(Paralegal) Property Liability: Attractive Nuisances And Trespassing Children (Discussion)

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Case Study:

Andrew Jones, age 8, lived with his father, Arvid Jones, in apartment building next to the farm owned by Debbie and Brad Morrison. On the back of the farm property was a small creek that had good fishing, but there were deadly piranha in the waters. Andrew would often sneak onto the farm property to fish.

One day, while fishing on the farm, Andrew was bitten by a piranha and severely injured. While running to help his son on the farm property, Arvid tripped on a wire and broke his ankle. The Joneses sue the Morrisons for their injuries. Explain whether the Morrisons owe a duty of care to Andrew and Arvid.

Why is it that we allow people who are harmed committing crimes to sue those they are committing a crime against? If someone breaks into my house and trips on the step and is hurt why on earth would we ever allow them to sue?
Discussion:

An attractive nuisance is a condition or object on someone’s property that might prove irresistible–but which poses a danger to– curious trespassing children. The classic example would be a train yard turntable; the modern example would be a private swimming pool or construction sites.

Per Restatement of Torts (§339), a property owner can be held liable for “attractive nuisance”-related injuries if the property owner:
* was aware that children might trespass
* was aware that the condition/object in question might cause harm or death to trespassing children
* was aware that trespassing children might be incapable of understanding the danger presented by the condition/object
* can’t defend why the condition/object, no matter how useful, was left accessible to trespassing children instead of being stored or otherwise made more difficult to access; in other words, reasonable measures were not taken
* has been negligent by not adequately preventing access to the condition/object or not taken care to prevent trespassing children from being harmed (Rottenstein, 2012).

Mitigating factors: if the nuisance is natural, or even if great care has been taken to make it look like a naturally-occuring water feature (rather than man-made), the courts may take this into account and rule that even a child should know better than to play in a creek or lake. If the condition/object which lured the child to trespass (example: a dirt mound deemed perfect to use with go-carts) was different from the object that harmed the trespassing child (example: a canal near the dirt mound), the court may determine that the child was not lured by the “attractive nuisance” that caused harm, but by something else (Toal, 2007). If the property owner was aware of trespassing children and warned them away, this, oddly, may inspire the court not to find in his/her favor, as s/he would then be aware that children were trespassing and thus could potentially be harmed, and s/he failed to take measures to curb the trespassing.

In Mayle v. McDonald Steel Corporation (2011), children dove off a high wall into “frothy” water below. One child was caught by the current and drowned. The court held that even a child could determine that jumping from a tall wall into noticably roiling, violently churning water would be dangerous. McDonald prevailed.

In Mason v. City of Mt. Sterling (2004), a boy was attracted by “floating cars” in a parking lot after a hard rain and decided to go investigate. He stepped over a submerged culvert entrance hidden by several inches of still, muddy, opaque water and was, tragically, sucked into a storm sewer and drowned. In Mason, the child’s lawyer prevailed, because the boy had no way to perceive the danger beforehand (Meyer, 2011).

In our case study, the McDonalds apparently did not construct the water feature that attracted Andrew, which will probably be considered to be in their favor. They may or may not have been aware of the presence of the piranha or that Andrew had been trespassing. We aren’t told if the McDonalds posted any signs or erected any fences, either, or if they lived on the farm or just owned the property (it is possible they might own a piece of property, perhaps inheriting it, without ever having set foot on it). The extent of their liability will be determined by how many (if any) precautions the McDonalds took to keep trespassers off their property and if they were even aware of the existence of the creek or the piranha in it (piranhas are not normally found in creeks on farms; an alligator, however, might be). Since we aren’t told what the McDonalds did or knew, it is hard to determine just how liable they might be considered to be by a court. They would have to fail one of the five previously-stated conditions.

As for Andrew’s father, he was trespassing, full stop (not an invitee or licensee). Some consideration might be given to the fact that he was going to the aid of his stricken son, but the McDonalds should not have to make their property safe for adult trespassers, as adults should know better than to trespass in the first place.

I suspect that the McDonalds might be considered not to have done due diligence by inspecting the property and taking care to do their best ot block off access to curious trespassing children, though that still depends on some info we have not been provided. They will probably not be held liable for Arvid’s injury.

As for “burglar is injured, sues property owner, prevails” cases, after several hours of hunting, I was only able to find dozens of “friend of a friend” no-names-mentioned anecdotes of burglars falling through skylights, being trapped for days in locked buildings, being menaced by vicious guard dogs, etcetera. That’s probably a failing on my part. If a burglar (or his survivors) ever did prevail and the decision in favor of the burglar (or survivors) was actually upheld upon appeal, I suspect that it would be due to the property owner having a dangerous condition left unaddressed on his or her property that could reasonably be assumed to have been dangerous even for innocent parties visiting the site without malicious intent. In that case, the burglar’s actions might have been held to be less of a menace than the unaddressed hazard. But, as noted, I found a lot of urban legends (mostly debunked) and stories light on factual data such as location, names, dates and so on. (See also: http://answers.google.com/answers/threadview?id=217602, which collects a lot of the links I found elsewhere, including Snopes and the Stella Awards site.) If another student finds a real case with names and dates, I’ll be glad to examine it and express an opinion!

(Incidentally, the Stella Awards were named after Stella Liebeck, who was burned by a McDonald’s hot coffee. It’s unfair to name allegedly frivolous litigation awards after her, because McDonald’s had been made aware before Stella’s accident that their coffee was much too hot and ignored complaints. Further, Stella was in the passenger seat of a stationary car when she spilled the coffee on her lap and suffered third degree burns. The photos of her injuries are traumatizing just to look at. McDonald’s deserved to be sued, and Stella did not have a frivolous complaint nor a trivial injury and deserved the damages she was awarded. She had no way as a customer to know the coffee would be served at a temperature approximately 50 degrees hotter than recommended (almost boiling), but McDonald’s did know, due to prior problems and complaints, that the coffee was too hot and served it anyway.)
References:

Twomey text and SUO lecture for Week 5

Kendall, D. & McCrea, H. (2010, April 20). Attractive Nuisance: Can federal courts help tackle global warming? Retrieved from http://www.motherjones.com/environment/2010/04/climate-desk-supreme-court-climate-change

Scheuerman, S. B. & Robinette, C. J. (Torts Prof Blog). (2006, April 11). Attractive Nuisance and Seventeen-Year-Olds. Retrieved from http://lawprofessors.typepad.com/tortsprof/2006/04/attractive_nuis.html

