Law Blog:

Last month, two separate wrongful death lawsuits filed in the Court of Common Pleas in Philadelphia County highlight the results of drunken driving accidents and the need for drinking establishments to serve with greater responsibility. The parents of Zachary Hartwell, a passenger in Jackass star Ryan Dunn’s Porsche 911, filed a wrongful death suit against Dunn’s estate and Barnaby’s West Chester – the bar that allegedly continued to serve Dunn alcohol even after he appeared intoxicated. Hartwell and Dunn died after Dunn allegedly lost control of his vehicle and violently crashed in West Goshen, PA in 2011.The second lawsuit, filed by the widow of fallen Philadelphia Highway Patrol Officer Brian Lorenzo, names both the alleged driver who struck her husband as well as the Bensalem T.G.I. Friday’s that allegedly served him alcohol in the hours prior to the collision. Lorenzo died in a head-on collision after John D Leck, Jr. reportedly drove the wrong way down I-95 in Philadelphia, according to the Philadelphia Inquirer.

Consumer Product Safety Commission Moves Away from Just Warning on Dangerous Products

HBO will air a new documentary executive produced by Rosie O’Donnell called “Don’t Divorce Me! Kids Rules for Parents on Divorce.”   Initially airing on September 20, 2012, this thought provoking documentary will be repeated several times in HBO’s rotation throughout October. 

Clients involved in a divorce proceeding frequently want to know what, if anything, will cheating on a spouse ultimately cost.  In Pennsylvania, the Court may award alimony, “as it deems reasonable,” if it finds that alimony is necessary based upon various factors that are designed to aid in determining the nature, amount, duration, and manner of the payment of alimony. The seventeen factors are contained in a state statute, 23 Pa.C.S. Section 3701, and are as follows: 

In a recent decision, the Pennsylvania Supreme Court issued an interesting opinion in a products liability matter, Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012).  The medical device in question was designed for use in a variety of different surgical applications.  The plaintiffs claimed that risk-utility balancing concerning the design of the device should be limited to the particular use to which the device was put in the plaintiff's surgery, thus ignoring other potential uses for the product.  The Pennsylvania Supreme Court refused to limit the scope of risk-utility balancing in that fashion, noting:

Simply stated, an insurance agent has no general duty to advise its insureds with regard to essentially anything after the issuance of the policy.  In many jurisdictions, the basis for not holding agents to an ongoing duty to advise stems from a fear that to do so would create a situation where the tort floodgates would open to allow claims against brokers whenever an incident surrounding the policy occurs.  When viewed exclusively in the insurance context, once the policy is issued, the insured is responsible for noticing any problems with the policy and bringing them to the attention of the agent immediately. With regard to administration of the policy following issuance, the basis for not requiring a duty of care stems from a belief that such would require an agent to continuously monitor a clients assets and adjust coverage accordingly. Since agents are generally in a position where they must rely on the information given to them by the insured, imposing such a duty of care is considered unreasonable.

A split en banc Commonwealth Court has raised the evidentiary standard for the Department of Public Welfare to maintain information from certain child abuse reports on the ChildLine and Abuse Registry, a toll-free system for disclosing reports of child abuse to certain designated government officials, law enforcement, and other third parties.  Under Pennsylvania Child Protective Services Law, a person seeking employment in which there is a significant likelihood of direct contact with children or residing in a family day care home must provide certification that he/she is not on the ChildLine registry.  While it is undisputed that the state’s General Assembly has pronounced that substantial evidence must support a report, there was no legislative mandate regarding the standard of proof to be met for maintaining a report summary of the ChildLine registry. 

In a 5 to 4 decision, on June 28, 2012, the Supreme Court upheld the constitutionality of the cornerstone provision of President Obama’s Affordable Care Act, the individual mandate. In the Court’s majority decision, which was written by Chief Justice Roberts and concurred in by Justices Breyer, Ginsburg, Sotomayor and Kagan, the law’s individual mandate was ruled a valid exercise by Congress of its taxing power. Justice Kennedy, who was widely viewed as the likely swing vote, joined with Justices Scalia, Alito and Thomas in a dissenting opinion. A surprise to most was that the controlling swing vote in favor of upholding the law proved to be that of the Chief Justice. 

In court for sentencing after being convicted of assaulting the mother of his children, White Twin was facing up to 78 months in prison plus three years of supervised release. U.S. District Judge Charles Kornmann of the District of South Dakota then noticed Twin was smiling at the sentencing. Finding a lack of humor in the proceedings, Judge Kornmann noted for the record that the defendant was smiling and then added six more months to the defendant’s prison sentence. The Eighth Circuit upheld Judge Kornmann’s upward sentencing departure on June 27, 2012, noting that the district court has discretion to increase its sentence under four guidelines, including criminal history, inadequacy, extreme psychological injury for the victim, extreme conduct, and dismissed and uncharged conduct.