Sunday, April 23, 2017

The Motor Vehicle Accident, the Death and Texting

The Motor Vehicle Accident, Death and Texting

This post examines a recent opinion the Supreme Court -Genesee County, New York issued in a civil case: Vega v. Crane, 2017 N.Y. Slip Op. 27062 (2017). The court begins the opinion by explaining that
[t]his action was commenced by Plaintiff seeking to recover for injuries she sustained in a motor vehicle accident that occurred on December 8, 2012. The Plaintiff's vehicle was struck by a car driven by Collin Ward Crane, who died as a result of injuries he sustained in the accident (herein after referred to as `Decedent’). Plaintiff alleges that the Decedent's girlfriend, Taylor Cratsley, [a named defendant], (herein after referred to as `Cratsley’), was texting the Decendent while he was driving, thus distracting him and causing the accident.

Plaintiff moved for partial summary judgment on the issues of liability and serious injury. These motions were granted against the decendent, his estate and his father and reduced to a separate order, which was granted on December 7, 2016. Cratsley, moved for summary judgment seeking to dismiss the Plaintiff's action against her in its entirety. The Court reserved on Cratsley's motion for Summary Judgment, which now follows.
Vega v. Crane, supra.
The law at issue in this case is tort law, which is often referred to as the law that deals with "civil wrongs." You can read more about that in this Wikipedia entry.
The Supreme Court goes on to explain how, and why, the litigation arose:
On December 8, 2012, a motor vehicle accident occurred on New York State Route 33 when the vehicle driven by the Decedent struck head-on a vehicle driven by the Plaintiff. The New York State Police investigation concluded that Decedent's vehicle crossed the center line before colliding with Plaintiff's vehicle. Though the accident was unwitnessed, New York State Police investigators concluded that the Decedent most likely was distracted, as there were no signs that Decedent attempted to avoid or take evasive measures to elude contact with the Plaintiff's vehicle.

Upon inspection of the Decedent's vehicle, investigators located a cell phone on the floor of the driver's side, in front of the Decedent and between his legs. The cellular phone, which was significantly damaged, was examined by the New York State Police. Upon inspection, it appeared that the Decedent and Ms. Cratsley were texting before the accident occurred. After recovering the digital information from the Decedent's cellular phone, New York State Police investigators interviewed Ms. Cratsley. She indicated to the investigators, and subsequently confirmed in her deposition and later an affidavit, that although she was texting the Decedent on the date of the accident, she was unaware that the Decedent was driving at the time they were exchanging text messages. (See Affidavit of Taylor Cratsley, dated November 21, 2016). Mrs. Cratsley added that often, when the Decedent was returning from work, a family member would pick him up and drive him home. She also stated that on the date of the accident, although she was aware he was working, she was unaware if he was driving himself or getting a ride to work. Cratsley testified at her deposition that she never expected nor asked the Decedent to send her text messages or read text messages while driving. None of the text messages produced contradict Mrs. Cratsley's testimony.
Vega v. Crane, supra.
The court concludes this part of its opinion by explaining that
Cratsley moved for summary judgment, arguing that since New York State does not recognize a duty to control the actions of a third party, there existed no special relationship between Cratsley and the Plaintiff that would give rise to any special duty. Plaintiff opposed the motion, citing New Jersey precedent that establishes a special relationship and resulting duty under similar circumstances.
Vega v. Crane, supra.
The Supreme Court then took up the legal issues in the case, explaining, initially, that the
Plaintiff acknowledges that there is no New York State precedent to establish a duty that would obligate Cratsley to protect a third party, namely the Plaintiff, from harm. Plaintiff submits that the matter before the Court is a case of first impression in the State of New York. However, the Plaintiff maintains that the duty that should be imposed is consistent with the public policy of the State of New York, which has established similar duties to third parties in other cases.

If Plaintiff's argument is entertained, the Court would be forced to engage in a profound re-examination of negligence law that was addressed in Palsgraf v. Long Island R.R., 248N.Y. 339, 162 N.E. 99 (1928). Palsgraf, an oft-cited authority, held that in order to recover for the negligent act of others, a plaintiff must establish duty, standard of care, breach of duty, and proximate cause. Since Palsgraf, New York courts have carefully examined those components to establish negligence and have elaborated on them to justify a recovery for damages.
Vega v. Crane, supra.
The court goes on to explain that the plaintiff, i.e., Vega,
cites to a New Jersey case that establishes liability in circumstances where a person contributes to a driver's distraction that results in an accident that causes injury. In Kubert v. Best, the New Jersey Superior Court, Appellate Division, held that a third party, who had knowledge that the motorist they were texting was driving at a time the parties were exchanging text messages, could be found liable for any resulting damages. 432 N.J.Super. 495, 75 A.3d 1214 (N.J.App.2013). In Kubert, the Plaintiffs were riding on a motorcycle when a driver crossed the center line and struck them. Both Plaintiffs lost their legs as a result of the injuries they sustained in the accident. Not only did the Plaintiffs sue the driver who struck their motorcycle, but they also sued Shannon Colonna, the party who allegedly was texting the defendant motorist. At her deposition, Colonna testified that she had sent the defendant 180 text messages in less than twelve (12) hours on the day of the accident. Colonna also testified that she did not pay attention to whether the recipient of her texts was driving a car at the time or not. On motion, the underlying New Jersey trial court granted Colonna summary judgment holding that she had no legal duty to avoid sending text messages to Best even though she knew he was driving. The Appellate Division reversed, though still affirming summary judgment on behalf of Colonna. While affirming that Colonna could not be held liable because of the lack of proof demonstrating she knew Best was indeed driving at the time the texts were exchanged, the Appellate Division concluded that `a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.’ Id. Because the Plaintiffs had failed to establish that Colonna had such knowledge while texting Best, she could not be held liable for the resulting injuries caused by the accident.

