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SWATJester posted:I doubt there is an agency relationship, and even so, there is no causation to sustain a negligence claim against him. Depends how the facts shake out.
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Jul 29, 2010 20:00
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eviljelly posted:Depends how the facts shake out. As to what, agency, or causation? Agency: he's not acting within the course and scope of his employment, so no vicarious relationship. The church has not authorized any of his actions. He's not acting overtly as the agent of the church. He's essentially acting as a individual with licensee status on the property. I don't see the grounds for an agency relationship there. Causation: The cause in fact of the kids injuries is the other kid punching him. But for being punched, he would not have suffered the injuries. I'm not seeing how "but for OP's presence, the kid would not have been punched"; in fact, the facts establish that OP's presence STOPPED the fight. The simple argument is "They wanted to fight. Had they been in any other location, they still probably would have fought. The fact that they were on the church in front of the OP is completely irrelevant to the kid's injury". The argument for proximate cause is better, but not a slam dunk. Was it foreseeable that as a result of the OP's actions the kid would be punched in the face? Arguably not. TBH, I'm not even sure there was a duty or breach either, because OP had no duty to intervene/rescue and in fact did not intervene/rescue; and as long as he was not acting as an agent of the church, it's difficult to say that he acted unreasonably.
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Jul 29, 2010 21:00
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If the facts shake out that the kids thought and say that they knew the guy was a church caretaker (or whatever he is) and that they thought that he was allowing them to fight there as a host, basically. You can extend that further by the kids testifying to the effect that the guy told them so.
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Jul 29, 2010 21:50
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An interesting turn in the argument.
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Jul 30, 2010 03:04
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My friend is kinda dumb I think... He was driving north on a fairly major urban street, wanting to turn left to go westbound on an upcoming street. The intersection permitted no left turn, however, so he proceeded past it, made a U-turn a block or so later (mid-block) and turned right on the street he was looking for. He was pulled over, and the officer cited him for failure to observe the posted no-left sign. My friend wants to fight this ticket since he didn't break the law the officer was citing him for, basically. Was the cop trying to cut him a break or something? I mean is an illegal U-turn a worse offense in CA than turning left against a posted no left turn sign? Why would the officer write up a different infraction like that? What'd happen if he went into court and says "no I didn't break that law, I broke this one (aside from the part where the judge doesn't take his word over the officer's)?
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Jul 30, 2010 03:34
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eviljelly posted:If the facts shake out that the kids thought and say that they knew the guy was a church caretaker (or whatever he is) and that they thought that he was allowing them to fight there as a host, basically. You can extend that further by the kids testifying to the effect that the guy told them so. How would that be relevant to a negligence case? Permission to be on the land isn't a defense. And consent is only effective as between the two fighters in their battery case. The church cannot consent for two other people to hit each other.
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Jul 30, 2010 04:30
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SWATJester posted:How would that be relevant to a negligence case? Permission to be on the land isn't a defense. And consent is only effective as between the two fighters in their battery case. The church cannot consent for two other people to hit each other. So let me get this straight. If the church organizes an activity for kids and someone gets hurt either because it was a dangerous activity or because the church allowed the activity to be conducted dangerously, you don't see that this could create a case against the church?
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Jul 30, 2010 05:46
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SWATJester posted:As to what, agency, or causation? If he acts with apparent authority he can bind his employer, even if he does not have the authority in fact. That said, any injuries would be intervening torts by the kids punching each other (I agree with your causation analysis).
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Jul 30, 2010 06:35
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Reztes posted:My friend is kinda dumb I think... His intent was to violate the no left turn rule. The means by which he accomplished that violation happened to be a violation of another rule - no U-turns. So far as I can tell from a 5-minute skim of the CA state statutes, they're both "infractions." Proof of a marked no left turn violation may be easier than proof of an unmarked no U turn violation.(just a guess) If he denied one violation and admitted another, they could get him for both if there was sufficient proof (i.e., the cop) of the violation he denied. As a practical matter, unless he really showed his rear end, they probably wouldn't double up on him. But no, it won't do himany good.
