This is why we have “The Jerry Springer Show.”

It’s because we have guys like Thomas Sullivan who can’t get it through their thick skulls that the rule is one wife at a time.

Thomas played professional football from 1972 to1978 for the Philadelphia Eagles and the Cleveland Browns. At least that’s the rumor. I never heard of the guy.

As a former NFL player, Sullivan was entitled to pension benefits under the Bert Bell/Pete Rozelle NFL Player Retirement Plan.

Thomas died in a car accident in 2002, so his wife, Barbara, began receiving benefits from the NFL as his surviving spouse. Thomas married Barbara in 1986 in South Carolina.

The benefits aren’t great, but they helped. From 2002 to 2007, Barbara received $192,900 from the NFL. The benefit is currently $2,700 per month.

Barbara’s world was turned upside down in 2007 when the NFL suspended payments to her.

As it turns out, Thomas had married Lavona Hill in Maryland in 1979 and never bothered to get a divorce. The NFL wanted to know who was legally entitled to the benefits before continuing to dole them out.

Lavona eventually sued the NFL under ERISA and the soap opera landed in the lap of U.S. District Judge Berle Schiller in Philadelphia.

The prospects were dim for Barbara from the outset.

The case was governed by South Carolina law of bigamy. Under South Carolina law, the marriage of Thomas and Barbara was void unless Lavona or Thomas was absent for a period of five years and the one spouse was not aware whether or not the other spouse was living during that time.

Thomas and Lavona stopped living together as husband and wife around 1983 — three years before Barbara’s marriage. Lavona allegedly last had contact with Thomas in 1985.

Let’s be clear that Lavona is not some evil schemer in all this. Lavona learned of Thomas’s death in 2002 from her son. Lavona applied for Social Security benefits based on her marriage to Thomas.

The Social Security Administration eventually determined that Lavona was entitled to benefits as Thomas’s widow. What’s more, the agency told Lavona to look into the possibility that she was entitled to benefits from the NFL.

It was when she made that inquiry that Lavona learned that Barbara had been receiving benefits from the NFL as Thomas’s surviving spouse.

What a mess!

There was to be no splitting of the baby by Judge Schiller on this one.

Barbara’s marriage to Thomas was void under South Carolina law, leaving Lavona as Thomas’s surviving spouse.

Barbara tried to avoid this result by arguing that Lavona had walked out on her marriage to Thomas.

But Schiller, in a decision issued last week, recognized that the result was the same regardless of which spouse left the other or whether there was a mutual split.

“Although the Court sympathizes with Barbara’s Sullivan’s position, her suggested reading of South Carolina law is inconsistent with the state’s strong stance against bigamy. Two people cannot dissolve a marriage by simply being apart for five years and thus forego the formal avenues created by South Carolina law to dissolve a marriage,” the judge wrote.

In a concluding observation, Schiller recognized that Barbara’s “good faith belief that she was legally married is insufficient to validate her marriage.” (Hill v. NFL)

Talk about a sour outcome! The only bad guy in the whole affair is dead. Thomas’s wives are left to deal with the wreckage of his life.

And the fact that Lavona gets Thomas’s pension going forward does not end the matter. There’s still the issue of the $192,900 that Barbara already received from the NFL as a surviving spouse.

That issue wasn’t before Schiller, so he was probably relieved that he didn’t have to decide it.  Let’s just hope that Lavona is happy with her win. Barbara doesn’t need any more grief in her life.

As the now 57-year-old Barbara told The Associated Press, “Everything is gone. I don’t have nothing.”

- Pat Murphy

patrick.murphy@lawyersusaonline.com

A guy falls off a stool at an IHOP restaurant. No, this is not the opening line for a bad joke.

Instead, it describes an actual accident that forced a court to decide what remains of a premises liability case when a property owner does everything necessary to remove the presumption of negligence raised under the doctrine of res ipsa loquitur.

The case was brought by Michael Howe. On June 26, 2008, Howe went to an IHOP restaurant in Alhambra, California, and sat down on a stool at the counter.

The stool seemed fine when Howe sat down. He later said that he detected nothing wrong with the stool and felt no looseness.

