124 results for 'filedAt:"2023-10-06"'.
J. Browning denies the warden's motion for summary judgment based on qualified immunity, ruling the female inmate's allegations regarding being sexually assaulted on multiple occasions by a prison guard who was later promoted by the warden, despite knowledge of the assaults and the prison's zero tolerance policy on sexual assault, create a plausible Eighth Amendment claim. The warden's failure to reassign the guard or take any other investigatory measures after the inmate reported the assaults creates an issue of fact as to whether his actions proximately caused her injury.
Court: USDC New Mexico, Judge: Browning, Filed On: October 6, 2023, Case #: 1:19cv751, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Evidence, Immunity
J. Hoyle finds the trial court properly convicted and sentenced defendant for aggravated kidnapping and assault causing severe bodily injury. Defendant filed a motion alleging entitlement to a new trial because the “Arresting/Investigating Department” possessed additional Brady evidence that was not disclosed, and because he had a “meritorious defense as to the range of punishment.” A guiding case and applicable threshold test support the 20-year sentence. Defendant has established no grounds for relief and is not entitled to a hearing on his motion for new trial. There is no abuse of discretion. Affirmed.
Court: Texas Courts of Appeals, Judge: Hoyle, Filed On: October 6, 2023, Case #: 12-23-00107-CR, Categories: Assault, Kidnapping, Due Process
J. Clement finds the Administrative Law Judge properly upheld OSHA’s citing of the owner of a chicken rendering plant where two people were killed while unclogging a pressurized steam machine used to break down a digestible “poultry meal” used in pet food. A flange burst open while the workers attempted to release pressure buildup, spewing steam and hot material over the workers. The record shows that the owner failed to clearly and specifically outline rules regarding the control and release of hazardous energy. Substantial evidence supports the judge’s conclusion. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: October 6, 2023, Case #: 22-60466, Categories: Employment, Agency, Wrongful Death
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J. Hixson finds the lower court properly convicted defendant of two counts of violation of the Child Protection Act, four counts of rape of a child and two counts of aggravated sexual battery for acts against his wife’s grandchildren. Despite his claims, defendant did not establish that his representation by trial counsel was deficient, and is not entitled to relief. Evidence is sufficient to support his convictions and effective 50-year sentence to be served in the Department of Correction. Affirmed.
Court: Tennessee Court of Criminal Appeals, Judge: Hixson, Filed On: October 6, 2023, Case #: M2022-01347-CCA-R3-PC, Categories: Evidence, Ineffective Assistance, Sex Offender
J. Baker rules in favor of the time charterer and the ship management company in a maritime action brought by the longshoreman arising from injuries he suffered in a fall when a gangway railing on a shipping vessel collapsed. There is no contractual provision under the agreements that would attribute liability to either the time charterer or the ship management company. The companies' motion for partial summary judgment is also granted as to the longshoreman's claim for loss of future earnings. However, the companies' renewed joint motion for summary judgment is denied. The longshoreman provided sufficient evidence to raise a genuine issues of fact as to whether the vessel negligently caused the gangway's handrail to collapse, whether the gangway was under active control of the vessel and whether the vessel had constructive knowledge of the hazard that led to the longshoreman's injuries.
Court: USDC Southern District of Georgia, Judge: Baker, Filed On: October 6, 2023, Case #: 4:20cv91, NOS: Marine - Contract, Categories: Maritime, Negligence
Per curiam, the appellate division finds that the town properly condemned a mall and surrounding parking area because the record does not indicate the town was aware that notice mailed to the company had not been received prior to the hearing, and the town demonstrated that the mall was in an area of "economic underdevelopment and stagnation." Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: October 6, 2023, Case #: OP 23-00478, Categories: Civil Procedure, Property
J. Goldman finds the trial court properly convicted defendant by guilty plea for assault on a police officer with a firearm after committing multiple residential burglaries. Defendant shot at a responding officer after a foot chase before he was apprehended and charged with attempted murder, as well as a number of charges stemming from the burglaries. The assault charge was added, and the others were dismissed pursuant to the plea agreement. A 15% administrative fee assessed on victim restitution amounts was invalid because the statute licensing it was repealed before sentencing. Affirmed in part. Reversed in part.
