Emotional Distress Claim for Tainted but Uneaten Food Allowed by Court

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file2341245785293.jpgThe Ninth Circuit Court of Appeals recently certified a question to the Washington Supreme Court, asking whether the state’s product liability statute would allow a claim for emotional distress for “contaminated” food that the plaintiff did not eat. In re Bylsma v. Burger King Corp., No. 86912-0, slip op. at 2 (Wash., Jan. 31, 2013). The state court held that the statute allows such a claim, provided the distress is a reasonable reaction and has some physical manifestation. It is not clear if Connecticut courts have addressed this particular question, but they have addressed the question of emotional distress damages in the absence of physical harm, and have generally not allowed them.

The plaintiff, a deputy sheriff in Clark County, Washington, ordered a Whopper with cheese at a Burger King drive-thru on March 29, 2009. He alleged feeling “uneasy” after receiving the burger. Id. He inspected it, and found what appeared to be a “glob of spit” on the patty. Id. He touched it to make sure that it was not fat, and then submitted it for DNA testing. The test linked the spit to an employee who was working at the time the plaintiff placed his order.

His lawsuit, filed in federal court, asserted causes of action for negligence, products liability, and vicarious liability. Although he did not eat the tainted burger, he claimed emotional distress with symptoms including “vomiting, nausea, aversion to food, and sleeplessness,” id., requiring mental health treatment. A magistrate judge found that Washington law applied to the lawsuit, and that state law does not allow recovery for emotional distress without physical injury. The district judge agreed, and the plaintiff appealed to the Ninth Circuit.

Five Connecticut Towns Settle Police Shooting Case for $3.5 Million

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SWAT_team_(4131372991)Five Connecticut towns will pay $3.5 million to settle a lawsuit brought by the family of a man shot and killed by police during a raid on a home. Guizan v. Solomon, et al, 3:09-cv-01436 (D. Conn., Sep. 14, 2009). Heavily armed police officers entered a house to search for drugs, and while inside shot and killed an unarmed man. The house’s owner survived the assault and also filed suit, Terebesi v. Easton, et al, No. 3:09-cv-01457 (D. Conn., Sep. 15, 2009), claiming that police used unreasonable and excessive force and requesting damages for emotional distress and damage to his home.

A group of twenty-one police officers assaulted a home in Easton, Connecticut on May 18, 2008. They were members of the Southwest Regional Emergency Response Team (SWERT), a SWAT force comprised of officers from Easton and four surrounding towns: Monroe, Trumbull, Wilton, and Darien. Police had received information that Ronald Terebesi, the house’s owner, and Gonzalo Guizan had drugs inside the house. They allegedly had no specific information that the two had any weapons inside. Easton’s then-Police Chief John Solomon planned and authorized the raid. The warrant listed two crack pipes and a supply of drugs sufficient only for personal use.

Police records indicated no prior criminal record for Terebesi, nor any history of threats or violent behavior. Nevertheless, the SWERT team used flash grenades before entering the house, then went in with their guns drawn. Monroe Officer Michael Sweeney shot Guizan six times, killing him. Terebesi was not injured during the raid. The officers found no guns, and only a small quantity of drugs. During the subsequent investigation of the raid, some of the SWERT members testified that they had information that Terebesi was armed, although other records may contradict this. Reports from the investigation allegedly showed that Guizan and Terebesi were huddled in a corner at the time Guizan was shot.

Proposed Bill in Connecticut Senate Would Expand Driving Privileges of Teen Drivers

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file0001719525224.jpgConnecticut’s motor vehicle laws create a graduated licensing system for teenage drivers, which lifts restrictions as novice drivers get older and gain experience. An increased rate of fatal traffic accidents among teenage drivers in Connecticut led the governor’s office to propose stricter regulations, and the law took its present form in 2009. A proposed bill introduced in January 2013 would loosen some of the restrictions on sixteen and seventeen year-old drivers, with the apparent goal of easing the transportation burden on parents. By removing key restrictions from the laws governing drivers under eighteen, the bill may increase the risks to teenagers on the road.

Republican State Senator Kevin Witkos introduced S.B. No. 104, titled “An Act Allowing Newly Licensed Motor Vehicle Operators to Transport Immediately Family Members to and from School,” in the January 2013 legislative session. The bill was referred to the Joint Committee on Transportation, and is currently scheduled for a public hearing on February 20, 2013. It would amend Connecticut General Statutes § 14-36g to remove language that prohibits drivers aged sixteen or seventeen from driving immediate family members to and from school.

