In Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

JOANNA L. GROSSMAN

In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.

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A Half Century After Its Publication, What Can “The Greening of America” Tell Us About the United States Today?

RODGER CITRON

In recognition of the 50-year anniversary of the publication of Charles Reich’s “The Greening of America,” Touro law professor Rodger D. Citron explains what Reich actually said in “The Greening,” explains why it generated such a strong response, and reflects on what the piece has to say about the fractures of our current moment. Citron cautions that the promise of a new consciousness is as alluring—and may be as illusory—as it was when Reich wrote the article and book, 50 years ago.

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Johnson v. City of Philadelphia

Court: US Court of Appeals for the Third Circuit

Docket: 19-2938

Opinion Date: September 22, 2020

Judge: Matey

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Personal Injury

Alita, her son, and her stepfather died in a fire that engulfed their Philadelphia apartment. With the building already burning, Alita had called 911. A fire department operator instructed her to remain inside, promising help was on the way. Firefighters initially drove to the wrong location and, at the scene, never learned that the family was waiting. The firefighters extinguished the blaze without a search, leaving all three trapped in their home where they perished from smoke inhalation. Days passed before firefighters returned and discovered their bodies. Their estates sued the city and two fire department employees. The Third Circuit affirmed the dismissal of the suit. The state-created danger theory does not apply. The dispatcher did not act affirmatively to create the danger, but only failed to communicate the family’s location, and the operator’s behavior did not shock the conscience. The employees neglected to relay the information through error, omission, or oversight. There is no plausible allegation that the city was deliberately indifferent to anyone’s substantive due process rights. Rejecting a negligence argument based on the history of problems at the residence, and failure to fix the building’s fire hazards, the court reasoned that the city was immune from these claims because it had insufficient control over the building.

Bryant v. Carpenter

Court: Supreme Court of Alabama

Docket: 1180843

Opinion Date: September 18, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Personal Injury, Trusts & Estates

Deitrick Bryant ("Deitrick") committed suicide in his cell while he was an inmate at the Greene County, Alabama jail. Deitrick's mother, as the administrator of his estate, sued two jail employees, alleging that their negligence allowed Deitrick's suicide to happen. The trial court entered a summary judgment in favor of the jail employees, and Deitrick's mother appealed. "The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself." The Alabama Supreme Court determined Bryant failed to put forth evidence that would allow a factfinder to conclude that jail staff could have anticipated Deitrick's suicide. Accordingly, the summary judgment entered by the trial court was affirmed.

Ex parte Advanced Disposal Services South, LLC

Court: Supreme Court of Alabama

Docket: 1190148

Opinion Date: September 18, 2020

Judge: Tommy Bryan

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Personal Injury, Real Estate & Property Law

Advanced Disposal Services South, LLC, Advanced Disposal Services Alabama Holdings, LLC, Advanced Disposal Services, Inc., Tallassee Waste Disposal Center, Inc., and Stone's Throw Landfill, LLC (collectively, "Advanced Disposal"), petitioned the Alabama Supreme Court for a writ of mandamus to order the Macon Circuit Court ("the trial court") to dismiss, an action filed by Jerry Tarver, Sr., because, they claimed, the action cannot proceed in the absence of the City of Tallassee ("the City") as a party. In May 2017, Tarver sued Advanced Disposal, the utilities board, and fictitiously named defendants seeking monetary damages as well as injunctive relief for exposure to allegedly contaminated water that had been illegally "discharged" into the river and ultimately sold by the utilities board for consumption by its customers. The complaint alleged Advanced Disposal unlawfully discharged its leachate into the City's stabilization pond, knowing that the leachate could not be properly treated before the resulting effluent was discharged into the river. Tarver also alleged Advanced Disposal discharged "pollutants" into various creeks and tributaries flowing into the river in violation of its storm-water discharge permit. The Alabama Supreme Court denied relief, finding that this action could proceed in equity and good conscience without the City. "The City's role in the underlying dispute potentially makes the City a joint tortfeasor with Advanced Disposal, the utilities board, and MCWA; it does not, however, make the City an indispensable party under the particular facts of this case."

