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Self defense excuses suspected shoplifter’s death

When a grocery store’s employees negligently kill a suspected shoplifter in attempting to detain him for police, can the store use the theory of self defense to escape liability for wrongful death?

The Ohio Supreme Court on Thursday answered that question in the affirmative in the case of a man who died from asphyxiation after being accosted by Giant Eagle employees outside a Rootstown store.


Several years ago, Paul Niskanen rolled out of the local Giant Eagle with a shopping cart filled with $289.02 in groceries that he hadn’t paid for.


To this day it is unknown whether his failure to pay was a tragic mistake or if he intended to steal the items.


The store’s manager confronted Paul outside and a scuffle ensued. Another store employee and two passersby joined the fray and  finally succeeded in pinning Paul to the ground.


Police arrived a short time later, but by the time they pulled the men off Paul he had lost consciousness and didn’t have a pulse. He was taken to a hospital and pronounced dead.


Paul’s mother, Mary Niskanen, sued Giant Eagle for negligently training its employees and for store employees negligently applying “undue restraint” to detain Paul.


But could Giant Eagle avoid liability by claiming that its employees acted in self defense?


Mary contended that self defense was unavailable to Giant Eagle because it was inconsistent with the company’s refusal to admit that its employees acted to intentionally injure Paul.


The Ohio Supreme Court refused to rule out the affirmative defense in negligence cases per se.


Instead, the court said that whether a defendant can assert self defense depends on the nature of the claim and the particular facts of the case.


Plainly, Giant Eagle shouldn’t have been allowed to argue self defense to defeat Mary’s claim that the company was negligent for not training its employees in industry-standard shoplifter-apprehension techniques.


“It simply makes no sense to say that Giant Eagle failed to provide the appropriate training to defend itself from Paul’s attack,” the court explained. “The failure to train occurred well before the attack began and was not performed in response to Paul’s actions.”


But there was no harm with respect to that cause of action because, even though a jury found that Giant Eagle was liable for negligent failure to train, under the state’s comparative negligence law Mary was barred from recovery since the jury also found  Paul to be 60 percent liable for his own death.


That left Mary’s undue restraint claim.


Regarding that claim, the court found that self defense was clearly relevant under the facts of the case.


“Reasonable minds could conclude that (1) the [Giant Eagle] employees did not start the fight, since Paul threw the first punch, thereby escalating an otherwise peaceful encounter into a violent one, (2) the employees had a bona fide belief that they were in danger of great bodily harm, since Paul had punched each of them and continued to fight as others tried to restrain him, and that the only way of ending the fight was to subdue and restrain Paul, and (3) the employees did not violate a duty to retreat or avoid the danger, since they were acting in their rights to pursue and detain Paul … and then merely responded to Paul’s violent attacks until he was subdued,” the court said. (Niskanen v. Giant Eagle)


— Pat Murphy



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Bias of prospective jurors torpedoes $71M med-mal award

Sometimes a trial lawyer needs to be more proactive in ensuring the fairness of the process — even when it might not be immediately apparent that it is in the client’s best interest.

Just ask New Jersey lawyer Craig Rothenberg.


Rothenberg worked hard to get a favorable jury to hear a strong medical malpractice case involving an infant who suffered severe brain damage following spinal surgery.


But his “dream” jury turned into a nightmare when the state’s highest court last week decided that the expressed biases of prospective jurors so tainted the entire voir dire process that a record-setting $71 million award could not stand.


Rothenberg’s client, Casey Pellicer, suffered severe brain damage when he was an infant following spinal surgery to help correct his spina bifida.


After a mistrial and settlement with the hospital, Rothenberg geared up for a second trial featuring the doctors and nurses whose alleged negligence contributed to Casey’s injuries.


In the second trial, the trial judge appeared to fast-track the voir dire process in order to get the entire matter concluded, dispensing with the usual sidebars to explore bias expressed by prospective jurors.


