The Michigan Supreme Court has breathed new life into the common-law right to resist unlawful arrests, throwing out charges against a man who struggled with police officers when they tried to enter his home without a warrant.

“Consistently with the common-law rule, we conclude that the prosecution must establish that the officers’ actions were lawful,” wrote Justice Diane M. Hathaway in State v. Moreno.

The immediate beneficiary of the decision is Angel Moreno Jr. of Holland, Michigan. In December 2008, police were attempting to find and arrest one Shane Adams. They located the fugitive’s vehicle parked outside Moreno’s home.

Officers decided to conduct a knock and talk and a woman answered the door. The police claimed they could detect the odor of burnt marijuana and, from the sounds inside,  suspected they had just interrupted a group of underage partiers.

The police told the woman that they only wanted to find Adams and had no interest in arresting underage drinkers, but the woman refused to allow the officers to come inside without a warrant.

Undeterred, the officers announced they were coming inside to secure the premises while a search warrant was being processed. At that moment, Moreno showed up at the door to block them from coming into his home, insisting that the officers produce a warrant first.

Of course, the police won the shoving match at the door, forced their way in and arrested Moreno for resisting and obstructing a police officer in violation of §750.81d(1) of the Michigan criminal code. A torn hamstring and bruised elbow suffered by one of the officers added spice to the charges against Moreno. The homeowner was also charged under §750.81d(2), which prohibits assaulting, resisting, or obstructing a police officer causing injury.

Moreno wanted the charges dismissed, saying he had the right to resist the unlawful entry by police.

A state trial judge agreed that the warrantless entry by police violated the Fourth Amendment, but concluded that the state legislature in enacting §750.81d had abrogated the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.

The Michigan Court of Appeals affirmed that decision, following another appeals court decision from 2004, People v. Ventura.

Last month, the Michigan Supreme Court decided that the appeals court had twice gotten it wrong, both in 2004 in Ventura and now in the criminal case against Moreno. Justice Hathaway, writing for the majority, explained:

While the Legislature has the authority to modify the common law, it must do so by speaking in “no uncertain terms.” Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

So the state high court directed that the charges against Moreno be dismissed. While Moreno goes on his merry way, the supreme court’s decision will prove to be a headache for Michigan police officers dealing with drunken yahoos emboldened by the notion that they have the right to defend their homes like some medieval knight defending a castle.

Justice Stephen J. Markman filed a dissent in the 5-2 decision and noted that the court’s action makes the state an outlier on this issue. The judge observed:

[Moreno] has not cited a single case that supports his proposition that a person has some constitutional right to physically resist a police officer who is engaging in unlawful conduct. Indeed, all the cases of which I am aware support the opposite proposition. That there is no constitutional right to resist unlawful police conduct is also obviously supported by the fact that the Model Penal Code, the Uniform Arrest Act, and “a majority of states” have abolished the right.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

There’s nothing like a dry insurance dispute to take all the fun out of a haunted house. Of course, Tyler Hodges’ experience at the Bricktown Haunted House in Oklahoma City wasn’t all that much fun to begin with.

Hodges was manning the ticket booth at the haunted house on the evening of Oct. 14, 2007, when he discovered that his flashlight wasn’t working.

Someone at the Bricktown Haunted House had come up with the bright idea of storing spare flashlights in the freight elevator of the building, so Hodges made his way through the dark to the elevator, lifted the wooden gate across the entrance and stepped in.

Unfortunately, because of the dark interior Hodges couldn’t see that the elevator was on the floor above and fell 20 feet down the empty shaft. Hodges sustained serious injuries in the fall and incurred medical expenses in excess of $110,000.

The good news for Hodges was that the Bricktown Haunted House was covered by not one but two liability insurance policies with limits of $2 million each.

Western World Insurance admitted coverage and took up the defense when Hodges sued the operator of the haunted house – Brewer Entertainment – in Oklahoma state court. The case was settled for an undisclosed amount and Western World turned to Brewer Entertainment’s other insurer, Markel American Insurance, to share the cost of the personal injury settlement.

