Friday, October 29, 2010

Scuba Diver Left at Sea Wins Lawsuit

I found this story especially interesting because I'm a Scuba Divemaster (professional level recreational diver).

Daniel Carlock, an aerospace engineer from Santa Monica, CA, won a $1.68 million verdict against a Scuba company running a dive boat in CA. Carlock surfaced about 400 ft from the boat after having trouble equalizing the pressure in his ears. He tried to swim back but got cramps. He then blew on his emergency whistle and inflated his yellow emergency diving sausage, but did not get anyone's attention.

The divemaster on the boat marked him as present before the ship took off for another dive site seven miles away. At that site, Carlock was marked on the dive roster as having taken the second dive. Not until several hours later did anyone realize he was missing.

Crew radioed the Coast Guard, which came to the second dive site. Meanwhile, Carlock was drifting south of the first dive site into strong currents, believing his death was imminent.

The Coast Guard never found Carlock. He was rescued by a ship carrying a bunch of boy scouts (literally), when one scout looking through his binoculars happened to see Carlock. The ship had changed course to avoid colliding with a freighter. Otherwise, Carlock would have been out of sight.

Carlock was in the water for five hours. He suffers from PTSD and now has skin cancer as a result of the sun exposure on the water.

Total damages amounted to $2 million, but the jury found Carlock partially at fault for surfacing away from the boat after the divers had been told to surface near the boat. The Scuba company tried to have the case dismissed on the grounds that divers assume the risks of the sport. They failed. The judge appropriately noted that being abandoned at sea is not a risk inherent in Scuba diving.

What this dive company did is beyond negligence. The single most fundamental and important task of being a Divemaster is assuring that everyone who got in the water gets back on the boat before you leave. You do this by calling names out, in addition to seeing the divers (after all, people often look the same in wetsuits or drysuits). You demand that each diver has a buddy, even if it's a stranger. Each person is responsible for at least checking on his or her buddy, both inside and outside the water. This dive company failed the most basic safety procedure, and did so multiple times.

As for the plaintiff's contributory fault, yes, you are supposed to surface near the boat. But sometimes you need to surface where you are. Under some circumstances it's more dangerous to navigate back underwater. Even if he were negligent, however, his emergency whistle and inflatable sausage should have mitigated the negligence.

When the Criminal Justice System Fails Future Victims

A man has been charged with killing 24 year old Arpana Jinaga on Halloween two years ago. The man, Emanuel Fair, 27, pleaded guilty to two counts of third degree child rape of a 15 year old in 2004. His other priors include second-degree robbery, unlawful firearms possession and drug possession. Somebody please explain why this man was out of prison in 2008.

His crime is described by the Seattle Times as follows:

"The defendant opened the locked door to Jinaga's apartment, attacked her, stripped off her clothing, gagged her, assaulted her and finally strangled her to death," Senior Deputy Prosecutor Jeff Baird said in charging paperwork.

Jinaga had been gagged while she was attacked and the killer used motor oil and bleach on her body, charging documents said. Her Halloween costume, a blanket from her bed and a portion of the carpet from her apartment had been burned.

Monday, October 25, 2010

Social Media Categorically Discoverable

Hopes of some measure of social media privacy are dwindling, according to cases cited by the Delaware Employment Law Blog. In two cases from other states, Romano v. Steelcase and McMillen v. Hummingbird Speedway, courts allowed parties access to social networking materials in the course of litigation. In McMillen, the court went as far as to demand disclosure of user names and passwords, arguing that Pennsylvania does not recognize a "social media privilege." The actual order and opinion can be found here.

Regardless of minor differences in Pennsylvania discovery rules and Washington's rules, this result has to be wrong. The majority of the discovery process is founded upon providing content to the other side in good faith (or else face sanctions). Allowing the other party to obtain direct and unlimited access is akin to allowing a six month pass to an entire warehouse--the scope is inappropriately broad and invasive. There is no need to provide access to hoards of unrelated and private information when the user can provide copies of all relevant posts, pictures, etc.

At least as reported in the McMillen court's order, the fatal flaw in the plaintiff's argument was to ask for too much, a confidentiality privilege. For my non-lawyer friends, privileges, especially absolute privileges, are typically based in a long legislative and common law history and recognized public policy. This means that new privileges are hard to come by. In this case, precedent is largely against the creation of a privilege for social networking materials, as many courts around the country permit access to emails, text messages, and other electronic information. The better argument is to fight the scope and explain the electronic analogy of access to someone's home/warehouse. Just like with physical space, the proper procedure is to ask for content (not access) "related to" x, y, and z. Unless there is evidence the party is responding in bad faith, actual access should not be necessary.

Thursday, October 21, 2010

More Toyota/Lexus Recalls

Toyota/Lexus announces recall of 1.53 million cars in Japan and the U.S. for a brake problem that causes fluid leak. Yes, a brake problem.

