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ADMINISTRATIVE LAW Suit requires exhaustion of grievance remedies The exhaustion of remedies doctrine applies to the internal grievance processes provided by academic institutions, the Connecticut Supreme Court held on July 20. Neiman v. Yale University, No. SC 16961. In 1988, Yale University made Susan Neiman an assistant professor of philosophy, and gave her its 1986 faculty handbook. In 1990, external supervision of employment decisions increased when Yale placed its philosophy department into receivership, the terms of which required that an advisory committee would make appointments to the department’s faculty under the aegis of the university’s provost. Neiman requested that she be considered for tenure, but the advisory committee rejected her request. In 1995, Neiman again asked Yale to consider her for tenure. She was again denied, but she did not challenge the final tenure decision through the grievance process contained in the 1993 edition of the faculty handbook. Rather, in 1997, Neiman sued Yale, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation. The trial court granted Yale’s motion to dismiss all counts for lack of subject-matter jurisdiction due to Neiman’s failure to exhaust the handbook’s internal grievance procedures. On this issue of first impression, the Connecticut Supreme Court affirmed, agreeing with “the majority of jurisdictions” that an academic institution’s internal grievance process must be exhausted before an aggrieved faculty member may seek redress in the courts. Here, said the court, the handbook was part of the contractual bargain and defined the rights involved. Full text of the decision CIVIL PRACTICE Law choice change leads to revival of cyclist suit Holding that Virginia, rather than D.C., law was applicable, the U.S. Circuit Court for the District of Columbia reversed the district court’s ruling that a waiver executed by a D.C. woman precluded liability on the part of the organizer of a charity bike ride during which she died in Virginia. Jaffe v. Pallotta Teamworks, No. 03-7121, July 6. Thirty-one-year-old Washington resident Eve Jaffe signed a waiver of negligence and complete release before she began an AIDS ride, organized by the California corporation Pallotta Teamworks. While biking through Virginia, Jaffe died due to what her mother claimed was the negligence of Pallotta and the University of Maryland Medical System Corp., which provided, in Virginia, the medical services that failed to save her life. In the mother’s negligence and wrongful death suit, the D.C. federal court applied D.C. law, which honors waivers such as those at issue. The D.C. Circuit reversed, holding that comparison of substantial interests mandates application of Virginia law, which would deem the waiver void as against public policy. Full text of the decision CIVIL RIGHTS Public arena firms must adhere to disability laws Finding title III of the Americans With Disabilities Act (ADA) applicable, the 9th U.S. Circuit Court of Appeals held on July 13 that two private entities who stage the National Finals Rodeo at a publicly owned arena in Las Vegas are responsible for complying with the ADA’s public accommodation physical accessibility requirements. Disabled Rights Action Committee v. Las Vegas Events Inc., No. 02-17163. The Professional Rodeo Cowboys Association sponsors the rodeo, an annual competition, every November and December at the Thomas and Mack Center in Las Vegas. University System owns the center on behalf of the University of Nevada, Las Vegas. Las Vegas Events presents the competition, having entered into a licensing agreement with University System to use the center every year. Disabled Rights Action Committee, a nonprofit disabled rights group, sued alleging that their members were discriminated against at the center, seeking an injunction to prevent Las Vegas Events and the cowboy association from operating the center until it complied with the requirements of the ADA. The Nevada federal court dismissed the action. The 9th Circuit reversed. Title III of the ADA states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Following a Department of Justice regulation providing that a private entity that operates a public accommodation is subject to Title III even though the location may not be privately owned, the 9th Circuit asserted that the disabled rights group should be able to develop the factual basis for its claim. Full text of the decision CREDITORS AND DEBTORS Family of hijack victim can’t attach Iran property The family of a man killed in the 1984 hijacking of a Kuwaiti airline cannot invoke the Terrorism Risk Insurance Act Summary of 2002 to attach Iranian property in Bethesda, Md., to satisfy a judgment against the country of Iran, the 4th U.S. Circuit Court of Appeals ruled on July 14. Hegna v. The Islamic Republic of Iran, No. 