Posted on by Stephen Tuck

What cheerleaders say on Twitter

Social media has become a pit for the unwary.  Pretty well every comment or ‘like’ you hand out has the potential to come back and bite you, either in your career or in the form of a headline.  Or in the case of a cheerleader, in a captaincy.

San Benito High School in Texas seems to have a strong and successful cheer team.  In early 2017 a young lady identified as “ML” was appointed as head varsity cheerleader.  A few weeks later, she was called to a meeting with the team coaches where she was stripped of her post and dropped from the team.  The coaches had found her Twitter feed, which they considered to have been “inappropriate”.  In particular, they were alarmed that she had liked posts created by others saying –

  • “Imma show my mom all the snaps2 from girls partying for spring break so she can appreciate her lame ass daughter some more,”
  • a tweet about braiding hair containing the acronym “lmao,”
  • a tweet containing an image of a text-message conversation between a mother and a daughter, in which the word “fuck” is used twice
  • “I love kissing lmao,”
  • “i [sic] don’t fuck with people who lowkey try to compete with/ out do me,”
  • “I fucking love texas [sic] man, it’s so beautiful and just overall great! Why would anyone want to leave Texas[?],”
  • “I love her [third-party Twitter user] I FUCKING LOVE YOU SO MUCH AND YOU DONT [sic] EVEN KNOW IT LIKE BITCH I HOPE YOU DO GREAT SHIT IN LIFE I BELIEVE IN YOU,”
  • a tweet from a Twitter account entitled “Horny Facts™,” which states, “bitch don’t touch my . . .”4

In addition, she had retweeted a post from “Bitch Code” and replied in the affirmative to the question “Did pope split you in half??”

The plaintiff, by her mother, brought proceedings alleging a violation of her free speech rights.  Statute 42 USC §1983 relevantly states that –

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

The claim was dismissed at first instance on the grounds that the defendants were entitled to a qualified immunity.  The plaintiff appealed to the 5th US Circuit Court of Appeals.

San Benito HS
Image from here

The Court noted that a defendant will be entitled to qualified immunity where their action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.  Immunity will be made out where there has been insufficient case law to warn a defendant that their acts violate the Bill of Rights.

The Court then proceeded to review the available case law on the free-speech rights of school pupils.  It concluded that at the time of ML’s dismissal, the case law on out-of-school speech had not established clear boundaries.  The Court took the opportunity to sum up the available case law in the hope of offering guidance to school administrators –

First, nothing in our precedent allows a school to discipline nonthreatening off-campus speech simply because an administrator considers it “offensive, harassing, or disruptive.” …. Second, it is “indisputable” that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be “diminished” if the speech is “composed by a student on-campus, or purposefully brought onto a school campus.” …. And finally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials. ….  Because a school’s authority to discipline student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger schoolbased discipline.

The court declined to say whether the case at hand actually had breached these principles.  It concluded that “there was no clearly-established law that placed M.L.’s rights beyond debate at the time of” her dismissal.  As such, the claim of immunity was made out.  The appeal was dismissed.

Longoria v San Benito Independent Consolidated School District (US Ct of App. 5th Cir., King, Higginson and Duncan JJ, 4 November 2019, unreported)

Posted on by Stephen Tuck

No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

On 12 December 2008 Apple Inc. sought a patent over a smartphone lockout mechanism.  Despite having such a patent, it did not implement it in the iPhone 5.  On 30 April 2014 Ashley Kubiak was driving in Texas when her iPhone 5 received a text message.  She looked down to read it.  The distraction caused her to collide with another vehicle, killing two people and catastrophically injuring a third.  Kubiak was convicted of criminally negligent homicide and sentenced to 180 days imprisonment with five years probation: State v Kubiak, Tyler Morning Paper, 12 August 2014 (4th Texas Jud’l Ct, 2014).

