Quote of the Day - “In truth, they are compounding the problem. A person who breaks the law will answer to duly-constituted authorities for their criminal acts, and so-called vigilantes are no exception.
Vigilante Bounty-hunter Or ADA-Crusader? You Be The Judge.
Businesses who have fended off lawsuits over disability access can take heart in last week's decision in Gunther v. Lin from the Fourth District Court of Appeal here in California. Now don't start flame-out comments, here, there are bounty-hunter-style lawsuits out there filed by people who are more interested in recovering money than in ensuring people with disabilities have access to services. You can be the judge whether this lawsuit falls into the former or latter category.
A wheelchair-bound customer entered a restaurant bathroom, and then sued the restaurant because there was a lack of insulation under the sink and the mirror was set too high for compliance with Americans with Disabilities Act standards. The customer was able to access the toilet. The customer's lawsuit sought penalties under California Civil Code section 52.
Short, relevant legal lesson here: section 52 allows penalties with a showing that the business's actions in not complying with ADA standards was intentional (actual damages, punitive damages and a $25,000 penalty, plus attorneys fees). Another section, California Civil Code section 54.3 creates strict liability for a violation (a sure win upon a showing of noncompliance), but the penalties ($1,000) are much less than section 52. A plaintiff cannot pursue remedies under both statutes, she must choose one or the other.
In the case, the restaurant owner, John Lin, said he was in the process of remodeling the bathroom: the insulation hadn't yet been installed and an employee did not install the mirror correctly. In other words, the court believed that Mr. Lin's actions were unintentional. Because Mr. Lin's actions were not intentional, the wheelchair-bound plaintiff was unable to recover any damages for the noncompliance.
In other words, plaintiffs suing for ADA-style violations must first prove intent before the court will award substantial damages. Recovery under Civil Code section 52 will likely now take the form of preliminary requests for compliance with the ADA that repeatedly get ignored, causing an actual injury to someone, rather than just non-compliance with the technical aspects of the law.
What Do Tattoos, The Lottery And Teaching Kids To Read Have In Common? Oklahoma.
Oklahoma, land of the Broadway hit musical by the same name, has become the last state to legalize tattooing. It's a Scandal! It's An Outrage! That's right, folks, women can now wear makeup in Oklahoma, too. Don't get me wrong here: MIPTC comes from the land of corn-fed beef and ham, that somewhat nearby state of Iowa, so I'm not poking fun at Midwesterners. I am, however, poking fun at Oklahoma, the land where the "Oklahoma State Lottery Teaches Kids To Read."
I kid you not.
It says so, right there on the State's lottery website. I suspect it's a conspiracy to get Oklahoma children to learn their numbers so they can buy lottery tickets, too.
It's been a sore subject for some time. Tattooing; that is, not Oklahoma children who can't read. While the law preventing tattooing used to exist in the state, it was not regularly enforced. Some have been arrested, but now practicing body art will take an application, a stiff licensing fee, a bond and classes, and an ink pen. Most surprising, the license requires proof of previous professional practice in tattooing. It's as if the state is granting amnesty, I suppose.
After all, tattooing has only been around 6,000 years.
The Halloween Queen Fights City Hall Over Sign Law
Just in time for Halloween, Raleigh, North Carolina has determined that kids dressed in costumes outside a costume store constitute a sign for the store. That's right, take a look at Part 10 (comes right after Part 14 in the Code), Chapter 2, Article E, section 10-2083.2. See if you can figure out how a kid dressed in a Halloween costume fits into this Ordinance. Here are the categories that qualify as signs:
- Announcement signs.
- Awning, marquee, and canopy signs.
- Changeable copy signs.
- Community watch signs.
- Directional signs.
- Directory signs.
- Ground low profile signs.
- Ground signs for double frontage lots.
- Ground medium profile signs.
- Ground high profile signs.
- Landmark signs.
- Product and information signs.
- Projecting signs.
- Temporary signs.
- Tract identification signs.
- Wall signs.
- Windblown signs.
