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Archive for February, 2020

New Jersey Court Finds Defendants Not Liable for Plaintiff’s Fall in the Parking Lot During Ongoing Snowstorm

Posted on: February 28th, 2020

By: Michelle Yee and Josh Ferguson

The Superior Court of New Jersey recently affirmed the trial court’s summary decision in favor of the defendants and ruled that defendants were not obligated to remove snow and ice between parked cars until the cars either moved, or the snow stopped falling, and defendants had a reasonable time to remove the snow.

In Oyebola v. Wal-Mart Stores, Inc., 2019 N.J. Super. Unpub. LEXIS 432 (App. Div. Feb. 25, 2019), Plaintiff slipped and fell in a Wal-Mart parking lot while it was snowing.  According to Plaintiff’s testimony, she fell as she was walking between her car and the car parked next to hers when she slipped on ice and snow between the cars, causing a right foot fracture.  Subsequently, she sued Defendants Walmart and Tree Fellas, the snow removal crew.  The trial court granted defendants’ summary judgment motion and ruled that no rational jury would find that the defendants were negligent because plaintiff fell during an ongoing snowstorm when Tree Fellas was already at the location, performing ice and snow removal.

On appeal, the Superior Court agreed with the trial court and affirmed their decision.   The Superior Court first noted that defendants do not dispute that they owed plaintiff a duty to exercise reasonable care because she was a business invitee of Wal-Mart.  However, the Court noted that it has long been recognized that commercial landowners have a reasonable time in which to act to clear snow and ice from walkways.   Since there was an ongoing snowstorm at the time of plaintiff’s fall and the snow removal crew was on site, the Superior Court agreed with the trial court’s decision.   The Court further ruled that Plaintiff’s additional arguments, including whether Wal-Mart should have remained open or whether defendants complied with the snow-removal contract, were not genuine issues of material fact.   The undisputed material fact was that it was snowing, and that defendants are entitled to a reasonable period of time to remove the snow.

If you have questions or would like more information, please contact Michelle Yee or Josh Ferguson at [email protected] or [email protected].

CAUTION! Disciplinary Action Ahead

Posted on: February 27th, 2020

By: Anastasia Osbrink

It has now been over a year since California Evidence Code, section 1129 went into effect, and as such, it is a good time to be reminded that compliance is mandatory and attorneys who fail to comply face possible disciplinary action. Evidence Code, section 1129 requires attorneys to provide the client with a written explanation of mediation confidentiality and obtain a signed acknowledgment from the client on the disclosure document prior to the client agreeing to participate in mediation. (Evid. Code, § 1129.) Mediation confidentiality is codified in Evidence Code, section 1119. If an attorney fails to obtain this signed disclosure, which the attorney must also sign, he or she could face disciplinary action. Moreover, Evidence Code section 1122 was amended as part of this requirement. That Evidence Code section now provides for the admission of evidence of a signed disclosure form, or lack thereof, as part of a disciplinary action against an attorney for failure to obtain it. (Evid. Code, § 1122.)

This change, of which many California attorneys are still unaware, occurred as a result of the holding in Cassel v. Superior Court, where the California Supreme Court ruled that mediation confidentiality prohibited plaintiffs from introducing communications that took place during mediation as evidence of malpractice against their former attorneys. (Cassel v. Superior Court (2011) 51 Cal.4th 113.) After that ruling, the California Law Revision Committee wanted to ensure that clients understood the extent of mediation confidentiality and how it could impact the current or future litigation.

Providing a written explanation of mediation confidentiality that is signed by the client is not only good practice, it is the law. Moreover, compliance with Evidence Code, section 1129 is especially simple because there is form language within this code section that an attorney can use to ensure compliance. There are a few additional points to remember. First, the document must be a separate, stand-alone document that is not attached to any other document. Also, it must be obtained prior to the client agreeing to mediation. That often means before the Case Management Conference, California lawyers. The simplest means of compliance is to provide this document to the client at the same time as an engagement agreement and any conflict waivers, but separately from those documents. Additionally, the document must be provided in the client’s preferred language, so make sure to find this out from the client ahead of time. Finally, attorneys must make sure that they sign the document as well and provide a fully executed copy to the client. These are steps an attorney must take to make sure they do not face later disciplinary action.

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

The “Two Hats” Rule for California Lawyer-Mediators

Posted on: February 27th, 2020

By: Greg Fayard

For decades now, many practicing attorneys also mediate or arbitrate cases. Gone are the days where only retired judges mediate or arbitrate. California’s Rules of Professional Conduct for lawyers recognize that some neutrals also practice law.

That is, these are lawyers who wear “two hats”—the mediator hat and the lawyer hat.

Under Rule 1.12, a neutral in a case, cannot represent a party from a past mediation or arbitration as a client in a NEW matter without the informed written consent of all the parties in the NEW matter. This means, for example, that mediators need to keep track of all the parties in their mediations and if the mediator takes on a case as a lawyer involving a former mediation party, INFORMED WRITTEN CONSENT OF ALL PARTIES IN THAT NEW MATTER IS NEEDED.

