A Constitutional Commitment to Access to Literacy: Bridging the Chasm Between Negative and Positive Rights

EVAN CAMINKER

Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.

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Imamura v. General Electric Co.

Court: US Court of Appeals for the First Circuit

Docket: 19-1457

Opinion Date: April 24, 2020

Judge: Torruella

Areas of Law: Business Law, Civil Procedure, Personal Injury, Real Estate & Property Law

In this class action lawsuit stemming from the 2011 nuclear disaster at the Fukushima Daiichi Nuclear Power Plant (FNPP) in Japan, the First Circuit affirmed the judgment of the United States District Court for the District of Massachusetts dismissing Plaintiffs' suit under the doctrine of forum non conveniens, holding that the district court did not abuse its discretion in finding that an adequate alternative forum was available in Japan. Plaintiffs were individuals and business entities who suffered property damage and/or economic harm as a result of the FNPP disaster. Plaintiffs filed suit against General Electric Company (GE) alleging that GE negligently designed the FNPP's nuclear reactors and safety mechanisms, both of which were implicated in the explosions. Plaintiffs alleged that venue was proper in the District of Massachusetts because GE maintained its corporate headquarters and principal place of business in Boston, Massachusetts. The district court dismissed the suit under the doctrine of forum non conveniens, determining that an adequate alternative forum was available to Plaintiffs in Japan and that dismissal was in the private and public interest. The First Circuit affirmed, holding that Japan satisfied the forum availability requirement despite the jurisdictional idiosyncrasies presented in this case.

Lemon v. Norfolk Southern Railway Co.

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3906

Opinion Date: April 30, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Labor & Employment Law, Personal Injury

Lemon asked a coworker for an Advil, explaining that he hurt his neck by “turn[ing] his head.” Later, he asked another coworker to cover his shift, stating that he hurt his neck at home. From the hospital, Lemon texted another coworker that he “tweaked” his neck at home. He first told the doctor that he hurt himself at home, then stated that he hurt himself at work. Later, he reported to his supervisor, claiming he slipped walking up the stairs at work and that he did not discuss the injury with any coworkers. In his formal injury report the next day, Lemon said that he stumbled on the stairs at work. Norfolk has a policy of firing workers who make false statements at work. Norfolk held a hearing and fired Lemon. Lemon claimed Norfolk violated the Federal Railroad Safety Act, 49 U.S.C. 20101, by retaliating against him for reporting a workplace injury. OSHA dismissed his complaint. The Sixth Circuit affirmed summary judgment for Norfolk. To prevail, Lemon was required to show that his injury report was a “contributing factor” in the railroad’s decision to fire him; he could not prevail if the railroad would have fired him anyway. Lemon’s injury report was not a contributing factor in Norfolk’s decision to fire him. Even if Lemon provided admissible evidence of a policy of pretextual retaliation, Lemon did not establish retaliation against him. Lemon admits no one at Norfolk ever discouraged him from reporting his injury or threatened him with retaliation.

Turubchuk v. Southern Illinois Asphalt Co., Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-3507

Opinion Date: April 29, 2020

Judge: Brennan

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

In 2005, a van containing six family members van slipped off the edge of an Illinois roadway. In the ensuing rollover crash, everyone was hurt; one passenger died. The crash occurred in a construction zone; a guardrail had been removed and not replaced. All lines had not been repainted on the repaved road, and pieces of asphalt lay on the shoulder. In a suit against the construction companies, the defense attorney told the plaintiffs that the two companies were operating as a joint venture with a $1 million liability insurance policy. The parties settled for $1 million. Plaintiffs signed a release of all claims that stated the plaintiffs agreed they were not relying on any statements by any parties’ attorneys. Four years later, the plaintiffs discovered that the companies carried separate liability policies. The district court ruled as a matter of law that the failure to identify the individual policies violated FRCP 26; that the undisclosed policies would have covered plaintiffs’ claims; and no joint venture agreement existed under Illinois law, so joint venture exclusions in the individual policies were inapplicable. A jury awarded damages of $8,169,512.84 for negligent misrepresentation. The Seventh Circuit reversed. The district court erred in allowing plaintiffs to rely on a Federal Rule of Civil Procedure for a duty of care; in deciding, before trial, that plaintiffs reasonably relied on the insurance disclosures; and in excluding the defense’s expert testimony on liability and settlement value.

