Slip and Fall Compensation 101

At Hastings and Hastings, we have deal with a vast amount of slip and fall cases arising in the Phoenix, Metropolitan area. A slip and fall case falls under the broad genus of personal injury. If property owner was negligent, and as a result, someone is injured, the victim of negligence is entitled to compensatory damages.

Slip and Fall Tort

Defined by the United States Tort Law, a slip and fall tort is a claim or case that deals with a person slipping, tripping, or falling. In order to push forth a slip and fall suit, it must be proved that the property owner was negligent. This is often accompanied by a great deal of difficulty. For instance, if you were to slip on a banana peel in a grocery store, the color of that banana peel is crucial for determining negligence. Was the banana peel bright yellow? Well then, negligence would be difficult to prove. Chances are it was left by a careless customer, and the store owner did not have a reasonable amount of time to react. However, if that banana peel is brown, then you have a viable slip and fall case. The brown banana peel would suggest that the peel had been there for quite some time. Therefore, its existence is due to negligence, and the store owner is vulnerable to a slip and fall suit.

If you’re a Victim of Slip and Fall

The first step is always to call for medical assistance. This general rule of thumb applies to all personal injury cases. Secondly, call an attorney as soon as possible to guide you through the process. If you are amidst company, encourage them to take pictures of the object that caused you medical negligence.

 

Hooter’s Waitress Claims $250k Award for Blond Hair Discrimination

At hooters, they have a policy that encourages their servers to adopt an appearance that conforms to a “girl next door” image. One Hooters girl apparently violated this image when she decided to dye her hair blond. Her manager told her “black people don’t have blond hair.” After she was fired for refusing to change it, she immediately sought compensatory damages as a result of discrimination.

Hooters does have a hair-color policy, however. In the past, girls have been fired for refusing to re-dye streaks of blue, orange, purple in their hair. But the prohibition of blond hair is highly uncommon at Hooters. Most of the women who work at hooters are in fact blond. So, it is no surprise that arbitrator Edmund D. Cooke Jr. ruled that the hair color policy “was implemented in a discriminatory manner adversely affecting African-American women.”

Surprisingly, Hooters issued a statement criticizing the award, and claiming intent to seek an appeal. The company also vocalized that they do not discriminate. The plaintiff had this response to offer, “As a former Hooters Girl who happens to African-American, I, like countless other African American Hooters Girls today, regularly wore my hair in various shades of blond, or any other color consistent without our girl next door image,” said Farryn Johnson, victim of discrimination.

The arbitrator obviously ruled in Johnson’s favor. It would be hard to imagine a scenario where a white girl was fired for switching to blond, or a black girl streaked her hair maroon. The offensiveness, and flagrant discrimination from the hooters manager is obvious. Firing a black girl for streaking her hair blonde, because it violates the “girl next door image,” was of course unacceptable, and a clear case of racial discrimination.

The City of Los Angeles Set to Rewrite Law Prohibiting Vehicle Dwelling

About one year ago, the 9th U.S. Circuit Court of Appeals declined a bill forbidding people from living in vehicles. However, a new form of the bill was recently proposed, and it seems likely it will pass.

The old form of the bill was denied for being unconstitutionally vague. It also seemed that the law was selectively gear towards the homeless. The original bill reads as follows: “no person shall use a vehicle…as living quarters either overnight, day-by-day, or otherwise.”

The vagueness doctrine often consulted by California legislatures defends against any type of selective enforcement.  Appellate Judge Harry Pregerson commented that “section 85.02 is broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle. Yet it appears to be applied only to the homeless. The vagueness doctrine is designed specifically to prevent this type of selective enforcement.”

California does need a similar bill passed, however. LA’s Venice Beach area attracts a large number of homeless individuals, many of whom sleep in the glamorous neighborhoods of Venice Beach in their car. Residents often complain that homeless people taking up occupancy in their cars on the side of the street litter the neighborhood carelessly, disturb the peace, and deter future homebuyers from purchasing property.

Some are opposed to the new form of the bill, however: “there is a problem with putting people in jail for performing life-sustaining functions when there is no other place to do it,” said Carol Sobel, civil rights attorney. Indeed, California has historically shown a great deal of sympathy for the unfortunate members of humanity. The Mayor has recently proposed a challenge to end Veteran Homelessness. California may fail to significantly ameliorate the homelessness problem, but efforts are a step in the right direction, and a victory for humanitarians.

Court Takes on Landmark Atkins Related Case

The Supreme Court will hear oral arguments on Monday, concerning the application of the court’s 2002 decision, Atkins v Virginia, which held that capital punishment for the mentally handicapped violates the Eighth Amendment, which protects against cruel and unusual punishment. The case Brumfield v Cain will reevaluate a court decisions to deny an Atkins claim.

The case involves defendant Kevan Brumfield who was charged with the murder of a Louisiana Police officer and condemned to death in 1995. After the Atkins case in 2002, Brumfield appealed for a post-conviction relief on the grounds that he was mentally handicapped. He also made a request a funding request from Louisiana to develop his claim. Based off the initial evidence, however, the Louisiana state court decided that he was not entitled to an Atkins Hearing. But Brumfield filed for a petition of habeas corpus (give us the body), and argued that a new hearing would allow him to present new evidence that complies with the Atkins hearing.

