Accidents happen.  Sometimes an accident could have been prevented – and was caused by the carelessness of another.  When an accident is caused by someone else’s negligence, then the negligent party (the one who didn’t act carefully enough) can be held responsible when a person is injured as a result.    However, sometimes an accident is truly just an accident – it wasn’t reasonably preventable, everyone involved behaved pretty responsibly, etc.  While it might not seem like anyone could be held responsible for an accident that’s “just an accident,” you’d be surprised at how much liability could actually be involved…  Sometimes the owner of property is legally responsible for an accident that occured on his or her property simply because a dangerous condition existed.  Sometimes a product manufacturer is legally responsible for defects in a product that caused harm to someone simply because the product is considered dangerous.  There are many different ways a person may be held responsible for another’s injuries. 

Take a look at LawInfo’s Free Legal Resource Center for more information – we’ve recently updated our section devoted to the issue of “fault” when a person is injured.  Specifically, we’ve added a new video on the topic to help explain this sometimes complicated matter.  To learn more and watch the videos, click the following:

I was injured in an accident… now what?

Who is responsible when a person is injured?

What does the term “liable” mean?

What does the term “reasonable person” mean?

What is negligence?

What is strict liability?

How do you know if you have a personal injury claim?

What financial compensation can I get in a personal injury claim?

Hiring the right personal injury attorney

Do you have a complaint about your mortgage lender or broker regarding your interest rate, prepayment penalties, fraud, deception, or other matter regarding your home?  First, try to resolve the problem directly with your bank or broker.  If you are unsuccessful, however, I highly recommend you contact an attorney to discuss your legal options.  There are a variety of federal and state laws protecting consumers’ financial rights.  For instance, lenders and brokers are required to provide certain disclosures to borrowers about rates, fees, and other terms and conditions of lending.  If a lender or broker has violated any of the applicable laws, there will be certain legal remedies available to you.  Find an attorney through LawInfo’s online attorney directory. 

In addition to seeking advice from an attorney about your particular situation, you should know that you can make a complaint about a financial institution to various government agencies.  Below is information about how you can submit a complaint to the appropriate agency.   

Federal Deposit Insurance Corporation

The Federal Deposit Insurance Corporation (FDIC) handles complaints about FDIC insured state banks which are not members of the Federal Reserve System.  You can submit a complaint about your financial institution by completing the FDIC Customer Assistance Online Form.  You can also contact the FDIC by mail or phone:

Federal Deposit Insurance Corporation
Division of Compliance
1730 Pennsylvania Ave
7th Floor
Washington DC 20429
(877) 275-3342

Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) is a bureau of the U.S. Department of the Treasury.  The OCC handles complaints about National Banks. (Usually banks that have “National” in their name or “N.A.” after their names.) You can submit a complaint by completing the OCC Online Customer Complaint Form.  You can also contact the OCC by mail or phone:

Comptroller of the Currency
Compliance Management
250 E Street SW
Mail Stop 3-9
Washington DC 20219
(800) 613-6743
www.occ.treas.gov

Office of Thrift Supervision

The Office of Thrift Supervision handles complaints about Federal savings and loans, and also Federal savings banks.  You can submit a complaint about your financial institution by completing the OTS Consumer Complaint Form and mail or fax your complaint to:

Office of Thrift Supervision
Consumer Affairs Division
1700 G Street NW
Washington DC 20552
(800) 842-6929 
FAX:  202-906-7342
www.ots.treas.gov

Federal Trade Commission

The Federal Trade Commission handles complaints concerning most non-bank lenders, such as, mortgage and finance companies and state credit unions.  You can submit your complaint through the FTC’s Online Complaint Assistant. (Note:  The FTC Online Complaint Assistant is sort of a one-stop-shop for a variety of complaints collected by the FTC (including complaints about non-financial companies, business practices, identity theft, and episodes of violence in the media), so don’t get confused if you see questions related to these topics when using the Online Complaint Assistant…  just answer yes/no when going through the process so that your complaint can be directed to the right place.)   You can also contact the FTC directly:

Federal Trade Commission
Consumer Response Center
600 Pennsylvania Avenue, N.W.
Washington DC 20580
(877) 382-4357
www.ftc.gov

The Federal Reserve Board

The Federal Reserve Board handles complaints and regulates state-chartered banks and trusts. The agency also administers Truth-in-Lending, Equal Credit Opportunity Act, and Fair Credit Reporting Act.  You can submit your complaint by completing the Federal Reserve Board Online Complaint Form.  You can also download the form and submit it to the Federal Reserve Board by mail or fax:

