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Waivers of Liability for "Gross Negligence":

The California Supreme Court issued an interesting decision this week on the enforceability of liability waivers in standard form contracts. At issue in City of Santa Barbara v. Superior Court, -- Cal.Rptr.3d -- (2007 WL 2027806), was a release from liability for "any negligent act" signed by a parent as part of an enrollment contract that allowed her daughter to participate in a camp for disabled children run by the city of Santa Barbara. The court ruled, 6-1, that the contract was enforceable as to allegations of ordinary negligence, but not gross negligence. This wasn't surprising; it is standard hornbook law that such waivers in the context of recreational activities are enforceable as to ordinary negligence but not as to gross negligence, although a few jurisdictions won't even enforce waivers for ordinary negligence. But it is interesting that, according to the court, it had never actually addressed this issue (although for decades Witkin on California Law has claimed that the majority rule applies in the Golden State).

One interesting issue is the logical coherence of the doctrine in this area. Why enforce liability releases even for ordinary negligence? It might make sense to enforce releases of narrow waivers of liability concerning specific conduct, on the ground that the consumer might be able to avoid some harms more cheaply than the seller can prevent it, and the parties should be able to contract for this efficient state of affairs: for example, a ski resort operator might state that it does not check the slopes daily for rocks, and the customer is precluded from suing if he crashes into one. But when the customer waives liability for all negligence, he usually will have no idea what precautions the seller otherwise would be taking but is declining to take as a result of the waiver. In almost every case, it will be cheaper for the seller to exercise ordinary care than for a consumer to compensate by taking extraordinary precaution if that consumer has no idea of what precaution to take.

One might argue for enforcing general releases on strict freedom-of-contract grounds: i.e., that the buyer and seller should be allowed to enter into any agreement that they find mutually agreeable. This seems problematic to me on the ground that bounded rationality limits the number of attributes buyers consider when they make purchasing decisions, and that the terms in the "fine print" will rarely be factored into the decision making process -- a topic I've written about extensively in law journal articles. Regardless, however, the freedom-of-contract argument doesn't provide a justification for enforcing releases from ordinary negligence but not from gross negligence.

One logical reason to distinguish between waivers of ordinary negligence and gross negligence liability is to counter the hindsight bias likely to affect juries. Perhaps we think that, after an accident occurs, juries will be likely to judge the seller's reasonable actions to have been unreasonable and, thus, negligent. Viewed this way, the doctrinal distinction between levels of negligence merely allows the seller with a good lawyer to ensure it will not be held liable for reasonable activity that led to an unfortunate outcome.

Whatever the justification, for the distinction between levels of negligence to have any practical value, it is important for there to be real difference in judicial treatment of complaints that allege ordinary negligence and complaints that allege gross negligence. Otherwise, an injured consumer who signed the waiver can get to a jury merely by using the term "gross negligence" in his complaint. It is true that defendants will get the "gross negligence" jury instruction rather than the "negligence" instruction, so the jury will be told to use a higher standard in judging liability, but this alone is cold comfort to a defendant if the hindsight-biased jury views the defendant as a wrongdoer and is free to award compensation to the injured plaintiff or his grieving family. For the distinction between ordinary and gross negligence to really have bite, courts must be willing to grant summary judgment when the facts fail to demonstrate "want of even scant care" or "an extreme departure from the ordinary standard of conduct" -- the definition of gross negligence according to the California courts. Here, the California courts really blew the decision. The facts indicated, at most, quite ordinary negligence, yet the Court of Appeal refused to grant summary judgment for the City, and the Supreme Court didn't review that part of the decision below, considering only the question of whether liability for gross negligence can be disclaimed.

Here are the pertinent facts: The plaintiff's 14 year-old daughter, Katie, suffered from seizures, yet the plaintiff affirmatively requested that Katie be allowed to swim in the camp's pool and dive off the diving board, and she declined an option to have Katie wear a flotation jacket while in the pool on the ground that she judged Katie to be a strong swimmer. Notwithstanding the parent's lack of concern, the City assigned a college-student employee who had served as a special-education aide and received special instruction on handling seizures to personally supervise Katie, and only Katie, in the pool. (In addition, the City had five lifeguards supervising all the children in the pool.) Katie suffered a mild seizure lasting only a few seconds one afternoon. The aide kept Katie out of the pool under observation for 45 minutes, and then determined that Katie was fine. She then allowed Katie to return the pool, but she required Katie to rest for several minutes after diving into the pool and swimming to side. The aide sat at the edge of the pool watching Katie at all times. On Katie's second trip into the pool, the aide briefly took her eye off of Katie. By the time she and the lifeguards could locate Katie, Katie had drowned.

By taking her eyes off of her charge for even a few seconds, the aide was arguably negligent, but if this constitutes "gross negligence" the distinction between the categories is meaningless. Nevertheless, the Court of Appeal held that the facts alleged were sufficient for a jury to find gross negligence, and thus it refused to grant summary judgment.

