In Woodard v. County of Wilson and WCDSS, (No. 08-2366, decided August 31, 2010), the plaintiff, in 2006, married a young man whose mother, like the plaintiff, worked for the WCDSS.  The mother-in-law began working there in 1994.  The plaintiff started working there in 2001.  As required of all employees, each of them signed the anti-nepotism policy when they were hired.  The policy had been in effect since 1985.

The plaintiff contended that the WCDSS anti-nepotism policy violated her right to marry under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution.  The Court of Appeals, citing Waters v. Gaston County, 57 F. 3d 422 (4^th Cir. 1995), held that while the Constitution embraces a fundamental right to marry, “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”  The Court concluded that at most, the WCDSS anti-nepotism policy was “an unwelcome hurdle” and a “work-related restriction with incidental effects on (the plaintiff’s) marriage.”

The most intriguing aspect of this case is the practical implication of one the arguments advanced by the plaintiff.  The plaintiff tried to distinguish the Waters case by arguing that the WCDSS policy did not contain a “neutral process to determine which employee (would) be terminated.” 

Understand that the mother-in-law could have resigned from her job as a day porter, the duties of which included cleaning the plaintiff’s office, had she chosen to do so.  This would have avoided application of the anti-nepotism policy.  The mother-in-law chose not to resign.

By advancing the “neutral process” argument, the plaintiff asserted, by inference, that the mother-in-law is the employee who should have been canned.  Though a gutsy move by the plaintiff, it was a bonehead play only a newly-wed (i.e., a rookie), ignorant of the hierarchal structure of the familial unit, would make. 

Had the mother-in-law read the plaintiff’s brief, or worse yet, been fired instead of the plaintiff, the WCDSS anti-nepotism policy would have had more than “an incidental effect” on the plaintiff’s marriage.

Roger finally emerged with the clients and told them he would be back in touch.  He then turned to me in great eagerness and said that this was truly a fascinating case of conflict of laws, lex fori, lex loci, etc.  I asked what he meant.  He stated that the bus wreck occurred in the Virgin Islands.  I said, “No, Roger, it occurred in Virgilina — a town on the Virginia — Carolina line.”

Local radio stations do not even pretend to investigate the news.  Triangle commuters chuckle every morning at the bald-face plagiarism shamelessly executed by radio “news reporters” as they read verbatim unattributed snippets from the morning’s N & O.  Come on guys, even the clueless high school English student rotates a few prepositions in his Clift Note-inspired critique of Moby Dick.

Make no mistake, without the N & O, Meg Scott Phipps and Jim Black would not have been investigated, indicted, convicted, and sent to prison.  Without the N & O, countless other crooked politicians would have escaped judgment.  

The most recent example of the N & O performing a public service through exposure of corruption is the series of articles about corruption within the North Carolina State Bureau of Investigation.  The N & O staff members who worked on the series, Mandy Locke, Joseph Neff, Travis Long, Shawn Rocco, and Steve Riley, should be nominated for a Pulitzer Prize. 

The N & O’s deterrent effect on morally challenged politicians and bureaucrats is even more valuable to the public than the exposure of consummated corruption. Those government employees otherwise inclined to steal the government blind usually suppress their natural instincts, resigning themselves to careers of working as little as possible until the government retirement jackpot hits.  All things considered, this is a net benefit to the public.  I think.

Certainly, the N & O is not perfect.  With the reduced number of news articles, the heft of the paper has diminished substantially.  I barely can kill a roach with it some mornings.  As a consequence of lost readership, the paper often resorts to sensationalism best left to tabloids (“Trooper Has Sex In Patrol Car”).  Some of the investigative features have slants which raise questions about their objectivity and fairness.  For the most part, however, I forgive the N & O for taking market-driven measures deemed necessary for survival in a crashing industry.

The exposure of public corruption is critical to the well-being of the citizens of North Carolina.  At this point, the N & O is the only entity exposing corruption.  If the N & O goes under, we are in deep trouble.  Government crooks will take us to the cleaners. 

Though perhaps a bit of an overstatement, a compelling argument can be made that every citizen of the Triangle who can afford to subscribe to the N & O has a civic duty to do so.