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Jul 30, 2010 07:55
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eviljelly posted:So let me get this straight. If the church organizes an activity for kids and someone gets hurt either because it was a dangerous activity or because the church allowed the activity to be conducted dangerously, you don't see that this could create a case against the church? I don't see that the church is organizing anything here. Remember, he came across these kids fighting. Also, the dangerousness of the activity is irrelevant, we're not holding anyone in strict liability here.
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Jul 30, 2010 22:50
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JudicialRestraints posted:If he acts with apparent authority he can bind his employer, even if he does not have the authority in fact. I'm pretty sure that it would be very difficult to show that a reasonable person would believe that a church authorized a person to allow fight clubs on their property.
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Jul 30, 2010 22:51
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RE: Recording phone calls (another hypothetical) If you are in a one-party state, I know you can record your own calls all you want. How does this work if the other party is in a two-party state? If you are in a two-party state calling someone in a two-party state, and they inform you that they're recording the call, do you have to inform them if you also intend to record it? Or is it enough that they are aware it is being recorded at all?
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Jul 30, 2010 23:46
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I was listening to a story on NPR about BP hiring scientists to do research on the gulf spill. They were saying that BP hired these scientists to do research given that they were NOT allowed to publish it for three years unless BP gave the okay. So basically the idea is they are hiring these scientists to do research so they can cherry pick the "it wasn't so bad" research when BP defends itself in court, and keep the local scientists/gulf experts on their payroll and quieted. The reporter referred to this as a "hush clause" and here's my question: When BP goes to court, and these scientists hired by BP are on the stands, do they have to reveal that they are under a hush clause? Can they say anything about research they did without BP's say-so? I am basically asking, "If the scientists found damning evidence of the severity of the spill, will this information be able to be revealed in court without the scientists getting sued?"
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Jul 31, 2010 13:29
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Clobbermeister posted:I was listening to a story on NPR about BP hiring scientists to do research on the gulf spill. They were saying that BP hired these scientists to do research given that they were NOT allowed to publish it for three years unless BP gave the okay. So basically the idea is they are hiring these scientists to do research so they can cherry pick the "it wasn't so bad" research when BP defends itself in court, and keep the local scientists/gulf experts on their payroll and quieted. I don't think anywhere in the world can a contract bind you over an oath to tell the absolute truth.
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Jul 31, 2010 14:39
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Hi all. I'm hoping for some help from Aussie lawgoons on this one, it's based in NSW, Australia. An older male relative of mine was playing lawn bowls with some friends when one of said friends decided to tackle him. (The man in question was intoxicated, my relative was not.) He landed on one of the bowls hip-first and broke his femur. 12 or so weeks on, he has used up all of his sick leave and annual leave and is currently off work as requested by his doctor (he returned to work for six days before they got him evaluated by a medical practitioner, who declared him unfit to be working yet). He refuses point-blank to take any legal action against the man who tackled him due to their friendship, a sentiment which I think is admirable. However, I was wondering whether there's a certain amount of public liability which applies to the bowling club itself? I'm really ignorant about law in general, but I'm under the impression that public liability is intended to cover pretty much exactly this kind of thing. (Feel free to humiliate me if I'm wrong - I don't want to encourage him to do anything that I think he would consider dishonourable or dishonest.) I'd like to encourage him to at least explore his options, as he has lost a bit of income along with all of his leave entitlements - as well as paying a stack of medical bills - and as he is a man who isn't far from reaching retirement age I think there will be future health ramifications as well. Is there anything I can tell him to encourage him to see a solicitor, or is it pretty much a given that his friend would take some financial damage were he to pursue anything with the club?
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Jul 31, 2010 16:34
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Mackay posted:Hi all. I'm hoping for some help from Aussie lawgoons on this one, it's based in NSW, Australia. Not Australian so take with a pinch of salt, but public liability for this kind of thing is going to depend upon what the usual practice of the club is re: supervision and control. In equivalent cases involving say a rugby club you would find it incredibly difficult to sue the club for the actions of a player unless the referee was manifestly negligent in not sending the player off earlier or some such. waitwaitwaitwaitwait I just remembered that tackling has nothing to do with the game of lawn bowles By all means he should go talk to a solicitor to see what his options are but my money would be that organisations are not liable for random assaults that take place on their property
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Jul 31, 2010 16:58
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I don't know how it works in Australia, but I think here in the U.S. the tackling friend would be an intervening tortfeasor that would prevent the bowling club from being liable. The tackle was intentional, it caused the damage, I just don't see how you could get the bowling club to be liable.
