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Engineering Emergency Medical Treatments

Star Trek Discovery season 2 opened with Brother, which captured the essential qualities of Star Trek. The episode is about a phenomenon that could be a massive threat that brought Captain Christopher Pike onboard the USS Discovery.

Our heroes discovered the USS Hiawatha, a medical frigate that had crashed on an unstable asteroid where the crew expected to find the red anomaly of unknown origin. The Hiawatha was lost ten months earlier during the Klingon War. The Away Team found the heavily damaged hull and met Commander Jett Reno. Reno was the engineering officer who had kept injured crew alive with “alternative” medicine based on her engineering skills and crash course in medical texts. For example, one crewmember she nicknamed Valentine needed a heart transplant, so she used the heart of a dead Bolian in jar with a pump system to keep the patient alive.

Did Commander Reno get consent from the patients for her engineering based medical treatments? Are there any defenses for her in the event someone sues for her “ipsumpathy” emergency medical procedures?

Duty to Inform Patient of Possible Consequences of Medical Treatment

Doctors have a duty to inform a patient of possible consequences of a medical procedure and secure informed consent of their patients. This is a defense to a malpractice action. Exceptions for not securing consent include a patient being unconscious; a doctor reasonably believed that a medical procedure should be undertaken immediately and that there was insufficient time to fully inform the patient; and procedure was performed on a person legally incapable of giving consent and there was insufficient time to obtain informed consent for that person. See, Cal. Bus. & Prof. Code § 2397(a)(1) to (3).

As fast as you can say, “Damn it, Jim, I am a doctor, not an engineer,” you can notice a problem for Commander Reno: she was an engineer, not a doctor.

Medical Treatment After a Vessel Accident 

Commander Reno has a valid defense if any of her medical decisions are questioned under a “Good Samaritan” law for vessels involved in a collision, accident, or other casualty. Vessel operators in an accident have a duty to render aid to persons affected by the accident that is practicable and necessary to save them from the accident, provided they could do so without serious injury to their own vessel. Cal. Harb. & Nav. Code § 656(a).

Anyone who in good faith renders assistance at the scene of a vessel accident without objection by any person assisted, shall not be held liable for any civil damages sought for any medical treatment, provided the assisting person acted as a “an ordinary, reasonably prudent person would have acted under the same or similar circumstances.” Cal. Harb. & Nav. Code § 656(b).

Commander Reno was likely the third or fourth person in command of the USS Hiawatha. It is highly likely the Captain and First Officer were killed in the attack that crippled the vessel; the commanding officer does not normally abandon ship while anyone is left aboard. It is highly likely Reno was in command due to death or injury of the bridge officers. Reno bravely stayed with the “sinking” ship, because the remaining injured could not be evacuated to escape pods.

Reno could argue she reasonably believed she had a duty to save the injured officers after the crash as the officer in charge of the vessel. The injured officers had varying life threatening injuries that would have resulted in death if not treated. As in the case of Valentine, the officer who needed a heart transplant, he would have died but for Reno piggybacking his heart to a Bolian heart. Reno went beyond what a reasonably prudent person would do, to what an exceptionally brilliant person would do in order to save life. While Reno lacked a medical degree, she clearly was resourceful and should avoid any liability if she did not seek consent before her unorthodox emergency medical treatments.

The better question is what awards to nominate Reno for her gallant conduct in saving the lives of others. That is one of the defining characteristics of Star Trek and it is great to see it again each week.

What’s Neeku’s Liability for Bibo?

Star Wars Resistance honored Kaiju films such as Gorgo and Gappa: The Triphibian Monster with the episode Bibo. The story focused on Neeku Vozo adopting a small creature that smelled horrible and ate anything. Neeku named his new pet Bibo.

Bibo’s odor caused Neeku’s coworkers distress. The creature also caused vaudevillian shenanigans on the Colossus. Could Neeku be financially responsible for any damages caused by Bibo?

The first issue is determining whether Bibo is a domestic animal that is not abnormally dangerous or a wild animal. The distinction matters, because if Bibo is a domestic animal, then Neeku would be held to a negligence standard. If a wild animal, the Neeku could be strictly liable for any damages caused by Bibo.

The general rule for domestic animals that are not abnormally dangerous, which includes the owner not knowing the animal to be abnormally dangerous, is the owner is subject to liability for any harms done by the animals if the owner 1) intentionally causes the animal to do harm or 2) is negligent in preventing the harm. See, Restat 2d of Torts, § 518 (2nd 1979).

