The 3rd Circuit yesterday gave a primer on the National Park Service’s duty to warn of the dangers of natural hazards in the case of a swimmer attacked by a barracuda in the Virgin Islands. 

Twelve-year-old S.R.P. didn’t have a care in the world on May 9, 2004. The boy and his mom were enjoying the beach at Buck Island. The island is part of the National Park System and is located off the northeast coast of St. Croix in the U.S. Virgin Islands.

S.R.P. was sitting on the beach with his feet in shallow water when he was attacked by a barracuda. Evidently, the barracuda mistook S.R.P.’s toes for prey. It’s not a common occurrence – barracudas don’t usually attack humans – but it does happen.

The boy suffered a severely lacerated foot in the attack. His third and fourth toes were nearly severed and surgery was required to save them.

Because the attack happened on government land, S.R.P. wants the U.S. taxpayer to pay his medical bills and otherwise compensate him for his troubles. So S.R.P. through his mom sued under the Federal Tort Claims Act, alleging that the Park Service negligently failed to warn of the dangers that barracudas pose to shallow water bathers.

Now, the Park Service’s signage and informational brochures for Buck Island warn visitors that “[b]arracuda and sharks, if encountered, should be treated with caution but are not usually aggressive toward snorkelers.”

But S.R.P. claimed that this warning wasn’t specific enough for those enjoying the shallow waters of the beach.

The Park Service countered that its warning was more than adequate, particularly in light of the fact that there was only one other recorded instance of a barracuda biting a human in the vicinity of Buck Island in the previous 22 years, and the victim in that incident was a fisherman offshore.

The U.S. District Court for the Virgin Islands dismissed the case, concluding that the government was immune under the discretionary function exception to the FTCA.

S.R.P.’s appeal prompted the 3rd Circuit to conduct an in-depth examination of the discretionary function exception in the context of the government’s obligation to warn of the dangers of natural hazards. Yesterday’s decision by the 3rd Circuit upheld the dismissal of S.R.P.’s lawsuit.

Circuit Judge D. Michael Fisher authored the opinion. As a threshold issue, the judge concluded that there was no statute, regulation, or other policy that required the Park Service to warn of hazardous conditions in a specific manner. He explained that this meant that Park Service officials “are explicitly vested with broad discretion regarding the manner in which to warn the public of dangerous conditions in national parks.”

Next, the judge tackled the issue of whether the discretionary judgment afforded to the Park Service was of a kind that the FTCA’s discretionary function exception was designed to shield. Fisher decided that the warnings at issue in this case plainly fell within the scope of the policy making that the Act was designed to protect:

[K]nowing that it could not warn of every potential hazard at Buck Island, the [Park Service] decided to focus on those it reasonably believed posed the most significant threat to visitors. Moreover, too many warning signs and brochures “would inevitably reduce the impact of the individual warnings on the public,” as would excessive warnings on any individual sign. Once an agency identifies a hazard, it “must then balance that risk against the cost of warning about that hazard and the possibility of overloading visitors with unnecessary warnings.” Such a judgment represents precisely the type of policy choice that the discretionary function exception prohibits us from second-guessing.

Fisher did throw the plaintiffs’ bar a bone, recognizing that “where the Government is aware of a specific risk of harm, and eliminating the danger would not implicate policy but would involve only garden-variety remedial measures, the discretionary function exception does not apply.”

But the judge decided that this rule didn’t help S.R.P., explaining that the record supported the district court’s conclusion that the Park Service was not aware of a specific risk.

“The key question under [our precedents] is not whether the Government was aware of danger in the most general sense, but whether it was on notice of a specific hazard,” he said. “With no shoreline barracuda attacks in the twenty-two years preceding the attack on S.R.P., the District Court did not err in finding that [Park Service] officials had no knowledge that such an attack was likely.” (S.R.P. v. National Park Service)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

An Alabama woman will get another chance to convince a jury that Yamaha consciously disregarded a specific risk of arm and leg injuries in Rhino ATV rollovers, thanks to a decision by the state supreme court last month.

