Back in March, we commented on how a juror sent a facebook “friend request ” to a witness during a Bronx homicide trial, thereby potentially compromising the verdict. (The verdict was overturned, but for unrelated reasons.) http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=539. Not surprisingly, a recent study shows that judges are now getting in on the action, regularly accessing facebook and other social networking sites.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202471398982&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20100901NLJ&kw=Are%20judges%20using%20Facebook%3F.

According to a survey recently conducted by the Conference of Court Public Information Officers, most judges who use such sites do so only for personal reasons (i.e., family pictures, etc…) , as opposed to professional ones. In addition, the survey found that judges are being “mindful of the canons” involved is such sites, such as friend requests from attorneys and even witnesses or jurors. Along those lines, several state judicial ethical committees prohibit judges from “friending” on Facebook the lawyers who appear before them.

Given the technological age in which we live, judges will need to at least gain a working understanding of these sites in order to rule effectively. That said, being “mindful of the canons” is a sound practice, especially given the unregulated nature of these sites. Social networking is not without risks, as even a seemingly innocent “friend request” can generate the appearance of impropriety. This rationale definitely applies to some professions (educators come to mind) more than others.

Thanks to Brian Gibbons for his contribution to this post.

In Abrams v. Berelson, venued in Supreme Court, Richmond County, the court granted the plaintiff’s motion to renew and set aside an order granting the defendant summary judgment that was granted 10 years earlier.

The case stemmed from an accidental shooting that occurred in the home owned by the defendant on November 3, 1997. The plaintiff and a co-worker, Michael Torres, were hired to clean carpets and perform generally cleaning out of the home following the death of the defendant’s mother. During the course of the cleaning, Torres found a gun in a bedroom and accidentally shot his co-worker, the plaintiff.

In a 2000 decision, the court granted the defendant’s summary judgment motion holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. Specifically, the plaintiff could offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. In granting the motion, the court stated that the only person who could testify as to the location of the rifle was Torres and at that time, he had given no testimony and could not be located by either party.

The plaintiffs, after a diligent search, located Mr. Torres and submitted an affidavit from him in which he admitted that he had made himself hard to find after the police determined the shooting was an accident. He stated the he lived with family members over the years and instructed them to advise others, especially the plaintiff’s family, that they did not know how to contact him.

Based on this affidavit, Torres’ willingness to appear for a non-party deposition and the discovery that the police had not destroyed the rifle in question, the court set aside the summary judgment order and ordered an expedited discovery schedule.

Thanks to Maju Varghese for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51515.htm

In the midst of all the chaos generated by the CMS reforms, one central issue has remained constant – if a settlement results, how much money can the State get back?
In the case of Angelique McKinney, et al. v. Philadelphia Housing Authority, et al., a federal judge in the Eastern District of Pennsylvania ruled on this very issue. In McKinney, a persistent mold in public housing case, the plaintiffs reached a nearly $12,000,000 settlement with the Philadelphia Housing Authority. (As a side-note, the plaintiffs were able to get around the sovereign immunity issues usually present with the PHA by arguing that the case arose out of a “state-created danger.”) Once the settlement was reached, the Pennsylvania Department of Public Welfare claimed that they were entitled to recover the full $1,200,000 value of the medical lien.

Federal Judge Schiller rejected that argument — https://ecf.paed.uscourts.gov/doc1/15318311551. He reduced the gross award to 2/3, i.e. to $843,930.77. He then further reduced the award by 1/3 for attorneys fees and for costs. The net lien recovery for the PHA was $537,448.43. In deciding on this award, the Court stressed that the $12,000,000 settlement reflected a compromise of a disputed claim that potentially had jury value in excess of $46,000,000. The Court wrote: “This Court holds that the method of determining this figure is neither Plaintiffs’ proffered “ratio theory” nor DPW’s proposed “full lien or half the settlement” presumption. Instead, the Court has considered the risks and uncertainties Plaintiffs faced in prevailing on their underlying claim and their probability of recovering past medical expenses in particular.”

If you have any questions about this post, please contact Bob Cosgrove at .

It is black letter law that a property owner has a duty to keep the premises safe, including removing snow/ice/water inside the premises that creates a dangerous condition. However, under New York Law this duty is suspended while the storm is in progress, and for a “reasonable” time after the storm ended.

This rule was affirmed in Assaf v. City of New York (110286/08) wherein the Supreme Court, New York County granted summary judgment to the defendants dismissing a complaint brought by a pedestrian who was injured due to a wet floor in the lobby of a building. Plaintiff argued that an accumulation of snow, tracked in by others, created a hazardous condition, and that no mats were placed on the floor, despite a practice of placing mats during inclement weather. There was no dispute that the storm was in progress when plaintiff fell.

The court rejected plaintiff’s arguments, holding that no liability can attach to the property owner while the storm is in progress. This includes failure to adhere to the practice of placing mats during inclement weather.

if you have any questions regarding this post, please contact David Tavella at .

http://pdf.wcmlaw.com/pdf/Assaf.pdf