The standard is different for wild animals, because a “wild animal is presumed to be vicious and since the owner of such animal…is an insurer against the acts of the animal to anyone who is injured…” Baugh v. Beatty, 91 Cal. App. 2d 786, 791, 205 P.2d 671 (1949) (case involving an attack by a chimpanzee).

Bibo was found in the wreckage of a Z-95 Headhunter that was recovered from the Karavian Trench. Given the deep-sea nature of Bibo’s natural habitat, he clearly is a wild animal and not a domestic one. Just a dolphin might be highly intelligent, they are wild animals and not kept as pets.

Bibo is comparable to someone keeping a juvenile marine mammal or bear cub as a pet. Yes, they are cute and adorable, but they can grow-up to be a large and deadly animal. Just like Gorgo. If Neeku had kept Bibo, he could have subjected himself to personal liability for the little guy eating somebody’s ship.

Neeku was encouraged to feed Bibo to the Rokkna attacking the Colossus, when bystanders believed the leviathan fed on Bibo. This raised issues of cruelty to animals, with people willing to sacrifice Bibo for their own safety. It is a felony to maliciously maim or torture a living animal. See, Cal. Penal Code § 597. Feeding a defenseless animal as some sort of blood sacrifice to a giant creature, no matter how smelly, arguably would be the intentional and malicious killing of that animal.

In the true Jedi tradition, Neeku found a peaceable solution to the crisis of Bibo’s mother attacking the Colossus by reuniting parent and child. Let’s just hope no one sues Neeku for Bibo’s mom attacking.

Bumblebee Better Buckle Up

Bumblebee is a beautiful tribute to everyone who grew up playing with Transformers in the 1980s. The film is set in 1987 in a fictional California town that looked like Santa Cruz located in San Rafael, with heavy homages to pop culture, TV dinners, and the theme song from the animated Transformers movie. However, there are more than a few moving violations in Bumblebee. Put on your seatbelts, because there are spoilers ahead.

Vandalism

Memo talked Charlie into seeking revenge after a mean girl taunted Charlie about the death of her father. The instrumentalities of vengeance were to “TP” and “egg” the mean girl’s house. Bumblebee, who had suffered a traumatic brain injury after being assaulted by the Decepticon Blitzwing, escalated the revenge operation by destroying the mean girl’s car.

Vandalism is the malicious defacing with graffiti, damaging, or destroying, or real or personal property. Cal. Penal Code § 594(a)(1) to (3). Hitting a car with eggs is the intentional damaging of property. Moreover, Bumblebee’s dance moves on the car crushed the vehicle. There is no way around the fact the heroes engaged in a criminal conspiracy to conduct vandalism on a spoiled brat who cruelly mocked the death of Charlie’s father. While the victim most likely lacked a soul, the good guys are not supposed to seek revenge. That is to say nothing about using a mentally diminished Autobot as a henchman. Charlie had recently turned 18 and could be prosecuted as an adult. The issue of recognizing legally Bumblebee as a person aside, there could be a good insanity defense argument due to Bumblebee’s reduced mental capacity.

Reckless Driving

Bumblebee failed to stop for a police officer after escaping from their act of vandalism. Bumblebee engaged the officer in a high-speed chase that included going off the side of a cliff, hanging on the guardrail, and automotive gymnastics in a tunnel. Ideally self-driving cars do not drive like like our favorite VW Autobot. 

It is established law that police officers have a duty to stop a vehicle that they observe on a public street where a violation of the Vehicle Code is evident. See, People v. Evans, 240 Cal. App. 2d 291, 298 (1966). A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. Cal. Veh. Code § 23103(a). If Bumblebee qualifies as a person, there are serious issues that he engaged in reckless driving and the police officer had a duty to stop Bumblebee for the Vehicle Code violation. If Bumblebee is not legally a person, then Charlie who was in the driver’s seat, arguably lost control of her vehicle literally and figuratively, and should be held to account. 

California law states that anyone operating a vehicle with the intent to evade a police officer, or willfully attempts to elude a police officer, is guilty of a misdemeanor. The punishment is up to one year in jail. See, Cal. Veh. Code § 2800.1(a). As the police officer in pursuit had 1) one red light visible that Charlie and Bumblebee saw; 2) sounded his siren; 3) the police car was distinctively marked (in 1980s flare); and 4) the police car was operated by a police officer in a distinctive uniform, there is no question that Charlie and Bumblebee could be charged with evading a police officer. There could be additional charges for attempting to elude the police officer with a willful disregard of the safety of others (such as driving off the side of the road). Cal. Veh. Code § 2800.2.

