Suing a foreign manufacturer in state court can be a dicey proposition. 

But chalk one up for the personal injury attorneys because a French aerospace manufacturer will have to answer in Illinois state court for its alleged role in a fatal helicopter crash.

The manufacturer is SNFA. The French company makes custom-made aerospace bearings and helicopter tail-rotor bearings.

The failure of an SNFA tail-rotor drive-shaft bearing is the alleged cause of the crash of an A109 helicopter in Illinois on January 28, 2003.

The A109 is made by Agusta, an Italian manufacturer. The helicopter in this case entered the U.S. market after being purchased second-hand from a German company.

At the time of the accident, the helicopter was owned and operated by Air Angels, an Illinois medical air service. The pilot, Michael Russell, died in the crash.

Russell’s estate sued SNFA in Illinois state court for the alleged failure of its tail-rotor drive-shaft bearing.

The trial court dismissed the lawsuit for lack of personal jurisdiction, noting that SNFA does most of its business with European customers and has no American customers for its helicopter bearings.

Last week, the Illinois Appellate Court decided that the trial judge had it wrong, and that SNFA had sufficient minimum contacts with the state for the exercise of personal jurisdiction under the state’s long-arm statute.

“SNFA does not deny that it knew that Agusta helicopters were sold throughout the United States, and that Agusta had an American subsidiary for the purpose of American distribution. …

“In essence, Agusta is the marketer and distributor to the consumer of their joint and ultimate product. SNFA has chosen to leave to Agusta the marketing and distribution to the consumer. Agusta is thus the conduit through which this SNFA product, custom-made for Agusta, reaches the ultimate consumers,” the court said.

Moreover, the court concluded that Russell’s estate satisfied its federal due process burden of showing that Illinois’ exercise of personal jurisdiction over SNFA was reasonable.

“First, Illinois has an interest in resolving a dispute concerning a helicopter crash and a death that occurred in Illinois, particularly when that tragedy concerns the provision of ambulance services to Illinois residents and citizens. Second, plaintiff as executor has a strong interest in obtaining relief for his brother’s estate. …

“Third, as the crash site of an aircraft, Illinois has a strong interest in the efficient resolution of the resulting dispute. Fourth, Illinois also has a strong interest in advancing the substantive social policy of compensating victims for torts occurring in Illinois and of ensuring the safety of the air ambulance services utilized by its citizens,” the court said. (Russell v. SNFA) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Common sense protects most of us from the tragic consequences of diving head first into a swimming pool of unknown depth.

But common sense does not always prevail in the court room.

Yesterday, the Oklahoma Supreme Court decided that an apartment complex may be liable for a guest who was left paralyzed after diving into the shallow end of an outdoor swimming pool.

The court concluded there was a genuine issue of whether “the diver was presented with a deceptively innocent appearance of safety which cloaked the reality of danger.”

The injured diver is Cassidy Sholer. On the night of May 31, 2005, Sholer visited friends at an apartment complex in the Oklahoma City area. The apartments are owned and operated by ERC Management Group.

Around 11:30 p.m., Sholer and a few friends went to the pool to take a dip.

Sholer had been drinking that night, but there is a dispute as to how much she had imbibed.

The pool itself was secured by gates, but there is a dispute as to whether the gates were locked at the time.

The depth of the pool is marked, but there is a dispute as to the visibility of the depth markers.

The area was illuminated, but there is a dispute as to how good the lighting was.

However, there is no dispute that Sholer did not know how deep the pool was when she decided to dive in.

Unfortunately, Sholer attempted a ”racer’s dive” at the shallow end of the pool, which happened to be three feet deep. Her head struck the bottom, rendering her a quadriplegic.

Sholer sued for negligence, alleging that that the apartment complex failed to keep the pool area safe by locking the gates, providing adequate lighting, and posting clear and visible signage warning of the depth of the pool  and the danger of diving.

The apartment owner’s defense was about as straightforward as a property owner can get: the danger of diving head first into a pool with an unknown depth is open and obvious.

The trial court granted summary judgment on that basis, but Tuesday the Oklahoma Supreme Court weighed in and decided that Sholer should have the opportunity to bring her case before a jury.

The court observed that “[d]espite Sholer’s admissions indicating that she understood the dangers of diving into waters with an unknown depth, she also indicated that the pool’s lighting made her believe that it would be safe to do a shallow-water dive. Based on what she observed, Sholer thought the water was as deep as five or six feet. Sholer specifically stated that her perception was linked to the pool’s lighting which created shadows.”

The court concluded that “the openness and obviousness of the dangerous condition and whether Sholer appreciated the risk are questions for the trier of fact making the entrance of summary judgment inappropriate.” (Sholer v. ERC Management Group)

Chief Justice Steven Taylor issued a dissent joined by Justice James Winchester. Justice Taylor hit the mark in his dissent with objections that readily apply to so many of these diving injury lawsuits.

