Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.

Remedies For Injury To Or Wrongful Death Of A Spouse Under Iowa Law

Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.”  Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other.  Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.”  If a spouse dies, the surviving spouse may recover  the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate  the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s  age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

The “Fall” Season — Liability For Fallen Leaves That Create A Dangerous Property Condition

Ah, Fall.  In a few weeks it’ll be here.  Cool dry weather and radiant leaves.  Leaves that fall to the ground and temporarily create a colorful sea to wade through.  Leaves that’ll pile up and cover uneven sidewalks.  Leaves that’ll quickly becomes brown and turn slippery when it rains, making stairs and walkways treacherous.

Everyone knows that you can be sued for injuries or wrongful death caused by ice or snow on your property, even when the ice or snow has occurred naturally.  So what stops someone from suing after they slip or trip on your leaf-covered sidewalk or stairs?  The answer?  Absolutely nothing.

You might laugh at first, but think about it for a moment.  Leaves, like any other condition on your property (natural or unnatural), can constitute a dangerous condition that exposes you to liability if someone gets hurt.  In the eyes of the law, there’s no distinction between leaves and snow, ice, a snarling dog, a rotted stairway handrail, a rotting plank on a deck, or water spraying from a hose.  People who have been injured by such conditions have successfully sued, and there’s no reason to think that Iowa’s courts would treat leaves any differently.  And leaves, at least on sidewalks and other paved public rights-of-way, probably fall within most municipalities’ laws for clearing such areas, same as snow accumulations.

Granted, “leaf” claims are rare and usually fail.  Just like with snow and ice cases, the conclusion of many judges and juries is that leaves are an obvious danger that people confront at their own risk.  If the risk cannot be avoided (say the leaf-covered stairs are the only way out of the building), courts often require people to proceed with care for their own safety.

But people in Iowa occasionally do successfully sue for injuries incurred after tripping and falling on a sidewalk.  For example, a few years ago the Iowa Court of Appeals upheld a large jury verdict for a woman who tripped over uneven sidewalk and was seriously injured in the resulting fall.  The adjoining property owner was blamed for not leveling the sidewalk or marking the raised area.  The key point is that the concrete was bare and the raised area was an inch or so higher than portion the woman had just crossed.  In other words, it was plain as day that the sidewalk had a significant raised area.  Can you imagine how much easier it would’ve been to win that case had the sidewalk been covered in leaves, thus hiding the raised area?

Another area to be careful about is unlit or poorly lit leaf-covered stairs, especially if the leaves are wet and slippery.  Wet leaves can be as slippery as ice.  It will be harder to defend the case if someone slips on wet leaves that can’t readily be seen.

In summary, be careful to keep your sidewalk, stairs, and walkways clear of leaves.  And if you happen to be hurt because of a condition caused by fallen leaves, please call me and I’ll be happy to see if I can help out.

When Lassie Attacks — Dog Bite Liability In Iowa

Personal injury matters involving dogs are fairly common.  They can be divided into two main categories.  The first encompasses cases involving dog bites, claw scratches, or other aspects of a dog attack.  The second category of dog liability concerns motor vehicle accidents and motorcycle crashes caused by roaming dogs.

For dog attacks, Iowa Code 351.28 states that “[t]he owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming, or killing a domestic animal, or the dog is attacking or attempting to bite a person, except when the party damaged is doing an unlawful act, directly contributing to the injury. ”  That is a “strict liability” statute, meaning that the dog’s owner is automatically liable for injuries that fall within the statute’s terms without the need to prove the owner’s negligence or knowledge of the dog’s vicious or dangerous propensities.  This statute also creates the possibility of an action for personal injuries against a dog’s owner if a person is hurt while trying to escape a dog attack, for example a person who flees from a dog attack into a street and is hit by a car.