Jon Rowe (mail) (www):
Re the ski slope. Say there is a liability waiver, with ordinary rocks, icy patches and whatnot, the skier has an accident, she is barred from a lawsuit. But if she is on a negligently maintained gondola and it falls when she is riding the lift, I am assuming she'd be able to sue the slope for gross negligence regardless of whatever waivers she might have agreed to.

If we didn't distinguish between ordinary and gross negligence, she wouldn't be able to sue after breaking her back when the gondola cables snapped? Or, she'd have to sue in products liability case against the manufacterer of the machine?

I know what you are saying about simply alleging "gross negligence." I use some of these examples in the business law class I teach. I had a student who was barred from suing on the basis of a lift-ticket fine print liability waiver in Colorado for a skiing incident where a snowboarder hit her while she was skiing. The snowboarder (obviously) took off. And she thought it was neglience that the slope allowed skiiers and snowboarders to ride the slopes together.

I told her she would have been able to sue if the slope committed an act of gross negligence and she claimed she thought it was gross neglience on the part of the slopes that skiiers and snowboarders were allowed to ride the slopes together.
7.19.2007 10:30pm
wm13:
Well, the facts of this case supply a reason on their face for enforcing waivers of negligence (and maybe gross negligence, for that matter). Many people who have children with some sort of disability want the child to be able to participate in various sorts of "normal" activity. But any well-counseled activity sponsor hesitates to allow a child with special needs to participate because of liability concerns. Enforcing waivers permits the fulfillment of the parents' ex ante wish to mainstream their children.

Of course, in this case at least, the California court isn't really enforcing the liability waiver. Certainly no well-counseled athletic program will allow a child with seizures into a swimming pool again. (At which point, the California courts will discover a state constitutional right for people with seizures to participate in swimming programs, but that is another story.)
7.19.2007 10:52pm
Reg (mail):
They really blew that one.

"By taking her eyes off of her charge for even a few seconds, the aide was arguably negligent"

That's an argument I'd never buy as a juror.
7.19.2007 10:57pm
Just Dropping By (mail):
I had a student who was barred from suing on the basis of a lift-ticket fine print liability waiver in Colorado for a skiing incident where a snowboarder hit her while she was skiing.

As someone who practices in Colorado I'll offer the observation that just about anything short of a ski resort official affirmatively ordering the employees to murder a patron is shielded.

From the Colorado Ski Safety Act of 1979:

Colo. Rev. Stat. § 33-44-103:

(3.5) "Inherent dangers and risks of skiing" means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term "inherent dangers and risks of skiing" does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

Colo. Rev. Stat. § 33-44-109. Duties of skiers-penalties:

(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier's acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.
7.19.2007 10:58pm
Peter Young:
By taking her eyes off of her charge for even a few seconds, the aide was arguably negligent"

That's an argument I'd never buy as a juror.


Why on earth not?

The aide had a single job: to keep an eye on a girl subject to seizures while she was in the pool to make sure she didn't drown. The girl drowned. The most likely reason is negligence. I would say whether the aide was negligent turns on why her attention was diverted. Was it because someone hit her and knocked her unconscious? Or was it because she turned to watch an attractive young man? Or did she just start daydreaming?
7.19.2007 11:18pm
TruePath (mail) (www):
Interesting you should mention hindsight/foresight effects. I just ran across this interesting article on JSTOR (subscription/university access needed) where they did a study on the extent of this bias. At least in this instance they found that people were over twice as likely (67% vs. 33%) to judge that something was unacceptably risky.

On an earlier comment I was arguing for the ways that science could inform the legal process and I think this is a great example. By articulating the type of psychological biases that are likely to sway juries and their extent we can hopefully change juror instructions and standards of evidence to better minimize their effects. At the very least we can help the judges do more than merely guess at the prejudicial value of some piece of testimony.
7.19.2007 11:27pm
Dave N (mail):
Maybe it is because I don't practice personal injury law--but I am curious as to how the camp could be grossly negligent by hiring an aide in the first instance as a reaction to the parents lack of due care (no flotation requirement, allowed to dive, etc.)?

Did the camp assume a greater duty by hiring someone it was not required to hire to perform a job not mandated by law?

I truly am interested. This was a tragedy--but that doesn't make it the camp's fault.
7.19.2007 11:28pm
A Northwestern Law Student:
Why on earth not?
I'm guessing he thinks, as I do, that having a dedicated, seizure-trained lifeguard appointed to watch over one single girl out of the whole pool is way above what's required for ordinary care, and thus that the guard's absence -- for moments or completely -- is not a breach of duty, given the presence of the five other lifeguards and the other facts of the case. I'd agree with Prof. Korobkin that the guard's absence was "arguably negligent," but I'd also agree with the commenter that that argument would lose with me.
7.19.2007 11:30pm
Graham Simms:
Maybe it was negligent to even allow her back in the pool, and then to not appropriately supervise the girl after putting her in that precarious position was gross negligence.
7.19.2007 11:39pm
Houston Lawyer:
Maybe her parents were grossly negligent in insisting that she be allowed to swim.

