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Monthly Archives: December 2010

Did police have duty to stop random murder?

Trying to establish liability for the criminal acts of a third party is about as treacherous a task as any personal injury attorney can undertake.

When that third party is an unstable young man with a shotgun, what are the odds that a court would find anyone, especially police, potentially liable for failing to prevent his random attack?

Yesterday, the Washington Court of Appeals did indeed conclude that the city of Seattle and two of its police officers had a duty to prevent 17-year-old Samson Berhe from flagging down a car, putting a shotgun in the window, and shooting the driver in the face.

The inexplicable murder occurred around 7:30 p.m. on June 26, 2005. Berhe flagged down a car as he was walking down Southwest Marginal Way in Seattle. The unfortunate driver, Michael Robb, should have kept right on going because Berhe was carrying a long gun case.

When Robb pulled over, Berhe pulled out a shotgun, stuck it in the car’s window, and pulled the trigger. The blast struck Robb in the face, killing him.

The state initially charged Berhe with first degree murder, but the young man was ultimately committed to Western State Hospital as not guilty by reason of insanity. 

Elsa Robb, Michael’s mother, sued Seattle and two of its police officers for wrongful death.

The two police officers, Kevin McDaniel and Ponha Lim, had stopped Berhe and his friend, Raymond Valencia, just two hours before he fatally shot Michael Robb.

Berhe and Valencia were suspects in a local burglary. The officers arrested Valencia, but let Berhe go, even though he was allegedly incoherent and a number of shotgun shells could be seen scattered on the ground near where the two men had been stopped.

As if these circumstances weren’t alarming enough, police had had a number of previous run-ins with Berhe, run-ins that probably should have placed the officers on notice that Berhe needed to be handled more carefully.

For example, in May 2004, Seattle police twice took Berhe to a hospital for a mental evaluation. Police at that time acted at the request of Berhe’s parents who said they were afraid because of the young man’s erratic and destructive behavior.

The week before Berhe randomly shot Michael Robb, police were allegedly notified that Berhe was again engaging in bizarre and aggressive behavior. Moreover, at that time they allegedly learned that Berhe possessed a shotgun.

In defending Elsa Robb’s claims of negligence, the city contended that it was immune under the public duty doctrine, reasoning that the obligation of its officers to protect Michael Robb from the criminal acts of Berhe was indistinct from their responsibility to protect the public generally.

But the Washington Court of Appeals on Monday decided that the evidence in the case could support liability under Restatement (Second) of Torts 302B, which recognizes a potential duty to guard another person against a foreseeable risk of harm caused by a third person.

Pertinent to Robb’s case is Section 302B comment e, which recognizes a duty of care when a “special relationship” exits or “where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account.”

This was the clincher for the state court of appeals, which on Monday affirmed the denial of the city’s motion for summary judgment.

“[I]t should not be surprising that tort liability can be imposed if officers take control of a situation and then depart from it leaving shotgun shells lying around within easy reach of a young man known to be mentally disturbed and in possession of a shotgun. …

“A jury could find that the affirmative acts of the officers in connection with the burglary stop created the risk of Berhe coming back for the shells and using them intentionally to harm someone, a risk that was recognizable and extremely high. Under these circumstances, the officers owed Robb a duty in tort to protect against Berhe’s criminal misconduct,” the court said. (Robb v. Seattle). 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

No exception for ‘cowardly counsel’

It’s no fun facing a judge on the warpath.

But when protecting a client’s interests, can discretion ever be the better part of valor?

Last week, the 11th Circuit created a circuit split in answering the question of whether there’s a “vindictive judge or cowardly counsel” exception to the contemporaneous objection rule.

The issue was addressed in the case of Alicia Rodriguez, who was indicted in Florida for participating in a $3,000,000 Medicare fraud scheme.

In February 2008, Rodriguez agreed to plead guilty to one count each of mail fraud, money laundering, and obstruction of a criminal investigation. Under the terms of her plea agreement, the government dropped other charges in exchange for her cooperation in the investigation and recovery of fraudulently obtained funds.

