Is a slip-and-fall plaintiff’s allegation that a floor was “shiny” sufficient to raise a jury issue as to whether it was safe to walk on? The Rhode Island Supreme Court faced that question last week.

Click here to read the full article at lawyersusaonline.com.

A federal judge on Monday gave the go ahead to a product liability lawsuit filed by a California woman who claimed she suffered injuries from a mass of toxic mold growing in her Sleep Number mattress.

Click here to read the full article at lawyersusaonline.com.

A Mexican woman stands convicted in the U.S. of aggravated identity theft, but contends there is a loophole in the federal statute that should allow her to get out of prison. Yesterday, the 11th Circuit dashed her hopes of freedom.

Click here to read the full article at lawyersusaonline.com.

Does the potential loss or destruction of DNA evidence justify the warrantless collection of such evidence from a rape suspect’s private parts following his arrest?

A panel of California judges answered that question on Friday. If you were hoping for a straight yes or no answer, you’ll be disappointed.

Click here to read the full article at lawyersusaonline.com.

A military power of attorney is a critical document for managing affairs on the home front when a spouse is deployed overseas. A Kentucky military family had to learn the hard way that only having a photocopy of that document can stop a real estate transaction dead in its tracks.

Click here to read the full article at lawyersusaonline.com.

The en banc 6th Circuit yesterday engaged in a classic balancing of the rights of victim and accused in deciding that Michigan courts properly excluded from a rape trial evidence of the victim’s alleged proclivity to engage in group sex.

The decision in Gagne v. Booker was a particularly tough one because it is so easy to grasp the logic in the arguments on both sides.

Lewis Gagne stands convicted in Michigan of raping his former girlfriend, P.C. Gagne’s trip to prison began in July 2000. At the time, Gagne was unemployed and had just ended his six-month relationship with P.C. With his prospects at home in Michigan at such a low point, Gagne decided to join his friend Donald Swathwood and head for the green pastures of California.

But first a final fling.

On the evening of July 3, 2000, Gagne, Swathwood, and another friend, David Stout, were out partying when their car ran out of gas. P.C.’s house was nearby. Walking over, the three men found Gagne’s former girlfriend at home. P.C. had been drinking most of the day. She, too, was in a partying mood. P.C. agreed to get cash from an ATM to buy gas, beer and crack cocaine.

Returning to P.C.’s home, the foursome began to smoke and drink. Stout passed out, but P.C. began to have sex with Gagne and Swathwood joined in. The next morning, the three men took P.C.’s ATM card and $300 to buy crack cocaine, which they smoked themselves.

Meanwhile, P.C. called the police to report that she had been raped by Gagne and Swathwood. According to P.C., the sex with Gagne had started out as consensual, but she protested when Swathwood joined in. Rather that stopping, Swathwood and Gagne held P.C. down, forcibly raped and sodomized her, and tried to force her to perform oral sex on the inebriated Stout.

Gagne and his soon to be co-defendant, Swathwood, claimed that all of the sex had been consensual. In fact, the two men asserted that P.C. had encouraged and directed a “wild orgy.” According to Gagne, P.C. only made the accusations of rape because she was upset over the breakup of their relationship and the fact that, while she was asleep, the men had bought and smoked crack without her.

Both Gagne and Swathwood were charged with three counts of first-degree criminal sexual misconduct in violation of Michigan law. A jury convicted Swathwood on all three counts.

Gagne was convicted on two of the charges and his convictions were upheld by the Michigan courts. He sought habeas relief in federal court.

In federal court, Gagne’s main point of contention was that the Michigan courts had wrongly barred him from introducing evidence that P.C. and Gagne had on one occasion engaged in group sex with another individual, Ruben Bermudez. In addition, Gagne wasn’t permitted to bring in evidence that P.C. allegedly had once offered to engage in group sex with Gagne and his father.

Michigan’s rape shield law generally prohibits evidence of a victim’s sexual history, but makes an exception when the victim’s past sexual conduct is with the accused.

Gagne argued that his proffered evidence fell within the exception, while the state of Michigan contended that the exception didn’t apply because the group sex allegations were of limited relevance and highly inflammatory.

The federal courts initially were much more open to Gagne’s claim that the exclusion of the group sex evidence denied him a fair trial. U.S. District Judge Marianne O. Battani granted habeas relief and a three-judge panel of the 6th Circuit upheld that order.

But the court decided to rehear the case en banc. Yesterday, the en banc court decided 11-5 that Gagne’s habeas petition should have been denied. Chief Judge Alice M. Batchelder wrote the plurality opinion (there were five concurring opinions in the case) and she explained:

The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal and rectal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, the State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fairminded disagreement.”