Under Oklahoma’s doctrine of equitable contribution, when two or more insurers cover the same risk, each insurer must pay a share fair of the common obligation.

But Markel thought it had an escape clause and balked at covering Hodges’ personal injury claim against Brewer Entertainment from the outset. A clause added to the Markel policy by a later endorsement provided that “[t]his insurance shall not apply to any entity that is already an insured under any other insurance provided by any company.”

Markel relied on the “other insurance” endorsement when Western World demanded that Markel pay half the cost of Hodges’ personal injury settlement. The insurance dispute went to federal court and Markel won the first round, obtaining a summary judgment on the basis of the “other insurance” clause.

But yesterday the 10th Circuit decided that Markel’s contractual right to disavow coverage was not as clear as the insurance company needed it to be.

The 10th Circuit first decided that the “other insurance” endorsement, when read in context with other provisions of the policy, did not clearly preclude coverage of the claim at issue. In particular, the court noted that the “other insurance” endorsement seemed to be in clear conflict with language addressing other insurance in Section IV of Markel’s general commercial liability policy.

Markel tried to argue that the language in the endorsement replaced the language in the policy, but the 10th Circuit wasn’t convinced.

“If Markel’s endorsement clearly and totally supplanted the contract’s ‘Other Insurance’ provision, we would of course enforce it according to its terms,” the court said. “But the language of the escape clause gives no hint of such a design.”

Arriving at the conclusion that the insurance contract and its endorsement created an ambiguity, the 10th Circuit turned to Oklahoma’s default rule that policy language must be interpreted to meet the “reasonable expectations” of the insured.

It was here that Markel lost its fight to escape paying half of the Hodges personal injury settlement. The court explained:

Applying the reasonable expectations doctrine to this case, we have no doubt a reasonable insured in Brewer Entertainment’s shoes would have expected coverage from Markel. Expected coverage in light of Markel’s general policy language promising Brewer coverage for accidents just like this one. Expected coverage in light of Section IV’s promise that Markel will shoulder the burden of co-insurance. Expected coverage given the fact that the endorsement nowhere mentions Section IV and the escape clause is readily susceptible to a narrow reading. Neither are we directed to any counter-indication that Brewer understood (or should have understood) the escape clause as barring coverage here.

(Western World Insurance v. Markel American Insurance)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A Maine man claims that Gibson’s Apple Orchard is liable for his motorcycle crash because the farm’s roadside sign partially blocked the view of drivers at the intersection where his accident occurred. The state’s highest court decided last week that the motorcyclist just might have a case.

James M. McIlroy suffered serious injuries when he lost control of his motorcycle on Oct. 13, 2007. At the time, McIlroy was travelling westbound on U.S. Route 2, approaching the T-intersection where North Road enters the highway in Bethel, Maine.

McIlroy had the right of way and claims that he lost control of his motorcycle trying to avoid a car trying to make a right-hand turn from North Road. The car was driven by a former defendant in the case, Charlotte Small.

Gibson’s Apple Orchard had placed an eight-foot-square temporary wooden sandwich-style sign near the intersection for the apple-picking season. Although the exact location of the sign cannot be conclusively established, the parties agree that at some point it obstructed the view drivers on North Road had of westbound Route 2 traffic.

The two people involved in the accident have separate theories on how the accident occurred, both of which implicate the Gibson’s sign. According to McIlroy, Small had pulled partially into the intersection in order to see what was coming down Route 2. McIlroy alleges that he needed to swerve to avoid Small’s car, causing him to lose control.

Small claims that she hadn’t actually entered the intersection, but had stopped at the very edge of North Road to get a look past the sign. Small’s theory is that McIlroy lost control because it appeared that she was about to pull into his path.

Under both theories, McIlroy blames Gibson’s for the placement of its sign. McIlroy sued Gibson’s for negligence, but the trial court granted the farm’s motion for summary judgment on the ground that no reasonable jury could find that the sign proximately caused the accident.

