<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

The Lawletter Blog

PRODUCTS LIABILITY: Similar Incident Evidence Admissible in Unintended Acceleration Case

Posted by Jeremy Y. Taylor on Fri, Dec 15, 2017 @ 11:12 AM

The Lawletter Vol 42 No 9

Jeremy Taylor, Senior Attorney, National Legal Research Group

            The United States Court of Appeals for the Eighth Circuit recently held that evidence of other incidents involving unintended acceleration of the defendant automobile manufacturer’s vehicles was admissible in a products liability action brought by family members of persons killed in an unintended acceleration event.  See Adams v. Toyota Motor Corp., 867 F.3d 903 (8th Cir. 2017). 

            The driver of a 1996 Toyota Camry alleged that he was unable to stop his vehicle after exiting an interstate highway, despite attempts to apply the brakes.  While traveling at approximately 75 miles per hour, his vehicle collided with a car stopped at a red light. There were numerous fatalities and other severe injuries from the incident.

Read More

Topics: admission of evidence, products liability, other incident evidence, similar circumstances

PROPERTY: Expansion of Easements by Necessity in Virginia

Posted by Steven G. Friedman on Fri, Dec 15, 2017 @ 11:12 AM

The Lawletter Vol 42 No 9

Steve Friedman, Senior Attorney, National Legal Research Group

            "An easement is the privilege to use the land of another in a particular manner and for a particular purpose, but it does not give the owner of the dominant estate an ownership interest in the servient tract." Beach v. Turim, 287 Va. 223, 228, 754 S.E.2d 295, 297 (2014) (internal quotation marks omitted). "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Id.

            Each type of easement is established (and sometimes governed) by a different set of rules. See Palmer v. R.A. Yancey Lumber Corp., 294 Va. 140, 803 S.E.2d 742, 749 (2017) (noting that "express easements and easements by prescription . . . have their own set of rules separate and apart from the rules governing easements by necessity").

Read More

Topics: property, expansion of easement, easements by necessity, enjoyment of dominant estate

CRIMINAL LAW: No Right to Use Forfeited Substitute Assets to Pay for Appeal Counsel

Posted by Suzanne L. Bailey on Fri, Dec 15, 2017 @ 10:12 AM

The Lawletter Vol 42 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

            A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.

            Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant.

Read More

Topics: criminal, substitute assets, forfeiture laws, payment for appeal

Civil Rights Litigation: The Supreme Court Further Restricts Bivens Actions

Posted by Anne B. Hemenway on Fri, Dec 15, 2017 @ 09:12 AM

The Lawletter Vol 42 No 9

Anne Hemenway, Senior Attorney, National Legal Research Group

            Since the United States Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal courts have allowed individuals to seek damages for unconstitutional conduct by individual federal officers. A Bivens action, as they are known, recognizes an implied cause of action directly under authority of the U.S. Constitution, where there is an absence of any statute specifically conferring the cause of action.

            Recently, in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court recognized Bivens actions but held that it will now take a more "cautious" approach to each Bivens case presented to the Court to determine if the action falls under the previous Bivens claims and will not accept a Bivens action that is brought in a new context. The Court's stated purpose in taking this new cautious approach is to avoid intruding on the role of Congress to enact statutes for claims outside of the current Bivens context. To determine whether a Bivens action falls outside of the current Bivens context and is thus "novel" and not actionable, the Court rejected the Second Circuit Court of Appeals' previous two-part test and instead stated that the proper test for determining whether a case presents a new Bivens context is "[i]f the case is different in a meaningful way from previous Bivens cases decided by this Court." Id. at 1859. 