In some circumstances, people other than a dog’s owner may be liable for injuries sustained during an attack by a dog.  One example is people who are possessing, “keeping,” or “harboring” a dog for someone else.  That person may be liable for negligence if someone is hurt during an attack by the dog and it is proved that that person possessed, kept, or harbored a dog on the property that was known or should have been known to have dangerous tendencies.   Thus, while legal owners are strictly liable under Iowa Code 351.28, individuals possessing,  keeping, or harboring the dog on their property could also be held liable for damages if it can be proven that they knew or should have known that the dog was dangerous or potentially dangerous based upon prior experiences.

Another example of non-owner liability is landlords.  A landlord that allows a dog known to be aggressive to roam around the common areas of leased property may liable for negligence if that dog attacks someone in the common area, even if the landlord is not harboring or keeping the dog and has no control over the dog.  Another possible avenue of landlord liability is when the landlord harbors or controls a dog owned by someone else and knows or should know that the dog is dangerous.  In that instance, the landlord is liable for dog attack injuries that occur anywhere on the premises, even outside of common areas.

The other main category of dog-related liability concerns motor vehicle accidents caused by dogs that are running free.  Dog owners have a duty to control their dogs.  A dog that gets free and, for example, runs into a street and causes an accident, may be the basis for a negligence claim against the dog’s owner or the person responsible for keeping or harboring the dog.

Please feel free to contact me if you’d like to investigate the possibility of a personal injury or motor vehicle accident claim involving a dog.  I’ll be happy to meet with you and discuss the matter.

When Can You Recover Emotional Distress Damages In A Negligence Case?

Recovery of damages for emotional distress or mental anguish in motor vehicle accident, motorcycle crash, dog bite, defective product, or negligence cases is not automatic.  The right to seek emotional distress damages depends first on whether you’ve suffered a physical injury as a result of the negligence.  If you have, then you always have an opportunity to claim money for emotional distress.  But the analysis is a little more complicated when you have a negligence case that does not involve a physical injury to you.

Iowa’s courts have recognized an exception to the physical injury requirement rule when the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm.  Courts evaluate whether the relationship was so coupled with matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, and it should be known to the parties from the nature of the obligation that such suffering will result from its breach.

There must be both a close nexus to the action at issue and extremely emotional circumstances to permit the recovery of emotional distress damages in a negligence case that does not involve physical injuries.  The emotional distress must naturally ensue from the negligence.  So far Iowa has permitted emotional distress damages without physical injury in medical malpractice actions, in the performance of a funeral contract, in the negligent delivery of a telegram announcing the death of a close relative, and in legal malpractice actions involving immigration attorneys who engage in illegitimate attempts to gain U.S. residency for their clients.

When Do You Have A Legal Duty Assist Others?

The Des Moines Register recently ran a story on Chad Naumann, who died on the floor of an Urbandale hotel room after consuming a mixture of drugs and alcohol.  The story was about the fact that other people were in that hotel room and basically allowed Chad to die.  In fact, witnesses told police that the man who lived in that hotel room actually instructed that no one should call 911.  Here’s a link to the story:

http://www.desmoinesregister.com/article/20120122/NEWS/301220045/Rood-Chad-Nauman-lay-dying-no-one-helped-him

The general rule under Iowa’s civil law is that there is no duty to render aid to another, no matter how helpless or endangered that person might be.  But in limited circumstances negligence law imposes a duty to assist another, for example, after a motorcycle crash, dog attack or a car accident.  Those circumstances usually involve some action on your part towards the endangered person, like creating the dangerous situation or condition or inadequately rendering or discontinuing aid once you’ve voluntarily begun to help.  Failure to render aid when legally required to do so can lead to liability for personal injuries or wrongful death.  Most of the time though, if you’re not a cause of the person’s trouble and take no steps to help that person, you owe them nothing and can leave them to fend for themselves.

The Iowa Supreme Court extensively discussed this exact question in the 2000 case of Garofalo v. Lambda Chi Alpha Fraternity.  That lawsuit involved a fraternity member, Matt Garofalo, at the University of Iowa who died after excessive alcohol consumption.  Garofalo’s family sued the fraternity organization and the students the family believed allowed their son to die.

The trial dismissed most of the defendants because it determined that none of them had an obligation to protect Garofalo.  Some of the students were accused of failing to care for Garofalo once he became intoxicated, helpless, and unable to adequately protect himself, especially after he was unconscious and lying on a couch.

