Latest 11 Cases This Week: Perez v. K & B Transportation, Inc. (7th Cir.), Scott v. Dyno Nobel, Inc. (8th Cir.), Estate of Joseph Valverde v. ...

Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Perez v. K & B Transportation, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2984

Opinion Date: July 24, 2020

Judge: HAMILTON

Areas of Law: Personal Injury

The accident occurred on I-294 in Illinois. The posted speed limit was 55 miles per hour. It was dark. The weather was cold, snowy, and icy. Perez’s SUV spun out of control. Wharton’s tractor-trailer truck struck the right rear of Perez’s car. Perez claims that his vehicle hit a patch of black ice within its lane, swerved, then returned to the original lane in which Wharton was following Perez. Perez testified he was driving 15-30 miles per hour, while Wharton was driving at or slightly above the posted speed limit. Wharton says that she saw Perez spin out and that his vehicle moved from the right lane all the way to the left side of the highway, so she began slowing down, but Perez unexpectedly cut all the way across the highway again. Wharton testified that she had downshifted to third or fourth gear by the time of impact so that her truck would have been going 10-15 miles per hour. After excluding Perez’s expert witnesses on accidents and truck‐driving, the district court granted summary judgment for Wharton. The Seventh Circuit reversed. Under Illinois law, a reasonable jury could infer that Wharton was driving negligently based on the evidence that she rear‐ended Perez and that she was driving too fast for the weather conditions.

Scott v. Dyno Nobel, Inc.

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-2897

Opinion Date: July 24, 2020

Judge: Per Curiam

Areas of Law: Personal Injury

After a nitric acid manufacturing plant operated by Dyno emitted a cloud of nitric oxides engulfing workers, including plaintiff, plaintiff and his wife filed a negligence action against Dyno. The district court applied Missouri law and granted summary judgment to Dyno, concluding that Dyno did not owe plaintiff a legal duty of care because his injury was not foreseeable. The Eighth Circuit reversed and held that the record on summary judgment establishes that the question of foreseeability, as incorporated into the analysis of the legal duty of care under Missouri law, was not appropriate for summary judgment. Rather, the court held that the question of foreseeability is subject to varying inferences and is therefore an issue for a jury. In this case, although there was no evidence that emissions of NOx gas from the Dyno smokestack previously had caused injury to workers at the nearby Calumet site, a reasonable jury could find that the circumstances of the emissions in this case created some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it. Accordingly, the court remanded for further proceedings.

Estate of Joseph Valverde v. Dodge

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1255

Opinion Date: July 30, 2020

Judge: Harris L. Hartz

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Personal Injury

Denver Police Sergeant Justin Dodge fatally shot Joseph Valverde after he saw Valverde pull out a gun as a SWAT team arrived to arrest him after an undercover drug transaction. Plaintiff Isabel Padilla, as personal representative of Valverde’s estate, sued Dodge under 42 U.S.C. 1983, claiming Dodge used excessive force in violation of Valverde's Fourth Amendment rights. Dodge moved for summary judgment on qualified immunity grounds, but the district court denied the motion. The district court held: (1) a reasonable jury could find that Valverde had discarded the gun and was in the process of surrendering before Dodge shot him; and (2) the use of deadly force in that situation would violate clearly established law. Dodge appealed. After review, the Tenth Circuit reversed the district court. "Dodge is entitled to qualified immunity because he had only a split second to react when Valverde suddenly drew a gun. He did not violate the Fourth Amendment by deciding to shoot without waiting to see whether Valverde was merely taking the gun from his pocket to toss away rather than to shoot an officer. And to the extent that Plaintiff is arguing that Dodge should be liable because he recklessly created the situation that led to the apparent peril, Dodge is entitled to qualified immunity because he did not violate clearly established law."

Stokes v. United States

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-7034

Opinion Date: July 29, 2020

Judge: Moritz

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

An employee of a federally supported health center failed to properly administer a drug to Alexis Stokes while she gave birth to Baby Stokes. As a result, Baby Stokes suffered from “cerebral palsy and spastic quadriplegia,” along with other disabilities, and his life expectancy was 22 years. The district court awarded damages to Baby Boy D.S. (Baby Stokes) and his parents, Alexis Stokes and Taylor Stokes, (collectively, the Stokes) in this Federal Tort Claims Act (FTCA) action. The government appealed, arguing that the district court erred in structuring damage payments. The Stokes cross appealed, arguing that the district court erred both by miscalculating the present value of a portion of the award and by awarding too little in noneconomic damages. After review, the Tenth Circuit: (1) vacated and remanded the portion of the district court’s order structuring a trust with respect to Baby Stokes’s future-care award, with instructions to fully approximate section 9.3 of the FTCA; (2) vacated and remanded the portion of the district court’s order calculating the present value of Baby Stokes’s future-care award, with instructions to apply Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983); and (3) affirmed the portion of the district court’s order regarding noneconomic damages. The matter was remanded for further proceedings.

