Training accidents

Training accidents

Brady v City of New Rochelle, App. Div., 2nd Dept., 296 AD2d 365

A police officer is injured while participating in a training program. May he or she sue the employer for negligence? In Brady the Appellate Division said the injured officer could not sue the employer for negligence.

Matthew Brady, a New Rochelle police officer, sued the City for "common-law negligence" after he was injured in a motorcycle accident during a police motorcycle training course.

The Appellate Division, Second Department, affirmed a lower court ruling dismissing Brady's action on the grounds that "Brady was performing his official duties as a police officer at the time of the accident." In other words, participating in training activities is "on-the-job" performance of duties.

Citing the decisions in Melendez v City of New York, 271 AD2d 416, and Flynn v City of New York, 258 AD2d 129, the court ruled that Brady's common-law negligence cause of action was barred by General Obligations Law Section 11-106.

Another reason given by the Appellate Division for blocking Brady's law suit: his "common-law negligence cause of action is barred on the ground that he received salary and medical benefits pursuant to General Municipal Law Section 207-c" as a result of his being injured in the course of his employment.

Vindicating a personal right

Vindicating a personal right

Cavanaugh v Board of Education of Huntington Union Free School District, 296 A.D.2d 369

The Cavanaugh decisions demonstrates the critical importance of filing a timely notice of claim when an individual plans to sue a school district concerning a matter solely involving his or her private interest.

Carlene Cavanaugh sued the Board of Education of Huntington Union Free School District for damages for alleged acts of employment discrimination in violation of Executive Law Section 296. Cavanaugh claimed that the school district forced her to resign from her position because it refused reasonably accommodate her disability. She also alleged that the district violated Section 296 by unlawfully discriminating against her because of her age.

Although Cavanaugh apparently was timely in filing her lawsuit, she failed to file a timely notice of claim with the school district.

The Appellate Division, Second Department, ruled that where an individual "seeks private relief for employment discrimination in violation of the Executive Law," the timely filing of a notice of claim required by Section 3813(1) of the Education Law is "a condition precedent to suit." The court cited the Court of Appeals ruling in Mills v County of Monroe, 59 NY2d 307, [certiorari denied 464 US 1018] as authority for its ruling.

Sometimes it may be possible to obtain court approval to file a "late notice of claim." However, the general rule is that if an aggrieved party fails to file a required notice of claim before the controlling statute of limitations expires, the courts do not have "jurisdiction" over the issue.

As the Cavanaugh decision implies, courts may find it necessary to distinguish between an employee's suing his or her employer in an effort to vindicate a private interest in contrast to his or her attempt to vindicate a public interest.

Bringing discredit on the employer

Bringing discredit on the employer

Wilburn v McMahon, 296 AD2d 805

From time to time disciplinary charges alleging misconduct because the employee's actions discredited the employer in the eyes of the public are filed against an employee. The Wilburn case is an example of such a case.

Douglas A. Wilburn, a New York State Trooper, was charged with, among other things, "engaging in conduct that tended to discredit [the] Division of State Police." Other charges alleged that Wilburn had left his assigned post without the approval of his superiors and that he used his position as a member of the Division of State Police to obtain information for a personal reason.

Wilburn admitted that he had obtained the e-mail addresses of two college students who had asked him for directions. He also admitted that he had sent e-mail to the students using the name "like2tryu2" with a subject heading of "BI MALE HERE."

Wilburn conceded that he had no "law enforcement" reason to obtain the names of the students nor their e-mail addresses and further acknowledged that the students had probably divulged their names to him only because he was a State Trooper.

The students became upset, angry and alarmed by these messages, especially since "like2tryu2" indicated that he knew the students. When they discovered Wilburn's identity, the students registered complaints with the Division of State Police.

Wilburn's defense: his motivation was altruistic and, at worst, constituted excusable poor judgment. Found guilty of the charges, Wilburn was dismissed from his position. He then initiated an Article 78 action, claiming that (1) there wasn't substantial evidence in the disciplinary record to support a determination of guilt and (2) the penalty imposed -- termination -- was too harsh.

The Appellate Division found that there was substantial evidence in the record to support the Superintendent's determination and, further, under the circumstances termination did not violate the Pell standard [Pell v Board of Education, 34 NY 2d 222] in that it was not so disproportionate as to shock one's sense of fairness.