As the state supreme court observed, “[w]hether motivated by the expressed desire to be hasty or by lingering irritation about the mistrial, an apparent concern for expedience took the place of the care and sensitivity that the issues continued to demand. Rather than summoning potential jurors to sidebar for follow up on questions that should have alerted the [trial] court about potential bias, one after another they were allowed to voice deep feelings of resentment and bias in open court.”


So those who eventually made up the jury were exposed to a litany of complaints and horror stories about doctors in general, as well as the hospital where Casey’s surgery was performed in particular.


One potential juror was actually allowed to describe the care given to his newborn child in another hospital’s neonatal unit as the “single worst moment of [his] life.”


While your average plaintiff’s lawyer might delight in such axe-grinding, be forewarned that the unrestrained airing of complaints against the medical profession in the voir dire process could undermine a favorable verdict later on.


In Rothenberg’s case, the state supreme court concluded that “Because we can have no confidence that the selection process resulted in a jury panel that could fairly and dispassionately evaluate the difficult and emotionally-charged issues that were central to this litigation, we cannot permit its verdict to stand.” (Pellicer v. St. Barnabas Hospital)


— Pat Murphy



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Wash. burned heart victim taps into Calif. punitives

Here’s the problem: You’re in a state that doesn’t allow punitive damages for your client’s claim.

What are your options in opening the door to punitives under the law of another state?


The Washington Court of Appeals has charted one course of action in the case of a heart patient who was injured by a medical device manufactured by a California company.


In upholding an $8.5 million punitive award, the court decided that California’s interest in deterring fraud trumped Washington’s “strong policy” against punitive damages.


The case was brought by Paramjit Singh, who in 2004 entered the Providence Everett Medical Center in Washington to undergo routine heart bypass surgery.


During surgery, an Edwards Lifesciences’ monitor malfunctioned, causing a catheter to overheat and destroy Singh’s heart. Doctors later performed a heart transplant that saved Singh’s life.


Edwards, a California company, conceded partial liability with respect to compensatory damages.


But that concession appeared to be a rather cynical calculation in light of evidence of serious corporate wrongdoing.


According to evidence introduced at trial, Edwards knew there was a software defect in the heart monitor device as early as 1998 (the device was ultimately recalled in 2006).


That evidence placed the issue of punitive damages squarely on the table.


And because Washington law did not permit Paramjit to recover punitive damages and California did, the court had a classic choice-of-law issue to unravel.


In unpacking that bag, the controlling principle was that Washington employs the “most significant relationship” test in determining which state’s law applies to a given issue.    


Given the numerous Washington contacts in the case, Edwards must have felt pretty secure with the strength of its position.


But the court dashed any expectations the company may have had that the $8.5 million punitive award would be overturned.


“[T]he conduct which resulted in the injury occurred in California,” said the court. “Edwards’ corporate headquarters are located in California and the defect in the software was discovered in California as early as 1998. And by 2002, the foreseeable heating of the catheter in a surgical setting was known by Edwards and again the decision was made in California not to recall or warn users. Had the warning been given, Providence could have used [one of its] ‘repaired’ monitors for its bypass surgeries and Singh would not have been injured.”


The court concluded that where “an entity headquartered in California, committed the conduct in California that resulted in the plaintiff’s damages, California had the greater interest in deterring such fraudulent activities.” (Singh v. Edwards Life Sciences Corp.)


— Pat Murphy



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Officers avoid liability in ‘suicide by cop’

Could the mere turning of a car key tip the scales in favor of the use of deadly force in a confrontation between Florida police officers and an armed, suicidal man?

That would appear to be the case in a civil rights decision issued by the 11th Circuit last week.


John Garczynski was shot to death in the early morning hours of March 10, 2005, by members of the Palm Beach County Sheriff’s Office and the Boca Raton Police Department.


At the moment bullets began to fly, there appears to be little doubt that officers were justified in using deadly force because, by all accounts, Garczynski had pulled a gun away from his temple and pointed it in their direction.


But when one steps back from that moment, questions begin to arise as to whether officers were too aggressive in their overall handling of the situation.


