CASE TALK
ARLENE GLENN SIMOLIKE, ESQUIRE
AND ASSOCIATES, P.C.
I. TORT LAW: Personal Injury Claims Against a Government Unit
The doctrine of sovereign immunity dates back to the time when kings and queens ruled their subjects. It prohibited a citizen from suing the sovereign for any acts of negligence which caused the citizen harm to self or property.
In more modern times, legislation was passed which allowed some exceptions to the doctrine of sovereign immunity. For example, an injured party can sue the local, state or Federal government if defects in real estate owned by the government caused the injury to occur.
Recent years have featured an effort by innovative attorneys for plaintiffs to push at the boundaries of the real estate exception. These cases often involve defects in roadways, which are deemed “real estate” owned by the government. A recent case against the Turnpike Commission is an example. There a plaintiff was injured and died due to a bent guardrail when his car hydroplaned and spun into the guardrail. The guardrail impaled him on its bent end.
The Court sympathized with the plaintiff’s family but refused to expand the real estate exception to include defective guardrails on government roadways. The Court stated that only a change in the statutes which allowed suits against the government would have the effect of including defective guardrails in the real estate exception. Plaintiffs seeking to expand the boundaries of the real estate exception to sovereign immunity should expect a strong defense from government attorneys.
II. WORKERS COMPENSATION: The “Coming and Going” Cases
If a worker is injured on his way to work, depending on the specific facts of the case, he may be eligible for Workers Compensation benefits. In a recent case (Mackey v. WCAB), a home health aide assigned to one patient only was injured when her car slid on ice on her way to the patient’s home from her home. She sought Workers Compensation benefits.
She relied on a “coming and going” case where a travelling nurse on her way to one of many patients assigned to her had a car accident. That nurse received Workers Compensation benefits. However, the Judge looked at the specifics of Mackey. He reasoned that because workers on the way to their usual workplace who get injured do not get Workers Compensation, Mackey should not either. He reasoned that because she had just one work location at one patient’s house, her situation was analogous to a worker on his way to his factory or office job location.
The “coming and going” cases for Workers Compensation benefits have created a problematic area. Every new case brings a new exception or expansion to the rule. Every case must be treated on its unique facts. Generally, workers should not expect to receive benefits if injured on their way to a steady workplace.
III. GENDER INEQUALITY ON PAY DAY: Laws Old and New
In 1963, President John F. Kennedy signed the Equal Pay Act into law. It was meant to eliminate unequal wages between men and women who performed equal work. Somehow, the realities of the workplace never allowed the law to work as intended. Now, the American Bar Association and other major groups are pressing Congress to act again, to fill in the gaps in the 1963 law.
Many more women have entered the workplace since 1963 on a full time and permanent basis. Their paychecks are needed at home more than ever in these tough economic times. The proposed Paycheck Fairness Act would strengthen the provisions of the 1963 law. It would create remedies for women subjected to wage discrimination that give teeth to the law. The proposed law would also give the Federal government a more active role in enforcing the anti-discrimination rules for paychecks.
The new law would add compensatory and punitive damage provisions such as those that exist for race and national origin in discrimination suits. Also, employers would be prohibited from retaliating against employees who share wage information with each other. In addition, Federal agencies would be empowered to collect more wage data from employers across the country. Currently, the proposed law has passed Congress but is being scrutinized heavily by the Senate. It continues to generate controversy.
IV. PRIVACY LAWS: Computers and the Public Library
Public libraries may seem to be quiet, inoffensive, non-controversial places to spend time with a favorite book or magazine. But thanks to the web, internet capabilities and computer terminals now common in most libraries, constitutional issues now plague librarians and their superiors.
Since the terrorist attacks of September 11, 2001, a quiet battle has been waged between the patrons’ rights of privacy and free library services, on one side, and law enforcement agencies trying to safeguard national security on the other. Many government agencies have tested the librarian’s right to refuse to divulge information about what websites patrons visit, what books they borrow and what free services they access. The agencies state the information is needed to make sure certain patrons are not engaged in terrorist plots.
However, most states like New Jersey and Pennsylvania do require libraries to protect the confidentiality of their patrons’ library usage records. In addition, library staff have a policy incentive to respect the rules about patron confidentiality. If they make unlawful disclosures of information, the library can be sued. Lastly, patrons who fear disclosure of their library records might stop visiting the library. Unused libraries could be closed, to the detriment of employees and patrons alike.
Thus, when a librarian receives a NSL (national security letter) from the FBI, for example, the situation must be handled very carefully by local government’s counsel. Many counties have had to draft policies regarding patron privacy concerns. They have also published patrons’ codes of conduct regarding internet use, to discourage usages which could be controversial and subject to disclosure under an NSL request. The hope is that such codes and policies will keep library doors open, librarians free of the threat of lawsuits, and patrons comfortable in using the local library.
THE LIGHTER SIDE OF THE LAW
A priest settled into a chair in a lawyer’s office. He looked intently at the lawyer and asked, “Is it true that your firm does not charge members of the clergy for consultations?”
The lawyer stated, “I’m afraid you’re very mistaken. People in your profession can look forward to a reward in the next world. But we attorneys have to take ours in this one!”
