The Iowa Court Of Appeals Reminds You To Prove Causation

There’s a question that sometimes seems to be overlooked in civil cases — How did the defendant’s supposed wrongdoing harm you?  You have to prove not only that the defendant violated some aspect of the law, but also that the defendant’s violation caused you injuries and damages.  That’s generally referred to as “causation.”  The standards for causation vary from one type of claim to another, but the basic principle is always that you must prove you were harmed by the defendant’s conduct or you have no claim.  The principle applies to a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim, or insurance law claim.

This is not an issue to be taken lightly.  Money damages do not automatically flow from a determination that a defendant violated the law.  If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion.  Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer.  Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits.  The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error.  But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation.  So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm.  Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

The Impact Of Your Social Media Use On Your Legal Rights

Your social media posts are not private.  Nor is there any law that prevents a lawsuit opponent from using against you something you posted on Facebook, Twitter, Instagram, or any of countless internet websites and blogs.  If you’re involved in a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim or insurance law claim, that information could compromise your case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation.  They want to know if you’ve posted anything anywhere online that contradicts any part of your claim.  They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings.  To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc.  So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door.  As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available.  So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel.  Chances are good counsel will eventually get that information somehow.  And they’re guaranteed to try to use it.

The “Fall” Season — Liability For Fallen Leaves That Create A Dangerous Property Condition

Ah, Fall.  In a few weeks it’ll be here.  Cool dry weather and radiant leaves.  Leaves that fall to the ground and temporarily create a colorful sea to wade through.  Leaves that’ll pile up and cover uneven sidewalks.  Leaves that’ll quickly becomes brown and turn slippery when it rains, making stairs and walkways treacherous.

Everyone knows that you can be sued for injuries or wrongful death caused by ice or snow on your property, even when the ice or snow has occurred naturally.  So what stops someone from suing after they slip or trip on your leaf-covered sidewalk or stairs?  The answer?  Absolutely nothing.

You might laugh at first, but think about it for a moment.  Leaves, like any other condition on your property (natural or unnatural), can constitute a dangerous condition that exposes you to liability if someone gets hurt.  In the eyes of the law, there’s no distinction between leaves and snow, ice, a snarling dog, a rotted stairway handrail, a rotting plank on a deck, or water spraying from a hose.  People who have been injured by such conditions have successfully sued, and there’s no reason to think that Iowa’s courts would treat leaves any differently.  And leaves, at least on sidewalks and other paved public rights-of-way, probably fall within most municipalities’ laws for clearing such areas, same as snow accumulations.

Granted, “leaf” claims are rare and usually fail.  Just like with snow and ice cases, the conclusion of many judges and juries is that leaves are an obvious danger that people confront at their own risk.  If the risk cannot be avoided (say the leaf-covered stairs are the only way out of the building), courts often require people to proceed with care for their own safety.

But people in Iowa occasionally do successfully sue for injuries incurred after tripping and falling on a sidewalk.  For example, a few years ago the Iowa Court of Appeals upheld a large jury verdict for a woman who tripped over uneven sidewalk and was seriously injured in the resulting fall.  The adjoining property owner was blamed for not leveling the sidewalk or marking the raised area.  The key point is that the concrete was bare and the raised area was an inch or so higher than portion the woman had just crossed.  In other words, it was plain as day that the sidewalk had a significant raised area.  Can you imagine how much easier it would’ve been to win that case had the sidewalk been covered in leaves, thus hiding the raised area?

Another area to be careful about is unlit or poorly lit leaf-covered stairs, especially if the leaves are wet and slippery.  Wet leaves can be as slippery as ice.  It will be harder to defend the case if someone slips on wet leaves that can’t readily be seen.

In summary, be careful to keep your sidewalk, stairs, and walkways clear of leaves.  And if you happen to be hurt because of a condition caused by fallen leaves, please call me and I’ll be happy to see if I can help out.

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.

 

Wind Turbines — Good For The Environment, Bad For Your Health?

Wind turbines, often grouped into wind farms, are becoming more common.  From a distance, wind turbines don’t seem like much of a big deal as they quietly spin away.  But if you live near one?  Completely different story.  People who live near wind turbines have various complaints about the turbines, including light from turbines (both artificial and sunlight reflecting off of the blades), a strobe or flicker affect as light from the rising or setting sun passes through the blades, noise (described in various ways, such as a constant hum, a rumble, or a repeated “whooshing” sound caused by the spinning blades), and vibrations from the massive turbines.