At the sentencing hearing, the district judge had some strong comments in response to Rodriguez’s plea for leniency. The judge noted that Rodriguez was a “Cuban refugee” who had repaid this country’s sanctuary by ripping off the Medicare program of millions of dollars.

Of course, the reference to Rodriguez’s national origin created the appearance that her Cuban ancestry was improperly considered when the judge imposed a sentence of 91 months. But the lawyer representing Rodriguez failed to object to the reference at the time.

And even though the sentence was in line with the government’s recommendation that Rodriguez receive a 40 percent reduction in sentence under the guidelines, Rodriguez was unhappy with the time she was facing. So she appealed to the 11th Circuit.

Now, no one actually believes that the sentencing judge was or is biased. Rodriguez simply claims that the “Cuban refugee” comment created the appearance of bias which can only be cured by resentencing.

Rodriguez’s big problem was that her lawyer failed to raise a contemporaneous objection, subjecting her case to plain error review. In order to avoid that high standard, Rodriguez seemed to argue that her lawyer held his tongue because he felt intimidated in the face of the sentencing judge’s expression of apparent bias.

In support of her contention that her case was not governed by the contemporaneous objection rule, Rodriguez relied on a two cases from the 2nd Circuit which forgive a lawyer’s failure to object when a judge evinces national origin bias at sentencing.

But the 11th Circuit was not about to follow the 2nd Circuit’s lead and discard the contemporaneous objection requirement in this context.

In upholding Rodriguez’s sentence, the 11th Circuit said that the “vital interests protected by the rule requiring an objection are discarded under the exception the 2nd Circuit has created that excuses the failure to object whenever a lawyer would be ‘understandably reluctant’ to do so.”

The court asked “what lawyer will not be ‘understandably reluctant’ to object if no objection is required? By not objecting the lawyer can avoid any risk that an ambiguous statement will be clarified or an actual error corrected on the spot in response to an objection; she can keep the issue in her pocket in hopes that it will serve as a get-out-of-judgment-free card on appeal.”

What of getting on a judge’s bad side by raising the issue of bias before sentence is pronounced?

The 11th Circuit turned that question around.

“A judge’s ire is, if anything, more likely to be raised by an assertion that he is actually biased than by an assertion that he only appears to be biased. Holding that the law does not require objections to statements appearing to indicate bias where there is none would be inconsistent with the law requiring objections where there is bias,” the court said.

Accordingly, the court reached this bottom line: “[W]e hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.” (U.S. v. Rodriguez

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Man versus condo association

Merry Christmas Patrick Jennison! It looks like you won’t be paying the $15,000 plumber’s bill for that broken sewer pipe under your Newport Beach condo after all.

Yep, your condominium association — the Dover Village Association — so wanted you to pick up that tab. But the California Court of Appeal has resoundingly ended that legal fight in your favor.

It was the summer of 2007 when Jennison learned that he had a problem with a four-inch cast iron sewage pipe beneath the concrete slab of his condominium.

In late July, it became clear that the pipe had ruptured when sewage seeped up into the floors and carpet of Jennison’s unit. Jennison’s tenant reported the leak to the condo association and a plumber was dispatched to make repairs.

Now, I don’t know about the rest of you, but I tend to break out in hives and hyperventilate whenever I get a bill from a plumber.

That’s because, in all the history of plumbers, it is a documented fact that no one has ever been pleasantly surprised with how much a repair costs. The news is always bad.

And the plumber dispatched to Jennison’s condo predictably went hog wild in making his repairs.

He cut through Jennison’s floor, merrily jack hammered an opening in the concrete slab underneath, and then, pleased as a pig in poop, trenched out and replaced about 50 feet of sewer pipe that connected Jennison’s condo with the main service line.

Great stuff if you’re a plumber, not so great if you’re a homeowner.

The plumber’s bill came to $15,000 and the Dover Village Association wanted no part of it.

