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ATTORNEY FEES Warranty did not bar fees under Magnuson-Moss The purchaser of a motor coach that, contrary to warranty, was not able to negotiate mountain roads was entitled to attorney fees under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, the Michigan Court of Appeals held on May 26, in a case of first impression. Leavitt v. Monaco Coach Corp., No. 213020. The court held that although the warranty barred recovery for incidental and consequential damages, and although attorney fees are sometimes considered incidental or consequential under Michigan law, those circumstances did not override the statutory grant of fees under the federal act. Ignoring court orders showed bad faith A trial court correctly found that a city had acted in bad faith when it refused to follow a civil service commission decision that four firefighters be promoted, ignored court orders mandating the promotions until it was threatened with contempt — refusing even then to promote one of the firefighters (while misrepresenting to the court that it was in compliance) — and coming into full compliance only after contempt sanctions had been levied, the Ohio Court of Appeals, 1st District, held on June 2. Lane v. City of Cincinnati, C-990695. CIVIL PRACTICE Sanctions for being 12 minutes late not warranted A district court erred by imposing sanctions on an attorney for being 12 minutes late for a hearing and for misrepresenting the location of a Department of Justice letter in his file because the attorney had a plausible reason for being late and the record showed no evidence of bad faith; the attorney was confused about the location of the letter in his file; and the location of the letter was completely peripheral to the proceedings. the 5th U.S. Circuit Court of Appeals held on May 26. In re Greene, No. 99-11269. Foreign tort claims deemed cleared up by state court A plaintiff-appellant’s foreign law tort claims for negligence, already given final judgment in a Louisiana state court, maintenance and cure must be dismissed because res judicata and “principles of comity” barred relitigation of the claims, the 5th U.S. Circuit Court of Appeals held on June 5. Jackson v. North Bank Towing Corp., No. 99-30030. CONSTITUTIONAL LAW Business enterprise set asides are unconstitutional Ohio’s minority business Enterprise Act, under which the state had planned to restrict bidding on a prison construction project to minority-owned firms, was unconstitutional because the state lacked data adequate to show the kind of pervasive, systemic and obstinate discrimination that might justify the act’s race-based set-aside of 5 percent of state construction projects, the 6th U.S. Circuit Court of Appeals held on June 1. Associated General Contractors of Ohio Inc. v. Drabik, No. 98-4393. Furthermore, the court said, the act was not narrowly tailored to its purpose because the legislature never considered whether racially neutral means could be used to redress minority under-representation in construction. 11th Amendment applies to Puerto Rico as to states Puerto Rico receives the same 11th Amendment protections as states, including the benefit of sovereign immunity, the 1st U.S. Circuit Court of Appeals held on June 1. Mercado v. Commonwealth of Puerto Rico, nos. 99-1661 and 99-1584. Therefore, the court held, the enforcement provisions of the Fair Labor Standards Act do not abrogate that immunity. Litigant can put comments about suit on Web site The daughter of the man who created the 1923 “Skippy” cartoon character can still post comments on her Web site about her ongoing litigation with the manufacturers of Skippy peanut butter, the 4th U.S. Circuit Court of Appeals ruled on June 2. CPC International Inc. v. Skippy Inc., No. 99-2318. The federal district court injunction requiring Jean Crosby Tibbets’ to remove 10 pages from her Web site was not supported by specific findings that the content on those pages violated a 1986 order between Tibbets and CPC International, the court found. The order prohibited Tibbets, who owns her father’s trademark, from using the Skippy character on snack food, such as caramel corn, while her Web site comments predominantly discuss her opinion about CPC, which uses a similar trademarked character. CONTRACTS Gym immune from liability for its own negligence A fitness center is immune from liability to a member who was injured during a fitness evaluation because the contract that she signed contained an exculpatory clause, the Maryland Court of Special Appeals held on May 31. Seigneur v. National Fitness Institute Inc., No. 6136. Although it was an adhesion contract, the agreement contained the clear intention of the parties to insulate the fitness center from liability for all acts of negligence, the court found. Because the fitness center is not providing “essential services” of great public importance or practical necessity, the exculpatory clause of the contract is not void as against public policy, the court added. CRIMINAL PRACTICE Hubbell conviction tossed because of use of records A tax-misdemeanor indictment against former Clinton administration official Webster Hubbell must be dismissed because it was based in part on records he surrendered under a grant of immunity, the U.S. Supreme Court ruled on June 5. U.S. v. Hubbell, No. 99-166. The 8-1 decision wiped out Hubbell’s guilty plea, entered conditionally as he challenged the indictment. “It is abundantly clear that the testimonial aspect of [Hubbell's] act of producing subpoenaed documents was the first step in a chain of evidence that led to his prosecution,” Justice John Paul Stevens wrote for the court. “The documents did not magically appear in the prosecutor’s office like ‘manna from heaven.’ They arrived there only after [Hubbell] asserted his constitutional privilege, received a grant of immunity and — under the compulsion of the district court’s order — took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena.” Justice Clarence Thomas wrote a concurring opinion. Chief Justice William H. Rehnquist dissented but did not file an opinion. Machine gun enhancement requires solid proof A federal law (18 U.S.C. 924(c)) that subjects anyone who carries a machine gun during a violent crime to an additional 30 years in prison states an element of an offense that must be proved beyond a reasonable doubt, the U.S. Supreme Court ruled on June 5. Castillo v. U.S., No. 99-658. Federal appeals courts had split on the issue, with some ruling that finding use of a machine gun is merely a sentencing factor a judge gets to determine by a preponderance of the evidence. “We believe Congress intended the firearm type-related words it used…to refer to an element of a separate, aggravated crime,” Justice Stephen G. Breyer wrote for a unanimous court. “Our consideration of Section 924(c)(1)’s language, structure, context, history and such factors that typically help courts determine a statute’s objectives leads us to conclude that the relevant words create a separate substantive crime.” Absence of visible seat-belt raises reasonable suspicion The police did not violate plaintiffs’ Fourth Amendment rights when they stopped the plaintiffs’ car for a perceived seat-belt violation because the absence of a visible shoulder harness pulled down and across the driver provided the officers with a reasonable suspicion under Iowa law to stop the plaintiffs, the 8th U.S. Circuit Court of Appeals held on May 30. Thomas v. Dickel, No. 99-3239. Warrantless misdemeanor arrests by civilians barred A uniformed, off-duty, municipal police officer who observed and stopped vehicle outside city limits, did not have police authority to detain driver until a highway patrolman arrived, despite smelling alcohol and seeing open bottles of alcohol in the car, the South Carolina Supreme Court held on May 30. State v. McAteer, No. 25134. The court, in reversing an en banc decision by the state Court of Appeals, held that South Carolina did not recognize a common-law right for a private citizen to make a warrantless arrest for a misdemeanor. Officer’s assessment of photos is sufficient cause A police officer had probable cause, under Illinois law, to arrest a defendant for the crime of possession of child pornography after the officer identified three photographs he considered child pornography in a magazine addressed to the defendant and containing narratives describing sex with children, the 7th U.S Circuit Court of Appeals held on May 31. U.S. v. Moore, No. 99-2609. Wire fraud indictment misses five-year limit A defendant’s wire-fraud indictment was untimely because a five-year statute of limitations was applicable, the 1st U.S. Circuit Court of Appeals held on May 31, in a case of first impression. U.S. v. Agne, No. 98-1974. Although the statute also provides for a 10-year limitations period, the court said, that provision applies only if the “offense affects a financial institution.” The wire transfer of funds to the defendant, pursuant to a letter of credit after funds were already deposited in the bank did not adversely affect the bank, which neither sustained a loss nor was exposed to risk of loss and was not a “financial institution” within the plain meaning of 18 U.S.C. 3292(2), the court found. Felon with reinstated rights could serve as a juror A defendant convicted of assault was not entitled to a new trial on the ground that one of his jurors was a convicted felon because that juror’s rights had been restored by order of the governor, the Kentucky Court of Appeals held on June 2. Commonwealth v. Anderson, No. 1998-CA-002588-MR. Although the statutory right to serve as a juror applies only to felons who have pardoned — i.e., have had their rights restored and their convictions expunged — the court held that restoration of rights was equivalent to a pardon for purposes of jury duty. EMPLOYMENT LAW Chain of events forms basis of retaliation claim An employer was denied its motion for summary judgment in a retaliation claim by an employee in a case in which a supervisor allegedly warned the employee not to complain of discrimination or face termination after the employee complained of a co-worker’s sexually harassing behavior, and in which the employee then complained about sexual harassment from a different co-worker, was suspended the day after the second complaint