A Mississippi woman could not explain away 107 cell phone calls to a married man when she tried to set aside an $88,000 jury verdict against her in an alienation-of-affection lawsuit.

Alienation of affection as a cause of action is a relic of the past in most states.  Of the seven states that still recognize the tort, only in North Carolina and Mississippi do you see the victims of extramarital affairs pursuing such claims with any frequency.

In 2009, Melissa Simmons discovered first-hand that Mississippi’s alienation-of-affection law still has some teeth when a Lowndes County Circuit Court jury awarded $88,000 in a lawsuit brought by Chrissy Strickland.

Chrissy claimed that Melissa caused the breakup of her 12-year marriage with Chuck Strickland. According to Chrissy, her marriage began to disintegrate in the summer of 2007. In June 2007, Chuck and Chrissy went on vacation with Melissa and her then-husband, Lane Simmons, at a camp house on a river in Kiln, Mississippi. Chuck and Chrissy had a spat, causing Chrissy to grab her bags and head home.

Fortunately, Melissa was there to lend a sympathetic ear. Melissa later testified that she and Chuck stayed up talking that night at the camp house, with Chuck pouring out his soul about how unhappy he was.

After that night, Chuck and Melissa talked to each other frequently. Cell phone records indicate that Melissa called Chuck 107 times between July 26, 2007, and Sept. 17, 2007. Likewise, Chuck called Melissa fifty-one times, evidently efforting to hide his communications by dialing *67 to block caller ID.

Chuck and Melissa both later claimed that they did not have sex prior to Sept. 17, 2007, the date that Chuck and Chrissy separated.

However, that may not have been the case. Melissa’s husband Lane later testified that he found a contraceptive sponge in his and Melissa’s bathroom in early Aug. 2007. That discovery definitely raised an eyebrow because Lane had undergone a vasectomy in 1995. There was also testimony that Chuck and Melissa were seen in bed together at the camp house sometime in the summer of 2007.

Whatever the truth of the matter, Melissa and Chuck set about ending their respective marriages. Melissa got the ball rolling on Sept. 16, 2007, by telling Lane that she wanted a divorce. According to Lane, Melissa told him that she was in love with Chuck. The next day, Chuck told Chrissy that their marriage was over.

Both marriages were dissolved by divorce decrees in July 2008. Melissa and Lane were granted an irreconcilable-differences divorce. Chrissy was granted a divorce from Chuck on the ground of adultery.

With all the technicalities out of the way, Chuck and Melissa entered marital bliss in December 2008.

But there was a dark cloud on the horizon. Chrissy wasn’t about to take the end of her marriage lying down. Even before Melissa and Chuck said their marriage vows, Chrissy filed her complaint against Melissa, asserting a claim for alienation of affection.

At trial, Melissa tried to evade liability by arguing she was not the active agent in the end of the Chrissy’s marriage. But so hard to explain were those 107 phone calls from Melissa to Chuck during that critical summer before the breakup.

The jury didn’t buy Melissa’s explanations, awarding Chrissy $87,500 in compensatory damages and $500 in punitives. Chrissy also received $30,000 in attorney fees.

Late last month, the Mississippi Court of Appeals took a look at the case and left the jury’s verdict intact.

On the issue of whether there was sufficient evidence to show that Melissa caused the end of Chrissy’s marriage, the court simply could not ignore the records of the phone calls between Melissa and Chuck.

“Notably, the cell phone records show that Melissa called Chuck more than twice as much as he called her,” the court explained. “A few months later, Chuck abandoned the marriage, saying that he was in love with Melissa. Based on these facts, there was sufficient evidence for the jury to infer that, but for Melissa’s active interference, the marriage of Chuck and Chrissy probably would not have ended.” (Simmons v. Strickland)

So it looks as though Melissa will have to pay Chrissy the $118,000 in damages and attorney fees. With that kind of financial burden, one might expect that the marriage of Melissa and Chuck will also be tested in the coming years. The worm turns.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

It seems a bit of a stretch to try to recover damages from a car company because the mileage recorded by its odometers may be off by a measly two percent. But that didn’t stop a class of Nissan customers from giving it the old college try. 

Fortunately for Nissan, a California appeals court decided last week that the plaintiffs and their lawyers should probably be spending their time and resources looking to right more grievous wrongs. 

Michael Lopez, Gale Somadi, Nu Butthajit, Thomas Estrada and Calvin Chambers are the named plaintiffs in a class action that was filed against Nissan in Los Angeles County Superior Court.

