Smack that Ass, all Over the Court
Justice of the Peace Gustavo “Gus” Garza has a unique approach to justice.
He ordered the step-father of a 14-year old girl to spank his daughter in his Texan court, or threatened to fine her $500 and charge her for truancy.
And we’re not talking about any symbolic discipline here. The heavy hand of the law has instructed the use of a large and hard wooden paddle.
Mark Sossi, attorney for the family, said in the petition,
The paddles provided by the judge are of such heft and weight that an individual striking an animal with one might be reasonably reported for cruelty to an animal.
Garza claims that 98% of those in his court comply with the request. He’s been on the bench for a year, and has been practicing law for 26 years, including his time as a prosecutor.
The family filed for a temporary injunction that will be heard today at 10 a.m. before 404th District Judge Abel Limas, seeking damages and a court statement denying Garza’s ability to order corporal punishment, which is apparently prohibited by the Los Fresnos Consolidated School District policies. They are also seeking his removal for incompetence and official misconduct.
Law on the Law of Spanking
The issue of spanking in schools was raised in the Supreme Court of Canada decision, Canadian Foundation for Children, Youth and the Law v. Canada (2004), commonly known as Law v. Canada.
The Foundation applied on the violation of ss. 7, 12, and 15(1) of the Charter to strike down s. 43 of the Criminal Code,
Protection of Persons in Authority
43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
Section 7 Analysis
S. 7 of the Charter states,
Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The first part of the test was conceded, that this section does affect the security of person of the children.
To assess if this infringed principles of fundamental justice, the court looked at 3 issues:
1) the principle that the child must be afforded independent procedural rights; (2) the principle that legislation affecting children must be in their best interests; and (3) the principle that criminal legislation must not be vague or overbroad.
Procedural rights were guaranteed by representation by the Crown. Principles of fundamental justice were defined using R. v. Malmo-Levine, [2003] 3 S.C.R. 571,
- Must be a legal principle to provide meaningful content for s. 7, and avoid adjudication of policy matters
- Sufficient consensus that the principle is “vital or fundamental to our societal notion of justice”
- Capable of identified with precision and yield predictable results
Although “best interests of a child” was a legal principle, there failed to be consensus on the issue or precision due to contextual issues.
However, the dissent did state that the phrase “reasonable under the circumstances” was unconstitutionally vague, and violated s. 1, “as proscribed by law.”
The court did state though that both sides agreed,
Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.
Corporal punishment of a teenager using a paddle would therefore be considered unreasonable in the Canadian context.
Ridiculous Warning Signs Coming Soon to a Supermarket Near You
The Canadian Press reports today that a B.C. woman has filed suit after being bitten by a spider while perusing the goods at a grocery store.
The woman, one Jessica Rocha De Mori, claims that two years ago, she was picking through produce at the T & T Supermarket (great store, by the way) in Surrey B.C. when she was viciously attacked by an eight-legged monster. She is seeking damages for injury that she suffered (a severe allergic reaction) as well expenses and economic losses.
The plaintiff’s statement of claim alleges that T & T Supermarket was negligent in not preventing spiders from turning up in the produce, or in the alternative, for not posting a warning sign extolling the dangers of the fruit section.
If this thing isn’t statute-barred for being outside the limitation period, I hope it fails for remoteness. If not, expect to see warning signs cropping up at grocery stores to let us know that the fruit aisle might contain:
spiders, dead flies, fruit, asbestos, little green monsters, sharp pointy things, and any other of the infinite possible things that pose a threat to our health which the supermarket can scarcely do anything about.
Follow-up: SCC tosses “dead fly” appeal
Yesterday I explained the background to the Mustapha v. Culligan of Canada cases. As expected, the Supreme Court issued its decision today. The full text of the lovely (read: short) decision can be be found here: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
In a unanimous decision written by McLachlin CJC, the court threw out the appeal against Culligan. The reasons for judgment differed from those of the Ontario Court of Appeal (2006 CanLII 41807), with the Supreme Court finding that the negligence action failed at the remoteness of damages stage.
Here’s a summary:
Duty of care (para 6): As a manufacturer, Culligan owed a duty of care to the consumers of its products as per Donoghue v. Stevenson, [1932] A.C. 562 (HL).