Wilhoit, S. K. (University of Houston Law Center). (2006, April 11). Comment on “Attractive Nuisance and Seventeen-Year-Olds” article. Retrieved from http://lawprofessors.typepad.com/tortsprof/2006/04/attractive_nuis.html

Meyer, R. (2011, December). Children Beware Of Attractive Nuisances. Retrieved from http://www.dbllaw.com/2011/12/children-beware-attractive-nuisances/

Rottenstein Law Group LLP. (2012). What is an “attractive nuisance”? Retrieved from http://www.rotlaw.com/legal-library/what-is-an-attractive-nuisance/

Holmes, Justice (SCOTUS). (1922, March 27). UNITED ZINC & CHEMICAL CO. v. BRITT, 258 U.S. 268 (1922). Retrieved from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=258&invol=268

Fourt, Judge. (1956, September 17). Wilford v. Little, 144 Cal. App. 2d 477. Retrieved from http://law.justia.com/cases/california/calapp2d/144/477.html

Toal, Chief Justice. (2007, August 27). The Late Terry Henson, by Harriet Hunt, his Aunt and Appointed Guardian ad Litem and Personal Representative v. International Paper Company, Georgetown Steel Corporation, The City of Georgetown, and Georgetown County. Retrieved from http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26374

Cornell University Law School (Legal Information Institute). (2010, August 19). Attractive Nuisance Doctrine. Retrieved from http://www.law.cornell.edu/wex/attractive_nuisance_doctrine

(Paralegal) Property Liability: Duty Of Care

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Property Owners’ “Duty of Care”

In our case study, Sally owns a dual-use property, where the front of the house is her residence and the rear of her house has incorporated a beauty salon. During a storm, a tree limb fell on a power line, creating a dangerous condition near the entrance to the salon. We are asked to determine Sally’s duty to protect Ralph, the newspaper deliverer who uses Sally’s yard as a shortcut, Betty, a friend who plans to visit Sally for lunch, and Heather, a beauty salon client with an appointment that week. (Assumptions we will make to make a complex case study less open-ended: Ralph is not a minor child enticed onto Sally’s property by an attractive nuisance, he is an adult and only tempted to cut across her lawn to shorten his paper route; and Betty has been invited by Sally to visit or visits often enough to have an assumed open invitation to stop by.)

A property owner owes a duty of care to people on the owned property, but degree of the property owner’s responsibility varies with the type of visitor (Twomey, 2011):

  1. A trespasser is an uninvited, unexpected and unauthorized person on the property. A property owner can’t knowingly inflict harm to a trespasser (though “Castle Doctrine” laws vary on the legality of confronting an intruder in one’s house with lethal force), but the property owner is not required to warn trespassers about any dangers. (The “attractive nuisance” doctrine is an exception, where property owners are required to take reasonable care to keep curious trespassing minor children—especially very young children–from being harmed by an object or condition on the property.) (Twomey, 2011; Strickland, 2009)
  2. A licensee is a person who has been invited by the property owner to visit the property. A property owner has a duty to alert licensees of any hazards that may not be obvious. The example given in class was a loose step on a patio or deck; a property owner is required to tell guests about the dangerous step (Strickland, 2009).
  3. An invitee is a person who is on a property specifically to do business there. A property owner must, as with licensees, warn invitees about any potential dangers. The example given in class was a supermarket with a spill on its floor: customers must be alerted to the danger and the spill blocked off until the floor is clear and dry again (Strickland, 2009).

In this case, Sally’s tree and power line hazard was not due to her personal negligence as far as we know (we’ll assume that she kept any branches that were obvious hazards on her trees trimmed back regularly), but due to bad weather. Bad weather-related conditions can be considered the property owner’s fault if they are considered foreseeable and if the dangerous condition is judged to have been preventable. If Sally has had the opportunity to be on the premises and inspect them, and is aware there was a storm, she will have to show that she took reasonable care that her property was not affected by the bad weather. We will assume that she is aware of the tree and electrical line, and that this is not something that happened after she inspected her property following the storm, and that she has not been absent the entire time and thus unaware of the weather or the tree and power line.

Most bad weather-related cases involving disputes between property owners and visitors involve snow and ice. In Thomas v. Ohio University, Wesley Thomas’ 2000 Ford Taurus was damaged by chunks of ice and snow in the Gamertsfelder Hall parking lot. It is not stated in the case whether Thomas was a student at Ohio University, but it is strongly implied he was not, as he is called a visitor. Citing Restatement of  the Law (Second), Torts (1965), Section 342, the court ruled in favor of the university, stating that it was not a breach of duty to remove a natural accumulation of snow and ice from campus buildings. The court discussed trespassers, licensees and invitees, determining that Thomas was not a trespasser but a licensee or invitee. It then claimed that the university’s duty of care was similar, in this case, whether Thomas was a licensee or invitee. A trespasser, said the court, “is one who enters property without invitation or permission, purely for his or her own purposes or convenience.” An invitee is on the property by invitation with permission for purposes which the property owner would find beneficial, and a licensee is on the property with permission for purposes that the licensee finds beneficial. The court did not find that the university had acted with “heedless indifference” to the safety of visitors (Court of Claims of Ohio, 2011).

In Hoffner v. Lanctoe, Charlotte Hoffner was a member of Fitness Xpress gym, which had only one entrance. The building, parking lot and sidewalk were all owned and maintained by the owners, the Lanctoes. The Lanctoes were determined to be responsible for removing snow from the parking lot and sidewalk, per their lease agreement. Hoffner admitted that she saw a patch office in front of the Fitness Xpress entrance (therefore the court held the ice to be an “open and obvious hazard”) but she had no alternate option if she wished to enter the gym as an invitee (due to her paid membership). She claimed that the ice “didn’t look like it would be that bad,” “it was only just a few steps,” and “I thought that I could make it.” She didn’t; she slipped, fell, and injured her back. Lower courts had sided with Hoffner’s argument that, as invitee, the sidewalk should have been salted for safety. The Supreme Court of Michigan disagreed, noting that Michigan, “being above the 42nd parallel of north latitude, is prone to winter,” and that a reasonable person should be aware of the possibility that walking surfaces might be slick. Given that Hoffner admitted that she had seen the patch of ice, she did not prevail (Supreme Court of Michigan, 2012).