However, when Howe leaned against the back of the stool, the chair detached from its base and Howe hit the floor. A subsequent examination of the stool showed that the three wood screws holding the seat in place had broken.

Howe sued IHOP for negligence. IHOP moved for summary judgment, producing evidence that it conducted regular inspections of the restaurant which included examinations of the bottom of the stools. Prior to the accident, there had been no previous reported accidents involving a counter stool seat separating from its base.

The trial judge in the case decided that this evidence was enough to grant IHOP a win, finding that the restaurant had established that it had no actual or constructive notice of a defect in the stool.

Last week, the California Court of Appeal decided that the trial judge was too hasty in entering judgment for IHOP.

Howe argued that he had raised a presumption of negligence under the doctrine of res ipsa loquitur.

The court of appeals agreed.

“First, it is safe to say that in light of common experience, a counter stool does not ordinarily fall off its base when used normally unless someone is negligent. Second, the counter stool in this case was in [IHOP's] exclusive control. … Finally, [Howe] sat upon the stool in an ordinary manner, tilting it about an inch to facilitate his doing so. There was sufficient evidence to establish that the doctrine of res ipsa loquitur applied,” the court said.

So Howe had that going for him.

The court also recognized, however, that IHOP had rebutted the presumption of negligence with its evidence of regular safety inspections and the absence of prior accidents.

This made the presumption of negligence under res ipsa loquitur “vanish,” in the court’s words, but even this did not end Howe’s case.

Instead, the court recognized that Howe could proceed to trial relying “on the logic of the underlying common law inference of negligence.”

The court explained that, under the doctrine of  res ipsa loquitur, where “the predicate facts giving rise to the presumption are established as a matter of law but there is evidence to rebut the presumed fact, the presumption vanishes, but (except in rare cases where the inference of negligence is dispelled as a matter of law), the court may instruct the jury that it may infer from the established facts that the defendant’s negligence was a proximate cause of the accident, and the court is required to give that instruction when requested.

“And where the basic facts are contested and evidence is introduced to rebut the presumption, the presumption vanishes, but the doctrine may still support an inference that the accident resulted from the defendant’s negligence. Again, an appropriate instruction on the inference is appropriate.” (Howe v. Seven Forty Two Company) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Being married to a know-it-all lawyer can be problematic in the best of times. 

But it seems out of bounds that a highly qualified wife would lose out on a job because years earlier her lawyer husband fired off an ill-advised lawsuit at her prospective employer. 

Judy Norman-Nunnery claims that’s just what happened to her.

Judy is an African-American woman of some accomplishment. She holds a doctorate in education from the University of Wisconsin-Madison and has held prominent positions in education and state government.

In 2005, Judy had her eye on an open position at Madison Area Technical College (MATC). She submitted an application for the position of Disability Resource Services Administrator.

Judy was nonplussed when MATC didn’t even grant her an interview. And the wheels really started to turn when MATC hired a white woman for the job.

That Judy sued for race discrimination isn’t all that surprising.

What’s more interesting is that Judy also sued for “marital associational retaliation,” claiming that she didn’t get the job because of her marriage to Willie Nunnery.

You see, Willie is a lawyer and in 2000 he represented Elvira Jimenez in a race discrimination suit against MATC. The Jimenez case proved to be a disaster for Willie. A court found that the lawsuit was frivolous and that certain documents produced by Jimenez were fraudulent. As a result, Willie had his law license suspended.

Judy alleged that certain officials at MATC had long memories and never forgave Willie for painting them with the racist label. Judy claimed that those same officials worked behind the scenes to make sure that she didn’t get the administrator position she applied for. 

On Monday, the 7th Circuit took a look at Judy’s claim for marital associational retaliation and concluded that she didn’t have a leg to stand on.

The court dodged the question of whether a claim for marital associational retaliation is viable in the first place.

Judy likened her cause of action to cases in which courts had found that due process protected non-marital, romantic relationships from state interference, and cases prohibiting retaliatory state conduct in violation of the First Amendment’s protections for intimate associations.

The court said it didn’t have to decide the issue because her claim failed on the evidence.

