Archive for December, 2009
Thursday, December 24th, 2009
It is that time of year again – snow, ice, freezing rain, etc. Part of living in the northeast is dealing with inclement weather, and the slippery conditions that come along with it. Be sure to use extra caution at this time of year, and take an extra second to be aware of your footing. Also make sure you utilize appropriate footwear. Shoes and boots with good tread are a must. Thinking ahead and exercising appropriate caution is not just common sense, it is your duty under the law.
Landowners, especially those that invite the public onto their premises, also have a duty under the law to use reasonable care to remove or treat slippery surfaces. Plowing parking lots and spreading sand over walkways is a simple and effective way to reduce the hazards that come with winter weather. Landlords typically have a duty to treat such common areas in apartment complexes. Note that just because the landlord has a duty to treat the slippery surface, you as a resident do not get to ignore your own duty to use caution. The landlord’s efforts only need to be reasonable under the circumstances – not necessarily “perfect.” That means plowing, shoveling and sand/salt spreading may have small gaps which are still hazards, but do not necessarily constitute “negligence” under the law. It is those gaps that you have a duty to keep an eye for. “Reasonable” also means that the landlord has to have notice of the slippery conditions, and time to deal with them. Just because the landlord wasn’t out spreading sand with three minutes of the first snowflakes, does not net necessarily mean he or she was negligent. The same basic rules apply for owners of stores and businesses. Avoiding slip and fall accidents usually requires appropriate precautions to be taken by both the landowner and the pedestrian.
We hope you have a safe winter but please contact us if you need our assistance.
Thursday, December 24th, 2009
A question that employees sometimes ask is: can my employer legally read my emails? The answer is generally yes. If you are sending emails from your employer-owned computer, your employer will have a right to monitor your use of that computer. Many employers have policies which make this explicit.
Employers can also access your publicly published postings to web forums and social networking sites online. Because New Hampshire is an “at-will employment” state, your employer can even lawfully use what you post on such sites in making decisions about your employment.
The rules can be somewhat different for employees of government agencies, especially if the employer is monitoring the employee’s emails with an eye toward law enforcement activities. In some circumstances, such monitoring raises questions under the Fourth Amendment of the U.S. Constitution. The U.S. Supreme Court will soon be considering such a case, to decide what the limits are on government access to its employees’ electronic communications. The key question in such cases is whether the employee had a “legitimate expectation of privacy” in his or her communications. If the government employer has a specific policy putting the public employee on notice that his or her emails will be monitored, the answer to that question is usually going to be “no.” Such a policy puts the public employee in basically the same position as a private employee.
The moral of the story is simple: no matter who you work for, use discretion in what you put in emails and any other electronic communications, because you never know who else might be reading them.
Monday, December 14th, 2009
The process of divorce is difficult and painful for all involved, including the children. Recently, the divorced parents of a 10-year-old girl made headlines in New Hampshire newspapers. The former couple’s dispute involved homeschooling versus public school. The girl lives primarily with her mother, who home-schooled her daughter, until a court ordered that the girl attend public school. The girl’s home lessons included Bible study and other religious teachings.
In this case, the judge decided attending public school would be better for the girl. The court considered this outcome in the best interest of the child.
When disputes arise between divorced couples, especially involving children, it can set up a win-lose scenario. This sometimes means that children are caught in the middle of warring parents with a judge making a decision about the children.
Monday, December 14th, 2009
An Appeals Court in New Jersey recently issued an opinion that protected an employee from the employer’s attempt to use private e-mails sent from a personal e-mail account that was sent from a company computer. This case is a lesson to any employee anticipating a lawsuit against their employer. Be aware that the employer may try to use your e-mails against you in any future litigation. In this case, before the employee resigned and initiated her lawsuit, she sent e-mails using her personal, password-protected e-mail account. She accessed the e-mail and sent the e-mail from her company computer. After being notified of the employee’s lawsuit, the company’s lawyer reviewed the employee’s computer to discover her internet browsing history and discovered e-mails sent between her and her lawyer.
During the lawsuit, the employee’s attorney learned that the company’s lawyer had accessed and read the e-mails. The employee’s lawyer claimed that the communications were protected by the attorney-client privilege. The company argued that they were not protected or privileged because they were company property. The Court rejected the employer’s argument that e-mails were company property because they came from company computers. One of the lessons of this case is that employees need to be aware that employers will search for, mine for or try to discover any information that can be used against the employee. Clearly, if you are involved with or anticipate litigation against your employer, you should not be communicating with your lawyer through the company’s computer in order to ensure that your communications remain private. This issue also leads to broader issues of employer’s conduct in employment cases. This includes employer’s lawyers fishing through the internet to discover any social networking pages or blogs including Facebook or MySpace pages, that may contain information the company will try to use against you. Remember, once something is on your computer or the internet, it can be accessed by anyone and may be used against you – including your employer during litigation.
Monday, December 14th, 2009
The Catholic Diocese of Savanna, Ga agreed to settle a sex abuse claim involving a former priest for $4.2 million. The plaintiff, now a 40-year-old man, said he was molested by a priest starting when he was ten years old while a Catholic school student. The plaintiff claimed that the Diocesan officials knew that the priest posed a danger to children but failed to take action. Later, the priest was convicted for sexually abusing two boys.
