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CRIMINAL PRACTICE Not hitting victim, driver still liable for hit-and-run The driver of a vehicle who left the scene of an accident resulting in death was responsible criminally even though the driver’s vehicle did not strike the decedent, the Indiana Supreme Court held on June 15. Armstrong v. Indiana, No. 26S05-0606-CR-212. Michael Armstrong was driving his car when his passenger opened a car door and jumped from the vehicle. Armstrong noticed that his passenger was injured, but said that he “freaked-out,” and kept driving. He later called his father, and they both returned to the scene of the incident. Prosecutors charged Armstrong with failure to stop after an accident resulting in death, a felony. Relying on an Indiana intermediate appellate court opinion, Honeycutt v. Indiana, Armstrong moved to dismiss, arguing that because his vehicle did not strike the jumping passenger, the statute in question, Ind. Code � 9-26-1-1, did not apply to him. A trial court denied the motion, and Armstrong appealed. An intermediate state appellate court reversed. Although it agreed with the trial court’s rejection of Honeycutt, the appellate court held that to hold Armstrong responsible criminally would be an unlawful retroactive application of the law. Reversing, the Indiana Supreme Court agreed with the two lower courts and held that Honeycutt was decided incorrectly. However, the court rejected the intermediate court’s retroactivity holding. The court said, “Considering the wording of the statute along with this Court’s assessment of the statute’s predecessor, Armstrong had fair warning that his conduct-failing to stop after an accident resulting in death-was criminal. Therefore the Due Process Clause of the Fifth Amendment does not bar Armstrong’s prosecution for this offense.”   Full text of the decision EMPLOYMENT No unemployment pay for Jewish school worker A discharged employee of a Jewish school was not eligible for unemployment compensation because the school qualified for the religious exception to the state’s unemployment compensation law, the Massachusetts Supreme Judicial Court held on June 16. Bleach v. Maimonides School, No. SJC-09617. Leon Bleich was employed by Maimonides School, an Orthodox Jewish school, from 1988 until his termination in 2002. Maimonides filed for unemployment benefits with the commonwealth’s division of unemployment assistance, which denied his application because his wages were exempt from unemployment tax under Mass. Gen. Laws ch. 151A, � 6(r), which exempted churches or “conventions or associations of churches” and entities “operated primarily for religious purposes” and “operated, supervised, controlled, or principally supported by a church or convention or association of churches.” Bleich appealed to the division’s board of review and then filed suit in commonwealth court, arguing that Maimonides was not exempt because it was neither a church nor controlled by a church or convention of churches. Both the board and the church ruled against Bleich. Affirming, the commonwealth’s high court held that Maimonides was exempt despite not being controlled by a hierarchical church. Noting that Maimonides received support from synagogues, the court said, “We reject the plaintiff’s implicit suggestion that to qualify as an exempt employer, a separately incorporated religious institution must be ‘operated,’ ‘supervised,’ or ‘controlled,’ by a church. As the division correctly points out, the Legislature provided that an organization operated primarily for religious purposes may qualify for exemption if it is merely ‘principally supported’ by a ‘church or convention or association of churches.’ ” Firefighters/dispatchers don’t get overtime pay Under the fair Labor Standards Act (FLSA), firefighters who work as dispatchers some of the time are employees “engaged in fire protection activities,” the 5th U.S. Circuit Court of Appeals decided on June 12. McGavock v. City of Water Valley, Miss., No. 05-60396. Five firefighters working for the city of Water Valley, Miss., sued the city, alleging that they are entitled to overtime pay under the FLSA because they work 24-hour shifts for 121 days of the year. 29 U.S.C. 207(a) requires that employees receive overtime compensation at 1 1/2 times the regular rate for hours worked in excess of 40 hours during a seven-day workweek. However, any employee “engaged in fire protection activities” is exempt from the requirement unless he or she works in excess of 212 hours in a work period of 28 consecutive days. The firefighters spend more than 20% of their time performing dispatching duties and not actual fire protection activities. A Mississippi federal court granted the firefighters’ motion for partial summary judgment and denied the city’s motion to reconsider. The 5th Circuit reversed. Prior to 1999, Department