In Buhalis v. Trinity Continuing Care Services, a Michigan court again dealt with a plaintiff, Mary Buhalis, who slipped on a patch of ice on a patio outside a building owned by Trinity. Buhalis, a woman in her late 80s, rode her adult tricycle to Trinity, a nursing home, to donate a bag of clothes. Buhalis was a frequent visitor to Trinity, and thus presumed to be an invitee, as her visits were motivated by charitable impulses and Trinity welcomed Buhalis and benefited from her visits. There was a cleared walkway, but Buhalis opted to cross the patio, which was not clear, and which was not used by Trinity during the winter. Trinity had also posted a sign (“SIDEWALKS, PARKING LOTS AND COMMON AREAS MAY BE WET, SNOWCOVERED [SIC] AND SLIPPERY”) which Buhalis was aware of. Buhalis did not prevail, though I assume the court had sympathy for the injuries suffered by an elderly woman who was hurt while performing a charitable act, because the sign was posted, there were cleared walkways available, and Buhalis (as the court noted) had experienced 85 previous Michigan winters and should be presumed to be familiar with what a Michigan winter was like, including the potential snow and ice hazards. The court determined that a “reasonably prudent” person would have foreseen the possibility of slipping on a patch of ice (Court of Appeals of Michigan, 2012).

In Rorie v. St. Mary Roman Catholic Church, 2010 WL 877545 (Mich. App. 2010), a Michigan court did not hold the church liable for Ms. Rorie’s injuries, which were sustained when she tripped over a speed bump in the parking lot. Rorie acknowledged that she had driven over the speed bump often, and thus knew it was there. Her argument was that it should have been painted in a contrasting color to make it more visible at night. The court disagreed; even though Rorie was an invitee, she was aware of the speed bump and that it was dark, so the condition of the property’s speed bump feature should have been “open and obvious” to her, and the injuries both foreseeable and preventable (Hammar, 2012).

In Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App. 4th 387 [9 Cal. Rptr. 2d 124], A Griggs Construction employee, Pete Sam Krongos, was electrocuted when the bucket he was working in was accidentally swung into an overhead power line by the operator of the boom truck, Clinton Morrow. Krongos was holding the boom cable, attached to a bundle of timber, and the cable made contact with the power line. Dana L. Whitaker, who was the construction yard lease-holder, was sued by Krongos’ survivors, as was Pacific Gas & Electric Company (PG&E), who had installed the overhanging power line. (The boom truck operator, Morrow, who steered Krongos into the power line when the sun got in his eyes, was apparently not sued.) Krongos’ survivors argued that Whitaker should have protected workers on his job site from power lines, and PG&E was also cited and criticized. PG&E had, in fact, installed the lines four feet higher than required, posted high voltage signs to warn visitors to the area, and properly equipped the wire with safety features. The court wondered how PG&E could be held liable when it complied with all standards and had not been informed of any construction-related activities near its line (in my state, you are urged to call utility companies if you plan to do any digging or construction near their pipes or lines). PG&E was determined not to be liable, but Whitaker was not as lucky, though the court noted that they felt that a jury would be unlikely to find Whitaker negligent (White, 1992).

In Alcaraz v. Vece, Gilardo Alcaraz stepped into a water meter box and was injured. The box had a broken or missing cover, and was located in the lawn in front of the property he rented. The defendants, his landlords, then sued City of Redwood City and its water department, alleging that these cross-defendants owned the meter box and the strip of land where it was located, and thus should be held responsible for Alcaraz’ injuries. The court felt that the defendants had the burden of duty of care because they mowed and maintained the city’s strip of land and should have posted a warning and/or barrier around the meter box. The landlords were found liable because they fenced the strip of lawn surrounding the meter box after Alcaraz’ injuries, and the court determined that this indicated that they “exercised control over” that bit of lawn–treated the city’s strip of land as if it were part of or an extension of their own front yard–and thus had assumed responsibility for the unsafe meter box located there. A dissenting judge felt that this punished the landlords for being good neighbors and not letting the strip of land get overgrown and unsightly, but the decision in favor of Alcaraz held (Supreme Court of California, 1997).

In Harris v. University of South Carolina, determining whether Harris was an invitee or licensee took up the bulk of the court’s time. Karen Harris visited her son, Daniel Russo, on Pritchard Island, an undeveloped barrier island managed by the university and used for research, preservation of flora and fauna (e.g., sea turtles), and classes. Harris slipped and broke her ankle badly (requiring surgery and physical therapy) when climbing boardwalk stairs with her arms full of a beach chair, book, and a drink can. The university, Harris said, had not posted warnings about the stairs, and she wanted damages for lost wages, medical bills, future medical bills, “loss of enjoyment of life, […] mental anguish” and physical pain. Harris lost, and appealed. Harris argued on appeal that she was an invitee, but neither she nor her son, Russo, could recall if she asked to come visit or if he directly invited her to come. The university contends that Harris was a licensee, and the court agreed; it was not normal for people to visit the island for recreational purposes only, as it was a research, work or education site. Harris did not work or participate in educational endeavors. Harris lost again on appeal (Lockemy, 2011).

In our case study, it appears that Ralph is an uninvited licensee (if Sally is one of the customers on his newspaper route) or a trespasser. Betty is a licensee by invitation (licensee) though her status might be challenged if she goes to the salon entrance rather than the front door. Sally has not, as far as we know, invited Betty to her salon. The invitation to meet for lunch is personal, not business-related, so Betty shouldn’t be on the wrong side of the house. Heather is a business invitee. (I’m using more precise terms taken from a chart published by The Florida Bar; see Appendix.) Invitees generally require the highest degree of reasonable care, and trespassers the lowest. In all three cases, however, a tree limb resting on a power line poses a foreseeable hazard, and, as a property owner (especially as a business owner), Sally will be expected to inspect the property after a bad storm for hazards. In Alcaraz v. Vece, the court specifically addressed the responsibility of a property owner where power lines are concerned:

If a live power transmission line falls, creating a hazard, the possessor of the property on which the power line has fallen, who knows of the hazard, cannot escape liability for injuries to persons who enter the land and encounter the power line simply because the land possessor does not own the power line and lacks the authority to disconnect the line or remove it. A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard (Supreme Court of California, 1997).

Therefore, regardless of the status of Ralph, Betty and Heather, Sally owes all of them a duty of care that would include calling the electric company and reporting the tree resting on the power line. Sally would be wise to block off access to the hazard and to post signs with warnings.

