Learning Goals • Practice using IFRAC to understand legal reasoning • Practice your critical reading and thinking skills • Practice your writing skills Assignment Write a case brief of the case of Reese v. Stanton and Harlow’s School Bus Service, Inc. (which is uploaded in this module) using IFRAC + a final paragraph on how you would have ruled: 1. State the name of the case – listed on the front of the decision. 2. Issue: State the legal issue(s) in the case. These Issues are usually listed at the beginning of a Montana Supreme Court case. Oftentimes, there are more than one issue. In our case, Reese v. Stanton and Harlow’s School Bus Service, Inc., there are 3 issues on appeal. 3. Facts: Briefly summarize the key facts of the case. Do not simply reproduce the entire set of facts from the opinion, but instead write a concise summary (divided into paragraphs) explaining the key players and what happened. Be sure to include how the trial court ruled before the appeal was filed. In Montana Supreme Court cases, the facts are usually presented at the beginning of the decision under a section entitled Procedural and Factual Background. 4. Rules: Explain the legal rules the court uses to decide the case. These rules may come from other cases, statutes or treatises. The rules should be in your own words, not cut and pasted. The rules are usually addressed in Montana Supreme Court cases in the Standard of Review section and the Discussion section. You will find them by looking for case citations after the statement of laws. 5. Analysis: Carefully review the Discussion section here. Note how it is divided up, according to the issues raised. Summarize and explain why the court ruled as it did on the issue, including not just the application of the facts with the legal rules, but also the policy reasons for its ruling. The headings in the cases serve as a good guide to the organization of the court’s arguments. Parallel these to your summary. 6. Conclusion: State the court’s decision clearly and concisely, i.e. this is the answer to the statement of the issues you answered above. 7. Your opinion. Finally, although it is not formally a part of IFRAC, write one brief paragraph about how you would have ruled in this case. Do you agree with the court? Why or why not? Use relevant legal rules to support your argument. Writing • • • Make sure you have a strong topic sentence for each paragraph. (Do I need to say that you should use paragraphs??) Do not include an introduction or conclusion – IFRAC takes care of that for you Because the rules you list should include only the rules used by the court, you may cite the source of your rules simply as “Craig, p. x” (i.e. include the appropriate page number). You don’t need a separate reference page – internal citations to your case are enough. Citations can be either by ¶ x or p. x. a sample brief of the case Kelly v. Sampson. Although Kelly is a very different case, the sample should give you good idea of what your brief should look like. My best approach in doing a Case Brief is to first set up the format on my document with the IFRAC sections. Next, I “cut and paste” the Issues from the decision (page 2 of our decision) to this section. Next, I go on a “hunt” through the decision for my rules and add them to the Rules section. I go to my Conclusion section next and set them up to “answer” each Issue (see advice below). Next, I summarize the Facts, and then I hit the Analysis section. The Analysis might take you the longest time, because you are “tracking” the Montana Supreme Court’s application of the facts to the law (rules). Of course, the Opinion section comes last. This approach helps me – maybe it will help you. In the spirit of fairness to all, I’m sharing with you some pointers I’ve given out to some of your classmates this week. Here they are so far: Issues – There are 3 issues. Separate them into 3 “Whether…” or “Did…” sentences. See page 2 of the decision for a good statement of the issues. Facts – Try to pare them down to about 3 or 4 paragraphs maybe one paragraph for the facts of the accident and injuries and medical treatment, and three for the trial court rulings. Be sure to include who filed the motions considered by the trial court and how the trial court ruled on the motions. Rules – Be sure to include some of Montana Rules of Evidence discussed and some of the case law used. Have a brief sentence about what each rule meant. I’m looking for at least 6 rules here. You are welcome to add more. Analysis – Divide it into 3 sections – one for each issue. You can “paste” each issue above each section. Track how the Montana Supreme Court applied the facts to the law. This should be your longest section of the Case Brief. Conclusion – This section should “answer” each Issue and only state the ruling. You should separate it into 3 sections because there are 3 Issues. Look very carefully at