The association said Jennison was responsible for the repairs under the theory that the sewer pipe was under and serviced Jennison’s unit, making it an “exclusive use common area” for which a condo owner is responsible.

But the California Court of Appeal recently concluded that, under a “natural” reading of the covenants, conditions and restrictions governing the property, “the sewer pipe was a genuine common area to be maintained and repaired by the association, as distinct from ‘an exclusive use common area appurtenant’ to an individual owner’s separate interest.” (Dover Village Association v. Jennison)

As a sweetener for Jennison, the court’s decision also affirmed a $17,000 award for his attorney fees in defending the association’s lawsuit to establish responsibility for the plumber’s bill.

So Mr. Jennison (and his lawyers) will be having a very Merry Christmas indeed.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Prosecutor flubs e-mail harassment case

When you’re prosecuting the alleged violation of a domestic abuse protection order, it’s probably a good idea to get the basic facts down, like where the crime took place.

That obvious point was underscored in a recent Minnesota decision that addressed the issue of venue when a defendant is charged with violating a protection order by sending an e-mail to a former girlfriend.

The defendant in the case was Douglas Pierce, the father of Wenona Kuhrman’s two children.

In February 2008, Kuhrman had a protection order entered in Hennepin County after Pierce assaulted her. The order prohibited Pierce from contacting Kuhrman in person, by telephone, by letter, by third party, or by any electronic means, including e-mail.

Pierce promptly violated the order and was sent to jail. On March 5, 2009, after getting out of jail, Pierce allegedly violated the protection order again by sending an e-mail to Kuhrman which read, “Why fred mike 3925 1 st duplex nice chat lines i thought it was me & u it was me u and every one i wa u can send me back i do not care i got nothing with out u.”

Kuhrman complained to police and Pierce was charged in Hennepin County with violating the Minnesota Domestic Abuse Act.

The case seemed like a slam dunk for prosecutors. After all, the alleged e-mail violated the clear terms of Kuhrman’s protection order. The Hennepin County District Court certainly saw it that way and quickly convicted him after a bench trial.

However, there was one big problem with the state’s evidence: nothing clearly established the location from which Pierce sent the e-mail or the location at which Kuhrman received the e-mail.

Everyone including the trial judge seemed to assume that Kuhrman received Pierce’s e-mail at her home computer in Hennepin County, but of course assumptions just don’t suffice when the state has the burden of establishing an essential element like venue.

Certainly, the prosecutor in the case could have easily eliminated any uncertainty by simply asking Kuhrman at trial where she was when she received the e-mail, but he didn’t.

The Minnesota Court of Appeals saw the fatal flaw in the state’s case and earlier this month overturned Pierce’s conviction.

The goof by the prosecutor in Pierce’s case did serve one purpose, however, because his appeal required the court to clarify where venue lies when a defendant violates a protection order by sending an e-mail.

The court of appeals held that “[w]hen the state prosecutes a person who has allegedly violated an order for protection under the Domestic Abuse Act by sending a prohibited message by electronic mail, venue is proper in the county from which the sender mailed the message or the county in which the recipient opened it.” (Minnesota v. Pierce)

This conclusion isn’t all that earth-shattering, but it is certainly useful in this brave new world of electronic communications.

And the prosecutor’s shortcomings in Pierce’s case serves as a good reminder to all attorneys of the need to dot the i’s and cross the t’s.

 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Partner suspended for ethical lapses at firm

It’s good to be the king. Mel Brooks knows this to be true. 

Likewise, every lawyer knows it’s good to be the managing partner.

But with the big bucks comes big responsibility. And as one managing partner of a 20-plus lawyer firm recently learned, that responsibility could mean paying the piper for the disciplinary infractions of his underlings.

Jeffrey Phillips is the founder and managing attorney of Phillips & Associates (P&A), which styles itself as Arizona’s largest consumer law firm. Based in Phoenix, the firm represents more than 10,000 clients a year in bankruptcy, criminal and personal injury matters.

Trying to handle that volume of cases with a limited number of lawyers can be a daunting task. For instance, between 2004 and 2006 P&A represented approximately 33,000 clients with a staff of 250. Only 38 of those employees were lawyers. 

