Abbott Law Blog

The Utah Court of Appeals ruled today that people who help others move are civilly liable for personal injury when they negligently secure the load and someone else is hurt as a result.  On March 29, 2002, Dan McNeil helped someone move.  To that end, he helped load a truck with several pieces of furniture, including a chair.  He participated in tying down the load but was not involved in driving the truck to the new home.  En route, the chair fell out of the truck, injuring Jennifer Ottens in a subsequent automobile accident.

McNeil defended his lawsuit by claiming that only the driver of the truck was negligent. He argued that the Utah Traffic Code makes it a criminal offense for any driver to operate a vehicle with an unsecured load.  Therefore, the driver was liable, but not those that helped load the truck.

The Court of Appeals disagreed.  It held today that both the driver and all persons who help load and secure a truck are liable if the truck was negligently loaded and a third person is injured because of the negligent loading.  The Court of Appeals remanded the case for a new trial.

We celebrated the Fourth of July holiday this weekend.  Inevitably, we hear about trial by jury.  Over the fourth of July holiday, we hear how much everyone loves it, reveres it and wants to preserve it.

So how is trial by jury doing?  Unfortunately, the answer to that is, not so great.

Porter Rockwell was born in New York in 1813 or 1815 and died in Salt Lake City in 1878.  He was a renowned frontiersman.  He was both praised and chided as a lawman in the Utah Territory from about 1850 till the time of his death.

Before coming to Utah, Rockwell lived in Missouri.  In 1842, someone attempted to assassinate Lilburn Boggs.  Boggs had been a controversial governor of Missouri and was running for State office at the time of the assassination attempt.  Rockwell was eventually arrested and thrown in jail, awaiting indictment.

Rockwell spent about nine months in a filthy jail under deplorable conditions.  While in jail, he successfully escaped but was quickly recaptured.  Eventually, a grand jury was convened to determine whether there was enough evidence to charge him for the attempted murder of governor Boggs.  The grand jury determined there was not enough evidence and no charges were filed.

Rather than releasing Porter, the prosecutor charged him with escaping from jail.  Rockwell was convicted of escaping from jail (even though he was wrongfully held, it was still a crime to escape).  Realizing that Porter had already spent a significant time in jail for charges that were never filed, the jury sentenced him to an additional five minutes in jail.  The prosecution was not happy.  The court and prosecutor held him for an additional five hours trying to come up with additional charges.  When they couldn’t find any new charges, they released him and he immediately fled to Illinois.

Jury verdicts of this type were not uncommon before the civil war.  England also struggled with this issue.  When the English parliament made writing a bad check a capital offense, juries refused to convict people for writing bad checks and refused to sentence them to death.

Because the prosecutors and courts felt that juries were often too sympathetic or too harsh in meting out punishments, the courts and legislatures abolished that right.  Presently, juries are rarely allowed to determine the sentence following a criminal conviction.   In Utah, juries are only allowed input on the sentence in death penalty cases.  In fact, the courts have taken it one step further.  Not only are juries now prevented from having input regarding an appropriate punishment, the lawyers are forbidden to even mention to the jury that any punishment will be given and how much that punishment might be.

Trial by jury is not nearly as significant a right as it was prior to the civil war.

More recently, trial by jury has been under a new attack.  The United States and Utah constitutions not only guarantee trial by jury in criminal cases but also in civil cases.  Many believe that juries make bad decisions in civil cases.  They are now pressing legislatures to curtail the right to trial by jury in civil cases.

For example, this last session, the Utah legislature passed a “tort reform” measure that limited the amount of general damages that a Utah jury can award in medical malpractice cases.   In other words, even if a jury believes that more money should be paid, the jury is not allowed to make that determination.  The legislature applied the cap across all cases.

I find it ironic that those who bellow the loudest during the Fourth of July holiday about the fabulous gift our founding fathers gave us by including the right to trial by jury, are frequently the same people who support bills in the legislature to further curtail the right to trial by jury.

I personally believe in the right to trial by jury.   Sometimes it is scary to put your fate in the hands of eight or twelve peers.  In my experience as an attorney, having tried numerous cases to a jury, juries almost always come to the right result.  Eight common citizens putting their minds to a task is a powerful tool.  I hope that the members of our legislature live up to their rhetoric and support trial by jury.

The Court of Appeals threw out a wrongful death case today because of a mistake made by the attorney.  This case illustrates the importance of hiring a personal injury that is experienced.

In the case, a teenager was killed in an automobile accident.  Her parents hired an attorney to make a claim.  Because the claim was against the State of Utah, certain procedures needed to be followed.  The attorney followed the correct procedures but followed them too slowly, allowing the statute of limitations to run.