Last week, the Maine Supreme Judicial Court breathed new life into McIlroy’s lawsuit, concluding that a jury issue existed as to proximate causation:

Although there is no evidence of the exact location of the sign, that evidence would not be necessary for a rational jury to make a finding of causation. A jury could find that the sign was close to the intersection, based on Small’s testimony that she proceeded about four feet from her second stop, where the sign still obstructed her view, to her third and final stop before the intersection, where her view was unobstructed. If the jury found that the sign was close to the intersection, it could also find that Small either needed to advance some distance into the intersection to clear the sign, or she needed to stop and then advance again just short of entering the intersection in a way that made McIlroy believe she was headed into the intersection.

(McIlroy v. Gibson’s Apple Orchard)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A medical-malpractice plaintiff will get a new trial because a nurse who served as jury foreperson broke her pledge not to bring her professional experience to bear in deliberations.

“Counsel were entitled to rely on the foreperson’s guaranty to the trial court that she would not allow her professional expertise to override the testimony presented,” wrote Oklahoma Supreme Court Justice Joseph N. Watt in Ledbetter v. Howard.

The plaintiff in the case, Guy Ledbetter, is an Oklahoma City-area resident who has a long history of diabetes. He suffers from peripheral neuropathy of the legs and feet, a serious diabetic complication affecting the nerves of those appendages.

On May 31, 2005, Ledbetter went to his primary care physician complaining of swelling, redness, and discomfort in his left foot and leg. His doctor initially diagnosed Ledbetter with cellulitus, an infection of the soft tissues, and began treating him with oral antibiotics.

Ledbetter’s condition hadn’t improved by June 7th, so Ledbetter’s doctor had him hospitalized for intravenous antibiotics. While hospitalized, Ledbetter had x-rays taken of his left foot on June 9th to determine if he suffered from a bone infection.

These first  x-rays were read by Dr. Derek Howard of Radiology Services of Ardmore. Dr. Howard allegedly reported no dislocations or fractures and that Ledbetter’s foot was radiographically normal. Ledbetter was subsequently released from the hospital when his condition seemed to improve.

However, Ledbetter continued to experience swelling in his left foot and his family doctor ordered a second set of x-rays three weeks later. X-rays taken on July 5th showed a dramatic deterioration of the bones in Ledbetter’s left foot. Ledbetter’s doctor sent him to a foot specialist to be treated for Charcot Foot, a disease of the nerves which causes deterioration of the bone structure of the foot. To treat the Charcot Foot, Ledbetter needed reconstructive surgery and extensive rehabilitation.

Ledbetter sued Howard and Radiology Services for negligence, alleging that the doctor misread the June 9th x-ray, causing delayed treatment of his rapidly deteriorating left foot.

During voir dire, the woman who would eventually become jury foreperson testified that she was a licensed practical nurse who provided home-health care. The foreperson explained that, although she dealt with diabetics on a daily basis, she had never attended a patient with Charcot foot.

Naturally, the trial court was concerned the foreperson would introduce her professional experience into jury deliberations. But the foreperson was seated after she assured the court that she could be unbiased and that she would not substitute her experience as a nurse for the evidence introduced at trial.

When the jury returned a defense verdict, Ledbetter’s lawyers smelled a rat.

After doing some digging, they came up with evidence that the foreperson had broken her pledge to the court that she would not infect jury deliberations with her professional experience.

One of the foreperson’s fellow jurors signed a sworn affidavit recounting that the nurse had taken charge of deliberations “eagerly sharing her experiences and knowledge of the proper care and treatment of diabetic patients.” According to the juror, the foreperson had hypothesized that Ledbetter’s history of foot problems was probably due to his failure to take his insulin as instructed.

Moreover, the foreperson allegedly opined that, because Ledbetter had Charcot foot, he would “likely have had the same problems and result” regardless of any delay in treatment caused by Howard’s misreading of the original x-ray.

The juror’s affidavit was sufficient to convince the trial court to grant Ledbetter a new trial on the ground of juror misconduct, but a state appeals court ordered that the defense verdict in favor of Howard and Radiology Services be reinstated.

