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Elvis has left the graveyard!

Photograph by Paul Smith / Martin Fox

Photograph by Paul Smith / Martin Fox


Call me warped, insensitive, whatever you like, but I had to chuckle when I came across this legal fight over the final resting place of an Elvis impersonator from Milwaukee.

You see, like football mascots, there is something inherently funny about Elvis impersonators. 

Tom Greenblatt was famous in Wisconsin for his impersonation of The King.


I’m not sure he was as famous as the Kenosha Kickers’ Gus Polinski — Polka King of the Midwest.  (Remember the hit “Polka, Polka, Polka” ? No? “Twin Lakes Polka” ? “Kiss Me Polka”? How about the “Polka Twist”? Doesn’t ring a bell, eh? Boy, you need to get out more.)


Anyways, Greenblatt made a name for himself in Milwaukee when he started belting out his first public renditions of “Blue Suede Shoes” and “All Shook Up” in 1974.


Sad to say, the Elvis impersonator passed away in 2007 after a long battle with cancer.


In honor of his passing, his loved ones soon became embroiled in a legal dispute over where his remains would spend eternity.


Greenblatt was survived by his girlfriend of nineteen years, Donna Gurda, his sister, Florence, and his brother, Erwin.


Greenblatt had appointed Donna as the personal representative of his estate and, as best as we can tell, Donna had Greenblatt buried in accordance with his wishes: in an above-ground crypt at Wisconsin Memorial Park     


Despite working with Donna on the funeral arrangements, Greenblatt’s sister Florence soon had second thoughts and went about the process of trying to have Greenblatt disinterred and buried next to their mother at Pinewood Lawn Cemetery, a five-minute drive down the road.


But the Wisconsin Court of Appeals put a stop to Florence’s plans in a decision issued last month.


You see, while Florence argued that she was entitled to an order for disinterment because she had obtained the required permit from the Waukesha county medical examiner, state law also required the signature of a duly authorized representative of Wisconsin Memorial Park, which she failed to obtain.


Without all the i’s dotted and t’s crossed on her disinterment permit, the order was properly denied.


What’s more, the court decided that, because Florence participated in arranging Greenblatt’s burial, the doctrine of laches prohibited her from disinterring his remains.


“First, after Florence participated in Green’s burial, she waited almost eight months before seeking to have Green removed to Pine Lawn Cemetery where she claims he wanted to be buried. Second, Florence did not object to Green’s burial in Wisconsin Memorial Park while preparations for his burial were taking place….


“Finally, [Donna] would be prejudiced financially by the disinterment of the remains. [Donna] paid for the burial plot for [Greenblatt] and herself so that, in accordance with [his] wishes, the two of them could be laid to rest together. Allowing disinterment of [Greenblatt] would cause [Donna] financial losses that could have been avoided had Florence announced her contrary intentions while arrangements for [Greenblatt’s] final disposition were being made,” the court said. (Greenblatt v. Gurda)


— Pat Murphy



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Evenflo chips away at $10.4M child seat defect verdict

Faced with a $10.4 wrongful death verdict, child car seat manufacturer Evenflo had two shots at a new trial. 

First, Evenflo felt that it should have been allowed to tell the jury that its car seat met federal safety standards.


Second, Evenflo argued that the parents of an infant killed in a rollover crash should not have been allowed to admit evidence of recalls and test failures of a car seat that was similar to but not the same as the Evenflo model at the center of the case.


As is often the case on appeal, last week Evenflo learned that it would have to be satisfied with a partial victory.


Ejected child seat


Jessica Malcolm did all that you would expect of a new mom. A friend gave the Livingston, Montana, rancher an “On My Way” Model 207 child safety seat when she was pregnant.


Jessica called Evenflo to make sure that the Model 207 was safe to use and company representatives assured her that it was.


Jessica gave birth to Tyler and all was right with the world until the evening of July16, 2000, when she secured the four-month-old boy in his Evenflo car seat and drove off on a pizza run.


On the way home, Jessica’s 1996 Chevy Suburban was forced off the road by an oncoming driver who swerved into her lane.


The Suburban rolled over three times and ended up in a ditch.


During the rollover, a plastic seatbelt hook on the Evenflo car seat broke off and the seat was ejected from the Suburban.