I can't, and I'm a lawyer. I don't see the words "kids dressed in costumes" or anything even approaching that. Perhaps it's because I'm not licensed in North Carolina, and I just don't understand how they do things in Raleigh, just up the road from Mayberry. I used to live South of the Mason-Dixon line, but I still don't quite get it.
For that matter, neither does the mother of the kids, Louie Bowen, who also owns the offending costume shop, Hughie & Louie's. Her kids, 13 and 9, were dressed as Mrs. Claus and an elf. They earned a $100 ticket from Raleigh's zoning department for failure to have a permit. The editorial staff of the local paper, the News & Observer, is behind Mrs. Bowen, and has called on the mayor to intervene.
Meanwhile, the zoning department has threatened a $500 fine for a repeat violation. Of the sections on the list above, the Product Signs category looked like a possible fit, but the definition requires a sign of at least 32 feet. At 13 and 9, it's doubtful that the kids are that big. I wonder how Raleigh would treat headvertising, where you get paid to put an ad on your forehead.
N&O writer Josh Shaffer quoted Larry Strickland, Raleigh's inspections director, interpreting the sign Ordinance. "It could even be a person. If she's in the costume business and she's got people in costume out there, that could be a violation,'' the inspector claimed. The reporter goes on, "Bowen's violation note reads: 'The display of portable sign(s)/banner(s)/pennant(s)/ balloon(s) at the above location is a violation of Raleigh City Code Section 10-2083.2, which allows for the display of such signs only after the issuance of a thirty (30) day special event sign permit." An inspector scribbled an addendum: "This includes people dress up.' "
In protest, Ms. Bowen donned her own costume: a crushed velvet cape and faux-gold tiara and scepter. As the Halloween Queen, she's going to fight City Hall.
It seems to me that if you have a scepter, you can overrule City Hall.
Coast to Coast Internet Radio Gets Merck's Perspective
Recently a federal jury ruled in favor of Merck & Co. Inc. in a lawsuit over the painkiller Vioxx, finding there was not enough evidence to link the drug to a Kentucky man's heart attack. In this show, we speak with a key attorney on the team representing Merck in the Vioxx cases, Phillip Beck.
On past Coast to Coast shows, we have hosted the lead attorneys for the plaintiffs affected by Vioxx as guests, but this time around we get Merck’s take. Join me and my fellow co-host and Law.com blogger Robert Ambrogi as we discuss Merck’s perspective with Attorney Phillip Beck, partner with the firm of Bartlit Beck Herman Palenchar & Scott LLP in Chicago. Don’t miss out on this highly-anticipated show.
Legal News, Radio and TV Reporters Get It Wrong 50% Of The Time, According To Judges
Legal news, radio and TV reporters get it wrong at least 50% of the time, according to an article written today by West Virginia reporter Juliet A. Terry, who recently attended a workshop in that state for judges and journalists and wrote about the cathartic experience. That startling figure represents West Virginia judges' opinions. Perhaps even more surprising, the judges who see reporter's errors rarely, if ever, call to correct them. Although I haven't polled California judges, I suspect most would agree with their counterparts in West Virginia.
Where does that leave you, dear reader? Probably more in the dark than you realize, if you're reading mainstream news reports of legal events. What can you do about it?
Keep doing what you're doing right now. Read legal blogs.
Reporter Terry admits that most reporters don't have law degrees, they don't have the opportunity to talk with the judges, who are not permitted to comment on pending cases, and they're spread too thin between assignments.
Where does that leave legal reporters? Probably more in the dark than they realize, since they're not trained and can't rely on the judges. What can a reporter do about it?
Call or email legal bloggers. There are an entire cadre of us covering cases and legal events in just about every area of the law imaginable across the 50 states and across the world. Most, if not all of us are pleased to talk with reporters. In fact, I just got off the phone with CNN Boston, who needed some background information. Happy to provide it.
I'd rather have legal new as close to 100% accurate as possible. I disagree with Reporter Terry's conclusion in her article that the chasm between journalists and judges should remain in place, with just an occasional footbridge across the gap. The problem with the current 50% accuracy rate is that you can't tell which 50% is right.
