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Archive for the ‘Tort and Catastrophic Loss’ Category

Massachusetts Appeals Court Rules No Immunity for Affirmative Act in Connection with Decedent’s Suicide

Posted on: September 4th, 2019

By: Eric Martignetti

In the recent decision of Williams v. Boston Public Health Commission, the Massachusetts Appeals Court partly reversed the trial court’s dismissal of claims brought by the plaintiff against the Boston Public Health Commission (“Commission”).

The plaintiff alleged negligence against the Commission arising out of the death of the plaintiff’s decedent.  As alleged in the Amended Complaint, the staff at a homeless shelter called 911 to report that the decedent was experiencing suicidal thoughts.  Boston EMS, which is under the control of the Commission, sent an ambulance to the shelter.  The responding EMTs did not restrain the decedent and did not have a police transport to the hospital.  When they arrived at the hospital, the EMTs opened the door to the ambulance, and the decedent ran into the street where she was killed by a car.

The Court stated that the Massachusetts Tort Claims Act (“MTCA”) immunizes public employers from “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could not be held liable for its alleged failure to train or supervise the EMTs.

However, the Court stated that the MTCA does not immunize public employers from a claim “based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [she] was in before the intervention.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could be held liable for placing the decedent in a worse position because the EMTs transported her from the shelter, where the staff was looking after her and securing help for her, to the hospital, where nobody was able to prevent her from killing herself.

The Court rejected the Commission’s argument that the alleged failure to protect the decedent is an omission from which the Commission should have immunity.  The Court concluded that although the failure to train and supervise was an omission, the transporting of the decedent to the hospital was an affirmative act.

The Court also rejected the Commission’s argument that the EMTs owed not duty to protect the decedent from her own conduct because there was no special relationship between her and the EMTs.  The Court concluded that EMTs have a duty of care to the patients they transport.

If you have any questions or would like more information, please contact Eric Martignetti at [email protected].

Let the Music Play On: The Supreme Court of Georgia’s New Test Regarding Immunity Under the Recreational Property Act

Posted on: August 22nd, 2019

By: Jake Loken

Inviting individuals onto your property can lead to the invitation of a lawsuit. Generally, an individual injured on a landowner’s property could file a lawsuit against the landowner.

In Georgia, the legislature has carved out an exception to this general rule and granted immunity to a landowner when the property is being used without charge for recreational purposes. This immunity comes from the Recreational Property Act, and the Supreme Court of Georgia recently clarified the test to determine if this Act applies.

In Mercer Univ. v. Stofer, No. S18G1022, decided June 24, 2019, the Supreme Court explained the two-part test that should be used to determine if the Recreational Property Act applies. The facts of this case surround the injury and then death of Sally Stofer, who attended a free concert hosted by Mercer University at Washington Park in Macon, Georgia. Sally Stofer slipped while ascending stairs at the park and fell, hitting her head.

Under the Act, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes.” Prior case law, and the lower courts in Mercer Univ. v. Stofer, said the subjective motivation of the landowner when inviting individuals onto their land must be considered when determining whether the invite was for “recreational purposes,” along with whether the landowner would receive an indirect benefit from that invitation.

The Supreme Court stated that those considerations were improper and “the key teachings of our cases can be distilled into a test that is more connected to the statutory text: the true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”

The Supreme Court then clarified: “In other words, the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Any language in prior cases “suggesting that property owners’ subjective motivations may be relevant , . . . [or that the] landowner was motivated by the possibility that it would obtain indirect financial benefits” is relevant, “is disapproved.”

The Supreme Court did not rule on whether Mercer should receive immunity under the Act, but instead, returned the case to the lower court so that court could conduct the newly established two-part test to see if the Act applies to Mercer. Moving forward, the newly established two-part test will be used when determining if the Act applies to grant immunity to a landowner.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Eastern District of Pennsylvania Finds that School District Immunity does not Extend to Teacher’s Alleged Intentional Torts

Posted on: August 19th, 2019

By: Erin Lamb

An Eastern District of Pennsylvania judge ruled that the Philadelphia School District is immune from a lawsuit wherein a special education student was allegedly choked by his special education teacher. However, District Judge Gerald Pappert also ruled that the plaintiffs, the student and his mother, will still be able to seek punitive damages against the teacher over the allegations.

Plaintiffs allege that in March 2018, a special education teacher grabbed the fifth-grade student by his neck. The teacher was allegedly irate that the student had not put his pencil back in the right place. The Complaint alleges that the teacher choked the student and repeated pushed his head and body against the schoolroom wall, during class, and in front of other students.

