Blake School facilitated a student athletic trip and a Blake student and 16 year-old recently licensed driver lost control of his car, crossed the centerline, crashed into JeanAnn and Gary Fenrich, killing Mr. Fenrich and badly injuring Ms. Fenrich. Was the accident “foreseeable” to the school? Was “the specific danger…objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility”?
The Minnesota Supreme Court recently confronted the question of whether Blake could be liable to the Fenrich couple based on the student’s having caused the fatal accident.
The Court, over a dissent, held that there remained an issue for trial as to whether the school’s own conduct (not the student’s conduct) was “misfeasant,” meaning wrongful and potentially triggering liability to the Fenriches.
The [Blake] head coach strongly encouraged the entire team to participate in the Nike meet and 14 team members registered. The [Blake] assistant coach paid the bulk registration fee. The [Blake] coaches were active in preparation for the meet, including the assistant coach attending one of the practices and recruiting a volunteer coach to run them.
The assistant coach also took active responsibility for coordinating transportation to, and lodging at, the Nike meet. As he put it, “we all drove down as a team.” He expressly approved the plan to have [the student] —and not [the student’s] father or another adult—drive team members and the volunteer coach more than 200 miles to Sioux Falls. The assistant coach decided that the volunteer coach, a teenager, would ride with T.M. But he did not give the volunteer coach any safety instructions—such as to sit in the front seat, to pay attention (rather than be distracted by electronic devices), and to make sure that [the student] drove responsibly. Nor did the assistant coach give any instructions to [the student] except, during a break, to “keep it safe and keep rolling.” Based on these facts, a reasonable factfinder could conclude that the school’s own conduct was misfeasant.
The Minnesota Supreme Court decision was not unanimous. Justices Anderson and Gildea dissented on the issue of whether the school “owed a duty” to the Fenriches and whether the accident was “foreseeable” to the school.
The dissent (by Justice Anderson) argued that the school officials’ conduct (described above) “cannot even be described as active conduct generally.” (See here at p. D-4.) And the dissent went further, arguing that this was not a “close case” as to whether the accident was “foreseeable” to the Blake School. Was “the possibility of an accident was clear to the person of ordinary prudence”?
It is clear from the dissent that Justices Anderson and Gildea’s concern is the expansion of liability to schools and others. Justice Anderson expressed concern that “[a]ll extracurricular, and co-curricular, activities, are now guaranteed a gimlet-eyed review by the school’s lawyers.”
We think this concern is exaggerated, if not unfounded. There are far too many other decision-makers, stake-holders, factors, and considerations involved. We do not think it is realistic to posit that this change (if it is, in fact, a change at all) in Minnesota law will have a material effect on school decision-making on these activities. More likely, it theoretically could result in a slight upward adjustment in institutions’ insurance premiums.
Ultimately, the decision is worth study as it underscores the indeterminacy of legal decisions and the elasticity of concepts like “misfeasance vs. non-feasance” or “foreseeability.”
Update (July 23, 2013) (original post’s headline: Farming Injury Trial Verdict: The Enigma of Ultimate Responsibility For Foreseeable Misuse): Jury verdict for Defendant Batco.
Original post (May 22, 2013): Adam McRunnel, like thousands of workers in farms across Minnesota and the Midwest worked on a farm, and used a large conveyor belt to load the grain (soybeans, in his case) into grain storage bins.
He was using a Belt Conveyor Model 20100, manufactured by Batco Manufacturing when it started making a growling or squeaking sound that McRunnel realized meant the conveyor’s bearings needed lubrication.
The Batco conveyor belt was sold with sealed bearings. Furthermore, the Batco conveyor belt came with emphatic warnings which pointed out that it was dangerous to do any kind of maintenance or repair while the machine was running. But the Batco sealed bearings had been replaced by unsealed bearings when McRunnel was running the belt on January 18, 2010. And McRunnel did not turn off the belt when he needed to grease the bearings as it was his understanding that greasing the bearings worked better when the machine was running.
And there was an exposed opening in the Batco s-drive design that appears to have caught McRunnel’s sleeve and then his arm. From his trial brief, we learn the scope of McRunnel’s injuries:
McRunnel sustained a right upper-extremity crush. He suffered a de-gloving injury to the top radius with open tendon sheath, resulting in exposed tendons and muscle bellies. Adam experienced a fractured right ulna and fractured distal diaphysis of radius with some angulation and displacement. To treat his injuries, Adam required an open reduction and irrigation of right ulna, wound care in the burn unit of Regions Hospital, irrigation and debridement with intraoperative wound VAC placement, a gracilis muscle free flap from right leg to right dorsal forearm wound, occupational therapy, INTEGRA in the area of the compromised graft and an ulnar osteotomy. McRunnel has a permanent partial impairment as a result of these injuries, continues to suffer from numerous symptoms, and will require further surgery in the future.
Lay people may not understand all of the terms in this description but most of us will understand enough to be nauseated at the seriousness of McRunnel’s injury.
This is a classic products liability challenge. A machine serves a critical purpose, includes many safety features and warnings, but, even so, it may be dangerous as it is normally operated and it is foreseeable that some (and possibly very many) people will misuse the machine in light of errors of human judgment, a desire to save time, or some other common concerns that lead to foreseeable misuse.
There are, arguably, two sympathetic players here. On the one hand, there is a severely injured worker and, on the other, a manufacturer who might fairly complain that it can do little more than produce as safe a device as possible and provide instructions for its safe use.
But the case will go to a jury. Maybe the machine could have been and should have been designed to avoid the “nip point,” the exposed part of the machinery that essentially devoured McRunnel’s arm? This seems to be the upshot of Judge Davis’ denial of Batco’s motion for summary judgment earlier this year.
Finally, what makes these cases particularly strange and complicated from the optimal social policy perspective is the challenge of reconciling the many funding mechanisms to absorb the costs of such accidents — health insurance, products liability insurance, workers compensation insurance, etc.
On its face, this is a case of a farm worker against a machine manufacturer but, in reality, at this point, it is probably a battle between the machine manufacturer’s products liability insurer and plaintiff’s contingent fee lawyers. These might be the folks who stand to win or lose the most, perhaps, at trial. If that were true, would that make any difference in the socially optimal outcome?
Trial is set to start in Duluth before U.S. District Court Chief Judge Michael J. Davis (D. Minn.) in mid-June.