On Nov 26, 8:09 am, "Mr.Bolshoyhuy" <bolshoy...@hotmail.com> wrote:
> I wasnt home one day when UPS delivered a package I ordered from
> Amazon's 3rd party merchant. So the dumb UPS man sent it back. I got
> my $ back, but not the s/h fee. Thus, I was forced to order it again
> and pay once again s/h.
Why didn't you make a claim against UPS for the extra shipping fee they wrongly caused you? It's not that hard, just call them up and complain. If necessary, they'll send you a form. If it was their mistake, they should pay.
My UPS guy routinely leaves packages on my doorstep when no one is home. Even the USPS will sometimes do that, but usually will retain the package at the local post office and put a notice in my mailbox to come and get it; I'm not sure but am guess that UPS would normally do the same, leaving a note on your door, and would attempt a re-delivery at a time you specify, unless there is something you are leaving out of the fact pattern that gave them a reason to return to sender (or unless they just made a dumb mistake, as you propose).
--
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
Tuesday, January 15, 2013
Tenant liability for improvements
On Nov 25, 7:35 am, "Will" <westes-...@noemail.nospam> wrote:
> I am interested in knowing how to avoid a transfer of liability - away from
> the landlord and to the tenant - for building improvements done by the
> tenant with the landlord's approval.
I'm not a CA lawyer. The following comments are just points for discussion. If you are either the landlord or the tenant in this situation, get a real, live CA lawyer versed in construction law ASAP to represent your interests _before_ signing a contract, or if it's too late for that and someone already got injured, to represent you in the pending or possible suit.
IMO you've got your "transfer of liability" terminology backwards. The person who actually does the work, of designing and building the allegedly defective improvement that causes injury to someone, is always the one _primarily_ liable. In your example, that would be the tenant, if the tenant is actually the one who built the improvement. Nobody has to "transfer" liability away from the landlord and to the tenant -- the tenant is liable already because he's the primary tortfeasor.
Now, in many states the owner of property is presumptively liable for injuries to social guests or business invitees (those whom he invites onto the property to conduct mutually beneficial business) or licensees (those whom he permits to enter for their own purposes) caused by dangerous defects in property that the landlord knew or should have known about. Absent any agreement ot the contrary, however, imposition of such landlord liability is secondary to, and simply intended to provide a known deep pocket for the injured victim to sue in lieu of, the person actually responsible for causing the defect, if frex that person is beyond the jurisdiction of the court, or his identity cannot be determined. If the landlord, after being sued, can find and identify the actual builder of the defective improvement, the landlord is entitled to claim indemnity from him, on the grounds that the landlord's liability is one imposed by law in lieu of the liability of the truly responsible person, who should therefore be obligated to reimburse the secondarily liable defendant landlord for the damages imposed and/or (depending on state law) for the costs of defending the suit.
Often, in actual practice, the victim's lawyer will sue both the landlord, and the tenant, and the builder (if it is a separate company the tenant hired to do the work -- chances are that a white-collar company renting an office would not be having its own employees building a walkway to their own building) and also the management or maintenance company that either the landlord or the tenant or both hired to do their day-to-day tasks in managing the building, and anyone else potentially liable for the negligence that led to the injury, and then leave it up to the jury, and to the law of indemnification which the various defendants may cross-claim among themselves, to sort out who should actually be required to pay the damages. If the victim sues only the landlord, the landlord can file a "third-party claim" to bring in the other responsible parties and demand indemnification from them, either as part of the original suit, or in a separate suit after being found liable for the victim's injuries. And if the tenant company actually hired a construction company to do the work instead of doing it itself, the tenant can _also_ claim indemnification, from the actual builder. It can get pretty complicated.
So, to summarize, the primary liability is that of the builder, and the law imposes secondary liability on the landlord just because he is the owner, and on the tenant just because he is the occupier of the land, while allowing the owner or occupier to claim indemnification from the truly responsible, negligent builder.
If the parties (landlord and tenant) want to shift some of that responsibility _as_between_themselves_ as a matter of contract, they are generally free to do so, if both are sophisticated business entities legally considered to be of equal bargaining strength, and the law will generally uphold whatever alternative arrangements they make as to transfer of liability, such as by eliminating the landlord's right of indemnity, or even by making the landlord have to indemnify the tenant if the tenant gets sued. But none of those agreements can legally affect the victim, who is still free to sue whomever the law makes liable, directly or vicariously, for causing his injury.
> As an example: a California based business renting space in a commercial
> building requests that the landlord construct a walkway on the side of the
> building,
Unless there's something in the lease that requires this, the landlord is under no obligation to provide additional improvements to a commercial tenant. The lease may provide that the tenant company is free to make its own improvements and may or may not provide that once it does, they become the property of the landlord and the tenant has to leave them there when it vacates the tenancy.
> Landlord
> refuses to do this job but asks tenant to pay the cost
I doubt Landlord actually _asked_ tenant to pay anything, if by that you mean to imply that landlord originated such a request, since this was tenant's idea, not landlords, and the landlord is not _asking_ tenant to do anything one way or the other. I am also pretty sure that's not exactly the language the landlord used, if this is something the landlord is not obligated to do. Probably more along the lines of, "I don't have to do that. If you want it done, go ahead and do it yourself and pay for it yourself."
> and to construct a
> path using stepping stones and techniques that could be done at lower cost.
I don't see why the tenant was not free to construct a safer, more expensive concrete walkway if tenant desired to do so. I find it hard to imagine that landlord cared one way or the other what kind of walkway tenant chose to build for tenant's own purposes.
> If at a later time someone is injured using the lower cost walkway, landlord
> or the injured party might be able to sue the tenant for the improvement
> done by the tenant.
Yes, on that part at least you are correct.
> How can this transfer of liability to the tenant be
> prevented?
See above re: improper assumptions at the heart of your question.
