State Government Websites

The following websites are for the State of Alabama:

(1) State of Alabama Constitution is located at http://www.alabamainteractive.org/alabamainteractive_shell/Welcome.do?url=http://www.legislature.state.al.us/ALISHome.html .

(2) State of Alabama Supreme Court is located at
http://www.alabamainteractive.org/alabamainteractive_shell/Welcome.do?url=http://judicial.alabama.gov/.

(3) State Code of Alabama (statutes) is located at http://www.alabamainteractive.org/alabamainteractive_shell/Welcome.do?url=http://www.legislature.state.al.us/ALISHome.html .

The State of Florida Websites are as follows:

(1) State of Florida Constitution is located at http://www.leg.state.fl.us/Statutes/index.cfm?Mode=Constitution&Submenu=3&Tab=statutes&CFID=79745718&CFTOKEN=70415616 .

(2) State of Florida Supreme Court is located at http://www.floridasupremecourt.org/ .

(3) State of Florida Statutes is located at http://www.leg.state.fl.us/Statutes/index.cfm?Mode=View%20Statutes&Submenu=1&Tab=statutes&CFID=79745718&CFTOKEN=70415616

Notice the State of Alabama has all their government located on one website. It was easy to navigate and gave clear and concise instructions or tabs indicating exactly where all the offices are located and a website link all on the same page. The State of Florida I had to go through many avenues and several searches to find the websites. But once there it was extremely easy to navigate.

DA Hits Teenager's Car

According to (youtube) notes a teenager was hit by the DA and he left the scene. The teenager followed him and called 911 to have him pulled over. The DA refused the breathalyzer test and was forcibly removed from his car. The DA was eventually arrested but was not detained in a jail cell. I believe there are certain lines that have to be drawn when it comes to “prominent person” or “celebrities”. According to Buckley and Orent (2004), Prosecutors and judges acting in the scope of their positions are privileged and immune from liability for their actions. If this were not so, no one would accept such a position. It is inherent in these positions to occasionally intentionally injure someone mentally, emotionally, and by reputation. Prosecutors are charged with the responsibility of proving bad things about bad people. Liability for their mistakes would have a chilling effect on their performance; that is, they would be too afraid of making a mistake and thus err against social benefit. Judges must make decisions that intentionally injure persons and property. Again, without privilege and/or immunity, there would be a chilling effect that would render judges afraid to make a decision for fear of being wrong. Therefore, public policy has always been to allow these persons immunity from liability in the honest performance of their positions and the privilege to act accordingly. As a practical matter, the public officer immunity defense is not commonly litigated. The power of its protection precludes intentional tort recovery in most cases.

Did you read “In the scope of their positions”. Of course they should not be brought to court on any civil action that they performed in the line of their positions, but this was not during “office hours”. I believe, performing your duties as an officer of the State does not include going out and driving while intoxicated. Celebrities, no they should not be treated different than any other person, other than putting them in a separate cell. I believe criminals are apt to try something like blackmail because they know Celebrities have money.

W. Buckley & C. Orent 248 Torts and Personal Injury: Third Edition. (Canada: Delmar Learning 2004)


Connecticut Supreme Court Judge Hits State Trooper Car

http://www.youtube.com/watch?v=0HvbiECOAdY&feature=channel_page

Connecticut Laws on driving under the influence can be found at
Conn. Gen. Stat. § 248 (1963), under sections 14-227(a)(b).

The website is http://cga.ct.gov/2009/pub/chap248.htm

State Laws: Child Support, Why Men Run

Men run from states enforcing strict child support laws. These laws drive men into doing things they normally would not do. Men face prison if they do not pay the child support the court orders, even if he is not the biological father. Child support, paternity, and outdated laws are in controversy in the courtrooms.

