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Monthly Archives: September 2010

Internet defamation: Accused molester needn’t prove actual harm

A state court on Monday eased the burden on defamation plaintiffs seeking damages for false sexual molestation claims posted on the Internet. 

The case involved an uncle and nephew in New Jersey.

In 1998, the nephew fired the first shot in an exchange of lawsuits that would span more than ten years. The nephew sued seeking damages on a claim that he had been sexually abused as a boy by the uncle. 

That lawsuit didn’t end well for the nephew because his claim was dismissed. To rub salt in the wound, the uncle was awarded $90,000 on a counterclaim for defamation and a judge’s finding that the nephew’s lawsuit was frivolous. 

Unable to leave well enough alone, the nephew sometime later created a website which allegedly once again accused the uncle of molesting him “many, many, times” when he was a boy. 

The uncle learned of the website in 2007 and once more sued for defamation.

The case raised the issue of whether damage to reputation can be presumed or must be proven when the lawsuit involves Internet postings that accuse the plaintiff of engaging in sexual misconduct. 

The trial court concluded that, although the nephew’s Internet posting was defamatory per se, the objectionable statements were in the nature of libel rather than slander, necessitating proof of actual injury to the uncle’s reputation.

This the uncle admittedly could not do, so his case was dismissed.

But the New Jersey Appellate Division earlier this week breathed new life into the uncle’s lawsuit.

The court explained that, for purposes of summary judgment, there was no real dispute that the alleged postings on the nephew’s website were defamatory. 

Accordingly, the court concluded that “dismissal of the action at that stage — merely because [the uncle] presented no proof of actual damage — provides [the nephew] with a license to defame.

“If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense, does not offend us.” (W.J.A. v. D.A.

– Pat Murphy


$5M verdict stands in Jeep ‘park-to-reverse’ defect case

A Louisiana appeals court has affirmed a $5 million jury verdict against DaimlerChrysler in a case brought by a pregnant woman whose midsection was crushed when her family’s Jeep Grand Cherokee backed into her.

The case involved allegations that the vehicle had a design flaw that allowed it to slip out of park into reverse.

In upholding the award, the court addressed the often troublesome issue of when the statute of limitations begins to run when a public awareness of a product defect comes in the years following the injury.

Tragic loss

On May 21, 1999, August and Juli Guillot were preparing for a new addition to their family. Juli was nine months pregnant with a boy, Collin, and it was time to head for the hospital.

The Guillots were getting ready to take their 1999 Jeep Grand Cherokee from their home in Violet, Louisiana, to the North Shore Regional Medical Center in Slidell.

After entering the Jeep, Juli realized she needed to get a book from the back seat. Right after Juli exited the front passenger seat to get the book, August left the driver’s seat to go back in their home to get a cell phone.

As Juli opened the rear passenger door to reach for the book, the Jeep began to roll backwards. Juli’s midsection was crushed when she was pinned between the rear passenger door and a brick column.

In addition to Juli’s serious internal injuries, Collin suffered catastrophic injuries in the womb. In fact, Collin had been pushed through the top of Juli’s uterus into her abdominal cavity. Surgery was required to extricate Collin from Juli’s abdomen and the boy died several weeks later from his injuries after being removed from life support.

At the time, the Guillots thought it had all been a tragic accident. August thought he had put the Jeep in park before he left the vehicle, but given what happened he had to assume that he was mistaken and had left the SUV in reverse.

Timely complaint

It wasn’t until July 13, 2001, that the Guillots began to realize that the death of Collin may have been due to a transmission defect in their Jeep Grand Cherokee. On that day Juli received a telephone call from a Los Angeles Times reporter who was investigating complaints on Jeep Grand Cherokees.

This spurred the Guillots to contact an attorney. On November 30, 2001, the Guillots filed their product liability complaint against DaimlerChrysler. They alleged that the Grand Cherokee had a transmission defect that allowed it to slip into reverse from park.

At trial, DaimlerChrysler tried to argue that the accident was August’s fault, but a jury didn’t buy it and awarded the Guillots $5 million. (See “$5M for baby death,” Lawyers USA, April 21, 2008.)

