On Feb 9, 8:00 am, "royzim" <royzi...@comcast.net> wrote:
> Here's one of those few legal questions where the answer may be
> shorter than the question. I suspect there's a clear-cut answer but,
> so far, I can't find it on the internet.
Where gobs of money and contentious relatives are concerned, the answer is almost always "maybe." Just ask Anna Nicole Smith.
This is also one very good reason not to include narrowly worded specific bequests like the one you discuss, in a Will. IMO it's petty and unnecessary for a testator to do that with fungible, nontangible property of no sentimental value, although it may make sense with heirloom items like Grandma's wedding ring, a stamp collection, etc.
I also feel that,.other than to ensure that herlooms wind up going to the person testator wants to have them, such specific bequests are best used for various legatees whom testator wants to specially favor in a direct way but not for the residuary bequest (which is usually the largest hunk of estate assets) to testator's primary heirs, especially if those are her children. Is the 500 shares _all_ she gave to Junior? What did his other siblings (if any) get? Or did she just want to give him that stock as a token, leaving the bulk of her estate to the National Endowment for the Arts or something?
AFAIC, stock is money, period. Mom could bequeath $x to Cousin Ned and it wouldn't matter whether that was in the form of BP stock, Amalgamated Buggy Whips, or cash greenbacks. Ned could then go out and buy on the open market the same amount of stock as if he were given it directly. Moreover, he can pick for himself which companies he wants to invest in.
Of course there are capital gains tax consequences to sale of stock, and the legatee is normally entitled to a stepped up basis as of testator's date of death, but IIUC (and I am NOT a tax lawyer) the estate would be too, if the executor just sold the stock and converted it to cash and then paid the legatees in cash or equivalent.
One other reason testators may bequeath specific stock is that, as in your case, they may write the will long before they die, and a bequest which seemed generous at the time (say, $1000, or even $10,000) may be a drop in the bucket these days, barely enough for a month's groceries. Since stocks typically appreciate in value faster than inflation, this is one way of providing that testator's special gift to her favorite niece will still have real value when it comes time to execute the Will. But again, those shares in Consolidated Whale Oil, or some 1990's dotcom for that matter, could be worthless by the time testator dies. Much better IMO to simply review and revise the Will every few years to make sure a bequest still accomplishes what testator really intended. But that's just me.
> The mother of a friend of mine recently passed away. In her will,
> written in 1984, she left my friend 500 shares of Standard Oil of
> Indiana stock.
[500 1984 shares, renamed Amoco, became 1,000 in 1989, then 2,000 shares in 1998 as a result of 2-for-1 splits; BP then bought out Amoco in a 1.3233 stock trade]
> I know that the 500 shares of Amoco have become 662 shares of BP in
> the acquisition, but my question is this: Should the two stock splits
> of Amoco be included in the calculation of the number of BP shares to
> be given to my friend?
Normally, the property included in a testamentary estate.is determined as of the date of death of the testator. But since Amoco doesn't exist as a company anymore, if there is a legatee (such as your friend) who wants to contest that interpretation of the Will, a court would have to decide what the testator originally intended. It could be argued both ways.
> In other words, should the will be interpreted
> to mean 500 shares at the time of her death (662 shares of BP) or
> today's equivalent of 500 shares at the time the will was drafted
> (2,647 shares of BP after factoring in the two Amoco splits)?
Obviously, your friend would be best served by arguing for the latter interpretation. But he should be prepared to hire a lawyer to defend that view in court since it is unlikely the other legatees would just roll over and agree.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Wednesday, August 8, 2012
Suicide jump from roof of hotel
On Feb 8, 5:11 am, "John A. Weeks III" <j...@johnweeks.com> wrote:
> In article <diijs2dqgpv2bteg9kg8qmis3rms282...@4ax.com>,
> "John Smith" <n...@hotmail.com> wrote:
[OP's teen son killed self by jumping from roof of hotel]
> > I do not want blood money, but I have to do something to stop this.
First of all, condolences to OP on your loss. This must be a difficult time for your whole family.
> > I also want that manager fired
Bad publicity (or avoidance thereof) may drive the hotel higher-ups to do so, but IMO you as parent of a suicide victim have no legal right to force them to do so.
> > Do they have legal liability in this case where
> > after a number of suicides they have taken no action to close off access to
> > their roof,
That's a great big "maybe". Rather than taking anyone's word for it in a mere usenet discussion forum, OP, _please_ make an appointment to consult with a local personal injury lawyer. John Weeks' reply presents one side of the argument, and he may well prove right in the end; but don't give up without even trying. There have been plenty of successful examples of suits against those who provided the means a suicide used to kill himself, and I can think of at least 2 reasons why the hotel owners may be liable for their unguarded, unprotected roof: the doctrine of "attractive nuisance", and the general tort duty of reasonable care to minimize the danger and.or at least provide warnings in a dangerous *(artificial) location.
* (The duty arises where the landowner _creates_ the nuisance, not where it exists naturally. There is no duty to put a fence around every natural pond or a railing on every cliff. But the dangers that the owner/builder should anticipate being created by an artificial improvement to the land are another matter.)
An "attractive nuisance" refers to a dangerous, non-natural location or object that the owner knows (or should know) is likely to attract people with more curiosity than brains -- usually young children -- who will foreseeably get themselves into trouble using that instrumentality unless precautions are taken. Thus, e.g. if you leave a bulldozer overnight in a field near a shopping center or school, but don't disable it from being operated (e.g. by removing the key, or doing something else if it doesn't have a key) you may be liable to the family of the kid who got hurt when he, or another kid, started it up. And if you have a drainage pond or, quite commonly, a swimming pool, but fail to put a gated fence around it to prevent young'uns from wandering over and falling in, you can be held liable. If this hotel roof is widely known in the area as an attraction to youths who go up there to party, the hotel may well be found liable if it failed to take reasonable precautions to prevent falls.
Your lawyer may need to hire an expert to establish the standard of care that a business such as this hotel ought to follow, in regard to edge-of-roof protection and other precautions. It is quite standard in the industry for e.g. bridges with pedestrian walkways to include fencing that curves back in over the sidewalk to prevent suicides from climbing over and jumping, and railings or parepets should be provided around the edge of the roof extending up to at least a certain height, etc. These may not prevent a determined suicide but do make it harder, and that may be all the standard of care requires; thus it may prevent _most_ suicides as well as many accidental deaths from falls off an inadequately protected roof.
> > and can I sign a paper in advance that I want any proceeds from
> > a lawsuit to go to an organization that works to prevent teen suicides?
You ought to talk to the lawyer you hire, about that. For various legal reasons, including your right to pursue the claim, and tax consequences, it may or may not be a good idea to do that in advance. Certainly you have a right to give away the money to such a charity AFTER you win a verdict.
> > What legal liability do they actually have?
Only a jury can decide that, based on all the evidence. Don't prejudge it; hire a lawyer and take his advice.
> What would the legal liability be for? Excessive altitude? While
> your son's death was tragic, a person who is determined to end their
> life is going to find a way to do it. The building just happened
> to be one method.
Mr. Weeks, let me give you an analogy Let's say you have a friend who is suicidal, or, like the hotel, you know (based on past jumpers) that suicidally inclined people may frequently come to your place to "do it". Getting back to the individual with a depressed friend, do you think you have no liability if you say, "here, I've got a Smith & Wesson, why don't you take that and use it?" Or if you hand him the rope he then uses to hang himself?
It is not illegal to have a gun, or a rope, or a high building. But it may produce tort liability if you know that someone may use that legal instrumentality to kill himself and you nevertheless make it easy for him to do it.
Now, there may be a differnce between actively providing the means, and simply failing to place roadblocks in the path of someone who you know wants to access your roof to jump from. But if the state of knowledge of the defendant is the same, liability _may_ attach to either an action OR an omission where circumstances create a duty to act.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In article <diijs2dqgpv2bteg9kg8qmis3rms282...@4ax.com>,
> "John Smith" <n...@hotmail.com> wrote:
[OP's teen son killed self by jumping from roof of hotel]
> > I do not want blood money, but I have to do something to stop this.
First of all, condolences to OP on your loss. This must be a difficult time for your whole family.
> > I also want that manager fired
Bad publicity (or avoidance thereof) may drive the hotel higher-ups to do so, but IMO you as parent of a suicide victim have no legal right to force them to do so.
> > Do they have legal liability in this case where
> > after a number of suicides they have taken no action to close off access to
> > their roof,
That's a great big "maybe". Rather than taking anyone's word for it in a mere usenet discussion forum, OP, _please_ make an appointment to consult with a local personal injury lawyer. John Weeks' reply presents one side of the argument, and he may well prove right in the end; but don't give up without even trying. There have been plenty of successful examples of suits against those who provided the means a suicide used to kill himself, and I can think of at least 2 reasons why the hotel owners may be liable for their unguarded, unprotected roof: the doctrine of "attractive nuisance", and the general tort duty of reasonable care to minimize the danger and.or at least provide warnings in a dangerous *(artificial) location.
* (The duty arises where the landowner _creates_ the nuisance, not where it exists naturally. There is no duty to put a fence around every natural pond or a railing on every cliff. But the dangers that the owner/builder should anticipate being created by an artificial improvement to the land are another matter.)
An "attractive nuisance" refers to a dangerous, non-natural location or object that the owner knows (or should know) is likely to attract people with more curiosity than brains -- usually young children -- who will foreseeably get themselves into trouble using that instrumentality unless precautions are taken. Thus, e.g. if you leave a bulldozer overnight in a field near a shopping center or school, but don't disable it from being operated (e.g. by removing the key, or doing something else if it doesn't have a key) you may be liable to the family of the kid who got hurt when he, or another kid, started it up. And if you have a drainage pond or, quite commonly, a swimming pool, but fail to put a gated fence around it to prevent young'uns from wandering over and falling in, you can be held liable. If this hotel roof is widely known in the area as an attraction to youths who go up there to party, the hotel may well be found liable if it failed to take reasonable precautions to prevent falls.
Your lawyer may need to hire an expert to establish the standard of care that a business such as this hotel ought to follow, in regard to edge-of-roof protection and other precautions. It is quite standard in the industry for e.g. bridges with pedestrian walkways to include fencing that curves back in over the sidewalk to prevent suicides from climbing over and jumping, and railings or parepets should be provided around the edge of the roof extending up to at least a certain height, etc. These may not prevent a determined suicide but do make it harder, and that may be all the standard of care requires; thus it may prevent _most_ suicides as well as many accidental deaths from falls off an inadequately protected roof.