The big problem at P&A has been client intake.

Prospective clients don’t meet with an attorney at the outset. Instead, they’re directed to complete a questionnaire.

After completing the questionnaire, the client meets with a P&A legal administrator who screens the cases for the firm’s lawyers. A lawyer sets the fee for the client’s case after getting the relevant information from the legal administrator, and then meets with the client to go over the details of representation and the terms of the retainer agreement.

Of course, this system raises all sorts of ethical concerns as Phillips discovered in 2002 when he was censured for disciplinary violations and told to reform the firm’s intake procedures.

The reforms included ensuring that a client actually speaks with a firm attorney before entering into a retainer agreement. Another key change was making sure that the bonuses paid to the firm’s legal administrators were not solely based on the number of clients who retain the firm.

In 2006, the State Bar of Arizona again became concerned with P&A’s high-volume business practices. That investigation has led to Phillips’ current troubles.

A disciplinary commission determined that the firm had run afoul of various disciplinary rules. The commission found that the needs of certain bankruptcy clients were not being met because of the large caseloads the firm placed on its bankruptcy attorneys.

One former P&A attorney testified that she was immediately responsible for 540 cases when she first joined the firm. Evidence showed that other P&A attorneys carried as many as 500 cases at a time.

In addition to unmanageable caseloads, the commission once again found problems with P&A’s intake procedures, finding that the retention process often was not completed by an attorney knowledgeable in the relevant practice area.

Moreover, there was evidence that clients were entering into retainer agreements with unrealistic expectations and without a clear understanding of the terms of representation.

Finally, there was evidence that legal administrators were engaging in “high pressure tactics” in the retention process, which isn’t all that surprising considering the fact that their bonuses were still based in part on the number of cases that the employee brought in for the firm and retained.

The disciplinary commission concluded Phillips breached rules imposing managerial and supervisory obligations on managing partners.

Last week, the Arizona Supreme Court upheld the finding of disciplinary violations, rejecting Phillips’ argument that he was improperly being made vicariously liable for the conduct of other P&A employees. In pleading his innocence in the matter, Phillips tried to argue that he had a “hands off” approach in managing his firm.

The court said that the hearing officer in his case had not conflated the doctrine of vicarious liability with the independent obligations imposed by the disciplinary rules on managing partners.

The court explained that “[a]lthough [the hearing officer] found on many of the counts that P&A attorneys’ and staff members’ conduct violated various ethical rules, the supervisory and managerial breaches for which Phillips was found liable … were independent. For each violation … the hearing officer found that Phillips had personally failed to engage in the required supervision of either lawyers or nonlawyer personnel.” (Phillips v. Disciplinary Commission

Phillips did catch one break. The hearing officer recommended that he be suspended for six months and one day. The court reduced the suspension to six months.

The suspension has teeth to it, prohibiting Phillips from receiving income from his firm during the period of the sanction.

And the court made it clear that Phillips’ violations were serious enough to warrant the punishment.

“Although attorney partners and supervisors are not guarantors of their employees’ conduct, they must take reasonable steps to ensure that firm practices, not merely policies, actually comply with ethical rules binding all lawyers practicing law in this state,” the court said.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Law firm drops client with trial looming

Lawyers aren’t supposed to bail on a client three weeks before trial.

But what are you supposed to do when the client is falling further behind on its bills and there’s good reason to believe you won’t ever get paid?

One Rhode Island law firm found itself in that unenviable position. But despite the prospect that the firm wouldn’t get paid for its services, a state judge decided it was too late to withdraw from the case.

The client in the case was NAIAD Inflatables of Newport. NAIAD manufactures and sells rigid hull inflatable boats. To help its sales, NAIAD hired Stafford King to provide marketing services on a commission basis.

King later sued NAIAD in state court, claiming the company had fallen behind on paying him for his marketing services.

In November 2004, NAIAD hired Duffy Sweeney & Scott (D&S) to defend the company in the King litigation.

