In celebration of Thanksgiving, I give you our annual Turkey Torts of a few potential and actual lawsuits from this holiday. From deep-fried Turkeys to salmonella salads, the holiday gives personal injury lawyers a great deal to be thankful for.
IN RE JEAN KASPER (as yet unfiled 2009)
This year, we have a curious product liability and negligence allegation. When Lisa Blair’s mother, Jean Kasper, died, she wanted to carry part of her mother with her. She consulted with a funeral home on the use of heart-shaped lockets for carrying the ashes. She filled identical lockets for her seven daughters and stepdaughters. She alleges that she dropped off the lockets to be sealed and tested by the funeral home.
At Thanksgiving dinner, Blair noticed that the mashed potatoes had small flecks in them, but continued to eat. After consuming most of the potatoes, she looked down and realize that her mother’s ashes had fallen into the mashed potatoes and that she had consumed them. She also discovered that the lockets on her daughters and stepdaughters had also leaked into their food.
Cresmount funeral home will not discuss the allegations. Blair could allege an assortment of torts from negligence to negligent infliction of emotional distress. If the funeral home represented that the lockets were sealed, it might be able to survive a motion to dismiss. There is also the possibility of a products claim. However, these lockets were not made for this purchase and this is not likely a case for foreseeable misuse against the manufacturer.
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APONTE v. CASTOR
155 Ohio App. 3d 553 (2003)
Guests can bring potential liability for alleged attractive nuisances found during a Thanksgiving dinner. At least that is what Michael and Deborah Castor discovered. They invited their niece, Teresa Aponte and her daugher Erica (age 7) to share a Thanksgiving feast. According to the court, “[f]ollowing dinner, accompanied by her cousin, Erica went outside and crawled under/through an electric wire fence that enclosed appellees’ horse paddock area. Erica was subsequently kicked in the face by appellees’ horse, sustaining injury.”
The niece sued her uncle and aunt. The question was Erica’s status as trespasser or an invitee. The case also explored the meaning of an attractive nuisance.
The court held as follows:
In this case, it is undisputed that Erica was invited over for Thanksgiving dinner and that she did not obtain permission from appellees or any other adult to exit the house or visit the horse penned in the paddock. Moreover, it is uncontested that Erica was never permitted by appellees to roam freely in “any part of the subject property without both parental supervision and permission.” Upon a thorough review of the record, and finding no genuine issues of material fact, we find that Erica was only invited to appellees’ home for Thanksgiving dinner and was not invited to freely explore the property. Accordingly, we find that once Erica left the house and entered the horse paddock area, she exceeded the scope of appellees’ invitation and became a trespasser or a licensee on appellees’ property.
Normally, a landowner would only owe a trespasser or licensee the duty to refrain from wanton, willful or reckless conduct which is likely to injure the licensee or trespasser. . . .However, the Ohio Supreme Court has held that the amount of care required of a landowner to discharge a duty owed to a child of tender years, who is exposed to danger on the landowner’s property, is greater than that required to discharge a duty to an adult exposed to the same danger. Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 247 N.E.2d 732, paragraph one of the syllabus; and Bennett v. Stanley (2001), 92 Ohio St.3d 35, 39, 2001 Ohio 128, 748 N.E.2d 41. The rationale for this rule is that HN7″‘Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter ***. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore, the greater precaution should be taken, where children are exposed to them.'” Di Gildo at 127, citing 39 Ohio Jurisprudence 2d 512, Negligence, Section 21. “Even child trespassers are accorded special protection in Ohio tort law.” Bennett, 92 Ohio St.3d at 40.
In recognizing that “children are entitled to a greater level of protection than adults,” the Ohio Supreme Court in Bennett adopted the attractive nuisance doctrine, contained in Restatement of the Law 2d, Torts (1965), Section 339 . Bennett set forth
the attractive nuisance doctrine as follows:
“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
“(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.”
In determining a landowner’s duty to a child, Bennett held that “whether an apparatus or a condition of property is involved, the key element should be whether there is a foreseeable, ‘unreasonable risk of death or serious bodily harm to *** children.'” Id. at 42, citing Restatement, Section 339(b). However, “even when a landowner is found to have an attractive nuisance on his or her land, the landowner is left merely with the burden of acting with ordinary care” and “does not automatically become liable for any injury a child trespasser may suffer on that land.” Id.
. . . Appellant argues that appellees’ horse created an attractive nuisance and, as such, appellees owed Erica the duty of ordinary care. We, however, find no authority in Ohio law which establishes that an animal is “an artificial condition” which invokes the doctrine of attractive nuisance. Accordingly, we find that the attractive nuisance doctrine is not applicable in this case. Nevertheless, based upon the holdings and rationale in Bennett and Di Gildo, we find that “children of tender years, and youthful persons” are generally entitled to a degree of care commensurate with their inability to foresee and avoid dangers, even when trespassing.