Nationwide, the Catholic Church has paid tens of millions of dollars to settle these types of sexual abuse claims. These types of claims are a reminder that a sexual abuse victim can hold institutions accountable if they were aware of a danger posed to children but failed to take action or ignored warning signs.
Victims of childhood sexual abuse often face long-term injuries. The seriousness of childhood sexual abuse cannot be overstated because it can interfere with things like being able to work and develop relationships.
Monday, December 14th, 2009
Although age discrimination cases occur frequently in New Hampshire, the United States Supreme Court make it tougher for employees in age discrimination cases. Before the Court’s recent opinion, if an employee proved that age was a factor in an adverse employment action such as a demotion or layoff, the employer then needed to show that it acted against that employee for legitimate reason other than age discrimination. The new decision means that employees who have an age discrimination claim must demonstrate that age was the deciding factor. This change represents a significant hurdle to get over for victims of age discrimination. This decision makes it harder for victims of age discrimination to win age discrimination cases. The Court seemed to set up a different burden of proof for age discrimination cases than for race, sex, and religion discrimination cases.
Monday, December 14th, 2009
In a decision handed down on October 20, 2009, State v. Pepin, slip op. October 20, 2009, the New Hampshire Supreme Court refused to close the courthouse doors to prison inmates denied the right to effective assistance of counsel. This ruling ensures that improperly held inmates continue to have access to New Hampshire courts to challenge the effectiveness of representation received from their lawyers. Ineffective assistance of counsel claims remain difficult to litigate, but the court announced that it will not bar such claims.
Jeffrey Pepin was convicted of multiple crimes and sentenced to the New Hampshire State Prison. After his appeal was rejected, he filed a motion for a new trial on the grounds that he was denied his 6th Amendment right to effective assistance of counsel. The superior court ruled that his failure to raise certain arguments in his direct appeal prevented him from raising those arguments later in his habeas corpus claim. Relying in part on its decision in State v. Whittaker, 158 N.H. 762 (2009), a case successfully appealed by Douglas, Leonard & Garvey, P.C., the court held that even after an unsuccessful direct appeal, an inmate who was denied effective assistance of counsel may challenge his or her confinement either by filing a motion for a new trial or a habeas corpus petition.
Inmates seeking freedom on claims of ineffective assistance of counsel still face significant obstacles. However, the Supreme Court’s decision in the Pepin case at least means that inmates who received substandard legal representation can have the merits of their cases heard by a judge.
Friday, December 11th, 2009
There are many types of medical malpractice and these include wrong-site surgeries. Recently, a Rhode Island hospital was fined for performing a wrong-site surgery. Incredibly, it had been the 5th wrong-site surgery at that hospital since 2007.
Unfortunately, in New Hampshire, medical malpractice errors occur. This situation is a reminder that we, as patients, need to be vigilant and protect ourselves from medical malpractice errors even in a situation that seems as straight forward as operating on the correct body part.
Medical malpractice errors can have long-term impact on the victims and their family. The consequences of these errors can be permanent disability or even death. Although medical providers try to do their best, it is important for all of us to hold those medical providers responsible for their errors because it will help protect others from being victims of medical malpractice.
Tuesday, December 8th, 2009
In defending sexual harassment cases, employers try to use the conduct of the complaining employee against her in a sexual harassment or hostile work environment claim. Recently, the Massachusetts Supreme Judicial Court faced the interesting question in a sexual harassment case of whether certain conduct and comments by a complaining female employee can be used against her. Kimberly Dahms had filed a sexual harassment charge against a company’s Chief Financial Officer for creating a hostile work environment. The gist of her claim was that the CFO retaliated and undermined her position at work after she refused to date him.
In a hostile work environment claim, the employee must show that she was offended by the work environment. The employer claimed that Ms. Dahms was not “offended” because she was a willing participant in the sexualization of her work environment. The employer relied on that Ms. Dahms had apparently worn provocative clothing, told sexual and crude jokes at a company party and shared her sexual preferences to co-workers.
The Court said that evidence of Ms. Dahms language, apparel and conduct was evidence of whether she was actually offended by her work environment or invited the CFO’s attention. While it was proper for the jury to consider Ms. Dahm’s behavior in evaluating her hostile work place environment claim, evidence of her willing participation in sexualized behavior was admissible on whether she was in fact offended by the work environment.
The decision is a reminder that employers will try to use a female employee’s conduct against her in defending a sexual harassment claim for a hostile work environment. The internet and various blogs and social network postings by female employees are being used by the employer’s lawyers to find something negative or sexual about a female employee. Thus, your conduct, attire and joke telling at the office is a factor to consider as it may affect a sexual harassment case.
Sunday, December 6th, 2009
The goal of personal injury law is to have the person responsible for the accident fully compensate the accident victim for the injuries. There is no simplistic formula or mathematical calculation to determine the value of a personal injury claim. Instead, the lawyer must make this determination based on years of experience in handling personal injury cases. Looking at the types of damages suffered in an accident can help to understand the value of your claim. Damage awards can include the following:
• Medical Expenses
• Future Medical Expenses (if any)
• Pain and Suffering
• Lost Wages
• Impairment of Earning Capacity
• Emotional Distress
• Loss of Future Enjoyment of Life