Franklin v. Franklin County, Arkansas

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1854

Opinion Date: April 24, 2020

Judge: Arnold

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

After Cody Franklin died in police custody, his father, as administrator of his estate, sued the police officers who struggled with Franklin the night he died, and against the municipalities who employed them. The elder Franklin asserted claims under 42 U.S.C. 1983 for excessive force, and claims under state law for battery and wrongful death. The district court entered summary judgment in favor of the municipalities and all but two of the officers. Those officers filed an interlocutory appeal, arguing they were entitled to qualified immunity on all claims. After review, the Eighth Circuit agreed with the officers with respect to the federal claims, and remanded. With respect to the state claims, the Court remanded for further proceedings, including a determination whether to exercise supplemental jurisdiction over those claims.

Progressive Northwestern Ins v. Gant

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-3226

Opinion Date: April 30, 2020

Judge: Harris L. Hartz

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

Progressive Northwestern Insurance filed suit to obtain a declaratory judgment that it had not violated any duty to its insureds in the defense of a wrongful-death suit. The underlying suit had been brought in 2013 by Gabriel Gant against Justin Birk; his parents, Edward and Linda; and the Birks’ family company, Birk Oil. The suit alleged that Justin had negligently killed Kathyrn Gant (Gabriel’s wife) in a car accident; that his parents were liable because they had negligently entrusted the vehicle to him; and that Birk Oil was liable under the doctrine of respondeat superior because Justin was driving the vehicle incidental to his employment by the company. Gant’s attorneys estimated damages of many million dollars, which far exceeded defendants’ insurance coverage. Defendants had assets from which Gant could have collected additional money on a judgment against them, but his attorneys apparently thought that a better way to collect a large judgment would be if defendants had a claim against Progressive for not representing them properly and exposing them to a judgment far exceeding their insurance coverage. Accordingly, shortly before trial Gant entered into an agreement with the Birks in which Gant promised not to execute any judgment against the Birks, and in exchange the Birks assigned to Gant their rights to the policy limits under the Progressive and corporate insurance policies, and any claims the Birks had against Progressive for breach of contract, negligence, or bad faith. After a bench trial, Gant was awarded $6.7 million in damages. Progressive then brought this declaratory-judgment action and Gant counterclaimed, arguing that Progressive: (1) breached its duty to discover and disclose the corporate insurance policy; (2) was negligent in hiring attorney Kevin McMaster to defend the suit; and (3) was vicariously liable for McMaster’s conduct. The district court granted summary judgment in favor of Progressive on its claim and the counterclaims. Finding no reversible error, the Tenth Circuit affirmed the district court.

Everheart et al. v. Rucker Place, LLC et al.

Court: Supreme Court of Alabama

Dockets: 1190092, 1190116, 1190110, 1190102

Opinion Date: April 24, 2020

Judge: Sellers

Areas of Law: Business Law, Civil Procedure, Personal Injury, Real Estate & Property Law

Tamikia Everheart; Cardell Coachman, by and through his mother and next friend Johnitia Coachman; Michael Coleman, as administrator of the estate of Diane McGlown; Mary Weatherspoon; and Elizabeth McElroy, as administratrix of the estate of Jakobie Johnson (collectively, "plaintiffs"), filed four separate of summary judgments entered in their separate cases by the Jefferson Circuit Court in favor of Rucker Place, LLC, and Savoie Catering, LLC. While attending a Christmas party in December 2015 at the residence of Bruce McKee and Dale McKee, Jason Bewley consumed alcohol. Later, he was driving while allegedly intoxicated and was involved in an accident with a vehicle occupied by five individuals. As a result of the accident, two of those individuals were injured and the other three were killed. The plaintiffs filed four separate actions against Bewley, alleging negligence and wantonness in the operation of his vehicle. The plaintiffs also asserted dram-shop claims against Dale McKee; the estate of Bruce McKee, who died shortly after the Christmas party; Savoie Catering, LLC, which had catered the McKees' party and had served guests alcohol that had been provided by the McKees; and Rucker Place, LLC, which operates a catering business with connections to Savoie, but which claims it had no involvement with the McKees' party. The Alabama Supreme Court affirmed the trial court's judgments based on the conclusion that plaintiffs did not demonstrate that Reg. 20-X-6- .02(4) applied to the circumstances involved in their cases. The Court expressed no opinion as to whether plaintiffs presented evidence sufficient to establish a joint venture between Savoie and Rucker Place.