First, Judy was unable to produce any evidence that animosity against her husband played any role in the school’s hiring decision.

The court explained that “Norman-Nunnery’s claim cannot survive summary judgment because she has failed to provide any evidence that the defendants refused to hire her because of her marriage to Willie Nunnery.

“Arguably she has presented evidence that they were aware she was married to Willie Nunnery and that they harbored ill feelings toward him. But she has presented no evidence that they were motivated by their animosity toward Willie Nunnery in passing her over for the job.”

Second, the evidence failed to show that Judy otherwise would have been offered the job based on her professional experience.

The job Judy applied for required a certain depth and breadth of experience with disabled individuals, and the evidence showed that Judy could not satisfy the depth-and-breadth criteria used by MATC in making its hiring decision.

The court said that “all of the uncontroverted evidence demonstrates that the candidates who advanced to the interview stage and the candidate who ultimately was hired all had depth-and-breadth scores that exceeded those of Norman-Nunnery. The depth-and-breadth scores were a legitimate, non-discriminatory criteria for distinguishing among the minimally qualified applicants.” (Norman-Nunnery v. Madison Area Technical College) 

So we need to wait for another day to see if a lawyer’s spouse can ever have a viable claim for marital associational retaliation.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Yesterday, the 6th Circuit issued a decision about the fate of a 43.51 carat diamond that reads more like a David Mamet screenplay than a criminal forfeiture case. 

The drama was over the ownership of the “Golden Eye,” described as a “43.51 Carat Modified Rectangular Brilliant Yellow Diamond Internally Flawless with Fancy Intense Grate.”

The federal government contended that the Golden Eye belonged to Paul Monea, an Ohio businessman who in 2007 was convicted of participating in a money-laundering scheme to hide the proceeds of drug trafficking.

The feds argued that the Golden Eye was used to finance the scheme and was subject to forfeiture.

Challenging the forfeiture was the Monea Family Trust, of which Monea and two of his children were not so coincidentally beneficiaries.

The trust contended that the Golden Eye was beyond the reach of the federal government because Monea had previously gifted the diamond to the trust.

It is unknown as to how the Golden Eye first came into Monea’s possession, but you can bet there’s a book there in that story.

According to court records, Monea himself doesn’t have a consistent narrative for the diamond. He’s told others that he owned a diamond mine in Africa. Monea also has said that a friend gave it to him.

Too bad we all couldn’t have such friends.

Monea’s affinity for the diamond was obvious and a little strange. He allegedly tended to carry it around in his pocket. That’s typically where it could be found when it wasn’t floating around the country serving as collateral for various financial schemes.

At one point, Monea used the diamond as collateral to obtain $500,000 loan from a pawn shop in Oklahoma. He needed the money to pay a tax debt related to his conviction for tax evasion conviction.

The diamond was also central in a scheme for the purchase of a $3 million lake house. That deal had the unlikely involvement of a New York church.

In early November 2006, Monea finally came to grips with the idea that he needed to sell the diamond. He used a middleman to set up a deal under which he would sell the Golden Eye to drug dealers in exchange for $19.5 million and a boat.

Unfortunately for Monea, the middleman turned out to be an undercover FBI agent and that led to his money laundering conviction.

Naturally, the feds wanted the Golden Eye among the assets that Monea would be forfeiting from his criminal enterprise.

Tuesday, the 6th Circuit brushed aside arguments that Monea had gifted the diamond to his family trust.

The court concluded that the trust simply could not establish the elements of a gift under Ohio law.

The court concluded that “the Trust has not shown by clear and convincing evidence that Monea ever relinquished ownership, dominion, and control over the diamond.” (U.S. v. Monea Family Trust)

So the diamond winds up in the coffers of the federal government, ending the saga of the Golden Eye — for now.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Photo by Maxo

 

Gee, I guess Facebook must be a pretty big deal. Why else would a Maryland woman make two cross-country road trips and sue in federal court to protest her banishment from the social networking site? 

Okay, I’ll admit I’m not the most technologically savvy guy around. Generally, I’m seven or eight generations behind the latest developments.

When you get right down to it, I still find it pretty cool that I can watch TV in color. 

