It recently made the news that Vanessa Bryant, the widow of Kobe Bryant, has filed a lawsuit against the company that operated the helicopter that Kobe Bryant, his daughter, and seven others were killed in on January 26, 2020.

The Crash

Kobe Bryant had been known to take helicopters as opposed to driving due to Los Angeles traffic. On this particular day, Kobe was taking the helicopter to his daughter’s game with a few of her teammates, their parents, and coaches. The crash is still under investigation but reports suggest it happened as a result of pilot error while flying in heavy fog. In the midst of it all, most were wondering why the pilot, Ara Zobayan, chose to fly in those conditions.

According to CNN the fog was so dense that the LAPD had decided to ground its helicopters. So, why was Ara Zobayan flying? According to reports, the pilot received Special Visual Flight Rules (SVFR) clearance. SVFR clearance allows a pilot to fly in weather conditions worse than those allowed for regular visual flight rules. The investigation is continuing in efforts to find what mistakes were made that led to nine people losing their lives.

Why Bring a Lawsuit?

There is a conventional wisdom that people make claims or file lawsuits because they’re greedy for money. In our experience, nothing could be further from the truth. Aside from medical bills & lost time at work, people with serious injuries often face a lifetime’s worth of medical challenges. A settlement compensating someone for injuries caused by another’s negligence is their one opportunity to try and help them work through the physical and financial challenges that come with being seriously hurt.

But then you have people like the Bryants. Considering Kobe’s career in the NBA, his family is almost certainly not in need of money in the way that others who have not been so successful are. It’s hard to fathom that she sees this case as a get-rich-quick scheme because, frankly, she’s already there. If I had to guess, she is most likely making this claim to make a difference.

Unsafe Toys

There is a long history of tort cases causing individual businesses, and even whole industries, to make changes to promote consumer safety. For example, in 2005 a 2-year-old boy in Virginia died after eating small magnets that had fallen out of a broken Magnetix toy. His parents thought he had a stomach bug, when he actually had a string of magnets and blocking his intestine, leading to his death. They resorted to the civil justice system after nothing was being done by the manufacturer and after more kids got hurt in similar incidents. The result? Changes being made by the manufacturer and the Consumer Product Safety Commission to implement new safety standard tests before toys with magnets can be put on the shelves.

Defective Tires

Similarly, in the late 90s and early 00s, there was a rash of defective Firestone tires on Ford Explorers that failed while driving, killing hundreds and seriously injuring who knows how many more. There was a recall, but it was civil litigation that revealed that Ford knew about the tire issue that could lead to rollover accidents but that Ford tried to hide that evidence. If not for the civil action, it’s possible that nothing would ever have been done to hold Ford to its responsibility for selling a safe product and, importantly, to get an unsafe product off of shelves when it found out about a major safety issue.

The history of tort law is full of examples like these where individuals made a claim or filed a lawsuit and fought against giant corporations to make changes to safety. There is a chance that Mrs. Bryant may not win this case, but even with a loss it could inspire a change in policy. Helicopter pilots may think twice before asking to fly in dangerous weather conditions and SVFR clearance may tend to err on the side of caution as opposed to letting experienced pilots test their limits.

A major principle of tort law is to try and put people back in the position they were before their injury. This is generally a fiction though. There’s no time machine available to go back and tell a pilot not to fly in conditions or to take a drunk driver’s keys. Sometimes, the best Plaintiff’s can hope for is that a claim or a lawsuit causes enough financial trouble for a defendant (or raises the possibility of financial trouble for an industry) that better safety practices are put into place to protect others from suffering the same kinds of harm that the plaintiff has.

Be safe out there.

It is almost time. The children have been counting down the days since Thanksgiving (a couple of our attorneys’ wives have been counting down since Halloween). There is something in the air, but what if the unthinkable happens—Santa Claus is injured while delivering gifts to your home. There are a few questions you may want to consider in case Santa files a formal complaint against you. Would liability coverage go to work? Does it matter where on your property he fell? What if he got milk poisoning?

Would your insurance cover him?

Homeowners insurance is perhaps the most essential form of financial and personal property coverage, as the majority of most people’s assets are tied up in your home. Well, as with most things in the legal world, the answer is not black and white. Was Santa trespassing? Was he invited into your home? Did you know the milk had gone bad? Did your children set a trap to try to catch Santa for giving them coal last year?

The law defines someone as a trespasser if they enter and remain on the real property of another wrongfully or without the owner’s or possessor’s authority or consent. In the case of Santa, there are likely few circumstances when he would be considered a trespasser. Most people want Santa to deliver the goods. However, say Mr. Claus falls off the roof trying to drop off a load of coal to Ebenezer Scrooge or the Grinch, neither of them wanting the big man near their homes. It is likely that Santa will have to pay for his injuries himself since he did not get Scrooge’s or the Grinch’s consent to enter their property. However, there is one instance where the property owners could still be responsible for St. Nick’s injuries.

