Potential Civil Liability For Texting A Driver — “Remote Texters” Enter The Cross Hairs Of Negligence Law

In recent years there’s been a lot of talk of the dangers of texting while driving.  That’s always been focused on the person driving the vehicle.  But what about a person sending the driver texts?  Can that individual be liable for personal injuries or wrongful death if the driver crashes into another car or a motorcycle while reading the text?

This week a New Jersey appellate court answered “yes” to that question.   That’s believed to be the first time that an appeals court suggested that the sender of a text to someone driving a vehicle may be liable for negligence.   That decision may be overturned by New Jersey’s Supreme Court; regardless, it’s not binding on Iowa’s courts if the issue ever comes up here, but it’ll certainly create an interesting discussion if it does,

The New Jersey decision, if it survives further appeals, creates only a narrow window of possible “remote texter” liability.  Negligence liability may only be imposed if the individual sending the texts from another location knew they were being viewed by the recipient while driving.  The New Jersey court  determined 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.  The court also suggested that liability could imposed on a remote texter who “actively encouraged” a driver to read or respond to that person’s texts.   Another possibility for liability could be if the sender of the text has a  “special relationship” with the driver that allows the remote texter to control the driver’s conduct.

From a theoretical legal standpoint, this decision might make sense, but from a practical standpoint “remote texter” claims will be very difficult to prove.  The major problem is proving that the remote texter knew that the recipient driver would read or respond to the text while driving, as opposed to, say, after parking and turning off the vehicle.  Just because a text is sent doesn’t mean that it’ll be read the moment the recipient gets it.   The New Jersey recognized that rather easy escape route for remote texters when it stated that merely sending a text to someone known to be driving is not enough by itself to create liability against the text sender absent proof that the sender knew the recipient would read the text or somehow encouraged the recipient to read the text:   “Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.”


HALO SleepSacks Wearable Blankets Recalled Due to Choking Hazard; Sold Exclusively at Babies R Us


The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.


Petals from the floral embellishment on the blankets can detach, posing a choking hazard to infants.

Consumer Contact:

Halo Innovations toll-free at (866) 819-8118 from 8 a.m. to 5 p.m. CT Monday through Friday, e-mail at halorecall@nrmsinc.com or online at www.halosleep.com and click on the product recall link on the homepage for more information.


The recalled HALO SleepSack wearable blankets are 100% white cotton with pink-edged ruffles and a pink satin rose embellishment on the front. These sack-shaped wearable blankets have cut-outs for the baby’s arms, a zipper down the center, a sewn bottom and were sold in small and medium sizes. Only SleepSack products with GPU numbers 2701, 2781, 2886, 2887, 3007, 3035 and 3142 printed on a neck label under the primary neck label are included in the recall.


The firm has received six reports of the petals detaching from the blankets including one report of an infant found gagging on a detached petal.


Consumers should immediately stop using the wearable blankets and contact HALO Innovations for a pre-paid envelope containing instructions to remove and return the flower and order a free replacement product.   

Sold exclusively at

Babies R Us and www.babiesrus.com from December 2011 through July 2013 for about $25.


Halo Innovations, of Minnetonka, Minn.  


Jiaxing Huayan Fashion Co. Ltd, of Jiaxing Zhejiang, China

Manufactured in


Source:  http://www.cpsc.gov/en/Recalls/2013/HALO-SleepSacks-Wearable-Blankets-Recalled/


The Iowa Court Of Appeals Is Smarter Than A Jury And Other Lessons From Smith v. Iowa State

On Wednesday the Iowa Court of Appeals issued its decision in  Smith v. Iowa State and State of Iowa.  Smith is arguably the first actual statutory whistleblower case that has gone to trial in Iowa.   The case was brought under Iowa Code 70A.28.  That’s a special law that provides whistleblower protection for public employees, like an ISU employee.

Dennis Smith sued ISU and the state after he was fired.  He claimed he was fired in retaliation for blowing the whistle about mismanagement and financial issues by other ISU employees and officials.  The jury agreed with Mr. Smith and he was awarded a substantial wrongful termination verdict against ISU and the state.  They then appealed the verdict.

The Smith case is noteworthy for several reasons.  First, whistleblower claims are rare, and successful ones are even more rare.  Not all “whistling” is protected under the public employee whistleblower statute.  Rather, protection from whistleblowing only arises if “the employee reasonably believes the information evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

Second, the Iowa Court of Appeals substituted its judgment for the jury’s.  That’s also an extremely rare event.  Normally, when a jury speaks trial judges and appellate judges bend over backwards to uphold the jury’s verdict.  That’s why appeals from adverse jury verdicts fail over 90% of the time.  This is especially surprising in a wrongful termination case like Smith given that for decades Iowa’s appellate courts have been drilling into our heads that the reason for a person’s termination (i.e., “causation”) is generally a jury question.  So it seems odd that in Smith the jury rules on an issue (causation) that is generally for the jury but is then overturned by a three-judge appellate panel.  

