Plane Crash Survivors Awarded $11.35 million

By:  Matt Schmidt

A Philadelphia jury awarded plane crash survivors Dr. Robert Marsico and his wife Heather Moran, a professional pilot, a $11.35 million verdict against Winner Aviation, a company that was supposed to maintain the plane.

Moran flew the twin engine Cessna Skymaster, and the plane quickly developed engine problems and crashed. Luckily, the crash did not occur in a populated area. Moran was revived by Marisco - whose legs were crushed. As they were trying to get out of the plane, a wing exploded, causing them both to suffer third degree burns, and lung and respiratory system injuries from breathing in flames and fuel.

Examination of the engine showed that Winner Aviation did not properly maintain the plane: the rear engine required repair, and the front engine was due for an overhaul that was never performed.

 In a Michigan high school during an Anti-Bullying Spirit Day, which supports lesbian, gay, bisexual, and transgender, people from any discrimination. Johnson McDowell, a teacher is being sued for asking two students from his economics classroom to leave. First he asked a female student to remove her confederate flag belt, because it was symbolizing lynchings. When a student, Daniel Glowacki gave his opinion and asked why it was ok to hang a rainbow flag, but not a confederate; the teacher pointed out that there is a difference between the flags. Glowacki continued saying that his Catholic beliefs didn’t allow for homosexuality, after McDowell asked him if he supported gay rights. McDowell then asked both students to leave.

  

  Glowacki’s mother, Sandra Glowacki has filed a lawsuit with Thomas More law Center against the Howell Public School district. She believes her son’s First Amendment rights were violated and his religious view’s were not being taken into consideration. McDowell was suspended one day without pay, but is continuing to teach at the school.

                                                                                                                                                     Although, McDowell has gained much support from parents, faculty, and students for his actions, Superintendent Ron Wilson said, “The same thing would have been done had the student been on the other side.” Wilson also added, “As superintendent, it’s my responsibility to foster fair, respectful treatment of all staff and students, and the teacher didn’t do that."      

   The lawsuit states that McDowell went on a “public campaign” as well as attempt to make Glowacki appear homophobic. All Howell Public schools must have an assembly with school officials discussing bullying. Also during the assembly, it was allegedly said “to support the claim that hate speech was masquerading as religious speech.”

   At Kinerk, Schmidt & Sethi we handle cases involving bullying and injury at school. If you have such a claim call us so we can help.

Ocean Spray Recalls Dried Cranberry Products

By: Jim Campbell

Ocean Spray has decided to voluntarily recall certain production lots of its Original Flavor Craisins® Dried Cranberries product in 5-ounce, 10-ounce and 48-ounce packages, in addition to their bulk sweetened dried cranberries in 10-pound packages. They anticipate the possible presence of very small hair-like metal fragments in the product. These fragments are unlikely to cause consumer injury. The company has not received any reports of consumer complaints or injuries.


The following Ocean Spray Original Flavor Craisins® Dried Cranberries are part of this recall:
5 oz Craisins® UPC: 00293-000
Best By Dates (ONLY THESE DATES FOLLOWED BY THE LETTER "M" ARE AFFECTED):

Oct 27 2012 M
10 oz Craisins® UPC: 29456-000 and 29464-000
Best By Dates (ONLY THESE DATES FOLLOWED BY THE LETTER "M" ARE AFFECTED):

Oct 27 2012 M
Oct 28 2012 M
Oct 29 2012 M

48 oz Craisins® UPC: 00678-318
Best By Dates (ONLY THESE DATES FOLLOWED BY THE LETTER "M" ARE AFFECTED):
Oct 27 2012 M
Oct 28 2012 M
Nov 3 2012 M
Nov 4 2012 M
Nov 5 2012 M
Nov 6 2012 M
Nov 7 2012 M
Nov 10 2012 M
Nov 11 2012 M

10 lb bulk ingredient & foodservice UPC: 03477-000
Best By Dates (ONLY THESE DATES FOLLOWED BY THE LETTER "M" ARE AFFECTED):
30 Oct 2013 M
31 Oct 2013 M
1 Nov 2013 M
5 Nov 2013 M

Consumers who have purchased the recalled products are urged to destroy the product, save the UPC label and best by date and contact the Ocean Spray Consumer Hotline at 1-800-662-3263 for a coupon replacement.

American bomb-sniffing dogs' dead in Houston

   

   At Animal Airport Houston fourteen American K-9 dogs were found dead in a neglected refrigerator truck. The dogs were found inside their crates with blood. Damaged crates indicated the dogs’ efforts to escape. The dogs’ were Belgian Malinois and German Sheppard’s and were scheduled to fly from Houston to Afghanistan to help U.S. Military Troops.            