Under the standard D&S retainer agreement, NAIAD agreed to pay for legal services as they were rendered. Through 2006 and 2007, NAIAD paid its monthly billings, although on occasion the payments were late.

In early 2008, D&S started having the same problem getting paid by NAIAD as King allegedly did.

NAIAD stopped paying the law firm altogether and a substantial balance accrued. By the end of 2008, NAIAD owed D&S more than $49,000 for past services.

This problem was all the more acute because trial in the King case was set for Feb. 23, 2009. NAIAD tried to resolve the payment problem but couldn’t, so on Jan. 30, 2009, D&S notified its client that the company would have to become current on its bills before the trial or D&S would move to withdraw.

NAIAD agreed that it would not object to the law firm’s withdrawal and on Feb. 4 the motion was filed with the trial court.

The trial judge threw a monkey wrench in D&S’s planned withdrawal, denying the motion. The trial judge was evidently miffed at inconvenience to the court’s docket given the timing of the request.

And of course the judge felt that there was a potential breach of professional rules of conduct given the risk that NAIAD would be left unrepresented at trial.

Last week, the Rhode Island Supreme Court weighed in on this issue and concluded that the trial judge should have granted the motion to withdraw. The court found that the lower court erred in not giving more weight to the financial burden on D&S in being forced to continue its representation of a non-paying client.

The court noted in particular that the law firm’s retainer agreement “expressly said that D&S had the right to terminate the engagement and discontinue providing legal services if NAIAD failed to pay bills promptly. In light of these facts, we are of the firm opinion that ‘[i]mposing such a financial burden on the law firm to maintain continued representation is improper.’ Lawyers are no different from other professionals; they are entitled to be paid for their work on a timely basis.”

As to the timing of the motion, the state high court held that “the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client.”

The court found significant the fact that D&S had given NAIAD “ample” advance notice of its intent to withdraw, that NAIAD had not objected to the request, and that King’s counsel had agreed to a short continuance of the trial date.

“In view of the legitimate concerns and hardships raised by D&S, we believe that the hearing justice placed too much emphasis on maintaining the trial date, overstated the adverse impact on the clients, and did not adequately consider the unreasonable financial burden that would befall D&S,” the court said. (King v. NAIAD Inflatables of Newport)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Court reopens $24M settlement in pet food recall

The 3rd Circuit yesterday placed a hold on a $24 million settlement of consumer claims arising from the largest pet food recall in history. 

The court said that the fairness of the proposed settlement had not been established with respect to a $250,000 cap on damages for those customers who simply wanted to be reimbursed for the purchase price of contaminated pet food.

“We are unable to determine whether the $250,000 allocation was a fair and adequate settlement of the Purchase Claims given the risks of establishing liability and damages and the likely return to the class of continued litigation,” the court said.

The court otherwise upheld the certification of the various classes of plaintiffs in the case, as well as other basic terms of the settlement, including the release of claims negotiated by the parties. (In re Pet Food Products Liability Litigation)  

The case stems from the 2007 recall of over 60 million cans and pouches of pet food products.

Menu Foods, an Ontario-based pet food manufacturer, first recalled certain brands of products after the food was linked to the deaths of several cats and dogs. The recall ultimately encompassed the products of twelve different manufacturers, including Hill’s Pet Nutrition and Nestle Purina Pet Care.

Investigators later discovered that wheat gluten and rice protein concentrate imported from China and supplied to multiple pet food manufacturers had been contaminated with chemicals which can lead to acute renal failure in small animals.

The recall spawned numerous lawsuits across the country, including over 100 class actions brought by pet owners who wanted compensation for the injuries and deaths suffered by their cats and dogs in addition to reimbursement for the purchase price of the contaminated pet food. 

The Judicial Panel on Multidistrict Litigation consolidated the cases and transferred them to the U.S. District Court for the District of New Jersey.

In 2008, Menu Foods agreed to a $53.8 million settlement with pet owners in the U.S. and Canada. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

9th Circuit revives Nazi salute case

If you want to disrupt a public meeting, snapping off a Nazi salute is one way to go about it.