Jacklyn McMahon suffered arm and leg injuries in July 2007 when her 2007 Yamaha Rhino 660 rolled over as she attempted to make a right-hand turn. Her arm and leg injuries allegedly occurred as she extended them to support herself and/or the vehicle during the rollover.

The Yamaha Rhino has been the object of numerous lawsuits across the country, with plaintiffs’ attorneys claiming the four-wheeled all-terrain vehicle is prone to rollovers at even slow speeds because of its top-heavy narrow design, small tires and side-by-side seating.

In her lawsuit, McMahon sued Yamaha for design defect, common-law negligence and wantonness. In 2010, an Alabama jury found in favor of Yamaha on her design defect claim, but the negligence and wantonness claims never made it to the jury because the trial court granted Yamaha’s motion for judgment as a matter of law.

Last month, the Alabama Supreme Court agreed that McMahon’s common-law negligence claim failed because, implicit in its design defect verdict, the jury had already concluded either that the Yamaha Rhino was a safe product or that the accident was the result of McMahon’s contributory negligence. 

But the state high court decided that McMahon’s wantonness claim should have gone to the jury. This was so, the court explained, because there was sufficient evidence that Yamaha made various conscious decisions throughout the development and testing process of the Rhino – and after initial reports of Rhino accidents as well – knowing that arm and leg injuries like those suffered by McMahon would likely result from those decisions. 

In particular, the court noted a 2001 internal e-mail in which a Yamaha employee acknowledged that Rhino accidents would likely be of the rollover variety, and further identified the specific risk of arm/wrist and leg/ankle injuries when belted occupants tried to support themselves and/or the vehicle as it rolled over.

Yamaha tried to marginalize the import of this e-mail by pointing out that McMahon allegedly wasn’t wearing a seatbelt at the time of her accident, but the court nonetheless concluded that there was sufficient evidence for a jury to decide whether the company engaged in wanton misconduct.

“[W]e conclude that there was substantial evidence introduced at trial from which the jury could have concluded that the Yamaha defendants had specific knowledge of the risk of arm and leg injuries posed by a rollover in the Yamaha Rhino and that they wantonly failed to address that risk in a timely manner,” the court said. (McMahon v. Yamaha Motor Corp.)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

An ERISA plan wrongly terminated the health insurance of a UPS employee’s wife after learning that she had been born a male. That’s what a federal judge in Minnesota decided last week.

“It was not the [plan’s] role to impose its own definitions of gender and marriage upon its participants,” wrote U.S. District Judge Michael J. Davis in Radtke v. Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund.

On Aug. 10, 2005, Calvin Radtke married Christine Alisen Jensen in a civil ceremony at the Goodhue County Courthouse in Red Wing, Minnesota. Calvin is an employee of UPS and he enrolled Christine as his spouse under Union Local 638’s health plan.

Christine was born Richard William Barker in Prairie du Chien, Wisconsin, in 1965. He was diagnosed with gender identity disorder in the 1980s and began the process of changing his sex.

In 1986, a Minnesota judge granted Richard Barker’s request to change names to Christine Alisen Jensen. In 1988, Christine received gel breast implants. In 2003, Christine underwent sex-reassignment surgery in Colorado.

Christine officially completed the process just before her marriage to Calvin by having Wisconsin issue a new birth certificate reflecting her name change and designating her sex as female.

That should have been good enough for the Union Local 638 health plan, but trouble arose when one of Christine’s gel breast implants ruptured in 2008. Christine’s doctor submitted a pre-authorization for a gel implant replacement and the plan learned for the first time that she was a transgender individual. The plan denied the gel implant replacement request under an exclusion for “charges for sex transformation surgery … and any related expenses.”

Moreover, the revelation of Christine’s transgender status started the wheels turning within the plan’s board. The board authorized the plan’s attorney to look into whether Christine was entitled to spousal coverage under the terms of the plan. The attorney concluded that, because under Minnesota law “marriage between persons of the same sex” is “void,” Christine was not the legal spouse of Calvin.

Accordingly, the plan terminated Christine’s benefits on April 19, 2010.

Christine eventually sued in federal court for wrongful denial of ERISA benefits. Last Monday, Judge Davis handed Christine a complete victory, granting her motion for summary judgment and ordering that she be reinstated as a plan participant as of April 19, 2010.

