If my backyard suddenly became an adventure in electric shock, I’d want the power company responsible to take my home off my hands so I could live somewhere else. 

That’s why $200,000 in damages just doesn’t seem enough for a couple who are stuck in their $460,000 home after enduring stray voltage from New Jersey Central Power & Light.

Gary and Eileen Smith have a home in Brick, New Jersey. At one time, the Smiths and their three boys were able to enjoy without hesitation a backyard that contained a cement patio, swing set, sandbox, above-ground pool and hot tub.

That all changed in July 2002.

One day, Gary walked barefoot to the hot tub and put his arm in to check the water temperature. He felt electric shock travel up his arm to his chest. The next day, he tested the water again and received an electric shock so strong that it felt as though he had been punched in the chest.

Eileen also could feel a tingling sensation when she placed her arm in the hot tub, but only after she removed her shoes.

The Smiths called in an electrician who discovered very high levels of electricity in the ground surrounding the hot tub and swing set. It was later determined that the problem “stray” voltage passing along the ground to an electrical substation operated by New Jersey Central Power & Light.

Stray voltage is a common enough problem across the country and essentially occurs when power lines are overloaded, leaving electricity that must return to a substation to complete a circuit to find the path of least resistance, typically the ground.

The electricity passing through the earth will tend to ground to such things as pools, hot tubs, outdoor irrigation systems, faucets, and swing sets.

The Smiths were advised to always wear shoes when going outside and not to touch anything metal or wear wet clothing outdoors, which tended to diminish their backyard activities. To protect themselves and their sons, the Smiths filled in the sandbox, dismantled the swing set and pool, and generally stopped using their backyard.

In addition, the Smiths spent $29,400 to install a fiberglass deck so their sons could play without touching the ground.

At the same time, New Jersey Central studied the problem and undertook system-wide measures to eliminate the stray voltage experienced by the Smiths and their neighbors.

Of course, the power company claimed that these remedial measures were effective, while the Smiths claimed that the problem persisted.

Unhappy that they could no longer fully enjoy their property, the Smiths sued New Jersey Central for nuisance. In addition, they filed a claim for inverse condemnation.

An Ocean County jury found New Jersey Central liable for nuisance, awarding the Smiths $145,000 for property damage and $50,000 for interference with the use of their property.

That sounds pretty good until one considers that, according to at least one expert, the Smiths’ $460,000 home has a market value of $0 due to the stray voltage problem.

But the Smiths’ inverse condemnation claim never reached the jury, being dismissed by the trial judge.

So both sides appealed the judgment of the trial court, the Smiths being unhappy with being denied the remedies of inverse condemnation, New Jersey Central peeved with the fact that it was liable for nuisance.

Last week, the New Jersey Appellate Division disappointed both parties by upholding the trial court’s judgment.

As to the Smiths’ inverse condemnation claim, the state appeals court said that the case “clearly does not involve a permanent physical occupation of plaintiffs’ property; defendant did not, for example, erect utility poles on part of plaintiffs’ property. Plaintiffs have continued to occupy and use all of their property even though the [stray voltage] from defendant’s electrical distribution system interfered with that use. …

“Moreover, that interference was temporary or intermittent, rather than permanent; or at least a trier of fact could reasonably have reached this conclusion based on defendant’s proofs.”

So the Smiths are stuck with their home.

But New Jersey Central is also stuck with paying the nearly $200,000 in damages awarded by the jury because the state appeals court rejected the power company’s argument that the Smiths needed to prove negligence in order to succeed on their nuisance claim.

“A negligence claim is directed solely at the conduct of the defendant; if that conduct is not unreasonable under all the circumstances, it will be found not to have been negligent. …

“On the other hand, a defendant’s conduct may be found to have constituted a nuisance even though the conduct has sufficient social utility to be considered reasonable so long as damages are paid to the party whose use and enjoyment of land has been interfered with by this conduct,” the court explained. (Smith v. New Jersey Central Power & Light) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Nothing excites prosecutors like getting a flamboyant defense attorney in the crosshairs. 

