Changes

I have changed the name of my blog to add Personal Injury to the title to change things up a little.  On the legal front the New Jersey appellate courts put out an interesting opinion located here.  The case is Kubert v. Best, 2013 WL 4512313 (N.J. Super. App. Div. August 27, 2013). 

The main issue of the case is whether the sender of a text message is liable if the reader crashes.  The New Jersey Court held that the sender may be liable for the injuries incurred if the sender knew the person was driving and "that the sender also knew or had special reason to know that the driver would read the message while driving and thus would be distracted from attending to the road."  It is important to note that it is illegal to text and drive in New Jersey from my understanding.  This is an interesting area where I see the law developing in the next few years. 

Summary Judgment, Experts, and Admissions

I have previously talked about requests for admissions, expert issues and summary judgment here, here,  and here.  If you want to see how all three interplay, take a look at a case I was reading this morning called Byrd v. Bowie,  933 So.2d 899 (Miss. 2006) located here.   The case sounds like a law school exam question for the most part.  Here is the short version.  Attorneys file medical malpractice case,  Attorneys fail to file expert designation timely.  Summary judgment granted to defendant.  Attorneys get sued by client for legal malpractice.   Attorneys fail to respond to requests for admissions in legal malpractice case and summary judgment is granted on liability to the Plaintiff based on the admissions.  Attorneys legal malpractice provider files for bankruptcy protection.  Interlocutory appeal is filed.  The Mississippi Supreme Court affirmed the trial court decision on all issues.  This is a case that shows where summary judgment goes both ways for the Plaintiff and the Defendant.  I have been using partial summary judgment motions on liability or stipulation of liability for a while with great success.  When the only issue remaining is how big the check is, lots of cases resolve quickly.        

Worker's Compensation Bar

People come to see me most everyday about some kind of tort issue.  Many of them are in Mississippi regarding claims dealing with negligence of their employer.  Most of the time the injuries are exclusively dealt with in the scope of worker's compensation.  It is well established that the Act is the exclusive remedy for an employee injured while acting in the scope and course of his employment.” Hurdle v. Holloway, 848 So.2d 183, 185(¶ 5) (Miss.2003) (citing Miss.Code Ann. § 71–3–9 (Rev.2000)). Our workers' compensation statute states:

“The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action of law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.” Miss. Code Ann. § 71–3–9 (Rev.2011) (emphasis added).

“The exclusivity provision of the Act is not applicable to an employee's claim if: (1) the injury is caused by the willful act of the employer or another employee acting in the course and scope of employment and in the furtherance of the employer's business; and (2) the injury [is] one that is not compensable under the Act.” Hurdle, 848 So.2d at 185(¶ 5) (citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 624(¶ 13) (Miss.2002)). Further, “[i]f the injuries were caused by an intentional tort, the exclusivity provision would not apply.” Id . at n. 4.

As such, I have had a few cases where certain intentional acts by an employer were not covered by worker's compensation allowing the case to move forward.  This is an area that must be plead carefully. 

Business Records

Family Law is extremely document intensive.  When dividing up assets and other items, it is often necessary to get large volumes of documents from banks, loan companies, etc.  Instead of having to call the records custodian for each entity for trial purposes, Rule 901 (11)(A) and (C) provides a cost effective way to get them in.  Simply get a records custodian affidavit, send opposing counsel a complete copy of the records with a records custodian affidavit, and then after fifteen days or so, get a hearing to have the records admitted as the business records exception to the hearsay rule.  Sometimes, items in the records will need to be fitted into an exception to the hearsay rule also.  However, the only time this is normally an issue is with doctor's records.

Foundations

Getting information for any case is not enough.  You have to know how to get it into evidence.  It is better to not have to reinvent the wheel when getting this stuff in.  A good book to assist on these issue is Evidentiary Foundations by Edward J. Imwinkelried.  The book is available through Lexis and Amazon.  It is really good at dealing with issue regarding admission of cutting edge issues like Facebook, text messages, and other electronic media. 

Wayback Machine

Stuff tends to disappear from the internet in litigation.  It always amazes me how a company can advertise a product as the latest, greatest, and safest thing until suit is filed.  Suddenly the website changes.  Regardless you can use the internet Wayback machine which is free and archives the web from 1996 to just a few months ago.  Hope you find the link helpful. 

http://archive.org/web/web.php

Indian Child Welfare Act

The Mississippi Legislature amended Mississippi Code Section 93-17-3 to add a subsection 8 to address issues with the Indian Child Welfare Act.  The statute provides that the Indian Child Welfare Act (ICWA) must be complied with, if applicable. If the ICWA is not applicable, the petition must state that it is not applicable, or an affidavit to that effect must be on file before finalization. MCA 93-17-3(8), a newly added provision.  The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.  As such, in any adoption petition in Mississippi reference must be made to the applicability or non-applicability of the federal statute.