Liability waivers have the benefit of informing people that they are responsible for themselves and that they can't rely on third parties to look out for them. If we were to do away with vicarious liability this would be less of an issue since the person who is actually negligent is seldom worth suing.
7.19.2007 11:48pm
John Herbison (mail):
Does California follow the comparative negligence doctrine? If so, a determination of the mother's share of fault may present a jury question.
7.19.2007 11:50pm
Reg (mail):

That's an argument I'd never buy as a juror.

Why on earth not?

The aide had a single job: to keep an eye on a girl subject to seizures while she was in the pool to make sure she didn't drown. The girl drowned.


The fact that her job was to watch the girl, and that the girl drowned, does not say much about whether her conduct was reasonable. Assuming the fact is true that "The aide sat at the edge of the pool watching Katie at all times. On Katie's second trip into the pool, the aide briefly took her eye off of Katie." then the question is whether it was reasonable for a person to have taken her eye off of Katie breifly.

Do you have little kids? Do you take them to the pool? Are you able to sit and watch them play for more than a few minutes without briefly taking your eye off of them at any time? I don't think that the parents of every kid who is hurt while the parents are around are negligent. To say briefly taking your eye off the kid is negligence is a great example of using 20/20 hindsight to judge the reasonableness.

Also, what Northwestern Law Student said. To have a dedicated lifeguard assigned to a single swimmer seems especially careful.
7.20.2007 12:19am
Mark Field (mail):

Does California follow the comparative negligence doctrine?


Yes.
7.20.2007 12:43am
neurodoc:
How "brief" was the "briefly" in this case? If the plaintiff could show that the lifeguard absented herself for 10 minutes to go the bathroom without pulling the girl from the water for that period of time or handing the responsibility off to another lifeguard, I could see a juror entertaining "gross negligence." Not absent similarly egregious facts to comport with the legal standard, though. And the special measure of assigning one lifeguard to watch this one child ought not make the defendant more vulnerable, as it might, if a jury were allowed to decide liability.
7.20.2007 12:58am
Philistine (mail):
Here is the opinion

I've just skimmed it--but I couldn't tell whether the gross negligence alleged was only the taking the eyes off her for 15 seconds--or whether it was the also fact that none of the lifeguards were able to see her on the bottom for five minutes, after being alerted by the special guard --and it took them that long to clear the pool -- containing 300 kids (or something else).
7.20.2007 12:59am
Elliot123 (mail):
Would there have been negligence had the camp not assigned a personal aide to the child?
7.20.2007 1:12am
Thomas_Holsinger:
This is my day job. I've recommended summary judgment based on a waiver, had the judge agree and the appellate court upheld the ruling granting summary judgment.

The moving burden on this motion was approximately equivalent to that required for a defense motion for judgment notwithstanding a jury verdict for plaintiffs on the same evidence. Only if there was no possible way for a jury to find liability for gross negligence could the motion be granted.

And one of the critical factors for gross negligence is disregard of a known hazard. Here the decedent had ALREADY had a seizure that day. She should not have been allowed back into the pool. I'd have made the same call had this motion crossed my desk. The special ed aide here made a judgment which should have been made only by a nurse or other health care practitioner.

The 14 year-old son of a clerk in my court just had his second concussion in six months playing football - this time at a football camp. The treating physician told his mother that her son should no longer play football, or any contact sport,, for at least a year. It would have been medical malpractice had he not given that advice. My own doctor gave my father and I the same advice when I suffered my second concussion as a high school wrestler.
7.20.2007 1:29am
Bruce Hayden (mail) (www):
I should add that the ski areas in Colorado have you sign a fairly aggressive release in order to get a season pass, or probably to even get a multiple day pass. A couple of seasons ago, a woman was injured on the bridge at Lion's Head in Vail. A grooming machine had hit the side of the bridge earlier and that had resulted in a piece of metal or something sticking out. The woman was injured on it and sued. They defended with both the Ski Area Safety Act (above) and her signed release. They then counterclaimed for attorneys' fees, provided for in that release. Vail ultimately allowed her to drop her case against them.

Colorado ski areas have probably the best statutory protection of any state in the Union, because it is big business here. And, yes, no matter how hard a ski area tries, there are always injuries - a lot of them every year. I work for the ski patrol at one of the major resorts, and even though I don't do first aid, I see a lot of injuries in my job. I can remember one hour or two stretch last winter when we had three life threatening injuries going on at the same time, and only two helicopters available. So, the heart attack, for which a helicopter was first called, had to go out by cat, while the guy who hit the tree was airlifted to the nearest Level 1 trauma center (where he died), and the guy who landed on his head in the terrain park went by air to Frisco. Or another day, when I worked four injuries in one run. Its just the numbers - with almost a million skier days last year, if it can happen, it will.