Tyler, who remained strapped to the seat, suffered fatal brain injuries. Jessica escaped the accident without any serious physical harm.


The Lawsuit


Jessica and her husband, Chad, filed a strict liability suit against Evenflo, alleging that the Model 207 car seat was defectively designed because its seatbelts hooks were prone to fracturing and breaking away.


Evenflo denied any defect, submitting that Tyler’s car seat was bound to break loose due to the tremendous force of the crash.


As part of its strategy to avoid liability, Evenflo wanted to tell the jury that the Model 207 car seat complied with federal safety standards.


But the trial judge refused to allow this evidence, concluding it was unfairly prejudicial.


On the other hand, the trial judge allowed the Malcolms to introduce expert testimony that the Evenflo Model 206 — a seat with a seatbelt design similar to  the Model 207 that secured Tyler — had suffered a high percentage of failures in vehicle impact tests.


Moreover, the Malcolms were allowed to recount how the Model 206 had been subject to a recall, which spurred Evenflo to complain that the Malcolms were allowed to “put on trial a different child seat” than the Model 207 in which Tyler had died.   


In the wake of these body blows, Evenflo was hit with a jury award of $6.7 million in compensatory damages and $3.7 million in punitives.


Federal safety standards


Recognizing that the Malcolms’ case could have a profound impact on future product liability cases in the state, a couple of legal heavyweights joined the ensuing tussle before the Montana Supreme Court.


The Montana Trial Lawyers Association lined up in support of the Malcolms, and Evenflo found itself backed by the Montana Defense Trial Lawyers Association.


Evenflo argued that it should have been allowed to inform the jury that its Model 207 car seat complied with the minimum requirements for child restraint systems under Federal Motor Vehicle Safety Standard 213 (FMVSS 213).  


On the broader issue, Evenflo wanted the state high court to adopt the Restatement (Third) of Torts: Products Liability §4 (1998), which provides that compliance with a government safety regulation is admissible in connection a defective design claim.


But the court gave this argument a thumbs down with respect to the issue of liability.


“Section 4 conflicts with the core principles of Montana’s strict products liability law,” the court explained. “To recognize Section 4 improperly would inject into strict products liability analysis the manufacturer’s reasonableness and level of care—concepts that are fundamental to negligence law, but irrelevant on the issue of design defect liability.”


And the court wasn’t about to second-guess the trial judge on this issue:


“The District Court emphasized in its post-trial order that the FMVSS 213 ‘addresses only minimum levels of performance in 27-30 mph frontal impacts.’ The court further noted that ‘FMVSS 213 does not set forth any requirements, or create any reasonable expectations in the mind of the manufacturer, concerning the dynamic performance of a child seat in a motor vehicle rollover.’ The court stated that evidence at trial had established that ‘the dynamic forces unleashed in a high-speed rollover collision are very different from those present in a minimal 27 to 30 mph frontal crash.’


“The District Court added that ‘the risk of mischief and jury confusion’ inherent in allowing Evenflo to defend based on the ‘self-serving’ argument that the OMW model 207 had ‘passed’ FMVSS 213 was ‘particularly apparent when the limited purpose of the federal motor vehicle standards is viewed in the light of Montana products liability law.’”


But pay attention, defense attorneys, because the state supreme court went on to decide that evidence of Evenflo’s compliance with federal safety regulations was admissible on the issue of punitive damages.


“Evidence of Evenflo’s good faith effort to comply with all government regulations, including FMVSS 213, ‘would be evidence of conduct inconsistent with the mental state requisite for punitive damages,’” the court said.


So on this issue, Evenflo notched a victory, nixing the $3.7 million punitive award and getting a new trial on that aspect of the verdict.


Recalls and test failures


Evenflo hit a brick wall when it challenged the trial judge’s decision to allow the Malcolms to introduce evidence regarding the testing and the recall of the Model 206 car seat.


The Montana Supreme Court concluded that the “substantial similarity between the two models dictates that evidence regarding the model 206 would be relevant to whether Evenflo had sold the model 207 to the Malcolms in a ‘defective condition unreasonably dangerous to a user.’ Evidence of cracks, shearing of belt hooks, and FMVSS 213 test failures of the model 206 ‘would be relevant to both the “defect” and the “danger.”’ The District Court acted within its discretion when it decided that evidence regarding the model 206 constituted relevant evidence in determining Evenflo’s liability for compensatory damages.”