Internet cave dweller that I am, here’s what I know about Facebook: It’s a multi-gazillion dollar business started by some college geeks, there’s a movie, and the website helps people meet with “friends” online and tell them what they’re up to.

So far, that doesn’t sound like my cup of tea.

I’m pretty full up with friends. As a matter of fact, I wouldn’t be losing sleep if I shed a few. And as far as telling people what I’m up to, I sorta operate on a “need to know” basis, if you get my drift.

That being said, if Facebook doesn’t mean much to me, apparently it’s life and death to other people, people like Karen Beth Young.

The Marylander seems like a nice lady. Young is genuinely sincere about the fight against cancer. In February 2010, she opened a personal account on Facebook to rally people for a cancer cure. Her Facebook pages included the “Cancer Forum.”

Young’s personal page eventually grew to include approximately 4,300 “friends” who are also interested in the fight against cancer.

All good and harmless stuff.

Unfortunately, Young can sometimes get a burr under her saddle about certain subjects. That’s what ended up getting her kicked off Facebook.

One day, Young came across a Facebook page which included a none too subtle “Prayer for Death” for President Obama.

Naturally, Young was outraged and voiced her contempt for the page. This brought on her head a downpour of retaliatory actions by misguided Obama haters. A social networking war was on.

According to Facebook, Young crossed the line in responding to the attacks.

In June 2010, the site disabled Young’s account for allegedly harassing or threatening other people on Facebook. According to court records, the site also was unhappy with Young sending friend requests to people she did not know.

Young was taken aback by the deactivation of her account. When her numerous e-mails and telephone calls to Facebook produced no satisfaction, Young took the rather odd step of driving from her home in Maryland to Facebook headquarters in Santa Clara, California.

A surprised receptionist at Facebook headquarters kept Young from meeting someone in charge, but she did allow Young to complete a customer assistance form.

That writing produced a response. Facebook agreed to reactivate Young’s account, but warned her that sending friend requests to people she did not know or other violations of Facebook’s Statement of Rights and Responsibilities would result in her being permanently booted from the site.

Alas, two days after Young returned to Maryland, Facebook deactivated Young’s account a second time for her allegedly once again violating the company’s Statement of Rights and Responsibilities. This time, the deactivation was permanent.

Of course, there was only one response for Young: Road trip!

Yep, back the spurned Facebook friend drove to California. And when Young didn’t get any satisfaction, she filed a lawsuit in federal court.

Young sued Facebook under §1983 for violating her free speech rights under the First Amendment.

Of course, a fundamental flaw in Young’s lawsuit is that Facebook is not a state actor.

Late last month, U.S. District Judge Jeremy Fogel saw that flaw plain enough. 

Young tried to argue that, because Facebook has contracts with certain federal agencies, the social networking site could be deemed to be acting under the color of state law.

The judge would have none of it.

“Here, Young shows no relationship between Facebook’s government contracts and the particular actions that she alleges violated her rights,” Fogel said. “Even if some Facebook activities could rise to the level of state action, such activities would be relevant only if Young’s injuries were caused by those activities. None of the injuries alleged by Young appears to have any relationship to Facebook’s government contracts.” (Young v. Facebook) 

Likewise, the judge found that a related breach-of-contract claim brought by Young lacked substance.

The judge observed that Young “points to Facebook’s failure to enforce provisions of its Statement of Rights and Responsibilities that call for users not to engage in bullying, intimidating, or harassing other users or posting content that is ‘hateful, threatening, or pornographic; incites violence; or contains nudity.’ However, while these provisions place restrictions on users’ behavior, they do not create affirmative obligations.”

All right, so Young’s federal complaint has been dismissed and she remains barred from Facebook.

For Ms. Young, that may be a good thing. Why not step away from the computer, enjoy the Fall colors, play with the dog, and take that extreme step of finding someone to look in the eye when you chat with them?

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Mere annoyance doesn’t justify a significant award of damages. That’s the conclusion the Louisiana Supreme Court came to recently in a test case for a class of plaintiffs who claimed they were injured by a chemical leak from a Union Carbide plant in 1998.