Plaintiff would have this Court adopt the reasoning employed by the New Jersey Appellate Division in Kubert to deny Cratsley's motion for summary judgment. Plaintiff also relies on to Sartori v. Gregoire, wherein the Fourth Department held that a passenger in a vehicle could be held liable for verbally or physically distracting a driver immediately prior to an accident. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th Dept.1999). Further, Plaintiff argues that the Restatement (Second) of Torts § 303, which provides, `[a]n act is negligent if the actor intends to affect, or realizes or should realize that it is likely to affect, the conduct of a third person in such a manner as to create a duty not to interfere with the driver's operation,’ applies to the facts present here.
Vega v. Crane, supra.
The Supreme Court then explained that
[i]n opposition, Cratsley argues that the Plaintiff's argument stands in stark contrast to established precedent in New York. Cratsley maintains that she had no duty to control the conduct of the Decedent when he was driving. While undoubtedly there are certain circumstances that would establish a third-party duty, Cratsley argues that those facts do not exist here. Cratsley submits that New York law does not place a legal duty upon an individual who lacks control over the third party's actions. Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976).

In Pulka, Plaintiffs sued not only the driver who struck a pedestrian, but also the owners of a parking garage. Plaintiffs argued that the garage owners owed a special duty to surrounding pedestrians. The Court of Appeals found that the garage operators owed no duty for an accident that occurred when a patron exited and struck a pedestrian. Pulka stands for the well-settled principle held that before causation could be examined, a legal duty first must be established. The Court of Appeals addressed the question of whether owners of the garage owed a duty to pedestrians. The Court of Appeals held that the owners did not owe such a duty, and refused to hold a garage operator liable for the acts of its patrons. Further, the Court of Appeals held that there needed to exist a duty, wherein the garage operator owed a special obligation to a pedestrian from one of its patrons, before liability could be established. Again, the Court held that there existed no special duty. In fact, the Court held that because of the lack of any special duty between the garage operator and its patrons or between the garage operator and pedestrians, and the lack of any reasonable expectation that the garage operator could control or prevent the negligent conduct of its patrons, no legal duty existed. Id. at 785–786, 390 N.Y.S.2d 393, 358 N.E.2d 1019. Here, the Decendent, his estate and his father simply maintain that `a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.’ D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987)
Vega v. Crane, supra.
The court then began its ruling on the issue in the case, explaining, initially, that
[t]he argument advanced by the Plaintiff is unique in New York when considering the established body of precedent on the issues of proximate cause, foreseeability, and duty. While states such as New Jersey, as memorialized in Kubert, advance a different standard, courts in New York have either been reluctant to broaden the principle of negligence law or simply refused to do so.

The principle of negligence law is that in order to impose liability for a negligent act, the act must be the proximate cause of the injury that resulted therefrom. N.Y. Jur. 2d, Negligence § 47. In a motor vehicle accident, `an act or omission is a proximate cause of an accident if it was a substantial factor in bringing about the accident. That means if it had such an effect in producing the accident that reasonable men or women would regard it as a cause of the accident.’ Rubin v. Pecoraro, 141 A.D.2d 525, 529 N.Y.S.2d 142 (2nd Dept.1988). The injuries or the damages complained of must have been those which might have been foreseen by a person of ordinary intelligence and prudence, although not necessarily in the precise form in which they occurred. Kellogg v. Church Charity Foundation of Long Island, 203 N.Y. 191, 96 N.E. 406 (1911).

The Plaintiff wishes to re-examine the long-standing doctrine of negligence law established in Palsgraf v. Long Island Railroad, supra. Palsgraf has been hailed as `perhaps the most celebrated of all torts cases and one of the best-known American common law cases of all time.’ William ProsserPalsgraf Revisited, 52 Mich. L. Rev. 1, 1 (1953). Although familiar to the bench and bar, the facts of Palsgraf deserve mention. In Palsgraf, a man who was carrying a package ran to board a departing train. One of the railroad guards noticed the man and attempted to pull him onboard the train. At the same time, another guard pushed him from behind. In doing so, the man dropped a package containing fireworks to the ground. Willis W. Hagen II, Accountants Common Law Negligence Liability to Third Parties, 1988 Colum. Bus. L. Rev. 181 (1988). `An explosion which occurred caused a scale at the other end of the platform to fall on [Palsgraf], who sued the railroad for damages.’ Id. at 201. In his majority opinion, Judge Cardozo wrote that the Long Island Railroad was not liable to Palsgraf because it did not owe a duty of care to her. In order to find negligence, the injury to the plaintiff must have been reasonably foreseeable to the defendant. Palsgraf, 248 N.Y. 339, 341, 162 N.E. 99.