Standard of care (para 7): The court was a little light on its reasons here, because the issue was not seriously argued after the trial level. The trial judge heard evidence that apparently flies were present in the bottling room and (obviously) could get into the bottles in spite of safeguards implemented by the company. Gross.
The Supreme Court concluded simply that Culligan breached the standard of care expected of it by not ensuring that water intended for consumption would be free of contaminants.
Damages (paras 8-10): The SCC reiterated that minor upset, anxiety, disgust, etc. are not recoverable in tort. However, Mr. Mustapha suffered recognizable and serious psychiatric trauma (namely a major depressive disorder coupled with anxiety and phobia). As such, Mr. Mustapha’s psychological injuries were very serious and sufficiently interfered with his quality of life to be recoverable.
Causation (paras 11-18): This was the crux of the SCC’s judgment:
“in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligans negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do.” (para 18, my emphasis)
The trial judge was mistaken in applying a subjective standard which took into account Mr. Mustapha’s past history, circumstances, and cultural factors.
The chief justice did make one important qualification to the objective standard. At para 17, she writes:
“In those cases where it is proved that the defendant had actual knowledge of the plaintiffs particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiffs injury may have been reasonably foreseeable to the defendant.”
Conclusion (para 20): Mr. Mustapha’s appeal was dismissed with costs.
So there we have it.
“Dead fly in water bottle” case to be decided by Supreme Court tomorrow
One of the more amusing cases from first year Contracts/Torts class concerned a man, Mustapha, who sued Culligan Water after discovering a dead fly in one of its 5-gallon bottles. The facts of the case are sort of like Canada’s version of Donaghue v. Stevenson, [1932] A.C. 562 (HL).
According to the trial decision, (Mustapha v. Culligan of Canada Ltd., 2005 CanLII 11990 (ON S.C.)), Mr. Mustapha kept what can only be described as a ridiculously sanitized house. Both he and his wife were obsessive about cleanliness. He purchased water from Culligan relying on the promise that it was cleaner and healthier than regular water.
When Mr. Mustapha’s wife was opening a new bottle and placing it in the dispenser, she noticed something dark floating in it. Upon closer inspection, she discovered to her horror that it was a dead fly. She immediately vomited. Mr. Mustapha also vomited. This went on for some time.
Mustapha apparently developed a psychiatric illness in response to seeing the fly, and he suffered for months. He would have nightmares involving dead flies. He could not sleep for more than four hours per night. He could not drink water, and he needed therapy before he could take a proper shower. He even lost interest in sex.
Finally, Mr. Mustapha sued.
Despite the trial court’s characterization of Mr. Mustapha’s reaction as “objectively bizarre” (at para 180), he was awarded $342,000 in damages.
Culligan appealed (2006 CanLII 41807), and the Court of Appeal for Ontario reversed the trial decision.
As Blair J.A. explained, the extent of Mr. Mustapha’s psychological trauma was completely out of proportion and therefore could not have been reasonably foreseen by the defendant company (at para. 20):
“The issue of tort law raised on this appeal is whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident the sight of a dead fly in a bottle of consumer water. In my view, the answer to this question is no.”
The test for tort liability set out in Mustapha was summarized at para. 49:
“Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care and, therefore, for liability in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendants careless conduct. That is what reasonable foreseeability means.”
The Court of Appeal overturned Mr. Mustapha’s damage award and ordered him to pay $30,000 in costs to Culligan.
Mustapha then appealed up the chain.
The Supreme Court granted leave in June of last year. It is expected to deliver its judgment tomorrow. This should be interesting.
DU Use in CA Strict Liability Offence
We previously commented on Canadian use of Depleted Uranium (DU) and legal issues related to it.
But DU is making the news again, this time in California.
Lawrence Livermore National Laboratory (LLNL) has received a permit to detonate test weapons that include the use of DU by the Valley Air Pollution Control District (SJVAPCD).
Local citizens have raised concerns.
