The Facts and The Holding
Hughes v. Pair (Sept. 10, 2007, B194307, Second District)
23 p. opinion (19 p. majority, 4 p. dissent)
UPDATE: REVIEW GRANTED (The Supreme Court granted review on Nov. 28, 2007) (S157197)
This is a problematic decision. I don't like to criticize the Court of Appeal, but in this decision I think that it missed a crucial distinction between employment sexual harassment actions under the FEHA and Title VII and the action created by Civil Code section 51.9. It appears that the strongest argument against using the FEHA interpretation of sexual harassment for 51.9 actions slipped past everyone (although there is a glimpse of it in the dissent). As the title of this post suggests, I am going to make this case the subject of more than one post. (I do not intend to post serially on this case but to intersperse additional posts on this case with posts on other cases) Right now I'm just going to recap the facts and the holding.
Plaintiff Suzan Hughes's minor son is the beneficiary of a huge trust containing the estate of his deceased father. Suzan (who is neither a trustee nor a beneficiary) has an extremely bad relationship with the three trustees. Suzan has brought seven lawsuits against the trust, including unsuccessful attempts to remove the trustees.
In this action, Suzan sued trustee Chrisopher Pair for sexual harassment under 51.9 and for intentional infliction of emotional distress. Pair brought a successful motion for summary judgment and Suzan appealed.
Civil Code 51.9 permits a plaintiff to bring an action for sexual harassment against a professional if the plaintiff is unable to easily terminate the relationship and the defendant professional has made sexual advances or engaged in conduct of a sexual nature that was unwelcome, and pervasive or severe. (The plaintiff must prove damages.)
The undisputed facts for the summary judgment motion were that on June 16, 2005 the trustees considered a request from Suzan for reimbursement for two month's rental of a vacation home and decided to reimburse Suzan for only one month's rent. Suzan learned of the trustees' unanimous decision before June 27, 2005.
On June 27, two things happened. The first was a telephone call from Pair to Suzan, to whom he had not spoken in three years. Pair invited Suzan and her son to join him and his son at a King Tut exhibit that evening. When Suzan complained about the trustees' decision to only reimburse her for one month's rent Pair said "you know how much I love Alex and you in that special way." About the rental he said that could be persuaded to "give more time if you would be nice to me." In response to Suzan's comment that talking that way was crazy Pair said "how crazy do you want to get?" Pair gave Suzan his home number and told her to call him if she changed her mind. She did not accept the King Tut invitation.
The second thing was a brief encounter at the King Tut exhibit. Suzan and her son went to the exhibit independently of Pair. They encountered Pair and his son in the hallway leading to the exhibit. Pair told Suzan "I'm going to get you on your knees and f*** you one way or another." He said this in earshot of Suzan's son (14) and his own son (9), he then said "hi" to Suzan's son and walked away.
The legal issue on appeal was whether the term "pervasive or severe" has the same meaning in section 51.9 as it does in the FEHA and Title VII. The Court of Appeal held that it did. Having reached that holding the Court of Appeal concluded that cases deciding whether or not behavior was severe enough to constitute sexual harassment under the FEHA or Title VII could be used to decide if behavior was severe enough to constitute sexual harassment under section 51.9. The Court reviewed decisions that had determined whether or not behavior was severe enough to support a sexual harassment action under the FEHA or Title VII. The behavior alleged by Suzan did not meet the standard of severe set by those cases. As a result, the Court affirmed the judgment.
Justice Kriegler wrote the decision. Justice Mosk concurred. Justice Armstrong wrote a dissenting opinion.
Next time on Hughes v. Pair: Why FEHA and Title VII case law should not be used to make decisions under section 51.9
Showing posts with label summary judgment. Show all posts
Showing posts with label summary judgment. Show all posts
Sunday, September 30, 2007
Saturday, September 22, 2007
Primary Assumption of the Risk Doctrine Applies to Noncontact Sports
A Golfer has No Duty to Protect Another Player From Ordinary Negligence
Shin v. Ahn (Aug. 30, 2007, S146114, Supreme Court)
24 p. opinion
In Shin the California Supreme Court addresses a question that it explicitly left open in its seminal primary assumption of the risk decision Knight v. Jewett (1992) 4 Cal.4th 296. Does the doctrine of primary assumption of the risk apply to noncontact sports such as golfing? The Supreme Court holds that it does.
The primary assumption of the risk doctrine states that a participant in a sport has assumed the particular risks inherent in a sport by choosing to participate. The test is not a subjective one, but an objective one. It does not matter what the plaintiff knows about the risks of the sport. The question is, what is the fundamental nature of the sport? The defendant's actions are examined in relationship to the sport to determine whether or not the defendant owes a duty to protect a plaintiff from the particular risk of harm.