Yesterday, the North Carolina Court of Appeals, in Harris v. Barefoot, (COA09-1313, filed August 3, 1010), fine-tuned the law of breed-based liability of dog owners.  In order for a dog-owner’s liability to be based solely on the breed of the dog, rather than a showing of known violent propensities of the dog in question, the plaintiff must prove that the dog was, in fact, a member of the dangerous breed.

In Harris, the plaintiff was a mail carrier who was knocked down and bitten repeatedly by two unrestrained dogs that attacked her as she delivered mail to a house across the street from the owners of the dogs.  She alleged that one of the dogs was a Rottweiler; however, she offered no expert opinion on this issue, nor did she present any documentation establishing the breed of the dog.  The dog’s owner acknowledged that the dog had “some Rottweiler ancestry”, but contended that the dog was “a mixed breed dog.”  The Court of Appeals held, “we find no basis to infer the breed of the dog as a Rottweiler.”  The appellate opinion offers no guidance regarding the threshold percentage of Rottweiler blood a dog must have in order to be deemed to be a Rottweiler.

The mail carrier fared no better in her claim against the owner of the second dog.  It was agreed that this dog was an Australian Heeler/Border Collie mix.  The mail carrier contended that this breed is an inherently dangerous breed, like a Rottweiler.  Unfortunately for the mail carrier, the only “authority” she presented for this contention was a Wikipedia article.

The Court of Appeals took this opportunity to announce loudly and clearly that Wikipedia is not a credible reference source.  In footnote 2 of the opinion, the Court states,         

         2“Wikipedia.com [is] a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers,among them, that: (i) any given Wikipedia article ‘may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;’ (ii) Wikipedia articles are ‘also subject to remarkable oversights and omissions;’ (iii) ‘Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;’ (iv) ‘[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;’and (v) ‘many articles commence their lives as partisan drafts’ and

may be ‘caught up in a heavily unbalanced viewpoint.’” Campbell ex. rel. Campbell v. Sec’y of Health and Human Serv., 69 Fed. Cl.775, 781 (2006).

Because there was no evidence that either of the dogs in Harris had ever attacked anyone before, and there was insufficient evidence that either of the dogs was of an inherently dangerous breed, the Court of Appeals affirmed the trial court’s dismissal of the lawsuit at the summary judgment stage.  The decision was another tough lick for the mauled mail carrier, but it was probably the right call.

This anecdote involves the story told about the time that N.F. Ransdell, uncle of Buck and Phillip Ransdell, and longtime judge of the Wake County District Court, called upon Mr. R.N. Simms to assist in a civil case.  Judge Ransdell was a young lawyer and felt that it would benefit him to have Mr. Simms on his side in the litigation.  At the time Mr. Simms was senior partner in the firm of Simms and Simms with his son, Robert N. Simms, Jr.

When the case was satisfactorily resolved and it was time to divide the fee Mr. Simms stated that “Here is one-third for me; one-third for Robert; and one-third for you.”  Mr. Ransdell remonstrated that he had not employed Robert but had only associated Mr. Simms.  Mr. Simms was a most imposing and impressive looking man – very much like Sidney Greenstreet in the movies.  He countered that the fee must be divided three ways as he had mentioned.  Mr. Ransdell was cowed and accepted the inevitable with the remark: “It’s good that I associated Simms and Simms and did not associate Bailey, Holding, Lassiter and Langston or I wouldn’t have had anything left.”

A plaintiff that brings claims against a governmental entity and its employees acting in their official capacities must allege and prove that the officials waived their sovereign immunity.  A county, and a county’s employees such as deputy sheriffs, may waive sovereign immunity by purchasing liability insurance, but only to the extent of the coverage provided.

In the case at hand, a liability insurance policy for the Haywood County Sheriff’s Department provided coverage for law enforcement officers while acting within the course and scope of their official duties, provided claims are brought against the officers in their individual capacities.  The lawsuit in question named the officers as defendants only in their official capacities, not in their individual capacities.

Furthermore, the liability policy included an exclusion which provided that the policy did not apply to any claim against a covered person for any claim “as to which the covered person is entitled to sovereign immunity or governmental immunity under North Carolina law.”  The Court of Appeals relied upon Patrick v. Wake Cty. Dep’t of Human Servs., 118 N.C. 592, 655 S.E. 2d 920 (2008), and Estate of Earley v. Haywood Cty. Dep’t of Soc. Servs., (No. COA09-1558, filed June 1, 2010) in holding that this exclusionary provision barred the plaintiff’s action.