page 11, paragraph 25, of the Conclusion on Issue 1. The Conclusion for Issue 2 is easier to find – paragraph 28. The Conclusion for Issue 3 is found in paragraph 33. I look forward to reading your “Opinion” sections – whether you agreed with the rulings of the Montana Supreme Court – or not! I hope this helps Case: Kelly v. Sampson Issue Whether the plaintiff submitted enough evidence to survive a motion for summary judgment where the plaintiff argued that the defendant business breached its duty to its customer by failing to provide a security guard to protect its customers from an armed robber. Facts Sampson owns Pay Day Cash, a cash lending business. Pay Day Cash had iron bars on the windows of its building, bulletproof glass on its teller’s windows, a security camera and a silent 911 alarm. As Kelly, a customer, approached Pay Day Cash’s teller’s window, Watts pulled out a gun, shot Kelly, and attempted to rob the premises. In the five months prior to the Pay Day Cash robbery, Watts had robbed seven other small businesses in the area, and in the last 6 weeks had shot two store clerks and a bystander in the course of two robberies. Sampson knew about these crimes and warned its employees to look out for suspicious people because there “was a madman on the loose.” Kelly sued Sampson for negligence, claiming that Sampson did not take reasonable precautions to protect her against the foreseeable risk of an armed robbery, including posting a security guard. The trial court granted Sampson’s motion for summary judgment on grounds that Sampson did not have a duty to post a security guard, and Kelly appealed. Rules 1. Summary judgment is granted when there is no genuine issue of any material fact. To survive a motion for summary judgment, the plaintiff need only provide a “scintilla” of evidence. (p. 2) 2. “To prevail on a negligence claim, a plaintiff must establish duty, breach, causation and damages.” (p. 4) 3. “A business owner has a duty to take a reasonable action to protect its invitees against the foreseeable risk of physical harm.” (Gopal II, p. 3) 4. The balancing test for determining breach and duty acknowledges that duty is a “flexible concept,” and, requires the court to balance the degree of foreseeability of harm against the burden of the duty imposed. (Gopal II, p. 3) The “more foreseeable a crime, the more onerous is a business owner’s burden of providing security.” (p. 3) The “optimal point at which a dollar spent equals a dollar’s worth of prevention . . . may be roughly ascertained with the aid of an expert . . . .” (Gopal II, p. 3) Analysis (p. 4-5) To survive Sampson’s motion for summary judgment, Kelly had to present evidence both that the crime was foreseeable and that Sampson’s failure to post a guard was unreasonable. The Court found that Kelly had presented sufficient evidence that the attack by Watts was foreseeable to Sampson. Both the owner and the manager of the business were aware of the previous armed robberies in the area, and the owner had warned his employees to look out for suspicious people. Therefore, the physical harm to Kelly as a result of the armed robbery was a foreseeable risk. The next question was then whether Sampson took reasonable precautions against the foreseeable risk of harm. The court found that Kelly, through her expert witness, presented enough evidence to create a genuine issue of material fact on the question of whether Sampson’s failure to post a security guard was reasonable. Because Kelly’s expert testified that the attack probably would not have occurred if Sampson had posted a security guard, the court held that Kelly had presented enough evidence on Sampson’s alleged breach of duty to create a question of fact for the jury. In other words, the court held that a jury, not a judge, should decide whether Sampson had breached its duty to Kelly, particularly in light of the “heightened risk of danger beyond the ordinary operation” of the business in this case (p. 5). The court therefore reversed the grant of summary judgment in favor of Sampson and remanded the case to the trial court for a trial. The dissent frames the issue not as whether Sampson breached its duty, but instead as the narrow question of whether a business has a duty to post a security guard, and answers in the negative. (p. 5) Quoting the trial court’s summary judgment decision, the dissent argues, using the balancing test, that the economic burden on businesses of having to hire a security guard, absent prior crimes on the business’ premises, outweighs the foreseeability of the crime (p. 6). The majority counters the dissent by stating that its decision does not impose a duty on businesses to hire security guards, but merely allows a jury to decide whether Sampson breached its duty to Kelly to take reasonable precautions against foreseeable harm (Footnote 4, p. 4). Conclusion The court held that Kelly