Grim Reaper phone
Image from here

The accident victims and their representatives sued Apple, alleging that it had negligently failed to design the lockout device into the iPhone.  Specifically they argued that receiving a text message causes “an unconscious and automatic, neurobiological compulsion to engage in texting behavior.”  Apple successfully applied to dismiss the claim: Meador v Apple Inc (US Dist. Ct., Schroeder J, 17 August 2017, unreported).  The plaintiffs appealed.

The US 5th Circuit Court of Appeals dismissed the appeal.  The Court noted that it was to apply the law of the forum state as well as that court be determined, without adopting any novel approaches to the law.  In this case the key issue was whether the lack of a lockout device had caused the accident.  That is, would common, practical experience consider it to be a substantial factor.  The Court noted that

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge … no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As a result, for the Court to find that Texas law would view a smartphone’s effect on a user as a substantial factor in that person’s wrong would be an impermissible innovation of state law.

Meador v Apple Inc., 911 F.3d 260 (5th Cir. 2018)

Posted on by Stephen Tuck

Who owns the mosquitoes?

The Body Shop used to sell bags saying something like “if you think you’re too small to be noticed, go to bed when there’s a mosquito in the room”.  Apparently they were right.

William Nami was a railway worker whose job was to work in a team operating a ‘tamper’ (a machine for repairing railway lines). Sometimes he worked inside the machine’s poorly-sealed cabin, and sometimes outside. Unfortunately, the area in which he worked was mosquito-infested town of Sweeny in Brazoria County, Texas.  The railway’s right of way was narrow and weed-strewn and sometimes had pools of water.  In late September 2008 Nami was diagnosed with West Nile virus and suffered significant ill effects.  He sued his employer under §51 of the the Federal Employees Liability Act:

Every common carrier by railroad  … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury … resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

He alleged that the employer had failed to provide a safe workplace.  A jury at trial found tat the employer had been negligent and awarded damages: Nami v Union Pacific Railroad Co. (267th District Court, Koetter J, 2012, unreported).  The employer’s appeal to the Court of Appeals was rejected: Union Pacific Railroad Co v Nami 499 SW 3d 452 (Tex. Ct App., 2014).

Mosquito Day
Image from here

Union Pacific appealed to the Supreme Court of Texas.  The Supreme Court noted that insects are considered to be wild animals (ferae naturae) and

… under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee. … The same rule applies to an employer’s duty to provide a safe workplace.

In this case the employer had done nothing to increase (and could have done nothing to decrease) the risk of mosquitoes to Mr Nami.  Accordingly negligence was not made out.

Union Pacific Railroad Co v Nami, 498 SW 3d 890 (Tex., 2016)

Postscript – The Supreme Court of the United States declined to hear Nami’s appeal: Nami v Union Pacific Railroad Co., 137 S.Ct. 2118 (2017).

 

Posted on by Stephen Tuck

Waddya know, Wal-Mart?

You can find everything at Wal-Mart. Except maybe a sponge.

Leoncio Garcia went to a Wal-Mart store in Houston, Texas at 6:21am on 9 June 2015.  Twenty-five minutes earlier a floor-scrubbing machine operated by a Wal-Mart employee had passed over – and briefly paused at – a point where the floor surface changed from vinyl to tiles.  It was this point where Mr Garcia slipped and fell, suffering a knee injury.  An employee of the store then put a warning cone down on the floor because she saw a liquid at the sit of the fall.

walmart
Image from here

Mr Garcia sued Wal-Mart for his injuries.  Wal-Mart responded that there was no evidence that it knew of the hazard before the accident.  It applied for summary judgment which was granted: Garcia v Wal-Mart Stores Texas LLC (US Dist. Ct SD Tex., Gilmore J, 9 June 2017, unreported).  The plaintiff appealed.