The court said that regardless of the merit of Wilburn's testimony regarding his motivation, which, in fact, was specifically rejected by the disciplinary hearing panel, "the fact remains that he used his position as a State Trooper to obtain information for personal reasons, i.e., purposes unrelated to his law enforcement duties." Further, one of the students he contacted testified that he "didn't expect that to happen from a State Trooper" and the other "wonder[ed] what kind of people they hire if they're going to do that". Such testimony, said the Appellate Division, supported a finding that Wilburn's conduct tended to discredit the State Police.

As to Wilburn's argument that the penalty imposed, dismissal from the service, was disproportionate to the offenses he had committed, the court noted that the Division "did not rely solely upon the subject charges in determining the penalty." Rather, said the court, the Division "properly considered [Wilburn's] employment record over 10 years which contained approximately 16 founded complaints, including, neglect of duty and incompetence."

The court commented that the Superintendent "properly considered" Wilburn's employment history with the Division in setting the penalty.

Sometimes the use of the employee's personnel record by the disciplinary hearing officer or arbitrator to determine the severity of the penalty to be imposed on an employee found guilty of one or more of the charges filed against him or her is challenged by the individual.

The general rule applied by the courts when asked to determine if the employee's personnel record was lawfully considered in setting the disciplinary penalty is that the employee's personnel records may be considered in setting a penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

The case usually cited as authority for this proposition is Bigelow v Trustees of the Village of Governour, 63 NY2d 470.

Further, the employee's consent is not required in order for the hearing officer or arbitrator to consider the employee's personnel record in determining an appropriate penalty.

In some cases the employee's work history may serve to mitigate the imposition of a harsher penalty than would be appropriate under the circumstances because of the individual's otherwise exemplary performance record. Sometimes the individual may request that his or her entire personnel record be considered in order to mitigate the penalty to be imposed.

In contrast, a history of a series of petty offenses by the individual may have a cumulative impact in the determining the appropriate penalty to be imposed. For example, courts have sustained the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

Responsibility of employers in cases of sexual harassment

Responsibility of employers in cases of sexual harassment

Ellerth v Burlington Ind., CA7, 102 F.3d 848 

The law places a heavy burden of responsibility on employers in cases of sexual harassment. Even if the employer was unaware of the harassment and the harasser was breaking company rules in his or her behavior, the employer may still be judged liable.

The pertinent law can be confusing and is not well understood by many personnel directors and union leaders, even those with experience handling sexual harassment cases. However, courts consider the standard that they apply to be uncontroversial. Circuit Judge Diane Wood explained the law in her decision in the Ellerth case.

The Ellerth case concerned a male vice president of marketing who had a habit of staring conspicuously at a female employee's breasts and legs and made numerous sexual comments, including during her initial job interview. (He inquired whether she and her husband were planning to have a family -- an illegal question, to be sure -- and whether they were "practicing" at it.) In a hotel lounge during a business trip, he told her that she should "loosen up" and that "I could make your job very hard or very easy at Burlington."

Although such behavior continued for more than a year, the employee never complained to her direct supervisor or the human resources department as called for in the company's policy against sexual harassment. The question the court focused on was whether an employer is held liable for a supervisor's conduct.

The answer is sometimes.

The U.S. Supreme Court addressed the issue in its landmark 1986 decision in Meritor Savings Bank v Vinson, 477 U.S. 57, in which the justices declared that sexual harassment is a form of sex discrimination prohibited by Title VII. In that decision, the Supreme Court rejected the view that employers are "automatically" or "absolutely" liable for the actions of supervisory personnel. At the same time, the Court rejected the notion that a company that has a policy against harassment and a grievance procedure is necessarily insulated from liability, even if the employee fails to file a grievance.

Instead, the justices stated that courts should determine employers' liability by relying on the old legal concept of agency, which holds that a master is responsible for the actions of a servant if the servant was aided in the action by the existence of an "agency relation" to the master.

For instance, suppose there is evidence that a rental agent named Hurdelbrink discriminated when showing apartments to prospective tenants. The owner of the building, Balistrieri, argues that there is nothing to link the discriminatory acts to him. Is the owner still liable for Fair Housing Act violations? Yes, the Seventh Circuit ruled in U.S. v Balistrieri, CA7, 981 F2nd 916 (1992):

In any event, Hurdelbrink was acting as Balistrieri's agent. Her duties as agent were to show apartments and to do the other things--such as quoting rents and stating rental conditions--that go along with that job. Hurdelbrink was acting within the scope of her authority--either actual or apparent--when she committed her discriminatory acts. As we have previously held ... "a principal is liable for the wrongful acts of its agent."