Federal Reserve Consumer Help
PO Box 1200, Minneapolis, MN 55480
Fax: 877-888-2520

Division of Consumer and
Community Affairs
(202) 452-3693
www.federalreserve.gov

National Credit Union Administration

The National Credit Union Administration handles complaints about National Credit Unions. For Federal Credit Union (a credit union with the word “federal” contained in its name or any credit union in Delaware, South Dakota, Wyoming or Washington, DC), NCUA is the regulator.   You can file a formal complaint by sending the NCUA a letter – no special form is required – to the NCUA regional office for your state.  Find the NCUA regional office for your state by clicking here.

National Credit Union
Administration
1775 Duke Street
Alexandria VA 22314-3428
(703) 518-6300
www.ncua.gov

State charted Credit Union:  A credit union without the word “federal” as part of its name and not located in Delaware, South Dakota, Wyoming or Washington, DC, is probably regulated by a  state supervisory authority where the credit union’s main branch is located.  If your complaint is about a state-chartered credit union, you can find the appropriate contact information to make a complaint by clicking here. 

If you’re not sure if your credit union is state or federal, you can use the Find a Credit Union (link) to search by name and look up the credit union’s charter number.  Federal credit unions have charter numbers under 60000, state-chartered credit unions have charter numbers greater than 60000.

Department of Veterans Affairs

The Department of Veterans Affairs handles complaints about loans guaranteed by Veterans Affairs.  Contact the VA Regional Loan Center by clicking here. 

Department of Veterans Affairs
Consumer Affairs Service
810 Vermont Avenue, NW
Washington DC 20420
(202) 273-5770
www.va.gov Handles complaints about loans guaranteed by Veterans Affairs.

By now, we’ve all become familiar with loan modification scams, deceptive mortgage rescue ads, and other foreclosure scams.  State Attorney General offices have received numerous complaints from unwary consumers who have fallen victim to some of these companies after having forked out substantial money to them, with little or no resolution to their mortgage problems.  Well, the FTC has rallied to help.  (It is its job, anyway, to protect consumers in such a way.)  Cleverly called “Operation Loan Lies,” the FTC is coordinating its efforts with other law enforcement agencies to help protect families and individuals from falling prey to the unscrupulous scammers.  The FTC is also bringing lawsuits against many of these companies for their illegal activity – including charges of deceptive advertising, false claims, misrepresentation, and failing to provide promised services. 

You know the ones I’m referring to – those companies that promise to stop foreclosure, rescue homeowners from high mortgage payments…. all for just a “small” upfront fee.  The truth is – nobody can promise to stop foreclosure and nobody can promise to get you a loan modification. 
However, there are professionals out there, including attorneys, who CAN advise you of what options are available for your particular situation.  Seriously, understanding the landscape is half the battle.  Also, attorneys CAN help you navigate the process with your lender. 

Read the FTC news release about Operation Loan Lies by clicking here. 

To learn more about how the financial crisis affects you, including information about foreclosure, loan modification, and debt relief, visit LawInfo’s Free Legal Resource Center.  For more information, consult an attorney in your area about your financial concerns.  Visit LawInfo’s Attorney Directory to locate an attorney.

Media reports are swirling over the issue of who will get custody of Michael Jackson’s kids.  It could be a bit of a battle depending on a variety of things including what Michael Jackson’s will provides regarding guardianship of the kids, whether Michael Jackson’s mother (temporary guardian at this point) petitions the court for custody, and whether any other person(s) claim a legal right to custody of the children.  One of the issues that may impact the custody or guardianship proceedings is whether or not another person, such as Debbie Rowe (mother of Michael Jackson’s two eldest children), or the so-called unknown surrogate mother of Jackson’s youngest child, will dispute any guardian named in Jackson’s will and try to obtain custody respectively.   It can be a complicated, if not downright tricky, legal issue when children are born in, let’s say non-traditional, means.  And… unlike some tabloid reports, the person(s) named on a child’s birth certificate are not necessarily conclusively entitled to such custody.  Allow me to deconstruct: 

When a man and woman get married, conceive a child, the woman carries the pregnancy and gives birth to the child, the child is both biologically related to both the man and the woman and the woman gives birth to the baby – both “paternity” and “maternity” are clear.  Both the man and the woman have a “parent and child relationship” with the baby.  The woman’s name is listed on the birth certificate as the mother and the man’s name is listed on the birth certificate as the father. 

