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  1. 14 Jan '13 16:15 / 1 edit
    Is this a case of judicial overreach? Regardless of how you would vote as a juror in this case, or legislate as a legislator, shouldn't it be the legislature that sets limits on such things, and until that happens, shouldn't it be decided on a lawsuit-by-lawsuit basis? Even one of the appeals court judges in the 3-0 decision said that the court "admittedly created an arbitrary restriction on bystander recovery" presumably referring to the 1989 court ruling that set limits on suits for emotional trauma caused by witnessing an injury. (Note that the ruling is "pro-business" in its effect, so the overreach is not necessarily "liberal overreach." )

    http://www.sfgate.com/default/article/Sister-can-t-sue-over-scuba-diving-death-4191072.php

    quote:

    Sister can't sue over scuba diving death

    A woman who watched in horror as her brother died while they were scuba diving, and learned later that his diving gear was defective, can't sue the manufacturer because she wasn't aware of the defect at the time, a state appeals court has ruled.

    Barbara Fortman had sued the company, SI Tech, for the emotional distress she suffered from the death of her brother, Robert Myers, off Santa Catalina Island in March 2009. Sheriff's investigators determined that a plastic insert from his suit's low-pressure hose, manufactured by SI Tech, had become lodged in his breathing tube and cut off his air supply.

    Under state law, a person who sees a close relative injured or killed because of someone else's negligence can sue the wrongdoer for emotional distress. But the Second District Court of Appeal in Los Angeles said such suits are allowed only if the watcher is aware of the cause of the harm when it occurs.

    "Fortman witnessed the injury, but did not meaningfully comprehend that the company's defective product caused the injury," Justice Richard Aldrich said in the 3-0 ruling, issued Thursday.
    Limits on trauma suits

    Aldrich relied on a 1989 California Supreme Court ruling that set limits on suits for emotional trauma caused by witnessing an injury: The plaintiff must be a close relative, must be at the scene of the wrongful conduct and must be aware of the cause of the injury. That 1989 ruling rejected a suit by a woman who was told her son had been injured in an auto accident and arrived shortly afterward to see him lying unconscious.

    Fortman's lawyer, Roland Wrinkle, said the appeals court's decision last week was an unjustified narrowing of the 1989 standards and that he will ask the state's high court for a hearing.

    The ruling does not affect a separate wrongful-death suit by Myers' parents against SI Tech, now on trial in Superior Court.

    Steven McGuire, a lawyer for the company, said the ruling was consistent with the standards set by the state's high court. He acknowledged that Fortman might find the dismissal of her lawsuit unfair but said, "That's the way the law works sometimes."
    'Arbitrary restriction'

    The court said Myers, of Chicago, was diving with his sister, a resident of Redlands (San Bernardino County), when he signaled to her that he wanted to ascend. She put her hand on his arm, then saw that they had stopped ascending, and sank with him to the ocean floor, where his eyes were open but he was unresponsive.

    She carried him to the surface and believed he had suffered a heart attack. Months later, the sheriff's investigation disclosed the equipment failure.

    Upholding a judge's dismissal of Fortman's suit, the appeals court cited post-1989 rulings that rejected claims by plaintiffs who saw relatives die in a hospital, and learned only afterward that a doctor had failed to diagnose or treat the patient properly.

    The state's high court "admittedly created an arbitrary restriction on bystander recovery" to set clear limits on liability, Aldrich said in Thursday's ruling.

    The ruling can be viewed at http://bit.ly/11kolmt.

    Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com

    Read more: http://www.sfgate.com/news/article/Sister-can-t-sue-over-scuba-diving-death-4191072.php#ixzz2HxzPB9RG
  2. Subscriber no1marauder
    It's Nice to Be Nice
    14 Jan '13 16:26
    Originally posted by JS357
    Is this a case of judicial overreach? Regardless of how you would vote as a juror in this case, or legislate as a legislator, shouldn't it be the legislature that sets limits on such things, and until that happens, shouldn't it be decided on a lawsuit-by-lawsuit basis? Even one of the appeals court judges in the 3-0 decision said that the court "admittedly cre ...[text shortened]... er-can-t-sue-over-scuba-diving-death-4191072.php#ixzz2HxzPB9RG
    The "bystander recovery" tort is a judicial creation in the first place. It is based on common law tort rules, not on any legislative enactment in California AFAIK. To say that the judiciary putting limits on their own creation is "judicial overreach" seems odd to me.
  3. Standard member sasquatch672
    Don't Like It Leave
    14 Jan '13 16:29
    Originally posted by JS357
    Is this a case of judicial overreach? Regardless of how you would vote as a juror in this case, or legislate as a legislator, shouldn't it be the legislature that sets limits on such things, and until that happens, shouldn't it be decided on a lawsuit-by-lawsuit basis? Even one of the appeals court judges in the 3-0 decision said that the court "admittedly cre ...[text shortened]... er-can-t-sue-over-scuba-diving-death-4191072.php#ixzz2HxzPB9RG
    This seems like the classic argument in torts - damages for physical loss are successfully litigated, while "pain and suffering" damages are viewed somewhat more dubiously. Justice vs. punishment - no1 will weigh in with a far more scholarly opinion.

    In general, I'd tend to agree with the court, although the criteria established for a lawsuit going forward seem to be plucked out of thin air. Why would it matter whether she knew or didn't know what was going on with her brother's equipment?
  4. 14 Jan '13 17:21 / 1 edit
    Originally posted by no1marauder
    The "bystander recovery" tort is a judicial creation in the first place. It is based on common law tort rules, not on any legislative enactment in California AFAIK. To say that the judiciary putting limits on their own creation is "judicial overreach" seems odd to me.
    OK. Do you think the legislature should stay out of it? Or should it be involved in defining limits on the class of cases in which individuals can recover damages for bystander emotional distress?

    Edit: By this I mean should the entire area of litigation be left as a judicial creation?
  5. Subscriber no1marauder
    It's Nice to Be Nice
    14 Jan '13 18:11
    Originally posted by JS357
    OK. Do you think the legislature should stay out of it? Or should it be involved in defining limits on the class of cases in which individuals can recover damages for bystander emotional distress?

    Edit: By this I mean should the entire area of litigation be left as a judicial creation?
    I don't have enough information to make an informed judgment. I suspect neither do most legislators.

    We'll see if the California Supreme Court takes an appeal of the case. Obviously there is a lot of room for an explosive increase in an already litigious society if the reach of the tort is expanded i.e. in a lot of tort cases, perhaps even a majority, a relative observes the suffering caused by the tort.
  6. 14 Jan '13 19:55
    Originally posted by no1marauder
    I don't have enough information to make an informed judgment. I suspect neither do most legislators.

    We'll see if the California Supreme Court takes an appeal of the case. Obviously there is a lot of room for an explosive increase in an already litigious society if the reach of the tort is expanded i.e. in a lot of tort cases, perhaps even a majority, a relative observes the suffering caused by the tort.
    OK.

    By way of comparison, "Twenty-four States now have laws that limit damage payments in malpractice cases."

    http://www.ahrq.gov/research/tortcaps/tortcaps.htm

    Not closely linked to bystander recovery, there are parallels raising the question of why the courts that set prospective limitations on it are not accused of legislating. Of course there may be legislation or constitutional wording that authorizes them.
  7. Subscriber no1marauder
    It's Nice to Be Nice
    14 Jan '13 20:09
    Originally posted by JS357
    OK.

    By way of comparison, "Twenty-four States now have laws that limit damage payments in malpractice cases."

    http://www.ahrq.gov/research/tortcaps/tortcaps.htm

    Not closely linked to bystander recovery, there are parallels raising the question of why the courts that set prospective limitations on it are not accused of legislating. Of course there may be legislation or constitutional wording that authorizes them.
    AFAIK all caps on damages are legislatively enacted.
  8. Subscriber AThousandYoung
    Poor Filipov :,(
    14 Jan '13 21:50
    I bet the dude was murdered by a midget bison. I seen the way those bovines eye tourists.