What the responsible tenant ought to do, as I hoped would go without saying, is to carry INSURANCE against its own potential liability to those injured by tenant's defectively constructed walkway. They should also, of course, insist that the builder they hire to actually build the walkway (if they are smart about how they go about this, and don't just make the accounting and HR departments go out to the lawn and carry flagstones on their backs in their T-shirts to build this walkway) also provide a certificate of insurance covering _its_ liability, and include an indemnification clause in the tenant's construction contract with the builder. Insurance is simply a normal cost of doing business and is IMO a duty of any responsible business citizen, as well as a good way to make sure the managers of the tenant company can sleep at night without having to worry about whether their company will be forced into bankruptcy by a lawsuit from someone they negligently injure.
> In this particular case, should tenant ask the landlord to sign an agreement
> that offsets tenant's agreement to absorb costs of the improvement in
> exchange for landlord's agreement to absorb all liabilities from usage of
> the improvement?
If this is a real situation, hire yourself a CA lawyer and ask him that question. The actual "which approach is better?" answer depends on both any quirks of local law, and even more so on a full understanding of all the facts and circumstances which you have only begun to provide in what, for lack of precision, I can only assume is a pure hypothetical. Absent complete details, which I am _not_ asking you to provide here, the answer is, as usual, "it depends."
> Agreement would set forth landlord's request for tenant
> to construct pathway.
Um, earlier in your post you said the _tenant_ originally requested the _landlord_ to construct a walkway.
> In exchange for an agreement to implement
> improvement and absorb part or all of the cost of this improvement, tenant
> stipulates in the agreement that landlord agrees to indemnify the tenant for
> all liability associated with construction or use of the improvement.
What possible motivation would the landlord have to agree to THAT?
The walkway is for the tenant's benefit, not landlord's. Landlord presumably doesn't care one way or the other whether tenant builds this walkway, and already has a lease in place on which tenant is paying rent. Would you sign such an agreement if you were the landlord?
> Would such an agreement be:
>
> a) advisable
I have no idea. See above.
> b) enforceable (in California)
I have no idea. See above.
> c) the only agreement required to insulate the tenant from future liability
> for use of the walkway?
As to that, I do have an idea. IMO such an agreement, standing alone, is NOT sufficient to fully insulate tenant from future liability. I don't even know if such insulation is possible, or enforceable, in CA or anywhere else if tenant is in fact the primary tortfeasor as stated in your hypo. Tenant by all means ought to consult a local lawyer NOW if this is a real situation and not a flight of fancy, and tenant also ought to check its insurance coverage with its insurance broker to make sure it has adequate coverage for this new liability.
--
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
> I am interested in knowing how to avoid a transfer of liability - away from
> the landlord and to the tenant - for building improvements done by the
> tenant with the landlord's approval.
I'm not a CA lawyer. The following comments are just points for discussion. If you are either the landlord or the tenant in this situation, get a real, live CA lawyer versed in construction law ASAP to represent your interests _before_ signing a contract, or if it's too late for that and someone already got injured, to represent you in the pending or possible suit.
IMO you've got your "transfer of liability" terminology backwards. The person who actually does the work, of designing and building the allegedly defective improvement that causes injury to someone, is always the one _primarily_ liable. In your example, that would be the tenant, if the tenant is actually the one who built the improvement. Nobody has to "transfer" liability away from the landlord and to the tenant -- the tenant is liable already because he's the primary tortfeasor.
Now, in many states the owner of property is presumptively liable for injuries to social guests or business invitees (those whom he invites onto the property to conduct mutually beneficial business) or licensees (those whom he permits to enter for their own purposes) caused by dangerous defects in property that the landlord knew or should have known about. Absent any agreement ot the contrary, however, imposition of such landlord liability is secondary to, and simply intended to provide a known deep pocket for the injured victim to sue in lieu of, the person actually responsible for causing the defect, if frex that person is beyond the jurisdiction of the court, or his identity cannot be determined. If the landlord, after being sued, can find and identify the actual builder of the defective improvement, the landlord is entitled to claim indemnity from him, on the grounds that the landlord's liability is one imposed by law in lieu of the liability of the truly responsible person, who should therefore be obligated to reimburse the secondarily liable defendant landlord for the damages imposed and/or (depending on state law) for the costs of defending the suit.
Often, in actual practice, the victim's lawyer will sue both the landlord, and the tenant, and the builder (if it is a separate company the tenant hired to do the work -- chances are that a white-collar company renting an office would not be having its own employees building a walkway to their own building) and also the management or maintenance company that either the landlord or the tenant or both hired to do their day-to-day tasks in managing the building, and anyone else potentially liable for the negligence that led to the injury, and then leave it up to the jury, and to the law of indemnification which the various defendants may cross-claim among themselves, to sort out who should actually be required to pay the damages. If the victim sues only the landlord, the landlord can file a "third-party claim" to bring in the other responsible parties and demand indemnification from them, either as part of the original suit, or in a separate suit after being found liable for the victim's injuries. And if the tenant company actually hired a construction company to do the work instead of doing it itself, the tenant can _also_ claim indemnification, from the actual builder. It can get pretty complicated.
So, to summarize, the primary liability is that of the builder, and the law imposes secondary liability on the landlord just because he is the owner, and on the tenant just because he is the occupier of the land, while allowing the owner or occupier to claim indemnification from the truly responsible, negligent builder.
If the parties (landlord and tenant) want to shift some of that responsibility _as_between_themselves_ as a matter of contract, they are generally free to do so, if both are sophisticated business entities legally considered to be of equal bargaining strength, and the law will generally uphold whatever alternative arrangements they make as to transfer of liability, such as by eliminating the landlord's right of indemnity, or even by making the landlord have to indemnify the tenant if the tenant gets sued. But none of those agreements can legally affect the victim, who is still free to sue whomever the law makes liable, directly or vicariously, for causing his injury.
> As an example: a California based business renting space in a commercial
> building requests that the landlord construct a walkway on the side of the
> building,
Unless there's something in the lease that requires this, the landlord is under no obligation to provide additional improvements to a commercial tenant. The lease may provide that the tenant company is free to make its own improvements and may or may not provide that once it does, they become the property of the landlord and the tenant has to leave them there when it vacates the tenancy.