With adoption of a child, parental rights are also well-settled.  The man and the woman petition the court to adopt the child, to terminate the biological mother (and father’s when known) legal rights, and for the adoptive parents to become the legal parents.   A Court Report of Adoption is prepared which contains the child’s original birth name, etc. and the natural parents’ names, as well as the child’s new name and information about the adoptive parents.  Then, the child’s original birth record is sealed and a new birth certificate is prepared listing the adoptive father’s name as the father and the adoptive mother’s name as the mother. 

With surrogacy, the legal rights of all involved start getting a little tricky.  First, there are many different types of surrogacy.  A woman’s eggs can be harvested and fertilized by her husband’s sperm and implanted into another woman (surrogate), eggs can be donated by another woman, sperm can be donated, a woman can volunteering (or be paid) to be inseminated with a married man’s sperm in order to conceive and carry a child for a married couple,  etc.   Donors may be known or anonymous.  The most common types of surrogacy according to surrogacy.com are outlined below: 

• Traditional Surrogacy (Artificial Insemination) 
  An arrangement between the intended parents of the child and a woman who agrees to donate her egg(s) to be artificially inseminated with the sperm of the intended father. In most states the intended mother does a step-parent adoption after the birth in order to establish her parental rights and so that the surrogate will relinquish her rights regarding the child.
• Gestational Surrogacy
  An arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) and sperm of the intended parents. The child(ren) of gestational surrogacy is/are the genetic child(ren) of the intended parents, and the surrogate carries the embryo/fetus to term in the role of “host” uterus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.
• Donor Egg/Gestational Surrogacy
  Arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) of a third party donor (who is often anonymous) and sperm of the intended father. The surrogate carries the embryo/fetus to term as a “host” uterus since there is no biological tie between the surrogate and the embryo/fetus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.

In many states, the woman who gives birth to a child is presumed to be the mother and is thus named on the birth certificate as such.  With the increase of “assisted conception” and “third party reproduction” methods, however, some states may have regulations in place regarding naming the intended or biological mother on the original birth certificate.  On the father’s side, the intended or biological father may be able to “acknowledge” paternity and be named on the original birth certificate.  However, in many states if a surrogate is married, her husband may be “presumed” to be the father and thus listed on the original birth certificate.  Of course, these “presumptions” may be rebutted through evidence otherwise.

In California, the names of the father or mother listed on a child’s original birth certificate can be changed through a court order called an “Adjudication of Facts of Parentage.” A hospital or the Department of Vital Records can not change the names on a birth certificate without this official court order or “adjudication.”  To get the court order, the person(s) must petition the court, present facts about their situation, and the court must officially determine whether a “parent and child relationship” exists in order for the birth certificate to be changed. 

The Adjudication of Facts of Parentage (court order) must state the following:

1. 1. Specifically instruct the Department of Vital Statistics to remove the existing father and add the new father.
2. 2. Include the child’s date and place of birth as listed on his or her original birth certificate.
3. 3. If the child’s name is being changed, the full new name must be listed in the court order.

Given all of the above, the birth certificates of Michael Jackson’s children may not necessarily be the whole story.  Of course, they would be evidence of legal paternity and maternity.  Since the stakes are quite high in circumstances such as these – i.e. who will obtain legal rights to custody of a child – it is extremely important to seek the advice of an experienced attorney when contemplating assisted conception, third party reproduction, surrogacy, or other methods to create your family.  For more information, contact a family law attorney or a surrogacy lawyer.

Some of the significant cases the Supreme Court decided in its 2008-09 term:

REVERSE DISCRIMINATION

The Supreme Court ruled 5-4 that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race. It was a decision that could alter employment practices nationwide and make it harder to prove discrimination where there is no evidence it was intentional. The white firefighters claimed they were discriminated against when the city tossed out the results of a promotion exam because too few minorities scored high enough. The city says it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. Decided on June 29, 2009.

STATE REGULATION OF BANKS

The Supreme Court ruled 5-4 that state attorneys general can investigate national banks for discrimination and other crimes in the states where they operate as long as they can convince a judge that investigations are needed. Federal courts had blocked an investigation begun by New York, which was backed by the other 49 states, of whether minorities were being charged higher interest rates on home mortgage loans by national banks with branches in New York. The high court ruled that state attorneys general cannot issue subpoenas or bring enforcement actions against banks on their own, but can go to court to get permission to investigate. Decided on June 29, 2009.