State laws have differing amounts of child support. Take Alabama and Florida. The difference in paying for one child in Alabama, (Venohr, 2007) and one child in Florida,(Fla. Stat. § 61.30, 2008) with income of $979 per month is $734. Child support can become a huge burden and depends on which state the child lives in. Most men paying the support have acquired new families. This burden affects not only the child in the previous marriage but in the new marriage as well. According to child support guidelines a child in Florida needs $734 more a month than a child in Alabama. There is a slight increase in living expenses in Florida than Alabama, but Florida believes it takes 29% more to live there. Laws need more regulation to reflect an overall economic need for children. This is one factor of many why men become deadbeat parents. As in the case of Monts, Defendant-Appellant James Arthur Monts, Jr.
Was convicted by a jury of two counts of failure to pay child support obligations in violation of the Child Support Recovery Act (“CSRA”), 18 U.S.C. § 228(a)(1) (Count 1), and the Deadbeat Parents Punishment Act (“DPPA”), 18 U.S.C. § 228(a)(3)Count 2), (collectively, § 228(a)). He was sentenced to a term of imprisonment of 15 months followed by one year of supervised
release on Count 2 and a term of probation of five years on Count 1, each count to run concurrently. The court also ordered him to pay restitution of $66,415.56, (United States v. Monts, 2002). Because many states do not allow the father the opportunity of catching up the payments in a reasonable manner, most faced with this daunting process will run and hide rather than face the state’s strict laws of losing their license, going to jail and a bad credit report.

Many states still have the ancient law first established in England in the 1600’s. These laws assume a child born in a marriage is the legitimate child of that marriage. Women have been unjustly paid in receiving child support for a child from a father they know cannot possibly be the biological father. Women know if there is a possibility that another man can be the father. In one such case reported in The American Journal of Family law “… the husband alleged that the wife had intentionally and willfully concealed the fact that another man was the child’s biological father” (American Journal of Family Law, 2003). Contrary to belief men have emotions, and they are bruised and battered emotionally when they find out they are not the biological father of a child. In USA Today Kasindorf states “Obviously, there’s more to fatherhood than genes...however to pay support on a non-biological offspring should be an individual choice, not ordered by the courts,”(Kasindorf, n.d.).

Outdated laws in many states have caused more harm than they intended when they were first put into effect. These laws were intended to help a child by stating a child born of a marriage is the legitimate child of that marriage. Gilding (2004) wrote about outdated laws in Family Matters, “…there was a marital presumption, if a husband, not physically incapable, was within the four seas of England during the period of gestation, the courts would not listen to evidence casting doubt on his paternity”. State Laws have neglected men who were married and trying to support a good home for a child. Some of these men then end up with another man’s child to support. Many states have laws on how a child is legitimized if born outside of marriage. The men subject to this law have a better chance getting a paternity test done on a child than the men who were married to the women. These laws allow women to go out and break the law by committing fraud and get compensated for it. This also affects a man’s constitutional rights of equal protection of the laws.

These issues are only a part of many problems why there are dead beat dads running from the system. The court system is a mechanical thing. It has no heart and only decides based on the laws of the state and federal government. These laws are outdated and show no constitutional following for equal protection of the laws. Amendment XIV states the following:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws, (U.S. Const. amend. XIV).

There is hope, legislatures in more than 40 states have reviewed the child support and paternity laws for their states and have, or are in, the process of restructuring the laws to accommodate the new century. The old laws do not hold up in this century of ever changing knowledge and technology.

References

Does Res Judicata Bar Tort Claims for Misrepresenting Paternity? (2003) American Journal

of Family Law. Retrieved December 16, 2008, from Academic Search Premier database.

Florida Statutes Title VI, § Ch 61.30, (2008)

Gilding, M. (2004). DNA paternity testing without the knowledge or consent of the mother.

Family Matters, Retrieved December 16, 2008, from Academic Search Premier database.

Kasindorf, M.(n.d.). Men wage battle on 'paternity fraud'. USA Today, Retrieved December 16,

2008, from Academic Search Premier database.

United States v. Monts, 311 F.3d 993, 995 (10th Cir. Okla. 2002), Retrieved January 13, 2009,

from LexisNexis United States Constitution Amendment XIV, Retrieved January 27, 2009

from http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

Venohr, J., Ph.D. (2007) Center for Policy Research, Retrieved January 21, 2008 from

http://www.alacourt.gov/pdfppt/AL_guideline_sched_aug_24.pdf

COPYRIGHT Paralegal's Opinion

Opinion Intentional Torts

Mr McPhillen was sitting at a bar. He noticed a man bother a woman. He kept yelling and screaming at her. The woman just kept her head down and ignored him. The man went up to her and grabbed her arm. Mr. McPhillen grabbed the man and twisted his arm back and made him sit down. When he asked the women if she was ok she said "yes that is my husband".