As memorialized by Judge Cardozo,`[i]n every instance, before negligence can be predicated of a given act, the act must be sought and found a duty to the individuals complaining, the observance of which would have averted the injury. Thus, where the injury to the particular plaintiff is not reasonably foreseeable, the defendant does not have an obligation to refrain from negligent conduct. Since the defendant does not have a duty to exercise ordinary care toward unforeseeable persons, liability for negligence does not result. Id. at 342, 162 N.E. 99.’

`Cardozo held that the defendant could not be liable as he could not have reasonably foreseen a risk of injury to the Plaintiff. As such, the defendant's duty of care did not extend to the Plaintiff. In Palsgraf, the defendant could not have reasonably foreseen that the plaintiff, who was standing at the other end of the platform, would be injured as a result of an explosion caused by a falling package that occurred on the opposite end of the platform. As such, because it was not reasonably foreseeable, no duty of care was owed.’
Vega v. Crane, supra.
The Supreme Court then returned to the issue in this case, noting that
[h]ere, Plaintiff asks to modify this standard to broaden the scope of duty from what should be reasonably foreseeable. In particular, Plaintiff is asking that a party texting a person who could be driving should be held liable for the foreseeable risk that might result from this conduct. Although New Jersey may wish to employ such a departure, this Court declines to do so.

The Plaintiff's approach longs to have this Court adopt a standard that is a significant retreat from established law in this area. While Plaintiff offers a detailed analysis suggesting that there already exists a pad from which to launch this undertaking, much of the precedent cited by Plaintiff can be distinguished and does not support her sweeping conclusion.

Relying on Restatement (Second) of Torts § 305, Plaintiff suggests that New York law could be construed to impose liability on an individual who could or should have known that their conduct might result in harm to an unrelated third party. Referencing Sartori v. Gregoire, Plaintiff maintains that a passenger may be liable for verbally or physically distracting a driver immediately prior to a collision. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th Dept.1999). The facts of Sartori are quite different from not only those present here, but from the standard for which Sartori imposes on similarly situated defendants. In Sartori, `the defendant commenced a third-party action against a passenger in her vehicle, alleging that his unwanted sexual advances towards her immediately before she started her vehicle caused her to forget to turn on the vehicle's headlights.' Id. The Fourth Department held that

 `[w]hile a passenger in a car may be liable if he distracted the driver while operating the vehicle immediately prior to the accident, (see, e.g., Collins v. McGinley, 158 A.D.2d 151, 153, 558 N.Y.S.2d 979, appeal dismissed 77 N.Y.2d 902, 568 N.Y.S.2d 917, 571 N.E.2d 87, 78 N.Y.2d 1002, 575 N.Y.S.2d 276, 580 N.E.2d 762; Whalen v. Daugherty, 30 A.D.2d 604, 290 N.Y.S.2d 3, lv. denied 22 N.Y.2d 647, 295 N.Y.S.2d 1029, 242 N.E.2d 495) it is undisputed that the third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred. Thus, third-party defendant's conduct cannot be deemed a proximate cause of plaintiff's injuries. Id.’
Sartori v. Gregoire, supra.
The court went on to note that,
[h]ere, Cratsley was not in the vehicle with the decedent as was the case in Sartori, thus depriving her of the first-hand knowledge the defendant in Sartori enjoyed. Therefore, the holding in Sartori is misplaced. Second, Sartori does not address the issue as to whether a third party, who has no knowledge whether a defendant was driving, owes any duty to others. Clearly there is a greater nexus between a driver and a passenger than the scenario that exists here.
Vega v. Crane, supra. The opinion does not explain what §  305 of the Restatement (Second) of Torts provides, but this is what § 305 says:
An act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.
The court then addressed another argument the plaintiff made, which was that
there exists precedent that permits the expansion of the foreseeability doctrine. In Davis v. South Nassau Communities Hospital, a 2015 New York Court of Appeals case, it was held that medical providers owed a duty to third-party motorists for patients whose medication might affect their ability to drive. 26 N.Y.3d 563, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015). Davis involved a motor vehicle accident involving a patient of a hospital who had been treated and prescribed certain medication. A party was intravenously administered a pain killer and a `benzodiazepine drug without warning her that such medication either impaired or could impair her ability to safely operate an automobile.’ Id. at 569, 26 N.Y.S.3d 231, 46 N.E.3d 614. After her discharge from the hospital the party drove her vehicle, in an impaired state, and struck another vehicle resulting in an accident. The question the Court of Appeals faced was whether the hospital and the physicians who treated the patient owed a duty to the plaintiff to warn that the medication could affect her ability to operate a motor vehicle.

