1 Tombers and Associates, PC 300 South Capitol Avenue Lansing, Michigan 48933 517.371.5140 tomberse@cooley.edu ________________________________________________________________________ INVESTIGATION PLAN1 1. ASSESSMENT OF CLIENT’S NEEDS Timothy Cowling’s immediate needs concern obtaining recovery to pay $20,000.00 for non-insurance-covered medical bills and expenses he has already incurred. These bills and expenses include: • Ambulance transportation from the accident scene to Sparrow Hospital; • Surgery to repair and fixate the broken bone in his arm with metal plates, pins, and screws; • Treatment of fractured lumbar vertebra and facial lacerations; • A 14-day stay at Sparrow Hospital; and • Psychological counseling. Timothy suffered a broken bone (ulna) in his right arm, nerve damage to his arm as a result of the broken bone, a fractured lumbar vertebra, and deep lacerations to his face that have resulted in permanent, disfiguring scarring. In addition, Timothy will require further surgery on his right arm because the bone has not healed properly and will nevertheless suffer a 30% residual loss of use of his right arm because of the injuries. Timothy also suffers from recurrent nightmares and stress related to the constant pain he suffers from the injuries. As a result, Timothy has been treating with a psychologist to help him cope. The treatment has resulted in additional costs. Timothy’s mother, Sandra Cowling, has no medical insurance to cover the past or future costs. 1 This plan is a combination of plans created by students Giuseppina M. Fricano and Marilyn Tombs for Profs. Sundstrum and Schlossberg’s Michaelmas 1998 and Michaelmas 1999 Law Practice classes. Portions have been edited. Important note: this plan does not represent the current state of Michigan law. 2 2. TENTATIVE LEGAL THEORIES Negligence: Premises Liability Elements of the claim: Like all negligence claims, a premises liability claim requires a plaintiff to prove that the defendant owed the plaintiff a duty, the defendant breached that duty, the defendant’s conduct was a proximate cause of the plaintiff’s injury, and damages. In addition, to hold an employer liable for an employee’s conduct, a plaintiff must show that the employee was acting within the scope of his employment duties. Duty: Under the premises liability theory, the premises owner’s duty is based on the status of the person harmed: invitee, licensee, or trespasser. A business invitee confers a tangible benefit on the premises’ owner. A public invitee is one who was invited to the premises because the premises are open to the public. Timothy was probably a public invitee. International Department Store is open to the public. Timothy wasn’t there to confer a tangible benefit on the store; his mother was. The premises owner owes its invitees a duty to take reasonable precautions to prevent foreseeable harm, including warning them of the dangers that the store knew about, should have known about, or created. Because Timothy can be classified as an invitee, International Department Store probably owed him this duty. Seeing such a young boy who wasn’t dressed like the Young Hoods with a group of visibly older boys should have alerted Sam Security to investigate Timothy’s circumstances more closely. Moreover, Sam Security arguably knew about and created the danger of Timothy’s being injured by the Young Hoods because Security told eight-year-old Timothy to leave the store with the 16-to 17-year old Young Hoods. Security knew that the Young Hoods had been rowdy inside the store and should have known that they would continue their behavior outside the store. Of course, the question now becomes, “Was being pushed off the sidewalk and struck by a car a foreseeable danger?” Breach: As noted, a plaintiff must show that the defendant breached its duty to him or her. Here, Timothy must show that Sam Security ignored the known dangers of ejecting Timothy from the store along with the older boys. Timothy could also show that Security, despite taking the young boy into custody with the older boys, did not determine if Timothy was actually a part of the gang. Sarah Sawitall allegedly saw Timothy being hit by the car. Clarence Confused saw the incident inside the store. These two witnesses should help us determine what Sam Security (and thus International Department Store) knew or should have known. Causation: Causation involves a showing that “but for” the defendant’s breach of duty the plaintiff would not have been injured. Timothy will need to show that when Sam Security ejected him from the 3 store, Security put Timothy into a dangerous situation. Timothy was ejected along with a group of much older, rowdy boys who had been causing a disturbance inside the International Department Store. One of these boys pushed Timothy off the sidewalk and into the path of an oncoming car. Timothy suffered serious injuries. Sarah Sawitall’s or Clarence Confused’s testimony will probably help us here. Damages: As noted above, the Cowlings’ damages already exceed $20,000. Future surgeries, future counseling, pain, suffering, disfiguring scars, and future disability could be substantial. Timothy can show these damages through hospital records, doctors’ testimony, and the psychologist’s testimony. Affirmative Defenses: Standard negligence defenses are available. In addition, a premises owner owes the invitee no duty to warn of or protect from dangers that are open and obvious. Finally, the premises owner owes no duty to protect its invitees from the criminal activity of a third person absent a special relationship with the plaintiff. [Writer should have applied these defenses to Sam Security and International Department Store to determine which, if any, would apply.] False Imprisonment Elements of the claim: To make out a claim for false imprisonment, a