Circuit Judge Raymond Kethledge’s filed one of two dissents in the case. Kethledge probably made the best argument for why the group sex evidence should have been allowed:

What Gagne faced was a theory of res ipsa loquitur as applied to a rape case: the brutal and facially coercive nature of the charged conduct spoke for itself at trial, to the effect that the conduct was not consensual. That undisputed fact severely disadvantaged Gagne in the credibility contest upon which his trial turned. His only chance of defending himself was to admit evidence that the complainant had consented to in one instance, and proposed in another, almost identical conduct with Gagne and another man – and moreover that the complainant had done so just weeks before the charged conduct here. Absent this evidence, Gagne’s “defense was far less persuasive than it might have been had he been given an opportunity” to admit this evidence and then cross-examine the complainant on the basis of it.

Don’t be surprised if the U.S. Supreme Court weighs in on this one.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Everyone’s hometown seems to have that one particular stretch of highway that is notorious for automobile accidents. One inspired St. Louis attorney has attempted to make a class action out of a strip of interstate that seemingly has more than its fair share of wet-pavement crashes.

The attorney is William K. Holland. The troublesome roadway is a 1.3-mile section of Interstate 44 in Phelps County, Missouri. Holland represents two plaintiffs who were injured in wet-pavement crashes on that stretch of highway.

On Oct. 17, 2006, Sherry Smith’s pick-up truck spun out of control when it hit a wet patch on I-44. Smith’s pick-up left the roadway and collided with another vehicle that was passing on an outer road.

On July 14, 2009, Donna Triplett was a passenger in a vehicle that had the misfortune of encountering the I-44 section on a rainy day. The driver lost control and his car left the road, striking the median barrier.

Holland did some digging and discovered that his clients weren’t the only ones to be involved in similar crashes between 2006 and 2010. State highway patrol records indicate that one driver lost control of his car on wet pavement and struck a semi. In another accident, a driver lost control when he tapped his brakes to avoid a semi that was making a lane change.

What’s the cause of all these mishaps? Holland’s theory is that the pavement surface on this particular portion of I-44 section lacks proper skid resistance, perhaps because it hasn’t been repaved since 2003. There’s also a question as to whether the state department of transportation relocated a 60 mph speed limit sign in the area to account for the allegedly unsafe conditions.

When his clients sued the Missouri Highways and Transportation Commission for negligence, Holland tried to turn their lawsuits into a class action. Holland’s proposed class included all those who suffered damages “arising from wet pavement, loss-of-control accidents” on the I-44 section between 2006 and 2010. According to state highway patrol records, there may be over 100 crashes falling within the class definition.

Holland won the first round on class certification. On Dec. 10, 2010, Phelps County Circuit Judge Mary W. Sheffield   concluded that “[c]ommon questions of fact exist as to whether the pavement surface lacked proper skid resistance and was in a dangerous condition at the time of the Smith and Triplett crashes, and whether their injuries directly resulted from that condition.”

Accordingly, the judge certified a class composed of “all persons who have sustained injuries or damages as a result of wet pavement crashes on a 1.3 mile section of eastbound I-44, Phelps County, beginning at or about the relocated 60 mph speed limit sign near the west city limits of Rolla and ending at or about 100 feet past the west junction of Business Loop 44, within five years preceding the date of this order.”

While Holland had won the first round, the Missouri Court of Appeals would have its chance to weigh in.

Alas, at the end of last month, the appellate court was convinced by the state department of transportation that the class had been improperly certified.

In reversing the class certification order, the court said that “there are too many variables from accident to accident, and individual evidence would have to be presented regarding causation for almost every case.”

The appeals court explained that the “exhibits offered by Smith and Triplett show that all but four of the accidents had some other contributing circumstance. The most common contributing circumstance involved the speed of one of the vehicles involved: over 100 incidents involved a vehicle traveling too fast for the conditions, and 19 incidents involved a vehicle exceeding the speed limit. The determination of whether the speed was too fast for the conditions depends on much more than the condition of the roadway and will be specific to each accident.”

The court also noted that, in 17 of the reported incidents, other actions on the part of the driver contributed to the accident. Two of those “other actions” involved drug use.

“These numbers show that in many, if not most of the accidents, causation will be substantially determined on the basis of these other contributing circumstances,” the court said. “These individual issues of causation would overwhelm the common issue of whether the road was in a defective condition and whether that condition was a cause of the accident. Consequently, the predominance requirement was not met because a class action proceeding is not apt to generate common answers that are apt to drive the resolution of the proceeding.” (Smith v. Missouri Highways and Transportation Commission)

So for the time being Holland’s novel class action is no more. It will be interesting to see if his case finds a sympathetic ear in the Missouri Supreme Court.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Usually, lawyers make money when a divorce case degenerates into all-out warfare between the parties. But one New Jersey law firm has been left with $122,000 in unpaid fees after a judge was forced to step in to protect the children in a bitter divorce.

