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
Sixth Circuit: Filippo Leone v. BMI Refractory Servs., Inc.
Under state law, third party contractor has separate and distinct duty of care towards employees to avoid harmful acts when it is contracted to handle a pre-existing hazard.
Seventh Circuit: Pain Center of SE Indiana, LLC v. Origin Healthcare Solutions LLC
Anonymous parties to case are sufficiently de minimis for diversity purposes, so there's jurisdiction.
Actively supported software license is, under state "predominant thrust" test, a contract for services, rather than goods, making the UCC inapplicable.
State tort claims are time-barred, as the plaintiff had knowledge of the harm during the continuing contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1276:J:Sykes:aut:T:fnOp:N:2173943:S:0
Actively supported software license is, under state "predominant thrust" test, a contract for services, rather than goods, making the UCC inapplicable.
State tort claims are time-barred, as the plaintiff had knowledge of the harm during the continuing contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1276:J:Sykes:aut:T:fnOp:N:2173943:S:0
Fifth Circuit: Leoncio Garcia v. Wal-Mart Stores Texas, L.L.C.
Where the defendant denies actual knowledge on a state premises-liability tort claim, circumstantial particularized evidence of the hazard's creation suffices to establish an issue for trial where the plaintiff's scenario is more reasonable than the defendant's alternative conjecture.
Fourth Circuit: Angela Horne v. WTVR, LLC
Finance Director of local school board was appropriately considered a public official for the purposes of a defamation action, as the position invites public scrutiny; categorically, a past felony conviction is relevant in such a case.
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
Third Circuit: Joel Doe v. Boyertown Area School District
Use of school privacy facilities by transgender students doesn't present a Title IX claim for non-transgender students in the room, as the policy is of equal applicability to both sexes.
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
Insufficient injury for state tort claim.
Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.
http://www2.ca3.uscourts.gov/opinarch/173113p.pdf
First Circuit: Doherty v. Merck & Co., Inc.
State law defining a live, healthy birth as something without remedy at law does not offend state constitutional guarantees of open courts and jury trials.
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
Ninth Circuit: Richard Vos v. City of Newport Beach
Given the perimeter of police officers with guns, tasers, and dogs, the necessity of killing the gentleman running towards the exit of the 7-11 presents a genuine issue of disputed fact for trial.
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Qualified immunity for officers, as circuit precedent as to the appropriate bounds of behavior when dealing with odd, threatening people carrying sharp things was a bit unclear; question of municipal liability remanded.
As the ADA claim of lack of accommodation isn't dispelled by the fact that the officers didn't initiate the confrontation, the issue of reasonable accommodation presents a question for trial.
State tort definition of negligence reasonableness is distinct from Fourth Amendment reasonableness.
Dissent: Fact of mental illness in the suspect shouldn't change the calculus on the use of deadly force in an exigent situation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-56791.pdf
Fourth Circuit:Sade Garnett v. Remedi SeniorCare of Virginia
Employer not liable for workplace defamation since it wasn't in the employer's interests, wasn't condoned by the employer, and it was outside the scope of the tortfeasor's employment; there are literally millions of workplace interactions.
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
http://www.ca4.uscourts.gov/opinions/171890.P.pdf
DC Circuit: Rachel Fraenkel v. Islamic Republic of Iran
District court's reduction of damages in a FISA suit seeking solatium (consolation) damages against killers of family member because the victims were targeted on the basis of foreign citizenship was an abuse of discretion. The appropriate amount, though, is still a matter of judicial discretion.
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf
Seventh Circuit: Cheryl Dalton v. Teva North America
Bare statement of diversity of citizenship does not suffice for jurisdiction.
State liability statute required expert testimony on causation; neither a claim of obviousness nor a strict liability theory of claim defeats this.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-04/C:17-1990:J:Barrett:aut:T:fnOp:N:2165052:S:0
First Circuit: Potvin v. Speedway LLC
Property owner has no duty to warn where the danger is open and obvious.
Distracting effects of nearby gas pumps waived as not raised below.
Absent evidence of design defects in statutorily mandated safety devices, no duty to remedy any danger they present.
No abuse of discretion in District Court's substitution of one deft for another, given offer to indemnify.
"Longiloquent" apparently a word.
http://media.ca1.uscourts.gov/pdf.opinions/17-1993P-01A.pdf
Fifth Circuit: Jillian Johnson v. World Alliance Financial Corp.,
Contract, Tort
Agency regulations on reverse mortgages must be explicitly incorporated in the terms of the mortgage in order to be the basis for a borrower's claim.
No implicit guarantee in a reverse mortgage that the lender will subordinate all intervening liens.
No cause of action of fraudulent inducement where the intervening lien does not support foreclosure.
Jillian Johnson v. World Alliance Financial Corp.,
Eighth Circuit: Kenneth Stewart, Jr. v. Nucor Corporation
Contracts, Employment, Torts
Boilerplate negligence release valid and not unconscionable, as the language was plain and the trainee employee was permitted to ask questions about the form.
Kenneth Stewart, Jr. v. Nucor Corporation
Federal Circuit: CROOKER v. US
Sentencing, Torts
As federal sentencing law governs claims for monetary damages for imprisonment due to convictions later reversed, when a subsequent sentencing credits that time to offset the sentence, the statutory monetary remedy is unavailable.
CROOKER v. US
Eighth Circuit: Susan Parks v. Ariens Company
Torts
State law would likely hold that a manufacturer meets the duty of care to a reasonably knowledgeable customer by offering an optional safety device for sale. Although the doctrine is not included in the statutorily defined list of affirmative defenses, it qualifies as an antecedent question of reasonable duty.
Susan Parks v. Ariens Company
Eighth Circuit: Gerald E. Carlson v. Midwest Professional Planners
Torts
Claim against an insurance agent for not listing co-owners of policy doesn't state a claim, as the primary owner of the policy was the only one who could legally cure the omission.
Gerald E. Carlson v. Midwest Professional Planners
Sixth Circuit: Brandon Hefferan v. Ethicon Endo-Surgery
Conflict of Laws, Federal Jurisdiction, Subject Matter Jurisdiction, Torts
No abuse of discretion in court's refusal to hear claim under forum non conveniens, despite Germany's lack of adversarial process and lack of remedy for loss of consortium -- US courts would likely apply the law of the place of the delict (Germany), and the medical manufacturer has consented to service there.
&c, &c...
Brandon Hefferan v. Ethicon Endo-Surgery
Sixth Circuit: Anthony Smith, Jr. v. Joy Technologies, Inc.
Torts
Under state law, in products liability, there is no duty to warn where the danger is known.
Anthony Smith, Jr. v. Joy Technologies, Inc.
Tenth Circuit: Nelson v. United States
Torts, FTCA
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
Seventh Circuit: James Baptist v. Ford Motor Company
Employment, FRCP
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
Genuine issue of material fact exists in state retaliatory-discharge claim where there is doubt as to the reason for the end of employment,
James Baptist v. Ford Motor Company
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