No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Cutchin v. Robertson

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1437

Opinion Date: February 3, 2021

Judge: ROVNER

Areas of Law: Health Law, Medical Malpractice, Personal Injury, Professional Malpractice & Ethics

Cutchin’s wife and daughter were killed in an automobile accident that occurred when another driver, Watson, age 72, struck their vehicle. Cutchin alleges that Watson’s driving ability was impaired by medications she had been prescribed, including an opioid. Cutchin filed a malpractice suit against Watson’s healthcare providers, charging them with negligence for an alleged failure to warn Watson that she should not be driving given the known motor and cognitive effects of those medications. After the providers and their malpractice insurer agreed to a settlement of $250,000, the maximum amount for which they can be held individually liable under the Indiana Medical Malpractice Act (MMA), Cutchin sought further relief from the Patient’s Compensation Fund, which acts as an excess insurer. The Fund argued that the MMA does not apply to Cutchin’s claim and that he is barred from seeking excess damages from the Fund. The district court agreed. The Seventh Circuit certified to the Indiana Supreme Court the questions: Whether Ithe MMA prohibits the Fund from contesting the Act’s applicability to a claim after the claimant concludes a court‐approved settlement with a qualified healthcare provider, and whether the MMA applies to claims brought against individuals (survivors) who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else.

Pruitt v. Oliver

Court: Supreme Court of Alabama

Docket: 1190297

Opinion Date: January 29, 2021

Judge: Mendheim

Areas of Law: Civil Procedure, Personal Injury

Randall Pruitt appealed the grant of summary judgment against him and in favor of James Oliver with respect to Pruitt’s claims of negligence and wantonness stemming from a collision between Oliver’s car and Pruitt’s wheelchair. At the time of the accident, Pruitt’s wheelchair was equipped with a seat belt, two six-beam flashlights on the footrest, two flashing red bicycle lights on the back of his arm rests, some red reflectors on the back, and an orange vest with reflective yellow tape draped over the back. The maximum speed of the motorized wheelchair was five miles per hour. On a “pretty” night in April 2013, Pruitt was dropped off from the bus; his apartment was located across a four-lane road across from the bus stop. According to a witness, Oliver appeared to be trying to “beat a yellow light. He made the turn at a high rate of speed and hit the electric wheelchair from behind. The man in the chair was launched out of his seat and landed in the roadway. I could tell the chair had significant damage.” Oliver contended at trial Pruitt’s wheelchair was a “motor vehicle” under Alabama’s motor-vehicle and traffic code, and because the chair lacked certain safety equipment, Pruitt was “contributorily negligent per se” and should have been barred from recovering on his negligence claim. In the alternative, Oliver contended Pruitt, as a pedestrian, violated the rules for crossing a street where there was no crosswalk because he failed to yield the right-of-way to Oliver’s car, and failed to walk “as near as practicable to the outside edge of the roadway.” The Alabama Supreme Court concluded motorized wheelchairs were indeed “motor vehicles” under the pertinent provision of Alabama’s motor-vehicle and traffic code, but an issue of fact existed as to whether Pruitt’s violation of safety-feature-requirements for motor vehicles was the proximate cause of the accident. Furthermore, the Court concluded the trial court erred in finding there was not substantial evidence of Oliver’s alleged subsequent negligence, and therefore, that issue had to be submitted to a jury. Summary judgment in favor of Oliver with respect to Pruitt’s wantonness claim was affirmed.