> Landlord
> refuses to do this job but asks tenant to pay the cost
I doubt Landlord actually _asked_ tenant to pay anything, if by that you mean to imply that landlord originated such a request, since this was tenant's idea, not landlords, and the landlord is not _asking_ tenant to do anything one way or the other. I am also pretty sure that's not exactly the language the landlord used, if this is something the landlord is not obligated to do. Probably more along the lines of, "I don't have to do that. If you want it done, go ahead and do it yourself and pay for it yourself."
> and to construct a
> path using stepping stones and techniques that could be done at lower cost.
I don't see why the tenant was not free to construct a safer, more expensive concrete walkway if tenant desired to do so. I find it hard to imagine that landlord cared one way or the other what kind of walkway tenant chose to build for tenant's own purposes.
> If at a later time someone is injured using the lower cost walkway, landlord
> or the injured party might be able to sue the tenant for the improvement
> done by the tenant.
Yes, on that part at least you are correct.
> How can this transfer of liability to the tenant be
> prevented?
See above re: improper assumptions at the heart of your question.
What the responsible tenant ought to do, as I hoped would go without saying, is to carry INSURANCE against its own potential liability to those injured by tenant's defectively constructed walkway. They should also, of course, insist that the builder they hire to actually build the walkway (if they are smart about how they go about this, and don't just make the accounting and HR departments go out to the lawn and carry flagstones on their backs in their T-shirts to build this walkway) also provide a certificate of insurance covering _its_ liability, and include an indemnification clause in the tenant's construction contract with the builder. Insurance is simply a normal cost of doing business and is IMO a duty of any responsible business citizen, as well as a good way to make sure the managers of the tenant company can sleep at night without having to worry about whether their company will be forced into bankruptcy by a lawsuit from someone they negligently injure.
> In this particular case, should tenant ask the landlord to sign an agreement
> that offsets tenant's agreement to absorb costs of the improvement in
> exchange for landlord's agreement to absorb all liabilities from usage of
> the improvement?
If this is a real situation, hire yourself a CA lawyer and ask him that question. The actual "which approach is better?" answer depends on both any quirks of local law, and even more so on a full understanding of all the facts and circumstances which you have only begun to provide in what, for lack of precision, I can only assume is a pure hypothetical. Absent complete details, which I am _not_ asking you to provide here, the answer is, as usual, "it depends."
> Agreement would set forth landlord's request for tenant
> to construct pathway.
Um, earlier in your post you said the _tenant_ originally requested the _landlord_ to construct a walkway.
> In exchange for an agreement to implement
> improvement and absorb part or all of the cost of this improvement, tenant
> stipulates in the agreement that landlord agrees to indemnify the tenant for
> all liability associated with construction or use of the improvement.
What possible motivation would the landlord have to agree to THAT?
The walkway is for the tenant's benefit, not landlord's. Landlord presumably doesn't care one way or the other whether tenant builds this walkway, and already has a lease in place on which tenant is paying rent. Would you sign such an agreement if you were the landlord?
> Would such an agreement be:
>
> a) advisable
I have no idea. See above.
> b) enforceable (in California)
I have no idea. See above.
> c) the only agreement required to insulate the tenant from future liability
> for use of the walkway?
As to that, I do have an idea. IMO such an agreement, standing alone, is NOT sufficient to fully insulate tenant from future liability. I don't even know if such insulation is possible, or enforceable, in CA or anywhere else if tenant is in fact the primary tortfeasor as stated in your hypo. Tenant by all means ought to consult a local lawyer NOW if this is a real situation and not a flight of fancy, and tenant also ought to check its insurance coverage with its insurance broker to make sure it has adequate coverage for this new liability.
--
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
Arrested for a traffic ticket?
On Nov 24, 7:52 am, Mark Shaw <utahspee...@mailinator.com> wrote:
> a speeder who refused to sign his traffic ticket. Discussion on ...
> question of whether, and in what jurisdictions, one can be arrested
> for such refusal.
It can happen in MD and probably many other states. Keep in mind that the basic authority of law enforcement is to use force on behalf of the State (which has a legal monopoly on the use of force) to bring into court those accused of crime. That generally means they have the power to arrest any suspect -- take him into their custody -- by physically restraining him and transporting him to a magistrate (usually after a pit stop at the police station for "booking" - photos, fingerprints, ID check, etc.) within no more than 48 hours, where the suspect will receive an initial hearing to determine whether charges are properly brought and whether the suspect can be released from custody, either on his own recognizance (with no further security requried), or after posting bail to ensure his further appearance in court when summoned. The cop does not determine guilt; the law merely gives him the tools to bring the accused to court where the judge or jury, following proper procedures and hearing the evidence from both sides, can determine whether the state has proven the defendant guilty of committing the offense charged, beyond a reasonable doubt.
A ticket, or citation as it is sometimes called, is basically issued as a courtesy in lieu of arrest to those accused of minor infractions (those punishable only by fine, not imprisonment) where the accused can safely be allowed to continue on their way after acknowledging and receiving a copy of the citation. The law in MD provides that signing the ticket is not an admission of guilt, merely a promise to show up in court when summoned and to respond legally to the charges contained in it, either by paying the fine, or by requesting a hearing on the merits of the charge (i.e. a trial). Failure to sign can lead to arrest, and the tickets issued here generally say so, right above the signature line. I suppose the theory is that one who refuses to sign the ticket cannot be trusted to acknowledge the authority of the issuing officer to issue the ticket, or trusted to show up in court when summoned, and that anticipated resistance to legal authority is what justifies the need for arrest in such circumstances. But nothing more in the way of defying authority other than mere refusal to sign the ticket need be shown to justify the arrest.
I do not know, because I haven't researched the question, whether a cop in MD can legally in the first instance simply arrest a person for a minor infraction, such as speeding, without first offering to just write a ticket. As a practical matter, almost all cops would rather just write a ticket, since it takes too much of their time and paperwork to effectuate an arrest and they'd rather be out on patrol again sooner, writing more tickets. But if the cops really want to arrest a particular person, they can usually find (or concoct) some reason for doing so even if it is outside of their usual procedure and even if the charges are so flimsy that they do not survive the first hearing with a magistrate. While this type of conduct risks exposing the cops who do so to a civil lawsuit for false arrest, or excessive use of force, such abuse of power goes unchallenged often enough that it does continue to happen occasionally. IMO however, most cops most of the time are honest, not trying to be sadists, and are just trying to do their job, to protect and to serve the safety of the citizenry.
