DOCSLIB.ORG

NORTHERN KENTUCKY Law Review

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
NORTHERN KENTUCKY Law Review NORTHERN KENTUCKY LAw REvIEw Volume 26 Spring 1999 Number 1 ARTICLES A Practitioner's Analysis of the Loss of Parental Consortium in Kentucky ............................. Susanne Cetrulo 1 Britt v. Commonwealth: The Kentucky Supreme Court Deciphers Legislative Intent in Juvenile Firearms .................... Frank W. Heft, Jr. 17 J. David Niehaus Kentucky Tort Liability for Failure to Report Family Violence ........................ James T. R. Jones 43 Kentucky Workers' Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve ..... James Michael Kemp 67 Laurie Goetz Kemp To the Brink of Insanity: "Extreme Emotional Disturbance" in Kentucky Law ........................... Eric Y Drogin 99 NOTES Commonwealth v. Eldred: A Second Bite of the Apple ................. Delbert K Pruitt 133 Owens-CorningFiberglas Corp. v. Golightly: A Lost Opportunity for the Kentucky Supreme Court .......................... James R. Kareth 159 A PRACTITIONER'S ANALYSIS OF THE LOSS OF PARENTAL CONSORTIUM IN KENTUCKY by Susanne Cetrulo' INTRODUCTION It has now been almost two years since the Kentucky Supreme Court rendered its "first impression" opinion in Giulianiv. Guiler2 In that case, of course, the supreme court of this Commonwealth recognized a claim on behalf of minor children to recover for the loss of parental consortium when a parent is killed? In a recent case note in theNorthernKentucky Law Review,4 the author set forth a detailed analysis of the Giuliani decision in terms of its recognition of the right to recover for a cause of action that had not been previously recognized by the legislature of this Commonwealth 5 The purpose of this article, however, is not to examine the court's justification for the decision or its invasion of the province of the legislature. Rather, the purpose is to look at how the decision has impacted upon the practitioner, how it is being interpreted by the trial courts, and to analyze other claims and issues that might arise or arguably be presented as a result of the Giuliani decision. 1. Susanne Cetrulo is a partner in the law firm of Ware, Bryson, West & Kummer in Edgewood, Kentucky. She graduated from Morehead State University in 1981 and Salmon P. Chase College of Law in 1984. She served as a staff attorney with the Kentucky Court of Appeals until 1991 and has been in private practice in Kentucky and Ohio since 1991. Her litigation practice includes both insurance defense and plaintiff personal injury and wrongful death cases. 2. 951 S.W.2d 318 (Ky. 1997) (Cooper, J., dissenting). 3. Id. 4. See Jamie M. Ramsey, Note, Giuliani v. Guiler: Stealing the General Assembly's Thunder, 25 N. KY. L. REV. 445 (1998). 5. Id This treatise is an excellent analysis of the Kentucky Supreme Court's usurpation of a legislative function. NORTHERN KENTUCKY LA W REVIEW [Vol. 26:1 REVIEW OF GIULIANI The Giulianicase was essentially a medical malpractice case that resulted in a wrongful death action' Mrs. Giuliani died at the age of thirty- three during the labor and delivery of her fourth child. That child, and her other three minor children, were named as plaintiffs for a claim of loss of parental consortium through their father, as next friend.' In addition, their father filed a claim for wrongful death as the administrator of his wife's estate and filed his own claim for loss of consortium.9 At the trial court level, the loss of consortium claim on behalf of the children was dismissed 10 by summary judgment. Although the wrongful death claim was not yet decided, the plaintiffs persuaded the trial court to allow the summary judgment to be final and appealable." The court of appeals allowed this appeal from the dismissal of the children's claim and affirmed the same, claiming itself bound by longstanding precedent not allowing any recovery by the minor children."z In the court of appeals' decision affirming the trial court, the court encouraged the "[s]upreme [c]ourt to revisit this issue in light of modem developments in this area of the law."' 3 Of course, the Kentucky Supreme Court accepted discretionary review and held that children should hereafter be permitted to bring loss of consortium claims to recover from a negligent wrongdoer for the loss of affection of their paren'.4 As set forth previously, what that decision means for the practitioner in the Commonwealth of Kentucky is the focus of this article. 6. See Giuliani, 951 S.W.2d at 318. 7. Id. 8. Id. 9. Id. 10. Id.at 319. 11. Id. 12. Id. 13. Id. 14. Id.at 320. 1999] LOSS OF PARENTAL CONSORTIUM ANALYSIS In recognizing this new right of action for loss of parental consortium, the Kentucky Supreme Court noted the trend toward recognition of this claim found in other states. 