But investigating a criminal defense lawyer raises all sorts of constitutional concerns. 

Last week, the 2nd Circuit decided that the feds didn’t go too far when they used a confidential informant to convict Robert Simels, the high-profile defender of  New York City’s drug kingpins. 

The downfall of Simels began in 2006 when he accepted a $1.4 million retainer to defend Shaheed Khan, a citizen of Guyana who was brought to Manhattan to face charges that he headed a criminal enterprise that imported large amounts of cocaine into the United States. 

Key to the drug trafficking investigation was one Selwyn Vaughn, who worked for Khan’s paramilitary organization in Guyana and became an informant working for the Drug Enforcement Administration. 

Attorney Simels became a target of a criminal investigation in March 2008 when federal agents learned that he had attempted to speak with David Clarke, a federal prison inmate and potential government witness against Khan. According to the government, Simels falsely told prison authorities that he was Clarke’s attorney. 

This was significant because of the suspicion that Simels was conspiring to intimidate the witnesses in the Khan drug trafficking case. 

The feds accordingly began to use their confidential informant, Vaughn, to build a case against Simels. 

On five occasions between May and September 2008, Vaughn met with Simels at Simels’ law offices. The attorney thought that Vaughn was helping him prepare a defense for Khan. 

In reality, Vaughn was surreptitiously recording his conversations with Simels. The attorney during these meetings allegedly made the mistake of proposing to bribe and threaten the potential witnesses against his client, Khan. 

The recordings were later introduced as evidence when Simels was charged with attempted obstruction of justice and bribery. A federal jury convicted Simels in August 2009 and he was sentenced to prison for 14 years.

Before the 2nd Circuit, Simels argued that the feds violated the Sixth Amendment by inserting an informant into his preparations for the defense of a client. 

The court agreed that the use of a government informant under these circumstances “raises serious issues concerning the Sixth Amendment rights of the lawyer’s client and other issues arising from intrusion into the attorney-client relationship.” 

But ultimately the court decided that there was no constitutional violation,  sidestepping the issue of whether Simels had third-party standing to assert a violation of his client’s Sixth Amendment right to counsel.  

In upholding the constitutionality of the government’s actions, the court first underscored the fact that federal agents created a “fire wall” between the agents investigating obstruction offenses by Simels and the team of prosecutors and agents involved in the drug-trafficking case against Simels’ client, Khan.

Second, the court rejected Simels’ argument that a Sixth Amendment violation occurs whenever the government directs an informant to pose as part of a criminal defense.

The court explained that the “possibility that an attorney is attempting to obstruct justice in the course of representing a client presents Government investigators with a sensitive choice. If they act precipitously to determine whether obstruction is being attempted, they risk an unwarranted intrusion into the attorney-client relationship, an intrusion that may well jeopardize their case against the client. …

“On the other hand, if they unduly delay an inquiry, they risk serious harm to witnesses. Whether or not investigators facing this choice are constitutionally required to have a reasonable basis for their suspicion of possible obstruction before sending an informant to contact the lawyer, the existence of such a basis adequately allays any concern that the attorney-client relationship has been improperly invaded.”

Here, the court concluded that Simels provided the justification for the extraordinary use of a government informant when he lied to prison officials in an apparent effort to gain access to a witness in the Khan drug trafficking case.

“Simels discounts the significance of his false statement to prison authorities because, he contends, he was not required to be counsel for Clarke in order to visit him. Nevertheless, the fact remains that he lied about his role as Clarke’s attorney, and, at least in the context of assessing the Government’s basis for investigating an attorney, a lie to criminal justice officials does not lose its capacity to arouse suspicion just because the lie might have been unnecessary,” the court said.