> > and can I sign a paper in advance that I want any proceeds from
> > a lawsuit to go to an organization that works to prevent teen suicides?
You ought to talk to the lawyer you hire, about that. For various legal reasons, including your right to pursue the claim, and tax consequences, it may or may not be a good idea to do that in advance. Certainly you have a right to give away the money to such a charity AFTER you win a verdict.
> > What legal liability do they actually have?
Only a jury can decide that, based on all the evidence. Don't prejudge it; hire a lawyer and take his advice.
> What would the legal liability be for? Excessive altitude? While
> your son's death was tragic, a person who is determined to end their
> life is going to find a way to do it. The building just happened
> to be one method.
Mr. Weeks, let me give you an analogy Let's say you have a friend who is suicidal, or, like the hotel, you know (based on past jumpers) that suicidally inclined people may frequently come to your place to "do it". Getting back to the individual with a depressed friend, do you think you have no liability if you say, "here, I've got a Smith & Wesson, why don't you take that and use it?" Or if you hand him the rope he then uses to hang himself?
It is not illegal to have a gun, or a rope, or a high building. But it may produce tort liability if you know that someone may use that legal instrumentality to kill himself and you nevertheless make it easy for him to do it.
Now, there may be a differnce between actively providing the means, and simply failing to place roadblocks in the path of someone who you know wants to access your roof to jump from. But if the state of knowledge of the defendant is the same, liability _may_ attach to either an action OR an omission where circumstances create a duty to act.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Statutory presumptions and statutory rape, cntd.
On Feb 6, 7:26 am, b...@nyx.net (Barry Gold) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >{WRT evidentiary presumptions] we know that a
> >certain combination of facts is enough to infer more likely than not
> >that a certain other, needed-to-be-proven fact exists. And just to be
> >extra clear, I am talking mainly about rebuttable presumptions --
>
> Ah. There I have no problem. My problem is with absolute
> presumptions. And the particular case at issue _did_ in fact involve
> such an absolute presumption, namely that because the perp exchanged
> drugs for sex, there was a presumption that she didn't consent (or at
> least, that her consent didn't count for legal purposes).
Upon further reflection, maybe we _are_ talking about 2 different things. There is, on the one hand, the concept of evidentiary presumptions, generally rebuttable, which have the net effect of shifting the burden of proof onto the party disfavored by the presumption. And OTOH there are SUBSTANTIVE rules of law that rely on bright-line tests. IMO the misunderstanding we are having arises because you object to certain acts being statutorily criminalized by a bright-line test, but are looking at it more as a matter of what evidence is presumed irrelevant to a defense rather than focusing on the nature and elements of the act charged -- the substantive law -- which is what makes certain facts relevant or not in the first place. Consent is irrelevant to the sex acts under discussion simply because lack of consent is not a substantive element of the charged offense.
IMO, evidentiary presumptions are not only common, they are part and parcel of virtually every actual dispute, since for each disputed issue, one party or the other has to persuade the factfinder and therefore win (unlike in mediation, there is no "middle ground" in litigation) by the required standard of proof (beyond reasonable doubt, clear and convincing, or a mere preponderance). There is one party or the other whom the law considers to win by default if the other party fails in its burden of evidentiary proof. That's why those accused of criminal acts are presumed innocent until proven guilty BARD, why libel suits against media by a public figure are nonstarters unless the celebrity can prove malice by clear and convincing evidence, and why the verdict in a "he said, she said" civil dispute invariably is handed to the defendant if the factfinder has no way to break a 50-50 tie and be persuaded by a preponderance (51% or more). Beyond that, everyone is presumed to know the law; one is presumed to intend a result if one knows or should know with reasonable certainty that it will occur; and so on. Grounded party in human psychology, partly in logic, and mostly in social policy based on what worked in previous cases (stare decisis), such rules are the meat and potatoes of law.
OTOH we have the 2 kinds of sex offenses at issue in this thread: the original case, involving a statute creating something analogous to a felony murder rule when a sex act occurs during the commision of another felony -- let's call that the "felony rape rule"; and, as Barry has brought up in the latter part of this thread, statutory rape (presumed lack of consent) where the "victim" (his quotes, not mine) is a child of tender years (the exact "age of consent" to participating in sex varying as it does from state to state and also in relation to the age of the other participant, the potential defendant). In both of these examples, we are dealing with a rule of SUBSTANTIVE law more than a mere evidentiary presumption. The reason why consent of the underage participant is not a defense to the crime of statutory rape is that LACK of consent is not a substantive element of the crime charged and thus is irrelevant to the state's proving whether the defendant knowingly and willingly committed the prohibited act, i.e. having sex with a minor.
As with evidentiary presumptions, this is also an area where social policy is largely in play, but it is a different animal. The debates and choices over whether prohibiting a certain act were a good idea or not took place, or should have taken place, in the legislature BEFORE a statute was passed. One can imagine, for instance, such a debate occurring over whether the rules of the road should require that all drivers keep to the right of the roadway, or to the left. The choice may be completely arbitrary; but once it is made, violation of the rule is a crime. Likewise with a statute such as the ones criminalizing statutory rape (note well the "statutory" part, since if all we were talking about was COMMON LAW rape involving an alleged victim who happened to be a minor, then lack of consent WOULD be a defense. The legislature, perhaps not liking the precarious position in which such iffy prosecutions left their (and their constituents', since getting re-elected is every legislator's first priority) young daughters, made it a hard-line rule: no sex with minors below a certain age, period. Once they made that rule, that was the law, and as anyone who has ever referred to sexually precocious children as "jail bait" (i.e. virtually every potential statutory rapist) knows, this IS a bright-line test, which one crosses only at one's extreme peril.
Now, one may possibly argue -- as you apparently do below -- that in some cases, sex with a minor may not be immoral, and should not be criminalized, so that therefore the defendant should be allowed to raise all the same defenses -- including that of the victim's consent to the act -- which are allowed at common law rape prosecutions. But those are arguments that are properly directed to the legislature, either when they are contemplating passage of such a statute or in an effort to repeal an undesirable statute -- rather than to the prosecution of individual cases.
> And the above argument is why I suggested we should substitute a
> rebuttable presumption, or at least require testimony by the alleged
> victim that he/she really _was_ victimized. I would probably favor
> making the standard of proof as easy as that, but I _would_ require
> that the "victim" not be a willing participant.
Although it is tempting to make a straw man out of this argument, seeing it as simply an apologia for pedophiles who want a legitimate exception to the law so they can engage in child sex with willing participants, in all kindness I will not attribute that motivation to you. I understand that where you are coming from is a strongly libertarian philosophy that holds the best government to be the least government consistent with its primary purpose of protecting public safety, and that the law should simply keep its nose out of the "vice" field, de-criminalizing all kinds of "victimless" crimes such as drugs, consensual sex acts, gambling, etc. as well as get out of the business of regulating things like racial and other discrimination in housing and employment, consumer product safety, public health matters such as alcohol, tobacco, transfats, and vehicular emissions, protection of endangered species and ecosystems against development, regulation of markets with protective tarriffs and subsidies as well as disclosure rules and anti-fraud and antitrust laws, and virtually everything else government does except the police and the military. But the plain fact is, all these other areas of law grew over decades because one or the other person's ox was being gored with no apparent legal recourse, the people concerned lobbied the lawmakers to "do something about it", and they did, so it is now the law. And the real "victim" which ALL criminal laws seek to protect is SOCIETY as a whole, not the individual complainants, who indeed also have all their civil remedies available against the perp to get _personal_ rights vindicated.
Taking just statutory rape as an example, society feels that ON BALANCE, so much bad stuff is associated with child sex that it should just be prohibited outright, rather than diddling around with consent issues, whether the indivudal child at issue was really "harmed" or not, and so on. This is basically the same reasoning that led to criminzlization of other so-called "victimless" crimes like drugs, prostitution, and gambling. You can argue that criminalizing such acts creates more problems than it solves; some of us here may agree with you on one or the other of these areas. But the legislature clearly DOES have Constitutional power to criminalize such acts with bright-line tests if they bear _some_ rational relation to a legitimate government goal, in which the only intent that need be shown is the intent to do the act, not the intent to cause any harm or even to show that actual harm did occur from the particular act. And, I simply cannot see the "unfairness" you allege in such a situation, since the statutory bright-line rule IS known in advance and, being a bright-line test, it's not as though it creates a "trap for hte unwary" or something which a person may wander across inadvertently.
Some laws incorporate a substantive bright-line test, like "don't cross the double yellow line" or "don't have sex with minors". Others don't. If you want to eliminate the bright-line rules created by statutory law, complain to your legislature. All the cops and courts are doing is enforcing the law as written.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >{WRT evidentiary presumptions] we know that a
> >certain combination of facts is enough to infer more likely than not
> >that a certain other, needed-to-be-proven fact exists. And just to be
> >extra clear, I am talking mainly about rebuttable presumptions --
>
> Ah. There I have no problem. My problem is with absolute
> presumptions. And the particular case at issue _did_ in fact involve
> such an absolute presumption, namely that because the perp exchanged
> drugs for sex, there was a presumption that she didn't consent (or at
> least, that her consent didn't count for legal purposes).
Upon further reflection, maybe we _are_ talking about 2 different things. There is, on the one hand, the concept of evidentiary presumptions, generally rebuttable, which have the net effect of shifting the burden of proof onto the party disfavored by the presumption. And OTOH there are SUBSTANTIVE rules of law that rely on bright-line tests. IMO the misunderstanding we are having arises because you object to certain acts being statutorily criminalized by a bright-line test, but are looking at it more as a matter of what evidence is presumed irrelevant to a defense rather than focusing on the nature and elements of the act charged -- the substantive law -- which is what makes certain facts relevant or not in the first place. Consent is irrelevant to the sex acts under discussion simply because lack of consent is not a substantive element of the charged offense.
