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CLM National: May 2021

News and verdicts that affect you from across the country

May 07, 2021 Photo

Florida enacts broad COVID-19 civil immunity protections, the New Jersey Supreme Court outlines the duty New Jersey Transit owes to its passengers, and, in New York, the 2nd Circuit weighs in on the appropriate venue for climate change litigation.  

Nevada

AG Announces Opioid-Related Settlement

Nevada Attorney General Aaron Ford announced a $45 million settlement with McKinsey & Co. to resolve investigations into the company’s role in Nevada’s opioid epidemic. The announcement comes over a month after a $573 million settlement was announced between McKinsey and attorneys general representing 47 states, the District of Columbia, and five U.S. territories that resolved investigations into the company’s role working for opioid companies. Ford said Nevada declined to join the multi-state settlement in part because of the state’s “unique position in the way it was severely impacted by the opioid epidemic, the unique legal rights granted to the Nevada attorney general, and the status of the pending litigation against opioid manufacturers, distributors, pharmacists, and individuals.” The settlement concerns McKinsey’s work for over a decade providing “guidance, consulting, and marketing plans to entities involved in manufacturing, marketing, and selling opioids,” according to Ford’s statement.—From Senior Managing Editor Phil Gusman

Indiana

Managers Not Liable in Slips, Trips, and Falls

The Indiana Supreme Court ruled store managers cannot be held liable for the negligent hiring and retaining of employees, or for the existence of allegedly hazardous store conditions. Branscomb v. Walmart ends a growing trend of naming store managers as defendants in slip, trip, and fall cases. First, the court noted that, for 50 years, Indiana courts have held that employers that admit an employee was acting in the course and scope of employment cannot be liable to patrons for negligent hiring or retention of the employee. Here, Walmart admitted its employees acted in the course and scope of their employment. Second, a premises liability claim is directed to the owner or possessor of the subject property. A store manager is merely an agent of the owner or possessor and does not have direct liability for alleged hazardous conditions. Third, a store manager’s duty of care flows to the employer unless evidence establishes the manager took over control of the store and was acting under a duty that was distinct from the store manager’s duty to the store.—From CLM Member Jeff Kehl, Bryce Downey & Lenkov

Florida

Broad Civil COVID-19 Immunity Bill Signed

Gov. Ron DeSantis signed a bill enacting COVID-19 civil immunity protections that appear to be among the broadest in the country to date. The law provides immunity for businesses, including charitable and not-for-profit entities, for civil liability claims arising out of COVID-19. It also covers educational institutions, broadly defined health care providers, and governmental entities. For health care providers, the bill broadly defines “authoritative guidance” and what constitutes a COVID-19 claim. Claims against providers must be pled with “particularity by alleging facts in sufficient detail to support each element of the claim,” and the burden of proof is a preponderance of the evidence that the provider “was grossly negligent or engaged in intentional misconduct.” For claims other than those against a health care provider, complaints must be pled “with particularity,” and filed with an affidavit of merit by a physician “actively licensed in” Florida and must allege the damages were likely “a result of the defendant’s acts or omissions.”—From CLM Member Michael D. Shalhoub, Goldberg Segalla

Georgia

Summary Judgment Not Automatic

Under Georgia’s former respondeat superior rule, courts held that, where an employer admits it is vicariously liable for its employee’s negligence, direct claims for negligent entrustment, hiring, training, and/or retention does not entitle plaintiff to a greater recovery, but merely serves to prejudice the employer and potentially result in double dipping. In 2005, Georgia enacted the apportionment statute—a jury is required to apportion fault for an injury amongst all responsible parties and non-party tortfeasors pursuant to each’s percentage of fault. In Quynn v. Hulsey, et al., the Georgia Supreme Court determined the respondeat superior rule had been effectively abrogated by the apportionment statute. Quynn involved a wrongful-death claim against Hulsey and his employer, TriEst. The trial court granted partial summary judgment to TriEst based upon the respondeat superior rule. The Quynns appealed, and the Supreme Court found that any fault apportioned to the employer would have to be for its own independent negligence and not for vicarious liability.—From CLM Member Willie Heard, Callahan & Fusco

New Jersey

Court Defines Duty Owed by Public Transit Systems

The New Jersey Supreme Court clarified the duty owed to passengers traveling on the state’s public buses. Maison v. N.J. Transit Corp. involved a 20-year old female college student who boarded a bus operated by New Jersey Transit. Not long after the bus was underway, male teenagers began verbally harassing the student, eventually throwing objects at her with one even brandishing a knife. Before leaving the bus, one of the teens threw a bottle, hitting the student in the face and causing a severe injury to her forehead, which was described as permanent. In Maison, the court unambiguously addressed the duty of care owed by New Jersey Transit to its passengers, finding that “the heightened common-carrier standard applies to public carriers like N.J. Transit.” Here, the court found that the bus driver was under no obligation to intervene physically, but that a bus driver must at a minimum exercise “utmost caution” to satisfy the heightened standard, which on the facts presented would have included addressing the harassers directly, stopping the bus, or calling the police.—From CLM Member Christopher Campise, Callahan & Fusco

New York

Climate Change Litigation a Federal Issue

The U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal of the City of New York’s climate change lawsuit filed against a number of global oil manufacturers that sought infrastructure damages. The issue was whether municipalities could seek to hold multinational companies liable for damages caused by global greenhouse emissions under state common law. New York argued before the lower court that defendants knew the production and sale of fossil fuels would pose a severe risk to the planet’s climate, and that defendants downplayed the risks and continued to sell them. Given the nature of the harm and the existence of a complex web of federal and international environmental laws regulating such emissions, the 2nd Circuit held that claims relating to domestic emissions are more appropriately addressed by federal law and displaced by the Clean Air Act, and that claims relating to foreign emissions are barred by the presumption against extraterritoriality and the need for judicial caution in the face of foreign policy consequences.—From CLM Member Scott M. Press, Goldberg Segalla

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About The Authors
Phil Gusman

Phil Gusman is senior managing editor of CLM magazine, a publication of the CLM.  phil.gusman@theclm.org

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