On appeal, DaimlerChrysler thought it had a good argument that the Guillots’ complaint should have been dismissed as time-barred because it had been filed more than two years after the accident.

Friday, the Louisiana Court of Appeals torpedoed that contention and upheld the $5 million award.

The court concluded that the circumstances at the time of the accident did not place the Guillots on notice that they might have a product claim against DaimlerChrysler.

The court observed that when “questioned why he assumed he left the vehicle in reverse rather than immediately suspecting a defect, Mr. Guillot testified, ‘It’s the only thing I could think that happened.’ Furthermore, no person who investigated the accident suggested or suspected a vehicle defect.”

Accordingly, the court found that “the Guillots acted reasonably in initially assuming the vehicle had been left in reverse, accepting the investigating officer’s findings, and not immediately consulting an attorney to file suit against Chrysler.” (Guillot v. DaimlerChrysler)

– Pat Murphy


Pants on the ground: Drug suspect betrayed by wardrobe malfunction

Pants on the Ground
Pants on the Ground

Lookin’ like a fool
With your pants on the Ground

General Larry Platt, “Pants on the Ground”



Life has a way of imitating art. Frank Irving Wiggins wishes it were not so.

Wiggins had the misfortune of crossing paths with Officer Kari Breci in St. Paul, Minnesota, one November 2008 afternoon.

Breci and her partner were on patrol. The officers spied Wiggins and his friends sitting in a car for no apparent reason in the parking lot of a White Castle. The fast-food restaurant is located in an area notorious for its drug deals, so Breci’s suspicions were aroused.

Breci ordered Wiggins and his friends out of the car. The officer then ordered Wiggins to raise his hands above his head.

This was a problem because the street-stylish Wiggins wore loose-fitting jeans.

When Wiggins’ hands went up, his pants went down.

Officer Breci, understandably reluctant to pat down Wiggins in his exposed state, decided to do the courteous thing and pull the man’s pants up.

As Breci lifted up the pants, she felt a hard object in Wiggin’s front pocket which turned out to be a handgun.

This was a definite no-no for Wiggins because he had prior violent crime convictions, so the unfortunate man with the droopy drawers faced a conviction for illegally possessing a firearm.

Naturally, Wiggins wanted to suppress evidence of the gun. He argued that Breci’s “unique wardrobe assist” was a search that violated the Fourth Amendment.

But this argument didn’t fly in the trial court or with the Minnesota Court of Appeals, which earlier this month held that a “police officer’s pulling up a person’s excessively saggy pants during a constitutionally justified investigative stop is not a search requiring additional justification.” (Minnesota v. Wiggins

– Pat Murphy


Air Force officer wins ‘Don’t Ask, Don’t Tell’ challenge

A federal judge on Friday ordered the reinstatement of a U.S. Air Force Reserve officer who had been discharged under the military’s “Don’t Ask, Don’t Tell” policy because she is a lesbian.

“The application of ‘Don’t Ask, Don’t Tell’ to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion,” wrote U.S. District Judge Ronald B. Leighton of the Western District of Washington. (Witt v. U.S. Air Force

Witt had been honorably discharged in 2007 after a married man reported to the Air Force that the major was having an affair with his wife.

Friday’s decision does not strike down the U.S. military’s ban on open homosexuality.

Rather, Judge Leighton ruled that the Air Force violated Witt’s substantive due process rights by discharging her without being able to show that her continued service adversely impacted the effectiveness of the unit of flight nurses she commanded.

In his findings of fact, Judge Leighton wrote that “[n]o credible evidence was presented to this Court which indicated that Major Witt’s sexual orientation ever had a negative effect on … unit morale, order, discipline, or cohesion.”

To the contrary, the judge said that the evidence showed that “Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission.”

The decision comes after the 9th Circuit ruled in Witt’s case that the military’s Don’t Ask Don’t Tell policy must be justified under a “heightened scrutiny” standard. (See “‘Don’t ask-don’t tell’ policy may violate Constitution,” Lawyers USA, June 2, 2008.) 