The plaintiffs sued for violations of various California consumer protection laws, alleging that Nissan purposefully designed, calibrated, and altered the odometers on its vehicles to overregister the actual miles driven by at least two percent. The putative class included all California residents who bought or leased a new model year 2004 through 2007 Nissan or Infinity vehicle.

For damages, the plaintiffs alleged that the overregistration of mileage resulted in overpayment for vehicles, loss of resale value, premature expiration of warranties, improper repair costs, excessive lease payments and excessive end-of-lease charges.

The lawsuit had abundant fatal defects, which the California Court of Appeal happily pointed out last week when it affirmed the trial court’s grant of summary judgment in favor of Nissan.

The basic obstacle to any recovery was California Business and Professions Code §12500(c), which provides that any commercial measuring instrument that is accurate within the relevant National Institute of Standards and Technology (NIST) tolerance standard is “correct.”

The NIST tolerance standard applicable to motor vehicle odometers is plus or minus four percent, so the Nissan plaintiffs’ complaints about a two percent overregistration of mileage was problematic, to say the least.

Removing any doubt surrounding this issue, the appellate court held last week that “passenger vehicle odometers are ‘correct’ if they register actual mileage within the four percent tolerance and the designer or manufacturer does not deliberately miscalibrate them to underregister or overregister mileage.”

Moreover, the court held that §12500(c) constitutes a “safe harbor” provision under state law. This meant that, for purposes of the state’s consumer protection statutes, Nissan’s odometers were “correct” in the absence of evidence that the car company deliberately miscalibrated the instruments.

And this brought up the final, fatal flaw in the class action brought by Lopez and his fellow unhappy Nissan customers.

The court concluded that “Nissan’s evidence established that Nissan did not deliberately miscalibrate its odometers to overregister, and to the contrary, attempted to center its odometers on zero. The evidence proffered by plaintiffs failed to create a triable issue of fact on this point.”  (Lopez v. Nissan)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Bloggers may be making a big mistake if they assume they share the same free speech protections of members of the traditional press. A Montana blogger who styled herself an investigative journalist was just disabused of that notion by a federal judge, and now she must pay $2.5 million for defaming an attorney and his business.

The disarmed blogger is Crystal Cox of Eureka, Montana. Cox maintains a website and blog found at www.obsidianfinancesucks.com. As the name suggests, Cox has used the website to mount a series of attacks against Obsidian Finance Group, a limited liability company that advises distressed businesses.

Oregon attorney Kevin Padrick is a senior principal of Obsidian Finance. Cox became peeved at Padrick’s involvement in the bankruptcy case of Summit Accommodator’s, Inc. In her blog, she variously labeled Padrick a “thug,” a “liar” and a “thief.” Apart from the name calling, Cox suggested that Padrick had engaged in illegal, corrupt and fraudulent activity, stolen money from the government, and “paid off” the media and politicians.

Padrick became fed up with the attacks, so this January he and his company sued Cox in Oregon federal court for defamation.

The case went to trial in November and on Nov. 29 a jury found Cox liable for defaming Padrick and Obsidian Finance.

Judge Marco A. Hernandez presided in the case and he held off until after trial to decide the issues of whether Cox was protected as a journalist under the First Amendment and Oregon’s shield law.

On Nov. 30, the judge issued his decision and the news was all bad for Cox.

Judge Hernandez found that Cox was not a journalist under Oregon’s shield laws, explaining that “although defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.”

The same held true for Cox’s argument that she was a member of the press for First Amendment purposes.

On a threshold issue, Hernandez decided that the First Amendment’s “actual malice” standard was not triggered because Padrick and Obsidian Finance were not public figures.

Next, Hernandez ruled that Cox was not “media” under the First Amendment, thereby relieving the defamation plaintiffs from the burden of having to show that Cox was at the very least negligent.

“Defendant cites no cases indicating that a self-proclaimed ‘investigative blogger’ is considered ‘media’ for the purposes of applying a negligence standard in a defamation claim,” Hernandez wrote. “Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is ‘media,’ triggering the negligence standard.”

The hammer came down yesterday when Hernandez entered judgment on the jury’s verdict. For now, Cox owes Padrick $1.5 million, and Obsidian Finance $1 million.

Stay tuned. The bet here is that the case finds itself before the 9th Circuit.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Try as they might, personal injury attorneys are making little progress in expanding the bounds of liability in the context of sports injuries. The South Carolina Supreme Court served up another loss on that front Monday in the case of a father injured in a Cub Scout-sponsored softball game.