Friday, October 15, 2010

Wood Carver Shooting Update

This is not breaking news, but I feel obligated to clarify my prior post since more information has come out. The autopsy of John T. Williams, the man fatally shot by an SPD officer recently, revealed that the officer shot Mr. Williams in his side, not in the front of his body. This indicates that Mr. Williams was not directly facing the officer at the time of the shooting, and arguably was posing little threat.

As of yesterday, the Firearms Review Board reached a preliminary finding that the shooting was not justified, the Seattle Times reports.

Thursday, October 14, 2010

Viral Embarrassment: Revival of Privacy Torts Through Social Media

Privacy invasion is not what it used to be. The old version, though not in any way acceptable, was often limited to the eyes of the peeper or in some cases the speed of manual photography. The new version often involves a video recorder the size of a pen and a high speed internet connection. Thus, it is both easier to record privacy invasions and easier to distribute the content. The sudden, viral embarrassment can be devastating, as we saw recently with the Rutgers student who committed suicide.

More locally, a Monroe man was recently arrested for voyeurism after he secretly recorded his sexual encounters with multiple women. He expressed surprise to detectives, as he "didn't think it was a problem because he used the recordings for his own enjoyment and never shared them or uploaded them to the Internet," according to the Seattle Times. Somebody give him a gold star.

Privacy torts have almost gone out of style. For one thing, the constitutional free speech protections on the publication and distribution of information can be a steep hill to climb. This sounds silly, but it's true, mostly because many private things can be construed as "a matter of public interest." Second, these cases center almost entirely around emotional and psychological distress. Not until recently was it possibly to catastrophically and permanently impact a person's life within seconds and without the safeguard of a second (or sober) thought. With the new ease of recording and uncontrollable distribution, I expect privacy torts to come back into favor.

The following are some privacy torts with very basic definitions:
Intrusion upon private affairs: unreasonable prying that is objectionable to a reasonable person.
Publication in a false light: places the plaintiff in a false light that is objectionable to a reasonable person.
Public disclosure of private facts: akin to publication in a false light, except for truthful content; disclosure of content a reasonable person would find objectionable.
Outrage: more commonly known as intentional infliction of (extreme) emotional distress.

Wednesday, October 6, 2010

More on Facebook Discovery and Cyberbullying

Facebook announced today that, among other new features, users will be able to download a Zip file of everything they have done on the site. This makes storage and transfer of the materials by the user (as opposed to Facebook) much easier. Facebook users' new ease of control over information could have the unfortunate effect of hindering the ability to protect Facebook materials in a lawsuit. Easy control destroys the argument of undue burden.

In other news, CNN posted an article on online bullying that does more than summarize the problem--it advises parents on the ways to protect children, from demanding passwords, to direct supervision, to computer programs. It also links to a guide by the "Cyberbullying Research Center" on prevention.

Friday, October 1, 2010

Toy Recalls: Poorly Placed Pegs Cause Genital Bleeding

Fisher-Price is recalling more than 11 million tricycles, toys and high chairs. According to the Consumer Product Safety Commission (CPSC), the federal agency in charge of product oversight, the toys have already injured several children. Injuries include laceration and genital bleeding due to poorly placed pegs and protrusions such as a tricycle "key" in the middle of the riding area (see picture to the left). Fisher-Price is also recalling two other toys due to choking hazards. See the Seattle Times article here. Go straight to the source for detailed information from the CPSC here, here, here, and here.

If you want to keep up with recalls without having to look in the news, you can sign up for the CPSC alerts here.

Privacy Deemed "Wishful Thinking": Discovery of Social Networking Part II

Your privacy preferences may be meaningless in court. Yes, the settings you spend time poring over with every Facebook programming update may mean nothing when it matters most.

I recently spoke on this issue at a WSAJ legal seminar. The problem with talking about discovery of online social networking materials (Facebook, MySpace, etc.) is that the issue is just now becoming an issue. There is a little to report and a lot to wonder about. That being said, a lack of full answers is no reason to ignore partial answers.

Now we have another part. The rapidly developing case law took an anti-privacy turn in a New York court recently, where a judge ruled that there was no reasonable expectation of privacy for even private Facebook messages. The court went so far as to describe such an expectation as "wishful thinking." See the analysis of this case and others by Professor Ramasastry of the University of Washington School of Law.

On the bright side, courts have great discretion in discovery issues. The problem is that the existing legal framework, CR 26 (discovery scope, for laypersons) and the Stored Communications Act (laughably limited given its 1986 signature date) is difficult to apply given the new technology, its multiple functions--some of which are very public, and the malleability of privacy settings. More simply, many judges just don't understand it, and many lawyers are not doing a good enough job of explaining it.