Third, the Smith decision provides an important lesson about causation in wrongful termination cases.  Lawyers for employees in wrongful termination cases have to play a game of “connect-the-dots.”  Unless the actions complained of (the retaliation) are connected to the protected activity (whistleblowing in the Smith case), the employee loses.  It’s not enough that bad things are happening to an employee at the same time the employee is engaging in protected conduct.  There needs to be proof of cause-and-effect.  In Smith the Iowa Court of Appeals determined that he offered insufficient proof that his firing and the other retaliatory action against him was connected to his whistleblowing, so he lost.  

The Importance Of Your Treating Doctor In A Personal Injury Case

A common type of witness in personal injury cases is the injured person’s treating doctor.  For example, say you break your shoulder in a motorcycle accident or car crash.  You have surgeries, physical therapy, hardware implanted, ligaments cut and moved, and possibly permanent pain or loss of movement in the shoulder.  You want and deserve fair compensation for all that.  Your treating doctor can help you do that, and is sometimes a necessary component of your personal injury case.

In many personal injury cases there’ll be contested issues regarding what caused your injuries, how bad they were, whether certain types of treatment were necessary, and whether you’ll have any future or permanent problems.  It’s very difficult, sometimes impossible, to make those arguments without testimony from your treating doctor.  Even if the judge does allow you to present some or all of your injury case without evidence from a medical professional, why would you want to?  How and why will a jury give you anything for these issues unless a medical expert explains them to the jury?

There’s not much you can do to change your treating doctor’s opinions.  Some doctors are predisposed to conservative opinions and are unlikely to set off fireworks in the courtroom for you.  But you can at least make sure that your treating doctor has good medical facts to report to the jury and perhaps base a helpful opinion on.  Here are some methods to increase the possibility of receiving good testimony from your doctor:

1.  Be honest, truthfully and accurately describe your physical pain and issues, and don’t leave anything out.

2.  Get along with your doctor.

3.  Do what the doctor tells you to do.

4.  Don’t miss scheduled medical appointments, ever, for any reason.  If you must miss an appointment, call ahead and cancel, then reschedule for the earliest possible date.

5.  Don’t delay seeing a doctor for your injuries.  The longer you wait, the more difficult it is to prove that your injuries are connected to the accident.

You can also hire an “independent medical expert” to serve as your medical evidence, but juries tend to believe your treating doctor over the word of a hired gun expert witness.  The treating doctors have worked with you the whole time, the independent medical expert has not.  Juries often give treating doctors more credibility, so it’s important that you work well with your treating doctors so that they’ll be in the best position to give useful trial testimony.

Char-Broil Recalls Patio Bistro Gas Grills Due to Burn Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

Char-Broil® Gas Patio Bistro® Grills


The electronic ignition on the grill can ignite unexpectedly, posing a burn hazard.

Consumer Contact:

Char-Broil toll free at (866) 671-7988 from 8 a.m. to 6 p.m. ET Monday through Friday and 10 a.m. to 3 p.m. ET Saturday, or online at www.charbroil.com and click on Recalls at the bottom of the page.


The recall involves two Char-Broil® Gas Patio Bistro® Grills: the model 240 Full Size grill and the model 180 Table Top grill.  Both are single-burner propane gas grills equipped with a battery-operated integrated electronic ignition and intended only for outdoor use. The grills have round black bodies with silver/aluminum trim.  The words “Char-Broil®” and “Patio Bistro®” are printed near the thermometer on the grill’s lid and near the control knob on the front of the grill.  The grills have a rating label on the bottom support on the back of the unit that states “Char-Broil, LLC,” the model number and other information.  The grills were sold with the following model numbers:

Model Name Model Number(s)
Char-Broil® Gas Patio Bistro® 240 Full Size 11601558, 11601558-A1,
12601558 and 12601558-A2
Char-Broil® Gas Patio Bistro® 180 Table Top 12601713

Char-Broil has received 26 reports of the burner flame going out and then unexpectedly reigniting when the consumer turned the control knob to “OFF.”  The 26 reports include four reports of burns, including one with burns to the nose, chin and hair, and seven other reports of “burned” or “singed” hair.


Consumers should immediately stop using the grills and contact Char-Broil for instructions on how to order and install a free repair kit.