Kieu Hoang v. Phong Minh Tran

Court: California Courts of Appeal

Docket: B302608(Second Appellate District)

Opinion Date: February 1, 2021

Judge: Kenneth R. Yegan

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

The Court of Appeal reversed the trial court's order denying defendant's special motion to strike plaintiff's complaint as a strategic lawsuit against public participation (SLAPP), Code Civ. Proc., 425.16. Plaintiff filed suit against defendant for defamation and other torts, alleging causes of action arising from an article about him that defendant had written in Vietnamese. The court concluded that the trial court erroneously determined that defendant had failed to satisfy the first prong of the anti-SLAPP statute, i.e., defendant had not made a threshold showing that plaintiff's action arose from protected activity in connection with an issue of public interest. In this case, the article concerned a matter of public interest because plaintiff was "in the public eye" in the Vietnamese community. Furthermore, plaintiff is collaterally estopped from claiming that the article did not concern an issue of public interest because this issue was decided against him in the prior BBC proceeding. The court also concluded that the trial court erroneously determined that plaintiff had satisfied the statute's second prong, i.e., plaintiff had demonstrated a probability of prevailing on his claims. The court explained that plaintiff has failed to carry his burden of establishing a probability that he can show by clear and convincing evidence that defendant acted with actual malice. Finally, the court concluded that plaintiff cannot establish a probability of prevailing on his second cause of action for violation of the common law of publicity and his third cause of action for civil conspiracy.

Tansavatdi v. City of Rancho Palos Verdes

Court: California Courts of Appeal

Docket: B293670(Second Appellate District)

Opinion Date: January 29, 2021

Judge: Nora M. Manella

Areas of Law: Government & Administrative Law, Personal Injury

Plaintiff filed suit against the city after her son was killed in a collision with a turning truck while riding his bike. Plaintiff alleged a dangerous condition of public property under Government Code section 835. The trial court granted the city's motion for summary judgment, concluding that the city had proved entitlement to design immunity as a matter of law under section 830.6. The court concluded that design immunity shields the city from liability for the absence of a bicycle lane. However, following the state Supreme Court's binding precedent Cameron v. State of California (1972) 7 Cal.3d 318, 327, the court held that even where design immunity covers a dangerous condition, it does not categorically preclude liability for failure to warn about that dangerous condition. In this case, the city's entitlement to design immunity for its failure to include a bicycle lane at the site of the accident does not, as a matter of law, necessarily preclude its liability under a theory of failure to warn. The court remanded for the trial court to consider the failure to warn theory in the first instance. The court affirmed in part and vacated in part.

Oconee County v. Cannon et al.

Court: Supreme Court of Georgia

Docket: S20G0584

Opinion Date: February 1, 2021

Judge: Peterson

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

Ronald and Christy Cannon sued Oconee County, Georgia after a vehicle chase initiated by an Oconee County sheriff’s deputy ended in their daughter’s death. The trial court granted the County’s motion for summary judgment, holding that: (1) the Sheriff of Oconee County in his official capacity, not the County, was liable for the deputy’s actions; and (2) the Cannons could not substitute the Oconee County Sheriff in his official capacity as the defendant in place of Oconee County because the statute of limitations had expired and the relation-back doctrine embodied in OCGA 9-11-15 (c) did not apply. The Court of Appeals affirmed the trial court’s determination as to the proper defendant but reversed its ruling that relation-back did not apply. The Georgia Supreme Court held that the application of the relation-back doctrine depended on whether the proper defendant knew or should have known that the action would have been brought against him but for the plaintiff’s mistake, not on what the plaintiff knew or should have known and not on whether the plaintiff’s mistake was legal or factual. The Supreme Court vacated the decision of the Court of Appeals and remanded with direction for the trial court for application of the proper standard.

Dunn v. Genzyme Corp.

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12904

Opinion Date: January 29, 2021

Judge: Gaziano

Areas of Law: Drugs & Biotech, Personal Injury, Products Liability

In this case involving claims of personal injury and product liability against the manufacturer of a medical device the Supreme Judicial Court reversed the decision of the superior court judge denying the manufacturer's motion to dismiss, holding that plaintiffs asserting parallel state law claims may do so with no greater degree of specificity than otherwise required under Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Plaintiff sued Genzyme Corporation, asserting that Synvisc-One, a class III medical device subject to premarket approval under the Medical Device Amendments (MDA), 21 U.S.C. 360c et seq., was negligently manufactured, designed, distributed, and sold by Genzyme. Genzyme filed a motion to dismiss on the grounds that the allegations were preempted by federal regulation. The trial judge denied the motion to dismiss. The Supreme Judicial Court reversed, holding that while all of Plaintiff's state law claims properly paralleled the federal requirements, none of them was sufficiently pleaded under Iannacchino to survive Genzyme's motion to dismiss.