5 The court pointed out that since 1977, fifteen courts and two state legislatures had recognized the claim for loss of parental consortium on behalf of the children'.6 The court did not address, however, the issue of whether a child's loss of parental consortium should be considered derivative of a parent's wrongful death action or a separate, independent claim. In theory, the Giuliani case essentially holds that the loss suffered by each child is "separate and distinct" from the loss of any siblings and from the loss suffered by another parent. "I In practice, however, the question generally becomes one of whether the recognition of a child's claim entitles the plaintiffto "per accident" policy limitations in the standard liability insurance policy, or whether that child's claim is derivative and limited to the "per person/per injury" provisions. The Giulianidecision was silent on this issue, and that has become one of the new battlegrounds for practitioners under the decision." A. A Derivative Claim or a SeparateRecovery? In many, if not most, of the cases in which the claim for loss of parental consortium will be asserted, there are automobile or other liability policies and/or uninsured or underinsured motorist policies available. Most of those standard insurance policies contain limitations in terms of the persons involved in the accident, with a specified sum being available if one person is injured, and an additional limitation on coverage where more than one person is injured in the same accident. The "per 15. Id.at 319-20. 16. Id.at 320. 17. Id. Interestingly, the court had declined to recognize this argument just two years earlier in Adams v. Miller, 908 S.W.2d 112, 116 (Ky. 1995) (citing Louisville & N.R. Co. v. Eakins' Adm'r, 45 S.W. 529, 530 (Ky. 1898) (damages recoverable in a wrongful death action have been clearly defined and limited to the destruction of the decedent's earning power)). 18. It is believed that several cases are pending throughout the state on this issue. The author is currently involved in such a case, Reed v. Allstate & Daley, No. 98-CA-001810 (Ky. Ct. App. 1998), now on appeal before the Kentucky Court of Appeals. NORTHERN KENTUCKY LAW REVIEW [Vol. 26:1 accident" and "per person" limitations have been analyzed in numerous courts throughout the country where it has been asserted that the claims of minor children of an accident victim should entitle those children to the "per accident" coverage.' 9 It appears the majority of the courts which have addressed this issue have concluded that the loss of services or consortium claim falls within the "per person" limit applicable to the bodily injured or deceased person.2" 1. The StandardInsurance Policy Provision The standard automobile insurance policy will contain language regarding limits of liability for each person, such as "the maximum amount we will pay for damages arising out of bodily injury for one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury . .2 Additionally, such policies will generally define "bodily injury" as "physical or bodily injury, including sickness, disease, or death sustained. '22 As stated previously, the majority of courts which have addressed policies containing similar limiting language have concluded that the child's consortium claim, like a spousal consortium claim, is derived from the injuries of the single person and is, therefore, subject to the "per person" limits of such policies.23 There is precedent for such a determination to be made in this Commonwealth under a case dealing with the spousal consortium claim. In Moore v. State Farm Mutual. Insurance Company,24 a woman's husband was seriously injured in an automobile accident and he recovered the "per person" limits for his injury. 5 The spouse then brought a separate claim for loss of consortium of her husband resulting from his bodily injuries. 6 The policy in Moore, contained the following language in its "per person" limits 1.9. See Jane M. Draper, Annotation, Consortium Claim of Spouse, Parent or Child of Accident Victim as Within Extended Per Accident Coverage Rather Than Per Person Coverage ofAutomobile Liability Policy, 46 A.L.R.4th 735 (1987). 20. Id. 21. MILLER'S STANDARD INSURANCE POLICIES ANNOTATED (4th ed. 1995) (personal auto policy). 22. Id. 23. See Draper, supra note 19. 24. 710 S.W.2d 225 (Ky. 1986). 25. Id. 26. Id. at 226. 1999] LOSS OF PARENTAL CONSORTIUM of liability: "[f]or all damages arising out of bodily injuries sustained by one person.""' Because State Farm had already paid the policy limits to the physically injured spouse, the court held that the "per person" dollar limitation applied to all claims for damages arising out of the husband's physical
Load more

Recommended publications
  • Wrongful Death Claim in the Jackson County Circuit Court on May 25, 1972
