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A New York City woman who suffered brain damage after a hit-and-run truck crash has settled with the truck driver and his employer, Duane Reade.
The 2008 accident left Shirley Miller, 37, with brain damage, blindness, and very limited communications skills. The parties intend to settle the lawsuit for $22 million, according to Brooklyn Daily Eagle. If approved, it would be the largest personal injury settlement in New York state history, the New York Daily News reports.
Even though Miller was the only one injured in the truck accident, her parents are also a party to the lawsuit.
Miller and her parents were able to sue Duane Reade, an NYC-based drug store chain owned by the Walgreen Company, under the theory of vicarious liability.
While truck drivers are usually liable for the accident they've caused, it may be difficult to also hold the trucking company liable unless the driver was acting within the scope of his employment.
However, under the theory of vicarious liability, an employer can be held legally responsible for an employee's negligence if:
Though lawyers for Miller and Duane Reade have agreed on a settlement, it's now up to the court to approve it. Aside from the record-setting proposed dollar amount -- $22 million -- details of the settlement have not been made public.
Parents as Co-Plaintiffs
One interesting fact about Miller's lawsuit is that her parents are also plaintiffs, though they weren't directly involved in the accident. Although reports don't indicate why Miller's parents are a party to the lawsuit, they may have joined to recover damages to pay for their daughter's future medical expenses and care.
According to Brooklyn Eagle, Miller suffered serious brain damage and has very limited communication skills as a result of the accident. Her injuries likely require her parents to take care of her for the rest of her life, so the settlement award can help manage the healthcare costs.
As this settlement proves, truck accident lawsuits can be complex and take years to resolve. That's why it's best to consult an experienced truck accident attorney if you've been injured in a truck crash and need more legal help.
By Jenny Tsay, Esq. on March 5, 2014 8:00 AM
Adults who enter into contracts with minors may be wondering if it's legal to do so.
In general, minors don't have the legal capacity to enter into a contract unless a court approves the contract or a state's statute allows it.
So when are contracts between minors and adults enforceable in court?
To have a valid contract, all parties signing the contract must have the legal capacity to do so. This means that the person signing must have sufficient understanding that he's entering into a contract and the terms he's agreeing to.
For most contracts, the general rule is that while it's not illegal to enter into a contract with a minor, the contract is voidable at the discretion of the minor. Voidable contracts are usually valid contracts and are binding unless the child cancels it.
On the other hand, if the minor turns 18 and doesn't cancel the contract within a reasonable period of time, the contract could become binding and enforceable.
Enforceable Contracts With Minors
While most contracts with a minor are voidable, several states have statues that allow minors to sign and be bound by a contract with an adult. These contracts usually involve insurance policies or employment agreements.
By DAVID PORTER
MORRISTOWN, N.J. (AP) â€” A judge denied the initial request of a northern New Jersey honor student who has sued to get her parents to support her after she moved out of their home, and cautioned that the case could lead to a "potentially slippery slope" of claims by teenagers against their parents.
Rachel Canning had sought immediate relief in the form of $650 in weekly child support and the payment of the remainder of her tuition at Morris Catholic High School, as well as attorney's fees.
State Superior Court Judge Peter Bogaard denied those motions but ordered the parties to return to court on April 22, when they will present evidence and testimony on the over-arching question of whether the Cannings are obligated to financially support their daughter. Rachel Canning has already been accepted by at least one college and is seeking to have her parents pay some or all of her tuition, attorney Tanya Helfand told Bogaard Tuesday.
Dressed in her school uniform and with several friends in the gallery, Rachel Canning didn't speak to reporters after the hearing.
Bogaard sounded skeptical of some of the claims in the lawsuit, saying it could lead to teens "thumbing their noses" at their parents, leaving home and then asking for financial support.
"Are we going to open the gates for 12-year-olds to sue for an Xbox? For 13-year-olds to sue for an iPhone?" he asked. "We should be mindful of a potentially slippery slope."
Court documents show frequent causes of parent-teenage tension â€” boyfriends and alcohol â€” taken to an extreme. In the filings, there are accusations and denials, but one thing is clear: the girl left home Oct. 30, two days before she turned 18 after a tumultuous stretch during which her parents separated and reconciled and the teen began getting into uncharacteristic trouble at school.
In court filings, Canning's parents, retired Lincoln Park police Chief Sean Canning and his wife, Elizabeth, said their daughter voluntarily left home because she didn't want to abide by reasonable household rules, such as being respectful, keeping a curfew, doing a few chores and ending a relationship with a boyfriend her parents say is a bad influence. They say that shortly before she turned 18, she told her parents that she would be an adult and could do whatever she wanted.