   The plaintiff, Florida-based American K-9 Detective Services aimed for an out of court settlement for 1.3 million, but failed. Christopher Hay owns Live Animal Services. He allowed for the dogs to be placed in a kennel and warehouse; from there they would board an overnight flight. The next day the dogs were found dead by the owners.

    The Animal Services guarantee that they will provide pets with "safe and gentle pet and animal shipping" and a "24-hour luxury pet hotel and animal station." The company has broken U.S. Department of Agriculture set of laws that state the protection of animal transportation.          

  

   The spokesmen for USDA's Animal and Plant Health and Inspection Service, David Sacks said, that the company Indian Creek Enterprises could get administrative fines for violating regulations for the welfare of animals.

  The dogs’ names were, Tiny, Rex, Rocky, Crock, Dork, Harrie, Stress, Sigo, Rex, Jaco, Kimbo, Kilo, Albert and Bak. These types of service dogs were highly trained to detect explosives, narcotics, mines, and human remains. Their services provided help for military and civilians.

  

  At Kinerk, Schmidt & Sethi we have handled a number of cases for victims of abuse and death in protected environments.

-Ted Schmidt 

Richmond to pay $1.5M in suit over police killing mentally ill man

By:  Ted Schmidt

A mentally ill man was killed in a struggle with the Richmond police in 2008. Police officers used pepper spray, shock weapons and batons to subdue the man. They also tasered him for over 72 seconds. Once the mentally ill man was handcuffed and put on the ground, they realized he had stopped breathing. The officers then took him to Doctors Medical Center in San Pablo, where he was pronounced dead. The mentally ill man'd parents had filed a federal civil rights lawsuit, but the city of Richmond has agreed to settle  by paying $1.5 million to the man's family. 

At Kinerk, Schmidt & Sethi, we handle these types of cases.  

Construction worker falls to his death

  In Stamford, Connecticut, a construction worker, Javier Salinas fell 50 feet to his death at the Chelsea Piers Sports Complex. Ashford Properties Construction Inc and its parent company, the Ashford Company Inc.; Merritt Contractors Inc.; Stamford Exit 9 LLC; Chelsea Piers Connecticut LLC; American Building Group Inc., and American Building Group LLC are being sued by his wife, Rosa Calva. She filled a wrongful death lawsuit against the companies for $15,000 dollars.

  

   On October 25, Salinas was installing sheeting on the roof with nothing to help him from falling, when a burst of wind knocked him over. The Occupational Safety and Health Administration officials are investigating the death and the Department of Labor has put into effect a stop-work order issue against the companies.

    

  The incident caused 50 construction workers to protest against the Ashford Properties Construction on Dec. 1. The construction workers state that the construction company should be held responsible for them and their safety, instead of finding effective ways to save money.

   

  At Kinerk, Schmidt & Sethi we have handled a number of cases for victims of abuse and death in protected environments.

-Ted Schmidt

Man wins lawsuit over towels left inside him by surgeons

An Ohio man won a $275,000 settlement from the federal government due to the surgical towels left in his abdomen after a kidney operation at a Veterans Administration hospital.

The towels were discovered as a result of a CAT scan due to pain and discomfort days after the kidney operation. The towels measured 14 by 11 inches.

The VA Medical Center in Cleveland has since purchased a system that uses radio frequency ID chips that tracks the use of sponges and other surgical equipment during a procedure.

Ford recalls Sedans due to dangerous wheels

By: Matt Schmidt

Some Ford sedans in the 2010-2011 model years run the risk of the wheels falling off the car if the wheel studs fracture. This fracture could cause the car to shake, and if ignored, may cause the wheels to fall off.

The sedans that were affected were built at Ford's Hermosillo stamping and assembly plant in Mexico. The recall affects all vehicles that have service steel wheels, most of which were sold between mid April 2010 and November 2010. Cars with alloy wheels were not affected. Ford reports a total of 128,616 cars to have been affected.

Verdict for $8.5 million in wrongful death suit

By: Dev Sethi

The Loignon Champ-Carr Inc. negligently caused the death of 38 year old Jon Paul Lacaillade II of Meredith, New Hampshire. The Loignon tractor trailer ran over and killed him when he was bicycling in Porter, Maine. His widow and two children filed suit last year and have won a $8.5 million dollar verdict for the wrongful death. 

