Mark You Calendars! October 30

Today, we shift focus away from our usual discussions about the law to, once again, make room for some of my self-promotion.

I am pleased to announce that on October 30, 2008 at 5:30 p.m., I will present a seminar here in the firm's Miami office called "An Ounce of Prevention." It will focus on small things you can do to limit or minimize your risk of exposure to litigation irrespective of whether you are an employer or employee.

I expect to focus on personal and business tools that impact everyone - e-mail and computer networks, employee manuals/policies, customer lists and business forms. These areas are not industry specific, but meant to be geared towards everyone.

I promise to make the event as entertaining as possible and will take great pains to avoid making this like a law school lecture. I may even get fancy and have a powerpoint presentation with pictures and everything. You don't want to miss this.

In a down economy, everything you can do to limit your risks is a plus. I invite all of you and hope you can come. After all, you may just learn something you can use.

Survivor (not the t.v. show)

Monday......again.

For many, many, many years, it was the law that you had certain rights of recovery in life that would be lost upon death. Frequently, defendants to lawsuits would do their best to wait out or delay such causes of action brought by elderly plaintiffs knowing that potential liability died with them.

Well, no more. The law was changed some years back to provide that no cause of action dies just because the plaintiff does. Typically, the decedent's probate estate will step in and continue the lawsuit. This process is known as substitution.

I was told to keep it short today...and so I will. Have a great day and I'll "see" you all tomorrow.

Liquid

Happy Friday, everyone. For those of you sick of watching tv coverage of T.S. Fay and are looking forward to a reprieve, please be advised that you will get no such thing. There are two more disturbances out in the Atlantic, the closest of which appears to be ripe for significant development over the weekend. Just what the doctor ordered. Details are at www.weatherunderground.com.

On to the news.....Today, liquidated damages provisions. Now, I'm sure most of you are thinking that this has nothing to do with you and something that sounds so strange has no bearing upon you or your life. I'm willing you bet you are wrong. Take a look around at many of the same documents I referenced in my last blog entry- (contracts for goods and services, mostly). Many of those same documents will have a liquidated damages provision, which provides for an exact amount of money to be paid by a party breaching the contract to the party that didn't.

Yes, these things are legal but they are surrounded by a fuzzy halo of qualifiers and requirements that are entirely dependent upon the language of your contract and your particular circumstances. For instance, a liquidated damages clause is inserted in agreements (in theory, anyway) to cover the costs or best guess-timated costs to compensate the non-breaching party. This is supposed to save time and money figuring out what the actual costs would be and allow all the parties to move on as quickly, as possible.

Such clauses cannot be penalties. You cannot have a provision that provides for you to pay $1,000,000 for terminating an agreement in which you are only buying $50,000 worth of merchandise or services. It has to be proportionate to the actual expenses involved and what the circumstances of your situation or industry properly value the loss to be sustained.

The reality, there tends to be a lot of fighting about whether a particular clause is reasonable or constitutes an illegal penalty. It helps to review these clauses in advance of signing an agreement and getting some written clarification from the other contracting party as to what the basis for calculating this number was. Such information can be very useful if your agreement goes south later on.

Have a great weekend!

On My Way To The Forum

I trust everyone's dried out and back to normal after Fay's interruption of our week. Hey, speaking of the law...... Today, it's forum selection clauses. For those of you who buy or sell goods or service (that's all of you, in case you didn't pick up on the sarcasm), this pertains to you.

When you buy a t.v. or your company buys 5 million widgets, there was some paper that documented that transaction. Among the invoices, receipts, bills of lading, service agreements and other possible paperwork was likely buried a forum selection clause. Forum selection clauses say that, if there is a dispute about the t.v. or the widgets, that dispute shall or may be resolved in a particular place or before a particular tribunal. In other words, you may live in Miami-Dade County and think that any problem with the t.v. or widgets will be resolved here and in court, but you could be wrong. All those papers may include a provision that says that you will litigate in the state courts of New Jersey, located in Bergen County or even that you will submit to arbitration.

These provisions are generally enforceable. I can't tell you how many calls I get from clients (actual and prospective) telling me about a problem and that we need to file suit only to receive the client's papers and find out that I have to refer the matter to someone in Texas because that's what the forum selection clause says.

So, what am I telling you? Read. Many people think "fine print" is just there for lawyers and that it doesn't mean anything. Yes, it does - it means your rights are being decided and delineated. You should read these things or bring them to someone who does so for a living. You don't want to solve a $40,000 out in Leavenworth, Kansas if you don't have to, right?

