Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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Kolchinsky v. Western Dairy Transport, LLC

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1739

Opinion Date: February 6, 2020

Judge: Per Curiam

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

Bentley, the owner of Trucking, rear-ended the Kolchinskys’ car while driving a tractor-trailer through Illinois. The Kolchinskys were severely injured. Bentley's deliveries had been arranged by WD, which instructed Bentley to transport milk from Indiana to its destination. His route was up to him. Trucking’s agreement with WD provided that Bentley was an independent contractor. When Trucking accepted a job from WD, it agreed to call the broker daily with a status update, protect the freight, notify the broker of any damage, and inform the broker of delivery. Tucking was responsible for determining delivery times; WD reserved the right to withhold any resulting damages. The agreement required Trucking to pay its employees and provide and maintain its own tractor, fuel, insurance, licenses, and permits. The Kolchinskys sued Bentley; citing theories of respondeat superior and vicarious liability, the Kolchinskys also sued Trucking and WD The judge granted the defendants judgment, concluding that the driver was an independent contractor so the Kolchinskys could not hold the companies responsible for his alleged negligence. The Seventh Circuit affirmed. Courts applying Illinois law consistently have declined to find an agency relationship when a company hires an independent driver to deliver a load to designated persons at designated hours but does not reserve the right to control the manner of delivery. WD had no part in the transaction leading to Bentley’s fateful trip

Ezell v. BNSF Railway Company

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-6018

Opinion Date: February 5, 2020

Judge: Gregory Alan Phillips

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

Petitioner George Ezell was a conductor for BNSF Railway Company. In 2014, the trainmaster directed Ezell to detach twenty ballast-loaded railcars from a train about to enter the Enid, Oklahoma train yard. To detach, Ezell had to climb railcar ladders to see which cars were more than half full of ballast. Ezell safely performed this method for five or six railcars, but while inspecting the next railcar, his left hand slipped from the flange after he had let go of the ladder rung with his right hand. He was unable to resecure a grip with either hand and fell several feet to the ground, fracturing his right leg, right ankle, and left foot. He sued BNSF under the Federal Employers Liability Act (FELA) for failing to provide him with a reasonably safe place to work. BNSF moved for summary judgment, arguing that its railcar complied with the governing safety regulations and that Ezell had offered no evidence of BNSF’s negligence. “Ezell’s proffering what he believes are safer alternatives does not show negligence.” The Tenth Circuit Court of Appeals determined the evidence established that to do their jobs railroad conductors need to climb the ladders, and that this was a reasonably safe activity. For that reason, the Court agreed with the district court’s dismissal of this case.

McClurg v. Birmingham Realty Company

Court: Supreme Court of Alabama

Docket: 1180635

Opinion Date: January 31, 2020

Judge: Tom Parker

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

Rose McClurg sued Birmingham Realty Company ("BRC") based on injuries she sustained when she fell in the parking lot of a shopping center owned by BRC. The circuit court entered a summary judgment in favor of BRC, and McClurg appealed. Because there was a genuine issue of material fact as to whether the hole in which McClurg stepped was an open and obvious danger, the Alabama Supreme Court reversed summary judgement.

Alaniz v. Sun Pacific Shippers, L.P.

Court: California Courts of Appeal

Docket: B290013(Second Appellate District)

Opinion Date: February 5, 2020

Judge: Tangeman

Areas of Law: Labor & Employment 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 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. In this case, the trial court instructed the jury that Sun Pacific was liable if its failure to use reasonable care was a substantial factor in harming the employee, but did not say that that principle only applied to the hirer of an independent contractor if its negligent exercise of retained control over safety conditions affirmatively contributed to the harm. Furthermore, the trial court told the jury that Sun Pacific was liable if its negligent use or maintenance of the property was a substantial factor in harming the employee, but did not say that these principles would only apply to Sun Pacific if the hazard were concealed. Therefore, the court held that each instruction was an incorrect statement of law and Sun Pacific has not forfeited its contention. The court also held that the trial court's error was prejudicial. The court held that Sun Pacific was entitled to a mitigation of damages of instruction; the court reversed and remanded for a new trial on the negligence cause of action; and the court directed the trial court to enter judgment in favor of Sun Pacific on the premises liability cause of action.

Graham v. Friedlander

Court: Connecticut Supreme Court

Docket: SC20243

Opinion Date: February 4, 2020

Judge: D’Auria

Areas of Law: Education Law, Government & Administrative Law, Personal Injury

The Supreme Court affirmed the judgment of the trial court denying certain defendants' motion to dismiss Plaintiffs' complaint, holding that Defendants were not entitled to sovereign immunity. Plaintiffs, the parents of four school-age children diagnosed with autism spectrum disorder, brought this action seeking judgment from the City of Norwalk's Board of Education and three of its members. Plaintiffs alleged that the negligent hiring and supervision of Stacy Lore, who was hired to provide autism related services to children in the school district, proximately caused them to suffer permanent and ongoing injuries and losses. The Board filed a motion to dismiss for lack of jurisdiction and, in the alternative, claiming that the doctrine of sovereign immunity mandated dismissal of the claims. The trial court granted the motion to dismiss on the ground that Plaintiffs had failed to exhaust their administrative remedies. The Supreme Court affirmed but on other grounds, holding (1) the trial court improperly dismissed this action on the ground that Plaintiffs had not exhausted their administrative remedies; and (2) the Board and its members were not entitled to sovereign immunity because they were acting under the control of, and as an agent of, the municipality rather than the state.