– Pat Murphy


The fix is in: Traffic court hanky panky

It defies all logic that judges would jeopardize their careers over a few measly traffic tickets.

But human nature being what it is, perhaps we shouldn’t be too surprised to hear that a New York judge may have fixed a ticket in the hopes of getting a date with a driver he had the hots for.

Or that a Michigan judge allegedly used his powers to make tickets against himself and his lead-footed wife “go away.”


Fatal attraction

Earlier this month, the New York Appellate Division suspended Michael Dorsky for three years. From 1985 to 2004, Dorsky served as a traffic judge in Garden City for the New York State Department of Motor Vehicles.

Dorsky, 60, is married and has three children. With a family and nice, secure gig as a traffic judge, you’d think Dorsky would be pretty satisfied with his life.

Perhaps he was.

But then Officer Catherine Johnson-Murphy walked into his life.

Johnson-Murphy of the NYPD had been cited for being involved in an accident with an uninsured vehicle. Johnson-Murphy contested the ticket, claiming that her car was inoperable and in storage at the time.

Johnson-Murphy’s case was assigned to Dorsky and trouble started brewing almost immediately.

According to court records, Dorsky first had contact with Johnson-Murphy in a phone conversation after which he granted her request for an adjournment.  

Johnson-Murphy’s case was then heard at the DMV offices on March 31, 2004. Prior to the start of the hearing, Dorsky had a private conversation with Johnson-Murphy outside the hearing room

After the hearing and before Dorsky issued his decision, the judge started calling Johnson-Murphy, either speaking with her personally or leaving voice-mail messages.

In his disciplinary proceeding, Dorsky admitted placing the calls, explaining that Johnson-Murphy was “a person I would like to get to know better.”

In a decision signed by Dorsky on April 7, 2004, the judge found in favor of Johnson-Murphy and directed the DMV to remove the record of the accident from her driving record.

According to the court, in a phone conversation on April 20, Dorsky discussed the traffic case with Johnson-Murphy and, while acknowledging his attraction to her on one hand, assured her that he didn’t expect anything from her on the other.

“Frankly, I wasn’t even sure that you were not guilty … but that’s neither here nor there,” Dorsky said.

Also during that conversation, Dorsky confirmed plans to meet Johnson-Murphy for dinner the following evening.

Given Dorsky’s position and marriage, his apparent infatuation with Johnson-Murphy was wrong on a lot of counts.

But the state’s appellate division court was most concerned with Dorsky having a personal relationship with a party having a case before him.

The court concluded that Dorsky “not only acted improperly in pursuing a personal relationship with the subject of an administrative hearing over which he presided, but also engaged in a selective view of the evidence presented at the hearing, ignored prior warnings about ex parte communications from the DMV, and made false denials about his conduct to the Inspector General’s office.

“The respondent’s conduct clearly served to lessen public trust and confidence in the system and justly led to the termination of his employment with the DMV.” (In re Dorsky)


The ticket fixer

The next story of judicial misconduct comes from The Jackson Citizen Patriot.

Michigan Judge James M. Justin has been suspended during an investigation into various allegations of improprieties during his time on the Jackson County District Court.

The newspaper conducted its own investigation and uncovered court records showing that Justin dismissed nine traffic cases against himself and his wife, Kim.

According to The Citizen Patriot, the judge dismissed four illegal-parking tickets he received from 2002 to 2004.

Justin also dismissed five traffic tickets issued to his wife between 1999 and 2009. Most of those tickets were for speeding.

All told, the nine tickets “handled” by Justin carried potential fines and costs of $751.

Justin’s attorney, Dennis Kolenda of Grand Rapids, told The Citizen Patriot that the judge acknowledges that he was wrong in fixing the tickets.

But Kolenda argues that Justin’s heart was in the right place because he wanted to save taxpayers the cost of bringing in a visiting judge when the Justin and his wife contested the tickets.

“The practicalities of bringing in a judge for a parking ticket is probably more than what the people of Jackson County would want,” Kolenda told The Citizen Patriot.

Riiight. So the citizens of Jackson County should actually be thanking Justin. Sure, that argument will fly.