A federal magistrate found that additional evidence presented post-conviction did indeed suggest that Brumfield was mentally handicapped. Thus, it was decided that Brumfield was entitled to a full Atkins hearing in the US Court of Appeals for the Fifth Circuit.

The Supreme Court’s decision will have a substantial effect on post-conviction filings dealing with mentally handicapped individuals convicted of murder. If the court rules in Brumfield’s favor, a flood of Atkins related cases will likely pour in. Defining the requirements to satisfy mental incapacity will be left up to the state, per Atkins trial. However, if the Brumfield case is successful. It may lead to a slew of cases dealing with the states capacity for defining the mentally handicapped requirement. Once again, the age old debate between state and federal powers will come into play.

In honor of a Founding Father and Great American Lawyer

Many of the great Americans that laid the foundation for modern society were in fact lawyers. Maybe people should think twice before dropping the famous Shakespeare line from Henry VI, “ If I’m elected, I’ll kill all the lawyers.” If it wasn’t for great American lawyers like Thomas Jefferson we might not have the separation of powers, the declaration of independence, freedom of speech, limited government, California, Utah, Arizona, Texas, basically any territory west of the Mississippi. This blog is designed to encourage attorney appreciation by providing a snap shot of one of the greats.

Thomas Jefferson was born in Virginia to a wealthy family of planters and farmers. His father died at age fourteen which was the most critical event of his life. It forced Jefferson to grow up fast, which he did. He left home to study at William and Mary where he learned Greek, ballroom dancing, and met his mentor and future partner George Wythe. It was said by Jefferson himself that he woke every day before the sun rose and he studied for sixteen hours straight. No doubt Jefferson was a far cry from the whiny aristocrat as some purport him to be.

He studied law in Virginia from 1768 to 1773 under the wing of his friend and mentor, George Wythe. Jefferson’s client list included many members of Virginia’s elite. He became embroiled in many high profile cases, and was known for his reserved demeanor yet unfailing logic. Jefferson himself attempted to reform the legal system so that everything was done in writing. He felt that live court was prone to sway the emotion of the jury and thus retard justice, an interesting idea that never took hold. Eventually he took up his proper station as a leader of a budding nation. He drafted a resolution against the Intolerable Acts of the British Parliament in 1774. His hand is also responsible for the Declaration of Independence, arguably the nation’s greatest work of literature.

A Device that Would Destroy the plot of Goodfellas

There is an invention that protects against trunk entrapment. In fact, the invention is so successful that it is now mandatory to install in all cars for safety purposes. Essentially, it is a glow-in-the-dark release handle designed to allow people to escape from trunks in the event that they are accidently or intentionally entrapped in one. Indeed, Martin Scorsese would have missed out on a large pay check had this device been in use during the time period Goodfellas was set.

Although daunting and horrifying, facts shows that 10 to 20 people die from trunk entrapment each year, according to Janette Fenell, founder and president of Kids and Cars, a nonprofit organization dedicated to the reduction of injury and death caused by children stumbling into the trunks of motor vehicles. The reason designers chose to shade the handle with glow-in-the-dark ink is due to the fact that it is difficult to see in the dark—which is what you should expect if ever encased in a trunk. But it also entices children to pull the lever, because they are endeared by bright, shiny objects. In the unthinkable event that a child is accidently trapped in a trunk, instinct would certainly encourage the child to grab the glow in the dark object directly in their line of sight.

If your car was made before 2002, a company called Kids and Cars (www.kidsandcars.org) sells easy to install emergency release handles in the event that you care is unequipped with one. It works with almost any car model, including outdated vehicles such as the 1980 Mustang. There is no reason one should risk losing their child to the death jaws of a trunk. Installing a release handle is a must.

 

California Issues Sex Change to Prison Inmate

Jon Tigar of the Northern District of California decided Thursday that the California Department of Corrections must grant a transgender inmate sex reassignment surgery. Michael Norsworthy began living the life of a women in 1990 while in state prison. He was later diagnosed by prison psychologists with a severe case of gender dysphoria. He received counseling and hormone therapy from the corrections departments but his/her(?) request for sex reassignment surgery was brushed aside for obvious reasons.

This is the first time in the history of the penal code that an inmate has been granted permission for a sex reassignment surgery. Sure, it might make Michael feel a bit happier, but what kind of example is it setting for his fellow inmates? Not a very good one by most accounts.

Michael’s sex reassignment surgery was justified by the eighth amendment and a clause in the fourteenth amendment. The eight amendment protects against cruel and unusual punishment. Presumably, the court held that denying Michael’s urges to transform into a women was cruel, but certainly not unusual. Also, the fourteenth amendment was cited, which deals with equal protection for all citizens. Apparently, denying Michael his sex reassignment surgery was an act of discrimination against the transgendered. Essentially, denying Michael the right to turn into a girl would be like withholding high blood pressure medication from an individual prone to stroke.