To its credit, the Court of Appeals acknowledged the circular logic it employed to reach its decision.  The opinion quotes from Estate of Earley as follows, “… the logic in Patrick boils down to: Defendant retains immunity because the policy doesn’t cover his actions and the policy doesn’t cover his actions because he explicitly retains immunity.  Nonetheless in this case, as in Patrick, where . . . the exclusion clause in the insurance contract (is) clear, we must decline Plaintiff’s invitation to implement ‘policy’ in the matter.  Any such policy implementation is best left to the wisdom of our legislature.”

Query whether some other grounds for dismissal would have prevailed had the plaintiff sued the officers in their individual capacities, or had included claims for federal civil rights violations under 42 U.S.C. 1983.  Sovereign immunity and the conundrum of liability insurance waivers are only two of the many mines which must be navigated to prevail in a case against a law enforcement officer.

Judge Mike Payne of the Wake County District Court had become displeased with the cavalier and slipshod fashion of court attendance by several of the lawyers in Wake County.  Some were inattentive.  Some would send paralegals to court to request continuances and to attend to other matters that only lawyers should be involved with. 

To address this problem Judge Payne called a meeting directing that several of the offending attorneys be present.  As the meeting was called to order, every attorney requested to be present was there and on time except for William Gerald.  About 10 minutes after the scheduled time, Bill Gerald’s paralegal appeared to say that Mr. Gerald couldn’t be present.  Judge Payne’s reaction has been censored.

In Littleton, the plaintiff’s vehicle was hit head-on by the defendant’s vehicle, crushing the plaintiff’s left foot.  An MRI revealed a fracture of the medial cuneiform and possible fractures of other bones in the foot.  The plaintiff testified that even four years after the accident, he continued to experience significant pain and swelling in the foot.  He also testified he took pain medication on a regular basis and had been unable to work as a roofer since the accident.  His wife testified she still had to put pillows under his foot every night to prevent swelling and relieve the pain so he could sleep.

The problem with the plaintiff’s case, as far as the appellate court was concerned, was the testimony of the plaintiff’s treating doctor.  When asked whether the plaintiff’s foot injury was permanent, the doctor answered, “not having seen him for a couple of years, three years, I really don’t have – I don’t feel like I could give an accurate assessment to what has happened in the last three years.”

The appellate court reversed a $1,428,238.60 verdict for the plaintiff, because the trial court erred by instructing the jury on the issue of permanent injury.  The appellate court quoted Callicutt v. Hawkins, 11 N.C. App. 546, 547-8, 181 S.E. 2d 725, 726 (1971)as follows,

            “There can be no recovery for a permanent injury unless there is some

            evidence tending to establish one with reasonable certainty.  Upon proof

            of an objective injury from which it is apparent that the injured person

            must of necessity continue to undergo pain and suffering in the future,

            the jury may award damages for it without the necessity of expert

            testimony.  Where, however, the injury is subjective and of such a

            nature that laymen cannot, with reasonable certainty, know whether

            there will be future pain and suffering, it is necessary, in order to

            warrant an instruction which will authorize the jury to award damages

            for permanent injury, that there be offered evidence by expert witnesses,

            learned in human anatomy, who can testify, either from a personal exam-

            ination or knowledge of the history of the case, or from a hypothetical

            question based on the facts, that the plaintiff, with reasonable certainty,

            may be expected to experience future pain and suffering, as a result of

            the injury proven.”  (at  p. 7-8).

Applying this test, the Court of Appeals found that the plaintiff’s case required expert testimony that the foot injury was permanent. Ouch!  This decision had to hurt the plaintiff almost as much as that head-on collision.  A plaintiff is free to explain to the jury how badly he hurts, but without expert testimony to back it up, he might as well tell it to the marines.

The grace our family usually says at mealtimes begins:  “Give us grateful hearts, Our Father, for these and all Thy mercies.”

This is an occasion when my heart is so grateful – to so many, for so many mercies – that to give a just account of it all is beyond my powers. 