– Pat Murphy


Court: Florida’s gay adoption ban unconstitutional

A Florida appeals court on Wednesday ruled that the state’s ban on gay adoptions is unconstitutional.

Such a ban could not be reconciled with the fact that Florida allows homosexuals to serve as foster parents, concluded a unanimous, three-judge panel of the Third District Court of Appeals.

“It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons,” said Judge Gerald B. Cope Jr. in a 35-page opinion. (In re Adoption of X.X.G.)

Miami-Dade County Judge Cindy S. Lederman ruled in 2008 that the ban violated the equal protection rights of a homosexual man who became the adoptive father of two boys after serving as their foster parent for four years.

Yesterday’s decision affirms that ruling. The state appeals court heard oral arguments last August. (See “Fla. appellate court considers same-sex adoption,” Lawyers USA, Sept. 1, 2009.)

Gov. Charlie Crist announced shortly after yesterday’s decision that the state will immediately cease to enforce the ban.

However, supporters of the ban told The Miami Herald that they expect the ruling to be reversed by the Florida Supreme Court.

 – Pat Murphy


Butt wiggler may get workers’ comp

Ya gotta love those wacky guys working for the Xenia Rural Water District. Do they know how to have a great time or what?

Talk about funny? Pleease! Let those guys get started and you’ll be busting a gut.

Of course, their unique brand of merriment may lead to a few bumps and bruises. But what the heck, that’s what workers’ compensation is for, right?

The Xenia Rural Water District installs water lines in rural Iowa. The work can be back-breaking, but that doesn’t mean that the District’s employees don’t know how to break up the monotony.

Norman Vegors, who worked for the District, claims that he and a coworker commonly acknowledged each other by waving the boom of a track hoe.

Hey, what better way to lighten things up than by having 20 tons of construction equipment careening around the job site? Zany!

Then there are the butt wiggles.

Say you’re walking across a job site. You want to wave to a friend, but your hands are full. According to Norman, the clever, irreverent thing to do is to wiggle your butt at your pal.

Those guys!

Of course, there can be a price to pay for really great comedy. Norman discovered this truth the hard way.

One day Norman spied a coworker, Casey Byrd, approaching in a pickup truck. Norman gave Casey a good old butt wiggle and, to spice things up, he presented his posterior by leaning over the bed of his own truck.

Casey took this irresistible bait and attempted to bump Norman’s booty with his side mirror as he drove by.

Unfortunately, Casey passed a smidgen too close and hit Norman with his pickup.

No worries! Norman would be right as rain once his injuries healed and the workers’ compensation checks started arriving in the mail.

But then some sour puss of a state judge decided that Norman wasn’t entitled to benefits because he was engaged in “horseplay” at the time of his injuries. Boo hoo!

Coming to the rescue was the Iowa Supreme Court, whose justices obviously have an elevated sense of comedy.

While the District argued that Norman was ineligible for benefits because he had suffered a “wilfull injury,” the state high court decided that the employee should have his day in court to prove that he did not substantially deviate from the course of employment.

“It cannot be determined as a matter of law that [Norman] voluntarily instigated or aggressively participated in horseplay to an extent that prevents compensation. There is evidence in the record that the horseplay was initiated only by [Casey] or that any action by [Norman] was an insubstantial deviation from his employment,” the court said.

As to Norman waving his posterior in Casey’s direction, the court said that the “butt wiggle considered in isolation could be thought a ‘harmless act of levity.'” (Xenia Rural Water District v. Vegors)

 – Pat Murphy


Peeping Tom avoids jail on a technicality

You’d think prosecutors would have a slam dunk in getting a conviction for voyeurism when the defendant was caught holding his private parts while looking up at a woman’s bathroom window.

But one should never underestimate the ability of judges to get hyper technical with the language of a statute that ordinary people would find plain enough to send someone to jail.

The beneficiary of one such judicial dispensation is Carl Devoid Jr.

The victim of Devoid’s roving eyes lives on the second floor of an apartment building located in Colchester, Vermont. The window in the victim’s bathroom shower overlooks a parking lot used by residents of the building. The bottom of the window is at the level of the victim’s mid-chest.