I Don't Know If I'm Coming Or Going

Welcome to Tuesday in the post-Fay hysteria.

The big storm proved to be quite a letdown, but it did cause a few people to ask me the following question: If my office is open just before a storm and something happens to one of my employees while commuting to work, am I liable?

Strangely, I did not have the definitive answer right in my head (which, those of you know me well, is not all that unusual). But, I do have excellent resources and more than adequate research skills. So, for those of you who asked or think that this answer may bear upon you or your working situation, pay attention.

Employers' liability for injuries occurring in connection with a job are covered by the workers' compensation laws. You employers get charged an annual premium by the state to keep coverage in place for workplace related injuries. Well, guess what is not covered? Commuting back and forth to work. It's called the "coming and going rule" and exempts from workers' compensation the time an employee spends driving to and from work. So, there is no day to day problem or liability associated with an employee's commute to work.

Now, there are three (3) generally recognized exceptions and these matter. The first is the "dual purpose" rule - if the employee was commuting AND the drive was also part of some other business purpose for the boss. For instance, if you drive home with a booth for a job fair that you will attend the next day for your employment, you are covered by the workers' compensation laws.

The second is the "traveling employee rule" which covers employee travel attendant to performing one's job duties. Pretty straightforward.

The third is the "special errand exception" and covers employees who have to leave the workplace on an errand for the employer.

But what about hurricanes? Well, there is also something known as the "special hazard" exception to these exceptions. This rule says that "If an accident is deemed to have occurred off-premises, an employee's injury is compensable if it is caused by a special hazard on a normal and customary route used by the employee as a means of entry to and exit from the employee's place of business." What does that mean? Well, if you are using your regular work route and there is a "special hazard," you may be able to obtain workers' compensation coverage for the injuries you sustain. The law seems to include hazards created by hurricanes as falling within this exception.

So, not only is the storm a potential problem, but the messes it leaves behind can also be sources of workers' compensation liability. For instance, there is one case I saw in which a bridge tender was able to claim workers' compensation benefits because he tripped and fell on a pile of debris cause by Hurricane Wilma.

Let me know if this raises any other questions for any of you. Have a good Tuesday and stay dry.

Experts and Hot Tubs

For any of you ever involved in litigation, you may have been required to hire expert witnesses to assist with a damages calculation or to testify about medical issues. If you have been following along for the last few months, you know that I previously discussed (assuming me writing and you reading counts as a discussion) the general use of experts and that they are the only trial witnesses who can render opinion testimony.

As a quick refresher, experts are people who have a specialized knowledge or expertise about some matter at issue in your suit and can help the jury understand some special or technical issue that might be beyond the day to day information people know. The most typical examples- doctors. They often testify about the extent and permanency of a particular injury or medical condition.

I'm sure you were delighted to find out that, in addition to paying me, you got to pay for the use of an expert witness. That aside, you also came to learn that the other side had an expert witness and so we had to bolster our expert and discredit their expert because even though both experts had access to the same information, they came to exactly opposite conclusions. So, in an effort to make out expert more believable, we attacked credibility and try to prove bias.

With expert witnesses, this is done by trying to show that they are hired guns for one side and that, by taking money for their testimony, they are biased. Now, it doesn't take a genius to figure out that this methodology applies to every single lawsuit in which expert witnesses are used and seems more than a little stupid to attack someone for following the established rules for the retention and use of expert witnesses.

Well, apparently some folks are tired of this idea that a party to a lawsuit hires, retains and largely controls expert witnesses. There are proponents for and studies out there about the possibility of using expert witnesses as they do in other countries. In Australia, for example, the parties still get to hire whatever expert they like, but the judge conducts the expert witness examination by getting the experts together and having more of a collaborative discussion. The Aussies refer to this as "hot tubbing" and many believe allows for a more honest assessment of the information. In other countries, expert witnesses are appointed by the courts and owe their fidelity to the process, not a party.

In fact, America appears to be one of the few hold outs of the idea that parties get to select, hire, prepare and examine their own expert witnesses.

I would be interested in hearing what any of you think about this. As a lawyer, I have my own very distinct ideas about expert witnesses, but would like to hear what those whose cases actually rely on them have to say about the issue. Feel free to post your thought.

I got to watch the guy, too?

