Sanders v. Alger (CA2 6/16/16)

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THIS OPINION HAS BEEN VACATED IN LARGE PART

The court holds that a patient has a duty to care for his caregivers.

Defendant was a 70-year-old man who used a wheelchair. The Department of Economic Security provided in-home care services to him through an independent contractor who was, in the Department’s infinite wisdom, a sixty-year-old woman. The result was that when he fell getting out of the wheelchair she couldn’t hold him; he fell on her, injuring her. She sued him. The trial court granted him summary judgment; she appealed.

The Court of Appeals reverses. Defendant argued the firefighter’s rule – a rescuer doing his duty has no claim. The court holds that the rule applies only to “traditional first responders.” That’s because people who cause fires shouldn’t be afraid of calling for help since fires spread; whereas, apparently, its fine for people who can’t get out of  wheelchairs to be afraid of calling for help since they’re the only ones who will suffer. And its because the firefighter’s rule rests on a policy decision to free from liability people who negligently cause fires (you think that’s not what it says? Read paragraph 9) whereas falls often happen without negligence and so Plaintiff knew there was a risk of falls and so she can sue for one (ditto re paragraph 9). And its because firefighters’ training, equipment, and compensation – including provisions for their care when injured – are given them “in return for” the removal of their right to sue (paragraph 10). This last reason at least has the advantage of applying also to “traditional first responders” other than firefighters, though we frankly hadn’t known before that they get training, pay, and benefits as the result of a quirk in the law of torts.

(Oh, by the way – the state did give Plaintiff training and does have a program to compensate caregivers for injuries and this plaintiff’s injuries are covered by that program. But the record was “sparse” about how those things compare to what is given to firefighters and to other caregivers. Regardless of who had the burden of going forward on that, the court does not tell us what standard of comparison it would apply if the record were fuller.)

The court then holds that Defendant owed a duty to Plaintiff. Although Plaintiff contracted to provide care to Defendant, a contract clause relieving a party from liability amounts to an assumption of risk and so that must go to the jury and so there must, apparently, be a duty to give rise to a defense to duty. (There wasn’t such a clause here and Defendant wasn’t a party to the contract; perhaps it was the fault of the briefs, and not of the court, that this tort analysis is based – but for one brief footnote – on contract and that the discussion of duty never mentions the legal basis of duty.) And besides, parties cannot in their contracts regulate their duties to each other. The court presumably means this in a very restricted sense, as this will otherwise come as a surprise to many parties who think they have done just that, or who think that their contract contains, for example, an arbitration clause, or that the arbitrators – despite what they, the parties, or the AAA might say – are not bound by the strict provisions of the common law.

Another reason for imposing a duty of care is that if there weren’t one then a defendant wouldn’t be liable for gross negligence. The court does not explain how the degree of negligence can affect whether a duty – and therefore negligence – exist in the first place.

Defendant also moved for summary judgment on the facts. The trial court, since it ruled as a matter of law, didn’t reach that. The Court of Appeals for some reason discusses the facts before announcing that the subject is for remand.

(Opinion: Sanders v. Alger)

Lee v. ING Investment Mgt. (CA1 6/16/16)

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This opinion is published to make a point about Rule 68; expanding the holding a bit, we’ll also use it to make a point about the practice. The parties in this contract case, though, mostly argued about attorneys’ fees – that each was really the winner and the other was the loser and, anyway, didn’t play fair, and etc., etc.; you’ve heard it all before and so has the court, which didn’t try to add anything new to the law, so we’ll ignore that part.

ING fired Lee and refused to pay money due him under a severance agreement. Lee sued for breach of that agreement. He included a claim for treble damages under 23-355; the trial court gave ING partial summary judgment on it. ING then made an OJ on all claims except attorney fees; Lee accepted it. He then appealed the treble-damages ruling.

The Court of Appeals affirms, holding that the issue was no longer appealable. A judgment entered on an OJ is on the merits; its “a final resolution of all claims at issue.”  Lee argued that the trial court had somehow (the details aren’t given) promised to “’preserve all parties’ rights of appeal.” But the court can’t change those rights; as the trial judge later explained, “I can’t confer something I don’t have.”

And that’s our moral; it may seem – and it is – simplistic but lawyers demonstrate every day that they either don’t know it or hope others don’t: you can’t preserve a right you don’t have. How often do they purport to “reserve the right” to do something? There are times – rarely – when that’s appropriate. But its normally a useless announcement of ignorance – ignorance of whether the right exists and, if it does, of whether and how to preserve it.  

(Opinion: Lee v. IMG)

Southwest Barricades v. Traffic Management (CA1 6/9/16)

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The court holds that “Rule 60(c) cannot be used to set aside a compulsory arbitration award.”

Traffic lost a compulsory-arbitration case brought by Southwest and then blew the appeal date. It tried moving to set aside the award under Rule 60(c), arguing that figuring the appeal time wrongly constituted excusable neglect and also that Southwest withheld evidence. The trial court granted the motion. Southwest appealed – but from an unsigned minute entry, which it didn’t get reduced to judgment, so the appeal was dismissed. It also hadn’t reduced the award to judgment and so, back in the trial court, it moved to do so (an interesting decision, given that its position – more on which below – rested on the fact that the award had never been made a judgment); the trial judge, having already set the award aside, denied the motion. There followed a second arbitration, an appeal from that, and a jury trial, which Traffic won. (This, by the way, over a $10,000 claim. It all makes you proud to be a lawyer, yes?) Southwest appealed.

It argued, as it had wanted to in its practice-run appeal, that using Rule 60 to set aside an arbitration award was wrong. The Court of Appeals agrees. Rule 60 applies to “final judgments, orders, or proceedings,” not to “interlocutory judgments.” “[T]he arbitration award was not final  because it did not dispose of any claims between the parties.” That doesn’t happen until judgment is entered on the award. “An arbitrator does not have the power to dispose of the case.” Southwest argued that the passage of time makes an award final, citing cases under which an award itself could be appealed in cases of excusable neglect. But that applied only to a version of rule 76 that hasn’t existed since 2007.

The court reverses the Rule 60(c) ruling and vacates everything that happened after that.

The parties apparently raised with the court a number of procedural issues that could arise on remand. The court lists them but appropriately, or at least prudently, declines to rule. Arise they will, though. This is a contract case; its now all about who will have liability for the attorneys’ fees when the music stops, so both sides have every incentive to double down.

(Opinion: Southwest Barricades v. Traffic Management)