A defendant who is participating in a sport with a plaintiff has no liability for ordinary negligence. The defendant is only liable for intentionally injuring the plaintiff or engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
The Shin decision, a 6-1 decision, is a strong reaffirmation of the primary assumption of the risk doctrine. It is also a solid, unequivocal holding that the doctrine applies to noncontact sports. The decision cites a number of sister state decision concerning golf injuries to demonstrate the wide acceptance of this principle.
The decision also explains the relationship between primary assumption of the risk and secondary assumption of the risk. Primary assumption of the risk determines whether or not the defendant had a duty to the plaintiff. Secondary assumption of the risk is merely an alternative phrase that can be used to describe comparative negligence. It affects the determination of the amount of damages a plaintiff is entitled to recover by allocating fault between the plaintiff and the defendant.
The Supreme Court upheld the Court of Appeal's decision that this action could not be determined upon summary judgment although it reached that conclusion through a different line of reasoning. The evidence submitted in support of the defendant's motion for summary judgment left open a triable fact of whether the defendant had acted recklessly or not. The case was remanded with directions that it should proceeded under the primary assumption of the risk doctrine.
Justice Corrigan wrote the opinion. Chief Justice George and Justices Baxter, Werdegar, Chin and Moreno concurred.
Justice Kennard dissented.
In her dissent Justice Kennard referred to the primary assumption of the risk doctrine as the "so-called 'no-duty-for-sports rule.'" She has disagreed with the doctrine ever since it was adopted in Knight and continues to do so.
Comment: If an individual has been injured badly enough, while engaging in a sport or recreational activity, to warrant consideration of a personal injury action, the first step in the analysis should be a determination of whether or not the primary assumption of the risk doctrine will apply. The doctrine, when it does apply, acts as an absolute bar to recovery and makes any further analysis unnecessary.
Shin v. Ahn (Aug. 30, 2007, S146114, Supreme Court)
24 p. opinion
In Shin the California Supreme Court addresses a question that it explicitly left open in its seminal primary assumption of the risk decision Knight v. Jewett (1992) 4 Cal.4th 296. Does the doctrine of primary assumption of the risk apply to noncontact sports such as golfing? The Supreme Court holds that it does.
The primary assumption of the risk doctrine states that a participant in a sport has assumed the particular risks inherent in a sport by choosing to participate. The test is not a subjective one, but an objective one. It does not matter what the plaintiff knows about the risks of the sport. The question is, what is the fundamental nature of the sport? The defendant's actions are examined in relationship to the sport to determine whether or not the defendant owes a duty to protect a plaintiff from the particular risk of harm.
A defendant who is participating in a sport with a plaintiff has no liability for ordinary negligence. The defendant is only liable for intentionally injuring the plaintiff or engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
The Shin decision, a 6-1 decision, is a strong reaffirmation of the primary assumption of the risk doctrine. It is also a solid, unequivocal holding that the doctrine applies to noncontact sports. The decision cites a number of sister state decision concerning golf injuries to demonstrate the wide acceptance of this principle.
The decision also explains the relationship between primary assumption of the risk and secondary assumption of the risk. Primary assumption of the risk determines whether or not the defendant had a duty to the plaintiff. Secondary assumption of the risk is merely an alternative phrase that can be used to describe comparative negligence. It affects the determination of the amount of damages a plaintiff is entitled to recover by allocating fault between the plaintiff and the defendant.
The Supreme Court upheld the Court of Appeal's decision that this action could not be determined upon summary judgment although it reached that conclusion through a different line of reasoning. The evidence submitted in support of the defendant's motion for summary judgment left open a triable fact of whether the defendant had acted recklessly or not. The case was remanded with directions that it should proceeded under the primary assumption of the risk doctrine.
Justice Corrigan wrote the opinion. Chief Justice George and Justices Baxter, Werdegar, Chin and Moreno concurred.
Justice Kennard dissented.
In her dissent Justice Kennard referred to the primary assumption of the risk doctrine as the "so-called 'no-duty-for-sports rule.'" She has disagreed with the doctrine ever since it was adopted in Knight and continues to do so.
Comment: If an individual has been injured badly enough, while engaging in a sport or recreational activity, to warrant consideration of a personal injury action, the first step in the analysis should be a determination of whether or not the primary assumption of the risk doctrine will apply. The doctrine, when it does apply, acts as an absolute bar to recovery and makes any further analysis unnecessary.