Last month, the Oklahoma Supreme Court rode to Ledbetter’s rescue, concluding that a new trial was in order.

Justice Watt in his majority opinion first addressed Howard’s threshold argument that, under state law, the juror affidavit was inadmissible to impeach the jury’s verdict. Watt concluded that the affidavit was admissible under the “extraneous prejudicial information” exception to Oklahoma law generally protecting the integrity of jury verdicts.

The justice explained that the foreperson’s statements as reported in the affidavit were “clearly improper” under the statutory exception because they were “statements of fact by the foreperson; involved purportedly extraneous information arising solely from the foreperson’s professional experience; and were intended to sway the jury toward a defendant’s verdict.”

Watt emphasized that the court’s decision in Ledbetter was not a broad pronouncement on when or how a professional may utilize individual training or expertise in the deliberative process. Nor did the case stand for the proposition that a prospective juror’s single false answer during voir dire justifies a new trial, the judge said.

Instead, Watt said that a new trial was in order in Ledbetter’s case because counsel were entitled to rely on the foreperson’s guarantee that she would not allow her professional expertise to override the evidence presented at trial.

“Here, the simple fact is that during voir dire, the foreperson clearly stated that she would not substitute her experiences as a nurse to diabetic patients to over-ride witness testimony,” Watt wrote. “The affidavit indicates she did exactly what she promised not to do once deliberations began and went even further by attempting to influence her fellow jurors based on her professional knowledge and experiences, all while acting in the leadership position of foreperson on the jury.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

In something of a head-scratcher, a federal judge in Virginia decided last week that clicking “like” on a Facebook page is not a form of expression that deserves the protection of the First Amendment.

The ruling came in the context of a retaliatory discharge case brought by six former employees of the sheriff’s office for the city of Hampton, Virginia. Two of the plaintiffs were civilian employees, four were uniformed deputy sheriffs. Each of the six plaintiffs lost their jobs after Sheriff B.J. Roberts won reelection in 2009.

Sheriff Roberts contends that the plaintiffs lost their jobs for unsatisfactory performance or as a result of a reduction in force occasioned by a sheriff’s department reorganization.

The plaintiffs claim that they really lost their jobs because Sheriff Roberts discovered that they had supported his opponent in the election, Jim Adams. So in March 2011, the plaintiffs sued Sheriff Roberts in the U.S. District Court for the Eastern District of Virginia. They alleged that the sheriff violated their First Amendment rights to freedom of speech and freedom of association when he fired them.

The interesting Facebook issue in the case concerns one particular plaintiff, Daniel Ray Carter, who had been a uniformed deputy sheriff for the city of Hampton.

Carter claimed that he engaged in constitutionally protected speech when he “made statements” on Adams’ Facebook page. In reality, the only thing Carter actually did was click the “like” icon for the page, presumably indicating his favorable opinion of its content.

Evidently, Sheriff Roberts became aware of the activity on his opponent’s Facebook page and that’s what allegedly made Carter a marked man when it came time to settle scores following the election.

The sheriff argued that Carter didn’t have a First Amendment claim because Carter hadn’t engaged in protected speech.

Last week, U.S. District Judge Raymond A. Jackson dismissed Carter’s claim on summary judgment, agreeing that simply clicking “like” on Facebook doesn’t implicate the First Amendment.

“It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” the judge said. “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

According to Judge Jackson, that was the basic problem with allowing Carter’s claim to proceed.

“No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the act content of Carter’s posts from one click of a button on Adams’ Facebook page,” the judge said. (Bland v. Roberts)

Judge Jackson’s decision has created something of a stir among those experts who keep a close eye on legal developments in the brave new world of social media.

One critic who believes the decision will be reversed by the 4th Circuit is Eugene Volokh, a law professor at the University of California at Los Angeles.

In a blog post, Volokh explained why a Facebook “like” deserves the protection of the First Amendment:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression – though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected. …

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The Bush-era Justice Department lawyer who crafted the legal arguments for enhanced interrogation cannot be sued by a convicted terrorist who claimed he was tortured while in federal custody, the 9th Circuit decided yesterday.