STRIP SEARCH

The Supreme Court ruled that school officials violated an Arizona teenager’s rights by strip-searching her for prescription-strength ibuprofen. The court said educators cannot force children to remove their clothing unless student safety is at risk and they reasonably suspect where something is being hidden. In an 8-1 ruling, the justices said that Safford Middle School officials violated the Fourth Amendment ban on unreasonable searches with their treatment of Savana Redding, who was 13 at the time. The court ruled that the officials could not be held financially liable but left it to lower courts to decide if the school district could. Decided June 25, 2009.

VOTING RIGHTS

The Supreme Court narrowly ruled in a challenge to the landmark Voting Rights Act, siding with a small Texas governing authority but sidestepping the larger constitutional issue. The court in an 8-1 decision avoided the major questions raised over the federal government’s most powerful tool to prevent discriminatory voting changes since the mid-1960s. The law requires all or parts of 16 states, mainly in the South, with a history of discrimination in voting to get approval before making changes in the way elections are conducted. The court said that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, can apply to opt out of the advance approval requirement, reversing a lower federal court that found it could not. Decided on June 22, 2009.

SPECIAL EDUCATION

The Supreme Court ruled that parents don’t have to send their special education students to public schools before seeking reimbursement for private school tuition. The justices ruled 6-3 that the Individuals with Disabilities Education Act does not require public school attendance before parents of special ed students can ask to be reimbursed for the child’s tuition at private schools. The family of a teenage Oregon boy has fought to get reimbursed for $65,000 in private tuition. Decided June 22, 2009.

AGE DISCRIMINATION

The Supreme Court made it harder to prove discrimination on the basis of age, ruling against an employee in his mid-50s who says he was demoted because of his age. In a 5-4 decision, the court said a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons. Decided June 18, 2009.

DNA TESTING

The Supreme Court ruled 5-4 that convicts have no constitutional right to test genetic evidence to try to show their innocence. The court said it would not second-guess states or force them routinely to look again at criminal convictions. This decision could have a limited effect because 47 states and the federal government already have laws that allow DNA testing in some circumstances. William Osborne, convicted in a brutal assault on a prostitute in Alaska 16 years ago, sued for the right to test the contents of a blue condom the victim says was used by her attacker. Decided on June 18, 2009.

JUDICIAL ETHICS

The Supreme Court ruled that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias. By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair hearing. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000. Decided June 8, 2009.

IRAQ IMMUNITY

The Supreme Court ruled that the current government in Iraq cannot be held responsible for the actions of Saddam Hussein’s regime. The high court unanimously turned away lawsuits from Americans who were held in Iraq during the Gulf War. The court said a federal law enacted in 2003 gave Iraq back the immunity that was stripped by the designation of Saddam’s government as a sponsor of terrorism. Decided on June 8, 2009.

LAWYER REQUEST

The Supreme Court overturned a long-standing ruling that stopped police from initiating questions unless a defendant’s lawyer was present, a move that will make it easier for prosecutors to interrogate suspects. The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. The court’s opinion said the decision will have “minimal” effects on criminal defendants because of the protections the court has provided in other decisions. Decided on May 26, 2009.

QUALIFIED IMMUNITY

The Supreme Court ruled 5-4 that FBI Director Robert Mueller and former Attorney General John Ashcroft cannot be sued by a former Sept. 11 detainee who claimed he was abused because of his religion and ethnicity. This decision could make it harder to sue top officials for the actions of low-level operatives. The court overturned a lower court decision that let Javaid Iqbal’s lawsuit against the high-ranking officials proceed. Iqbal is a Pakistani Muslim who spent nearly six months in solitary confinement in New York in 2002. He had argued that Ashcroft and Mueller were responsible for a policy of confining detainees in highly restrictive conditions because of their religious beliefs or race. Decided May 18, 2009.

MATERNITY LEAVE

The Supreme Court ruled that women who took maternity leave before it became illegal to discriminate against pregnant women can’t sue to force employers to count their leave time for their pensions. Four AT&T Corp. employees who took maternity leave between 1968 and 1976 sued the company to get their leave time credited toward their pensions. Their pregnancies occurred before the 1979 Pregnancy Discrimination Act, which barred companies from treating pregnancy leaves differently from other disability leaves. The high court, in a 7-2 ruling, overturned a lower-court decision that said that decades-old maternity leaves should count in determining pensions. Decided on May 18, 2009.

