Class Action Reform: HB 2008 / SB 1522 (2011); Tenn. Code Ann. § 29.
Provides for interlocutory appeal of class certifications.
Venue Reform: H.B. 2008/S.B. 1522 (2011); Amended Tenn. Code Ann. § 20-4-104.
Outlines the venues where civil suits can be filed to include the county where the claim accrued, where the defendant’s principal place of business is located or where the defendant’s registered agent is located. If the defendant does not have a registered agent in Tennessee, venue is proper in the county where the person designated by statute as the defendant’s agent for service of process is located. This provision seeks to prevent forum shopping and deviates from current law, under which a business can be sued in any county in which it has an office.
Codifies current state law by providing that if multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.
Joint and Several Liability Reform: McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
Bans application of the rule of joint and several liability in the recovery of all damages.
This bill establishes the Federal Reserve weekly average prime loan rate as the standard interest rate on judgments so long as such rate does not exceed 10%.
Requires any person asserting claim for medical negligence to give written notice to each alleged negligent healthcare provider at least 60 days before filing suit.
Williams v. SMZ Specialists, P.C., 2013 WL 1701843 (Tenn. Ct. App. Apr. 19, 2013).
Healthcare Liability – Amends existing Tennessee medical liability laws to replace the term “medical malpractice” with “health care liability action” and expands the definition of “health care provider,” to expressly include nursing homes, assisted living facilities, mental health centers, pharmacists and employees of these individuals and entities within the ambit of medical liability laws.
Noneconomic Damages Reform: HB 2008 / SB 1522 (2011);Tenn. Code Ann. § 29-39-102.
Limits noneconomic damages to $750,000 per occurrence in medical liability actions, and a limit of $1 million if the injury or loss is catastrophic in nature. The limits on noneconomic damages do not apply if the defendant acted with intent to harm, falsified records or acted under the influence of drugs or alcohol.
Products Liability Reform: Regulatory Compliance: HB 2008 / SB 1522 (2011).
Prohibits the award of punitive damages against the seller of the product, with certain exceptions, and prohibits the award of punitive damages against drug or device manufacturers when the product was manufactured in accordance with relevant Federal law, with certain exceptions. Prohibits the award of punitive damages when the defendant was in compliance with relevant federal and state regulations setting forth specific standards applicable to the activity in question to protect a class of persons or entities that includes the plaintiff.
Products Liability Reform: Innocent Seller: HB 2008 / SB 1522 (2011).
Prohibits products liability lawsuits against a retailer unless it exercised substantial control over the design, manufacture, packaging or labeling of the product, altered the product, gave an express warranty or the manufacturer is insolvent or not subject to process in Tennessee.
Authorizes the award of punitive damages in a civil action against a defendant based on vicarious liability only if the finder of fact determines by clear and convincing evidence that the act or omission was committed by a person employed in a management capacity while that person was acting within the scope of employment, the defendant was reckless in hiring or retaining the agent or employee, and the defendant authorized or approved the act with knowledge or conscious disregard that the act may result in the loss or injury.
Punitive Damages Reform: HB 2008 / SB 1522 (2011); Amended Tenn. Code Ann. § 29-39-104.
Limits punitive damages to two times compensatory damages or $500,000, whichever is greater. The limits on punitive damages do not apply if the defendant acted with intent to harm, falsified records or acted under the influence of drugs or alcohol.
Amends the Tennessee Consumer Protection Act (“TCPA”) as follows: eliminates a private right of action for actions based on the sale or marketing of securities, since those claims are governed by state and federal securities laws; provides that only the Attorney General may pursue actions under the “catchall provision” of the TCPA on behalf of Tennessee consumers; prohibits the award of punitive damages for an unfair or deceptive act or practice if the judge awards treble damages and attorney fees; and prohibits class actions from being brought under the consumer fraud statute and makes other changes to the consumer fraud statute.
Codifies the common law regarding liability of a possessor of land relating to an individual trespassing on the possessor’s land. Provides that a possessor of real property, including an owner, lessee, or other occupant, or an agent of such owner, lessee, or other occupant, owes no duty of care to a trespasser except to refrain from harming the trespasser by an intentional, willful, or wanton act.


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We would like to inform you as precisely and comprehensibly as possible about how we implement the special data privacy requirements. Therefore, in the following data privacy statement, we explain the manner, scope, and for which purpose we collect, process, and use personal data. The forwarding of data to third parties is also described here.
- Host name called up.
The IP address is personal data, for example. Therefore, you IP address is only stored in anonymised form. Our web server is hosted, that is, it is operated in the computer centre (in Germany) of our service provider “Mittwald CM Service GmbH & Co. KG”. The web server stores your data for 60 days. After that, the data is deleted automatically. The data is kept for this period in case of unauthorized access to our web server in order to be able to trace with whom this attack originated, whence it came and to eliminate errors in the Internet page.
The legal basis for this data processing is Art. 6 Para. 1 let. f) GDPR. Our “interest” as defined by Art. 6 Para. 1 let. F) is the operation of this Internet page and the implementation of the protection goals of confidentiality, integrity and availability of the data.
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You can forbid the setting of cookies with appropriate settings in your browser. However, we would like to point out that the use of our Internet pages may then be possible to only a limited extent. No programs or other applications will be installed or started on your computer by cookies.
The legal basis for this data processing is Art. 6 Para. 1 let. f) GDPR in connection with § 15 UWG [Law Against Unfair Competition]. Our “interest” as defined by Art. 6 Para. 1 let. f) is the operation of these Internet sites.
