” at Dogfish Head. Because members of the Dogfish Head’s staff had served him alcohol while he was so compromised, the Warrs alleged, the tavern had breached its duty to them to “not furnish alcohol to intoxicated persons,” which caused their injuries.

The question before the Court of Appeals was whether Maryland should recognize a cause of action against a tavern for harm caused by an intoxicated patron, off premises, in the absence of a special relationship between the tavern and the person harmed or between the tavern and the actor who caused the harm.

In a 4-3 decision declining to find such liability against Dogfish Head, the Court wrote that:

The Legislature...“is in a far better position that this Court to gather the empirical data and to make the fact finding necessary to determine what the public policy should be....”  We agree.

In both cases, the decision rested not on whether proposed change in the law was a good idea, but whether it was appropriate for the Court (instead of the legislature) to change the law. In both cases, the Maryland Court of Appeals deferred to the legislature.

Law in Plain English: Coleman v. Soccer Association of Columbia

James K. Coleman v. Soccer Association of Columbia, et al.

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 9	ECR	Sep 10 2012 Vid.	Jul 9 2013	5-2	Eldridge	ST 2012

Issue - Tort Law - Should this Court ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime?

Plain English Summary: Coleman (a volunteer soccer coach) was retrieving a ball from a soccer goal when he jumped and grabbed the crossbar. The goal subsequently collapsed and injured him. The jury found that the Soccer Association of Columbia was negligent, but that Coleman was also negligent.

Maryland is one of only a few jurisdictions (the others being Alabama, the District of Columbia, North Carolina, and Virginia) that allows the defense of contributory negligence. When a plaintiff is found to have contributed to his own injuries, he cannot recover (even if his contribution was minimal). Because the jury found that Coleman was partially negligent in causing his own injuries, he could recover nothing.

Most states allow a defense of comparative negligence, which reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. In other words, if a plaintiff is found to be 30% responsible for an injury based upon a $100,000 claim, he would recover 70%, or $70,000.

The question before the Maryland Court of Appeals is whether the Court should ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime.

Holding: In a 5-2 decision, the Maryland Court of Appeals ruled that the General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. As a result, the Court declined to repudiate the doctrine of contributory negligence and replace it with comparative negligence.

News Coverage

• The Daily Record (Jul 9 2013)
• Baltimore Sun (Jul 9 2013)

Date	Proceedings and Orders
Apr 20 2012	Writ of Ceriorari granted.
Jun 22 2012	Electronic Case Record
Jul 11 2012	Brief amici curaie of Local Government Insurance Trust, et al. filed.
	Brief amici curaie of American Tort Reform Association, et al. filed.
	Brief amici curaie of Maryland Chamber of Commerce, et al. filed.
Jul 9 2013	Decision.

Maryland top court upholds limit on jury awards for pain and suffering

From the Baltimore Sun:

Maryland's highest court upheld the state's limit on jury awards for pain and suffering in personal injury lawsuits Friday, allowing businesses, insurers and others who are sued to breathe a sigh of relief.

...

The 6-1 decision by the Court of Appeals was made in a case that slashed a jury award from $4 million to about $1 million to the Davidsonville parents of a 5-year-old boy who drowned in 2006 in a Crofton swimming pool.

DRD Pool Service, Inc. v. Thomas Freed