News Signs = Admission of Liability?

Three days after an alligator dragged Lane Graves to his death on a Disney property, signs were installed warning guests about alligators.  Additionally, barriers are being installed.

So, since Disney has started posting these signs, this is essentially tantamount to an admission that the warnings should have been in place earlier, right?  The law says, no, it is NOT an admission of liability.

The signs Disney has posted are what the law refers to as “subsequent remedial measures.” This means essentially repairing/remediating something AFTER someone gets hurt.  This is not admissible in Florida (and pretty much every other jurisdiction) to prove that someone is civilly liable.  Florida’s law states “Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence.”

The primary reason behind this law is the practical rule that society wants to encourage individuals, companies, and other entities to take steps to prevent further injuries. Allowing such evidence to be admitted in court will likely serve as a deterrent to parties from making the improvements in the first place if those changes will later be used against them in court.  There are additional legal theories that tie into the rules of evidence, but the public policy argument is the most crucial one.

So the question of whether or not Disney should have had these types of signs up BEFORE a 2-year-old was killed on its property is one that a judge or jury may end up deciding, although as our last blog post indicated, a huge settlement is the likeliest resolution.

Is Disney Legally Liable for the Alligator Attack

By now, most of you have read the tragic, heartbreaking story about the 2-year-old boy who was grabbed by an alligator and pulled into the water at Walt Disney’s Grand Floridian resort in Orlando.

One of the secondary questions that has likely been thought or discussed is, what liability, if any, does Disney have as result of this tragedy.

The law generally states that the “duty” (responsibility) owed by a landowner to a person, depends on that person’s legal status on the land.  For example, if someone is trespassing on your land, the duty you owe to them is much different from what you owe someone you’ve invited onto your property.

The Graves family (the boy’s family) would be considered an “invitee” on Disney’s property.  They were invited to be on the property and they paid to stay there.

Florida law says that the owner or operator of the property has to maintain it in a reasonably safe condition and correct or warn of the dangers that the invitee knew or should have known about and which the property owner did not or should not have known had they exercised reasonable care and diligence.   

Danny Cevallos, a legal analyst for CNN wrote an article discussing this issue.  He points out that “whether or not Disney fulfilled its duty to the child and his family doesn’t just depend on their status as “invitees.” It’s also determined by the legal status of the “hidden danger” — in this case, the alligator.” He goes on to explain an area of law that is not commonly discussed, known as “ferae naturae.”  He states that under this legal doctrine, Florida law does not require a landowner to anticipate the presence of harm from wild animals.   As with most rules, there are exceptions.  Cevallos gives the following example, “if a resort had an alligator on a leash tied to a pole in a petting zoo, that’s going to impose liability in a way that an alligator born free in a swamp adjacent to a hotel would not.”

The ferae naturae doctrine does not provide complete immunity to a property owner in a situation like this. Florida courts have held that landowners may still be liable if they “know or should know of an unreasonable risk of harm posed by an animal on their premises, and cannot expect patrons to realize the danger or guard against it.”

The liability for Disney in this tragic situation will depend on a lot of factors, including what, if anything, did Disney know about the presence of alligators in the lagoon and what warning, if any did they give their invitees?  Numerous articles have stated that there were no signs posted specifically regarding the presence of alligators.  These are all things the trier of fact (usually a jury, but sometimes a judge) would have to determine in a trial. However, the likely reality is that Disney will quietly pay a settlement to the family (likely a confidential amount) and this will never go to trial.

Exotic Dancers Should be Classified as Employees

The 4th Circuit Court of Appeals ruled that exotic dancers at two Maryland night clubs, Fuego Exotic Dance Club and Extasy Exotic Dance Club, were misclassified as independent contractors, when they were in fact employees.

Six dancers brought suit, alleging they were owed back wage and damages as a result of improperly being treated as independent contractors.

Ultimately , money is a strong motivation for employers to classify workers as independent contractors versus as employees.  Designating workers as independent contractors allows employers to not pay minimum wage or overtime, carry workers compensation coverage for the worker or pay for unemployment insurance for the misclassified workers.

Courts generally look at several factors that determine if a worker is an employee versus an independent contractor and the most crucial of these is the amount of control the employer exerts over the worker (i.e., dictate schedules, how the work is to be done, etc.).  The 4th Circuit found that the amount of control the clubs had over the Plaintiffs was enough to create an employer/employee relationship.   Judge Wilkinson III noted in the Court’s opinion, “The clubs insist they had very little control over the dancers. Plaintiffs were allegedly free in the clubs’ view to determine their own work schedules, how and when they performed, and whether they danced at clubs other than Fuego and Extasy. But the relaxed working relationship represented by defendants — the kind that perhaps every worker dreams about — finds little support in the record.”