The majority opinion painstakingly examined the record to support its decision. In particular, the Court noted that during the trial, an expert had testified that the `package label for Dilaudid states that it “may impair mental and/or physical ability needed to perform potentially hazardous activities such as driving a car or operating machinery.”’ Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614. Further, the expert further opined that the same package, `titled Use in Ambulatory Patients states that the drug “may impair mental and/or physical ability required for the performance of potentially hazardous tasks (e.g., driving, operating machinery). Patients should be cautioned accordingly.”’ Id. Clearly, the instructions for the medications that were prescribed required the attending physician to warn and direct the non-party of the ill effects of the medication. These facts supported the Court of Appeals expansion of the duty otherwise owed by a defendant to the public at large. Under the facts in Davis, the Court held `the defendants owed plaintiffs a duty to warn [the non-party] that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.’ Id. at 571, 26 N.Y.S.3d 231, 46 N.E.3d 614.

The Court understood that when modifying the question of duty, its reach must be always limited by what is foreseeable. Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614. As the Court of Appeals acknowledged, `[a]ny expansion of duty is a power to be exercised cautiously, but it is a power that must be used if the changing needs of society are to be met.’ Id. As Judge Cardozo observed, that while dangers are always present, `dangers change as civilizations develop’. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Consequently, in Davis, if a medical provider administers medication that might impair their ability to safely operate a motor vehicle, the `medical provider has a duty to third parties to warn the patient of that danger.’ Davis, 26 N.Y.3d at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614.
Vega v. Crane, supra.
The court went on to explain that
[w]hile at first glance the holding in Davis represents a tenuous stretch from the established orthodoxy on the question of negligence, the Court of Appeals detailed its careful historical progression in expanding the existing duty of care. First, in Eiseman v. State of New York, the Court of Appeals declined to recognize a duty to a large class of unknown individuals as opposed to a `known and identifiable group.’ 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). In Eiseman, an ex-felon with a known violent history, was released from jail and placed into a `special State college program for the disadvantaged.’ Id. at 180, 518 N.Y.S.2d 608, 511 N.E.2d 1128. After being placed in the program, the ex-felon raped and murdered a fellow student. The student's estate sued the State alleging that the State's physician, who had treated the felon and knew of his violent history and psychological instability, owed a duty to warn the college community at large. The Court declined to extend the principle of duty maintaining that the State's treating physician `did not owe a duty of care to members of the community individually.’ Id. at 188–189, 518 N.Y.S.2d 608, 511 N.E.2d 1128.

In Purdy v. Public Administrator of Westchester County, a resident of a local nursing home, who apparently had use of a vehicle, caused an accident resulting in injury. 72 N.Y.2d 1, 530 N.Y.S.2d 513, 526 N.E.2d 4 (1988). The resident had a medical condition that left her susceptible to fainting spells and blackouts. The plaintiff in Purdy argued that the nursing home and its resident physician owed a duty to prevent the resident from driving or to at the very least warn her of the dangers of driving given her condition to not only the Plaintiff, but an unidentified member of the public. The Court of Appeals recognized that `there exist special circumstances in which there is a sufficient authority and ability to control the conduct of third persons that [have given rise to] a duty to do so.’ Id. at 8, 530 N.Y.S.2d 513, 526 N.E.2d 4. Notwithstanding that, the Court of Appeals declined to find the existence of a special relationship between the defendant and the resident that would require the defendant to govern their conduct for the benefit of the plaintiff. The Court held that neither the nursing home nor the doctor had the `authority or ability to exercise such control over [the resident's] conduct so as to give rise to a duty on their part to protect [the] plaintiff—a member of the general public.’ Id. at 8–9, 530 N.Y.S.2d 513, 526 N.E.2d 4.

The Davis Court also referenced Tenuto v. Lederle Laboratories, 90 N.Y.2d 606, 665 N.Y.S.2d 17, 687 N.E.2d 1300 (1997); Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 709 N.Y.S.2d 151, 730 N.E.2d 949 (2000); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); and McNulty v. City of New York, 100 N.Y.2d 227, 762 N.Y.S.2d 12, 792 N.E.2d 162 (2003) in detailing its evolution to the holding it ultimately reached. In each of these cases, the Court of Appeals gradually expanded the duty owed to other individuals. However, there was always a nexus between the plaintiff and the offending defendant, for whom a special relationship allegedly existed. Mostly, that nexus dealt with an extension of a duty physicians owed their patients. Other cases, most notably Hamilton, where the Court of Appeals concluded that handgun manufacturers did not owe a duty of care to in the marketing and distribution of the handguns they manufactured, ostensibly dealt with a large, undefined group that the named defendant could not possibly foresee a duty to cover. Davis dealt specifically with a doctor's failure to caution an unrelated party about the side-effects of prescribed medication that contained specific instructions with appropriate warnings. Here, no such nexus or specificity exists that could link an individual, who did not have knowledge that the tortfeasor was driving, to an unnamed plaintiff of the general community who was involved in an unfortunate, but unforeseen, accident.
Vega v. Crane, supra.
The Court of Appeals then began the process of outlining, and explaining, its decision in this case. It began by explaining that
[i]nasmuch as the Court of Appeals expanded the breadth of the duty owed in a negligence case, it did so cautiously and reluctantly. The Court warned not to misinterpret its decision as a full erosion of the duty of care. Instead, the Court heralded `while the temptation is always great to provide a form of relief to one who has suffered, the law cannot provide a remedy for every injury incurred.’  Davis, 26 N.Y.3d at 580, 26 N.Y.S.3d 231, 46 N.E.3d 614; citing Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786 (1981). More directly, `[n]ot all mistakes result in liability.’ Id.