In a nutshell, liability depends on whether a supervisor was "acting in the scope of (his or her) employment" in committing the acts of harassment.

If the employee was breaking a company rule in the behavior, that means they were not acting in the scope of their employment, right? Wrong. If the employee broke a rule -- or even committed a crime -- this does not shield the employer from liability. In a case involving a hotel vice president who actually raped and sodomized an employee during working hours, the Fourth Circuit found the corporate employer to be liable for the sexual harassment. The test, the court held, "is not whether the ... act itself is a transaction within the ordinary course of the business of the [employer], or within the scope of the [employee's] authority, but whether the service itself in which the ... act was done was within the ordinary course of such business or within the scope of such authority." Martin v Cavalier Hotel Corp., CA4, 48 F3rd 343 (1995), at 1351.

In the specific case of Ellerth and Burlington Industries, Judge Wood, a Clinton appointee, ruled that it is possible that the company is liable and that a jury trial should be permitted. Wood and other circuit judges overturned a summary judgment by a U.S. District Court dismissing the lawsuit.

"The district court erred in believing that the relevant conduct was the harassment itself and that the harassment somehow needed to serve the employer's purpose before "scope of employment" liability could result," Wood wrote.

The mere fact that the offenses occurred during working hours and in the context of a working relationship that benefited the employer is sufficient to establish the harasser was acting in the scope of his employment, Wood wrote. "(M)ost of his actions took place in the workplace, during working hours, and they were directed toward an employee over whom he had substantial authority. In some cases they occurred off-premises, but only in the context of business luncheons or work-related travel ... Nothing ever happened on entirely personal time or circumstances."

Indeed, the supervisor's innuendoes that there would be a quid pro quo for sexual favors were "directly related to his corporate position," Wood wrote.

Under agency law, Burlington's liability for the actions of its supervisor taken within the actual or apparent scope of his employment does not depend on whether someone else at the company knew or should have known that the supervisor was abusing the authority he had been given, Wood wrote. "The common law of agency places the responsibility on the employer to monitor the supervisory employees to whom it has entrusted special powers, to ensure that those powers are not misused."

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia November 5, 2011

Novella v. Westchester County, et al.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 09-4061

November 3, 2011

Judge: Sack

Areas of Law: Class Action, ERISA, Labor & Employment Law

This appeal and cross-appeal concerned the pension benefits owed to plaintiff, a retired carpenter, and members of a class he purported to represent. Plaintiff asserted that the pension fund was guilty of seven violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., and sought declaratory and injunctive relief. The court agreed with the district court that defendants' interpretations of certain plan language was arbitrary and capricious and therefore affirmed the district court's award of summary judgment to plaintiff on his individual claims for miscalculation of pension benefits. The court concluded, however, contrary to the district court, that the six-year statute of limitations applicable to plaintiff's and each other putative class member's ERISA claims began to run when each pensioner knew or should have known that defendants had miscalculated the amount of his pension benefits, and that he was being underpaid as a result. Therefore, the court vacated the district court's judgments certifying the plaintiff class, granting summary judgment to the class, and granting prejudgment interest to the class members. The court remanded for further factfinding with regard to when each putative class member became, or should have become, aware of his alleged injury so as to begin the running of the statute of limitations as applied to him.

http://j.st/GTD

Tepperwien v. Entergy, Inc.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-1425

October 31, 2011

Judge: Chin

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff, employed as a security officer by defendant, contended that he was sexually harassed by a co-worker and brought an action against defendant, asserting claims for constructive discharge, hostile environment sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The court held that the district court properly granted defendant's motion for judgment as a matter of law dismissing the retaliation claim because a reasonable employee in plaintiff's situation would not have been deterred from engaging in protected activities. The district court also correctly held that, even assuming the jury could have reasonably found plaintiff on his retaliation claim, defendant was entitled to judgment as a matter of law on the award of punitive damages because a reasonable jury could find that defendant sought to, and did, address defendant's claims in good faith. Accordingly, the court affirmed the judgment of the district court.

http://j.st/G3t

Small v. Avanti Health Systems, LLC, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 11-55563

October 31, 2011

Judge: Reinhardt

Areas of Law: Labor & Employment Law

Petitioner sought injunctive relief in district court pursuant to section 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. 160(j), alleging that CHHP was a successor employer to Karykeion and that a majority of CHHP's registered nurses had been members of the California Nurses Association under Karykeion. Petitioner therefore alleged that CHHP's continuing failure to bargain in good faith with the chosen representative of its employees violated sections 8(a)(1) and 8(a)(5) of the NLRA. The district court granted petitioner's petition and issued a preliminary injunction, applying the test established in Winter v. Natural Resources Defense Council. The court held that the district court did not abuse its discretion in issuing the preliminary injunction and affirmed the order.