Hendrix v. United Healthcare Insurance Company of the River Valley

Court: Supreme Court of Alabama

Docket: 1190107

Opinion Date: September 18, 2020

Judge: Sellers

Areas of Law: Civil Procedure, ERISA, Insurance Law, Personal Injury

Kathleen Hendrix ("Hendrix"), as administratrix of the estate of Kenneth Morris Hendrix, deceased, appeals a circuit court judgment dismissing Hendrix's medical-malpractice wrongful-death claim against United Healthcare Insurance Company of the River Valley ("United"). Kenneth, who was covered by a health-insurance policy issued by United, died after United refused to pay for a course of medical treatment recommended by Kenneth's treating physician. The trial court determined that Hendrix's claim was preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), because the claim "relate[s] to" the ERISA-governed employee-benefit plan pursuant to which United had issued Kenneth's health-insurance policy. In October 2015, Kenneth was injured in an automobile accident. His physician recommended Kenneth be admitted to an inpatient-rehabilitation facility. Hendrix claimed United "imposed itself as [Kenneth's] health care provider, took control of [Kenneth's] medical care, and made a medical treatment decision that [Kenneth] should not receive further treatment, rehabilitation, and care at an inpatient facility." Instead, Hendrix contended United made the decision Kenneth should have been discharged to his home to receive a lower quality of care than had been ordered by his physicians. Kenneth died on October 25, 2015, due to a pulmonary thromboembolism, which, the complaint asserts, would not have occurred had United approved inpatient rehabilitation. The Alabama Supreme Court concurred with the circuit court that Hendrix's claim related to an ERISA-governed benefit plan, and thus preempted by the ERISA statute.

Mid-Century Insurance Company v. Watts

Court: Supreme Court of Alabama

Docket: 1180852

Opinion Date: September 18, 2020

Judge: Michael F. Bolin

Areas of Law: Civil Procedure, Insurance Law, Personal Injury

The Alabama Supreme Court granted Mid-Century Insurance Company permission to appeal the denial of its motion for a partial summary judgment in an action seeking underinsured-motorist benefits filed by Rodney Watts, as the personal representative of the estate of his wife Leiah Watts, deceased, and others (collectively, "the Watts plaintiffs"). In 2016, Leiah Watts, Caiden Watts, Jackson Watts, Faye Howard, Mary Adair, Evelyn Watts, Tammy McBurnett, Renee Stone, and Victoria Stone were traveling in a 2014 Ford Expedition sport-utility vehicle when it was struck by a vehicle driven by Wiley "Pete" Whitworth. The collision killed Leiah Watts, Faye Howard, Mary Adair, and Evelyn Watts. Tammy McBurnett, Renee Stone, Caiden Watts, Jackson Watts, and Victoria Stone suffered serious injuries in the collision. The Watts vehicle was insured by a policy of insurance issued by Farmers Insurance Exchange to Rodney Watts, underwritten by Mid-Century. Mid-Century contended that, because the policy allowed for the stacking of up to three UIM coverages, the maximum amount of UIM benefits available under the policy for the accident in this case was $300,000, based on $100,000 per accident. The Watts plaintiffs contended that each of the nine occupants of the Watts vehicle involved in the accident (or his/her personal representative) was entitled to $150,000 in UIM benefits ($50,000 per person limit of the occupied vehicle plus the per person limit of $50,000 for two additional coverages under the stacking provision of the policy). Thus, the total sought by Rodney in UIM benefits was $1,350,000 (9 x $150,000). The case was removed to federal district court, and the federal court granted Mid-Century's motion to dismiss in part, granting the motion as to fraud claims as to Farmers Insurance Exchange and Mid-Century. The court dismissed without prejudice claims of breach of contract and bad faith on ripeness grounds. The Alabama Supreme Court determined the Watts plaintiffs were unable to stack more than three coverages under the uninsured-motorist statute and insurance policy, and the fact that they could not do so did not render the coverage under the policy illusory. The Court reversed the trial court's order denying Mid-Century's motion for a partial summary judgment as to the UIM claim and remanded the case for further proceedings.