Two social workers sued for child’s death

    In May 2007, Chandler Grafner, a 7-year- old boy was forced by his foster parents Jon Phillips and Sara Berry to stay in a closet. Grafner starved to death. The two social workers held responsible are, Margret Booker, head of investigation of the Denver County Department of Human Services and case supervisor Mary Peagler.

   U.S. District Judge William J. Martínez approved the wrongful-death lawsuit filled by the child’s biological mother, Christina Grafner and father, Joshua Norris against the department. Although, some agencies are legally protected from these types of situations, Judge Martinez gave good reason for his decision. "These injuries, by their nature, occur over a period of time. Had Defendants properly exercised their professional judgment in response to the April 17, 2007 referral, these injuries may well have been avoided".                                                                                                                                                

   Two months before Chandler’s death a teacher reported to the school that he would arrive to class with bruises and had claimed to be beaten by Phillips. The agency investigated, but didn’t find enough evidence to convict the foster parents. 

  Phillips was convicted of first-degree murder in 2008 and Berry received a 48-year sentence after pleading guilty to second-degree murder and possibility of parole after 32 years.  

At Kinerk, Schmidt & Sethi we have handled a number of cases for victims of abuse and death in nursing homes, foster homes, homes for the disabled and other protected environments.  Please look at “Elder Abuse” under “Areas of Practice” on our website and “Resources.”  If you have a question or case you would like us to look at please call or write Ted Schmidt or Dev Sethi in our office.  520-545-1670

Civil Procedure—Right of Prevailing Party to Attys’ Fees under ARS 12-341.01, Trial Court Discretion/ Citing Unpublished Opinions/Taxable Costs

Motzer v. Escalante, 622 Ariz. Adv. Rep. 42 (App. Div. II, November 22, 2011) (J. Howard) TRIAL COURT MAY DENY “PREVAILING” PARTY AWARD OF ATTYS’ FEES FOR MANY REASONS WITH WIDE DISCRETION/UNPUBLISHED OPINIONS SHOULD NOT BE CITED AND ARE NOT BINDING/TAXABLE COSTS INCLUDE TRANSCRIPTION AND COPYING OF DEPOSITIONS BUT NOT JURY NOTEBOOKS WHICH TRIAL COURT “ENCOURAGED” BE PREPARED BUT DID NOT “ORDER” BE PREPARED Plaintiff sued defendant regarding a construction remodeling job and defendant counterclaimed. Plaintiff won on some theories, lost on others and defendant lost on its counterclaims. Plaintiff was found by the trial court to be the prevailing party but trial court denied plaintiff’s request for attorneys’ fees under ARS sec. 12-341.01—the dispute having arisen out of contract. . The Arizona Court of Appeals affirmed and reversed on a taxable cost issue. The court of appeals found that the trial court has very wide discretion in considering whether or not to award attorneys’ fees under ARS sec. 12-341.01. Here the trial court orally acknowledged it had considered the factors outlined in Associated Indem. Corp. v. Warner, 143 Ariz. 567, 569, 694 P.2d 1181, 1183 (1985) including the merits of each side in the case, settlement offers by the defendant and the failure of the parties to mediate or otherwise seek alternative dispute resolution. The court summarily rebuked appellant for citing an unpublished decision. Finally, the court held that while transcription and copying of depositions for trial constitutes a cost associated with depositions and therefore taxable, costs associated with the production of jury notebooks “strongly encouraged” by minute entry of the court but never strictly ordered to be completed, are not taxable. By: Ted Schmidt

The Law & Your Pets

by Ted Schmidt, Kinerk Schmidt & Sethi

We are frequently asked about the legal obligations of dog owners here in Pima County. Here are the topics that seem to be of most interest.

Leash Laws

Pima county code (sec. 6.04.030), requires dogs on public or private property to either be in an enclosure (like a fenced back yard) or on a leash. The penalty for this Class 2 misdemeanor can include a fine of between $100 and $750; up to four months in jail; and/or two years’ probation.

So, if your dog is not fenced at home, keep it on a leash a all times. If your dog is found at large, it may be impounded by Pima Animal Care and

you may be charged for the costs of pickup, impoundment and even microchipping of your pet. Impoundment fees can range from $75 to $125 for the first impoundment to $125 to $200 for subsequent impoundments. You also may be charged $15 to $60 per day in boarding fees.

Barking Dogs

What about barking dogs? County ordinance, section 6.04.160 provides that those who own any animal or bird which frequently or for continuous duration howls, barks, meows, squawks or makes other sounds clearly audible beyond the property line of the property on which they are conducted are prohibited if they disturb the public peace, quiet or comfort of the neighboring inhabitants.