Read More

Topics: civil rights, Bivens actions, action outside Bivens context

TAX: U.S. Tax Court Quotes Show Business Celebrity

Posted by James P. Witt on Fri, Oct 20, 2017 @ 13:10 PM

The Lawletter Vol 42 No 8

Jim Witt, Senior Attorney, National Legal Research Group

            It is not often, if ever, that the U.S. Tax Court quotes a show business celebrity in its opinions, but it did so in a summary opinion filed on August 16, 2017, in the case of Omoloh v. Commissioner, T.C. Summ. Op. 2017-64, 2017 WL 3530853. The case turned on whether the taxpayer, Wilfred Omoloh, was age 59½ at the time that he took a distribution from his individual retirement account ("IRA"). I.R.C. § 72(t) ("10-percent additional tax on early distributions from qualified retirement plans") provides in subsection that (1) if the taxpayer receives a distribution from a qualified retirement plan such as an IRA, the taxpayer's income tax liability for the year will be increased by an amount equal to 10% of the portion of the distribution includible in gross income. However, under subsection (2), the 10% penalty of subsection (1) shall not apply if the distribution is made on or after the date on which the taxpayer attains age 59½.

Read More

Topics: tax, distribution, tax liability, taxpayer's age, IRA account

PROPERTY: Landlord's Liability for Collapsed Deck

Posted by D. Bradley Pettit on Wed, Oct 18, 2017 @ 12:10 PM

The Lawletter Vol 42 No 8

Brad Pettit, Senior Attorney, National Legal Research Group

            The general rule is that "[w]hile a landlord is not a guarantor for the safety of those persons who might be expected to come upon its property, it does have a duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."  49 Am. Jur. 2d Landlord and Tenant § 454 (Westlaw May 2017 Update) (citing Rodriguez v. Providence Hous. Auth., 824 A.2d 452 (R.I. 2003)). A recent decision by a Georgia appellate court in a deck collapse case indicates that unless the evidence shows that an out-of-possession lessor of residential real estate knew or had reason to know that a potentially dangerous condition existed with respect to the premises or an improvement thereto, the landlord cannot be held liable for injuries that were suffered by a guest of the tenant due to the alleged failure to repair the premises or make an improvement. Aldredge v. Byrd, 341 Ga. App. 300, 799 S.E.2d 263 (2017), reconsideration denied (Apr. 26, 2017). 

Read More

Topics: property, landlord liability, notice of defect, lessor's duty to inspect

EMPLOYMENT DISCRIMINATION: Long-Term Leave Is Not a Reasonable Accommodation

Posted by Nicole Prysby on Tue, Oct 17, 2017 @ 12:10 PM

The Lawlettervol 42 No 8

Nicole D. Prysby, Senior Attorney, National Legal Research Group

            On September 20, 2017, the Seventh Circuit Court of Appeals affirmed a decision by a district court, holding that the failure to provide an employee with long-term medical leave is not a violation of the Americans with Disabilities Act ("ADA"). The decision, Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017), rejects the Equal Employment Opportunity Commission ("EEOC") position that long-term medical leave may qualify as a reasonable accommodation.

            Severson worked for Heartland Woodcraft, Inc., in a position for which heavy lifting was an essential function. In 2013, he took 12 weeks of Family and Medical Leave Act ("FMLA") leave due to back pain. On the last day of leave, he had back surgery, which required that he take another two to three months of leave from work to recuperate. He asked if he could continue his medical leave, but because he had exhausted his FMLA leave, Heartland denied the request and told him that he could reapply for a position once he was medically cleared to work.

Read More

Topics: employment discrimination, ADA, FMLA, long-term leave, reasonable accommodation

CRIMINAL LAW: Digital Cameras Held Outside Scope of Search Incident to Arrest Exception

Posted by Mark Rieber on Tue, Oct 17, 2017 @ 12:10 PM

The Lawletter Vol 42 No 8

Mark Rieber, Senior Attorney, National Legal Research Group

            In Commonwealth v. Mauricio, 477 Mass. 588, 80 N.E.3d 318 (2017), the court held that, under the Massachusetts Constitution, the search of data contained in digital cameras falls outside the scope of the "search incident to a lawful arrest" exception to the warrant requirement.  In so holding, the court found the reasoning set forth in Riley v. California, 134 S. Ct. 2473 (2014), applicable to digital cameras.  In Riley, the U.S. Supreme Court held that the search incident to arrest exception did not apply to cell phones. Riley found that applying the exception to the search of digital data on a cell phone served neither of the two justifications for the exception: prevention of harm to officers and prevention of destruction of evidence. Riley also recognized the privacy interests at stake, since cell phones "place vast quantities of personal information literally in the hands of individuals."  Id.  at 2485.