“[A]lthough we hold that the unconstitutionality of torturing an American citizen was beyond debate in 2001-03, it was not clearly established at that time that the treatment [Jose] Padilla alleges he was subjected to amounted to torture,” wrote Circuit Judge Raymond C. Fisher in Padilla v. Yoo.

Padilla is currently serving a 17-year stretch in federal prison after being convicted in 2007 on terror charges. He first came to the attention of the American public in the scary months following the 9/11 terror attacks.

In May 2002, Padilla was arrested at Chicago O’Hare International Airport as a suspected al Qaeda terrorist. President George W. Bush declared Padilla an “enemy combatant,” leading to his being held in military custody for nearly four years before being charged in federal court with conspiring to detonate a radioactive “dirty bomb” in the U.S.

Padilla claims that while in military detention he was subjected to physical and psychological abuse. In particular, Padilla alleges that he was subjected to extreme isolation, interrogation under threat of torture or death, sleep deprivation and exposure to extreme temperatures and noxious odors.

While Padilla doesn’t enjoy the sympathy of most Americans in this regard, he thinks that he has a legal claim against those high government officials whom he alleges are most responsible for what he claims amounted to torture.

According to Padilla, one of the prime culprits is John Yoo, who served as the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel from 2001 to 2003.

During his tenure at the Justice Department, Yoo authored a series of memoranda justifying the use of enhanced interrogation techniques against suspected terrorists.

In an October 2001 memorandum, Yoo advised his superiors that “the Fourth Amendment had no application to domestic military operations.” An August 2002 memo to then White House Counsel Alberto Gonzales concluded that an interrogation technique must cause damage that rises “to the level of death, organ failure, or the permanent impairment of a significant body function” in order to be considered torture.

This conclusion served as a foundation for a later memo sent to the CIA authorizing water boarding.

So Padilla sued Yoo in federal court, alleging that he was deprived of a wide variety of constitutional rights based on a torture regime justified by Yoo’s legal counsel.

Judge Jeffrey S. White of the U.S. District Court for the Northern District of California refused to toss the lawsuit when Yoo argued that he was entitled to qualified immunity.

But Wednesday the 9th Circuit decided that Yoo must be granted immunity.

“Although during Yoo’s tenure at [the Justice Department] the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not ‘beyond debate’ at that time that Padilla – who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President – was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal,” Circuit Judge Fisher said.

This is the second swing-and-a-miss for Padilla this year. In January, the 4th Circuit rejected a similar lawsuit against former Secretary of Defense Donald Rumsfeld.

Yoo could barely contain his glee upon hearing of yesterday’s ruling.

“The 9th Circuit’s decision confirms that this litigation has been baseless from the outset,” Yoo told The Associated Press. “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The 6th Circuit on Tuesday upheld the convictions of two disbarred Kentucky attorneys who attempted to defraud clients of their share of a $200 million settlement compensating those injured by the diet drug fen-phen.

Yesterday’s decision affirmed a 20-year sentence received by Shirley Cunningham Jr., a 25-year sentence received by William Gallion, and a $127 million restitution order against both defendants.

“Testimony revealed that Cunningham and Gallion directed their subordinates to conceal highly important information about the settlement from their clients (including the total amount of the settlement, the number of claimants sharing in it, and the method of allocation) and to offer each claimant substantially less than his or her properly calculated share,” wrote 6th Circuit Judge Ronald Lee Gilman in U.S. v. Cunningham.

In 1998, Cunningham, Gallion and another Kentucky lawyer, Melbourne Mills, filed a product liability class action on behalf a group of injured fen-phen users in Kentucky. The diet drug made by American Home Products (AHP) was found to cause heart-valve dysfunctions in as many as a third of its users.

The three lawyers brought in class action maven Stanley Chesley to help negotiate a settlement with AHP. In 2001, the lawyers struck a $200 million deal with AHP to compensate approximately 431 Kentucky clients.

However, according to court records, the clients only received $74 million (less than 37 percent) of the total settlement amount. On the other hand, the lawyers received generous fees: Mills received $23 million, Cunningham received $26 million; Gallion received $30 million; and Stan Chesley received $20 million.

The apparent unfairness of the distribution spawned a number of investigations that exposed one of the worst cases of attorney fraud in U.S. history.

A Kentucky Bar Association disciplinary investigation eventually resulted in the disbarment of Cunningham, Gallion and Mills. The state judge who approved the fen-phen settlement resigned rather than face removal for allegedly profiting from the deal.

The three Kentucky lawyers were sued in state court by their former clients. As a result of that civil action, the lawyers were ordered to repay $62 million in settlement funds.

Topping off their troubles, in 2007 a federal grand jury indicted Cunningham, Gallion, and Mills for wire fraud. A jury found Mills not guilty. But in 2009, after one mistrial, Cunningham and Gallion were convicted on eight wire fraud counts.

Tuesday’s decision by the 6th Circuit affirmed those convictions. In the decision, Judge Gilman expressed little sympathy for the lawyers’ argument that they lacked any intent to defraud.

Gallion had tried to argue that he and Cunningham had little experience handling complex litigation like the fen-phen case, and simply “got in over our heads.”

The judge was unimpressed by this excuse, explaining that the evidence concerning the handling of the fen-phen settlement “clearly indicate that Cunningham and Gallion knew that what they had done was wrong, and further support the conclusion that they had intended to defraud their clients out of millions of dollars.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Does a landowner have a duty to prevent drivers from making illegal turns onto its property? Friday, the Alaska Supreme Court recognized that such a duty may exist in reviving a wrongful death suit against a Wendy’s fast-food restaurant in Anchorage.

The Wendy’s at issue is located on the northwest corner of East Fifth Avenue and Reeve Boulevard in Anchorage. The building and land are owned by S & S Properties, LLC and the restaurant is operated by a Wendy’s franchisee, North-Wend Foods, Inc.

For Wendy’s customers who arrive in cars, the only legal entrance to the property is from Reeve Boulevard. There are two exits, one on Reeve. The other exit – commonly used by drive-through customers – is on Fifth Avenue.

Even though the restaurant’s Fifth Avenue drive is “exit only,” it is alleged that drivers frequently use it as a shortcut to access the property. This can be a real problem if an eastbound driver on Fifth Avenue attempts wrong-way access to the Wendy’s by making an illegal left turn, crossing the double-yellow line, and crossing two lanes of westbound traffic.

That’s precisely how Shawn Mickelsen met his end. On March 27, 2006, Lawrence Hayward was driving a pickup truck eastbound on Fifth Avenue when he allegedly attempted to enter the Wendy’s parking lot using the drive-through exit. Hayward’s illegal left-hand turn brought him in the path of Mickelsen’s westbound motorcycle. The motorcycle hit the truck and Mickelsen suffered fatal injuries in the collision.

Mickelsen’s estate brought a wrongful death action against landowner S & S Properties and lessee North-Wend Foods, alleging that customers’ use of the Fifth Avenue exit as a shortcut entry to the restaurant was “a structure or artificial condition that posed an unreasonable risk of harm to west-bound traffic.” According to the complaint, the defendants knew or should have known of the dangerous condition and their alleged failure to remedy the hazard breached a duty of care.

A state trial court granted the defendants’ motion to dismiss, in essence concluding that they had no duty to guard against risks created by the illegal conduct of third parties.

But Friday the Alaska Supreme Court decided that Mickelsen’s estate had a viable claim:

Mickelsen’s complaint alleges that Wendy’s created an entry and exit system that had the effect of enticing Wendy’s patrons to enter the premises by making an illegal turn across two lanes of traffic, that Wendy’s customers in fact regularly used the short-cut, that Wendy’s was or should have been aware of such use, and that this dangerous condition led to the fatal accident. “In order to establish a cause of action for negligence, a plaintiff must show a duty of care owed to him by the defendant, a breach of that duty, and that damage was proximately caused by the breach.” Mickelsen’s allegations are sufficient to state a negligence cause of action.

