Monthly Archives: July 2009

8115 – The Court Chases an Ambulence

 

If a hospital emergency room either won’t let you in or makes you get out, you can sue under something called EMTALA, which stands for the Emergency Medical Treatment and Active Labor Act.  But how about if letting somebody out results in harm to a third person?  This tragic case involved a husband who’d been admitted to an emergency room with psychiatric problems.  Ten days later he hunted down his wife and killed her.  The wife’s estate sued alleging the hospital violated EMTALA by releasing the husband from the hospital prematurely.  The law says any individual who suffers personal harm can obtain damages.  The hospital argued the word “individual” means the patient, not third persons.  The Court that first heard the case agreed, but the Sixth Circuit reversed holding the words “any individual” mean patient and non-patient alike.  The hospital also argued that EMTALA only covers cases where proper emergency care wasn’t given, but the Court said the patient obviously shouldn’t have been released when he was.  So EMTALA rules and liability has come to life.

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Moses v. Providence Hospital and Medical Centers, Inc., Sixth Circuit Court of Appeals, No. 07-2111, April 6, 2009, U.S. Law Week, Vol. 77, No. 40, Pg. 1641, 4-21-09

8114 – ICANN, You Can’t

 

You get notice your domain name is about to expire, so you simply renew it.  Right?  It sounds simple, but the world of domain names on the internet just got a lot more complicated as the result of the case of the Coalition of ICANN Transparency v. Verisign.  ICANN stands for the Internet Corporation for Assigned Names and Numbers and is a non-profit oversight body that coordinates the internet domain name system.  ICANN contracted with Verisign which is the sole operator of the dot com and dot net domain name registries and getting a fee for each name.  The problem is there was no real competition for the Verisign contract and the Coalition, which includes website owners sued, arguing that Verisign and ICANN conspired to restrain trade.  The Ninth Circuit Court of Appeals has held the case can go forward and that nonprofit, standard setting organizations, such as ICANN, are covered by the antitrust laws and have to play fair.  So, we’ll still be able to register our domain names, but those who hold domain over the domain will have to cross the T’s and dot the net.

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Coalition for ICANN Transparency, Inc. v. Verisign, Inc., Ninth Circuit Court of Appeals, No. 07-16151, June 5, 2009, Schroeder, J., U.S. Law Week, Vol. 77, No. 48, Pg. 1763, 6-16-09

8113 – One Man’s Trash is a Policeman’s Treasure

 

If you stash grass in your trash, can they trash your trash to get the grass?  This case began when an informant told a sheriff’s deputy that he’d bought marijuana from Darrin at his home on ten occasions and that Darrin kept a stash of about ten pounds of marijuana, sometimes making sales every 15 minutes.  This caused two agents to go to Darrin’s home where they removed a trash bag from one of his trashcans.  After they found marijuana cigarette butts and other residue, they secured a warrant to search Darrin’s home where they found marijuana, LSD, psilocybin mushrooms and cocaine.  Darrin filed a motion to suppress the evidence claiming it was all the fruit of the poisonous tree, that the police had no right to search his trash, in which he had a reasonable expectation of privacy.  But the Court held it’s common knowledge that plastic garbage bags left at the curb are readily accessible to animals, children, scavengers, snoops, and other members of the public, including the police.  As for privacy in your trash, well, the Court basically said that’s rubbish.

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Darrin Berekman v. State of Wyoming, Wyoming Supreme Court, No. S-08-0119, February 5, 2009, Waldrip, J.

8112 – One Case, Over Easy

 

You can blow your own horn but it could really cost you.  This case involved horn honking, chickens and angry neighbors, and it all began when Helen got a letter from the neighborhood homeowners association informing her her chickens were illegal and violated the master deed.  Helen, who really loved her chickens, immediately suspected fowl play and confronted the association president and two other neighbors about the letter.  After John admitted he had complained about the chickens, he was awakened at 5:15 A.M. by a loud car horn excessively honking in front of his house.  Sure enough, it was Helen, who ended up being arrested and convicted for violating an ordinance that makes it a crime to honk a horn for other than public safety reasons.  She appealed claiming honking a horn is free speech, but the Court said it was harassment plain and simple.  So the chickens have come home to roost, and horn honking ordinances are constitutional.  So, honk if you agree with this case or, on second thought, maybe you’d better not.

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State of Washington v. Helen D. Immelt, Court of Appeals of State of Washington, No. 60991-2-1, Division One, Grosse, J.

8111 – Making Crooked Things Straight

 

Do you know what lawyers and orthodontists have in common?  Well, they both work on retainers.  But retainers for lawyers have just run into serious trouble and if a lawyer tells you his fee or retainer is nonrefundable, you can tell him or her to take a hike.  Several State Bar Ethics Committees have recently announced it’s misleading and unethical for lawyers to characterize a fee or retainer as being nonrefundable.  The old rules allowed nonrefundable retainers provided the fee was fully explained to the client and was not excessive.  The new rules say a lawyer must refund any advanced payment of a fee that has not been earned.  The only exception is where a retainer is intended to insure the attorney is exclusively available to the client and cannot represent the opposing side, such as where a husband retains the best divorce lawyer in town so his wife can’t.  So while orthodontists can still work on retainers, lawyers can’t work and, by the way, the new rules have teeth in them.

