November 1996

Vol.1 – No.4

Lead Poisoning: The Silent Disease

Lead affects virtually every system of the body. While it is harmful to individuals of all ages, lead exposure can be especially damaging to children, fetuses and women of childbearing age. As recent studies have identified previously unrecognized effects, there has been increasing concern about blood-lead levels once thought to be safe. Since 1978, Centers for Disease Control and Preventions (CDC) has lowered the blood-lead level of concern from 60 ug/dL (micrograms per deciliter) to 10 ug/dL.

What’s New in Debtor/Creditor Law?

Cash advance for gambling can be discharged in bankruptcy. An individual, who was $30,000 in debt and knew that he did not have enough income to make his monthly payments, was allowed to discharge a $6,600 credit card cash advance used to finance his gambling problem. The court did not consider this to be “fraud” which is non-dischargeable under the Bankruptcy Act. The court found that there was no bad faith because the debtor consistently made his minimum payments up until he filed bankruptcy; attempted to work out a new payment schedule with the company and stated that he always intended to pay, but had a gambling addiction (U.S. Court of Appeals, Ninth Circuit). However, the same court ruled that a couple who withdrew $64,000 from a bank inorder to avoid a levy by a creditor, can’t later discharge the debt in bankruptcy. The Bankruptcy Code provides that a debt is non-dischargeable if the debtors transferred property with intent to hinder, delay or defraud a creditor within one year before the date of the filing of the petition. Withdrawing the money from the bank was considered to be a transfer even though the couple repaid it and never gave it to a third party.

What’s New in Divorce/Family Law?

Custodial parents may move out-of-state. The high courts in California, Colorado and New York have recently made it easier for divorced parents with custody to move. The Tennessee Supreme Court held that a parent should always be allowed to moved unless it is done to be vindictive or the child would be in physical danger. The cases regarding relocation fall into four categories: (a) a presumption in favor of moving; (b) a limited presumption; (c) a “best interests” test; and (d) a presumption against moving. Presumption in favor of moving. In Alabama, Florida, Minnesota, Mississippi, Montana, Nebraska, North Dakota, South Dakota, Tennessee, Vermont, Wisconsin and Wyoming it is presumed that parents should be able to move their children. The burden is on the other parent to show that this should not be allowed. Limited presumption. The following states also put the burden of proof on the non-custodial parent, but only after the custodial parent has established a “good faith” reason for the move: Colorado, Massachusetts, Nevada and New Jersey. Best interests test. The following states don’t have a presumption and allow a move if it is in the best interests of the child: Alaska, California, Connecticut, Idaho, Indiana, Maine, Maryland and New York. Presumption against moving. Illinois places the burden on the custodial parent to show that a move should be allowed.

What’s New in Estate Planning Law?

Is Grandma Going to Jail? Beginning next year, if grandma gives her home to her granddaughter and later applies for Medicaid, she and her lawyer may be guilty of a federal crime. The New York State Bar Association Elder Law Section, advocacy groups and not-for-profit organizations are calling for repeal of a portion of the recently enacted Kennedy-Kassebaum Health Insurance Portability and Accountability Act of 1996. The Act makes it a crime punishable by up to one year in prison and a fine of $10,000.00 to transfer assets in order to qualify for Medicaid benefits.

What’s New in Landlord/Tenant Law?

Landlord may cancel lease with porn merchant. A tenant who seeks to operate a store for the sale of pornographic materials has an affirmative duty to disclose that fact to the landlord, because such a store may have an adverse impact on neighboring properties. When the tenant responded to the landlord’s ad for a vacant store for rent, he stated that he planned to sell videos. However, he did not disclose that he planned to sell adult magazines and videos and to operate video booths showing pornographic films. When the landlord’s contractor was remodeling the store to suit the tenants purposes, he discovered the tenant’s plans and informed the landlord. The landlord changed the locks and sued the tenant to rescind the contract and recover damages. The New York Supreme Court, Duchess County awarded judgment to the landlord holding that he was entitled to rescind the contract on the grounds of fraud. The court found that the tenant’s representation to the landlord that he would be selling videos and magazines, without specifying their type and his affirmative answer to the landlord’s question as to whether tenant’s business was like another business that sold childrens’ videos, constituted fraud.

What’s New in Personal Injury Law?

Customer struck by car sues business. A woman who was injured while walking across the highway to get to her car after leaving a bridal show at a function hall, can sue the function hall. The hall may have had a duty to hire off duty police officers to direct traffic or warn customers of the danger of crossing the highway. This is true even though the function hall did not own the parking lot across the highway where the woman had parked and provided valet parking for its guests, but the woman chose not to use it. (New Jersey Appellate Division) Beer buyers are liable for underage drinker who causes automobile accident. A 15 year old girl who was seriously injured in a car crash can sue her friends for chipping in for the beer that caused it. The friends of the girl gave a 21 year old money to buy beer for them in a liquor store. After drinking the beer, the girl and another youth got into a car accident in which she was paralyzed (Wisconsin Court of Appeals). Farmer is not liable for cows. If farmers take reasonable care to keep their cows penned up, they cannot be held liable for traffic accidents caused by wandering cows (Indiana Court of Appeals).

What’s New in Real Estate Law?

City must pay developer $1.5 million. A city’s refusal to allow a housing development next to the Pacific Ocean because it wanted to preserve the dunes and natural habitat was a “taking” under the U.S. Constitution. The city must pay the owner nearly $1.5 million in damages even though the owner made an $800,000 profit by selling the land to the state. A land-use regulation may be a “taking” if it deprives the owner of all “economically viable” use of the property (U.S. Court of Appeals, Ninth Circuit). Agent is liable for undisclosed radon test results. Home buyers were awarded $30,000 in damages against the listing agents for failing to disclose results of a radon test showing the house had seven times the radon level the Environmental Protection Agency considered acceptable (Pennsylvania).

What’s New in Small Business Law?

E-mail policy prevents employee lawsuits. Employees are suing their employers for “evasion of privacy” for reading their e-mail. Although the following cases were dismissed, an e-mail policy should be implemented to prevent the costs of litigation. An employee sued after being fired for sending an e-mail in which he stated that he wanted to “kill the back stabbing bastards” who managed the sales department. Two employees of an auto manufacturer were fired for sending e-mail that was critical of their manager. A California employee sued after she discovered her e-mail was being monitored. The e-mail policy should be put in the company personnel handbook. It should state that the company reserves the right to access and disclose all messages sent over its electronic mail system for any purpose. There should also be a message displayed on the e-mail home screen reminding employees, each time they use the system, that it is not intended for personal messages. The key factor is to establish that the employee does not have an expectation of privacy.

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.