Thursday, July 28, 2016

School Bullying

The Mississippi Supreme Court decided today Smith v. Leake County School District located here.   In this case, a school needs child was attacked by at least five other girls. Apparently she had been bullied for at least a  year.  The mother sued the school district and the trial court dismissed the case finding that the school district was immune from suit under the Tort Claims Act.  The Mississippi Supreme Court reversed.  The Court found:

"Examining discretionary-function immunity under Section 11-46-9(1)(d) and Brantley, the overarching function involved–holding students to strict account for disorderly conduct and preventing acts of bullying–is ministerial. And while Sections 37-11- 67 and 37-11-69 give Leake Central discretion as to how to prevent bullying, these statutes do not provide discretion as to whether to prevent bullying. Nor do these statutes override the ministerial statutory duty found in Section 37-9-69 to provide a safe school environment. For this reason, we reverse the judgment of the circuit court and remand the case to the circuit court for trial on the merits to determine whether Leake Central used ordinary care under Section 11-46-9(1)(b) of the Mississippi Code."

This case discusses what is needed to prove a bullying claim in order to impose liability on the school district. 

Wednesday, July 27, 2016

CLE Tomorrow

I am lecturing at a CLE in the morning concerning evidence.  A link to the topics and other info is here.  Hope to see you there. 

Tuesday, July 26, 2016

Double Jeopardy and Appeal by the Prosecution

Mississippi Code Annotated section 99-35-103(b) (Rev. 2015) states  that  the State
may  appeal  a  criminal  circuit-court  judgment  that  actually  acquits  the  defendant  where  a
question  of  law  has  been  decided  adversely  to  the  State.  However,  the  appeal  shall  not
subject  the  defendant  to  further  prosecution,  nor  shall  the  acquittal  be  reversed.  Id.  As such, the  State can  appeal  the  trial  court’s  decision;  however,  it  is  clear  from  the  plain
language  of  section  99-35-103  that  it  can  only  do  so  for  the  Court  to  decide  a  question  of  law and the Defendant may not be re-prosecuted. 

Thursday, July 21, 2016

Cumulative Error

Sometimes in a case a bunch of little errors end up leading to big error.  It is kind of like building blocks in a wall.  On appeal this can potentially get a reversal under cumulative error.  Blake v. Clein, 903 So.2d 710, 732 (2005).

Wednesday, July 20, 2016

Change of Venue

The Mississippi Court of Appeals decided Davis v. State yesterday located here.  This case gives a detailed analysis of what is necessary in order to get a change of venue in a criminal case.  The Court of Appeals ultimately found that the trial court erred in denying the change of venue as the State failed to put on any proof to rebut the presumption that a fair trial could not be had based upon the affidavits and such presented. 

Tuesday, July 19, 2016

Prison and Child Support

I have been working on several cases lately that deal with child support and prison.  The main issue my office has been dealing with is what support do you set if any when someone is in prison.  The best solution we have come up with is to treat it similar to a criminal fine with payments to start on the first day of the month sixty (60) days following release.  Normally, a condition of probation is to  support one's dependents also.  Going back to prison can be a good motivator for a payor to remain current. 

Friday, July 15, 2016

Police Suits

There have been a number of police suits in the past few weeks as noted in the news.  One of them is located here.  As most people know, I am kind of a form junkie and tend to collect pleadings.  If you want to know how to plead anything on these type of cases or look at how they can be defended, the complaint in this case and pleadings thereafter filed in the case are a good place to start.  I have litigated an interstate police case in the past and the most interesting part of the case is the conflict of laws issues that arise.  The most obvious area in this type of case is when the situation arises that a state employee of one state loses certain immunities because the law of the other state applies which does not grant them the same privilege.  The same analysis can also apply on damages caps, defenses, etc.

Wednesday, July 13, 2016

HIPPA Violations

There is no private right of action for violation of HIPPA which deals with health care records.  However, this can give rise to certain state law claims.  Found the following quote which is of interest and may be helpful in other contexts. 

“One only needed to consider the treatment of federal violations generally in garden variety state tort law ‘the violation of federal statute and regulations is commonly given negligence per se effect in state tort proceedings.” Restatement (Thread) of Torts (proposed final draft) § 14, comment a) See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts, § 36, p. 221, n. 9 (5th ed. 1984) (“[T]he breach of a federal statute may support a negligence per se claim as a matter of state law” (collecting authority)).