The defendants tried to argue that, under established state precedent, they had no duty to control the conduct of drivers on the road adjacent to their property, even if it was foreseeable that a driver like Hayward posed a risk of harm to a passing motorist like Mickelsen.

But the court observed that “Wendy’s was in a much stronger position to bear the burden of avoiding the risk than drivers in the westbound lanes such as Mickelsen. Such drivers were effectively powerless to prevent third parties such as Hayward from taking the short-cut. Wendy’s, if nothing else, might have altered the design of the Fifth Avenue exit or posted more effective warnings.”

The court underscored the point that it was only deciding that the allegations in the complaint were sufficient to survive a motion to dismiss and that Mickelsen’s estate still had a long way to go to establish the defendants’ liability for Mickelsen’s death.

In sum, Wendy’s had a duty under Webb to maintain its property in a reasonably safe manner in view of all relevant circumstances. This duty applied to those entering and exiting Wendy’s and to those who might be affected by those entering and exiting Wendy’s, pedestrian or otherwise. It may yet be proper for the superior court to dismiss Mickelsen’s claim on summary judgment, or it may be that the case must go to trial. But Mickelsen’s claim cannot be dismissed as a matter of law based on Wendy’s owing no duty of care to passing motorists allegedly endangered by the artificial conditions on Wendy’s property.

(Estate of Mickelsen v. North-Wend Foods)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Sometimes there’s a decision in a trip and fall case that makes you wonder why the court just didn’t dispense with the legal gymnastics and announce a rule of strict liability. Take the case of Norma Waters.

On Aug. 22, 2005, 72-year-old Norma tripped over the metal base of a construction barrier that had been set up at the intersection of Milwaukee and Higgins Avenues in Chicago. Norma broke her wrist in the fall.

According to Norma, the metal base that tripped her up was protruding into the crosswalk. Norma claims that she had succeeded in avoiding two of these metal legs on her passage through the crosswalk, but the third one tripped her up because she was startled by the sound of a jackhammer as she tried to step over it.

Norma filed a personal injury suit against the city of Chicago, but a state trial court came to the not so unreasonable conclusion that the danger posed by the construction barrier was open and obvious.

With her lawsuit dismissed on summary judgment, Norma sought and found some sympathetic judges in the Illinois Appellate Division.

Last month, the appeals court revived Norma’s lawsuit, honing in on her allegation that she was distracted by the sound of the jackhammer. You see, Illinois law recognizes an exception to the open and obvious doctrine which imposes a duty of care when the property owner should reasonably anticipate that an invitee will be distracted from recognizing or avoiding the patent hazard.

The appeals court decided that the distraction exception applied to save Norma’s lawsuit. In concluding that jury issues existed in the case, the court explained:

[D]espite the obviousness of the barricade and its base, [Norma] became distracted upon hearing the loud noise from the jackhammer. … It is reasonable to expect that a defendant who places a barricade over a sidewalk and places a portion of their bases in an area of ingress and egress on a public sidewalk without signs warning people to avoid walking in the area could foresee that people could reasonably become injured and would likely become injured if they used the walkway. … For these reasons, we cannot say, as a matter of law, that [the city] should not have reasonably anticipated the distraction and should not have foreseen the injury to [Norma].

(Waters v. Chicago) 

According to the court, what the city could have done was barricade the entire walkway so that no one could use it until the construction was complete. That may be. In these trip and fall cases, there will always be that one more thing that the property owner could have done to prevent the injury.

On the other hand, all too frequently there’s a handy excuse for the plaintiff’s failure to avoid everyday hazards that most of us manage to avoid without a second thought.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A federal judge last week ended a class action brought by JetBlue passengers who claimed they had to endure hellish conditions when their planes were stranded on an airport tarmac in Connecticut for over seven hours in 2011.

Each of the plaintiffs’ state law claims were preempted by federal law regulating the airline industry, concluded U.S. District Judge Thomas J. McAvoy of the Northern District of New York in Joseph v. JetBlue Airways.