International Human Rights Attorney Karen Parker was interviewed by Cathy Garger, where she commented:
Q - In a telephone interview, I asked Ms. Parker, with regard to the UN resolution 1997/36, does this also apply to open air explosions and military training firing of Depleted Uranium used outdoors by the Departments of Energy and Defense within the
KAREN PARKER - “Testing was part of the resolution…including stockpiling and trafficking. It’s not actually as clear as actual use in combat, whether the mere presence for instance of a nuclear bomb in your arsenal is a violation and a number of countries have nuclear weapons in their arsenals.”
However, explained Parker, the
Q - Isn’t the explosive testing a violation of humanitarian law?
KAREN PARKER – “It’s not so much a violation of humanitarian law, because the weapon isn’t used in combat. The fact that it is a weapon and could be, and is intended to be used in combat doesn’t make a test of it a combat exercise.”
Q – Okay, so the explosions of DU as “tests” are not considered a combat exercise, and it’s not a violation of humanitarian law. But it’s certainly a harmful substance, is it not?
KAREN PARKER – “Depleted uranium weapons release dangerous substances. And so from that perspective, it becomes what we call a kind of a tort, only because it’s a dangerous substance. It’s a strict liability and the
“And there isn’t any way that you can carry out a Depleted Uranium open air test - or an open air test of weapons containing Depleted Uranium, without it having some effect on a very heavily populated northern
NOTE: Within this
KAREN PARKER - “I just think again there’s no prohibition in our conflict law because they’re not being used in combat; however, there are probably prohibitions in a number of other areas including, of course, human rights but also in environmental… the environmental aspect, which is part of the four-point test so you can have environmental and personal damage - damage to people… that would be the United States in violation of its own law in many, many areas.”
Q- The US in violation of its own law? What law is that?
KAREN PARKER – “Well their Human Rights law… The
“Obviously, environmental laws - both state and federal laws about releasing dangerous substances - the release of dangerous substances is, in a sense, automatically a violation of what we call domestic law or tort law. It’s a strict liability violation, meaning there’s no defense. It’s not like it’s negligence. It’s not like the
It’s hazardous stuff. It’s strict liability - It means that there is no defense. It’s as if the
Q - Are there any other types of violation of
KAREN PARKER – “Under human rights law, you can’t do it in the first place. It’s not just a question of who pays for the damage. And one of the reasons the
Q - In my final question, I asked Ms. Parker, with regard to the 1994 Draft Declaration of Principles on Human Rights and the Environment, if what I had read was true – that is, had she worked on this document? And, I asked, does this Declaration also apply for US citizens too, with regard to Livermore Laboratories’ Site 300 radioactive explosions?
KAREN PARKER - “I did indeed have a hand in the draft principles. Any UN documents holds equally for anyone in any country. That said, these are “draft” principles and did not “go up” to the General Assembly. Still, they are the “principles” the UN Human Rights Council’s Special Rapporteur on Toxics uses. So they are operational. The question is, are they binding? But the underlying Human Rights law on which they are based is binding. So you can argue the underlying law, as expressed in the Draft Principles.”
It’s great that American citizens have valid concerns about the use of toxic substances in their backyard.
But shouldn’t more be done to prevent governments from using it in conflicts overseas as well?
h/t The Rag Blog
Spitzer Scandal Allegedly Violating Copyright Laws
Don D. Buchwald of Kelley, Drye & Warren LLP, counsel for the call-girl involved in the Gov. Spitzer scandal, is standing up for his client’s rights.
He’s not defending against allegations of prostitution or the like.
He’s claiming that photos of Alexandra Dupre found in the media are violating copyright laws.
Photos such as the one on the right were liberally reproduced from her MySpace page by media sources in print and television.
But Buchwald claims that neither permission or royalties were granted for their use.
According to the MySpace policy, he might have grounds for a claim,
Content Posted.
- MySpace.com may delete any Content that in the sole judgment of MySpace.com violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. MySpace.com assumes no responsibility for monitoring the MySpace Services for inappropriate Content or conduct. If at any time MySpace.com chooses, in its sole discretion, to monitor the MySpace Services, MySpace.com nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
Major civil suits have yet to be filed for the use of media use of photos found on the net that retain copyright.
Appropriation of personality is an established grounds for a claim in the U.S., as we’ve previously discussed.