Wilbourn v. Wilbourn

Court: Supreme Court of Mississippi

Citation: 2019-IA-00954-SCT

Opinion Date: February 4, 2021

Judge: Josiah D. Coleman

Areas of Law: Civil Procedure, Family Law, Personal Injury

This interlocutory appeal stemmed from a trial judge granting partial summary judgment, dismissing a claim of malicious prosecution. Richard and Victoria Wilbourn were in a longstanding domestic matter. Victoria accused Richard of misconduct towards their children, but the chancellor determined that the accusations were unfounded. Victoria went to the Ridgeland Police Department for help and filed an eight-page report against Richard, restating his alleged misconduct. The Ridgeland Police Department followed protocol, investigated, and referred the case to the district attorney’s office. The case was presented to a grand jury; the grand jury returned no bill. Notably, Richard was never charged, indicted, or arrested in connection with the investigation, and Victoria did not swear an affidavit against him. In the summer of 2016, Richard discovered the investigation and grand jury presentment and responded by filing suit, claiming malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. In response, Victoria moved for summary judgment. And after a hearing, the trial judge granted partial summary judgment, dismissing Richard’s claim of malicious prosecution but retaining the others. Definitively, the trial judge found that “no criminal proceedings were instituted and therefore [Richard] cannot satisfy the first element of his claim.” With no arrest or indictment, or Richard otherwise being subjected to oppressive litigation of criminal charges for the report that Victoria gave to the Ridgeland Police Department, the Mississippi Supreme Court concluded the trial court did not err in dismissing Richard's malicious-prosecution claim. The matter was remanded for further proceedings.

Edwards v. Douglas County

Court: Nebraska Supreme Court

Citation: 308 Neb. 259

Opinion Date: January 29, 2021

Judge: Stacy

Areas of Law: Personal Injury

The Supreme Court affirmed the district court's order granting summary judgment in favor of Douglas County and dismissing Plaintiff's suit brought under the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. 13-901 to 13-928, holding that dismissal was proper on grounds of sovereign immunity. Plaintiff was held hostage and sexually assaulted by a former boyfriend. In her personal injury complaint, Plaintiff alleged that the County mishandled a series of 911 calls and, consequently, emergency personnel did not arrive in time to prevent or stop the sexual assault. The district court found that the County owed no legal duty to Plaintiff and dismissed the case. The Supreme Court affirmed but on different grounds, holding that Plaintiff's negligence claim against the County fell within the exemption from the PSTCA "[a]ny claim arising out of assault."

Hawkins v. Delgado

Court: Nebraska Supreme Court

Citation: 308 Neb. 301

Opinion Date: January 29, 2021

Judge: Michael G. Heavican

Areas of Law: Personal Injury

The Supreme Court affirmed the order of the trial court finding that there was good cause to extend or continue a harassment protection order against Defendant, holding that Defendant's assignments of error were without merit. On February 3, 2020, Plaintiff sought a harassment protection order from the district court. After an ex parte order was issued a hearing was held on whether the ex parte order should be continued. The trial court denied Defendant's motion to dismiss and continued the harassment protection order until one year from the date of the original order. The Supreme Court affirmed, holding that the trial court did not err in (1) finding sufficient support to order the ex parte harassment protection order; and (2) denying Defendant's request to stay the show cause hearing.

Fuoco v. Polisena

Court: Rhode Island Supreme Court

Docket: 19-54

Opinion Date: January 29, 2021

Judge: Maureen McKenna Goldberg

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the superior court in favor of Defendant in this defamation case, holding that the trial justice did not err by granting summary judgment as a matter of law. The jury returned a verdict in favor of Plaintiff on her slander claim. After the jury verdict was rendered, the trial justice granted Defendant's motion for judgment as a matter of law and, in the alternative, granted Defendant's motions for a new trial and a remittitur. The trial court granted Defendant's motion for judgment as a matter of law pursuant to rule 50 of the Superior Court Rules of Civil Procedure, concluding that Plaintiff failed to present sufficient evidence that Defendant made defamatory statements. The Supreme Court affirmed, holding that Plaintiff failed to prove that Defendant's statements were false or were made with actual malice.

