Day on Torts

May 6, 2006

Personal Jurisdiction Over Lawyer

The Court of Appeals of Maryland has held that an Ohio lawyer who contracted over the telephone and by mail to perform legal services in Ohio for a Maryland resident could not be sued for professional negligence in Maryland.

Here is the summary of opinion as prepared by the Court:

“The Court considered here whether communicating alleg edly negligent legal advice to a Maryland resident via two telephone ca lls and two letters constitute sufficient minimum contacts to support personal jurisdiction by a Maryland court over an Ohio attorney under the Due Process C lause of the Fourteenth Amendment to the U.S. Constitution. Petitioner filed suit against Respondent, an attorney admitted to practice in Ohio, in the Circuit Court for Baltimore City alleging professional malpractice stemming from legal representation undertaken, and advice given, by Respondent to Petitioner by written and telephonic correspondence in 1985, 1986, and 1994 regarding the expungement of Petitioner’s Ohio juvenile records and the failure to expunge those records. Relying upon the Maryland longarm statute, ㋔㋔ 6-103(b)(1) and (3) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl. Vol.), Petitioner argued that Respondent established minimum contacts w ith Maryland to justify asserting p ersonal jurisd iction over him because harm caused by the alleged malpractice was experienced by Petitioner in Maryland.

May 5, 2006

Tort of Negligent Supervision of Minors

by The Law Offices of John Day, P.C.

The Kentucky Supreme Court has just released an opinion that discusses the elements of the tort of negligent supervision of a minor.

This is the law in Kentucky: “A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.”

The Court held that “It is not negligent supervision per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring. Parents owe no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know, or should know, of the need and opportunity to exercise such control and the parents have the ability to exercise such control. The mere fact that the parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others. The Fritz appellants have not presented any evidence to establish either that the Hugenbergs knew, or should have known, of a need to prevent Mikael from drinking and driving and of an opportunity to prevent him from doing so or that the Hugenbergs had the actual, physical ability to have prevented Mikael from drinking and driving on the evening of September 18, 1999. Therefore, summary judgment was properly granted on the negligent supervision claim.”

May 4, 2006

Death of a Homemaker

by The Law Offices of John Day, P.C.

A great new study that could provide for support for determining the value of the life of a homemaker.

A news article says this about the study: “A full-time stay-at-home mother would earn $134,121 a year if paid for all her work, an amount similar to a top U.S. ad executive, a marketing director or a judge, according to a study released on Wednesday. A mother who works outside the home would earn an extra $85,876 annually on top of her actual wages for the work she does at home, according to the study by Waltham, Massachusetts-based compensation experts Salary.com.”

May 3, 2006

Off Topic – Stephen Colbert’s Speech at the White House Correspondent’s Dinner

by The Law Offices of John Day, P.C.

Here is part one of the speech everyone has been talking about. Here is part two.

May 3, 2006

Joint and Several Liability Abolished in Florida

by The Law Offices of John Day, P.C.

Joint and several liability has been abolished in the State of Florida. Here is a copy of the bill, courtesy of Matt at Abstract Appeal.

May 2, 2006

Making a Record

by The Law Offices of John Day, P.C.

Here is another case out of our appellate courts that reminds us of the need to make a record.

Plaintiff failed to object to the introduction of certain medical records in a personal injury case. The defendant read excerpts of those records to the jury to establish the existance of a pre-existing condition. Citing Grandstaff v. Hawks, the Eastern Section of our Court of Appeals said “[o]bjections to the introduction of evidence must be timely and specific. … A party who invites or waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a timely and specific fashion precludes taking issue on appeal with the admission of the evidence.”

The Court found that Plaintiff did offer an objection to the method of introduction of the pre-incident prescription records of the plaintiff, i.e. a paralegal read from a summary of records from five different pharmacies. However, on this issue the Court used the familiar “abuse of discretion” rule to uphold the decision of the trial judge.

May 1, 2006

Collateral Source Rule Applies to Lawyers

by The Law Offices of John Day, P.C.

A lawyer was hurt in a wreck and received injuries that limited his work hours. He was a partner is a law firm and continued to receive his regular compensation despite his failure to work and bill the required number of hours. The judge did not permit the defendant to tell the jury that the lawyer received his normal compensation. The jury awarded money for lost of income and defendant appealed.

The California Court of Appeal affirmed, stating “[h]owever criticized, maligned or debatable the application of the collateral source rule may be in this case, it is not within our province to depart from established California law and we decline to do so.” The case includes a nice discussion of the public policy supporting the rule.

The case is Smock v. State of California, (A107532, A108413 Cal. Ct. App. 1st Dis., Div. 3 4/18/06). You can read it here.

April 29, 2006

Off This Weekend

by The Law Offices of John Day, P.C.

No posts this weekend. I haven’t taken a break for a while, and I have to work Sunday to prepare for an argument on a major motion Monday morning.

April 28, 2006

Death of Charlie Williams

by The Law Offices of John Day, P.C.

A great man and a great trial lawyer died on April 27, the day before his 62nd birthday.

Charlie Williams was a true believer in “the cause.” He used his passion for the law to help people in need. He cared about his community and served on many boards and commissions to improve the world around him.

I last spoke with Charlie two weeks ago Thursday afternoon. He called about an issue he had with a case and that grew in to a conversation about the state of our nation. The conversation ended with a discussion about his wonderful daughter and law partner, Annie B. Charlie was (rightfully) proud of his daugher; his face would glow whenever her name was mentioned.

April 27, 2006

“Error of Judgment” Rule in Legal Malpractice Cases

by The Law Offices of John Day, P.C.

The Kentucky Supreme Court has recently modified the law concerning the application of the “error of judgment” rule in legal malpractice cases.

In Equitania Insurance Conmpany v. Slone & Garrett, P.S.C., 2003-SC-1003-DG (2/23/06). The Court described the case as follows: “This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that she negligently advised them during the midst of the shareholder dispute. They claim that Garrett negligently failed to properly advise them as to how to retain control of the corporation; that the methods she advised violated the insurance code ; violated a fiduciary duty to shareholders; was unethical, and was substantially more expensive.”

The jury was given this instruction: