Plan B Forum

Posted: **Tue May 29, 2012 4:53 am**

A woman who fell down stairs while clutching her five-month-old granddaughter has been successfully sued by her own family, who claimed her negligence left the baby girl with "traumatic" head injuries.
The Reverend Hannalore Hoffmann was carrying Molly Boland during a family holiday at a holiday cottage in Smiths Lake, near Forster, on the NSW mid north coast on January 25, 2006. She tripped and fell, leaving the little girl "severely disabled".

Molly's parents Jason Boland and Susan Hoffmann sued Hannalore Hoffmann for failing to take reasonable care.

The NSW Supreme Court heard the Reverend Hoffmann offered to take Molly downstairs about 5.30am after the baby woke and wouldn't settle.

As there was only dawn light, the Reverend Hoffmann asked her daughter to keep the light on in her room to illuminate the staircase.

She did not turn on the staircase lights so as not to disturb other sleeping family members.

She told the court she slowly and carefully descended the stairs but stumbled and fell to the bottom, still grasping Molly.

In a judgment handed down this morning, Justice Robert Shallcross Hulme found parents and close relatives have a legal duty to exercise reasonable care when they undertake physical actions involving their children.

"Did Reverend Hoffmann exercise such care in this case? In my view she did not. I accept that she thought she was being careful. I accept that often babies are attended to in the middle of the night and in order that other members of a household are not disturbed, without lights being turned on," Justice Hulme said.

"Nevertheless, when regard is had to the totality of circumstances including where Reverend Hoffmann walked and the absence of reasonable illumination, I am persuaded that she did not take that reasonable care."

The Reverend Hoffman launched a cross-claim against several parties involved in the design, construction and installation of the stairs during $400,000 renovations to the holiday home, which were completed in October 2005.

It was alleged that her fall was caused by, or was contributed to, by the fact there was no handrail, anti-slip finish or sensor lights, and the staircase contained winders - wedge or triangle-shaped stairs.

But Justice Hulme dismissed the cross-claims, finding the designers and builders were not guilty of a lack of reasonable care because they chose to use winders, even though they are acknowledged to be less safe than landings between flights of stairs.

He said winders were a common feature of domestic staircases and were allowed under the building code, as were the balustrade and newel posts that were used in place of a continuous handrail.

He also rejected the proposition that an architect should install sensor lights to protect someone who chooses not to turn on the lights.

Justice Hulme's judgment was only on liability and the issue of damages was not canvassed.

Read more: http://www.smh.com.au/nsw/family-sues-g ... z1wEP5ZL5M

Posted: **Tue May 29, 2012 7:14 am**

Hmmm, do I sniff a conspiracy?

"Look mum, your poor granddaughter will need a lot of care now. We'll sue you and you sue that company that built the stairs"

"What if we don't win against them my lovely daughter?"

"Well if we can just get you to take the fall (a-ha ha!) then your home insurance will pony up. Halvsies?"

I am too cynical
Meade

Posted: **Tue May 29, 2012 10:41 am**

Good lord. What fun holidays and family gatherings must be. Sounds like the judge ruled on the papers perhaps, or was there a bench trial? Hard to discern from the article. As for damages, that would require a full-on trial, unless the family is waiting to find out if the premium collection company will make a payment now that liability is determined.

And fwiw, the term is "legal eagle," and according to Merriam-Webster, was first used in 1942. "Legal beagle" is a modern corruption of the term, not found in the dictionary (unless you count the urban variety), which totally grates on my nerves.

Posted: **Tue May 29, 2012 12:32 pm**

Guinevere wrote:Good lord. What fun holidays and family gatherings must be. Sounds like the judge ruled on the papers perhaps, or was there a bench trial? Hard to discern from the article. As for damages, that would require a full-on trial, unless the family is waiting to find out if the premium collection company will make a payment now that liability is determined.

And fwiw, the term is "legal eagle," and according to Merriam-Webster, was first used in 1942. "Legal beagle" is a modern corruption of the term, not found in the dictionary (unless you count the urban variety), which totally grates on my nerves.

Beagles are cute and people like them.