The basic mistake made by the Union Local 638 health plan was that it failed to recognize that Christine had jumped through all the legal hoops necessary to change her sex, including getting Wisconsin to issue her a new birth certificate. The judge explained:

Here, Goodhue County issued a marriage certificate when there existed a valid Wisconsin birth certificate declaring that Plaintiff was female and an unchallenged Goodhue County District Court Order declaring that Plaintiff was female. For Goodhue County to have denied the Radtkes’ marriage certificate, the county would have had to disregard both Wisconsin and Minnesota law. The Court concludes that all indications of the State of Minnesota’s intent indicate that the State recognizes the Radtkes’ marriage as a marriage between two opposite-sex individuals.

In ruling for Christine, Judge Davis explicitly rejected the notion that he should defer to Title VII cases that stand for the proposition that “sex” is immutably determined at birth:

Here, Ms. Radtke is anatomically and hormonally female. It would be wholly inappropriate for this Court to invent a narrow federal definition of “sex” based on the sex assigned at birth and impose that construction on a Minnesota statute. Rather, in attempting to ascertain whether the State of Minnesota views Ms. Radtke as female for the purposes of its marriage statute, the Court concludes that it is logical to look to “the designation appearing on the current birth certificate issued to that person by the State in which he or she was born,” and to the official government documents issued by the State of Minnesota, including court orders and marriage certificates and licenses.

 – Pat Murphy

patrick.murphy@lawyersusaonline.com

Let’s say Carol Brady recently met an untimely end under the wheels of a semi and Mike Brady had died years earlier. Could Marcia, Jan and Cindy keep Greg, Peter and Bobby from sharing in the recovery from Carol’s wrongful death?

That’s sorta what the Washington Supreme Court had to figure out yesterday.

Here’s the story of a lovely lady named Audrey Blessing who in 1964 was raising three kids from a previous marriage all on her own. We don’t know if all of them had hair of gold, but that’s doubtful.

Here’s the story of a man named Carl Blaschka who was raising four kids of his own without the benefit of a wife. Three of his kids were girls, so we know that Blaschka was in way over his head.

One day in 1964, the lady met the fellow and they knew it was much more than a hunch that they would somehow form a family, at least that’s what they hoped. Blaschka and Blessing did stay true to each other, staying married and raising their kids together for twenty years before Blaschka died in 1994.

But apparently there were simmering fractures in The Blaschka-Blessing Bunch. The bad blood rose to the surface when Blessing was killed in a 2007 car accident involving a truck. Blessing’s estate spearheaded by the Blessing children sued the truck driver for wrongful death.

The Blaschka children wanted in on the lawsuit. Although Blessing never adopted them, by all accounts she and the Blaschka children had a close relationship. That was underscored by the fact that Blessing left a portion of her estate to the Blaschka children, identifying them as “stepchildren” in her will.

But were the Blaschka children “stepchildren” with the status of statutory beneficiaries under Washington’s wrongful death law?

There must have been a quiet schemer like Jan Brady among the Blessing children because they came up with the novel argument that, since Blaschka had predeceased Blessing, the Blaschka children were not Blessing’s stepchildren at the time of her death in the auto accident.

Remarkably, a state appeals court agreed and suddenly the Blaschka children were on the outside looking in of the Blessing wrongful death suit.

Yesterday, the Washington Supreme Court took a look at this family feud and, displaying the street smarts of Alice the Housekeeper, decided that the Blaschka children had not lost their status as stepchildren at the death of their father.

In reaching its conclusion that the Blaschka children were statutory beneficiaries under the state’s wrongful death statute, the court looked to its previous decisions on similar issues arising in workers’ compensation, life insurance and estate tax cases.

The court in those cases reasoned that nothing in the dictionary definition of “stepchild” indicates that a step-relationship does not survive the death of the children’s natural or adoptive parent.