It explained that “the Government had a substantial basis to determine whether Simels was attempting to commit obstruction offenses, far more than a ‘mere recitation’ of a need to investigate future criminal activity. The need to discover and prevent potential intimidation of witnesses was a stronger basis for sending Vaughn to meet with Simels than protection of an informant’s identity, which we ruled a sufficient justification for the more intrusive step of allowing a cooperating witness to sit at counsel table.” (U.S. v. Simels)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

In today’s tough job market, it’s not a good idea to threaten to quit unless you mean it.

Illustrating the point, one Arizona worker jeopardized her entitlement to unemployment compensation benefits by allegedly threatening to leave her job in a dispute over a performance bonus.

Linda Figueroa was employed by Valley Learning Centers as the director of a child-care center in the Phoenix area.

Figueroa became peeved when she learned that she was not going to get a performance bonus following a July 14, 2009, job evaluation. The employer and employee dispute how exactly she expressed her displeasure.

Valley Learning Centers alleged that Figueroa unequivocally told her supervisor that she was going to quit unless the bonus showed up in her pay check.

Figueroa denied telling anyone that she was quitting or giving notice.

In any event, Valley Learning Centers changed the locks at Figueroa’s place of work on July 17 and the woman was without a job.

Asserting that she had been terminated, Figueroa applied for unemployment compensation.

Valley Learning Centers opposed the claim for benefits, arguing that Figueroa had voluntarily left her job without good cause.

The Appeals Board for the Arizona Department of Economic Security sided with the employer and ruled that Figueroa was ineligible for benefits.

Earlier this month, the Arizona Court of Appeals rode to the rescue and concluded that Valley Learning Centers failed to carry its burden under state law of showing that Figueroa had quit.

The court said that, even taking Valley Learning Center’s version of what Figueroa said as fact, “the testimony of Valley’s representatives supported a finding only that Figueroa said she planned to quit, and the record is devoid of any evidence that Figueroa took action to end her employment.”

The court explained that, under state law, a “separation from employment is a ‘quit’ when the worker acts to end the employment and intends that result, but it is a ‘discharge’ when the employer acts to end the employment and intends that result.”

Here, the court concluded that all the relevant actions to end employment were taken by were taken by the employer rather than by the employee.

The court said “the evidence demonstrates that Figueroa never acted to separate from employment. Valley’s vice president testified that Figueroa said for three days that July 17 ‘was the day that she was going to give her notice,’ but by July 16 she had not done so and Valley was still unclear whether she would. While the vice president also testified that Figueroa orally gave two weeks’ notice on July 17, his testimony was that she did so after the arrival of the locksmith.” (Figueroa v. Valley Learning Centers) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

One of the least sympathetic characters in federal civil rights litigation is the parent who cries foul when one of their little lovelies is disciplined by school officials.

The issue in these cases never seems to be about whether the child did wrong. In fact, the transgression is often conceded.

No, instead of being concerned about curing their child’s misbehavior, the parent wants the school held accountable for somehow being unfair.

Such is the case with the parents of three Tennessee teenagers who were kicked off the Ooltewah High School’s cheerleading squad last fall for underage drinking.

The parents of the three teens are JoDee Crumley, Tommy and Jennifer Smith, and Valerie and Todd Jones.

On October 29, 2010, the three girls attended a Halloween party in nearby Ringgold, Georgia. Later that night, two other cheerleaders who had also attended the party were arrested for underage drinking on their way home.

The two arrested cheerleaders did the right thing. That weekend, they went to the home of their cheerleading coach, Kelly Peterson, and told her about their arrest. They also identified the other cheerleaders who attended the party.

Coach Peterson dismissed the two arrested teens from the squad for violating its code of conduct, which prohibits the drinking of alcohol and drug use.

The following Monday, the Crumley, Smith and Jones children were brought before the school principal, Mark Bean. During this face-to-face, the three cheerleaders allegedly confessed to underage drinking, leading to their dismissal from the squad.