You have a problem with beagles?

yrs,
rubato

Posted: **Tue May 29, 2012 2:06 pm**

In many cases, this sort of thing is a subterfuge to allow the family of the injured party to sue AN INSURANCE COMPANY, to collect damages for the injuries. The unstated fact here is whether Granny was covered by some sort of personal liability policy on her own, or perhaps as a result of her ministry.

It appears that the parents are suing Granny, but it is a sham and the real party in interest is Granny's insurance carrier. The insurance carrier tried to find another "deep pockets" defendant to share the load, but this was apparently unsuccessful.

In the alternative (if she doesn't have insurance), it may be a ploy to access Granny's wealth outside probate. If she is forced to pay and/or liquidated assets in connection with a judgment against her, the transfer of wealth might not be subject to either income or inheritance taxes.

On a personal level, there is probably no animosity here or real blame directed at Granny, who was merely doing a kindness that went awry. It's an attempt to get some money to help defray the families costs and expenses related to the injuries and their aftermath.

Some might say, that's why you have insurance. I don't particularly subscribe to this philosophy, but I understand it.

Posted: **Tue May 29, 2012 2:41 pm**

MajGenl.Meade wrote:Hmmm, do I sniff a conspiracy?

"Look mum, your poor granddaughter will need a lot of care now. We'll sue you and you sue that company that built the stairs"

"What if we don't win against them my lovely daughter?"

"Well if we can just get you to take the fall (a-ha ha!) then your home insurance will pony up. Halvsies?"

I am too cynical
Meade

Yes, you are too cynical. Why should a claims against the grandmother be disallowed? Is the child any less injured because her grandmother was negligent, rather than a stranger? And "halvsies" it won't be. Any recovery will be for the child's benefit and will be supervised by the court -- most probably through a trust established for the child's care.

As to the claims against the designer/builder, this was not a case of "[w]e'll sue you and you sue the company that built the stairs." If you read the article, the grandmother's claims against the designer/builder were cross-claims, which means the designer/builder had already been sued by the parents (on behalf of their daughter) for potential design defects in the stairs. The grandmother was arguing, essentially, "Look, you've already sued the designer/builder too. It wasn't (entirely) my negligence that caused the fall and injury; responsibility (at least in part, if not all) should lie with the designer/builder who prepared a hazardous design for the steps or otherwise failed to use reasonable safety precautions in their construction."

There is nothing outrageous or odd or even unusual about this case. We have all done things that, had we thought about it, were stupid and hazardous. Most of the time we escape the circumstances without severely injuring others. But when you do something dumb and seriously hurt someone -- even your own grandchild -- don't you think you should take responsibilty for the consequences of your actions? And that is exactly what you purchased insurance for: you paid your premium in exchange for the insurance company assuming the risk that you might negligently cause injury to someone else. But if the insurance company refuses to pay the claim, then a lawsuit is the injured person's only recourse.

The only thing outgrageous about this case is the insurer's refusal to accept responsibility for propviding the coverage it had been contracted and paid to provide. Guin is right: it's a "premium collection company," not an insurance company.

Posted: **Tue May 29, 2012 2:55 pm**

Whoa Sue! Where in the article does it say the insurer is not paying or has refused to? I don't read that????

I didn't say a claim against grannie shouldn't be allowed

I suggested that the children and grannie worked out that they could easily get the court to hold grannie liable (which the judge has done). Obviously unless grannie has a gazillion dollars tucked away, she ain't gonna pay the kids a thin dime. So the whole exercise is aimed at (1) suing the builder and (b) sucking the insurance company in

I further cynically suggested that the parents, while of course taking care of their child, will be able to give grannie some monetary benefit to compensate for her trouble. You are extremely naive if you don't think that can be done. (cf USA does not help Israel build houses in occupied territories. Just provides budget offsetting help in other categories)

I also think it likely that the use of cross-claim here is not in the same context as you cite in the USA. Kids sued grannie; she cross-claimed against the builder - i.e. was passing it on.

I think grannie should have cross-claimed against the kids - after all they were the ones stupid enough to allow an old fart to stumble around in the dark carrying their precious child

The concept of 'accident' has left the building - in fact, it's fallen and it can't get up

Meade

Posted: **Tue May 29, 2012 3:01 pm**

dgs49 wrote:In many cases, this sort of thing is a subterfuge to allow the family of the injured party to sue AN INSURANCE COMPANY, to collect damages for the injuries.