The firm, Budd Larner, P.C., became entangled in the divorce of Frank and Edie Sauro in September 2006. That was the midpoint of the protracted case. Edie had filed for divorce in New Jersey state court three years earlier. It would be another three years before a final judgment of divorce would be entered.

Budd Larner was the second of the three firms that would represent Edie in the case. Edie had already filed for bankruptcy, so Budd Larner’s prospects for payment hinged on the division of marital property. Frank Sauro was a partner in a real estate development business. He received a $500,000 distribution from the partnership, and the trial court ordered these funds placed in escrow as the prime marital asset.

However, those funds were rapidly being dissipated in the divorce litigation. And provisions would have to be made for the care of Frank and Edie’s three kids, no matter what the outcome.

Budd Larner withdrew from the case in July 2008. The trial court imposed an attorney charging lien in favor of the firm, to be attached to Edie’s equitable distribution award. Edie owed Budd Larner more than $162,000 in fees by this time, so the firm had a keen interest in the outcome of the case.

When the trial court entered its final judgment of divorce in January 2010, only $324,812.99 remained in escrow from Frank’s real estate partnership. From these funds, the court ordered that $48,449.80 be designated as an equitable distribution to Edie. The court directed that Budd Larner be paid 81.82 percent, or $39,641.63, from Edie’s equitable distribution award of $48,449.80. Budd Larner retained a lien against Edie for $122,664.97.

What about the rest of the $324,812.99 in escrow? Well, since the Sauros had been in a veritable knife fight for years and couldn’t agree on anything, the trial court decided that it was high time for someone to look out for the interests of the parties’ three children. The court ordered that $200,000 from escrow be placed in a college trust account for the benefit of the Sauro kids.

Of course, this seriously impaired Budd Larner’s attorney lien against Edie for $122,664.97.

Budd Larner appealed, arguing that state law prohibited the trial court from allocating marital assets in a manner that prejudiced its statutory attorney lien.

But the New Jersey Appellate Division decided yesterday that the trial court acted within its authority.

“We conclude that the trial judge’s decision to establish an education trust fund to cover the children’s cost of attending college was properly supported by the record, well within the court’s authority, and in keeping with the court’s obligation to act in the best interest of the children,” the court said.

It explained that “Budd Larner’s contractual rights, as reflected in the retainer agreement with [Edie], do not abrogate or limit the [trial court's] overriding obligation to act in the best interest of the children in this case.”

The court observed that the extraordinary remedy was fully justified by the protracted litigation in the case, which saw the dissipation of the parties’ financial resources as they fought tooth and nail over virtually every key pretrial order:

When the adults in the controversy are unable or unwilling to act in the best interests of their own children, the court must be free to act, swiftly, decisively, and unfettered by extraneous considerations. The establishment of a judicially crafted educational trust fund is but one of a myriad of creative remedies in the court’s equitable arsenal. An attorney charging lien, or any other of the possible numerous claims that can be asserted against a family’s limited financial resources, cannot undermine the court’s parens patriae responsibility.

(Sauro v. Sauro)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Federal employment discrimination law can’t be stretched to right every wrong. That’s the upshot of a federal judge’s decision to dismiss a Title VII lawsuit filed by a postal worker upset by a “When All Else Fails, Blame the White Male” bumper sticker.

Alfreda Lockwood first saw the bumper sticker when she reported for work at the U.S. Post Office in Anchorage, Alaska one day in 2009. David Champion, a white custodian, had allegedly placed the bumper sticker on a trashcan in the workplace.

Lockwood is an African-American female. On July 31, 2009, Lockwood complained to her manager, Kris Lyons. Lyons spoke with Champion about the sticker and had it removed.

That should have been the end of the matter, but on Aug. 11, 2009, Lockwood discovered another “When All Else Fails, Blame the White Male” sticker on the bumper of her car. An indignant Lockwood reported the matter to the police and her post office bosses. Although Champion was the prime suspect, an investigation failed to conclusively establish that the custodian was responsible for placing the bumper sticker on Lockwood’s automobile.

