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12.4 Review and Practice
- Betsy Boomer does not own a car and she must rely on friends for transportation. Last month, Betsy asked Freda Farnsworth to drive her to the store. Freda is known to be a reckless driver, but Betsy is not in a position to be choosy. On the way to the store, Freda is distracted by Betsy and hits a telephone pole. The car, of course, is damaged, and Betsy is injured. Describe Freda’s possible liability and the various defenses to or modifications of liability that her lawyer may try to employ in her defense.
Your neighbor’s English bulldog, Cedric, is very friendly, but you wouldn’t know it by looking at him. Last Monday, the substitute mail carrier met Cedric as he was approaching the mailbox. Because the mail carrier is afraid of even small dogs, he collapsed from fright at the sight of Cedric approaching, fell to the ground, and broke his left arm. A motorist, who observed this situation while driving by, rammed the neighbor’s parked car. The parked car then proceeded down the street through two fences, finally stopping in Mrs. Smith’s living room.
- Is there a case for litigation involving your neighbor?
- Where does the motorist’s liability fit into this picture?
- Your neighbor’s small children run wild all day, every day, totally ignored by their parents. You have forcibly ejected them from your swimming pool several times but they return the next day. Your complaints to their parents have had no effect. Do you think it is fair to hold you responsible for the safety of these children simply because your swimming pool is an attractive nuisance? Are their parents being negligent? Can you use their possible negligence in your defense in the event one of the children drowns in your pool and they sue you for damages?
In an interesting case in Arizona, Vanguard Insurance Company v. Cantrell v. Allstate Insurance Company, 1973 C.C.H. (automobile) 7684, an insurer was held liable for personal injuries inflicted on a storeowner when its insured robbed the store and fired a warning shot to scare the owner. The robber’s aim was bad, and he hit the owner. Because he had not intended to harm the owner, the insured convinced the court that the exclusion under a homeowners policy of intentional injury should not apply.
- What reasoning might the court have applied to reach this decision?
- Do you agree with this decision? Why or why not?
- A physician or surgeon may become liable for damages on the basis of contract or negligence. Why is the latter more common than the former? What does your answer to this question tell you about managing your liability risks?
Most states have a vicarious liability law regarding the use of an automobile. For instance, California and New York hold the owner liable for injuries caused by the driver’s negligence, whereas Pennsylvania and Utah make the person furnishing an automobile to a minor liable for that minor’s negligence. Ohio, Indiana, Texas, Hawaii, and Rhode Island make the parent, guardian, or signer of the minor’s application for a license liable for the minor’s negligence.
- Why do states differ in their approach to this situation?
- Do you agree with one of these approaches? Explain.
- If you are a resident of a state that has no such vicarious liability statute, does this mean you are unaffected by these laws? Why or why not?
- Bigz Communications Corp, a small telecommunication company, provides long-distance phone service and Internet dial-up connections. What types of e-commerce liability does such a firm face?
In Steyer v. Westvaco Corporation, 1979 C.C.H. (fire & casualty) 1229, and in Grand River Lime Company v. Ohio Casualty Insurance Company 1973 C.C.H. (fire and casualty) 383, industrial operators were held liable for damages caused by their discharge of pollutants over a period of years, even though they were not aware of the damage they were causing when discharging the pollutants.
- How might this decision affect the public at large?
- What impact will it have on liability insurance?
- Because the discharge of pollutants was intentional, should it be insurable at all?
Erin Lavinsky works for the Pharmacy On-Line company in Austin, Texas. She likes to work on private matters on her business computer and has received a few infected documents. She was too lazy to update her Norton Utilities and did not realize that she was sending her infected material to her coworkers. Before long, the whole system collapsed and business was interrupted for a day until the backup system was brought up.
- Describe the types of liability risk exposures Pharmacy On-Line is facing as a result of Erin’s action.
- If Pharmacy On-Line purchased the ISO e-commerce liability endorsement, would it be covered for the liability?
- If Erin penetrated into the system and obtained information about the customers, and if she later sold that information to a competitor, what would be the liability ramifications? Is there insurance coverage for this breach of privacy issue?