Approximately 4.6 million pounds of vaporized naphtha was accidentally released into the atmosphere as the result of a leak at the Union Carbide plant in Taft, Louisiana.

The leak started around 10:00 pm on Thursday, Sept. 10, 1998, and lasted until 3:00 the following afternoon.

On its face, it sounds like a deadly serious event, the type that would have the citizens of the surrounding towns of Montz and Killona heading for the hills.

But in recesses of my mind I seem to recall naphtha in connection with a rather mild soap that mom used to use in doing the spring and fall cleanings around the house.

Pulling up the trusty Wikipedia entry for the chemical, I find that naphtha is a petroleum distillate commonly used in lighter fluid and cleaning products. 

That doesn’t sound too bad.

Now, I’m not so thick-headed as to think that an industrial release into the air of 4.6 million pounds of naphtha isn’t a very bad thing.

But as it turns out, class action attorneys also had a tough time proving that Union Carbide’s neighbors suffered serious injury as a result of the 1998 naphtha leak.

Those in the plant at the time of the leak and citizens of the nearby towns of Montz and Killona sued Union Carbide for negligence.

The certified class included those who experienced physical symptoms including “eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, as a result of their exposure to naphtha or other chemical substance release from Union Carbide.”

And in a test trial for the class, that’s about all that the plaintiffs’ experts could establish. The experts confirmed that exposure to naphtha could cause the eye, nose and throat irritation that the ten test plaintiffs reported at the time.

Considering the nature of the injuries, the trial court was pretty generous in awarding damages. For those in the plant at the time of the leak, the court awarded $3,500 each. Those working nearby received $2,500.

For the town residents, the court awarded $2,000 each to those living in Montz. Those living in Killona — on the fringe of the exposure area — were in line for a pay day of $1,500.

Late last month, the Louisiana Supreme Court concluded that these awards were overly generous, particularly taking into account the fact that none of the test plaintiffs had to evacuate the area as a result of the naphtha release.

In fact, none of the plaintiffs missed work or school as a result of their exposure.

The plaintiffs’ own expert testified that their symptoms probably cleared up within a day and could be treated with over-the-counter medications like Visine.

The state high court concluded that individual awards in the thousands of dollars simply couldn’t be justified in light of this evidence.

The court explained that “the damages proven, such as eye, nose, and throat irritations, are not unlike the symptoms suffered by persons afflicted with common seasonal allergies. There is simply no reasonable relationship between the claimants’ injuries, which might be characterized as mere annoyances, and the damage awards ranging from $1,500 to $3,500.” (Howard v. Union Carbide) 

Accordingly, the court reduced the awards. Those in the plant at the time of the release would receive $500 each, nearby workers $250, Montz residents $150, and residents of Killona $100.

That seems more like it. After all, what happened in Taft, Louisiana on the night of Sept. 10, 1998, doesn’t exactly conjure up images of the 15,000 who died as a result of the Bhopal disaster in December 1984.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

It’s official: Softball is a contact sport. Presumably pillow fights will be next.

Last month, the Iowa Supreme Court declared that softball was a contact sport in a case involving a player who was hit in the head by an aluminum bat.

Normally, such a ruling would doom the case by predicating liability on a finding of recklessness or intent. But the plaintiff in this case produced just enough evidence of recklessness to get his case before a jury.

The lawsuit was brought by Benjamin Feld. Feld was a member of an intramural slow-pitch softball team that competed in a high school summer league in Carroll County, Iowa.

On June 2, 2005, Feld was playing first base during a team batting practice with teammate Luke Borkowski at the plate. The scouting report on Borkowski is that he’s a powerful, right-handed hitter.

Feld was injured after Borkowski had hit about a dozen pitches with his aluminum bat. According to the allegations in Feld’s complaint, Borkowski lost control of the bat after hitting a high fly ball into foul territory on the third base side.

The bat flew down the first base line and struck Feld in the forehead. Feld suffered a severe eye injury as a result.

Feld sued Borkowski for his injuries and that raised the issue of whether softball is a contact sport.

