Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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Ex parte Henry W. Bradshaw.

Court: Supreme Court of Alabama

Docket: 1190765

Opinion Date: December 4, 2020

Judge: Shaw

Areas of Law: Civil Procedure, Personal Injury

Henry Bradshaw, a defendant in a personal–injury action, petitioned for mandamus relief to direct the circuit court to vacate its order denying his motion to dismiss the claims of plaintiff, Princeton Gregory, and to enter an order dismissing Gregory's claims against Bradshaw for lack of personal jurisdiction. The parties were involved in a car accident in Mississippi. Gregory was a resident of Mobile, Alabama; Bradshaw was a resident of Florida. Bradshaw entered a limited appearance in the negligence action brought against him for the purpose of asking the court to dismiss the claims. Bradshaw argued that Gregory's complaint failed to allege that Bradshaw's contacts with Alabama were sufficient to support personal jurisdiction over him. Relying on Bradshaw's deposition testimony, Gregory filed a further response in opposition to Bradshaw's amended motion to dismiss in which he argued that Bradshaw's connection to and activities in Alabama, as described above, were sufficient to suggest that Bradshaw should have anticipated that he might be sued in Alabama or, at the very least, created a jury question on the issue of general personal jurisdiction. The trial court apparently agreed and, following a hearing, denied Bradshaw's motion to dismiss. After review of the facts entered in the circuit court record, the Alabama Supreme Court disagreed with the circuit court's conclusion, finding Bradshaw demonstrated a clear lack of general personal jurisdiction over him in connection with Gregory's claims. The Court thus granted Bradshaw's petition for mandamus relief.

Szarowicz v. Birenbaum

Court: California Courts of Appeal

Docket: A156312(First Appellate District)

Opinion Date: December 4, 2020

Judge: Richman

Areas of Law: Entertainment & Sports Law, Personal Injury

Szarowicz and Birenbaum played on opposing recreational ice hockey teams in a no-check league. When the puck was hit laterally toward the players’ bench. Szarowicz followed the puck; Birenbaum, who was defending the goal, took several strides parallel to the side of the rink along the players’ bench. The puck ricocheted off the board. Szarowicz intended to slap toward the goal so that his offensive teammate could shoot. Birenbaum collided with him, propelling him into the air, causing him to fall to the ice. Szarowicz was briefly knocked unconscious. He left the ice with assistance and was taken to the hospital. He suffered extensive injuries, including six broken ribs, a dislocated shoulder with three fractured bones, a torn rotator cuff, a fractured sternum, a fractured scapula, and a collapsed lung. Szarowicz sued Birenbaum for negligence and intentional tort. The trial court granted Birenbaum summary judgment, concluding checking is an inherent risk of the game and the assumption of risk doctrine barred Szarowicz from recovering damages. The court of appeal reversed. Summary judgment was inappropriate; a triable issue of material fact exists as to whether Birenbaum breached a limited duty of care owed to Szarowicz not to increase the risks to him beyond those inherent in the game. Szarowicz also raised triable issues of material fact as to his intentional tort claim and his prayer for punitive damages.

Richards v. Wilson

Court: Supreme Court of Mississippi

Citation: 2019-CA-00752-SCT

Opinion Date: December 3, 2020

Judge: Michael K. Randolph

Areas of Law: Civil Procedure, Insurance Law, Personal Injury

The jury in this case was presented with two options: find the tractor driver 100 percent liable for the motorcycle riders’ injuries or not liable at all. Neither party requested a comparative-negligence instruction. And none was given. The jury found the tractor driver liable, but only awarded the motorcycle riders a fraction of their uncontested damages. Both parties filed posttrial motions: the motorcycle riders sought more damages; the tractor driver requested a new trial. The trial court granted a new trial, agreeing with the tractor driver that the jury had rendered a “compromise verdict.” At the second trial, the jury found in favor of the tractor driver. The motorcycle riders appealed, arguing the trial court erred by granting a new trial following the first verdict. The Mississippi Supreme Court determined the trial court did not abuse its discretion: the record supported the trial judge’s finding the jury had reached a compromise verdict in the first trial. Therefore, the Court affirmed the trial court's judgment.

Rollins v. Hinds County Sheriff's Department et al.

Court: Supreme Court of Mississippi

Citation: 2018-CT-01614-SCT

Opinion Date: December 10, 2020

Judge: Griffis

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

Quality Choice Correctional Healthcare entered a contract with Hinds County, Mississippi to provide comprehensive medical care to inmates. Delorise Rollins was hired by Quality Choice as a nurse at the Hinds County Detention Center in Raymond and was injured in the course of her duties. At that time, Quality Choice did not carry workers’ compensation coverage. As a result, Rollins filed a petition to controvert with the Mississippi Workers’ Compensation Commission. The Commission found that the Hinds County Sheriff’s Department (HCSD) was not Rollins’s statutory employer and denied workers’ compensation benefits. Rollins then appealed, and the Court of Appeals affirmed the Commission’s decision. The Mississippi Supreme Court granted Rollins’s petition for writ of certiorari, and found that because the HCSD was not Rollins' statutory employer, workers’ compensation benefits were not available. The Court therefore affirmed decisions of the Court of Appeals and the Commission.

