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Monthly Archives: April 2009

NY justices rule against falling plaintiffs

New York’s highest court has issued two important personal injury decisions this month.

The New York Court of Appeals served a big win to business lessees in Ferluckaj v. Goldman Sachs & Co., deciding that a window washer who fell from an office desk could not sue a commercial tenant under a state law requiring contractors and property owners to provide workers with appropriate safety devices such a scaffolds.


The court said that there could be no liability for the tenant, Goldman Sachs, because it had not hired the plaintiff’s employer to clean the window and otherwise exercised no control over the plaintiff’s work.


And in Gorman v. Town of Huntington, the court decided that a trip-and-fall plaintiff could not hold a municipality liable for a broken sidewalk — even though the town’s engineering department had previously received a complaint that the sidewalk needed repair.


— Pat Murphy


Quick hits: The criminal spectrum

The state and federal courts have been busy beavers of late deciding some interesting criminal cases.

Here are some of the most notable: 

Drive-by shooting doesn’t require specific intent: The California Supreme Court has decided that a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, can be convicted of attempted murder. (People v. Stone)


Computer images must be suppressed: A child pornography defendant was entitled to suppression of images found on his home computer because police didn’t obtain warrant to search his hard drive until 21 days after seizing it, the 11th Circuit has ruled. (United States v. Mitchell)


Drunk driving law can be broken on private property: The Indiana Supreme Court has decided that a defendant could be convicted of driving while intoxicated on his own private property. (State v. Manuwal)


Videoconferencing violates due process: The 6th Circuit has concluded that United States Parole Commission violates due process when it uses videoconferencing to conduct parole determination proceedings. (United States v. Terrell


Gamblers convicted for gaming casino: A pair of gamblers who submitted counterfeit entry forms to increase their chances of winning an Indian casino’s $10,000 “Tax Time Blues Giveaway” can be convicted of conspiracy to steal from a gaming establishment, the 7th Circuit has decided. (United States v. Moore)


Delinquent ordered to pay for broken choppers: A juvenile delinquent could be ordered to pay restitution in the form of interest and fees accrued on a credit account used by an assault victim to pay for the dental treatment he required after being attacked, says the Arizona Court of Appeals. (In re Brendan G. )


— Pat Murphy


Hot off the presses: FedEx, Jehovah’s Witness chalk up wins

Yesterday’s action in the courts saw a big win for the FedEx business model and a novel workers’ compensation decision from Wyoming.

The D.C. Circuit dealt a blow to labor when it ruled that drivers for a FedEx home delivery unit in Delaware are independent contractors, not employees. (FedEx Home Delivery v. National Labor Relations Board)


The decision overturns a ruling by the National Labor Relations Board that FedEx committed an unfair labor practice by refusing to bargain with a union certified as the drivers’ representative.


While the decision comes in the context of a collective bargaining dispute, it doesn’t seem far-fetched to think that it will prove useful to FedEx in defending a number of wage and hour claims that have been filed by drivers across the country.


A curious combination of religious belief and workers’ compensation law presented the Wyoming Supreme Court with a tough question in Williams v. State ex rel. Wyoming Workers’ Safety and Compensation Division.


Sharon Williams sought benefits for the death of her husband, Howard, following a work-related car accident.


But the state’s workers’ compensation bureau denied the claim on the ground that Howard and his family had refused “reasonable and necessary” medical treatment that could have saved his life.


You see, Howard had essentially bled to death after he and his family had refused a blood transfusion because they were practicing Jehovah’s Witnesses.


Side-stepping the obvious constitutional question, the court simply concluded that Sharon was entitled to death benefits because the state could not prove that, given the seriousness of Howard’s injuries, the treatment in question would have saved his life.


— Pat Murphy


Quick hits: Personal injury potpourri

State courts have been delving into uncharted territory in recent weeks, grappling with personal injury cases that present unique facts and demand answers to fresh legal questions.

While the cases below may not have made the headlines, each stands for a proposition that just might help decide a case in a client’s favor:


Motorist not liable for killing skateboarder: A skateboarder has a duty to follow the “rules of the road,” such as yielding the right of way and stopping before entering a roadway, a Maryland court of appeals has ruled. (Wooldridge v. Price)


State can’t claim immunity for trooper’s accident: The Georgia Supreme Court has ruled that the state could be sued for an accident caused by a highway patrolman who rear-ended the plaintiff’s vehicle while employing a technique to detect speeders known as “blocking.” (Georgia Department of Public Safety v. Davis)


Obstetrician liable for missing sponge: An obstetrician could be liable under the “captain of the ship” doctrine for a surgical sponge left in a patient following an emergency caesarian section, according to the Colorado Court of Appeals. (Ochoa v. Vered)


Pharmacy not liable for disclosing prescription profile: An Illinois appeals court has decided that Walgreens couldn’t be sued for violating state patient confidentiality law based on its disclosing a woman’s prescription profile to her estranged husband. (Quigg v. Walgreen Co.)


Church must protect collapsing worshipper: The Michigan Court of Appeals has decided that a church had a duty of care with respect to a congregant who collapsed and injured herself during an “altar call.” (Dadd v. Mount Hope Church)


— Pat Murphy


Family feud: State courts dividing inheritances, insurance

Few things help to drive up the billable hours like a dispute between family members over a pile of money. The bitter brew of everyday greed and family pathology simply lends itself to knock-down, drag-out legal fights.