Source:  http://www.cpsc.gov/en/Recalls/2013/Char-Broil-Recalls-Patio-Bistro-Gas-Grills/

Compensability Of Training Time Under The Fair Labor Standards Act

A common overtime pay issue is whether time spent training counts as “working time” that must be compensated at at least 1.5 times the employee’s regular pay rate.  Like many “working time” questions under federal overtime law, the answer is “maybe” and depends upon the facts and circumstances of each situation.  This is a well-settled area of federal overtime law.

Training time is generally compensable.   Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee’s regular working hours; (b) attendance is in fact voluntary; (c) the course, lecture, or meeting is not directly related to the employee’s job; and (d) the employee does not perform any productive work during such attendance.

Federal law assumes that an employee’s time spent in attending lectures, meetings, or training programs must be counted as time worked unless each of those four criteria are met.  Criteria (a) and (d) are self-explanatory and don’t usually form the basis for a working time dispute.  But criteria (b) and (c) are often a subject of dispute between employers and employees.  So how does federal law interpret “voluntary attendance” and “training directly related to an employee’s job?”

Attendance at training is not voluntary if it is required by the employer.  It is not voluntary if the employee is given to understand or led to believe that the employee’s present working conditions or the continuance of employment would be adversely affected by nonattendance.  But a plaintiff seeking to show that it is “required” by his employer to attend training need not show that the employer has a rule terminating those who do not attend training.

Training is directly related to an employee’s job if it is designed to make the employee handle the job more effectively as distinguished from training the employee for another job, or for a new or additional skill.   When a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in the present job, the training is not considered directly related to the employee’s job even though the course incidentally improves the employee’s skill in doing the regular work.  Training is not directly related to an employee’s job if it develops skills that are either beyond the requirements of the employee’s specific job or so basic and transferrable that the skills would be useful to the employee in any job and beyond.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Legal Liability For Abuse Of Process

Invariably, when I represent someone or a company that gets sued, early questions from my client include “how can they just sue me?”, “don’t they have to have proof?,” and “can I get my attorney fees after we win the defense?”  Let me discuss the attorney fee question.  It’s extremely rare, absent a contract or statute that provides for attorney fees, for a successful party to recover attorney fees from the losing party.  Usually, upon successfully defending a case the only way you can recover your attorney fees is if the lawsuit against you had absolutely no basis in law or fact or was brought for an improper purpose.  One such claim for attorney fees is called “abuse of process.”

Abuse of process is the use of legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it was not designed.  The improper purpose is ordinarily an attempt to secure from another some collateral advantage not properly includable in the process itself and is a form of extortion in which a lawfully used process is perverted to an unlawful use.  An abuse of process can occur even though there is probable cause to bring the action and the original action terminates in favor of the plaintiff.  At the same time, the mere failure of a legal claim, without more, furnish proof of some attempt to gain a collateral advantage by pursuit of the claim.  Any type of legal claim, including business or contract law cases, motor vehicle accidents, motorcycle crashes, dog bite cases, private nuisance actions, employment law matters, construction defect claims, personal injury or wrongful death claims, or products liability claims, can be improper and thus expose the party bringing the action to a later abuse of process claim.

To prove a claim of abuse of process, a plaintiff must show (1) use of the legal process, (2) in an improper or unauthorized manner, and (3) that damages were sustained as a result of the abuse.   With respect to the second element of the cause of action for abuse of process, a plaintiff must prove that the defendant used the legal process primarily for an impermissible or illegal motive.  Id. 

A very restrictive view is taken of the “impermissible or illegal motive element.”  Proof of an improper motive by the person filing the lawsuit for even a malicious purpose does not satisfy this element.  This is so to protect the right to ready access to the courts.  An ulterior motive does not alone satisfy the requirement for an action in abuse of process; a definite act or threat outside the process is required.  Consequently, this is a difficult element to establish.

All of this is true as long as the act that is alleged to be improper is in fact proper in the regular prosecution of the proceeding.  A defendant is not liable if it has done no more than carry the process to its authorized conclusion, even with bad intentions.  There is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.  For abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended.  The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.

Any act that is proper in the regular prosecution of a proceeding cannot be relied upon as a basis for an abuse of process claim.  Rather, to show abuse of process, a plaintiff must show defendants took some specific action in connection with their use of process which can be characterized as unlawful or irregular.  In other words, plaintiff must show defendants committed some act in the use of process that was not proper in the regular prosecution of the proceeding.  Proof of an improper motive by the person filing a lawsuit, even a malicious purpose, does not satisfy that element.

Abuse of process will not lie for a civil action that inconveniences a defendant, or for one filed in expectation of settlement (a “nuisance” suit).  Wilson, 464 N.W.2d at 267.  Settlement is included in the goals of proper process, even if the suit is frivolous.  Id.  Additionally, there is no abuse of process when the action is filed to intimidate and embarrass a defendant knowing there is no entitlement to recover the full amount of damages sought.  Id.