Too Trivial to Be Actionable

by Andrew J. Petersen

Recognizing the earth is not flat, New York’s premises liability law holds:

A property owner may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection.

Chirumbolo v. 78 Exch. St., LLC, 137 A.D.3d 1358 (2016). This “too trivial to be actionable” doctrine holds that courts can decide as a matter of law the condition is not unreasonably dangerous by considering “such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury.” Id. New York also rejects allowing a plaintiff to use the Americans with Disabilities Act accessibility standards as a safety standard of care. Id. at 1360. 

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

The Half Death of the Irreparable Injury Rule

by Andrew J. Petersen

The irreparable injury rule is based on a body of cases where courts have denied injunctive relief when the complainant has an adequate legal remedy, i.e., monetary damages. In 1990, Douglas Laycock wrote a law review article entitled The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687 (1990). A year later, his research became a book, and he argues against use of the rule, quite convincingly. Professor Laycock concludes that the irreparable injury rule is misleading rhetoric because of the numerous cases where the meaning of “adequate” or “irreparable” is result oriented. The rule fosters inconsistency and an outdated hierarchy of remedies: “When a judge believes that the irreparable injury rule requires a wrong result, he may do what he thinks is right whether or not he can explain it.” The rule is not a significant barrier to equitable relief because the legal remedy is almost never adequate. Professor Laycock concludes that often damages are not adequate unless the law wants them to be. 

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

 

Supreme Court Nominee Judge Gorsuch

by Andrew J. Petersen

I have reviewed several of Judge Gorsuch’s opinions from the 10th Circuit Court of Appeals involving claims against public officials and governmental entities. The Supreme Court’s docket always includes several §1983 cases. Cases this term include: District of Columbia v. Wesby (Fourth Amendment claims against officers for citing partygoers for trespass); Manuel v. City of Joliet (Fourth Amendment claim and relationship to malicious prosecution); and County of Los Angeles v. Mendez (so-called Ninth Circuit provocation rule and Fourth Amendment). It is unlikely that Judge Gorsuch will be confirmed in time to participate in these cases. Manuel v. City of Joliet was argued back in October. County of Los Angeles v. Mendez will be argued March 22nd. I believe the standard practice is for a new justice not to participate in previously argued cases. Cases are argued through April. 

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

The Subcontractor Exception to the “Your Work” Exclusion

By Andrew J. Petersen

The standard CGL policy includes a “your work” exclusion stating that the insurance does not apply to property damage to “your work” arising out of or in any part of it and included in the products completed operations hazard. This exclusion prevents a general liability policy from becoming a performance bond by excluding the insured’s work. There is an exception to the exclusion when the work was performed by a subcontractor. Over the years, this exception to the “your work” exclusion has become one of the leading ways to find coverage for construction defects. 

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Qualified Immunity as a Civil Rights Defense

by Andrew J. Petersen

Qualified immunity is often the strongest defense in a civil rights lawsuit. In a case where an officer shot at a fleeing vehicle to try to disable it, but missed and hit the driver instead, the Supreme Court in Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) reiterated:

The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.

When the law is not clearly established that an officer's actions violate a constitutional right, then he or she is entitled to the qualified immunity defense. 

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Combating Interference with Independent Medical Examinations

By Andrew J. Petersen

Recently, I was alerted to the continuing problem of plaintiffs’ attorneys who interfere with independent medical examinations (IMEs). When the mental or physical condition of a party is in controversy, the court may order that party to submit to a physical or mental examination by a physician or psychologist. Plaintiffs’ attorneys understand the significance of IMEs and look for ways to counter them. At times, they launch full-scale attacks on physicians. Resisting and interfering with IMEs occur in other ways as well. Insisting on videotaping the IME, insisting on having a representative present for the examination, and arguing over the scope of the IME are some tactics. Defense attorneys are able to fight these tactics in a variety of ways.

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Defendant May Allocate Fault to Healthcare Provider who Negligently Treats Injury

by Andrew J. Petersen

The Arizona Supreme Court recognized fault can be allocated to a healthcare provider who commits malpractice while treating an accident victim in Cramer v. Mungia, decided July 18, 2016. Under common law, the original tortfeasor doctrine recognized that an original tortfeasor who causes injury will be held liable for any additional injury caused by the concurrent or succeeding negligence of a third person which does not break the chain of causation. Thus, the original tortfeasor is a proximate cause of both the original and successive injuries, and she will be held liable for all injuries. In other words, if a plaintiff was injured in an accident and while seeking treatment for her injuries, a healthcare provider commits malpractice, the defendant would be held liable for all damages, including those caused by the malpractice.

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Construction Related Litigation Insurance Coverage Issues in Arizona

by Andrew J. Petersen

Construction defect litigation and insurance coverage is a quagmire. There are longstanding disputes over policy language and exclusions, public policy concerns, and in every individual case, significant questions regarding causation and damages.

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Freedom of Expression and the Marketplace of Ideas

By Andrew J. Petersen

Since we celebrated the Fourth of July last week, here are a few of my own thoughts on free speech. In 1919, Justice Oliver Wendell Holmes explained freedom of expression and free speech by using a metaphor of the "marketplace of ideas." He correlated the necessity of free speech with free trade and competition in the marketplace. This free trade of ideas emerged from the printing presses in revolutionary America where the press challenged both economic and social relations. Justice Holmes declared: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas."

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.

Parental Liability for Children's Actions

By Andrew J. Petersen

Children may by liable for both their negligent and intentional torts, although very young children (common law placed the age under seven years) may be deemed incapable. Parent(s) may also be held liable for their child's actions in several circumstances. These include:

1) Parent who signs driver's license application is jointly and severally liable, but only if vehicle is uninsured.

2) Parent who owns a vehicle and permits an unlicensed minor to drive is jointly and severally liable.

3) Family purpose doctrine.

4) Malicious and willful misconduct of minor child; liability is imputed to parent up to $10,000. 

5) Parent may be liable for negligent supervision and negligent entrustment.

For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.