Court: California Courts Of Appeal, Judge: Goldman, Filed On: October 6, 2023, Case #: A164989, Categories: Firearms, Assault, Restitution
Per curiam, the court of appeals finds that the trial court improperly dismissed with prejudice in favor of the appellees a second amended complaint for a “pay-on-death” beneficiary. The court granted this motion based on another similar case by reading the holding to broadly. The beneficiary had made no claim for tortious interference with the inheritance and the alleged bank accounts were owned by her outside the estate. Reversed.
Court: Florida Courts Of Appeal, Judge: Per curiam, Filed On: October 6, 2023, Case #: 6D23-1351, Categories: Tort, Trusts, Interference With Contract
J. Sands denies the truck driver's and motor carrier's motion to exclude testimony from an accident reconstructionist in a negligence action brought by a couple arising from injuries the husband suffered in a fall when the truck driver hit a utility boom truck. The reconstructionist is qualified to testify based on his participation in more than 1,000 accident reconstructions, status as president of a company which reconstructs car crashes and other factors. The reconstructionist is not attempting to provide opinions on human factors like whether the truck driver should have recognized the utility truck.
Court: USDC Middle District of Georgia, Judge: Sands, Filed On: October 6, 2023, Case #: 7:20cv253, NOS: Motor Vehicle - Torts - Personal Injury, Categories: Negligence, Experts
J. White finds the trial court improperly granted a motion to reduce lien in favor of a minor’s guardian ad litem and denied the health administrator’s motion to dismiss, for lack of subject matter jurisdiction, this medical malpractice lawsuit. It is remanded to vacate the order and enter an order dismissing the minor’s motion to reduce lien for lack of subject matter jurisdiction. Reversed.
Court: Florida Courts Of Appeal, Judge: White, Filed On: October 6, 2023, Case #: 6D23-1391, Categories: Medical Malpractice
J. Soto finds a lower court erred in denying a motion to compel arbitration brought by a health care center after it was sued by a former employee in a slip and fall lawsuit. The employee argued an arbitration agreement she’d signed as part of her onboarding was not valid because it not explicitly state the parties to the arbitration agreement, but while the premises parties have indeed “failed to meet this burden,” they are “nevertheless entitled to compel arbitration,” including based on Texas Supreme Court precedent. Reversed.
Court: Texas Courts of Appeals, Judge: Soto, Filed On: October 6, 2023, Case #: 08-23-00033-CV, Categories: Arbitration, Tort, Contract
J. Jordan dismisses the company's trademark infringement suit against the creator of the "Baby Shark" video, which has billions of views on YouTube. The court lacks jurisdiction over the video creator, which is based in South Korea and "has no business presence in Texas whatsoever."
Court: USDC Eastern District of Texas , Judge: Jordan, Filed On: October 6, 2023, Case #: 4:22cv368, NOS: Trademark - Property Rights, Categories: Trademark, Unfair Competition, Jurisdiction
J. Gleason grants a petition for a stipulated protective order in an insurance dispute, outlining the scope, access to, designation of and handling of confidential material in discovery.
Court: USDC Alaska, Judge: Gleason, Filed On: October 6, 2023, Case #: 3:23cv146, NOS: Insurance - Contract, Categories: Insurance, Discovery
J. Gustafson finds that defendant — who was charged with deliberate homicide before he took a guilty plea without acknowledging his guilt — did not demonstrate a need for this court to engage in plain error review of his plea’s sufficiency. Additionally, his claim for ineffective assistance of counsel is not based in the record, so his direct appeal is inappropriate. Affirmed.
Court: Montana Supreme Court, Judge: Gustafson, Filed On: October 6, 2023, Case #: DA 21-0465, Categories: Murder, Sentencing, Plea
J. Dale denies an employer's motion to reconsider in an employment dispute. An employee alleged that his coaching contract was terminated without cause. A jury found in favor of the employee and awarded him $660,000. The employer seeks a determination that the award does not count as wages under the Idaho Wage Claim Act, preventing the employee from recovering trebled damages. The court did not err in determining that the damages provision in the agreement fell under the Idaho Wage Claim Act, therefore the trebling provision applies to the jury's award.