Who do you call if you become aware of such a violation?

Pima County Sheriff’s Department (520) 351-4900.

Enforcement division of the Pima Animal Care Center (520) 243-5900.

Dog Crap

What about cleaning up after your pet? We all know it’s the “right” thing to do; but are you breaking any laws if you don’t do it? The short answer is “yes.” Cleaning up after your dog is required by county ordinance (Code, 6.04.030). It is a misdemeanor for a person walking a dog to fail “immediately” to “remove and dispose of in a sanitary manner” any dog poop deposited on public or private property. Penalties may include a fine of between $100 and $500; up to 30 days in jail; and/or one year probation.

Dog Bites

In Arizona by statute, dogs do not get "one free bite;" owners are held strictly liable for injuries caused by their dogs' actions and liability is imposed without regard to an owner's knowledge of the dog's viciousness (ARS, sec. 11-1025). The only defense when your dog bites another person is to prove the person bit provoked the dog.

Licensing & Vaccinating

Any dogs older than 3 years must be vaccinated against rabies and licensed. Upon moving to Pima County, a new resident has 30 days to comply with these requirements. Fees range from $10 for a disabled or senior citizen owner to $60 for an unaltered (not spayed or neutered) dog. The owner of a dog who fails to obtain a license is guilty of a Class 2 misdemeanor.

Shadow Hills CC&Rs

The Shadow Hills CC&Rs make only passing mention of pets. Specifically, Article IV—Use Restrictions, Item 20”Animals And Pets.” Prohibits stabling horse or other animal, bird or fowl other than “customary domesticated household pets” are allowed and no household may have more than “two dogs and/or cats more than ten weeks old.”

Parents win $9.85 million verdict against daycare

By: Dev Sethi

A jury in Gwinnett County State Court awarded $9.85 million in a wrongful death suit. The parents of a toddler who died in an unlicensed daycare facility brought this suit. The owners of the daycare falsely advertised their operation to be state-approved. The toddler was left unattended and as result fell into an open pool and drowned in 2009.

Parents of hazing victim looks to sue

By: Dev Sethi

Drum major Robert Champion died after an alleged hazing incident. Pamela Champion, Robert champion's mother hopes that this suit will enable other victims of hazing to come forward and will compel the university to monitor hazing more closely.

Robert Champion was pronounced dead at an Orlando hospital after the suspected attack on the FAMU marching band charter bus, after performing at the Florida Classic football game.

The President of FAMU, James Ammons, recently fired longtime band director Julian White. He promised that the school would organize an independent investigation into the hazing allegations after Champion's death.

Champion's initial autopsy was inconclusive and no arrests have been made at this time.

Motion Motion Sensors due to Electrical Shock Hazard

By: Jim Campbell

Approximately 75,000 Heath®/Zenith and WirelessCommand® motion sensing wall switches have been voluntarily recalled. No injuries have been reported yet. A leakage can occur when a current passes though the electric circuit when the switches are in the auto mode. This is problematic because if consumers fail to disconnect the power at the circuit breaker, there is a risk of an electric shock. Consumers should immediately stop using the recalled wall switches and contact the company for a free wall switch replacement. They can be reached at: (855) 704-5438.

Tucson Teen Killed in Post Collision Mustang Fire.

By Dev Sethi

As reported by the Arizona Daily Star this afternoon:


"A Mustang driven by a 17-year-old man burst into flames after colliding with a Ford F250 pickup truck near milepost 119 at about 10:30 Monday morning. The teen did not survive. The driver of the truck was airlifted to a Phoenix hospital said Ofc. Carrick Cook a spokesman with the Arizona Department of Public Safety. No further information was available about the medical condition of the truck driver."

The Ford Mustang has had previous problems with post collision fuel fed fires.  These fires occur when the fuel line is compromised in a crash, leading to escaped fuel that ignites.  Often the injuries from the initial collision are minor, but the fire creates an unsurvivable condition.

Dev Sethi and Ted Schmidt have settled several post collision fire cases involving many leading automakers, and they have worked with nationally know auto safety experts in bringing the hidden dangers of these fuel systems to light.

These post collision fires are rare, but they are entirely preventable.  Ford's trouble with post collision fires dates back to the Pinto days, but more recently it has struggled with design defects in its Crown Victoria (police car) line and popular Mustang line.

If you have questions concerning a post collision fire involving a Ford Mustang, or any vehicle, please visit the auto defects section of our website or call Dev at 520-545-1663.