Some commentators are discussing the cost of her personal privacy being offset by potential payoffs from celebrity. Her music downloads have skyrocketed, and there is talk of a book or movie.
But the settlement from royalties off the use of her personal photos could be the best payoff yet.
Expert Opinion
We polled some of the experts, and here is what they thought (available only on our site).
David Nocilly, a patent and IP lawyer with Bond, Schoeneck & King, PLLC in Syracuse, NY, and Adjunct Professor at Syracuse University, said,
Although the owner of the copyright in photographs, which is the photographer and not the person pictured unless an assignment has been made, has the right to control the makng of copies, there are certain permissible uses under U.S. copyright laws. For example, the “fair use” of a work for news or commentary purposes may not constitute copyright infringement.
Some U.S. states have laws to protect the right to privacy, such as the use of someone’s name, image, or likeness for commerical or advertising purposes. These laws usually have exceptions for news or commentary similar to those for copyrights.
But Greg Curcio, an independent lawyer and screen writer in New York, New York, said,
The lawyer should have a good leg to stand on. Photo’s taken outside of a public figure are in the public domain (Jacqueline Onassis case).
These photo’s were taken before she was famous/infamous.
Several states have passed specific laws on the subject. Caslon Analytics state,
Special ‘rights’ legislation seeks to prevent unauthorised commercial use of an individual’s name, likeness (including silhouette, voice or signature) or other recognisable aspect of that person’s persona. The individual - and in some instances the individual’s heirs - gain an exclusive right to license use of the persona for commercial purposes. In the US the notion dates from a judge’s broad statement in Haelen Laboratories v Topps Chewing Gum, 1953 litigation involving baseball cards.
T.D. Ruth, an entertainment lawyer with Lassiter, Tidwell, Davis, Keller & Hogan PLLC from Nashville, TN, recommended William Patry’s post on the subject. Ruth, who blogs on Digital Copyright News, summarized the issue,
In short, it’s unlikely she has a copyright in several of these photos, as they are instead with the photographer. They are snapshots, and I highly doubt that she considered arranging a work for hire or assignment for such photos. Further, as previously mentioned, no statutory damages or attorney fees without registration prior to infringing activity, thus only actual damages, which are probably minimal.
Even if she did have a copyright claim, it is entirely likely that the new organizations’ use would be deemed fair.
Drew Carson, Ph.D., wrote in,
Interesting question on IP. I’m no lawyer but I’ve read some books on IP applications in test development, and will touch on some themes related to the case you describe.
First, there are two main areas of IP right this relates to: copyright and right of publicity/privacy. I’ll deal with both in turn.
For copyright, as David Nocilly notes, it’s the person who owns (or has control over) the facets of the copyright at issue that can bring charges of violation of a specific copyright. And as Nocilly notes, copyright gets subdivided into various facets, each of which can be assigned. Second, someone can bring legal action against another party even if no formal copyright is filed, but you can only collect damages if the copyright was formally registered. So one question is: were copyrights for the images ever formally registered? Third: Curcio references fair use as putting something into the public domain, but I believe he misspeaks. I believe that fair use interpretation doesn’t put a copyrighted item in the public domain as much as protects use of a copyrighted item so long as it falls under the category of fair use. US court decisions tend to work hard (traditionally, at least) to protect individual creative rights associated with copyright; however, to the degree that copyrighted materials bounce up directly to first ammendment rights, at least related to the actions of politicians, courts tend to go the fair use route. The argument that a call girl caught up in a Mann Act investigation involving a sitting governor would seem, on the face of it, to fall onto the side of fair use, and the public’s right to know, and thus be protected by the first ammendment. Curcio’s suggestion that rights protecting images of deceased politician’s wife’s subsequent images would seem to me to be apples and oranges. But then that’s what we have courts for. But my guess is that courts would decide in favor of first ammendment, because publication of the images seemed to contribute to the sitting politician’s decision to resign, this in reaction to public outcry that followed publication of the images in question. If that’s not first ammendment in action, I don’t know what is.