Robert Norse’s Nazi salute was certainly a show-stopper at the March 12, 2002, meeting of the Santa Cruz City Council in California.

That got Norse ejected from the meeting by the council’s sergeant-at-arms and arrested. Two weeks later, Norse was in federal court suing Santa Cruz for violating his First Amendment rights.

Now, Norse is no Nazi.

In fact, he told The Santa Cruz Sentinel that he abhors everything Nazis stand for. Norse explained that he was simply miffed that then-Mayor Christopher Krohn was cutting off a speaker who was criticizing the council. His Nazi salute was a way of making the point that Krohn was acting a bit dictatorial.

The other side of the story is that Norse is a bit of a gadfly in his advocacy for the rights of the homeless. He doesn’t like the city’s overnight camping ban and its stance against aggressive panhandling. Norse likes to voice his objections whenever he gets the chance, so it’s safe to say the members of the Santa Cruz City Council are pretty tired of his act.

In defending against Norse’s civil rights lawsuit, Santa Cruz contended that his Nazi salute violated the city council’s decorum policy and justified his removal from the meeting.  

U.S. District Court Judge Ronald Whyte in San Jose thought about as much of Norse’s lawsuit as I do about most §1983 lawsuits, so he summarily dismissed the case after watching a five-minute video from the meeting showing Norse’s salute and arrest.

You might not think that this kind of local kerfuffle would grab the attention of all the judges on 9th Circuit, but you’d be wrong.

Yesterday, the en banc court decided that Judge Whyte was a bit too hasty in clearing Norse’s case from his docket.

The court explained that sua sponte grants of summary judgment like the one in Norse’s case are appropriate only “if the losing party has reasonable notice that the sufficiency of his or her claim will be in issue.”

This Norse did not have, so he gets another day in court to bring in witnesses to testify that his Nazi salute was not actually disruptive of the city council meeting.

And Judge Whyte will need to be mindful that the judges of the 9th Circuit don’t see Norse’s lawsuit as a frivolous one.

The gist of Santa Cruz’s defense is that city council meetings are limited public forums, subject to viewpoint neutral time, place, and manner restrictions of speech. Norse made his Nazi salute after the period for public comment had ended, so he was subject to being frog-marched from the meeting.

The 9th Circuit explained that it is not all that simple.

“What a city council may not do is, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment period has closed. …

“[T]he fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights. A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less,” the court said.

The court concluded that “even though we can tell from the face of the amended complaint that Norse’s provocative gesture was made after the public comment period closed, Norse still had a First Amendment right to be free from viewpoint discrimination at that time.” (Norse v. Santa Cruz

So Robert Norse, you get another shot to make your case. But please take this bit of advice to heart: Don’t roll out the old Nazi salute should you happen to get flustered with the way Judge Whyte is conducting some future courtroom hearing.

No, I can guarantee you that that wouldn’t go over well with the judge. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Release bars Afghan War wrongful death claims

If there were any doubts that Afghan War contractors would be well-insulated from liability, those doubts were placed to rest last week by that arbiter of all things corporate, the Delaware Supreme Court.

The case that found its way before the Delaware high court stemmed from a car bomb that exploded outside the U.S. Department of State Civilian Police (CIVPOL) headquarters building in Kabul on August 29, 2004.

The explosion killed CIVPOL Officers John Deuley and Gerald Gibson, and seriously injured Officer Joseph Dickinson.

The three men were employees of DynCorp International FZ, a Dubai corporation. The general contractors for the CIVPOL mission were all DynCorp affiliates.

Pursuant to the terms of their employment contracts, DynCorp had purchased insurance for Deuley, Gibson and Dickinson.

Deuley’s and Gibson’s beneficiaries received $160,000 under their policies. Dickinson’s insurance provides him with disability benefits of $1031 per week and free medical treatment.