Earlier in the evening, Garczynski had given his estranged wife, Leigh, his last will and testament and an obituary listing his date of death as March 9, 2005. Garczynski told Leigh that he was armed and planned to kill himself.


Leigh contacted police who located Garczynski by his car in a parking lot.


Garczynski was apparently unaware that police had found him.


At the same time that police secured the area, Leigh tried to reason with him over a cellphone.


The situation seemed well in hand until an officer with Leigh instructed her to tell Garczynski to enter his car and start his engine, apparently so he could stay warm.


The officers keeping an eye on Garczynski feared a running gun battle and had already decided that the suicidal man would not be allowed to leave the parking lot.


The sound of Garczynski starting his engine was the trigger that sent them into action.


The officers approached the vehicle with guns drawn and identified themselves. One officer smashed out windows in order to get a clearer view of the interior of the vehicle.


Startled by the sudden appearance of police, Garczynski reached for his gun and proceeded on the course of threatening behavior than ultimately caused the officers to open fire.


In the ensuing §1983 action, the main hope of Garczynski’s estate was to show that the police acted unreasonably in moving aggressively to end the situation when to all appearances Garczynski was sitting peacefully in his car, talking to his wife on a cellphone.


But the 11th Circuit said that the “sole inquiry is whether the officer’s actions, as taken, were objectively reasonable under all the circumstances.”


One might question whether police should have stood by until Garczynski took an action that was more overtly aggressive than simply starting his car.


But the court came down squarely on the side of law enforcement on this issue.


“Even if these officers mistakenly believed that Garczynski was about to drive away, it was reasonable for them to attempt to contain the situation in light of the information they possessed,” the court explained. “The officers were not required to wait and see if Garczynski remained stationary, or rely on … stop sticks and surrounding police officers to deter him should he suddenly become mobile. Given that Garczynski had a gun and was not clearly visible, the officers acted reasonably in immediately approaching the vehicle with their weapons drawn and shattering the vehicle’s side windows to obtain a better view of him.” (Garczynski v. Bradshaw)


— Pat Murphy



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Suffering experienced by drowned boy may be compensated

Under what circumstances can damages be awarded for conscious pain and suffering in a survivorship action when there is no eyewitness to what the victim actually experienced just prior to his death?

That was the question addressed by a Maryland appeals court in a tragic case involving the drowning of a five-year-old boy.


Connor Freed was found floating face down in a country club swimming pool. He never regained consciousness.


Although there were approximately 40 people in the pool at the time, no one apparently saw Connor in distress before his death. An autopsy performed after the accident disclosed no evidence that the boy suffered a blow that would have rendered him unconscious after he entered the pool.


Connor’s parents filed a wrongful death suit against D.R.D. Pool Service, the company that managed the pool.


In addition, Connor’s estate filed a survivorship action seeking compensation for the conscious pain and suffering the boy experienced before his death.


The trial judge wouldn’t allow the survivorship claim to go before the jury because there was no eyewitness to the drowning.


This was despite the fact that Connor’s estate had Dr. Jerome Modell, a Florida expert who was prepared to testify that Connor experienced pain for about two minutes during the drowning process.


The doctor based his opinion on experiments with animals, a study by international experts in the “pathophysiology of drowning,” and his experience in treating more than 100 near-drowning victims.


The state court of appeals rejected the notion that there must be some “some objective factual basis” to support a conscious pain and suffering award.


Instead, the court declared that “the personal representative s of Connor’s estate were required to produce evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright or conscious pain while he was in the process of drowning.”


Connor’s estate satisfied this burden at the summary judgment stage with evidence that: “1) Connor, a healthy five-year-old, entered the pool without adult supervision and without a life preserver; 2) he received no blow to the head prior to drowning, nor did he have any physical problem that would have rendered him unconscious prior to going under water; 3) as the pool company’s own expert admitted, it was more likely than not that when Connor started to drown he was conscious; and 4) once his head was under water he experienced the usual pain and suffering associated with drowning, as described by Dr. Modell when he explained the pathophysiology of drowning.” (Freed v. D.R.D. Pool Service)


— Pat Murphy



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Lawyer bushwhacked by state ‘maintain-a-place’ requirement

Ouch! I don’t know many lawyers who can afford a $50,000 annual hit in the pocketbook. 