On to right of publicity. These rights are connected with right of privacy, as Nocilly notes. They are especially strong for people who are not famous and might have reasonable expectation to remain that way. If you’re a big deal celebrity or politician, well, you pays your money and generally take your chances when you do something stupid and the public finds out. But you need to be more careful around spreading the stories of the little guy. Well, strikes me that the model lost some of her little guy standing when she started her trysts with the sitting governor of New York. In doing so, a reasonable person might believe that she is moving in the realm of celebrities and politicians. Thus, she might have had a claim for objecting to her image being slapped across all media before she hung with the gov, but she lost that claim the moment the moment she crossed that line. But again, the law would need to be interpreted in relation to the states involved.
Another issue you didn’t raise: let’s speculate for the moment that the business activity in which she was engaged and that caused the photographs to be taken in the first instance falls under the category of RICO. The who operation sounds pretty RICO-like to me, particularly if the clients of the group turn out to be doing any favors for the organization. If so, wouldn’t the government be able to seize all property associated with that criminal enterprise? And wouldn’t that include any copyrights in question, if they were owned by the criminal enterprise?
Wouldn’t it be cool if law school students in IP courses have to argue this in their classrooms?
Todd Sullivan, Managing Attorney at Hayes Soloway PC in Boston, agreed with most of the responses,
Fair use can generally be relied upon by the news media to avoid copyright claims. Even portions of the entertainment media (The Daily Show, The Tonight Show, etc.) can claim the exemption as part of news commentary, I believe. If we assume that she knows the photographer and can get the photographer to assign his rights or enforce them, I don’t expect she will be collecting anything.
With regards to the rights to publicity (or, more aptly, rights from publicity), she gives that up when she becomes newsworthy. Her pictures and name have appeared in many news stories, ipso facto she is newsworthy.
An interesting separate question comes with pages from MySpace. By publishing your photos to the world do you waive some sort of right (separate from copyright) to keep others from showing them to the world? You can’t publish an idea and claim a trade secret in the same. Can you publish yourself and claim a right of privacy in the contents of the publication? The question above does not indicate a complaint as to publicity/privacy rights, but it is an interesting question.
Sean McBeth, Developer at Global Data Consultants, LLC, said,
In the specific case of the Spitzer scandal, use of the call-girl’s photos in new articles is considered “Fair Use” under current Copyright law. As previously stated, she doesn’t own the copyright, either. By default, copyright is assigned to the photographer. In fact, most contracts between photographers, clients, and models are primarily concerned with compensating the photographer for transfering copyright. There really is no discussion on the matter, she neither owns the copyright nor can dictate the use of the photos for the purposes of editorial work.
McBeth also suggested we deal with copyright issues for celebrities the same way we do all other copyright issues,
By framing the question in the context of the Internet, you are making a fundamentally false assumption — that interaction on the Internet is somehow different than all other human interaction. It’s just all talk! While the Internet has changed *how* we communicate en masse, it does not change the fact that we are communicating person-to-person.
The Internet is the most significant advancement in communication since *the printing press*. The printing press revolutionized communication by changing the topography of communication.
The Internet changes the topography of communication again, unlike any other innovation in media since the printing press. Radio, motion pictures, television, all capitalize on the same 1-to-Many topography as the printing press. Only the Internet has expanded the topography to Many-to-Many.
Before the printing press, communication was limited to 1-on-1 correspondance. Dedicated monks spent lifetimes copying tomes by hand, letter for letter, in the sanctified (and inaccesible) halls of the monastery. Knowledge was limited to the elite few and such a rarified commodity that a concept of copyright was unnecessary. It just wasn’t physically possible to copy without the concent of the owner!
With the printing press, we achieved a reliable, efficient means of 1-to-many correspondance. Knowledge became accessible, and it is here that we see the true age of enlightenment of mankind. When people could access knowledge without having to become an impoverished monk, people could grow and create the modern, industrialized world. However, this came at a price, as the ease of copying made it too easy to short-change the original producer of the work. This is where copyright law came into play, to protect the content producer.
With the Internet, we have changed the dynamic again, we now have Many-to-Many communication, something we have never had before. We are in the beginnings of a new era. Suddenly, anyone may become a producer of content, and people may collaberate on content creation more freely. But that is the only change. The fact that content is being consumed by many people is still the same.