Nationwide Property and Casualty Insurance Company v. Steward

Court: Supreme Court of Alabama

Docket: 1190011

Opinion Date: September 18, 2020

Judge: Tom Parker

Areas of Law: Civil Procedure, Insurance Law, Personal Injury, Real Estate & Property Law

Aaron Kyle Steward sued Nationwide Property and Casualty Insurance Company ("Nationwide"), seeking uninsured-motorist ("UM") benefits after he was injured in an accident at a publicly owned and operated all-terrain-vehicle ("ATV") park. The circuit court entered summary judgment in Steward's favor, ruling that the ATV that collided with the one on which he was riding was an "uninsured motor vehicle" for purposes of Steward's automobile-insurance policies with Nationwide, and Nationwide appealed. Because the Alabama Supreme Court concluded that the roads on which the accident occurred were "public roads" under the policies, judgment was affirmed.

Koussaya v. City of Stockton

Court: California Courts of Appeal

Docket: C089159(Third Appellate District)

Opinion Date: September 21, 2020

Judge: Andrea Lynn Hoch

Areas of Law: Criminal Law, Personal Injury

Stephanie Koussaya was taken hostage, along with two other women, by three armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr., used as a human shield in order to facilitate the robbers’ escape from the bank. The hostages were forced into a Ford Explorer belonging to one of the hostages, Kelly Huber. A high-speed chase with law enforcement followed. Huber was pushed out of the moving vehicle after Ramos shot her in the leg. For Koussaya and the other hostage, Misty Holt-Singh, the pursuit lasted for more than an hour, reaching speeds of over 100 miles per hour, and included exchanges of gunfire between Martinez, who was firing an AK-47 assault rifle out of the back of the Explorer, and two Stockton Police Department (SPD) officers. Koussaya ultimately decided her best chance at surviving the ordeal was to open one of the rear side doors and throw herself from the moving vehicle: she believed that if she did not jump from the vehicle she would be killed by the special weapons and tactics (SWAT) team when the chase inevitably came to an end. Minutes after Koussaya’s escape, the chase did come to an end, at which point police officers fired several hundred rounds into the Explorer, killing two of the robbers and the remaining hostage. Having sustained serious injuries during her escape from the Explorer, Koussaya sued the City of Stockton and its police department (collectively, the City), as well as two officers, asserting causes of action for assault and battery, intentional infliction of emotional distress (IIED), and general negligence. The City and officer defendants filed separate motions for summary judgment. The trial court granted the motions and entered judgment in favor of defendants. Koussaya appealed. The Court of Appeal, after review, affirmed the trial court. Though the Court found the trial court abused its discretion in ruling on an evidentiary matter and also misapplied the Government Claims Act to improperly limit the scope of Koussaya’s claims, taking into account the improperly excluded evidence and properly viewing the factual basis of her claims against the officer defendants and the City, the Court determined each defendant was entitled to judgment as a matter of law.

Berry v. City of Chicago

Court: Supreme Court of Illinois

Citation: 2020 IL 124999

Opinion Date: September 24, 2020

Judge: Anne M. Burke

Areas of Law: Constitutional Law, Government & Administrative Law, Personal Injury, Real Estate & Property Law

Named plaintiffs filed a two-count class-action complaint on behalf of “all residents of the City of Chicago who have resided in an area where the City has replaced water mains or meters between January 1, 2008, and the present.” The complaint raises claims of negligence and inverse condemnation in relation to the replacement of water meters and water main pipes, as well as the partial replacement of lead service lines that run between the water mains and residences throughout Chicago. The complaint claimed the city’s actions created an increased risk that lead will be dislodged or leach from the residents’ individual service lines. The appellate court reversed the dismissal of the complaint. The Illinois Supreme Court reinstated the dismissal. The complaint did not allege that anyone is suffering from any physical impairment, dysfunction, or physically disabling consequence caused by the city's actions. An increased risk of harm is not, itself, an injury consistent with the traditional understanding of tort law. The plaintiffs have alleged only that the replacement of water mains and meters has made the proposed class members’ property “more dangerous.” The concept of “dangerousness” is not susceptible to objective measurement and, thus, cannot by itself constitute damage under the Illinois takings clause.