Charlie and Bumblebee had a duty to stop when they saw a police officer was pursuing them for their exhibition of speed. They failed to do so and instead embarked on a high speed chase in violation of the law that has been on the books since the 1970s. These laws are not meant to be a buzz kill (no relation to the Autobot), but to keep people from getting killed. 

Mandatory Seatbelt Laws

California enacted mandatory seatbelt laws in 1985 (see, Cal. Veh. Code 1361 § 1.5, now Cal. Veh. Code § 27315) and was effective on June 1, 1986 after being amended. This law was enacted with the intent to reduce highway deaths and injuries by wearing seatbelts. Current law requires that persons under 16 years of age “shall not” be a passenger in a car on the highway unless restrained by a seatbelt. Cal. Veh. Code § 27315(e). Fines for not wearing a seatbelt are $20 for a first time offense not more than $50 for each additional offense. Cal. Veh. Code § 27315(h).

The Watson family car did NOT have seatbelts in 1987. Moreover, this is a worrisome fact that the family car owned by a NURSE did not have seatbelts installed in order to comply with the law. While not discounting the threat of giant robots trying to eliminate all of humanity, Sally should get seatbelts.

Stored Communications Act

The US Government arguably violated the 4th Amendment and Stored Communications Act (SCA) by allowing the Decepticons Shatter and Dropkick to access data networks and communications.

The SCA was enacted in 1986 and prevents “providers” of communication services from divulging private communications to certain entities and individuals. It “creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users’ private information. Crispin v. Christian Audigier, Inc., 2010 U.S. Dist. LEXIS 52832 (C.D. Cal. May 26, 2010). Without taking too deep a dive into the definitions of Remote Computing Service (RCS) and Electronic Communication Service (ECS), these existed in 1987. The fact the government enabled the Decepticons to access both Remote Computing and Electronic Communications Services was a violation of the Stored Communications Act and an unlawful search of everyone in the Western United States.

Bumblebee is a Fun Ride

The 1980s Transformers cartoon was must see TV in my childhood. I fondly recall racing to finish homework in order to watch the show when it came on at 400pm. The Bumblebee movie does a wonderful job capturing everything fun about Transformers and is worth a trip to the theater to see it. 


2018 Retrospective

We had an amazing 2018. Jessica and I shared our highlights from the year that was. Thank you everyone who joined us for the adventure.






















How to Sue the Kingpin for Breaching the Spider-Verse

Go see Spider-Man Into the Spider-Verse. The film is a testament to all Spider-Man comics and a complete joy. Major spoilers ahead true believers, so don’t read any further until you see the movie.

The Kingpin of Earth-1610 commissioned Dr. Olivia Octavius to build an inter-dimensional collider to find identical versions of his late wife and son. The experiments caused a breach into multiple different universes, allowing property from different realities to crash into the New York of Earth-1610. Multiple versions of Spider-Man and other web-slingers were also pulled into Earth-1610 against their will.

What are the possible causes of action against Wilson Fisk for his experiments?

The issue of property damage on Earth-1610 is the most lineal one to analyze (well, excluding what Kingpin did to Peter Parker of Earth-1610). New York case law examining property damage from intentional blasting has strict liability for property damage. Spano v. Perini Corp., 25 N.Y.2d 11, 17-18 (1969). Case law originally allowed a defendant to avoid liability if they could show they took reasonable care to avoid injury, however that view was rejected, because someone who engages in blasting should NOT be able to “to impose this risk upon nearby persons or property without assuming responsibility therefor.” Spano, at *18, rejecting Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267 (1893).

The inter-dimensional collider experiments were inherently dangerous activities, in the same category as blasting operations. As such, Wilson Fisk would be held liable for injuries caused to neighboring property with or without trespass. Cont’l Ins. Co. v. Great Lakes Dredge & Dock Co., 163 Misc. 2d 594, 595 (App. Term 1994). The only issue is how to prove damages were caused by the inter-dimensional collider experiments.

