Archive for June, 2010
Wednesday, June 23rd, 2010
Recent revelations in Washington D.C. show just how fallible the breath test machines used by police to prosecute DWI cases can be. A consultant hired by the District found that every single one of the 10 breath machines used by the District were incorrectly calibrated. These inaccuracies caused the machines to show blood-alcohol content to be 20% higher than it actually was. “Nearly 400 people were convicted of driving while intoxicated in Washington D.C. since the fall of 2008 based on inaccurate results from breath test machines, and half of them went to jail….”
The Washington Post, June 10, 2010 http://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/AR2010060906257_pf.html
The errors arose out of an error made by a single police department employee, who made a mistake when replacing one of the motor pumps inside the notoriously complicated machines. A District probe has found no malicious intent on the part of the employee. The lack of malicious intent affords scant solace to those wrongfully convicted by the mis-calibrated machines, however. Those people lost their licenses, their jobs, and sometimes their freedom, based on incorrect breath machine readings.
Fortunately, the New Hampshire Supreme Court recently rejected an attempt by state authorities to eliminate one of the few protections available to New Hampshire drivers against this kind of error. In the most recent legislative session, state officials tried to remove the requirement that New Hampshire drivers be given a sample tube of their own breath that they can have tested at an independent lab. The Supreme Court found that the second sample tube provided to drivers was required in order to ensure fairness. That decision can be found here:
These developments in Washington, D.C. show how important it is for drivers who believe that their breath results are too high to contact an experienced lawyer to examine all possible defenses.
Thursday, June 17th, 2010
Bullying has unfortunately remained in the news over the last several weeks. Following the story out of Massachusetts about the high school student who committed suicide after being subjected to systematic bullying, comes news from right here in Concord, New Hampshire of another serious bullying episode, which resulted in the physical disfigurement of a high schooler.
In the most recent case, a Concord High School student submitted to having a group of bullies tattoo an x-rated image and derogatory name on his buttocks, following a period of bullying and threats. The teenager, who reportedly had a developmental disability, submitted to having the tattoo done in the basement of one of the bullies after he was told he would no longer be taunted and threatened if he complied with the bullies’ demands. Of course, he was still picked on even after giving the bullies what they wanted. They forced him to pull his pants down in front of a gathered crowd of onlookers so they could take pictures.
These stories demonstrate how out-of-control bullying can get, and the importance of early intervention to protect students from the irreversible injuries that can occur. In the Concord case, it remains to be determined what Concord High School knew or when it knew it, but the tattoo incident happened during school hours. That begs the question of what was the school doing to monitor these students’ whereabouts. Given that a crowd had gathered to take pictures of the tattoo after it was completed, the word had obviously gone out that it was going to happen, before it actually did happen.
In the wake of these recent tragic incidents, the New Hampshire legislature has enacted a substantially revised version of RSA 193-F, our State’s anti-bullying law. The new law is scheduled to go into effect on July 1, 2010. The new enactment provides for many changes to the existing anti-bullying scheme, some of which are positive, and a few of which are less so.
One very positive step is a comprehensive definition of what constitutes “bullying” under the law. Under the original version of RSA 193-F, bullying was essentially undefined, which meant that one school or one teacher’s understanding of what constituted “bullying” could differ from another’s. That naturally led to inconsistent application of the statute’s reporting and student protection provisions.
In addition, the new definition of “bullying” includes a description of “cyber-bullying,” bringing the statute into the 21st century. The revised RSA 193-F also makes it clear that its reach extends to bullying which occurs off school grounds, if the off-campus bullying creates disorder within the school or at school-sponsored events.
The new law also provides for more detailed requirements for school anti-bullying policies, and new reporting requirements, including a requirement that schools report all substantiated cases of bullying to the Department of Education, and that the Department of Education prepare an annual report concerning the number and types of bullying incidents that have occurred in New Hampshire schools. There are also new formal requirements for educator and student training on identifying and preventing bullying.