In this case summary this represents intentional torts. I will first start with the charges that Mr. McPhillen could have brought against him by the man in the bar and his defenses.
Leroy McPhillen could be charged with assault and battery because he used both on the man in the bar. Verbal threats and physical action both were used. Mr. McPhillen also can be charged with forced imprisonment as he threatened to harm the man if he got up from the chair he put him in. Although this may seem as if the man could get up there was still the threat that he would be hit if he did.

The defenses Mr. McPhillen have are the man grabbed the woman’s wrist Mr. McPhillen used the necessary force to prevent the attack on her. He thought the woman was going to be attacked by the man because he was shouting obscenities at the woman and started approaching her.

Defense of persons: A defense to the intentional torts of assault, battery, and false imprisonment. Its elements include the use of reasonable force to defend or protect a third party from injury when the third party is threatened by an attacking force. Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 229)

This case would have not gone far as there was a mistake in the fact that Mr. McPhillen did not know at the time, the woman was the man’s wife.
The man’s wife could have charges brought against her husband for assault, battery, infliction of emotional distress and possibly slander. I do not believe the wife’s husband would have any defense in this case. He was drunk and inflicting all these actions as a result.
…for reckless infliction of emotional distress, intent is not essential. The tortfeasor need only know (or reasonably should know) that his or her outlandish or outrageous actions will produce emotional injury. This knowledge element acts as a substitute for intent. Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 112)

I believe the only person in this case that could not bring any charges was Mr. McPhillen. He actually was only protecting the woman but mistakenly so as the man was married to the woman. My thoughts are he should have asked the woman if he was bothering her first and then called the police. Now Mr. McPhillen may be facing assault and battery and trying to defend his actions. Assault and battery in this case could very well end up with the same definition as Pon Lip Chew v. Gilliland.

The use of any unlawful violence upon the person of another, with intent to injure, whatever be the means or degree of violence used, is an assault and battery. When an injury is caused by violence to the person, then intent to injure is presumed and it rests with the person inflicting the injury to show the accident or innocent intention. Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 100 (Tex. 1965)

Mr. McPhillen should not have got involved at all in this little incident but what would us women do without the heros of the world.
References

Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 112 & 229)

Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 100 (Tex. 1965)

Opinion Negligence Action vs Strict Liability

When comparing negligence actions and strict liability actions, there are similar actions that can be construed to be one but actually is the other.
Negligence actions have to be proven. The tortfeasor has a fifty-fifty chance of being found not guilty as the evidence has to prove at least 50% that the tortfeasor is guilty. In a strict liability action the victim does not have to prove negligence.
Negligence is defined as the failure to exercise reasonable care to avoid injuring others or the property belonging to others. Four elements can comprise a negligence cause of action: Duty, breach, causation and damages (Intro to Torts, Unit 4). It is our duty to protect someone from harm, when you breach that duty the cause has to be apparent, it was negligent on the part of the tortfeasor.
Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent,(Smith, 2009).
In this case of Strict Products Liability a woman sues a company that manufactures hip replacement devices;
This action was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, on October 17, 2007. The complaint in this case alleges that Plaintiff Sharon Phillips suffered personal injuries as a result of a defective hip replacement device that was surgically implanted in her body in September 2003. Phillips asserts claims for breach of implied warranty, strict products liability, and negligence against Howmedica, the manufacturer of the hip replacement device. Additionally, Phillips asserts a claim in strict products liability against Defendant Anderson Hospital ("Anderson"), where Phillips underwent the operation in which the defective hip replacement device was implanted in her body in September 2003. … The court held that
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to reach the user or consumer in the condition in which it is sold.(2) The rule stated in subsection (1) applies although(a) the seller has exercised all possible care in the preparation and sale of his product, and(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller, Phillips v. Howmedica Osteonics Corp.
Since the device was defective there was no defense Howmedica could apply except for statute of limitations which can happen in any tort case including negligence.
In the following case you will see that contributory negligence was abolished and comparative negligence used for a vehicle wreck. The differences in strict liability and negligence torts, is the fact that strict liability means you are totally responsible for the tort. As in the case below that is not true for negligence.
Appellant injured parties separately sought review of the appellate court and trial court's judgments, which dismissed appellants' complaint based on the doctrine of contributory negligence. On appeal, appellants contended that the court should abolish the doctrine of contributory negligence and adopt the doctrine of comparative negligence as the law of Illinois. Both lower court judgments were reversed and remanded. The court abolished the common law doctrine of contributory negligence and adopted in its place the doctrine of comparative negligence in its pure form. The court concluded that it was not fair for injured plaintiffs, because of some negligence on their part, to bear the entire burden of their injuries because contributorily negligence barred recovery by a plaintiff who was negligent. The court concluded that the pure form was the only system that truly apportioned damages according to the relative fault of the parties and, thus, achieved total justice. Further, the court held that contributory negligence was a judicially created doctrine, which could be altered or totally replaced by the court, which created it, Alvis v. Ribar.
In conclusion the difference in a negligence action and a strict liability action, I believe, is most strict liability cases are products or services that the tortfeasor manufacturers or delivers. Negligence is usually and action caused by a tortfeasor. Subsection (2)(a) of § 402A, Restatement (Second) of Torts, indicates that the seller is liable regardless of the degree of care used to safeguard the public from injury by the defective product. Subsection (2)(b) states that privity of contract is unnecessary for strict liability to apply, Buckley, W & Okrent, C (2004). In negligence cases, The plaintiff has the burden of proving that the defendant was negligent. This forces the plaintiff to prove by a preponderance of the evidence that all negligence elements existed (duty, breach, causation, and injury). The evidence must establish that the defendant’s actions were negligent and caused the plaintiff’s injuries. Burden of proof is sometimes referred to as burden of production, Buckley, W & Okrent, C (2004).