Plaintiffs would need to prove that “but for” the inter-dimensional collider experiments, their property sustained damage. This could include that prior to the time of the experiments, their property did not have any damages, and after the experiments their property was damaged. This could be from testimony, but cell phone photos, street camera footage, and other evidence to document property condition might be required to show the damage was caused by property from an alternate reality crashing into the subject property in the lawsuit

One possible complexity is that the alien property that caused the damage returned to its reality after the threat was neutralized, which would require plaintiffs to present evidence with photos or video of the damage. While it would be ideal to have actual footage or alternate realities crashing into damaged property, a court likely would not require that much proof given the extreme nature of the incident.

The harder question is for individuals on alternate Earths to sue Wilson Fisk for damage to their realities. There are substantial service of process and forum non conveniens issues in seeking relief for damage caused in mirror universes.






















Did Santa Claus Engage in Reckless Child Endangerment?

The Netflix holiday movie The Christmas Chronicles starring Kurt Russell raises interstate issues of child endangerment. Did Santa Claus knowingly endanger the lives of Teddy and Kate Pierce on their Christmas Eve adventure?

Child Endangerment in Massachusetts

Teddy and Kate Pierce stowed away in Santa’s sleigh on Christmas Eve near their home in Lowell, Massachusetts while trying to surreptitiously document Santa’s existence on videotape. After surprising Santa in flight, Kate was ejected from the sleigh, recovered in free fall, and the trio nearly had a midair collision with an airliner, and ultimately crash-landed outside of Chicago, Illinois.

Massachusetts law defines child endangerment as follows:

Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 2½ years.

For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Mass. Ann. Laws ch. 265, § 13L.

If Santa Claus sees you when you are sleeping and knows when you’re awake, how did he not the whereabouts of the Pierce children? If Santa Claus knew the children were in the sleigh, and proceeded to take them across state lines with the above-mentioned risks, he did so with full knowledge of their presence. There is a strong argument that such conduct recklessly created a substantial risk of serious bodily injury, specifically Kate nearly free falling to her death, and the near midair collision with an aircraft (to say nothing about the risk of life to the airline passengers).

If Santa Claus was somehow unaware of the Pierce children, there is a strong defense that he did not endanger them, because the risks of injury were created by the children’s conduct of stowing away and surprising Santa Claus, thus being the proximate cause of the dangerous inflight situations.

Child Endangerment in Illinois

The issue of child endangerment was fundamentally changed after Santa Claus and the Pierces crashed in Chicago, because Santa Claus had actual knowledge of the children.

Stealing a Stolen Car

17 year old Teddy Pierce absconded with keys to a stolen red Dodge Charger, which Teddy drove for Santa and Kate Pierce in their search for the reindeer and missing bag of toys.

Contributing to the delinquency of a minor is when an adult directs or compels a minor to commit an offense that is either 1) a felony when the minor is under 17 years old; or 2) a misdemeanor when the minor is under 18 years old. 720 Ill. Comp. Stat. Ann. 5/12C-30(b).

Theft includes someone knowingly obtaining control over stolen property. 720 Ill. Comp. Stat. Ann. 5/16-1(a)(4). Theft of property exceeding $10,000, but under $100,000 value, is a Class 2 felony. 720 Ill. Comp. Stat. Ann. 5/16-1(b)(5).

The value of a Dodge Charger is at least $28,000, Teddy Piece could be convicted of a Class 2 felony in Illinois. As such, given Santa’s influence over Teddy, Santa could be charged with contributing to the delinquency of a minor for the theft of the Charger.

High Speed Police Chase

Santa Claus was in a high-speed police chase with Teddy Piece in the Dodge Charger. A person commits child endangerment if they cause a child to be placed in circumstances that endanger the child’s life or health. 720 Ill. Comp. Stat. Ann. 5/12C-5(a)(2). Engaging in a high-speed chase is without question endangerment of a child. The same could be said for telling Kate Pierce to ride magical reindeer without a saddle, which placed her in risk of falling off a galloping reindeer.

It’s a Christmas Miracle

The Christmas Chronicles is a delightful family holiday movie. The reason for alleged crimes were pivotal to a specific character’s redemption. There is also a strong argument that Christmas magic actually negated all the risks to the children, thus eliminating the essential elements of endangerment for any charges to be filed against Santa Claus. Legal analysis aside, be sure to watch Kurt Russell as Santa Claus this year.






















Could the Burgermeister Meisterburger Ban All Toys in Sombertown?

We can all agree that stepping on a LEGO in bare feet is painful, but Congress is not enacting a LEGO ban. In the Rankin/Bass holiday classic Santa Claus is Coming to Town, the killjoy Burgermeister Meisterburger banned all toys after a slip and fall accident.