IDENTITY THEFT

A unanimous Supreme Court said that undocumented workers who use phony IDs can’t be considered identity thieves without proof they knew they were stealing real people’s Social Security and other numbers. The court’s decision limits federal authorities’ use of a 2004 identity theft law against immigrants who are picked up in workplace raids and found to be using false Social Security and alien registration numbers. Advocates for immigrants had complained authorities used the threat of prosecution on the identity theft charge to win guilty pleas on lesser charges and acceptance of prompt deportation. Decided May 4, 2009.

SUPERFUND

The Supreme Court said Shell Oil Co. cannot be held responsible for cleanup of a contaminated Superfund site owned by a defunct company simply because it delivered chemicals to the site. The court, in an 8-1 decision, also decided that railroad companies that leased the defunct company part of the land would only have to pay for a small part of the cleanup. Decided on May 4, 2009.

BROADCAST INDECENCY

The Supreme Court ruled narrowly in favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television. The court, however, stopped short of deciding whether the policy violates the Constitution. By a 5-4 vote, the court threw out a lower court ruling that said the agency could not now start levying large fines for the type of fleeting expletives that it had let slide for years. This was the Supreme Court’s first major broadcast indecency case in 30 years. Decided April 28, 2009.

WARRANTLESS SEARCH

The Supreme Court ruled that police need a warrant to search the vehicle of someone they have arrested if the person is locked up in a patrol cruiser and poses no safety threat to officers. The court’s 5-4 decision puts new limits on the ability of police to search a vehicle immediately after the arrest of a suspect, particularly when the alleged offense is nothing more serious than a traffic violation. The court said warrantless searches still may be conducted if a car’s passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence will be found of the crime that led to the arrest. Decided on April 21, 2009.

POWER PLANTS

The Supreme Court ruled that the government can weigh costs against benefits in deciding whether to order power plants to undertake environmental upgrades that would protect fish. The court’s 6-3 decision is a defeat for environmentalists who had urged the justices to uphold a favorable federal appeals court ruling that could have required an estimated 554 power plants to install technology that relies on recycled water to cool machinery. Decided on April 1, 2009.

TOBACCO PUNITIVE DAMAGES

The Supreme Court left in place a $79.5 million award to a smoker’s widow, ending a 10-year legal fight over the large payout. The court let stand a ruling by the Oregon Supreme Court in favor of Mayola Williams and against Altria Group Inc.’s Philip Morris USA. Williams persuaded a jury in 1999 that the company should be held accountable for misleading people into thinking cigarettes were not dangerous or addictive. The justices initially agreed to review the Oregon court judgment, then changed their minds without explanation. Announced March 31, 2009.

VOTING RIGHTS

The Supreme Court ruled 5-4 that electoral districts must have a majority of African-Americans or other minorities to be protected by a provision of the Voting Rights Act. The court declined to expand protections of the landmark civil rights law to take in electoral districts where the minority population is less than 50 percent, but strong enough to effectively determine the outcome of elections. The decision could make it more difficult for Democrats, particularly in the South and Southwest, to draw electoral boundaries friendly to black or Hispanic candidates following the 2010 Census. Decided on March 9, 2009.

DRUG MAKER LIABILITY

In a 6-3 decision, the Supreme Court forcefully rejected calls for limiting consumer lawsuits against drug makers, upholding a $6.7 million jury award to a musician who lost her arm to gangrene following an injection. The right arm of Diana Levine of Vermont was amputated after she was injected with Phenergan, an anti-nausea medicine made by Wyeth Pharmaceuticals. Levine’s lawsuit said she wasn’t sufficiently warned of the risks of using Phenergan. The justices turned away Wyeth’s claim that federal regulation provides a shield against lawsuits like Levine’s. Decided March 4, 2009.

RELIGIOUS MONUMENTS

The Supreme Court ruled unanimously that the Summum, a small religious group, cannot force a city in Utah to place a granite marker in a local park that already is home to a Ten Commandments display. The court said that governments can decide what to display in a public park without running afoul of the First Amendment. The Summum believe that when Moses received the Ten Commandments on Mount Sinai he received a second set of tablets called the Seven Aphorisms. Decided Feb. 25, 2009.

DOMESTIC VIOLENCE FIREARMS

The Supreme Court affirmed the use of a federal law barring people convicted of domestic violence crimes from owning guns. The court, in a 7-2 decision, said state laws against battery need not specifically mention domestic violence to fall under the domestic violence gun ban that was enacted in 1996. The case involved Randy Edwards Hayes, a West Virginia man whose earlier misdemeanor conviction for beating his wife gave rise to a federal felony indictment for gun possession. Decided on Feb. 24, 2009.

