Although festival organizers had effective control of the street, the permit required that it be operated according to the usual traffic control plan; organizers did not therefore have a duty of care that might have prompted them to change that.
Similarly, negligence per se, implied warranty, and public nuisance don't state a claim.
Murderous driver not sufficiently foreseeable; the test is forseeability from recent events, not actual knowledge of threat.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50674-CV0.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label Torts. Show all posts
Showing posts with label Torts. Show all posts
Second Circuit: Spinelli v. National Football League
As implied license is an affirmative defense, all elements must be plain in order to dismiss an infringement claim at the pleadings stage.
Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.
Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.
Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.
(Miscellany)
Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc. Rather than simply alleging the existence of a behemoth.
http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/
Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.
Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.
Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.
(Miscellany)
Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc. Rather than simply alleging the existence of a behemoth.
http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/
Third Circuit: In re: Tribune Media Company
Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns. Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.
As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.
Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.
Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.
Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.
http://www2.ca3.uscourts.gov/opinarch/172449p.pdf
Third Circuit: Encompass Insurance Co v. Stone Mansion Restaurant Inc
Given the plain reading of the statute, a domestic opponent can remove a case to federal court despite the forum defendant rule if the notice of removal is filed before acceptance of service of the complaint; the rule as set forth in the statute only applies to parties who have been properly joined and served. Party's agreement to accept electronic service did not have a preclusive effect on consent to jurisdiction.
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
First Circuit: Scholz v. Goudreau
Given uncontroverted evidence of attempted compliance with the terms of the agreement, court did not abuse its discretion in holding that there was no issue for trial.
As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.
As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.
Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.
Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.
Court was within its discretion in refusing an award of fees.
Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.
http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf
As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.
As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.
Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.
Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.
Court was within its discretion in refusing an award of fees.
Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.
http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf
Fifth Circuit: IAS Service Group, L.L.C. v. Jim Buckley & Associates
Fraudulent inducement pleaded with sufficient particularity; Contractual term did not operate as a disclaimer of reliance; no clear error in court's determination that breach of contract regarding assignment was harmless; party asserting breach had the obligation to establish performance of the condition precedent.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50105-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50105-CV0.pdf
Third Circuit: W.R. Grace & Co. v.
Injunction channelling recoveries in asbestos bankruptcies applies to both named and un-named parties; the injunction does not pre-empt state workman's compensation laws by governing recoveries by workmans comp funds, as it doesn't modify rights or duties under the law.
Test of whether recoveries are governed by the injunction is whether the injury is wholly separate from the asbestos liability.
http://www2.ca3.uscourts.gov/opinarch/171208p.pdf
Test of whether recoveries are governed by the injunction is whether the injury is wholly separate from the asbestos liability.
http://www2.ca3.uscourts.gov/opinarch/171208p.pdf
Eighth Circuit: BNSF Railway Company v. Seats, Incorporated
State common-law tort action against railway suppliers is not preemepted.
http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf
http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf
Seventh Circuit: Straits Financial LLC v. Ten Sleep Cattle Co.
Account guarantee agreement for cattle hedging account void where plaintiff had no knowledge of the illicit trades being made using it.
Duty to mitigate begins with actual knowledge.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2100:J:Hamilton:aut:T:fnOp:N:2201302:S:0
Duty to mitigate begins with actual knowledge.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-13/C:17-2100:J:Hamilton:aut:T:fnOp:N:2201302:S:0
Holzhauer v. Golden Gate Bridge District
Tort liability for joint operation of a vessel is determined proximate to the time of the accident, not through the duration of the voyage. The boat owner therefore had no duty to supervise the skilled passenger under a duty of joint operation when the latter took the helm, and as there was no duty of care, no question of comparative negligence arises.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/16-15942.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/16-15942.pdf
Seventh Circuit: Alfredo Miranda v. County of Lake
14th Amendment and negligence claims against jail physicians for the self-starvation and dehydration death of a non-citizen arrested for evading jury service present an issue for trial when the jury might reasonably decide that the denial of treatment was objectively unreasonable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-1603:J:Wood:aut:T:fnOp:N:2200463:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-10/C:17-1603:J:Wood:aut:T:fnOp:N:2200463:S:0
Sixth Circuit: Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc.
State tortious interference claim requires the specific intent to interfere with the business relationship.
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Even for a requirement or output contract, state statute of frauds requires a writing enforceable against the deft for any claim arising from the transaction.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0162p-06.pdf
Tenth Circuit: Clark v. Colbert
Firing of non-lethal rounds at a contained, psychotic fellow with a knife who refused to submit to arrest was not an unconstitutionally excessive use of force.
Appeal of state tort claim waived as only one of three independent grounds for denial was addressed.
Appeal of municipal liability under ADA waived for insufficient development of grounds for appeal.
Jail nurse's refusal to allow follow-up appointment with doctor, resulting in an improperly knit bone healing, did not rise to the level of conscious disregard of an excessive risk to health or safety.
https://www.ca10.uscourts.gov/opinions/17/17-7046.pdf
Appeal of state tort claim waived as only one of three independent grounds for denial was addressed.
Appeal of municipal liability under ADA waived for insufficient development of grounds for appeal.
Jail nurse's refusal to allow follow-up appointment with doctor, resulting in an improperly knit bone healing, did not rise to the level of conscious disregard of an excessive risk to health or safety.
https://www.ca10.uscourts.gov/opinions/17/17-7046.pdf
First Circuit: Sindi v. El-Moslimany
As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Seventh Circuit: Scott Robinett v. City of Indianapolis
State indemnification statute's requirement that the challenged conduct be within the scope of employment is determined by the final finding of the court, not the allegations in the claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
Second Circuit: Conte v. Emmons
Deft's conduct insufficient as a matter of law to establish tortious interference with contracts, as comments to third parties were not specifically targeted, and any conduct incidental to a lawful purpose cannot be the basis of the claim.
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
DC Circuit: John Croley v. Joint Committee on Judicial Administration
District Court has jurisdiction over claim alleging that DC Courts mismanaged tort recovery of plaintiff, since the claim sounds in tort and presents freestanding claims under the Federal Constitution; the claim doesn't amount to an attempt to revisit the earlier state court judgment, as the plaintiff prevailed in the DC action.
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf
DC Circuit: EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A.
The domestic effects of the scheme were sufficient for jurisdiction under FISA, as damages were incurred before the foreign investors withdrew (which might have attenuated the causation), and the foreign locus of the investment vehicles used by the domestic investors does not preclude a finding of direct effects on the domestic investors.
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf
DC Circuit: Jennifer Campbell v. DC, et al
Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.
https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf
Sixth Circuit: Rita McDaniel v. Upsher-Smith Laboratories, Inc.
Where the claim arises from a state product liability statute that looks to the federal guidelines as to the level of medical warnings to be provided, a claim under the tort based on the omission of the warning is impliedly preempted by federal law.
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted. Learned intermediary doctrine does not save defts.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf
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