The Past Presidents, with your assent, have laid in my hands what I hold to be a sacred trust.  It is a trust which each of them, according to his or her own lights, has discharged with steeliness of purpose and fixity of heart.  Their unflagging dedication to our great Bar Association cannot but exhilarate one who looks up at the mountaintop where they sit, and sees face after face that has breathed life into the best and highest ideals of our profession.  I will strive, however inadequately, to emulate them.

I am blessed to be part of a law firm that still rejects the corrupting notion that a lawyer is the merest utensil of a client’s will, a firm that still believes the practice of law is a calling to revere, a thing that makes good citizens and good human beings.  My partners have tried, across the broad span of nearly a hundred years, to hold the flame of that belief undimmed.  I am proud to be one of them, and I hope to make them proud of me.

I am thankful to have had the chance to read, mark, learn and inwardly digest the counsel and wisdom of friends, two of the dearest of whom, Steve Mason and Bill Whichard, you have heard this morning seconding the Past Presidents’ nomination.  Many of you are also among their number.  I will work to make good use of what you have taught me.     

I ask the best parents any man ever had, Sherrill and Susan Brinkley, to stand.  Mother and Dad, for the love and security you gave us, and most of all for leaving me free to choose my own way and pursue my own road, I honor you.   It is likewise a privilege to introduce to you the other lawyers in my family – my brother Dewey, who defends people about to confront the law at its most terrifying out of an office directly across Hargett Street from my own, and his wife Nicole, both members of the Wake County bar.

God has given Carol and me the gift and heritage of three beautiful, healthy, and pugnaciously independent children.  They are their own persons, through and through, and are patient with and kind to their father on the understanding that he is prepared regularly and penitently to confess his faults:  Eliza, a rising senior at Saint Mary’s School in Raleigh; Caroline, a rising sophomore at Saint Mary’s; and Sam, a fifth grader at Frances Lacy Elementary School.  Would you three please stand?

Given what Charles Becton has told you about my interest in the ancient world, you may be less shocked than otherwise to learn that I carry a Greek Homer in my briefcase as a source of inspiration and a weapon against sloth.  For me, the culmination of the Odyssey occurs in Book 23, when Odysseus is tearfully reunited with Penelope after a 20 years’ separation.  At line 232, the poet says that Odysseus wept, holding his alochos thumares.  Now this is one of those phrases that makes the translator throw down his pen in despair.  The Greek means something like “a bride that fits the heart.”  I have always thought it the aptest description of how I feel about my own heart-fitted bride, Carol, who spends much of her time trying to remind me that the fiercest joy is in the living.  I ask her to stand and receive my humble thanks.

We have not inherited an easy world in which to forge steadfast another link in the chain of our ancient and noble profession.  Yet if we brace ourselves to our duty and promise to be what my first boss and the best lawyer I have ever known, Chief Judge Sam J. Ervin, III, called “dues paying members of humanity,” I have every hope and faith that we will prove once more, as Justice Holmes said, that it is possible to live greatly in the law.  I pledge the future of our Bar Association, and every sinew of myself, to that task, which demands – and deserves – nothing less than all we have to give. 

Thank you very much.

The male doctor continually bombarded the female doctor with graphic and highly personalized comments about intimate features of his and her anatomy.  As this is a family site, readers will need to link to the Court’s opinion for the details – a virtual greatest hits from the self-described “shock jock” doctor.

A plaintiff may establish a violation of Title VII of the Civil Rights Act of 1964 by proving that discrimination based on sex has created a hostile or abusive work environment.  The Fourth Circuit requires that in order to make out such a claim, a plaintiff must show that the offending conduct

(1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer. 

In the case in question, the defendant stipulated that the offending conduct was unwelcome, and he defended the case on the other three elements.  The opinion is silent as to why the defendant entered into this stipulation.  Once this stipulation was in the pocket, the defendant was behind the eight ball. 

The appellate opinion states that there is no “mathematically precise test” for determining if a work environment is objectively hostile or abusive.  The Court concludes that in the case in question the defendant “crossed the line from general crudity into actionable harassment by subjecting Waechter to a series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.”

Presumably the defendant will lose the Howard Stern routine going forward.