The Lawletter Vol 34 No 10, November 4, 2010
The Court of Appeals of Michigan recently held, in the case of Mickel v. Wilson, No. 289037, 2010 WL 3418897 (Mich. Ct. App. Aug. 31, 2010) (unpublished per curiam opinion), that a father could not be held liable for the negligent supervision of his daughter, who died while in the father's care. In Mickel, the plaintiff mother and defendant father had divorced, and the father had custody every other weekend of the couple's three daughters, aged nine, seven, and three and a half. On the day of the incident, the father had taken the girls to a relative's graduation party, which was being held at a home situated on an inland lake. The father knew that the youngest girl could not swim.
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The Lawletter Vol 34 No 10,
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The Lawletter Vol 34 No 11, November 19, 2010
Matt McDavitt, Senior Attorney, National Legal Research Group
The federal estate tax officially expired on January 1, 2010, a repeal that was signed into law a decade ago as part of the Economic Growth and Tax Relief Reconciliation Act of 2001. I.R.C. § 2210(a). According to the Act's sunset provision, the federal estate tax will revert to pre-Act levels after December 31, 2010, absent action by Congress, but in the meantime, the absence of a federal estate tax is causing problems in administering the estates of persons dying during 2010 where bypass trusts are to be created, the funding of which is expressly tied to a federal estate tax exemption, exclusion, or the like. Depending upon the wording of the bypass trust funding clause, the impact of the federal estate tax repeal would result in either the bypass trust's not being funded at all or the entire corpus flowing into the bypass trust. Neither circumstance is ideal, as such results leave another class of primary trust beneficiaries (such as cestuis of marital trusts) without means of support from the trust, thereby defeating settlor intent. Undeniably, it is a black-letter principle of trusts law in every jurisdiction that, in administering a trust, courts are bound to ascertain and effectuate the intent of the settlor as plainly discernible by reference to the text of the trust instrument.
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Matt McDavitt,
estates,
The Lawletter Vol 34 No 11,
sunset provision,
federal estate tax,
bypass trust
The Lawletter Vol 34 No 12, December 7, 2010
Steve Friedman, Senior Attorney National Legal Research Group,
Title VII prohibits employers from taking adverse employment action simply because an employee's "appearance . . . does not conform to stereotypical gender roles." Doe v. Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998). The Supreme Court has long held that sex stereotyping can violate Title VII when it influences employment decisions. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The critical issue in these cases is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998).
Although Title VII provides an exception for "bona fide occupational qualification[s] reasonably necessary to the normal operation of that particular business or enterprise," 42 U.S.C. § 2000e‑2(e)(1), that exception does not typically include one's attractiveness. Thus, whereas physical attractiveness may well be a bona fide occupational qualification for cheerleaders and fashion models, see Lewis v. Heartland Inns of Am., 591 F.3d 1033, 1043 (8th Cir. 2010) (Loken, C.J., dissenting) (suggesting same), it is clear that "female sex appeal" is not a bona fide occupational qualification for flight attendants and ticket agents, see id. at 1036 n.1 (citing Wilson v. Sw. Airlines, 517 F. Supp. 292 (N.D. Tex. 1981)).
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employment law,
Steve Friedman,
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physical attractiveness,
occupational qualification
The Lawletter Vol 34 No 10, November 4, 2010
Paul Ferrer, Senior Attorney, National Legal Research Group
In a recent issue of The Lawletter, see Paul Ferrer, Class Arbitration Requires Specific Agreement, Lawletter Vol. 34, No. 6, at 24, it was noted that the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, is based on the fundamental precept that arbitration is a matter of consent, not coercion. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1773 (2010). As such, parties are "generally free to structure their arbitration agreements as they see fit," and courts and arbitrators are bound to "give effect to the contractual rights and expectations of the parties," as expressed in their agreement. Id. at 1774 (internal quotation marks omitted). In short, "the FAA lets parties tailor some, even many features of an arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law." Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 586 (2008). As a result, arbitration provisions should be tailored to meet the particular needs of the parties rather than simply cut-and-pasted verbatim from a form book.
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Paul Ferrer,
The Lawletter Vol 34 No 10,
alternative dispute resolution,
Federal Aviation Act,
interstate commerce,
exception
The Lawletter Vol 35, No 1, January 3, 2011
Fred Shackelford—Senior Attorney, Aviation Law
Does federal law establish the standard of care for, or preempt common-law tort claims against, airlines for accidents that occur while passengers are exiting a plane? The Third Circuit Court of Appeals recently addressed this issue of first impression in Elassaad v. Indep. Air, Inc., 613 F.3d 119 (3d Cir. filed July 6, 2010).
In this case, a passenger who was using crutches fell as he descended a staircase that was built into the door of a parked airplane. The passenger sued the airline for negligence, claiming that the defendant had failed to assist him in disembarking from the plane, including having failed to make available all appropriate safety measures and devices. Id. at 123. The airline moved for summary judgment, arguing that the federal Air Carrier Access Act ("ACAA") and the regulations thereunder preempted the claim because they require an airline to provide assistance only upon request, which had not occurred in this case, and they do not obligate carriers to inform disabled passengers of assistive measures unless a wheelchair is requested. Id.
The Elassaad court first distinguished an earlier case that had held that federal law preempted "the entire field of aviation safety." Id. at 125. The court determined that the earlier case, Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), was limited to in-air safety and did not apply to accidents occurring after a plane has stopped at the gate and disembarkation has begun. The Elassaad court found that, in such cases involving disembarkation, neither express preemption, conflict preemption, nor field preemption applies. The court examined statutory and regulatory language and concluded that none of these exemptions applies in the absence of "operation" or "navigation" of a plane that does not involve its physical movement. 613 F.3d at 130–31.
The court also explained that the ACAA does not preempt claims that do not allege discrimination. "At most, the ACAA might preempt state nondiscrimination laws as they apply to discrimination by air carriers against disabled passengers." Id. at 132. The court found no express or field preemption, because there was no evidence of a clear congressional intent to supersede any relevant state tort law. Id. The court also found no conflict preemption, stating:
These mandates do not prohibit air carriers from offering unsolicited assistance to disabled passengers when the situation warrants it, and they do not evince a congressional intent that air carriers should withhold assistance from disabled passengers when doing so would be negligent or reckless under state law. In any event, we are not persuaded that compliance with duties imposed by state law would require air carriers to act in a manner that would undermine the dignity of disabled passengers. Thus, there is no basis for us to find either that it would have been "impossible" for Independence to comply with both state law and the ACAA, or that state law would have been an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Id. at 133.
The court remanded the case to the district court, with the instruction that "Elassaad's case is governed by state law negligence principles." Id. at 134.
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Fred Shackelford,
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