But some lawyers work with mediators/arbitrators. That situation is also addressed by Rule 1.12. Just because a mediator-lawyer handled a case for a current client in the past, should not automatically bar another lawyer in the mediator’s office from representing that client in a NEW case. Rule 1.12 permits the otherwise conflicted lawyer to take the new case so long as screening and written notice is provided.

Here’s the bottom line: Per Rule 1.12, California lawyers who also mediate need to now have a robust conflict check system. Sometimes informed written consent for all parties in a new matter is needed. Other times, only screening and written notice (not consent) is needed.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

Federal Tax Spotlight: Energy Incentives for the Construction Industry in 2020

Posted on: February 27th, 2020

By: Catherine Bednar

While many individuals and businesses are currently focused on the upcoming deadlines for filing their 2019 tax returns, it is also an ideal time to consider potential tax benefits for 2020 construction projects. Those in the construction industry seeking to take advantage of available tax incentives should keep up-to-date on developments in the tax code, including key changes in 2020 for two energy-related tax features.

Energy Efficient Commercial Building Deduction: As part of a spending bill intended to fund the federal government through 2020 and signed into law on December 20, 2019, Congress revived the Energy Efficient Commercial Building Deduction (179D) which had previously expired on December 31, 2017 and extended this benefit through December 31, 2020. The 179D deduction allows taxpayers to claim a deduction of up to $1.80 per square foot for installing qualifying systems and buildings.  The deduction is available to building owners and tenants who make construction expenditures prior to the deadline. In cases of improvements to government buildings, the designer of the system may be eligible to claim the deduction. In order to qualify for the full deduction, the project must reduce the building’s energy costs by at least 50%. The deduction applies to new and existing buildings which install energy-efficient lighting, building envelope, HVAC or hot water systems.

Solar Investment Tax Credit: This credit was established by the Energy Policy Act in 2005. The credit was initially slated to expire in 2007, but was extended multiple times.  Currently, the credit is available to both residential and business owners; however, the benefit is being phased out for residential owners and permanently reduced for commercial owners. There is no cap on the total value of the credit, which allows a deduction for a specified percentage of the installation cost for a solar energy system. Between 2016 and 2019, the tax credit remained at 30% of the installation cost. In 2020, however, the benefit was reduced to a 26% deduction for 2020 for both residential and commercial solar investments, and in 2021 the deduction will drop to 22%. Beginning in 2022, the deduction will only be available to commercial owners and will remain at 10% of the installation cost.

Note: Individual and corporate taxpayers should consult with their accountant or tax attorney to determine eligibility for any tax incentives based on the specific circumstances.

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

Sticks and Stone Can Hurt People, But Disagreement Between NFL Players Is A Reminder That Words Also Can Hurt Us

Posted on: February 20th, 2020

By:  Jeffrey Hord

In the final minute of last November’s NFL game between the Cleveland Browns and the Pittsburgh Steelers, Browns defensive end Myles Garrett ripped off Steelers quarterback Mason Rudolph’s helmet and swung it at Rudolph, hitting him in the head. This attack drew national attention and resulted in an indefinite suspension for Garrett. Despite the shocking nature of the attack, some early speculation that Rudolph might sue Garrett for battery for the this on-field altercation showed no signs of spilling over into the courts…until now.

Last week, during an interview with ESPN’s Mina Kimes, Garrett repeated a claim that he first made in the days following the November brawl: specifically, that Rudolph had sparked the fight by calling Garrett a racial slur. Rudolph has emphatically denied the allegation and also notes that the NFL investigated Garrett’s allegation and concluded that there was “no evidence to support” his claim.

Now, Rudolph’s attorney has responded to Garret’s latest allegation by suggesting that his client may now sue Garrett for slander. In California – where the interview with Kimes took place – slander involves a false statement by one person about another person which tends directly to injure the victim with respect to his office, profession, trade or business. Rudolph essentially contends that his reputation has been damaged by the accusation that he used a racial epithet.

Interestingly, however, Rudolph may not prevail simply by proving that the allegation is false. Rather, if Rudolph is deemed a “public figure” in the eyes of the law, Rudolph then will have to prove that Garrett also acted with actual malice in making the allegation. Under California law, “actual malice” is a higher standard to meet as it must be proven that the false statement was made with actual knowledge that the statement is false or with reckless disregard for the truth. If the fight that started on the field leads to a legal fight off the field, it will be interesting to see if Garrett tries to push it into the NFL’s grievance system, what evidence Garrett relies upon in support of his allegation, whether a court finds that Rudolph is a “public figure” and how Rudolph may try and use the NFL’s report as evidence that he did not utter the alleged word.

If you have questions regarding defamation or other tort claims, feel free to contact Jeffrey Hord at [email protected].