We process the data described above for the operation of our Internet side and to fulfil our contractual duties to our customers, as well as legal requirements. For requests from you outside of an active customer relationship, we process the data for the purposes of sales and advertising. You can object to a use of your personal data for advertising purposes at any time. To do this, send an e-mail to Datenschutz@zurmuehlen-group.com.
Data which you specify to us will not be forwarded to third parties, especially not for their advertising purposes. If necessary, we rely on service providers for the operation of these Internet pages and for other of our products. Here it can happen that a service providers receives knowledge of personal data. We select our service providers carefully – especially with respect to data privacy and data security – and take all required legal data protection measures to ensure permissible data processing.
You have the right of information about your personal data. You can contact our data protection officer or us directly at any time to receive information. In case of an information request which is not made in writing, we ask your understanding that we will demand proof from you that you are the person whom you say you are. Furthermore, you have a right to correction, deletion or restriction of processing insofar as you are legally entitled to this. In addition, you have a right to object to the processing within the scope of the legal requirements, as well as a right to data transferability. You also have the right to revoke consent given within the scope of the processing of personal data with effect for the future. The legality of processing which has been done based on the consent up to the revocation is unaffected by this.
We rework these data protection notices on various occasions which make this necessary, e.g. In case of changes in this Internet page. You will find the most recent version at www.maggymustermann.de/datenschutzerklärung.

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Following is an update to the 2011 story involving the state of Indiana's attempt to withhold Medicaid funding to Planned Parenthood (PP) of Indiana. PP argues that Indiana cannot exclude it from federal Medicaid funds.
Since that time, a district judge blocked the state's attempt to withhold those funds. This past Tuesday, October 23, a ruling by the 7th U.S. Circuit Court of Appeals in Chicago supported that decision and argued that Indiana must give Medicaid dollars to PP.
The circuit court's opinion can be read here (PDF). The circuit court judges were Diane Sykes (who wrote the opinion), Richard Cudahy, and Michael Kanne.
Under § 1396a(a)(23) state Medicaid plans “must” allow beneficiaries to obtain medical care from “any institution, agency, . . . or person, qualified to perform the service.” This is individual-rights language, stated in mandatory terms, and interpreting the right does not strain judicial competence.
That means anyone qualified to perform a medical service covered by Medicaid must receive federal Medicaid funds, according to the circuit court's opinion.
Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications. In this context, “qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violatingits patients’ statutory right to obtain medical care from the qualified provider of their choice.
Indiana also points to 42 U.S.C. § 1320a-7(b)(14), which allows states to exclude providers who are in default on their student-loan payments, and from this provision makes another argument by implication: If the states may refuse to subsidize student-loan delinquents with Medicaid dollars, then they must have the authority to “avoid indirect financing” of any “non-Medicaid” conduct. But like § 1396a(p)(1), this statute merely stipulates a particular ground for excluding a Medicaid provider; it does not imply that the states may establish any rule of exclusion and declare it a provider “qualification” for purposes of § 1396a(a)(23). That would make the free-choice-of-provider requirement a nullity.
Nor does Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), help Indiana’s case. There, a provider was suspended from California’s Medicaid program based on a pending criminal investigation. He claimed that federal law occupies the entire field of regulation pertaining to Medicaid and therefore preempted the state’s disciplinary measure. The Ninth Circuit rejected this argument, relying in part on 42 U.S.C. § 1320a-7(b)(5), which provides that the states may suspend or exclude providers from participating in Medicaid “for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.” The court remarked that this provision presupposes state regulatory authority over provider qualifications. Guzman, 552 F.3d at 949.
“qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.
The [State of Indiana's] defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.
The 7th Circuit Court's opinion here is worded such that there are no reasons to withhold Medicaid funding from any entity capable of performing certain medical services. Yet, Indiana's lawyers produced several examples (such as the 2 described above) that demonstrate that is not ultimately the decisive factor. A doctor behind on student loans can still legitimately perform medical services. In the example in which there was a criminal investigation on the provider, the 7th Circuit Court considered it okay to suspend their Medicaid dollars even though there was no guilt at the time the funds were withheld. As well, one of the reasons the 7th Circuit Court supported that opinion is because of the question of the "financial integrity" of a provider. We'll take another look at that aspect of PP's financial statements in a moment.
It is true that Medicaid regulations permit the states to establish “reasonable standards relating to the qualifications of providers.” 42 C.F.R. § 431.51(c)(2). But Indiana claims plenary authority to exclude Medicaid providers for any reason, as long as it furthers a legitimate state interest—here, the State’s interest in avoiding indirect subsidization of abortion. This sweeping claim conflicts with the unambiguous language of § 1396a(a)(23) and finds no support in related Medicaid statutes and regulations.
The opinion went on from that paragraph to reiterate that "qualified" means competent to perform the medical services in question. The opinion reiterates that standard over and over. In other words, the state can establish "reasonable standards" relating to what is a "qualified" provider––the 7th Circuit Court insists Indiana's criteria is unreasonable on the grounds that PP is able to perform certain procedures covered by Medicaid. Yet the court was willing to suspend that standard altogether as we saw in the examples of the cases on student loans or a pending investigation, as well as other cases presented by Indiana to the courts.
SO DOES PLANNED PARENTHOOD USE MEDICAID DOLLARS FOR ABORTIONS?