Now, being the parent of a teen, my nightmare has always been the late-night call. So it’s hard for me to figure out why the Crumleys, Smiths and Joneses didn’t just chalk the whole experience off as a lesson well-learned.

But no, the parents of the three cheerleaders were more upset with Principal Bean and Coach Peterson, so they sued under §1983, asserting equal protection, sex discrimination and Title IX claims. The gist of their complaint was that male student athletes at the school did not receive similar discipline for similar misconduct.

The parents filed the lawsuit in the U.S. District Court for the Eastern District of Tennessee where it landed in the lap of Judge Harry Mattice.

Monday, Judge Mattice dismissed the lawsuit, pointing out that it appeared that other female student athletes who had attended the Halloween party had also escaped discipline.

“Even accepting all of the facts asserted in Plaintiffs’ Complaint and proposed Amended Complaint as true, the Court cannot identify any valid cause of action for a violation of Equal Protection or any other claim based on sex discrimination. Both Complaints state that other male and female student-athletes at the Halloween party who were similarly engaged in underage drinking were not similarly punished. …

“Essentially, as Defendants represent, Plaintiffs are complaining that both males and females were treated differently than they were for engaging in the same activity. These facts do not support a sex discrimination claim because Plaintiffs do not allege that only similarly situated males escaped the punishment meted out to them,” Mattice wrote.

He observed that the fatal flaw in the lawsuit was to some extent of the plaintiffs’ own making since the dismissed cheerleaders refused to give up the names of others at the party.

“[A]s Defendants pointed out, Plaintiffs refused to tell Defendants Bean and Peterson the names of other students and student-athletes who were drinking at the party. As Defendants logically argued, they could not punish these other individuals without knowing who they were,” Mattice said. (Crumley v. Bean) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Beverly Duffy thinks the state of Michigan should pay for the catastrophic injuries she suffered on a forest trail.

But how could she possibly argue that the trail was a “highway” the state had a duty to maintain? She couldn’t, so her lawsuit is over.

Duffy’s life took a dramatic turn in 2007. The 48-year-old resident of Sterling Heights, Mich., spent a day riding off-road vehicles with a group of friends at the Little Manistee Trail in Lake County.

While attempting to negotiate a left turn, her ATV ran over some exposed wooden boards that were partially buried in the trail. Upon hitting the boards, the ATV bounced into the air, throwing Duffy against tree trunks along the trail.

She suffered serious spinal injuries in the crash, leaving her confined to a wheel chair.

The Little Manistee Trail is owned by the state of Michigan and maintained by the Michigan Department of Natural Resources. Because the trail is popular, Duffy argued that the state had a duty to keep it safe for off-road vehicles.

An exception to state governmental immunity imposes a duty to maintain a “highway” in reasonable repair.

In suing the state for negligence, Duffy contended that the Little Manistee Trail fit within the definition of highway, arguing variously that it was a “trailway” or “forest road” subject to the state highway exception.

Last week, the Michigan Supreme Court shot down this argument.

“The [Little Manistee] Trail is properly classified as a ‘trailway’ within the distinct meaning of that word in Michigan’s statutory law, and this ‘trailway’ — which is miles away from any highway — is not within the scope of the highway exception because it is not a ‘trailway … on the highway,’” the court said.

It explained that “because the [Michigan] Legislature determined that only trailways on the highway are deemed highways, and because this Trail therefore is clearly not a highway, we refuse plaintiff’s invitation to avoid the statute and make the Trail into a highway by calling it a road. In summary, all roads, forest roads, trails, trailways, and highways in this case lead to the conclusion that plaintiff’s claim is barred by governmental immunity” (Duffy v. Michigan Department of Natural Resources) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

It’s not a good idea for anyone to take a big secret into their marriage.

If you spent a stretch in prison, you should probably reveal that fact before the wedding day. Same with a prior marriage, particularly if you’ve neglected to take care of one of those little details called a divorce. 