Whereas copyright law was introduced to protect producers from nefarious consumers, in the age of the Internet nothing has changed from the perspective of the producer. All that we have changed is who can become content producers. If anything, this suggests that copyright law should be broadened to reconsider who owns copyright of material, specifically in regards to collaberative works, but does not suggest anything should be changed about how that right should be protected.
Matt Digesti of HRD Law in San Diego said,
…the analysis is fact-sensitive and cannot be made through recitation of broad copyright consepts and rules.
I must agree with William Patry’s post and conclude that the controlling “fair use” determination under these facts is whether the reproduction of the pictures is a “transformation of the work into news” or whether the reproduction of the pictures is a based merely on the “newsworthiness of the works themselves.” Nunez v. Caribbean International News Corp, 235 F.3d 18 (1st Cir. 2000).
In Nunez, the reproduction of pictures was considered a transformation of the work into news for the following reason: the photos were originally taken for a modeling portfolio and the subject of the news article was whether the model could sufficiently represent Puerto Rico as Miss Universe with such pictures accessible to the public. As such, the reproduction of the pictures furthered the topic of the article and in essence, transformed the photographs into news. Put differently, the photographs were reproduced “not just to entice the buying public, but to place its news article in context” and inform the public.
Here, the Post could cite the Nunez case and argue that the use of the photographs were not reproduced merely to entice the buying public, but to place the news article in context and inform the public of the identity of the call-girl. Consequently, the reproduction of the pictures transformed the photographs into news and the fair use exception under the first factor in section 107 most likely applies.
Susan Singleton of Singletons in Harrow, UK, one of the leaders in IP/IT in their country said,
As in the US the subject of the photograph doesn’t own the copyright unless that is agreed. For example Ms Dupre when she was 18 allegedly took part in some filming on a bus (the videos, many hours of them that are now available to download for a fee by the company that was about to pay her when they realised they already had this material from years before). She would have signed something when she took part in that and that will be that (unless she didn’t know what she was doing or was under age or whatever). Other photos - again depends what was agreed at the time.
In the UK we had a recent case concerning the child of JK Rowling, the author. Our courts held you can photograph anyone in the street and publish it and that will not breach any privacy, data protection or human rights laws, whereas if you sneak into their private house and take pictures even though you own the copyright you are unlikely to be free to print them. (We also have some fair use rights here too).
I would doubt she owned the copyright in any of the photos being used but those who do may be able to try to recover some royalties.
Bearly Liable for Damages
We’ve previously mused on the status of animals before the law.
But the subject beared (sic) it’s ugly head in Macedonia this month.
A court found a wild bear guilty for damages of US$3,500 for damaging beehives. The bear was convicted in absence, and now has a criminal record.
It gets worse.
The bear is still at large. Since the bear did not have an owner, and was part of an endangered species, the fine was actually levied against the government.
The hivekeeper had managed to scare the bear away for one month, using a generator to power lights and loud Serbian music, and incurred the damages only once the generator lost power.
Rory McGillis, a first-year law student at UBC, asked,
If they find this bear can they sell him to a circus or put him to work to pay off the debt, or are their workhouse laws against that?
Thanks to Rory McGillis of UBC Law for the heads up.
N.B. Sues Big Tobacco
The Attorney General of New Brunswick, T.J. Burke, announced last week a suit will be launched by the province against 14 tobacco companies.
The claim? People are dying prematurely in the province due to smoking, which costs the province health dollars. Grounds have been presented of alleged misrepresentation of the hazards of tobacco smoke.
Health Minister Mike Murphy said,
The suit is on behalf of people whose health has been harmed by tobacco products, families who have lost loved ones to tobacco-related illness, and taxpayers who have borne the added costs to the health-care system
Legislative Basis
New Brunswick follows a previous suit in 2001 by B.C. on similar ground, which has yet to be resolved. Rothmans, Inc. states that the suit was not unexpected,
The legal action has been brought pursuant to the Tobacco Damages and Health Care Costs Recovery Act (New Brunswick) which was recently proclaimed in force.