plaintiff must allege and prove that he or she was intentionally, unlawfully restrained, detained, or confined against his or her will. The defendant must have deprived the plaintiff of his or her personal liberty or freedom of movement. A defendant can restrain a person through physical force, an express or implied threat to use physical force, or contact. The confinement need not be in a jail; confinement occurs when the plaintiff’s freedom to move or personal liberty is restrained. Confinement may also occur when the plaintiff is forcibly taken from one place to another. Sam Security used his authority to intentionally move Timothy, who had been quietly playing with the video games, from the home electronics department to the security office two floors above. In addition, Security would not let Timothy leave the security office. He harshly accused Timothy of a crime and, for about 25 minutes, interrogated him about it. Finally, Security escorted Timothy (and the other boys) out of the store and told them to leave. Timothy had no choice but to accompany Security to the office. The confinement was against Timothy’s will. Timothy wanted to tell Security that he was not a part of the Young Hoods gang. But big, burly Security intimidated Timothy, so Timothy was too scared to say anything at all. 4 Security’s accomplished the confinement by, at the least, an implied threat of force. Security is considerably larger than Timothy. His stern attitude told Timothy that he was someone who had to be obeyed. Timothy was falsely imprisoned. Affirmative defenses specific to false imprisonment: A statutory provision provides merchants and their agents with a limited privilege to provide security for their retail outlets. Thus, a merchant or its employees may temporarily detain and restrain a person suspected of shoplifting. The privilege depends on probable cause to believe that the person detained was engaging in criminal behavior. The merchant or its employee must also show that the person was held using reasonable force for a reasonable length of time without intent to injure the plaintiff. The merchant or its employee must also show that it did not unreasonably disregard the plaintiff’s rights or sensibilities. [Writer should have applied these defenses to Sam Security and International Department Store to determine which, if any, would apply.] Intentional Infliction of Emotional Distress Elements: To state a claim for intentional infliction of emotional distress a plaintiff must show that the defendant’s extreme and outrageous conduct intentionally caused severe emotional distress. Arguably, Sam Security acted extremely and outrageously when he harshly accused eight-year-old Timothy of a crime and interrogated him for 25 minutes. Security’s size and demeanor contributes to the outrageous conduct. In addition, it appears that Security did not attempt to determine Timothy’s involvement in the alleged shoplifting incident. As a result of Security’s intimidating conduct, Timothy suffers nightmares and stress. Timothy was also forced to repeat a grade in school, another factor that contributes to his stress. Dr. I.M. Nutt can testify about Timothy’s emotional injuries. Affirmative defenses specific to intentional infliction of emotional distress: Shopkeeper’s immunity statute, MCL 600.2917. Loss of Consortium For this claim, a plaintiff must show that he or she has lost the value of the services the injured person could perform before the injury. We will need to develop this through asking Sandra Cowling about Timothy’s services pre-and post-injury. Moreover, Timothy’s doctors can probably testify about the extent to which Timothy can no longer perform 5 common household or domestic services. They could also testify about Timothy’s relationship with his mother and father pre-and post-injury. 3. PROBABLE PARTIES Plaintiffs: Timothy Cowling, by his next friend Sandra Cowling; Sandra Cowling and her husband, Timothy’s father, for the loss of consortium claim. Defendants: International Department Store; Sam Security; Young Hood who pushed Timothy off the sidewalk. International Department Store and Sam Security are sure to file a notice of non-party fault. See MCL 600.2957, MCL 600.6304, MCR 2.112(K). 4. VENUE State: Michigan County: Eaton 5. LIMITATIONS PERIODS Negligence: 3 years (4/6/2005) False Imprisonment: 2 years (4/6/2004) Intentional Infliction of Emotional Distress: 3 years (4/6/2005) [Writer should cite statutes.] 6. WITNESS INFORMATION Ms. Sarah Sawitall, 200 Elm St., Lansing, MI 48933 • We should preserve her statement as soon as possible. She allegedly saw Timothy being hit by the car. We need to see exactly what she saw. We should try to get her statement before opposing counsel does. Mr. Clarence Confused, 341 Poorvision St., Lansing, MI 48911 • Works at International Department Store and saw incident inside the store with the Young Hoods. We may have some trouble interviewing her without counsel for International Department Store being present. Check our ethical rules, Michigan Rules of Professional Conduct, Rule 4.2, on this. We’ll probably have to depose him to get his statement. Police officers, paramedics • Should contact them to get their statements and written reports. We would want to see if they have any opinions regarding the 6 accident. We also want to know if Timothy said anything before getting to the hospital. Treating Doctors: We need to familiarize ourselves with the medical and psychological issues this case presents. We need information from: • Will Treatum, M.D., 2500 Michigan Ave., Lansing, MI 48933 • I.M. Nutt, Ph.D., 4211 Okemos Rd. Okemos, MI 48937 • Other E.R. doctors, any nurses or physician’s assistants who may have treated Timothy at Sparrow Hospital. Members of the Young Hoods • We should try to find the members of the Young Hoods who were involved in this incident. If we can, we need to hear their version of what happened. We may find another defendant among them. Depositions needed • Sam Security • Clarence Confused • Sandy Security • Official representative of International Department Store see MCR 2.306(B)(5). Need to get insurance information, store policy, job descriptions, time cards, previous incidents, from the representative. 