    Missouri Law Review Volume 42 Issue 3 Summer 1977 Article 13 Summer 1977 Wrongful Death Statute-Limitation of Actions-Period within which Beneficiary Must Sue Still Strictly Construed Mary C. Doesburg Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Mary C. Doesburg, Wrongful Death Statute-Limitation of Actions-Period within which Beneficiary Must Sue Still Strictly Construed, 42 MO. L. REV. (1977) Available at: https://scholarship.law.missouri.edu/mlr/vol42/iss3/13 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Doesburg: Doesburg: Wrongful Death Statute-Limitation of Actions MISSOURI LAW REVIEW [Vol. 42 Canadian and Australian courts have held the above arguments to be sufficient basis for recognition of per quod servitium amisit without the Hambrook limitation. A recent Canadian case, not involving a menial or domestic servant, added an interesting modification to the interpretation of "loss of services." Reasoning that loss of profits to an employer due to injury to his servant is unforeseeable to the negligent defendant, the court in Genereux v. Peterson, Howell & Heather (Canada) Ltd.,26 refused to allow damages for loss of profits and limited the defendant's liability to payment to the employer of the amount spent in acquiring substitute services. This limitation is one that the Missouri court and other American jurisdictions rejecting per quod would do well to consider.
    [Show full text]
  • No. 89291 in the SUPREME COURT of MISSOURI DALE LAWRENCE, Individually and As the Personal Representative of the Estate of DORO
    No. 89291 IN THE SUPREME COURT OF MISSOURI DALE LAWRENCE, individually and As the personal representative of the estate of DOROTHY LAWRENCE Plaintiff/Respondent, v. BEVERLY MANOR, a Missouri corporation, Defendant/Appellant. APPELLANT’S SUBSTITUTE BRIEF Appeal from the Circuit Court of Jackson County, Division 18; Honorable Jon R. Gray; Cause No. 04CV237251 After Opinion by the Missouri Court of Appeals Western District; Cause No. WD67920 Sandberg, Phoenix & von Gontard Stephen M. Strum, #37133 Jeffrey L. Dunn, #51748 Jon W. Jordan, #58978 One City Centre, 15th Floor St. Louis, MO 63101-1880 (314) 231-3332 (314) 241-7604 (Fax) Attorneys for Defendant/Appellant APPELLANT REQUESTS ORAL ARGUMENT TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................i TABLE OF AUTHORITIES.................................................................................................iv JURISDICTIONAL STATEMENT.......................................................................................1 FACTUAL BACKGROUND/PROCEDURAL HISTORY ..................................................3 STANDARD OF REVIEW....................................................................................................5 POINTS RELIED ON ............................................................................................................6 ARGUMENT..........................................................................................................................8 I. THE TRIAL COURT
    [Show full text]
  • Oregon Supreme Court Lays Down the Law on the Product Liability Statute of Limitations by Michael “Sam” Sandmire, Partner, Litigation Group and Sara L
    Oregon Supreme Court Lays Down the Law on the Product Liability Statute of Limitations By Michael “Sam” Sandmire, Partner, Litigation Group and Sara L. Tait, Law Clerk, Litigation Group October 2002 In a little over a year, the Oregon Supreme Court has issued a trilogy of major interpretations of Oregon’s product liability statutes: Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001); Kambury v. Daimlerchrysler Corp., 334 Or 367 (2002); and Griffith v. Blatt, 334 Or 456 (2002). All three of the decisions have focused on statutory construction, and the results demonstrate the reluctance of Oregon’s highest court to insert common law precepts into the product liability statutory scheme. The cases further spotlight the continuing struggle to identify the contours of Oregon’s product liability law, which arguably encompasses far more than the doctrine of strict liability. In Gladhart, the Court interpreted ORS 30.905(2), the “product liability” statute of limitations. 332 Or at 229. ORS 30.905(2) mandates that a product liability action “shall be commenced not later than two years after the date on which the death, injury, or damage complained of occurs.” The Court rejected the application of the “discovery rule” to this statute, noting that “[a] discovery rule cannot be assumed, but must be found in the statute of limitations itself.” Id. at 230. In the absence of explicit language that the statute runs upon “discovery” or “accrual,” the Court concluded that “[t]he words ‘death, injury, or damage’ [as] used in ORS 30.905(2) refer to events, not to abstractions or ideas.
