The Lawletter Blog

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).

Read More

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

CRIMINAL LAW: Supreme Court Allows Use of Three-Year-Old Child's Out-of-Court Statements About Abuse

Posted by Douglas C. Plank on Tue, Jul 28, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Doug Plank—Senior Attorney, National Legal Research Group

     In a unanimous decision, the U.S. Supreme Court recently held in Ohio v. Clark, 135 S. Ct. 2173 (2015), that statements that children have made to teachers about possible abuse can be used as evidence at criminal trials arising from the alleged abuse, even if the children are not competent to testify in court.

     The facts in Clark showed that the preschool teacher of a three-year-old boy had noticed bruises on his body, and when she asked him how he had gotten the bruises, he told her that his mother's boyfriend had hit him when his mother was not home. The teacher notified the police, and the boyfriend was ultimately charged with child abuse. At the boyfriend's trial, the State introduced into evidence the statements that the child had made to the teacher, but the child did not testify, because of a statute precluding the testimony of children under 10 years old if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Id. at 2178 (quoting Ohio R. Evid. 601(A)). The trial judge determined that pursuant to this rule, the child was not competent to testify.

Read More

Topics: criminal law, Douglas C. Plank, hearsay, Ohio v. Clark, abuse statements, three-year-old

ESTATES: Assets—Gold Bars, Bullion, and Coins—Tangible or Intangible Property?

Posted by Matthew T. McDavitt on Mon, Jul 27, 2015 @ 09:07 AM

The Lawletter Vol 40 No 6

Matt McDavitt, Senior Attorney, National Legal Research Group

     When distributing a probate estate, it is important to determine whether particular assets are tangible or intangible property where the will's language distributes these classes of property to different beneficiaries. While many assets may be sorted based upon common-sense principles, other assets present analytical difficulties. One such problematic asset is gold formed into bars, bullion, and coins. Some laymen would classify these precious metal assets as money, others as collectibles, and it is not intuitive whether such gold objects constitute tangible assets (such as a chair or a computer) or intangible assets (such as bank account deposits or stocks).

Read More

Topics: Matthew T. McDavitt, estates law, assets, probate, gold, tangible property

TRADEMARKS: Effect in Court of Decision by TTAB

Posted by Timothy J. Snider on Mon, Jul 27, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Tim Snider—Senior Attorney, National Legal Research Group

     In opposed trademark registration proceedings, the administrative adjudicative body is the Trademark Trial and Appeal Board ("TTAB"). It hears the appeals of applicants for registration and of those who oppose registration who are aggrieved by the decision of the Patent and Trademark Office whether to grant or deny registration to an application for registration of a trademark. There is a further level of appeal to the Federal Circuit, and a plaintiff can always seek cancellation of a registered trademark in district court. An issue often involved in registration proceedings is whether there is a likelihood of confusion between the applicant's mark and the opposer's mark. Unlike court proceedings, there is no discovery and no live testimony. The TTAB makes its decision based on the written record that is submitted to it by the parties. If the TTAB makes a determination that there is a risk of confusion between the marks in suit, what weight should be assigned to that determination by a court that is hearing a dispute between two markholders, one of whom claims that the other's mark infringes on its mark?

Read More

Topics: trademark, TTAB, registration proceedings, B&B Hardware, Inc. v. Hargis Industries

FAMILY LAW: Support Guidelines and Retirement Benefits

Posted by Brett R. Turner on Mon, Jul 27, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Brett Turner, Senior Attorney, National Legal Research Group

     All 50 states have now had child support guidelines for more than a decade. Increasing numbers of states are experimenting with spousal support guidelines, especially for temporary support while a divorce case is pending.

     When applying any set of guidelines for spousal or child support, the first step is always to compute the incomes of the parties. Such computation raises a set of tricky issues when retirement benefits are involved.

     In Milinovich v. Womack, 343 P.3d 924 (Ariz. Ct. App. 2015), the father was a retired professional baseball player. His income dropped materially when his playing years ended, and he filed a motion to reduce his child support. To compute the guideline amount of support, the court had to determine the father's income.