Tinsley v. Town of Framingham

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12826

Opinion Date: September 17, 2020

Judge: Lowy

Areas of Law: Civil Rights, Criminal Law, Personal Injury

The Supreme Judicial Court vacated the judgment of the trial court granting summary judgment on several claims against police officers personally, holding that there was a genuine issue of material fact whether the police officers used excessive force against Appellant after he was removed from his vehicle. Plaintiff, a black man, was stopped by two police officers. The stop escalated into a physical altercation during which five police officers forcibly removed Plaintiff from the vehicle and wrestled him to the ground. Plaintiff was convicted of several offenses stemming from the incident. While the criminal case was pending, Plaintiff filed a civil action alleging that the officers committed several torts and violated his civil rights. The trial court granted summary judgment for Defendants on the civil action. The Supreme Judicial Court vacated the judgment in part, holding (1) Plaintiff's civil action may only proceed where it is based on facts beyond those that were necessary to sustain Plaintiff's prior criminal conviction and where Plaintiff demonstrates that his claims would not necessarily challenge the validity of his prior criminal conviction; and (2) this conclusion does not bar the claims that Plaintiff based on events that occurred after the police officers forcibly removed him from his vehicle.

Estate of Brandon Narleski v. Gomes

Court: Supreme Court of New Jersey

Docket: a-9-10-19

Opinion Date: September 17, 2020

Judge: Barry T. Albin

Areas of Law: Civil Procedure, Personal Injury

Nineteen-year-old Mark Zwierzynski permitted underage adult friends to consume alcoholic beverages in his home. Nineteen-year-old Brandon Narleski and twenty-year-old Nicholas Gomes left the home severely intoxicated. Shortly afterwards, Gomes lost control of his vehicle and crashed. Narleski died at the scene. Gomes’s blood alcohol concentration was twice the legal limit. The issue this case presented for the New Jersey Supreme Court's review was whether the common law imposed a duty on underage adults -- over the age of eighteen but under twenty-one -- to refrain from making their homes a safe haven for underage guests to consume alcoholic beverages and, if so, what the standard for liability would be if an underage guest, who becomes intoxicated, afterwards drives a motor vehicle and injures or kills a third party. The Court held an underage adult defendant may be held civilly liable to a third-party drunk driving victim if the defendant facilitated the use of alcohol by making his home available as a venue for underage drinking, regardless of whether he was a leaseholder or titleholder of the property; if the guest causing the crash became visibly intoxicated in the defendant’s home; and if it was reasonably foreseeable that the visibly intoxicated guest would leave the residence to operate a motor vehicle and cause injury to another. The Appellate Division was reversed, the trial court's grant of summary judgment to Zwierzynski was vacated, and the matter remanded for further proceedings.

Whipple v. Phillips & Sons Trucking

Court: Oklahoma Supreme Court

Citation: 2020 OK 75

Opinion Date: September 21, 2020

Judge: Yvonne Kauger

Areas of Law: Civil Procedure, Labor & Employment Law, Personal Injury

Petitioner Sharla Whipple's twenty-three year old, unmarried son lost his life in a work related accident. Under the Workers Compensation Act, only a spouse, child, or legal guardian could file a Workers Compensation death benefit claim when a work related death occurs. Whipple's son had no spouse, child or legal guardian. Consequently, Whipple's only remedy was to file a wrongful death action. However, the trial court granted partial summary judgment against Whipple, determining that her only remedy was limited to the Workers Compensation system, rather than the district court. Whipple appealed. The Oklahoma Supreme Court held that the right of a parent as the next of kin to bring a wrongful death action when the decedent was an adult, unmarried, and childless, was established in the law pursuant to 12 O.S. 2011 section1053 and by art. 23 section 7 of the Oklahoma Constitution. Therefore, the Legislative attempt to limit recovery for wrongful death pursuant to 85A O.S. Supp. 2014 section 47 to a spouse, child or legal guardian dependent on the decedent was a nullity. "The Okla. Const ... prohibits the abrogation of the right to recover for injuries resulting in death. The Legislature may limit the recovery, but may not eliminate the right to recover."