    [Show full text]
  • NOTICE: SLIP OPINION (Not the Court's Final Written Decision)
    NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. ~-his opinion was filed for record /FI~E at on li)L m CL~RKG OFFICE ~ 8:00 ~ Oc!-L, y SlJP'REM~ COt.:fl.T, STATE Of V¥ASHING1'0N ~- OCi" i.l G 2il16 ~ /1 IAA ~ ~~ ·/J nlet ,~;.
    [Show full text]
  • Case 3:17-Cv-01532-M Document 27 Filed 02/09/18 Page 1 of 17 Pageid
    Case 3:17-cv-01532-M Document 27 Filed 02/09/18 Page 1 of 17 PageID <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRIDGET ALEX, individually and on § behalf of the ESTATE OF BRANDON § ALEX, and JASHAWN ALEX, § § Plaintiffs, § § § Civil Action No. 3:17-cv-01532-M v. § § T-MOBILE USA, INC., T-MOBILE US, § INC., formerly known as MetroPCS § Communications, Inc., and METROPCS § MIDWAY RD., § § Defendants. § MEMORANDUM OPINION AND ORDER Before the Court is T-Mobile USA, Inc. and T-Mobile US, Inc.’s Motion for Judgment on the Pleadings, (ECF No. 8), and Motion for Leave to File Notice of Subsequent History, (ECF No. 22). For the reasons stated below, the Motion for Leave is GRANTED, and the Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART. I. Factual and Procedural Background On March 11, 2017, Brandon Alex was injured when he “rolled off the daybed and onto the floor.” (Original Pet. ¶ 27, ECF No. 1). Michelle Cohen, his babysitter, found him “grasping and barely breathing.” (Id.) Ms. Cohen repeatedly dialed 9-1-1 from her cellphone, but was placed on hold each time. (Id. ¶ 28). Collectively, Ms. Cohen was placed on hold for more than forty minutes. (Id.) Unable to connect to the 9-1-1 dispatcher, Ms. Cohen contacted Brandon Alex’s mother, Bridget Alex, who later drove him to an emergency room. (Id. ¶¶ 31, 76). Unfortunately, Brandon Alex was pronounced dead on arrival at the hospital. (Id.) 1 Case 3:17-cv-01532-M Document 27 Filed 02/09/18 Page 2 of 17 PageID <pageID> Brandon Alex’s parents, Jashawn and Bridget Alex, instituted this action in the 101st Judicial District, Court of Dallas County, Texas, against T-Mobile USA, Inc.
    [Show full text]
  • A Guide to Wrongful Death Claims in Iowa by Brad J
    Table of Contents 1. What is a “wrongful death claim”?............................................................................................. 2 2. Who may recover compensation for a wrongful death? ............................................................. 3 3. How is a wrongful death claim commenced?............................................................................. 4 4. What types of losses are compensated in wrongful death actions? ............................................ 6 a. Pre-death injuries and claims:.......................................................................................... 6 b. Lost accumulated value of the estate and burial expenses............................................... 6 c(1). Spousal Support ............................................................................................................... 7 c(2). Support – Children........................................................................................................... 7 c(3). Spousal Consortium......................................................................................................... 8 c(4). Parental Consortium......................................................................................................... 8 5. What is the relationship between a wrongful death lawsuit and a criminal prosecution against the person causing the death? ......................................................................................................... 9 6. What are the time limits for bringing a wrongful
    [Show full text]
  • Untimely Death of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims from the Arbitral Forum, An
    Journal of Dispute Resolution Volume 2008 Issue 2 Article 11 2008 Untimely Death of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims from the Arbitral Forum, An Christopher D. Vanderbeek Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Christopher D. Vanderbeek, Untimely Death of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims from the Arbitral Forum, An, 2008 J. Disp. Resol. (2008) Available at: https://scholarship.law.missouri.edu/jdr/vol2008/iss2/11 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Vanderbeek: Vanderbeek: Untimely Death of Wrongful Death Claims An Untimely Death of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims from the Arbitral Forum Peters v. Columbus Steel Castings Co.' I. INTRODUCTION Consider the life and death of Bob.2 Due to his employer's negligence, Bob is severely injured at work. As soon as that injury occurs, a legal action for per- sonal injury arises, and Bob may sue the wrongdoer (his employer). However, when Bob dies as a result of his injuries, his one claim becomes two. The first is a survival action, which derives from common law and now exists in the statutory codes of virtually all jurisdictions 3 and allows Bob's representative to bring on Bob's behalf any claims he had against his employer.4 The second is a wrongful death action, which did not exist at common law; it came only through statutory enactment.
