The Lawletter Blog

PROPERTY: Enforceability of Clause in Residential Property Lease Seeking to Shield Landlord from Liability for Injuries Caused by Mold or Fungus

Posted by D. Bradley Pettit on Thu, Sep 24, 2015 @ 15:09 PM

The Lawletter Vol 40 No 8

Brad Pettit, Senior Attorney, National Legal Research Group

     In 2014, an Indiana appellate court considered the issue of whether a landlord can enforce a provision in a residential lease contract that seeks to protect it from liability for personal injuries caused by fungus or mold on the leased premises. In Hi-Tec Properties, LLC v. Murphy, 14 N.E.3d 767 (Ind. Ct. App.), transfer denied, 20 N.E.3d 851 (Ind. 2014), a tenant who leased an apartment that was below ground level brought suit against her landlord, alleging, inter alia, that mold in the apartment had aggravated her preexisting asthma and caused other injuries. The landlord defended against the tenant's claim by pointing to a clause in the parties' lease agreement that read in pertinent part as follows:

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Topics: Brad Pettit, property law, residential lease, The Lawletter Vol 40 No 8, landlord liability

FAMILY LAW: Delegation of Power to Decide Custody and Visitation

Posted by Brett R. Turner on Wed, Sep 23, 2015 @ 15:09 PM

The Lawletter Vol 40 No 8

Brett Turner, Senior Attorney, National Legal Research Group

     In In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, 11 N.E.3d 1, the two parties, of the Islamic faith, signed a separation agreement ("PNA"). The PNA named a prominent member of the local Islamic community as Counselor. It then provided:

     Husband and Wife agree that an unreasonable divorce (without Counselor's express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children.

Id. ¶ 28, 11 N.E.3d at 10 (quoting PNA).

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Topics: family law, Brett R. Turner, custody, The Lawletter Vol 40 No 8

TAX: Carly Fiorina, Multistate Income Taxation, and the Dormant Commerce Clause

Posted by James P. Witt on Tue, Sep 22, 2015 @ 13:09 PM

The Lawletter Vol 40 No 8

Jim Witt—Senior Attorney, National Legal Research Group

     A feature of recent U.S. presidential campaigns has been the interest of the press and the public (not to mention the requirements of the law) regarding the finances of those competing for the nomination and, ultimately, for the office itself. A key element of those finances has, of course, been the income tax returns of the various candidates. In this connection, one of the present candidates for the Republican nomination, Carly Fiorina, recently offered reporters who came in person to her campaign headquarters in Virginia the opportunity to review her state income tax returns.

     Ms. Fiorina and her husband had already put their federal income tax returns for 2012 and 2013 online, but it is her state income tax returns that are of special interest. She and her husband were required to file such returns in no fewer than 17 states in 2013, with the couple's connection with some of those states so insubstantial that their tax liability in 11 of the states was less than $250.

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Topics: tax law, James P. Witt, dormant Commerce Clause, The Lawletter Vol 40 No 8

CRIMINAL LAW: Search and Seizure—Warrantless Procurement of Cell Site Location Information

Posted by Mark Rieber on Tue, Sep 22, 2015 @ 12:09 PM

The Lawletter Vol 40 No 8

Mark Rieber—Senior Attorney, National Legal Research Group

     The Fourth Circuit recently held that the Government's warrantless procurement of historical cell site location information ("CSLI"), for an extended period of time, recorded by the defendant's cell phone service provider, was an unreasonable search in violation of the defendant's Fourth Amendment rights, even though the CSLI records were kept by cell phone companies in the ordinary course of business. United States v. Graham, Nos. 12-4659 & 12-4825, 2015 WL 4637931 (4th Cir. Aug. 5, 2015). The court stated that the examination of a person's historical CSLI can enable the Government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Id. at *8.

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Topics: Fourth Amendment, search and seizure, criminal law, Mark V. Rieber, The Lawletter Vol 40 No 8, cell site location

FAMILY LAW: Did Actions of Alleged Father in Response to Custody Petition Amount to Consent to Court's Exercise of Personal Jurisdiction?

