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The Lawletter Blog

PROPERTY:  Landlords' Liability to Guest of Tenant for Dog Bite Injury

Posted by D. Bradley Pettit on Mon, Apr 9, 2018 @ 15:04 PM

The Lawletter Vol. 43 No. 2

Brad Pettit, Senior Attorney, National Legal Research Group

      A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog.  See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017).  In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability.  None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

      For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious."  162 Idaho 311, 396 P.3d at 1197.  The Bright court reasoned that, since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping."  Id. (citations therein omitted).

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Topics: property law, landlord-tenant, negligence, landlord liability, dog bite injury

TORTS:  Expanding Virginia's Anti-SLAPP Legislation

Posted by Amy Gore on Mon, Apr 9, 2018 @ 15:04 PM

The Lawletter Vol. 43 No. 2

Amy Gore, Senior Attorney, National Legal Research Group

     The Virginia General Assembly has extended a grant of immunity from liability for certain otherwise defamatory statements in an amendment to Va. Code § 8.01-223.2 (Westlaw 2018).  Previously, the anti-SLAPP (strategic lawsuit against public participation) statute extended immunity to claims for tortious interference with contract and similar theories when brought over a statement made at a public hearing or similar proceeding.  Such statements were subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity.  The amendment makes two significant changes.

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Topics: defamation, tort law, Anti-SLAPP legislation, tortious interference with contract, statutory immunity

CRIMINAL LAW:  Was Traffic Stop Unlawfully Prolonged in Violation of Rodriguez?

Posted by Mark V. Rieber on Mon, Apr 9, 2018 @ 15:04 PM

The Lawletter Vol. 43 No. 2

Mark Rieber, Senior Attorney, National Legal Research Group

     Ever since Rodriguez v. United States, 135 S. Ct. 1609 (2015), courts have had to decide whether evidence discovered during routine traffic stops should be suppressed on the ground that the police unreasonably prolonged the traffic stop, even for a short time, to investigate matters unrelated to the purpose of the stop, and what should be considered matters unrelated to the purpose of the stop.  A good example is the recent decision in Lerma v. State, No. PD-1229-16, 2018 WL 525427 (Tex. Crim. App. Jan. 24, 2018), in which the court reversed the Court of Appeals’ decision suppressing evidence discovered on a passenger of a vehicle during a routine traffic stop.  Contrary to the Court of Appeals’ holding, the Court of Criminal Appeals (Texas' highest court for criminal cases) determined that the officer conducting the traffic stop had reasonable suspicion to pat-down the passenger and that by questioning the passenger and patting him down, the officer did not unduly prolong the stop in violation of the holding in Rodriguez or the holding in St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), upon which the Court of Appeals relied.

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Topics: suppression of evidence, criminal law, traffic stop

CONTRACTS:  Obligation to Support Parent Under Taiwanese Law

Posted by James P. Witt on Mon, Apr 9, 2018 @ 15:04 PM

The Lawletter Vol. 43 No. 2

Jim Witt, Senior Attorney, National Legal Research Group

     There is no question that law of a particular country develops in the context of the country's culture, religion, and customs.  A case recently decided by the Supreme Court of Taiwan illustrates this point.  See https://www.taiwannews.com.tw/en/news/3332521.  The plaintiff, identified as Luo (surname), brought a contract action against her second son, Chu, alleging that he owed her nearly US$1 million for raising him and financing his training at dental school (Chu's brother also completed dental training; he settled a similar claim with the plaintiff).  She claimed that she and her husband had run a dental clinic but that, after the couple's divorce, she raised her sons as a single mother.  As she was concerned that her sons would not provide for her in her old age, she had each son, at age 20, sign a written agreement, providing that her sons would pay her 60% of their net profits until the total reached 50 million new Taiwanese dollars (nearly US$1.7 million).  It is implicit in the Confucian tradition of filial piety that children support their aging parents.

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Topics: breach of contract, written agreement, Taiwanese customs, children supporting aging parents, financial support agreements

CONTRACTS:  Like Oil and Water: Contract and Tort Claims Don't Mix in Virginia

Posted by Emily Abel on Mon, Apr 9, 2018 @ 15:04 PM

The Lawletter Vol. 43 No. 2

Emily Abel, Senior Attorney, National Legal Research Group

     The Virginia Supreme Court recently reiterated its position that in Virginia, the source-of-duty rule prohibits suing in tort when the only basis for the duty breached lies in contract. In MCR Federal, LLC v. JB&A, Inc., 294 Va. 446, 808 S.E.2d 186 (2017) decided on December 14, 2017, the seller of a government contracting business brought breach of contract and fraud claims against the buyer of their firm. As part of the parties' agreement, the buyer warranted that there were no adverse suits, investigations, or government actions against it at the time the parties signed the contract. The contract also required that the buyer deliver to the seller a "bring down certificate" reaffirming those warranties at closing.