The Known Trespasser Law.

A landowner has to duty to look out for a trespasser, but once a trespasser has been discovered, the landowner owes the trespasser a duty of reasonable care not to increase his peril.  In other words, no Santa traps. Say every year Santa comes and every year the Grinch leaves him a note telling him he is not welcome on his mountain, so this year on Christmas Eve the Grinch and Scrooge meet up to carry out a plan to finish Santa off once and for all. They decide to water the roof so that when Jolly Old St. Nick hops off his sleigh he will slide off the roof and fall down Mt. Crumpit. That is a big no-no. Just because someone is trespassing on your land does not mean you can do whatever you want to them to get them off your property. Now if the Grinch and Scrooge put a sign on the roof warning the trespasser (Santa) of the slippery condition and telling him not to land there, and Santa lands there nonetheless, they may be able to get out of that pickle.

The Grinch and Scrooge are two atypical examples. Most people want Santa to come visit their homes. Therefore he would likely be considered an invitee. The law defines an invitee as a person who comes onto another’s property, premises or business establishment upon invitation. The duty owed to an invitee is the highest legal level of care. That duty is the duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by unreasonable risk that the invitee may not discover on his or her own. While a slippery roof is something Santa can probably foresee, hot ashes in your fireplace may not be. In that case, the property own/possessor may want to put a sign somewhere that Santa will notice informing him of the hot coals.

What about spoiled milk?

Santa has to know there is some risk drinking milk that has been sitting out for 8-10 hours. According to dairygood.org, milk can start to grow bacteria if left out for two hours. Are you negligent for not watching the Santa tracker so that you can leave milk so that it was not become spoiled? Or should Santa just know that when he drinks the milk there is the inherent risk that it may be spoiled? There are persuasive arguments for both sides so just to be safe I would write down the time the milk was left out and a waiver of all liability should the big man get sick from drinking the milk.

So let’s say that last year a little boy, we’ll just call him Kolten, kicked the Mall Claus for not delivering on a little brother so he ended up on the naughty list. This year Kolten wants to catch the fat man and hold him hostage until he gets his little brother. Kolten, with the help of his older brother Austin decide to put a bear trap in front of the fire place, and if that were not enough, they leave out spoiled milk so that Santa will at least need a new outfit for next year if the bear trap doesn’t work. Well in this case Austin and Kolten would be opening themselves up to numerous liabilities. Battery, assault, false imprisonment (if they catch Mr. Claus), and poisoning (not to mention the criminal charges that will likely result). In this case, Santa could recover a lot more than just for his injuries. He could recover punitive damages, which are damages designed to punish the party in the wrong for their wrong doing. Homeowners insurance will not cover this conduct. Kolten and Austin’s parents will likely be on the hook for all of this.  Luckily for them though, Indiana law caps a parents’ liability at $5,000 of actual damages

Most everyone loves when Santa Claus comes to town, but whether you want him there or not, you could be liable for injuries he sustains while on your premises. As your Indianapolis Injury Attorneys, we just want to make sure you have the knowledge available to protect yourself from a nasty lawsuit.  For your convenience we have attached a liability waiver form to sit on the chimney before he drops in or to mail out with next year’s wish list so that you can help protect yourself from an elf process server.

Merry Christmas & Happy Holidays from your Ladendorf Law family.  Stay frosty friends!

 

 

Waiver of Liability and Assumption of Risk Agreement

Use of Premises

Waiver:

In consideration of my use of the premises of ____________________________, I for myself, my heirs, personal representatives, elves, or assigns, do hereby release, waiver, discharge, and covenant not to sue ________________, or anyone else presiding in the household for injuries caused by slipping and falling, burns as a result of the fire place, or any other injuries, including intentional injuries, by the person listed above or anyone else presiding in the home.

Waiver:

I, Saint Nick aka Kris Kringle aka Santa Claus aka Pere Noel aka Father Christmas, understand that the milk and cookies left out at __:__ pm/am, were fit for human consumption when so placed. The expiration date on the milk carton was established as _________________, 20__. I have been advised that bacteria may start to grow in milk if left out for more than two (2) hours. My signature and acknowledgement below constitutes a waiver to sue or otherwise make a claim for damages if I should become sick as a result of consuming the aforementioned milk and/or cookies.

 

__________________________                                                   __________________________

Saint Nicholas                                                                                                 Time and Date Consumed

a/k/a Kris Kringle

a/k/a Santa Claus

a/k/a Pere Noel

a/k/a Father Christmas