    [Show full text]
  • Case 2:16-Cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 1 of 28
    Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 1 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION NELLIE RUTH GUNN, individually ) and as Administratrix of the Estate of ) Gregory Gunn, Deceased, ) ) Plaintiff, ) ) v. ) CASE NO. 2:16-CV-557-WKW ) (WO) CITY OF MONTGOMERY, ) ALABAMA, et al. ) ) Defendants. ) MEMORANDUM OPINION AND ORDER On March 2, 2017, Defendant Aaron Cody Smith filed a motion to dismiss. (Doc. # 42.) On January 24, 2018, the Magistrate Judge filed a Recommendation that the motion be granted in part and denied in part. (Doc. # 55.) On February 7, 2018, objections were filed by Defendants City of Montgomery and Ernest N. Finley, Jr. (Doc. # 56), Defendant Smith (Doc. # 57), and Plaintiff Nellie Ruth Gunn (Doc. # 58). Upon an independent and de novo review1 of those portions of the Recommendation to which objection is made, the Recommendation is due to be adopted. See 28 U.S.C. § 636(b). 1 A district judge makes a de novo determination of those portions of the report to which objection is made. The district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b)(3). Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 2 of 28 I. STANDARD OF REVIEW A. Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction Federal courts are courts of limited jurisdiction.
    [Show full text]
  • Means, of Course, That Not All of Union Pacific's Opposition to Manuela's
    Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/28/2021 01:26 AM CDT 78 282 NEBRASKA REPORTS means, of course, that not all of Union Pacific’s opposition to Manuela’s motion to compel was substantially unjustified.101 In other words, even if some of Union Pacific’s conduct was an “abuse” of the civil discovery procedures, not all of it was. Given that finding, the district court did not abuse its discretion in reducing the attorney fees that Manuela requested for the hearing on her motion to compel. IV. CONCLUSION For the foregoing reasons, we conclude that the district court erred in dismissing Manuela’s wrongful death claim. As to that claim, the court’s judgment is reversed, and the cause remanded for further proceedings consistent with this opinion. But we conclude that the court correctly entered summary judg- ment against Manuela’s fiduciary duty claim, and we affirm the court’s judgment in that respect. We affirm the protective order and award of attorney fees. And finally, we neither affirm nor reverse the court’s rulings on Manuela’s motions to compel; instead, we direct the court upon remand to revisit any discov- ery issues that the parties continue to dispute. AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS, AND IN PART REMANDED WITH DIRECTIONS. 101 See Greenwalt, supra note 99. STATE OF NEBRASKA, APPELLEE, V. HERCHEL HAROLD HUFF, APPELLANT. 802 N.W.2d 77 Filed August 26, 2011. No. S-10-562. 1. Double Jeopardy: Lesser-Included Offenses: Appeal and Error.