The recent litigation is just one component in a trend advocating for lesbian gay bi-sexual transgendered rights (LBGT) for short. Not all efforts have been victories, however. Recently, the Indian Senate approved a Religious Freedom Bill that permits business owners to turn away LBGT applicants based on religious beliefs. But there have been many victories including the right to partake in gay marriage. A recent measure implemented in Oregon and Iowa prevents health care professionals from administering counseling intended to change a person’s sexual orientation.

Anti-Nausea Medication Linked to Birth Defects

The drug Zofran is traditionally used to ward of nausea and vomiting during chemotherapy, but can be prescribed for off-label purposes such as treating pregnant women for morning sickness. Zofran is manufactured by GlaxoSmithKline and was approved by the FDA to treat nausea in chemotherapy patients but not pregnant women. It is not illegal to prescribe the drug for off-label purposes, but it is illegal to market the drug for off-label purposes, which Zofran has allegedly done.

Zofran is a selective serotine reuptake inhibitor (SSRI), which means that it only targets one channel of the brain rather than the entire brain. Zofran blocks signals in the brain associated with vomiting and nausea. Because of this, pregnant women can ameliorate the symptoms of morning sickness by taking Zofran. But this also means that the baby is exposed to the drug. This should be avoided, given that a Danish study found that women who take Zofran during pregnancy are twice as likely to give birth to a baby with heart defects.

The drug maker GlaxoSmithKline also promoted other drugs for off label purposes. This lead to a settlement with the Department of Justice for $3 billion. However, the drug maker claims to the press that it is not guilty.

The FDA urges women to refrain from taking the drug while pregnant, and it urges doctors to cease writing prescriptions for said purpose. Morning sickness often occurs in the first trimester, the most critical stage for the development of the fetus. Taking prescription drugs during this time is highly advised against. The Fetus is essentially taking the drugs with the mother. Any drug that completely blocks off certain areas of the brains should not be trifled with during pregnancy.

Class Action Law Suit against Hair Loss Treatment that Causes Impotence

The onset of androgenic alopecia (male-pattern baldness) can be a difficult time in a man’s life. A man in Florid received a double dose of disappointment as he suffered serious sexual dysfunction as a result of Propecia, a product that purports to treat hair loss. Not only did it fail to restore his precious locks, but it killed the vigor and spirit that characterizes a man. For this, he is suing Merk & Co for failing to uphold its civil responsibility to warn consumers about every risk associated with its product.

The sexual dysfunction is cause by the active ingredient finasteride, which is found in Proscar, a drug design to treat prostate enlargement, and Propecia. Clinical studies found that 39% of subjects reported symptoms of sexual dysfunction after administration of the drug. Of those patients with symptoms of sexual dysfunction, only 50% of them were relieved of their impotence.

More than 742 other Propecia lawsuits are alleging similar finasteride side effects. Indeed, sexual impotence is no joking matter. It is highly correlated with suicide and depression. The plaintiff trusted the company to restore its hair, and instead found only despair.

The law suit will argue that Merk failed to warn consumers of all the risks attached to their products. Patients and doctors are dependent on the accuracy of the warnings labeled on their drugs. It is necessary so that patients can avoid potential complications. Merck allegedly failed to do so, and for that, they are getting sued by 742 people attached to the Florida case. The fact that the erectile dysfunction caused by Propecia is often irreparable, suggests that a great deal of money is at stake. Chronic side effects of libido and sexual problems are very serious issue, and hopefully Merck will pay for it dearly in court.

Development in Social Media and Employment Law

According to the National Labor Relation Acts, which protects union and non-union workers, employees are permitted to discuss working conditions with each other in an open forum such as social media. But, an employee acting alone on social forum is not protected, nor are vulgar an obscene comments.

At Perez Pier Sixty, an employee used his iPhone to direct the following message to his supervisor utilizing his Facebook page as a platform:

Bob is such NASTY MOTHER F-ER, don’t know how to talk to people!!!!!!! F-k his mother and his entire f-ing family!!!! What a LOSER!!! Vote YES for the UNION!!!!!

Now, as a blogger it is duty to present objective facts and leave interpretation up to the reader. But it would be hard not to interpret these remarks as obscene. Moreover, the fact that shakespearean author threatened to perform presumably nonconsensual sexual acts on the supervisor’s family is immediate grounds for dismissal.  Indeed, a co-worker who was friends with the gifted poet and political activist, showed the post to HR. The company then fired the employee.

But to everyone’s surprise, and perhaps dismay, the company reinstated the man. According to the board of directors, the post was not obscene or offensive enough, relative to the workplace, to void the legislation placed in effect by the National Labor Relations Acts:

The overwhelming evidence establishes that, while distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “f-k” and “motherf-ker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Analysis of Decision

The measures taken by the board were highly conservative. They most likely could have fired the employee without an ensuing law suit from the employee. The company must have been in hot water because they even complied with the author’s request to unionize. An employee acting in such a way deserves to be fired, in the event that an employee besmears a supervisor in a similar fashion, consult a legal expert before giving him the axe.