Appropriateness of Restitution

Author: Angelina Petrosyan

Washington Court of Appeal Division One held when an offender is convicted of a crime that results in injury to a victim, the court shall order restitution for reasonably ascertainable medical expenses and lost wages.

On December 4, 2014, Matthew Travis Gonce was at University of Washington (UW) Medical Center with Anna Whittington, who was admitted for pregnancy complications. Rebekah Strong, a Registered Nurse, noticed Gonce exit a patient room “mumbling obscenities under his breath.”  

The 2020 Women on Boards 6th Annual National Conversation on Board Diversity

Author: Emily Berman

The Tyson & Mendes Women’s Initiative promotes growth and facilitates business development opportunities for both our attorneys and clients through networking and social information sharing opportunities. On November 15, several attorneys and staff from Tyson & Mendes attended a fascinating and thought-provoking event hosted by the 2020 Women on Boards non-profit organization. 2020 Women on Boards is a national campaign to increase the percentage of women on U.S. company boards to 20% or greater by the year 2020.[1] Each year, the campaign holds an annual panel discussion in cities across the country, where prominent successful women and directors offer valuable insight to attendees in an open dialogue. The San Diego event was well attended by hundreds of local women and men from across a multitude of industries and backgrounds, as well as leaders, politicians (including Senator Toni Atkins!), high-level executives and, recognized experts.[2]

Division I Hold that Expert Testimony Establishes Causation in a Slip-and-Fall Case

Author: David Reeve

Background Facts

Plaintiff Virginia Mehlert alleges she slipped and fell down a flight of stairs while leaving the Mariners Team Store in downtown Seattle. To reach the store’s front door, three concrete steps led from the sidewalk to a landing; the landing was in turn connected to a carpeted vestibule; and the vestibule led to the store’s front door. At the time, a plywood ramp had been placed over the stairs to make the store accessible by wheelchair, as shown below (photo included in the court’s opinion). There were no handrails on the ramp, but each side contained a raised 1-inch wide by 2-inch tall strip.

Washington Supreme Court Approves Rule Of Evidence 413 Excluding Evidence Of Immigration Status In Criminal And Civil Trials

Author: Colin Hutchinson-Flaming

In The Matter Of The Proposed New Rule Of Evidence 413 – Immigration Status, No. 25700-A- 1201

The Supreme Court of Washington recently approved proposed Rule of Evidence 413, which precludes presentation of evidence of immigration status in criminal and civil trials. ER 413 will go into effect on September 1, 2018, but trial courts throughout the state have already begun to enforce the rule under ER 403, which allows trial judges the discretion to exclude relevant evidence that is substantially more prejudicial than probative.

NOSHA Adopts The “Rule Of Access” Standard To Determine PPE Training Requirements

Author: Christopher Lund

Sierra Packaging & Converting, LLC v. OSHA, 133 Nev. Adv. Opn. 83 (Nov. 16, 2017)

The Nevada Supreme Court recently issued an opinion interpreting the language of a federal regulation which requires employers to provide personal protective equipment (PPE) to employees and training on how to use the PPE in certain workplace situations. The case came about due to an anonymous complaint sent into the Nevada Occupational Safety and Health Administration (NOSHA), in which the complainant stated Sierra Packaging & Converting, LLC (hereafter referred to as “Sierra”) was having employees work on top of warehouse racks without requiring fall protection PPE.

COWABUNGA: Nevada Alter Ego Liability

Author: Carrie McCrea Hanlon

On November 22, 2017 the Nevada Supreme Court held that managers of a limited liability corporation (LLC) may be subject to suit for personal negligence as tortfeasors under an alter ego theory of liability.

In the case of Gardner v. Henderson Water Park, LLC dba Cowabunga Bay Water Park, 133 Nev. Adv. Op 89, the Gardners’ minor child suffered injuries resulting from a near-drowning at Cowabunga Bay Water Park in Henderson, Nevada.  The Gardners filed suit against Henderson Water Park, LLC dba Cowabunga Bay Water Park and its two managing members, West Coast Water Parks, LLC and Double Ott Water Holdings, LLC.  The 7 managers of West Coast and Double Ott LLCs have an ownership interest in, or manage, the member-LLCs and also serve on the management committee governing the water park itself.

Florida Homeowner Coverage And The Concurrent Loss Doctrine

Author: Nathan Berkeley

In the aftermath of Hurricane Irma, Michael Grunwald of Politico authored an article examining the venal beginnings of America’s fastest-growing city, Cape Coral, Florida. Entitled “The Boomtown That Shouldn’t Exist,”[1] Mr. Grunwald’s describes Cape Coral’s city planning as non-existent, calling it the “least natural, worst-planned, craziest-growing piece of an unnatural, badly planned, crazy-growing state.” He goes on to describe Cape Coral as “a precarious civilization engineered out of a watery wilderness, a bewildering dreamscape forged by greed, flimflam and absurdly grandiose visions that somehow stumbled into heavily populated realities.”