References

Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 49,296,321,331,335,338)
Kaplan University online Unit 4: Negligence. Retrieved January 28, 2009.
Smith, Craig A., 2009 by lawschoolhelp.com. Retrieved February 2, 2009.
Phillips v. Howmedica Osteonics Corp., 2007 U.S. Dist. LEXIS 92235 (S.D. Ill. Dec. 17, 2007)
Alvis v. Ribar, 85 Ill. 2d 1 (Ill. 1981)

Summary Case Opinion Legal

John Anderson raises rattlesnakes for a medical lab for antivenin. The neighbors are claiming his rattlesnakes have bitten a few children in the last six months and they want him to do something about it. The area is well known for rattlesnakes and Mr. Anderson wants the neighbors to prove the rattlesnakes biting the children are his.
First the neighbors do not have to prove this to get an injunction for him to remove the snakes from his home.
There are several actions that can be brought against Mr.
Anderson, public and private nuisances are considered a mixed nuisance and would be used in this case. The town has an ordinance stating “keeping wildlife is prohibited” so the town can sue him for nuisance per se.
Buckley & Okrent,states the mixed nuisance is both public and private and the definitions for public or private nuisance is:

Public Nuisance: Activity by the tortfeasor
that unreasonably and substantially interferes
with the public’s use and enjoyment of legal
rights common to the public. (p 331 2004)


Private Nuisance: A tort that requires a
showing of special harm to you or your
property and allows the recovery of
damages for the harm as well as
an injunction. (p 321 2004)

Mr. Anderson’s rattlesnakes are dangerous and their venom is deadly. These snakes are obviously getting out of the house and have bitten children. This poses a threat not only to the individuals that live in the neighborhood but also anyone walking or visiting this neighborhood. I would be deathly afraid to be in this neighborhood. Therefore Mr. Anderson is posing a threat to both the public and private sector which make this case a mixed nuisance. Since the town has an ordinance Mr. Anderson can also be charged with nuisance per se which “speaks for itself”, Buckley & Okrent (p. 335, 2004).
The FDA also has regulations regarding antivenin and could be used also,

The Food and Drug Administration regulates
Antivenins as part of its oversight of biological
products. The agency requires certain criteria
to be met before these materials are sold,
including standards for purification, packaging
and potency. The FDA also regulates antivenin
labeling, ensuring that data on potential side
effects and other pertinent information are
available. The agency also periodically inspects
antivenin production facilities to ensure compliance
with regulations. (Henkel 2002)

It seems that Mr. Anderson is in for more than just the nuisance laws. I realize he is selling them to medical companies but does he have the approval of the Federal Government?
An immediate remedy for the nuisances can be an equitable remedy which a court can order Mr. Anderson to abate from the nuisance, or to cease immediately. The court could order an injunctive relief to remove the rattlesnakes from his home.
The court could also order a permanent injunction to keep Mr. Anderson from doing this again. This injunction is defined as:

…abatement orders instructing the defendant
to permanently stop doing the nuisance activity.
They are usually issued after a trial on the merits,
once the Trier-of-fact has concluded that a nuisance
exists. If the defendant fails to obey a permanent
injunction by continuing the nuisance, the court can
punish the defendant by holding him or her in contempt.
This punishment may involve monetary fines or even
imprisonment, Buckley & Okrent (p. 338, 2004).