“While claims falling outside of the scope of [Airline Deregulation Act] preemption such as claims for bodily injury or wrongful death, and for which the [Federal Aviation Act’s] savings clause is often invoked, are allowed, state law claims that plainly relate to an air carrier’s prices, routes, or services are expressly preempted,” the judge explained in his April 11 decision. 

The class action was spawned by an Oct. 29, 2011 storm that produced wintry conditions in the Northeast. Numerous flights had to be diverted from New York City-area airports to Bradley International Airport near Hartford, Connecticut. Six JetBlue flights wound up on the tarmac at Bradley International, including two flights that held the two named plaintiffs in the eventual class action. 

Plaintiff Viviane Joseph was stuck on JetBlue Flight 504 (Fort Lauderdale-Newark), and Timothy Moffit found himself trapped on Flight 1013 (Boston-New York). Both plaintiffs are from Florida.

According to the plaintiffs, their planes were stranded on the tarmac at Bradley International for over seven hours. And it was not a happy time.

The plaintiffs alleged that the conditions on the aircraft became “inhumane and intolerable,” with “rolling power outages” leaving the aircraft in “total darkness” for periods of time. JetBlue allegedly ran out of food and drinking water for its passengers. What’s more, there was allegedly no water to operate the lavatories and sinks.

Evidently, the plaintiffs’ fellow passengers also didn’t respond well to adversity. The plaintiffs alleged that “passengers began to argue and fight with one another” and “physical and verbal violence between passengers was rampant.” Things got so out of hand that the captain of Flight 504 called the flight tower and asked for a police officer to come aboard.

It was probably sometime during this descent into hell that it occurred to Viviane Joseph and Timothy Moffit that they would sue JetBlue. And after surviving the experience, that’s exactly what Joseph and Moffit did.

In their class action complaint filed last November, the plaintiffs alleged that JetBlue engaged in unfair and deceptive trade practices in violation of New York law by “unfairly and deceptively” diverting their flights and creating “intolerable and inhuman conditions” on its aircraft.

The plaintiffs also claimed that JetBlue breached the implied covenant of good faith and fair dealing in their contracts with them, particularly citing JetBlue’s passenger bill of rights and the airline’s tarmac contingency plan required under federal regulations. 

Then, of course, were the personal injury claims: false imprisonment, negligence, and negligent infliction of emotional distress. 

JetBlue moved to dismiss, arguing that the plaintiffs’ state law claims were expressly preempted by the Airline Deregulation Act of 1978 and impliedly preempted by the Federal Aviation Act and its implementing regulations. 

In granting JetBlue’s motion to dismiss, Judge McAvoy took his cue from the 2nd Circuit’s decision in Air Transport Association of America v. Cuomo that federal law preempted New York’s Passenger Bill of Rights, which happened to address tarmac delays.

Addressing the deceptive business practices claim in this case, McAvoy said that the plaintiffs “have provided no compelling reason to distinguish New York’s tarmac delay legislation from the substance of their New York General Business Law claim, both of which seek to impose obligations upon airlines to provide certain services during ground delays. Enforcing the state law deceptive practices statute in this case would have the ‘force and effect of law related to a price, route, or service of an air carrier,’ as prohibited by the ADA’s preemption clause.” 

Similarly, the judge found that the plaintiffs’ implied covenant claim “seeks to add to the terms of JetBue’s contractual obligations on matters related to routes and services. The claim, which is functionally indistinguishable from the statutory unfair and deceptive practice claim, would interfere with the ADA’s purpose of deregulating air carriers, and, therefore, is expressly preempted by the ADA.”

In dismissing the plaintiffs’ personal injury claims, Judge McAvoy observed that each tort claim relied on the “facts arising from the tarmac delays and the nature of the services received from JetBlue.”

Accordingly, they could not survive preemption.

“Allowing a common law tort claim challenging an airline’s ability to make decisions such as whether to divert and land a plane safely in the face of a winter storm subjects airlines to a patchwork of obligations that would eviscerate federal regulations aimed at air safety control,” the judge said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com