Case Summaries

Injury & Tort Law

[09/27] Beaven v. U.S. Dep't of Justice
In a Federal Tort Claims Act and Privacy Act case brought by staff members at the Federal Bureau of Prisons (BOP) claiming that defendants allowed an employee roster containing plaintiffs' sensitive personal information to be disclosed to improper persons, including prison inmates and other BOP staff, district court's judgment is affirmed in part, reversed in part and remanded where: 1) district court did not clearly err in finding that the agency's "inadvertent" final act was willful within the meaning of 5 U.S.C. section 522a(g)(4) because a court may consider the entire course of conduct that resulted in the Privacy Act violation in making its required finding under section 552a(g)(4); 2) district court did not abuse its discretion in imposing a non-rebuttable adverse evidentiary inference of disclosure as a sanction for the defendants' destruction of relevant evidence with the knowledge that the evidence would be necessary for known potential claims; 3) district court did not commit clear error in its alternative finding that the plaintiffs did prove disclosure by a preponderance of the evidence; and 4) district court was correct in finding that "future protective measures" damages are unavailable, but the district court erred in denying the plaintiffs' "lost time" damages on the ground that their failure to assert valid FTCA claims precluded them from recovering damages for their valid Privacy Act claims.

[09/24] Henry v. Purnell
In plaintiff's section 1983 suit against a deputy sheriff claiming that the sheriff used excessive force in effecting his arrest by mistakenly drawing his firearm to shoot the plaintiff instead of his taser, district court's conclusion that sheriff's mistake was reasonable in granting his motion for summary judgment is affirmed in part, reversed in part and remanded where: 1) the district court erred in limiting the scope of its Fourth Amendment reasonableness analysis to the adequacy of the sheriff's weapons training, instead of examining the totality of the circumstances; 2) district court's determination that the sheriff's conduct was reasonable as a matter of law was in error as, at this stage of the proceedings, there remain material factual issues in dispute on the failure to warn, to utilize the laser sight, and to distinguish the different safety locks, all of which are relevant to a decision on the objective reasonableness of the seizure; 3) the sheriff is entitled to summary judgment in his favor on plaintiff's section 1983 claim as, although it cannot be determined whether the sheriff's mistaken use of his firearm was objectionably reasonable under the circumstances, it can be said that he lacked "fair notice" regarding the potential unlawfulness of his actions; and 4) district court's grant of summary judgment on plaintiff's state-law claim is reversed and remanded for the district court to determine whether to exercise supplemental jurisdiction over this claim.

[09/24] In re Ethan C.
Juvenile court's finding that petitioner's minor children were dependents of the court within the meaning of section 300(b), (f) and (j), and that there were no reasonable means to protect the children short of removal in placing them in Department of Children and Family Service's custody, arising from the death of petitioner's toddler daughter in a traffic accident due to petitioner's failure to secure the daughter in a car seat, is affirmed in part, reversed in part and remanded where: 1) the juvenile court properly sustained allegations premised on petitioner's failure to secure his daughter in a car seat, and there is no support for petitioner's assertion that criminal negligence must be shown to sustain an allegation under section 300(f); 2) there is sufficient evidence to support the juvenile court's findings sustaining the allegations under section 300(b) regarding the risk of harm to the children due to historical domestic violence between their parents and the mother's cognitive limitations; but 3) the juvenile court erred by dismissing the allegations under section 300(b) regarding the petitioner's neglect of his daughter which resulted in her death as these allegations are a necessary predicate to sustain identical allegations under section 300(j), which the juvenile court sustained.

[09/24] Shelton v. Kennedy Funding, Inc.
In a breach-of-contract and fraud action arising out of the sale of an Arkansas cemetery and involving the alleged breach of a loan agreement, judgment for plaintiff is affirmed where: 1) the Estoppel Certificate at issue did not fall within the surety prong of the Arkansas Statute of Frauds; 2) a reasonable jury could find the certificate's terms were sufficiently definite to impose an obligation upon defendant to place $675,000 in an escrow account for plaintiff's benefit in the event of a default on the loan; and 3) projections of future events or conduct could not support a fraud claim as a matter of law.

[09/24] Swarna v. Al-Awadi
In defendants' appeal from interlocutory orders and cross-appeal from a final judgment, granting plaintiff's motion for default judgment based on various claims based on the Alien Tort Claims Act (ATCA) and New York labor laws, dismissing plaintiff's claims against defendant-Kuwait on sovereign immunity grounds, and denying plaintiff's and defendants' motions for reconsideration, the orders are affirmed in part where, while residual diplomatic immunity applied to the "acts performed by such a person in the exercise of his functions as a member of the mission," Vienna Convention art. 39(2), it did not apply to actions that pertained to his household or personal life and that may provide, at best, "an indirect" rather than a "direct . . . benefit to" diplomatic functions. However, the judgment is vacated in part where plaintiff's ATCA claims "arose from personal motives" and were outside the diplomats' scope of employment with Kuwait.