Insurers Not Allowed To Collect Deductibles In Subrogation Suits
In order to save money, many businesses increase their insurance deductible. It reduces premiums and works well if you don't have a claim for several years. The idea is to save the premium reductions and offset the higher deductible if a claim arises. It obviously doesn't work well if you have a claim right away.
There's another twist to be aware of now, however, thanks to this recent court of appeal decision, Pacific Gas & Electric v. American Guarantee and Liability Insurance Company. If you deal closely with your insurance, then you've likely heard of "subrogation." Among other things, it's the method insurance companies use to recover payments to their insureds when someone other than their insured caused the loss. After they fork over a claim payment, the insurer sues the party that caused the loss. Insurance policies typically give the right of subrogation to the insurer when the insurer pays a claim.
Let's cover the facts. PG&E caused an industrial power failure, which resulted in a fire that caused damage to telephone equipment belonging to Pac-West Telecom. Pac-West's insurer, American Guarantee and Liability Insurance Company, a Zurich subsidiary, paid Pac-West's $67,000 loss, and then sued PG&E.
PG&E fought back and argued that while American Guarantee could recover the money it paid to Pac-West, it was not entitled to sue to recover Pac-West's deductible. That normally might not be a big deal to most businesses, but Pac-West had a large deductible: $50,000.
The appellate court agreed and PG&E ended up paying only the $17,000 above Pac-West's deductible to American Guarantee.
The moral of the story? After your insurer pays your claim, the matter isn't finished. If your insurer is going to sue the party that caused your loss, you need to join in that lawsuit in order to recover your deductible. Your insurance carrier can't recover that money for you.
2006 Judicial Election Picks From MIPTC
Every few years we have the opportunity to shape the judiciary here in Orange County, California. Many of you (and the firm's clients) have asked who to elect as judges. Realize here for a moment that you have as much power as Governor Schwarzenegger. Well, almost. He can appoint, but we can elect. So, for the upcoming slate of judges here in the county, here's MIPTC's picks for the local ballot:
For our local Superior Court: Shelia Hanson.
Heaven help us all with the raft of Propositions. I'm not going to wade into that morass.
Nebraska Court Snuffs Out Claim For T-shirt That Caught Fire
In my closet is a T-shirt I've had since high school. I should probably throw it away because it's full of holes, but I'm a guy. I hold on to things like that. Especially since it reminds my that I somehow managed to make it through three-a-day practices before football season started. Sure, I'm almost 50 now, but that's not the point. I was younger then.
You understand, don't you?
Jeffery J. Marksmeier apparently did, and it was almost his undoing. In 1999, Jeff was wearing an old T-shirt manufactured by McGregor (link has sound) that wasn't manufactured after 1990. And he was burning leaves. Obviously, he doesn't live here in California; he's from Nebraska where things like that are still legal. While he was burning leaves, however, he apparently leaned over a little too close to the pile of leaves and his T-shirt caught fire.
Jeff was severely burned, and to recover for his damages, in 2003, he sued McGregor and a company called Delta Apparel, Inc., which manufactured the T-shirt under license from McGregor. Apparently in the interim, there has been a change in the materials used to manufacture T-shirts, and Jeff claimed strict liability for using a material that didn't have flame retardant on it.
Instead, the Nebraska Supreme Court made short work of Jeff's lawsuit, and dismissed his claims against both McGregor and Delta. The high court cited Nebraska's statute of repose for bringing lawsuits against manufacturers of goods that were manufactured more than 10 years before the suit was filed. The Nebraska court had not had the opportunity to interpret its statute of repose before, but no worries, it found that Tennessee used the same one. With a hat tip to a series of Tennessee cases, the court snuffed out Jeff's claims against these two manufacturers.
Jeff and his mother were unable to testify when they got the T-shirt and how long it had been on the shelf at the store where they bought it. Jeff even thought the T-shirt might have come from Goodwill. McGregor, on the other hand, knew exactly when that particular T-shirt had stopped rolling off the manufacturing presses: 1990. More than 10 years had elapsed between then and the time Jeff filed suit, so Jeff did not pass go or collect $200.
Maybe it's time I clean out my closet.