No Duty to Warn In Red Sox Nation
In Costa v. The Boston Red Sox, the plaintiff professed marked ignorance of the sport of baseball at her deposition. Except for one occasion when she sat in the bleachers with her father when she was eight years old, she had never attended a baseball game prior to the night of the accident. She had not seen baseball on television except while changing channels, and did not watch sports reports or read about sports in the newspaper. Before the evening of her injury, she understood a foul ball to be one that simply rolled off to the side after being hit. As atypical as this may seem in "Red Sox Nation," the Court held that the plaintiff had no subjective understanding of the risks posed by an errant foul ball.
Evidence was presented that foul ball injuries occur with some regularity at Fenway Park. A spreadsheet produced by the defendant, summarizing five years of data during the 1990's, showed that the annual number of injuries sustained by patrons from foul balls ranged from thirty-six to fifty-three. According to a professor of engineering retained by the plaintiff, the plaintiff had virtually no time to react to the ball that came her way. He determined that the distance from the plaintiff's seat to home plate was 141 feet. He determined that the speed of the baseball at the time it struck the plaintiff was ninety miles per hour. He concluded the plaintiff had no more than 1.07 seconds from the time the ball was hit to take evasive action.
It was more than fifty years since a case like the plaintiff's had been considered on appeal in Massachusetts. In Shaw v. Boston Am. League Baseball Co., the Supreme Judicial Court held, as matter of law, that a baseball club was not liable to a spectator who was injured by a foul ball. Shaw rested on the doctrine of assumption of risk and therefore turned on the plaintiff's subjective knowledge and appreciation of danger. Assumption of risk was abolished as an affirmative defense in 1974, and the Appeals Court stated here that Costa must be taken as ignorant of the danger of being hit by a foul ball. The Court found that even someone of limited personal experience with the sport of baseball reasonably may be assumed to know that a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction. The Court held that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands.
Multiple Claims Don't Add Up To Single Occurrence
Between 1966 and 1986, asbestos containing steam turbines manufactured by GE were installed at more than 22,000 sites throughout the United States. Appalachian Ins. Co. v. General Elec. Co., 8 N.Y. 3d 162 (N.Y. App. 2007). This eventually resulted in GE's inclusion as a defendant in asbestos personal injury cases, but usually for only a small amount of money. During 1966-1986, GE maintained general liability insurance with Electric Mutual Liability Insurance Company (EMLICO). The EMLICO policies had a $5 million per-occurrence limit but did not incorporate an aggregate liability limit. Occurrence was defined as "an accident, event, happening or continuous or repeated exposure to conditions which unintentionally results in injury or damage during the policy period." GE also maintained excess insurance under which liability did not attach for any occurrence until the limits of the underlying policy had been paid for that occurrence. When the number of asbestos claims increased substantially, GE and EMLICO eventually agreed that the claims would be treated as one occurrence, passing the $ 5 million limit and allowing GE to draw on its excess coverage. The excess insurers sued, arguing that the claims should be treated separately. The Court of Appeals analyzed the question in light of its decision in Johnson Corp. v. Indemnity Ins. Co., where it had discussed three approaches other courts had considered. The approaches were: (1) the sole proximate cause approach, focusing on whether the losses could be traced to a single, originating cause; (2) the one-accident-per-person approach, which depends on the number of individual claimants seeking recovery; and (3) and the unfortunate event approach, which is based not solely on the cause, but on the nature of the incident giving rise to damages. At issue was whether the incidents giving rise to loss had a close temporal and spatial relationship and whether they could be viewed as part of the same causal continuum, a domino-theory type situation. The court decided that based on the language of the policy (which was written several years after the Johnson case), the unfortunate event approach governed GE's claims. The court noted that the incident that gave rise to the liability was each individual plaintiff's "repeated or continuous" exposure to asbestos, not GE's failure to warn. The court then noted that the circumstances of the plaintiffs' exposures shared "few if any" commonalities. As such, the court held that the lawsuits were separate occurrences and could not be amalgamated to reach the excess threshold.
Attorney Client Privilege on Employer's Computer - Mass.
A recent Massachusetts decision highlights, once again, the importance of having a comprehensive employee manual. In TransOcean Capital, Inc. v. Fortin, the Massachusetts Superior Court considered whether an employee, e-mailing his lawyer on his work computer, could assert the attorney client privilege to prevent his employer from reviewing the e-mails he sent. 2006 Mass. Super. LEXIS 504. The Company argued that, as the e-mails were sent on its computer, the employee could not reasonably claim those communications to have been made in confidence, as would have been necessary for the privilege to attach. The court disagreed, finding that the Company had not adequately warned the employee that his e-mails were subject to corporate review. The judge noted that the Company did not have its own employee manual setting forth a review policy. Instead, the Company had contracted out for various human resources services, including an employee handbook. The employee handbook was maintained on the contract company's website and did, indeed, contain a policy stating that all e-mails sent from Company computers were subject to review. That warning was insufficient, however, where the Company had neither explicitly nor implicitly adopted the handbook as its own and had not informed employees of the manual's existence.