03-2159. Charles Hegna was killed by Iranian-backed Hezbollah during the 1984 hijacking. Following the lifting of the bar on suits imposed by the Foreign Sovereign Immunities Act, Hegna’s family eventually sued Iran. They secured a $375 million judgment against Iran’s ministry of information and security. To satisfy their judgments, the Hegnas sought both to attach two Maryland properties, citing the terrorism risk act, and payment in accordance with the Victims Protection Act. The district court quashed the writs of attachment, ruling that the terrorism risk act didn’t apply to the properties. The 4th Circuit affirmed, but for different reasons. By their receipt of a payment under the Victims Protection Act, the Hegnas had relinquished all existing and future rights to execute or attach against certain properties. Full text of the decision CRIMINAL PRACTICE Good-faith exception to exclusionary rule is good In a 5-2 decision filed on July 15, the Michigan Supreme Court adopted a “good faith” exception to the exclusionary rule. People v. Goldston, No. 122364. Following the Sept. 11, 2001, attacks, police found Glenn Goldston collecting money dressed as a fireman. A search warrant was later issued to search a given address. While searching the address, police discovered firefighter paraphernalia, a firearm and marijuana. Goldston was charged with firearm and drug crimes. He filed a motion to suppress, arguing that the search warrant did not connect him to the place searched and did not state when police had seen Goldston collecting money. The trial court agreed that the warrant was not supported by probable cause. The appeals court denied the prosecution leave to appeal. The Supreme Court reversed, finding the search to be permissible under a good-faith exception to the exclusionary rule. Notes from a 1963 constitutional convention indicated a preference for a more relaxed application of the exclusionary rule. Rules governing the exclusion of evidence have been judge-made in Michigan, and, as such, the court was free to modify them. Consequently, an exception will be recognized where officers relied in good faith on what may have been a defective search warrant. Full text of the decision EMPLOYMENT ‘Lifetime’ benefits can be ended during lifetime A company may terminate a health care allowance that was promised as “lifetime” benefit for employees who accepted an early retirement package, the 7th U.S. Circuit Court of Appeals held on July 15. Vallone v. CNA Financial Corp., No. 03-2090. In 1991, 347 employees of the Continental Insurance Co. accepted the company’s offer of an early-retirement package. Before accepting the package, the retirees were told both orally and in writing that the package included a “lifetime” welfare benefit in the form of a health care allowance. Three years after Continental was acquired by CNA Financial Corp., CNA told the early retirees that, effective in 1999, their health care benefit would be terminated. Certain retirees unsuccessfully challenged this decision with the plan administrator. They later sued, alleging wrongful denial of benefits under the Employee Retirement Income Security Act, breach of contract, estoppel and breach of fiduciary duty. An Illinois federal court granted CNA summary judgment. The 7th Circuit affirmed. Noting that CNA had conceded that the health care benefit was a “lifetime” benefit, the court said that “[r]eading the document in its entirety, the clauses explain that although the plan in its current iteration entitled retirees to health coverage for the duration of their lives and the lives of their eligible surviving spouses, the terms of the plan-including the plan’s continued existence-are subject to change at the will of [the employer].” The 7th Circuit said that “[a]s laypersons, the plaintiffs’ confusion on this issue is understandable” and very unfortunate, if it prompted them to accept the package. But in the eyes of the law, the “lifetime” nature of a welfare benefit “does not operate to vest that benefit if the employer reserved the right to amend or terminate the benefit.” Full text of the decision FAMILY LAW Support payments go on if paternity isn’t decided Vacating the child support arrearages of a man who later turned out not to be a child’s father was error, the Nebraska Supreme Court concluded on July 16. State on Behalf of L.L.B. v. Hill, No. S-03-225. Marquise S. Hill failed to appear for a scheduled hearing to establish whether he was the father of L.L.B. and for genetic testing. In 1996, the trial court entered a paternity decree determining that Hill was the father of L.L.B. and ordered him to pay child support. He filed a motion to set aside the decree and to file an answer out of time. Approximately a year later, his motion was dismissed for failure to prosecute, as he was still in prison. In 1998, Hill was released from prison. His driver’s license was suspended