     While the warranties were accurate at the time of contracting, they were no longer accurate at the time of closing. In the period between contracting and closing, the United States Air Force launched an investigation into the buyer for their actions pertaining to a contract unrelated to the contract between seller and buyer and suspending the buyer from government contracting. Because of this investigation, the business did not meet earnings thresholds set forth in the contract, which resulted in the seller not receiving additional payments. The seller sued the buyer, claiming the "bring down certificate" produced at closing was a breach of contract and fraud because it did not reveal the Air Force investigation. After a lengthy bench trial, the circuit court found in favor of the seller on both the fraud and breach of contract claims.

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Topics: fraud, tort claims, breach of contract

ESTATES: Removal of an Executor or Trustee

Posted by D. Bradley Pettit on Thu, Feb 22, 2018 @ 13:02 PM

The Lawletter Vol 43 No 1

Brad Pettit, Senior Attorney, National Legal Research Group

      The general rule is that a probate or surrogate's court may revoke letters of administration that were granted to an executor or personal representative if there is demonstrated friction, hostility or antagonism between the appointed fiduciary and beneficiaries of a decedent's estate, but only if the enmity between the fiduciary and the beneficiaries threatens to interfere with the administration of the estate.  In re Estate of Brown, 2016 N.Y. Slip Op. 02691, 138 A.D.3d 1191, 29 N.Y.S.3d 630 (3d Dep't 2016).  In other words, neither a conflict of interest nor hostility between an executor or trustee and the beneficiaries of an estate or trust provide the basis for removing a trustee or personal representative unless the administration of the trust or estate has been adversely affected.  In re Gerald L. Pollack Trust, 309 Mich. App. 125, 867 N.W.2d 884 (2015); In re Estate of Robb, 21 Neb. App. 429, 839 N.W.2d 368 (2013) (when executor of estate has a personal interest in administration of estate and in disposition of estate property and circumstances reveal that those conflicting interests are preventing executor from performing fiduciary duties in impartial manner, then executor should be removed).

       The mere fact that the personal representative of a decedent's estate is also a beneficiary thereof does not necessarily create a conflict of interest that would justify the removal of the personal representative as the fiduciary for the estate.  Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269.  In order to justify removal of a personal representative who is also a beneficiary of an estate, the evidence must show that the personal representative committed some negligent act or mismanagement of the estate before a court can find a sufficient conflict of interest that is serious enough to justify removal of the estate fiduciary.  Id. ¶ 31, 342 P.3d at 279.

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Topics: hostility between trustee and beneficiary, removal of executor or personal representative, executor of estate

PROPERTY:  Construction of Structure Blocking a Neighbor’s View Not a Nuisance

Posted by Alistair D. Edwards on Thu, Feb 22, 2018 @ 13:02 PM

The Lawletter Vol 43 No 1

Alistair Edwards, Senior Attorney, National Legal Research Group

     The general rule is that a landowner has no common law right to an unobstructed view over an adjoining property. Thus, if a neighbor erects a structure on his property that blocks another neighbor’s view from his property, this likely does not constitute an actionable nuisance or give the neighbor any other type of claim. Absent an express easement or covenant, this right to an unobstructed view generally does not exist. "In the absence of statute, generally, a landowner may, by building on his or her own land, deprive the adjoining owner of the light, air, and view of which the owner was the recipient before the structure was erected without inflicting a legal injury by such obstruction." 2 C.J.S. Adjoining Landowners § 28 (Westlaw database updated December 2017). 