http://j.st/GUd

Kairy, et al. v. Supershuttle Int'l, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-16150

November 3, 2011

Judge: Tashima

Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law

Plaintiffs, current or former "franchisee" shuttle van drivers for SuperShuttle in various parts of California, filed a putative class action alleging that plaintiffs were misclassified as "independent contractors" when, in truth, they were "employees" under California law. Plaintiffs alleged that they had consequently been deprived of the full protections provided to employees under the California Labor Code, including overtime and minimum wages, reimbursement of business expenses and deductions wrongfully taken from wages, and meal period pay. The district court granted SuperShuttle's motion to dismiss plaintiffs' state law claims holding that it lacked subject matter jurisdiction. The court held that the third prong in San Diego Gas & Electric Co. v. Superior Court (Covalt) was not satisfied, the California Public Utilities Code 1759 was not implicated, and the district court retained subject matter jurisdiction over the case. On remand, the district court could determine whether the SuperShuttle drivers were employees or independent contractors under California law without hindering or interfering with PUC decisions or policies.

http://j.st/GqZ

Anderson v. Cato Corporation

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-3003

October 27, 2011

Judge: Baldock

Areas of Law: Civil Rights, Labor & Employment Law, Public Benefits

Plaintiff Cynthia Anderson appealed a district court's grant of summary judgment in favor of Defendant Cato Corporation on her claim of discrimination under the Pregnancy Discrimination Act. A month or two after Cato terminated her employment, Plaintiff asked for a letter stating the reasons for her termination so that she could apply for public health benefits. A Cato supervisor wrote that Plaintiff "was terminated due to pregnancy related illnesses. [Plaintiff] needed off three weeks for bed rest required by a doctor. However, according to Cato policy a part time sales associate has to be release[d] if she/he needs off for longer than seven days unless she/he has been employed for 365 days. [Plaintiff] did not apply to the guidelines; therefore she was forced to be terminated." The supervisor's undisputed testimony was that Plaintiff "told me that she needed me to put on [the letter] it was because of her pregnancy." After Plaintiff filed suit, Cato moved for summary judgment. The district court determined that the letter was not direct evidence of discrimination. The court considered it "significant" that Plaintiff asked for the letter and told her supervisors what the letter should state as reasons for her termination. The court concluded that Plaintiff could establish a prima facie case for discrimination but that the evidence did not raise a disputed issue of material fact. Upon review, the Tenth Circuit concluded that the letter was indeed not direct evidence of discrimination, and agreed with the district court's reasoning that Plaintiff could make a prima facie case but that summary judgment was appropriate.

http://j.st/GoN

Williams v. Cherokee Nation Entertainment

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-5107

November 1, 2011

Judge: Matheson

Areas of Law: Labor & Employment Law

Plaintiff James Williams appealed a district court's denial of his motion for leave to proceed in forma pauperis (IFP) to file a complaint and have it served. In June 2011, Mr. Williams filed a complaint against his former employer, Cherokee Nation Entertainment, LLC, alleging he was terminated in violation of the Family Medical Leave Act of 1993. Plaintiff petitioned the district court for leave to proceed IFP and provided an affidavit alleging he was unemployed and disabled, and thus unable to pay the cost to file his suit. Plaintiff reported average monthly income from unemployment benefits and education assistance totaling $2,200, and monthly expenses totaling $300. Additionally, Plaintiff listed assets of $1025 and debt for unpaid medical bills. The district court determined that Plaintiff was able to pay court fees and costs and therefore denied his petition. Finding no error in the district court's ruling, the Tenth Circuit affirmed the district court. Plaintiff also petitioned for leave to proceed IFP on appeal. The Court granted that motion based upon an updated affidavit and financial declaration Plaintiff provided on appeal.

