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Social hosts liable in Mass. only if they serve or control liquor

The Massachusetts Supreme Judicial Court ruled that teenagers who host underage drinking parties but do not supply the alcohol cannot be held liable in a civil lawsuit if a partygoer is injured. The court also cleared parents or property owners of any liability if they knew nothing of the party or played no role in providing the alcohol. In its ruling in Juliano v. Simpson, the court noted that liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol. You can view the complete text of the court decision by clicking here. The Boston Globe report on the case is available by clicking here.

The case arose out of these facts: On July 2, 2007, 19 year old Jessica Simpson invited several friends, including 19 year old Christian Dunbar, to a party at her home while her father Peter Simpson was away. Dunbar attended with 16 year old Rachel Juliano, his then girlfriend. On their way to the party, Dunbar obtained a “thirty-pack” of beer and a bottle of rum at a package store. They arrived at the Simpson residence between 6 P.M. and 8 P.M., and Dunbar brought the alcohol that he had procured into the house. Over the course of the evening, Dunbar consumed one or two mixed drinks and six or seven of the cans of beer that he had brought to the party. Jessica drank beer as well, from a supply that she had obtained earlier. Although there were some alcoholic beverages belonging to Peter in the house, Jessica neither consumed those beverages nor offered them to her guests. Jessica stayed in the company of her guests throughout the evening.

Sometime before 11 P.M., Dunbar and Juliano began to argue outside the house. They were loud enough to draw the attention of several guests, as well as Jessica, who went out to investigate. Juliano pushed Dunbar, and a friend of his intervened, removing Dunbar to another part of the property while Jessica spoke alone with Juliano. Soon afterward, Juliano and Dunbar prepared to leave the party. Concerned that Dunbar was still upset from the argument and that Juliano had consumed too much alcohol to drive, Jessica proposed that she drive the two home. Juliano agreed not to drive herself, but Dunbar insisted that he take Juliano home. At approximately 11 P.M., Dunbar and Juliano left the Simpson residence with Dunbar driving. Shortly thereafter, the automobile struck a utility pole, causing injuries to both Dunbar and Juliano.

The court’s refusal to expand liability to the Simpsons in the cases stems from doubt that a social host can effectively prevent a guest from drinking the guest’s own supply of alcohol, in contrast to the host who furnishes liquor to guests. The latter host who furnishes liquor is like a bartender in a licensed establishment who is well situated to “shut off” guests who should not be drinking because of age or intoxication. The court noted that “[s]ociety may fairly expect” a host in the latter situation to take such action.

But in cases where guests provide their own liquor, the court takes a much different approach. The court acknowledged also that there were “a number of practical difficulties” inherent in imposing on social hosts a duty “to police the conduct of guests who drink their own liquor.” Among those difficulties, the court noted the unpleasant–and potentially counterproductive– enforcement methods available to hosts, such as physically ejecting an intoxicated guest from the property, thereby increasing the likelihood of that person driving while intoxicated.

Nationally, nine States impose social host liability for injury to third parties where a host merely provides a location for underage drinking, including Colorado, Florida, Hawaii, Minnesota, Nebraska, Nevada, Pennsylvania, Tennessee, and Texas. On the other hand, courts in at least four States (Alabama, Maryland, Vermont, and Wisconsin) have declined to impose liability premised on the control of property.

Drinking and driving is a persistent and widespread societal problem. Imposing tort liability is one way to curb this behavior. Indeed, and as Juliano pointed out in her legal brief submitted to the court, the prospect of civil litigation clan be a formidable incentive with real-life results. Studies sponsored by the U.S. Department of Transportation indicated that increases in civil dram shop liability corresponded with statistically significant drops in alcohol involved traffic crashes (See DOT HS 807 629 (1990) for the full text of the study).

But as is shown from this case, courts are reluctant to step in and impose civil liability when the legislative body is reluctant to do so. As the court noted in the Juliano v Simpson, the Legislature’s decision to deter and punish those who facilitate such conduct by the imposition of criminal penalties, but not impose civil liability, supported its decision to not expand tort liability. As the court noted, a number of bills have been filed over recent years seeking to add a civil liability provision to criminal statutes such G.L. c. 138, § 34 which was at issue in this case. These bills have been rejected to date. Since the 2003, the Legislature has rejected four attempts to add a civil liability provision (2003 Senate Doc. No. 1100; 2005 Senate Doc. No. 1020; 2007 Senate Doc. No. 968; 2009 Senate Doc. No. 1775). Each bill sought to insert the following language into the statute: “Any person who violates this section shall be liable in tort for injuries or death caused to any person as a result of the operation by a person under the age of twenty-one who is under the influence of alcohol.”