       For example, in Ceynar v. Barth, 2017 ND 286, 904 N.W.2d 469, the North Dakota Supreme Court recently considered a nuisance action brought by a homeowner against his neighbor (and the homeowner’s association) after the neighbor constructed a pool house on his property which obstructed the neighbor’s view. The pool house blocked the homeowner’s view of a golf course and very likely reduced the market value of the home. In affirming the trial court’s grant of summary judgment to the defendant neighbor, the court relied mainly on California precedent and stated that "[j]ust as traditional American property law fails to protect access to light over neighboring land, in the absence of an express easement or covenant, advantageous views are unprotected." Id. ¶ 26, 904 N.W.2d at 476. The court further explained:  "Because the Ceynars [plaintiffs] have no cognizable right to an unobstructed view from their property, Barth's [defendant] construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars' use and enjoyment of their property." Id. ¶ 28, 904 N.W.2d at 478; see also Wolford v. Thomas, 190 Cal. App. 3d 347, 356, 235 Cal. Rptr. 422, 427 (1987) ("[A] building or structure does not constitute a nuisance merely because it obstructs the passage of light and air to the adjoining property or obstructs the view from the neighboring property, provided such building or structure does not otherwise constitute a nuisance.").

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Topics: actionable nuisance, homeowner's association, lawful structure, adjoining landowners

LOCAL AND STATE GOVERNMENT: State Is Immune from Liability for Sexual Abuse by Adopted Child

Posted by John M. Stone on Thu, Feb 22, 2018 @ 12:02 PM

The Lawletter Vol 43 No 1

John Stone, Senior Attorney, National Legal Research Group

            The parents of a child sexually abused by a child they adopted brought an action against the state of Nebraska for negligent failure to warn or disclose, and failure to supervise.  A state employee incorrectly stated to the parents before the adoption that the adopted child had no sexual abuse history. After a bench trial, the trial court entered judgment for the State based on the defense of sovereign immunity. When the parents appealed, the Supreme Court of Nebraska affirmed the lower court ruling.  Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). 

            Like statutes in many other states, Nebraska's Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq., includes a waiver of the state's sovereign immunity from tort liability, but it also retains such immunity for some broad categories of conduct. Statutes authorizing a lawsuit against the State are strictly construed, since they are in derogation of the State's sovereignty. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Neb. Rev. Stat. § 81-8,219(4).

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Topics: adopted child, local government, intentional tort, negligence, sovereign immunity

Civil Procedure:  Laches in Cases Where Suit Is Commenced

Posted by Paul A. Ferrer on Thu, Feb 22, 2018 @ 12:02 PM

The Lawletter Vol 43 No 1

Paul Ferrer, Senior Attorney, National Legal Research Group

     Laches is "'a defense developed by courts of equity' to protect defendants against 'unreasonable, prejudicial delay in commencing suit.'" SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967, 1973 (2014)). It is a familiar statement of the law that laches generally does not apply when the statute of limitations applicable to a legal claim has not run. But many state courts continue to indicate that, in some circumstances, "laches may bar a legal claim even if the statutory period of limitations has not yet expired." Tenneco Inc. v. Amerisure Mut. Ins. Co., 281 Mich. App. 429, 456-57, 761 N.W.2d 846, 863-64 (2008); see also Veysey v. Nelson, 2017 UT App 77, ¶ 7, 397 P.3d 846, 848 ("[B]ecause laches may apply in situations where the statute of limitations has not yet run, the existence of a statute of limitations does not … automatically preclude application of the laches doctrine."), cert. denied, 400 P.3d 1046 (Utah 2017); Bldg. & Constr. Trades Council of N. Nev. v. State ex rel. Pub. Works Bd., 108 Nev. 605, 611, 836 P.2d 633, 637 (1992) ("Especially strong circumstances must exist . . . to sustain a defense of laches when the statute of limitations has not run.").  However, that no longer appears to be the case in federal court, at least with respect to a federal claim as to which Congress has expressly supplied a statute of limitations.

       In Petrella, the U.S. Supreme Court held that laches cannot defeat a damages claim brought within the three-year period prescribed by the Copyright Act's statute of limitations. 134 S. Ct. at 1972-75 (applying 17 U.S.C. § 507(b) (requiring a copyright holder claiming infringement to file suit "within three years after the claim accrued")); see also SCA Hygiene, 137 S. Ct. at 961 ("We saw in this language a congressional judgment that a claim filed within three years of accrual cannot be dismissed on timeliness grounds."). In so holding, the Court spoke in very broad terms: "[I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief." Petrella, 134 S. Ct. at 1974. Petrella's holding rested on both separation-of-powers principles and the traditional role of laches in equity. Since

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Topics: civil procedure, laches defense, limitations period

TORTS: Social Host's Legal Duty to Render First Aid

Posted by Lee P. Dunham on Thu, Jan 18, 2018 @ 09:01 AM

The Lawletter Vol 42 No 10

Lee Dunham, Senior Attorney, National Legal Research Group

            During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?

            Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.

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Topics: torts, legal duty to guest, first aid, social host

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