and later terminated, the U.S. District Court for the Northern District of Texas has held. Goff v. Soundolier Division of American Trading and Production Corp., No. 3:98-CV-2254-P. Negative evaluations sink anesthesiologist’s ADA suit An anesthesiology resident suffering from breast cancer who was terminated after an attending physician commented that certain hospital privileges were being revoked because she could not handle the stress of the cancer did not establish a claim for discrimination under the Americans With Disabilities Act because the majority of the resident’s performance evaluations were negative, the U.S. District Court for the Southern District of New York ruled on May 30. Pikoris v. Mount Sinai Medical Center, No. 96-1403. Plaintiff’s demands on employer doom ADA suit A university did not violate the Americans With Disabilities Act in failing to renew an anesthesiology professor’s term after the professor suffered chronic eye pain after eye surgery because the professor conceded that he could not perform the essential functions of his job but requested unreasonable accommodations such as suggesting that many of the essential functions of his job be eliminated and that the university give him an indefinite phase-in period to reintegrate himself in the workplace, the U.S. District Court for the Eastern District of Pennsylvania held on May 30, Hong v. Temple University, No. 98-4899. Worker laid off in RIF still has bias claim for palsy A worker with Bell’s Palsy, who testified that his supervisor told him that both his absences from the job for treatment and his disability were the reasons he was being laid off, has presented sufficient evidence for the jury to find a violation of the Tennessee Handicap Discrimination Act, despite the fact that the worker was just one of many employees laid off during a reduction in force, the Tennessee Supreme Court held on May 30. Barnes v. The Goodyear Tire and Rubber Co., W1997-00247-SC-R11-CV. Title VII protects those who stand up for minorities A district court improperly granted summary judgment against the claims brought under Title VII of the Civil Rights Act of 1964 by a former university affirmative action officer who claimed that he was discriminated against, not because he was black, but because of his persistent efforts to be an advocate for women and minorities in university hiring decisions, the 6th U.S. Circuit Court of Appeals held on June 1. Johnson v. Univ. of Cincinnati, No. 98-3016. Title VII offers a remedy not only to members of protected classes, the court said, but also to those who face discrimination because of their association with protected classes. Firing addict based on current drug use is legal The termination of a surgical assistant who was addicted to prescription pain relievers and obtained pills illegally from another hospital employee did not violate state or federal laws prohibiting discrimination against the handicapped, the Ohio Court of Appeals,1st District, held on June 2. Hall v. The Jewish Hospital of Cincinnati, C-990571. Although addicts in recovery are considered handicapped, the court said, the laws’ protections do not extend to those who are currently using illegal drugs. Affirmed. Employees not bound by reassigned contracts Employees were not bound by their noncompete covenants after their employer’s parent company merged with other corporations and assigned their employment contracts to the newly formed company because the contracts did not state that they were assignable and the employees were never told that their contracts were, in fact, assigned to another company, the Ohio Court of Appeals, 10th District, held on June 1. Safelite Glass Corp. v. Kagy, No. 99AP-875. The employees’ continued employment after the mergers did not constitute consent to the assignment, the court said. FAMILY LAW Washington visitation law is government interference A Washington state law that allowed any person to win a court-ordered right to see a child over a custodial parent’s objection if such visitation was found to be in the child’s best interest violated an objecting mother’s right to raise her family free from government interference, the U.S. Supreme Court ruled on June 5. Troxel v. Granville, No. 99-138. The court said that the state law had been applied in a way that violated the mother’s fundamental right, protected by the 14th Amendment’s due process clause. “So long as a parent adequately cares for his or her children … there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children,” Justice Sandra Day O’Connor wrote in a plurality opinion. The ruling did not give parents absolute veto power over who gets to visit their children but said that states must be exceedingly careful when trying to help grandparents and others “outside the nuclear family” to see the children on a regular basis. The court emphasized that the Washington law was “breathtakingly broad,” and offered few guidelines for determining whether grandparents rights laws in all 49 other states pass constitutional muster. The 6-3 decision yielded six separate opinions. Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined in the plurality opinion. Justices David H. Souter and Clarence Thomas wrote concurring opinions. Justices John Paul Stevens, Antonin Scalia and Anthony M. Kennedy each wrote dissenting opinions. Father can’t use private deal to calculate support A psychiatrist who fathered a child with a former patient and who was sued for back child support after he stopped making voluntary payments on the child’s 18th birthday could be liable for the full amount set out in statutory guidelines because enforcing a private agreement that he claimed to have with the mother for a lesser amount would violate public policy, the Tennessee Supreme Court ruled on May 30. Berryhill v. Rhodes, No. W1997-00167-SC-R11-CV. Because the psychiatrist’s income had fluctuated widely over the years, the court said, the mother had rebutted the statutory presumption that the two most recent years should be used in calculating the amount he would be able to pay. Mom not liable for interest when dad caused the delay A mother was deemed not liable to the father for post-judgment interest on child support arrears of $9,750 because delay was caused, in part, by the husband’s prolonged enforcement action and the nature of a remand by superior court to the district court precluded the mother from directly appealing a Superior Court order directing the district court to include interest in its award, the Maine Supreme Judicial Court held on May 30. Tarbuck v. Jaekel, 2000 ME 105. The high court found that the superior court had erred in ruling that the statute governing post-judgment interest requires its award in all cases, because 14 M.R.S.A. 1602-A provides for a waiver of interest upon a showing of good cause. GOVERNMENT Police officers’ firing did not violate due process A rule stating that a city employee “may be terminated for just cause” did not give two police officers a property interest in continued employment such that their firing without notice or opportunity to be heard violated due process, the 6th U.S. Circuit Court of Appeals held on May 31. Brown v. City of Niota, No. 99-5749. The word “may” was permissive and suggested that employees could be terminated for other than just cause, the court said. Because the officers did not request a name-clearing hearing before filing suit, they could not claim that they were deprived of their liberty interest in reputation without process. Treasury not required by FOIA to release addresses The Michigan Department of Treasury was not required to release the addresses of the owners of abandoned property under the state’s Freedom of Information Act, the Michigan Court of Appeals held on May 30. Kocher v. Department of Treasury, No. 214985. The release would constitute an unwarranted invasion of privacy, the court said, and would not advance the public’s understanding of the Department’s operations. IMMIGRATION LAW INS’ rejection of Elian’s asylum application OK A district court properly dismissed a 6-year-old Cuban boy’s complaint seeking to compel the Immigration and Naturalization Service to consider the merits of his asylum application, the 11th U.S. Circuit Court of Appeals held on June 1. Gonzalez v. Reno, No. 00-11424. At the time the INS was first presented with the application of Elian Gonzalez, the law was unclear as to how to handle an application filed on behalf of a child by the child and a nonparental relative against the express wishes of his only parent, the court said. The policy developed by the INS to deal with this unusual circumstance was within the outside border of reasonable choices, it found, and the application of the policy to this case was not an abuse of discretion or arbitrary or capricious. INSURANCE LAW Insured need not exhaust mortgagor’s policy The owner of a mortgaged rental property destroyed by fire, whose insurer became insolvent, was not required to exhaust her mortgagor’s insurance policy before making a claim against the Rhode Island Insurers’ Insolvency Fund, the Rhode Island Supreme Court held on May 30. Rhode Island Insurers’ Insolvency Fund v. Lombardi, No. 98-542-Appeal. “We refuse to require an insured who has made timely premium payments, and who suffers a loss under the policy, to first exhaust the insurance of his or her creditor or mortgagee where the insured is a stranger to those relationships, will derive no benefit from the creditor’s policies, and will remain liable on the original promissory note,” the court said. Some claims may fall under ‘sudden accident’ phrase A district court erred in granting an insurance company’s motion for summary judgment based on a finding that the company did not have a duty to defend a sewage-treatment facility against environmental damage claims resulting from the discharge of improperly treated sewage effluent because some of the claims in the complaint allege facts that might fall within the coverage of the policy’s phrase “sudden accident” as interpreted under Colorado law, the 10th U.S. Circuit Court of Appeals for the held on April 11. Blackhawk-Central City Sanitation District v. American Guarantee and Liability Insurance Co., No. 98-1075. INTERNATIONAL LAW Gun maker may invoke foreign sovereign immunity In a case in which the estate of a man