Johnson v. Ellis

Court: Supreme Court of Alabama

Docket: 1180786

Opinion Date: April 24, 2020

Judge: Greg Shaw

Areas of Law: Civil Procedure, Personal Injury

Acting pro se, Costillo Johnson, who, for purposes of this litigation, identified himself as "Asume Bjambe Ausir Imhotep El" ("Johnson"), appealed a circuit court's order dismissing his civil claims of assault and battery and "retaliation" against: "Ms. Ellis," purportedly a nurse's aid at Bibb Correctional Facility where Johnson was incarcerated; Wexford Medical, Ellis's purported employer; and the Alabama Department of Corrections ("ADOC"). Because it concluded the trial court lacked subject-matter jurisdiction, the Alabama Supreme Court vacated its judgment and dismissed the appeal.

M.M. v. Alaska Dept. of Admin.

Court: Alaska Supreme Court

Docket: S-16970

Opinion Date: April 24, 2020

Judge: Craig F. Stowers

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

The plaintiff in this case, M.M, was incapacitated, and in July 2014, a superior court appointed the Alaska Office of Public Advocacy (OPA) as guardian. Plaintiff raised several issues in a complaint filed on his behalf by a next friend - issues regarding the caseloads of OPA workers, the lack of standards of practice for OPA workers, and OPA not visiting its wards quarterly as required by statute. Plaintiff requested class certification, a declaratory judgment, and injunctive relief. The superior court granted summary judgment against plaintiff on all issues except one, and the parties proceeded with discovery and briefing on the issue whether OPA had met its statutory requirement to visit plaintiff on a quarterly basis. After the parties stipulated to a set of facts, the superior court granted OPA’s motion for summary judgment on the remaining issue. OPA moved for attorney’s fees, which the court granted but reduced, and the court entered final judgment in favor of OPA. Plaintiff appealed, arguing the superior court improperly interpreted the statutes addressing to whom OPA may delegate duties, erred by awarding attorney’s fees, and erred by holding the plaintiff’s next friend personally liable for fees. Because the superior court properly interpreted the statutes at issue, the Alaska Supreme Court affirmed its ruling that OPA could contract with service providers to help satisfy its statutory visitation duty. As to the attorney’s fees award, the Supreme Court concluded it was error to hold plaintiff’s next friend personally liable for fees. The matter was remanded for the superior court to reconsider whether to impose fees on plaintiff, given that the next friend was no longer personally liable.

Alaniz v. Sun Pacific Shippers, LP

Court: California Courts of Appeal

Docket: B290013A(Second Appellate District)

Opinion Date: April 28, 2020

Judge: Tangeman

Areas of Law: Personal Injury

Sun Pacific appealed the trial court's judgment after a jury awarded damages against it for injuries sustained by an employee of one of its independent contractors. The Court of Appeal reversed and remanded for a new trial on the negligence cause of action. The court held that the trial court prejudicially erred because it did not instruct the jury on the Privette/Hooker doctrine as it applies to either negligence or premises liability; Sun Pacific did not forfeit its challenge to the negligence instructions; and the trial court's error was prejudicial. The court also held that the trial court improperly refused a jury instruction on mitigation of damages based on the employee's delay in seeking medical care, and Sun Pacific was entitled to the instruction. Because a properly instructed jury could have found Sun Pacific liable for negligence, the court remanded so a properly instructed jury may evaluate the evidence. Finally, the court held that judgment notwithstanding the verdict should have been granted on the premises liability cause of action. The court remanded for further proceedings.

Marez v. Lyft, Inc.

Court: California Courts of Appeal

Docket: A156761(First Appellate District)

Opinion Date: April 30, 2020

Judge: Margulies

Areas of Law: Labor & Employment Law, Personal Injury

Gaurano, driving home from a day of working at the convention center in a vehicle rented through Lyft’s “Express Drive program,” struck the plaintiffs’ vehicles and caused significant injuries. The trial court granted Lyft summary judgment. The court of appeal affirmed. Gaurano was not acting within the scope of his employment with Lyft at the time of the accident. The court rejected arguments that Lyft required drivers to drive the rental, that driving the rental was “ 'incident to [Gaurano’s] duties’ ” because he had to be in the rental to pick up rides, and that Lyft’s encouragement of personal driving in the rental made accidents more likely. As a matter of law, Gaurano had substantially deviated from any duties he performed for Lyft at the time of the accident. Gaurano had not worked for Lyft on that day and had no intention of doing so. The potential for Gaurano to log onto the Lyft platform, alone, is insufficient to bring all of his personal driving within the scope of his Lyft employment. Gaurano’s conduct was not foreseeable and Lyft derived no benefit from it. The court also rejected an argument that the trial court abused its discretion in limiting the scope of a person most qualified (PMQ) deposition.