Lockwood alleges that she was harassed by Champion in other ways, too. Lockwood reported several incidents between August and September 2009. On one occasion, Champion allegedly shouted at her about having been reported to management about the bumper sticker on the trash can. The custodian also allegedly interrupted Lockwood’s conversations with another postal employee by banging his fists on a table. Upsetting Lockwood further, Champion allegedly took to yelling “boo” whenever she was around.

To handle the problem, post office management tried to juggle the two employees’ break schedules to keep them separated, but that wasn’t enough for Lockwood.

After the EEOC reviewed Lockwood’s complaints and decided not to pursue them, Lockwood sued in federal court. Her Title VII complaint against the U.S. Postal Service included claims for race and sex discrimination, as well as a claim for hostile work environment. In addition, Lockwood also sued the postal service for intentional infliction of emotional distress.

Lockwood’s lawsuit was dropped into the lap of U.S. District Judge Sharon L. Gleason, and the judge didn’t like what she saw. Earlier this month, the judge granted the post office’s motion for summary judgment.

On Lockwood’s clams for race and sex discrimination, the judge just didn’t see how Lockwood suffered an adverse employment action.

“Ms. Lockwood was not demoted, or reassigned to a new position with different responsibilities, or otherwise made to suffer a significant change in her employment status or benefits,” the judge explained.

Turning to Lockwood’s hostile environment claim, Judge Gleason found that most of the complained-of conduct, rather than based on Lockwood’s race or gender, was based on the mutual dislike between her and Champion.

While the judge acknowledged that the bumper sticker did implicate race and gender, she concluded that the sticker alone could not serve as the basis for a hostile environment claim:

The sticker’s message is more likely intended to be read as a sarcastic jab at modern trends of racial and gender sensitivity. Yet despite the racial, gendered nature of the bumper sticker’s message, this court finds that there is no evidence that Mr. Champion’s posting of the sticker on the trashcan at the workplace was specifically directed at Ms. Lockwood. Instead, it was placed at the workplace as a general commentary that was not directed at any one individual, gender, or race. As such, Mr. Champion’s conduct at the workplace with regard to the bumper sticker on the trashcan “fall[s] into the ‘simple teasing and offhand comments’ category of non-actionable discrimination.”

Similarly, the judge found that Lockwood’s intentional infliction of emotional distress claim failed as a matter of law.

“While certainly it is highly inappropriate to place a bumper sticker on another person’s vehicle, and particularly a bumper sticker that one knows is offensive to the vehicle’s owner, such conduct cannot be regarded ‘as atrocious and utterly intolerable in a civilized community’ so as to state a cause of action for intentional infliction of emotional distress,” Gleason wrote. (Lockwood v. Donahoe)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The tale of Lebron Gaither isn’t exactly going to help Kentucky State Police officers in their efforts to recruit drug informants.

According to court records, Lebron became an informant for the state police in 1995 after he got into some trouble in high school. State detectives used Lebron to make controlled drug buys from suspected dealers. The state paid Lebron more than $3,000 for his services during the ten months that he worked as an informant.

Lebron’s career as an informant came to an abrupt end on the evening of July 17, 1997. State detectives had arranged for Lebron to make a drug buy from the target of a grand jury investigation, Jason Noel.

Lebron met Noel at a grocery store parking lot in Taylor County. The detectives had Lebron wired to record the transaction and expressly warned him not to get into Noel’s car.

Things went awry when Noel arrived. Despite the warning, Lebron got into the car and Noel drove off. After awhile, detectives lost contact with Noel’s vehicle. This proved fatal because it turned out that a grand juror had tipped off Noel that Lebron was a key witness against him in the grand jury proceedings.

Having lost his police tail, Noel drove to Casey County where he tortured and murdered Lebron. Police nabbed Noel later that night.

Lebron’s family filed a negligence claim against the state in the Kentucky Board of Claims. The board determined that the state police officers were 30 percent liable for Lebron’s death and awarded his family $169,000.

However, a Kentucky judge vacated that award after determining that the state was immune under the discretionary function provision in the state’s governmental immunity law.

Last Friday, the Kentucky Court of Appeals upheld that judgment:

Based on [state police guidelines], the law enforcement officers in this case had a duty to monitor as closely as possible LeBron’s undercover operation with Noel. However, the execution of the undercover operation was left to the judgment and discretion of the detectives. Specifically, the detectives in this case … had to anticipate as best they could the potential dangers that could arise. Although the choices made by the detectives in this case proved to be tragically flawed, the execution of the undercover operation with LeBron was left to the discretion and judgment of the detectives. Therefore, we conclude that the acts of the [defendants] were discretionary, and not ministerial.

(Gaither v. Kentucky Justice & Public Safety Cabinet)

– Pat Murphy

patrick.murphy@lawyersusaonline.com