For further information, you can find the case docket along with links to the briefs by clicking here. You can view oral arguments in the case by clicking here.

Friending defense counsel not required, but user info must be disclosed

As a personal injury plaintiff, the last person you would consider a friend would be the lawyer for the defendant in your case. A Pennsylvania court agrees, and would not require the plaintiff to accept defense counsel as a “friend” on Facebook. But another court required a plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants. These cases point out the vulnerability of what you may think are private posts. As a party to litigation, you have to be careful about what you post.

In Piccolo v. Paterson, Judge Albert J. Cepparulo issued a one-paragraph order denying a motion to compel filed by attorneys retained by Allstate Insurance Co. seeking access to the photos of plaintiff Sara Piccolo that she posted on the social networking site. In denying the request, the judge ruled that the “materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes” the plaintiff. You can read more about the case by clicking here.

But in another case in the same state, McMillen v. Hummingbird Speedway Inc., the court held that Facebook postings were discoverable and ordered the plaintiff to provide his username and password to the defendant’s attorney. The defense argued access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo. In its ruling, the court stated that:

Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential….

When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality.

The McMillan court expressly observed that the plaintiff was making representations on the publicly viewable portion of his Facebook page that were inconsistent with the position he took in the litigation. Because of that, the court noted that the defense in that case would have been prejudiced without access to the private portions of the plaintiff’s Facebook page.

The bottom line is that social media, while it may provide an outlet for venting to your friends, can also provide fodder for a wily defense attorney looking to turn your case upside down.

Medicare rebuked by Appeals Court on settlement

The Center for Constitutional Litigation (CCL) recently won a landmark decision that affects tort claims of clients who may have received Medicare benefits. The U.S. Court of Appeals for the Eleventh Circuit emphatically rebuked Medicare over the way the agency treats settlements and held that Medicare does not have the right to claim full reimbursement from an undifferentiated settlement, as it has for years. Instead, Medicare must participate in any state-authorized process to prorate its lien claim or accept the result when it refuses to participate. The decision is the first by a federal circuit court on the issue.

A Florida nursing home resident died from complications of bed sores and received a settlement of $50,000. Since Medicare had paid for the deceased’s medical expenses, the 11 surviving children, who sued for loss of consortium, invited Medicare to participate in an allotment of the settlement. Medicare claimed the entire amount citing its manual and later refused to take part in a probate hearing to allot the settlement. The family’s lawyer went to federal court seeking recognition of the probate court’s decision. The court deferred to Medicare’s interpretation of the 1980 Medicare Secondary Payer Act.

The family then appealed the case to the Eleventh Circuit Court of Appeal. That court adopted the argument that the Medicare Manual lacked the force and affect of law, that the statute did not authorize Medicare’s position, and that, having chosen not to participate in the allocation; Medicare must accept the probate court’s decision that Medicare’s proportionate share of the settlement was only $787.50.

This is a tremendous victory for injured plaintiffs. The American Association of Justice was instrumental in guiding the family through the appeal process.

To view the decision in the case, click here.

Supreme Court will only clarify school rules

Don’t look to the Supreme Court to set school rules, only to clarify them when officials have abdicated that responsibility, Chief Justice John Roberts said Saturday according to an AP report (you can view the full report by clicking here).

At a judicial conference, Roberts was asked how school administrators should interpret seemingly conflicting messages from the Court in two recent decisions, including one last week that said Arizona officials conducted an unconstitutional strip-search of a teenage girl. You can view our blog post on that decision by clicking here. In 2007, the justices sided with an Alaska high school principal, ruling that administrators could restrict student speech if it appears to advocate illegal drug use. You can view our blog post on that decision by clicking here. The court’s full decision in the free speech case can be viewed by clicking here.

According to the AP report, Roberts told the audience there was no conflict in the court’s rulings, just clarity intended to deal with narrow issues that surface from government actions. “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad,” Roberts said. “We wouldn’t do a good job at it.”

You can be the judge of the clarity that emerges from these decisions. From my perspective, the 8-1 decision in the strip search case provided reasonable clarity and was a sound decision based on constitutional principles. The 2007 free speech case, on the other hand, was far less clear and was somewhat disturbing in terms of the curbs on free speech that were articulated. The First Amendment says quite clearly that “Congress shall make no law… abridging the freedom of speech, or of the press….” (emphasis supplied). But the Court’s 2007 decision says that you can have some laws abridging speech when that speech is reasonably viewed as promoting illegal drug use.