Sunday, September 9, 2007
Exclusion Clause Was Not Clear and Plain Enough to Defeat the Reasonable Expecations of the Insured
An Insurance Company That Had Not Provided Notice to the Insured Could Not Rely Upon an Unusually Broad Interpretation of an Exclusion Clause
Essex Insurance Company v. City of Bakersfield (Aug. 27, 2007, F051091, Fifth District)
19 p. opinion
In this insurance coverage action the Court of Appeal reversed the summary judgment granted to Essex Insurance Company in a declaratory relief action. The Court of Appeal held that the very broad interpretations which Essex applied to the auto exclusions in its policy defeated the reasonable expectations of the insured. Because the exclusions were not plain and clear enough to defeat those reasonable expectations, Essex had a duty to defend its insured, the City of Bakersfield, in a third party action.
The City bought a special events CGL policy from Essex to cover a fundraising event for D.A.R.E. that the City was holding on private property. During the event an access point to the parking lot on the private property was designated as "exit only." Cars exiting at that exit made right turns into the eastbound lane of State Route 119. A City police officer who was monitoring that area of the parking lot saw a white van merging onto the right shoulder from the eastbound lane. He waved the van along. Guillermo Mena was driving a tractor-trailer that was behind the white van in the eastbound lane. Unable to determine what action the white van was taking, Mena applied his brakes. As a result, the tractor-trailer jackknifed and travelled into the westbound lane where it hit a car being driven west by Gloria Navarro.
Navarro sued the City alleging that the City had caused a dangerous condition during the D.A.R.E. event that contributed to the accident in which Navarro was seriously injured. The City tendered the defense and indemnification of the Navarro lawsuit to Essex. Essex rejected the tender and brought this action for declaratory relief.
The Essex CGL policy contained a modified auto exclusion which stated: "This insurance does not apply to bodily injury or property damage arising out of, caused by, or contributed to by the ownership, non-ownership, maintenance, use or entrustment to others of any auto." The word "non-ownership" had been substituted for the phrase "owned or operated by or rented to or loaned to any insured." Essex contended that the City's non-ownership of the vehicles involved in the accident caused the Navarro action to be excluded from coverage.
The Court of Appeal held that this interpretation of the auto exclusion created an unusual and unfair limitation of coverage that defeated the insured's reasonable expectations. In the absence of evidence that Essex brought its broad interpretations to the attention of the insured, the policy came within the rule established by the California Supreme Court that provisions limiting coverage that are not conspicuous, plain and clear cannot defeat an insured's reasonable expectations of coverage as provided by the insuring clause.
No reasonable insured would have expected that the policy would protect it from liability for negligently creating a dangerous condition of public property in all cases except where the dangerous condition led to an automobile accident involving vehicles that had no connection to the insured.
In addition, the Essex interpretation created an unusual distinction between the auto exclusion and the other insurance exclusions in the policy. The other exclusions excluded coverage for acts done by City employees in the scope of employment, by the City as employer, and certain events involving spectators and third parties that occurred on the premises of the event. When read in conjunction with these other exclusions, the auto exclusion was clearly meant to apply to cases involving the acts or omissions of the insured or its agents.
Essex's interpretation also did not comport with the common understanding of CGL policies. CGL policies have a very broad excluding clause but also contain numerous exclusions. The exclusions fall into two categories. The first are risks that the insurer does not want to cover under any circumstance (war, intentional injury and environmental pollution, for example). The second category of exclusions are for risks usually covered by other insurance policies. The auto exclusion excludes risks that would normally be covered by automobile liability insurance. However, there is no kind of automobile policy that the City could have bought to cover it for risks arising from an automobile accident where the City had no connection to the automobiles involved in the accident.
The Essex auto exclusions were not clear and plain enough to defeat the City's reasonable expectation that it had insurance for the negligent creation of a dangerous condition. The Navarro lawsuit therefore fell within the potential coverage of the policy and Essex had an obligation to provide the City with a defense.
Justice Hill wrote the opinion. Presiding Justice Vartabedian and Justice Wiseman concurred.
Comment: This opinion is the source of the quote of the week for the week of August 27th on the Civil Litigation Quote of the Week blog.
Essex Insurance Company v. City of Bakersfield (Aug. 27, 2007, F051091, Fifth District)
19 p. opinion
In this insurance coverage action the Court of Appeal reversed the summary judgment granted to Essex Insurance Company in a declaratory relief action. The Court of Appeal held that the very broad interpretations which Essex applied to the auto exclusions in its policy defeated the reasonable expectations of the insured. Because the exclusions were not plain and clear enough to defeat those reasonable expectations, Essex had a duty to defend its insured, the City of Bakersfield, in a third party action.
