Injury & Tort Law
In civil rights action brought after a police officer sustained serious neck and lower back injuries during a training program, summary judgment for defendants is affirmed where: 1) plaintiff's substantive due process rights were not violated; 2) he was not "seized" in violation of the Fourth Amendment; 3) the Police and Firefighters' Retirement and Disability Act bars his local law claims; and 4) the claims against the physician defendants are meritless.
The circuit court certifies to the Oklahoma Supreme Court the question of whether, under the Oklahoma Wrongful Death Statute, a cause of action existed for the wrongful death of a nonviable stillborn fetus as of September 1-2, 2003.
An insurance policy that defines a covered person as "any other person with respect to liability because of acts or omissions of the insured" is not ambiguous. An insurance policy providing coverage for an additional insured "with respect to liability because of acts or omissions" of the named insured limits coverage to instances in which the additional insured is vicariously liable for acts of the named insured.
In a products liability suit against a medical device manufacturer, summary judgment for defendants is affirmed where: 1) the law governing the case was determined by the site of the injury, not the manufacture, thus the applicable law was that of North Carolina; 2) that state's statute of repose barred the suit; and 3) the North Carolina Supreme Court would not find an exception to the statute of repose.
In civil case alleging fraud and conspiracy to commit fraud against a bank, $161 million judgment against defendant is affirmed over claims that the court: 1) should have ordered a new trial as it erred in admitting evidence of defendant's earlier indictment on charges unrelated to conduct alleged in this civil action; 2) made a remark during trial that was incurably prejudicial; 3) should have awarded defendant judgment as a matter of law; and 4) should have ordered a new trial or a remittitur as the jury's damage award to the FDIC was against the great weight and preponderance of the evidence.
In case involving a hostile encounter between a teacher and her student where the teacher allegedly grabbed and squeezed the student's neck, summary judgment for teacher and school official defendants is affirmed where although misguided, the teacher's response to the student's misconduct, if true, was not so brutal or inhumane as to shock the judicial conscience. Moreover, it cannot fairly be said in light of the student's misbehavior that the teacher's conduct was based on actual malice or an intent to injure.
Volkswagen's petition for writ of mandamus seeking transfer of the case to another division and district in Texas, where the automobile accident and the injuries to the parties occurred, is granted where: 1) the district court erroneously applied the stricter forum non conveniens dismissal standard, as a party seeking a transfer pursuant to 28 U.S.C. section 1404(a) need only "show good cause"; 2) upon consideration and proper application of each of the relevant private and public interest factors, no relevant factor favored plaintiffs' chosen forum; and 3) the district court abused its discretion by failing to order transfer of the case.
Following removal of a malpractice, negligence, and fraud suit brought in state court by creditors in a consolidated Chapter 11 bankruptcy proceeding against the accountants who performed work during the bankruptcy, a decision dismissing the matter is affirmed as: 1) the circuit court lacks jurisdiction to review the bankruptcy and district courts' decisions relating to alleged procedural defects in the removal process and mandatory or permissive abstention; and 2) the bankruptcy and district courts did not err with respect to claims relating to subject matter jurisdiction and the bankruptcy court's final adjudicative authority.
Claims for injunctive declaratory relief under Title III of the Americans with Disabilities Act, and the Rehabilitation Act of 1973, are not moot after the defendant voluntarily ceased the alleged misconduct as the defendant has not met its heavy burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Non-economic damages are available under the Rehabilitation Act.
In a case involving the deadliest aviation disaster in Italian history between two jet airplanes, orders dismissing all European plaintiffs on forum non conveniens grounds and staying further proceedings in the one case brought by a U.S. citizen are vacated where: 1) the stay seems indefinite; and 2) whether the district court abused its discretion in dismissing the European plaintiffs will not be addressed on the merits as the most prudent course is to vacate that order and remand for further consideration in light of lifting the stay in the other case.