PPIN’s audited financial statements for 2009 and 2010 give rise to a reasonable inference that it commingles Medicaid reimbursements with other revenues it receives. ... financial statements provide no record that PPIN [Planned Parenthood of Indiana] makes any effort either to segregate Medicaid reimbursements from other unrestricted revenue sources or to allocate the costs of its various lines of business, whether abortion, family planning, cancer screenings, or other services. ... Medicaid, as a revenue line, is shown with other unrestricted sources of income ... This indicates that, while PPIN may not receive Medicaid reimbursements related directly to abortions (as federal and state laws generally prohibit), the Medicaid reimbursements it does receive for other services are pooled or commingled with other monies it receives and thus help pay for total operational costs.
Planned Parenthood also performs abortions. The organization uses private funding to support its abortion services and takes steps to ensure that public and private funds are not commingled.
That's it. There is no substantiation that PP prevents Medicaid dollars from going to abortion services other than a cursory statement that it does so. The claim begs the question. The circuit court's opinion is filled with supporting documentation and analysis except on this point. What of the PP's audited financial statements as described by the state of Indiana during the district hearing?
But Indiana claims plenary authority to exclude Medicaid providers for any reason, as long as it furthers a legitimate state interest—here, the State’s interest in avoiding indirect subsidization of abortion.
The circuit court's opinion describes the matter, in their own words, as Indiana avoiding "indirect subsidization of abortion." The court's opinion is not qualifying the statement as Indiana's "perception" only, but rather describing the situation as it exists.
So on the one hand, the court dismissively claimed PP separates use public funds from abortion services, and on the other, indicates that PP uses public funds indirectly to subsidize abortion.
In rebutting this argument, the court does not challenge Indiana's assertion that PP is using public funds to subsidize abortion. It rather seems to admit the claim as fact. Instead, the court insists repeatedly that PP must be funded simply because it is capable of performing other covered medical services.
After reading through the opinion, I was thus left vexed. It seemed that Indiana's strongest argument against funding PP was dismissed with no rebuttal, with no detailed explanation. Instead, the peripheral criteria of PP's "capability" to perform other funds appeared to be inconsistently described as the basis by which a provider must receive Medicaid funds.
Padre Pio Under Investigation: The Secret Vatican Files by Fr. Francesco Castelli is a chronicle centered on a 1921 Church-sanctioned investigation of the mystical phenomena surrounding Padre Pio (Now St. Padre Pio). I give it 8 out of 10 stars.
The book is largely a catalog of the report presented by Bishop Raffaello Carlo Rossi who was assigned to the investigation. This report remained unpublished until the time of this book's publication in 2011. From this book, we get a window into Rossi's journey day-by-day over the period of one week as he interrogates various priests at Padre Pio's convent at San Giovanni Rotondo in the province of Foggia, Italy. We are also treated with first hand Q&A interrogations of Padre Pio including regarding his stigmata, the gift of perfumes, and instances of bilocation.
One of the greatest values of this book is the source material. These testimonies were taken during the third year (out of 50) of Padre Pio's visible stigmata. We learn how the vast majority of Padre Pio's acquaintances held him in high regard and how his detractors were a very small minority whose accusations were deemed faulty or unfounded.
Many accusations that still are echoed to this day are addressed in these 1921 interrogations. For instance, one would not be hard-pressed to find on the internet skeptics of Padre Pio's stigmata who claim he used acid at the convent to create the wounds. This was an issue directly asked to witnesses at the convent as well as to Padre Pio himself. For this particular question, we learn that "each convent kept its own healing herbs and medicines" (ebook Loc. 714) and according to witnesses and Padre Pio himself, carbolic acid was used for a time to disinfect smallpox during 1920 (Loc. 2123). Padre Pio himself was sanctioned to administer those injections (Loc. 3051).
Throughout this investigation, we are also given a picture from the eyes of that time of those surrounding Padre Pio. This includes the convent-frequenting "Pious Women" who were significant witnesses to Padre Pio's gifts and value of his counsel.
We are also given an idea into Rossi's honesty as he includes many instances of supposed miracles some of his over-zealous fans of, or perhaps enemies of, Padre Pio that were unfounded, some even denied by Padre Pio himself.
This book may seem redundant to some readers. The first part of the book offers author Castelli's insights into the investigation, which quotes from Rossi's report numerous times. Then, in the core of the book, Rossi's report is provided, and to the reader, many of the quotations are now familiar.
Also of value is a following portion of the book. Castelli includes multiple letters of spiritual direction from Padre Pio's then-spiritual director, Father Benedetto Nardella, giving us a window into both Padre Pio's life as well as Fr. Benedetto's.
As well, the book is refreshing at a time today when the Church is painted in secular avenues as merely an evil institution of cover-up. The book provides a window into the seriousness with which the Church's Holy Office took the phenomena surrounding Padre Pio, and the reluctance that existed in affirming or promoting it. A timeline ends the book, chronicling many years in which Padre Pio was forbidden from publicly celebrating the Liturgy or hearing confessions. And these sanctions were applied despite Bishop Rossi's favorable report to Padre Pio's character and the merit of the mystical phenomena surrounding him.
I highly recommend this book to anyone interested in St. Padre Pio or the operations of the Church.


TRANSPORT INDEMNITY COMPANY, Intervener and Respondent.
Fernandes & Le Berthon and James Fernandes for Defendant and Appellant.
Lascher & Wilner, Lowen H. Stanley and Edward L. Lascher for Plaintiff and Respondent.
Defendant Procter & Gamble Manufacturing Company (hereinafter defendant) appeals from a judgment entered in favor of plaintiff Glen O. Arbaugh (plaintiff) and plaintiff-in-intervention Transport Indemnity Company (intervener).