She said her parents are abusive, contributed to an eating disorder she developed and pushed her to get a basketball scholarship. They say they were supportive, helped her through the eating disorder and paid for her to go to a private school where she would not get as much playing time in basketball as she would have at a public school.
Helfand told Bogaard in court Tuesday that Rachel Canning learned her behavior from her parents, particularly her mother, with whom she has a difficult relationship.
"These people who call themselves loving parents paint the most disgusting portrait of their daughter" in the court filings, she said. "They are pointing the finger to avoid their parental responsibilities."
A cheerleader and lacrosse player who hopes to become a biomedical engineer, Canning wants the judge to declare that she's non-emancipated and dependent as a student on her parents for support
Attorney Laurie Rush-Masuret, representing the Canning parents, called Rachel Canning's claims "outrageous" and said that by leaving â€” and by the fact that she is 18 â€” Rachel Canning "emancipated herself" and shouldn't count on her parents' support.
"There is no abuse. There is no neglect," she said. "They are not unfit parents. She could come home tonight."
Rachel Canning has been living in Rockaway Township with the family of her best friend. The friend's father, former Morris County Freeholder John Inglesino, is paying for the lawsuit.
The makers of Cottonelle and Costco-brand "flushable" wipes are facing a federal lawsuit that seeks class-action status.
Dr. Joseph Kurtz, a New York dentist, is spearheading the flushable wipes lawsuit effort, claiming the wipes caused major plumbing and clogging issues in his home, ABC News reports.
But what's the whole class action stink about?
Flushable Wipes Lawsuit
Kurtz claims the makers of Cottonelle and Costco-brand wipes should have known that the wipes' "flushable" claims were false and misleading, ABC News reports.
In the suit, Kurtz claims consumers across the country have suffered clogged pipes, flooding, jammed sewers and issues with septic tanks due to the use of flushable wipes. The suit claims to represent 100 people who've faced those problems.
But before Kurtz's lawsuit becomes a class action, there must be a hearing on class certification.
Class Action Status
A class action lawsuit is one in which a group of people with the same or similar injuries caused by the same product or action sue the defendant as a group. The flushable wipes lawsuit asserts that people across the country have faced the same or similar plumbing problems after flushing the wipes.
If a court agrees, then it will issue an order that defines the class and appoints a class counsel to lead litigation efforts. However, the defendants -- in this case, the flushable wipe manufacturers -- can try to argue that the alleged class should not be certified.
People often seek justice in class action lawsuits when their injuries have been caused by defective products. This case involves a marketing defect claim that the wipes don't degrade as advertised.
It's possible many of the individuals' economic injuries (namely, plumbing and repair costs) were relatively minor. For them, pursuing a solo lawsuit would not have been worth the time and money of litigation. But as a class action, their claims can be thrown into the same pot, adding up to an alleged $5 million in damages.
Suing as a class also cuts down on each class member's time and expense because the class consolidates the attorneys and court costs and the group files with a representative plaintiff, called a "named plaintiff" or "lead plaintiff." In this case, Dr. Kurtz hopes to be the named plaintiff.
In response to the flushable wipes lawsuit, a spokesman for Kimberly Clark, the maker of Cottonelle, told ABC News that "extensive testing" has proven its product is flushable. A reprsentative for Costco declined to comment.
Mistake of Law v. Mistake of Fact
Generally speaking, a mistake of law -- a mistake involving the misunderstanding or incorrect application of law -- is not a valid defense to a crime. By contrast, a mistake of fact -- an unintentional misunderstanding about a fact -- is a valid criminal defense.
In this case, Lanchester said he didn't know cocaine was illegal in Florida. That's a mistake of law. But if he had said "Excuse me Officer, you mean this here bag of baby powder?" That would be a mistake of fact.
A lack of knowledge that the material was a controlled substance can function as a defense to a drug possession charge; not that the controlled substance is illegal.
These days it seems like everyone proclaims to be an expert in something. But when it comes to court cases, who qualifies as an expert witness?
As TV courtroom dramas show, expert witnesses are usually called in by one of the parties to help jurors understand complicated, technical concepts.
However, not everyone can qualify as an "expert," and not all types of expert testimony may be permitted. Here's a general overview:
Who Can Be an Expert Witness?
Rules about expert witnesses are set by state and federal rules of evidence, depending on whether your case is in state or federal court.