RETALIATION

A unanimous Supreme Court ruled that workers who cooperate with their employers’ internal investigations of discrimination may not be fired in retaliation for implicating colleagues or superiors.The justices held that a longtime school system employee in Tennessee can pursue a civil rights lawsuit over her firing. The court voted to reverse a federal appeals court ruling that the anti-retaliation provision of Title VII of the 1964 Civil Rights Act does not apply to employees who merely cooperate with an internal probe rather than complain on their own or take part in a formal investigation. Decided Jan. 26, 2009.

EVIDENCE

The Supreme Court ruled that evidence obtained after illegal searches or arrests based on simple police mistakes may be used to prosecute criminal defendants. The justices voted 5-4 to apply new limits to a rule requiring evidence to be suppressed if it results from a violation of a suspect’s Fourth Amendment rights against unreasonable searches or seizure. Justices acknowledged that the arrest of Bennie Dean Herring — based on the mistaken belief that there was a warrant for his arrest — violated his constitutional rights, yet upheld his conviction on federal drug and gun charges. Decided on Jan. 14, 2009.

CIGARETTE ADVERTISING

The Supreme Court handed a defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of “light” cigarettes. In a 5-4 split won by the court’s liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote light and “low tar” brands. The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power. Decided on Dec. 15, 2008.

NAVY SONAR USAGE

The Supreme Court ruled 6-3 that military training trumps protecting whales in a dispute over the Navy’s use of sonar in submarine-hunting exercises off the coast of southern California. The court said forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet. The most serious possible injury to environmental groups would be harm to an unknown number of the marine mammals the groups study, justices said. Decided Nov. 12, 2008.

Copyright 2009 The Associated Press.

With a high speed chase, you might only hear those police sirens for a few seconds before the cars come whizzing by you on the street.  Sometimes, maybe not even long even to property move over to the curb – or at least get partially out of the way!  Too often, however, those high speed police chases cause accidents and injure the innocent drivers on the road.   The courts were then faced with having to decide whether, or to what extent, a police officer could be liable to an injured driver for causing an accident as a result of a high speed chase.  I mean, if regular drivers who speed through the streets and intersections cause and accident, they’re liable to those they’ve injured.  Why shouldn’t the police be liable for causing the same accident?

Well, it’s not that simple I guess.  They’re in the “line of duty,” driving “authorized emergency vehicles,” and pursuing criminals.  State laws even provide for a limitation of liability.  For example, California Vehicle Code Section 17004 states the following:

“A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.”

By enacting these kinds of liability-limiting laws for police and other emergency vehicles, “we the people” have decided that the interests of justice are served by granting the police “immunity” from prosecution for injuries that may occur during pursuing fleeing suspects.  Many of those suspects who flee have just committed serious crimes – car jacking, murder, robbery… but sometimes police conduct high speed pursuits over less serious offenses.  If the police were prohibited from speeding to chase after them…. the suspects would simply just get away.

But the line has to be drawn somewhere.   Some might argue that all high speed chases endanger the innocent other drivers on the road – that the police act in “reckless disregard” for the safety of the public on the roadway when they conduct a high speed chase.  Even further, sometimes the way in which a high speed police car pursuit is conducted actually “shocks the conscience” of the community.  For instance, would a high speed chase in excess of 100 mph along neighborhood streets in front of an elementary school be okay in pursuit of a minor traffic offender? If a 6-year old girl was killed by the police car while she crossed the street to go home… well, we might then look at that high speed chase and determine that it not only was in “reckless disregard for public safety,” but that it does in fact “shock the conscience.”

The courts have struggled over the years with what should be the standard for determining if a high speed chase was dangerous enough to hold law enforcement liable for violating our constitutional due process rights in connection with injuries sustained from such high speed chase.   Should it be a police pursuit that is simply “reckless”… or should it be only if a high speed chase is so reckless that there is a “conscious, knowing disregard for human life and safety”… or should it be the even higher standard of only when a high speed pursuit under the circumstances actually downright “shocks our conscience.”   Conduct that “shocks the conscience” is conduct that is “deliberately intended to injure in some way unjustifiable by any government interest.”  The “shock the conscience” standard is currently in use by the courts.  

The issue is incredibly important from a policy perspective because if the standard for constitutional liability is very high, then law enforcement will rarely be found liable.  If the standard is lower, more liability will be found, which will result in fewer apprehensions of criminals.

If you’re interested, you can read some of the court cases on this topic below: 

U.S. Supreme Court – COUNTY OF SACRAMENTO, ET AL., PETITIONERS v. TERI LEWIS AND THOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED, May 26, 1998.