“Applying that analysis here, the Blaschka children became Blessing’s stepchildren upon the marriage of their father and Blessing. Their step-relationship continued even though their father died before Blessing. We hold that the Blaschka children retained their ‘stepchildren’ status under [Washington’s wrongful death statute,]” the court said. (In re Estate of Blessing)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Honda couldn’t introduce evidence that an ATV rider wasn’t wearing a helmet at the time his steering allegedly locked up and he was thrown from the vehicle, a federal judge in Montana ruled last week.

“Particularly in light of the fact that helmet use is not legally required in this state, an ATV manufacturer can expect, or reasonably foresee, that some Montanans will operate their ATVs without wearing helmets,” wrote U.S. Magistrate Judge Jeremiah C. Lynch in Johnson v. American Honda Motor Company.

The product liability case involved a 2007 Honda TRX 420FE four-wheeled, all-terrain vehicle that Zane Johnson purchased in Missoula, Montana in March 2007. On July 4, 2007, Johnson was driving the ATV on a forest road near Zortman when he failed to negotiate a right-hand turn. Johnson and the ATV flew off the road and tumbled down a steep embankment. Johnson suffered brain damage and spinal injuries in the crash. 

According to Johnson, the steering on the ATV locked up just before the crash, preventing him from making the turn. Johnson also said he had noticed steering problems earlier in the day.

In June 2010, Johnson sued Honda in Montana state court, asserting claims for strict product liability and breach of express warranty. In his complaint, Johnson alleged that the ATV was defective in that “during assembly an expandable clip that should have locked the right side front axle to the CV joint during assembly had not been properly assembled, resulting in a defective condition.”

Honda removed the case to federal court and on March 26 Judge Lynch decided that the testimony of Johnson’s expert was sufficient to place a manufacturing defect claim before a federal jury. 

The expert, Rob Larson, is an assistant professor in the Department of Mechanical and Industrial Engineering at Montana State University. His theory was that the steering problem reported by Johnson was due to the improper assembly of certain components of the ATV’s right-front axle.

The judge found that his testimony was reliable and sufficient to defeat Honda’s motion for summary judgment:

[A]s it now stands the record contains two competing expert opinions – one of which is that the right front axle was fully inserted into the constant velocity joint at the time of manufacture as evidenced by the witness marks, and one of which is that the axle was not fully inserted into the constant velocity joint at the time of manufacture as evidenced by the severe wear patterns. It will be for the trier of fact to determine what weight to give each expert’s opinion.

This wasn’t the only good news for Johnson in last’s week’s decision. The judge further granted his motion in limine to exclude evidence that he was not wearing a helmet at the time of the accident.

Under Montana law, contributory negligence is generally not a defense to a strict product liability claim. However, state product liability law does provide an exception for the affirmative defenses of assumption of risk and misuse.

According to Honda, evidence that Johnson failed to wear a helmet was admissible on the issues of assumption of risk and misuse.

But Judge Lynch ruled to exclude evidence of helmet non-use at trial, pointing out that Montana does not require ATV users to wear helmets. The judge explained:

In Montana, the defense of misuse is not available if the manufacturer can reasonably foresee that its product will be misused in a certain fashion. Particularly where state law does not require the use of a helmet, an ATV manufacturer can reasonably foresee that its product will be misused by drivers who do not wear helmets. The fact that Honda included instructions and warnings in an attempt to guard against that type of misuse does not make it unforeseeable. If anything, the fact that Honda saw fit to include those instructions and warnings underscores how foreseeable it is that a person might operate an ATV without a helmet.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A Utah woman died hours after giving birth due to a rare complication involving the entry of amniotic fluid into her circulatory system. Was her death by “external means” for purposes of triggering accidental death benefits?

Robert Mitchell’s wife Mary Ann gave birth to a daughter on Jan. 18, 2007. Unfortunately, there was a complication.

Mary Ann developed heavy, postpartum bleeding that her doctors were unable to stop through surgery. The surgery included a hysterectomy. Despite the surgical measures and several blood transfusions, Mary Ann died of cardiac arrest less than seven hours after giving birth.

Mary Ann’s doctor concluded that she died of “postpartum hemorrhage with disseminated intravascular coagulation, most likely caused from amniotic fluid embolism.” Her death certificate indicated that she died of natural causes related to an amniotic fluid embolism.