of Labor regulation 29 C.F.R. 553.210 held that if an employee performs nonexempt work more than 20% of his total working time, then he or she is not an employee “engaged in fire protection activities.” However, the 1999 amendment of the FLSA supplanted the regulation with 29 U.S.C.A. � 203(y), which did not include the 20% rule in its definition of employee “engaged in fire protection activities.” Thus the firefighters fall within the statutory definition of “employees engaged in fire protection activities,” and are exempt from the overtime requirement. EVIDENCE Abuse victim’s religious beliefs can’t be admitted It was plain error for a trial court to admit as evidence the religious convictions of a teenage victim of childhood sexual assault in order to bolster his credibility, the West Virginia Supreme Court of Appeals ruled on June 16. State v. Bolen, No. 32887. As a teenager in the early 1990s, Matthew Bolen sexually assaulted a 7-year-old boy. Eight years later, the victim confessed to two friends that he and Bolen had engaged in oral sex years earlier. In Bolen’s state court trial for two counts of first-degree sexual assault, in both opening and closing arguments, the state emphasized the victim’s devotion to God, church and missionary activities, indicating that this was evidence that he was telling the truth. Bolen was convicted as charged. The West Virginia high court reversed and remanded for a new trial, holding that evidence of the victim’s religious convictions was introduced not for the purpose of explaining why the victim had waited eight years to come forward with his allegations. Rather, it was offered for the express purpose of bolstering his credibility. Accordingly, there was error in admitting the evidence. The court said, “In the end, with no physical evidence to consider, this was a case of credibility of witnesses, and the jury’s verdict was surely affected by the State’s evidence of [the victim's] religious convictions.” LEGAL PROFESSION N.C. attorney admission curbs are constitutional A federal district court erred in holding that North Carolina’s admissions restrictions for out-of-state attorneys violated lawyers’ right to travel under the U.S. Constitution, the 4th U.S. Circuit Court of Appeals held on June 15. Morrison v. Board of Law Examiners, No. 05-1257. Steven Morrison, an attorney licensed in the state of California, moved to North Carolina, and sought admission to the North Carolina Bar. North Carolina required that for a reciprocity admission, the attorney had to have been practicing for four of the previous six years in a state that had reciprocity with North Carolina. Although Morrison had been practicing for four of the previous six years, California did not have reciprocity with North Carolina, thus North Carolina denied his application. Morrison sued, arguing that the North Carolina rule violated his constitutional right to travel under both the privileges and immunities clause and the 14th Amendment. A North Carolina federal court agreed, holding that the rule was unconstitutional, and ordered North Carolina to admit Morrison. Reversing, the 4th Circuit held that there was no constitutional violation because the rule treated all North Carolina residents similarly. Noting that reciprocal statutes or regulations have been uniformly upheld; they “are designed to meet a legitimate state goal and are related to a legitimate state interest.” The court added, “Simply because he practiced in California, a state not having reciprocity with North Carolina, for four of the last six years, does not mean that his constitutional rights have been violated.” PRODUCTS LIABILITY No-successor-liability rule clarified by court The New York Court of Appeals on June 13 refused to recognize a “product line” exception to the general no-successor-liability rule in strict products liability cases. Semenetz v. Sherling & Walden Inc., No. 80. Alabama-based S&W Edger Works Inc. sold a 10,000-pound sawing machine to New York-based Semenetz Lumber Mill Inc. Two years later, S&W sold its assets to another Alabama-based company, Sawmills and Edgers Inc. The purchase agreement stated that the new company was not assuming any liabilities (except unpaid inventory) of the old company. The new company then changed its name to Sherling & Walden Inc. Before the sale, however, an infant caught his right hand and fingers between a sprocket and chain apparatus in the sawmill, causing him to lose several fingers. Bridget Semenetz, the infant’s mother, sued Sawmills and Edgers and Sherling & Walden for strict products liability. The defendants said that as successors to S&W, the New York court lacked personal jurisdiction over them. The trial court ruled that while a corporation that acquires the assets of another is not liable for the torts of its predecessor unless four exceptions apply, a “product