Now, as to what happens or legally can happen in terms of police use of force to effectuate the arrest, that depends in large part on exactly how the accused responds at the scene. If he does _anything_ (other than the initial refusal to sign the ticket) that indicates he is not willing to submit to the alternative of being arrested, the cops can use appropriate force to accomplish the arrest. I won't begin to discuss what the standards are here as there are whole books written on the subject, on which cops are supposed to be trained. Suffice it to say that the higher the threat level displayed by the suspect, and the greater the risk to the safety of the officers or bystanders, the more force the officers are allowed to use to subdue the suspect, up to and including use of deadly force where appropriate. I haven't seen the taser video and have no desire to, so I can't comment on whether that was an example of appropriate use of force.
--
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
> a speeder who refused to sign his traffic ticket. Discussion on ...
> question of whether, and in what jurisdictions, one can be arrested
> for such refusal.
It can happen in MD and probably many other states. Keep in mind that the basic authority of law enforcement is to use force on behalf of the State (which has a legal monopoly on the use of force) to bring into court those accused of crime. That generally means they have the power to arrest any suspect -- take him into their custody -- by physically restraining him and transporting him to a magistrate (usually after a pit stop at the police station for "booking" - photos, fingerprints, ID check, etc.) within no more than 48 hours, where the suspect will receive an initial hearing to determine whether charges are properly brought and whether the suspect can be released from custody, either on his own recognizance (with no further security requried), or after posting bail to ensure his further appearance in court when summoned. The cop does not determine guilt; the law merely gives him the tools to bring the accused to court where the judge or jury, following proper procedures and hearing the evidence from both sides, can determine whether the state has proven the defendant guilty of committing the offense charged, beyond a reasonable doubt.
A ticket, or citation as it is sometimes called, is basically issued as a courtesy in lieu of arrest to those accused of minor infractions (those punishable only by fine, not imprisonment) where the accused can safely be allowed to continue on their way after acknowledging and receiving a copy of the citation. The law in MD provides that signing the ticket is not an admission of guilt, merely a promise to show up in court when summoned and to respond legally to the charges contained in it, either by paying the fine, or by requesting a hearing on the merits of the charge (i.e. a trial). Failure to sign can lead to arrest, and the tickets issued here generally say so, right above the signature line. I suppose the theory is that one who refuses to sign the ticket cannot be trusted to acknowledge the authority of the issuing officer to issue the ticket, or trusted to show up in court when summoned, and that anticipated resistance to legal authority is what justifies the need for arrest in such circumstances. But nothing more in the way of defying authority other than mere refusal to sign the ticket need be shown to justify the arrest.
I do not know, because I haven't researched the question, whether a cop in MD can legally in the first instance simply arrest a person for a minor infraction, such as speeding, without first offering to just write a ticket. As a practical matter, almost all cops would rather just write a ticket, since it takes too much of their time and paperwork to effectuate an arrest and they'd rather be out on patrol again sooner, writing more tickets. But if the cops really want to arrest a particular person, they can usually find (or concoct) some reason for doing so even if it is outside of their usual procedure and even if the charges are so flimsy that they do not survive the first hearing with a magistrate. While this type of conduct risks exposing the cops who do so to a civil lawsuit for false arrest, or excessive use of force, such abuse of power goes unchallenged often enough that it does continue to happen occasionally. IMO however, most cops most of the time are honest, not trying to be sadists, and are just trying to do their job, to protect and to serve the safety of the citizenry.
Now, as to what happens or legally can happen in terms of police use of force to effectuate the arrest, that depends in large part on exactly how the accused responds at the scene. If he does _anything_ (other than the initial refusal to sign the ticket) that indicates he is not willing to submit to the alternative of being arrested, the cops can use appropriate force to accomplish the arrest. I won't begin to discuss what the standards are here as there are whole books written on the subject, on which cops are supposed to be trained. Suffice it to say that the higher the threat level displayed by the suspect, and the greater the risk to the safety of the officers or bystanders, the more force the officers are allowed to use to subdue the suspect, up to and including use of deadly force where appropriate. I haven't seen the taser video and have no desire to, so I can't comment on whether that was an example of appropriate use of force.
--
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
"Prosecution" defined, part 2
On Nov 22, 9:54 am, Paul Cassel <pcasselremo...@comremovecast.net> wrote:
> Mike Jacobs wrote:
> > On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> >> OP asks about prosecution in a civil court. Prosecution refers to the
> >> proferring of criminal charges; one sues in a civil court. Prosecution
> >> leads to prison; civil suit leads to writing a check.
>
> > That's the way the word "prosecution" is most commonly used, but not
> > exclusively, so I don't think OP is technically wrong to say
> > "prosecuted in civil court."
>
> If you wish to split hairs here, Mike, I'll split along with you. Here
> the OP asks why the one doing the act can't be prosecuted in civil
> court. The OP does not ask if the case can be prosecuted, but the person.
>
> I think usage would be correct to say cases are prosecuted in civil
> court (moved forward) but people are prosecuted (have charges levied)
> only in criminal court.
OK, Paul, you and Meanu are both right, and I missed that the subject of OP's verb "prosecuted" was the person, not the case. OP's phrasing struck me as odd the first time I read it but not as technically incorrect, and I was just trying to backfill and figure out why that was.