And Evenflo will have to contend with this evidence again because the state high court said that the recall and test failure evidence will be available to the Malcolms on their retrial for punitive damages.


“Evenflo’s conduct surrounding the testing and recall of the model 206 constituted relevant evidence regarding Evenflo’s state of mind with respect to its sale of the model 207,” the court explained. “Evenflo’s state of mind represented a key element in determining whether Evenflo had acted with actual fraud or actual malice,” (Malcolm v. Evenflo)


— Pat Murphy



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Damn Yankees! Judge bars student from wearing rebel flag

If you want a good example of why public schools need to implement uniform policies, look no further than Candice Hardwick’s long-running feud with the Latta School District in South Carolina. 

A plain white blouse and modest skirt sure would have saved everyone a lot of legal wrangling and expense.


Candice is proud of her Confederate heritage. Her father Daryl lays claim to two great-great grandfathers who served the South during the Civil War, including one who was wounded at Gettysburg.


As a tribute to her family’s heritage, Candice likes to wear T-shirts and other items emblazoned with the Confederate battle flag.


There’s no question that the Confederate flag is a lightning rod for controversy.


For many, the flag is a slap in the face, a blatant symbol of entrenched racism.


For others, like Candice, the flag conjures up romantic notions of the Lost Cause and Southern pride.


The Latta School District sees the Confederate flag for its potential to excite racial tensions within the student body. So when Candice was a student in the district between 2002 and 2006, she came up against a long-standing, unwritten dress policy prohibiting the wearing of the Confederate flag.


On several occasions, school officials directed Candice to remove or cover up t-shirts showing the flag, and one day Candice was given an in-school suspension for refusing to do so.


Now, it’s easy to understand the school district’s policy. The 1,600 students in the district are divided nearly equally between white and black.


The district was only desegregated in 1970, and since that time there have been numerous instances of race-related threats and violence.


So keeping an inflammatory symbol like the Confederate flag out of the mix seems to make sense.


But Candice sued, contending the Confederate flag ban violated her constitutional rights.


Earlier this month, U.S. District Judge Terry Wooten granted the school district’s motion for summary judgment, concluding that “given the overall context of past and present hostility and tension which has occurred over a broad spectrum of time between African-American and Caucasian students in the Latta School District, this Court concludes that Latta School District officials could have reasonably concluded that permitting the plaintiff to wear Confederate flag t-shirts would likely result in a substantial disruption of or material interference with school activities.”


That dispensed with Candice’s First Amendment claim. But to my mind, Candice may have had an even more compelling equal protection claim.


According to Candice, school officials selectively enforced its written dress code against clothing with “offensive” or “derogatory” messages, turning a blind eye to racially divisive garb worn by black students extolling FUBU (For Us By Us), “Black power” and Malcolm X.


On the surface, the argument that school officials enforced the dress code in a viewpoint-discriminatory manner would appear to have some traction.


The problem is that Candice failed to back up her claim.


“The evidence does not reflect that the defendants enforced the dress code in a viewpoint-discriminatory manner,” Judge Wooten concluded. “The only item offered to rebut the evidence presented by the defendants is the allegations in the Amended Complaint. Under the Federal Rules of Civil Procedure, ‘[w]hen a motion for summary judgment is made and supported (by affidavits), an adverse party may not rest upon the mere allegations or denials of his pleading.’ By presenting no evidence that school officials were aware of other students who wore racially divisive symbols and thereafter, selected not to discipline them, the plaintiff has failed to make ‘some comparative showing of discrimination among similarly situated individuals.’” (Hardwick v. Heyward)


Candice’s attorney is Kirk Lyons, who works with the Southern Legal Resource Center.


Lyons is hopeful of getting the 4th Circuit to reverse Judge Wooten’s decision, telling The Associated Press that Candice’s case would be a good one for the U.S. Supreme Court.


I’m not so sure on either count.


On her First Amendment claim, my guess is that it will be hard for Candice to overcome the school district’s contention that excluding the Confederate flag is required to maintain peace in the classroom, particularly given the history of racial tension in the Latta schools.