line” exception-whereby a company that acquires the assets of another company and continues the product line of the successor should be liable for injuries caused by the product line-applied. An intermediate appellate court reversed, acknowledging its prior endorsement of the product-line exception, which the New York Court of Appeals had not adopted, but finding that the concept applied only to tort liability, not personal jurisdiction. The New York Court of Appeals, the state high court, affirmed, not because there is a difference between tort liability and jurisdiction analysis, but because there is no product-line exception at all unless the Legislature creates one. Such an exception promotes “economic annihilation” of small businesses and burdens companies that were not responsible for putting a product into the stream of commerce. Further, extending liability to the corporate successor places responsibility for a defective product on a party that did not put the product into the stream of commerce. This is inconsistent with the basic justification for strict products liability, which is to place responsibility for a defective product on the manufacturer who placed that product into commerce. The corporate successor has not created the risk, and has not invited usage of the product or implied its safety. Since the successor was never in a position to eliminate the risk, the purpose of strict liability in modifying a manufacturer’s behavior is lost. REAL PROPERTY Junior mortgage holder entitled to sale notice A junior mortgage holder who is a party in a senior mortgage holder’s foreclosure proceeding is entitled to actual notice of a sheriff’s sale, the Kansas Supreme Court ruled on June 16 in an issue of first impression. Alliance Mortgage Co. v. Pastine, No. 91,929. In a foreclosure proceeding, a Kansas trial court determined that Alliance Mortgage Co. held a first lien on property owned by Hannelore Leighty, and Beneficial Mortgage of Kansas Inc., a party defendant, held a junior lien. The trial court entered a judgment in favor of Alliance and against Leighty. After Leighty did not pay within 10 days, a sheriff’s sale was scheduled. Beneficial was not served notice, and no notice was published. When Leighty filed for bankruptcy, the sale was canceled. The sale was rescheduled after the bankruptcy court granted Alliance an order lifting its stay. This time notice of the sale was published, but Beneficial did not know of the sale. The property was sold for $85,001. The trial court denied Beneficial’s motion to set aside the sale or, in the alternative, to allow another bid. In a rehearing, the trial court vacated its previous opinion and held that Beneficial was denied due process in not being given actual notice of the sale. An intermediate appellate court reversed. The Kansas Supreme Court reversed. Kan. Stat. Ann. � 60-205 requires actual written notice to parties of every action in a civil action. Kan. Stat. Ann. � 60-2410(a), which governs the sale of real property under execution, requires only notice by publication. Finding no conflict between the statutes, the court reversed, explaining that Section 60-205 is specific to parties like Beneficial, whereas Section 60-2410(a) is specific to the public. TORTS Nurse may act as expert witness in med-mal case A registered nurse may offer expert testimony in a medical malpractice case, the Oklahoma Supreme Court held on June 13, in a matter of first impression. Gaines v. Comanche County Medical Hospital, No. 100598. Stephen Gaines was admitted to the Comanche County Medical Hospital after sustaining multiple gunshot wounds. Following two surgeries, Dr. Kelly Means ordered that he not be moved for 48 hours. While in the hospital, Gaines developed bedsores on his sacral area, feet, heels and head. Gaines filed a medical malpractice action against the hospital and Means and Nursefinders Inc., and provided a nurse’s affidavit to support his claim regarding failure to meet the standard of care. The doctor was ultimately dismissed from the action. The hospital and Nursefinders filed a motion for summary judgment based on the fact that Gaines had not provided any expert physician testimony to support his claim. An Oklahoma trial court granted the motion. An intermediate appellate court reversed. Reversing and remanding, the Oklahoma Supreme Court held that the registered nurse here was qualified to offer expert testimony concerning the practices of other nurses and the standard of care in the avoidance, care, prevention and origin of bedsores because of her 18 years of experience with elderly and critically ill patients and her certification for wound care. In contrast, the doctor stated that he did not consider himself to be an expert on bedsores, and would have difficulty in identifying the stage of the wounds.

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