had, through her expert, presented enough evidence that Sampson breached its duty by failing to provide a security guard, and that therefore the issue must be presented to a jury. Your Opinion You could agree or disagree with the court’s decision, but either way you need to use the law to support your opinion. Below are two sample ways to make your argument. A. I agree with the Court’s decision because the crime was highly foreseeable and, given the seriousness of likely harm, Sampson arguably had a duty to take more extensive precautions than it did. The Gopal II court stated that the “more foreseeable a crime, the more onerous is a business owner’s burden of providing security.” This crime was very foreseeable because Watts had killed 3 people in the last 6 weeks in the course of robbing small establishments in the area, and in fact Sampson had warned its employees about the “madman on the loose,” indicating that Sampson thought it possible that the armed robber could try to rob Pay Day Cash. Therefore, Sampson had a duty to take significant precautions to protect its customers. Its existing precautions (bars, bullet proof glass, security camera, 911 alarm) were all intended to protect its employees, not its customers. A guard might have protected both employees and customers by deterring the crime in the first place, and in fact Kelly’s expert stated that the crime probably would not have occurred had Sampson posted a guard. Therefore, there was indeed an issue of fact about whether Sampson took adequate precautions in light of the foreseeability and likely extreme harm resulting from the crime, and it was appropriate to reverse the grant of summary judgment and remand the case for trial. B. I disagree with the Court’s decision because, applying the balancing test, the cost to small businesses of posting a guard exceeds the foreseeability of a random act of violence. Kelly did not argue merely that Sampson should have taken more security measures, but instead specifically argued that Sampson should have hired a security guard. Had Kelly argued simply that Sampson should have taken precautions beyond bars on the windows and bullet-proof glass, I would agree that the issue should have done to the jury. But Kelly focused only the necessity of hiring a guard. The balancing test requires a court, in determining whether a defendant has breached a duty, to “determine (1) if a crime is foreseeable, and (2) given the foreseeability, determine the economically feasible security measures required to prevent such harm.” (Gopal II, p. 3) Although seven armed robberies had occurred in the county in the last five months, none occurred closer to Pay Day Cash than two miles, and no crimes had occurred on or even close to Pay Day Cash’s premises. Therefore, the robbery was not highly foreseeable. The economic burden on small businesses of having to post a guard just in case a robbery occurs, on the other hand, exceeds the foreseeability of the harm. Therefore, no reasonable jury could find that Sampson had a duty to hire a security guard given the low foreseeability of the crime at Pay Day Cash and the excessive burden of hiring a security guard. I would therefore affirm the trial court’s grant of summary judgment. October 13 2015 DA 14-0791 Case Number: DA 14-0791 IN THE SUPREME COURT OF THE STATE OF MONTANA 2015 MT 293 ROBIN REESE, Plaintiff and Appellant, v. BETTY ROSEANN STANTON and HARLOW’S SCHOOL BUS SERVICE, INC. OF MONTANA, a Montana Corporation, Defendants and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 12-776(C) Honorable Heidi Ulbricht, Presiding Judge COUNSEL OF RECORD: For Appellant: Angela Jacobs Persicke, Hammer, Jacobs & Quinn, PLLC; Kalispell, Montana Michael A. Viscomi, Viscomi & Gersh, PLLP; Whitefish, Montana For Appellees: Patrick M. Sullivan, Poore, Roth, & Robinson, PC; Butte, Montana Submitted on Briefs: August 19, 2015 Decided: October 13, 2015 Filed: __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court. ¶1 Robin Reese (Reese) appeals from the denial of Reese’s motion for a new trial by the Eleventh Judicial District Court, Flathead County. We affirm in part, reverse in part, and remand for a new trial. ¶2 We address the following issues on appeal: 1. Did the District Court abuse its discretion when it admitted into evidence the opinions and reports of doctors who did not testify at trial? 2. Did the District Court abuse its discretion when it excluded evidence of the original charges billed by medical providers? 