Justice Stein's dissent, while not controlling, was certainly instructive in dissuading a haphazard expansion of the concept of duty. Cautioning not to take sympathy into consideration, she advised that courts must be mindful of the precedential, and consequential, future effects of their rulings and “limit the legal consequences of wrongs to a controllable degree.” Id. at 584, 26 N.Y.S.3d 231, 46 N.E.3d 614, citing  Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000), quoting Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969). This Court agrees that, no matter how careless it may seem, not all conduct creates a duty to an unknown. This is especially true when the record fails to establish that the defendant had any knowledge that the Decedent was driving the vehicle that ultimately struck the Plaintiff. The absence of that proof, as well as the established reluctance to expand a duty to persons with whom a tenuous nexus exists, requires summary judgment. To expand the duty as Plaintiff here seeks would set a crushing exposure to liability, which Courts generally must protect against. Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985).
Vega v. Crane, supra.
The Supreme Court ended the opinion by explaining that
[i]f the theory advanced by the Plaintiff here is adopted, the expansion of liability to individuals who text message would be exponential. Should a Court accept the Plaintiff proposition, a party texting another, regardless of any specific knowledge, could be liable for an injury caused by the party receiving the text messages simply by virtue of the text being sent. In this day and age, where texts are routinely sent to, for example, advise the public of breaking news, that prescriptions are ready for pick up, or to advise that a bill is to be paid, the sender would be responsible for any injuries that could be caused should a driver become distracted by their receipt. With texting being as profligate, the potential expansion as contemplated by the Plaintiff is astronomical.

This Court is not ignorant of the many steps taken by not only this state, but others in the nation, to protect against motorists from texting while driving. While that certainly is not the only issue presented for consideration, this Court does not believe it is the province of a Court to establish a precedent for want of a statute that otherwise has not been considered, let alone approved, by a legislative body. Though many would prefer a Court simply to make law where either a legislative body or executive has failed to do so, this Court does not believe that is its role. It is not the role of the judiciary to sit on high and promulgate what it believes should have been a policy determination made elsewhere. Instead, the courts have deferred to the wisdom, or absence of it, of the legislature in defining what is actionable and what is not. Rosenfeld v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2nd Dept.1980); MobilOil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In short, courts are not free to decide what should be founded in statutory authority. This is the realm of the legislature. Simply put, if the legislature wishes to make actionable a third-party's texting to a motorist, notwithstanding their lack of knowledge that the person to whom they are texting is driving, they should do so. This Court refuses to establish this cause of action by judicial fiat.

Accordingly, the motion for summary judgment made by Defendant, Taylor Cratsley, is hereby GRANTED. Defendant shall submit an Order on notice.
Vega v. Crane, supra.

Wednesday, April 19, 2017

The Lawyer, the Emails and Professional Misconduct

This post examines an opinion from the Supreme Court of Florida that deals with a finding that a Florida lawyer had engaged in “professional misconduct.” The Florida Bar v. Wynn, 2017 WL 632871 (2017) (per curiam). The court begins by explaining that
[w]e have for review a referee's report recommending that Michael Eugene Wynn be found guilty of professional misconduct and suspended for ninety days, followed by two years of probation with conditions. We have jurisdiction. See art.V, § 15, Fla. Const. As discussed below, we disapprove of the referee's recommended discipline and instead impose a one-year suspension, followed by two years' probation.
The Florida Bar v. Wynn, supra.
The Court went on to outline the facts that resulted in this professional misconduct inquiry:
On July 21, 2015, The Florida Bar filed a complaint against Respondent Wynn alleging ethical misconduct in connection with his representation of a client, Sylvia Rhodes, in a landlord-tenant matter. The complaint was referred to a referee, and the parties subsequently entered into a stipulation of the facts and rule violations. The referee approved the stipulation, and in his report, provided the following findings of fact:

`On October 10, 2013, Respondent emailed Ms. Rhodes informing her that $500 was needed for the costs of deposition transcripts. On October 10, 2013, Ms. Rhodes paid $500 to Respondent to be used towards the cost of deposition transcripts and wrote in the memo “Legal Fees.” Respondent deposited the $500 into his business operating account on October 15, 2013, rather than to his trust account. Respondent failed to pay for the deposition transcripts as had been intended. Beginning in December 2013, Ms. Rhodes made several inquiries about the status of the deposition transcripts. In early January 2014, after another email inquiry by Ms. Rhodes, Respondent had a phone conversation with Ms. Rhodes and informed her that due to his financial problems he used the funds to pay for law firm expenses, such as electricity and rent. During the conversation, Respondent indicated he could obtain a loan to pay for the deposition transcripts; however, Ms. Rhodes indicated she would pay the court reporter directly. Respondent further agreed to repay the funds to Ms. Rhodes when he had the financial ability to do so. Respondent converted the $500 to pay for business expenses of Michael E. Wynn P. A., as well as for other purposes.

