At around 4:00 am Sunday morning Kevin Melgar, 23, was driving his 2004 Infiniti on Sunrise Highway against traffic. He apparently was speeding for approximately 7 miles the wrong way when he crashed into a van operated by 49-year-old Ozcan ‘John’ Ayyildiz which was proceeding the right way. Both drivers were killed as a result of the impact. According to ABC News Ayyildiz was a flower deliveryman, and was on his way to work when the wrong-way car slammed into his van. He is survived by his wife and 3 daughters. 25-year-old Johnathan Valladarez was a passenger in the Infinity. He was taken to the hospital in critical condition. While the police were investigating the accident a street sweeper drove thru the closed area of the accident striking 2 police cars. Fortunately none of the officers suffered serious injuries. The car accident is under investigation. Read more at ABC News.
In Newmaker v. City of Fortuna, et. al.,Docket #14-15098, The 9th Circuit Court of Appeals reversed The District Court’s granting of summary judgment for the defendants in this action predicated on 42 U.S.C. § 1983. The plaintiffs claimed that Maxwell Soeth, a City of Fortuna police officer, used excessive force during an attempted arrest when he fatally shot Jacob Newmaker. Soeth claimed that he shot Newmaker because he grabbed Soeth’s baton. Soeth testified that Newmaker was standing and swinging the baton at the head of his fellow officer at which time he shot him. He further testified that Newmaker after being shot fell to the ground and that Newmaker was getting back up swinging the baton at which time he shot him again. The Court concluded that both the autopsy and a dashboard camera contradicted his testimony and raised an issue of credibility and that summary judgment should not be granted in Section 1983 actions which turn on an officer’s credibility which is genuinely in doubt. The Court pointed out that the autopsy findings “…can be explained only by Newmaker having been turned away from Soeth, bending over, and low to the ground in both shots…” This, the Court stated clearly contradicted Soeth’s testimony that Newmaker was standing up swinging the baton when he was first shot or attempting to stand up while still swinging the baton when he was shot again. The video, the Court stated also contradicted Soeth’s testimony. Although of poor quality, it appeared to show that Newmaker who had been tasered multiple times had already fallen to the street when he was shot. The Court thus held that officer Soeth was not entitled to Qualified immunity as there were material issues of fact including both officers credibility which were for a jury to decide. Read Full Opinion here.
In Raplee, Jr. V. United States The U.S. Court of Appeals for the Fourth Circuit, :Docket#14-1217, plaintiff initially filed a medical malpractice claim with Maryland’s alternative dispute resolution agency within the Federal Tort Claims Act’s (FTCA), 28 U.S.C. 2671 et seq., limitations period. However, plaintiff did not file a complaint in federal court until well after that period had passed. The district court dismissed the complaint as untimely. The court concluded that, because an “action is begun” under the FTCA only by filing a civil action in federal district court, plaintiff’s claim was untimely. The court also concluded that plaintiff failed to demonstrate that any extraordinary circumstances warranted equitable tolling. Accordingly, the court affirmed the judgment. Read Opinion here.
In Suarez v. W.M. Barr & Co., Inc. Docket#15-3602, a Product Liability case Juan Suarez purchased Professional Strength Goof Off to remove paint from a concrete basement floor; its primary active ingredient is acetone, which is extremely flammable and evaporates quickly at room temperature. The can contained warnings in English and Spanish and instructed users who wanted to remove concrete stains to “[a]pply directly. Agitate with brush.” Juan claims that he read most of the warnings and opened a window and two doors to the outside. It is unclear whether he turned off pilot lights for two water heaters and a furnace in a separate portion of the basement. While Juan was using a broom to spread the product, a fire erupted and severely burned his face, head, neck, and hands. Juan sued. The district judge rejected his claims on summary judgment. The Seventh Circuit affirmed rejection of a failure‐to‐warn claim. The warning label adequately identified the principal hazards and precautionary measures to be taken while using the product. The court reversed rejection of the design defect claims under both strict liability and negligence. Juan adequately established that the fire may have been caused by static sparks created when Juan agitated Goof Off with a brush as the label instructed. A genuine factual issue exists as to whether an ordinary consumer would expect a fire to erupt under these circumstances, whether this risk outweighs the product’s benefits, and whether the manufacturer should have known that agitation could create static sparks sufficient for ignition. Read Full Opinion here.
The case involved a bus collision that occurred on May 15, 2015 on the West Side Highway (11th Avenue). On that date, the plaintiff, who was on a bicycle attempting to cross the roadway, was struck by a large tour bus. At the time of the collision, the plaintiff was riding within the bicycle crossing lane and had the right of way per the light. Following the collision, a police officer arrived on the scene and spoke to a number of witnesses. Based on the witnesses, the police officer determined that the tour bus had traveled through a red light and struck the plaintiff.
An action was brought against the tour bus company that owned and operated the bus, as well as against the bus driver. The defendants initially denied that they were responsible for the collision, and argued that even if they were, the plaintiff was also responsible for failing to see the bus before attempting to cross the roadway.
A Missouri firearm dealer that sold a gun to a mentally ill woman who shot and killed her father agreed to pay $2.2 million to settle his widow’s wrongful death case, attorneys said Tuesday. According to Janet Delana’s lawsuit, she called Odessa Gun & Pawn and told the store manager that her adult daughter, Colby Weathers, had a history of mental illness and should not be sold a gun. Delana testified that she pleaded with Odessa’s store manager, “I’m begging you. I’m begging you as a mother, if she comes in, please don’t sell her a gun.” Read More in Courthouse News Service
A crane operator and a construction worker were killed Tuesday when a 6,500-pound beam came crashing down at a Queens construction site, authorities said. A preliminary investigation determined that the incident, which took place shortly after 12 p.m. in the Briarwood neighborhood, was the result of a “material failure” with the crane, said Rick Chandler, commissioner of the New York City Department of Buildings. The rigging system used to hoist the beam snapped, causing it to fall four stories, he said. It appears that the cause was a failure of the Crane’s rigging system. There have been a number of Crane Accidents at New York City Construction Sites this year. Our Crane Accident Lawyers are representing victims in several of these accidents. See prior blog. Read more in New York Times.
A 17-story-high water slide in Kansas City, which is billed as the world’s tallest, is going to be torn down after a 10-year-old rider was killed in August. The ride – called Verrückt, the German word for insane — has been closed since Caleb Thomas Schwab’s death. “Once the investigation is concluded and we are given permission by the court, Verrückt will be decommissioned – closed permanently and the slide removed from the tower,” Schlitterbahn Waterparks and Resorts said in a statement Tuesday. For more information from see NPR
Two U.S. officials say the engineer of a commuter train that slammed into a New Jersey station at double the 10 mph speed limit, killing a woman, suffered from undiagnosed sleep apnea. One of the officials says investigators are looking at it as a potential cause. The officials were briefed on the investigation and spoke to The Associated Press on the condition of anonymity because they weren’t authorized to discuss the matter. They told the AP on Wednesday that 48-year-old Thomas Gallagher was diagnosed with the condition after the Sept. 29 crash in Hoboken. Read More at Fox News.