First, on December 11, 2007 the attorney filed a notice of claim with the appropriate governmental entity.  Because the governmental entity ignored the notice, it was automatically denied on February 9, 2008.

Second, on June 10, 2008, the attorney filed a lawsuit against the governmental entity.  That case was dismissed in September 2008.  Because the case was dismissed without prejudice, the parents were allowed to refile.

Third, the attorney refiled the lawsuit on February 12, 2009.

The State argued that the lawsuit was too late.  It had to be filed within one year of February 9, 2008.  Because the lawsuit was filed 3 days late, the case should be thrown out.

The trial court agreed and dismissed the case.

The attorney for the parents did not argue that the time to file the complaint should be extended by three days.  I don’t know all of the details so maybe that argument wouldn’t work.  The argument would go something like this.  Because the original notice of claim was mailed on December 11, 2007, it should not be considered to be delivered until three days later.  Therefore, it would not be automotically denied until three days later, ie. February 12, 2008.  If that were the case, the lawsuit would have been filed within the one year time limit.

In any event, the case is now thrown out and the parents will receive no compensation from the State of Utah for their daughter’s death.

Doctors have an ethical duty to acknowlegde that medical errors occur and to work toward reducing those errors.  The American College of Gynecology (ACOG) published an article in its journal in which the author recommended that obstetricians obtain medical tests in some situations and not others.  He encouraged them to not obtain certain medical tests when it was likely that the results would be “uncomfortably incriminating.”  In other words, if the test will show that the doctor messed up, don’t get the test.

By publishing this suggestion in its journal, ACOG has impliedly endorsed unethical medicine and medical cover-up.  ACOG is encouraging its members to act unethically.

Many doctors believe that the legal system is broken and they should not be subjected to it.  While I don’t agree, I wish we could all agree that doctors should not cheat in order to get out of paying for their mistakes.

The court of appeals published a decision today clarifying the reach of liability in negligence cases.

A Ryder truck was taken to a repair shop to have the brakes worked on.  During the course of working on the brakes, the shop made a mistake that allowed brake fluid to slowly leak.  No one noticed the leak and the Ryder truck left the shop.  As a result of the slow leak, the Emergency Brake began to slowly engage until the truck wouldn’t move.  A tow truck was called.

When the tow truck arrived, the tow truck driver realized that the drive train was under tension.  In order to tow the truck, he had to release the tension.  In doing that, he was killed.

While this is a very unusual, and even a freak, accident, the law does provide a remedy.  Normally, people are only liable for harms that they could foresee.  In this case, the shop owner claimed that leaving a leaky brake line might foreseeably harm someone driving the Ryder truck, or even someone who was hit by the truck, it wasn’t foreseeable that  a tow truck driver could be killed.

The court disagreed. While the exact mechanism of injury might not have been foreseeable, most people understand that a leaky brake line will likely result in injury to someone, even someone coming to rescue a broken down vehicle.  Therefore, the shop is liable.

The Supreme Court gave a second chance today to the heirs of Sharon Stamper (You can read the entire opinion here). Sharon Stamper was killed in a car crash in 2005 and her husband and children filed a wrongful detah lawsuit against the driver of the car in which she was a passenger.  The trial court threw out the case but the Supreme Court reopened it.  Here’s the rest of the story.

In 2005, Sharon Stamper was employed by Gilbert Development Corp.  She was a passenger in a vehicle driven by Rebecca Johnson.  Johnson was employed by Diamond G. Rodeos.  Johnson and Stamper were driving from Toqerville, Utah to Mesquite Nevada.  Enroute, Johnson failed to negotiate a turn.  The car left the roadway and rolled, ending up on its side.  Stamper died as a result of her injuries.

Stamper’s husband and children filed a wrongful death lawsuit against Johnson.  Stamper’s husband and children also collected worker’s compensation benefits against her employer. 

When someone gets hurt on the job, they are entitled to worker’s compensation benefits.  If they are hurt by the negligence of their employer or co-employee, worker’s compensation is all they get.  It is their exclusive remedy.  If the injured worker is hurt by the negligence of a third party, however, they can also collect personal injury benefits from the third party.  Attorneys frequently call this type of case a third party claim.  When the injured person collects personal injury money, the injured worker is forced to pay back worker’s comp the money the injured worker got.

You might wonder why someone would care to collect personal injury benefits if they already collected worker’s comp and they’re just going to be forced to pay worker’s comp back anyway.  The reason is that the injured worker usually gets a lot more money from a personal injury case than from worker’s comp.  Thus, even after paying off worker’s comp, the injured worker usually ends up with money in her pocket.