Respondent failed to hold the $500 that was intended for costs in his trust account. A review of Respondent's bank records revealed the funds were used on items other than rent and electricity. On January 7, 2014, Ms. Rhodes issued a new check for $500 directly to the court reporter to obtain the necessary deposition transcripts, as agreed to by Respondent and Ms. Rhodes. By email in March 2014, Ms. Rhodes again asked Respondent about repayment of the initial $500. By reply email, Respondent stated that he would repay Ms. Rhodes as soon as he could. By email on September 15, 2014, Ms. Rhodes again inquired about the status for the repayment of the initial $500 and requested that Respondent to repay the funds by Christmas time. By reply email on September 15, 2014, Respondent reiterated to Ms. Rhodes that he had completed additional post-judgment legal services which were not part of the original representation and that the fees for services were higher than the $500 Respondent owed Ms. Rhodes. 

Respondent further offered to forgo billing Ms. Rhodes for the additional services in exchange for not having to remit the $500 owed. Respondent never executed a new representation agreement for additional services with Ms. Rhodes. There was never an understanding or agreement that the $500 could be applied towards legal fees. In October 2014, Ms. Rhodes filed a Bar grievance against Respondent. On November 8, 2014, Respondent arranged for Ms. Rhodes and Mr. Rhodes to meet him at MidFlorida Bank in Arcadia, Florida in order to repay the $500. During the meeting, Respondent presented Mr. and Mrs. Rhodes with a receipt of funds he drafted. Ms. Rhodes signed the document, which was notarized, without any discussion about its contents. The receipt of funds indicated that the funds were repaid and requested that the Bar complaint be dismissed. Respondent repaid the $500 upon the condition that Ms. Rhodes would request dismissal of the Bar grievance she filed against Respondent. By letter dated November 9, 2014, Respondent provided a copy of the receipt of funds to the Bar and requested closure of the file.

Respondent did not provide the required Certificate of Disclosure form. By email on November 12, 2014, Respondent was informed by the Bar that his written response to the allegations was required along with his required completed disclosure form. In response to the grievance, Respondent provided a Certificate of Disclosure form, dated November 16, 2014, wherein he incorrectly completed the section for Sole Practitioner and certified that he was `not presently affiliated with a law firm and was not affiliated with a law firm at the time of the act(s) giving rise to the complaint in The Florida Bar File No. 2015–10,358 (20A).’ At the time Respondent completed the November 16, 2014, disclosure form, he was employed by the Office of Regional Conflict Counsel, Second District, in Fort Myers, Florida. Respondent failed to timely notify his superiors with the Office of Regional Conflict Counsel, Second District, of the grievance filed against him as required by Rule 3–7.1 (f). Respondent did not provide notice of the grievance to his superiors with the Office of Regional Conflict Counsel, Second District, until December 2, 2014.
The Florida Bar v. Wynn, supra (quoting the Referee’s report).
The Supreme Court’s opinion goes on to explain that

[a]lso based on the stipulation, the referee recommended that Respondent be found guilty of violating Rules Regulating the Florida Bar 3–7.1(f) (Notice to Law Firms), 4–1.5 (Fees and Costs for Legal Services), 4–8.4(d) (Misconduct—a lawyer shall not engage in conduct prejudicial to the administration of justice), and 5–1.1 (Trust Accounts).

As for discipline, the referee recommended that Respondent be suspended for ninety days, followed by two years of probation during which Respondent would be required to participate in mentor monitoring, submit quarterly reports by a CPA, if in private practice, undergo an office procedures and record-keeping analysis by and under the direction of Diversion/Discipline Consultation Service (formerly LOMAS), and attend ethics school, a trust accounting workshop, and a stress management workshop. The referee also recommended that Respondent pay the Bar's costs. The Bar seeks review of the referee's recommended discipline and argues that a one-year suspension is the appropriate sanction.
The Florida Bar v. Wynn, supra (quoting the Referee’s report).
The Supreme Court then began its analysis of the Referee’s report:
In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because it is the Court's ultimate responsibility to order the appropriate sanctionSee Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989); see also Art. V, § 15, Fla. Const. However, generally speaking the Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999).