Unfortunately, that’s exactly what happened to Philip Kleinsmith when Utah’s legislators chose a protectionist path in the handling of foreclosures.


Kleinsmith is a Colorado attorney who specializes in nonjudicial foreclosures. He’s worked hard to build a national practice, admitted to the bar in 26 states.


According to court documents, Kleinsmith at one time earned more than $50,000 annually from Utah alone, serving as a trustee in trust-deed foreclosures.


That ended in 2001, when the Utah Legislature passed a law requiring licensed Utah attorneys to reside in the state in order to qualify as trustees.


Tough guy that he is, Kleinsmith sued and had the residency requirement declared unconstitutional under the Privileges and Immunities Clause.


Not to be outdone, Utah’s legislators amended the statute to require that attorney trustees either reside in Utah or maintain “a bona fide office in the state.”


So Kleinsmith trod once more up the courthouse steps and had a federal judge declare that the new law violated the Commerce Clause.


But those wily coyotes in the Utah statehouse had one more trick up their sleeves. The state now requires out-of-state attorneys who wish to act as foreclosure trustees to maintain a “place” within the state where they can go over stuff with “interested parties.”


The state did give guys like Kleinsmith a break. Apparently you don’t need to “maintain” an open bar and buffet lunch at these meeting places.


As Kleinsmith pointed out in his third and (apparently) final constitutional challenge, the maintain-a-place requirement would appear to be an unnecessary burden because he is completely able to prepare and file foreclosure documents, and supervise foreclosure sales, all without being personally present in the state of Utah.


Unfortunately, there’s no happy ending to this tale.


On Monday, the 10th Circuit just may have finally put the kibosh on Kleinsmith’s days as a foreclosure trustee in Utah.


The court rejected his claim that the maintain-a-place requirement unconstitutionally discriminates against out-of-state attorneys.


“Making it easier for Utahns to meet with trustees, who play a pivotal role in nonjudicial foreclosures, is a legitimate state interest,” the court explained. “And Utah’s legislature could rationally have concluded that this interest would be served by requiring attorney-trustees to maintain a place within Utah for meeting with trustors and other interested persons.” (Kleinsmith v. Shurtleff)


— Pat Murphy



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Woof! Employer must accommodate disabled woman’s service dog

Just how far does an employer need to go in accommodating a disabled employee’s service animal?

Pretty far, says the Montana Supreme Court.


One of Janelle McDonald’s best pals is Bess, an Australian Shepherd.


Bess is a trained service dog that helped Janelle navigate through life’s obstacles. Because of a leg injury, Janelle needed Bess for bracing support when she walked.


And in what is becoming an increasingly common function for service animals, Bess helped Janelle cope with mental health issues like depression and dissociative episodes.


Janelle’s former employer, the Montana Department of Environmental Quality, was pretty understanding, allowing Bess to stay with Janelle in the office during the work day.


However, a problem arose when it became apparent that Bess was having difficulty walking on the buffed tiled surfaces in some office hallways.


Bess actually slipped and fell a number of times, on occasion sustaining injuries that required veterinary care. Janelle ultimately decided that it was necessary to retire Bess from her service functions, and Janelle suffered accordingly.


Janelle later left the Department for another job and filed a complaint for disability discrimination.


The Department contended it had no duty to accommodate her service animal.


The Montana Supreme Court saw it otherwise, concluding that Janelle was a “qualified employee who needed and was entitled to a reasonable accommodation so that she could use her service animal effectively in the workplace. Her requested accommodation of nonskid floor coverings in the ground-floor hallways and the areas outside the first- and second-floor elevator doors was not beyond the scope of [the Department’s] duty under [the state’s disability discrimination law].”