Adams v. Alaska Workers Compensation Benefits Guaranty Fund

Court: Alaska Supreme Court

Docket: S-17227

Opinion Date: July 24, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

Virgil Adams, a self-described journeyman carpenter, worked sporadically from 2009 to 2011 at a house located on Snow Bear Drive in Anchorage. He suffered a “T12 burst fracture with incomplete spinal cord injury” when he fell from the house’s roof in 2011, and became permanently and totally disabled as a result of the fall. He filed a claim with the Alaska Workers’ Compensation Board, and, because the property owner for whom he worked had no workers’ compensation insurance, the Workers’ Compensation Guaranty Fund was joined to the workers’ compensation case. The Fund disputed whether the property owner for whom the carpenter worked was an “employer” as defined in the Alaska Workers’ Compensation Act and contended the worker’s intoxication caused the accident. The Board decided the injury was compensable based on two findings: (1) the property owner was engaged in a real-estate-related “business or industry” and (2) the worker’s alleged intoxication did not proximately cause the accident. The Fund appealed to the Alaska Workers’ Compensation Appeals Commission; the Commission reversed because, in its view, the Board applied an incorrect legal test in determining whether the property owner was an employer and no evidence in the record could support a determination that the property owner was engaged in a “business or industry” at the time of the injury. The Commission decided the intoxication issue was not ripe for review. After review, the Alaska Supreme Court reversed the Commission’s decision, finding the Board did not legally err and substantial evidence supported its employment-status decision. The matter was remanded to the Commission for consideration of the intoxication issue.

Sampson v. Alaska Airlines, Inc.

Court: Alaska Supreme Court

Docket: S-17211

Opinion Date: July 24, 2020

Judge: Craig F. Stowers

Areas of Law: Civil Procedure, Personal Injury

In April 2015 Tracy Sampson was at the Kotzebue Airport, en route from Anchorage to her home in Selawik. She was walking from the Alaska Airlines terminal to the Bering Air terminal when she slipped and fell on ice. Paramedics brought her to the hospital emergency room. Medical staff took X-rays and told Sampson that she had fractured her kneecap and needed to go to Anchorage for surgery. Medical staff at the Alaska Native Medical Center in Anchorage informed Sampson that half of her kneecap was fractured and half was shattered. They subsequently performed surgery. After surgery, her knee was put in an immobilizer and a cast. She traveled back to Selawik around a week later and was bedridden for about two months. Sampson filed suit against the airline; a jury found the airline liable and awarded Sampson "substantial" damages. Sampson appealed, arguing the special verdict form contradicted the jury instructions. Because the verdict form was not plainly erroneous, the Alaska Supreme Court affirmed.

Helfman v. Northeastern University

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12787

Opinion Date: July 27, 2020

Judge: Barbara A. Lenk

Areas of Law: Contracts, Personal Injury

The Supreme Judicial Court affirmed the order of the superior court granting summary judgment to Northeastern University on Plaintiff's negligence-related claims stemming from a nonconsensual encounter with a fellow student, holding that, under the circumstances, Northeastern had no duty to protect Plaintiff. In her complaint, Plaintiff alleged that Northeastern negligently failed to prevent and contributed to the occurrence of the sexual assault. Plaintiff further asserted tort, contract, and statutory claims alleging that Northeastern failed adequately to respond to the incident. The Supreme Judicial Court affirmed, holding (1) a special student-university relationship between Plaintiff and Northeastern existed, but Northeastern owed no duty to protect Plaintiff because Northeastern could not reasonably have foreseen that, absent some intervention on its part, Plaintiff would be subjected to a criminal act or other harm; and (2) there was no error in the motion judge's conclusions regarding Plaintiff's statutory or contract claims.