IMO, evidentiary presumptions are not only common, they are part and parcel of virtually every actual dispute, since for each disputed issue, one party or the other has to persuade the factfinder and therefore win (unlike in mediation, there is no "middle ground" in litigation) by the required standard of proof (beyond reasonable doubt, clear and convincing, or a mere preponderance). There is one party or the other whom the law considers to win by default if the other party fails in its burden of evidentiary proof. That's why those accused of criminal acts are presumed innocent until proven guilty BARD, why libel suits against media by a public figure are nonstarters unless the celebrity can prove malice by clear and convincing evidence, and why the verdict in a "he said, she said" civil dispute invariably is handed to the defendant if the factfinder has no way to break a 50-50 tie and be persuaded by a preponderance (51% or more). Beyond that, everyone is presumed to know the law; one is presumed to intend a result if one knows or should know with reasonable certainty that it will occur; and so on. Grounded party in human psychology, partly in logic, and mostly in social policy based on what worked in previous cases (stare decisis), such rules are the meat and potatoes of law.
OTOH we have the 2 kinds of sex offenses at issue in this thread: the original case, involving a statute creating something analogous to a felony murder rule when a sex act occurs during the commision of another felony -- let's call that the "felony rape rule"; and, as Barry has brought up in the latter part of this thread, statutory rape (presumed lack of consent) where the "victim" (his quotes, not mine) is a child of tender years (the exact "age of consent" to participating in sex varying as it does from state to state and also in relation to the age of the other participant, the potential defendant). In both of these examples, we are dealing with a rule of SUBSTANTIVE law more than a mere evidentiary presumption. The reason why consent of the underage participant is not a defense to the crime of statutory rape is that LACK of consent is not a substantive element of the crime charged and thus is irrelevant to the state's proving whether the defendant knowingly and willingly committed the prohibited act, i.e. having sex with a minor.
As with evidentiary presumptions, this is also an area where social policy is largely in play, but it is a different animal. The debates and choices over whether prohibiting a certain act were a good idea or not took place, or should have taken place, in the legislature BEFORE a statute was passed. One can imagine, for instance, such a debate occurring over whether the rules of the road should require that all drivers keep to the right of the roadway, or to the left. The choice may be completely arbitrary; but once it is made, violation of the rule is a crime. Likewise with a statute such as the ones criminalizing statutory rape (note well the "statutory" part, since if all we were talking about was COMMON LAW rape involving an alleged victim who happened to be a minor, then lack of consent WOULD be a defense. The legislature, perhaps not liking the precarious position in which such iffy prosecutions left their (and their constituents', since getting re-elected is every legislator's first priority) young daughters, made it a hard-line rule: no sex with minors below a certain age, period. Once they made that rule, that was the law, and as anyone who has ever referred to sexually precocious children as "jail bait" (i.e. virtually every potential statutory rapist) knows, this IS a bright-line test, which one crosses only at one's extreme peril.
Now, one may possibly argue -- as you apparently do below -- that in some cases, sex with a minor may not be immoral, and should not be criminalized, so that therefore the defendant should be allowed to raise all the same defenses -- including that of the victim's consent to the act -- which are allowed at common law rape prosecutions. But those are arguments that are properly directed to the legislature, either when they are contemplating passage of such a statute or in an effort to repeal an undesirable statute -- rather than to the prosecution of individual cases.
> And the above argument is why I suggested we should substitute a
> rebuttable presumption, or at least require testimony by the alleged
> victim that he/she really _was_ victimized. I would probably favor
> making the standard of proof as easy as that, but I _would_ require
> that the "victim" not be a willing participant.
Although it is tempting to make a straw man out of this argument, seeing it as simply an apologia for pedophiles who want a legitimate exception to the law so they can engage in child sex with willing participants, in all kindness I will not attribute that motivation to you. I understand that where you are coming from is a strongly libertarian philosophy that holds the best government to be the least government consistent with its primary purpose of protecting public safety, and that the law should simply keep its nose out of the "vice" field, de-criminalizing all kinds of "victimless" crimes such as drugs, consensual sex acts, gambling, etc. as well as get out of the business of regulating things like racial and other discrimination in housing and employment, consumer product safety, public health matters such as alcohol, tobacco, transfats, and vehicular emissions, protection of endangered species and ecosystems against development, regulation of markets with protective tarriffs and subsidies as well as disclosure rules and anti-fraud and antitrust laws, and virtually everything else government does except the police and the military. But the plain fact is, all these other areas of law grew over decades because one or the other person's ox was being gored with no apparent legal recourse, the people concerned lobbied the lawmakers to "do something about it", and they did, so it is now the law. And the real "victim" which ALL criminal laws seek to protect is SOCIETY as a whole, not the individual complainants, who indeed also have all their civil remedies available against the perp to get _personal_ rights vindicated.
Taking just statutory rape as an example, society feels that ON BALANCE, so much bad stuff is associated with child sex that it should just be prohibited outright, rather than diddling around with consent issues, whether the indivudal child at issue was really "harmed" or not, and so on. This is basically the same reasoning that led to criminzlization of other so-called "victimless" crimes like drugs, prostitution, and gambling. You can argue that criminalizing such acts creates more problems than it solves; some of us here may agree with you on one or the other of these areas. But the legislature clearly DOES have Constitutional power to criminalize such acts with bright-line tests if they bear _some_ rational relation to a legitimate government goal, in which the only intent that need be shown is the intent to do the act, not the intent to cause any harm or even to show that actual harm did occur from the particular act. And, I simply cannot see the "unfairness" you allege in such a situation, since the statutory bright-line rule IS known in advance and, being a bright-line test, it's not as though it creates a "trap for hte unwary" or something which a person may wander across inadvertently.
Some laws incorporate a substantive bright-line test, like "don't cross the double yellow line" or "don't have sex with minors". Others don't. If you want to eliminate the bright-line rules created by statutory law, complain to your legislature. All the cops and courts are doing is enforcing the law as written.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Statutory presumptions and statutory rape
On Feb 3, 8:12 am, b...@nyx.net (Barry Gold) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >fill in the gap where
> >"everybody knows" what "really" is happening, but where the frail
> >tools of the law (evidence, proof) may otherwise be lacking, allowing
> >some clever crooks to "slip thru the cracks" because what they did
> >wrong was too subtle to pin down.
>
> I missed that sentence when I was commenting earlier. What a
> dangerous concept -- that the law should somehow be able to "get"
> people even though the evidence and proof may be lacking, because "what
> they did wrong was too subtle to pin down".
Sorry, Barry, I think we just have a misunderstanding. I'm not suggesting that, and while I am also not contemplating that you are setting this up as a "straw man" argument so you can knock it down easily, I think you know from our years of mutual participation in this NG that I am more reasonable than that.
In a nutshell all I am saying is that presumptions have a useful and valid role in the law, and their purpose indeed is to fill in gaps in proof where it would otherwise be lacking, but where based on decades or centuries of worldy experience and common sense, we know that a certain combination of facts is enough to infer more likely than not that a certain other, needed-to-be-proven fact exists. And just to be extra clear, I am talking mainly about rebuttable presumptions -- those which substitute for missing evidence, but which the jury may or may not accept depending on what other evidence the opponent comes up with that tends to reduce the likelihood that the pertinent missing fact exists; and also we are only talking about presumptions that, AFTER they are created by statute or a judicial ruling, become the law, presumably known to all and providing a guide to behavior, for acts that occur AFTER that point.
> Again, why apply this only to sex?
We do not. Just to give a few other examples:
Res ipsa loquitur. When an accident happens involving some instrumentality that is completely within the defendant's control, and something happens to it that normally does not happen except in the absence of negligence, and there is no other plausible explanation offered, the jury is free to infer from the happening of the accident that it was due to the defendant's negligence. This presumption is an exception to the usual rule that negligence cannot be inferred from the mere happening of an accident. It is applied, for example, in the case of something like an elevator accident, where nobody (except the building operator, and they're not talking) seems to know exactly what happened, but it is simply agreed in society that it is unacceptable for an elevator door to open when the car is not there so that people fall thru the door and get injured.
Strict product liability in tort. Arising from situations where the law of negligence proved inadequate to pin down exactly what a defendant manufacturer did wrong to cause a product to be defective, this rule (a kind of presumption, really) allows a jury to impose tort liability on a manufacturer where the plaintiff's proof shows that defendant placed the product in commerce and that, in the condition where it left the factory, it was unreasonably dangerous in a way that was beyond the expectations of the average reasonable consumer when used in a foreseeable,not necessarily intended, way, by the consumer. Thus, for instance, a folding chair that collapses when someone stands on it and causes injury can be prosecuted as defective even though the maker intended the chair to be sat upon, not stood upon, because it is foreseeable that some people will use the chair as a stepstool and stand on it.
Rear-end collisions. Many states have rules, usually created by judicial holding in prior cases rather than by statute, which make it presumptively negligent for a driver to run into the rear of another car, rebuttable if the defendant driver can come up with some other valid explanation for the event than his own negligence. It's just too hard and a waste of judicial resources to make the rear-end victim prove exactly what the defendant was doing -- chewing a Burger Queen, twiddling with the radio knobs, having his girlfriend in the right seat twirling with _his_ knob (don't laugh, I actually prosecuted a case like that once), or whatever -- again, since often only the defendant knows, and he's not talking. So the mere fact that he runs into you from the rear is sufficient to prove he was negligent, unless he comes up with a better explanation that the jury believes.
Contractual presumptions. The law asssumes that if you signed something, you read it, or at least that you should be held to the same standard of knowing and agreeing to what it contains as if you had read it. Interestingly, for some special kinds of clauses, the law presumes that they are NOT binding, even if you DID read it, unless they are printed conspicuously and in a certain minimum size of type, etc., such as some indemnification agreements, disclaimers of implied warranties on consumer products, etc. The reason for this is to protect the perceived weaker party in such transactions and place the burden of proof on the powerful party to show that what he did was reasonable.
Property law presumptions. Adverse possession, for example, presumes that property is yours rightfully if you have held it for a certain length of time openly, notoriously (that doesn't mean or imply anything bad, just means that the fact is widely known and "noted"), and against the interest of the adverse claimant (ie without his permission). This obviates the need to prove that the adverse party really didn't want it anyway; he proved that by not caring and not doing anything about your notorious occupancy of the property for decades.
Constitutional presumptions. The Miranda rule, and the Gideon rule, are examples of the court setting guidelines for the cops, which (after the rule is in place) they are presumed to know that they cannot cross that line without imperiling their case and getting it thrown out, as a punishment for police misconduct, not because the perp is proven innocent.