3. Did the District Court abuse its discretion when it struck portions of a video deposition as previously undisclosed expert opinion? PROCEDURAL AND FACTUAL BACKGROUND ¶3 On November 13, 2009, Reese, while in the course of her employment with Montana Coffee Traders, Inc., was a passenger in a van that was struck by a bus owned by Harlow’s School Bus Service (HSBS). As a result of the accident, Reese suffered injuries. ¶4 Reese filed a Workers’ Compensation claim. Reese’s Workers’ Compensation claim was managed by Mary Jane Barrett, a nurse. Barrett’s management of the claim involved several inquiries. First, the claim was referred to Rod Wallette, a vocational rehabilitation expert, to conduct a job analysis to determine the demands of Reese’s current job. Wallette’s report determined that Reese’s job at Montana Coffee Traders was a medium-duty job. Next, Reese’s physical condition was evaluated by an 2 Independent Medical Panel (Wellcare Panel), which consisted of Drs. Wilson, Vincent, and Heidi. Then, Reese was evaluated by Dr. Stratford, a psychiatrist. The Wellcare Panel’s evaluation and report on Reese’s condition opined that Reese could return to her time-of-injury job at Montana Coffee Traders. Dr. Stratford opined that nothing prohibited Reese from returning to work. Barrett prepared a closure report, concluding Reese was under no work restrictions. As a result, Workers’ Compensation discontinued payments to Reese. ¶5 In July 2012, Reese filed suit against HSBS for accident-related injuries and sought medical payments, lost wages, and loss of earning capacity damages. The District Court granted Reese partial summary judgment on the issue of liability, and ordered that the issues of causation and damages would be determined at trial. ¶6 Reese retained Anne Arrington as a vocational rehabilitation expert. Arrington opined that Reese could not return to her job at Montana Coffee Traders, and as a result, would have a permanent loss of earning capacity because she would have to be employed in a light duty or sedentary job. Arrington’s report stated that she had reviewed the Wellcare Panel’s report, Dr. Stratford’s report, Barrett’s report, and Wallette’s reports, along with numerous other documents, as part of her review. At her deposition, Arrington stated she had relied on the medical records identified in her report, including the Wellcare Panel’s report and Dr. Stratford’s report, in forming her opinion. ¶7 HSBS retained Dr. Righetti as a medical causation expert. Dr. Righetti opined that Reese suffered no permanent injuries from the accident. Dr. Righetti relied, in part, on 3 the reports of the Wellcare Panel and Dr. Stratford. The contents of Dr. Stratford’s report was referenced and quoted throughout Dr. Righetti’s report. ¶8 Several months before trial, Reese filed a motion in limine seeking to exclude (1) evidence that some of her medical expenses had been paid by insurance carriers; (2) the Wellcare Panel report; (3) Dr. Stratford’s report; (4) Wallette’s reports; and (5) Barrett’s report. With regard to the reports, Reese argued that unless the authors were called to testify at trial, the reports lacked foundation and were inadmissible hearsay. HSBS did not oppose Reese’s motion with respect to evidence that insurance carriers paid some of her medical expenses, but did oppose Reese’s motion with respect to the reports. HSBS argued that it was entitled to cross-examine Arrington on the reports because she had reviewed them prior to preparing her report, and had relied upon them in forming her opinion. The District Court granted Reese’s motion with respect to evidence that insurance carriers paid some of her medical expenses. Regarding the reports, the court denied the motion, but stated “either the parties stipulate to the foundation of exhibits before trial or a foundation must be laid for each exhibit before it can be introduced into evidence” and that “[a] ruling on whether a foundation has been laid for the documents Plaintiff seeks to exclude would be premature . . . .” ¶9 Reese was unclear about the effect of the order, so the District Court received further argument on the issue. Reese stated her concern was that HSBS would introduce the opinions of the Wellcare Panel, Dr. Stratford, Wallette, and Barrett through its cross-examination of Arrington, instead of calling the authors to testify to their opinions and be subject to cross-examination themselves. Reese argued that HSBS could not use 4 Arrington as a conduit for other experts’ testimony without violating the rules against hearsay, and that admitting their reports without the authors’ testimony would violate the rules against hearsay and authentication. ¶10 HSBS countered that Arrington had acknowledged that she reviewed and relied upon the reports in formulating her own opinion, and that HSBS had a right to cross-examine her on the basis for her opinion. When the District Court asked HSBS whether it was attempting to admit the reports as exhibits, or merely cross-examine Arrington in regard to the reports, HSBS replied that, depending on the testimony, it might seek to admit the reports. ¶11 The District Court again denied Reese’s motion in limine, holding that Arrington acknowledged rev ..
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