In March 2004, David Cole and his son went on a camping trip organized by Cub Scout Pack 48. Naturally, a featured event of the outing was a father-son softball game.

Anyone who has participated in those games knows that they can get kind of hairy what with all the wanna be pros seizing the opportunity to relive past athletic glories and impress their kids. The father-son game organized by Cub Scout Pack 48 was no exception. Seeing the aggressive play getting out of hand, Scout Leader Keith Corley stopped the game briefly and told everybody to tone it down. 

The warning evidently didn’t sink in for one father, Jeff Wagner. While Cole played catcher for the other team, Wagner reached second base on a double. The next batter scorched a single to the outfield and it was Wagner’s chance to play Ty Cobb. No, Wagner didn’t come into home plate with sharpened spikes high, but he did come in hard.

With Cole waiting at the plate for the ball from the outfield, Wagner came chugging down the third base line so fast that he was unable to stop or change directions in order to avoid the unfortunate catcher. The collision was magnificent to behold. Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib.

Cole was in worse shape, suffered a closed head injury that rendered him semiconscious and sent him into convulsions.

As later explained by Columbia attorney John Grantland, who represented Wagner, the problem was that Wagner had just left work and had arrived for the game still wearing his steel-toed work boots. It was the boots that evidently did the damage.

“It was just a really unfortunate accident,” Grantland told The Associated Press. “If he had been wearing tennis shoes, there probably would have been less of an injury.”

Cole’s injuries were serious enough that he had to be airlifted to Palmetto Richland Hospital where he spent two days in intensive care. Cole recovered, but he proceeded directly to court to sue Wagner and the Cub Scouts for negligence and recklessness. 

Now, the basic problem with these sports injury cases is that almost everybody understands that injury is just a part of the game, whether you’re playing badminton or football.

Plaintiffs’ attorneys try with all their might to draw a distinction between “contact” and “non-contact” sports, but the simple fact of the matter is that, when you have players competing, there are going to be collisions and injuries.

That means that plaintiffs have the incredibly high hurdle of trying to convince a judge or jury that they didn’t assume the risk of their injury by participating in the sport.

Cole failed in that attempt in his lawsuit against Wagner. The basic theory of his negligence claim was that Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. In addition, Cole contended that Wagner violated a rule of the game by his aggressive attempt to score.

In Monday’s decision, the South Carolina Supreme Court affirmed a summary judgment in Wagner’s favor, ruling that Cole plainly assumed the risk of his injuries.

The court explained that a “risk inherent in a sport can be found at any level of play, possibly more so in a non-professional arena where the players engage with less skill and athleticism. While Cole was playing a casual game in which the teams did not even keep score, he was still playing softball, which is a contact sport. …

“Where a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport. Therefore by playing softball, Cole assumed those risks that are integral to the sport of softball, which includes the risk of a collision at home plate.”

On Cole’s assertion that Wagner violated a rule of softball by running over the catcher in a play at home plate, the court observed that “the risk of someone violating a rule of the game is one of the risks taken when engaging in a sport. If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football.”

On this issue, the court concluded that “collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body. Even if a rule prohibits running into the catcher, that fact alone is insufficient evidence to show the injury resulting from the violation of the rule was not inherent in the sport.”

Cole fared no better on his claim of recklessness.

“Even assuming, arguendo, that Wagner’s conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball,” the court said. “The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics.”

The court concluded that, to “the extent these risks inhere in the sport involved, we hold some recklessness by coparticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.” (Cole v. Boy Scouts of America, Indian Waters Council, Pack 48)

This decision makes so much common sense that it’s hard to believe it comes from trained legal minds.

The bottom line is, if you don’t want to get hurt, don’t play the game. And if you do get hurt, cinch it up and carry on rather than head to the nearest court.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Our moms reminded us as children that it’s simply easier to tell the truth because lies are so hard to keep track of. A race discrimination plaintiff in Louisiana apparently didn’t listen to his mom. Now, he’s in hot water. 

Nickey Brown worked as a contract welder for Oil States Skagit Smatco from March 12, 2008, until he resigned on June 11, 2008. Brown is an African-American. He claims that during his brief tenure at Oil States his coworkers subjected him to racially derogatory remarks, racist graffiti and the display of a noose.

In a quest for justice (and cash), Brown sued Oil States in Louisiana federal court, alleging racial harassment and constructive discharge under Title VII.

At the same time, Brown was suing State Farm for injuries suffered in a 2008 automobile accident. State Farm deposed Brown in the personal injury action on Jan. 5, 2010. In his deposition testimony, Brown asserted that he left his job at Oil States solely because of back pain related to the car accident.