What’s Next in Baltimore?

So far, Baltimore’s State’s Attorney and top prosecutor, Marilyn Mosby and her office have tried two police officers in connection with the death of Freddie Gray and have failed to secure a conviction in either case.  The first case against Officer William Porter ended in a hung jury, and on Monday, May 23, 2016, Judge Barry Williams acquitted Officer Edward Nero.

Critics of Ms. Mosby point to these two cases and argue that it’s proof that there was no basis to charge any of the six officers in the death of Freddie Gray.  Proponents of Ms. Mosby point to the fact that she kept good on her campaign promise to fight police misconduct.

The approach taken by Ms. Mosby’s office in the trial of Officer Nero has come under criticism as well.  Prosecutors essentially argued that the arrest of Mr. Gray was in and of itself, a crime. However, the prosecution’s “star witness”, Officer Garrett E. Miller, who was compelled (forced) to testify and is also facing charges himself, exonerated Officer Nero through his testimony.

The next trial is that of Officer Caesar Goodson, Jr., scheduled to start on June 6.  Ms. Mosby’s office has five more trials (her office has indicated that Officer Porter will be tried again) to either prove her critics wrong and show that she did the right thing or to prove them right and face the strong likelihood of not being re-elected if she chooses to run in 2018.

Possible New Overtime Rules On the Horizon

Under the Fair Labor Standards Act, approximately 5 million employees that are currently exempt will become eligible for overtime unless their salary is raised.  The current exemptions that will be affected are the “white collar” and the “highly compensated employee” exemptions.

The proposed rules propose to increase the salary level for “white collar” exemptions from the current minimum $23,660.00 per year a year up to approximately $50,440.00 per year.  The proposed rules impact the “highly compensated employee” exemptions by increasing the annual compensation level from $100,000.00 to $122,148.00. However, the “white collar” exemption likely has the potential to impact businesses the most.  Here are five things businesses can start doing now to prepare (as taken from http://www.foxbusiness.com/politics/2016/04/18/as-new-overtime-rules-near-businesses-need-to-prepare.html)

1. Check State versus Federal Regulations

Each state may enact regulations that differ from federal regulations. Businesses will be subject to whichever set of directives is more generous to employees.

2. Classify Employees by Salary

Employees making over the threshold amount may be exempt from overtime if their job duties primarily involve executive, administrative or professional duties, as defined under the regulations. Make a list of the employees whose salaries do not exceed the threshold because they may be entitled to receive overtime once the changes are enacted.

3. Calculate Employee Hours

Identify exactly how many hours per week each employee works.  If a previously exempt employee made $26,000 annually under the old rules, and actually worked 40 hours per week, then you can convert that salary into an hourly rate equal to their pay, or $12.50 per hour. Monitoring those employees’ work hours proactively with threshold reports and/or scheduling tools may help manage overtime costs or ensure that any work exceeding 40 hours per week is paid at the appropriate overtime rate.

4. Consider Changes to Salaries

Consider a different strategy for employees who make less than the proposed salary threshold, who were previously exempt from overtime and who typically work more than 40 hours per week.  You could raise these employees’ base salaries to at least the exemption threshold.  To determine if this is a more cost-effective approach, calculate the increased salary and compare it to the estimated overtime costs that would otherwise apply.

5. Monitor Overtime

Examine the ebbs and flows of your business and think about seasonal fluctuations.  You may find it’s more cost-effective to hire additional full-time, part-time or even temporary employees.  Or you may want to consider implementing an automated scheduling solution to help manage labor costs.

One final consideration – this rule change was endorsed by the Obama administration, and heavily backed by the Democratic legislators, as such, pundits are offering the opinion that it is possible that any finalized rules and changes could be repealed if a Republican win the White House this fall.

 

Truth is Stranger Than Fiction

A Frederick, Maryland man robbed a local Wal-Mart.   The weapon he used – a BB gun he had stolen previously from the same Wal-Mart.

The suspect, made off with approximately $1,700.00 from the store.  A K-9 officer and handler led deputies to a location near the store, where investigators found a backpack, the BB gun and a trespassing notification that was served by the Frederick County Sheriff’s office in February on Nicholas Wayne Keyian.

Security personnel from Wal-Mart remembered Keyian from a number of thefts from the same store during the previous months, including one the day before the robbery, in which the BB gun was allegedly stolen.  Keyian was also recognized as the suspect in a theft dating back to March, in which several electronic items were stolen from the store.

Not surprisingly, Keyian was arrested in connection with the robbery and charged accordingly and was being held in the Frederick County Adult Detention Center.  According to court documents, his bail was set at $100,000.