The City bought a special events CGL policy from Essex to cover a fundraising event for D.A.R.E. that the City was holding on private property. During the event an access point to the parking lot on the private property was designated as "exit only." Cars exiting at that exit made right turns into the eastbound lane of State Route 119. A City police officer who was monitoring that area of the parking lot saw a white van merging onto the right shoulder from the eastbound lane. He waved the van along. Guillermo Mena was driving a tractor-trailer that was behind the white van in the eastbound lane. Unable to determine what action the white van was taking, Mena applied his brakes. As a result, the tractor-trailer jackknifed and travelled into the westbound lane where it hit a car being driven west by Gloria Navarro.
Navarro sued the City alleging that the City had caused a dangerous condition during the D.A.R.E. event that contributed to the accident in which Navarro was seriously injured. The City tendered the defense and indemnification of the Navarro lawsuit to Essex. Essex rejected the tender and brought this action for declaratory relief.
The Essex CGL policy contained a modified auto exclusion which stated: "This insurance does not apply to bodily injury or property damage arising out of, caused by, or contributed to by the ownership, non-ownership, maintenance, use or entrustment to others of any auto." The word "non-ownership" had been substituted for the phrase "owned or operated by or rented to or loaned to any insured." Essex contended that the City's non-ownership of the vehicles involved in the accident caused the Navarro action to be excluded from coverage.
The Court of Appeal held that this interpretation of the auto exclusion created an unusual and unfair limitation of coverage that defeated the insured's reasonable expectations. In the absence of evidence that Essex brought its broad interpretations to the attention of the insured, the policy came within the rule established by the California Supreme Court that provisions limiting coverage that are not conspicuous, plain and clear cannot defeat an insured's reasonable expectations of coverage as provided by the insuring clause.
No reasonable insured would have expected that the policy would protect it from liability for negligently creating a dangerous condition of public property in all cases except where the dangerous condition led to an automobile accident involving vehicles that had no connection to the insured.
In addition, the Essex interpretation created an unusual distinction between the auto exclusion and the other insurance exclusions in the policy. The other exclusions excluded coverage for acts done by City employees in the scope of employment, by the City as employer, and certain events involving spectators and third parties that occurred on the premises of the event. When read in conjunction with these other exclusions, the auto exclusion was clearly meant to apply to cases involving the acts or omissions of the insured or its agents.
Essex's interpretation also did not comport with the common understanding of CGL policies. CGL policies have a very broad excluding clause but also contain numerous exclusions. The exclusions fall into two categories. The first are risks that the insurer does not want to cover under any circumstance (war, intentional injury and environmental pollution, for example). The second category of exclusions are for risks usually covered by other insurance policies. The auto exclusion excludes risks that would normally be covered by automobile liability insurance. However, there is no kind of automobile policy that the City could have bought to cover it for risks arising from an automobile accident where the City had no connection to the automobiles involved in the accident.
The Essex auto exclusions were not clear and plain enough to defeat the City's reasonable expectation that it had insurance for the negligent creation of a dangerous condition. The Navarro lawsuit therefore fell within the potential coverage of the policy and Essex had an obligation to provide the City with a defense.
Justice Hill wrote the opinion. Presiding Justice Vartabedian and Justice Wiseman concurred.
Comment: This opinion is the source of the quote of the week for the week of August 27th on the Civil Litigation Quote of the Week blog.
Friday, September 7, 2007
Component Manufacturer's Defense Not Established for Summary Judgment
The Component Manufacturer's Defense Bars a Strict Products Liability Claim, But the Manufacturer Had Not Met the Standard for Summary Judgment
Gonzalez v. Autoliv Asp, Inc. (Aug. 27, 2007, B188829, Second Appellate District, Division Eight)
15 page opinion
Summary judgment for an airbag manufacturer of a strict products liability cause of action was reversed because the manufacturer had not established through undisputed facts that it was entitled to the component manufacturer's defense as a matter of law. A component manufacturer who had no role in designing the finished product and who supplied a nondefective component is not liable for a defective product. If there is no defect in the component when it leaves the component manufacturer's factory, the component manufacturer is not strictly liable for a defect that arises in the integrated product.
Presiding Justice Cooper wrote the opinion. Justices Rubin and Boland concurred.
Gonzalez v. Autoliv Asp, Inc. (Aug. 27, 2007, B188829, Second Appellate District, Division Eight)
15 page opinion
Summary judgment for an airbag manufacturer of a strict products liability cause of action was reversed because the manufacturer had not established through undisputed facts that it was entitled to the component manufacturer's defense as a matter of law. A component manufacturer who had no role in designing the finished product and who supplied a nondefective component is not liable for a defective product. If there is no defect in the component when it leaves the component manufacturer's factory, the component manufacturer is not strictly liable for a defect that arises in the integrated product.
Presiding Justice Cooper wrote the opinion. Justices Rubin and Boland concurred.
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