Mays v. Snyder

Court: Michigan Supreme Court

Dockets: 157335, 157336, 157337

Opinion Date: July 29, 2020

Judge: Bernstein

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Personal Injury

Water users and property owners in Flint, Michigan (plaintiffs) brought a class action at the Court of Claims against defendants Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (the MDEQ), and the Michigan Department of Health and Human Services (collectively, the state defendants) and against defendants Darnell Earley and Jerry Ambrose (the city defendants). Plaintiffs alleged the Governor and these officials had knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water. In 2014, under the direction of Earley and the MDEQ, Flint switched its water source from the Detroit Water and Sewage Department (DWSD) to the Flint River. Less than a month after the switch, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Plaintiffs alleged state officials failed to take any significant remedial measures to address the growing health threat and instead continued to downplay the health risk, advising Flint water users that it was safe to drink the tap water while simultaneously arranging for state employees in Flint to drink water from water coolers installed in state buildings. The state and city defendants separately moved for summary disposition on all four counts, arguing that plaintiffs had failed to satisfy the statutory notice requirements in MCL 600.6431 of the Court of Claims Act, failed to allege facts to establish a constitutional violation for which a judicially inferred damages remedy was appropriate, and failed to allege facts to establish the elements of any of their claims. The Court of Claims granted defendants’ motions for summary disposition on plaintiffs’ causes of action under the state-created-danger doctrine and the Fair and Just Treatment Clause of the 1963 Michigan Constitution, art 1, section 17, after concluding that neither cause of action was cognizable under Michigan law. However, the Court of Claims denied summary disposition on all of defendants’ remaining grounds, concluding that plaintiffs satisfied the statutory notice requirements and adequately pleaded claims of inverse condemnation and a violation of their right to bodily integrity. The Court of Appeals affirmed the Court of Claims. After hearing oral argument on defendants’ applications, a majority of the Michigan Supreme Court expressly affirmed the Court of Appeals’ conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals opinion was otherwise affirmed by equal division.

Walker v. BNSF Railway Co.

Court: Nebraska Supreme Court

Citation: 306 Neb. 559

Opinion Date: July 24, 2020

Judge: Per Curiam

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the district court in favor of BNSF Railway Co. on Plaintiff's negligence action under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq., holding that the exclusion of some of Plaintiff's evidence did not unfairly prejudice Plaintiff. While working for BNSF, Plaintiff was injured when a forklift she was driving tipped over. The jury returned a verdict for BNSF on Plaintiff's negligence action. The district court accepted the verdict and entered judgment. On appeal, Plaintiff argued that the district court erred when it excluded evidence of BNSF's admission that the forklift was overloaded and at risk for tipping. The Supreme Court affirmed, holding that the district court's exclusion of testimonial evidence of BNSF's designee related to the company's post accident investigation did not unfairly prejudice Plaintiff's substantial right.

Fodness v. City Of Sioux Falls

Court: South Dakota Supreme Court

Citation: 2020 S.D. 43

Opinion Date: July 29, 2020

Judge: Kern

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the circuit court granting the motion to dismiss filed by the City of Sioux Falls and denying Plaintiffs' motion to amend their complaint alleging negligence against the City, holding that the court did not err by granting the City's motion to dismiss for failure to state a claim. Plaintiff was injured when her apartment collapsed after a contractor demolished certain portions of a load-bearing wall. Plaintiff and her parents sued the City, alleging negligence for issuing a building permit for the project. The City filed a motion to dismiss, arguing that the public duty rule barred the suit and that Plaintiffs failed to plead sufficient facts to establish that the City owed them a special duty to bring them within the exception to the public duty rule. The circuit court granted the motion to dismiss, concluding that the complaint failed to allege sufficient facts to establish that the City owed Plaintiffs a special duty of care. The Supreme Court affirmed, holding (1) a special duty was not created by the City's issuance of the permit, and therefore, the circuit court properly dismissed the complaint; and (2) the circuit court did not abuse its discretion in denying Plaintiffs' motion for leave to amend.

Loeffel v. Dash

Court: Wyoming Supreme Court

Citation: 2020 WY 96

Opinion Date: July 27, 2020

Judge: Michael K. Davis

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the district court against Plaintiff on her negligent credentialing claim against the Board of Trustees of the Memorial Hospital of Carbon County (the Hospital), holding that the default judgment against Eric Dash, M.D. did not estop the Hospital from contesting his negligence. Plaintiff filed a complaint alleging negligence against Dr. Dash and negligent credentialing and vicarious liability against the Hospital. When Dr. Dash failed to answer or otherwise defend the district court entered a default judgment against him. A two-phase jury trial was subsequently on the negligent credentialing claim against the Hospital, with the first phase trying the question of Dr. Dash's negligence. The jury returned a verdict finding no negligence. The district court then entered judgment in favor of the Hospital, finding that the negligence of Dr. Dash was a prerequisite to liability against the Hospital for negligent credentialing. The Supreme Court affirmed, holding that the district court (1) did not err when it found the default judgment against Dr. Dash was not binding on the Hospital on the basis of collateral estoppel or issue preclusion; and (2) did not abuse its discretion when it bifurcated the issue of Dr. Dash's negligence from the negligent credentialing claim against the Hospital.