Court: USDC Idaho, Judge: Dale, Filed On: October 6, 2023, Case #: 1:20cv380, NOS: Other Contract - Contract, Categories: Employment, Contract
J. Greene finds that defendant was properly convicted and sentenced for the aggravated rape of his girlfriend's daughter. Defendant's challenges regarding two prospective jurors were correctly denied since the evidence showed "their willingness and ability to be fair and unbiased and to render an impartial verdict." Affirmed.
Court: Louisiana Court Of Appeal, Judge: Greene, Filed On: October 6, 2023, Case #: 2022KA0328, Categories: Evidence, Jury
J. Arnold finds a lower court properly applied a two- level enhancement to a defendant's sentence after he pleaded guilty to possessing meth, drug paraphernalia, and a BB gun. The defendant argued that the BB gun is not a "dangerous weapon." However, the BB gun appeared to be a handgun. Affirmed.
Court: 8th Circuit, Judge: Arnold, Filed On: October 6, 2023, Case #: 22-3425, Categories: Sentencing, Weapons
J. Self denies the company's and insurance company's motions for summary judgment in a breach of contract action brought by the insurer arising from a coverage dispute. The insurer seeks indemnification from the insurance company for a $5 million settlement reached in an underlying wrongful death action. The insurance company is not a party to the master agreement and therefore lacks standing to challenge its validity. The terms of the agreement require the company to indemnify the mill operator and a jury must decide the degree of fault between the company and the mill operator with regard to the company's employee's death from asphyxiation. The insurer's motion for summary judgment is partially granted as to the claims against the insurance company.
Court: USDC Middle District of Georgia, Judge: Self, Filed On: October 6, 2023, Case #: 5:20cv279, NOS: Insurance - Contract, Categories: Insurance, Indemnification, Contract
J. Pryor finds that the district court properly ruled partially in favor of the customer in an action against the restaurant's insurer for breach of contract and equitable reformation of a policy after the restaurant settled the customer's lawsuit for injuries sustained when hot soup spilled on her. The customer correctly sought reformation of the policy, which insured a fictional entity rather than the owner of the business, because it was the one in force when the injury occurred. The evidence shows that the restaurant owners intended to insure the owner of the restaurant. Reformation of the policy does not prejudice the insurer. Affirmed.
Court: 11th Circuit, Judge: Pryor, Filed On: October 6, 2023, Case #: 22-13738, Categories: Insurance, Contract
J. Tucker finds the trial court properly denied defendant's motion to sever the charges of violating a protective order for separate trials. The evidence for each crime was distinct and not likely to confuse the jury because each count involved a separate instance of defendant contacting his ex-wife's employer via email. However, several of the conditions imposed by the trial court as part of defendant's sentence, including a prohibition on any communication with his ex-wife and any postings on social media, are overly broad and violate his right to self-expression. Vacated in part.
Court: Ohio Court Of Appeals, Judge: Tucker, Filed On: October 6, 2023, Case #: 2023-Ohio-3655, Categories: Sentencing, Domestic Violence
J. Motoike finds the trial court properly denied the historic resource advocacy group’s petition for mandamus challenging the city’s approval of an application to build an extension on an existing single-family dwelling listed in the city’s “Historic Resources Inventory.” The modification is exempt from the California Environmental Quality Act’s environmental review under a historical resource exemption. This exemption is based on the city’s finding the project consistent with the “Secretary of the Interior’s Standards for the Treatment of Historic Properties.” The renovation will not cause a substantial adverse change in the significance of the resource, and the “fair argument standard” does not apply where application of the exemption and exception depend on the same issue. Affirmed.
Court: California Courts Of Appeal, Judge: Motoike, Filed On: October 6, 2023, Case #: G061671, Categories: Environment, Municipal Law, Property
J. Jenkins finds that the district court should not have denied defendant's motion to exclude the admission of the third 911 call from a neighbor in his second degree murder trial because the 911 call contained inadmissible hearsay statements. In this case, the neighbor did not witness the events as they occurred and recounted to the 911 operator what was told to her by another person who "told me to call the ambulance." The neighbor told the dispatcher that she "wasn't outside" and could not tell the dispatcher what the suspect was wearing. Reversed.
Court: Louisiana Court Of Appeal, Judge: Jenkins, Filed On: October 6, 2023, Case #: 2023-K-0534, Categories: Evidence, Murder