You see, like many states, Iowa’s personal injury law includes a “contact sport” exception to the standard of ordinary care. Participants in a contact sport can’t recover for mere negligence, they must prove recklessness or intentional conduct.

The trial judge in Feld’s case concluded that softball was a contact sport and granted summary judgment to Borkowski on the ground that Feld couldn’t show recklessness.

Recently, the Iowa Supreme Court reviewed Feld’s case and came to the same conclusion as the trial court on the threshold issue: softball is a contact sport.

“Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants in a number of ways, including a risk that the bat will be released during the swing in some way and will become an instrument of harm to participants in some way,” the court said.

Beyond that point, however, the Iowa Supremes parted ways with the trial judge. The high court decided that Feld had produced sufficient evidence of recklessness to create an issue for the jury.

Feld’s theory of the case was that Borkowski had become frustrated during batting practice and let go of the bat a split second after making contact with that final pitch.

No, Borkowski didn’t intend for Feld to be injured — he allegedly yelled out a warning after the bat went flying — but his actions could be deemed reckless.

Feld bolstered his theory of the case with the expert testimony of Ed Servais, head baseball coach at Creighton University.

According to Servais, the only way a right-handed batter could hit a first baseman in this circumstance is if the batter “followed through and rotated around after striking the foul ball and deliberately threw the bat or let go of the bat in such a way that it was flung with considerable force through the air towards the first base position.”

This was the clincher for the Iowa Supreme Court. This was evidence of recklessness.

The court said that “the affidavit of Servais supports a reasonable conclusion that Borkowski did not continue to swing the bat in a normal manner after he hit the ball. The rare abnormality of the bat’s flight pattern after the ball was struck at least supports an inference of recklessness.

“An act performed by a participant in a sport that produces a radically different result from the normal and expected result of the act, even when performed negligently, gives rise to an inference that the result was purposeful.” (Feld v. Borkowski)

So Feld gets his day in court.

Okay, though it’s hard to keep a straight face with the notion of softball being a contact sport, I get the legal analysis.

But it’s hard to swallow the notion that a softball player doesn’t accept the risk of a flying bat as a normal part of the game.

A bat helicoptering out of the hands of a batter at the plate is a common enough occurrence that both players and spectators should be on notice of the danger.

Getting a jury to divine a batter’s state of mind at the moment a bat left his hands seems a bit much, particularly considering the inherent nature of competitive sports.

Of course, the Iowa Supreme Court has concerns other than injured softball players these days with voters on Tuesday giving the boot to three justices who ruled in favor of recognizing gay marriage.  

- Pat Murphy

patrick.murphy@lawyersusaonline.com

What happens in Vegas, stays in Vegas. Just ask Hap Seiders.

Hap may not enjoy being married, but he certainly enjoys getting married. Hap has some issues with timing, though.

Hap married his girlfriend in Las Vegas on June 22, 2006. The only problem was that he was still married to a woman in Pennsylvania.

To Hap, that was just a technicality. After all, he was in the process of divorcing his Pennsylvania wife.

Why wait for all the i’s to be dotted and t’s to be crossed?

Pennsylvania authorities thought it was sort of a big deal that Hap’s divorce hadn’t been finalized before he embarked on another adventure in marital bliss.

So even though Hap eventually had his Las Vegas marriage annulled, he was convicted of bigamy in Pennsylvania’s Dauphin County Court of Common Pleas.

Last week, a Pennsylvania appeals court overturned Hap’s bigamy conviction.

Hap had argued that jurisdiction lay in Nevada, where his second marriage occurred.

The appellate court bought that argument, concluding that Pennsylvania lacked subject matter jurisdiction to convict Hap of bigamy.

The court explained that the crime of bigamy “is committed at the time when and in the place where the second marriage is contracted or purported to be contracted. It is that place where subject matter jurisdiction over the crime is properly found and where prosecution may be had. In this case that is Nevada, not Pennsylvania.” (Pennsylvania v. Seiders) 

So Hap is free to take another stab at finding the woman of his dreams, assuming of course that he can stay out of the clutches of Nevada authorities.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Last week, a state court of appeals overturned jury verdict in favor of a mother whose child choked to death at a public elementary school. 