While there could be tort liability for leaving a toy on the stairs of a public office, this was not an assassination attempt. It was an accident. This was no reason to declare all toys “illegal, immoral, and unlawful.” Worse yet, the punishment was immediate arrest of anyone, even children, with a toy, and thrown them in the dungeon.

This…is not cool. A country predicated on freedom does not enact total bans lightly. Burgermeister Meisterburger had the all the charm of Nikita Khrushchev and Leonid Brezhnev having an illegitimate lovechild with low blood sugar. The story of Santa Claus is Coming to Town told during the height of the Cold War was a stark reminder that life in Eastern Block countries under Soviet Communism was the definition of “Un-fun.”

But would a total toy ban be Constitutional in the United States?

Specific kinds of toys have been banned by states and cities. For example, New York banned the importation, manufacturing, distribution, or sale of yo-yo waterball toys. N.Y. Gen. Bus. Law § 399-e. These toys are a type of yo-yo that is a ball made of a rubber-like material that is filled with liquid. While not stated in any legislative history, it is easy to imagine someone freezing one of these yo yo balls and using it as a weapon. The state of New York took these yo yo’s serious enough that any sale of one is a $1,000 fine.

Many states have prohibited the possession of toy guns that look like real guns. These laws are Constitutional, because there is a reasonable relationship between the public welfare and the act proscribed. People v. Judiz, 381 N.Y.S.2d 467, 468, (1976). We don’t want people having toy guns, because there were incidents of people attempting to commit crimes with these realistic toys and horrible incidents of police officers mistaking these toys as real guns.

New York’s ban on nunchakus was held Unconstitutional on the grounds it violated the 2nd Amendment. Moreover, the court applied intermediate scrutiny because the law banned involved 2nd Amendments rights. Maloney v. Singas, 2018 U.S. Dist. LEXIS 211546, at *23 (E.D.N.Y. Dec. 14, 2018). Furthermore, the Court held that nunchakus were not inherently dangerous. By way of comparison, toys are not inherently dangerous and the same logic would apply to toys, with the exception of the 2nd Amendment rights.

The issue for the Burgermeister Meisterburger’s decree is whether such a ban could pass the “Rational-Basis Test,” which asks whether a law furthers a legitimate government interest. Bd. of Trs. v. Fox, 492 U.S. 469, 471 (1989). The goal to avoid people from tripping on stairs is a legitimate government interest, but that is an issue of negligence, not one of a total toy ban. Moreover, the Burgermeister Meisterburger did not ban trip hazards on steps, but all toys. Leaving banana peels, rakes, or animal waste on steps would all be trip hazards, which the Burgermeister Meisterburger ignored.

The toy ban is silent on the definition of a “toy.” A statute is not vague when the meaning of words can be fairly determined by judges, common, dictionaries, or the word themselves. See, Bowers v. State, 283 Md. 115, 125 (1978).

A statute can be impermissibly vague if it 1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or 2) if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000).

The Burgermeister Meisterburger led raids on his citizens’ homes to confiscate toys based solely on his personal opinion of what was a toy. This is the textbook definition of arbitrary and discriminatory conduct. Reasoned people could find themselves thinking anything that could be played with is thus a toy, meaning brooms or towels could land them in the dungeon. Moreover, alphabet block letters could be viewed as either a toy or educational tool that could result in people living in fear of prosecution.

The 4th Amendment prohibits government from conducting unreasonable searches and requires probable cause for search warrants. The Burgermeister Meisterburger was personally leading his state police to search homes for toys. There was no probable cause, other than the fact a child lived in the house. This would be profiling at its worst, assuming all children are criminals because they might have a toy.

The 8th Amendment prohibits cruel and unusual punishment. We also value that punishments for criminal actions must be proportional to the crime. Having a rubber ducky should not result in someone being thrown in a dungeon. Not a prison, a dungeon. Worse yet, the Burgermeister Meisterburger was willing to throw children in his dungeon for the act of playing with toys. What next, putting children in cages if their parents commit a misdemeanor?

The Burgermeister Meisterburger’s decree did not have a valid government interest, was arbitrary in its application, was used to conduct illegal searches, and its application resulted in cruel and unusual punishment. There is no way a total toy ban would be Constitutional.

And for the record, children leaving doors unlocked for Kris Kringle to leave them toys made him an invitee, not a trespasser.






















AbbyShot's Eleventh Doctor's Purple Coat