Coincidentally, I have just gone through this exact scenario after a not-very-bad storm a few weeks ago, and lived in the only house affected in my neighborhood–ergo the power company was not being stretched thin with a lot of houses without power or storm damage to handle at once. I can report that it will apparently take a couple of weeks and dozens of phone calls to the power company for them to take the problem seriously and actually come out to remove the tree branch and fix the electrical line. I suppose I am lucky that no one was injured, and that my house did not actually catch fire or have the power line yanked out of the wall. If someone had been hurt, I hope that the multiple calls for assistance that the home owner and I both made would help keep me or the property owner from being held liable if I or she were sued, as we both lack the ability or authority to remove a two-foot in diameter branch or shift a live power line, and could not force the power company to fix the problem sooner than it did.

Appendix:

Types of Visitors and Property Owner’s Duties

5 (1)

Image © FloridaBar.org

References:

Twomey, D. P., and Jennings, M. M. (2011) Anderson’s Business Law and the Legal Environment. Retrieved from http://digitalbookshelf.southuniversity.edu

Court of Claims of Ohio. (2011). Thomas v. Ohio Univ., 2011-Ohio-1946. Retrieved from http://ohio-supreme-court.vlex.com/vid/thomas-v-ohio-univ-274729655

HG.org. (2012). Premises Liability Law. Retrieved from http://www.hg.org/premises-liability.html

Hammar, R.R. (2012). Are We Always Liable for Injuries on Church Property? Liability depends, in part, on the nature of the victim’s visit. Retrieved from http://www.churchlawandtax.com/private/library/viewarticle.php?aid=154

LawQA. (2012, August 23). Am I liable if a person trespasses on my property and get injured? Retrieved from http://www.lawqa.com/qa/am-i-liable-if-person-trespasses-on-my-property-and-get-injured

Strickland, W. H. (2009, December). Premises Liability: A Notable Rift in the Law of Foreseeable Crimes (originally published in The Florida Bar Journal, December, 2009; Volume 83, No. 11). Retrieved from http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/F5EDDA415D032B218525767E0071DA90

Supreme Court of Michigan. (2012, July 31). Hoffner v. Lanctoe. Retrieved from http://caselaw.findlaw.com/mi-supreme-court/1607928.html

Court of Appeals of Michigan. (2012, May 29). Buhalis v. Trinity Continuing Care Services. Retrieved from http://caselaw.findlaw.com/mi-court-of-appeals/1602246.html

White, P., Judge (Superior Court of Humboldt County, California). (1992, May 27). Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App. 4th 387 [9 Cal. Rptr. 2d 124]. Retrieved from http://law.justia.com/cases/california/caapp4th/7/387.html

Supreme Court of California. (1997, January 31). Alcaraz v. Vece. Retrieved from http://caselaw.findlaw.com/ca-supreme-court/1288675.html

Lockemy, Judge (South Carolina Court of Appeals). (2011, February 3). Harris v. University of South Carolina. Retrieved from http://law.justia.com/cases/south-carolina/court-of-appeals/2011/4789.html

(Paralegal) Musician Injured By Guitar Strap Caught In Cab Door: Who Is At Fault?

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Case Study:

A rising classical-music star is running late for a performance. He is carrying his guitar with him. Hailing a cab he arrives at the Symphonic Hall. Quickly paying the driver, he grabs the strap of the guitar case and starts to exit the cab. The strap catches on the door, which slams shut. The cab immediately moves on to the next fare. The guitarist is yanked off his feet and dragged half a block, still holding the strap of the guitar case. The strap breaks, the cab keeps going, and the guitarist is hit by another car. With two badly broken arms, one broken leg, few broken ribs, and a concussion, he is taken to the hospital. Who is liable for the musician’s injuries? The cab driver, the second driver, both, or neither? Discuss your answer, assuming jurisdiction in Illinois.

Analysis: 

The musician has grounds for a personal injury suit against both drivers, who appear to both be negligent given the few details we have at hand to review. The musician, if his instrument is destroyed or damaged, may be able to recover for it, as well being awarded damages to cover pain and suffering, loss of wages / potential future income, medical and doctor bills, medication and rehabilitation expenses (if any), and so forth. Both drivers were irresponsible (I find it difficult to comprehend how a reasonably alert driver would fail to notice and avoid running over a grown man being dragged by a taxi cab along the street; there are probably details I am not privy to that would explain how that happened).

The taxi driver owed the musician a duty of care, which he failed to meet adequately. The taxi driver’s lack of care was the proximate cause of the musician’s initial injuries, and the reason he was still in the roadway where the second vehicle could hit him, hence he was negligent. See also Houston Transit Co. v. Zimmerman, 200 S.W.2d 848 (Texas Court of Civil Appeals, 1947), where bus driver was not relieved of responsibility for his negligence after a passing truck struck two minors who had just exited the bus) and compare it with Hibma v. Odegaard, 769 F. 2d 1147 (United States Court of Appeals, Seventh Circuit, July 30, 1985), which states “while intentional tortfeasor must exercise utmost caution to prevent his victim from sustaining further harm, he remains insulated from injuries caused by wholly unforeseen accidents occurring without his agency.”

The taxi driver is responsible for his part in the musician’s injuries and damage to his instrument (if any). He is not likely to be considered responsible for injuries that the second vehicle caused independently, but for placing the musician into the path of the second vehicle.

There are a number of Illinois-based taxi-related cases where cab drivers failed to park in areas where it was safe for passengers to disembark, or where cab drivers attempted to drive off when passengers had clothing caught in cab doors. Generally, the passenger who alleges injury prevails.

The second driver is not relieved of his duty of care not to drive over pedestrians, erect, supine or otherwise in the roadway where they do not belong, but s/he did not cause the initial affront to the musician and should not be held liable for the brunt of his injuries. (The second driver’s lawyer can argue that the second driver would not have had a chance to strike the musician if the cab driver had not initially dragged him down the street where he landed in the second driver’s vehicle’s path.)

The second driver is not likely to escape being sued. (As an example, a good driver can nevertheless be involved in an accident if another car pushes his or her car into an existing collision. Georgia law will still cite that driver with “following too closely”: it is a quirk of Georgia law that if you rear-end another car, even if you yourself were at a dead stop and are rear-ended and pushed forward, you are liable.) The second driver still injured the musician, and even if fault is slightly mitigated because of the taxi driver’s negligence, the second driver still has to be held responsible for not adequately anticipating potential road hazards–and perhaps for Illinois’ version of “following too closely”–as s/he failed to see the musician in the roadway until it was too late.