In considering whether appellees breached their duty to Erica, we must first consider whether it was foreseeable to appellees that Erica would trespass into the horse paddock area while on their property. Appellant argues that it was foreseeable that Erica, a child guest at Thanksgiving dinner, would wander out to the horse paddock. We, however, find that the undisputed evidence is to the contrary.
First, neither on the day in question, nor during earlier visits, was Erica ever given unfettered access to appellees’ property; rather, permission and adult supervision was required. Second, at no time was any child guest allowed “to roam freely around the subject property or enter the area in or around the horse paddock area.” Third, according to Mr. Castor, on previous visits to the property, Erica “never unilaterally left the house or entered the area in or around the horse paddock area.” Fourth, the horse was enclosed with an electrified wire fence, which, according to Erica, she was warned to avoid. Based on these undisputed facts, we find that it was not foreseeable to appellees that Erica would trespass upon their property into the area of the horse paddock.
Assuming arguendo that a genuine issue of material fact exists regarding whether it was foreseeable to appellees that Erica would trespass into the horse paddock, we note that the degree of care owed by appellees only would have to be proportionate to Erica’s inability to foresee and avoid the perils that she may encounter and, in no event, would appellees’ duty to Erica extend to dangerous conditions that were obvious and realized by her. See Bennett, supra at 43.
In this case, it is clear that Erica had an appreciation that horses presented a risk to her. Erica testified that she had been told “never to go behind a horse”; she knew that she was not allowed to be around horses, appellees’ horse, or in the corral, without a parent or adult supervision; and that, although she did not remember anyone ever telling her specifically not to go into the corral, she was “pretty sure that *** [appellees] thought that [she] had the common sense not to go there” and that “they knew that if [she] were going to that [she] would ask for an adult to come with [her].”
Appellant, however, argues that appellees should have warned Erica and her parents regarding this horse’s history of aggressive behavior toward a sheep that entered its enclosure. However, based on Erica’s own testimony, we find that she knew horses presented a risk, that she was not to go near the electric fence, and that an adult was supposed to accompany her around horses. Accordingly, we find that the potential danger any horse posed to Erica was both known and obvious to her. We therefore find that appellees owed no duty to Erica or her parents to provide additional warnings regarding this horse in particular.
Based on the foregoing, we find that there are no genuine issues of material fact and that appellees are entitled to summary judgment as a matter of law. Erica was a trespasser on appellees’ property and, therefore, appellees were only required to refrain from willful, wanton and reckless conduct. However, to the extent that Erica’s age would entitle her to a greater degree of care than that normally afforded a trespasser, we find that appellees breached no duty to Erica insofar as she fully realized the obvious risk that horses presented, and proceeded at her own peril. Accordingly, we find appellant’s first and second assignments of error not well-taken.
On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Williams County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal.
DENNIS V. DENNIS
2001 Del. Super. LEXIS 11 (2001)
The Dennis case shows why a good lawyer requires relatives to sign waiver forms before the start of any holiday. Here are the facts from the case:
On November 16, 1998, Plaintiff [*2] Crystal Dennis (“Crystal”) and her thirteen-month-old son, Velvin Morgan, Jr. (“Velvin”)(collectively, the “Plaintiffs”) went to the home of Mr. Dennis, who is Crystal’s father and Velvin’s grandfather. Defendant Stephanie Dennis (“Stephanie”), who is Crystal’s sister, was also present at her father’s home. The sisters had gathered at Mr. Dennis’s residence in order to clean it for Thanksgiving dinner. While the daughters were cleaning, Mr. Dennis babysat Velvin. While all three adults and Velvin were in the kitchen prior to eating breakfast, Stephanie warmed water in the microwave for hot tea. She took the cup out of the microwave and placed it on the counter. Velvin, who was sitting on his grandfather’s lap, got up and walked over to the counter, reached up and poured the scolding water on himself. As a result, he sustained first and second degree burns on his neck and chest. The Plaintiffs filed suit against Mr. Dennis and Stephanie (collectively the “Defendants”), alleging that the Defendants’ negligence was the proximate cause of Velvin’s injuries.
The issue was whether the daughters could claim to be business invitees in coming their father’s house — in order to get around the state’s Guest Statute. The Delaware Guest Statute, 25 Del. C. § 1501, provides:
No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused [*4] by the wilful or wanton disregard of the rights of others.
The daughters, however, claimed that “since Crystal would have been unable to perform the cleaning [*6] services for her father unless she could bring Velvin with her and have Mr. Dennis babysit him, he has received a benefit. Further, the Plaintiffs assert that Crystal was a business invitee 10 and that status should be imputed onto Velvin.”
Outcome: The Court was not convinced and found the lawsuit against the father to be properly dismissed.
