March 1997

Vol.1 – No.7

What’s New in Consumer Law?

The crime of disseminating indecent materials to a minor. Several cases have come to light of pedophiles who have engaged in sexually explicit communications with minors and then attempted to arrange sexual encounters with these minors. One such case involved an adult male resident of Seattle, Washington, who exchanged sexually explicit communications with a thirteen-year-old girl via computer for a period of several months. He then traveled to New York and attempted to meet the girl. Recognizing the seriousness of this problem, Congress enacted the Communications Decency Act of 1996 to prohibit the interstate transmission of obscene telecommunications.

What’s New in Debtor/Creditor Law?

Bank can postpone foreclosure for bankruptcy filed by a homeowner, instead of having to cancel the foreclosure process and begin all over again in case a debtor fell behind in his payments under the bankruptcy plan (U.S. Court of Appeals, Ninth Circuit). U.S. sued for not garnishing wages. A creditor can sue for damages caused by the U.S. improperly stopping the garnishment of a federal employee’s wages after she challenged the garnishment order in court (U.S. District Court for District of Columbia).

What’s New in Divorce/Family Law?

What if the pension goes bankrupt? A Qualified Domestic Relations Order (QDRO) which divides a pension should state what will happen if the pension plan goes bankrupt before the spouse retires. If there is no such provision, all the benefits might go to one spouse. When a pension plan folds, the Pension Benefit Guaranty Corporation (PBGC) takes over making the payments, but the payments are usually reduced because of the agency’s caps. If the QDRO doesn’t stipulate what happens in this situation, the agency will apply two “default rules”: If the QDRO gives each spouse a percentage of the pension, the PBGC will simply apply the same percentages to the reduced amount. If the QDRO gives one spouse a specific amount, the PBGC will pay the spouse in full first and give the other spouse whatever is left over. If you do not like these “default rules”, you should include an alternative arrangement in the QDRO.

What’s New in Estate Planning Law?

The Power of Attorney is improved. The laws governing New York powers of attorney was significantly changed, effective January 1, 1997. The “principal”, by signing a power of attorney, authorizes another person–known as the “agent” or “attorney-in-fact”–to act on his or her behalf to perform any number of specified acts.

What’s New in Health Law?

Denial of Medicare HMO is malpractice. The Medicare Administrative Appeals process does not preempt state law damage claims based on an HMO’s failure to provide a service covered under the Medicare program. A woman was enrolled in an HMO through Medicare. She suffered a heart attack and was taken to a local rural hospital which did not have an intensive care or cardiac care unit. The HMO refused repeated requests from her physician for an air ambulance to transfer her to a tertiary care center. She died as a result of the failure to provide the air ambulance. Her estate sued for compensatory and punitive damages in state court alleging malpractice, misrepresentation and infliction of emotional distress (U.S. Court of Appeals, Ninth Circuit).

What’s New in Landlord/Tenant Law?

Landlord sued for sex harassment. A tenant who was sexually harassed by her landlord can sue for a “hostile environment” under the Fair Housing Act (U.S. Court of Appeals, Seventh Circuit).

What’s New in Personal Injury Law?

Dog and cat bite lawsuits. Lawsuits by victims of dog bites (especially Rhodesian ridgebacks, akitas, rottweilers, pitbulls and German shepherds) cat bites and horse bites are increasing rapidly. There are three grounds for liability: Strict liability, vicious propensity and “one free” bite. Certain states, such as California, have strict liability. If the victim is bitten in a public or private place, such as in a home in which the person was a guest, the homeowner is strictly liabile and all that has to be proved is damages. In many other states, such as Nevada, it must be proven that the owner had previous knowledge that the dog had a vicious or dangerous propensity, that is, it had a potential to do harm, such as frequently jumping on people. Other states require that the dog have bitten at least one person before the victim was bitten. In addition to the owner being sued, the owner of the land or the caretaker can be sued. The landlord may be sued under a premises liability theory (see Volume 1, Issue 2, “Dog Bite Victim Awarded $2.14 Million Against Landlord”) or for having knowledge of the dangerous or aggressive tendencies of the animal. Anyone who is a caretaker, owner or harbor of the animal on the property can be sued. A homeowner in California who allowed a stray cat to live in his garage had to pay $1.49 million. However, a victim of a goose attack in New York, received nothing against the property owner who fed and housed the Canadian goose.

What’s New in Real Estate Law?

A church can run a homeless shelter in a residential district. A zoning board’s refusal to allow a church to operate a homeless shelter in a residential neighborhood violated the Federal Religious Freedom Restoration Act (Michigan Court of Appeals). Drug treatment center entitled to building permit. The denial of a zoning permit for a drug and alcohol treatment center after some local residents objected violated the Americans With Disabilities Act and the Federal Rehabilitation Act where there were other clinics and offices in the area (U.S. District Court for the Southern District of New York). The Fair Housing Act is not violated where homes for drug addicts are limited to eight persons (U.S. Court of Appeals, Eighth Circuit) or where a zoning board refused to allow a four unit handicapped-accessible apartment building in an area zoned for single-family homes (U.S. Court of Appeals, Seventh Circuit). Ordinances that limit the number of tenants who can live in a single-family house are unconstitutional under California law (California Court of Appeals) but constitutional under Nebraska law (Nebraska Court of Appeals).

What’s New in Small Business Law?

Employers penalized for using interns. The U.S. Fair Standards Labor Act (ILSA) restricts the kinds of tasks that unpaid interns or trainees may perform. Interns are classified as non-employees exempt from the minimum wage provisions if employers do not derive any immediate advantage by using them. Even though the training may include tasks performed for the business, it must be comparable to a learning experience found in a vocational school program. The FLSA applies to all companies that have at least two employees directly engaged in interstate commerce and annual sales of $500,000 or more. The act also covers public agencies, and medical and educational institutions. The factors considered by the courts and the Labor Department in classifying an intern as a nonemployee under the FLSA are as follows:

• If billing clients for work performed by interns gave the company an “immediate advantage”.
• If the unpaid intern displaces a regular worker.
• Whether the training benefits the intern.
• Whether the intern is entitled to a job at the conclusion of the training program.
• Whether there is an understanding that the intern is not entitled to wages for time spent in training.

The legality of intern contracts that specify that the intern will accept a small stipend or college credit in lieu of minimum wage is being challenged by a class action lawsuit. The Labor Act applies even if the student is working for a school program and is paid in college credits.

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.