A few months back, I posted some information about the liability you guys can incur if you hire someone you shouldn't or who is unfit for the job. The cause of action was called negligent hiring and it put you employers in the hot seat for hiring child molesters as baby sitters or known sexual harassers to run the office.

I have more good news for you. Your obligations don't end there. As an employer, you have to properly supervise your employees. There is a cause of action for negligent supervision that was first recognized about 50 years ago that allowed plaintiffs to sue an employer and the negligent employee. It wasn't used all that much, but it recent years plaintiffs (particularly those alleging claims of employment discrimination) have latched on to it as another theory to get to the employer.

Essentially, as the employer, you have a continuing duty to ensure that your employees remain fit for the position they were hired to fill. If you become aware that they are acted outside the scope of the law or the course of their employment and doing these that subject you or your business to liability, you have a duty to do something about it. If you don't.....you know how that story ends.

So, now we come to the part where I ask "So, what am I talking about?." You run ABC, Inc. You hire John to run the accounting department at your office. A few months into the job, customers start to complain that their invoices are overstated and you notice that the money doesn't seem to flow in quite like it used to. But, instead of checking in with John, you figure it's an economic cycle, things will turn around and it's just best to let things run their course.

Bad choice. Turns out, John has been overstating customer invoices and threatening them if they don't pay the overstated amount. Worse, John has fraudulently induced customers to buy many more of your widgets in exchange for all sorts of crazy promises.

In addition to the fact that John is an extortionist and civilly liable for fraud, guess who could get tagged for failing to properly keep an eye on John?

Water, water everywhere

Happy Monday again.

Sorry I was out of touch for the better part of last week, but the host service for this blog was just not cooperating with my computer. In other words, I got locked out of my own blog site. Anyway.....

Pools. Just about everyone has one and many fail to appreciate that the law acknowledges that your ownership does not make you a bank account for people who use it or are hurt in it. Some clients are very concerned that their ownership of a pool is a real potential liability. After all, people could drown in there.

Welcome to the decision of Longmore v. Saga Bay Property Owners Association, Inc. a case reported a few years ago (2004 to be exact). In that case, the decision to dismiss a wrongful death based upon a minor's drowning in a community's man-made lake was affirmed. The part you care about is the part in which the court went through and cited to a number of cases that supported its general proposition that "there is no liability for a child's drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water or the water contains a dangerous condition constituting a trap."

The things that constitute an unusual danger are pretty extreme. Guillot v. Fisherman's Paradise, Inc., 437 So.2d 840 (La.1983)(no liability for two-year-old's drowning even though pond's sides went straight down and surface covered with thick, green algae, trash and debris); Corcoran v. Village of Libertyville, 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978)(no liability where drainage ditch had deceptively steep slope, irregular embankment, an “unnaturally pocketed” bed causing excessive accumulation of water, rubbish and debris). Kinya v. Lifter, Inc., 489 So.2d 92 (Fla. 3d DCA 1986) (artificial bank's slope not so different from natural bodies of water); Hendershot v. Kapok Tree Inn, Inc., 203 So.2d 628 (Fla. 2d DCA 1967)(sudden drop-off two feet from shore); Howard v. Atlantic Coast Line R.R. Co., 231 F.2d 592 (5th Cir.1956)(applying Florida law; straight sides do not constitute hidden danger); Cortes v. Nebraska, 191 Neb. 795, 218 N.W.2d 214 (1974)(public recognizes that bodies of water vary in depth and that sharp changes can be expected); Plotzki v. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (same).

And you thought alligators were the big problem in the water.

Gone to the dogs

Monday again. The phrase "gone to the dogs" seems to be prevalent these days and has application to so many things going on. The housing market, gas prices, the economy generally, the election- all of it, I've heard, has gone by way of the canine. We're even considered to be in the dog days of summer.

Ok, now that I've beaten this stupid pun/metaphor/simile to death, let's get down to business. Like the myriad of other matters in our lives, our dogs are also subject to regulation and, in some legal respects, are extensions of ourselves. In this case, I'm referring to the Florida law that makes owners personally responsible for the damage done by dogs to other people, other pets and their livestock:

767.01 Dog owner's liability for damages to persons, domestic animals, or livestock.--Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01.

I hate to point out the obvious, but your dog can't be sued for the things he or she does wrong. You, on the other hand, can. So, you know the drill- leashes, fences, vaccinations. Keep up with all of it.