Student strip search ruled unconstitutional

In a surprising victory for student’s rights, the United States Supreme Court today issued an opinion ruling that the strip search of a 13-year-old middle school student Savana Redding was unconstitutional. You can view our previous posts on this case by clicking here and here. This is a very good ruling for student’s rights and upholds the principle that their rights do not end at the schoolhouse door. It further provides clarity to school district in just how far they can reasonably go in an effort to make their free of drugs.

The opinion was authored by retiring Justice David Souter, perhaps one of his last opinions as a Justice. You can find a complete copy of the opinion by clicking here.

The Court ruled 8-1 in favor of the student, finding that the mere suspicion of finding a small quantity of ibuprofen was unreasonable and did not justify the search in her underwear. In so finding, the court determined that the content of the suspicion failed to match the degree of intrusion to the student. As the Court ruled: “What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.”

The Court went on to describe the embarrassment and humiliation suffered by the student because of the search.

Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.

The Court made it clear that searches of this nature require “the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.”

Only Justice Clarence Thomas voted with the school in the case. Justice Thomas continued his consistent opposition to such individual rights, particularly when invoked by students. In one line, he wrote “[p]reservation of order, discipline and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a constitutional imperative.”

Soccer associations immune from suit over falling goal posts

The highest court in Massachusetts has ruled that a boy whose leg was broken when a goal post flipped over cannot sue nonprofit youth soccer associations for negligence. The decision in the case, known as Welch v. Sudbury Youth Soccer Association, can be viewed by clicking here.

Dustin Welch was hurt on April 10, 1998, when a goal post struck his right leg. At the time, the 12-year-old boy was not playing, but he was a participant in a soccer program run by the Sudbury Youth Soccer Association and the Massachusetts Youth Soccer Association. Welch sued the associations in 2006, claiming he was seriously injured because they failed to properly secure the goal posts. In his complaint, Welch stated that “[t]he reasonable and/or proper use of said goal posts and nets required that ground anchor pegs or other ground stakes be used to anchor or otherwise secure the goal’s metal posts to the ground.”

The associations argued they could not be held liable under a state law (G.L. c. 231, § 85V) that grants immunity to nonprofits conducting sports programs. G. L. c. 231, § 85V, provides, in relevant part: “[N]o nonprofit association conducting a sports or a sailing program … shall be liable to any person for any action in tort as a result of any acts or failures to act … in conducting such sports program.” As the court noted, by enacting G.L. c. 231, § 85V, the Legislature has determined that nonprofit associations conducting sports programs for youths are to be treated differently from ordinary landowners.

A trial court judge dismissed the case a green that the associations were entitled to the immunity under the statute. The Supreme Judicial Court agreed and upheld the lower court’s decision. The court reasoned that the harm alleged by Welch did not result from a deficiency in the care and maintenance of Haskell Field itself. Rather, Welch was injured by the alleged improper placement of sports equipment atop the real estate. When setting up the soccer goals, the associations were acting in furtherance of a sports program. Their alleged failure to securely anchor the goal posts would be considered a “failure[ ] to act … in conducting such sports program,” G.L. c. 231, § 85V, and such ordinary negligence falls squarely within the broad immunity conferred on a nonprofit association by § 85V.

When both government and law fail

I’ve been involved in government for over 10 years, and a lawyer for the last 23. I’ve seen a lot of stories of how the government and law can, and often do, help people. This is a story that shows how both the government and law can fail.

As Susette Kelo says, this is a case about a woman whose home was stolen by the government and the court. Indeed, no U.S. Supreme Court decision in the modern era has been so quickly and widely reviled as the infamous Kelo decision, in which the Court ruled that Susette Kelo’s little pink house in New London, Connecticut, and the homes of her neighbors could be taken by the government and given over to a private developer based on the mere prospect that the new use for her property could generate more taxes or jobs. Wikipedia gives a good outline of the case which you can view by clicking here.

The video below is a clip which shows the direct human impact. It’s only 5 minutes. You can get more perspective and a more in-depth view by watching the full panel discussion program (1:23:17) at the Cato Institute by clicking here. It’s a forum which discusses a new book on the case called Little Pink House: A True Story of Defiance and Courage.

This is some good snow day viewing/reading, but more importantly, it demonstrates why we need to be extremely vigilant in protecting our constitutional rights.

Court finds autism not linked to vaccine

In a big blow to parents who believe vaccines caused their children’s autism, a special court ruled Thursday that the shots are not to blame. The court said the evidence was overwhelmingly contrary to the parents’ claims — and backed years of science that found no risk. To see the full story in today’s Boston Globe, please click here.

In its decision the court ruled that “[i]t was abundantly clear that petitioners’ theories of causation were speculative and unpersuasive.” The ruling was anxiously awaited by health authorities and families who began presenting evidence in June 2007. More than 5,500 claims have been filed by families seeking compensation through the government’s Vaccine Injury Compensation Program.