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Jul 31, 2010 18:16
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Mackay posted:I don't want to encourage him to do anything that I think he would consider dishonourable or dishonest. Non-legal opinion What is more honorable: expecting the friend who caused the injury to help, or finding a way to hold the club liable? The club did not cause this injury, the drunken idiot did. I understand not wanting to sue a friend, but sometimes you have to hold people accountable for their stupidity. Legal opinion (US at least) The club would just haul the friend into court and say, "Extract any judgment against us from this guy." And they'd be right.
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Jul 31, 2010 18:31
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Wyatt posted:Legal opinion (US at least) Well, quick motion to add the individual as a defendant, another motion to remove themselves as a defendant.
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Jul 31, 2010 18:55
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In my state we specifically disallow liability for injuries incurred playing recreational sports so you should probably check your state/province/whatever moon jurisdiction you live in's statutes/codes/
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Jul 31, 2010 19:02
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JudicialRestraints posted:In my state we specifically disallow liability for injuries incurred playing recreational sports so you should probably check your state/province/whatever moon jurisdiction you live in's statutes/codes/ But the tackling wasn't part of the sport.
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Jul 31, 2010 19:30
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dvgrhl posted:But the tackling wasn't part of the sport. That doesn't stop politicians from writing terrible laws.
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Jul 31, 2010 19:31
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dvgrhl posted:But the tackling wasn't part of the sport. Which raises an interesting legal point to argue: was the assault unrelated to the game, or was he just playing incredibly badly?
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Jul 31, 2010 20:09
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Hi, I am looking for some advice on an incident that occurred last night. I live in Arizona, and at a night out at the bars I decided it was a good idea to urinate in public, against the wall down a bit from any bars. Of course, it was a terrible decision and I immediately had two bicycle cops surrounding me and questioning me. Of course, I was drunk at the time so I can't even recall if I even started urinating or if I stopped after they had shown up. They exchanged words with me and issued me a citation. Another problem is that I stupidly lost that citation last night, so I have no claim number and I'm not even sure what court I would need to go to. So that leaves me with a couple of questions: 1) How hosed am I for urinating in public in the first place (which I can only assume I did if I was issued a citation)? Will I go on a sex offenders list? 2) How do I get a copy of the claim so that I know when the court date is, etc.? 3) How hosed am I? Thanks
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Jul 31, 2010 21:01
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svein posted:Hi, Try searching for your name here: http://apps.supremecourt.az.gov/publicaccess/ Then call the court that has your case. I have no idea about the rest of that stuff.
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Jul 31, 2010 21:50
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We've kinda been going back and forth about this in D&D so I might as well ask about it here. Does Sherrod have a case against Breitbart or not? I know some of the basics of defamation law ("actual malice" and how a public figure is legally different than a private figure), and from that I figure that it should go in her favor, but I want to know from someone who actually knows the nuances of that area of the law.
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Jul 31, 2010 23:02
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entris posted:Try searching for your name here: http://apps.supremecourt.az.gov/publicaccess/ Great thank you for that. I talked to several people who had the same charge as me, and it turns out there is no sex-offender status for this city. So now the only thing I need to worry about is getting the court arrangement; do you know how long it takes for that system to update? Am I right to think it may not be updated over the weekend, and I won't have to go to court for at least a few weeks?
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Jul 31, 2010 23:05
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svein posted:Great thank you for that. Uh, yeah that's probably right, but you should call the court monday morning, or as soon as it's in the system.