killed in a firearms accident brought suit in state court against a domestic arms company and that company filed a third-party claim for contribution and indemnity against a foreign state-owned arms manufacturer, the manufacturer was entitled under the Foreign Sovereign Immunity Act to remove the entire case from state to federal court, even though the complaint did not directly name the manufacturer, the 6th U.S. Circuit Court of Appeals held on May 31. Davis v. McCourt, No. 98-2188. Also, the court said, summary judgment against the claims of defective design and failure to warn was appropriate because, as a matter of law, firearms are simple products that present an open and obvious danger. LABOR LAW Refusal to bargain had no adverse consequences a motion by the the National Labor Relations Board for injunctive relief pursuant to � 10(j) of the National Labor Relations Act against an employer that was found to have violated the act by failing to recognize and bargain with a union was denied because employees have suffered no material adverse consequences as a result of their employer’s refusal to recognize the union, the U.S. District Court for the Southern District of New York held on May 30. Hoffman ex. rel. NLRB v. Inn Credible Caterers Ltd., No. 99-11584. LAND USE AND PLANNING Law’s demand for ‘natural beauty’ ruled standardless A portion of Maine’s Georgetown Shoreland Zoning ordinance requiring conditional campground developments to “conserve natural beauty” was an unconstitutional, standardless delegation of legislative authority, the Maine Supreme Judicial Court ruled on June 1. Kosalka v. Town of Georgetown, No. 2000 ME 106. The condition that all proposed developments “conserve natural beauty” is an unmeasurable quality, the court said, and is totally lacking in cognizable, quantitative standards. Appeal of approval of plan is ruled untimely An appeal by Prince Georges County, Md., from a final circuit court judgment upholding the approval of a subdivision plan by the Maryland-National Capital Park and Planning Commission was untimely, the Maryland Court of Special Appeals ruled on June 5. County Council of Prince George’s County v. Dutcher, No. 1039. The circuit court decision had reversed the county’s district council decision rejecting the plan because of inadequate traffic mitigation measures, the court observed, and the county failed to authorize its appeal until more than 30-days after the decision was rendered. LEGAL PROFESSION Power of attorney didn’t confer lawyer’s authority The durable general power of attorney that an infirm, elderly taxpayer granted to her nonattorney nephew did not give that nephew the right to perform a legal act in representing her, the Ohio Supreme Court held on May 31. Fravel v. Stark County Bd. of Revision, No. 99-1010. Thus, the court said, the nephew engaged in the unauthorized practice of law when he prepared and filed a valuation complaint contesting his aunt’s real property tax bill, even though he thereafter retained an attorney to represent the taxpayer in the matter. Students of non-ABA school can’t sit for exam Graduates of a non-ABA-accredited Virginia law school could not sit for the Tennessee bar exam because the Board of Law Examiners had no authority to approve an unaccredited school located outside the state, even if it was in substantial compliance with ABA standards, the Tennessee Supreme Court ruled on May 29. In re Application of Appalachian School of Law, M2000-00053-SC-BLE-CV. Attorney reprimanded for not keeping client informed An attorney was publicly reprimanded for failing to file a foreclosure action or to keep his client reasonably informed, the Kentucky Supreme Court ruled on May 30. Kentucky Bar Association v. Basinger, No. 2000-SC-0188-KB. Although the attorney was injured in an automobile accident before the deadline his client agreed to, the court said, he could have filed the foreclosure action at any time in the year preceding the accident. PRODUCTS LIABILITY Equipment maker was within statute of repose In a personal injury action, a construction equipment manufacturer was within the class that is protected under the statute of repose because it not only manufactured the equipment that injured the plaintiff but supervised and observed all phases of the equipment’s construction, was at the employer’s plant during the entire process and shouldered much of the responsibility for designing and installing the system in the employer’s plant, the U.S. District Court for the Eastern District of Pennsylvania held on May 31. Freeman v. Paco Corp., No. 99-5906. SCHOOLS AND EDUCATION Hearing officer’s decision upheld on basis of evidence A hearing officer’s decision to uphold individualized educational programs established for a learning disabled child at her public school, and rejecting a petition for reimbursement for tuition, room, board and other costs related to the child’s placement for a year at a private school for children with learning disabilities, was reasonable because there was conflicting evidence as to the emotional and social well-being of the child but ample evidence supporting such a decision, the U.S. District Court for the District