            Mauricio found that these same considerations also applied to digital cameras and thus determined that the reasoning of Riley presented a compelling basis to exclude digital cameras from the reach of the search incident to arrest exception. The court rejected the Commonwealth's argument that Riley did not apply because digital cameras, lacking the ability to function as computers, were not analogous to cell phones for Fourth Amendment purposes. The court observed that although digital cameras do not allow storage of information as diverse and far ranging as a cell phone, "they nevertheless possess the capacity to store enormous quantities of photographs and often video recordings, dating over periods of months and even years, which can reveal intimate details of an individual's life." Mauricio, 477 Mass. at 593, 80 N.E.3d at 323.

Read More

Topics: criminal law, privacy interests, digital cameras, outside scope of arrest search exception

CIVIL RIGHTS: Third Circuit Joins Sister Circuits in Recognizing Right to Record Police

Posted by Jason Holder on Tue, Oct 17, 2017 @ 11:10 AM

The Lawletter Vol 42 No 8

Jason Holder, Senior Attorney, National Legal Research Group

            Amanda Geraci ("Geraci") attempted to record a Philadelphia police officer's actions as he arrested an antifracking protester. Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Despite the fact that she was not interfering with the officer, a second officer pinned Geraci against a pillar, preventing her from observing or recording the arrest. Id. Geraci faced neither arrest nor citation for her actions. Id.

            Richard Fields ("Fields") was walking down a public sidewalk when he noticed a number of police officers breaking up a house party across the street.  Id. As Fields took a photograph of the scene, an officer ordered him to leave the scene. Id. When Fields refused, the officer arrested him, confiscated his phone, and searched it opening "several videos and other photos."  Id.

            Geraci and Fields brought suit under 42 U.S.C. § 1983 alleging, inter alia, "that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity."  Id.  In doing so, they noted a 2011 Philadelphia Police Department memorandum "advising officers not to interfere with a private citizen's recording of police activity because it was protected by the First Amendment," and department directive issued a year later reiterating the existence of the right.  Id. 

Read More

Topics: civil rights, First Amendment rights, right to record police activity, access to information

PERSONAL INJURY: Suicide as Intervening Event

Posted by John M. Stone on Wed, Sep 20, 2017 @ 11:09 AM

The Lawletter Vol 42 No 7

John Stone, Senior Attorney, National Legal Research Group

            According to the "intervening causes doctrine," there can be no proximate cause, as is required for liability in a negligence case, where there has intervened between the act of the defendant and the injury to the plaintiff an independent act or omission of someone other than the defendant, that was not foreseeable by the defendant, was not triggered by the defendant's act, and was sufficient of itself to cause the injury. As a general rule, suicide is deemed an unforeseeable intervening cause of death that absolves the tortfeasor of negligence liability in an action for wrongful death.

            When a mother brought an action against a city and its police officer for wrongful death arising out of her teenage daughter's suicide death, after the officer's disclosure of photographs of the daughter's body following her previous suicide attempt, the claim failed because of the intervening cause doctrine.  City of Richmond Hill v. Maia, No. S16G1337, 2017 WL 2332660 (Ga. May 30, 2017).

Read More

Topics: suicide, personal injury, intervening event

New Call-to-action
Free Hour of Legal Research  for New Clients
Seven ways outsourcing your legal research can empower your practice

Subscribe to The Lawletter

Latest Posts