Latest 8 Cases This Week: Reyes-Colon v. United States (1st Cir.), Adams v. Alcolac, Inc. (5th Cir.), Nanouk v. United States (9th Cir.)

Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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Reyes-Colon v. United States

Court: US Court of Appeals for the First Circuit

Docket: 19-1235

Opinion Date: September 4, 2020

Judge: Ojetta Rogeriee Thompson

Areas of Law: Personal Injury

The First Circuit affirmed the judgment of the district court dismissing this case for lack of subject matter jurisdiction under the Federal Tort Claims Act (FTCA), holding that the FTCA's discretionary-function applied in this case and that the district court lacked jurisdiction over Plaintiffs' claims. While delivering mail for the Postal Service, an employee for Eagle Support, Inc. driving an Eagle truck rear-ended a school bus, severely injuring two minor passengers. Plaintiffs sued the Postal Service under the FTCA, alleging negligence for failing to inspect Eagle's vehicles for safety purposes. The Postal Service filed a motion to dismiss for lack of subject-matter jurisdiction under the discretionary-function exception. The judge dismissed Plaintiffs' complaint. The First Circuit affirmed, holding that the discretionary-function exception divested the federal courts of jurisdiction over Plaintiffs' suit.

Adams v. Alcolac, Inc.

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40899

Opinion Date: September 8, 2020

Judge: Per Curiam

Areas of Law: Personal Injury

Plaintiffs, primarily former U.S. military personnel who were injured by Saddam Hussein's use of mustard gas during the Gulf War, seek to hold Alcolac, Inc. liable for these injuries because, they allege, it illegally provided the government of Iraq with thiodiglycol, which was then used to create mustard gas. Plaintiffs' claims have been foreclosed in previous litigation except for two: (1) a claim under the Justice Against Sponsors of Terrorism Act (JASTA) and (2) a civil-conspiracy claim under Texas law. The Fifth Circuit affirmed the district court's grant of summary judgment to Alcolac, holding that the first claim fails because JASTA does not provide a cause of action for injuries caused by acts of war. Furthermore, the civil-conspiracy claim fails because plaintiffs have not demonstrated that Alcolac or anyone else committed a tort in furtherance of the alleged conspiracy. The court explained that, because plaintiffs' JASTA and civil-conspiracy claims fail, they do not have valid underlying claims. Therefore, their Texas Uniform Fraudulent Transfer Act claims also fail.

Nanouk v. United States

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-35116

Opinion Date: September 4, 2020

Judge: Paul Jeffrey Watford

Areas of Law: Environmental Law, Native American Law, Personal Injury, Real Estate & Property Law, Zoning, Planning & Land Use

Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems. The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990.

Ex parte Sam Smith

Court: Supreme Court of Alabama

Docket: 1180834

Opinion Date: September 4, 2020

Judge: Greg Shaw

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

Defendants below, Sam Smith, director of the Calhoun County Department of Human Resources ("CCDHR"); Pamela McClellan, an adult-protective-services caseworker with CCDHR; and Teresa Ellis, McClellan's supervisor (referred to collectively as "petitioners"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the circuit court to vacate its order denying their motion for a summary judgment in a wrongful-death action filed by William David Streip ("David"), as the personal representative of the estate of his sister, Jerrie Leeann Streip ("Leeann"), and to enter a summary judgment in their favor on the basis of immunity. Leeann suffered from numerous serious physical, mental, and emotional conditions since birth; those conditions were exacerbated by brain surgery in 2013. Following that surgery, Leeann was released to a nursing-home facility before being discharged into the care of her father. Leeann subsequently reported to a CCDHR social worker that her father had raped her. As a result, an adult-protective-services case was opened under Alabama's Adult Protective Services Act ("the APSA"), and McClellan was assigned as Leeann's caseworker. Upon the conclusion of the ensuing investigation, CCDHR removed Leeann from her father's care. Leeann was placed at a Leviticus Place, a boarding home where she remained for approximately one week. There were no concerns about Leeann's well being, but McClellan was notified Leann had left Leviticus Place and did not return. A body located in Birmingham was later identified as Leeann's; her cause of death remains "undetermined." After review, the Alabama Supreme Court determined petitioners established they were entitled to statutory immunity. They had a clear legal right to a summary judgment in their favor on that ground. The trial court was accordingly directed to vacate its order denying the petitioners' motion for a summary judgment and to enter a summary judgment in the petitioners' favor.

Martinez v. Government Employees Insurance Company, et al.