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Jul 31, 2010 23:16
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I have a general question which should be applicable in most of the US. (I live in Illinois though) In the following situation, what kind of recourse would a defendant have?: Someone had a lawyer in a criminal case that resulted in a finding of guilt or a plea deal and after receiving evidence through discovery, it was clear to the defendant that video evidence, etc was not provided. They repeatedly informed their lawyer about it, but it was just passed off as "That's all they had" or "That wouldn't matter anyways" If the evidence would have had a fairly decent chance of discrediting the arresting officer's testimony/conduct, or just the fact that it recorded the defendant's other statements while being held, it should have been provided, right? I'm not sure what falls into the category of exculpatory evidence(since it would be hard to prove how it would be exculpatory since it was never revealed), but from what I can tell, when discovery is requested, all recorded statements on paper, video, audio, etc are supposed to be provided to the defense regardless. When a defendant strongly wants the other evidence and the lawyer doesn't request the court to make the prosecution turn it over, will they simply say it was the lawyers strategy or do they usually think it's a pretty important error that would be in the category of "ineffective counsel"?
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Aug 1, 2010 00:25
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PoOKiE! posted:I have a general question which should be applicable in most of the US. (I live in Illinois though) If you don't like your lawyer, get a different one.
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Aug 1, 2010 00:45
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Y-Hat posted:We've kinda been going back and forth about this in D&D so I might as well ask about it here. I personally think she does. The key of a defamation tort is the intent to harm the reputation of the victim. In America we have a First Amendment defense that overlays the common law tort and there you get actual malice. Actual malice is very hard to prove, it involves having to knowingly distort the truth in such a way as to harm someone. To prove actual malice Sherrod will have to be able to prove that Breitbart knowingly doctored those tapes and issued them as the genuine article solely for malicious purposes. Considering that this is what appeared to happen, I think she has a case. Of course, if she's smart she will tie her Libel claim in with an Invasion of Privacy: False Light claim (which I think applies in most places). The essence of that claim would be the humiliation she felt for being portrayed in a false light. Both torts recover for related by slightly similar things (False Light = emotional damage/humiliation, Libel = damage to her reputation/economic damage), so you can sue for both concurrently. Of course there are statutory differences from state to state, but in general that's how it should play out (also: she would probably win both).
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Aug 1, 2010 01:12
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PoOKiE! posted:I have a general question which should be applicable in most of the US. (I live in Illinois though) This is judge/jurisdiction specific. That said, 'ineffective counsel' is generally really hard to prove. The courts have found that you do not have a right to good counsel or motivated counsel, but simply 'reasonable counsel.' Refusal to review possibly exculpatory evidence could be ineffective counsel. It really depends what was in the possibly exculpatory evidence and whether the video would have dramatically altered the original charge.
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Aug 1, 2010 01:16
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JudicialRestraints posted:This is judge/jurisdiction specific. That said, 'ineffective counsel' is generally really hard to prove. The courts have found that you do not have a right to good counsel or motivated counsel, but simply 'reasonable counsel.' If I have a DUI where my client blew a .18 and there is a potential for dash cam video, but the DA has not provided it, I'm not going to request it, no matter how much my client insists it will show him being completely sober. I know it won't, but it will bring that video to the DA's attention, and he'll play it to show my client was falling over. That video cannot help my client.
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Aug 1, 2010 01:44
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^^Yeah that seems to be one that would classify as a good strategy on the part of the lawyer. In my situation, it would have been both videos after when I should have been the most "intoxicated", but the video they provided was the video of right when I arrived and I didn't even wobble once, and every action was completely normal. The video when I was being released would have revealed another officer at the station that released me who was going through the tickets stating "I really can't believe she gave you this ticket, or this one..." etc. I had also made random statements to him which may or may not have been important. When my lawyer finally provided me with all the discovery documents months after it was over, I quickly realized their machine hadn't been certified accurate in 170days when law requires every 62. That's why I was very interested in getting the other evidence, the number seemed ridiculously high for how clearly i remember the events and my actions, especially considering how tired I was Anyways, thanks a bunch. I think that was probably the possible train of thought he had, even though he could have just told me that was the issue when I inquired.^^^ Incredulous Red posted:If you don't like your lawyer, get a different one. Obviously, but if you trusted in him 8yrs ago and it turned out well, you would be inclined to put at least a little bit of faith in what he said at the time. But in the situation I mentioned where it's after the judgement, you can't really go back in time either. JudicialRestraints posted:This is judge/jurisdiction specific. That said, 'ineffective counsel' is generally really hard to prove. The courts have found that you do not have a right to good counsel or motivated counsel, but simply 'reasonable counsel.' Thanks, that's kind of the viewpoint I developed after research. And since it "depends what was in the possibly exculpatory evidence", I'm guessing if they say "the camera wasn't recording at that time" or "our department policy is to only maintain video for 60days..." you'd be pretty screwed in proving there was any wrongdoing in those cases. (Unless, of course, there's some sort of standard holding time for all footage the Department of State Police require, but I couldn't really find one.) PoOKiE! fucked around with this message at 02:15 on Aug 1, 2010 |
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Aug 1, 2010 01:58
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nm posted:And a lawyer could have a reason to not request certain discovery. I was taught that the best way to deal with this kind of situation is to say "If you absolutely want me to do this, I will. However first I need you to sign this instruction, noting that it states that in my professional opinion this is a bad idea".
