Winter 1999

Vol.3 – No.3

What’s New in Consumer Law?

Funeral home pays $33.5 million for losing ashes. A Florida jury awarded $33.5 million to a couple who discovered that the urn they had planned to transport to England for burial was filled with the ashes of a total stranger rather than those of the husband’s mother. The mother’s dying wish was to be cremated and buried in her native England. They kept her ashes on their mantel for more than a year while they saved up to fly to their homeland for a proper funeral. They saw an investigative television news report that detailed the unethical practices of the funeral home and crematorium that had handled the ashes. The crematorium workers stated that they sometimes threw ashes in the parking lot and often switched ashes when they did not cremate someone in time. A subsequent investigation indicated that his mother was cremated one day after they actually picked up her ashes.

What’s New in Debtor/Creditor Law?

Employer liable for Fair Credit Reporting Act (FCRA) violation. Where a debt collection employee improperly obtained a credit report, her employer can be sued under the FCRA despite the fact that it didn’t know anything about her misconduct. The U.S. Court of Appeals, Sixth Circuit, ruled that the employer was liable if it had given the employee “apparent authority” to act, i.e. “held (her) out to third parties as possessing sufficient authority to commit the particular act in question”. The court found that employers are in a better position to protect consumers by use of internal safeguards. The FCRA’s “deterrence goal would be subverted if a corporation could escape liability for a violation that could only occur because the corporation cloaked its agent with the apparent authority to request credit reports”.

What’s New in Divorce/Family Law?

Father sued for wiretapping child’s call with ex-wife. A custodial father who tape-recorded a telephone call between his five year old son and his ex-wife can be sued under both federal and state wiretapping laws by the ex-wife. The wiretapping statutes make it illegal to tape a phone call unless one of the parties consent. The father argued that because he was the custodial parent, he was a “vicarious participant” in the conversation and could consent on his son’s behalf. However, the Michigan Court of Appeals ruled that there was no “vicarious consent” exception.

What’s New in Estate Planning Law?

Nursing home costs. At age 65, nearly one of every two people will need long-term care sometime in their lifetime. Men have a 32 percent chance of needing long-term care while women have a 42 percent chance because of longer life spans. The average nursing home stay is 2.5 years. One in four people stay more than three years.

What’s New in Health Law?

HMOs can be sued. Jane Bryant Quinn’s column, “Consumer’s Benefit In Outside Review of Health-Plan Denials” stated that “Under federal law, you cannot sue for damages if a managed care plan delays or denies treatment that you should have had”. This statement is incorrect for two reasons.

What’s New in Landlord/Tenant Law?

Landlords are liable for pit bull attacks. An auto repair shop owner’s pit bull bit two people in the parking lot. The Maryland Court of Appeals determined that the dog was a dangerous condition in the mall’s common area for which the landlord could be sued. The landlord argued that he wasn’t liable for the attacks because he didn’t have control of the dog. However, the court determined that the landlord knew the dog was vicious but continued to re-let to his owner, who was a month-to-month tenant. The landlord testified that the dog was too dangerous to have around and would be a threat to people on the premises who would be frightened by it. The landlord’s “control over the common area upon which the injuries…occurred coupled with his ability to control the dog’s presence at the strip mall by refusing to renew the month-to-month tenancy with the tenant unless he got rid of the dog or took other satisfactory measures to abate the danger…provide a sufficient basis for liability”. The Alabama, Florida, New Jersey and New York courts have held similarly…A tenant’s pit bull attacked and killed a visiting child in the tenant’s apartment.

What’s New in Personal Injury Law?

Nursing home patient’s family awarded $1 million for fall. A nurse’s aide left an 82-year-old nursing home patient alone in the bathroom. She fell off the toilet and hit her head, causing a brain injury. The injury forced her doctors to take her off the prescription blood thinner that she was taking for various heart ailments. This lead to her death sixteen days later from a heart attack. The nurse’s aides had no policy, procedure or training in fall prevention although required by state and federal law. The Ohio jury returned a $1 million verdict, including $850,000 in punitive damages. A Florida jury awarded $6.3 million to the family of a man who drowned in a pond after wandering from the grounds of a nursing home. A California jury awarded a nursing home patient $3 million for a fall in which she broke her hip and shoulder.

What’s New in Real Estate Law?

Cohabitant sues for damages after breakup. A homeowner’s longtime cohabitant sued him after they broke up alleging that he had orally promised her lifetime use of the house. She agreed to sell her own home and most of its furnishings, move into his home and pay one-half of the expenses in exchange for, and in reliance upon, his promise that she would have the use of that home for the rest of her life. The New York Appellate Division, Third Department, ruled that she had three grounds to sue: constructive trust, constructive fraud and partnership accounting. The parties’ relationship was analogous to that of a husband and wife. Therefore, she reasonably trusted him and relied on him to protect her interests. Her substantial contributions in money and labor to the upkeep and improvement of the house and grounds in reliance on his promises, warranted a finding that the value of the property was enhanced by her contributions and that he has been unjustly enriched as a result. Thus, if a confidential relationship existed, this use of her money and effort to improve the property could justify the imposition of a constructive trust. Constructive fraud exists if, irrespective of any actual attempt to defraud, it is demonstrated that the parties did not stand on an equal footing because of a confidential relationship and that as a result, she justifiably relied upon his promise of future performance. A partner may bring an action to compel the other partner to account under an oral partnership agreement. (666 NYS2d 749)

What’s New in Small Business Law?

Age discrimination suits can be waived. Employees can more easily waive age discrimination claims in exchange for a severance package under new EEOC regulations which implement the Older Worker’s Benefit Protection Act. They cover voluntary early retirement programs as well as involuntary lay-offs.

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.

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