How is this is any way a "subterfuge"? Either granny was negligent or she wasn't. If she was, her insurer is supposed to cover that liability -- that is precsely what she paid for in purchasing the policy; that is what "liability insurance" means. It is not a "sham" or any other pejorative term you can think of. It is a contract.

dgs49 wrote:The insurance carrier tried to find another "deep pockets" defendant to share the load, but this was apparently unsuccessful.

The insurance carrier merely filed a cross-claim against another existing party that it thought should share at least some of the responsiblity. S.O.P.

dgs49 wrote:In the alternative (if she doesn't have insurance), it may be a ploy to access Granny's wealth outside probate. If she is forced to pay and/or liquidated assets in connection with a judgment against her, the transfer of wealth might not be subject to either income or inheritance taxes.

This is sheer bullshit.

dgs49 wrote:Some might say, that's why you have insurance. I don't particularly subscribe to this philosophy, but I understand it.

Really? What do you think you are spending all that money on insurance coverage for?

Posted: **Tue May 29, 2012 3:16 pm**

MajGenl.Meade wrote:Whoa Sue! Where in the article does it say the insurer is not paying or has refused to? I don't read that????

Read between the lines. If the insurer had paid, granny wouldn't be sued; the case would proceed against the designer/builder only, as granny would have a release of claims from the insurance settlement. The designer/builder might bring her in as a third-party defendant, but she would have no liability; her percentage of negligence would simply offset the liability (if any) of the designer/builder.

MajGenl.Meade wrote:I suggested that the children and grannie worked out that they could easily get the court to hold grannie liable (which the judge has done). Obviously unless grannie has a gazillion dollars tucked away, she ain't gonna pay the kids a thin dime. So the whole exercise is aimed at (1) suing the builder and (b) sucking the insurance company in

The "whole exercise" is to bring all potentially culpable parties before a tribunal so that their negligence (if any) and shares of liability (if any) can be fairly assessed. Do you think the judge a fool?

MajGenl.Meade wrote:I further cynically suggested that the parents, while of course taking care of their child, will be able to give grannie some monetary benefit to compensate for her trouble. You are extremely naive if you don't think that can be done.

Any settlement for the benefit of a minor has to be brought before the court and approved as suffcient under the circumstances and adequately protecting the minor's interests. (BTW, I have done quite a number of these.) There is no way any money is going to be allocated to granny "for her trouble," and particuarly because she is a culpable party. If that were to happen, all attorneys involved would be disbarred and the judge removed from the bench.

MajGenl.Meade wrote:I also think it likely that the use of cross-claim here is not in the same context as you cite in the USA. Kids sued grannie; she cross-claimed against the builder - i.e. was passing it on.

"Cross-claim" is a term of art, used the same in all English common-law countries. The term for a claim "passing it on" is a "third-party claim" against a "third-party defendant."

MajGenl.Meade wrote:I think grannie should have cross-claimed against the kids - after all they were the ones stupid enough to allow an old fart to stumble around in the dark carrying their precious child

MajGenl.Meade wrote:The concept of 'accident' has left the building - in fact, it's fallen and it can't get up

What do you have against someone accepting (or being forced to accept) personal responsibility for the cosequences of his/her negligent actions? Is their some rule that says you should get a free pass for hurting someone if you "didn't mean to"? "Accidents" usually happen because someone wasn't being sufficiently careful about what they were doing. If I hit you with my car while you were crossing the street, I wouldn't be excused from responsibility for your injuries simply by saying "Oopsies, it was an accident."

Posted: **Tue May 29, 2012 3:27 pm**

And, indeed, liability is what lawsuits determine; indeed, the OP indicates that the court ruled the builders and designers were not negligient. Sometimes bad things just happen despite reasonable care being exercised by all, but, as Sue notes, this is often not the case.

Posted: **Tue May 29, 2012 3:48 pm**

Read between the lines.

No I would prefer to read the lines and believe that idle speculation has no place.

If there was an insurance claim denied, they should sue the insurance company - not grannie.