A belated revelation about a sexually transmitted disease is sure to take the gloss off that honeymoon in Puerto Vallarta. And that Batman and Robin role-playing thing in the bedroom is also a good subject for a pre-marital sit down.

There’s the standard checklist for past exorcisms, possessions and out-of-body experiences.

Of course, if you’ve been abducted by aliens, I’d bring that up, though no one will ever fault you for failing to mention that you spend your weekends tracking Bigfoot.

It’s a deal-breaker for Packer fans if you root for the Chicago Bears. Personally, I wouldn’t marry any woman who thought Ashton Kutcher can act.

On the other hand, you can probably leave to the fullness of time the fact that you grew up a carnie.

But some people, to their everlasting regret, do enter the hallowed halls of marriage with big, dark secrets.

John Churchill is one of those people.

Churchill is  a real estate agent in Riverside County, California. He isn’t exactly a big player in the Southern California real estate market, one year making only $1,600 from commissions. In his best year between 1996 and 2004, he only made $49,000.

Of course, the Tax Man wants every penny he can get, and that’s where Churchill ran into trouble. From 1992 through 2004, Churchill allegedly failed to pay any of the federal income taxes that he owed.

This would only be a problem for Churchill if he hadn’t married Sharon Schwarz in 2001. Schwarz continued to file her income taxes separately after the marriage, so she had no idea of Churchill’s looming troubles with the IRS.

No, the Churchill-Schwarz union was not a storybook marriage — the couple separated in 2004, and Churchill filed for divorce in May 2005. But the couple reconciled in January 2006, so there was still some hope of salvaging their marriage.

That all ended five months later when the Tax Man came a knockin’ with the intent of collecting $250,000 in unpaid taxes from Churchill. When Schwarz heard of the sword of financial doom hanging over Churchill’s head, she told him to resolve the problem or they were through.

Churchill offered $2,500 to settle with the IRS, thinking that might be enough given his meager earnings.

The IRS rejected the offer, contending that, because California is a community property state, Schwarz’s good and steady income must be taken into account in weighing the fairness of a settlement offer. Adding Schwarz’s income to his, Churchill had a monthly income of nearly $6,000 to pay off the unpaid taxes in installments.

With the settlement offer rejected, Schwarz followed through on her promise and dissolved the marriage.

While the Churchill-Schwarz saga was over, the U.S. Tax Court was left to decide the underlying issue of whether Schwarz’ income should have figured in the determination of whether Churchill had made a satisfactory offer of settlement.

The court ruled Monday that the Tax Man had it right in rejecting Churchill’s offer.

“California is famously a community property state,” the court observed. “This means that spouses in California are generally liable for each other’s debts, even if incurred before the marriage. Because Churchill was married at the time of the [settlement] hearing, the appeals officer was right to consider Schwarz’s assets and income in evaluating his offer.” (Churchill v. Commissioner) 

The court did cut Churchill one break, however, remanding the case to allow him to argue that a change of circumstances had occurred in light of his divorce from Schwarz. So the bet here is that Churchill still will manage to settle the collection action for much less than the $250,000 he owes.

In the meantime, all you Southern California women put on your man-hunting shoes! John Churchill is once again on the market!

– Pat Murphy

patrick.murphy@lawyersusaonline.com

When a couple of guys take a punch in the groin as a sign of affection, you just know things are not going to end well.

John King and Patrick Frake were high school friends. In September 2006, King invited Frake to come to Chicago to take in a game at Wrigley Field.

Seems harmless enough.

Unfortunately, the young men had strange ways of kidding around. Since childhood, King, Frake and their buddies had been engaging in a form of horseplay that involved surprising each other with shots to the groin.

Now, guys revel in doing stupid things. That’s part of our charm. But most guys tend to draw the line when it comes to protecting the family jewels.

Not so John King and Patrick Frake.