But since hairsplitting is the favorite sport on Usenet, please allow me to split yours even farther, and cite a lexicographical authority we probably all can agree is authoritative. Merriam-Webster's website defines the word "prosecute" as follows:
Main Entry:
pros·e·cute Listen to the pronunciation of prosecute
Pronunciation:
\'prä-si-?kyüt\
Function:
verb
Inflected Form(s):
pros·e·cut·ed; pros·e·cut·ing
Etymology:
Middle English, from Latin prosecutus, past participle of prosequi to pursue — more at pursue
Date:
15th century
transitive verb1: to follow to the end : pursue until finished <was…ordered to prosecute the war with…vigor — Marjory S. Douglas>2: to engage in : perform3 a: to bring legal action against for redress or punishment of a crime or violation of law <prosecuted them for fraud> b: to institute legal proceedings with reference to <prosecute a claim>intransitive verb: to institute and carry on a legal suit or prosecution
— pros·e·cut·able Listen to the pronunciation of prosecutable \?prä-s?-'kyü-t?-b?l\ adjective
It appears all 3 of us (you, me, and Meanu) now agree OP was using "prosecuted" in the sense meant by definition 3(a), to prosecute a person, whereas my response to Meanu's post assumed (incorrectly) that OP was using it in the sense of 3(b), to prosecute a case. But, lo and behold, 3(a) itself is not exclusively limited to _criminal_ prosecutions, and the example the M-W lexicographers give can be used to refer either to a civil or criminal prosecution: fraud. And by the actual definition, the word can be used to refer to the act of bringing a legal action against [a person] _either_ for redress [i.e. a suit to recover money damages] _or_ punishment, of a crime _or_ [other] violation of law [such as a tort].
Yes, I know, using the word with the person of the defendant (not the subject matter of the case) as subject of the verb, when one intends to refer to pursuing a civil suit for money damages, would be a very uncommon usage, but at least according to M-W, not an incorrect one either. And indeed, doesn't a civil plaintiff literally prosecute (i.e. go after, pursue) a civil defendant when he sues that person?
Isn't splitting hairs fun?
Anyway, getting back to my original post where I ignored the unusual usage, I did _not_ try to split hairs then, just to answer the question I thought OP was asking. Sometimes (if a post is not completely incompreshensible) I like to give foax the benefit of the doubt.
> My sense of the OP was that the poster didn't understand why no criminal
> charges were placed upon the one who assumed the false identity.
> Further, the OP was confused about how the courts work and that there
> are distinct sides, criminal and civil.
Yes, I'm inclined to agree with that as the most likely explanation. But then I'm still puzzled about what she meant by "civil" court if it was not meant in contrast to "criminal" court. In various contexts, the antonym of "civil" as an adjective modifying "law" is not simply "criminal" but could also be "uncivil", "military", "common", or "religious" among others I didn't think of yet.
Maybe she wanted to know why the nasty mom had not been pursued in a "polite" (civil, as opposed to uncivil) court instead of, as so far seems to be the case, only through the vigilante efforts of the victim's family, neighbors and bloggers to harass her and her family, destroying their property and pressuring them to move away. In fact, the man-made system of laws, and the civil (that word again) society it makes possible, exist precisely to provide a rules-based, fair and balanced system for deciding disputes and resolving competing interests, as a substitute for the brutal natural "laws" -- might makes right, survival of the fittest, unfettered whim of the king, frex -- which govern in more benighted times and places, and to prevent ordinary citizens from taking the law into their own hands out of frustration and lack of confidence in the court system to ever give them a fair shake. That's one possible interpretation.
Another possible interpretation, if OP was of a religious bent, is maybe she was wondering if the nasty mom would ever be made to account for her actions in a secular, earthly, "civil" (as opposed to religious) court, confident nevertheless that she would ultimately get her comeuppance when she appeared before the Pearly Gates and had to answer for her actions to the Heavenly court.
In any event, it never occurred to me in my original post on this thread to chastise her for her awkward verbal usage.
Happy turkey day, everyone.
--
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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.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs wrote:
> > On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> >> OP asks about prosecution in a civil court. Prosecution refers to the
> >> proferring of criminal charges; one sues in a civil court. Prosecution
> >> leads to prison; civil suit leads to writing a check.
>
> > That's the way the word "prosecution" is most commonly used, but not
> > exclusively, so I don't think OP is technically wrong to say
> > "prosecuted in civil court."
>
> If you wish to split hairs here, Mike, I'll split along with you. Here
> the OP asks why the one doing the act can't be prosecuted in civil
> court. The OP does not ask if the case can be prosecuted, but the person.
>
> I think usage would be correct to say cases are prosecuted in civil
> court (moved forward) but people are prosecuted (have charges levied)
> only in criminal court.
OK, Paul, you and Meanu are both right, and I missed that the subject of OP's verb "prosecuted" was the person, not the case. OP's phrasing struck me as odd the first time I read it but not as technically incorrect, and I was just trying to backfill and figure out why that was.
But since hairsplitting is the favorite sport on Usenet, please allow me to split yours even farther, and cite a lexicographical authority we probably all can agree is authoritative. Merriam-Webster's website defines the word "prosecute" as follows:
Main Entry:
pros·e·cute Listen to the pronunciation of prosecute
Pronunciation:
\'prä-si-?kyüt\
Function:
verb
Inflected Form(s):
pros·e·cut·ed; pros·e·cut·ing
Etymology:
Middle English, from Latin prosecutus, past participle of prosequi to pursue — more at pursue
Date:
15th century
transitive verb1: to follow to the end : pursue until finished <was…ordered to prosecute the war with…vigor — Marjory S. Douglas>2: to engage in : perform3 a: to bring legal action against for redress or punishment of a crime or violation of law <prosecuted them for fraud> b: to institute legal proceedings with reference to <prosecute a claim>intransitive verb: to institute and carry on a legal suit or prosecution
— pros·e·cut·able Listen to the pronunciation of prosecutable \?prä-s?-'kyü-t?-b?l\ adjective
It appears all 3 of us (you, me, and Meanu) now agree OP was using "prosecuted" in the sense meant by definition 3(a), to prosecute a person, whereas my response to Meanu's post assumed (incorrectly) that OP was using it in the sense of 3(b), to prosecute a case. But, lo and behold, 3(a) itself is not exclusively limited to _criminal_ prosecutions, and the example the M-W lexicographers give can be used to refer either to a civil or criminal prosecution: fraud. And by the actual definition, the word can be used to refer to the act of bringing a legal action against [a person] _either_ for redress [i.e. a suit to recover money damages] _or_ punishment, of a crime _or_ [other] violation of law [such as a tort].