Battery Fires cause Chevy Vault to be Investigated

By: Ted Schmidt

A week after three crash tests, fires that occurred in the lithium ion batteries is a source of concern. General Motors offered loaner cars to concerned consumers and they have a team of engineers ready to help the National Highway Traffic Safety Administration to find a way to fix it.

The automakers are working hard to ensure that this doesn't become a public relations fiasco. The Chevy Vault was supposed to counter Toyota's Prius hybrid. They are making sure that the fires don't negatively affect the public's perception of their new electric car. Lithium-ion batteries, like the ones used in the Volt, are installed in all-electric cars. Automakers and U.S. and California regulators are looking to increased use of electric power to meet tightening U.S. fuel- efficiency standards.

The Volt can go 40 miles on electricity alone before having to be turn to its gasoline source. Once the gasoline kicks in, the generator charges the battery.With the combined use of the battery and gasoline, the Volt can go a total of 379 miles.

The Volt has been on the market for about a year now, and last month, it went on sale in all 50 states. GM has plans to boost production to 60,000 a year from a rate of 10,000 annually.

General Motors have adopted a new process to depower the battery after a crash. They feel that this will keep fires from occurring.

Plaintiff in civil suit claims he was abused over 100 times by former Penn State coach

By: Matt Schmidt

Former Penn State coach, Sandusky is facing the first of what is expected to be many civil suits regarding alleged child sex abuse. Attorneys for the 29 year old alleged victim outline extensive abuse. He also claims that there have been threats by the former coach to keep silent.

The complaint names Sandusky, Penn State and The Second Mile charity Sandusky founded, and describes an atmosphere of negligence. The lawsuit includes eight counts, ranging from childhood sex abuse to negligence and negligent supervision, as well as intentional infliction of emotional distress and conspiracy to endanger children.

The attorneys claim that Sandusky took advantage of his image as mentor, and preyed on those who trusted him.

John Doe A met Sandusky when he was only 10 years old, and claims he was abused over 100 times between 1992 and 1996. At the time John Doe A was too young to have consented and the abuse was both unsolicited and unwanted. John Doe A alleges that Penn State did nothing to protect him or other kids from the abuse. The complaint alleges that the abuse took place in "multiple locations" and over "multiple occasions." The complaint names the following places: "...within Pennsylvania and outside Pennsylvania; in facilities of Penn State, particularly the football coaches' locker room; at times within Philadelphia County; at facilities out of state connected with a Penn State bowl game; and at the Sandusky home."

Sandusky threatened "John Doe A" and his family, "Nobody will believe you and something will happen to your family,'" Anderson said.

Sandusky retired as Penn State's defensive coordinator in 1999 but continued to have an office at the university until recently. He continued to work on the campus, had university privileges and access to university facilities until news of the scandal broke.




Kinerk, Schmidt & Sethi handles these types of cases.

Torts-State Not Bound By Vulnerable Adult Statute

Braden v. State of Arizona, __Az. Adv. Rep.__ No. Cv-10-0300-PR (November 30, 2011) (J. Brutinel)

STATE NOT CONSIDERED "LEGAL ENTITY" UNDER ADULT PROTECTIVE SERVICES STATUTE (ARS. sec. 46-455) AND THEREFORE NOT BOUND BY THE ACT



Jacob Braden was a developmentally disabled adult in a private residential home under contract with the State of Arizona to provide care for indigent mental health patients. Braden died allegedly due to abuse and neglect at the home and his estate sued the home and the State for violation of the Adult Protective Services Act. The trial court granted the state's motion for summary judgment claiming it was not an "enterprise" intended to be controlled by the APSA. The trial court agreed, the court of appeals disagreed and the Arizona Supreme Court affirmed the trial court.



In analyzing the APSA the supreme court noted that the Act provided a civil remedy for "vulnerable adults" that suffer abuse or neglect from an "individual or enterprise." It was not in dispute that ARS. sec.1-215 (29) defines "person" generally as "a corporation, company, partnership, firm, association, or society, as well as a natural person"); On the other hand, the legislature defined "enterprise" for purposes of APSA as "any corporation, partnership, association, labor union or other legal entity, or any group of persons associated in fact although not a legal entity, that is involved with providing care to a vulnerable adult." § 46- 455(Q). From this the Court held: "



The absence of a comma after the phrase "labor union "makes a difference. Syntactically, this suggests "other legal entity" does not function as an independent catch-all category, but instead relates to legal entities like labor unions. Because the state is not a legal entity like a labor union, we conclude it is not the kind of "other legal entity" to which the legislature intended to refer."