Plaintiff brought this action against defendant to recover damages for personal injuries he sustained at a warehouse owned by defendant while in the course of his employment for Signal Trucking Co. (Signal). The intervener herein was Signal's workers' compensation insurance carrier at the time of the accident. Also named in plaintiff's action was Thompson Brothers, Inc., another trucking company which operated within defendant's warehouse; plaintiff and intervener both eventually settled with Thompson Brothers, however, and the action was dismissed as to that defendant.
On November 5, 1971, plaintiff was working at defendant's Long Beach warehouse and soap loading dock while employed by Signal as a "spotter." Plaintiff's duties consisted of backing empty truck trailers up to the loading dock in their proper position (spotting) and then towing them away after they had been loaded.
While the handling of nose cones was primarily the responsibility of Signal employees, defendant's employees also occasionally moved them. Employees were instructed to place nose cones which were not in use against the loading dock wall because of the safety hazard they represented. Despite this policy, nose cones were frequently left standing on the cement apron which led up to the loading dock in order to allow easy access to them.
On the day in question, plaintiff was seriously injured when his right foot landed on a misplaced nose cone as he was descending from a tractor-trailer which he had spotted at defendant's loading dock.
Plaintiff's action against defendant was based on theories of negligence, negligent maintenance of property, and breach of duty by a "statutory employer." fn. 2 A bifurcated jury trial resulted in a special verdict wherein the jury determined that defendant and plaintiff's employer, Signal, had both been negligent, apportioning the negligence 50 percent to each; the jury found that plaintiff had not been negligent in caring for his own safety. The jury then awarded damages to plaintiff in the sum of $340,000 which included $44,836.17 in workers' compensation benefits which had previously been paid to plaintiff by intervener.
The court subsequently entered judgment against defendant and in favor of plaintiff in the sum of $294,163.83, and in favor of intervener in the sum of $21,918.08, the details of which are set forth infra.
We find that defendant's last three contentions lack substantial merit and therefore affirm the judgment insofar as it adjudges defendant liable to plaintiff for his injuries. We conclude, however, that the court erred in allowing the intervener any recovery on its claim for reimbursement of workers' compensation benefits paid since the amount of total damages which could be attributed to the negligence of plaintiff's employer was greater than the sum of those payments.
Defendant contends that the court's apportionment of damages was in error insofar as it (1) failed to limit defendant's liability to 50 percent of plaintiff's damages, the proportionate share of defendant's fault; and (2) permitted intervener a reimbursement on its lien for compensation benefits paid when that lien represented less than 50 percent of plaintiff's total damages.
As a result of the above, the retention of joint and several liability in third party suits can produce the type of inequitable apportionment of damages apparent in the case at bench. Here, both defendant and Signal were found to be 50 percent negligent in causing plaintiff $340,000 in [80 Cal. App. 3d 507] damages. In absolute terms, each party's liability should have been $170,000. Yet, because Signal's liability was limited to workers' compensation benefits, which in this case totaled $44,836.17, the application of the rule of joint and several liability leaves defendant with a disproportionate share of damages to pay if plaintiff is to be fully compensated for his injuries.
 We note that the court in American Motorcycle sought to avoid some of the inequities resulting from the retention of joint and several liability after Li by modifying the all-or-nothing rule of equitable indemnity previously followed in this state so as "to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis." (American Motorcycle Assn. v. Superior Court, supra, 20 Cal. 3d 578, 599.) As stated in the opinion, "'[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were ... unintentionally responsible, to be shouldered onto one alone, ... while the latter goes scot free." (Id, at p. 608, quoting Prosser, Law of Torts (4th ed. 1971) § 50, p. 307.) [2b] The instant defendant, however, is not aided by the extension of the equitable remedy since, as the court recognized in a footnote, "... Labor Code section 3864 would normally preclude a third party tortfeasor from obtaining indemnification from the employer, even if the employer's negligence was a concurrent cause of the injury." (Id, at p. 607, fn. 9; see E. B. Wills Co. v. Superior Court, supra, 56 Cal. App. 3d 650, 653-655.) Nevertheless, it is implicit from the court's failure to otherwise distinguish third party suits that the inability of a third party tortfeasor to secure indemnification from a concurrently negligent employer will not prevent that third party from being held individually liable to an injured employee.
Other considerations compel this conclusion. First, the replacement of contributory negligence with a system of comparative fault was occasioned primarily by the recognized unfairness of preventing plaintiffs who were negligent in caring for their own safety from obtaining any recovery from other negligent parties; the impetus for the adoption of comparative negligence was not the desire to protect defendants from the consequences of their tortious acts. (See American Motorcycle Assn. v. Superior Court, supra, 20 Cal. 3d 578, 589-590; Li v. Yellow Cab Co., 13 Cal. 3d 804, 809-812 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Second, our Legislature has determined that a plaintiff injured in the course of his employment through the negligence of a third party should be entitled to recover "all damages" (Lab. Code, § 3852), and has further [80 Cal. App. 3d 508] recognized a plaintiff's right "to satisfy a judgment in full as against any tortfeasor judgment debtor" (Code Civ. Proc., § 875, subd. (g)). To deny application of the joint and several liability rule in third party actions would contravene these expressions of legislative intent by depriving some plaintiff-employees of maximum recovery for their injuries.
It is apparent that the all-or-nothing approach of Witt v. Jackson is inconsistent with the holding in Li that liability should now be apportioned according to fault. (Li v. Yellow Cab Co., supra, 13 Cal. 3d 804, 813.) The defense of employer's contributory negligence previously available to a third party tortfeasor must therefore give way to a system which allocates responsibility for damages owing to an injured employee on a comparative fault basis.