One caveat: “If you have been involved in a serious Chicago car accident with a taxi driver, you may encounter problems receiving fair and full compensation for your injuries. Chicago cab companies are structured in such a way so as to allow recovery from only the specific cab and the cab driver involved in the accident. The City of Chicago mandates that taxi cab drivers carry minimum liability policies of $350,000. […] Many consumers […] mistakenly identify individual drivers as employees of companies such as Yellow Cab and Checker. In reality, the cab entities are structured so that these individual drivers are the only party from which an injured individual may seek recovery. This can have devastating practical effects for individuals that suffer serious or permanent injuries as the result of taxicab driver negligence.” [Various sources: http://www.josephklest.com/2010/06/taxicab_related_chicago_car_ac.html, http://www.cityofchicago.org/content/dam/city/depts/bacp/publicvehicleinfo/medallionowners/medallionlicenseholderrulesregsf20120626.pdf, http://www.cityofchicago.org/city/en/depts/bacp/supp_info/rules_and_regulations.html, all retrieved January 24, 2013.]

The musician’s lawyer(s) will be likely to cite the following:

1. Warner Klettke v. Checker Cab Company, Inc. and Joseph Weglarz, 26 Ill.App.2d 341 (June 29, 1960).

Weglarz, a cab driver for Checker, struck pedestrian Klettke and injured him as he was crossing the street. “The Appellate Court, Dempsey, P. J., held that evidence was sufficient to take to jury questions whether defendant driver had been negligent, whether plaintiff had been contributorily negligent, and whether plaintiff had signed release while capable of comprehending its effect. Affirmed. In action by pedestrian against taxicab company and driver for injuries sustained when pedestrian was struck in crosswalk, evidence was sufficient to support finding that driver had been negligent.”

2. Lillian De Bello v. Checker Cab Company, Inc., 8 Ill.App.3d 401 (Oct. 20, 1972).

De Bello caught her pantyhose on a protruding screw sticking up from a door moulding strip in a taxi cab. In fighting the suit, the cab driver and Checker made much of De Bello’s size (over 200 pounds) and denied responsibility for her injury, or denied negligence for the cab driver’s choice of where she was dropped off (right in front of an open manhole, which allegedly made her feel dizzy and fall down as she was struggling with her snagged stockings). “Whether plaintiff fell because her stocking was enmeshed on the screw, resulting in her being off-balance with one foot pinned under her, or whether she fell because, while trying to extricate her stocking from the screw, she became dizzy upon seeing a manhole in front of her, makes no difference. In either case, she was stuck on the screw before and as she fell, thus clearly establishing that fact as a proximate cause of her fall. Nor should it be of any assistance to defendant to argue that it is relieved of liability because plaintiff became dizzy upon seeing a manhole as her only place of exit from the cab; and this in view of the general rule that a carrier must furnish a safe place for a passenger to alight from its vehicle (Thomason v. Chicago Motor Coach Co., 292 Ill.App. 104, 113, 10 N.E.2d 714, 718).”

3. Angela Shanowat, as Administratrix of the Estate of Elizabeth Shanowat, Deceased, and Beverly Shanowat, a minor v. Checker Cab Company, Inc., 48 Ill.App.2d 81 (April 22, 1964).

Taxi driver parked across the street from passengers’ destination, and while their mother was distracted by paying the fare, the cab driver opened the cab door and two minor children dashed out into the road and were struck by a car, killing one and severely injuring the other. The court asserted that the cab driver had a “duty of care” to his passengers to ensure they reached their destination safely, and he was therefore negligent. “The Superior Court, Cook County, Arthur A. Sullivan, J.,entered judgment against the company, and it appealed. The Appellate Court, Drucker, J., held that relation of carrier and passengers still existed when girls were discharged into street so that driver of taxicab was bound to exercise highest degree of care, and that question whether driver of taxicab discharged girls in a reasonably safe place for alighting was for the jury, and that question whether negligence of driver of taxicab in discharging the girls in an unreasonably safe place was proximate cause of accident was or jury.”

(Court cited 1 In 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2142, pp. 18-19: “The relation ordinarily continues until the passenger has reached his destination and has alighted in safety or has had a reasonable opportunity to do so, as well as to leave the carrier’s premises or the place at which he alights. However, with regard to the last mentioned qualification concerning a passenger’s opportunity to leave there is ample authority for the view […] that a person ceases to be a passenger as soon as he safely steps from the vehicle into the street or highway at a reasonably safe and proper place. […] The traveled portion of the street or highway, however, under present-day conditions can hardly be characterized as a place of safety, and a passenger deposited in the traveled portion and injured as a consequence may hold the carrier liable.”)

4. Pauline Blitz v. Checker Cab Company, Inc., 8 Ill.App.3d 361 (Oct. 31, 1972).

Cab driver asserts there was a “use seat belts” sign in his cab, but is not relieved of responsibility for injuries to passenger who failed to buckle up when his careless driving and braking caused her injury. “Plaintiff, Pauline Blitz, testified on her own behalf as follows: On July 18, 1966 plaintiff was 77 years old. At 4:50 P.M. on that date, after shopping in the Loop area of Chicago, she hailed a cab near Michigan Avenue and Washington. A Checker cab stopped three feet from the curb. Plaintiff opened the rear door, entered the cab and gave her destination as Michael Reese Hospital, where her husband was a patient. As she entered the cab, plaintiff saw neither seat belts nor signs referring to the presence of seat belts. The driver made no mention of the presence of seat belts. As the cab neared the hospital, it suddenly made a sharp turn and a quick stop. As a result, plaintiff was thrown to the floor and sustained a fractured hip. The driver continued on to the hospital and secured medical attention for plaintiff. We hold that, as a matter of law, plaintiff’s failure to fasten her seat belt did not constitute contributory negligence.”

5. Porfirio Diaz v. Chicago Transit Authority, 174 Ill.App.3d 396 (Aug. 26, 1988).

Elderly, hearing-impaired man who does not speak English is seriously injured when bus driver appears to wave him on into oncoming traffic. Bus itself was blocking Diaz’s view of the roadway. “Bus passenger brought action against city transit authority to recover damages for personal injuries he sustained when struck by car after having alighted from bus [in the middle of a block]. […] The CTA bus driver, Gant Kacija, was negligent in allowing Diaz to alight from the CTA bus at other than a normal bus stop and that as a result, Diaz was struck by defendant [Robert] Ward’s car.”

6. Paul Shatkus v. Checker Taxi Company, Inc., 111 Ill.App.2d 1 (Appellate Court of Illinois, First District, June 6,1969).