Despite her landlord’s advice, the victim neglected to cover the window with a curtain, figuring no one could see her through the window.

Unfortunately, in the apartment right below the victim’s unit lived Devoid, who evidently could hear whenever the victim turned on her shower.

On September 1, 2008, the victim claims that she saw Devoid standing in the parking lot looking up at her bathroom window as she was showering.

Two weeks later, the victim again saw Devoid. This time she alleged that she saw Devoid looking up at her window for three minutes with a hand on his crotch. Doing the smart thing, the victim grabbed her cell phone and took a picture of Devoid, still looking up with a hand on his crotch.

With this evidence the state of Vermont charged Devoid with voyeurism.

Vermont’s voyeurism statute provides that “[n]o person shall intentionally view … the intimate areas of another person without that person’s knowledge and consent while the person being viewed … is in a place where he or she would have a reasonable expectation of privacy.”

The problem with the state’s case was that, because of the height of the window, Devoid couldn’t see the victim’s “intimate areas” from where he was standing in the parking lot.

Using good sense, a jury convicted Devoid of the lesser offense of attempted voyeurism.

But this good sense resolution of the case didn’t satisfy the Vermont Supreme Court, which on Friday overturned Devoid’s conviction.

“The State’s theory in this case is that defendant’s looking at the window is a sufficient overt act.  There are significant difficulties with this theory.  Under it, any looking in the direction of a person known to be naked is an overt act even if the person were fully behind a wall.

“Because defendant could not see the intimate areas of complainant’s body and must have been aware of that circumstance, we cannot distinguish between desire to view those intimate areas and intent to do so.  Thus, the alleged overt act is not corroborative of defendant’s criminal purpose,” the court said. (Vermont v. Devoid

Now, in the real world the rest of us inhabit, trying to look at a woman showering sorta captures the essence of voyeurism, so we might not comprehend the superior wisdom of the good justices of the Vermont Supreme Court.

And while it may not be particularly comforting to the women of Vermont, at least Carl Devoid Jr. must be pleased to know just how far he can go in pursuing in his pastime without getting into trouble.

 – Pat Murphy


Boss fired for refusing to handle employee with kid gloves

Elen Bahr found herself between a rock and a hard place.

Bahr claims that a minority worker she managed wasn’t performing up to expectations. Higher ups, fearful of a race discrimination lawsuit, allegedly wanted Bahr to turn a blind eye to the minority worker’s poor performance.

According to Bahr, she lost her job because she refused to play that game.

Earlier this month, the Minnesota Supreme Court decided that Bahr didn’t have a cause of action against her former employer, Capella University.

Bahr, a white woman, worked for Capella University in the school’s communications department. Her troubles began in February 2006 when L.A., an African-American woman, was assigned to the team of employees Bahr managed.

According to Bahr, L.A. failed to meet performance expectations — despite receiving personal coaching. When Bahr wanted to place L.A. on a formal performance improvement plan, the supervisor experienced resistance from Capella’s human resources department.

Bahr claims that she was informed in a vague fashion that L.A. had a checkered, “racially based” history at the school. There was a fear by administrators that formal action against L.A. could result in a race discrimination lawsuit.

Things came to head in 2007.

Bahr began complaining that L.A.’s poor performance was adversely affecting the performance of her department. Bahr further objected that the special treatment of L.A. was discriminatory against the other members of her communications team.

Capella fired Bahr in June 2007, ostensibly because of the poor “work team dynamic” in her department.

In turn, Bahr sued for retaliation under Minnesota’s employment discrimination statute, claiming that the school fired her in reprisal for her opposition to the “discriminatory” handling of L.A.

A state trial judge dismissed Bahr’s complaint.

The Minnesota Supreme Court recently affirmed that dismissal, holding that a retaliation plaintiff must have an objectively reasonable belief that her employer was engaged in discrimination.

Borrowing from Title VII, the court held that state law likewise required a showing that alleged racial discrimination resulted in some adverse employment action.