We conclude, however, that the approach taken by the trial court to determine the amount of reimbursement due the intervener was improper here since it unnecessarily exaggerated the already inequitable apportionment of damages which resulted from the application of comparative negligence principles to a third party suit. In this type of case, the third party tortfeasor should be required to reimburse the employer or his insurance carrier for compensation benefits paid only to the extent that such benefits have exceeded the proportionate share of damages attributable to the employer's negligence. Under this method of apportionment, the employer is liable for either the total amount of workers' compensation benefits paid or the difference between the third party's proportionate share of liability and the employee's total damages, [80 Cal. App. 3d 509] whichever is less. (See Note, supra, 50 So.Cal.L.Rev. 1029, 1045-1051.) This approach is thus in accord with the concern shown by the court in American Motorcycle that the entire burden of a loss for which two or more defendants were responsible should not be shouldered by one alone. (American Motorcycle Assn. v. Superior Court, supra, 20 Cal. App. 3d 578, 608.) Furthermore, implementation of the above-described rule will not contravene the policies of the workers' compensation system: employer liability will still be limited to the payment of compensation benefits (Lab. Code, § 3601, subd. (a)), while the employer's incentive for maintaining safe working conditions will be reinforced (Lab. Code, § 6400 et seq.).
Defendant contends that plaintiff was negligent in caring for his own safety as a matter of law. Its argument is as follows: (a) plaintiff, based on his long experience on the job, should have been well aware of the possible presence of nose cones near the parked trucks; (b) the cones were obvious to anyone who looked for them; (c) plaintiff, who apparently was not distracted, was negligent in failing to check the area where his feet were to land for the presence of nose cones prior to [80 Cal. App. 3d 510] descending from his tractor, as a reasonably prudent person would have done.
Plaintiff testified that when he approached the loading dock with his truck, he saw a nose cone near a trailer which had already been spotted, as well as several other nose cones scattered about the area. After spotting his trailer, plaintiff dismounted by emerging from the tractor's door backwards, stepping on the running board and the front tire, and then dropping to the ground--a method he had used for seven and one-half years. A method of dismounting suggested by counsel for defendant, in which the tractor's battery box would be used as a stepping point, was claimed by plaintiff to be both dangerous and impractical. Plaintiff testified on direct examination that he had looked down before stepping off the tractor, but saw nothing in the area where he was going to land, although he later stated on cross-examination that he was not sure whether he had, in fact, checked the area.
"An owner of property in control of premises where work is being done by employees of a contractor is an employer subject to the duty imposed [80 Cal. App. 3d 511] by the Labor Code ... to comply with the applicable safety provisions thereof.
"Where the owner retains only the right of general supervision over the premises to bring about a satisfactory completion of a contract, he is not an employer subject to the duties imposed by the Labor Code."
Finally, the jury was read the following modified version of BAJI No. 3.45 (6th ed. 1977): "If you find that Defendant Procter & Gamble or Plaintiff Arbaugh's employer, Signal Trucking, violated provisions of the Labor Code, just read to you, and that such violation was a proximate cause of the injury to Plaintiff, you will find that such violation was negligence unless such party proves by a preponderance of the evidence that it did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law."
After the jury had been thus instructed, defendant requested the trial judge in chambers to modify the last instruction, BAJI No. 3.45, so as to make it explicit that the jury was not to consider the Labor Code safety provisions in its determination of defendant's liability unless it first found that defendant had retained control over the premises where plaintiff suffered his injury. Defendant contends on appeal that the instructions were misleading as given and prejudiced defendant's ability to establish its defense that it had turned over control of the premises to plaintiff's employer. This contention lacks merit.
Here, the jury was instructed in former BAJI No. 8.33 that the Labor Code provisions would be applicable against defendant only if defendant was found to have been in control of the premises at the time of plaintiff's accident; it must be presumed that they followed this instruction before considering whether defendant had violated those provisions, as BAJI No. 3.45 then asked them to do.
Since we have determined that defendant's contentions are not entirely meritless, we decline to impose sanctions for a frivolous appeal as requested by plaintiff.
That portion of the judgment awarding the plaintiff $294,163.83 as against defendant is affirmed; the portion of the judgment awarding intervener $21,918.08 on its complaint-in-intervention against defendant [80 Cal. App. 3d 513] is reversed. Plaintiff shall recover his costs on appeal from defendant. As between defendant and intervener, defendant shall recover from intervener 50 percent of its costs incurred in the preparation of the record on appeal, with each party otherwise bearing its own costs.
Potter, Acting P. J., and Allport, J., concurred.
FN 2. See former Labor Code section 6304, since amended (Stats. 1971, ch. 1751, § 2, p. 3780, operative Apr. 1, 1972) so as to make the term "statutory employer" no longer applicable.


The Association is authorized, in accordance with the provisions of this section and such rules and regulations as it shall prescribe, to make loans to the Corporation, the National Railroad Passenger Corporation, and other railroads (including a railroad in reorganization which has been found to be reorganizable under section 77 of the Bankruptcy Act pursuant to section 717(b) of this title) in the region, for purposes of achieving the goals of this chapter; to a State or local or regional transportation authority pursuant to section 763  of this title; and to provide assistance in the form of loans to any railroad which (A) connects with a railroad in reorganization, and (B) is in need of financial assistance to avoid reorganization proceedings under section 77 of the Bankruptcy Act. No such loan shall be made by the Association to a railroad unless such loans shall, where applicable, be treated as an expense of administration. The rights referred to in the last sentence of section 77(j) of the Bankruptcy Act shall in no way be affected by this chapter.