And there doesn’t seem to be enough evidence in the record to put meat on her equal protection claim which, as noted above, may well have been the legal argument with the most leverage.


— Pat Murphy



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Reefer madness or religious ecstasy?

Here’s a bit of advice: If you’re going to tell a judge that your pot smoking is an aspect of your sincerely held religious belief, it’s best not to claim that you belong to a church whose founders hawk membership packages for twenty bucks a piece.



Poor Danny Ray Hardesty.


Apparently a last-minute tax filer, Danny Ray was on the road on the night of April 15, 2005, in Yavapai County, Arizona,


Alas, Danny Ray caught the attention of a police officer who saw that the man’s van had only one working headlight. (Why is it that those who desperately wish to avoid the police always seem to have a problem with basic vehicle maintenance?)


Sure enough, the officer smelled something peculiar when he approached Danny Ray’s van and an ensuing search turned up 14 grams of marijuana and a joint.


No problemo, officer, because Danny Ray is a member of the Church of Cognizance and smoking weed is just a part of his religion.


Haven’t heard of the Church of Cognizance, you say?


Well, let me and Wikipedia clue you in.


No doubt echoing Martin Luther’s posting of the Ninety Five Theses, in 1994 Danuel and Mary Quaintance announced a 16-page “Declaration of Religious Sentiment” establishing the Church of Cognizance.


The website for the Arizona-based church informs those seeking true knowledge that marijuana aids the mind, body, and soul, and “is the ancient teacher of wisdom, compassion, and the way to the kingdom of glory in heaven on earth.”


The neat thing about the website is that for $20 you get a membership package that rivals the Mickey Mouse Club.


Yep, for your kind donation you get an ID card, your very own copy of the church’s Declaration, a membership charter, sanctuary signs, plant tags and the ever-popular Marijuana Hymn.


As a bonus, for an extra $5 you can sign up Uncle Renaldo for his own membership.


Now, I’m sure there are skeptics in the audience who might suggest that the “Church of Cognizance” is more about justifying one’s indulgence in a mind-altering substance than about a profound exploration of the soul.


And it might give you pause to know that the church’s founders were just this year sent to prison for conspiring to distribute 200 pounds of marijuana.


But who are we to judge?



What matters is that Danny Ray believes in the Church of Cognizance and, gosh darn it, his use of marijuana is protected by the First Amendment, right?



Well, the Arizona Supreme Court wasn’t all too sympathetic to Danny Ray’s religious exercise defense.


In upholding Danny Ray’s drug convictions last week, the court concluded that, regardless of the sincerity of his beliefs, the state’s prohibition on the possession of marijuana is the least restrictive means of furthering the government’s compelling interest in protecting the public from the health risks of marijuana and the dangers posed by illegal drug trafficking.


“Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit. In the context of this case, no means less restrictive than a ban will achieve the State’s conceded interests,” the court said. (State v. Hardesty)


— Pat Murphy




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Retirees notch wins in ERISA health benefit cases

Two U.S. Circuit Court of Appeals decisions last week provide employment attorneys with a good overview on how the ERISA rights of retirees can be affected by an employer’s merger or restructuring.

For plaintiffs’ attorneys, there are lessons to be learned on how an employer’s actions or omissions just might trigger the unintended vesting of retiree health benefits.


For those who represent employers, these decisions provide good illustrations of some of the pitfalls that must be navigated in order to avoid ERISA liability.


3rd Circuit: Unisys retirees get their old plan back


Computer manufacturer Unisys found itself on the wrong end of a lawsuit brought by 14 former employees who retired between 1987 and 1989. The plaintiffs were originally employed by Burroughs Corporation, which merged with Sperry Corporation in 1986 to form Unisys.


All was well until 1992, when Unisys eliminated its existing retiree medical benefits plan and implemented a new plan which the plaintiffs’ didn’t like. You see, under the Burroughs plan inherited by Unisys, retirees received medical coverage at little or no cost.


The new Unisys plan gradually increased the levels of retiree health insurance premiums until 1996 when retirees became responsible for the full cost of coverage.


The plaintiffs cried foul, alleging that Unisys breached its fiduciary duty under ERISA by changing their plan in contravention of certain promises and without the necessary disclosures.