The "whole exercise" is to bring all potentially culpable parties before a tribunal so that their negligence (if any) and shares of liability (if any) can be fairly assessed. Do you think the judge a fool?

I'll leave that last to others to judge; some of my best fools are judges. "All potentially culpable parties" is a clever terminology which leaves out the fact that the insurance company (allegedly not paying, between the lines) is not in court defending itself against a liability claim. Of course one could read between the newspaper and the front door that there had already been a case against the insurer which the unhappy couple lost. Or they thought they would lose.

Just as one can read between Africa and the Antarctic that the parents sued the builder.

One cannot be liable to oneself. If grannie took an axe to the dining room table - no coverage. Grannie took a header with the grandker in her arms - same result. Perhaps she was demonstrating rock climbing with a child (Tongue firmly in cheek for this paragraph)

I bow to your knowledge of Australian legal terms and whether or not a newspaper reporter used the correct one.

I have NO NO (eta NO!) objection to responsiblity being assessed and covered. One is simply appalled that the children find it necessary to sue grannie at all. Why? Is she an uncaring grandma? Do they not have universal health care?

Meade

eta that NO above - whoa I sure messed that up first time around

Posted: **Tue May 29, 2012 3:58 pm**

No I would prefer to read the lines and believe that idle speculation has no place.

If there was an insurance claim denied, they should sue the insurance company - not grannie.

that simply cannot be done; one must sue the allegedly negligient party and the insurer will, based on the policy, defend and pay any covered claim. If you injure me, I cannot sue your insurer, only you.

Posted: **Tue May 29, 2012 4:13 pm**

Correct us both - they sue the allegedly negligent party AND the insurance company together.

Posted: **Tue May 29, 2012 4:21 pm**

MajGenl.Meade wrote:Correct us both - they sue the allegedly negligent party AND the insurance company together.

No, as Big RR pointed out, you cannot sue the insurance company, as the insurance company has no duty to the injured person. In some jurisdictions (including mine), it is even impermissible to mention whether the allegedly negligent party has insurance at all, let alone name the insurer as a party in a complaint.

MajGenl.Meade wrote:
Read between the lines.
No I would prefer to read the lines and believe that idle speculation has no place.

If there was an insurance claim denied, they should sue the insurance company - not grannie.

This is not speculation, it is exactly as I related it. If there had been a payment from the isnurance company, granny could not be sued. The children/grandchild simply cannot sue the insurance company, as they have no contract with the insurance company (only granny did) and the insurance company did not injure the child. In order to have the claim paid, you have to sue the insured person who was responsible for the injury. Once that responsibility and the amount of damages are adjudicated, the insurance company will be contractually obligated to pay on behalf of its insured. If it still refuses to pay, the injured party still cannot sue the insurance company directly in his/her own name. Because insurance coverage is a contract, the injured person would have to get an assignment of the insured person's contractual rights against his insurance company, and proceed on a breach of contract/fiduciary duty claim.

MajGenl.Meade wrote:"All potentially culpable parties" is a clever terminology which leaves out the fact that the insurance company (allegedly not paying, between the lines) is not in court defending itself against a liability claim.

As I said above, the insurance company is not (and cannot be) a tort defendant, and has nothing to "defend itself" from. However, it is the insurance company that is actually providing the legal defense for granny, as defense of liability claims is part of the liability coverage purchased when purchasing an insurance contract.

MajGenl.Meade wrote:Of course one could read between the newspaper and the front door that there had already been a case against the insurer which the unhappy couple lost. Or they thought they would lose.

If you can explan how this might be possible, I might be inclined to consider it. But as I have just exlplained how it is a legal impossibility, you mght want to reconsider your assertion.

MajGenl.Meade wrote:Just as one can read between Africa and the Antarctic that the parents sued the builder.

If they didn't, their attorneys would likely be sued for malpractice. I know I would.

MajGenl.Meade wrote:One cannot be liable to oneself. If grannie took an axe to the dining room table - no coverage. Grannie took a header with the grandker in her arms - same result.

Except it's not the same result. She injured another person, not (just) herself. If the kid were a passenger in granny's automoble and granny carelessly ran it into a tree, would the child not have a claim against granny?

