June 2017 in the Fourth Circuit Court of Appeals
September 13, 2017
Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.
Below are the selected cases for June 2017.
Ben-Davies v. Blibaum & Associates, P.A.
June 1, 2017: (Unpublished) Fair Debt Collection Practices Act Article III standing. The consumer alleged sufficient concrete and particularized injury when she alleged debt collector attempted to collect inaccurate, exaggerated debt by adding interest not authorized by law and resulting emotional distress, anger and frustration. Dismissal by district court for lack of standing reversed.
Orwig v. Alembik
June 6, 2017: (Unpublished) Medical malpractice related to alleged failure to properly treat chorioamnionitis also called chorio during pregnancy. District Court properly allowed expert testimony on whether or not treating doctor actually diagnosed chorio. While this was a fact issue, the expert testimony aided jury in making determination and based upon accepted science and professional practices. Sleeping juror who was awake for most of lengthy trial but for one day and when counsel did not point out to court at the actual time not a basis for mistrial. Verdict for defendant affirmed.
Safar v. Tingle
June 7, 2017: Section 1983 and state law wrongful arrest/imprisonment. Fraud charge based on mistake. Prosecutor and investigator learned of mistake but did not withdraw arrest warrant resulting in mother of three young children being arrested, strip searched, and incarcerated for three days on a non-existent charge. Section 1983 dismissed as no violation of clear legal precedent and absolute prosecutorial immunity. Dismissal of state claims reversed and remanded as Virginia state law may have a claim for negligent investigation/prosecution. Remanded to dismiss state law claims without prejudice.
Bertolazzi v. Baltimore Hotel Corp.
June 14, 2017: (Unpublished) Tort claim against hotel for injury walking up inoperable escalator, summary judgment for defendant reversed. Inoperable escalator was not roped off, no warning sign, no employee stationed to warn court found a person of ordinary intelligence may not recognize inoperable escalator greater risk than stairs, summary judgment based on assumption of the risk decided fact issue.
Carter v. U.S.
June 20, 2017: (Unpublished) District Court dismissed Federal Tort Claims Act case for lack of injury brought by prisoner already injured then kept in a flooding cell while he fell again and was injured again. Vacated and remanded as District Court applied incorrect sub-section of statute that required physical injury of second fall must be more than de minimis, 28 U.S.C. § 1346(b)(2) only applies to emotional and mental distress claims. District Court further erred by not taking allegations of fact in complaint as true.
Sawyer v. Foster Wheeler
June 22, 2017: District Court remanded tort and product liability case to state court after removal by federal contractor who manufactured and installed asbestos containing boilers assembled and installed by plaintiff’s decedent at naval shipyard. The Court reversed and remanded finding the district court applied the wrong standard and that the government contractor defendant alleged a colorable federal contract immunity defense allowing removal under 28 U.S.C. § 1442(a)(1). NOTE: IF a federal contract touches on a tort claim in your case, think about removal!
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