Criminal presumptions. Statutory rape, of course, which is what we've been discussing in this branch of the thread. Another example is the felony murder rule, under which a person committing any felony can be charged with murder if someone dies in the course of commission of that felony. It is presumed by law that the evil intent which motivated the commission of the original crime is extended to the intent to cause that death -- even if the person who died was the perp's own partner in crime, or a'la Bonnie and Clyde, someone the perp really cared about and specifically did _not_ want to die. No matter; they're still guilty of felony murder under the transferred intent presumption. One could argue that what the MI legislature was trying to do, in the statute that got this thread started, was create an analog to the felony murder rule with regard to sex crimes -- we could call it the "felony rape rule."
Many so-called "strict liability" crimes, such as traffic violations, pollution citations, zoning violations, etc. are in a similar vein. The state is relieved of the burden of having to prove criminal intent for these minor crimes where all they have to prove is that you did the act. If you drift your car across the double yellow centerline, and a cop catches you, it doesn't matter why you did it or whether you intended to create a danger to others -- that fact alone is enough to prove you guilty.
Note, it does not CONCLUSIVELY prove you are guilty, any more than strict liability in tort means that the next time your Firestone tire on your Ford Exploder explodes, and the SUV rolls over and its roof collapses, crushing you and your buddies inside, that Ford and Firestone are going to roll over themselves and just throw money at you. You have a right to defend the double-yellow charge by arguing that you swerved to avoid a baby that was crawling across the road in front of you; Ford has a right to defend and to show that other factors caused the crash, or that you were exceeding even the foreseeable uses of the vehicle because you drunkenly ran into a bridge abutment shortly before the tire exploded and the SUV flipped. But, as with all presumptions, the fact that the presumption supplies fills a gap that would otherwise exist in the required minimum elements of proof to ALLOW YOUR CASE TO AT LEAST GET TO THE JURY and not be dismissed before trial, on summary judgment, for failure to prove that essential element of your case -- in the SUV example, by proving some specific way that the vehicle and/or tire makers were somehow negligent in their design of the product. If the case, as it gets to the jury, is sufficiently convincing that they WILL believe in the existence of the missing fact of which you have no direct proof, you can still win even without direct proof of the missing fact. That's all we're talking about.
> May be we should just make it a
> general rule of law: if you do something that "everybody knows" is
> wrong, we will punish you even though we haven't specifically made a
> law against it.
Now you know that goes beyond what I was talking about, don't you? We were talking about bright-line tests that are known IN ADVANCE of the perp's actions being taken, and which he therefore undertakes only at his peril, whether or not those culpable facts in fact directly exist in his case. Humbert Humbert could be charged with statutory rape for having sex with Lolita even if, as in the book, she was the sexual agressor or at least a fully willing and knowing participant.
> I would like to try substituting another test instead of the "bright
> line"(*). When certain legally-defined kinds of power imbalance
> exist, there is a _rebuttable_ presumption of undue influence and/or
> non-physical coercion. The standard for rebutting that presumption
> could slide, depending on the age of the "victim". At one end we
> would have a "victim" who is only slightly below legal age, where it
> would be sufficient for the defendant to establish reasonable
> doubt.(+) Somewhere in the middle would be a younger post-puberty
> "victim", and the defendant would have to establish by "preponderance
> of evidence" that the consent was uncoerced. At the other extreme
> would be a pre-puberty "victim", where the defendant would have to
> prove beyond a reasonable doubt that consent was uncoerced.
Well, what actually has happened in most cases is the exact opposite. We started out with a "fuzzy" test, requiring strict proof of every required element of a charge or claim, and when it became apparent that many defendants who "everybody knew" were guilty were getting off the hook, the law as a matter of social policy CREATED a bright-line test and then forbade everyone to cross that line regardless of what their actual intent was.
> Or maybe that's too complicated.
No, that's the way most cases of every kind develop their evidence, in the absence of an applicable presumption. Presumptions are useful mainly in the kind of cases where it is too difficult most of the time to do that AND where social policy dictates that "something must be done" about the matter even if the full formal rigid proof of each required element of an affirmative claim was lacking, usually because the only person who knew what _really_ happened had no motive, and no compulsion, to reveal it.
> (*) Not so bright line -- even when the "victim" is underage, a
> prosecutor (usually) won't bother with a case when the "perpetrator"
> is fairly close in age (2-3 years). At least partly because they know
> a jury is going to be reluctant to convict somebody under those
> circumstances. Some states have enshrined that rule in their
> "statutory rape" laws, in others it's a matter of prosecutorial
> discretion.
That is in fact what MD does in statutory rape cases, by statute. I don't remember the exact numbers for the age difference since I don't do criminal law regularly, but if an 18- or 19-year old adult has sex with a 17-year old minor, that is not a prosecutable crime here.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >fill in the gap where
> >"everybody knows" what "really" is happening, but where the frail
> >tools of the law (evidence, proof) may otherwise be lacking, allowing
> >some clever crooks to "slip thru the cracks" because what they did
> >wrong was too subtle to pin down.
>
> I missed that sentence when I was commenting earlier. What a
> dangerous concept -- that the law should somehow be able to "get"
> people even though the evidence and proof may be lacking, because "what
> they did wrong was too subtle to pin down".
Sorry, Barry, I think we just have a misunderstanding. I'm not suggesting that, and while I am also not contemplating that you are setting this up as a "straw man" argument so you can knock it down easily, I think you know from our years of mutual participation in this NG that I am more reasonable than that.
In a nutshell all I am saying is that presumptions have a useful and valid role in the law, and their purpose indeed is to fill in gaps in proof where it would otherwise be lacking, but where based on decades or centuries of worldy experience and common sense, we know that a certain combination of facts is enough to infer more likely than not that a certain other, needed-to-be-proven fact exists. And just to be extra clear, I am talking mainly about rebuttable presumptions -- those which substitute for missing evidence, but which the jury may or may not accept depending on what other evidence the opponent comes up with that tends to reduce the likelihood that the pertinent missing fact exists; and also we are only talking about presumptions that, AFTER they are created by statute or a judicial ruling, become the law, presumably known to all and providing a guide to behavior, for acts that occur AFTER that point.
> Again, why apply this only to sex?
We do not. Just to give a few other examples:
Res ipsa loquitur. When an accident happens involving some instrumentality that is completely within the defendant's control, and something happens to it that normally does not happen except in the absence of negligence, and there is no other plausible explanation offered, the jury is free to infer from the happening of the accident that it was due to the defendant's negligence. This presumption is an exception to the usual rule that negligence cannot be inferred from the mere happening of an accident. It is applied, for example, in the case of something like an elevator accident, where nobody (except the building operator, and they're not talking) seems to know exactly what happened, but it is simply agreed in society that it is unacceptable for an elevator door to open when the car is not there so that people fall thru the door and get injured.
Strict product liability in tort. Arising from situations where the law of negligence proved inadequate to pin down exactly what a defendant manufacturer did wrong to cause a product to be defective, this rule (a kind of presumption, really) allows a jury to impose tort liability on a manufacturer where the plaintiff's proof shows that defendant placed the product in commerce and that, in the condition where it left the factory, it was unreasonably dangerous in a way that was beyond the expectations of the average reasonable consumer when used in a foreseeable,not necessarily intended, way, by the consumer. Thus, for instance, a folding chair that collapses when someone stands on it and causes injury can be prosecuted as defective even though the maker intended the chair to be sat upon, not stood upon, because it is foreseeable that some people will use the chair as a stepstool and stand on it.
Rear-end collisions. Many states have rules, usually created by judicial holding in prior cases rather than by statute, which make it presumptively negligent for a driver to run into the rear of another car, rebuttable if the defendant driver can come up with some other valid explanation for the event than his own negligence. It's just too hard and a waste of judicial resources to make the rear-end victim prove exactly what the defendant was doing -- chewing a Burger Queen, twiddling with the radio knobs, having his girlfriend in the right seat twirling with _his_ knob (don't laugh, I actually prosecuted a case like that once), or whatever -- again, since often only the defendant knows, and he's not talking. So the mere fact that he runs into you from the rear is sufficient to prove he was negligent, unless he comes up with a better explanation that the jury believes.
Contractual presumptions. The law asssumes that if you signed something, you read it, or at least that you should be held to the same standard of knowing and agreeing to what it contains as if you had read it. Interestingly, for some special kinds of clauses, the law presumes that they are NOT binding, even if you DID read it, unless they are printed conspicuously and in a certain minimum size of type, etc., such as some indemnification agreements, disclaimers of implied warranties on consumer products, etc. The reason for this is to protect the perceived weaker party in such transactions and place the burden of proof on the powerful party to show that what he did was reasonable.
Property law presumptions. Adverse possession, for example, presumes that property is yours rightfully if you have held it for a certain length of time openly, notoriously (that doesn't mean or imply anything bad, just means that the fact is widely known and "noted"), and against the interest of the adverse claimant (ie without his permission). This obviates the need to prove that the adverse party really didn't want it anyway; he proved that by not caring and not doing anything about your notorious occupancy of the property for decades.
Constitutional presumptions. The Miranda rule, and the Gideon rule, are examples of the court setting guidelines for the cops, which (after the rule is in place) they are presumed to know that they cannot cross that line without imperiling their case and getting it thrown out, as a punishment for police misconduct, not because the perp is proven innocent.
Criminal presumptions. Statutory rape, of course, which is what we've been discussing in this branch of the thread. Another example is the felony murder rule, under which a person committing any felony can be charged with murder if someone dies in the course of commission of that felony. It is presumed by law that the evil intent which motivated the commission of the original crime is extended to the intent to cause that death -- even if the person who died was the perp's own partner in crime, or a'la Bonnie and Clyde, someone the perp really cared about and specifically did _not_ want to die. No matter; they're still guilty of felony murder under the transferred intent presumption. One could argue that what the MI legislature was trying to do, in the statute that got this thread started, was create an analog to the felony murder rule with regard to sex crimes -- we could call it the "felony rape rule."
Many so-called "strict liability" crimes, such as traffic violations, pollution citations, zoning violations, etc. are in a similar vein. The state is relieved of the burden of having to prove criminal intent for these minor crimes where all they have to prove is that you did the act. If you drift your car across the double yellow centerline, and a cop catches you, it doesn't matter why you did it or whether you intended to create a danger to others -- that fact alone is enough to prove you guilty.