In indemnification and contribution action by plaintiff city against defendant regarding defendant's maintenance of traffic signals relative to a car accident, filed after plaintiff city was found liable, the Appellate Division erred in concluding that plaintiff was barred by the doctrines of res judicata and collateral estoppel from maintaining its action for indemnification or contribution against defendant.
In a suit under the Federal Tort Claims Act arising out of the death of an FBI informant, dismissal of the complaint is affirmed where: 1) plaintiffs did not file an appeal of a previously dismissed complaint, thus the court did not have jurisdiction over that decision; 2) the mailbox rule does not apply to letters notifying of an exhaustion of administrative remedies; and 3) plaintiffs did not file their appeal within six months after the mailing of the exhaustion letter for their administrative proceeding.
Dismissal of suit alleging wrongful death and survivorship claims from asbestos-related injuries for failure to secure a trial within five years of the filing of the original complaint is reversed where the wrongful death claims and plaintiff wife's loss of consortium claim should not have been dismissed.
In an action to confirm the arbitration award in the matter of an uninsured motorist claim, dismissal of defendant's counterclaim for breach of contract is affirmed where defendant waived the issue of plaintiffs' misrepresentations by failing to raise it until more than two years after receiving the claim, and more than one year after the arbitration award.
In case where employee took toxic materials from her employer and used them to murder her husband, trial court ruling that defendant-county could be liable in wrongful death damages, and jury award of damages for plaintiffs, are reversed where: 1) the county coworkers of the perpetrator did not owe a duty to the victim and, therefore, county cannot be held vicariously liable for the coworkers' failure to prevent the murder as the coworkers would not be personally liable; 2) a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained; 3) federal regulations did not impose a mandatory duty actionable within the meaning of Government Code section 815.6 as they do not command specific acts designed to prevent an employee from using embezzled drugs to commit premeditated first degree murder; and 4) the particular kind of injury the plaintiff suffered was not the type of injury that the mandatory duty of section 815.6 was designed to protect against.
In an action brought against a doctor and other defendants arising from circumstances in which an individual was rendered comatose during surgery, summary judgment for some defendants is affirmed where: 1) although, contrary to the court of appeals ruling, plaintiff presented competent summary judgment evidence of her continuous mental incapacity; nonetheless, 2) the Texas Constitution's open courts guarantee was not violated by the application of a statute of limitations in this case.
In a malpractice action arising from circumstances in which plaintiff, while a patient at defendant-hospital, sustained injuries as a result of a fall from his bed, summary judgment for defendant-hospital operator is reversed as: 1) a May 1 paper filing of the complaint and praecipe was sufficient to toll the statute of limitations, even though those documents were not (but should have been) e-Filed; and 2) the conclusion that the statute of limitations was tolled on May 1 could not be "undone" by giving effect to plaintiff's default admission that June 21 was the date that the first "legally cognizable" praecipe was filed.
In a negligence action based on injuries sustained as a result of the collapse of a scaffold at a bridge repair site, granting of defendants' motion for summary judgement is reversed where the exclusive remedy provisions of the Workers' Compensation Act do not apply to either defendant-Halverson Construction Co. or the joint venture formed by defendant-Halverson and defendant-Midwest Foundation Corp.
In a suit resulting from the accidental shooting death of a child, granting of defendants' motions for summary judgment is reversed as to defendant sheriff where the storage of the firearm by the father of the child who accidentally discharged the firearm was incidental to his conduct authorized by sheriff. Summary judgment is reversed as to defendant-Beretta Corp. where plaintiffs' failure to warn claim presented a question of fact and should have survived summary judgment to determine if Beretta's warnings were sufficient.
In a wrongful death action resulting in a certified question, where a plaintiff proceeding pro se was formerly licensed to practice law, but is voluntarily on inactive status pursuant to Illinois Supreme Court Rule 756(a)(5) at the time of the filing of a complaint under the Wrongful Death Act, he or she is not authorized to practice law and the nullity rule applies even though plaintiff returned to active status prior to a hearing on a motion to dismiss the complaint as a nullity. (Corrected 10/16/07)
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