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Aug 1, 2010 02:01
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PoOKiE! posted:I have a general question which should be applicable in most of the US. (I live in Illinois though) Here's how ineffective assistance of counsel works. You can literally sleep your way through direct AND cross examination of a witness, and that's not ineffective assistance of counsel.
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Aug 1, 2010 02:32
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Y-Hat posted:Does Sherrod have a case against Breitbart or not? I know some of the basics of defamation law ("actual malice" and how a public figure is legally different than a private figure), and from that I figure that it should go in her favor, but I want to know from someone who actually knows the nuances of that area of the law. This could be a pretty interesting case because Breitbart did not doctor the footage, by which I mean he did not cut and splice the footage to make it appear she said something she did not. What he did was show her exact words, but without the full context. So I don't think she has a strong defamation case. She has a stronger false light claim, though even that is not a slam dunk.
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Aug 1, 2010 05:45
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Wyatt posted:This could be a pretty interesting case because Breitbart did not doctor the footage, by which I mean he did not cut and splice the footage to make it appear she said something she did not. What he did was show her exact words, but without the full context. So I don't think she has a strong defamation case. She has a stronger false light claim, though even that is not a slam dunk. Ah, I thought there was actual doctoring. In that case you're right, there's a good false light case but very little for libel.
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Aug 1, 2010 06:46
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PoOKiE! posted:In the following situation, what kind of recourse would a defendant have?: Motion to withdraw plea on the grounds that the plea was not intelligently made. (not as in you were dumb to plead, but that you did not have enough information to make an intelligent choice to plead) There is usually a short timeline for withdrawing pleas, on the order to days, rather than weeks or months (here, (not IL) it's 10 days from the date of plea/sentencing) There are ways to ask permission to withdraw a plea out of time, or go a different route (In IL, it's called a post-conviction hearing) but the process is very state-specific. Find an attorney who does criminal appellate work for the former, and a post-conviction attorney for the latter. No matter which way you go, the hurdles are high. After all, you were under oath when you pled, and (either in papers you signed or verbally in court) you swore that you did do it, (or that if the State's evidence was believed you'd be convicted) that you'd discussed the case with your attorney, that he'd answered all your questions and explained any defenses you might have, that you understood the consequences of your plea, and that you were doing so voluntarily, knowingly, and intelligently. You'll get better results by getting the videos first and (assuming they're favorable to you) using them to demonstrate not only that your plea was not intelligently made but that that failure mattered. It'll also show you're not just going on a BS fishing expedition to avoid the consequences of your actions, which is the way such procedures are viewed by the decisionmakers. So, you should get an Illinois FOIA (Freedom Of Information Act) attorney too. Actually, FOIA work might be right up your alley; doggedness and squeaky wheeling are important parts of FOIA practice.
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Aug 1, 2010 07:28
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If you're too poor for an attorney you might be able to half rear end it by sending letters to your state attorney general asking for help on open records stuff. I know in Wisconsin we have to answer citizen letters. That said, you might have a long turn around time on that so considering the time specific nature of your need I really don't know of a cheap option to recommend.
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Aug 1, 2010 08:31
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