http://j.st/GS7

Carter v. Pathfinder Energy

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-8112

November 3, 2011

Judge: Gilman

Areas of Law: Civil Rights, ERISA, Labor & Employment Law

Plaintiff Dennis Carter began working as a directional driller at Pathfinder Energy Services, Inc., in December 2004. Two years later, declining health had caused a reduction in Plaintiff's workload. Pathfinder fired Plaintiff for "gross misconduct" based primarily on an altercation that he had had with a coworker and his language and attitude during a conversation with his supervisor. Plaintiff sued Pathfinder in federal district court, alleging that Pathfinder had violated his rights under the Americans with Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA). He also alleged that Pathfinder had breached his implied-in-fact employment contract. The district court granted summary judgment in favor of Pathfinder on all three claims. Upon careful review, the Tenth Circuit reversed the district court’s grant of summary judgment on Plaintiff's ADA claim, but affirmed the grant of summary judgment on the remaining claims. Specifically, the Tenth Court held that "[a] reasonable jury could conclude that [Plaintiff] has made out a prima facie case of discrimination and has established that Pathfinder’s asserted justification for his firing was pretextual. At this stage of the case, that is enough." The Court remanded the case for further proceedings on the ADA claim.

http://j.st/Gqr

Diggs. v. Dep't of Hous. & Urban Dev.

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-3193

November 1, 2011

Judge: per curiam

Areas of Law: Government & Administrative Law, Labor & Employment Law

The agency removed plaintiff from her position based on charges of rude, disruptive, aggressive, or intimidating behavior and misrepresentation. Plaintiff denied the charges and alleged retaliation for prior Equal Employment Opportunity claims of sex discrimination. The Administrative Judge and Merit Systems Protection Board affirmed the removal. Plaintiff petitioned the EEOC for review; that agency found that the evidence supported the conclusion that her removal was not motivated by retaliatory animus. The Federal Circuit dismissed an appeal, finding that it lacked jurisdiction to review the Board's decision on the "mixed case." The case involved both a specific type of action against an agency which may be appealed to the Board and an allegation in the nature of an affirmative defense that a basis for the action was discrimination within one of the categories” listed in 5 U.S.C. 7702(a)(1)(B). Affirmative defenses of retaliation for prior EEO activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. 7702.

http://j.st/GwB

Douglas v. First Student, Inc.

Court: Arkansas Supreme Court

Docket: 11-361

November 3, 2011

Judge: Gunter

Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law

Petitioners, who were all employed by Respondent as public school bus drivers or dispatchers, claimed that Respondent failed to compensate them for regular and overtime wages in weeks in which they worked more than forty hours. Petitioners filed a class-action complaint in federal district court, alleging violations of the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act (AMWA). Respondents opposed Petitioners' motion to amend their complaint, contending the amendment would be futile because Petitioners' AMWA claims were barred by the three-year statute of limitations set forth in Ark. Code Ann. 16-56-105. The Supreme Court accepted certification to answer what the appropriate statute of limitations was for a private cause of action pursuant to Ark. Code Ann. 11-4-218(e), which allows an employee to bring a private cause of action for relief against an employer for minimum wages, including overtime wages, but does not include a specific limitations provision. After acknowledging the Court's long history of applying section 16-56-105's three-year limitation period for statutorily created liabilities that do not contain an express limitations period, the Court answered that a three-year statute of limitations would apply to private causes of action brought pursuant to AMWA.

http://j.st/GGJ

Rigoli v. Wal-Mart Associates, Inc.

Court: Idaho Supreme Court - Civil

Docket: 37887

November 3, 2011

Judge: Burdick

Areas of Law: Labor & Employment Law, Public Benefits

Claimant-Appellant William Rigoli appealed an Industrial Commission's decision that found him ineligible for unemployment benefits because he was discharged for misconduct in connection with his employment. Claimant worked as a toy department manager for Respondent Wal-Mart, and was fired for using foul language and leaving before his assigned shift was completed. Initially, Claimant was determined by the Department of Labor to be eligible for unemployment benefits, but his employer appealed his eligibility. The Department ultimately concluded that Claimant was ineligible, and he appealed to the Industrial Commission. The Commission upheld the Department's conclusion and denied benefits. Upon review, the Supreme Court found that there was substantial and competent evidence the Commission relied upon to conclude that Claimant was discharged for employment-related misconduct, and, therefore, was ineligible for unemployment benefits.

http://j.st/GpQ

Locker v. How Soel, Inc

Court: Idaho Supreme Court - Civil

Docket: 37622

November 1, 2011

Judge: Horton

Areas of Law: Labor & Employment Law, Public Benefits

Petitioner Shanna Locker appealed the Industrial Commission’s (Commission) finding that she was insubordinate when she failed to provide a medical release at the request of her employer, Logan’s Foodtown. The Commission found that this constituted employment-related misconduct which rendered Petitioner ineligible for unemployment insurance benefits. Upon review of the record before the Commission, the Supreme Court affirmed the Commission's decision.

http://j.st/GqE

Tarbet v. J.R. Simplot Co.