Note, it does not CONCLUSIVELY prove you are guilty, any more than strict liability in tort means that the next time your Firestone tire on your Ford Exploder explodes, and the SUV rolls over and its roof collapses, crushing you and your buddies inside, that Ford and Firestone are going to roll over themselves and just throw money at you. You have a right to defend the double-yellow charge by arguing that you swerved to avoid a baby that was crawling across the road in front of you; Ford has a right to defend and to show that other factors caused the crash, or that you were exceeding even the foreseeable uses of the vehicle because you drunkenly ran into a bridge abutment shortly before the tire exploded and the SUV flipped. But, as with all presumptions, the fact that the presumption supplies fills a gap that would otherwise exist in the required minimum elements of proof to ALLOW YOUR CASE TO AT LEAST GET TO THE JURY and not be dismissed before trial, on summary judgment, for failure to prove that essential element of your case -- in the SUV example, by proving some specific way that the vehicle and/or tire makers were somehow negligent in their design of the product. If the case, as it gets to the jury, is sufficiently convincing that they WILL believe in the existence of the missing fact of which you have no direct proof, you can still win even without direct proof of the missing fact. That's all we're talking about.
> May be we should just make it a
> general rule of law: if you do something that "everybody knows" is
> wrong, we will punish you even though we haven't specifically made a
> law against it.
Now you know that goes beyond what I was talking about, don't you? We were talking about bright-line tests that are known IN ADVANCE of the perp's actions being taken, and which he therefore undertakes only at his peril, whether or not those culpable facts in fact directly exist in his case. Humbert Humbert could be charged with statutory rape for having sex with Lolita even if, as in the book, she was the sexual agressor or at least a fully willing and knowing participant.
> I would like to try substituting another test instead of the "bright
> line"(*). When certain legally-defined kinds of power imbalance
> exist, there is a _rebuttable_ presumption of undue influence and/or
> non-physical coercion. The standard for rebutting that presumption
> could slide, depending on the age of the "victim". At one end we
> would have a "victim" who is only slightly below legal age, where it
> would be sufficient for the defendant to establish reasonable
> doubt.(+) Somewhere in the middle would be a younger post-puberty
> "victim", and the defendant would have to establish by "preponderance
> of evidence" that the consent was uncoerced. At the other extreme
> would be a pre-puberty "victim", where the defendant would have to
> prove beyond a reasonable doubt that consent was uncoerced.
Well, what actually has happened in most cases is the exact opposite. We started out with a "fuzzy" test, requiring strict proof of every required element of a charge or claim, and when it became apparent that many defendants who "everybody knew" were guilty were getting off the hook, the law as a matter of social policy CREATED a bright-line test and then forbade everyone to cross that line regardless of what their actual intent was.
> Or maybe that's too complicated.
No, that's the way most cases of every kind develop their evidence, in the absence of an applicable presumption. Presumptions are useful mainly in the kind of cases where it is too difficult most of the time to do that AND where social policy dictates that "something must be done" about the matter even if the full formal rigid proof of each required element of an affirmative claim was lacking, usually because the only person who knew what _really_ happened had no motive, and no compulsion, to reveal it.
> (*) Not so bright line -- even when the "victim" is underage, a
> prosecutor (usually) won't bother with a case when the "perpetrator"
> is fairly close in age (2-3 years). At least partly because they know
> a jury is going to be reluctant to convict somebody under those
> circumstances. Some states have enshrined that rule in their
> "statutory rape" laws, in others it's a matter of prosecutorial
> discretion.
That is in fact what MD does in statutory rape cases, by statute. I don't remember the exact numbers for the age difference since I don't do criminal law regularly, but if an 18- or 19-year old adult has sex with a 17-year old minor, that is not a prosecutable crime here.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Dorm resident assistant shall not provide first aid?
On Feb 2, 6:46 am, Ian Michael Gumby <im_gumbyN0S...@hotmail.com> wrote:
> The reason the OP is being told not to provide first aid is one of liability
> which would fall on his employer.
Agreed.
> This is of course a sad state of the world we live in. And people wonder why
> we need to reform our legal system.
I don't think that follows from the above fact. As I and others have noted, the employer's rule does not bar OP from taking whatever emergency life-saving measures he may in good conscience feel are necessary before help arrives, if that is what it takes to keep someone from dying. All it means is that, if he does so, he does it on his own and not as an employee of the University. IOW, it's specifically not part of his job description.
Moreover, the clause keeps both OP _and_ his employer from being held liable if (for whatever reason) he chooses NOT to provide first aid. Absent such a clause, the victim's advocate could argue that, unlike the bystander stranger who has no liability at law if he fails to provide aid and rescue to someone in need, both the RA and the U had an implied contractual duty to affirmatively aid the dorm residents under their care and were negligent for failing to provide first aid.
IMO this is a very elegant, sensible, and well-drafted clause in his contract of employment, in that it _does_ shield both OP and the employer from liability while at the same time placing no actual restriction on the OP's freedom of action in an emergency.
That's what good legal drafting is _supposed_ to do, reconcile apparently conflicting goals like that so it's a win-win for both parties. I would hold it up as a shining example of good legal work, not a call for reform.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The reason the OP is being told not to provide first aid is one of liability
> which would fall on his employer.
Agreed.
> This is of course a sad state of the world we live in. And people wonder why
> we need to reform our legal system.
I don't think that follows from the above fact. As I and others have noted, the employer's rule does not bar OP from taking whatever emergency life-saving measures he may in good conscience feel are necessary before help arrives, if that is what it takes to keep someone from dying. All it means is that, if he does so, he does it on his own and not as an employee of the University. IOW, it's specifically not part of his job description.
Moreover, the clause keeps both OP _and_ his employer from being held liable if (for whatever reason) he chooses NOT to provide first aid. Absent such a clause, the victim's advocate could argue that, unlike the bystander stranger who has no liability at law if he fails to provide aid and rescue to someone in need, both the RA and the U had an implied contractual duty to affirmatively aid the dorm residents under their care and were negligent for failing to provide first aid.
IMO this is a very elegant, sensible, and well-drafted clause in his contract of employment, in that it _does_ shield both OP and the employer from liability while at the same time placing no actual restriction on the OP's freedom of action in an emergency.
That's what good legal drafting is _supposed_ to do, reconcile apparently conflicting goals like that so it's a win-win for both parties. I would hold it up as a shining example of good legal work, not a call for reform.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Sex, rape, and power
On Feb 2, 6:46 am, s...@panix.com (Seth Breidbart) wrote:
> In article <ku54s2l92ghnoejql1q3lh4lcibdass...@4ax.com>,
> Given the prevalence of "all sex is rape" among feminists, that
> certainly isn't the first group whose opinions I'd consider.
Got you thinking, though, didn't it? I'm not agreeing that "all sex is rape" either, but I do think it not beyond the bounds of reason to say "all forced sex is rape" regardless of the means used to coerce the unwilling participant.
Nor do I mean to imply that under current law, or under any reasonable extension of the law, "economic force" such as in the landlord example could be prosecutable as a crime. But one might have said the same thing a few decades ago about a rape prosecution against a husband who physically forced his wife to have sex when she was unwilling. Such prosecutions are, if not common these days, at least well known to exist. The law has changed.
I guess what I'm angling for is a world where relationships (of all kinds -- economic, sexual, international) are increasingly built upon cooperation for enlightened mutual self-interest rather than naked, screw-the-other-guy competition. IN other words, compete with your independent opponents, not with your partners. I know we're a long way off from that world and may never get there -- naked competition has been the Way of All Flesh since Cain slew Abel. But a large part of what modern civilization -- and in particular the rule of law -- tries to do is to put limits on naked competition and require at least a measure of consideration for the rights and needs of others.
In context of sexual relations, a mutual choice to engage in sex by partners who are of co-equal standing in that relationship, and who freely consent, without any complusion, economic or otherwise, is the ideal. Of course most relationships, including probably most marriages, fall short of that ideal. Which does NOT make such relations into the prosecutable crime of rape. It just means they've got some serious issues to work out for both of them to be truly happy.
IIRC the feminist syllogism you cite -- which NOT all feminists agree with -- goes something like this.
primary premise -- all forced sex is rape.
secondary premise -- sex between people who are not co-equal in power, compelled by any factor whatsoever, be it economic, psychological, physical -- is forced sex.
intermediate conclusion -- all sex between people who are not co-equal is rape.
tertiary premise -- male-female relationships (in present day paternalistic society) are not co-equal and will not be until women are treated as equals in every way with men.
final conclusion -- all sex between men and women is rape.
I do not personally agree with that logic, or with the conclusion. I believe that even though, statistically, men as a group and women as a group are not yet equal in economic and political power, it is entirely possible, even common, for individual couples to have a loving, co-equal relationship. However, that is a relatively modern invention of romantic love, and marriage as we know it has always been primarily an economic and political alliance between potentially warring partners and their families, whether we're talking about King Henry and Eleonor of Aquitaine ("The Lion In Winter") or Ralph and Alice Kramden.
> In that hypothetical, what if some third party offers to pay her rent
> in return for sex (either offering her cash, or calling in a favor
> from the landlord)?
I would posit that, if the benefactor were someone she wanted to have sex with anyway, e.g. her chosen boyfriend, then there is no compulsion involved and thus no "moral" rape (as stated above I don't think either example rises to the level of "criminal" rape). If it's just the sleazy guy in the apartment next door who overhears the lady's plight and offers to "help her out" in exchange for sexual favors, I don't see that in any way morally different than if the landlord is the one who does it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In article <ku54s2l92ghnoejql1q3lh4lcibdass...@4ax.com>,
> Given the prevalence of "all sex is rape" among feminists, that
> certainly isn't the first group whose opinions I'd consider.
Got you thinking, though, didn't it? I'm not agreeing that "all sex is rape" either, but I do think it not beyond the bounds of reason to say "all forced sex is rape" regardless of the means used to coerce the unwilling participant.
Nor do I mean to imply that under current law, or under any reasonable extension of the law, "economic force" such as in the landlord example could be prosecutable as a crime. But one might have said the same thing a few decades ago about a rape prosecution against a husband who physically forced his wife to have sex when she was unwilling. Such prosecutions are, if not common these days, at least well known to exist. The law has changed.
I guess what I'm angling for is a world where relationships (of all kinds -- economic, sexual, international) are increasingly built upon cooperation for enlightened mutual self-interest rather than naked, screw-the-other-guy competition. IN other words, compete with your independent opponents, not with your partners. I know we're a long way off from that world and may never get there -- naked competition has been the Way of All Flesh since Cain slew Abel. But a large part of what modern civilization -- and in particular the rule of law -- tries to do is to put limits on naked competition and require at least a measure of consideration for the rights and needs of others.