7. FOLLOW-UP QUESTIONS FOR CLIENT: This isn’t the first time that Timothy has broken his right arm. When he was five years old, Timothy broke a different bone in that same arm. As a result, we need to ask Timothy and Sandra about that previous injury. We need to know if it was completely healed at the time of this injury. If not, we need to know what treatment Timothy was receiving for the old injury. We should ask if the old injury had caused Timothy any discomfort just before the latest injury. We need to know to what degree the old injury affects the disability anticipated from this injury. Naturally, we also want to know about the pain and emotional distress this current injury has caused. In addition to the nightmares, does Timothy also suffer from restlessness, agitation, other troubles sleeping? For the consortium claim we need to ask Sandra, Timothy, and Timothy’s dad (we need to find out his name!) about Timothy’s activities 7 with them both before and after the injury. Do they spend more or less time together? Has the nature of their activities changed? We need to discover all the negative information we can, too. So we need to explore Timothy’s marijuana use and the suspension from school. This could damage Timothy’s credibility. We should ask Sandra Cowling about how often (to her knowledge) Timothy used marijuana. We should ask Timothy the same. We need to know if Timothy is still using marijuana or any other kind of drug. We also need to know if Timothy received treatment or counseling for the drug use. We also need to find out why Sandra left Timothy alone in the store for so long without checking on him. Moreover, we need to know if Sandra often leaves Timothy alone. Does she generally expect other people to watch out for her son? 8. DOCUMENT PRODUCTION: INFORMAL We should get copies of all documents Sandra Cowling might already have. These would include medical records, police or paramedic reports, medical bills, school records. Records we could get informally, by getting Sandra to sign a release, would include Timothy’s school records, his medical records from Dr. Treatum, Sparrow Hospital, Dr. Nutt, and any physical therapists. We should write a letter and ask the police department for copies of its police report, and we should get reports from EMS the same way. Finally, we should also see if Sandra, the police department, or anyone else has any photographs of Timothy before and after injury and photographs of the incident scene. We should also take photographs of the scene. 9. DOCUMENT PRODUCTION: FORMAL • International Department Store We need to send a request to produce documents to International Department Store and ask it for, among other things, all of its records (including photographs) regarding this incident, employee information for Sam and Sandy Security, employee training records, security protocols, personnel records, insurance information, and information about any previous similar incidents. We need to determine who employs the security guards and who owns the store. 8 • Police Department and EMS If the police department and EMS aren’t willing to send us the reports based on a letter request, we’ll need to subpoena the reports. • Sparrow Hospital and treating physicians and psychologist We shouldn’t have a problem getting Timothy’s records using a release Sandra signs. If the treaters aren’t willing to send us the records with the release, we’ll subpoena them (and we’ll use a release for that, too). 10. PHYSICAL EVIDENCE It is important that we have clear photographs of the accident scene and the surrounding area. We need to concentrate on taking photos from the area where Sarah Sawitall was standing at the time of the accident. We also need good photos of Timothy’s injuries. And we should find some pictures of him from before the accident. 11. VISIT TO THE ACCIDENT SCENE We should visit the accident scene as soon as possible. If possible, we should visit it on a day when conditions are similar to what they were on the day of the accident. We might also be able to find other witnesses. 12. NEGATIVE EVIDENCE We definitely need to investigate Timothy’s drug use and his lying to his teacher. We also need to find out everything we can about the old injury to his arm. Finally, we need to prepare to address Sandra Cowling’s parenting skills. Opposing counsel may try to make some sort of comparative negligence argument based on her leaving Timothy alone in the store. We need to do further legal research into Sandra’s possible comparative negligence. The bottom line is that we need to be prepared to confront all negative information and try to soften its blow so that we preserve Timothy’s and Sandra’s credibility. 13. FURTHER INVESTIGATION We may want to consult some orthopedic experts to see what the effect of Timothy’s previous injury is on his present injury. We should also investigate the cost of future medical care. And we should check reporters for jury verdicts in similar cases to prepare our damages requests for his pain and suffering and emotional distress. We should 9 also determine if Sandra Cowling has lost wages because of time off from work to care for Timothy. 14. TIME RECORDS AND EXPENSES We need to keep track of all of the time we spend on this case, and we need to keep track of court costs and our expenses including deposition costs, expert costs, postage, phone calls, mileage, etc.