Each application for such a loan shall be made in writing to the Association in such form and with such content and other submissions as the Association shall prescribe to protect reasonably the interests of the United States. The Association shall publish a notice of the receipt of each such application in the Federal Register and shall afford interested persons an opportunity to comment thereon.
Each loan shall be extended in such form, under such terms and conditions, and pursuant to such regulations as the Association deems appropriate. Such loan shall bear interest at a rate not less than the greater of a rate determined by the Secretary of the Treasury taking into consideration (1) the rate prevailing in the private market for similar loans as determined by the Secretary of the Treasury, or (2) the current average yield on outstanding marketable obligations of the Association with remaining periods of maturity comparable to the average maturities of such loans, plus such additional charge, if any, toward covering costs of the Association as the Association may determine to be consistent with the purposes of this chapter.
increase the principal amount of such loan to such railroad, in an amount not to exceed $7,500,000, only if the Association makes the finding referred to in paragraph (1)(B) of this subsection and determines that such railroad is making a good faith effort to establish an employee stock ownership plan for review and approval by the Association. Any such approval shall be conditioned upon a written commitment that by December 31, 1980, the railroad will adopt an employee stock ownership plan which will acquire qualifying employer securities with a fair market value of $250,000.
The Association may not take any action pursuant to the preceding sentence of this subsection after December 31, 1981.
the applicant has offered such security as the Association deems necessary to protect reasonably the interests of the United States.
It is the intent of Congress that loans made under this section shall be made on terms and conditions which furnish reasonable assurance that the Corporation or the railroads to which such loans are granted will be able to repay them within the time fixed and that the goals of this chapter are reasonably likely to be achieved.
the requirement that any loan to the Corporation under this subsection be refinanced immediately out of the proceeds of the first sale by the issuance of debentures under section 726 of this title.
In order to assure that necessary funds are available to the Corporation for implementation of the final system plan, the Corporation is authorized to accept such loans as may be approved by the Association under this subsection, and any such acceptance shall be deemed for all purposes to constitute a reasonable and prudent business judgment in compliance with any fiduciary obligations imposed on the Corporation or its directors. For purposes of this subsection, the term “Corporation” includes a subsidiary of the Corporation.
amounts required to provide adequate funding for continuation, by the Corporation, of medical and life insurance coverage and benefits for retired employees of railroads in reorganization as required and limited by section 743(b)(6)(B) of this title.
amounts required to discharge any obligation of a railroad in reorganization in the region to the National Railroad Passenger Corporation, arising out of a contract between such railroad in reorganization and such Corporation under which such railroad in reorganization is required to provide a suitable rail passenger station, in any case in which such railroad in reorganization sold a rail passenger station pursuant to a judicial order of condemnation prior to April 1, 1976.
includes a stipulation of the exact procedures the Corporation shall undertake to avoid the finding, referred to in paragraph (6)(A)(i) of this subsection, that it has not exercised due diligence.
The trustees of each railroad in reorganization in the region shall attempt to negotiate agency agreements with the Corporation, the National Railroad Passenger Corporation, or a profitable railroad for the processing of all accounts receivable and accounts payable attributable to operations prior to the conveyance of property pursuant to section 743(b)(1) of this title and for the payment of only those accounts payable which relate to obligations of the estates identified in paragraph (1) of this subsection. If any railroad in reorganization in the region fails to conclude such an agreement within a reasonable time prior to such conveyance, the applicable reorganization courts, after giving all parties an opportunity to be heard, shall prescribe the terms of such an agency arrangement by order, giving due consideration to the need, wherever possible, to make such agreements uniform among the various estates. Nothing in this subsection shall be construed as permitting any district court of the United States having jurisdiction over the reorganization of a railroad in reorganization in the region to enjoin, restrain, or limit the Corporation, the National Railroad Passenger Corporation, or a profitable railroad from applying, to payment of the obligations of the estates identified in paragraph (1) of this subsection, amounts collected as (A) accounts receivable pursuant to this paragraph, (B) cash or other current assets identified pursuant to paragraph (3) of this subsection, or (C) proceeds of loans pursuant to paragraph (1) of this subsection. Any agency agreement executed prior to October 19, 1976, shall be deemed amended to the extent necessary to conform such agreement or order to the provisions of this paragraph. Nothing in this paragraph shall be construed to affect any payment made prior to October 19, 1976, with respect to obligations other than those identified in paragraph (1) of this subsection.
provides for the application by the trustees of such railroads and their agents, consistent with the principles of reorganization under section 77 of the Bankruptcy Act and with the agency agreement specified in paragraph (2) of this subsection, of all such current assets, including cash available as of or subsequent to such date of conveyance, to the payment in the postconveyance period of the obligations of the estates identified in paragraph (1) of this subsection.
to the extent that payment is required under a loan agreement with the Association under such paragraph (1).
The Association shall resolve any disputes among the Corporation, the National Railroad Passenger Corporation, and a profitable railroad concerning which of them shall process and pay any particular obligation on behalf of a particular railroad in reorganization.