In concluding that the other students, with the exception of one, owed Garofalo no duty of care, the Iowa Supreme Court stated that there is no general duty to take charge of persons who are helpless and cannot adequately aid or protect themselves.  In other words, the students who did not contribute to Garofalo’s intoxicated condition, did not make his situation any worse, and did nothing to try to care for him were not legally obligated to assist him in any manner.  But once aid is attempted, even if you have no initial duty to assist, you have to use reasonable care for the safety of the other person and cannot discontinue the aid or protection if it will leave the other person in a worse position than when you began to help.

So if you come upon a car crash and see bodies lying on the side of the road, you have no obligation to stop and help and can just keep on going.  But if you do stop to lend assistance, you’ve assumed a duty to help and protect those people lying on the side of the road.  Now, once you’ve stopped and tried to help, that implicates another legal doctrine, the “good samaritan” law, that provides protection for injuries you cause while trying to render aid, for example while performing CPR.  I’ll discuss that topic another time.

Interestingly, the trial court in the Garofalo case did not dismiss a claim against a student, Chad Diehl, for failing to help.  Diehl furnished alcohol to Garofalo in violation of state law (Garofalo was underage) and there were questions about Diehl’s conduct once Garofalo became intoxicated and passed out.  Diehl did the most to check on and monitor Garfalo.  By doing so, he arguably “took charge” of Garofalo and assumed responsibility for Garofalo’s safety.  Diehl also contributed to Garfalo’s dangerous situation by illegally giving him alcohol.  For those reasons the trial court ruled that the jury would have to decide whether Diehl was negligent in his care of Garofalo.

Eggshell Or Aggravation? An Important Concept For Personal Injury Cases

Sometimes personal injury or wrongful death claimants have a “preexisting condition.”  That’s lawyer-speak that means you’ve been hurt before.  The impact, if any, of that preexisting condition on your legal rights is analyzed under the related theories of “eggshell plaintiff” and “aggravation of injury.”

Simply put, if you’re seeking money for physical injuries, perhaps in a car accident, motorcycle crash, dog bite, or police brutality case, the eggshell theory is good and the aggravation concept is bad.  Flip that statement if you’re defending a personal injury claim or happen to be an insurance company.

An eggshell plaintiff is someone who, because of an earlier injury, is more susceptible to re-injury of the same area of the body than a normal person would be.  On the other hand, the aggravation theory applies if a person has an ongoing injury that is aggravated by a second injury-causing event, which then amplifies or aggravates the symptoms of the original, preexisitng injury.

The key distinction between the eggshell and aggravation theories is that an eggshell plaintiff has completely healed by the time of the injury-causing event while an aggravation plaintiff has not completely healed and instead has ongoing problems because of an existing injury.  Under Iowa law, defendants take their victims as they get them, so if an “eggshell” plaintiff gets hurt worse than a normal person would have, that’s the defendant’s problem and the defendant has to deal with the greater damages exposure because of the misfortune of hurting someone who was more susceptible to injury.

Here’s an example of the two theories:  Say you broke your arm as a child.  It heals as best it can, but the bone is never as strong as it was before you broke it.  Decades later you’re in a car crash and break the same arm, an injury that wouldn’t have happened to most folks but happened to you because of the break years earlier when you were a kid.  That’s an eggshell plaintiff situation and the defendant is responsible for 100% of the injuries to your arm, even though many people who had not previously broken their arm would not have suffered a broken arm in the collision.  Remember, defendants take their victims as they get them, and that includes earlier injuries that make a victim more susceptible to injury in the present day.

Conversely, if you’d broken that arm just two weeks before the car crash and the bones were still healing, but the fracture was worsened by the collision, that would be an aggravation situation and the defendant would only be liable for the amount of injuries and damages that occurred because of the aggravation of the injury during the crash.  That is an aggravation, not eggshell, situation because you had not completely healed at the time of the collision.

