The Court of Appeals published Fetchko v. Morgan and Edmonds, a case resulting from a dog named bandit.  Bandit bit a small child and animal control was called.  The next day Fetchko went to pick up the dog.  On the way he met Kay Morgan, the mother of Edmonds, the dog’s owner.  Ms. Morgan was walking towards Fetchko’s truck with one dog on a leash and bandit running free.  Morgan told Fetchko that the dog, bandit, was the one who attacked the child earlier.  Fetchko, who was not at the address yet, apparently didn’t understand what Morgan meant.  He exited his truck and was attacked by bandit. He sued Morgan and the dog’s owner Edmonds.

The Jefferson Circuit Court granted summary judgment against Fetchko, claiming Fetchko assumed the risk of being bitten by dogs in his position as an animal control officer.  Fetchko appealed, claiming that the court erred in finding he assumed the risk, Morgan cross-appealed claiming she was not an owner of the dog, and Edmonds cross-appealed claiming the firefighters rule should be extended to this case to protect her from liabiity.

First, the Court of Appeals found that Morgan qualified as the owner of the dog under the statutory definition.  Second, the case relied upon by the circuit court that Fetchko assumed the risk was distinguishable from the present facts.  The case, Jordan v. Lusby, dealt with a dog groomer who had taken custody of the dog when she was bitten.  Here there was no such custody taken.  Finally, the court did not extend the firefighters rule finding that even if the firefighter’s rule applied Fetchko never made it to the location where the dog was to engage in the “specific risk” of taking custody of the dog, which is a requirement.  The court reversed the summary judgment.

Editor’s Comment:

Am I the only one who sees the irony in allowing an animal control officer, whose job it is to take custody of dangerous animals, to recover for injuries sustained while in the performance of that duty, merely because he encountered the dog on the street and not at the location listed on the report?  It’s slightly absurd to think that Fetchko did not know the dog he was encountering was dangerous, after Morgan told him specifically “that the unleashed dog was the dog that had bitten her grandchild the previous evening.”  Fetchko’s claims he did not know it was the dog he was to retrieve are questionable and mostly irrelevant since he was on notice that the dog was dangerous, yet he failed to take precautions to protect himself.  (At this time bandit is unleashed and Fetchko knows from Morgan that the dog bit a small child).

Furthermore, the reliance by the court on Jordan is likewise misplaced.  Jordan dealt with the issue of ownership, not risk.  Because the dog groomer had taken custody of the dog, she was found to meet the statutory definition of “owner.”  Jordan held that “owners” couldn’t recover for injuries sustained by other “owner’s” dogs.  Here Fetchko assumed the risk of being bitten because he knew the dog to be dangerous, because Morgan told him so.  Yet, he chose to exit his truck and encounter the dog anyway.

I can’t wait to see people’s reactions when this case hits the papers.

The Court of Appeals just published Lemaster v. Fluke Corp., which resulted from a products liability case. The Lemasters, along with another man, Arnett, were injured after an explosion occurred while they were working on an electric panel. The main breaker switch was in the off position and power appeared to be off inside the plant. The crew used a voltage meter to insure that no voltage was present. The voltage read zero, but unfortunately, the panel was hot and an arc caused an explosion. The voltage meter was originally tested and found to be in proper working order. The plaintiffs alleged that the electrical circuit connecting the power source to the crusher unit breaker and to the crusher unit motor had been wired to bypass the main breaker. They thought they had been injured by improperly wired or erroneously labeled circuit breakers.

In late August of 2001, the plaintiffs learned that some Fluke voltage meters were likely to give inaccurate readings under certain circumstances. On September 3, 2001, Plaintiffs filed an amended complaint charging that Fluke Corporation had manufactured and placed into the stream of commerce a faulty voltage meter. Fluke defended on statute of limitation grounds and filed for summary judgment.

The trial court granted summary judgment as to Lemasters but held that Arnett was incapacitated from his injuries and therefore, the statute tolled with respect to him. Lemasters had to wait for the trial with Arnett before appealing. (Arnett was awarded over $2 million). Essentially, Lemasters argued that Fluke knew of a defect in its product yet failed to tell the Consumer Product Safety Commission until sometime in 2001. According to the Lemasters this was the first time they could have known that the product was defective. Fluke defended claiming that a reasonable inspection and the facts as present would have put Lemasters on notice of a potential claim. Fluke argued that its failure to report the problem to the CPSC did not affect Lemasters current claim.

The Court of Appeals estopped Fluke from relying on the statute of limitation, claiming that it’s failure to notify the CPSC was a misrepresentation about the products safety sufficient to toll the statute of limitation. It did not think that Fluke should be rewarded by such behavior. It noted that the voltage meter was originally tested and found to be working. Therefore, the plaintiffs had complied with their duty to reasonably inspect. According to the Court; “The elements of equitable estoppel have been met in this case. In light of the circumstances alleged by the LeMasters and supported by their discovery documents, it appears that the manufacturer indeed remained silent when it had an affirmative statutory obligation to report information relative to the safety of its product.”

Editor’s Comment:

Certainly an interesting scenario. Fluke makes some valid points. Main breaker off, lights off, no voltage on meter, voltage in panel, boom, voltage meter must be defective. They also note, probably correctly, that the concealment did not prevent the plaintiffs from taking affirmative action to find out if the product was defective. However, its not like the plaintiffs didn’t do anything. They relied on the report by the federal agency that the voltage meter wasn’t defective. Besides, these are all technical arguments, which are lost when you look at the immense damage done by a product the company knows is defective, yet conceals that knowledge. As between the two, I can’t say that technical arguments from a company concealing defective products should carry the day.

The Court of Appeals has posted its minutes for June 27th, here.  Please check back for digests of published opinions related to tort and insurance law.