Randy Barnhart

Where Art and Law Intersect

When I first read about the Library of Congress acquisition of Marilyn Church courtroom drawings in the Library’s Information Bulletin, I was immediately intrigued. The intersection of two of my interests and degrees – an art history major in college and a J.D. – fascinated me. Artist Marilyn Church captured some of the most dramatic moments in high-profile courtroom trials during the past 36 years with colored pencil and crayon.

Trial of Amy Fisher. Photograph of drawing used with permission of Marilyn Church.

As the Library’s press release states,

Church’s drawings are an important part of American history, because she portrayed events unfolding in courtrooms where cameras were not allowed. She provided insight into the people who influenced the major issues of the late 20th century, including race and race relations, gender, women’s reproduction, political and corporate corruption, religion, international relations and celebrities.

via blogs.loc.gov

Let's hope a traveling exhibit comes to Denver ...

Colorado Products Liability - The Innocent Seller Defense, Part 4

To support the construction of the "innocent seller" statute in Colorado regarding causation, specifically that the causation element of a plaintiff’s claim is a failure to execute recall services with reasonable care, and is not founded on the defect in a product, the reasoning and findings of the Blossman court are helpful:

we find that the record contains evidence authorizing a finding that [plaintiffs’] injuries were a foreseeable consequence of appellant's failure to complete its voluntarily assumed duties with regard to the ... recall program. The jury could have found that appellant offered to distribute the recall information, and then could have concluded either that appellant received the shipment of recall notices ... but never mailed them to its customers, or that appellant did not receive the requested notices, but having assumed the duty to notify its customers a reasonably prudent dealer would have contacted [the manufacturer] when the notices failed to appear. 
Additionally, the jury was authorized to infer that had the notices been mailed to [defendant’s] customers, "this would have produced a chain of events resulting in [replacement of the defective thermostat] at the time [the water heater] was sold...."

The evidence further authorized the jury to find that the explicit language in the recall notices regarding the risk of explosion from leaking gas would have led a gas dealer of ordinary prudence to foresee that users of appliances equipped with the defective Emerson thermostat could be injured in explosions if they were not notified of the danger, and that [defendant’s] negligence in executing its obligation to so notify its customers, . . . was a direct and proximate cause of [plaintiffs’] injuries.

Blossman, 375 S.E.2d at 120-21 (defendant’s “negligent failure to complete its voluntarily assumed duty to distribute the recall notices was the proximate cause of [plaintiffs’] injuries”).

Further, although research indicates that no Colorado appellate court has expressly adopted Restatement (Third) of Torts: Products Liability § 11 (1998), the principles articulated therein are instructive and authoritative:

One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if:

(a)(1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or

(a)(2) the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and

(b) the seller or distributor fails to act as a reasonable person in recalling the product.
(Underscoring added).

This shows that the evolution of law recognizes that culpable conduct can be the failure to recall with reasonable care, completely apart from any liability for the defective product itself. Consider requesting a jury instruction reflecting the foregoing principles.

See Colorado Products Liability - The Innocent Seller Defense, Part 1 here, Part 2 here, and Part 3 here.

Surf to this page for more information on Colorado products liability law.

 

Colorado Products Liability - The Innocent Seller Defense, Part 3

Again, nothing in the Colorado Products Liability Act precludes an action against an entity, otherwise also a seller of products, who is not innocent, but allegedly culpable, in some other manner or capacity.

Subsection (1) of the Act, as already construed by the Colorado court of appeals, confirms this construction:

No product liability action shall be commenced or maintained against any seller of a product unless said seller is also the manufacturer of said product or the manufacturer of the part thereof giving rise to the product liability action. Nothing in this part 4 shall be construed to limit any other action from being brought against any seller of a product.

In Brighton Ford, the court found the foregoing “last sentence of the statute providing that the statutory provisions should not be ‘construed to limit any other action from being brought against the seller’ would become meaningless if we were to read section 13-21-402(1) to bar any product liability action.”

In other words, not all actions, including actions which may fall under the rubric of products liability actions, against an entity, otherwise also a seller of products, are barred by the Act.

Duty

When the cause of the damages is alleged to be a failure to use ordinary care in a recall campaign, courts have distinguished between the causation of that failure and the more typical allegation of causation by a defective product in a products liability action.

In Blossman Gas Co. v. Williams, for example, the court held:the evidence authorized a verdict for [plaintiffs] on the issue of [defendant’s] negligent performance of the voluntarily assumed duty to notify its customers of the recall. 375 S.E.2d 117, 119-20 (Ga. App. 1988). The court stated: “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Id. (citing section 324A of the Restatement (Second) of  120 Torts). 