The Corporation, the National Railroad Passenger Corporation, or a profitable railroad shall have a direct claim, as a current expense of administration, for reimbursement from the estate of a railroad in reorganization in the region for all obligations of such estate (plus interest thereon) which are paid by the Corporation, the National Railroad Passenger Corporation, or a profitable railroad, as the case may be. The right of the Corporation or the National Railroad Passenger Corporation to receive reimbursement under this subparagraph from the estate of a railroad in reorganization in the region shall be reduced by the amount, if any, of loans, plus interest forgiven under paragraph (5) of this subsection.
third, to the payment of any remaining obligations of such railroad in reorganization, in accordance with the provision of the agency agreement entered into pursuant to paragraph (2) of this subsection.
The manner of disposition set forth in clause (i) of this subparagraph shall not apply with respect to a railroad in reorganization if the Secretary (I) determines that a different disposition of assets is necessary to carry out a reorganization plan of such railroad in reorganization, and that such different disposition adequately protects the interests of the United States, and (II) transmits his determination to the court having jurisdiction over the reorganization of such railroad.
If, at any time, the Finance Committee of the Association determines that the failure of the Corporation to receive full reimbursement with interest from the estate of a railroad in reorganization in the region for any obligation of such estate paid pursuant to this subsection could adversely affect the fairness and equity of the transfers and conveyances pursuant to section 743(b)(1) of this title, or that the failure of the National Railroad Passenger Corporation to receive such full reimbursement plus interest for any such obligation would be contrary to the public interest, the Association shall forgive the indebtedness, plus accrued interest, of the Corporation or of the National Railroad Passenger Corporation incurred pursuant to paragraph (1) of this subsection in the amount recommended by the Finance Committee. The Association shall have a direct claim, as a current expense of administration of the estate of such railroad in reorganization, equal to the amount by which loans of the Corporation or of the National Railroad Passenger Corporation, plus interest, have been forgiven. Such direct claim shall not be subject to any reduction by way of setoff, cross-claim, or counter-claim which the estate of such railroad in reorganization may be entitled to assert against the Corporation, the National Railroad Passenger Corporation, the Association, or the United States.
The direct claim of the Association under this paragraph, and any direct claim authorized under paragraph (4) of this subsection, shall be prior to all other administrative claims of the estate of a railroad in reorganization, except claims arising under trustee’s certificates or from default on the payment of such certificates. The Corporation, the National Rail Passenger Corporation, or a profitable railroad, as the case may be, shall, with respect to each direct claim for reimbursement pursuant to paragraph (4) of this subsection, file a proof of administrative expense claim with the trustees of the railroad in reorganization from whom reimbursement is sought. Each such proof of administrative expense claim shall set forth, by category and amount, the obligations of such railroad in reorganization which were paid pursuant to such paragraph (4).
neither House of the Congress disapproves such affirmative finding and direction, in accordance with the following provisions of this paragraph.
A copy of each such finding, the reasons therefor, and such direction made by the Finance Committee, together with the comments and recommendations thereon of the Board of Directors of the Association, shall be transmitted to the Congress by the Association within 10 days after the date on which the Finance Committee makes such finding and direction, or if not so transmitted, shall be transmitted by the Finance Committee. Each such finding and direction so transmitted shall become effective immediately, and shall remain in effect, unless, within the first period of 30 calendar days of continuous session of Congress after the date of transmittal of such finding and direction to Congress, either House of Congress disapproves such finding and direction in accordance with the procedures specified in section 688 of title 2. For purposes of this paragraph, continuity of session of Congress is broken only in the circumstances described in section 682(5) of title 2.
The Association shall have a direct claim, as a current expense of administration of the estate of the railroad in reorganization whose obligations were paid with the proceeds of loans forgiven under this paragraph, equal to the amount by which the loans, plus interest, have been forgiven. Such direct claim shall not be subject to any reduction by way of setoff, cross-claim, or counterclaim which the estate of such railroad in reorganization may be entitled to assert against the Corporation, the National Railroad Passenger Corporation, the Association, or the United States. The direct claim of the Association under this paragraph shall be prior to all other administrative claims of the estate of the railroad in reorganization, except claims arising under trustee’s certificates or from default on the payment of such certificates.
For purposes of this subsection, the term “Corporation” includes a subsidiary of the Corporation.
Section 77 of the Bankruptcy Act, referred to in subsecs. (a) and (h)(3)(B), was classified to section 205 of former Title 11, Bankruptcy. The Bankruptcy Act (act July 1, 1898, ch. 541, 30 Stat. 544, as amended) was repealed effective Oct. 1, 1979, by Pub. L. 95–598, §§ 401(a), 402(a), Nov. 6, 1978, 92 Stat. 2682, section 101 of which enacted revised Title 11. For current provisions relating to railroad reorganization, see subchapter IV (§ 1161 et seq.) of chapter 11 of Title 11.
Section 763 of this title, referred to in subsec. (a), was repealed by Pub. L. 94–210, title VIII, § 806, Feb. 5, 1976, 90 Stat. 143, eff. Apr. 1, 1978.
The Employers’ Liability Act (45 U.S.C. 51–60), referred to in subsec. (h)(1)(A)(v), is act Apr. 22, 1908, ch. 149, 35 Stat. 65, as amended, and is classified generally to chapter 2 (§ 51 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 51 of this title and Tables.
Sections 774 and 775 of this title, referred to in subsec. (h)(1)(A)(vi), (B), were repealed by Pub. L. 97–35, title XI, § 1144(a)(1), Aug. 13, 1981, 95 Stat. 669.
In the closing par. of subsec. (h)(6)(A), “section 688 of title 2” and “section 682(5) of title 2” substituted for “section 1017 of the Congressional Budget and Impoundment Control Act of 1974 (31 U.S.C. 1407)” and “section 1011(5) of that Act (31 U.S.C. 1401(5))”, respectively, to reflect the transfer of sections 1407 and 1401 of former Title 31, Money and Finance, to sections 688 and 682 of Title 2, the Congress.
