By: Carol Dillon
BleekeDillonCrandall
A healthy tree can impose an unreasonable risk of harm to a neighboring landowner depending on its size and where it is planted.
The Indiana Court of Appeals recently reiterated and further explained a landowner’s duty to neighbors regarding potential injury or property damage from trees. Landowners have a duty to protect their neighbors from property damage or injury from trees on their property, whether the trees are healthy or unhealthy. Specifically, in Scheckel v. NLI, Inc., dated August 9, 2011, a landowner was responsible for $2,500 of damage to the neighboring landowner’s sidewalk and fence because the tree roots from a tree on the landowner’s property had obstructed both items. Even though the tree was healthy and the landowner had no reason to believe otherwise, the Indiana Court of Appeals held that the landowner should have known based on the location of the tree, and its size, that it might cause property damage. Under the Restatement (Second) of Torts, typically the natural condition rule exempts landowners from liability for injury or property damage arising out of the natural condition of the land. However, a historical exception to that rule is unhealthy or dead trees. The Indiana Court of Appeals found that there is no difference between a healthy tree and an unhealthy tree and both should be exceptions to the natural condition rule.
Thursday, August 25, 2011
Wednesday, August 3, 2011
Litigation Attorneys & Risk Management
By: Jeb Crandall
BleekeDillonCrandall
As litigation attorneys, we tend to focus on what to do after a lawsuit has been initiated. Who do we need to interview? What records do we need? Who should we depose? We don’t always remember that most of our clients would prefer NOT to be in litigation in the first place! So, as litigation attorneys, how can we advise our clients on risk management issues based on our experiences during litigation? Consider documents produced in discovery. Could certain damaging documents have been protected had different procedures been followed during the initial internal investigation? Does an “at-will” employment state affect what documents can (or should) be placed in a terminated employee’s file? When you come across these kinds of issues in the midst of litigation and discovery, don’t hesitate to contact your client to discuss how they can adjust their procedures to protect themselves going forward. While it may not help the current case, it lets your client know that you are looking out for their best interest across the board. As they say, “An ounce of prevention…”
BleekeDillonCrandall
As litigation attorneys, we tend to focus on what to do after a lawsuit has been initiated. Who do we need to interview? What records do we need? Who should we depose? We don’t always remember that most of our clients would prefer NOT to be in litigation in the first place! So, as litigation attorneys, how can we advise our clients on risk management issues based on our experiences during litigation? Consider documents produced in discovery. Could certain damaging documents have been protected had different procedures been followed during the initial internal investigation? Does an “at-will” employment state affect what documents can (or should) be placed in a terminated employee’s file? When you come across these kinds of issues in the midst of litigation and discovery, don’t hesitate to contact your client to discuss how they can adjust their procedures to protect themselves going forward. While it may not help the current case, it lets your client know that you are looking out for their best interest across the board. As they say, “An ounce of prevention…”
Monday, August 1, 2011
Alleged Congressman Gabby Giffords’ Shooter Obtains Court Order To Avoid Forced Psychotropic Medications
By: Jim Bleeke
BleekeDillonCrandall
A recurring issue that we have seen in correctional healthcare cases are prisoners who commit suicide or otherwise claim they are harmed due to their psychiatric condition. With 20/20 hindsight, the prisoners, or their families, commonly allege that proper medication would have prevented the prisoner from whatever harm occurred. However, plaintiffs in those cases ignore the prisoner’s constitutional right to be free of forced medication unless they have been determined mentally incompetent. That issue has been addressed very recently in the high-profile case involving the alleged assailant Congressman Gabby Giffords.
The United States Ninth Circuit Court of Appeals recently (July 6, 2011) granted a temporary injunction prohibiting the prison which was housing Jared Loughner from giving him involuntary psychotropic medications. The prison officials had given Mr. Loughner those medications on an emergency basis because they were concerned that he otherwise would pose a danger to himself or to others. The Ninth Circuit Court of Appeals found the involuntary medication of Mr. Loughner violated his liberty interest, namely his right to be free of the forcible administration of medication when he had not been previously found mentally incompetent.
This opinion once again demonstrates just how difficult the job of correctional medicine can be when confronted with a potential “Catch 22” situation in which involuntary psychotropic medications are not permitted by the courts, but any harm that befalls a prisoner can be second-guessed with 20/20 hindsight if any harm then befalls the prisoner due to a psychiatric condition.
BleekeDillonCrandall
A recurring issue that we have seen in correctional healthcare cases are prisoners who commit suicide or otherwise claim they are harmed due to their psychiatric condition. With 20/20 hindsight, the prisoners, or their families, commonly allege that proper medication would have prevented the prisoner from whatever harm occurred. However, plaintiffs in those cases ignore the prisoner’s constitutional right to be free of forced medication unless they have been determined mentally incompetent. That issue has been addressed very recently in the high-profile case involving the alleged assailant Congressman Gabby Giffords.
The United States Ninth Circuit Court of Appeals recently (July 6, 2011) granted a temporary injunction prohibiting the prison which was housing Jared Loughner from giving him involuntary psychotropic medications. The prison officials had given Mr. Loughner those medications on an emergency basis because they were concerned that he otherwise would pose a danger to himself or to others. The Ninth Circuit Court of Appeals found the involuntary medication of Mr. Loughner violated his liberty interest, namely his right to be free of the forcible administration of medication when he had not been previously found mentally incompetent.
This opinion once again demonstrates just how difficult the job of correctional medicine can be when confronted with a potential “Catch 22” situation in which involuntary psychotropic medications are not permitted by the courts, but any harm that befalls a prisoner can be second-guessed with 20/20 hindsight if any harm then befalls the prisoner due to a psychiatric condition.
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