The appeal was upheld by the Fifth Circuit Court of Appeal.  The Court noted that four things must be proved in an occupiers liability claim:

  1. That the owner had actual or constructive knowledge of the hazard.
  2. That the hazard presented an unreasonable risk of harm.
  3. That the owner failed to take reasonable care to reduce or eliminate the risk.
  4. That the risk was the proximate cause of the injury.

Knowledge could be established by (inter alia) showing that the owner had placed the substance on the floor.  Garcia’s case was that there was circumstantial evidence that the fluid came from the scrubber, thereby meeting the knowledge requirement.  Because this was more plausible than Wal-Mart’s alternative explanations, it was appropriate for the factual dispute to be returned to the trial court for decision.

Garcia v Wal-Mart Stores Texas LLC (US 5th Circuit Court of Appeals, 18 June 2018)

Posted on by Stephen Tuck

The worst of ideas

A week or two ago I wrote about a case of manslaughter-by-neglect in Florida where the defendant was not imprisoned. A recent case out of Texas suggests that State will take a harsher view of failure to care for another person.

1525117864-cynthia-marie-randolph
Cynthia Randolph (Parker Co. Sheriffs Office)

On 26 May 2017 Cynthia Randolph of Fort Worth, Texas became angry with her two children (aged 1 and 2 years). They were playing in her car and refused to get out. She left them in the car to “teach them a lesson”. She returned to her house, watched televison, smoked some marijuana and napped for a few hours. It is estimated that in that time the temperature in the care reached 140F (60C). When she woke, the children were unresponsive.  They died shortly afterwards.

Randolph was charged with two counts of intentionally causing serious bodily injury to a child, punishable by up to 99 years imprisonment. The jury had the option of convicting her of (inter alia) recklessly causing serious injury. Texas Penal Code §22.04(a) states that –

A person commits an offense if he … recklessly… by act or … recklessly by omission, causes to a child…:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;  or
(3) bodily injury.

Randolph’s matter was heard in the 415th Texas District Court before Judge Quisenberry The jury opted to convict on the lesser charge, but imposed the maximum term of 20 years imprisonment in respect of each child.

State v Randolph (2018), Dallas Morning News, 1 May 2018; CBS News, 1 May 2018; Sacramento Bee, 1 May 2018; New York Post, 30 April 2018; KVUE, 30 April 2018

Posted on by Stephen Tuck

Talk to them, madam

Suing emergency services for defective performance of their functions is difficult-to-impossible in most jurisdictions.  However, this does not exclude sanctions for criminally poor performance.

911 minion
Image from here

Crenshanda Williams was employed as a call taker by the Houston Emergency Centre. For reasons which are unclear, she hung up on thousands of 911 phone calls, including calls relating to robbery and illegal street racing. According to one report she dismissed a caller saying “ain’t nobody got time for this”. She was charged with interfering with emergency telephone calls.  Texas Penal Code §42.062(a) says –

An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.

This crime is punishable by up to a year’s imprisonment or a $4,000.00 fine.

Ms Williams was convicted by a jury in the Harris County Criminal Court. Clinton J sentenced her to 10 days imprisonment and 18 months probation.

An appeal has been lodged.

State v Williams (2018), Houston Chronicle, 18 April 2018

Posted on by Stephen Tuck

State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

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(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

Posted on by Stephen Tuck

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Bell v Nichols and Inman (2014) H&FLR 2014-25

Alexias Bell v Kurt Nichols and Thomas Inman (2014) H&FLR 2014-25

Tenth Texas Court of Appeals

24 April 2014

Coram: Gray CJ, Davis and Scoggins JJ

Appearing for the Appellant: Renee E. Moeller and Susan Allison Kidwell
Appearing for the First Respondent: David Bradley and Trisha Danielle Ross (both of Walters, Balido & Crain)
Appearing for the Second Respondent: Russell Chip Pelley (of Pelley Law Office) and Joe Neal Smith  

Catchwords: Texas – college football – mascot – motorcycle – punch – civil procedure – admissions – want of prosecution

Facts: Bell (appellant) was employed by Sam Houston State University to attend a football game as a mascot*.  She was being driven to a pre-game function on the front of a four-wheel motorcycle driven by Inman (second respondent).  The second respondent allegedly ran into Nichols (first respondent), the coach of the opposing team, who punched the appellant and caused her to fall off the motorcycle.  She brought proceedings against the second respondent for negligence and against the first respondent for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.