“An intoxicated young woman decided to dive head first into a shallow swimming pool. A few feet from her dive was a marker clearly indicating the water was only three (3) feet deep. She admits that was a dangerous act on her part. The danger of diving into water of unknown depth is open and obvious. …

“The combination of being under the influence of alcohol and diving head first into very shallow water will usually result in unfortunate serious injury. However unfortunate, this injury is not the legal responsibility of the apartment complex,” the judge wrote.

 - Pat Murphy

patrick.murphy@lawyersusaonline.com

Matt Grayson is a lucky dog. What are the odds that a drug suspect could avoid jail time after leaving a bag of methamphetamine in the back of a police cruiser?

Fortunately for Grayson, his case turned on whether an anonymous tip justified his traffic stop in the first place.

Grayson’s troubles began on the night of March 25, 2008, when an anonymous tipster called the sheriff’s department in Phelps County, Missouri, to report a drunk driver.

The tip was fairly detailed as far as tips go. The tipster identified the driver as Terry Reed, said he was driving a red Ford pickup, and provided a general location.

Grayson had the misfortune of driving a red pickup that night, too. His was a Mazda, but that didn’t seem to matter to Officer Paul Lambert when he pulled Grayson over.

Reed, the alleged drunk driver, and Grayson were both known to local police, so Officer Lambert quickly realized he had the wrong guy as far as the tip was concerned.

But the police officer also knew Grayson had a rap sheet and he wasn’t about to let the driver go on his merry way.

Officer Lambert asked for Grayson’s license and conducted a records check. As luck would have it, Grayson had an outstanding warrant and quickly found himself in the back seat of Lambert’s patrol car on the way to jail.

When Lambert later checked the backseat of his patrol car, he found a bag of methamphetamine tucked away under the seat.

Grayson’s goose appeared to be cooked.

Of course, Grayson claimed the bag of drugs was not his, but Officer Lambert was firm in his testimony that he had no other passengers that night.

A Missouri judge denied Grayson’s motion to suppress and, following a bench trial, found him guilty of possession of a controlled substance.

Grayson was facing a seven-year stretch in prison until last week when the Missouri Supreme Court came to his rescue.

Yes, the court concluded that Grayson’s motion to suppress should have been granted, first determining that the traffic stop violated the Fourth Amendment because it was based solely on an uncorroborated anonymous tip.

“Further, once the officer observed that Mr. Grayson was not the person mentioned in the tip, and had committed no traffic infractions, it was improper for the officer to continue to detain him simply because he had in the past been the subject of arrests,” the court said.

Finally, the court decided that the “taint from this improper seizure was not attenuated by the fact that, as a result of the illegal detention, the officer learned that Mr. Grayson had an outstanding municipal warrant and arrested him on that warrant. None of the other exceptions to the ‘fruit of the poisonous tree’ doctrine apply.” (Missouri v. Grayson)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Scott Rabin claims that the law firm he used to work for improperly billed clients for his services as a private investigator. 

When the private eye complained, the firm fired him. 

Now, Rabin wants the firm to pay damages for retaliatory discharge. 

Rabin was hired in 1997 by Karlin & Fleisher, a Chicago personal injury firm. Rabin’s job was to provide investigative services in the firm’s contingency fee cases.

The private eye’s primary bone of contention is how the firm billed clients for his services. 

According to Rabin, the firm billed $40 per hour for his work. This was ethically dubious and potentially illegal, says Rubin, because he was a salaried employee and the $40-per-hour charge didn’t reflect his actual wages. 

Rubin alleges that Karlin & Fleisher failed to disclose to clients that he was in fact a salaried employee, apparently in order to justify deducting private investigator charges from settlement proceeds. 

Rubin’s unease with the firm’s billing practices eventually came to a head. Rabin alleges that in 2007 an attorney at the firm instructed him to use his personal address on billing invoices. This change was purportedly to disguise Rabin’s employment status, 

Rabin claims that he was fired in 2008 after he balked at this change and complained about the overall propriety of the firm’s billing practices regarding his services. 

Rabin thereafter sued Karlin & Fleisher for retaliatory discharge in violation of public policy under Illinois law. According to Rabin, the firm’s billing practices were illegal as well as violative of the Rules of Professional Conduct. 

Late last month, the Illinois Appellate Court decided that Rabin didn’t have a claim and upheld the dismissal of his lawsuit. 

Regarding Rabin’s claim that Karlin & Fleisher charged clients more than the actual cost of his investigation services, the court rejected the notion that the firm’s clients were being unlawfully billed for “overhead.” 

The court observed that firm’s standard fee agreement plainly informed clients that they would be responsible for certain costs of “investigation” and that those costs “will be incurred at the discretion of KARLIN & FLEISHER, L.L.C. and will be charged based on the cost and/or prevailing rates for such services in the Chicagoland area.” 

The court said that this provision “also belies plaintiff’s claim that the Firm was required to inform its clients that its investigator was a salaried employee as opposed to a third party. Plaintiff has not cited any authority prohibiting such an agreement and does not address the fact that the Firm’s clients agreed to much of the conduct of which he complains.” 

Summarizing, the court simply concluded that Rabin’s complaint failed to state a cause of action.