You can see why the eggshell vs. aggravation distinction is heavily contested in cases that involve a plaintiff with an earlier injury.  The plaintiff wants to prove the eggshell theory; the defendant needs to argue that it’s actually an aggravation of injury situation.  This is frequently an issue that gets fought between competing medical experts.

Please feel free to contact me if you have a personal injury or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Iowa Supreme Court Rules That You Can Get Away With Falsifying Evidence If You Make It Look Like An Innocent Mistake

Last week, the Iowa Supreme Court decided Loehr v. Mettille, in which the court was confronted with a falsification of evidence issue.

Although Loehr was a construction defect and debt collection practices case. its lessons about altering evidence also apply to a personal injury or wrongful death suit, products liability claim, motor vehicle accident claim, dog bite claim, employment or labor law claim, business practices or contract law claim, nuisance law claim, or insurance law claim.  One of the questions raised in front of the jury was the extent to which the parties had spoken about the particulars of their arrangement.  The defendant’s telephone records were offered as evidence during his jury testimony regarding his discussions with the plaintiffs.

Before the case was submitted to the jury, the plaintiff’s counsel noticed that the telephone record was actually several pages pulled from different records and appeared to be a fabrication.  The plaintiff’s attorney pointed that out during his closing argument, but the jury returned a verdict for the defendant on the plaintiffs’ claims.

The plaintiffs requested a new trial based on the defendant’s submission of fake evidence in front of the jury.  The trial court held a hearing during which the defendant, his officer manager, and his trial attorney testified about the fabricated telephone records.  The defendant conceded that his “telephone records” were not real.  He maintained though that the fabricated evidence was an innocent mistake and not a deliberate fabrication.  The trial court disagreed and ordered a new trial because it concluded that the defendant had intentionally tried to mislead the jury.

On appeal the Iowa Supreme Court reversed the trial court.  It concluded that the fake evidence was the result of carelessness, not dishonesty.  The court also determined that, even if the defendant had intentionally fabricated evidence, the plaintiffs suffered no prejudice and the presentation of their case was not harmed as a result.

I don’t agree with the Iowa Supreme Court on this one.  Sure, it was a close call on whether this evidence was intentionally fabricated, and the trial court could have gone either way in granting a new trial.  But the Iowa Supreme Court’s decision to overturn the trial court’s ruling seems to contradict two general principles of appellate law.  One is that trial courts’ decisions on those “close calls” should rarely be reversed on appeal and only if the trial court really messed up.  This trial judge’s decision was not so far off-base that reversal was justified.

Another rule is that the trial court is in the best position to view the trial and the witnesses and judge their credibility, unlike the appellate judges who review nothing but a paper transcript and the exhibits.  Therefore trial decisions about witness credibility and the impact of evidence are usually left alone on appeal.  The trial court in Loehr obviously did not find the defendant’s testimony about the false telephone records credible and must have believed that the fake evidence prejudiced the plaintiffs’ case.  The Iowa Supreme Court should have deferred to the trial court’s better vantage point in those regards and left the new trial decision in place.

Iowa Supreme Court Upholds 127 Year-Old Rule That Estates Are Not Responsible For Punitive Damages

The Iowa Supreme Court issued a decision today that again addressed the question of whether an estate is liable for punitive damages based on actions of the deceased that occurred before death.  This ruling could apply to a personal injury or wrongful death suit, motor vehicle accident claim, dog bite claim, construction defect claim, business practices or contract law claim, or insurance law claim.

The case is In The Matter of the Estate of Johnny Vajgrt.  Here’s the link to the decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20110805/10-1088.pdf

Iowa hasn’t allowed punitive damages claims against estates since 1884.  That rule is premised on the idea that, since punitive damages are intended to punish, they serve no purpose once the person to be punished is dead.  Only compensatory damages can be recovered against an estate.

A dissent was offered by Justice Hecht.  I agree with his position that, since punitive damages are also intended to deter other people from engaging in the same or similar conduct, foreclosing punitive damages just because someone has died makes no sense.  That person may no longer care about being punished, but a punitive damages award against that person’s estate may serve as a warning to others.