Case Summaries: Torts

No Collateral Estoppel Precluding Tort Lawsuit From Adverse CPO Findings: The trial court erroneously granted summary judgment in this tort action in favor of defendant, by giving preclusive effect to the Licking County Domestic Relations Court’s finding in plaintiff’s earlier Civil Protection Order (CPO) case that the alleged domestic violence incident had not occurred.  The Licking County CPO proceedings inordinately focused on the issue of whether a particular incident of domestic violence had or had not occurred; the broader focus should have been on whether the petitioner or petitioner’s family or household members were “in danger of violence.”  As such, the Licking County CPO finding that the alleged domestic violence incident had not occurred, while relevant, was not “ essential to the Licking County judgment denying the CPO.  Collateral estoppel cannot be applied unless the identical issues was: (1) actually litigated, (2) directly determined, and (3) essential to the prior judgment.  Folmar v. Griffin, 2008-Ohio-2941 (Fifth Dist., Delaware, 6/17/08).

Keywords: damages liability

Date: 10/24/08

Hospital Has Duty To Report Suspected DV: The Indiana Court of Appeals held that Indiana's statutory duty requiring hospitals to report suspected abuse of "endangered adults" to an appropriate law enforcement or social services agency provides legal grounds for a "failure to protect" negligence lawsuit against a hospital that discharged a suspected domestic violence victim into the custody of her former husband, who killed her on the way home and then killed himself. The hospitals conduct may constitute "negligence per se." Moreover, a hospitals independent duty to safequard its patient from dangers that might result from circumstances within the hospitals control extends to the allegedly inflicting the injuries that necessitated her hospitalization. McSwane v. Bloomington Hospital and Health Care System, No.;53A04-0705-CV-243 (3/12/08).

Keywords: "duty to protect" liability "medical providers"

Date: 6/3/2008

Domestic Violence Creates Cause of Action

The courts of several states have held that marital or relationship violence creates a valid cause of action against the abuser, in some cases even in the absence of physical injury. Carter v. Carter, 846 S.W.2d 173 (Ark. 1993); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993); Sumrall v. Sumrall, 612 So.2d 1010 (La. App. 1993); O'Keiff v. Christ, No. 9228795-A (Dist. Ct. Tex., 4/6/94); Massey v. Massey, 807 S.W.2d 391 (Tex. App. 1991), aff'd 867 S.W.2d 766 (Tex 1993); Hampton v. Duda & Sons, Inc., 511 So.2d 1104 (Fla App. 1987); Curtis v. Firth, 850 P.2d 749 (Idaho 1993); Cusseaux v. Pickett, 652 A.2d 789 (N.J. Super. Law Div. 1994).

Keywords: tort

Date: 4/23/2002

Abusive Spouses Insurance Claim For Victims Injuries Denied

Insurance claim denied after claim filed for intentional tort resulting from domestic violence assault; court stated that coverage would encourage more domestic violence when abusive spouse would be aware that he/she could seek indemnity for the money damages recovered by the other spouse as long as he could prove he did not intend bodily harm to result; spousal abuse is so inherently injurious that it can never be an accident. Cumberland Mutual Fire Insurance Company v. Beeby, 743 A.2d 853 (N.J. Super 2000).

Keywords: moral hazard, coverage

Date: 4/23/2002

Action Against Shelter For Child Stealing

Father filed a civil action against his estranged wife and a domestic violence shelter where she and son stayed for a month, alleging emotional distress. Shelter had refused to disclose whether mother and son were being housed there. Appeals court ruled that, absent any court custody orders, mother had equal custodial rights with father, neither she nor shelter could be guilty of a child stealing crime, so the civil action for interference with a possessory interest in a minor (R.C. 2307.50) does not apply. Appeals court also ruled that "unjustifiably denying information to a parent, information as to the whereabouts and safety of his missing child and spouse, can constitute negligent infliction of emotional distress if such distress in fact occurred." Appeals court further ruled that, since shelter did not establish that any shelter employees were licensed social workers, its records were not covered by privilege statute, R.C. Chap. 4757. Waliser v Tada, 1990 WL 20080 (Franklin 1990).

Keywords: abduction

Date: 4/23/2002

Tort Claims Allowed In Divorce

A divorcing woman should have been allowed to raise a tort claim for the medical condition known as "battered woman's syndrome" in her divorce case and should be allowed to present these claims to a jury as part of the divorce proceeding. A New Jersey appeals court ruled that it was error to dismiss the wife's claims for intentional infliction of emotional distress, negligence, and assault and battery during the lengthy marriage should not have been dismissed under the state's two-year statute of limitations for personal injury, because battered women's syndrome constitutes a continuous tort that tolls the statute of limitations. Giovine v. Giovine, 663 A.2d 109 (N., Super. A.D. 1995).

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Date: 4/17/2002

Insurance Coverage Denied

A man's homeowner's insurer was not obligated to defend or indemnify him for his acts of spousal abuse, where the policy excludes coverage for bodily injuries expected or intended by the insured. A New Jersey court found that spousal abuse is so inherently injurious and reprehensible that as a matter of public policy the abuser's intent to injure must be presumed. Husband claimed he did not intend injury; court found his subjective intent regarding consequences of his abusive behavior irrelevant to issue of insurance coverage. Upon 29 alleged instances of physical and emotional abuse against wife and her children, her court judgment for $30,000 in damages against husband would be his sole liability. Merrimack Mut. Fire Ins. Co. v. Coppola, No. A-4895-95T5 (NJ SuperCt AppDiv 3/31/97).

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Date: 4/17/2002

Civil Rights Action Against Children Services Denied

Children who suffered six years of sexual abuse by mother and her boyfriends were not entitled to bring a 42 U.S.C. 1983 action against children services agency despite 43 abuse complaints filed against mother. T.L. v. Childers, 71 F.3d 1182 (6th Cir. 1995).

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Date: 4/17/2002