9th Circuit Court of Appeals – Noni ONOSSIAN; Cyril Onossian; Herve Onossian, Plaintiffs-Appellants, v. Sherman BLOCK; Michael Antonovich; Deane Dana; Ed
Edelman; Kenneth Hahn; Gloria Molina; County of Los Angeles; Daniel Finn; Larry Yates; Bruce Thomas, & One Hundred Unknown Named Employees & or Officials of County of Los Angeles, Defendants-Appellees, May 26, 1999.

Once you have children, you should put guardianship forms in place in the event something should happen to you as a parent.  Through the appropriate legal forms, you can make your wishes known to the court regarding the custody and care of your children.  Typically, a court prefers to abide by the wishes of the parent, as long as there are no concerns about such potential guardian’s ability to care for the child in accordance with the child’s best interest.  However, guardianship over a minor child can get a bit tricky when one of the parents is somewhat estranged, has given up their custody rights, or there is some other dispute regarding guardianship.  As we’ve all seen in the news, there may be some tricky legal issues involved in the guardianship of Michael Jackson’s children. 

A guardian is person appointed by a court to provide care for a minor child.  In addition to custody over the child, the guardian may or may not be given legal authority to manage the finances and/or assets legally belonging to the child.  Typically, relatives or friends are appointed as a child’s legal guardian when the parent is unable to care for the child any longer.  However, other interested persons may also petition the court for guardianship.

Once a petition for guardianship is filed with the court, an investigation is typically conducted before the court makes its decision.  Many people may be interviewed throughout the process, including the person petitioning for guardianship, the child (or children), and any other person the court determines should be contacted about the case.  The investigator submits a report of his or her investigation to the court and makes a recommendation about what should occur.  Sometimes, the case will even go to a court trial, particularly if there are several interested parties vying for the guardianship.  In all cases, the court must determine that there are sufficient grounds, or proof, that a particular guardianship is in the best interests of the child. 

Guardians are granted legal and physical custody of the child, including the right to make decisions about the child’s education, religion and medical care.  However, guardians’ authority over any financial estate of the child is typically restricted.  For instance, a guardian may be required to obtain a court order to spend estate funds.  Also, guardians are typically not allowed to pay themselves a fee, make any gifts of the estate to others, or borrow money from the child’s estate.  Finally, since guardians of a child’s estate are required to manage the child’s funds in a responsible matter (including keeping records and financial accountings), an attorney is often used by the guardian to help manage the estate. 

For more information about guardianship of a minor child, visit LawInfo’s Free Legal Resource Center.   For assistance with a guardianship, contact an attorney in your area.  You can find a guardianship attorney by clicking here.

According to the U.S. Occupational Safety and Health Administration an estimated 1.3 million workers face significant asbestos exposure on the job. Asbestos is commonly used as an acoustic insulator, and in thermal insulation, fire proofing and other building materials. Many products in use today contain asbestos.  The inhalation of asbestos fibers by workers can cause serious diseases of the lungs and other organs that may not appear until years after the exposure has occurred.  Workers in the construction, railroad, ship-building, manufacturing of asbestos related products, automotive brake/clutch repair, custodial workers in affected buildings, and workers in other industries are exposed to the highest risks of asbestos and other lung-related diseases on the job.

You might not think that a lawsuit over lung related diseases of railroad workers is big news today, but you’d be surprised.  In fact, the U.S. Supreme Court just reviewed such a case.  I am referring to the case of Thurston Hensley, a retired electrician who sued the railroad company he worked for, CSX Transportation, Inc., alleging that the railroad negligently caused him to contract asbestosis—a noncancerous scarring of lung tissue caused by long-term exposure to asbestos.  Hensley sought damages his lung injuries, as well as for pain-and-suffering, based in part on his fear of developing lung cancer in the future.  After reviewing the case, the jury found in Hensley’s favor and awarded him $5 million in damages. 

Under regular workers compensation systems, workers obtain medical care for injuries sustained on the job without having to go to court…. though the trade-off is that they can’t generally sue for damages like pain and suffering.  Unlike in employees covered by state workers compensation systems, railroad industry workers are covered by the Federal Employers’ Liability Act (FELA), which allows them to sue their employers in court and recover potentially substantial damages for their work-related injuries caused in whole or in part by their railroad employers. 