According to the Federal Rules of Evidence, a qualified expert witness is someone who has knowledge, skill, education, experience, or training in a specialized field. These qualifications are generally also required of expert witnesses in state courts.
Under federal rules, experts must base their testimony on sufficient facts or data of the type reasonably relied upon by experts in their field, in order to help the jury understand issues that typically require specialized knowledge. While non-expert witnesses can only testify about what they've seen or heard, expert witnesses are generally allowed to give their specialized or professional opinion.
States have similar rules, though there are notable differences among states when it comes to the admissibility of expert testimony.
Admissibility of Scientific Testimony
One issue that often arises with expert witnesses is whether scientific testimony will be allowed in court.
For scientific issues that aren't seriously disputed, judges may take judicial notice. This means that the judge accepts the testimony as fact because it's something a person of average intelligence already knows.
For more controversial scientific issues, courts must determine if the testing methods were reliable before admitting the expert's testimony. In federal courts and in many states, judges will ask whether the scientific issue in question has been subjected to peer review, whether it can be tested, and whether the procedures have been published. Courts will also look at the rate of error in the testing.
In a few other states, the test used by courts is slightly different: The reliability of the scientific evidence must be acknowledged by the scientific community in order to be admitted. The expert must be qualified to conduct the testing and provide proof that correct procedures were followed.
It's generally against the law to enter someone's land or use his or her property without permission. If you do, you could be face legal consequences for trespassing.
But there are certain limited circumstances when you can trespass, including emergency situations.
Two commonly used trespassing defenses -- public necessity and private necessity -- may allow you to trespass in an emergency.
A defense to trespass can exist when you (or, more likely, government actors like law-enforcement agents) trespass out of necessity to protect the community or society as a whole during an emergency -- for example, burning down a row of homes to stop the spread of a fast-moving fire.
For this defense to work, there must be an immediate necessity for the trespass and you must have trespassed in genuine good faith that it was to protect public safety. It's meant to protect the public from a greater harm that would have occurred if you had not committed trespass.
Public necessity functions as a complete defense, meaning it shields you from liability for any damages caused by your trespass. But you lose the protection of this complete defense when your trespass becomes unreasonable under the circumstances.
Although not a complete defense, private necessity lets you trespass if it's to protect yourself from death or serious bodily injury in an emergency -- for example, if you're being chased by a dangerous animal and are seeking shelter in someone else's toolshed.
Under the private necessity defense, you are entitled to stay on the land for as long as the emergency continues, even if the owner wants to eject you. However, just like public necessity, you lose the defense's protection as soon as your trespass becomes unreasonable.Unlike public necessity, private necessity is not an absolute defense to liability for trespass. You may still be civilly liable for any damages that result from your trespass -- for example, if you drove onto someone else's property to avoid an imminent crash and caused $500 in damage to the property owner's fence, you'll probably have to pay for it. But you won't be liable for any nominal or punitive damages
Facebook 'Likes' Are Protected Free Speech, Says 4th Cir
By William Peacock, Esq. on September 18, 2013 12:07 PM
My Facebook page contains 222 likes, some of which are probably embarrassing and not at all representative of my actual interests. Sometimes you "like" something because there is a giveaway. Sometimes you do so sarcastically. Then again, sometimes, you "like" something because you appreciate the brand or person and want the world to know.
And, of course sometimes, you get caught "liking" your boss's opponent in the next election.
In 2009, Sheriff BJ Roberts noticed that six of his employees had "liked" his opponent's page. His opponent, Lieutenant Colonel Jim Adams, was the third-most senior officer in the department. After prevailing in the election, Roberts terminated the employment of all six men. They, in turn, sued for retaliation, with one of the men, Daniel Ray Carter, creatively asserting that a Facebook "like" was protected speech.
'Like' Is Speech
The district court, while noting that Facebook posts had previously been recognized as speech, held that free speech required something more substantive than clicking a button. The Fourth Circuit, panel, however, unanimously disagreed, likening the "like" to placing an election yard sign on one's lawn.
Judge Traxler, writing for the majority, stated, "On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."
But No Damages
Ah, qualified immunity: you strike again. The majority held that because it was not clearly-established law that a deputy officer, with duties of a jailor, could be dismissed on the basis of his personal beliefs, Sheriff Roberts and the department were immune from money damages for retaliation. Qualified immunity protects government officials who act in the course of their duties, unless their actions violate law that was clearly established at the time of the incident.