Fast-forward to May 26, 2010, and Brown was telling a different story. On that day, Brown was deposed in his Title VII case against Oil States. In that proceeding, he declared unequivocally that he quit his job solely because of racial harassment.

Oil States got wind of the conflicting testimony that Brown gave in his deposition with State Farm. Before you could say “Pinocchio,” Oil States filed a motion for sanctions in federal court.

The federal judge in the Title VII case found that Brown committed perjury and granted Oil States’ motion for sanctions, dismissing Brown’s complaint with prejudice.

Yesterday, the 5th Circuit affirmed that order, turning a deaf ear to Brown’s plea that dismissal was too severe a sanction. 

First, the court made no bones about how serious it considered Brown’s elastic relationship with the truth.

“Brown deceitfully provided conflicting testimony in order to further his own pecuniary interests in the two lawsuits and, in doing so, undermined the integrity of the judicial process. Through his perjured testimony, Brown committed fraud upon the court, and this blatant misconduct constitutes contumacious conduct,” the court said.

Given the nature of Brown’s transgression, the court had no trouble upholding dismissal as a sanction.

It explained that “Brown’s perjured testimony did cast doubt on whether he was subjected to racial harassment at Oil States, given his failure to mention racial harassment as a reason for leaving his job in the State Farm deposition. Brown’s ‘deceits were substantial, deliberate, and went to the heart of the case.’” (Brown v. Oil States Skagit Smatco) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

If you bought a home and found out later that it had been the site of a murder/suicide, you might be more than a bit peeved that the sellers didn’t mention that fact before closing the deal. But would the seller’s lack of candor actually amount to a violation of state law requiring the disclosure of “material defects” in a property?

Last week, a Pennsylvania court was called on to answer that question.

The unfortunate buyer in the case is Janet Milliken. In August 2007, Milliken completed the purchase of a home in West Chester from Kathleen and Joseph Jacono. The Jaconos’ real estate agents were from RE/MAX.

Milliken paid $610,000 for the house. She thought that she might be getting a pretty fair deal having learned that the Jaconos had recently acquired the property at a real estate auction and were probably just looking to turn a quick profit.

Before closing, Milliken reviewed the title report and noted that the Jaconos had acquired the property from the estates of Kostantinos and Georgia Koumboulis. Milliken claimed that the names meant nothing to her at the time and the circumstances tended to confirm her belief that the Jaconos had simply plucked a plum out of foreclosure.

However, the names probably should have rung a bell. Three weeks after moving into her new home, Milliken learned that the property had been the site of a murder/suicide. On Feb. 12, 2006, police found the bodies of Kostantinos and Georgia Koumboulis in the home. The husband and wife had been shot to death.  Police later concluded that Kostantinos had murdered Georgia before turning the gun on himself.    

Milliken rightly thought that the Jaconos should have told her about the tragic events in the home before selling it.

Apparently, the Jaconos also wondered about whether they had a duty to disclose the murder/suicide. The Jaconos allegedly approached their RE/MAX agents about their legal obligations in this regard. The RE/MAX agents allegedly called the Pennsylvania Association of Realtors Legal Hotline and were told that the murder/suicide was not a material defect which required disclosure. The agents also allegedly did their own research which confirmed this conclusion.

So when the Jaconos filled out their seller property disclosure statement on June 17, 2007, they did not disclose to Milliken what had happened to the prior owners.

After finding out about her home’s bloody past, Milliken sued the Jaconos and their RE/MAX agents in state court for fraud and negligent misrepresentation, alleging specifically that the defendants had violated the Pennsylvania Real Estate Disclosure Law. Milliken claimed that the murder/suicide reduced the value of her property up to 15 percent.

The trial court granted the defendants summary judgment, deciding that the murder/suicide which occurred in the home did not constitute a “material defect” under the state real estate law or for purposes of Milliken’s common law fraud and misrepresentation claims.

But last week the Pennsylvania Superior Court overturned that judgment, concluding that a jury should decide whether the murder/suicide was a material defect with respect to Milliken’s home.

With regard to Milliken’s statutory claim, the court observed that the disclosure statement utilized by the Jaconos case provides that, while “the [state real estate disclosure] Law requires certain disclosures, this disclosure statement covers common topics beyond the basic requirements of the Law in an effort to assist sellers in complying with disclosure requirements and to assist buyers in evaluating the property being considered.”