Specifically, according to the plaintiffs, Unisys misrepresented that their retiree medical benefits were vested and could not change despite plan language reserving the company’s right to modify or terminate those benefits.


A U.S. District Court in Pennsylvania agreed that Unisys had violated ERISA and ordered the company to restore the terminated plan to twelve of the 14 plaintiffs (the two losing plaintiffs couldn’t show detrimental reliance).


So the issue that was presented to the 3rd Circuit was whether the unambiguous reservation of rights in the Unisys plan trumped contrary oral representations made by company underlings to the plaintiffs.


You see, Unisys made the mistake of delegating to human resource staffers and other managers the function of advising employees about retirement benefits.


Evidence showed that these company officials, when counseling the plaintiffs about their retirement options, said that medical benefits would cost $20 per month until age 65, and nothing after that for the rest of their lives, without also explaining that Unisys reserved the right to alter that arrangement.


The 3rd Circuit said this was enough to trigger ERISA liability.


“The Magistrate Judge was correct to conclude that these communications amounted to misrepresentations,” the 3rd Circuit explained. “Although the statement that ‘benefits would cost a retiree $20 per month until age sixty-five, after which time there would be no cost to the after which time there would be no cost to the retiree.’ was not in and of itself false, it was nevertheless a misrepresentation because it created the impression that the retirees would enjoy these benefits for the remainder of their lifetimes without the possibility of change.”


The court concluded that “the message that Unisys communicated to its employees in the course of counseling them about retirement was at best a half-truth because there was no mention of Unisys’ right to amend or terminate the plan at any point in the future. In essence, by failing to qualify its statements, Unisys placed a period where it should have placed a comma in the course of explaining retiree medical benefits to these plaintiffs and, in doing so, misrepresented the cost and duration of the benefits.” (Adair v. Unisys Corp.)


6th Circuit: Cutting of retiree benefits may have violated ERISA


Philips Display manufactured cathode ray tubes for television sets. The company employed hourly union workers at a plant in Ottawa, Ohio, and salaried administrative workers at an office in Ann Arbor, Michigan.


In 2001, Philips Display employees became employees of LG Philips, which was formed by a marriage of a Korean company and the parent company of Philips Display.


One result of the merger was the closure of the Ottawa plant. In connection with a reduction in force, certain union employees from the Ottawa plant and certain salaried employees from the Ann Arbor office retired and began receiving retiree medical benefits under plans that were largely a legacy of Philips Display.


Alas, in 2006 LG Philips declared bankruptcy and terminated the retiree medical plans.


So here we had two groups of ERISA plaintiffs: union workers who claimed they had vested rights under both a collective bargaining agreement and the terms of their medical benefit plans, and salaried employees who could only rely on the language of their plans.


Both groups of plaintiffs contended that the termination of their retiree medical benefits constituted a breach of fiduciary duty under ERISA —  not because Philips LG didn’t have the right to terminate the plans — but because the company failed to properly amend the plans in connection with the formation of Philips LG.


In this respect, the 6th Circuit decided that the plaintiffs had a legitimate claim and reversed a summary judgment in favor of Philips LG.


As the court explained, the “district court disposed of this claim by noting that ‘any breach of fiduciary duty … must come from the decision, by [Philips Display’s] parent company, to transfer the assets and liabilities of [Philips Display to LG Philips].’ Because this act was ‘part of a business decision implemented by their parent company,’ the district court held that ‘Defendants did not breach an ERISA fiduciary duty when Plaintiffs’ retiree health care benefits were terminated.’


“However, the fact that Philips’ decision to transfer assets was not a fiduciary one under ERISA does not mean that it did not trigger ERISA obligations. While it ‘is firmly established … that “a company does not act in a fiduciary capacity when deciding to amend or terminate a welfare benefits plan,”’ ERISA still provides instructions as to how an employer should properly amend or terminate a plan.


“Thus, even if Philips’ transfer of assets in this case was not a ‘fiduciary act,’ it must still comply with ERISA procedures,” the 6th Circuit said.


What’s more, the court decided that the union plaintiffs just might have a right to relief under the Labor Management Relations Act in addition to their ERISA claims because the governing collective bargaining agreement did not clearly including a “specific durational clause” limiting retiree healthcare benefits to the duration of the CBA.  (Schreiber v. Philips Display Components Co.)