In context of sexual relations, a mutual choice to engage in sex by partners who are of co-equal standing in that relationship, and who freely consent, without any complusion, economic or otherwise, is the ideal. Of course most relationships, including probably most marriages, fall short of that ideal. Which does NOT make such relations into the prosecutable crime of rape. It just means they've got some serious issues to work out for both of them to be truly happy.
IIRC the feminist syllogism you cite -- which NOT all feminists agree with -- goes something like this.
primary premise -- all forced sex is rape.
secondary premise -- sex between people who are not co-equal in power, compelled by any factor whatsoever, be it economic, psychological, physical -- is forced sex.
intermediate conclusion -- all sex between people who are not co-equal is rape.
tertiary premise -- male-female relationships (in present day paternalistic society) are not co-equal and will not be until women are treated as equals in every way with men.
final conclusion -- all sex between men and women is rape.
I do not personally agree with that logic, or with the conclusion. I believe that even though, statistically, men as a group and women as a group are not yet equal in economic and political power, it is entirely possible, even common, for individual couples to have a loving, co-equal relationship. However, that is a relatively modern invention of romantic love, and marriage as we know it has always been primarily an economic and political alliance between potentially warring partners and their families, whether we're talking about King Henry and Eleonor of Aquitaine ("The Lion In Winter") or Ralph and Alice Kramden.
> In that hypothetical, what if some third party offers to pay her rent
> in return for sex (either offering her cash, or calling in a favor
> from the landlord)?
I would posit that, if the benefactor were someone she wanted to have sex with anyway, e.g. her chosen boyfriend, then there is no compulsion involved and thus no "moral" rape (as stated above I don't think either example rises to the level of "criminal" rape). If it's just the sleazy guy in the apartment next door who overhears the lady's plight and offers to "help her out" in exchange for sexual favors, I don't see that in any way morally different than if the landlord is the one who does it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
OJ Simpson and jury nullification
On Feb 1, 11:42 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Whether a witness was
> telling the truth is a matter of fact, not of law, and is up to the
> jury to decide.
***
> Jury nullification would be "I believe the evidence, and I conclude
> beyond a reasonable doubt that he did the deed, but I'm still voting
> not guilty."
I agree with Stan, and this is not inconsistent with believing that race and racialism issues played some role in the jury's decision. But there are times when such issues are properly relevant. Such could have been the case, if, for instance, the deliberating jurors said, "I don't believe the evidence because the detective was shown to be a racist and he had not only opportunity, but motive, to plant false evidence implicating the defendant. And that defense lawyer was right when he said, 'If the glove don't fit, you must acquit.'"
In fact, I personally refuse to believe that there exists a jury of 12 good people of ANY race who would vote against their OWN strongly held belief that a defendant was guilty of a crime THEY recognized as a serious threat to society, such as murder, and thus acquit someone they believed had been proven guilty beyond a reasonable doubt, just to "send a message" that had nothing to do with their belief in the validity of the law itself. The lazy and racist detective, far from making a potentially solid case an open-and-shut one by tampering with evidence (IF that's what happened)*, instead opened the door to reasonable doubt when his alleged shortcuts were brought to light by the defense.
Of course, nobody can say one way or the other for sure, and the jury's decision to acquit cannot constitutionally be challenged afterward, thus giving rise to endless speculation that it was simply a "slap in the face at white society" for oppressing blacks. But those who accept that easy explanation are conveniently forgetting all the warts and problems with the prosecution's case in this rambling, over-long, out-of-control coutroom melodrama.
I do also think that, in a society where seriously unjust laws are themselves the oppressors of the people, the people are justified in voting against enforcement of those unjust laws, as in the Peter Zenger case. But no one seems to be arguing that's the same thing as what happened in the Simpson case.
(*) I am NOT applying for a trademark on this phrase, as it's already been used in commerce.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Whether a witness was
> telling the truth is a matter of fact, not of law, and is up to the
> jury to decide.
***
> Jury nullification would be "I believe the evidence, and I conclude
> beyond a reasonable doubt that he did the deed, but I'm still voting
> not guilty."
I agree with Stan, and this is not inconsistent with believing that race and racialism issues played some role in the jury's decision. But there are times when such issues are properly relevant. Such could have been the case, if, for instance, the deliberating jurors said, "I don't believe the evidence because the detective was shown to be a racist and he had not only opportunity, but motive, to plant false evidence implicating the defendant. And that defense lawyer was right when he said, 'If the glove don't fit, you must acquit.'"
In fact, I personally refuse to believe that there exists a jury of 12 good people of ANY race who would vote against their OWN strongly held belief that a defendant was guilty of a crime THEY recognized as a serious threat to society, such as murder, and thus acquit someone they believed had been proven guilty beyond a reasonable doubt, just to "send a message" that had nothing to do with their belief in the validity of the law itself. The lazy and racist detective, far from making a potentially solid case an open-and-shut one by tampering with evidence (IF that's what happened)*, instead opened the door to reasonable doubt when his alleged shortcuts were brought to light by the defense.
Of course, nobody can say one way or the other for sure, and the jury's decision to acquit cannot constitutionally be challenged afterward, thus giving rise to endless speculation that it was simply a "slap in the face at white society" for oppressing blacks. But those who accept that easy explanation are conveniently forgetting all the warts and problems with the prosecution's case in this rambling, over-long, out-of-control coutroom melodrama.
I do also think that, in a society where seriously unjust laws are themselves the oppressors of the people, the people are justified in voting against enforcement of those unjust laws, as in the Peter Zenger case. But no one seems to be arguing that's the same thing as what happened in the Simpson case.
(*) I am NOT applying for a trademark on this phrase, as it's already been used in commerce.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Graffiti removal liability and proximate cause, revisited
On Feb 1, 11:41 am, Ernie Klein <eckl...@pacbell.net> wrote:
> Notwithstanding all of Mike's comments, if the OP does nothing and
> leaves the graffiti in place couldn't that be seen as a sign by the gang
> members that the OP is an easy target prompting them to return and do
> more, or even encourage rival gang members to enter the picture which
> could lead to even worse situations.
Yeah, so OP's damned if he do, and damned if he don't. Sounds like the usual state of affairs, actually.
I never said life comes with any money-back guarantees. You take it as it comes and muddle through as best you can.
And jurors know that too, as does the law of negligence. They are unlikely to condemn someone who miscalculated and made things worse just because he _was_ exercising reasonable care and trying to help. The law does not demand perfection, just the ordinary level of care that prevails in the community.
That does not immunize OP from being sued if something bad happens, it just means he is likely to prevail in the end. The attorneys for someone who is injured in a catastrophe have a right, even a duty, to look for a way to legally compensate their client's loss by trying to find an arguably culpable defendant with deep pockets. "Arguably" because almost nothing is ever cut-and-dried, and if you listen to your mother, we are ALL guilty of something. Failing to finish all your peas could be one of the reasons children are starving in China. And since under our legal system, anybody can sue you at any time for any reason, and since even someone who is trying to be careful and reasonable DOES occasionally do things that can be constued in hindsight as negligent, that's why we have liability insurance.
> Wouldn't all or most of the risks Mike pointed out still be present if
> the failure to remove the graffiti could be connected to future violence?
Yes. Isn't law grand? The reason satirists have so much fun these days is, they don't even have to exaggerate.
> Also, don't many cities have local graffiti laws _requiring_ property
> owners to remove or paint over graffiti within a set time limit for that
> very reason, to discourage attracting gangs and/or graffiti?
Such a law would militate strongly against finding a shopowner liable if he DID paint over the tags. However, he still has a duty to do so in a reasonable way, giving appropriate information to the person he hires, etc. based on all the foreseeable consequences. He can make that decision by (consciously or subconsciously) comparing the perceived likelihood and severity of those consequences happening, vs. the cost and risk of his chosen action and other possible alternative actions (including doing nothing).
If the risk of harm is serious enough and likely enough, and if the cost of doing something about it is reasonable enough, then a person is negligent if he does NOT do that, or something else equally effective, to deal with that risk. It's almost never possible to state a firm black-and-white hard line rule on something as fuzzy as "reasonableness" and "foreseeability" and "enough". However, sometimes such statutes include an explicit grant of immunity to persons complying with its terms, for just that reason.
> Wouldn't it also make a difference whether the OP's property was the
> _only_ property in the area that was "tagged" (which could show that he
> was either 'singled' out, or that other property owners have been prompt
> to remove graffiti) , or the other hand, was the only property that had
> up to this time, been untagged in a neighborhood already filled with
> other graffiti?
Whatever additional facts you throw into the mix, change the balance in the risk/benefit analysis and thus potentially change the outcome. So, yes, it _could_ make a difference.
As a side note, most ordinary Joes do not go thru such an explicit cost/benefit analysis for every action they take in life -- nothing would ever get done that way. What happens, though, as in e.g. driving a car down the street, is that based on that person's knowledge, common sense and experience, the reasonable person can and does filter out the stuff that does not pose an immediate risk but bells go off in his head when he perceives something that could be dangerous, triggering the need to decide what to do next to avoid the risk. If those decisions are reasonable, not in fact calculated to purposely add additional risk (like trying to beat the train to the crossing, as Nick Cage did in the movie I saw last night), they are most likely not negligent even if something bad happens. OTOH someone who is toodling along, not paying any attention, eating a McFries or combing his hair or whatever, and doesn't even SEE the risk, is far more likely to be found at fault. The OP and others, including corporate decisionmakers trying to gauge risk of various options based on parameters known and defined well in advance, DO have the luxury of time, and thus are also far more likely to be judged at fault if they choose wrong.
Moderator Paul points to the Stella Liebeck vs. McDonald's "coffee case" as an example of improbable liability nevertheless being found by a jury. Without rehashing that whole case, and there are many websites that do so very well, I simply note that the unopposed evidence at that trial showed McD knowingly and intentionally served its coffee 20 to 30 degrees hotter than virtually any other eatery and probably 40-50 degrees hotter than at home; that they knew this increased the risk of severe third degree burns occurring within a second or two from spills by an order of magnitude vs. the lower-temperature coffee which other stores served; that McD was aware of over 700 serious burn cases from their coffee, and kept track of them; and that nonetheless, McD execs made a conscious decision to keep their coffee hotter than even they acknowledged was safe.