According to the medical literature, an amniotic fluid embolism is a rare childbirth complication that involves the entry of amniotic fluid, fetal cells, hair, or other debris into the mother’s circulatory system. The introduction of the foreign matter into the mother’s system triggers an allergic reaction that results in cardiorespiratory collapse.

The childbirth complication is estimated to be the fifth most common cause of maternal mortality, though  recent studies indicate that the condition occurs in only 1 in 20,464 deliveries.

Mary Ann was covered by an accidental death policy administered by Hartford Life and Accident Insurance Company. The policy is an employer-sponsored benefit governed by ERISA and provides for payment “[i]f because of accidental Injury an Employee or a Dependent covered by this insurance sustains [Loss of Life (Accidental Death)] within 180 days after the date of an accident.” “Injury” is defined as “accidental bodily injury causing loss [of life] directly and independently of all other causes.”

Mary Ann’s life was insured by the policy to the amount of $422,500.

Mitchell filed a claim with Hartford, contending that the amniotic fluid embolism suffered by his wife was an accidental bodily injury within the meaning of the policy.

Under applicable Utah law, to show bodily injury a claimant must show some form of “external violence” without which the injury would not have occurred.

Mitchell argued that an amniotic fluid embolism is an event of external violence because it involves amniotic fluid or fetal debris entering the maternal circulatory system.

Hartford denied Mitchell’s claim, treating an amniotic fluid embolism is an internal complication associated with childbirth. Mitchell responded by filing a breach of contract suit in Utah state court. Because the plan is governed by ERISA, Hartford was able to move the lawsuit to federal court.

Late last month, U.S. District Judge Clark Waddoups decided that Hartford had the better of the argument and granted the insurance company’s motion for summary judgment.

Waddoups was open to Mitchell’s contention that the entry of amniotic fluid and fetal cells into the maternal bloodstream may be considered as a “violent” occurrence for purposes of Utah law.

However, the judge rejected the husband’s argument that an amniotic fluid embolism could be characterized as involving external violence.

“Amniotic fluid and fetal cells are generated by a pregnant woman within her own body,” the judge explained. “The transfer of that matter from one area of the body to another is not an external event.”

Moreover, the judge saw no evidence in the record that would allow him to conclude that the amniotic fluid embolism which caused Mary Ann’s death was triggered by any external means:

There is, for example, no evidence in the administrative record to support a finding that the exploratory surgery or the hysterectomy contributed to the amniotic fluid entering Mary Ann’s circulatory system. Indeed, it appears that the processes that led to her death were underway well before the life-saving procedures were attempted. Therefore, whether or not the death was accidental and caused directly and independently by the embolism, it did not involve a bodily injury within the meaning of the insurance policy.

(Mitchell v. Hartford Life and Accident Insurance Company)

The groundwork thus laid, the judge ruled that Hartford’s decision to deny Mitchell’s claim did not constitute a breach of contract.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A permanently disabled Ohio police officer probably never dreamed that he was jeopardizing his workers’ compensation benefits when he tried to make some extra cash on the side by selling Oxycontin.

But last week the Ohio Supreme Court decided that even illegal activity can be deemed inconsistent with an alleged disability.

In 2004, Donald F. McNea Jr. was awarded permanent total disability compensation for injuries suffered while employed as a police officer by the city of Parma. Under Ohio law, in order to be eligible for PTD compensation, a claimant must be incapable of performing, sustained remunerative work.

The end of McNea’s career in law enforcement was not his only problem. According to Parma police records, in 2003 someone tipped off the department that McNea was selling prescription medications. So at the same time McNea went on disability he was the target of a full-blown undercover investigation.

Over the next two years, McNea had numerous incriminating conversations with informants. As a result of those conversations, between Oct. 1, 2005, and Dec. 23, 2005, McNea made four recorded Oxycontin sales to informants, netting $6,200.

The trap snapped shut on Dec. 23, 2005 when police arrested McNea. He later pled guilty to four felony charges and was sentenced to three years in prison.

As if that wasn’t bad enough, the Ohio Bureau of Workers’ Compensation reopened his case. Pursuant to state law, the bureau terminated McNea’s PTD benefits as of the date of his incarceration, Sept. 5, 2007. But that was only the first shoe to drop.

In addition, the bureau determined that McNea’s efforts to sell drugs showed that he was capable of performing, sustained remunerative work. So it declared that all PTD compensation paid after McNea’s first confirmed drug sale on Oct. 1, 2005, constituted an overpayment. So McNea now owes the state two years worth of benefits.

Thursday, the Ohio Supreme Court upheld the bureau’s determination that McNea’s selling of Oxycontin over a period of months constituted sustained remunerative employment, sufficient to require a termination of his permanent total disability benefits.

“In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005,” the court explained. “The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.” (State ex rel. McNea v. Ohio Industrial Commission)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A federal judge’s decision this week illustrates the problems lawyers will have making the case that the failure of school officials to prevent bullying amounts to a violation of constitutional rights.

By all accounts, Dana Reyna’s daughter, K.M.R., had two horrible years when she attended Kenneth Cooper Middle School between 2007 and 2009. The school is part of the Oklahoma County Independent School District and is located in Oklahoma City, Oklahoma.

K.M.R. missed the beginning of sixth grade in the fall of 2007 due to illness. When she returned to school in January 2008, she had trouble fitting in, to say the least.

According to Reyna, her daughter was subjected to ridicule and threats by other students, so much so that K.M.R.’s psychotherapist diagnosed her with severe depression and recommended that she be removed from school.

After spending the remainder of sixth grade in a private school, K.M.R. returned to Kenneth Cooper Middle School for seventh grade in the fall of 2008. Reyna alleges that, upon her return, K.M.R. was tormented by certain of her classmates, experiencing such humiliations as having her keys thrown in a toilet, lunch card cut up and home toilet-papered.

K.M.R. also allegedly became the subject of classmates’ vicious MySpace posts, although school officials ultimately determined that the posts didn’t cross the line into cyberbullying. School officials also intervened on K.M.R.’s behalf when Reyna complained of the bullying, talking to the students involved and in at least one instance issuing a detention.

However, the bullying continued. Finally, Reyna removed K.M.R. from school for good in May 2009 and moved out of the school district. The final staw came when Reyna learned that her daughter allegedly had become the object of a “hate club” organized by other students.

In October 2009, Reyna filed a §1983 suit in Oklahoma state court against the school district, the school superintendent, an assistant superintendent, the principal, an assistant principal, a counselor, a nurse, and four teachers. Reyna alleged that eight students bullied K.M.R. at school and at non-school events, causing the girl to suffer severe depression and migraine headaches.

Reyna’s bullying claim was predicated on the “state-created danger” theory. She alleged that school officials and employees failed to take appropriate steps to protect K.M.R. from her tormenters.

The defendants removed the case to the U.S. District Court for the Western District of Oklahoma and the school district succeeded in having the §1983 claim against it dismissed. U.S. District Judge Timothy D. DeGiusti granted the district’s motion on the basis that Reyna’s complaint failed to allege that the school district had an official policy endorsing bullying or refusing to address bullying, or had a custom or practice of allowing bullying.

Thursday, Judge DeGiusti granted summary judgment to the individual defendants in the case, concluding that Reyna failed to allege sufficient facts from which to establish the school employees’ liability under the “danger creation” theory. The judge explained: 

The facts do not suggest school employees acted in a way that created a danger of bullying to K.M.R. or increased her vulnerability to bullying, nor do the facts establish that any employee consciously disregarded a substantial risk of serious harm to K.M.R. Further, Plaintiffs have failed to present properly-supported facts to establish conduct by school employees that would satisfy the conscience-shocking standard established by existing case law. At most, Plaintiffs have put forth facts suggesting that some school employees may have been negligent in not more appropriately addressing K.M.R.’s medical needs or her mother’s complaints of bullying. However, “negligent government conduct is insufficient to prove liability under §1983.”

(Reyna v. Oklahoma County Independent School District No. 1) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The 7th Circuit yesterday revived a “class of one” civil rights suit brought by a man who was issued 24 sham parking tickets by Chicago police.