The court found that Bahr’s retaliation complaint failed to satisfy this essential element.

“We conclude that no reasonable person could believe that Capella’s treatment of L.A. was forbidden by [state law] because L.A. was not subjected to anything that could remotely be considered an adverse employment action. …

“Capella’s decision not to place L.A. on a [formal performance improvement plan] cannot reasonably be believed to constitute an adverse employment action against L.A. or the other employees that Bahr ambiguously references,” the court said. (Bahr v. Capella University)

Former Purple People Eater and current Minnesota Supreme Court Justice Alan Page wrote a stirring dissent, which makes more than a little sense.

“Although Bahr had no basis to believe that Capella had engaged in employment discrimination against L.A., Bahr may have reasonably believed that Capella’s race-based preferential treatment of L.A. constituted reverse discrimination against Capella’s non-black employees who were subject to all of Capella’s performance and disciplinary standards,” Page wrote.

 – Pat Murphy


When is a roof not a roof?

You have to hand it to those wily home insurers. They always seem to have a trick up their sleeve to deny a claim.

Just ask Tim and Beth Newsnup. They thought they were covered when rain from a passing storm poured into their home.

But then Farmers Insurance shocked them by deciding that the roof over their heads had undergone a metaphysical transformation into something that was not a roof, something for which there was no coverage.

The trouble goes back to a day in June 2006 when Tim decided it was about time to replace some deteriorating shingles on the roof of the couple’s home in Douglas County, Oregon.

On the first night of the Dewsnups’ roof repair project, a storm moved in. High winds blew away the polyethylene sheeting Tim had tacked over the area of the roof exposed by the removal of the old shingles.

If you’ve ever owned a home, you’ve had nights like the night the Newsnups had that night.

Tim attempted to replace the sheeting that had been blown away, but fell off the house in the attempt. Not only did Tim injure himself when he hit the ground, but in falling he took more protective sheeting with him.

And just as in Winnie the Pooh and the Blustery Day, the rain rain rain came down down down in rushing, rising riv’lets.

The interior of the Dewsnups’ home was soaked and they filed a claim with Farmers Insurance for the damage.

Farmers denied the claim under its standard water damage exclusion.

The Dewsnups countered that the water damage exclusion did not apply because their loss resulted from either a windstorm or a falling object — Tim himself being the object. 

But the clever dogs at Farmers had an answer: the exceptions to the water damage exclusion did not apply because both required that either the windstorm or the falling object damage the “roof,” and a sheet of plastic is not a “roof.”

An Oregon judge and the state’s court of appeals agreed with Farmers’ construction of its insurance contract, so it looked like the insurer wouldn’t have to pay the Dewsnups’ claim.

That was until yesterday when the Oregon Supreme Court weighed in on the subject and said not so fast.

First, the court rejected Farmers’ contention that a roof must be a “permanent” fixture to satisfy the policy’s definition.

“We find the term ‘permanent,’ in this context, unhelpful, and decline to set a necessarily arbitrary limit on the length of time that a roof must last in order to qualify as such.  Rather, a roof should be sufficiently durable to meet its intended purpose:  to cover and protect a building against weather-related risks that reasonably may be anticipated,” the court said.

That hurdle out of the way, the court next decided that a jury issue existed as to whether the Dewsnups’ roof at the time of the storm met the policy’s definition.

“In [the Dewsnups’] expert’s opinion, the polyethylene sheeting was secured to the [roof’s] plywood sublayer in such a way that it ‘would have been adequate to protect the home for one or two years if necessary.’ The expert further described the roof construction as ‘functionally permanent.’

“Taking that evidence as true, as we must on review of [Farmers’] motion for summary judgment, we conclude that a reasonable trier of fact could find that [the Dewsnups’] roof was sufficiently durable to meet its intended purpose, which was to provide protection from the elements while plaintiffs undertook the roof repair work that the policy expressly authorized,” the court said. (Dewsnup v. Farmers Insurance of Oregon)

So the Dewsnups get their day in court and Farmers will need to be adroit in excluding from the jury panel homeowners with insurance horror tales of their own to tell.

– Pat Murphy