Court: Idaho Supreme Court - Civil

Docket: 38096-2010

November 2, 2011

Judge: Eismann

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law, Public Benefits

Claimant David Tarbet worked for Employer J.R. Simplot Company for thirty-six years until an accident in 2007 left him totally and permanently disabled. The issue before the Industrial Commission (Commission) was whether Employer was liable for all or only a part of Claimant’s income benefits. If Claimant’s total disability resulted solely from the last accident, Employer would be liable for all of the income benefits. If his total disability resulted from the combined effects of both that injury and impairments that pre-existed that injury, then Employer was liable only for that portion of the income benefits for the disability caused by the accident, and the Industrial Special Indemnity Fund (ISIF) would be liable for the remainder. The Industrial Commission found that the April 2007 accident was Claimant’s final industrial accident, that he was totally and permanently disabled as a result of the final accident, and that the impairments that existed prior to that accident did not contribute to his total disability. It found that ISIF was not liable for Claimant’s benefits and dismissed the complaint against it. Employer then appealed. Upon review of the Commission's record, the Supreme Court affirmed the Industrial Commission's order.

http://j.st/Gpp

Interlock Indus., Inc. v. Rawlings

Court: Kentucky Supreme Court

Docket: 2010-SC-000264-DG

October 27, 2011

Judge: Schroder

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law

Charles Rawlings suffered injuries as he was rolling straps beside his tractor-trailer while it was being unloaded. Thirteen months after the accident, Rawlings filed an action against Defendants, his employer and the companies involved in loading and unloading the trailer. The trial court granted summary judgment in favor of Defendants and dismissed the action based on the one-year statute of limitations for personal injury claims in Ky. Rev. Stat. 413.140(1)(a). The court of appeals reversed, applying the two-year statute of limitations in the Motor Vehicle Reparations Act. At issue on appeal was whether Rawlings was in fact unloading his truck at the time of the accident, which would determine whether the one- or two-year statute of limitations applied. The Supreme Court reversed, holding (1) Rawlings's activity in releasing the straps and rolling them qualified him as a participant in the unloading process; and (2) therefore, the trial court correctly applied the one-year personal injury statute of limitations found in section 413.140(1)(a). Remanded.

http://j.st/Goz

Montgomery County v. Deibler

Court: Maryland Court of Appeals

Docket: 120/10

October 27, 2011

Judge: Barbera

Areas of Law: Injury Law, Labor & Employment Law

Employee received two knee injuries while working as a firefighter for Employer. Employee filed claims with the Worker's Compensation Commission, requesting disability compensation for the loss of income stemming from each injury. The Commission ordered that Employee should receive temporary partial disability compensation for the period in which he worked light duty after both injuries. Employer sought judicial review. At issue before the circuit court was whether a loss of Employee's ability to work overtime, and its associated loss in overtime compensation, qualified as a lessening of Employee's wage earning capacity for the purposes of Md. Code Ann. Lab. & Empl. 9-615(a). The circuit court affirmed the Commission's order, ruling that the term "wage earning capacity" could fairly include overtime compensation. The Court of Appeals affirmed, holding (1) the term "wage," as used in the phrase "wage earning capacity" in section 9-615(a), includes compensation paid for overtime hours worked prior to temporary partial disability; and (2) the Commission correctly determined that Employee's wage earning capacity was "less," under section 9-615(a), entitling him to compensation payment in accordance with the calculation scheme set forth in that section.

http://j.st/GJS

State ex rel. Lane v. Pickerington

Court: Ohio Supreme Court

Docket: 2011-0922

October 27, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Labor & Employment Law

For several years, Appellant Paul Lane worked for the City. Later, the interim city manager terminated Lane's employment for disciplinary reasons. Lane subsequently submitted to the City's personnel director a request for a hearing from the City Personnel Appeals Board regarding his termination. Via letter, the City declined Lane's request. Lane filed a complaint for a writ of mandamus to compel Appellees, the City and Board, to conduct a hearing and issue a determination on the merits of his appeal, reinstate him to his position of employment, and award back pay and corresponding employment benefits. The court of appeals denied the writ, determining that Lane had an adequate remedy in the ordinary course of law by administrative appeal from the Board's decision. The Supreme Court reversed, holding that in the absence of a final, appealable order by the Board on Lane's request for a hearing, he did not have an adequate remedy by way of administrative appeal to raise his claims. Remanded.

http://j.st/GJd