[09/23] Bosem v. Musa Holdings, Inc.
In plaintiff's suit for injunctive relief, fraud, false advertising, and compensatory damages against defendant company for alleged unauthorized use of plaintiff's image or likeness and violation of the Lanham Act, the Fourth District's reversal of the trial court's award of prejudgment interest for the plaintiff is quashed as prejudgment interest is a matter of right under the prevailing "loss theory" of recovery for pecuniary damages, such as damages for economic or tangible losses.

[09/22] RK Co. v. See
In plaintiff's suit against Harvard Scientific Corporation (HSC) and its founder for inducing plaintiff to buy HSC stock through its misleading and false press releases, SEC filings and reports, in connection with defendant's claim of a new product to treat male and female sexual dysfunction, district court's judgment that defendant violated federal and state securities law, state deceptive practices law, and committed common law fraud, are affirmed where: 1) defendant waived the defense that plaintiff was not the "real party in interest" by failing to object during the more than seven years between the complaint and the beginning of trial; 2) defendant's constitutional and prudential standing arguments lack merit; 3) the evidence was sufficient to support the district court's conclusion of liability against the defendant as, based on the testimony and documentary evidence presented, the district court did not err in determining that HSC, under the control and direction of its founder, released misleading statements of material fact upon which plaintiff had relied in making its investment; 4) defendant has failed to include the transcript of the relevant motion hearing that led to the admitting of the deposition testimony; and 5) awarding prejudgment interest and attorneys' fees was reasonable.

[09/22] Flores v. Enter. Rent-A-Car Co.
In plaintiffs' suit against a car rental company for wrongful death of their son and negligent entrustment of the vehicle, claiming that an electronic check of the customer's driving record would have revealed two arrests for driving under the influence within the previous 48 months, trial court's judgment in favor of the car rental company is affirmed where: 1) the duty owed by rental car companies articulated in Osborn v. Hertz Corp. remains an accurate statement of law as, regardless of the availability of electronic driver's license checks, the Legislature has defined the conduct required of rental car companies to determine the validity of customers' licenses, and it is not the province of the courts to supersede the Legislature's choice by imposing additional duties; and 3) because plaintiffs have not alleged any breach of duty that was owed by the defendants, various other issues briefed by the parties, including issues of causation, need not be addressed.

[09/21] Celanese Corp. v. Martin K. Eby Co.
In an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Texas Solid Waste Disposal Act (SWDA), claiming that, during an excavation, defendant failed to investigate what it hit in a pipeline corridor and rectify any damage, judgment for defendant is affirmed where defendant was not liable as an "arranger" under CERCLA or the SWDA.

[09/20] Cleveland Hous. Renewal Project v. Deutsche Bank Trust Co.
In a public nuisance action against Deutsche Bank Trust Company and affiliated companies in connection with twenty-five vacant properties in and around Cleveland owned by defendant, claiming that the bank's business practices place homes in a "post foreclosure death spiral", district court's grant of plaintiff's motion to remand based on Burford abstention is affirmed in part, vacated in part and remanded where: 1) district court properly realigned the city as a plaintiff and properly held there is complete diversity between the parties for purposes of subject matter jurisdiction; 2) district court properly satisfied itself of its subject matter jurisdiction under 28 U.S.C. section 1332; 3) there is no error in district court's holding that plaintiff has standing to prosecute this action in federal court; but 4) district court's remand order is vacated as Burford abstention is not warranted as state interests are outweighed by the strong federal interest in affording foreign litigants a neutral forum for the adjudication of state law claims against them, and plaintiff has failed to show that its complaint presents such extraordinary circumstances as to come within that narrow exception to the exercise of federal jurisdiction represented by Burford abstention.

[09/20] Hamilton v. Palm
In a diversity negligence action, alleging that plaintiff fell and was seriously injured doing roofing work and constructing an addition on property owned by defendants, dismissal of the complaint is reversed where the district court made an unwarranted extension of the pleading standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

[09/17] Kiobel v. Royal Dutch Petro. Co.
In an action by residents of Nigeria claiming that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations, the district court's partial dismissal of the complaint is affirmed and its partial denial of the motion to dismiss is reversed where: 1) in Alien Tort Statute (ATS) suits alleging violations of customary international law, the scope of liability is determined by customary international law itself; and 2) because customary international law consisted of only those norms that were specific, universal, and obligatory in the relations of States inter se, and because no corporation had ever been subjected to any form of liability (whether civil or criminal) under the customary international law of human rights, corporate liability was not a discernible -- much less universally recognized -- norm of customary international law that the court could apply pursuant to the ATS.