That's why they were held liable -- their explicit risk/benefit calculation basically said, "we can _afford_ to have 700 people get seriously burned if we serve our coffee hot enough that a morning commuter can go to the drive-through, then drive for an hour to his destination and still find his coffee pleasantly hot; that way we'll sell more coffee." The jury didn't like that, even though they too like their coffee hot -- just not "unreasonably" hot.
One may also note that Stella's award of damages WAS reduced by the percentage the jury found her OWN negligence contributed to causing her harm by spilling the burning liquid on herself, applying comparative negligence principles as they were required to do. And the "big" punitive damages hit McD took was measured by the plaintiff's argument in closing, that the value of a single day's sales of just coffee at all McD outlets worldwide may be enough to get their attention without seriously disrupting corporate profits. As it was.
Nor did the jury in the Ford Pinto case in CA in the 70's like what Ford managers did. They socked Ford for major punitive damages based on a conscious corporate decision that went as follows: the company would save megabucks EVEN IF they got sued for damages by toasted occupants, if they refrained from putting a $5 plastic guard over the gas tanks of each of their little bombmobiles that would prevent them from becoming an action-movie explosion scene when they got rear-ended. When one Pinto _did_ get rear-ended on a California freeway (as happens a lot), and foreseeably blew up and fried the guys inside, as Ford foresaw in advance would happen, the jury was not too happy about that either. It wound up costing Ford a lot more than they expected in their cost/benefit analysis.
It is not my intent to condemn the cost/benefit analysis process in corporate decisionmaking. Failure to do so would ALSO be negligent, maybe even grossly so (see above for "Damned if you do, damned if you don't). But just like OP deciding whether to paint over the graffiti or not, boardroom bigwigs cannot callously disregard human safety issues or treat them as mere currency in a market of risk. In other words, the law (thru juries, aided by diligent plaintiff attorneys) will insist that conglomerate boards, just like Joe down at the corner store painting over the graffiti, have to base their decision on humane values too, not just corporate bottom lines.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Notwithstanding all of Mike's comments, if the OP does nothing and
> leaves the graffiti in place couldn't that be seen as a sign by the gang
> members that the OP is an easy target prompting them to return and do
> more, or even encourage rival gang members to enter the picture which
> could lead to even worse situations.
Yeah, so OP's damned if he do, and damned if he don't. Sounds like the usual state of affairs, actually.
I never said life comes with any money-back guarantees. You take it as it comes and muddle through as best you can.
And jurors know that too, as does the law of negligence. They are unlikely to condemn someone who miscalculated and made things worse just because he _was_ exercising reasonable care and trying to help. The law does not demand perfection, just the ordinary level of care that prevails in the community.
That does not immunize OP from being sued if something bad happens, it just means he is likely to prevail in the end. The attorneys for someone who is injured in a catastrophe have a right, even a duty, to look for a way to legally compensate their client's loss by trying to find an arguably culpable defendant with deep pockets. "Arguably" because almost nothing is ever cut-and-dried, and if you listen to your mother, we are ALL guilty of something. Failing to finish all your peas could be one of the reasons children are starving in China. And since under our legal system, anybody can sue you at any time for any reason, and since even someone who is trying to be careful and reasonable DOES occasionally do things that can be constued in hindsight as negligent, that's why we have liability insurance.
> Wouldn't all or most of the risks Mike pointed out still be present if
> the failure to remove the graffiti could be connected to future violence?
Yes. Isn't law grand? The reason satirists have so much fun these days is, they don't even have to exaggerate.
> Also, don't many cities have local graffiti laws _requiring_ property
> owners to remove or paint over graffiti within a set time limit for that
> very reason, to discourage attracting gangs and/or graffiti?
Such a law would militate strongly against finding a shopowner liable if he DID paint over the tags. However, he still has a duty to do so in a reasonable way, giving appropriate information to the person he hires, etc. based on all the foreseeable consequences. He can make that decision by (consciously or subconsciously) comparing the perceived likelihood and severity of those consequences happening, vs. the cost and risk of his chosen action and other possible alternative actions (including doing nothing).
If the risk of harm is serious enough and likely enough, and if the cost of doing something about it is reasonable enough, then a person is negligent if he does NOT do that, or something else equally effective, to deal with that risk. It's almost never possible to state a firm black-and-white hard line rule on something as fuzzy as "reasonableness" and "foreseeability" and "enough". However, sometimes such statutes include an explicit grant of immunity to persons complying with its terms, for just that reason.
> Wouldn't it also make a difference whether the OP's property was the
> _only_ property in the area that was "tagged" (which could show that he
> was either 'singled' out, or that other property owners have been prompt
> to remove graffiti) , or the other hand, was the only property that had
> up to this time, been untagged in a neighborhood already filled with
> other graffiti?
Whatever additional facts you throw into the mix, change the balance in the risk/benefit analysis and thus potentially change the outcome. So, yes, it _could_ make a difference.
As a side note, most ordinary Joes do not go thru such an explicit cost/benefit analysis for every action they take in life -- nothing would ever get done that way. What happens, though, as in e.g. driving a car down the street, is that based on that person's knowledge, common sense and experience, the reasonable person can and does filter out the stuff that does not pose an immediate risk but bells go off in his head when he perceives something that could be dangerous, triggering the need to decide what to do next to avoid the risk. If those decisions are reasonable, not in fact calculated to purposely add additional risk (like trying to beat the train to the crossing, as Nick Cage did in the movie I saw last night), they are most likely not negligent even if something bad happens. OTOH someone who is toodling along, not paying any attention, eating a McFries or combing his hair or whatever, and doesn't even SEE the risk, is far more likely to be found at fault. The OP and others, including corporate decisionmakers trying to gauge risk of various options based on parameters known and defined well in advance, DO have the luxury of time, and thus are also far more likely to be judged at fault if they choose wrong.
Moderator Paul points to the Stella Liebeck vs. McDonald's "coffee case" as an example of improbable liability nevertheless being found by a jury. Without rehashing that whole case, and there are many websites that do so very well, I simply note that the unopposed evidence at that trial showed McD knowingly and intentionally served its coffee 20 to 30 degrees hotter than virtually any other eatery and probably 40-50 degrees hotter than at home; that they knew this increased the risk of severe third degree burns occurring within a second or two from spills by an order of magnitude vs. the lower-temperature coffee which other stores served; that McD was aware of over 700 serious burn cases from their coffee, and kept track of them; and that nonetheless, McD execs made a conscious decision to keep their coffee hotter than even they acknowledged was safe.
That's why they were held liable -- their explicit risk/benefit calculation basically said, "we can _afford_ to have 700 people get seriously burned if we serve our coffee hot enough that a morning commuter can go to the drive-through, then drive for an hour to his destination and still find his coffee pleasantly hot; that way we'll sell more coffee." The jury didn't like that, even though they too like their coffee hot -- just not "unreasonably" hot.
One may also note that Stella's award of damages WAS reduced by the percentage the jury found her OWN negligence contributed to causing her harm by spilling the burning liquid on herself, applying comparative negligence principles as they were required to do. And the "big" punitive damages hit McD took was measured by the plaintiff's argument in closing, that the value of a single day's sales of just coffee at all McD outlets worldwide may be enough to get their attention without seriously disrupting corporate profits. As it was.
Nor did the jury in the Ford Pinto case in CA in the 70's like what Ford managers did. They socked Ford for major punitive damages based on a conscious corporate decision that went as follows: the company would save megabucks EVEN IF they got sued for damages by toasted occupants, if they refrained from putting a $5 plastic guard over the gas tanks of each of their little bombmobiles that would prevent them from becoming an action-movie explosion scene when they got rear-ended. When one Pinto _did_ get rear-ended on a California freeway (as happens a lot), and foreseeably blew up and fried the guys inside, as Ford foresaw in advance would happen, the jury was not too happy about that either. It wound up costing Ford a lot more than they expected in their cost/benefit analysis.
It is not my intent to condemn the cost/benefit analysis process in corporate decisionmaking. Failure to do so would ALSO be negligent, maybe even grossly so (see above for "Damned if you do, damned if you don't). But just like OP deciding whether to paint over the graffiti or not, boardroom bigwigs cannot callously disregard human safety issues or treat them as mere currency in a market of risk. In other words, the law (thru juries, aided by diligent plaintiff attorneys) will insist that conglomerate boards, just like Joe down at the corner store painting over the graffiti, have to base their decision on humane values too, not just corporate bottom lines.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Christmas discrimination by employer?
n Jan 31, 7:27 am, "Stan" <stanle...@hotmail.com> wrote:
> question about discrimination has nothing to do with policies towards
> other religions ... all I'm asking is whether, when the boss needs people
> to work out-of-hours and first tries to staff the shifts with
> volunteers, is there an EEOC violation when he tells non-Christians
> (and at the time, the only known non-Christians in the organization
> were Jews) that he "had expected" them to volunteer?
I think I answered this in my post a couple of days ago, which may have crossed yours "in the mail" over at Chez Moderator... but I'll take another crack at it.
The missing fact IMO is whether the boss in fact COERCED non-Xian employees to work on Xmas, or just "asked nicely" but then imposed no consequences that in any way affected the terms and conditions of your employment if you refused. I stand by the legal maxim, "There's no harm in asking."
If the boss said, "If you damn Yids don't come to work on the Lord's birthday, I'll fire your sorry Hebe asses", or something equally compelling and derogatory, you'd have a pretty clear-cut claim if this is in fact a company (and national) holiday and he is treating you (and your fellow Jews, Buddhists etc. in his employ) differently from members of other (i.e. Xian) religions simply on the basis of your religion. That is classic discrimination, and his bigoted words would help put the nail in the coffin.
But if all he said was, "Gee, Stan, you know I'm happy to help everyone celebrate their religious holidays and Xmas sure means a lot to ol' Bob Cratchett and his family, including little Tiny Tim, and all the other Xians in the IT department. And you know I've already granted you and the other Jews a personal day off for Yom Kippur and all, so you can get together with _your_ family and have a big turkey dinner or whatever it is you do that day -- and I didn't have to do that, you know -- but it would sure mean a lot to me, not to mention poor Bob, if you could work on Dec. 25 next week so I don't have to tap Bob for the job. But if you've already made other plans for the holiday, I'll understand." Then, he didn't do anything wrong.