Personal injury attorneys should take note because the decision raises the issue of whether evidence of a school first aid plan can confuse a jury as to the applicable standard of care. 

The case involved the death of nine-year-old Juan Loera at Hailmann Elementary School in LaPorte, Indiana.

On September 12, 2006, Juan and his friends were joking around during lunch period when a large piece from a corn dog became lodged in Juan’s throat. Juan choked to death after repeated efforts by school staff performing the Heimlich maneuver were unsuccessful in clearing the obstruction from the boy’s throat.

Juan’s mother, Maria Rosales, sued the school district for wrongful death. A jury found the school district negligent and awarded $5 million. The award was reduced to $500,000 under the state’s tort claims law.

Last Wednesday, the Indiana Court of Appeals overturned the verdict after concluding that the jury instructions impermissibly allowed jurors to find a breach of the standard of care from deficiencies in and deviations from the school’s first aid plan for student emergencies.

State regulations require schools to develop emergency plans. Hailmann Elementary had a plan in place that required the school nurse to form a first aid team that was trained in CPR and other first aid techniques that might have saved Juan.

However, evidence introduced at trial showed that, as of the date of Juan’s death, the school nurse had failed to form a properly trained first aid team for that school year.

Instructions submitted to the jury recited elements of the school safety plan with respect to the plaintiff’s burden of proving negligence.

The state court of appeals concluded that the jury instruction was fatally flawed, necessitating reversal.

The court explained that the “instruction does not mention the proper standard of care or clarify that Rosales was merely alleging the School failed to meet the proper standard of care by failing to perform one or more of these acts. This instruction allowed the jury to find the School negligent in the event it found the School had not, for instance, put together a First Aid team.”

This was contrary to Indiana law, the court said, because precedent in the context of large retail chains spelled out that a company’s rules and policies may exceed what is required by ordinary care in a given situation.

“Such is the case here. The jury should have been charged with determining if the School acted reasonably and with ordinary care notwithstanding what its entire safety and response Plan was or was not,” the court said. (LaPorte Community School Corporation v. Rosales)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

This one’s not going to help.

For years, personal injury lawyers have tried to escape being grouped with used car dealers and politicians when Americans rank their least-admired professionals.

That uphill struggle certainly wasn’t aided last week when a New York judge made international headlines by allowing a negligence suit against a four-year-old child.

In April 2009, Juliet Breitman had reached the ripe old age of four years and nine months. She and another four-year-old, Jacob Kohn, were racing their bicycles on a Manhattan sidewalk while under the supervision of their parents.

The two kids weren’t breaking any speed records. After all, Juliet’s bike still had training wheels.

Unfortunately, 87-year-old Claire Menagh was walking on the sidewalk at the time and the kids ran into the woman with their bikes.

Menagh suffered serious injuries. According to The New York Times, Menagh sustained a fractured hip in the accident and passed away three months later of unrelated causes.

Menagh was survived by her lawsuit against Juliet, Jacob and the children’s parents.

The Breitmans argued that, because of her age, Juliet could not be liable for negligence as a matter of law.

Unfortunately for Juliet, she fell in a gray area of New York law. Children under four are incapable of negligence under the state’s precedents. It’s less clear whether four-year-olds have a duty of care.

Now, any lawyer can create a plausible argument for imposing liability for the conduct of four-year-olds, piecing together what could be expected of a ”reasonable” child under the circumstances.

But ultimately it comes down to where to draw the line. On that score, common sense informs anyone without the handicap of legal training that, no, we’re simply not going to hold four-year-olds liable for negligence.

Justice Paul Wooten for the New York Supreme Court does suffer from the handicap of a legal education, however, so he took it upon himself to enter the tall grass of this issue.

Setting aside for the time being whether the parents could be liable for negligent supervision, Judge Wooten decided that Juliet’s age alone did not preclude a negligence claim against her.

In denying a motion to dismiss, the judge observed that there was no evidence in the record of Juliet’s “lack of intelligence or maturity,” nor evidence indicating that “another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”  (Menagh v. Breitman)

Heaven help us!

— Pat Murphy

patrick.murphy@lawyersusaonline.com