The student’s mother sued and has alleged the use of excessive force against her son, deprivation of equal protection, intentional infliction of emotional distress, and assault and battery. She further alleged deliberate indifference by the School District to students’ rights to be free from excessive force because of an alleged failure to adequately train, supervise, or discipline its employees.

Judge Pappert ruled that plaintiffs failed to adequately plead their failure to train claims, and that the school was immune from the intentional infliction of emotional distress and assault and battery claims. Judge Pappert noted that the School District had a policy regarding excessive force that the teacher appeared to have disobeyed and rejected the argument that that immunity extended to the teacher. Plaintiffs’ allegations were sufficient to present a range of punitive damages claims against the teacher under both Section 1983, and the allegations of intentional tort.

Plaintiffs were granted leave to amend the Complaint to attempt “one last time” to allege facts to support her allegations of deliberate indifference against the School District,  but were not granted leave to amend any other claims against the School District.

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

Tucker v. Sch. Dist. of Phila., No. 19-889, 2019 U.S. Dist. LEXIS 136591 (E.D. Pa. Aug. 13, 2019)

 

United States Supreme Court to Decide Whether Georgia Law can be Copyrighted

Posted on: July 15th, 2019

By: Jason Kamp

The United States Supreme Court recently agreed to decide whether the annotations contained in the Official Code of Georgia Annotated (OCGA.) can be copyrighted by the state of Georgia, granting certiorari in State of Georgia, et al. v. Public.Resource.org, Inc., Case No. 18-1150 (S. Ct. June 24, 2019).

As explained by the 11th Circuit Court of Appeals, “In most states the ‘official’ code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. Conversely, all agree that annotations created by a private party generally can be copyrighted because the annotations are an original work created by a private publisher. But the annotations in the OCGA are not exactly like either of these two types of works. Rather, they fall somewhere in between — their legal effect and ultimate authorship more indeterminate.” State of Georgia, et al. v. Public.Resource.org, Inc., 906 F.3d 1229, 1232 (11th Cir. 2018).

Unlike most official state codes, Georgia’s official code is annotated with non-statutory text.  This text includes summaries of judicial decisions, editor’s notes, research references, notes on law review articles, summaries of Attorney General opinions and other materials.  “The Code itself makes clear that these annotations are a part of the official Code, stating that the statutory portions of the Code ‘shall be merged with annotations… and [are] published by authority of the state …and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’ O.C.G.A. § 1-1-1.”  Id. at 1233.

The annotations are developed by a private party, LexisNexis, according to a contract with the State of Georgia. This contract specifies the type of annotations that appear with the statutory text and requires that LexisNexis present the content in a specific manner.  A state commission supervises the work LexisNexus performs and holds final editorial control. The Georgia legislature then adopts the annotations as their own, merging them with the statutory text in a process similar to passing the underlying laws. The State of Georgia holds the copyrights to the annotations LexisNexus creates.

Litigation over the copyrighted annotations began when a non-profit organization purchased and scanned all 186 printed volumes of the Official Code of Georgia Annotated and posted them to its free website.  The state sued and won in the district court.  Late last year the 11th Circuit Court of Appeals reversed, holding Georgia’s official code annotations are sufficiently “law-like” to be considered a work created by the state and outside the realm of copyrightable material.

The United State Supreme Court does not grant cert to affirm a lower court’s decision nearly as often as it does to reverse.  However, this case resides at the tension point between two American values: equal access to democratic institutions and private property rights.  Perhaps the Court merely wants to weigh in.

If you have questions or would like more information, please contact Jason Kamp at [email protected].

PG&E Reaches $1 Billion Settlement Following California Wildfires

Posted on: June 28th, 2019

By: Jenny Jin

Pacific Gas & Electric Co. recently reached a $1 billion settlement with 14 California local government agencies for the significant losses stemming from the 2015, 2017, and 2018 Northern California wildfires. The civil settlement was reached in a mediation based on allegations that PG&E’s equipment was the cause of the fires.

The 14 government agencies sought damages for destroyed municipal property, damage to infrastructure, and the overtime paid to all of the emergency personnel in response to the fires. The most recent 2018 fire destroyed Paradise, CA and killed 85 people. Paradise is expected to receive $270 million of the settlement, the largest of the 14 government agencies.

In January 2019, PG&E filed for Chapter 11 bankruptcy after it was facing more than $30 billion in potential liability, following the fires. At the time of its bankruptcy filing, PG&E was facing about 700 complaints, including at least five putative class actions for damages related to the fires. This $1 billion settlement payment will be incorporated into PG&E’s reorganization plan when it is filed.

If you have questions or would like more information, please contact Jenny Jin at [email protected].