The question in this case is whether Stamper and Johnson were co-employees.  If they were, Stamper’s family can’t collect any wrongful death benefits from Johnson’s insurance.  If they were not co-employees, Stamper’s family can collect wrongful death money from Johnson’s insurance.

It would seem obvious that they aren’t co-employees because they work for different companies.  There’s more to the story.  Both companies are owned by the same guy, Steve Gilbert.  Mr. Gilbert asked them to go to Mesquite at the same time.

The trial court judge thought they were co-employees and threw the case out on summary judgment.  The Supreme Court didn’t agree.  The Supreme Court reopened the case.  They sent it back to the trial court judge so the trial court could get some additional information.  Specifically, the trial court must determine if the two women were co-employees as defined in the worker’s compensation act.

In Waters v. Powell, the Utah Court of Appeals denied a woman’s claims for injuries she received when she was bit by a dog.    In March 2005, Steven Powell took his dog, named Snoop, to be boarded at a kennel managed by Alexis Waters.  While the dog was being boarded, Waters took Snoop out of his kennel to introduce Snoop to some other dogs.  When it became apparent that the meeting wasn’t going to be friendly, Waters attempted to restrain Snoop and Snoop bit Waters.

In Utah, a dog owner is strictly liable for dog bites.  In other words, the victim of the bite need not prove negligence.  If you get bit, you win.  In this case, however, the Court of Appeals held that because Waters was housing the dog, feeding the dog, caring for the dog, and doing the other things that owners and keepers of dogs normally do, strict liability would not be applied.

The Court of Appeals threw out Water’s case.  For now, Snoop and his owner Steven Powell are out of the dog house.

The Daily Herald reported that Michael Scott Hall, age 19 from American Fork, has been charged with woyeurism. He is accused of hiding a camera in a women’s restroom at his place of work. He used the camera to take pictures of women using the restroom.

Utah criminal laws make such actions a crime. If convicted, Michael Scott Hall could face jail time and fines. Utah law also gives victims of such crimes the right to be compensated with money. Utah has long recognized the civil claim of invasion of privacy. When an individual “intrudes upon the seclusion” of another, that individual may be required by a court to pay money to the victims.

Allstate slapped one more of its insured in the face.  Luckily, the Utah Court of Appeals has put an end to Allstate’s tactics.  Ray and Ellen Cassidy purchased Allstate Insurance in 1966 and had been good customers ever since.  In 2006, a 16 year old driver made a U-Turn in from of Ray and Ellen and caused a car crash.  Ray and Ellen had over $200,000 in medical bills.  Unfortunately, the 16 year old driver had only $50,000 in automobile insurance.

Ray and Ellen had been good customers of Allstate for almost 40 years and thought they could turn to Allstate for help.  Unfortunatley, they were not in good hands.  Allstate told them that they had only $10,000 in underinsured insurance coverage.  Allstate did this despite a Utah law requiring that the underinsured coverage on their particular policy be at least $300,000.

Because Allstate would not budge, Ray and Ellen hired an attorney and sued.  Unfortunately, their attorney made a mistake in the complaint when referring to the Utah Statute.  Instead of referring to the code section as 2(h) their attorney referred to the code section as 2(b).  Their attorney had typed a b instead of an h.

Allstate jumped on that error and was successful in getting the trial judge to throw out the entire case due to that error.  The Court of Appeals said no way and reinstated the case.

Are you in good hands with Allstate?  As long as you pay your premiums and make no claims, Allstate will treat you great.  The second you make a claim, you’re no longer in good hands.  Instead, Allstate puts on the boxing gloves and goes after you with shots below the belt.

The Supreme Court issued an important medical malpractice opinion today. In the case, a woman sued St. Mark’s hospital because she got kidney damage when her blood pressure dropped but the nurse either didn’t notice or didn’t do anything.  One of her claims was that the hospital was negligent because it was understaffed.

St. Mark’s had given an affidavit in which they claimed that they had reviewed all the patient files for patients on the unit that night and since none of those patients needed much care, they were adequately staffed.  The woman asked to see those records to verify the affidavit.  The hospital refused to let her see the records.

The Supreme Court told St. Marks that they needed to take out the names of the patients and then give the records to the woman to review.  This case is important because it will let this plaintiff, and other plaintiffs in the future, verify claims made by hospitals when the hospital says they reviewed other records and came to a conclusion which supports their position.  This decision allows plaintiffs to verify what the hospital claims.