Current Connecticut law places multiple restrictions on teen drivers younger than eighteen. During the first six months after obtaining a driver’s license, teen drivers may only transport certain individuals, including their own parents or guardians, a licensed driving instructor, or an adult twenty years of age or older who has had an unsuspended driver’s license for at least four years. During the second six-month period, the teen driver may also transport immediate family members. Other restrictions include a requirement that the number of passengers in a vehicle be less than or equal to the number of available seat belts, and a driving curfew from 11:00 p.m. to 5:00 a.m. with limited exceptions. S.B. No. 104 would change the statute to allow teen drivers, during the first six months, to transport immediate family members, i.e. siblings, to school and back home.

Connecticut Insurance Department Recovers Nearly $9 Million from Insurers for Unfair Practices

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file0001620061222.jpgThe Connecticut Department of Insurance (CID) announced that, during the calendar year 2012, it recovered $8.7 million from insurance companies for taxpayers and policyholders. CID investigates and prosecutes cases of unfair insurance practices, such as bad faith denials of claims or refusals to pay benefits. Unfair insurance practices are unfortunately a common stumbling block in the practice of personal injury law, as many individuals and businesses depend on insurance coverage to pay claims for damages. We have assisted people pursue complaints against Connecticut insurance companies for bad faith and other breaches of their duties to their policyholders and the public.

On January 31, 2013, CID announced a total recovery of $8.7 million from insurance companies during 2012. Amounts recovered for policyholders, who filed over 6,100 complaints of unfair insurance practices with CID, totaled almost $4.1 million. CID will distribute that amount to the complainants in proportion to their damages. Fines and penalties, for infractions like failure to make timely payment on claims or failure to maintain state licensure, accounted for the remaining $4.6 million collected by CID. That amount will go into the state’s General Fund.

Automobile, homeowners’, accident, and general liability insurance policies are the ones most commonly involved in personal injury claims. According to CID, more than half of the amounts recovered for policyholders, about $2.1 million, related to accident and health insurance policies. About $790,000 resulted from complaints over homeowners’ or farmers’ insurance. Automobile insurance claims, along with fire and commercial insurance claims, each accounted for over $400,000. General liability policy complaints yielded $76,000. The remaining amounts recovered by CID related to life insurance, annuities, and “miscellaneous” insurance policies, all of which are less likely to relate to personal injury claims.

Five People Injured in Tubing Accident at Connecticut Ski Resort

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A_family_snow_tubing_at_Keystone_Resort_in_ColoradoAn accident at a Connecticut ski resort injured five people on New Year’s Day 2013 when a cable towing a group of people up the mountain in an inner tube broke. Accidents such as these are apparently rather common, as another accident at the same resort less than a year earlier injured three people. Claims for injuries against a ski resort, using a theory of premises liability, are difficult because of the danger inherent in the activity, although a claimant may be able to claim a product defect against a tube or lift manufacturer.

The accident occurred late in the afternoon of Tuesday, January 1, 2013. As an inner tube holding six people was being towed up the mountain at Woodbury Ski Area, the cable broke. The tube slid back down the tubing ramp and collided with the lift at the base of the slope. Five of the six riders were taken to nearby Waterbury Hospital with injuries. All but two of them were released that day. A nineteen year-old woman remained in intensive care for several days with multiple injuries, while a thirty-eight year-old man continued to receive treatment for a head injury. Other injuries included a foot injury and a concussion. The Connecticut State Police was investigating the accident to determine if any criminal charges were warranted, along with the Woodbury fire marshal and the state’s Bureau of Elevators.

Driver, Possibly Distracted by Loud Music, Collides with Train on Connecticut Commuter Rail Line

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file0001218797190.jpgA loud car radio reportedly contributed to a fatal collision between an automobile and a train on the Danbury line, by rendering the driver unable to hear the warning bells. One passenger died in the collision, and the driver died several days later. Two more passengers suffered injuries. The rail crossing where the crash occurred has been the site of multiple collisions. The Connecticut Department of Transportation (DOT) decided to expedite the installation of gates at the crossing as a result of the crash.

At about 1:20 p.m. on December 30, 2012, a Metro North train collided with a vehicle at the Long Ridge Road crossing in Redding, Connecticut. The vehicle, a Subaru Outback, was headed south on Long Ridge Road. The engineer of the train was seated on the right-hand side of the locomotive, and the car was approaching from his left, out of his line of sight. He therefore never saw the car coming and did not apply the brakes. An event recorder on the train showed that it was traveling at about the speed limit of fifty miles per hour.