Judge Hollander dissented from the immunity portion of the majority's opinion, arguing that the majority's reliance the cloudiness of the law was incorrect. The job duties of the discharged employees were clearly that of jailors, not of deputies with "partisan political interests" related to their jobs.
For example, a mayor can fire a political appointee that manages, say, education policies, but he cannot fire a janitor for voting against him.
Facebook "Likes" the Ruling
Unsurprisingly, Facebook submitted an amicus brief earlier in the case, arguing that "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton sheriff,' there would be no dispute that his statement was constitutionally protected speech ... Carter made that very statement; the fact that he did it online, with a click of a computer's mouse, does not deprive Carter's speech of constitutional protection."
Limits on Today's Ruling
This may go without saying, but a Fourth Circuit holding only applies in the Fourth Circuit (W. Va, Va. NC, and SC). It could, however, provide persuasive authority for other courts. Also, though "likes" are now considered protected speech, obviously, speech protections aren't as great for private employers.
By Betty Wang on September 1, 2013 9:31 AM
Are schools allowed to monitor their students on social media? Middle and high schools in Glendale, California are doing just that. School officials have hired a company to track 13,000 students' online posts on Instagram, Twitter, Facebook, and others, paying more than $40,000 a year for the service, CBS News reports.
Glendale's superintendent says the reason behind this somewhat drastic new measure is an emphasis on student safety. It also allows school officials to intervene if students are discussing suicide, violence, substance abuse, or bullying.
What are the legal implications behind this?
The Fourth Amendment guarantees U.S. citizens the right to be free from unreasonable searches and seizures absent a warrant issued with probable cause. But it also requires government action and a reasonable expectation of privacy in what's being searched.
Government action doesn't apply when private persons are conducting the search. For example, if a friend is snooping in another friend's bag, this may be a violation of the bag-owner's privacy, but the Fourth Amendment wouldn't apply because the friend is not a government figure.
In the case of schools monitoring students' social media, however, Glendale's public school district does qualify as a government entity.
No Reasonable Expectation of Privacy
But the "reasonable expectation of privacy" part is where the Fourth Amendment test falls short.
Students in Glendale can't be seen as having a reasonable expectation of privacy when it comes to their social media posts, because whatever students are posting can be seen by the general public. Unless the firm hired by the school district is hacking into students' accounts or using their passwords, then there is no Fourth Amendment issue here.
A similar argument can be made when it comes to trash that one leaves out on one's curb. Courts have ruled that there is no reasonable expectation of privacy in trash left out by a curb for pickup, because the (former) owner of the trash knowingly put it out there in public.
So while it may seem invasive, the best way for students to approach this situation is to be informed about their rights. If they don't want their social media accounts to be viewed by certain people, they should set their profiles to "private" and limit the amount of information they share.
The social media lesson here: When you have a public profile, there really is no limit as to who can see this information.
By Betty Wang on May 30, 2013 10:58 AM
Facebook hate speech has become the topic of concern to the company, after a coalition of women's groups brought some offensive and degrading posts to its attention. In these posts, users made light of subjects like rape, sexual abuse, and domestic violence.
Now, Facebook says it's taking immediate steps to remedy this, with an update to the site's guidelines. Posts containing hate speech will be more quickly alerted to Facebook user operations team members.
If you're on Facebook, chances are you've come across an off-color comment or two while randomly browsing the site. But isn't hate speech still considered speech, and therefore, free speech? Is Facebook allowed to control this content?
The short answer is yes. Absolutely. Facebook's anti-hate speech policy is solid, from a legal standpoint, even under the First Amendment of the U.S. Constitution.
Why is that?
The problem with throwing around the phrase "free speech" is that, casually, it could mean whatever you want it to mean. But, legally? It's a whole different story.
Let's start by taking a look at the exact wording of the First Amendment. It states:
Note that it says Congress shall make no law. The First Amendment guarantees only that the government cannot restrict free speech, basically. It only applies to the government, or government bodies.
So because Facebook is a private entity that does not fall into any government category, it can choose to limit certain types of speech that it considers harmful or in bad taste.
Still, an ACLU lawyer told ABC News that "as more of our speech migrates from sidewalks and parks to social media," new "gatekeepers" like Facebook "should be commended when they apply First Amendment principles to keep their platforms as open as possible."
So, in a nutshell, have as much fun as you want on Facebook and feel free to speak your mind and interact with others. But, just as you're free to post whatever you want, Facebook is just as free to remove it from their site. It's called free speech.