Moore v. Teed

Court: California Courts of Appeal

Docket: A153523(First Appellate District)

Opinion Date: April 24, 2020

Judge: Sanchez

Areas of Law: Construction Law, Contracts, Personal Injury, Real Estate & Property Law

Teed promoted himself online as a real estate agent with “over 25 years of experience as a building contractor” with “an extensive background in historic restorations.” Moore believed that Teed was a general contractor. Moore toured homes that Teed had renovated and retained Teed as his agent. Moore bought a large San Francisco fixer-upper house for $4.8 million. The home was built in 1912 and was last updated in the 1950s. Moore borrowed significantly. Teed received a commission from the sale. Teed was not a licensed contractor; his team of contractors gutted large parts of the house and excavated the lot but the foundation was defective. After Moore became aware of the defects, he halted all work and engaged consultants, who concluded, despite Teed's strong resistance, that the foundation had to be torn out and replaced. Teed’s structural engineer agreed and privately apologized to Moore. Moore had paid about $265,000 of the $900,000 promised cost for Teed’s renovations. A jury awarded Moore his out-of-pocket expenses for replacing the foundation and benefit-of-the-bargain damages for the additional cost he incurred in obtaining the promised renovations. Conceding liability, Teed challenged the award. The court of appeal affirmed that benefit-of-the-bargain damages are available to fully compensate a plaintiff for all the detriment proximately caused by a fraudulent fiduciary’s actions and the award of statutory attorney fees and costs based on the jury’s special verdict finding that Teed violated the Contractors’ State License Law.

Baltimore City Police Department v. Potts

Court: Maryland Court of Appeals

Docket: 51/19

Opinion Date: April 24, 2020

Judge: Shirley M. Watts

Areas of Law: Civil Rights, Labor & Employment Law, Personal Injury

In these two cases arising from two instances of police misconduct the Court of Appeals held that the police officers were acting within the scope of their employment, and therefore, the City of Baltimore was responsible for compensating the plaintiffs. The officers in these cases were members of the Baltimore City Police Department's now-defunct Gun Trace Task Force. Members of the task force engaged in a wide-ranging racketeering conspiracy, resulting in the officers being convicted in federal court. These two cases arose out of instances in which the officers conducted stops and made arrests without reasonable articulable suspicion or probable cause. The plaintiffs and the officers agreed to a settlement of the lawsuits. As part of the settlements, the officers assigned to the plaintiffs the right to indemnification from the City. Thereafter, the plaintiffs sought payment of the settlements by the City. In both cases, the parties entered into a stipulated settlement of undisputed material facts. The Supreme Court held (1) the stipulations in both cases established that the officers' conduct satisfied the test for conduct within the scope of employment; and (2) therefore, the City was responsible for compensating the plaintiffs for the officers' actions by paying the settlements that the plaintiffs and the officers reached.

Buckles v. Continental Resources, Inc.

Court: Montana Supreme Court

Citation: 2020 MT 107

Opinion Date: April 28, 2020

Judge: Beth Baker

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court reversed the order of the district court granting Continental Resources, Inc.'s motion to dismiss for lack of specific personal jurisdiction Plaintiff's complaint alleging that Continental was liable for the death of Zachary Buckles, holding that Plaintiff raised sufficient facts to withstand a motion to dismiss. Buckles died at a North Dakota oil well site owned by Continental, allegedly from exposure to high levels of hydrocarbon vapors while manually gauging tanks. The district court concluded that Continental, an Oklahoma corporation authorized to do business in Montana, was not subject to specific personal jurisdiction because the events leading to Buckles' death did not satisfy Montana's long-arm statute and because exercising jurisdiction over Continental would violate the United States Constitution's Due Process Clause. The Supreme Court reversed, holding that Continental failed to present a compelling case that jurisdiction would be unreasonable should Plaintiff prove her claims.