Jim Porter

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August 28, 2014
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Jim Porter : Get drunk, fall down — and sue

If you are of the general opinion that we should each be responsible for our own actions, you’re not going to like Carlsen v. Koivumaki.

The justices in Sacramento who wrote this opinion are some of the best, but they got this one wrong.

LET’S GET DRUNK

Jason Carlsen went to a party with friends and became “clearly intoxicated.” Two friends, Sarah and Zach, agreed to drive Jason home. After leaving the party, the three drove to Food Maxx where Jason stole a fifth of rum. They went to a second party where Jason had a couple of shots of rum, then they drove to the Bluffs, a cliff above the Sacramento River in Redding.

The three sat on a blanket near the cliff’s edge and drank more rum. Somehow Jason fell down the cliff, landing on the rocks below.

CALL 911

After Jason fell, Sarah and Zach did not call 911 because they were afraid of getting into trouble, probably because they were only 18-years-old. Instead, they drove down by the river and looked for Jason, finally driving to the Redding police station several hours later.

Jason survived but had no recollection of being on the Bluffs, much less anything else that happened there. Sarah said Jason had intentionally stepped backwards off the cliff in an apparent suicide attempt. Suicide or accident, he was severely injured.

SUE YOUR FRIENDS

What’s the normal thing to do if you get so drunk that someone has to drive you home, then on the way home you steal a bottle of rum, drink yourself into a stupor, fall or step off a cliff and badly injure yourself? One response would be to turn your life around by taking responsibility for your behavior. That’s one response.

Instead, Jason sued Sarah and Zach for $51,000,000. That’s not a typo. Jason couldn’t remember what he had done to himself, but he did find his way to the courthouse.

BE RESPONSIBLE

The trial court ruled against Jason, writing he had no recollection of being at the Bluffs, and there was no evidence that Sarah and Zach had pushed him or placed him in a perilous position of falling off the cliff, and finally that neither Sarah nor Zach were responsible to protect Jason from himself.

It was a short-lived victory for the two defendants.

SPECIAL RELATIONSHIP

The Court of Appeal wrote that as a general rule no one has a duty to come to the aid of another … unless there is a special relationship between them which gives rise to an obligation to act. That’s the basic California law.

Jason’s lawyers argued that Sarah and Zach had put poor, intoxicated Jason in peril by taking him to the Bluffs and not promptly calling 911.

PROSSOR ON TORTS

Professor William Prossor was one of the most famous law professors in U.S. history. He literally wrote the book on personal injury law. I was fortunate enough to take his class at Hastings in San Francisco.

Prossor wrote, “While there may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; … it’s another thing entirely to eject him into the danger of a street or a railroad yard; and if he is injured there will be liability.”

IT CAN’T BE MY FAULT

The Court of Appeal ultimately determined that while Sarah and Zach did not intentionally injure Jason, they negligently took him to the Bluffs while he was intoxicated and therefore had a special legal duty to protect him from falling and protect him after he fell.

And for those reasons, a jury could infer that Sarah and Zach put Jason in a position of peril and worsened the situation by delaying the summoning of help.

PORTER’S TAKE

The only thing I can say about the Court ruling, other than I disagree, is that it is a preliminary decision, not a judgment for Jason, but a determination that there is enough evidence of fault to take his case to a jury. A Shasta County jury may very well send Jason packing.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.


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Tahoe Daily Tribune Updated Sep 2, 2014 09:22AM Published Sep 2, 2014 09:45AM Copyright 2014 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.