Even though Shatkus intended to rob the cab driver, his injuries were still considered the taxi driver’s fault. “Plaintiff brought this action in the Circuit Court of Cook County seeking damages from the Checker Taxi Company for injuries sustained when attempting to board a cab of the defendant. He claims that while he was entering defendant’s taxi cab, it started into motion before he was safely inside and failed to stop when its driver knew, or should have known, that he was being dragged down the street by the cab. The defendant admitted operation of the cab but denied that a carrier-passenger relationship existed, contending that plaintiff attempted to enter said taxi cab for the purpose of committing an assault and inflicting bodily harm upon the driver of the cab. […] [A witness, Jerry Koon, spotted Shatkus in distress,] immediately went to his aid and discovered that he was unconscious and there was blood on his face. Koon parked his car in the street so as to protect the unconscious plaintiff from the oncoming traffic and stayed at the scene of the accident until the police arrived and he then gave them a statement.”

Counter-arguments musician’s lawyer should watch out for:

1. Aforementioned Hibma v. Odegaard, 769 F. 2d 1147 (1985).

2. Russell Nilsson v. Checker Cab Company, Inc., 4 Ill.App.3d 718 (Appellate Court of Illinois, First District, Second Division, April 20, 1972).

“The Appellate Court, Leighton, J., held that evidence would support finding by trial judge that plaintiff who was passenger in one of defendant’s taxicabs and who was injured in accident involving taxicab and another automobile did not sustain burden of showing that defendant taxi company was negligent. Affirmed.
Consistent with mode of conveyance and its practical operation, taxi company owed passenger duty to use highest degree of care in transporting him to his destination.”

Caveat: “A carrier is liable to its passenger only for injuries which are caused by its negligence and is not liable for injuries which result from cause beyond its control; mere fact that there is an accident which injures the passenger does not authorize a presumption that carrier was negligent.”

Taxi company prevailed in this case.

3. Rosalie Borus v. Yellow Cab Company and Thomas Jamison, 52 Ill.App.3d 194 (Appellate Court of Illinois, First District, Fourth Division, Aug. 18, 1977).

“Taxicab passenger brought action against cab company and cabdriver for damages for injuries suffered when she allegedly was dragged some distance by defendants’ taxi. […] On June 29, 1972 the plaintiff was injured on Jackson Boulevard near the School of the Art Institute of Chicago. Subsequently she filed suit against Thomas Jamison, a taxicab driver, and Yellow Cab Company, his employer, alleging that due to the driver’s negligence she was dragged by the cab when her coat was caught in the door. […] The basic issue in this case is whether the plaintiff’s inadvertent closing of a taxicab door on her coat can be held to be contributory negligence as a matter of law thus barring her suit against the defendants for injuries suffered when she allegedly was dragged some distance by the defendants’ taxi. We hold that, particularly under the facts of this case, the question is one for jury determination and reverse the trial court’s entry of summary judgment for the defendants on this issue.”

Taxi company initially prevailed, citing “contributory negligence.” Musician could be accused of the same thing if he was the one who is seen to have shut the door on his guitar strap, rather than the strap catching on the door right before the cab moved forward and momentum swung the cab’s door shut on the strap.

4. John T. Talbott v. Yellow Cab Company of D.C., 121 A.2d 262 (Municipal Court of Appeals for the District of Columbia, March 8, 1956).

Much like Borus, Talbott considered passenger error as mitigating. “The Municipal Court of Appeals, Quinn, J., held that where plaintiff alighted safely from defendant’s taxicab but closed door on lower part of his overcoat and was dragged away, even if plaintiff’s negligence was not the sole cause of the accident it contributed directly and proximately to the accident, and precluded recovery for the injury. […] When the driver started to drive off after hearing the door ‘slam,’ plaintiff realized his coat was caught, and as he was being pulled to the ground he ‘hollered’ to the driver but nevertheless was dragged on his left side for approximately ten feet. No part of the cab came in contact with him. The driver stopped and offered his assistance, but plaintiff, who was in a dazed condition, got up and walked the remaining block and a half to his home unassisted. The next day plaintiff visited a physician and was treated for injuries he claimed to have suffered as a result of the accident.”

Issue, Rule, Application, and Conclusion (IRAC):

Issue: Was taxi cab driver negligent when he failed to notice the musician was being dragged along by the guitar strap behind his cab?

Most precedent would hold the cab driver liable, as it is considered a “duty of care” of the driver to deliver passengers safely.

Rule: “Negligence is a duty of care which is owed by one to another followed by a breach of that duty which proximately causes harm” (Guay et al, 2013).

Application: Drivers’ inadequate attention both responsible for injuries to musician, with the taxi driver taking most of the blame for contributing to the situation that had the musician in the roadway where the second vehicle struck him. Had the taxi driver not dragged the musician down the street in the first place, the second vehicle would not have hit him, but the second driver is not relieved of his or her duty to drive safely and carefully enough to avoid any unexpected hazards in the roadway.

Conclusion: Based on analysis of available data and examining relevant Illinois-area cases, both drivers should be found negligent, with the taxi driver being more so (perhaps even considered reckless). The second driver may also consider naming the taxi driver in a separate suit, alleging that the initial injury to the musician is what caused the man to be in the second vehicle’s path in the roadway.

Whereas this quote refers mostly to business-related fraud, the reasoning applies to personal injuries rather than solely financial losses: “Under Illinois law, plaintiff may recover economic losses through tort action: (1) where plaintiff sustained personal injury or property damage resulting from tortious event; (2) where plaintiff’s damages are proximately caused by defendant’s intentional, false representation; and (3) where plaintiff’s damages are proximately caused by negligent misrepresentation by defendant in business of supplying information for guidance of others in their business transactions” (First Magnus Financial Corporation v. Leszek Dobrowski a/k/a Marek Maka, 387 F.Supp.2d 786 (United States District Court, N.D. Illinois, Eastern Division, June 2, 2005)).

References:

George E. Guay III & Robert Cummins, Tort Law for Paralegals, (2010). Retrieved from http://digitalbookshelf.southuniversity.edu/#/books/0558542700/pages/48710147 (January 25, 2013).

Devine, Joseph. (2010, January 19). Establishing Fault in Car Accidents – Tort Law. Retrieved from http://ezinearticles.com/?Establishing-Fault-in-Car-Accidents—Tort-Law&id=3604438

S.H.A. ch. 70, § 1.

Klettke v. Checker Cab Company, Inc. et al, 26 Ill.App.2d 341 (1960).

Thomason v. Chicago Motor Coach Co., 292 Ill.App. 104, 113, 10 N.E.2d 714, 718.

