U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Recently in Injury & Tort Law Category

An inmate in a Colorado state prison is suing after being raped and abused, presumably by another inmate, while in custody. The inmate is a transgender individual that identifies as a woman, but she is nevertheless housed in a men's prison.

Before the rape occurred, the inmate sought the protection of the court against a disciplinary transfer. The had been housed in that unit before, and was assaulted. Unfortunately for the inmate, the court did not find her past experiences merited overturning the prison officials' disciplinary decisions. Sadly, the rape occurred in the unit that the inmate was seeking not to be sent to.

Court: Plaintiff Can't Prove Benzene Caused Leukemia

The U.S. Tenth Circuit Court of Appeals turned down a leukemia victim who said a refinery gave her cancer.

In Hall v. Conoco, Samantha Hall sued Conoco for strict liability and negligence, alleging the company's refinery emitted cancer-causing benzene into the air where she grew up. A trial judge excluded her expert witness, however, saying the doctor's opinion was unreliable.

The expert said benzene particles potentially caused her disease, but did not rule out an unknown cause of the cancer. So it turns out what you don't know really can hurt you.

Coal Dust, Not Smoking, Caused Worker's Death, Court Rules

Bradford McClean spent almost half his life working in coal mines.

By the time he quit, doctors said less than one-third of his lungs were working. He claimed benefits under the Black Lung Benefits Act, then he died.

His widow continued with the claim, but McClean's employer said he died from smoking -- not black lung disease.

While taking a beginners ski lesson from an unlicensed, non-certified, instructor from a Vail Summit Resorts employee, Dr. Brigance was instructed to use a ski lift. When trying to get off the lift, her ski boot became stuck.

Rather than stopping the lift, the employee running it only slowed it down, apparently, per resort policy. This resulted in Dr. Brigance suffering a complex fracture to her femur. After filing an injury lawsuit in the federal district court (on diversity grounds as Dr. Brigance hails from Florida and the surgeries alone were about triple the $75,000 jurisdictional limit), the doctor's complaint was dismissed, partly on a motion to dismiss, and the remainder on summary judgment, as a result of the liability waiver she signed for the lesson and the waiver on the back of her ski lift ticket.

Gas Case Blows Up Over Attorney's Fees

Gas expands as it heat ups, which basically explains the complex class-action In Re. Motor Fuel Temperature Sales Practice Litigation.

According to Judge Nancy Moritz of the U.S. Tenth Circuit Court of Appeals, the years of litigation were born of simple physics: when consumers buy gas at higher temperatures, they may get less bang for their buck.

The parties ultimately settled, providing mechanisms to remedy the wrong at the gas pump. But some of the settlements blew up because of another explosive issue: class-action attorney's fees.

Former Oklahoma Senate Leader Must Be Resentenced, 10th Circuit Orders

Michael Morgan, an Oklahoma attorney and former leader of the Oklahoma Senate was sentenced in 2012 to probation arising out of a charge bribery. Since the Tenth Circuit found that the punishment was "grossly at odds" with sentencing guidelines, he will now be resentenced. Basically, the Tenth Circuit determined that the lower court gave the defendant an easy pass.

When Michael Morgan was convicted for bribery, the jury acquitted him of about 60 other criminal counts. Morgan asked for a new trial alleging that the prosecution failed to disclose "tacit agreements" with a witness, insufficiency of evidence and failure to properly instruct the jury. Unfortunately for him, the 3 judge-panel disagreed and found that the jury's conviction of Morgan was based on sufficient factual evidence and further described the trial court's order of Morgan's probation as "little more than a slap on the wrist."

An Air Force Captain and her family cannot plead their way around hurdles to suing the federal government, the Tenth Circuit reluctantly found last week. After Captain Heather Ortiz suffered negligent treatment at a military hospital during her pregnancy, her husband and child sued. However, the government cannot be sued for that negligence, the court found.

Under a 1950 Supreme Court decision, Feres v. United States, military service members are barred from suing the government under the Federal Tort Claims Act. That Heather Ortiz was not named as a plaintiff made no difference, since the in utero injuries claimed were to her. The court made it clear that it disagreed with the precedent, describing it as overbroad and unfair, but had no choice except to uphold it.

This is a case about a fax. In 2008, well after the rest of the world had retired its fax machines, Custom Mechanical Equipment faxed CE Design an unsolicited advertisement, perhaps because their carrier pigeon had the day off. CE Design reacted proportionately -- by filing a class action lawsuit.

Custom's insurer, Emcasco, refused to defend the junk faxers, not just because they were embarrassed to represent a company that advertised via fax. They also didn't believe Custom's policy required them to defend or indemnify Custom for the junk faxes. They were right, the Tenth Circuit ruled this week.

A Colorado couple can sue Jack Nicklaus for intentional misrepresentation over a failed luxury golf development, the Tenth Circuit has ruled. The couple, Jeffrey and Judee Donner, who invested $1.5 million in a luxury golf resort, did so at least in part because of claims that one of the greatest professional golfers of all time, Jack Nicklaus, would both design the course and have a house in the development.

When the $3 billion project went belly up, the Donners sued. The Tenth Circuit overturned the dismissal of their case in district court, allowing them to continue pursuing claims that Nicklaus and his company intentionally misrepresented the golfer's relationship with the development.

Evenflo Car Seat Defect Case Remanded for New Trial

Four-month-old A.H. was severely injured when his Evenflo car seat broke apart, sending the seat -- and A.H. -- hurtling into the back of the car driven by his mother.

A.H.'s father, Tony Hadjih, sued Evenflo on a theory of design defect and failure to warn, as Evenflo knew the two-piece car seat had a tendency to separate during accidents. Even so, the court directed a verdict in favor of Evenflo on the failure to warn claim, and a jury returned a verdict in favor of Evenflo on the design defect claim.

The Hadjihs appealed on these issues and on allowing into the trial a videotaped deposition of a defense witness.