The Over Prescription of Opiates

The use and prescription of opioid medications has significantly increased in the United States.

By 2010, the United States, with about 5% of the world’s population, was consuming 99% of the world’s hydrocodone (the narcotic in Vicodin), along with 80% of the oxycodone (in Percocet and OxyContin), and 65% of the hydromorphone (in Dilaudid).

As narcotics prescriptions surged, so did deaths from opioid overdoses—from about 4,000 to almost 17,000. Studies have shown that patients who receive narcotics for chronic pain are less likely to recover function, and are less likely to return to work.

This increase has been noted by workers’ compensation insurance carriers and the Maryland Workers’ Compensation Commission.  A seminar was recently held in Maryland that involved input from Maryland Workers’ Compensation Commissioners.

A push has been in place for years now, particularly in the setting of workers’ compensation cases, to prescribe non-narcotic pain management and the research seems to support this as a viable option for individuals who need ongoing pain management.

http://www.usatoday.com/story/news/2016/03/15/cdc-issues-new-guidelines-opiate-prescribing-reduce-abuse-overdoses/81809704/

Maryland Judge Sentenced to Probation

If you’ve ever appeared in front of a judge, especially if you’re not an attorney, it can be a little intimidating. However, one Maryland judge took things a bit too far.

Judge Robert C. Nalley, a former Charles County Circuit Court judge, pleaded guilty in February of 2016 to charges that he violated the civil rights of a criminal defendant when he ordered a deputy sheriff to physically shock the defendant, who was wearing a “stun-cuff” at the time.

On July 23, 2014, Nalley was presiding over the jury selection of Delvon King who was representing himself on gun charges.  Nalley asked King whether he had any questions for the potential jurors and rather than ask a question, King began reading from a written statement, during which time he questioned the Court’s jurisdiction over him.  King purported to hold a belief that he was a sovereign citizen.

Self-proclaimed sovereign citizens often adopt the position that they are accountable only to their personal interpretation of the common law and are not subject to any statutes or proceedings at the state or federal levels.

King refused an order from Nalley to stop and it was at that time that Nalley ordered King to be shocked.  King was later found guilty on the criminal charges.

Nalley was sentenced today in federal court and was ordered to take anger management classes and was also given a $5,000.00 fine and a year of probation.

Hulk Hogan’s $115 Million Verdict

You’ve likely seen by now that Hulk Hogan was awarded a huge verdict against Gawker.  The verdict is an impressive number, but how soon can Hogan expect to get the money, and ultimately, how much will he get?

The jury awarded $50 million for economic injuries and $60 million for emotional distress. The parties will return to court on March 21 to see if the jury awards punitive damages. The $50 million portion of the verdict is for actual out-of-pocket expenses (past or future) that Hogan was able to prove.  The $60 million was for the non-economic portion of the case, or Hogan’s emotional distress.  Many jurisdictions, including Maryland, have a cap on the amount of non-economic damages a party can recover.   So for example, if that same jury award had happened in Maryland, the emotional distress award would have been reduced to between $755,000.00 – $770,000.00.  However, Florida does not have a cap on non-economic damages, so the $60 million is not subject to the immediate reduction.

Punitive damages are damages designed to punish the defendant in a civil suit.  In Hogan’s case, under Florida law, in order for the jury to award punitive damages, it has to find that Gawker was guilty of intentional misconduct or gross negligence.  There is no cap on punitive damages.

Gawker will be entitled to an appeal when this case is concluded wherein it can argue that the trial court made a legal error in the interpretation and/or application of the applicable law. However, under Florida law, if a defendant in a civil case files an appeal, they have to post a bond that covers the judgment.  This bond is capped at $50 million.  Florida also allows post-judgment interest at approximately 5%.  For Gawker, it will likely be more cost-effective to file an appeal, post a bond for less than half of the judgment, and attempt to negotiate a settlement with Hogan and his attorneys while the appeal is pending.

It’s possible that Hogan and his attorneys will settle for a figure lower than the jury’s final verdict (also keep in mind that Hogan’s attorneys are likely entitled to legal fees between 35-40% of the final judgment or settlement amount, plus repayment of expenses and costs paid by the attorneys).  There is something to be said for walking away with a guaranteed settlement versus facing the possibility of an appellate court reversing the trial court and remanding it for a new trial.  Just because this jury has found in Hogan’s favor, it does not mean a second jury will.

There is also the possibility that Gawker could file for bankruptcy, which would have the likely effect of staying any ability on Hogan’s part to enforce and collect on the judgment.

So, we’ll have to wait and see what Hulkamania is going to do.