“Somewhere between the first several and the twenty-fourth bogus tickets from officers of the same police unit, [the plaintiff’s] grievance rose to the level of an actionable class-of-one discrimination claim,” wrote Circuit Judge David F. Hamilton in Geinosky v. Chicago. 

The plaintiff in the case is Mark Geinosky. Over a fourteen-month period beginning in October 2007, Geinosky received  24 parking tickets for his Toyota in the mail. All were written by officers of Unit 253 of the Chicago Police Department.

The tickets were suspect right off the bat.

They typically arrived in batches of three or four and, when compared, sometimes indicated that his vehicle was parked in two spots at the same time. Thirteen tickets issued by one particular officer had sequential citation numbers and concerned alleged violations that occurred at exactly 10:00 p.m. on the dates they were issued. What’s more, ten of the tickets were issued during periods when Geinosky’s Toyota was in the possession of his estranged wife.

In fact, Geinosky suspects that his now ex-wife knew someone in Unit 253 and that she inspired a campaign of harassment against him, but he thus far has been unable to prove it and she denies it.

Geinosky managed to show that none of the tickets were legitimate and had them dismissed, but it took seven trips to court to clear up the matter. He also complained to the Chicago Police Department, but his complaints fell on deaf ears until he contacted The Chicago Tribune and his plight started to get some play in the local media.

The newspaper reported last November that a Chicago PD internal investigation had resulted in a recommendation to fire several officers from Unit 253.

While he may get some satisfaction that the officers involved are now in hot water, what Geinosky really wants is compensation from the city of Chicago for all his troubles. So he sued the city under §1983, asserting a “class-of-one” equal protection claim.

The district court dismissed his lawsuit, concluding it was fatally flawed because Geinosky did not specifically identify a similarly situated individual who was treated differently.

But yesterday, the 7th Circuit decided that, in a straightforward official harassment case such as this case, it would serve no purpose to force a plaintiff to name a similarly situated person who was not so severely harassed. Judge Hamilton explained:

[R]equiring Geinosky to name a similarly situated person who did not receive twenty-four bogus parking tickets in 2007 and 2008 would not help distinguish between ordinary wrongful acts and deliberately discriminatory denials of equal protection. Such a requirement would be so simple to satisfy here that there is no purpose in punishing its omission with dismissal. Here, the pattern and nature of defendants’ alleged conduct do the work of demonstrating the officers’ improper discriminatory purpose. Geinosky’s general allegation that defendants “intentionally treated plaintiff differently than others similarly situated” is sufficient here, where the alleged facts so clearly suggest harassment by public officials that has no conceivable legitimate purpose. To require more would elevate form over substance.

The judge was unsympathetic to the city’s contention that allowing Geinosky’s lawsuit to proceed would invite a flood of similar lawsuits:

The extraordinary pattern of baseless tickets that Geinosky received will remain rare, we trust, particularly now that the Police Board and the courts are involved. The litigation floodgates should not open for the additional reason that truly random law enforcement, as when an officer picks one of many speeding cars to stop and ticket, provides a rational basis for the selection even if the ticketed driver feels she was unfairly singled out. Officers have discretion for powerful reasons, not the least of which is the impossibility of ticketing all traffic or parking violations and the ineffectiveness of ticketing none. Because officers must choose among violators, random selection is certainly rational. We are not inviting every driver with a couple of parking tickets (even invalid ones) to sue in federal court.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A Utah attorney probably felt like he dodged a bullet when he only received a suspension after being caught playing games with a client’s settlement funds. Unfortunately for him, the Utah Supreme Court had yet to weigh in.

Clayne I. Corey’s long road to losing his law license began in 1999 when Maxine Stager retained him to represent her in a personal injury case under a typical 33.3 percent contingent fee agreement.

The case settled in February 2000 and Stager received a $122,500 check from the insurance company that was made out to both her and Corey.

According to court records, things started to go awry when the entirety of Stager’s settlement award was deposited into Corey’s operating account instead of his client trust account. Despite knowing that the settlement funds were in his operating account, Corey continued to write checks against the balance.