Court: Alaska Supreme Court

Docket: S-17041

Opinion Date: September 4, 2020

Judge: Peter J. Maassen

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

In 2011, Joshua Martinez was driving a pickup truck when he lost control and crashed into a cabin, injuring the cabin owner Charles Burnett, and causing damage, including a spill of heating fuel. Burnett asked Martinez's insurance company, Government Employees Insurance Company (GEICO) to pay him to do the cleanup himself, but the insurance company refused because the cabin owner did not have the qualifications required by the Alaska Department of Environmental Conservation. Cleanup stalled for over a year while the effects of the spill on the property and the owner’s health allegedly worsened. Martinez and the truck’s owner (his father) Robert Martinez, settled with the Burnett for the maximum limits of the insurance policy, but Burnett sought additional damages from the insurance company for its failure to promptly clean up the property. Following summary judgment for the insurance company and a reversal and remand by the Alaska Supreme Court, the superior court held an evidentiary hearing to decide whether the insurance company had assumed a duty to the cabin owner independent of the duty it owed its insureds. The superior court found there was no such duty. Burnett and the insureds appeal. Burnett contended the superior court erred by finding no actionable duty, and that it deprived him of due process by failing to consider his arguments before entering proposed findings of fact and conclusions of law and awarding attorney’s fees. The insureds argued the superior court erred by deciding that they were precluded from further participation in the litigation once they entered into a settlement and were voluntarily dismissed from the case. The Supreme Court concluded the superior court did not clearly err in its findings of fact about the existence of an independent duty and that it did not violate Burnett’s due process rights. The Court also concluded the insureds were no longer parties to the case at the time they sought to renew their participation in it, and their arguments that they were entitled to either joinder or intervention were waived for lack of briefing.

Burchell v. Faculty Physicians & Surgeons etc.

Court: California Courts of Appeal

Docket: E071146(Fourth Appellate District)

Opinion Date: September 10, 2020

Judge: Raphael

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

In 2014, plaintiff-respondent Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. His surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected, believing the mass was malignant. Without consulting either Burchell (who was under anesthesia) or the person Burchell had designated as his medical proxy, Barker removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. Burchell suffered serious side effects, some of which are permanent and irreversible. The mass turned out to be benign. Burchell brought suit, alleging professional negligence and medical battery. A jury returned a verdict for Burchell on both causes of action, awarding him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages against Dr. Barker and defendant-appellant Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (FPS). On appeal, FPS argued the award of noneconomic damages should have been reduced to the $250,000 limit on such damages in “any action for injury against a health care provider based on professional negligence” provided by Civil Code section 3333.2(a), part of the Medical Injury Compensation Reform Act of 1975 (MICRA). In the alternative, FPS argued the award of noneconomic damages was excessive and the product of improper argument by Burchell’s counsel, so the Court of Appeal should reverse and remand for new trial unless Burchell accepts a reduction of the award to an amount we deem reasonable. Finally, FPS argued Burchell’s offer to compromise pursuant to Code of Civil Procedure section 998 was invalid, so the award of expert witness fees and prejudgment interest should also be reversed. After review, the Court of Appeal rejected FPS' first two arguments, but concurred that Burchell’s section 998 offer was invalid, and therefore reversed the award of expert witness fees and prejudgment interest.

Humphrey v. Tuck

Court: Supreme Court of Indiana

Docket: 20S-CT-548

Opinion Date: September 8, 2020

Judge: Slaughter

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the trial court awarding Plaintiff $40,000 in this personal injury action, holding that the trial court did not abuse its discretion in giving a failure to mitigate instruction. Plaintiff brought this action alleging negligence and respondeat superior against Defendants claiming that a vehicle accident caused a preexisting tumor in his eye to swell in size. At the conclusion of the evidence, Defendants asked for a jury instruction on failure to mitigate damages. The trial court gave the requested instruction. The trial court awarded Plaintiff $40,000. On appeal, Plaintiff argued that the mitigation instruction was unsupported by the evidence. The Supreme Court disagreed, holding that the trial court did not abuse its discretion in giving a failure to mitigate instruction.

Moser v. State

Court: Nebraska Supreme Court

Citation: 307 Neb. 18

Opinion Date: September 4, 2020

Judge: Michael G. Heavican

Areas of Law: Personal Injury

The Supreme Court affirmed the order of the district court dismissing Appellant's personal injury suit, albeit under different grounds for immunity than those relied upon by the district court, holding that the State had immunity from suit under the intentional tort exception. Terry Berry was fatally strangled by another prison inmate. Appellant, the personal representative of Berry's estate, filed this suit against the State alleging negligence and wrongful death on the part of the Nebraska Department of Correctional Services. Specifically, the complaint alleged that Berry's death was negligently caused by the State's violation of its duties and its formal regulations. The district court dismissed the complaint, concluding that Neb. Rev. Stat. 81-8,219(4) barred Plaintiff's claim. The Supreme Court affirmed, holding that the State had immunity under the intentional tort exception to the STCA, as set forth in section 81-8,219(4).