Does a $5 million jury award sound high to you?  The courts sure think it’s possible that jury awards can get out of control…  and idea of “verdict control devices” is even being carefully discussed within the legal community.  For instance, in the Hensley case, at issue before the Supreme Court was whether the jury was property instructed about awarding “fear of cancer” damages.  This was considered a “verdict control device” because, as the court mentioned, “…..a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer…” In fact, the court held that in some cases, “…a properly instructed jury could find that a plaintiff’s fear [of cancer] is not “genuine and serious.” 

Whether Hensley’s fear of cancer is “genuine and serious” enough for the $5 verdict to stand, we’ll have to wait and see.  If you had a serious lung injury after numerous years of exposure to asbestos related materials as a railroad worker, wouldn’t you be seriously and genuinely worried about developing lung cancer? 

If you or someone you love may have been exposed to asbestos or have experienced symptoms of a lung disease after working in one of the exposed industries, contact an attorney for more information about how best to protect your legal rights.

Read the Supreme Court’s decision in the Hensley case by clicking here.  Find an attorney experienced in railroad accidents and injuries by clicking here.

The fight for marriage equality will rage on another day. On Tuesday, May 26th, California’s Supreme Court ruled to uphold the state’s gay-marriage ban, also known as Proposition 8. The 6-1 decision by Chief Justice Ron George rejected an argument from activists that Proposition 8 revised the California constitution’s equal protection clause.

Although the Court also ruled that the 18,000 same-sex weddings that took place before the prohibition passed are still valid and it would be too disruptive to apply Prop 8 retroactively, activists said they would go back to the voting public as soon as possible to repeal the ban.

The California Supreme Court ruled 4-3 last May that it was unconstitutional to deny gay couples the right to wed. Since that time, same-sex couples from around the country came to California to wed before this ruling made its way to the voters during the 2008 election. Consequently, Proposition 8 did pass with a 52% approval. As the fight raged on in California, Iowa, Maine, Vermont and Connecticut legalized gay marriage.

Although the court ruled that the ban denies gay couples use of the term “marriage,” California still allows gay couples to form domestic partnerships and does not “disturb the basic right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within the family.”

So what are your thoughts? Was justice upheld today based upon the voice of the voters, or was the decree of our Constitution challenged today and overruled? No matter what side of the fence you stand on this issue, there is a long fight ahead that will impact our country and that of generations to come.

I love eBay…  just love it.  The whole idea of it, the convenience, the opportunities, the company itself… not to mention the bargains!  What you may not realize, however, is that consumer product safety laws and regulations apply to anyone who sells or distributes consumer products.  The laws cover not only products resold at thrift stores, consignment stores, and charities, but also products sold by individuals holding yard sales, through online ads like those on Craigslist, and through online auctions like eBay.  

While you aren’t required to go so far as to test your products for safety, you can’t knowingly sell products that do not meet the requirements of the law.  AND … ignorance of the law is not an excuse! 

The U.S. Consumer Product Safety Commission (CPSC) published a handbook for resellers of used products to help them comply with the law… and help keep unsafe products out of the hands of consumers.

Among the kinds of products you CAN’T resell are the following:

•  Products that have been recalled by CPSC.

•  Toys and other articles intended for use by children, and any furniture, with paint or other surface coatings containing lead over specified amounts.

•  Products primarily intended for children age 12 or younger with lead content over a specific amount.

•  Certain toys or child care articles that contain any one of six prohibited chemicals known as phthalates, which are primarily used as plasticizers.

•  Other products that violate CPSC’s safety standards, bans, rules or regulations or otherwise present a substantial product hazard.

If you end up violating the consumer product safety laws, then you could be subject to a number of penalties!   CPSC may respond in a variety of ways, however, depending upon the circumstances, including the nature of the product defect, the number of products, the severity of the risk of injury associated with the product and the type of violation.

By all means… don’t freak out and stop selling your items on eBay!  Just pay attention to what’s in the news about dangerous or unsafe products (who hasn’t heard about the lead paint issues with kids’ toys), use your common sense, and it doesn’t hurt to periodically check out the recalled products lists.   You might be surprised to learn that CPSC recalls several hundred types of consumer products every year.  Before taking selling a product, especially children’s toys, cribs, and other kid stuff, check the CPSC Web site for dangerous recalled products.  You can search by product type, company name, product description, hazard, country of manufacture and by the month and year in which the recall took place.  Check out recalls at www.recalls.gov and other information at www.cpsc.gov.   View the CPSC Handbook by clicking here.

Remember, if you have concerns about an unsafe product or have been injured by one, contact an attorney in your area today so you can best protect your legal rights.