One example is the recent attempt by a California woman to use an adult adoption to cut off the rights of relatives to the assets of a trust.


In Nixon Family Trust v. Nixon, the question faced by the Nebraska Supreme Court was whether an adult adoption that was valid under California law was entitled to full faith and credit in Nebraska.


Grace Nixon was the sole beneficiary of a trust created by her father. Under the terms of the trust, its assets were to go to Grace’s brother, John, and his children if Grace died childless.


Apparently such a result was intolerable to the elderly Grace who had no children of her own,  so she adopted her 50-year-old cousin Daley before she died.


John’s children argued that the trust was theirs because adult adoption is contrary to the public policy of Nebraska.


Not so, said the court, concluding to Daley’s profound gratitude that Nebraska must give full faith and credit to the California adoption.


Two sparring siblings were featured in a will contest that recently made it before the South Carolina Supreme Court. (Theisen v. Theisen)


Unfortunately for Lisbeth Theisen, the court decided that because her father’s will had earlier been admitted to informal probate in New Jersey, her South Carolina challenge to the validity of that will was barred by that state’s eight-month statute of limitations.


For divorce attorneys, we have the case of a prenuptial agreement standing between a Washington woman and her ex-husband’s $25 million.


The state supreme court agreed with the wife that agreement was unfair because it limited her inheritance rights, prevented her from seeking spousal maintenance and sheltered the husband from liability for any debts she incurred.


But what really made the agreement unenforceable in the court’s eyes was the fact that a final draft was not available for her attorney’s perusal until several days before the wedding.


Of note, the court held that such a deficiency could not be cured by amendments to the agreement after the wedding. (Bernard v. Bernard)


Also from the Left Coast, the Oregon Supreme Court decided that a judge could not impose a constructive trust on a portion of the proceeds of a life insurance policy that was supposed to have been — but was not — maintained by the decedent for the benefit of his child and former wife. (Tupper v. Roan).


— Pat Murphy


Wayward juror derails $3M products liability settlement

Getting jurors to reach the “right” verdict can sometimes be like herding cats.

A new dimension to the age-old problem exists because of the potential for mischief created by the ability of jurors to reach into a purse or pocket and grab a device for instant, worldwide communication.


Concerned by the spread of the Web into jury deliberations, trial lawyers are urging judges to pull the plug on plugged-in jurors. (Lawyers USA)


But old-fashioned juror misconduct has allegedly ensnared Ford Motor Co. in a Texas products liability suit involving the rollover of a Ford Explorer.


Sued by a plaintiff paralyzed from the neck down, Ford was prepared to accept a jury’s forthcoming verdict until the jury forewoman sent a note asking the trial judge, “What is the maximum amount that can be awarded?”


Rightly concerned that it was about to face a big payout, Ford quickly settled the case for $3 million.


All parties seemed satisfied with the result until Ford got wind of the inside scoop on the jury’s deliberations. Ford now claims it was flim-flammed, that the forewoman sent her note when the majority of jurors were on the verge of rendering a defense verdict.


For now, the Texas Supreme Court says Ford doesn’t have to pay the $3 million until there is a full investigation into whether the forewoman was subject to outside influence. (Ford Motor Co. v. Castillo)


Twelve Angry, Twittering Men


An Arkansas businessman on the wrong end of a $12.6 million has met a stone wall in claiming juror misconduct.


Russell Wright claims that a Twittering juror denied him a fair trial in February.


But the trial judge in the case has decided that the state court verdict will stand. (The Morning News)


Wright was unsuccessful in arguing that he was prejudiced by a juror who used his cell phone to post messages on social networking site Twitter during breaks in the trial, a somewhat surprising result since one of the messages alluded to the 1957 courtroom drama, 12 Angry Men.


— Pat Murphy


‘Shots fired!’ — Recovering damages in deadly force cases

Civil rights lawyers are well aware of how dicey it can be to recover damages for a plaintiff claiming to be the victim of a police officer’s use of excessive force.

Both judges and juries are naturally reluctant to second guess the split-second decisions that a cop on the beat must make in order to protect himself, fellow officers and members of the public. 

A series of recent U.S. Circuit  Court of Appeals decisions map out the obstacles that a lawyer must navigate in order to succeed in §1983 cases involving law enforcement’s use of deadly force to end high-speed chases.


In Marion v. City of Corydon, the 7th Circuit considered a case involving a suspected shoplifter who was finally cornered when his Ford Explorer became stuck in the muddy median of an interstate highway.


The plaintiff was wounded when officers opened fire as he attempted to extricate his vehicle from the median.


Even though the plaintiff claimed that the use of deadly force was unjustified given that at the time his vehicle was essentially immobilized, the court nixed his $21.5 million lawsuit because his ability to move his vehicle in reverse placed officers on foot and approaching traffic in peril.


In what seems a more clear-cut case, the 11th Circuit decided that police officers could use deadly force to stop a drug suspect who rammed a police car after being cornered in a parking lot.


But the 5th Circuit has given some hope to §1983 plaintiffs, rejecting the immunity claims of officers who fired into the rear of a vehicle and killed a passenger during a high-speed chase.


— Pat Murphy