Here, the Bar does not dispute the referee's reliance upon Florida Standards for Imposing Lawyer Sanctions 4.0 (Violation of Duties Owed to Clients) and 7.0 (Violations of Other Duties Owed as a Professional) in recommending that Respondent be suspended under standards 4.12 and 7.2, rather than disbarred under standards 4.11 and 7.1. The Bar concedes that the referee properly found significant mitigating circumstances that weigh in favor of suspension rather than disbarment in this case. The Bar does dispute, however, the referee's recommendation as to the appropriate length of the suspension.

We agree with the Bar that the referee's recommendation of a ninety-day suspension does not have a reasonable basis in existing case law. First, the main case relied upon by the referee, Florida Bar v. Lopez, 83 So.3d 710 (Fla. 2012), is an unpublished disposition, approving an uncontested report of referee; thus, it cannot constitute `case law’ providing a reasonable basis for the referee's recommendation. Second, none of the other published cases cited by the referee, which are all more than approximately twelve years old, support a short-term non-rehabilitative suspension. In Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000), the Court imposed a ninety-one-day suspension on an attorney who had engaged in a convoluted series of unethical acts pertaining to funds he received from prospective class action clients. Subsequently, the attorney, prior to withdrawing from the representation, negotiated a settlement with the clients involving a refund to the clients in exchange for their agreement not to contact The Florida Bar or to withdraw any complaint already filed against him. The attorney also employed and improperly permitted a disciplinarily resigned attorney to have direct contact with a client. In Florida Bar v. Smith, 866 So.2d 41 (Fla. 2004), the Court imposed a one-year suspension on an attorney who deposited a $1665 check from a client for filing fees into her operating account and then used the funds for other expenses; failed to diligently represent that client and another client in an immigration matter; and issued a worthless check. The referee in Smith found significant mitigation in the form of, among other things, very serious medical issues, an absence of dishonest or selfish motive, rehabilitation, and remorse. In Florida Bar v. Corces, 639 So.2d 604 (Fla. 1994), the Court imposed a two-year suspension where an attorney intentionally debited a client trust account over $6000, used the funds to pay personal bills, then over the course of twenty months repaid the deficit in the client trust account. Finally, in Florida Bar v. McNamara, 634 So.2d 166 (Fla. 1994), an attorney converted for his own use a $5000 check from a third party that was either to be held in escrow or be used to reduce his client's tax obligation. Although the Court noted that there was evidence in the record to support several mitigating factors, we imposed a three-year suspension.
The Florida Bar v. Wynn, supra.
The opinion goes on to explain that
[h]ere, as in several of the cases discussed above, Respondent converted client funds for his own use and repaid the funds at a later time. In addition, as in Frederick, he attempted to condition the repayment upon the client's agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years' probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla. 2000). We see no reason under the circumstances of this case, even given the referee's uncontested findings of mitigation, to impose anything less than a rehabilitative suspension.


Accordingly, Michael Eugene Wynn is hereby suspended from the practice of law for one year, followed by two years of probation under the terms and conditions as set forth in the referee's report. The suspension will be effective thirty days from the filing of this opinion so that Wynn can close out his practice and protect the interests of existing clients. If Wynn notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Wynn shall fully comply with Rule Regulating the Florida Bar 3–5.1(h). Further, Wynn shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399–2300, for recovery of costs from Michael Eugene Wynn in the amount of $3,975.45, for which sum let execution issue.
The Florida Bar v. Wynn, supra

Monday, April 17, 2017

Operating a Motor Vehicle without a License, The Prosecutor and the Facebook Pos

This post examines a recent opinion from the Court of Appeals of Kentucky. Huff v. Commonwealth, 2017 WL 1102994 (2017). The court begins the opinion by explaining that it granted
discretionary review in this case to address Appellant's contentions that (1) the trial court erred when it failed to strike a juror for cause for violating Kentucky Revised Statutes 29A.310(2);  and (2) a Facebook post made by the prosecutor in Appellant's case disparaging the jury trial process in an unrelated matter one week prior to Appellant's trial created a substantial likelihood of prejudicing the defendant. 
Huff v. Commonwealth, supra. 
This is how the court explains the second issue:
Approximately one week prior to Huff's trial, the prosecutor, Perry Arnold, posted the following comment on his Facebook page in regard to a criminal matter unrelated to Huff's trial:
`I want to thank all the jurors who showed up today and especially the 7 who had to serve all day long. And considering the evidence they were allowed to hear, I think they made the right decision in finding the defendant not guilty. The man was charged with possession of meth and possession of drug paraphernalia for having a meth pipe next to where he was sitting in an apartment. The Judge threw out the meth charge before we even got started on a technicality and that left us with just the drug paraphernalia charge. What absolutely drives me crazy is that we can never tell a jury everything that we know about the facts of the case. I am so glad that I can say Trooper Chad Johnson told the absolute truth in this case. He could have said the defendant had the meth pipe in his pocket. He could have said the defendant told him he brought the meth pipe to the apartment. But Chad told the truth. But we weren't able to tell the whole truth. There was a co-defendant who told Chad that the defendant today brought meth pipe with him to the apartment and that he smoked meth with her there. The Judge wouldn't let us tell the jury that even though the defense was allowed to bring out other hearsay testimony from the co-defendant which made it sound like she probably had all the drugs and paraphernalia. My job as a prosecutor is to see that justice is done and I know that today justice was not done because we were not allowed to present all the evidence.’
(R. at 409–10).
The Court of Appeals then explained that,
[b]ecause of the post, Huff's defense counsel moved the court for a change in venue
 and requested that Mr. Arnold recuse himself. The court denied the motion. Defense counsel moved to individually voir dire the pool, but the request was denied. However, the court permitted defense counsel to prepare a questionnaire that addressed the Facebook issue. The court excused jurors, based on their answers to the questionnaire, if there was indication that he or she had either seen the Facebook post or was a Facebook friend with Mr. Arnold. During voir dire of the panel, free rein was given regarding the Facebook post.