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Alaska Bar Association Ethics Committee, Op. 2009-1, May 5, 2009, U.S. Law Week, Vol. 77, No. 48

8110 – The Court Branches Out

 

Before you set up your tent, you’d better canvass the trees.  The Aldridge family decided to go camping in a state campground, specifically requesting a campsite with shade.  Right after they set up camp, it started raining and when they heard a severe storm front was on the way, they decided to go into the tent to change clothes to leave.  But as they were taking off, in preparation of taking off, a huge dead tree branch broke off and came crashing down on the tent, seriously injuring Mr. and Mrs. Aldridge.  The Court noted the limb was huge, and if the entire tree had fallen, it would’ve covered the length of the entire campsite.  A family member testified that shortly after the incident a conservation officer told them the tree was dead and should’ve been removed but added “we can’t get them all.”  The family sued, but the Court, refusing to go out on a limb, held that while states have a duty to the general public, they do not have a duty to any individual member of the public and the mere fact the family relied on proper tree maintenance did not create a special duty of care.  So pay attention where you stake out your tent, because if the weather causes a flap, you may not be able to stake out a claim.

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Bernadine, Raymond, and Rodney Aldridge v. Indiana Dept. of Natural Resources, Court of Appeals of Indiana, 4/30/99 (694 N.E.2d 313) (see script no. 5468)

8109 – The Arrest of the Story

 

If you’re driving and you feel sleepy before, during or after this broadcast, find a safe place to pull off the road and get some rest so what happened to Chris won’t happen to you.  It was 9 o’clock in the morning when Chris fell fast asleep behind the wheel.  He drove right off the road striking and killing Judy, who was jogging on the grass by the roadside.  A driver behind Chris testified he never even applied his brakes.  The officer who responded described Chris as extremely tired with bloodshot eyes and a faint odor of alcohol.  Chris admitted he’d been up for 22 hours but said that wasn’t unusual because he played in a band, adding he was only five minutes from home.  Chris was convicted of involuntary manslaughter, but the Appeals Court reversed stating we cannot conclude that Chris knew or should’ve known that he would kill someone and, although he engaged in reckless misconduct, that does not support a finding of criminal manslaughter.

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Christopher Conrad v. Commonwealth of Virginia Court of Appeals Richmond, May 11, 1999, Elder, J., 1999 WL 288036 (see script no. 5470)

8108 – The Surf’s Not the City’s Turf

 

If you decide to surf the surf instead of surf the net, watch out.  Bill decided to go surfing the old fashioned way at a beach in Cape May, New Jersey.  The waters were very rough because a hurricane was frolicking off the coast of North Carolina, resulting in hurricane watches and warnings all along the coast.  Despite being an experienced surfer, Bill was struck and tossed about by a number of large waves.  He hit his head on the ocean floor suffering a broken neck, which rendered him a quadriplegic.  Bill sued the City of Cape May claiming although the lifeguard logbook described surf conditions as dangerous, there was no flag or warning system to actually warn bathers or surfers, and there was expert testimony that failure to have such a warning system was negligence.  But the Court held that a public entity cannot be held liable for injuries caused by waves, which are naturally occurring forces of the ocean.  Bill appealed, but the Court affirmed.  So the net result is that the waters have closed over Bill’s case, and if the waves pull you under, the Courts won’t come to your rescue.

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William Fleuhr v. City of Cape May and John Doe and County of Cape May, Supreme Court of New Jersey, 5/26/99 (see script no. 5482)

8107 – A Slapped Shot

 

Icing the puck is one thing, getting iced in Court is quite another, particularly when it comes to summer hockey.  Eric was a professional hockey player with the Philadelphia Flyers.  At the time he got hurt, he was playing for the Hershey Bears, which was a summer hockey club.  And it was a hot August night when Eric skated into trouble seriously injuring his abdomen and groin.  He made claim under his worker’s comp policy, but the Flyers claimed he wasn’t injured within the scope of his employment because he was playing unauthorized hockey for another team.  Eric admitted his contract specifically provided he had to get permission, but he claimed virtually all professional hockey players play summer hockey and that the management knows it and encourages it.  But the Court held Eric was skating on thin ice and decided to check his argument and chuck his case.  The Court said he failed to prove he was not in violation of his contract.  So Eric is in the penalty box but he gave it a good try.  And, as Wayne Greskie used to say, you miss one hundred percent of the shots you don’t take and it’s not where the puck is, but where it’s going to be.

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Eric Dandenault v. Workers Compensation Appeal Board (Philadelphia Flyers Ltd. and National Union/A.I.G.), Commonwealth Court of Pennsylvania, Rodgers, J., 1999 WL 236449 (see script no. 5476)

8106 – When Wills Won’t

 

Where there’s a will, there’s a way, but sometimes doing a will the wrong way means there’s no way and no will.  Golda lived to the ripe old age of 99.  When she was 89 she decided she should have a will naming just about every member of her family.  But when she was 95 she changed her mind and decided to make a new will that cut out the family and named her friend and caregiver, Mary, as her sole beneficiary.  There was only one problem – Golda didn’t have a lawyer, and when the will was signed it was witnessed by Mary’s adult daughter and her 14-year old granddaughter.  After Golda died, the original beneficiaries attacked the will.  The Court said the law unambiguously requires a will be signed by two attesting witnesses who are 18 years of age or older and if one of those witnesses is a minor, it is fatal.  Mary argued the doctrine of substantial compliance, which basically says if you’ve almost got it right, the law should cut you some slack.  But the Court said no way.  So wills are not child’s play, Mary’s out of luck, and Golda’s will will not be done after all.

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Mary Norton v. Nancy Sevier Pickard Hinson, et al., Supreme Court of Arkansas, Imber, J., 1999 WL 298503 (see script no. 5477)