Naturally, the wives of Deuley and Gibson concluded that they had not been compensated enough for their losses, so they filed survival and wrongful death lawsuits against the DynCorp affiliates that were the general contractors for the CIVPOL mission.

Likewise, Dickinson filed his own personal injury claim against the DynCorp affiliates.

Of course, DynCorp had an ace up its sleeve. In their employment contracts, Deuley, Gibson and Dickinson had agreed that, with the exception of the insurance coverage purchased by the company, DynCorp “nor its affiliates will be liable in the event of death, injury, or disability.”

Last week, the Delaware Supreme Court decided that this language was quite sufficient to bar all the personal injury claims relating to the death of Deuley and Gibson, and the injuries suffered by Dickinson, including those of their wives.

Of note, the court dodged a tricky choice-of-law issue by concluding that the result would be the same regardless of whether the contract was governed by Delaware law or the law of Dubai.

“[T]he language of the employment contract is clear and unambiguous,” the court explained. “The overall language of the agreement implicates a risk shifting arrangement similar to workers’ compensation arrangements. The Officers agreed to waive their right to sue their employer and affiliates in the event of death, injury, or disability for ‘any claims’ related to the mission.”

With respect to the wives’ wrongful death claims, the court said that because “the Officers unambiguously waived their claim for negligence against DynCorp for their injuries and death, their eligible survivors’ wrongful death derivative claims cannot arise from any predicate claim. Therefore, the Officers’ eligible survivors are barred from pursuing wrongful death claims for failure to meet the condition precedent because the Officers waived all of their claims against DynCorp in a pre-injury limitation on liability agreement in return for insurance.” (Deuley v. DynCorp International

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Golfer mayhem

Judging by the lawsuits that keep popping up across the country, the second most favorite thing golfers like to do is sue golf courses for their injuries. 

You’d think by now that the message would have sunk in that those personal injury claims are losing propositions. But like the elusive hole in one, golfers and their lawyers keep their hopes up that that next case will be the one that opens up some country club’s coffers.

Take Paul Sanchez. The New Hampshire golfer managed the remarkable feat of nailing himself with his own ball, yet he hoped that Candia Woods Golf Links would make everything better by writing a hefty check.

Candia Woods is in southern New Hampshire. Sanchez has played the course several times in his 25 years dabbling with the clubs.

On September 4, 2006, Sanchez was enjoying a round at Candia Woods. At the eleventh hole, Sanchez left a shot about 20 yards short of the 150-yard marker in the middle of the fairway. 

The course’s yard markers are about four feet high, four inches by four inches square, and made of dense plastic. Although the markers were removable, Sanchez didn’t know that.

And even though this particular yard marker was in front of his ball, Sanchez opted not to bend the rules a little by kicking the ball to either side to give him more leeway.

That proved to be a big mistake.  

On Sanchez’s next shot, the ball ricocheted off the marker and struck him in the right eye. Okay, we feel bad because Sanchez was seriously hurt, but one has to marvel at the pure physics of the shot.

Sanchez wasn’t in the mood to contemplate the freakish nature of the accident. No, he wanted Candia Woods to pay him damages, even though the ball that beaned him was struck by his own club.

In his lawsuit filed in state court, Sanchez contended that Candia Woods was negligent in failing to provide a safe playing environment. In particular, he argued that the course’s placement of yardage markers was inherently dangerous.

The New Hampshire Supreme Court finally put an end to Sanchez’s lawsuit just before Thanksgiving.

“The plaintiff was fully cognizant of the clearly visible yardage marker and intended to hit his ball around it. The risk of his shot ricocheting off the marker was one he assumed, and one against which the defendant had no duty to protect him,” the court said. (Sanchez v. Candia Woods Golf Links

So the courts shelve one more golfer’s lawsuit. And if golfers are seriously concerned about safety on the golf course, perhaps it’s time they started requiring protective head gear.

For those players concerned with wearing a motorcycle helmet on a hot summer day, just revel in the fashion possibilities. How could it hurt adding a brightly colored helmet to the gosh-awful fashions golfers already wear?

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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