The day that I worked four accidents in one run, it had snowed a bit earlier, and the snow hadn't been groomed yet, but was tracked up. That is fine for advanced skiers, but this was a beginner slope. So, these four twisted ankles, etc. in the (to them) tricky snow. Of course, if it had been Vail, the groomers would have been out in the middle of the day, and the snow wouldn't have been tricky. But the other areas only staff grooming two shifts a day, and besides, it is far easier to make liability stick if someone hits a grooming machine in the middle of the day in a blizzard. But was the area negligent, knowing all this? Realistically, at just this one area, there are probably hundreds of cases a year that could claim mere negligence. Luckily, the act above immunizes them.

In defense of the ski areas here in Colorado, they do try hard to prevent accidents. Very hard. But it is a running battle, from weeks before the season starts until the week after when all the ropes are taken down, etc. Conditions change very quickly, and they have hundreds, if not thousands, of acres to keep checking for emerging dangers.
7.20.2007 1:43am
Bruce Hayden (mail) (www):
This whole thing bothers me a bit. Back when I was in high school almost 40 years ago, we (or our parents) were much more willing to take our chances. Yes, in retrospect, they probably shouldn't have let the kid back in the pool. Or the football player play again. So, now, kids who have had seizures aren't going to be allowed near a pool, and a lot of kids aren't going to be able to play football (or, worse, according to a sports pediatrician whom I ski with, play soccer, since he sees more concussions there than with American football).

I also have a problem with the mother (despite her loss). She pushed to have her kid allowed to swim, knowing well the dangers, and then sued when the kid died as a result. I think that she should have taken personal responsibility for her own actions, which it doesn't look like she did.
7.20.2007 1:53am
Thomas_Holsinger:
Bruce,

We're not allowed to consider contributory negligence on summary judgment, which is always all or nothing. Contributory negligence presents a triable dispute of material fact for a jury to consider.

Many posters here do not understand how summary judgment differs from trial.
7.20.2007 2:08am
Dave N (mail):
Thomas Holsinger,

I understand the distinction--and upon reflection, I defer to your expertise. On a motion for summary judgment, where all facts are viewed in the light most favorable to the non-moving party, this could be an issue of gross negligence.

Not so sure the plaintiffs will win at trial, though.

Thank you for your comments.
7.20.2007 2:15am
Dan Simon (mail) (www):
This is my day job. I've recommended summary judgment based on a waiver, had the judge agree and the appellate court upheld the ruling granting summary judgment.

I'm curious--have you ever managed that in a case involving the death of a fourteen-year-old disabled girl?

As a complete outsider, it's always seemed to me that American tort law long ago abandoned any pretense of being concerned with actual torts, and has instead focused primarily on providing a rather perversely arbitrary and inefficient form of universal life, health and disability insurance. But as an insider, perhaps you can disabuse me of this impression.
7.20.2007 2:19am
neurodoc:
<b>Thomas Holsinger</b>, unless you know more about the medical facts of this case than is there in the opinion, I don't think it can be said to a "reasonable degree of medical certainty" (or whatever magic phrase is to be invoked), "She should not have been allowed back into the pool." Whether she should have been allowed in the pool in the first place, or if allowed in, then allowed back in, would depend on the nature of her "seizure" disorder and the earlier event she experienced that same day. According to the court's summary, which may or may not reliably state the background medical facts, the girl "suffered a mild seizure that lasted a few seconds." No description of the event was given. But "convulsive" epileptic events are not over in "a few seconds" without any residua. ("Petit mal" ones are that brief, though they generally occur in clusters and aren't more common in children with "cerebral palsy," if indeed that accurately described the underlying condition. And there a variety of still other partial and generalized seizure types which she could have.)

Not helpful to analogize to "concussion" scenario either, since the considerations are different. (I'm a bit surprised to hear that you suffered two concussions as a high school wrestler, since a rather unusual type of injury for that sport.)
7.20.2007 2:24am
neurodoc:
<b>Bruce Hayden</b>: "<i>...or, worse, according to a sports pediatrician whom I ski with, play soccer, since he sees more concussions there than with American football</i>"
I don't know about the relative frequency of concussions in soccer vs "American" football (incidence per hour played), but the more "heading" the ball that soccer players do, the more concussions I would expect. I think there is a growing recognition that using one's head to strike the ball rather than one's foot is not an entirely safe undertaking.
7.20.2007 2:35am
Reg (mail):

Thomas_Holsinger: This is my day job.


You aren't the only law clerk around here. But, I don't know how you can say you agree that a reasonable jury could conclude there was a “want of even scant care” or “an extreme departure from the ordinary standard of conduct” under those facts.

You say that because "the decedent had ALREADY had a seizure that day," letting her in the pool was gross negligence. Should a reasonable lifeguard know that when a person has a seizure they are likely to have another one soon after? Is that even true? If it's not, then she can't have been negligent for sending her back in the pool.