The court noted, too, that the statement required the sellers to disclose any material defects “not disclosed elsewhere on this form.”

“When we view this statement in conjunction with the provision of [state law] permitting additional disclosure, we conclude that if a jury in fact determined that the murder/suicide was a material defect, then pursuant to the disclosure statement used in this case, Sellers and Agents were required to disclose the murder/suicide to Buyer,” the court said. (Milliken v. Jacono)

The court followed similar reasoning in concluding that Milliken’s fraud and misrepresentation claims could go forward.

“Here, Buyer has alleged that had she known of the murder/suicide, she would not have purchased the property. Based on the foregoing, we conclude that whether Sellers and Agents failed to disclose a material fact was a question for the jury,” the court said.

In opening the door for potential liability against the Jaconos and their real estate agents, the court further suggested that the defendants had simply failed to do the right thing when they kept their lips sealed about the fate of Kostantinos and Georgia Koumboulis.

“[T]he Sellers and Agents made multiple inquiries to determine whether they were required to disclose the murder/suicide to Buyer. Instead of expending this effort, they would have been better served by simply acting in good faith and disclosing this fact,” the court said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

You’d thing that two Vermont State troopers would at least have been able to get the address right when dispatched to check that an elderly woman was okay. Because they didn’t, the woman was literally left out in the cold to die, and the state will have to answer in court.

Gladys Kennery lived alone in Marlboro, Vermont. The elderly woman had health problems that made her prone to falls. One time, she needed assistance when she fell on the path from her garage to her house when returning from an errand. She survived the mishap, but Lorraine Kennery, Gladys’s daughter, was naturally concerned.

The problem for Lorraine was that she lives in White Plains, N.Y. So mother and daughter set up a system under which Gladys would call Lorraine each time she left and returned home.

On March 15, 2007, Gladys went to a doctor’s appointment. By 6:30 that evening, Lorraine hadn’t received the call from Gladys confirming that she had arrived home safely. So Lorraine called the Vermont Department of Public Safety (VDPS) and requested that someone stop in and make sure her mom was okay.

Vermont State Troopers Travis Valcourt and Francis LaBombard were given the assignment to conduct the welfare check. Gladys lived in a semi-rural area at 3902 Augur Hole Road. To facilitate mail delivery, all the mail boxes are on the south side of the road, with the even-numbered boxes for the homes on the north side of the road, like Gladys’s.

Unfortunately, when Troopers Valcourt and LaBombard arrived that evening to check on Gladys, they went in the driveway next to her mailbox. So they proceeded to search the house directly across the road from Gladys’s house. After knocking on the wrong front door, walking around the wrong house, and checking the wrong garage, they found nothing amiss and went on their way.

Meanwhile, just as Lorraine had feared, Gladys had indeed fallen while walking from her car to her house upon returning from her doctor’s appointment. She had managed to crawl up on the porch, but that was as far as she could get. The next morning, a postal worker discovered Gladys, barely alive. Twelve days later, Gladys died at Brattleboro Memorial Hospital from hypothermia.

Lorraine sued the state for wrongful death, alleging that the troopers were negligent in performing the welfare check.

A state trial judge dismissed the claim, finding no duty of care under either statutory or common law.

But late last month the Vermont Supreme Court recognized that a duty of care was created under the Restatement (Second) of Torts §324A based upon the state’s undertaking to perform the welfare check.

“In the case before us, the common law duty of care directly addresses the special obligation VDPS assumed to beneficiaries of welfare checks and the special obligation when the responsibility of a welfare check was accepted in the individual case.  The fact that no statute commanded this undertaking of responsibility does not mean that no duty existed,” the court said.

Moreover, the court concluded that the state was not protected by the discretionary function exception of the state’s tort claims act.

“We have no doubt that the VDPS decision to perform or not perform welfare checks is protected by the discretionary function exception. Further, state police officers must have discretion to decide whether to respond to a particular request in light of all the demands upon their on-duty time. The facts of this case indicate that the troopers were able to respond to the request for a welfare check four hours after it was received. If plaintiff’s claim were that the troopers waited too long in responding and the delay caused the result, we would similarly hold that the State must also be protected by the discretionary function exception because VDPS must be protected in its ability to allocate limited trooper time to competing demands. …

“But this case does not involve competing considerations based upon policy assessments. The discretionary activity at issue was to apply the information given the officers to search the right house. We see no public policy analysis in this activity. Thus, we cannot conclude that the actions that are at the center of plaintiff’s claims are protected by the discretionary function exemption,” the court said. (Kennery v. Vermont) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com