During voir dire, the prosecutor acknowledged and discussed the statements made on Facebook with the potential jurors. Defense counsel provided no commentary nor did he conduct any questioning on the Facebook issue during voir dire.
Huff v. Commonwealth, supra. 
In his appeal, Huff argued that
Arnold's Facebook post mocked the jury trial process, which rendered Huff's trial unfair. Huff contends Mr. Arnold violated Kentucky [Rules of Professional Conduct for Lawyers] SCR 3.130(3.8);he relies on the fact that several potential jurors from Huff's venire saw Mr. Arnold's Facebook post.

The trial court made every effort to remove any member of the venire who may have seen or heard about the Facebook post. Defense counsel was unable to individually question each remaining member of the venire, but was able to distribute the questionnaire specifically on the Facebook issue. It reasonably appears that all potential prejudice created by Mr. Arnold's post was removed. Additionally, defense counsel chose not to conduct questioning specific to the Facebook post during voir dire. Accordingly, Huff has not demonstrated any prejudice to the trial as a result of Mr. Arnold's Facebook post.
Huff v. Commonwealth, supra. 
The opinion notes that Huff also argued that Arnold’s Facebook post violated Kentucky rules governing the ethical obligations of lawyers admitted to practice in that state.  Huff v.
Commonwealth, supra.  The Court of Appeals declined to address that argument, noting that whether Arnold violated bar rules was “a matter reserved for the Kentucky Bar Association.”
Huff v. Commonwealth, supra. 
That brings us back to the issue this post examines. As the opinion explains,
[a]fter the jury was seated and sworn, the trial court instructed the jurors not to have any contact with any parties, witnesses, counsel, or anyone associated with the trial. The admonition was repeated before all recesses and prior to the lunch break. Despite the instruction, Juror 68 was observed speaking with KSP Sergeant Charles Kelton during the trial's lunch break. Sergeant Kelton was a witness for the prosecution at Huff's trial.

Juror 68 was then questioned in chambers about his conversation with the Sgt. Kelton. Juror 68 admitted to the conversation, but stated that they were discussing that night's softball game; Sgt. Kelton and Juror 68 played on a softball team together. Nothing about the trial was mentioned in their discussion. The relationship between Sgt. Kelton and Juror 68 was previously disclosed and discussed during voir dire. Defense counsel moved the court to dismiss Juror 68 from the panel and proceed with an alternate. The trial court denied the motion stating `the standard is whether it's prejudicial to the trial in and of itself.’ . . .

The case proceeded, and the jury found Huff guilty on all charges and recommended the maximum sentence. The district court entered a judgment against Huff in accordance with the jury's verdict and recommendation. Huff sought review by the circuit court on the issues relating to the prosecutor's and Juror 68's conduct. The circuit court affirmed the district court. This Court granted discretionary review.
Huff v. Commonwealth, supra. 
The Court of Appeals found that
Juror 68 was questioned in chambers regarding the interaction with Sgt. Kelton after the admonishment. Based on Juror 68's responses, the trial court found the encounter to be non-prejudicial. It was certainly within the trial court's authority to find otherwise and replace the juror with the alternate. Trial courts are vested with considerable discretion when making prejudice determinations.
Huff v. Commonwealth, supra.  The court therefore found that “[a]ccordingly, we discern no abuse of discretion in the trial court's determination that Juror 68's misconduct was non-prejudicial.” Huff v. Commonwealth, supra. 
The Court of Appeals also declined to accept Huff’s argument about the prosecutor’s Facebook post, explaining that
The trial court made every effort to remove any member of the venire who may have seen or heard about the Facebook post. Defense counsel was unable to individually question each remaining member of the venire, but was able to distribute the questionnaire specifically on the Facebook issue. It reasonably appears that all potential prejudice created by Mr. Arnold's post was removed. Additionally, defense counsel chose not to conduct questioning specific to the Facebook post during voir dire. Accordingly, Huff has not demonstrated any prejudice to the trial as a result of Mr. Arnold's Facebook post.
Huff v. Commonwealth, supra. 
The Court of Appeals therefore affirmed Huff’s conviction. Huff v. Commonwealth, supra.