You also say that "the special ed aide here made a judgment which should have been made only by a nurse or other health care practitioner." Could a reasonable jury say there was not even scant care when the lifeguard was not able to identify the decision to send her back in the pool after a mild seizure and 45 minute break as requiring medical expertise? I don't think so.
7.20.2007 3:03am
neurodoc:
Suppose the family was informed in advance that a "special ed aide" would be the staff person attending the child and the family was satisfied that this was a sufficient safety precaution. Would that amount to an "assumption of the risk" by the family and cut off any argument by them later that a special ed aide was insufficiently qualified for that assignment and "a nurse or other health care practitioner" (licensed practical nurse?) should have been involved?
7.20.2007 3:30am
David M. Nieporent (www):
Why on earth not?

The aide had a single job: to keep an eye on a girl subject to seizures while she was in the pool to make sure she didn't drown. The girl drowned. The most likely reason is negligence. I would say whether the aide was negligent turns on why her attention was diverted.
I would say that whether the aide was negligent -- in a legal sense, not a lay sense -- would depend on whether the aide had a legal duty to watch the girl every minute. The fact that the camp voluntarily took extra precautions should not create such a legal duty.

The aide may have not done her job, but that's an issue between employer and employee, not between ambulance and chaser.
7.20.2007 10:51am
neurodoc:
The aide may have not done her job, but that's an issue between employer and employee, not between ambulance and chaser.

Gee, I was with you until that last paragraph. You think that even if the legal question was one of "ordinary" rather than "gross" negligence, with the given facts, no ethical attorney should have filed this lawsuit, it is "ambulance chasing" stuff?

If the aide did not satisfactorily perform her job, why would it only be "an issue between employer and employee"? Surely, you wouldn't maintain that if it were established that the aide had elected to leave the pool area to take a nap would you?
7.20.2007 12:09pm
Bpbatista (mail):
Here is why such waivers should be allowed and enforced: Without that waiver camps for disabled children might not exist at all.

I would be willing to wager that the camp operator is seriously considering whether to continue operating the camp in light of this ruling.
7.20.2007 12:21pm
iNonymous:
Bpbatista;

That was brought up by the dissent. The lead opinion (or possibly a concurrence) cited some stats from other states which had the same ordinary care/gross negligence rule. Those states showed that their ratio of camps for disabled children per disabled child was about the same. Of course, the court admits that this wasn't a scientific survey by any means. In my opinion, the more likely result isn't that the camps will shut down left and right (although one or two may), but that prices will go up.

That's assuming that anyone expected these waivers to have any effect anyway. As stated in the OP, it's practically black letter law that these kinds of waivers cannot waive gross negligence, and it seems like more of a formality for the Cal. Supreme Court has now made it official.
7.20.2007 1:21pm
Steph (mail):
This is a fine example of why the doctrine on comparitive negligence is wrong and the doctrine of contributory negligence needs to be revieved. There is no such thing as a percentage of negligence.
7.20.2007 1:24pm
Tony Tutins (mail):
If a fifteen second glance away from a kid whose parent has expressly authorized to swim and dive could be gross negligence as a matter of law, then there will be no summer day camps for the handicapped. I realize the Cal Supreme Court was not asked to address this issue.
7.20.2007 2:29pm
Thomas_Holsinger:
neurodoc,

My point is that there was a factual dispute for the jury was to whether the defendant should have had a hard and fast rule that ANY epileptic episode meant keeping the decedent out of the pool for the rest of the day, as opposed to letting a college student special education aide with no medical expertise make a medical judgment.

That few of us, me included, would find liability at trial is irrelevant. Summary judgment is not trial, and courts bend over backwards to deny summary judgment.
7.20.2007 2:43pm
c.f.w. (mail):
Looks like the Cal Supremes are opening the doors to more litigation - things must be slow in the trial courts. Gross negligence seems easy to plead - just add the word "gross" to the complaint and ask for a trial.

I note the CSC also expanded, on or about the same day, the possible suits for malicious prosecution.

Now one can still have a favorable termination and ability to sue the losing plaintiff's lawyers for malicious prosecution by a) having the plaintiff fire his/her/its old counsel and b) settling with plaintiff for the amount of the judgment (for costs, at least, and maybe also fees - no need to collect money from broke plaintiff, it seems).

This will no doubt cause CA lawyers malpractice insurance carriers to sit up and take notice (and re-write policies).

A losing CA lawyer working for an impecunious plaintiff will need to routinely "call the carrier" to deal with the follow-on mal pros case.

This reawakens the old personal injury / insurance bad faith litigation from the 1980's - settle post-judgment with unsuccessful defendant, then take a rights assignment and sue the carrier for bad faith. No doubt enterprising IT folks will now track all CA trials and winnow out those civil cases where a plaintiff loses and will be charged costs of $50,000 or more. Then, mal pros lawyers will send out notes to the unsuccessful plaintiffs (and/or successful defendants) about getting hired to a) make the costs issue go away and b) put the losing plaintiff's lawyer in court defending the probable cause (or lack thereof) of the losing suit. If this is Siebel's effort at private tort reform, meant to dry up trial court business, it is seriously misguided, I suspect.

