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    The Lawletter Blog

    Alfred C. Shackelford III

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    TORTS: Therapist's Liability for Eliciting False Memories of Sexual Abuse

    Posted by Alfred C. Shackelford III on Thu, Dec 27, 2018 @ 10:12 AM

    The Lawletter Vol 43 No 8

    Fred Shackelford—Senior Attorney, National Legal Research Group

                When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

                The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

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    Topics: torts, therapist, eliciting recovered memories, inappropriate treatment techniques, improper application of treament, Alfred C. Shackelford III

    TORTS: Is Your Computer Tracking You?

    Posted by Alfred C. Shackelford III on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Fred Shackelford, Senior Attorney, National Legal Research Group

                In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

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    Topics: torts, invasion of privacy, intrusion upon seclusion, tracking by computer

    PERSONAL INJURY: Comparative Fault in Crashworthiness Cases

    Posted by Alfred C. Shackelford III on Mon, Jan 8, 2018 @ 11:01 AM

    The Lawletter Vol 42 No 10

    Fred Shackelford, Senior Attorney, National Legal Research Group

                Can a plaintiff motorist's comparative fault be considered in crashworthiness cases based on strict liability or breach of warranty? That was the issue of first impression for the South Carolina Supreme Court in Donze v. General Motors, LLC, 420 S.C. 8, 800 S.E.2d 479 (2017). In Donze, the plaintiff passenger had been smoking synthetic marijuana earlier in the day. He sustained severe burn injuries when the truck in which he was riding burst into flames after colliding with another vehicle at a controlled intersection. The accident occurred because the truck driver failed to stop and pulled directly in front of the other vehicle.

                The plaintiff brought a crashworthiness case against the truck's manufacturer, alleging that the truck's design was defective because the gas tank was placed outside of the truck's frame. Two issues were certified to the Donze court:

    1. Does comparative negligence in causing an accident apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff's enhanced injuries?
    2. Does South Carolina's public policy bar impaired drivers from recovering damages in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty?
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    Topics: personal injury, crashworthiness cases, comparative fault, strict liability, breach of warranty

    PERSONAL INJURY: Effect of Injured Party's Immigration Status

    Posted by Alfred C. Shackelford III on Thu, Jul 20, 2017 @ 12:07 PM

    The Lawletter Vol 42 No 6

    Fred Shackelford, Senior Attorney,National Legal Research Group

                In a case of first impression, the Indiana Supreme Court has addressed two issues that affect actions arising from injuries to plaintiffs who are in the United States unlawfully. In Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663 (Ind. 2017), an unauthorized immigrant (a Mexican citizen) was injured while working as a masonry laborer at an Indiana job site. He sued the general contractor, which argued that his immigration status should bar him from recovering damages for decreased earning capacity. The Escamilla court addressed both that issue and the admissibility of the plaintiff's status.

                As to the first issue, the court ruled that the plaintiff could recover damages for decreased earning capacity. The court relied upon the Open Courts Clause in the state's constitution, which mandates that courts shall be open and that "every person . . . shall have remedy by due course of law." Id. at 665. The court reasoned that "[w]e cannot read the Open Courts Clause's 'every person' guarantee to exclude unauthorized immigrants." Id. at 667.

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    Topics: personal injury, damages for decreased earning capacity, unauthorized immigration status, admissibility, Indiana Open Courts Clause

    Federal Tort Claims Act—Effect of State Time Limitations

    Posted by Alfred C. Shackelford III on Tue, Mar 7, 2017 @ 11:03 AM

    The Lawletter Vol 42 No 2

    Fred Shackelford, Senior Attorney, National Legal Research Group

          Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

         The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

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    Topics: Federal Tort Claims Act, suit against federal government, time-barred by state law

    PERSONAL INJURY: Hospital's Liability for Malpractice Based on Apparent Agency

    Posted by Alfred C. Shackelford III on Fri, Nov 11, 2016 @ 16:11 PM

    The Lawletter Vol 41 No 10

    Fred Shackelford, Senior Attorney, National Legal Research Group

          The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).

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    PERSONAL INJURY: Punitive Damages Awarded Against a Decedent's Estate

    Posted by Alfred C. Shackelford III on Thu, Jun 30, 2016 @ 13:06 PM

    The Lawletter Vol 41 No 6

    Fred Shackelford, Senior Attorney, National Legal Research Group

          Can a court or a jury award punitive damages against a tortfeasor's estate? The Ohio Supreme Court addressed this issue of first impression in Whetstone v. Binner, 2016-Ohio-1006, 2016 WL 1061742. The case arose when a mother left her daughters with a babysitter, who was a relative. When the mother returned to pick up the children, she discovered the relative with one hand on one child and the other hand holding a pillow over the child's head. The mother struggled with the relative before escaping with her daughters. The mother and both daughters were later diagnosed with posttraumatic stress disorder, and they sued the relative for assault, false imprisonment, emotional distress, and loss of consortium. They sought both compensatory and punitive damages.