1980—Subsec. (d). Pub. L. 96–448, § 408, substituted “Association is not required to make the findings with respect to subsections (e)(3) and (f) and may” for “Association may” in provision preceding par. (1), “$7,500,000” for “$4,000,000” in par. (2), and “December 31, 1981” for “December 31, 1980” in provision following par. (2).
Subsec. (i). Pub. L. 96–448, § 407, substituted “Corporation or any other railroad, the Secretary” for “Corporation, the Secretary”, “Corporation or such railroad for the purpose” for “Corporation for the purpose”, and “Corporation or such railroad and will facilitate” for “Corporation and will facilitate” and inserted provision authorizing the Secretary, upon application and with regard to obligational limitations, to guarantee obligations of the Corporation or such railroad for the purposes of making capital improvements to coal export facilities.
1979—Subsec. (d)(2). Pub. L. 96–101 substituted “$4,000,000” for “$2,000,000”, “and determines that such railroad is making a good faith effort to establish an employee stock ownership plan for review and approval by the Association” for “and such railroad has in effect an employee stock ownership plan which has been approved by the Association”, and “December 31, 1980” for “December 31, 1979” and inserted provision requiring that any such approval be conditioned upon a written commitment that by December 31, 1980, the railroad will adopt an employee stock ownership plan which will acquire qualifying employer securities with a fair market value of $250,000.
Subsec. (h)(1)(A)(viii). Pub. L. 96–73, § 204(b)(1), substituted “funding for continuation, by the Corporation, of medical and life insurance coverage and benefits for retired employees of railroads in reorganization as required and limited by section 743(b)(6)(B) of this title” for “funding for payment, when due, of medical and life insurance benefits for employees (whether or not their employment was governed by a collective bargaining agreement) on account of their service with a railroad in reorganization prior to the date of conveyance pursuant to section 743(b)(1) of this title, and for individuals who retired, prior to such date of conveyance, from service with a railroad in reorganization”.
Subsec. (h)(6). Pub. L. 96–73, § 204(b)(2)(A)–(C), redesignated existing provisions as subpar. (A), and in subpar. (A) as so redesignated, redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, and former cls. (i) and (ii) of former subpar. (A) as subcls. (I) and (II) of cl. (i), respectively, and added subpar. (B).
1978—Subsec. (d). Pub. L. 95–611 inserted provision authorizing increase of loans to railroads until Dec. 31, 1979.
1976—Subsec. (g). Pub. L. 94–210 added subsec. (g).
Subsec. (h). Pub. L. 94–210 added subsec. (h).
Subsec. (h)(1). Pub. L. 94–555, § 203(a), increased aggregate principal amount of loan agreements, at any given time, to $350,000,000; substituted “such railroads in reorganization” for “the transferors” after “railroad, in behalf of”; struck out “and obligations” after “all other current accounts”; inserted “(including claims for accrued vacation and wages and similar claims arising in connection with labor and services performed)” after “section 153 of this title”; added clauses (vii) to (x) to subpar. (A); authorized Association to make loans pursuant to subpar. (A), as amended, and inserted reference to section 743(b)(6) of this title; inserted provisions that claim arising prior to conveyance of rail properties must be presented to a railroad in reorganization in the region, or the Corporation within 2 years after Oct. 19, 1976, and that loan requested is for direct payment made for services or materials, the furnishing of which avoided disruption of ordinary business relationships prior to date of conveyance or made to avoid postconveyance disruptions; and added subcls. (I) and (II) to cl. (V) relating to provisions to be included in joint agreement between Finance Committee and the Corporation.
Subsec. (h)(2). Pub. L. 94–555, § 203(b), inserted “and for the payment of only those accounts payable which relate to the obligations of the estates identified in paragraph (1) of this subsection” after “section 743(b)(1) of this title”, and inserted provisions relating to the jurisdiction of district courts in railroad reorganization proceedings.
Subsec. (h)(4)(D). Pub. L. 94–555, § 203(c), added subpar. (D).
Subsec. (h)(5)(B). Pub. L. 94–555, § 203(d), inserted provisions relating to filing proof of claim for administrative expense.
Subsec. (h)(6)(A)(i). Pub. L. 94–555, § 220(a), substituted “paragraph (1)(B)(v)” for “paragraph (1)(E)”.
Subsec. (i). Pub. L. 94–210 added subsec. (i).
1975—Subsec. (a). Pub. L. 94–5, § 5(a), substituted “for purposes of achieving the goals of this chapter” for “for purposes of assisting in the implementation of the final system plan”.
Subsec. (e)(1). Pub. L. 94–5, § 5(b), substituted “achieve the goals of this chapter” for “carry out the final system plan”.
Subsec. (f). Pub. L. 94–5, § 5(c), substituted “goals of this chapter” for “goals of the final system plan”.
Amendment by Pub. L. 96–448 effective Oct. 1, 1980, see section 710(a) of Pub. L. 96–448, set out as a note under section 1170 of Title 11, Bankruptcy.
Amendment by Pub. L. 96–73 effective Nov. 4, 1978, see section 501(b) of Pub. L. 96–73, set out as a note under section 743 of this title.
Amendment by Pub. L. 94–555 effective Oct. 1, 1976, see section 303 of Pub. L. 94–555, set out as a note under section 702 of this title.
  So in original. Should be ”.