in 2001 for delinquent child support payments. In 2002, the trial court ordered Hill to show cause why he should not be held in contempt for failure to pay child support. Hill filed a motion for genetic testing and for a suspension of child support. After genetic testing showed that he was not the father of L.L.B., he filed a motion to vacate the paternity decree. At a hearing, the referee recommended that the court vacate the decree and terminate Hill’s future child support obligations but not vacate the arrearages. The trial court disagreed. The Supreme Court reversed, holding that, though Hill had believed that he was not the father of L.L.B., he waited almost five years from the time of the dismissal of his motion to set aside the paternity decree to do anything. Because he did not act until the state began contempt proceedings against him, the court found that equity should not help him in vacating the arrearages. Full text of the decision INTELLECTUAL PROPERTY Sales loss due to indirect confusion a Lanham case Commercial injury from trademark confusion is not restricted to direct loss of sales, but includes confusion by people who are not purchasing decision-makers but who could indirectly influence sales, the 1st U.S. Circuit Court of Appeals held on July 12. Beacon Mutual Ins. Co. v. OneBeacon Ins. Group, No. 03-2671. Since 1992, a Rhode Island insurer has sold workers’ compensation insurance using the name the “Beacon Mutual Insurance Co.” as well as a lighthouse logo. In 2001, CGU Corp. changed its name to OneBeacon Insurance Group, adopted a lighthouse logo and also sold workers’ compensation insurance. Beacon Mutual sued OneBeacon, alleging state and federal trademark violations. OneBeacon argued that Beacon Mutual had not lost any sales because there was no evidence of confusion on the part of people purchasing workers’ compensation insurance. The only people confused were the ones who weren’t interested in buying insurance. The Rhode Island federal court granted summary judgment to OneBeacon. The 1st Circuit reversed and remanded, holding that “the type of commercial injury actionable under � 43(a) of the Lanham Act, 15 U.S.C. � 1125(a), is not restricted to the loss of sales to actual and prospective buyers of the product in question.” Rather, confusion “is relevant when it exists in the minds of persons in a position to influence the purchasing decision or persons whose confusion presents a significant risk to the sales, goodwill, or reputation of the trademark owner.” Full text of the decision TORTS Ski area operators liable for snow-tubing injuries The state statute that protects ski area operators from liability for certain injuries incurred while skiing does not apply to injuries sustained while snow tubing, the New Hampshire Supreme Court ruled on July 15. Sweeney v. Ragged Mountain Ski Area Inc., No. 2003-719. While using a specifically designated snow-tubing area of Ragged Mountain Ski Resort, Alaina Sweeney’s tube crossed over the lane line into the adjacent lane. She crashed into another tuber and sustained injuries. She sued Ragged Mountain, which argued that New Hampshire Rev. Stat. Ann. � 225-A:24 holds that people who participate in the “sport of skiing” assume the risk of injuries the activity may cause. The trial court granted Ragged Mountain’s motion to dismiss. The New Hampshire Supreme Court reversed. The phrase “sport of skiing” is not defined, but by looking at the purpose of the statute, the court found that it is concerned only with those who utilize alpine and nordic areas. Nothing in the statute expresses a legislative intent to extinguish common law claims for snow tubers’ injuries on tracks designed solely for snow tubing. Full text of the decision TRUSTS AND ESTATES Zoning law can’t prevent property transfer by will A zoning ordinance cannot prevent an otherwise valid devise of real property, the Iowa Supreme Court ruled on July 16 in a question of first impression. In the Matter of the Estate of Hurt, No. 59/03-0069. A woman’s will left her farm to her son and her house and the small piece of land around it to her two daughters. For 40 years, the son had used the parcel of land surrounding the house to access the farm’s southern fields. The will gave the son an easement over the land to continue such access. The sisters protested that the easement violated a county zoning ordinance that requires agricultural easements to be set back at least 30 feet from a home. The trial court found that the will’s intent was to give the son an easement. The Iowa Supreme Court affirmed. Since a zoning ordinance is merely a limitation on an owner’s use of land, and not on its alienability, the court declared that the son has an easement over his sisters’ land, subject to county zoning laws and with the right to seek a variance. Full text of the decision

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