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.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

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)

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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.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

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)

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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.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

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

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Who owns the Declaration of Independence? This case got started back in July of 1776 when the Russell Printing Company in Salem Massachusetts was ordered to print several hundred copies of the Declaration of Independence to be distributed to churches so they could be read to the public. The copies were known as “broadsides,” and after they were read, they ended up in a variety of places, mostly town clerks’ offices. This particular broadside ended up in the estate of a descendant of the Town Clerk of what used to be Pownalborough, Massachusetts, and is now Wiscasset, Maine. After it was recently purchased at auction by Russell Adams of Virginia for $477,000, the state of Maine sued, arguing it’s a public document and should remain in public ownership. But the Court said that common law provides that possession of property constitutes prima facie evidence of ownership until a better title is proven. It was printed by a private printer and could go into private hands. So the Virginia Supreme Court fired a broadside at the state of Maine, and it’s fitting that the Declaration of Independence will remain independent.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Maine v. Adams, No. 080987, slip op. (Va. Sup. Ct. Feb. 27, 2009).

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Lobbyists banned and banished by the Obama administration are making a comeback.  I don’t know how you feel about lobbyists, but if you dislike them, you’re not alone.  A lobbyist friend of mind has a poster on his wall that reads, “I’m ashamed to tell my mother I’m a lobbyist.  She thinks I’m a part-time piano player in a brothel.”  Lobbying is named after those who hung around the lobby of the Willard Hotel hoping to see President Grant, who liked to sit in the lobby smoking cigars.  President Obama had limited lobbyist access to his administration, including a complete ban on registered lobbyists having any conversations with government officials regarding any item funded by the $787 billion Stimulus Act.  But a recent blog posted by a presidential advisor indicated that oral communication with lobbyists will be banned only after a specific project has been let out for bid, a significant reversal of the earlier policy.  It is clear how information gets to government officials without lobbyists, but one thing is clear, for Washington lobbyists, there’s not a lot of living room.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

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Judge not lest ye be judged, particularly if who you’re judging has given you a lot of money.  The case was Caperton vs. Massey Coal Company and is reminiscent of the John Grisham novel, The Appeal.  It involved a pitch battle between Hugh Caperton and the Massey Coal Company which culminated a $50M jury verdict for Caperton, that’s when things got interesting.  Knowing the State Supreme Court would be hearing the appeal, the Chairman of Massey Coal decided to support Attorney Brent Benjamin rather than the incumbent and donated $3M to get him elected.  When the Massey case came before the Court, Caperton asked Benjamin to remove or recuse himself, but he refused and Massey won a reversal 3-2.  The U.S. Supreme Court has just reversed the reversal, holding that significant and disproportionate influence demands recusal.  So its “bye, bye bias” and “recusal refusal” will never be quite the same.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Hugh M. Caperton, et al v. A.T. Massey Coal Co., Inc., U.S. Supreme Court, No. 08-22, June 8, 2009, Kennedy, J.

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Can storm windows be religious?  In anticipation of hosting the National Football League Super Bowl, the city of  Detroit agreed to fund 50% of the cost of renovations to publicly visible building facades and parking lots in the downtown area, up to $150,000 per building and $30,000 per lot.  Ninety-one projects were completed at the cost of $11.5M, including renovation of building and parking lots belonging to three churches.  American Atheist Incorporated sued, claiming that by helping to refurbish churches, the city was advancing religion, in violation of the First Amendment.  The Court that first heard the case upheld all the grants, except for church signs and storm windows that covered stained glass.  But the Court of Appeals upheld all the grants, stating that storm windows and signs have no religious significance.  So for American Atheist Incorporated, let’s just call it a “sign of the times,” and when it comes to windows, a “painful decision.”

THIS IS NEIL CHAYET LOOKING AT THE LAW™

American Atheists, Inc. v. Detroit Downtown Development Authority, Sixth Circuit Court of Appeals, No. 07-2398, May 28, 2009, Sutton, J., 6-9-09

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When it comes to handguns, it may all come down to your state of mind, as well as the mind of your estate. At issue in this case were ordinances in Chicago and Oak Park, Illinois, which basically banned the possession of handguns.  The National Rifle Association sued arguing last year’s Supreme Court Heller case held that the Second Amendment gives individuals the right to bear arms and possess handguns in their home for self defense.  But the Seventh Circuit Court of Appeals said, “wait a minute, man” and held the Second Amendment only applies to the Federal Government and not to the states, that the Heller case involved the District of Columbia, which is a unit of the Federal Government, and states and cities can still ban handguns if they want to.  Fundamental constitutional rights are applied to the states by way of the Fourteenth Amendment.  But the Court ruled the possession of handguns is not a fundamental right.  This should head back to the Supreme Court, but in the meantime, in Chicago and Oak Park, guns and the Second Amendment have been checked at the door.

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National Rifle Association of America, Inc. v. Chicago, Seventh Circuit Court of Appeals, No. 08-4241, June 2, 2009, Easterbrook, J., USLW Vol. 77, No. 47, Pg. 1752, 6-9-09

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How do you feel about reading the bible in kindergarten?  Wesley was participating in a curriculum unit called “All About Me,” in which kindergarteners would identify individual interests, learn about others, and bring a snack and their favorite stuffed animal to share.  Parents were invited to read to the class, and Wesley asked his mother to read from his favorite book, the bible.  She selected psalm 118, which begins “give thanks unto the Lord for he is good because his mercy endures forever.”  After the school principal informed Wesley’s mother that reading the bible to the class would be against the law, Wesley’s mother sued.  She claimed that other parents read The Grinch Who Stole Christmas and The Best Easter Eggs Ever, and one parent even read The Matzo Ball Fairy.  Wesley’s mother apparently felt that to allow The Matzo Ball Fairy but deny psalm 118 made her feel like chopped liver.  But the Court ruled for the school stating that the younger the student, the more control the school can have.  So there it is – Dr. Seuss is in, God is out, let’s just say it’s the principle of the matter.

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Busch v. Marple Newton School Dist., No. 07-2967, slip op. (3d Cir. Jun. 1, 2009).

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Counting sheep is one thing, counting nights is quite another.  The Internal Revenue Service has just published final regulations clarifying the Counting Nights Rule, which is used to identify the custodial parent of a child whose parents are divorced, separated or living apart.  The issue is important since the custodial parent gets to take the tax exemption.  The former rule said the custodial parent is the one with whom the child resides for the greater number of nights during the calendar year.  The problem came over the definition of a night.  Is it where the child happens to be at midnight?  Is it where the child is sleeping, and for which tax year is the night of December 31 counted?  Well, the final regs provide that a child resides for a night with the parent if the child sleeps at the parent’s home.  The night is also counted if the child is with the parent at some other location, such as when they are away on vacation.  And a night that extends over two taxable years is allocated to the taxable year when the night begins.  And that’s the last word on nights which, for the IRS, is all in a day’s work.

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IRS Final Regulations Published July 2, 2008, U.S. Law Week, Vol. 77, No. 2, Pg. 2028, 7-8-08

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