Houston Transit Co. v. Zimmerman, 200 S.W.2d 848 (Texas Court of Civil Appeals, 1947). [Headnote: “A bus driver discharged two children about five feet from the curb with a large puddle blocking their access to the sidewalk. The children passed in front of the bus and were hit by a passing truck. The court there held that the bus company was negligent and that its negligence was not excused by an intervening cause, i.e., the negligence of the truck driver. There also the question of whether the children were discharged in a safe place was held to be a question of fact for the jury.]

Rotheli v. Chicago Transit Authority, 7 Ill.2d 172, 130 N.E.2d 172. [Headnote: Public vehicles’ drivers–including busses and taxis–are still bound to highest degree of care toward passengers.]

De Bello v. Checker Cab Company, Inc., 8 Ill.App.3d 401 (1972).

Houston Transit Co. v. Zimmerman, 200 S.W.2d 848 (Texas Court of Civil Appeals, 1947).

Diaz v. Chicago Transit Authority, 174 Ill.App.3d 396 (1988).

Blitz v. Checker Cab Company, Inc., 8 Ill.App.3d 361 (1972).

Shanowat v. Checker Cab Company, Inc., 48 Ill.App.2d 81 (1964). [Headnote: “Where driver of taxicab double-parked in street and discharged children into street, relation of carrier and passengers still existed, and driver accordingly was still bound to exercise highest degree of care.”]

Hibma v. Odegaard, 769 F. 2d 1147 (1985).

Blumenfeld v. Stuppi, 921 F. 2d 116 (1990).

Nilsson v. Checker Cab Company, Inc., 4 Ill.App.3d 718 (1972).

Thomas v. Yellow Cab Co., 344 N.E.2d 505, 508, Ill.App. 1 Dist.(Mar 15, 1976).

Loring v. Yellow Cab Co. 337 N.E.2d 428, 431, Ill.App. 1 Dist. (Oct 22, 1975).

Borus v. Yellow Cab Company et al, 52 Ill.App.3d 194 (1977).

Talbott v. Yellow Cab Company of D.C., 121 A.2d 262 (1956).

First Magnus Financial Corporation v. Dobrowski, 387 F.Supp.2d 786 (2005).

 

(Paralegal) If An Aggressor Is Seriously Injured During A Fight, Who Sues Whom?

0paralegal

Case Study:

Teenagers Dan Daniels and Tom Thomas are in the same high-school class. Neither of them has gone through their growth spurt yet—both are about 5 feet, 5 inches tall and weigh about 140 pounds each. While walking home from a burger place one summer night, they are approached by Randy Roberts, another teenager they recognize as a football player from a rival school. He is about 5 feet, 11 inches tall and weighs well over 200 pounds. Randy begins yelling at Dan and Tom to get out of his neighborhood, screaming that Raiders do not belong there. Raider is Dan and Tom’s high-school mascot. Randy grabs Dan and punches him in the face. Dan tries to return the punch but is unable to get close enough to Randy to do so. Tom is weighing his options when he sees Randy pull something shiny out of his pocket. Thinking it is a knife, Tom rushes Randy, knocking him off his feet. Randy hits the ground head first and has a seizure. Panicking, Tom and Dan call the police. Randy is taken to the hospital and ends up with permanent brain damage. Randy’s family sues Tom and Dan who counter-sue Randy. What claims does each of the teenagers have? What defenses are available to each of them? Who is likely to prevail and why? Is there any criminal liability here? Discuss the intersection between criminal action and tort liability in this case.

Claims of each teenager:

Thomas and Daniels against Roberts: Assault (Roberts acted with intent to cause harm to Daniels and Thomas); intentional infliction of emotional distress (rRoberts was harassing Daniels and Thomas specifically because of their affiliation with a rival school; was a much larger teen who was threatening bodily harm to smaller teens).

Daniels against Roberts: Battery (to Daniels): acted with intent to cause harm and had harmful contact with Daniel’s face when he hit him. “Cause of action for assault and battery can be supported by even minimal touching” (O.C.G.A. § 51-1-14).

Roberts against Thomas: Unintentional battery when shoving Roberts. Not an intentional tort, as injury was accidental. Possibly not a reckless tort, as Thomas behaved in the heat of the moment in self-defense and to defend his friend Daniels. Likely to be a negligent tort, as Thomas’ shove was not pre-planned and not intended to maliciously injure Roberts, merely to protect Daniels and himself from Roberts’ aggression and what Thomas assumed to be Roberts’ pocket knife (Thomas was mistaken, Roberts was not carrying a knife). Roberts’ attorney will still likely try to claim it was a reckless tort, as that is punished more severely than a negligent tort, by saying that shoving Robnerts was an action committed without regard to outcome, but will have to prove satisfactorily that Thomas, as a reasonable person, could have predicted Roberts would fall and suffer a serious injury.

Roberts against Daniels: Unlikely to have any valid claim. Roberts, as aggressor, started the fight and Daniels attempted to respond with a reasonable amount of force to protect himself. Daniels is probably in the clear, as he neither directly contributed to Roberts’ injury nor instigated the conflict.

Defenses:

Thomas, mistakenly believing that Roberts was bringing a knife to a fist fight and shoving him, may be considered to have used unreasonable force (as aggressor Roberts was seriously injured when he fell and hit his head after being shoved), albeit in defense of himself and Daniels. Thomas can argue that he did not intend consciously to injure Roberts, merely to protect himself, and that shoving Roberts was not intentionally acting with conscious disregard or full awareness of potential risks shoving Roberts might have.

Thomas’ and Daniels’ lawyers might examine Georgia’s stance on a Common Law Provocation Mitigation Defense (NOTE: this is usually used with homicide / manslaughter cases, so application is limited here) has two-prong test: 1. Was defendant in fact provoked (a judge must decide, as this is subjective) and 2. Was that provocation such that a reasonable person is liable to act as defendant did in the same situation? Roberts will not be able to rely on this defense, as he was the aggressor. It is highly unlikely that “Thomas and Daniels were believed, correctly, to attend a rival school” will be considered sufficient provocation mitigation for Roberts’ bullying behavior that instigated the fracas and led directly to Roberts being seriously injured.

Robert’s lawyer can cite “Mere fact that defendant did not initiate fight does not necessarily show that he is not guilty of aggravated assault” (Ga. Code, § 26–1302(b)) and “[even assuming that] the victim initiated the “fight” […] the mere fact that the defendant did not initiate the fight does not necessarily show that he was not guilty of aggravated assault…” (Hooks v. State, 138 Ga.App. 539(1), 226 S.E.2d 765).