— Pat Murphy



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Businessmen duck and cover! Calif. courts tap the deep pockets

Thursday was a good day for California personal injury attorneys.

The California Court of Appeal reinstated two auto accident cases involving fact patterns that plaintiff’s attorneys have typically had a tough time getting before a jury.

In one case, the court decided that a business could be responsible for a crash involving a vehicle stolen from a company parking lot.


In a second case, the court said that a company may be liable for an accident involving an employee on his way home from an out-of-town business conference.


Stolen tow truck


 Maurice J. Sopp & Son is a seller of commercial vehicles. It operates a vehicle service center in a high-crime area of Huntington Park, California.


On Oct. 6, 2005, the company had a tow truck stolen from its service center yard.


The culprit was Raymond Bermudez, a paroled gang member. An intoxicated Bermudez strolled into the yard, found the keys in the ignition, and drove the truck out of an open gate.


Sopp & Sons’ misfortune turned into tragedy when Bermudez lost control of the tow truck and plowed into a group of people waiting for a bus. Three were killed and a number of others suffered serious injuries.


Now, as the crash victims’ attorneys, you know that Bermudez probably isn’t worth going after.


But what are the chances that you can tap into the (hopefully) substantial assets and/or insurance coverage of Sopp & Sons?


Like most states, California law provides that, absent “special circumstances,” the owner of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it.


Moreover, the criminal’s act will generally be considered a superseding cause of any injury.


So, it looks pretty hopeless, right?


There’s always hope when you’re a plaintiff in California.


Sopp & Sons probably felt pretty confident after a California court tossed the crash victims’ negligence case on summary judgment.


But, to their credit, the plaintiffs’ attorneys kept grinding and their hard work paid off when the state appellate court found that their case was just the sort of case to find that special circumstances existed.


The court revived the case based on evidence that the tow truck “was a powerful vehicle capable of inflicting more serious injury and damage than an ordinary vehicle” and that Sopp & Sons left the vehicle “unattended and accessible to thieves” within the meaning of the special circumstances doctrine.


The court said the evidence supported a finding that the company’s “security measures or shutdown procedures were either not in place or not followed, even though, at the relevant time, Huntington Park had the highest rate of vehicle theft in the nation. …


“On the record presented, Sopp failed to carry its burden on summary judgment to show it owed no duty to secure the vehicle by undertaking minimally burdensome measures such as removing the key from the ignition and/or closing the gate to the premises.” (Carrera v. Maurice J. Sopp & Son)


Special errand?


Marc Brandon was a vice president for Warner Bros. Entertainment Inc. He lived near Bubank, California.


In August 2006, Brandon attended an out-of-town conference on Internet piracy. After leaving the three-day conference early, Brandon flew back to Burbank, picked up his car at the airport.


Rather than going to work, drove past his office at Warner Bros. without stopping and headed home along his normal route.


On the way home, Brandon was involved in a two-car collision.


Both cars struck and injured pedestrians Chuenchomporn Jeewarat, Tipphawan Tantisriyanurak and Kanhathai Vutthicharoen. Vutthicharoen died as a result of her injuries.


The pedestrians’ attorneys placed Warner Bros. deep pockets squarely in the crosshairs.


But just like the Sopp & Sons case above, the plaintiffs had a tough hurdle to climb: California’s “going and coming rule” generally bars an employer’s vicarious liability for accidents occurring during an employee’s commute to or from work.


The plaintiffs’ one chance against Warner Bros. was the state’s “special errand” doctrine. That rule imposes employer liability when the accident occurs while the employee is engaged in a “special errand” or a “special mission” for the employer.


But does the state’s special errand doctrine encompass an employee’s attendance at an out-of-town business conference?


Yes, said the California Court of Appeal.


What’s more, the court said that the doctrine applies to make an employer vicariously liable when, as in Brandon’s case, the accident occurrs along the route that the employee normally takes to work.


‘[W]hen an employee intends to drive home from the errand, the errand is not concluded simply because the employee drives his regular commute route, but rather, the errand is concluded when the employee returns home or deviates from the errand for personal reasons,” the court said. (Jeewarat v. Warner Bros. Entertainment)


— Pat Murphy



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