The new Act states,
2(1) Her Majesty in right of the Province has a direct and distinct action against a manufacturer to recover the cost of health care benefits caused or contributed to by a tobacco-related wrong…
2(4) In an action under subsection (1), Her Majesty in right of the Province may recover the cost of health care benefits
(a) for particular individual insured persons, or
(b) on an aggregate basis, for a population of insured persons as a result of exposure to a type of tobacco product.
The two-year limitation period stipulated in s. 6 would have expired this June, making the suit more than likely within the next few months.
A Money Grab, or Good Social Policy?
Tobacco manufacturers are disputing the claims. Imperial Tobacco states that the government earns 18 times more in tobacco taxes than the entire industry combined, and that this is motivated by nothing more than greed.
Imperial Tobacco President and CEO, Benjamin Kemball, said,
It is hypocritical that governments, like New Brunswick, turn around and sue a legal industry that they oversee and license while allowing an illegal tobacco industry to flourish…This lawsuit is a waste of taxpayers’ money and will never result in the monetary windfall the New Brunswick government hopes for.
But the province is specifically seeking damages to subsidize health care costs, which are skyrocketing across the country, in no small part due to the rise of tobacco-related illnesses. The epidemiological information cited in s. 5 of the Act could prove a substantial causal link.
Should manufacturers be held liable in this manner?
In the end, the lawyers always win.
Kemball predicts that the suit will be unsuccessful, and take many years to resolve.
But he does concede that someone will benefit from the entire ordeal - the lawyers.
Is scarcity of resources a valid legal defence?
Barbara Sibbald, Associate Editor, comments in the Canadian Medical Association Journal.
What is the Standard of Care?
We previously discussed the case of Dr. Smith, the pathologist whose errors have wrongfully convicted many.
The defence that Dr. Smith relied upon was that it was an honest error in judgement. There is no liability for error in judgement under tort law.
Establishing the standard of care is first examined by looking at what a reasonable person would do in all the same circumstances of the case [in the same profession, of course].
In Stewart v. Pettie, [1995] 1 S.C.R. 131 the Supreme Court said,
The “reasonable person” of negligence law was described by Laidlaw J.A. in this way in Arland v. Taylor, [1955] O.R. 131 (C.A.), at p. 142:
He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard “adopted in the community by persons of ordinary intelligence and prudence.”
Four hypothetical factors are then examined:
- Probability of injury arising from defendant’s conduct
- Likelihood of severity of injury
- Balanced against cost of avoiding risk
- And social utility of defendant’s conduct
The first two variables are usually weighed more than the last two variables.
Finally, based on specific facts of case with 4 factor test, the court evaluates if the defendant breached standard of care by trier of fact.
Learned Hand Formula
Another way of expressing the calculation is the Learned Hand Formula.
In US. v. Carroll Towing Co. 159 F.2d 169, Judge Learned Hand expressed a formula previously created in T.J. Hooper 60 F.2d 737 (2d Cir.):
B < p × L
Negligence in this calculation is determined when the Burden (B) is less than the Probability (P) of harm, multiplied by the degree of Loss (L).
But the formula is not a strictly accurate mathematical calcution, and courts continue to apply context to cases.
Prime Minister Sues for Libel
It’s the latest fad these days, suing for libel (and good business for lawyers).
But the most recent suit is by the Prime Minister himself, directed at Stephane Dion and the Liberal leadership.
The dispute is over the Chuck Cadman scandal.
Wife of the late Independent MP alleges that the Conservatives attempt to bribe him on a crucial vote. A tape over the issue initially appears to lend some credence to the allegations.
MPs have called for RCMP investigations and ethics inquiries, and the allegations have been repeated in the House.
The RCMP confirmed it will be investigating a potential violation of s. 119 of the Criminal Code:
Corruption and Disobedience
Bribery of judicial officers, etc.
119. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who
(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or
(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.
Updates
Jason Cherniak has an excellent post on the subject: What is a libel notice?
Liability for Dangerous Driving
Anil K. Kapoor of The Court has an excellent piece on the recent R v. Beatty decision, expounding on the distinction between criminal and civil liability in accidents.