CALIFORNIA SUPREME COURT SIDES WITH SIEBEL IN MALICIOUS PROSECUTION RULING

Decision Will Have Sweeping Ramifications on Frivolous Lawsuit Actions

Greines, Martin, Stein &Richland LLP advises that the California Supreme Court yesterday issued a groundbreaking ruling that clearly defines "favorable termination" in malicious prosecution cases, allowing individuals to settle claims during the appeals process without waiving their right to sue "unscrupulous" lawyers. The opinion of the court paves the way for Thomas Siebel, former CEO of Siebel Systems, to move forward with his case against the lawyers who represented a disgruntled ex-employee of his former company for claims that were deemed baseless at trial.

"This is a private effort at tort reform," said Siebel. "This ruling will make lawyers think twice before seeking to extort settlements from vulnerable targets by filing lawsuits they know are frivolous. Victims of frivolous litigation will now find it easier to have their day in court, bypassing what could potentially be years in the costly appeals process."

Siebel was represented at the Court by Robin Meadow, a partner in the appellate firm Greines, Martin, Stein &Richland LLP.

"This is a groundbreaking decision because Mr. Seibel was able to settle with the plaintiff who sued him, while retaining his right to pursue the attorneys who he believes were the ones really behind the lawsuit,” Meadow said. “He avoided the time and expense of perhaps several years of appellate litigation. The Supreme Court’s ruling benefits both plaintiffs who are ready to give up claims they do not believe in and the court system whose resources can be better spent elsewhere.”

The defendants in Siebel's malicious prosecution case had tried to have the case thrown out of court, stating that Siebel had waived his right to such action by reaching a settlement with the plaintiff in the original case.

The high court disagreed, stating in their opinion, "Adopting defendant's position would foreclose a malicious prosecution action whenever a case is resolved by agreement. Such a conclusion would run counter to the policy favoring negotiated dispositions. A blanket rule could also bar legitimate malicious prosecution actions, allowing unscrupulous parties and/or their attorneys to hide behind its shield."

Siebel's victory means that individuals, small businesses, and corporations will be able to defend themselves against malicious prosecution without spending years caught up in the appeals process, effectively saving themselves time and costly legal fees after already being exonerated from frivolous claims.

In July 2000, Siebel filed a malicious prosecution claim against lawyers Carol Middlestadt, now a sitting judge in San Mateo County, and Richard Buell. Siebel asserts that the attorneys misused the legal process, in violation of the law and in violation of legal ethics, to pursue claims that they both knew to be false and participated in fabricating in the hope of extracting a large financial settlement from Siebel and the company he founded. However, recovering damages from Middlestadt and Buell is not a motive in this case, Siebel said. “What I would like to see is a public apology for their actions, compensation to the judicial system for the waste of its resources, and a significant contribution to charity.”

The Court’s decision allows Siebel's malicious prosecution case to move forward, and a prompt trial date will be sought.
7.20.2007 5:40pm
Anon. E. Mouse (mail):
The original post + ensuing discussion is why I want to be able to waive my right to sue for gross negligence and perhaps even intentional tort liability.

I like to ride my motorcycle on the racetrack. I ride with a good, reliable club (www.nesba.com). Corner workers and ambulances are posted, with a medevac a phone call away. NESBA enforces strict segregation between skill levels, with only one class on the track at a time. They have special rules to keep it safe in the Beginner and Intermediate classes. Control riders keep the excited guys and gals in line (banishment for repeat transgressors), and control advancement through the classes. Unless you hold a pro racing license, you are a Beginner on day 1. Very few riders make it to the Advanced class, which is run much like open race practice.

Moreover, NESBA won't run on some tracks which are deemed unsafe. Other clubs run at those tracks, organized races (regional championship-type series) are held there. But not NESBA events.

Compare this to the instant discussion: intelligent people here are arguing whether dedicating an entire lifeguard to the poor seizure-prone girl could be anything from reasonable care to grossly negligent. We’re all over the map! Yes, I know the procedural posture, that's part of the problem -- that this lifeguard case even gets to a jury...and we can’t even decide amongst ourselves. What kind of standard is this?

Gross negligence is a meaningless term to a jury. Jury instructions, schmury instructions. If this crowd can't narrow it down (much less decide), then a jury is nothing more than a magic 8-ball on the standard of care issue.

I don't want some poor guy/gal, who screwed up on the racetrack and ended up in a wheelchair, suing NESBA or the track owner. Period. That would be the end of my fun. If I'm the poor paraplegic, so be it, my problem. I chose to hop onto a 370lb, 150HP motorcycle and I chose to turn the "fast knob" to high.

There's no way a jury can coherently evaluate what is reasonable care, negligence, or gross negligence in running a track day for motorcycles. Besides, you parade around a young, paraplegic guy or gal in front of his/her hometown jury, D has lost. Just send money, it'll be easier and cheaper.

Most importantly, I don't want NESBA or the track owner to have to even consider the risk of being sued. If they were not negligent, the magic 8-ball jury might still come up "grossly negligent." Even if they win, they've still had to shell out big bucks in fees, which is either passed on to the riders (reducing attendance and thus number of days per year available) or makes the whole enterprise uneconomical (or somewhere in b/w). How is this a good thing?