Monetary damages could be ordered to the children’s parents that were bit by the snakes since they probably had to buy the antivenin from the hospital and nuisance cases will award money to victims who had economic burdens placed upon them by the nuisance.
Even with Mr. Anderson selling the antivenin to a medical supply companies there are federal regulations that have to be followed. The town has an ordinance against keeping wildlife in a home. I believe he will be ordered to remove the snakes and compensate the victims that have been hurt. There are no defenses for Mr. Anderson as this is a clear case of breaking the law and 100% evidence shows he is.

References

Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning (p. 321,331,335,338)
FDA/Office of Public Affairs, For Goodness Snakes!Treating and Preventing Venomous Bites, John Henkel, November 15, 2002, retrieved January 21, 2008 from http://www.fda.gov/Fdac/features/995_snakes.html
Kaplan University online Unit 7 Essay, case summary, retrieved online January 21, 2009.

Opinions on Child Support

I have children that I have received child support and my husband has children that he has paid child support for. Florida will be the state I research and write about including statutes and laws in this area. This topic has a multitude of interesting areas but I believe that my interest lies with most of the laws that are outdated, the men that have to pay child support on a child whose paternity is in question, and the consequences of men who do not pay child support when ordered. There are several issues such as the children’s benefits of child support, and when is it a good time to raise the issue of paternity are topics of controversy in any child support issue. Reading several briefs about the issues of paternity and the benefits of the child support have several merits I believe need to be addressed. There are several debates that I will address in my final project.

Tort Law Opinion

Tort law contrasts with other areas of law in that they are governed by different procedures and the laws themselves are different. There is contract law, administrative law, property law, trust law, criminal law, and several others not mentioned here.

Tort law is governed by the Civil Rules of Procedure and is designed to
compensate victims. It also requires preponderance of the evidence and protects individual interests, Buckley, W & Okrent, C (2004). A tortfeasor commits a crime against an individual. Tort law also allows monetary gains but only with the strength of the evidence on the person being sued. In civil cases proof only has to be more than fifty percent clear and the burden of proof rests with the petitioner unless it is Res Ipsa Loquitur which means the evidence speaks for itself and the respondent must prove otherwise.

A criminal case which is governed by the Rules of Criminal Procedure and states that the proof would have to be clearly evident that the person arrested did the crime. A crime is an offense against the state and society and the state prosecutes these cases. Criminal law allows restitution if there are any costs associated with the criminal act.

One scenario that involves tort law and criminal law is the case of the in-ground pool and the duty to make the pool reasonably safe. If the property owner does not put a fence around his pool, some children that do not have the age to know better, could and possibly would take that as an invitation to swim in the pool. With this comes the responsibility of …”maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,” Basso v. Miller. If by chance a child was hurt criminal negligence can result which could be a civil case or a criminal case. All elements for negligence are apparent. If a child were to drown this could result in criminal negligence this could lead to the arrest of the property owner, therefore tried by the state. This could also result in a civil case as the parents could sue the person for negligence.

To elaborate … a tort, and a crime; for example, the misappropriation of funds by a trustee is a breach of the contract of trust, the tort of conversion, and the crime of embezzlement (tort n.d.).
Terminology in tort law and criminal law are similar. Defense which is used in a civil case and self defense used in a criminal case are similar and both of these are used to clear a person of a crime. Tort terminology and criminal terminology are interchangeable because most of the time a criminal case can also become a civil case. This depends on if an individual(s) was involved in the criminal activity. As in the O.J. Simpson case he was tried for criminal charges and then brought to court in a civil suite.

References

Buckley, W & Okrent, C (2004). Torts and Personal Injury: Third Edition. Canada: Delmar Learning. Retrieved January 6, 2009 from Kaplan University Online database.

Criminal Law (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World Encyclopedia database.

Basso v. Miller, 40 N.Y.2d 233, 241 (N.Y. 1976). Retrieved January 6, 2009 from LexisNexis database.

TORT. (n.d.). Retrieved January 6, 2009, from Funk & Wagnalls New World
Encyclopedia database