Mr. Beatty was charged with three counts of dangerous driving causing death. He had been working in the sun all day and was driving home on a two way, two-lane highway. It was a sunny, hot, summer day. Those who were traveling behind Mr. Beatty’s car noted nothing remarkable about his driving until, without any precipitating event, he suddenly veered into oncoming traffic and struck a vehicle, killing its three occupants.
Read the post in full here.
Lessons from Potential Blogging Libel Suit in Canada
Mark Evans, a former journalist for the National Post and technology blogger, reported on a libel suit launched by Toronto lawyer and political activist, Warren Kinsella.
The freedom of expression is protected under s. 2 of the Charter,
Fundamental freedoms 2. Everyone has the following fundamental freedoms:
- …b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Blogs in particular are often used to fully express this freedom in Canada, but often in some very irresponsible and inflammatory ways..
The rights in s. 2 are not absolute. Under s. 1 limits are mentioned,
Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Certain infringements of fundamental freedoms are therefore justified under s. 1. Speech and expression in particular have been limited in R v. Keegstra and R v. Butler.
In general, the courts tend to maintain the greatest restrictions on expression when dealing with vulnerable populations and those subjectively at risk of fear. They are less restrictive towards commercial settings, and most permissive in political expression.
But some types of political expression still transcend these rights, libel being one of them. Kinsela asserted that a political blogger involves him a political scandal, and is suing him for $600,000.
Evans summaries some wise words of advice to the world of blogging, often characterized by no-holes-barred attitudes,
I guess we should be careful about the next time we think of flaming someone.
Although the suit was now resolved, the lessons from this case should be applied to other often irresponsible bloggers who continue libel activity today.
Defending Liebeck v. McDonald’s
The scope of negligence in tort law expands and contracts over time.
One of the landmark cases in product liability, Liebeck v. McDonald’s Restaurants, has received much criticism as a frivolous lawsuit, and has been the basis for many calls of tort reform.
Even Seinfeld mocks the case, with Kramer’s lawyer reprimanding him for using a balm that heals his coffee burn, thereby making the lawsuit void.
Stella Liebeck ordered coffee in a McDonald’s drive-through, spilled it on herself while driving, and received third-degree burns. She successfully sued McDonald’s as a result, with an award of $640,000.
Similar cases with other proprietors have been observed since.
But David Brannen defends the decision, explaining that the jury in the case was upset at the defendant’s conduct. For example, Liebeck offered to settle for her medical bills ($20,000), but they offered her only $800.
Brannen also states that over 700 reported similar cases previously gave the defendant ample opportunity to rectify the problem.
Although they subsequently lowered the temperature of their coffee, some claim it was an incomplete victory tainted by lobbyists:
In a sense, this case wasn’t won by the plaintiff or lost by the defence. It was won by those lobbying for tort reform. They won a public relations campaign by misleading the public and unfairly characterizing certain details of this case. As a result, Ms. Liebeck was further victimized by jokes that made a mockery of her injuries and the harmful actions of McDonald’s.
Which raises further questions as to whether justice is subject to public relations campaigns and perceptions of the public.
Tort liability is adjusted over time to societal expectations, but in an age of mass media this could suggest that a legal defence may have less to do with the law than with access to the public.
Sue Your Drug Dealer for OD’ing
Sandra Bergen, a 19 year old from Biggar, Sask., had a heart attack in 2004 that left her in a comma for 11 days.
She still suffers from fatigue and a heart condition that makes childbearing risky.
The cause?
Overdose on crystal methamphetamine.
She’s now suing the person who sold her the drugs, because he was acting,
for the purpose of making money but was also for the purpose of intentionally inflicting physical and mental suffering…”
She claims that the man, a former childhood friend from kindergarden, intentionally sold her the drugs to get her addicted. She’s not happy with the toy he shared in adulthood, or satisfied with the punishment afforded in the criminal courts.
Instead, she has decided to seek a civil remedy.
Berger has stated,
It’s a precedent-setting lawsuit and I’m really happy. Now drug dealers can be held liable in that they could lose all their assets and all the money they make from selling drugs.
The Drug Dealers’ Union of Saskatchewan was unavailable for comment.
Thanks to Ahmed Hussen of UofO Law for the heads up.