Monday, July 11, 2016

Dog Bites

I have litigated a few dog bite cases before.  Mississippi follows what is known as the dangerous propensity rule.  There must be “some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of” and “it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.” Poy v. Grayson, 273 So.2d 491, 494 (Miss. 1973). The dangerous propensity rule falls between a one bite rule and strict liability.  An injured person does not have to show that the dog or animal has previously bitten, but the animal owner does not incur liability for any and every bite.  The injured person must demonstrate that the animal exhibited some dangerous propensity or disposition of which the owner knew or should have known for liability to attach to the animal owner.

There are actually a lot of moving parts on these type cases.  Local ordinances, the breed of the dog, and notice by the owner of the problems are just a few areas that make this a complex area to practice in.  The best way to prove liability still seems to be the local ordinances.  Most towns now have local ordinances where is the dog gets loose or is not on a leash of a certain length, the owner is in violation of the ordinance which is negligence per se. 

Friday, July 8, 2016

CLE Today

Debbie Bell's family law CLE is in Oxford today.  I am planning on being there today.  It is a great opportunity to network with

Thursday, July 7, 2016

Case of Interest

The 5th Circuit had a recent case of interest dealing with cell phone messages.  The district court required the plaintiff in an FLSA case to submit her phone to a forensic examiner. It then awarded significant sanctions when the defendants' "inspection revealed that the text messages in question were not on [Plaintiff's] phone, that the mobile application allegedly containing such text messages was not on the phone, and that the phone appeared to have been reset or newly activated only three days before the forensic inspection." The Fifth Circuit found no abuse of discretion; footnote 2 of the opinion details several unsuccessful explanations and counterarguments offered by the plaintiff, which had no traction here but could be of interest in a future e-discovery dispute involving similar issues. Timms v. LZM, LLC, No. 15-20700 (July 5, 2016, unpublished).

Monday, July 4, 2016

Chart of Interest

Over the last few months, I have started to expand into criminal law more.  I had been having several requests to take some cases and found that I like the area more than I once did.  One of the more useful charts I have found is the Mississippi Crime and Punishment chart located here

Friday, July 1, 2016

New Laws Effective July 1

Below are several laws that take affect in Mississippi today:

OPEN MEETINGS — Senate Bill 2289 says individual officials could face fines of $500 to $1,000 for improperly closing meetings that should be open to the public. Until now, taxpayers have been footing the bill for the fines. The new law says that starting July 1, a person could be charged $100 per incident for improperly denying someone access to public records. The old law set a $100 fine, but didn’t specify that it’s for each incident.

BUDGET SUNSHINE — Senate Bill 2554 requires the Department of Finance and Administration to post state agencies’ budget information on websites that are open for public viewing. It requires the state College Board and the state Board for Community and Junior Colleges to post their budget information online by July 1, 2012.

NATHAN’S LAW — Senate Bill 2472 requires motorists to stay at least 10 feet from a stopped school bus. Violators could be fined up to $750 for a first offense. On a second offense, violators face a fine and up to a year in prison. The bill — written in response to the death of a Jones County child, Nathan Key — also would prohibit school bus drivers from using cell phones while transporting children, except in cases of emergency.

EMERGENCY OBSTRUCTION — Senate Bill 2426 sets up to six months’ jail time and a fine of up to $1,000 for intentionally blocking another person from receiving emergency assistance.

TIMBER HAULERS — Senate Bill 2192 requires people hauling timber at night to install a flashing or rotating light as close as practical to the end of the load. The light is required when the load extends at least four feet beyond the rear of the vehicle.

ATV SAFETY — Senate Bill 2196 requires anyone driving an all-terrain vehicle on public property to have a driver’s license or to complete a safety course. It also requires a helmet for anyone younger than 16 who’s driving or riding on an ATV on public property. The fine for violating either requirement is $25 to $50.

ABUSE OF THE VULNERABLE — House Bill 562 sets felony penalties for the third offense within five years of abusing a vulnerable person. Punishment would be one to five years in prison and a fine of $2,000 to $5,000.

FETICIDE — House Bill 2615 clarifies the state law related to injury or death of a fetus. Under the new law, a serious but nonfatal physical injury would be a felony. The bill says a minor injury to a fetus would be a misdemeanor. It says the law would not apply to any “legal medical procedure,” including abortions.

MEMORIAL STADIUM-JSU — House Bill 1158 transfers ownership of Mississippi Veterans Memorial Stadium from the state Department of Finance and Administration to Jackson State University.

HOMESCHOOLED STUDENTS — House Bill 636 says homeschooled students who are transferring into public schools may be tested to ensure they’re enrolled at the proper grade level.

Mississippi's statute dealing with religious freedom and same-sex marriage was struck down as unconstitutional at 11:30 last night.