In a statement released by the United States Department of Health and Human Services, it was recognized that autism and autism spectrum disorders place a heavy burden on many families. “That is one reason why the U.S. Department of Health and Human Services continues to support research to better understand the cause of autistic disorders and develop more effective methods of treatment,” the statement continued. “The medical and scientific communities have carefully and thoroughly reviewed the evidence concerning the vaccine-autism theory and have found no association between vaccines and autism. If parents have questions or concerns about childhood vaccines, they should talk with their child’s health care provider.”

To view a copy of the court’s complete 42 page decision, click here.

Just how far can coaches go with student athletes?

This interesting legal case from the 11th circuit Court of Appeals in Georgia details just how far a high school football coach can go before being held responsible for injuries to a student. As revealed in the decision, it is a pretty high threshold that a plaintiff must overcome in order to impose liability.

In the case, plaintiffs alleged that the coaches violated Tyler Davis’s substantive due process rights during a voluntary football workout session because: (1) Davis was deprived of water and exhibited signs of overheating; (2) when Davis collapsed on the football field, the coaches deliberately chose not to assist him or immediately summon medical assistance; and (3) these deliberate decisions resulted in the deprivation of his right to life, liberty, health, bodily integrity, and safety. Plaintiffs alleged the coaches’ actions culminated in Davis’s death during the early morning hours the following day. The lower court found these facts, if proven, were sufficient to support a finding that the coaches acted willfully or maliciously with an intent to injure Davis. But the appeals court disagreed and reversed the decision.

The court reasoned that Tyler Davis voluntarily participated in an extracurricular afterschool activity, so no custodial relationship existed between himself and the school. And the court found that the allegations did not support a finding that the coaches acted willfully or maliciously with an intent to injure Davis. The court also noted that while the facts allege that the coaches were deliberately indifferent to the safety risks posed by their conduct to Davis, in a school setting case, allegations of deliberate indifference, without more, do not rise to the conscience-shocking level required for a constitutional violation.

In reaching this conclusion, the court relied on several cases which determined just how far students can pushed before they can bring a constitutional claim.

Where one coach intentionally struck a student with a metal weight lock, knocking the student’s eye out of its socket, as a form of punishment for his involvement in a fight with another student, that was a constitutional violation. In another case, a high school principal violated a student’s constitutional rights after he struck the student with a metal cane in the head, ribs, and back for disciplinary reasons.

In two other cases, however, substantive due process violations were not found because they did not shock the conscience. In the first case, a college student, Melanie Dacosta brought a §1983 claim against her instructor whom she had followed out of the classroom after the instructor ignored Dacosta’s questions in class. The instructor then darted back inside the class and slammed the door on Dacosta, which caused her arm to shatter the glass window of the door and become lodged in the glass pane. After the instructor unsuccessfully tried to knock Dacosta back from the door by swinging it violently several times, he reached through the cracked pane and shoved Dacosta’s face. The court held that this conduct alleged no more than the tort of battery, and did not reach constitutional proportions.

In the second, a high school teacher instructed his students to hold on to a live wire during a voltage-reading demonstration in his electromechanical class. He informed his students they might die if they accidently touched the exposed part of the wire. The teacher increased the power to the wire, turned away to answer a question, and turned back to find a student who had touched the wire gasping for breath. After the student died, his parents brought a § 1983 suit and alleged “the actions of the defendants ‘were particularly arbitrary, reckless, and deliberately indifferent.'” The court emphasized that mere negligence is insufficient to sustain a constitutional claim, while actions intended to injure and that are unrelated to any governmental interest are likely to rise to the conscience-shocking level.

As is clear, coaches can go pretty far before any constitutional violations will be found. A complete copy of the decision is included below.

Private hearings of civil cases likely to be allowed in Rhode Island

The justices of the Rhode Island Supreme Court appear ready to implement rules to effectuate a law that would allow people to hire retired judges to preside over private trials in civil cases.

Under Rhode Island’s Retired Justice Trial Act, litigants decide where the case would be heard and pay all costs — including the fee for the retired judge whose decisions, the law states, would “have the same force and effect as if it had been entered or made by an active judge of the court.” It would be a system, advocates say, similar to private arbitration and mediation.

The judges did not express “reservations over the constitutional implications raised by some who argued against the law’s implementation.” Now, the General Assembly would have to “amend or revoke the law, which has been on the books since 1984 but never used.” Miriam Weizenbaum “spoke out against implementing the law on behalf of the state association of plaintiff’s trial lawyers, the Rhode Island Association for Justice.”

For the complete story from the Providence Journal, click here. For the ABA Journal report, click here.