         After a default judgment was entered, the relative moved for relief from the judgment and requested postponement of an evidentiary hearing to determine damages. The trial court rescheduled the hearing but refused to grant relief from the judgment, and the relative died before the hearing took place. After the administrator of the relative's estate was substituted as the defendant, the trial court awarded compensatory damages but declined to award punitive damages. The court believed that punitive damages cannot be awarded against a tortfeasor's estate.

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    Topics: personal injury, Fred Shackelford, Lawletter Vol 41 No 6, punative damages award, decedent's estate

    PRODUCTS LIABILITY: What Statute of Limitations Governs Breach-of-Warranty Claims for Personal Injury?

    Posted by Alfred C. Shackelford III on Wed, Feb 17, 2016 @ 12:02 PM

    The Lawletter Vol. 41, No. 2

    Fred Shackelford, Senior Attorney, National Legal Research Group

         The New Mexico Supreme Court has resolved an issue of first impression in that state: When a product causes personal injury and suit is filed for breach of warranty, what statute of limitations applies? In Badilla v. Wal-Mart Stores East, 2015-NMSC-029, 357 P.3d 936, the plaintiff bought a pair of work boots at a Wal-Mart store. More than three years after he was injured while wearing the boots, he filed a personal injury suit, alleging that the soles of the boots became unglued and caused him to trip on debris.

         In New Mexico, tort claims are generally subject to a three-year statute of limitations, N.M. Stat. Ann. § 37-1-8, while claims for breach of warranty under the Uniform Commercial Code ("U.C.C.") are generally subject to a four-year statute of limitations, id. § 55-2-725(1). The plaintiff based his claim on breaches of an express warranty and the implied warranties of merchantability and fitness for a particular purpose. The trial court and court of appeals ruled that the claims were time-barred under the three-year statute of limitations.

         On appeal, the Badilla court noted that courts in other states have reached different conclusions as to which statute of limitations should apply. The court outlined the two approaches taken by other courts, as follows:

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    Topics: Alfred C. Shackelford III, products liability, statute of limitations, breach-of-warranty claim, personal injury, The Lawletter Vol 41 No 2

    PERSONAL INJURY: Nuisance Claims—Recovery for Emotional Distress

    Posted by Alfred C. Shackelford III on Tue, Nov 10, 2015 @ 11:11 AM

    The Lawletter Vol 40 No 10

    Fred Shackelford, Senior Attorney, National Legal Research Group

         Can damages for emotional distress be recovered in a nuisance claim in the absence of physical injury? That was one of three issues of first impression that were recently addressed by the Nevada Supreme Court. In Land Baron Investments, Inc. v. Bonnie Springs Family LP, 356 P.3d 511 (Nev. 2015), a purchaser (Land Baron) contracted to buy land on the outskirts of Las Vegas. The land was largely undeveloped, and the buyer intended to construct a subdivision there. Land Baron conducted no due diligence to investigate the availability of water and access rights, and these issues were not addressed in the contract.

         Before the closing occurred, it became apparent that Land Baron would be unable to acquire sufficient water and access rights for the proposed project. Land Baron stopped making payments to extend the escrow period, thereby breaching the contract. Land Baron then filed a complaint with the Clark County Commissioner's office, alleging that there were multiple code violations on the property. The Commissioner and other state and local authorities conducted a large-scale investigation on the premises at a time when guests and children were present.

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    Topics: Fred Shackelford, personal injury, no physical injury, The Lawletter Vol 40 No 10, nuisance claim, recovery for emotional distress

    PERSONAL INJURY: Negligence—Innkeeper's Duty When Evicting Guests

    Posted by Alfred C. Shackelford III on Wed, Jul 29, 2015 @ 08:07 AM

    The Lawletter Vol 40 No 6

    Fred Shackelford, Senior Attorney, National Legal Research Group

         Can an innkeeper be held liable when an evicted guest is injured after leaving the premises? Yes, according to the Colorado Supreme Court, in a decision that may apply in other contexts as well. In Westin Operator, LLC v. Groh, 2015 CO 25, 347 P.3d 606, a hotel's security guards required a registered guest (Jillian Groh) and several of her friends to leave the premises because they were intoxicated and boisterous. One of the friends asked if the group could wait in the hotel's lobby while they called a taxi, because it was freezing outside, but the guards refused this request. Rather than calling a taxi, the group drove away in Groh's car, and an accident occurred about 15 miles from the hotel. An action was brought against the hotel for Groh's injuries.

         The court considered whether the hotel owed a duty of care by drawing an analogy to cases involving injury to common-carrier passengers. The court relied on section 314A of the Restatement (Second) of Torts, which recognizes certain special relationships that give rise to a duty of care. That section expressly refers to innkeepers and common carriers, as well as any "possessor of land who holds it open to the public," Restatement § 314A(3), and it imposes a duty "(a) to protect them [invited members of the public] against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others," id.§ 314A(1).

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    Topics: Fred Shackelford, personal injury, innkeeper, duty of reasonable care, The Lawletter Vol 40 No 6, evicted guests

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