Colorado courts have recognized this ancient learning and have adopted section 324A of the Restatement (Second) of  120 Torts. The court in W. Innovations, Inc. v. Sonitrol Corp., quoted Section 324A: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
187 P.3d 1155, 1161 (Colo. App. 2008).

It cannot be disputed that recall services are calculated to prevent the precise harm which befell plaintiff. May Dept. Stores Co. v. Univ. Hills, Inc., 789 P.2d 434, 441 (Colo. Ct. App. 1989)(“for a service provider to be rendered liable under either Restatement § 323 or § 324A, the service rendered must be ‘reasonably calculated to prevent the type of harm’ that actually befalls the plaintiff”).

See Colorado Products Liability - The Innocent Seller Defense, Part 1 here and Part 2 here.

Surf to this page for more information on Colorado products liability law.

New ‘bionic’ leg gives amputees a natural gait

A new lower-limb prosthetic  that allows amputees to walk without the leg-dragging gait characteristic of conventional artificial legs has been developed at Vanderbilt University.

The device uses the latest advances in computer, sensor, electric motor, and battery technology to give it bionic capabilities. It’s the first prosthetic with powered knee and ankle joints that operate in unison. It comes equipped with sensors that monitor its user’s motion. It has microprocessors programmed to use this data to predict what the person is trying to do and operate the device in ways that facilitate these movements.

“When it’s working, it’s totally different from my current prosthetic,” said Craig Hutto, the 23-year-old amputee (a shark-attack victim) who has been testing the leg for several years. “A passive leg is always a step behind me. The Vanderbilt leg is only a split-second behind.”

via www.kurzweilai.net

The project was initially funded by the National Science Foundation, followed by a grant from the National Institutes of Health. Kudos.

A Truth to Live By

Recently, an appellate court reiterated a fundamental truth which should govern all lawyers. “A lawyer’s reputation is one of his[/her] most important professional assets.” The court highlighted the importance of that truth with the following literary footnote:

Indeed, there is more than a kernel of truth in Iago’s pronouncement in Othello:

“Good name in man and woman . . .,
Is the immediate jewel of their souls:
Who steals my purse steals . . . nothing;. . .
But he that filches from me my good name
Robs me of that which enriches him not
And makes me poor indeed.”

William Shakespeare, Othello, Act III, Scene II

Firm Adds an Environmental Practice - Meet Melissa Hailey

The firm is pleased to expand into an environmental practice, primarly by way of the addition of associate attorney Melissa Anne Hailey.

Primary Practice Areas

Torts/Products Liability: Representation of persons injured or damaged by defective products in state and federal torts litigation against the manufacturers and designers of those products, thus redressing private harms and enhancing public safety.

Environmental Law: Representation of non-profit environmental advocacy organizations in federal environmental litigation, including matters of endangered species, conservation and public lands management, protection of the public interest in biodiversity and healthy ecosystems; and counseling non-profit environmental advocacy organizations on litigation opportunities and potential strategies for achieving conservation goals.

Education

JD - Seattle University School of Law (2006) cum laude
Focus Areas: Environmental, Natural Resources, and Land Use Law

BA - University of Denver (2001) cum laude
Focus Areas: Ecology, Evolution, and Conservation Biology

Bar Memberships

State Bars of Colorado, New Mexico, and Arizona
Federal Bars for the U.S. District Courts for the Districts of Colorado, New Mexico, and Arizona
Federal Bars for the U.S. Circuit Courts for the Tenth Circuit and the District of Columbia

See Melissa's full web page here.

Target Recalls Collapsing Step Stools

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Step Stools with Storage

Units: About 206,000

Importer: Target Corporation, of Minneapolis, Minn.

Hazard: The wooden step stools can break apart or collapse under the weight of the user, posing a fall hazard.

Incidents/Injuries: Target has received 26 reports of the stools breaking or collapsing. Fourteen incidents involved children, seven involved adults, and five incidents where the user’s age was unknown. Two adults fractured their wrists, and of those victims, one also fractured her hip and pelvis. Additionally, six children and one adult suffered scrapes and bruising.

via www.cpsc.gov

Chrysler recalling nearly 300,000 minivans

Chrysler is recalling nearly 300,000 minivans for a possible heating and air conditioning problem that could inadvertently trigger the air bag, the second related recall in nine months.

Chrysler, run by Italy's Fiat SpA, said in a letter to regulators on Wednesday that certain 2008 Grand Voyager, Town and Country and Dodge Grand Caravan vehicles were affected by the recall.

via www.msnbc.msn.com

Ford recalling 1.1 million trucks over gas tanks

Ford Motor Co said on Monday it is recalling 1.22 million older pickup trucks in the United States and Canada to replace straps that hold fuel tanks in place and could corrode and break.

via www.msnbc.msn.com

Serious fire hazard . . .