After seeing the Cubs game, the two friends and a couple of other buddies were walking home along East Chicago Avenue, goofing around as young men do. Of course, the pals had been drinking.

As alleged in a later lawsuit, Frake suddenly struck King in the groin with his closed fist. Frake had delivered a bull’s-eye. As King doubled over in pain, Frake laughed in triumph.

When they were growing up, their mothers had always warned them that somebody was going to get hurt. Of course, their mothers were right.

King had sustained numerous injuries including “hematocele on the right scrotum … epididymal head cyst … chronic regional pain syndrome/reflex sympathetic dystrophe [and] nerve injury.”

I squirm in my chair just writing these words.

Of course, someone had to pay for King’s injuries and that someone was supposed to be State Farm.

The insurance company had issued a renters policy to Frake that provided coverage for damages because of bodily injury caused by an occurrence. The policy defined “occurrence” as an “accident … which results in bodily injury … during the policy period.”

When King sued Frake, State Farm defended under a reservation of rights. King won his negligence suit and a jury awarded him $450,000.

Surprisingly, a California judge determined that the claim was covered under the renters policy, rejecting State Farm’s argument that there was no coverage because Frake had intentionally struck King.

The California Court of Appeal righted that wrong in a decision released for publication last month that handed State Farm a victory in its action to declare that King’s claim was not covered.

“Frake admits that he intended to strike King in the groin area and there is no dispute that King suffered injuries as a direct result of the strike. Therefore this is not a case where some ‘unexpected, independent, and unforeseen happening’ in the causal chain produced the resulting harm. …

“Rather, King’s injuries were ‘the direct and immediate result of an intended … event.’ The mere fact that Frake did not intend to injure King does not transform his intentional conduct into an accident,” the court said.  (State Farm v. Frake) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

We’ve seen police nab drunk drivers behind the controls of golf carts, riding mowers, three-wheeled scooters for the elderly, and a myriad of other vehicles.

Here’s a new one.

Scott Smith is a construction worker in Vermont.  On May 28, 2010, at approximately 1:10 a.m., a St. Albans police officer observed Smith drive a boom lift from a building site at the Franklin County Courthouse.

Smith worked at the site and had forgotten to park the lift across the street at the end of his shift as he was required to do. So his early morning return to the job site was to correct that oversight.

Of course, the police officer was suspicious that someone was trying to steal the boom lift, so that occasioned a stop.

Unfortunately for Smith, he had had a few too many and the officer immediately detected the strong odor of alcohol. Smith was slurring his words and unsteady on his feet, so the officer proceeded to perform standard field sobriety tests.

Smith failed the tests, so he was off to jail on suspicion of DUI. A subsequent breath test showed that the boom lift operator had a blood alcohol concentration of .203.

Smith was in double trouble, facing a driving with a suspended license charge in addition to DUI.

A kind-hearted Vermont judge took pity on Smith and dismissed the charges, concluding that a boom lift is not a “motor vehicle” within the meaning of the relevant statutes.

There’s superficial appeal to this conclusion when you consider what a boom lift is.

Although a boom lift has four wheels and is powered by fossil fuel, the operator stands in a bucket at the end of the lift arm while moving the machine around the job site at a maximum speed of about five miles per hour. Once in position, the operator remains in the bucket and maneuvers the arm using levers and joysticks.

Last week, the Vermont Supreme Court turned Smith’s good news to bad and reinstated the charges against him. Specifically, the court held that a boom lift is a motor vehicle under the state’s drunk driving laws.

The state high court said that the “[k]ey features of a boom lift’s design are its ability to transport itself and its operator to the proper location at the building site where the lift arm is needed, and its operation from the bucket.  Without this transportation function, the lift would be extremely difficult to use because it could not be easily moved to different places at a work site. …

“That the machine travels at a relatively slow speed and is generally driven only relatively short distances is immaterial. (Vermont v. Smith) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com