Winter 2001

Vol.5 – No.3

What’s New in Divorce/Family Law?

Lesbian entitled to guardianship of ex-lover’s child. The Plaintiff lived with the child, who called her “Mama”, until she was almost two years old. When the Plaintiff and the child’s mother broke up, the mother told her that she would never see the child again. The Plaintiff petitioned for guardianship, claiming that the mother was causing the child psychological harm by depriving her of a mother-child relationship with the Plaintiff. The mother argued that because the Plaintiff was a non-parent, she could not establish that the mother’s custody was detrimental to the child unless she could show abuse, neglect or abandonment. “In a dispute between a parent and a non-parent, before awarding custody to a non-parent, the court must make an express finding that parental custody is detrimental to the child. Although evidence of…specific abuses… would no doubt support a finding of detriment, we find nothing in (the statute) that limits the court to those circumstances.

What’s New in DWI/Traffic Law?

High protein diet as a DWI defense. A driver had drunk driving charges dismissed by arguing that his .10 alcohol level was caused by a high-protein diet rather than by excessive drinking. The high-protein defense was based on the theory that the human body produces it’s own alcohol if carbohydrates are suddenly consumed after being eliminated from the diet for a prolonged period of time. A professor of organic chemistry testified that a person’s body produces ketones after a long period of fasting or carbohydrate deprivation. If the person consumes carbohydrates, the body creates amino acids to break down the carbohydrates and make the ketones less toxic. One of the byproducts of this process is isopropyl alcohol, which the body eliminates through the kidneys and lungs. The breathalyzer does not distinguish between isopropyl and other types of alcohol in the body. (Gwinnett County State Court, Georgia)

What’s New in Insurance Law?

Insurance doesn’t cover accident from homeowner serving alcohol to minors. A homeowner bought alcohol for his teenage daughter to serve at a New Year’s Eve party. Two teenagers had too much to drink and got into a car accident. The homeowner later pled guilty to providing alcohol to minors. When the teenagers sued, the homeowner’s insurance carrier denied coverage because the policy covered only injuries caused by negligence, not by intentional acts. The homeowner argued that he intended to serve the teens alcohol but didn’t intend for them to be injured. But the court said that “while it is undisputed that the homeowner did not intend to cause harm, the inquiry does not end there. Instead, we must examine the nature of his acts… In this case, the wrongful or tortious event for which he sought coverage was supplying alcohol to minors. It is undisputed that giving alcohol to minors was wrongful…Because the wrongful or tortious acts were not accidental, they do not fall within the meaning of the policy. Consequently, the unintended harm that resulted is not covered.” The court also held that coverage was barred by a motor vehicle exclusion. (Minnesota Court of Appeals)

What’s New in Intellectual Property Law?

Obscene domain name is not a constitutional right. An internet domain name registrar was sued for civil rights violations for denying domain names that included obscene words. The company argued that the registrar’s practice of refusing to register obscene domain names deprived it of its right to free speech and due process of law under the state and federal constitutions. It also alleged that it lost its right to those names because competitors were able to register the names with other registrars. The company claimed that since the names have commercial value that was lost because of the registrar’s policy. The U.S. District Court for the Eastern District of New York ruled that since there are more than 30 domain name registrars, the registrar could not be viewed as participating in governmental action to deprive the plaintiff of fundamental rights. The court noted that although the U.S. Department of Defense was an instrumental agent in the Internet’s origins, the Internet is not “by any stretch of the imagination a traditional and exclusive public function”.

What’s New in Labor/Employment Law?

When may an employer inquire about the medical condition of an employee? An employer may seek information about an employee’s medical condition only when it is “job-related and consistent with business necessity”. The employer must have reasonable belief that: (1) an employee will be unable to perform the essential functions of his or her job due to a medical condition or (2) the employee poses a direct threat to others. The employer may also request medical information if: (1) an employee has requested a reasonable accommodation; (2) it is required to do so by other federal laws or regulations; (3) it offers voluntary programs aimed at treating certain health problems; or (4) it is trying to use the information to further affirmative action programs.

What’s New in Landlord/Tenant Law?

Landlord sued for murder of tenant. A landlord can be sued for negligence where a tenant was killed by an attacker who entered the building through a back door with a broken lock. The landlord argued that it did not have a duty to protect tenants from criminal acts of third parties. But the court found that although a landlord-tenant relationship alone is not sufficient to give rise to the duty to protect, a party may owe such a duty where a special relationship exists. When the tenant signed the lease, he relinquished to the landlord exclusive control over building security, the building’s security devices, and the areas outside his apartment unit.

What’s New in Municipal Law?

Court overturns spot zoning. A town’s decision to rezone an asphalt plant in an area of light commercial and residential uses for industrial use was overturned. The asphalt company operated a plant since the early 1960s. Since 1968, when the land was rezoned from industrial to business, the company had operated as a nonconforming use. As the business expanded and volume increased, it repeatedly sought variances from the Town Zoning Board of Appeals. In November, 1998 the town board approved a zoning change of three parcels. A neighboring campground claimed that the town had engaged in spot zoning and that the town had violated the State Environmental Quality Review Act (SEQRA). The court ruled that the town board failed to comply with all SEQRA requirements by neglecting to complete all parts of the Environmental Assessment Form.

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

• To communicate with you in plain language that is easy to understand.
• To promptly return your telephone calls.
• To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
• To have your case personally handled by an attorney.
• To keep you informed of the progress of your case at all times.
• To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
• To not handle your case in an “assembly line” fashion.
• To accommodate the needs of you and your family during the handling of your case.
• To vigorously protect your legal rights.
• To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.