Yes, I know, using the word with the person of the defendant (not the subject matter of the case) as subject of the verb, when one intends to refer to pursuing a civil suit for money damages, would be a very uncommon usage, but at least according to M-W, not an incorrect one either. And indeed, doesn't a civil plaintiff literally prosecute (i.e. go after, pursue) a civil defendant when he sues that person?
Isn't splitting hairs fun?
Anyway, getting back to my original post where I ignored the unusual usage, I did _not_ try to split hairs then, just to answer the question I thought OP was asking. Sometimes (if a post is not completely incompreshensible) I like to give foax the benefit of the doubt.
> My sense of the OP was that the poster didn't understand why no criminal
> charges were placed upon the one who assumed the false identity.
> Further, the OP was confused about how the courts work and that there
> are distinct sides, criminal and civil.
Yes, I'm inclined to agree with that as the most likely explanation. But then I'm still puzzled about what she meant by "civil" court if it was not meant in contrast to "criminal" court. In various contexts, the antonym of "civil" as an adjective modifying "law" is not simply "criminal" but could also be "uncivil", "military", "common", or "religious" among others I didn't think of yet.
Maybe she wanted to know why the nasty mom had not been pursued in a "polite" (civil, as opposed to uncivil) court instead of, as so far seems to be the case, only through the vigilante efforts of the victim's family, neighbors and bloggers to harass her and her family, destroying their property and pressuring them to move away. In fact, the man-made system of laws, and the civil (that word again) society it makes possible, exist precisely to provide a rules-based, fair and balanced system for deciding disputes and resolving competing interests, as a substitute for the brutal natural "laws" -- might makes right, survival of the fittest, unfettered whim of the king, frex -- which govern in more benighted times and places, and to prevent ordinary citizens from taking the law into their own hands out of frustration and lack of confidence in the court system to ever give them a fair shake. That's one possible interpretation.
Another possible interpretation, if OP was of a religious bent, is maybe she was wondering if the nasty mom would ever be made to account for her actions in a secular, earthly, "civil" (as opposed to religious) court, confident nevertheless that she would ultimately get her comeuppance when she appeared before the Pearly Gates and had to answer for her actions to the Heavenly court.
In any event, it never occurred to me in my original post on this thread to chastise her for her awkward verbal usage.
Happy turkey day, everyone.
--
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I am not your lawyer, and you are not my client in any specific legal matter.
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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
"Prosecution" defined
On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> OP asks about prosecution in a civil court. Prosecution refers to the
> proferring of criminal charges; one sues in a civil court. Prosecution
> leads to prison; civil suit leads to writing a check.
That's the way the word "prosecution" is most commonly used, but not exclusively, so I don't think OP is technically wrong to say "prosecuted in civil court." To "prosecute" merely means to "move forward" with a claim or suit; we tend to associate it with criminal suits mainly because the attorney who represents the State plaintiff in such cases is called the "prosecutor," the one whose job is to move forward toward a resolution of criminal charges either by going to court to attempt to prove the charges brought by the law enforcement officers' or victims' charging complaints, or to dismiss such charges.
But the word "prosecute" is also used in the context of civil suits. In both the Federal Rule of Civil Procedure 41(b) and many State and Appellate rules, the rule which permits dismissal of a civil suit that has been sitting around in the docket for a long time (typically, over a year) with no new papers being filed and no hearing pending, is called "dismissal for failure to prosecute". Again, to prosecute just means to move a case forward.
--
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
> OP asks about prosecution in a civil court. Prosecution refers to the
> proferring of criminal charges; one sues in a civil court. Prosecution
> leads to prison; civil suit leads to writing a check.
That's the way the word "prosecution" is most commonly used, but not exclusively, so I don't think OP is technically wrong to say "prosecuted in civil court." To "prosecute" merely means to "move forward" with a claim or suit; we tend to associate it with criminal suits mainly because the attorney who represents the State plaintiff in such cases is called the "prosecutor," the one whose job is to move forward toward a resolution of criminal charges either by going to court to attempt to prove the charges brought by the law enforcement officers' or victims' charging complaints, or to dismiss such charges.
But the word "prosecute" is also used in the context of civil suits. In both the Federal Rule of Civil Procedure 41(b) and many State and Appellate rules, the rule which permits dismissal of a civil suit that has been sitting around in the docket for a long time (typically, over a year) with no new papers being filed and no hearing pending, is called "dismissal for failure to prosecute". Again, to prosecute just means to move a case forward.
--
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
Giving alcohol to minors
On Nov 19, 8:32 am, jcug...@aol.com wrote:
> My brother, who is 24, threw a football party the other night. Several
> people there were under 21 and were drinking
Stop right there, quit making damaging admissions in public, and advise your brother to GET A LAWYER to represent him on these charges, and NOT TO TALK about the facts of the incident to anyone except his lawyer unless and until the lawyer instructs him to.
> In our state this is a 3rd degree misdemeanor. The penalty
> is 0-365 days in jail and/or a minimum fine of $1000 for the first
> offence and $2500 for each additional offence.
Right, that's what can happen if he gets convicted of all charges. But usually the lawyer is able to reach a plea bargain on just one or two charges with the others being dropped, and often the charge they agree to plead guilty to is a lesser offense that carries a lower minimum penalty.
> Now here is my question. Since 15 individual minors were caught with
> liquor, is my brother facing 15 offences or just 1 offence?
Potentially each act of furnishing liquor to a minor is a separate offense. But what does the charging document say? Was he given 15 citations, or just one?
> Also is jail time likely
Your bro will have to ask his lawyer to gauge the predelictions of your local judge to whom this case will be assigned, and your local prosecutors who will bring the state's case to trial. Obviously, there is a wide range here. He could get Judge Tenderheart, or Judge Hangem.
> or do the courts just want money?