MajGenl.Meade wrote:I bow to your knowledge of Australian legal terms and whether or not a newspaper reporter used the correct one.

I have knowledge of legal terms, which are used the same way in all English common-law courts. Whether or not a newspaper reporter used it correctly I cannot be sure, but from the context it certainly seems so; also, I doubt that a newspaper reporter would make up some novel alternate use of a legal term in a case where the pleadings, parties, lawyers, etc, are all right there.

MajGenl.Meade wrote:I have objection to responsiblity being assessed and covered. One is simply appalled that the children find it necessary to sue grannie at all. Why? Is she an uncaring grandma? Do they not have universal health care?

Why is whether she is "a caring grandma" any part of this matter at all? If I run you down with my car, do I have to be "uncaring" before you could sue me? What des that even mean? Apparently, it is granny's insurance company that does not care to pay on the claim until it is forced by a court to do so. Moreover, "universal health care" may not in fact pay for all of a severely disabled child's needs for its life, and certanly won't compensate for bodily injury, pain, suffering, disability and loss of earning capacty. Do you imagine that medical care expense is the only loss a brain damaged/disabled child might suffer?

Posted: **Tue May 29, 2012 4:32 pm**

Geez Sue - lighten up. I said it was tongue firmly in cheek didn't I?

As to the rest, perhaps you'd explain to me the lawsuits I was privy to in Ohio wherein injured parties sued my insured AND named the insurance company as a co-defendant? It was in black and white on the paper. (and I hope you note my correction brought to my attention by Big RR)

I didn't know a parent could be sued for malpractise but I suppose it's not a bad idea

As a grandparent, if I injured one of my grandchildren there would be no need for my children to sue me. I would already be taking responsibility. Do you think grannie actually strenuously defended the case against her - why?

Meade

Posted: **Tue May 29, 2012 4:50 pm**

MajGenl.Meade wrote:As to the rest, perhaps you'd explain to me the lawsuits I was privy to in Ohio wherein injured parties sued my insured AND named the insurance company as a co-defendant? It was in black and white on the paper.

I don't know the Ohio pleading rules or whether those case involved any first-party coverage issues. I have certainly sued insurance companies when trying to enforce statutory or first-party coverage in a liability case -- for example where my uninsured client was a passenger in a vehicle involved in an accident and I was seeking both no-fault benefits and liability coverage from the driver's insurer. But in a straight-up negligence pleading, the insurer (if named) would be dismissed out-of-hand as a party -- there is simply "no duty" owed to the injured person; its only duty is contractual, and to its own insured.

MajGenl.Meade wrote:I didn't know a parent could be sued for malpractise but I suppose it's not a bad idea

Damn, I was correcting that as you posted! Their attorneys would be sued.

MajGenl.Meade wrote:As a grandparent, if I injured one of my grandchildren there would be no need for my children to sue me. I would already be taking responsibility.

How, exactly, when your insurance company (which by contract assumed your "responsibility" for such claims) is in control of whether that claim is paid and how your legal defense is conducted? How are you going to ensure there is "no need" for a lawsuit?

MajGenl.Meade wrote: Do you think grannie actually strenuously defended the case against her - why?

I think her (insurance company's) lawyers strenuously defended the case -- because that's exactly what they're paid to do. I'm sure they advised her that she had a contractual duty to cooperate with their defense or they would disclaim coverage, and that she had a legal obligation and sworn an oath under penalties of perjury to tell the truth.

Posted: **Tue May 29, 2012 5:02 pm**

Well first I'd kill my son-in-law....

No I rather think that I would be paying through the nose for my grandchild - changing diapers until I was in Depends and so on. I would also make a claim against my homeowners policy. That's why I have insurance - even here.

But we're still back with neither one of us knowing from the story whether any insurance company was involved or not. I did assume a family conspiracy to establish a legal finding of negligence in order to pursue a claim against insurance. Agreed it seems more likely that there is an insurance elephant in the room somewhere. Maybe we will find out?

Meade

Posted: **Tue May 29, 2012 5:36 pm**

MajGenl.Meade wrote:No I rather think that I would be paying through the nose for my grandchild - changing diapers until I was in Depends and so on.