    [Show full text]
  • Wrongful Death Actions Under Section 1983
    Touro Law Review Volume 19 Number 3 Excerpts from the Practicing Law Institute's 18th Annual Section 1983 Civil Rights Article 7 Litigation Program 2003 Wrongful Death Actions Under Section 1983 Martin A. Schwartz Touro Law Center, [email protected] Steven Steinglass Richard Emery Ilann Margalit Maazel Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Civil Rights and Discrimination Commons, and the Litigation Commons Recommended Citation Schwartz, Martin A.; Steinglass, Steven; Emery, Richard; and Maazel, Ilann Margalit (2003) "Wrongful Death Actions Under Section 1983," Touro Law Review: Vol. 19 : No. 3 , Article 7. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol19/iss3/7 This Selected Excerpts: Practising Law Institute's Annual Section 1983 Civil Rights Litigation Program is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Schwartz et al.: Wrongful Death Actions WRONGFUL DEATH ACTIONS UNDER SECTION 1983 A Roundtable Dialogue 2 Professor Martin A. Schwartz,' Dean Steven Steinglass, Richard Emery, Esq.,' and Ilann Margalit Maazel, Esq.4 With comments by: Professor Erwin Chemerinsky and Honorable Victor Marrero Moderated by Honorable George C. Pratt B.B.A., Cum Laude, 1966, City College; J.D., Magna Cum Laude, 1968, Brooklyn Law School; LL.M., 1973, New York University. Professor Schwartz is the author of a bimonthly column in the New York Law Journal titled "Public, Interest Law," and has lectured for the Practising Law Institute and is co- chairman of its annual Supreme Court review and § 1983 litigation programs.
    [Show full text]
  • The Value of a Parent-Child Relationship: Should Adult Children
    Marquette Law Review Volume 86 Article 4 Issue 3 Winter 2002 The alueV of a Parent-Child Relationship: Should Adult Children in Wisconsin be Permitted to Recover for Loss of Companionship of a Parent Who has Died at the Hands of a Nursing Home? Stacy E. Buening Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Stacy E. Buening, The Value of a Parent-Child Relationship: Should Adult Children in Wisconsin be Permitted to Recover for Loss of Companionship of a Parent Who has Died at the Hands of a Nursing Home?, 86 Marq. L. Rev. 541 (2002). Available at: http://scholarship.law.marquette.edu/mulr/vol86/iss3/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE VALUE OF A PARENT-CHILD RELATIONSHIP: SHOULD ADULT CHILDREN IN WISCONSIN BE PERMITTED TO RECOVER FOR LOSS OF COMPANIONSHIP OF A PARENT WHO HAS DIED AT THE HANDS OF A NURSING HOME? I. INTRODUCTION Until recently, litigation involving nursing homes has been sparse, especially in Wisconsin.' However, more than 1.5 million Americans are admitted to nursing homes each year, and studies indicate that as the "baby boom" generation reaches the age of sixty-five, the elderly population will increase resulting in a growing demand for extended- care facilities.2 With the increased maturation of the United States population and the resulting increased dependence on nursing home care, there will undoubtedly be an "increase[d] 3 need for quality nursing care." Today, many extended-care facilities overwork their employees and fail to adequately supervise their staff, resulting in patients often being left without basic care.4 Thus, it will not be uncommon for much of the 1.
    [Show full text]
  • IN the SUPREME COURT of TENNESSEE at NASHVILLE February 8, 2017 Session
    IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 8, 2017 Session LINDA BEARD v. JAMES WILLIAM BRANSON, ET AL. Appeal by Permission from the Court of Appeals Circuit Court for Houston County No. 1368 Robert E. Burch, Judge ___________________________________ No. M2014-01770-SC-R11-CV – Filed August 30, 2017 ___________________________________ We granted permission for this appeal to determine whether a surviving spouse who files a wrongful death lawsuit is acting as a legal representative of the decedent and whether a wrongful death lawsuit filed pro se by the surviving spouse is void ab initio based on the spouse’s pro se status. In this case, the decedent’s surviving spouse filed a pro se wrongful death health care liability lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, the spouse retained an attorney and filed an amended complaint. In the ensuing discovery, the defendants learned that the decedent had two daughters, both of whom were statutory beneficiaries in the wrongful death action. The defendants filed motions for summary judgment. They argued that the spouse’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio; thus, the filing of the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was time-barred. The trial court denied the summary judgment motions and permitted the amended complaint to relate back to the date of the initial pro se complaint.
    [Show full text]