Except for routine traffic speeding cases (which IMO are in some jurisdictions more about revenue than about safety) the courts mostly do NOT want either jail OR money, they simply want to convince the perp to stop doing what he was doing, straighten up and fly right. And, within the broad discretion the law usually allows the judge, Hizzonor will typically do whatever he feels it takes to send a message that will accomplish that end and change the perp's behavior.
Obviously, the facts make a difference, often much more than the differences between judges. If bro intended only to serve his 20something friends and didn't know there were minors at his party, much less that they were drinking, and he was maybe just a bit lax in checking out the ages of guests who got handed a cup or were allowed to tap the keg, a slap on the wrist and probation before judgment may appear to be enough, and if so, that's all your bro will get, even from Judge Hangem. But if he comes across as a hardened bootlegger who spiked the punch and pushed alcohol on clueless teen victims, one of whom almost died from acute toxicity, then even Judge Tenderheart is more likely to send him to jail. Or it could come out somewhere in between.
> He has no prior arrests or convictions.
That can help in a plea for leniency at the sentencing stage, but is completely irrelevant to whether he committed and should be convicted of the specific crimes with which he has been charged arising from _this_ incident.
> I'm trying to get an idea of how serious courts take this offence.
Pretty seriously, in most states. His lawyer will advise him of just what that means in your particular area.
> So basically is my brother going to, at minimum, going to be required
> to pay a $36,000 fine no questions asked?
No, no, no. At minimum he will plead to a lesser charge and get probation. Whether that is even a viable option, or whether there are flaws in the state's case that make it a better decision to insist on going to trial and risking a conviction of the heavier charges to try to get an acquittal, is a decision your bro can make with his lawyer's advice based on all the circumstances. Just because he's been charged with 15 offenses initially doesn't mean the state is actually going to seek conviction on all of them -- it gives both sides some bargaining room.
Bottom line, bro needs a lawyer. Quit reading Usenet and help him find one, if you want to be useful.
Ask your friends who have used lawyers before for _any_ purpose (commercial disputes, wills, divorces, traffic tickets, whatever) to give you the name of their lawyer, and whether they thought he did a good job. If you don't have friends who have used lawyers, surely you have as an acquaintance a person you trust who is in a responsible position that is likely to put them in touch with lawyers on a regular basis -- your boss, maybe? A guidance counselor? A doctor? After you get the names of some lawyers, call the ones that your referring friends believe did well, and ask the lawyer who he would recommend for this type of case. Unless that lawyer is a criminal specialist he will probably not be the one your brother chooses to hire, but can recommend someone more versed in that area. When you start getting multiple recommendations for the same guy or gal, that's your "go to" person. Bro can also comparison-shop on price, but IMO it's far more important to get competence and find someone he had confidence in, than to be bargain-hunting. After all, he has tens of thousands of dollars, and his freedom, at stake.
As a last resort, bro can call the local bar association for referrals, or let his fingers walk thru the yellow pages. But don't necessarily trust the lawyer with the biggest, most expensive ad in the book -- bro still has to talk to the lawyer he's interviewing for the job, long enough to tell whether he feels good about placing his fate in this lawyer's hands and if it feels like they have a good "fit" or rapport with each other.
Avoiding jail is good, since usually only bad things happen in jails. Serving booze to minors is bad. Even if bro's lawyer succeeds in keeping him out of jail, I'm sure he will advise bro never to do anything that stupid again and to be careful whom he invites to his football keggers.
--
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
> My brother, who is 24, threw a football party the other night. Several
> people there were under 21 and were drinking
Stop right there, quit making damaging admissions in public, and advise your brother to GET A LAWYER to represent him on these charges, and NOT TO TALK about the facts of the incident to anyone except his lawyer unless and until the lawyer instructs him to.
> In our state this is a 3rd degree misdemeanor. The penalty
> is 0-365 days in jail and/or a minimum fine of $1000 for the first
> offence and $2500 for each additional offence.
Right, that's what can happen if he gets convicted of all charges. But usually the lawyer is able to reach a plea bargain on just one or two charges with the others being dropped, and often the charge they agree to plead guilty to is a lesser offense that carries a lower minimum penalty.
> Now here is my question. Since 15 individual minors were caught with
> liquor, is my brother facing 15 offences or just 1 offence?
Potentially each act of furnishing liquor to a minor is a separate offense. But what does the charging document say? Was he given 15 citations, or just one?
> Also is jail time likely
Your bro will have to ask his lawyer to gauge the predelictions of your local judge to whom this case will be assigned, and your local prosecutors who will bring the state's case to trial. Obviously, there is a wide range here. He could get Judge Tenderheart, or Judge Hangem.
> or do the courts just want money?
Except for routine traffic speeding cases (which IMO are in some jurisdictions more about revenue than about safety) the courts mostly do NOT want either jail OR money, they simply want to convince the perp to stop doing what he was doing, straighten up and fly right. And, within the broad discretion the law usually allows the judge, Hizzonor will typically do whatever he feels it takes to send a message that will accomplish that end and change the perp's behavior.
Obviously, the facts make a difference, often much more than the differences between judges. If bro intended only to serve his 20something friends and didn't know there were minors at his party, much less that they were drinking, and he was maybe just a bit lax in checking out the ages of guests who got handed a cup or were allowed to tap the keg, a slap on the wrist and probation before judgment may appear to be enough, and if so, that's all your bro will get, even from Judge Hangem. But if he comes across as a hardened bootlegger who spiked the punch and pushed alcohol on clueless teen victims, one of whom almost died from acute toxicity, then even Judge Tenderheart is more likely to send him to jail. Or it could come out somewhere in between.
> He has no prior arrests or convictions.
That can help in a plea for leniency at the sentencing stage, but is completely irrelevant to whether he committed and should be convicted of the specific crimes with which he has been charged arising from _this_ incident.
> I'm trying to get an idea of how serious courts take this offence.
Pretty seriously, in most states. His lawyer will advise him of just what that means in your particular area.
> So basically is my brother going to, at minimum, going to be required
> to pay a $36,000 fine no questions asked?