[09/17] Perez v. VAS S.p.A.
In plaintiff's strict products liability and negligence suit for sustaining injuries by a paper rewinding machine designed and manufactured by defendant, trial court's judgment in favor of defendant is affirmed where: 1) although the trial court erred in failing to adhere to the applicable burden shifting analysis under which plaintiff was required to make a prima facie showing that his injury was proximately caused by the design of the rewinding machine, whereupon the burden of proof shifted to defendant to prove that plaintiff's use of the machine was so unforeseeable as to constitute the superseding cause of his injury, the error was not prejudicial; and 2) the court in fact found, supported by substantial evidence, that plaintiff used the machine in such an unforeseeable manner that it constituted the sole cause of his injury, and as such, it is not reasonable that had the court used the correct burden shifting analysis, a different result would have been reached.

[09/16] Rio Grande Royalty Co. v. Energy Transfer Ptnrs., L.P.
In an action contending that defendants committed common law fraud by truthfully reporting natural gas transactions that, because of the defendants' alleged monopolization of the Houston spot market, served to lower prices artificially on long-term contracts, dismissal of the action is affirmed where defendants' alleged conduct did not amount to common law fraud.

[09/16] Mallard v. Progressive Choice Ins. Co.
In plaintiff's suit against an insurer and its attorney for invasion of privacy and abuse of process, based on defendants' conduct in seeking discovery of plaintiff's mental health records by subpoenaing third party health care providers in preparation of insurer's defense against plaintiff's uninsured motorist claim, trial court's grant of the attorney's anti-SLAPP motion in dismissing the entire suit is affirmed in part and reversed in part where: 1) trial court did not err in granting the anti-SLAPP motion as the defendant-attorney carried his burden of demonstrating the acts underlying the complaint arose from protected activity within the meaning of section 425.16(b)(1), and plaintiff did not carry her burden of establishing the probability she would prevail on the complaint; 2) trial court erred in dismissing plaintiff's claims against the insurer, solely based on the attorney's successful anti-SLAPP motion; and 3) plaintiff has failed to show that the trial court abused its discretion in granting attorney's motion for attorney fees.

[09/16] Lee v. Fid. Nat'l Title Ins. Co.
In plaintiffs' suit against their insurer for refusing coverage under a title policy, trial court's grant of defendant's motion for summary judgment is reversed where: 1) defendant was not entitled to summary judgment on the causes of action for breach of contract, bad faith, or declaratory relief based on the evidence that APN 22 is located outside the land as legally described in the title policy; 2) trial court erred in granting summary judgment on the breach of contract cause of action based on the statute of limitations; and 3) the summary judgment on the escrow negligence count cannot be sustained on the alternative ground defendant offers that it did not act as the escrow agent when the plaintiffs purchased their property.

[09/15] In re: Katrina Canal Breaches Litig.
In an action against an engineering firm claiming that its negligent and improper actions in fulfilling a military contract were a cause of flood damage resulting from Hurricane Katrina, summary judgment for defendant is reversed where the specifications for the work at issue were not sufficiently precise to entitle defendant to government contractor immunity.

[09/15] Holzemer v. City of Memphis
In plaintiffs' suit against a city, a police sergeant and various city officials under 42 U.S.C. section 1983 for alleged violations of First, Fourth, Eighth, and Fourteenth Amendments, district court's denial of the sergeant's motion for qualified immunity from the plaintiffs' First Amendment retaliation claim is affirmed where: 1) plaintiff's request for help from a city councilman regarding difficulties that he was having operating his business constitutes a "petition" for the purposes of the First Amendment's Petition Clause, as there is no distinction between oral and written grievance when what was requested orally would constitute a petition if reduced to writing; 2) plaintiffs produced evidence sufficient, if true, to support a claim of retaliation for exercising their right to petition; and 3) the sergeant is not entitled to qualified immunity as officers of reasonable competence in the sergeant's shoes would have known that her actions, if as alleged, were unlawful retaliation.

[09/15] Banaszak v. Progressive Direct Ins. Co.
In an action contending that defendant-insurer failed to offer plaintiff underinsured motorist coverage pursuant to 18 Del. C. section 3902(b) and seeking to reform plaintiff's insurance policy up to the $100,000 limit of his "liability" or bodily injury coverage, the partial denial of plaintiff's motion for summary judgment is reversed where defendant could not demonstrate a meaningful offer of underinsured motorist coverage pursuant to section 3902(b).

[09/15] Brown v. United Water Del., Inc.
In an action alleging that a water company was negligent in maintaining a fire hydrant, thus causing fire damage, summary judgment for defendant is vacated where a jury could reasonably find that defendant was on notice that the hydrants near plaintiffs' house had been painted over and not properly maintained.

[09/14] Merlonghi v. US
In plaintiff's suit against the United States under the Federal Tort Claims Act (FTCA), for the actions of a U.S. Special Agent, involving an automobile accident, district court's grant of government's motion to dismiss for lack of subject matter jurisdiction is affirmed as plaintiff's claim under 28 U.S.C. section 1346(b)(1) was properly dismissed for lack of jurisdiction because the agent was not acting within the scope of his employment when he crashed into plaintiff during a car chase.

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