Read More

Topics: family law, Brett R. Turner, . Right to Farm Act did not bar nuisance claim, retirement benefits, support guidelines

ARBITRATION: FAA Preempts N.Y. Statute Prohibiting Mandatory Arbitration Clauses in Consumer Contracts

Posted by Charlene J. Hicks on Thu, Jul 9, 2015 @ 12:07 PM

The Lawletter Vol 40 No 5

Charlene Hicks, Senior Attorney, National Legal Research Group

      In a matter of first impression, the New York Supreme Court, Appellate Term, recently ruled that a state law prohibiting mandatory arbitration clauses in consumer contracts was preempted by the Federal Arbitration Act ("FAA"). In Schiffer v. Slomin’s, Inc., No. 2013-1867NC, 2015 WL 1566198 (N.Y. App. Term Mar. 30, 2015), consumers filed a lawsuit against a security systems provider that sold and installed home security systems. The complaint contained causes of action against the security systems provider for breach of contract, breach of warranty, and fraud. In response, the security systems provider filed a motion to compel arbitration pursuant to an unsigned contract provided to the buyers that contained a mandatory arbitration clause.

     A New York state law, General Business Law section 399-c, generally prohibits mandatory arbitration clauses in consumer contracts. The Schiffer plaintiffs were homeowners-consumers; therefore, the arbitration clause the security systems provider sought to enforce was void under New York state law.

Read More

Topics: Federal Arbitration Act, arbitration clause, Charlene J. Hicks, The Lawletter Vol 40 No 5, consumer contract

PUBLIC LAW: Ability to Obtain Shelter Is a Major Life Activity

Posted by Steven G. Friedman on Thu, Jul 9, 2015 @ 11:07 AM

The Lawletter Vol 40 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

     The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").

      "The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).

Read More

Topics: Rehabilitation Act, Fair Housing Act, Americans with Disabilities Act, Steven G. Friedman, The Lawletter Vol 40 No 5, housing/shelter, major life activity

IMMIGRATION LAW: Analyzing State Drug Paraphernalia Offense for Purposes of Removal Under INA

Posted by Suzanne L. Bailey on Thu, Jul 9, 2015 @ 10:07 AM

The Lawletter Vol 40 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

     Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

Read More

Topics: removal, immigration, The Lawletter Vol 40 No 5, drug paraphernalia, Suzanne Bailey, Mellouli v. Lynch, deportation

WORKERS' COMPENSATION: Collection and Jurisdiction in Multistate Workers' Compensation Cases

Posted by Anne B. Hemenway on Wed, Jul 8, 2015 @ 13:07 PM

The Lawletter Vol 40 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

     Workers' compensation claims are often straightforward where the worker has suffered a clear work-related injury in the jurisdiction in which the employer is located. Where a worker has been injured in a work-related accident while traveling in a different state for work, however, different jurisdictions impose specific jurisdictional restrictions notwithstanding the workers' compensation insurance contract. See McIlvaine Trucking, Inc. v. Workers' Comp. Appeal Bd. (States), 810 A.2d 1280 (Pa. 2002) (holding that where a worker who regularly traveled to other states for work was injured in Pennsylvania, the parties' agreement to be bound only by the West Virginia Workers' Compensation Act was unenforceable as against Pennsylvania public policy, which requires in-state workers' injuries to be governed only by the Pennsylvania workers' compensation laws).

Read More

Topics: jurisdiction, Anne B. Hemenway, workers' compensation, jurisdictional restrictions, claims

LANDLORD-TENANT: Apartment Tenant May Have Claim for Breach of Implied Warranty of Habitability Based on Another Tenant's Harassing Behavior

Posted by Alistair D. Edwards on Mon, Jul 6, 2015 @ 15:07 PM

The Lawletter Vol 40 No 5

Alistair Edwards, Senior Attorney, National Legal Research Group

      Recently, in Francis v. Kings Park Manor, Inc., No. 14-cv-3555 (ADS)(GRB), 2015 WL 1189579 (E.D.N.Y. signed Mar. 16, 2015), the U.S. District Court for the Eastern District of New York held that an African-American apartment resident had a plausible claim for breach of the implied warranty of habitability based on the harassing behavior of a next-door neighbor tenant. In that case, the plaintiff's next-door neighbor, among other things, repeatedly made racially offensive comments and threats to the plaintiff, which conduct led at one point to the neighbor's arrest for aggravated harassment. Despite the plaintiff's complaints to the property management company in charge of the apartment complex, the management company took little action to address the plaintiff's complaints.

Read More

Topics: property law, Alistair D. Edwards, habitability, breach of implied warranty, harassing behavior, landlord-tenant, The Lawletter Vol 40 No 5