Nope, I want to be able to contract away all my tort rights and rely on my own good judgment of what is right and wrong on a racetrack. And I don’t want you out there with me unless you do the same.

Sure, for stuff like bowling alleys, the user might not perceive enough risk to make it worth his time to pay attention. Maybe bowling alleys will unscrupulously subject folks to risk they don't know they're taking.

But refusing to allow us to K out of tort for activities like motorcycle racing or track days is not very efficient--it can completely eliminate this sort of activity. Rock climbing, skiing, horseback riding, mountain biking, scuba...these are all activities that will always have some bad outcomes.

And kids with neurological problems, no matter how slight, will never enter a swimming pool again. You had an epileptic fit 2 years ago? You, out of the pool. I don’t care if you and your parents (with advice of the family doctor) are willing to risk it. Out of the pool now. I’m not being subjected to an expensive lawsuit (even if I win) and a huge judgment on top of that if I lose. You simply aren’t worth the risk to me. Go away.
7.20.2007 6:00pm
Antinome (www):

"Here, the California courts really blew the decision. The facts indicated, at most, quite ordinary negligence, yet the Court of Appeal refused to grant summary judgment for the City, and the Supreme Court didn't review that part of the decision below, considering only the question of whether liability for gross negligence can be disclaimed."


Am I missing something? If I read the opinion correctly (and I admit to skimming swaths of it) the City only moved for summary judgment on the legal effect of release. There is no mention, at least that I could find, that they also moved for judgment on the issue of whether there was any evidence of gross negligence. Can the Courts in California grant a judgment on an issue that was not raised in the summary judgment motion? (that this was an appealable ruling at all was a bit surprising to me)

My guess is the case is remanded and they may in fact move for summary judgment on no evidence of gross negligence. Personally I think they will lose such a motion under the California definition of Gross negligence (which is a lot broader than my state of Texas' definition) California's definition includes an "extreme departure of care." Reading over the facts as stated (and completely ignoring the fact that plaintiffs may in fact question this rendition of facts) the best argument to me for gross seems to be the failure to clear the pool for 2-5 minutes while they looked for her. I don't know but my guess is there will be a water safety expert who will testify that proper procedure when some one is lost in a large pool such as this is to clear the pool immediately and that the delay was the difference between life and death. This may or may not be true, it may or may not be an "extreme departure" but I bet its enough to get to the jury and have them decide.
7.20.2007 7:29pm
Tony Tutins (mail):
I don't know but my guess is there will be a water safety expert who will testify that proper procedure when some one is lost in a large pool such as this is to clear the pool immediately and that the delay was the difference between life and death. This may or may not be true, it may or may not be an "extreme departure" but I bet its enough to get to the jury and have them decide.

Then they lose their named defendant, because she was not in charge of clearing the pool. How easy is it to substitute defendants in California cases?
7.21.2007 12:50am
neurodoc:
Thomas_Holsinger: "My point is that there was a factual dispute for the jury was to whether the defendant should have had a hard and fast rule that ANY epileptic episode meant keeping the decedent out of the pool for the rest of the day, as opposed to letting a college student special education aide with no medical expertise make a medical judgment.
When is there ever no imaginable "factual dispute for the jury"? Suppose there had been no "epileptic episode" of any sort, so no question for the jury about the need for a hard and fast rule about returning to the pool that same day. Then might the jury have been asked to consider whether it was grossly negligent under the circumstances not to have a neurologist there on site? (A pediatric neurologist friend of mine does attend at such a camp, and my own attorney serves as an informal adviser to his kids' camp on medical liability questions.)

Maybe an appellate court must decide if under their state's law a waiver of liability for ordinary negligence is enforceable. Surely, though, trial court judges are competent to decide that there is no way the alleged facts would support "gross negligence" and not leave it up to a jury.
7.21.2007 1:24am
Hattio (mail):
I think Antinome is right. The Defendants didn't move for Summ Judg on no acts that could constitute gross negligence. They moved for summ judg on the effects of the release.
But, if they were to move for SJ on those facts, I can think of several possible bases of Gross Negligence (some mentioned by previous posters);
1) Letting the girl back in the pool after a single epileptic episode
2) Not waiting for an answer from her boss and (relatedly) assuming no answer meant it was okay rather than taking the safer course and assuming it meant not okay.
3) Not sending another message to the boss to get an answer.
4) Allowing her to dive after epileptic fit
5) Taking eyes off of girl while swimming (rather than waiting until she got to the edge of the pool)
6) Having 300 kids in a pool (Depending on the size of the pool)
7) having her dive in a pool with that many kids in it (again assuming it was that crowded)
8) not being in the pool swimming next to her
9) waiting 2-5 minutes to clear the pool

These are just off the top of my head. Can you really say that no reasonable jury could find gross negligence on any one of these, or on any combination of these?
7.21.2007 3:05am
David M. Nieporent (www):
If the aide did not satisfactorily perform her job, why would it only be "an issue between employer and employee"? Surely, you wouldn't maintain that if it were established that the aide had elected to leave the pool area to take a nap would you?
Based on the limited description of facts in the post, surely I would.