SAMSON v. REISING
62 Wis. 2d 698 (1974)
The underlying facts show that on Tuesday, February 6, 1968, Pearl Samson attended a luncheon, which was put on by the Wauwatosa High School Band Mothers Association (an organization organized to give support to the high school band) at the Wauwatosa Trinity Episcopal Church. Pearl Samson paid $ 1.25 and ate a luncheon consisting of turkey salad and dessert. On Wednesday evening she became nauseated. She was unable to work on Thursday and Friday.
The symptoms subsided, and she returned to work on Monday, February 12th. A few days later, however, she again was obliged to miss work because of her illness. After these symptoms recurred every few days, she visited her doctor, who was unable to help her, and in the nine-month period following the luncheon she lost 22 pounds and periodically suffered from diarrhea, vomiting, cramps, and stomach pain. Eventually she was referred to a specialist, who determined that Pearl Samson’s condition was the result of salmonella food poisoning and that, as a consequence, she suffered a deficiency of the lactase enzyme in her intestinal tract.
This enzyme is necessary to properly digest foods with a lactose base, such as milk and dairy products. She claims that her illness recurs whenever she ingests foods which contain milk products. There was testimony that she found it impossible to be sure that the food she ate contained no such products and that she became severely ill sometimes twice a month. Her physician testified that this condition is permanent.
There is evidence that the turkey salad eaten at the luncheon was contaminated with salmonella bacteria. Dorothy G. Wood, one of the defendants, testified that she had taken some of the leftover salad home for her family to eat. Her family ate some of that salad and had no ill effects. When she received reports that some of the guests at the luncheon had become ill, she notified the chief sanitarian of the Wauwatosa Health Department. He submitted the sample of the remaining salad to the Milwaukee Food Laboratory. The report from the laboratory indicated the presence of the salmonella bacteria.
There was testimony by Dorothy G. Wood that she and Marjorie E. Borror were co-chairmen in charge of the luncheon, that approximately a month before the luncheon they purchased nine frozen turkeys from Kohl’s and had them stored in Kohl’s freezer until they were needed. Before the date of the luncheon, Dorothy Wood picked up the frozen turkeys and delivered them to other members of the luncheon committee. She named eight members of the committee to whom she delivered the turkeys to be cooked in their own homes. She stated that she delivered the turkeys to Margarette H. Hoffman, Charlotte G. Soleski, Violet E. Gullicksen, Betty Randa, Grace A. Kerler, Marjorie E. Borror, Ruth E. Johnson, Jane Frances, and one other. Each of these persons are defendants in the instant lawsuit. In addition, Audrey Riesing and Phillis Gill, together with Dorothy Wood, are named as defendants.
Dorothy Wood stated that she did not cook a turkey, but that nine ladies, one of whom she could not name, cooked them sometime between the day she delivered the turkeys and the afternoon of February 5, 1968, when the ladies brought the cooked turkeys to the Trinity Episcopal Church kitchen. The turkey salad was prepared in the Trinity Episcopal Church kitchen.
After the salad was prepared, it was taken to a refrigerator located at the Methodist Church. The turkey salad was returned to the Trinity Episcopal Church at 10 a. m. on Tuesday, February 6th. The salad received no refrigeration from the time it was taken from the Methodist Church. Prior to the time of serving, the turkey salad was held in large containers, which had been obtained from the Methodist Church. Dorothy Wood testified that the church kitchen in which the salad was prepared was “clean.”
At trial, Joseph D. Gorski, the chief sanitarian for the Wauwatosa Health Department, testified that salmonella is a bacteria common to the intestinal tracts of fowl. He said that food containing salmonella bacteria can be rendered safe for eating by exposure to heat and that a meat temperature of 146 degrees Fahrenheit for thirty minutes or 161 degrees for thirty seconds would kill the organism. Properly cooking a turkey would render it free from salmonella bacteria.
However, even though a turkey were properly cooked, it could be contaminated if it came in contact with utensils or other objects which touched the raw contaminated turkey. Gary V. Doern, a bacteriologist, also testified that some individuals are unknowing carriers of the salmonella bacteria and can contaminate food products by touching them.
. . . In this case nine turkeys were cooked, each by one of nine defendants, but not all of the 11 defendants cooked the turkeys. It does appear, however, that all of them participated in the preparation of the salad.
Outcome: This case ultimately turned on the court’s interpretation of the doctrine of res ipsa loquitur used to prove such cases with a paucity of proof. The doctrine requires “(1) The event or accident in question be of the kind which does not ordinarily occur in the absence of someone’s negligence; and (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant.”
The court found that first criteria satisfied but ruled that it failed on the second criteria of exclusive control. They could not prove which of the band mother’s Turkeys was the culprit so all of the band mothers walked.