Mark v. City of Hattiesburg

Court: Supreme Court of Mississippi

Citation: 2016-CT-01638-SCT

Opinion Date: February 6, 2020

Judge: Maxwell

Areas of Law: Constitutional Law, Government & Administrative Law, Personal Injury

An investigation into the Hattiesburg municipal court system led to several local news stories. One online story posted a copy of the police department’s internal-affairs investigative report of the court system, which the media outlet obtained from a city councilman. Attached to this report was a copy of municipal court clerk Sharon Mark’s medical-leave form. The form indicated Mark had asked for leave to undergo breast-cancer surgery. Aggrieved by public disclosure of her medical condition, Mark sued the mayor and five city council members for invasion of privacy. To get around the Mississippi Tort Claims Act, Mark asserted that the mayor and city council members were individually liable because they had acted with malice. But at trial, the evidence showed the disclosure of her medical- leave form was at most negligence. Because Mark failed to support her claim that the mayor and council members maliciously invaded her privacy, the Mississippi Supreme Court held the trial court did not err by granting these individual defendants a directed verdict.

Paulos v. FCH1, LLC

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 2

Opinion Date: January 30, 2020

Judge: James W. Hardesty

Areas of Law: Personal Injury

In this appeal considering the preclusive effect of a qualified immunity decision where the federal district court's judgment addressed both prongs of the qualified immunity inquiry but the federal court of appeals addressed only one prong to affirm the judgment, the Supreme Court affirmed in part and reversed in part the judgment in favor of Defendants. Appellant filed this tort action in state court, asserting claims against FCH1, LLC and Jeannie Houston and against Officer Aaron Baca and other Las Vegas Metropolitan Police Department (LVMPD) officers. The defendants removed the case to federal district court. The federal judge concluded that Officer Baca was entitled to qualified immunity and that LVMPD could not be liable on the federal claims. The judge then dismissed the remaining state law claims. Before the appellate court issued its disposition affirming the judgment, Appellant refiled her state law claims against the defendants. The district court entered judgment for the defendants. The Supreme Court reversed in part, holding that the district court (1) erred in granting summary judgment to Officer Baca based on issue preclusion; (2) correctly granted summary judgment to LVMPD based on discretionary immunity; and (3) erred in granting summary judgment to FCH1 and Houston on the negligence and false imprisonment claims.

Appeal of Elizabeth Doody

Court: New Hampshire Supreme Court

Docket: 2019-0115

Opinion Date: January 31, 2020

Judge: Gary E. Hicks

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

Claimant Elizabeth Doody worked for the Laconia School District as an elementary school speech assistant for over a decade. Her job required her to accompany students from their location to a special services room as well as to supervise a locked side entrance door at the beginning of the school day when students arrive and at the end of the school day when they depart. Of the school’s 300 students, approximately 125 students typically used the side entrance, which consisted of an outside concrete area, an exterior door that accessed a small atrium with a floor mat, and an interior door that accessed the corridor. In winter weather, the outside concrete area was treated with sand and ice melt product. On April 18, 2017, Claimant fell twice while walking down the corridor toward the side entrance, once at approximately 8:30 a.m. and again at approximately 3:00 p.m. Both falls occurred in the same location. The morning fall did not injure Claimant, but the afternoon fall fractured her right arm, which had to be repaired surgically. Claimant was taken out of work by one of her doctors the day after the injury and was released to part-time work with modifications. Because the District was unable to accommodate the restrictions, Claimant remained out of work until school resumed in the fall. Despite the surgery and a subsequent course of physical therapy, Claimant remained unable to lift her right hand over her head and continued to experience pain. Claimant appealed a New Hampshire Compensation Appeals Board (CAB) decision to deny her claim for indemnity benefits and payment of medical bills. The parties disputed whether Claimant’s injury arose out of her employment. Because the New Hampshire Supreme Court determined the CAB misapplied the applicable law with respect to on-the-job injuries, and because applying that test required further fact-finding, it vacated the CAB’s decision and remanded for further factual findings and for the correct application of the “increased-risk test” to those facts.

Yanku v. Walgreen Co.

Court: Rhode Island Supreme Court

Docket: 18-356

Opinion Date: February 6, 2020

Judge: Maureen McKenna Goldberg

Areas of Law: Personal Injury

In this slip-and-fall case, the Supreme Court affirmed the judgment of the superior court in favor of Defendants, holding that the trial justice properly granted summary judgment in favor of Defendants. Plaintiff sustained injuries when she tripped over a speed bump in the parking lot of a Walgreens Pharmacy. Plaintiff sued Walgreens and the landlords of the property, alleging negligence, premises liability, and vicarious liability. The trial justice granted judgment judgment for Defendants. The Supreme Court affirmed, holding that Plaintiff failed to produce competent evidence to establish that the speed bump presented an unreasonable danger or that it was negligently constructed and maintained.