I think we all would. But why wouldn't you also want to secure for your grandchild's care that $300,000 or $1 million that might be available -- and that you paid for -- under your homeowners' (or other liability) coverage?

MajGenl.Meade wrote:I would also make a claim against my homeowners policy. That's why I have insurance - even here.

Exactly my point. But although you might report the accident to your homeowners' carrier, you wouldn't be making the claim; the child's parents, on behalf of the child, would be the claimants, and no payment would issue to you. And if the insurance company didn't want to pay the claim (or low-balled a settlement offer), you kids would still have to sue you in order to get the insurer to pay.

MajGenl.Meade wrote:But we're still back with neither one of us knowing from the story whether any insurance company was involved or not. I did assume a family conspiracy to establish a legal finding of negligence in order to pursue a claim against insurance. Agreed it seems more likely that there is an insurance elephant in the room somewhere. Maybe we will find out?

The only way this story makes sense is if there is an insurance company providing coverage for granny. However, I doubt if the eventual settlement will make the papers. Since the (insurance company) lawyers have now lost their summary judgment motion to dismiss the direct claims against granny, and have lost on the cross-claims against the designer/builders (who, given the "no negligence" ruling are presumably now out of the case), the matter should be settled quietly and, depending on the injuries, for the policy limits. The insurance company gave it a shot and threw everything it had at geting out of the case, but nothing stuck, so it's time to admit defeat and pay the claim.

Posted: **Tue May 29, 2012 6:46 pm**

Sue's responses are a good illustration of why I never bought into the "think like a lawyer" bullshit that they were peddling in law school.

Nobody is accusing Granny of anything. She was being as careful as she possibly could; she was carrying her fucking grandchild down the stairs, for Christ sake! And Granny will never be out a fucking dime, regardless of any judgment. If the insurance company would find a way to deny coverage the parents would drop this suit immediately, because they don't want or expect anything from Granny. This is ENTIRELY a suit to extract money from an insurance company, and I assure you that both Granny and the parents of the unfortunate girl are PRAYING that Granny is ultimately found liable, so they can score that cash.

When Granny bought this insurance policy, it was with the intention of indemnifying her from liablity to third parties that she might actually harm due to her own negligence (etc). This was the furthest thing from her mind, and the fact that the family might actually benefit from the existence of this policy is a pure windfall.

Posted: **Tue May 29, 2012 7:15 pm**

dgs49 wrote: . . . I never bought into the "think like a lawyer" bullshit that they were peddling in law school.

And you remain proudly impervious to education even to this day.

dgs49 wrote:Nobody is accusing Granny of anything.

Except that she was "sued ... for failing to take reasonable care." Apparently you missed the part of law school where they explained what "being sued" means.

dgs49 wrote:She was being as careful as she possibly could; she was carrying her fucking grandchild down the stairs, for Christ sake!

Except, of course, that the judge -- who reviewed the evidence and the motions -- found exactly the opposite. But I guess you are more intimately familiar with this case than the judge overseeing it.

dgs49 wrote:This is ENTIRELY a suit to extract money from an insurance company, and I assure you that both Granny and the parents of the unfortunate girl are PRAYING that Granny is ultimately found liable, so they can score that cash.

"Extract money?" You mean, actually expect to receive the benefits you paid a premium for? In an event expressly covered by your policy? Well, I never!

dgs49 wrote:When Granny bought this insurance policy, it was with the intention of indemnifying her from liablity to third parties that she might actually harm due to her own negligence (etc). This was the furthest thing from her mind, and the fact that the family might actually benefit from the existence of this policy is a pure windfall.

It is not a "windfall," it is exactly what the insurance contract provides for. If the insurance company wanted its policy to contain an exlcusion for claims of family members, it presumably could have written it to say so. It matters not a whit what granny thought (as if you even know) when she bought the policy. I guarantee you that the vast majority of people who have insurance do not know what their insurance covers, who it covers, what it excludes and how it operates. Nevertheless, the terms of the contract (that the insurance company wrote) control the circumstances under which it is obligated to pay, regardless of what the insured might have anticipated. In fact, some would say the whole point of insurance is to provide for those events that you could not anticipate. As an old Russian saying goes, "If I had known that's where I was going to fall, I would have put a pillow there."

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