No, no, no. At minimum he will plead to a lesser charge and get probation. Whether that is even a viable option, or whether there are flaws in the state's case that make it a better decision to insist on going to trial and risking a conviction of the heavier charges to try to get an acquittal, is a decision your bro can make with his lawyer's advice based on all the circumstances. Just because he's been charged with 15 offenses initially doesn't mean the state is actually going to seek conviction on all of them -- it gives both sides some bargaining room.
Bottom line, bro needs a lawyer. Quit reading Usenet and help him find one, if you want to be useful.
Ask your friends who have used lawyers before for _any_ purpose (commercial disputes, wills, divorces, traffic tickets, whatever) to give you the name of their lawyer, and whether they thought he did a good job. If you don't have friends who have used lawyers, surely you have as an acquaintance a person you trust who is in a responsible position that is likely to put them in touch with lawyers on a regular basis -- your boss, maybe? A guidance counselor? A doctor? After you get the names of some lawyers, call the ones that your referring friends believe did well, and ask the lawyer who he would recommend for this type of case. Unless that lawyer is a criminal specialist he will probably not be the one your brother chooses to hire, but can recommend someone more versed in that area. When you start getting multiple recommendations for the same guy or gal, that's your "go to" person. Bro can also comparison-shop on price, but IMO it's far more important to get competence and find someone he had confidence in, than to be bargain-hunting. After all, he has tens of thousands of dollars, and his freedom, at stake.
As a last resort, bro can call the local bar association for referrals, or let his fingers walk thru the yellow pages. But don't necessarily trust the lawyer with the biggest, most expensive ad in the book -- bro still has to talk to the lawyer he's interviewing for the job, long enough to tell whether he feels good about placing his fate in this lawyer's hands and if it feels like they have a good "fit" or rapport with each other.
Avoiding jail is good, since usually only bad things happen in jails. Serving booze to minors is bad. Even if bro's lawyer succeeds in keeping him out of jail, I'm sure he will advise bro never to do anything that stupid again and to be careful whom he invites to his football keggers.
--
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
Suing oneself?
On Nov 19, 8:32 am, j...@mit.edu (John F. Carr) wrote:
> In a different type of case such an assignment resulted in a
> lawyer suing himself for malpractice. The courts thought that
> was going a bit too far.
LOL. Yes, and a convicted criminal who intends to make an "ineffective assistance of counsel" argument as to why the appeals court should overturn his conviction is generally better off if he has a new attorney handling the appeal.
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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
> In a different type of case such an assignment resulted in a
> lawyer suing himself for malpractice. The courts thought that
> was going a bit too far.
LOL. Yes, and a convicted criminal who intends to make an "ineffective assistance of counsel" argument as to why the appeals court should overturn his conviction is generally better off if he has a new attorney handling the appeal.
--
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
Tuesday, August 21, 2012
Insurance bad faith liabilty, part 3
On Nov 19, 8:31 am, Stan <stanle...@hotmail.com> wrote:
> A synagogue provided secondary liability coverage for parents driving
> other children to youth group activities, and required each driver to
> have a minimum liability coverage that was above the state minimum.
> They didn't ask if the driver had at least 25/50 (for example)
> personal liability coverage, but rather required they list the actual
> amount of insurance on their internal "driver qualification" form.
> One of the parents, an insurance company executive, stated that they
> should not reveal this info.
Your situation actually embraces both the contexts I discussed in my previous post.
As between the drivers and the synagogue they were (volunteer) contractors for, the synagogue _required_ them to furnish evidence of coverage in excess of minimum legal limits. The synagogue had every right to do so, and were smart to do so. Those who refused to reveal such information could simply be barred from acting as volunteer drivers, just as a subcontractor who refuses to provide a certificate of insurance to the one who proposes to hire him is going to find himself not getting many contracts.
But the insurance guy was also right, and also smart, to tell those drivers not to reveal their higher-than-minimum coverage, OR the existence of the secondary excess policy provided by the synagogue, to the other parties at the scene of a crash. The carpool drivers were not legally required to disclose such information at the scene, There's no sense adding fuel to the potential fire, as it were, by giving any incentive to victims (real or imagined) to either fabricate or exaggerate the extent of their injuries simply because they have been led to believe there is a "deep pocket" out there who will uncritically pay their damages. N.b. most people who sue don't base their decision to file a claim on such dishonest criteria, and are genuinely injured. But why tempt those who aren't?
--
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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
> A synagogue provided secondary liability coverage for parents driving
> other children to youth group activities, and required each driver to
> have a minimum liability coverage that was above the state minimum.
> They didn't ask if the driver had at least 25/50 (for example)
> personal liability coverage, but rather required they list the actual
> amount of insurance on their internal "driver qualification" form.
> One of the parents, an insurance company executive, stated that they
> should not reveal this info.
Your situation actually embraces both the contexts I discussed in my previous post.
As between the drivers and the synagogue they were (volunteer) contractors for, the synagogue _required_ them to furnish evidence of coverage in excess of minimum legal limits. The synagogue had every right to do so, and were smart to do so. Those who refused to reveal such information could simply be barred from acting as volunteer drivers, just as a subcontractor who refuses to provide a certificate of insurance to the one who proposes to hire him is going to find himself not getting many contracts.
But the insurance guy was also right, and also smart, to tell those drivers not to reveal their higher-than-minimum coverage, OR the existence of the secondary excess policy provided by the synagogue, to the other parties at the scene of a crash. The carpool drivers were not legally required to disclose such information at the scene, There's no sense adding fuel to the potential fire, as it were, by giving any incentive to victims (real or imagined) to either fabricate or exaggerate the extent of their injuries simply because they have been led to believe there is a "deep pocket" out there who will uncritically pay their damages. N.b. most people who sue don't base their decision to file a claim on such dishonest criteria, and are genuinely injured. But why tempt those who aren't?
--
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
Megan Meier - Myspace suicide case
On Nov 19, 8:32 am, Deborah Speer <satrn...@sbcglobal.net> wrote:
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
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
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
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
Derivative movie rotoscoping, part 2
On Nov 17, 7:49 am, Mike <prabb...@shamrocksgf.com> wrote:
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
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
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
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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