There is one new section of the law which could be viewed as a negative. While the new statute sets an admirable standard of conduct for schools and school officials to follow, it prohibits private enforcement of the act. Essentially, that means when a school or school official drops the ball and fails to meet the requirements of the revised RSA 193-F, the victim cannot sue under the new act to recover for the harm done. The new law ends up being something of a toothless tiger then, for the students who most need its protections. If the N.H. Department of Education follows in the footsteps of the Banking and Insurance departments, this new law may not get the vigorous enforcement it should, and average citizens will have no power to enforce it themselves.
However, in the event a student is harmed by bullying due to a school’s failure to intervene, the student can still bring a lawsuit under a common law tort claim like negligence or negligent supervision, or breach of fiduciary duty. Nonetheless, educational institutions would have the maximum incentive to strictly enforce the beneficial provisions of the new version of RSA 193-F if a private right of action was available to students who are injured on those occasions when educators fail to comply with the new act’s provisions.
Thursday, June 17th, 2010
According to the New York City newspaper The Village Voice, Former Citibank employee Debrahlee Lorenzana has sued the New York City bank claiming that she was fired from her position as a banker for being “too hot.”
See video here:
As Lorenzana’s lawsuit states, her bosses told her that “as a result of the shape of her figure, such clothes were purportedly ‘too distracting’ for her male colleagues and supervisors to bear.”
According to one of Lorenzana’s friends, “I’ve seen men turn into complete idiots around her. But it’s not her fault that they act this way, and it shouldn’t be her problem.” Lorenzana claims that other female employees wore more revealing clothes, but because they were not as physically attractive as she is, nobody criticized them.
Lorenzana says that the branch managers started making offhanded comments about her appearance. She was told not to wear fitted business suits. She should wear makeup because she looked sickly without it. (She had purposefully stopped wearing makeup in hopes of attracting less attention.) Once, she recalls, she came in to work without having blow-dried her hair straight—it is naturally curly—and Fisher told a female colleague to pass on a message that she shouldn’t come into work without straightening it.
Citibank does have a dress-code policy, which says clothing must not be provocative, but does not go into specifics, and managers have wide discretion. But Lorenzana points out that, unlike her, some of the tellers dressed in miniskirts and low-cut blouses.
Lorenzana claims that the managers gave her a list of clothing items she would not be allowed to wear: turtlenecks, pencil skirts, and fitted suits. And three-inch heels. “As a result of her tall stature, coupled with her curvaceous figure,” her suit says, Lorenzana was told “she should not wear classic high-heeled business shoes, as this purportedly drew attention to her body in a manner that was upsetting to her easily distracted male managers.” She says the managers told her to buy a looser-fitting wardrobe, but Lorenzana claims that she did not have enough money to replace all of her work clothes.
Lorenzana complained to Citibank’s human resources department, but she says that only made things worse. Management, she claims, retaliated against her for complaining.
Citibank says that the firing was based on poor performance, but Lorenzana claims that when the company fired her, they never mentioned her performance.
Lorenzana’s lawsuit is based on two claims: (1) that Citibank management created a sexually hostile environment by focusing on, and criticizing, her clothes; and (2) that the bank retaliated against her when she complained. Unfortunately for Lorenzana, her case will not be heard by a jury. As a condition of her employment she signed an arbitration agreement so the case will go through binding arbitration rather than a jury trial.
Wednesday, June 16th, 2010
Anyone reading the news online should know that video surveillance, whether in the form of security cameras, traffic cameras, or amateur videographers, is becoming ever more common in our society. Because you are more likely than ever to be on camera whenever you leave your house, it is important to be aware of that fact, and aware of how video surveillance can either help you or hurt you if you are involved in an incident with potential legal consequences.
A couple of recent news stories illustrate with clarity what can happen when you forget – or in the case of North Carolina Congressman Bob Etheridge, simply ignore – that you may be on videotape. Congressman Etheridge was captured on amateur video (from two different perspectives) assaulting a student who attempted to ask him questions on a Washington D.C. sidewalk. The video can be seen here: http://www.youtube.com/watch?v=_oqIP9yagkQ. It is not hard to imagine such evidence being compelling in a lawsuit.