People who live near wind turbines report physical harm and adverse health effects, including the inability to sleep and repeated awakening during sleep, headaches, dizziness, stress and tension, extreme fatigue, diminished ability to concentrate, nausea, and other physiological cognitive effects.  Some health professionals attribute the adverse health effects to low frequency and sub-audible infrasound and/or impulse noise created by and emitted from wind turbines.  One such doctor is Nina Pierpont, who has coined the phrase “wind turbine syndrome” to describe the group of symptoms commonly seen with people who live near wind turbines.

These issues create the possibility of private nuisance or personal injury lawsuits regarding wind turbines.  Those claims allow people to seek money damages as well as injunctive relief.  To date, there haven’t been that many lawsuits  by neighbors of wind turbines, but that number is expected to grow.  The results so far have been a mixed bag for neighbors, with some successes and some failures.

For additional information, please see my earlier posts about noise nuisances and light nuisances.  Please feel free to give me a call if you’d like to discuss a possible claim involving nuisance or personal injuries caused by a wind turbine.

Iowa Supreme Court Rules That You Can Get Away With Falsifying Evidence If You Make It Look Like An Innocent Mistake

Last week, the Iowa Supreme Court decided Loehr v. Mettille, in which the court was confronted with a falsification of evidence issue.

Although Loehr was a construction defect and debt collection practices case. its lessons about altering evidence also apply to a personal injury or wrongful death suit, products liability claim, motor vehicle accident claim, dog bite claim, employment or labor law claim, business practices or contract law claim, nuisance law claim, or insurance law claim.  One of the questions raised in front of the jury was the extent to which the parties had spoken about the particulars of their arrangement.  The defendant’s telephone records were offered as evidence during his jury testimony regarding his discussions with the plaintiffs.

Before the case was submitted to the jury, the plaintiff’s counsel noticed that the telephone record was actually several pages pulled from different records and appeared to be a fabrication.  The plaintiff’s attorney pointed that out during his closing argument, but the jury returned a verdict for the defendant on the plaintiffs’ claims.

The plaintiffs requested a new trial based on the defendant’s submission of fake evidence in front of the jury.  The trial court held a hearing during which the defendant, his officer manager, and his trial attorney testified about the fabricated telephone records.  The defendant conceded that his “telephone records” were not real.  He maintained though that the fabricated evidence was an innocent mistake and not a deliberate fabrication.  The trial court disagreed and ordered a new trial because it concluded that the defendant had intentionally tried to mislead the jury.

On appeal the Iowa Supreme Court reversed the trial court.  It concluded that the fake evidence was the result of carelessness, not dishonesty.  The court also determined that, even if the defendant had intentionally fabricated evidence, the plaintiffs suffered no prejudice and the presentation of their case was not harmed as a result.

I don’t agree with the Iowa Supreme Court on this one.  Sure, it was a close call on whether this evidence was intentionally fabricated, and the trial court could have gone either way in granting a new trial.  But the Iowa Supreme Court’s decision to overturn the trial court’s ruling seems to contradict two general principles of appellate law.  One is that trial courts’ decisions on those “close calls” should rarely be reversed on appeal and only if the trial court really messed up.  This trial judge’s decision was not so far off-base that reversal was justified.

Another rule is that the trial court is in the best position to view the trial and the witnesses and judge their credibility, unlike the appellate judges who review nothing but a paper transcript and the exhibits.  Therefore trial decisions about witness credibility and the impact of evidence are usually left alone on appeal.  The trial court in Loehr obviously did not find the defendant’s testimony about the false telephone records credible and must have believed that the fake evidence prejudiced the plaintiffs’ case.  The Iowa Supreme Court should have deferred to the trial court’s better vantage point in those regards and left the new trial decision in place.

Recovery Of Attorney Fees And Litigation Expenses

Some of the clients that I defend in court ask whether, if we’re successful, they can recover attorney fees and expenses.  The answer is usually not.  The parties to a personal injury or wrongful death claim, motor vehicle accident claim, dog bite claim, defective product claim, construction defect claim, nuisance claim, or insurance law claim generally are responsible for their own attorney fees and expenses.

The general rule is that parties to a lawsuit are responsible for their own fees and expenses.  One exception to that rule is when there’s a contract between the parties that states that the loser has to cover attorney fees and expenses if litigation occurs between the parties.  Those contracts are rare though.  Without one, it’s extremely difficult to recover attorney fees and expenses.