Grease Lightning: Miami-Dade County v. Jones and Public Entity Defense In Presmises Liability Claims In Florida

Author: Jenny Silverstein

For foodies like myself, the cuisine du jour/hipster thing to do is to go to a random pop-up market of high end food trucks. In Florida, there is a weekly food truck market called “Roaming Hunger.” There you can sample a wide range of cuisines from around the world. From Peking Duck Tacos to Grilled Cheese Sandwiches with Macaroni & Cheese and Bacon filling, this high end “street food” is the “in” thing to do in Miami and the surrounding areas. Usually these markets take place on County or City property and the food trucks are granted a permit for temporary use.

California Case Law Update

Author: Leslie Price

TORTS – ELDER ABUSE & MEDICAL NEGLIGENCE (Elders Right to Autonomy in the Medical Decision-Making Process)

Maxine Stewart v. Superior Court 16 Cal.App.5th 87, 224 Cal.Rptr.3d 219 (Certified for Partial Publication on October 12, 2017)

Decedent Anthony Carter, who was experiencing episodes of confusion, named Plaintiff Maxine Carter, a registered nurse, as his “healthcare agent” with a durable power of attorney for health care decisions during his admission to hospital owned by the real parties in interest.  Some of the defendants, including real parties in interest, scheduled Mr. Carter surgery to install a pacemaker due to irregularities in his heartbeat. Plaintiff canceled the surgery, telling the doctors she thought the irregularities were related to Mr. Carter’s sleep apnea. She requested a second opinion regarding the need for a pacemaker.  Plaintiff was informed about two weeks later after an ethics committee meeting the some of the defendants, including real party in interest, would continue with the pacemaker procedure despite plaintiff’s objection.  Shortly after surgery Mr. Carter went into cardiac arrest and later passed away.

Are You the Prevailing Party?

Author: Kathryn Lee

California law states that the “prevailing party” in a lawsuit is entitled to recover its costs from the other party.  California Code of Civil Procedure §1032(a)(4) provides a variety of classifications which define the prevailing party for purposes of recovering costs in litigation. The most prevalent of these classifications are (1) the party with a net monetary recovery, and (2) a defendant in whose favor a dismissal is entered. However, what occurs when the defendant pays a settlement to the plaintiff in exchange for the plaintiff agreeing to dismiss the lawsuit prior to trial…who is the “prevailing party?”  Some might say it is plaintiff for obtaining a monetary recovery for settlement of the action; others may approximate the defendant is the victor as it did obtain a dismissal of the suit.  In the end, who gets to then call themselves the “prevailing party” under these quite common terms of case settlement?

Stop Burning Your Core! Ensure Your Gym Rats Leave With Contracts

Author: Terra Davenport

California’s Health Studio Services Act applies to all contracts for services between a consumer and gym.[1] (Civil Code §1812.82 et seq.)  “Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy.” (Civil Code §1812.91.)

Crossing The Line Of Duty: California Supreme Court Limits Duty Of Commercial Property Owners To Control Traffic Collisions In Valisenko v. Grace Family Church

Author: David Kahn

Should the owner of land abutting a public street be held responsible for a traffic collision between a motor vehicle and a jaywalking invitee?   The California Supreme Court says no.  On November 13, 2017, the Court issued a significant premises liability opinion overturning the Third District Court of Appeal and limiting the duty of commercial property owners who operate a business abutting a public street.  (Valisenko v. Grace Family Church (11/13/17) WL 5243812).  Specifically, the Court held a landowner does not have a duty to assist invitees in crossing a public street so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.  (Id. at p. 1).  As set forth below, the key to the Court’s holding is the proximity of the relationship between the landowner’s conduct and the invitee’s and who should as a matter of public policy ultimately bear the burden of preventing such accidents.

Howell Update: Class Certification Denied in Action Seeking Declaratory Relief that Hospital “Chargemaster” Rates are Unreasonable

Author: Emily Berman

Tyson & Mendes argued and won the landmark Supreme Court decision of Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541, which held that a personal injury plaintiff is limited to recovering the lesser of what is actually paid or the reasonable value of medical services, rather than what a healthcare provider has billed the plaintiff for the services.  A recently published decision reinforces the importance of this rule and the huge discrepancy between billed vs. paid amounts. Artur Hefczyc v. Rady Children’s Hospital-San Diego, 2017 WL 5507854 (filed 11/17/17 and certified for publication). In this case, a plaintiff sought declaratory relief (on behalf of a proposed class) to establish that (among other things) a hospital was only authorized to charge self-pay patients for the reasonable value of its services, and that it was not permitted to bill based on a master list of itemized charge rates. The Court declined to issue the relief because it found the issues were inappropriate for class action litigation.

Testing the Limits of Immunity for Governmental Entities

Author: Michelle Ronan

The Arizona Court of Appeals, Division Two recently issued an opinion clarifying the scope of a town’s immunity under A.R.S. §12-820.02(A)(1). In Noriega v. Town of Miami, 2 CA-CV 2017-0007 (Ariz. App. October 26, 2017), Plaintiff Roger Noriega appealed the trial court’s entry of summary judgment in favor of the Town of Miami, Arizona (“Town”), alleging the court erred in finding the Town had qualified immunity under A.R.S. §12-820.02(A)(1) and his negligence claim was barred.

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