Evans v. Akron General Medical Center

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5535

Opinion Date: December 8, 2020

Judge: Donnelly

Areas of Law: Personal Injury

The Supreme Court answered questions certified by the court of appeals in the negative and affirmed the judgment of the court of appeals reversing the trial court's grant of summary judgment to Akron General Medical Center (AGMC) on the issue of whether AGMC was liable for a cause of action for negligent hiring, retention, or supervision, holding that the grant of summary judgment was inappropriate. Malieka Evans filed a complaint alleging that she had been sexually abused and assaulted by Dr. Amir Shahideh, one of AGMC's employees, while seeking treatment at AGMC. The trial court granted summary judgment for AGMC based on Evans's failure to have filed a cause of action against Dr. Shahideh and her inability to establish the doctor's civil liability or criminal guilt. The court of appeals reversed and certified to the Supreme Court two questions of law. The Supreme Court held (1) a plaintiff need not show that an employee has been adjudicated civilly liable or has been found guilty of a crime in order for the plaintiff to maintain a negligent hiring, retention, or supervision claim against an employer; (2) the statute of limitations for such a claim is not affected by the statute of limitations governing the underlying legally wrongful conduct of the employee; and (3) summary judgment was improper.

Bourgeois v. Snow Time Inc., et al.

Court: Supreme Court of Pennsylvania

Docket: 50 MAP 2019

Opinion Date: December 9, 2020

Judge: Mundy

Areas of Law: Civil Procedure, Personal Injury

In 2013, Ray Bourgeois hyperextended his spinal cord, resulting in quadraplegia, at Roundtop Mountain Resort when the snow tube he was riding collided with a folded “deceleration mat” that the resort’s employees had placed at the bottom of the snow tubing hill to slow down snow tubing patrons and prevent them from traveling beyond the run-out area. Mr. and Mrs. Bourgeois purchased a snow tubing season pass. The reverse side of the season pass contained a release agreement, which provided that snow tubing involves “inherent and other risks that could lead to serious injury or death.” The release provided that the signatory both assumed all the risks of snow tubing and released Ski Roundtop from liability. The Bourgeoises made 16 to 20 runs down the tubing hill without incident. On February 17, 2013, after completing several runs, Mr. Bourgeois rode his snow tube in a prone position, head-first down the hill. At the end of the run, Mr. Bourgeois’s tube went over a flat deceleration mat, which did not slow him down. He then collided with a second, folded mat, which caused the tube to stop abruptly. With this sudden stop of the tube, Mr. Bourgeois’s momentum propelled him, while still holding on to the tube’s handles to avoid falling off the tube, forward head first over the front of the tube and face down into the snow. With his head stuck in the snow, the momentum of his body carried him forward, which hyperextended his neck causing quadriplegia. As a direct result of Mr. Bourgeois’s accident, Ski Roundtop performed an investigation and decided to stop using mats to assist snow tubers with deceleration. Instead, the resort decided to increase the amount of snow-making equipment near the run-out area so it could create a reverse incline to slow down riders. The Pennsylvania Supreme Court concluded the Superior Court erred in failing to consider the evidence, specifically the expert reports, in the light most favorable to the Bourgeoises. Accordingly, judgment was reversed and the matter remanded for further proceedings.

Paroskie v. Rhault

Court: Rhode Island Supreme Court

Docket: 19-50

Opinion Date: December 8, 2020

Judge: Francis X. Flaherty

Areas of Law: Contracts, Personal Injury

The Supreme Court affirmed the judgment of the superior court against Plaintiff and in favor of Defendant with respect to claims for fraud, negligent misrepresentation, and unjust enrichment, holding that Plaintiff's appeal was not properly before the Court. Plaintiff's underlying claims seemed from a relationship between Plaintiff and Defendant. Plaintiff asserted that he and Defendant had committed to each other to be in a long-term relationship but that Defendant decided to end that relationship. Plaintiff argued that, but for Defendant's representation that they would remain together, Plaintiff would not have devoted his time, energy, and expertise to Defendant. The superior court granted summary judgment for Defendant on all counts. The Supreme Court affirmed, holding that Plaintiff's appeal was untimely.