of Maine ruled on May 30. B.A. v. Cape Elizabeth School Committee, No. 99-164-P-C. SOCIAL SERVICES LAW Disability challenges can raise new issues in court People who challenge in federal court the denial of Social Security disability benefits can raise issues they did not pursue during a previous administrative appeal, the U.S. Supreme Court ruled on June 5. Sims v. Apfel, No. 98-9537. The 5-4 decision said that federal law and agency rules do not require that all issues be raised at such administrative proceedings before they can be part of a court challenge. Justice Clarence Thomas, writing for the court, noted that the administrative appeal process is informal, and that “the differences between courts and agencies are nowhere more pronounced than in Social Security proceedings.” A person whose claim for Social Security benefits is denied by an administrative law judge must in most cases request review in the Social Security Appeals Council before seeking judicial review. Justice Thomas wrote, “A judicially created issue-exhaustion requirement is inappropriate. Claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those cases.” Justices John Paul Stevens David H. Souter and Ruth Bader Ginsburg joined in all of the majority opinion. Justice Sandra Day O’Connor joined it in part and also filed a concurring opinion. Justice Steven G. Breyer wrote a dissenting opinion in which he was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy. Widows’ benefits denied due to late annulment A woman was not entitled to widows’ benefits under the Social Security Act because the annulment of her previous marriage, to the man who raped her when she was 15-years-old, took place after her marriage to the deceased wage earner and thus, her marriage to the wage earner was not valid, the 8th U.S. Circuit Court of Appeals held on June 5. Everetts v. Apfel, No. 99-3133EM. “A voidable marriage is valid until set aside by a decree of annulment; in contrast, a void marriage is null from inception,” Judge Richard S. Arnold wrote for the court, ruling that the plaintiff’s first marriage was voidable, but not void. TAXATION Government’s levy on taxpayer was reasonable The government’s imposition of a jeopardy levy on a taxpayer was reasonable when it offered evidence that the taxpayer was in danger of becoming insolvent by showing that his liabilities exceeded his assets through affidavits and testimony and the summary nature of the proceeding did not require documentation, the U.S. District Court for the Eastern District of Pennsylvania held on May 31. Crosby v. U.S., No. 99-3634. TORTS Criticism of employee not actionable as defamation Critical statements regarding an employee’s performance in an evaluation and a memorandum that were allegedly distributed to members of an office were not defamatory because they constitute nonactionable opinions, the U.S. District Court for the Southern District of New York ruled on May 30. Brattis v. Rainbow Advertising Holdings L.L.C., No. 99-10144. Criminal complaint against political rival not malicious A city lawyer, a city clerk and a city manager did not engage in malicious prosecution when they brought a criminal complaint against a former city council member alleging that he had supplied a newspaper with a false story about the lawyer’s purported marriage to the clerk, the Ohio Court of Appeals, 11th District, held on May 30. Baryak v. Kirkland, No. 99-T-0073. Although the prosecution was ultimately dropped on procedural grounds, the court said, the three had probable cause to make their complaint given the history of animosity between the lawyer and the former council member and the report of a handwriting expert that the council member had written the wedding notice received by the newspaper. Car rental company not liable for unauthorized use Summary judgment was properly granted in favor of a defendant-car rental company whose rental vehicle, operated by an unauthorized driver, caused an accident, injuring the two plaintiffs, the Rhode Island Supreme Court held on June 1. Lafratta v. Rhode Island Public Transit System, No. 99-286-Appeal. Because the rental company did not specifically authorize the defendant-driver to operate their vehicle, the court said, liability could not be imputed to the company, as neither actual nor constructive permission had been given. State liable under tort claims act for faulty road Vermont’s tort claims Act does not shelter the state from civil suits alleging that the state’s negligent failure to comply with highway design standards resulted in a traffic fatality, the Vermont Supreme Court held on June 2. McMurphy v. State, No. 98-499. The court said that parents of an adult woman who was killed in a car crash at a state-designed intersection successfully raised a material issue of fact as to whether the state negligently failed to comply with the Federal Highway Administration’s Manual on Uniform Traffic Control Devices. The court held that a municipality, however, does not waive its immunity from suit when it buys excess liability insurance, or reinsurance, through an “intermunicipal insurance agreement.”

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