If a lawsuit is so lacking in facts or law to support it, you may be able to convince the judge to “sanction” the parties and lawyers who filed the suit.  Sanctions can include an order that the opposing parties or their lawyers, or both, have to reimburse you for the attorney fees and expenses that you incurred defending the frivolous action.  Judges don’t often sanction parties because there’s usually enough legal or factual support to justify the lawsuit that sanctions are deemed inappropriate.  The mere fact that you win the case does not by itself mean that the suit was frivolous.

There are also two legal claims available that you can bring against the opposing parties and their lawyers: malicious prosecution and abuse of process.  Again though, I have to state that these claims almost always fail because they’re very difficult to prove.

For malicious prosecution you have to prove that  you were the target of a previous lawsuit filed by the opposing party, that you won that lawsuit, that the lawsuit had no factual or legal merit, and that the opposing party acted maliciously in filing the lawsuit.  Abuse of process is slightly different and, as the name suggests, focuses on the use of the courts for an improper or unauthorized purpose with an impermissible or illegal motive.

If you have been sued under a statute, that law may require the plaintiff to cover attorney fees and expenses if you win.  An example of such a statute is Iowa’s Landlord and Tenant Act.

I can help you with any business or contract matters that may arise in which you believe that you were the target of a wrongful suit and wish to try to recover your attorneys and expenses incurred in defending that suit.  Please jurt give me a call.

COLLECTING JUDGMENTS FROM DEFENDANTS

The June 25, 2010 Des Moines Register reported that progress has been made in collection of the 5.68 million dollar civil court judgment that was entered against Rodney Heemstra for the wrongful death of Tom Lyons. I thought that this would be a good time to discuss the potential problems associated with collecting court judgments from individual defendants who have no insurance to cover the loss.  This problem can exist in any type if civil lawsuit, including claims regarding business practices and contract law, nuisance law, dog bite claims, motor vehicle accident claims, motorcycle crashes, construction defect claims, or defective product claims.

Judgment collection is generally not an issue for insured defendants. If the defendant has insurance against the loss, any judgment that you get will be paid by the insurance up to the policy limits. And if it is a car crash case, your own car insurance company may also have payment responsibility if the other driver is not insured (uninsured) or lacks sufficient insurance coverage (underinsured). Of course, if you sue a big corporation (say, for example, Microsoft or Toyota), you would hope that, insurance coverage or not, the corporation would have enough assets and money to cover the judgment.

But what about defendants that have no insurance and lack the cash, property, or assets to pay your court judgment? As has been seen from the Heemstra case, collecting on that judgment becomes much more time-consuming and doubtful. Assuming that your defendant does not just cut you a check or hand you a suitcase full of cash, you will find yourself in the same position as the Lyon estate, going through one court hearing after another trying to collect from the defendant. You will have to track down the defendant and all of the defendant’s property (usually at your own expense). You will have to wait in line behind priority creditors like the federal, state, or county government, any mortgage holders, . As demonstrated by Rodney Heemstra, you can also expect that the defendant will not cooperate in your efforts to take the defendant’s money and property.

The moral of the story is that, in cases involving a defendant that is neither insured nor wealthy, consideration must be given to the possibility that collecting on any judgment, or even part of the judgment, may be time-consuming, expensive, difficult, or impossible, or a combination of all four. And even wealthy defendants may not necessarily just stand by while you take everything that they own.

An experienced personal injury/wrongful death attorney will be able to take these issues into account when advising you regarding your case.

What’s That Smell? — Nuisance Law Part III

In my previous posts I talked about the application of private nuisance law principles to noisy or loud businesses, factories, and warehouses in Des Moines, West Des Moines, Clive, Urbandale, Waukee, and the surrounding areas and the light and glare that they can also cause.   Nuisance law also protects you from smells, odors, or fumes from such operations near your property or home.

Please contact Erbe Law Firm for a free in-person consultation with an attorney if you are experiencing a similar situation and would like to discuss the possibility of a private nuisance claim.

Get That Light Out Of My Eyes — Nuisance Law Part II

In my last post I talked about the application of private nuisance law principles to noisy or loud businesses, factories, and warehouses in Des Moines, West Des Moines, Clive, Urbandale, Waukee, and the surrounding areas.  Noise and vibrations are common issues if you live near such an operation.  Those businesses can also cause light and glare that shines onto your property and house.  At night, that can make it difficult to sleep, even with the shades or blinds drawn.  Nuisance law also protects you from intrusions of light or glare onto your property.

Please contact Erbe Law Firm for a free in-person consultation with an attorney if you are experiencing a similar situation and would like to discuss the possibility of a private nuisance claim.