Wickersham v. Ford Motor Company

Court: South Carolina Supreme Court

Docket: 28003

Opinion Date: December 9, 2020

Judge: Few

Areas of Law: Consumer Law, Personal Injury, Products Liability

The United States Court of Appeals for the Fourth Circuit certified a question of law to the South Carolina Supreme Court. John Harley Wickersham Jr. was seriously injured in an automobile accident. After months of severe pain from the injuries he received in the accident, he committed suicide. His widow filed lawsuits for wrongful death, survival, and loss of consortium against Ford Motor Company in state circuit court. She alleged that defects in the airbag system in Mr. Wickersham's Ford Escape enhanced his injuries, increasing the severity of his pain, which in turn proximately caused his suicide. She included causes of action for negligence, strict liability, and breach of warranty. Ford removed the cases to the United States District Court for the District of South Carolina. Ford then filed a motion for summary judgment in the wrongful death suit, arguing Mrs. Wickersham has no wrongful death claim under South Carolina law because Mr. Wickersham's suicide was an intervening act that could not be proximately caused by a defective airbag. The district court denied Ford's motion. 194 F. Supp. 3d at 448. The court ruled Mrs. Wickersham could prevail on the wrongful death claim if she proved the enhanced injuries Mr. Wickersham sustained in the accident as a result of the defective airbag caused severe pain that led to an "uncontrollable impulse" to commit suicide. Ford renewed the motion during and after trial, but the district court denied both motions. A jury ultimately returned a verdict in favor of Mrs. Wickersham on all claims. Ford appealed, and the Fourth Circuit asked: (1) whether South Carolina recognized an "uncontrollable impulse" exception to the general rule that suicide breaks the causal chain for wrongful death claims; and (2) did comparative negligence in causing enhanced injuries apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff's enhanced injuries? The Supreme Court responded that (1) South Carolina did not recognize a general rule that suicide was an intervening act which breaks the chain of causation and categorically precludes recovery in wrongful death actions. "Rather, our courts have applied traditional principles of proximate cause to individual factual situations when considering whether a personal representative has a valid claim for wrongful death from suicide." With respect to the federal court's second question, the Supreme Court held a plaintiff's actions that do not cause an accident but are nevertheless a contributing cause to the enhancement of his injuries, are not necessarily a legally remote cause. "Mr. Wickersham's non-tortious actions that were not misuse are not relevant to Ford's liability for enhancement of his injuries in terms of the defense of comparative negligence or fault."

Luze v. New FB Co.

Court: South Dakota Supreme Court

Citation: 2020 S.D. 70

Opinion Date: December 9, 2020

Judge: Devaney

Areas of Law: Insurance Law, Labor & Employment Law, Personal Injury

In this insurance dispute arising from an employee's death, the Supreme Court remanded the determination that the employer's insurer providing underinsured motorist coverage and workers' compensation insurance was entitled to a lien on a portion of settlement proceeds received by the estate, holding that, given a lack of factual findings, there was no way to evaluate whether the court clearly erred in its assessment of the various factors impacting an equitable allocation. Charles Luze died in a work-related accident. His employer paid his wife, Jeanette Luze, workers' compensation benefits. Jeanette, as the representative of Charles's estate, then brought suit against the negligent driver and settled the claim. The estate also settled a claim against the New FB's insurer providing underinsured motorist coverage, Zurich American Insurance Company, which was also New FB's workers' compensation carrier. The circuit court determined that Zurich was entitled to a statutory workers' compensation lien on fifty percent of the settlement proceeds received by the estate and was able to subrogate against its own settlement payment of underinsured benefits. The Supreme Court remanded in part, holding (1) this Court was unable meaningfully to review the circuit court's allocation determination; and (2) the circuit court properly allowed Zurich to subrogate against the amount it paid in underinsured motorist benefits.

McLaughlin v. Travelers Commercial Ins. Co.

Court: Washington Supreme Court

Docket: 97652-0

Opinion Date: December 10, 2020

Judge: Barbara Madsen

Areas of Law: Civil Procedure, Contracts, Insurance Law, Personal Injury

Todd McLaughlin was riding his bicycle on a Seattle street when the door of a parked vehicle opened right into him. McLaughlin fell, suffered injuries, and sought insurance coverage for various losses, including his medical expenses. McLaughlin’s insurance policy covered those expenses if McLaughlin was a “pedestrian” at the time of the accident. McLaughlin argued a bicyclist was a pedestrian, relying on the definition of “pedestrian” found in the Washington laws governing casualty insurance. The trial court held a bicyclist was not a pedestrian, reasoning that the plain meaning of "pedestrian" excluded bicyclists. The Court of Appeals affirmed, relying largely on its view that the Washington statute defined pedestrian for purposes of casualty insurance, excluded bicyclists. The Washington Supreme Court reversed. The Washington legislature defined “pedestrian” for purposes of casualty insurance in Washington broadly in RCW 48.22.005(11). The Supreme Court found that definition included bicyclists and applied to the insurance contract at issue here. "Even if we were to hold otherwise, at the very least, the undefined term 'pedestrian' in the insurance contract at issue must be considered ambiguous in light of the various definitions of 'pedestrian' discussed in this opinion. Being ambiguous, we must construe the insurance term favorably to the insured. Accordingly, we reverse the Court of Appeals and remand for further proceedings."