“Although attorney honesty and fidelity are vital to the legal system and a matter in the public interest, we do not believe that a former law firm employee can be immune from the general rule of at-will employment merely by complaining to the Firm and its attorneys prior to being fired about deceitful but seemingly legal billing practices he no longer wishes to participate in. …

“While we do not condone the Firm’s alleged misconduct here, we are not persuaded that plaintiff’s allegation of ‘honesty and fidelity’ in the legal system satisfies the [state] supreme court’s ‘narrow definition of public policy’ in retaliatory discharge cases,” the court said. (Rabin v. Karlin & Fleisher)

 - Pat Murphy

patrick.murphy@lawyersusaonline.com

The documentary Catfish is a fascinating study of human relationships in the Age of the Internet. 

The film is the deeply sad tale of a hip New York man who develops a romantic relationship through Facebook with a woman living in rural Michigan.

The woman represents herself online as a beautiful artist, the woman of the man’s dreams. As you can probably guess, the truth is rather different when they finally meet.

Since Facebook is the current rage, you knew that it wouldn’t be long before courts confronted the question of whether there’s a certain point at which deception in social networking becomes actionable.

Last month, an Illinois appellate court addressed a lawsuit brought by a woman who claims she suffered severe emotional damage after becoming romantically involved with a man through a social networking website. 

The man turned out to be the fictional creation of another woman.

The injured woman is Paula Bonhomme. The resident of Los Angeles, California, is a big fan of the HBO series Deadwood.  In April 2005, Bonhomme began online conversations with Janna St. James in an Internet chat room dedicated to the TV series.

St. James is a resident of Batavia, Illinois. Although initially registered under the name “Ms. Magnolia,” St. James also allegedly posed as a man named Jesse James in the Deadwood chat room.

St. James allegedly hooked Bonhomme up with “Jesse” over the Internet and a romantic online relationship bloomed that lasted until July 2006.

Adding depth to the relationship, “Jesse” and Bonhomme exchanged personal photos, handwritten letters, and gifts, in addition to exchanging e-mails. According to Bonhomme, St. James even managed to pull off regular phone calls with “Jesse,” using a device to disguise her female voice.

Taking the fiction to another level altogether, St. James allegedly created a universe of approximately 20 online characters involved with “Jesse,” including an ex-wife, son and therapist.

Bonhomme claims that she was completely taken in and ended up sending gifts worth over $10,000 to “Jesse,” other fictional characters and St. James.

Of course, Bonhomme and “Jesse” would have to meet some day, so she and “Jesse” planned to meet in Denver, Colorado, in September 2005.

However, that trip had to be cancelled when “Jesse” attempted suicide.

Bonhomme was naturally distraught by her lover’s attempted self-destruction. She claimed that she suffered severe emotional distress and incurred $5,000 in therapy costs as a result.

Fortunately, “Jesse” rebounded from his suicide attempt and he and Bonhomme began planning to move in together in his Colorado home. Bonhomme made concrete plans for the move, allegedly spending upwards of $700.

But it all came to an end in July 2006 when “Jesse’s” sister “Alice” contacted Bonhomme and told the unlucky lover that “Jesse” had died of liver cancer.

This sent Bonhomme into a deep depression.

Bonhomme alleged that St. James continued to act the puppet master after “Jesse’s” death, posing as other fictional characters to send her letters of condolences. 

Through all this, St. James allegedly also kept in touch with Bonhomme under her own name. After the death of “Jesse,” Bonhomme and St. James got together in Colorado and took a road trip through that state and through New Mexico in a tour of “Jesse’s” favorite places.

The fiction came to a crashing end in February 2007 when Bonhomme’s California friends did some investigating and learned the truth that “Jesse” never existed in the first place.

Rightfully outraged, Bonhomme sued St. James in Illinois court for fraudulent misrepresentation, intentional and negligent infliction of emotional distress, defamation and false light.

The trial court dismissed all of Bonhomme’s claims, but early last month the Illinois Appellate Court decided that she could proceed with a claim for fraudulent misrepresentation.

“Here, [Bonhomme] alleged that she was initially befriended by [St. James], a real person, who then gradually introduced, [Bonhomme] to her creations and even vouched for their reality. [St. James] allegedly used various media to communicate with [Bonhomme] while in the guise of these fictional characters, even going so far as to use a device to disguise her voice and make her sound like a man. [Bonhomme] was enmeshed in a web created by [St. James] and deceived on all sides and in numerous manners by [St. James],” court said.

The court expressly rejected the notion that there could be no justifiable reliance on the part of Bonhomme because it is a “reality of the Internet age” that an online individual is not always who they purport to be.

“Viewing the allegations in the light most favorable to [Bonhomme], we cannot say that she merely closed her eyes and allowed herself to be deceived. The allegations show an extensive masquerade to deceive, and reliance on the many-faceted and corroborative characters and misrepresentations can be found to be justified,” the court said. (Bonhomme v. St. James)

 - Pat Murphy

patrick.murphy@lawyersusaonline.com