Roberts’ lawyer(s) may also try to claim the three boys were all in “mutual combat.” “A mutual combat situation arises when both parties are at fault and are willing to fight because of a sudden quarrel. To establish mutual combat, the mutual intention to fight need not be proved directly, but must be inferred by jury from conduct of parties. While mutual combat and self-defense are mutually exclusive by definition, where there is evidence of both the jury, as trier of fact, must select between the two propositions” (Ga. Const. Art. 1, § 1, Par. 11(a)).

Roberts’ lawyer may also try to cite Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403)(1997), where a person voluntarily inserted himself into a fight as a peacemaker, though this dealt more with liability of a property owner who unwittingly had his property used as a site for a dispute. As such, it is not likely to be a compelling argument, even though the peacemaker lost in court. A better case might be Russell v. The State, 152 Ga.App. 693, 263 S.E.2d 689 (Dec. 4, 1979) (Certiorari Denied Jan. 25, 1980), as non-aggressor in a fight was still liable for aggravated assault; note, however, that defendant in Russell did not convince court that his actions were done in self-defense. Roberts’ superior size and instigator-aggressor status is likely to be a mitigating factor for Thomas.

Thomas and Daniels’ lawyer(s) may counter: “[a] defendant is engaged in “mutual combat” with other party, only if there is mutual intent to fight on part of both parties; such intent may be manifested by acts and conduct of parties, as well as by circumstances leading up to and culminating in their combat” (O.C.G.A. § 16-3-21(b)(3)). Roberts was seeking a fight, not Thomas or Daniels.

Thomas and Daniels’ lawyer(s) will also plead self-defense: per Ga. Code Ann., § 16-3-21, “use of force in defense of self or others, including justifiable homicide” can be justified “to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” This does not excuse death or great bodily harm, such as Roberts’ injury, but that presumes that Thomas could reasonably predict that his shove could cause serious damage to Roberts, which is unlikely, or, at least, debatable and possibly is a matter for a judge and/or jury to determine. Daniels’ lawyer(s) could point out that Roberts’ battery of Daniels is not covered under that same code, as Roberts “initially provoked” the fight as the aggressor.

Thomas’ lawyer(s) should cite O.C.G.A., § 16-2-2: “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.  The Georgia Supreme Court has held that ‘Accident’ is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby” (see also: Wilson v. State, 279 Ga. 104, 105(2), 610 S.E.2d 66 (2005)).

None of the teens or their lawyers will be able to drag any parents into the dispute, per Saenz v. Andrus, 195 Ga. App. 431 (April 23, 1990): “Unless common law is changed by statute, parents are not liable in damages for torts of their minor children merely because of parent-child relationship.”

Liability:

Although Roberts is the most severely injured party, and unable to provide his version of events due to his injury, it is unlikely Roberts will prevail in court. If awarded damages from Thomas, they are likely to be symbolic rather than severely punitive.

Daniels, as another injured party, did not directly fight with Roberts but was a victim of assault and battery and, arguably, intentional infliction of emotional distress by Roberts. He is not likely to be found liable for any wrong-doing.

Thomas and Daniels can pursue the injured Roberts for the damages outlined above, but are likely to do so only in response to a suit from Roberts, as a counter-suit.

That all three parties are assumed to be below the age of majority will also influence the cases, if any, as there will have to be a discussion about whether or not any of the parties’ actions should be treated with the same severity as they would be treated if the parties were legally adults. Generally, children and minors involved in disputes are treated somewhat more gently and leniently by the courts, as long as their actions are considered appropriately reasonable for their age(s).

References:

Saenz v. Andrus, 195 Ga.App. 431 (April 23, 1990).

Lau’s Corp. v. Haskins, 261 Ga. 491, 405 SE2d 474 (1991).

Robinson v. Kroger Co., 268 Ga. 735, 736 (1), 493 SE2d 403 (1997).

Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1), 459 SE2d 465 (1995).

Driver v. Leicht, 215 Ga. App. 694, 695, 452 SE2d 165 (1994).

Ga. Code Ann., § 16-3-21.

Ga. Code Ann., § 16–5–23.1.

Ga. Code, § 26–1302(b).

O.C.G.A., § 51-1-14.

O.C.G.A., § 16-3-21(b)(3).

O.C.G.A., § 16-2-2

15 A.L.R. 4th 118

18 Ga. Jur. Criminal Law § 6:71

Lawson v. Bloodsworth, 313 Ga.App. 616 (Jan. 18, 2012). [Assault and battery case. Headnote: “High school student filed suit against his teacher, asserting claim for assault and battery based on alleged incident in which teacher threw a chair at student, which hit his leg.” Student eventually prevailed, was awarded damages for emotional distress upon appeal.]

Simonton v. Sauls, 74 Ga.App. 3 (June 13, 1946). [Assault and battery case. Headnote: “Suit by Jurelle Sauls against Odessa Simonton to recover damages for alleged assault and battery, wherein defendant filed a cross-action for damages for an assault and battery allegedly committed upon the person of defendant by plaintiff.”]

Wilson v. The State, 279 Ga. 104, 105(2), 610 S.E.2d 66 (2005).

Strong v. The State, 264 Ga. 837, 838(2), 452 S.E.2d 97 (1995).

Walden v. The State, 267 Ga. 162, 163(2)(a), 476 S.E.2d 259 (1996).

Russell v. The State, 152 Ga.App. 693, 263 S.E.2d 689 (Dec. 4, 1979) (Certiorari Denied Jan. 25, 1980). [Excerpt: “The Court of Appeals, Shulman, J., held that: (1) mere fact that defendant did not initiate fight did not necessarily show that he was not guilty of aggravated assault…”]

Simmons v. The State, 172 Ga.App. 695 (Nov. 21, 1984).

Frasier v. The State, 295 Ga.App. 596 (Jan. 20, 2009).

Ga. Const. Art. 1, § 1, Par. 11(a).

Sailors et al v. Esmail International, Inc., 217 Ga. App. 811, 459 SE2d 465 (1995). [Assault and battery case. Sailors voluntarily joined an ongoing altercation while legally drunk and engaged in mutual combat while ignoring uninvolved witnesses who urged all the fighting parties to cease and desist, was wounded by a knife, sued owner of property where injury occurred. Sailors lost.]

Hansen et al v. Etheridge et al, 232 Ga. App. 408, 501 SE2d 517 (1998).

George E. Guay III & Robert Cummins, Tort Law for Paralegals, (2010). Retrieved from http://digitalbookshelf.southuniversity.edu/#/books/0558542700/pages/48710147 (January 25, 2013).