The train collided with the Outback as it was crossing the tracks. It pushed the car about fifty yards until the car rolled down an embankment. The train stopped after another two hundred yards, and its two occupants, the engineer and a conductor, reportedly went to the wrecked vehicle on foot. The engineer said that the car’s radio was playing “very loud” when he arrived. All four occupants of the vehicle were taken to Danbury hospital. A twenty-one year-old passenger was pronounced dead that day, and the nineteen year-old driver died in the hospital on January 4, 2013.

Connecticut Health Officials Report on Hospital Medical Errors

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file0002026727209.jpgConnecticut’s Department of Health (DPH) released its most recent annual report on “adverse events” in October 2012, covering data for the year 2011. The term “adverse events” covers a broad range of incidents in healthcare facilities that result in patient injury or death. Not all adverse events are the result of medical error or malpractice, but most instances of medical error are viewed as adverse events. The report found that the total number of adverse events reported around the state has remained stable for several years, but the types of incidents accounting for the total has fluctuated.

The DPH has required healthcare facilities to report adverse events since 2002. In creating its annual report, it categorizes adverse events by type of event and type of facility making the report. It analyzes adverse events rates at four types of healthcare facility: acute care hospitals, chronic disease hospitals and hospices, psychiatric hospitals, and outpatient facilities like ambulatory surgical or outpatient childbirth centers. The events themselves are organized into seven broad categories, with numerous subcategories: (1) surgical errors; (2) drug- or device-related events; (3) interference by the patient or another person; (4) medication error, drug reaction, other treatment error, or bed sores; (5) burns, falls, shocks, toxic exposure, or other physical injury; (6) criminal activity; and (7) errors occurring in the hospital setting, including surgical injuries, infections, and misreporting of test results.

For the calendar year 2011, the DPH received 271 adverse event reports. This is the highest number received in a single year since at least 2005, a four percent increase over the number reported in 2010, and a two percent increase over 2009. As of the end of 2011, the state has received reports of 1,760 adverse events since it began tracking. The most common category of adverse event, comprising thirty-six percent of the total for 2011, involved falls in healthcare facilities causing a patient’s death or serious injury. Perforations during procedures, including open, laparoscopic, and endoscopic procedures, accounted for over eighteen percent of the total. Pressure ulcers, or bed sores, causing serious injury or death made up nearly fifteen percent of the total.

Driver Fatally Collides with Illegally Parked Tractor Trailer on Connecticut Highway

file0001498928828.jpgA Connecticut man died on Wednesday, December 12, 2012, when his vehicle collided with a tractor trailer in a rest stop off of Interstate 95. The tractor trailer was allegedly parked illegally in a “no parking” area, where the driver had stopped to rest. Accidents like this are not uncommon in Connecticut and the New England region, and they are often fatal for drivers unlucky enough to hit a parked truck. Federal trucking regulations set strict limits on where drivers may park their rigs, as well as limiting the number of hours drivers may be on the road.

The tractor trailer had pulled onto the left shoulder of the rest area entrance ramp, which was located on the southbound side of I-95 in Fairfield, just south of Exit 21. According to the Connecticut Post, the area was clearly marked as a “no parking” area. The truck driver later told police that he had pulled over so he could rest in the truck’s sleeper berth. Although the rest area has designated parking spaces for commercial trucks, they are frequently full. The victim, driving a Nissan Sentra, reportedly exited I-95 for the rest area at about 10:50 p.m., collided with the right rear of the trailer, and hit the left side of an SUV that had entered the rest area just after it. The Sentra came to rest under the truck, and emergency responders pronounced the driver dead at the scene. The drivers of the tractor trailer and the SUV were not injured.

Less than twelve hours after the accident, according to the Post, another commercial truck was parked illegally in almost the same spot. Accidents involving vehicles striking parked tractor trailers seem to be quite common. On December 1, 2012, a truck driver pulled into a rest area along northbound I-95. Reports do not indicate if the truck was parked illegally. A Toyota Corolla entered the rest area, somehow rolled over and became airborne, and collided with the cab of the truck. The truck driver died from his injuries. The driver and occupant of the Corolla were not seriously injured. An accident in Bridgeport in August 2012 involved a truck that had parked on the right shoulder of northbound Route 25. A car drifted off the highway at about 5:00 a.m. on August 26 and collided with the parked truck, killing the car’s driver and passenger.