Another example of amateur video shows a violent encounter between a resisting suspect and a Seattle Police Officer:
The video captures both the suspect and her friend attempting to resist the police officer’s attempt at taking the suspect into custody, and the officer’s subsequent use of “decisive” force against the friend. Again, it is obvious that this type of video footage would have a powerful impact – probably for both sides of the dispute – in court.
What does this mean for a typical New Hampshire citizen? While surveillance cameras are probably not yet as commonplace in the Granite State as in some of the larger metropolitan areas, they are becoming more common. At least a few cities in New Hampshire have installed traffic cameras, and they are routinely in and around private businesses. In addition, everyday citizens frequently carry video-capable electronic devices such as cell phones. This means your chances of being caught on film at the “moment of truth” are greater than ever, and increasing every day. It is certainly not an exaggeration to say that you should probably assume you are on film, and act accordingly, whenever you are out in public.
It is also important to remember that if you are involved in a personal injury situation, or any situation where litigation is a possibility, that evidence important to your case may be on video. That rule applies whether you are the one making the claim or the one defending against it. It is entirely possible that your car accident was captured on a traffic camera, or on the outdoor surveillance camera of a nearby business. It is just as likely that your slip and fall was captured by a camera within a business or a camera watching the parking lot.
Therefore, if you have the misfortune of being involved in an situation that might give rise to legal claims, try to remember to look around for possible sources of video evidence. When you talk to your lawyer, be sure to fill the lawyer in on any surrounding businesses or witnesses who might have video involving your case. The fact that surveillance camera videos often record over the previous day’s coverage is another reason to seek out an experienced attorney as soon as possible. An experienced attorney will recognize the value of such evidence at trial or mediation of your claim and will know how to obtain and preserve such evidence so that it can be to use on your behalf. Don’t be surprised when your lawyer asks you what businesses were in the area of your incident. If he or she is doing their job properly, they are looking for important evidence that too many people take for granted, but that an experienced trial attorney will use for your benefit.
Thursday, June 10th, 2010
This is a follow-up to our earlier article about school bullying. In some cases, bullying can go beyond the threats, taunts, and physical rough-housing, and take on sexually-motivated undertones. In cases where student-on-student harassment involves sex-based conduct, whether it is verbal or physical, and a school fails to put a stop to it after learning of it, the school may face civil liability under federal law.
Title IX of the U.S. Code, prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” Virtually all public schools receive federal funding of some type today, so they are generally bound by Title IX’s anti-discrimination requirement. Under Title IX, schools have a duty to prevent sex-based harassment of students once the school’s officials are notified of it. Failure to put a stop to sex-based bullying can result in significant financial liability for offending schools.
In a recent case in Michigan, a federal court jury awarded a bullied student $800,000 under the provisions of Title IX. The student in that case was subjected to four years of sexually-tinged bullying, including incidents in which he was subjected to repeated sexually-motivated insults, and one incident in which a naked bully rubbed himself against the victim in a locker room. School officials were aware of the problem, but were uncoordinated and ineffective in protecting the victim from his tormentors.
Title IX provides for a powerful remedy, in addition to state law civil liability, in those bullying cases where school officials are unwilling or ineffective in preventing sexually-charged bullying by students.
Thursday, June 10th, 2010
The recent divorce plans for Al & Tipper Gore after over 40 years of marriage reflect the fact that even long-term marriages can end up in divorce.
There are multiple sources of pressure in long-term marriage and one such stressor that can create later-in-life breakups are tensions related to adult children. Often one spouse gets overly involved with the adult children and worries about their happiness and economics while the other spouse may be at the stage of saying, “I’ve done my parenting I want to have my own life now. Let the kids figure it out.”
Other pressures can arise sometimes when people in their 60’s decide to do a career change or a location change. This can put stress on a long-term marriage that was used to the old relationship based on a prior job or location.
Statistically, folks are living longer and they are healthier but some couples become bored with each other after a few decades. The focus in their marriage moves from raising the children to an empty nest. When the kids leave, cracks in the long-term partnership may widen. This requires the couple to refocus on their relationship as being spouses, not just being parents.
The bottom line is that you can’t take your marriage for granted just because you’ve made it to 40 years of marriage you may if you want to make it to 60 years.