The appellant’s lawyer withdrew during the proceedings and for a period of time she was unrepresented.  During this time the first respondent sent requests for admissions to the appellant.  Four of the proposed admissions were to the effect that the respondents neither harmed her nor were the proximate cause of harm to her, had not caused intentional harm to her, and acted reasonably and prudently.  She objected to these admissions and the respondents applied to the court to deem the requests admitted.

After an abortive hearing on 28 December 2012 the matter was refixed for consideration on 26 March 2013, by which time the appellant had secured new representation.  Her new lawyer amended her response to the request for admissions to deny those to which she had previously objected.  The trial court granted the respondents’ motion to deem the admissions sought and dismissed the proceedings for want of prosecution.  The appellant appealed.

Held: Allowing the appeal –

1.  A court at first instance may dismiss a case for what of prosecution based on a defendant’s motion.  If the dismissal is appealed, and the dismissal order does not state the grounds on which it was dismissed, the appellant must show that each of the grounds alleged in the motion to dismiss is insufficient to support the decision to dismiss.  Here, the motion to dismiss was based solely on the appellant’s failure to appear at the (non-)hearing on 28 December 2012 and was an abuse of discretion.

Nichols v Sedalco Construction Services, 228 SW.3d 341 (Tex. App. – Waco 2007), followed.

2.  Where a party objects to an admission, Rule 215 of the Texas Rules of Civil Procedure allows a court to consider whether the objection is justified.  If not, it shall order that an answer be served.  It is not able to deem a matter admitted because of an improper objection.

Judgment

The Court’s judgment is available here.

An appeal appears to have been lodged.

===========================================

* Known as “Airkat“.

Posted on by Stephen Tuck

Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Fifth District Court of Appeals of Texas

12 May 2014

Coram: Bridges, Fillmore and Lewis JJ

Appearing for the Appellant: William J. Akins and Bryan D. Pollard (both of FisherBroyles LLP)

Appearing for the Appellee: Richard Illmer and Elizabeth G. Bloch (both of Husch Blackwell LLP)

Catchwords: Texas – soccer – sports clubs – insurance – breach of contract – discrimination – duty to defend

Facts:  The United States Youth Soccer Association (respondent) was a corporation and a member of the United States Soccer Federation.  In 2009 the National Association of Competitive Soccer Clubs and some of its member clubs filed a grievance complaint with the US Soccer Federation alleging a number of breaches of Federation by-laws by (among others) the respondent.  These breaches included alleged discrimination.

At the relevant time, the respondent was insured by Arch Insurance Co (appellant).  The insurance policy included an exclusion exempting the appellant from liability for loss caused by a claim for breach of a contract or agreement.  The exclusion did not apply, however, so far as the respondent would have been liable for that loss absent the contract or agreement.  The appellant declined on the basis of the exclusion to defend the respondent.  The respondent sued for breach of contract, claiming the $365,620.24 legal fees it incurred in defending the grievance proceedings.  Both parties sought summary judgment, which was granted in favour of the respondent.  The appellant appealed.

Held: Allowing the appeal, that in assessing whether a claim is within the coverage of an insurance policy, the court must consider the factual allegations showing the origin of the damages, and not the legal theories alleged.  The factual allegations – including those with respect to discrimination – raised by the grievance against the respondent arose from the alleged breach of US Soccer Federation by-laws and regulations, and were within the exclusion.

Huffhines v State Farm Lloyds, 167 SW.3d   493 (Tex. App. 14th Dist 2005), followed.

Judgment

The Court’s judgment is available here.