> And he feels
> justified in thinking this way because he did give them time off for
> their religious holiday, so he expected them to work so others could
> have their religious holiday off.
First of all, religious accomodation of a specific individual's request to be let off for a day that is NOT a recognized company holiday, is a totally diffferent issue. I won't re-hash my previous post that covered the subject.
But how Mr. Scrooge feels has nothing to do with it. What he DOES _TO_ you, in taking ACTION affecting the terms and conditions of your employment, is what matters. The EEOC and other anti-discrimination-in-employment statutes generally require that, in order to make a claim, you must challenge some specific "job-related action" taken against you by the employer for allegedly discriminatory reasons. If no "job-related action" was taken by the employer for discriminatiory reasons, there is no claim. And trivial matters, such as merely ASKING if you would be willing to work that holiday, do not rise to the required level to be a "job-related action" even though, technically I suppose, it is, in a de minimis way.
It is not against the EEOC law for Mr. Scrooge to be a member of the KKK, hate Jews, Blacks and Catholics as well as Latinos, Asians, Arabs and Native Americans, as long as he doesn't DO ANYTHING about it that hurts your job. So, if Scrooge asks you to "volunteer" to work next Xmas and you refuse because you and your buddies already have your reservation for Dim Sum at the Golden Dragon Restaurant planned weeks in advance, followed by taking in the Iranian movie festival that's playing down at the local art house theater, you can feel confident that you are allowed to say "No" with no legal risk that Scrooge could impose adverse job consequences upon you without in turn subjecting himself to a possible EEOC claim.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> question about discrimination has nothing to do with policies towards
> other religions ... all I'm asking is whether, when the boss needs people
> to work out-of-hours and first tries to staff the shifts with
> volunteers, is there an EEOC violation when he tells non-Christians
> (and at the time, the only known non-Christians in the organization
> were Jews) that he "had expected" them to volunteer?
I think I answered this in my post a couple of days ago, which may have crossed yours "in the mail" over at Chez Moderator... but I'll take another crack at it.
The missing fact IMO is whether the boss in fact COERCED non-Xian employees to work on Xmas, or just "asked nicely" but then imposed no consequences that in any way affected the terms and conditions of your employment if you refused. I stand by the legal maxim, "There's no harm in asking."
If the boss said, "If you damn Yids don't come to work on the Lord's birthday, I'll fire your sorry Hebe asses", or something equally compelling and derogatory, you'd have a pretty clear-cut claim if this is in fact a company (and national) holiday and he is treating you (and your fellow Jews, Buddhists etc. in his employ) differently from members of other (i.e. Xian) religions simply on the basis of your religion. That is classic discrimination, and his bigoted words would help put the nail in the coffin.
But if all he said was, "Gee, Stan, you know I'm happy to help everyone celebrate their religious holidays and Xmas sure means a lot to ol' Bob Cratchett and his family, including little Tiny Tim, and all the other Xians in the IT department. And you know I've already granted you and the other Jews a personal day off for Yom Kippur and all, so you can get together with _your_ family and have a big turkey dinner or whatever it is you do that day -- and I didn't have to do that, you know -- but it would sure mean a lot to me, not to mention poor Bob, if you could work on Dec. 25 next week so I don't have to tap Bob for the job. But if you've already made other plans for the holiday, I'll understand." Then, he didn't do anything wrong.
> And he feels
> justified in thinking this way because he did give them time off for
> their religious holiday, so he expected them to work so others could
> have their religious holiday off.
First of all, religious accomodation of a specific individual's request to be let off for a day that is NOT a recognized company holiday, is a totally diffferent issue. I won't re-hash my previous post that covered the subject.
But how Mr. Scrooge feels has nothing to do with it. What he DOES _TO_ you, in taking ACTION affecting the terms and conditions of your employment, is what matters. The EEOC and other anti-discrimination-in-employment statutes generally require that, in order to make a claim, you must challenge some specific "job-related action" taken against you by the employer for allegedly discriminatory reasons. If no "job-related action" was taken by the employer for discriminatiory reasons, there is no claim. And trivial matters, such as merely ASKING if you would be willing to work that holiday, do not rise to the required level to be a "job-related action" even though, technically I suppose, it is, in a de minimis way.
It is not against the EEOC law for Mr. Scrooge to be a member of the KKK, hate Jews, Blacks and Catholics as well as Latinos, Asians, Arabs and Native Americans, as long as he doesn't DO ANYTHING about it that hurts your job. So, if Scrooge asks you to "volunteer" to work next Xmas and you refuse because you and your buddies already have your reservation for Dim Sum at the Golden Dragon Restaurant planned weeks in advance, followed by taking in the Iranian movie festival that's playing down at the local art house theater, you can feel confident that you are allowed to say "No" with no legal risk that Scrooge could impose adverse job consequences upon you without in turn subjecting himself to a possible EEOC claim.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Foreseeability and Proximate Cause for Tort Liability
On Jan 30, 7:49 am, "Alan" <alanb_lano2s...@yahoo.com> wrote:
<OP hired someone to remove graffiti from OP's building>
> What if, during the painting process, the folks that had
> crafted the graffiti, happened by and weren't at all pleased that their
> handiwork was being destroyed? Supposed they shot at the handyman, or worse
> yet, killed him?
It is kind and wise of you to think ahead about such possible consequences, but chances are very slim you could be held accountable in any way if that happens.
However, read on. The legal concept at issue here is that of "proximate cause" which involves both "foreseeability," and some measure of social policy, insofar as the law will impose a cutoff of legal responsibility at the point where a person's causal connection to an occurrence is so tenuous that it would not be reasonable to hold him at fault. Of course, as we all know, "everything is connected," so a sufficiently clever and thorough investigation can almost ALWAYS disclose SOME way in which, in however Rube Goldbergian a fashion, what you did or failed to do "caused" something else to happen
The concept of "intervening cause" also comes into play, but that is really just a subset of the basic concept. Although it is "foreseeable" in a sense that your neighborhood gang could take revenge in that way -- you _have_ in fact just foreseen it -- the responsible connection of such criminal acts to anything YOU, the building owner, do or omit (as you have a legal right to do) is so tenuous that you are probably quite safe.
Would you think you were at fault if you called AAA after some vandal slashed your tires and the punks who did it drove by and shot the tow truck man while he was changing your tire? Same idea. Not only is your own act a perfectly reasonable and legal one with no direct bad consequences, the criminal act of the gangsters would be seen as a "superseding intervening cause" relieving you of any possible responsiblity that _did_ initially accrue from your act.
OTOH -- as in almost everything at law -- "it depends" on all the facts. Something is not a "superseding" intervening cause if it is exactly the sort of thing you reasonably should be careful about under the circumstances -- it is negligent to fill your lawnmower's gas can while holding it in the air instead of placing it securely on the ground, increasing the risk that you would spill gasoline, and the fact that someone _else_ was smoking on the next pump island over and it was _their_ flame that ignited the conflagration that burned down the station does _not_ get you off the hook for your initial negligence in spilling the gas -- the risk of ignition is exactly why you should do everything reasonable to avoid creating loose hydrocarbon vapors around a filling station. Of course, the idiot smoker is ALSO at fault -- he had a duty to foresee that some idiot like _you_ may spill gas, which his cigarette could ignite.
"Foreseeability" and "Reasonableness" are inherenty fuzzy concepts and thus in most cases have to be submitted to a jury for decision, not ruled upon by the judge as a matter of law. Additional facts could change the picture and make your conduct appear negligent, at least sufficiently so to allow the question to be brought to a jury. For instance, let's say the gang was targeting your building for a specific reason, and you knew that, making it much more likely that they would be monitoring the premises. And let's say the gang had even issued you a specific warning that they would drive by and shoot anyone who tried to remove their graffiti. And let's make it even worse by noting a couple of prior incidents where the gang actually _did_ something of the kind, so everyone knew they were not making idle threats. On top of that, you neglected to contact the police regarding these threats, so that they could take steps to protect you and your workers (maybe because the gang "had something" on you you didn't want the cops to know about either, which may even make you a CO-CONSIPIRATOR with the gang when they shoot the handyman, or torch your building); and as the final straw, you didn't tell ANY of this to the handyman you hired (hey, who could you get to do the work, under those conditions? Best to keep him in the dark, huh?). Under such circumstances, a jury might conclude that you had a DUTY in tort to warn the handyman of the potential mess he was getting into, so he could either decline the job or take steps to protect HIMSELF (which he didn't bother to do because nobody warned him of the danger). One could pile on additional facts but you get the picture -- it is not, hardly ever, a completely cut-and-dried matter, and like everyone else, you have to make your own decisions about what is reasonable under the circumstances and hope that your perceptions and actions are reasonable enough that they will not be second-guessed by a jury.
> Or what if they came back at night and set the building on
> fire, and not knowing someone was working late, caused a death?
Same answer. As you may or may not know, arson that causes a death is prosecutable as murder either directly by statute in some states, or by the "felony murder rule" (which makes a death of anyone occurring during commission of a felony prosecutable as murder against any of the participating felons). Even if it was their own gang member who got caught in the flames and died, it would be prosecutable as murder -- but almost no chance that you would be held in any way legally responsible, absent some additional facs as noted above.
> Would I be at fault in either situation?
Looking at it BEFORE the crap happens, i.e. while YOU are still trying to decide what to do, you have a duty to act reasonably. Take into consideration all the facts you know, be candid and helpful (or at least not harmful) to those whose fates your actions may affect, and tell the people you hire everything they reasonably need to know personal-safety-wise before they take on the job -- a good rule of thumb is, if it is something YOU would want to know before you went out there and did it yourself, you have a duty to tell it to the people you hire to do if FOR you so they can decide if that's a risk they are willing to take.
Note, you do NOT have a tort duty.to ELIMINATE all risk -- that's impossible. But you also can't trick someone into taking on a risk they don't know about and don't want to encounter -- that's negligent.
Looking at it AFTER the sky falls in, you can be assured that some lawyer somewhere representing one of the people who got hurt is going to be picking through the facts with a fine tooth comb looking for something he can use to pin the fault on a party who may be able to pay for his client's damages. You, the building owner, will (almost always) be one likely target. Of course, if there really IS nothing there for them to pin liability on, you have nothing to worry about (you DO have insurance covering your defense against a negligence claim, don't you?) .but don't go thinking you are ever immunized from acting reasonably at all times with due regard to the rights of others.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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