On remand, Janelle will still need to show specifically that her requested accommodations were “reasonable.” (McDonald v. Montana Department of Environmental Quality)


— Pat Murphy



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Burned man can’t sue Burning Man

You can’t make this stuff up.

Here we go.


Once a year, tens of thousands of people gather in Nevada’s Black Rock Desert for the Burning Man Festival. According to the festival’s website, the event “is dedicated to community, art, self-expression, and self-reliance.”




The highlight of the festival is the burning of a 60-foot wood sculpture in the figure of a man. (Who are these people, Druids?)


Apparently, after the sculpture collapses in flames, participants toss tokens, mementos and other combustible objects into the fire, completing their “Burning Man experience.”


Anthony Beninati made the 2005 festival a truly memorable affair.


Beninati wanted to place a photograph of a recently deceased friend in the Burning Man bonfire.


After slowly circling the bonfire for about 90 minutes, Beninati stepped forward and tossed in the photograph of his friend.


You know what happened next.


Turning away, Beninati tripped on something and fell into the fire, severely burning his hands.


After beating out the flames, Beninati was right there in a California courthouse, suing the city of Black Rock for negligence.


According to Beninati, Black Rock was negligent in allowing participants to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress “routes and corridors” for those attendees who were “moved by the event to directly participate in the burning ritual.”


Of course, some might say that the sort of regimentation suggested by Beninati might detract from the “art, self-expression, and self-reliance” of the experience, but who are we to quibble?


The California Court of Appeal didn’t quibble, concluding that Beninati assumed the risk of his injuries.


“[A]n obvious risk inherent in the activity undertaken by Beninati was that the flames and ash hid the location of fire embers and Burning Man debris, including the cables which had held up the sculpture,” the court explained. “By continuing to walk into the fire, Beninati assumed the risk that he might trip and fall into the fire because he could not see the ground surface. This risk itself is one that is inherent in the burning of the effigy and the Burning Man commemorative ritual.” (Beninati v. Black Rock City)


— Pat Murphy



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Ssssssss! Snakes down the drain!

Here’s a piece of advice: If you love your pets, don’t let them near the good people from the Utah Division of Wildlife Resources.

If you don’t believe me, just ask Ryan Hoyer.

Hoyer’s an amateur herpetologist.

Fine, I don’t care that much for snakes, either, but Hoyer loves ‘em.

He loves the rubber boa in particular. According to Hoyer’s website, rubberboas.com, these snakes are likeable, harmless creatures that, to my surprise, dwell in the Western U.S. and Canada.


Unfortunately, aside from being a rubber boa aficionado, Hoyer was also a target of “Operation Slither,” a Utah criminal investigation into the illegal reptile trade.


So when Hoyer was swept up in Operation Slither, the Utah Division of Wildlife Resources swooped in and seized Hoyer’s 67 rubber boas.


Now, you’d think that an agency with “Division of Wildlife” plopped into the middle of its title would have the know-how to care for all sorts of creatures.


You’d be wrong.


You see, after Hoyer put his legal troubles behind him, he went to check on how his scaly buddies were doing at the good ol’ UDWR and found that Hoyer’s 67 had become Hoyer’s 8.


That’s right, only eight snakes had survived the “care” provided by the agency.


OK, taking care of 67 snakes is probably not the easiest thing in the world. But it only took me, an armchair quarterback in this whole drama, a few minutes on Hoyer’s website to get some basic tips on boa care.


For instance, they eat small rodents. And, here’s something interesting, Hoyer says that rubber boas are not “binge” eaters.


So you know right off the bat that throwing bags of Cheetos at these guys is not the right thing to do.


What’s the legal point in this muck ‘a muck?


Well, naturally Hoyer sued the state for the loss of his snakes.


But the Utah Supreme Court, having the last word in the case, decided that the state was immune because the death of Hoyer’s snakes “arose out of the institution or prosecution of a judicial proceeding.” (Hoyer v. State)


— Pat Murphy



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