Unless the camp has a legal duty to provide full-time supervision, then failure to provide it can't be negligence. The fact that the camp chose to do so doesn't generally create a duty for the camp to do so (unless the injured party relied upon the camp's choice to do so in such a way as to increase the risk -- but there's no evidence of that here). So the fact that the camp imperfectly provided such supervision isn't negligence. If she leaves to take a nap, that's no different than the camp not providing such special treatment in the first place. Which isn't negligent. The camp may choose to fire her, since she wasn't being paid to nap. But it isn't negligence.
7.21.2007 3:08am
markm (mail):
Russell:

...for example, a ski resort operator might state that it does not check the slopes daily for rocks, and the customer is precluded from suing if he crashes into one. But when the customer waives liability for all negligence, he usually will have no idea what precautions the seller otherwise would be taking but is declining to take as a result of the waiver. In almost every case, it will be cheaper for the seller to exercise ordinary care than for a consumer to compensate by taking extraordinary precaution if that consumer has no idea of what precaution to take.

Businesses don't ask for waivers of negligence because they intend to be negligent. In general, they don't even ask for them because they fear paying damages for the actual effects of actual negligence. If they are providing customers an opportunity to engage in sports even as safe a swimming, they need the waivers to protect them against the costs of defending against a lawsuit every time something goes wrong. Whether or not they were in fact negligent or even grossly negligent, the cost of defending the suit at trial will almost always exceed the cost of a settlement.

So if they cannot get a waiver for ordinary negligence or if such waivers are not effective to get cases dismissed pre-trial, they won't provide the service - and if the difference between ordinary and gross negligence has to be determined at trial, the waivers are not effective.

I wonder how much "loser pays" would change that calculation?
7.21.2007 10:39am
neurodoc:
David M. Nieporent: Unless the camp has a legal duty to provide full-time supervision, then failure to provide it can't be negligence.

That strikes me as a somewhat circular statement, one that begs the question of whether or not there was negligence on the camp's part, and if there was negligence, then was it gross rather than just ordinary negligence.

I take it you think that it would not have been gross negligence for the camp to take no special measures, e.g., extra supervision, to protect this child in the swimming pool. And if there was no requirement of any extra supervision to avoid possible liability, then it was immaterial how they went about any extra supervision of the child. Is that a correct understanding?

Given that CA courts understand "gross negligence" to mean "want of even scant care," then it is going to be, and should be, difficult for Ps to meet their burden. But not impossible for them to do so with sufficiently egregious facts. If it was the case that this child drown while the special aide was briefly distracted by some horseplay around the pool, then I don't think there would be a question for the jury, because those facts could not amount "want of even scant care." If, though, the child was supposed to be supervised by a special aide while in the pool, but wasn't because the aide didn't report for work that day and no substitute was provided, or because the aide went off to take a nap ("angrier" scenario than aide going to the bathroom), then is it indisputable that there was no gross negligence? A judge would be wrong to let a jury consider such facts and exert testimony about whether or not there was what amounted to "scant care," the foreseeable result being the injury suffered?

There is no question that the camp owed a duty of care to the child; the question is what exactly did the camp have to do to fulfill that duty, so as not to be found grossly negligent under the circumstances. If the question were instead one of ordinary negligence, then perhaps with the given facts it would have had to go to the jury so they could say the camp satisfied their legal obligation to the child. But I hypothesized someone different facts, that is not "briefly" unsupervised and seeming indifference on the part of responsible party.

If the P's theory was something like there was gross negligence because the camp did not get the approval of a pediatric neurologist before letting her go back in the pool, I would agree with SJ for the D on the merits. But the Ps were not maintaining anything nearly as farfetched. So, if the aide had gone off to take a nap, Neurodoc would let the jury decide, or at least take the first wack at deciding, whether the camp had to provide extra supervision or be grossly negligent; and if they would have been grossly negligent not to provide any extra supervision, then did the aide going off to nap amount to the functional equivalent of no extra supervision, hence a breach of the relevant standard of care.

Not just a matter between employer and employee, IMO.
7.21.2007 11:15pm
neurodoc:
I would say that whether the aide was negligent — in a legal sense, not a lay sense — would depend on whether the aide had a legal duty to watch the girl every minute. The fact that the camp voluntarily took extra precautions should not create such a legal duty.

Just to be clear, it seems to me there would have been a triable question whether the camp really undertook those extra precautions "voluntarily" or whether failure to have undertaken them would have constituted gross negligence. If they had to do it or be seen as grossly negligent, then clearly there a jury (or judge) could not mistakenly infer from the camp's undertaking to provide extra precautions ("create") a legal duty, because the legal duty existed in any event. (If the camp advised the parents that they would provide this extra precaution when the child went swimming, then they might have "created" for themselves a "duty.")
7.21.2007 11:46pm