Posted by Sandra L. Thomas on Fri, Aug 28, 2015 @ 13:08 PM

The Lawletter Vol 40 No 7

Sandra Thomas, Senior Attorney, National Legal Research Group

     In a recent decision of the Court of Special Appeals of Maryland, Maryland's intermediate appellate court addressed the question of whether a New York resident could be subject to personal jurisdiction in a Maryland paternity and support action based on his filing of an answer to the original complaint for custody, his request for genetic testing, and his request for discovery. Friedetzky v. Hsia, No. 1187 Sept. Term 2014, 2015 WL 4081290 (Md. Ct. Spec. App. July 6, 2015).

     The court of special appeals held that "by affirmatively requesting genetic testing in his answer" to the mother's custody petition and "by initiating discovery relating to matters of paternity and child support," the alleged father "triggered the UIFSA [Uniform Interstate Family Support Act] long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]." Id. at *1.

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Topics: family law, Sandra Thomas, personal jurisdiction, The Lawletter Vol 40 No 7, custody petition

CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

Posted by John M. Stone on Fri, Aug 28, 2015 @ 13:08 PM

The Lawletter Vol 40 No 7

John Stone, Senior Attorney, National Legal Research Group

     It is no easy task for a prisoner to succeed on a claim that he was denied medical care in circumstances that violated his federal constitutional rights. Such a cause of action is not simply a prisoner's version of a medical malpractice case but, rather, requires a more demanding showing by the plaintiff. Mere negligence in diagnosis or treatment will not suffice. To state an Eighth Amendment claim for cruel and unusual punishment based on deficient medical care, a prisoner must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Estelle v. Gamble, 429 U.S. 97 (1976). "Deliberate indifference" to a prisoner's serious medical needs occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists but then disregards that risk.

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Topics: constitutional law, John M Stone, Eighth Amendment, The Lawletter Vol 40 No 7, medical care, inmate

CIVIL PROCEDURE: Right to Appeal Dismissal of Case Consolidated for Pretrial Proceedings in Multidistrict Litigation

Posted by Paul A. Ferrer on Fri, Aug 28, 2015 @ 12:08 PM

The Lawletter Vol 40 No 7

Paul Ferrer, Senior Attorney, National Legal Research Group

     Federal law permits "civil actions involving one or more common questions of fact" that are pending in different districts to be transferred to any district for coordinated or consolidated pretrial proceedings by the judicial panel on multidistrict litigation ("MDL"). 28 U.S.C. § 1407(a). Another federal statute grants an unsuccessful litigant in a federal district court the right to take an appeal, as a matter of right, from a "final decision" of the district court. Id. § 1291. In Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015), the Supreme Court decided the question of whether the right to appeal secured by § 1291 is affected when a case is consolidated for MDL pretrial proceedings under § 1407.

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Topics: Paul A. Ferrer, civil procedure, The Lawletter Vol 40 No 7

PROPERTY: Stranger-to-the-Deed Rule Did Not Invalidate Right of First Refusal

Posted by Alistair D. Edwards on Fri, Aug 28, 2015 @ 12:08 PM

The Lawletter Vol 40 No 7

Alistair Edwards, Senior Attorney, National Legal Research Group

     Under the stranger-to-the-deed rule, a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed, does not create a valid interest in favor of that third party. For example, a reservation in a deed purporting to create a life estate in a third party (a stranger) may very well be ineffective. Many jurisdictions still adhere to some form of the stranger-to-the-deed rule.

     What happens, though, when a grantor gives a deed containing a right of first refusal in favor of a third party or parties? In other words, the grantor did not create a right of first refusal in himself but in favor of a stranger to the transaction. The effect of a right of first refusal, also called a preemptive right, is to bind the selling party to not sell without first giving the person holding the right the opportunity to purchase the real property at the price specified. But does the stranger-to-the-deed rule invalidate a right of first refusal given to the third party/stranger?

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Topics: Alistair Edwards, property, right of first refusal, The Lawletter Vol 40 No 7, stranger-to-the-deed rule, preemptive right

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

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.

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