This was really bad news for Stager because it seems that virtually all the money in Corey’s account was from the settlement check. The balance in Corey’s operating account dropped from $128,916.14 in February 2000, to only $2,909.12 by the end of June of that year.

Of course, Stager wanted her money. Corey tried to mollify Stager for awhile by sending her monthly payments of $500. The lawyer later allegedly tried to muddy the waters by proposing the creation of a special needs trust for Stager, and still later proposing that Stager take his promissory note.

But eventually Stager had had enough and sued Corey to recover the balance of her settlement money, some $50,371.21, plus interest.

In 2009, the Utah Office of Professional Conduct got wind of Stager’s lawsuit to recover the missing money, and Corey was in big trouble.

Utah is unusual in that a state trial court instead of a disciplinary panel hears the type of complaint that the Office of Professional Conduct brought against Corey. The trial court in Corey’s case took pity, buying his claim that his misconduct was caused by mental illness, purportedly related to a non-cancerous, arachnoid cyst in his brain that wasn’t diagnosed and surgically removed until 2009.

And in an amazing act of legal jujutsu, the trial court determined that Corey had not acted with the requisite wrongful intent to misappropriate client funds for raising a presumption in favor of disbarment under state law. So instead of disbarment, the trial court ordered that Corey be suspended (the length of the suspension is not mentioned in the case).

Moreover, since Corey still owed Stager her money, the trial court stayed the lawyer’s suspension to facilitate his payment of restitution.

Corey must have been overjoyed with this result, thinking he had escaped a professional death sentence by the skin of his teeth.

But the Office of Professional Conduct appealed the trial court’s decision to the Utah Supreme Court, arguing the presumptive discipline should have been disbarment.

Yesterday, the state high court decided that the trial court had it all wrong and that disbarment should indeed be Corey’s fate.

Justice Thomas Lee wrote the court’s opinion and, on the issue of intent, he explained that it was clear from the record that Corey intended to benefit himself in misappropriating Stager’s settlement funds:

Corey concedes that he knew that Stager’s funds had been deposited into the firm’s operational account rather than a client trust account. And he does not assert that he misdeposited Stager’s funds or that he unwittingly drew against his newly inflated operational account. Corey was aware that the settlement funds were located in the firm’s operational account, just as he was aware that the funds significantly increased the account balance. Corey therefore knew that every time he drew a check against that account balance, he was using his client’s funds to cover firm expenses.

Corey made a feeble attempt to argue that intent could not be inferred because there was no proof as to how exactly he used the money.

This argument fell flat with Justice Lee, who explained that ”a lawyer’s use of client funds is intentional whether the money is spent on a new Harley, food for orphans, or the quills and ink for his firm. In any case, the effect is the same—counsel has knowingly stolen his client’s funds with the intent to spend that money in a manner chosen by him and not the client.” 

With the presumption in favor of disbarment firmly established, the justice turned to evidence of mitigation and found that the trial court had been far too indulgent in entertaining Corey’s attempt to blame everything on mental illness and cyst in his brain. Lee wrote:

Even if the seeds of Corey’s cyst had been planted from before childhood, there is simply no evidence before us that the cyst existed or significantly impaired Corey’s cognitive abilities when he took on Stager’s case. There is, moreover, no evidence to suggest that Corey’s impairment would have prevented or did pre-vent him from developing the requisite intent to misappropriate Stager’s funds for his own benefit.

Finally, Lee expressed deep skepticism of Corey’s claim that, ever since the removal of his cyst, his behavior has been exemplary:

This remarkable turnaround does not strike us as compelling mitigation evidence, however. It is no surprise that a lawyer faced with disbarment – the proverbial professional death-sentence – has seen the light and changed his ways. Furthermore, although Corey professes that since the removal of his cyst he continues to get better, his actions so far suggest that he feels the same. Corey’s failure to repay Stager’s funds after more than a decade of holding on to them highlights just how easy it is to excuse his behavior now that he has something to blame. He has had ample time and opportunity to repay the funds owed to Stager, but to date he has given her nothing.

(In re Discipline of Corey)  

– Pat Murphy

patrick.murphy@lawyersusaonline.com