Wednesday, October 11, 2017
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Ninth Circuit:
Bus Company Isn’t Obliged to Warn of Dangers From Immobility
Affirms Summary Judgment for Greyhound in Wrongful Death Case, Spurning Argument That the Company; Knows Long Trips Can Lead to Potentially Fatal Deep-Vein Thrombosis and Advises Drivers of This
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the grant of summary judgment to Greyhound Lines, Inc. in an action for wrongful death in which the plaintiffs contended that the carrier had a duty to warn of the dangers to passengers of developing deep-vein thrombosis from immobility.
The memorandum opinion affirms a March 23, 2016 decision by Magistrate Judge Patrick J. Walsh of the Central District of California.
The opinion declares:
“The district court did not err in concluding that Greyhound did not owe a duty to warn passengers of the risk of developing deep-vein thrombosis (‘DVT’). Under California law, common carriers owe a heightened duty of care. See Cal. Civ. Code §2100. However, the existence and scope of this duty is, in part, determined by the ‘foreseeability of harm.’ ”
Clear Casual Link
The opinion goes on to say:
“…Plaintiffs present no evidence demonstrating how their claims would have been prevented by the issuance of a warning, and they present no evidence that creates a clear causal link between being sedentary and developing DVT. The submitted evidence reveals that the immobility is a factor generally only when other risk factors (e.g., age, gender, race, trauma, surgery, obesity, cancer, and pregnancy) exist. The mere fact that Greyhound was aware that DVT existed and may have posed risks for some passengers does not, by itself, make DVT a foreseeable risk to passengers creating a duty to warn. As the district court correctly noted, ‘[t]he science of DVT has not yet reached the point where common carriers like Greyhound can foresee that passengers are in danger of developing DVT when they travel by bus.’ Thus, Greyhound did not have a duty to warn passengers.”
The action was brought by the decedent’s three children.
Facts of Case
The factual context is set forth in their opening brief:
“Nora Martinez stepped off a Greyhound bus in Los Angeles after arriving from Texas on an over 30-hour bus ride. Ms. Martinez had been accompanied by her son, Henry, and was greeted in Los Angeles by her daughter Carla Mejia, her other son, Miguel, and several of her grandchildren. Ms. Martinez took about fifteen steps from the bus and then collapsed, urinated on herself, and began convulsing. Ms. Martinez was rushed to the hospital where she died from a pulmonary embolism resulting from deep vein thrombosis, a condition the coroner noted is caused by prolonged immobility. Greyhound provides its passengers no warning about the dangers of developing deep vein thrombosis on long bus rides.”
Greyhound’s brief noted that the trip on its bus was the last leg of a 7-8 day trip journey from El Salvador.
Oral Argument
At oral argument on Oct. 3, the plaintiffs’ attorney, Joseph S. Persoff of the Pasadena firm of Esner, Chang & Boyer, complaint that Walsh looked at only one of several factors relevant to whether there is a duty to warn—foreseeability of harm—“and analyzed it in a vacuum.”
Judge N.R. Smith interjected:
“So, the district court went into foreseeability, and after getting through foreseeability, the district court said, ‘Nothin’s left.’ ”
He added:
“I’m having a tough time seeing why that is error.”
Persoff pointed out that the World Health Organization, the Center for Disease Control, and the U.S. surgeon general have recognized a link between immobility and DVT. Greyhound knows of that link, he said, relating:
“They warn their own drivers of this.
He charged:
“They’re essentially hiding this information from their passengers.”
In light of the utmost duty of care on the part of common carriers, under California law, Greyhound is obliged to provide a warning, the lawyer argued.
Combination of Factors
Persoff acknowledged that immobility acts in concert with other factors in leading to DVT.
“Prolonged periods of immobility is a triggering event,” he said. It and other factors “combine to create a dangerous cocktail,” Persoff explained.
One point Persoff made—that Greyhound’s sister company provides a warning about DVT—was minimized by Greyhound’s lawyer, Jeffry A Miller of the San Diego office of Lewis Brisbois Bisgaard & Smith LLP. He noted that the carrier providing the warning is in Scotland and is “a far removed company.”
Its voluntarily rendered warning does not point to a basis for requiring a warning, he asserted.
Miller said the transportation industry is “heavily regulated,” yet there is no federal regulation mandating a warning as to the dangers of immobility.
Judge Johnnie B. Rawlinson asked whether any warnings are required “on any matter.” Miller responded that certain warnings are required to be rendered by airlines, but when he was able to point to any warning required of motor coach companies, she commented that his “point isn’t well taken.”
The case is Mejia v. Greyhound Lines, Inc., No. 16-55585.
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