Feldman v. Salt Lake City Corp.

Court: Utah Supreme Court

Citation: 2021 UT 4

Opinion Date: January 28, 2021

Judge: Himonas

Areas of Law: Personal Injury

The Supreme Court reversed the judgment of the district court dismissing this wrongful death suit against Salt Lake City on the grounds that the action was barred by Utah's Limitations on Landowner Liability Act's prohibition on claims for personal injury caused by the inherent risks of participating in an activity with a recreational purpose, holding that Plaintiffs sufficiently alleged that the death in this case was not caused by a risk inherent in a recreational activity. Liudmila Feldman drowned in a creek at a City park when walking her dogs. Feldman tried to get the dogs out of the creek within the park but was caught in a dangerous current and drowned. Plaintiffs sued the City for wrongful death and other causes of action, asserting that the dangerous current at the creek resulted from manmade developments. The district court granted the City's motion to dismiss, concluding that Utah Code 57-14-401 barred Plaintiffs' claims. The Supreme Court reversed, holding (1) the district court correctly held that application of section 401 does not violate the wrongful death clause of the Utah Constitution; but (2) Plaintiffs sufficiently alleged that Feldman's death was not caused by an inherent risk in her recreational activity of walking in the park with her dogs.

AlBritton v. Commonwealth

Court: Supreme Court of Virginia

Docket: 191030

Opinion Date: February 4, 2021

Judge: Kelsey

Areas of Law: Personal Injury

The Supreme Court reversed the order of the circuit court entering summary judgment in favor of the Commonwealth and dismissing Plaintiff's complaint alleging that he was injured while falling down stairs negligently maintained by the Department of Corrections (DOC), holding that the circuit court erred. On appeal, Plaintiff challenged the three independent grounds relied upon by the circuit court in sustaining the Commonwealth's plea in bar and granting summary judgment. Among other things, Plaintiff argued that he exhausted his administrative remedies under the Virginia Tort Claims Act, and therefore, sovereign immunity did not bar his civil action. The Supreme Court reversed, holding (1) the initial grievance and all later appeals are properly submitted when the inmate timely places them into the prison mailing system, and therefore, the circuit court erred in concluding that grievance appeals are submitted for purposes of exhaustion when they are received by the DOC; and (2) the circuit court erred in granting summary judgment on the issues of primary and contributory negligence.

Washington v. Numrich

Court: Washington Supreme Court

Docket: 96365-7

Opinion Date: February 4, 2021

Judge: Barbara Madsen

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

At issue in this case was whether the general-specific rule applied to a second degree manslaughter charge stemming from a workplace death. The State initially charged Phillip Numrich under the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.190(3), the specific statute that punished employer conduct resulting in employee death. The State also charged the employer with second degree manslaughter. The trial court denied the employer’s motion to dismiss the manslaughter charge based on the general-specific rule, and the employer sought and was granted direct review. Specifically, the issue before the Washington Supreme Court was whether the trial court properly denied Numrich’s motion to dismiss a second degree manslaughter charge when one of his employees was killed at the construction site. While consideration of the employer’s motion for direct discretionary review was pending, the State moved to amend the information to add an alternative charge of first degree manslaughter. The trial court granted the motion to amend but sua sponte imposed sanctions against the State based on the timing of the amendment. The employer sought review of the order granting the amendment and the State sought review of the order imposing sanctions. The Washington Supreme Court concluded the trial court did not err in denying the employer’s motion to dismiss the manslaughter charge under the general–specific rule. Furthermore, the Court held the trial court did not err in granting the State’s motion to amend the information to add an alternative first degree manslaughter charge. Finally, the Court held the trial court did not err in imposing sanctions on the State under the circumstances of this case.