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Legal Report Janaury 2005


Premises liability. The Indiana Court of Appeals has ruled that a hospital is not liable for the attack of one patient by another. The court ruled that while a hospital must provide adequate security, it cannot be held responsible for the unforeseeable attacks of third parties.

On February 28, 2002, Mae Belle Lane was waiting with her son-in-law in St. Joseph’s Regional Medical Center’s emergency room. While she waited, a teenaged boy (“D.G.”) arrived with his mother. Without warning, the teenager rose, walked to Lane, and began punching her. Lane’s son-in-law jumped up and hit D.G., knocking him to the floor. The attack stopped.

Lane sued the hospital for negligence, claiming that hospital staff should have protected her from the attack. The medical center requested summary judgment—a hearing based on the facts of a case without a trial. The St. Joseph Superior Court granted the summary judgment. Lane appealed the decision.

The Indiana Court of Appeals affirmed the lower court’s decision based on the fact that the attack was unforeseeable, even to the victim, who testified that she was “surprised” when D.G. assaulted her. (One judge issued a dissenting opinion, arguing that the foreseeability issue should be decided by a jury.)

However, the court noted that under Indiana law, businesses such as hospitals owe their patrons a duty to exercise reasonable care in keeping their premises safe. The court also pointed out that emergency rooms can be a particular concern. “There can be little dispute that a hospital’s emergency room can be the scene of violent and criminal some cases, the violence spills into the emergency room itself and measures must be taken to control the situation.”

The security situation at the hospital was not addressed by the court because the basis of the case was not whether security was adequate but whether the attack on Lane was foreseeable. (Mae Belle Lane v. St. Joseph’s Regional Medical Center, Indiana Court of Appeals, No. 71A05-0310-CV-525, 2004)

Negligence. The U.S. Court of Appeals for the Fifth Circuit has held that an injured seaman can pursue his negligence case against his employer. The court ruled that the circumstances of the case—which involved charges of a violation of a corporate zero-tolerance policy and failure to secure against a threat—provided enough evidence to proceed with the case.

The seaman in the case, Robert Hasty, was working for Trans Atlas aboard a cargo vessel. One day, Leroy Brown, a deckhand on the same vessel, came aboard intoxicated and was told by the vessel captain, Henry Kopsywa, to go to his bunk and “sleep it off.” In his bunk, however, Brown became violent and attacked a coworker, Jerry Rudolph. Kopsywa fired Brown and ordered him off the vessel.

The harbor police were called and Brown was escorted off the boat. Later, however, Brown snuck away from the police and reboarded the vessel. He sought out Rudolph and continued the fight. Hasty, who was standing nearby, intervened. Brown swung at Hasty and then lost his balance. Both men fell to the deck. Hasty’s leg was severely injured.

Hasty sued Trans Atlas for negligence, claiming that Kopsywa allowed the intoxicated Brown to enter the vessel initially and then took no security measures to prevent Brown from returning. The company’s negligence, alleged Hasty, was the cause of his injury.

Trans Atlas requested summary judgment—a hearing based on the facts of a case without a trial—claiming that Kopsywa could not have foreseen Brown’s actions and that the company could not, therefore, be found negligent. The U.S. District Court for the Eastern District of Louisiana granted the motion. Hasty appealed.

The U.S. Court of Appeals for the Fifth Circuit ruled that Hasty’s case should be decided by a jury. In its opinion of the case, the court noted that a reasonable jury could determine that Hasty’s injury was a foreseeable result of allowing the intoxicated Brown onto the vessel. In testimony, Kopsywa admitted that he violated the company’s zero-tolerance alcohol policy, which prohibits intoxicated employees from boarding the vessel.

The court also found that a jury could hold Trans Atlas responsible for failing to secure the ship against Brown. After Brown was taken away by harbor police, Kopsywa left the ship’s gangway unguarded, making it easy for Brown to reboard. (Hasty v. Trans Atlas Boats, Inc., U.S. Court of Appeals for the Fifth Circuit, No. 03-30884, 2004)


Intelligence reform. The intelligence

reform bill (S. 2845), which enacts the major recommendations of the 9-11 Commission, has been passed by Congress. The new law creates a director of national intelligence to oversee all U.S. intelligence efforts and a national counterterrorism center. The law also provides additional funding for border control needs, such as more personnel and detention centers. It includes a measure to allow employers to request criminal background checks on security employees and also establishes a national clearinghouse to process such background checks.

The bill was stripped of some measures, including a provision that would have denied illegal immigrants driver’s licenses, before it gained approval, but it does address standards for driver’s licenses. Also, language was added to the bill to protect the chain of command to allow the Pentagon to issue timely instructions to troops during wartime.



Background checks. In an expansion of the state’s program to require fingerprinting for government agencies, a new Arizona law (formerly H.B. 2073) requires that child protective service (CPS) workers obtain fingerprint clearance cards.

Fingerprint clearance cards are valid for six years and are given after the applicant passes both state and federal background checks. The state’s Department of Public Safety checks daily reports of those arrested for criminal offenses in Arizona and has the authority to suspend an individual’s card and notify the respective agency of the suspension.

The law requires that all CPS employees have valid fingerprint clearance cards when they begin work or within seven days of starting the job.

Identity theft. Another new Arizona law (formerly H.B. 2116) prohibits a person or business from using more than five numbers that are reasonably identifiable as part of a Social Security number on any card that is required for the person to receive goods or services or on any materials that are mailed to an individual. The law is an expansion of a law approved in a former legislative session that prohibits the use of a person’s Social Security number as an identifier for any commercial business.


Privacy. In Colorado, a new law (formerly H.B. 1134) establishes an investigations department within the state’s motor vehicles administration to investigate and prevent fraud committed by using driver’s licenses, identification cards, motor vehicle titles and registrations, or other documents issued by the administration.

The law also contains a provision designed to help protect victims of identity theft. After a state court has determined that a person’s identity has been used fraudulently, the court may order that documents in its possession reflect this fraud. Any name and associated identifying information contained in court records, files, or criminal justice records found to be improperly filed under the name of an identity theft victim must be labeled to show that the information is inaccurate and does not reflect the perpetrator’s true identity.


Information protection. A new law (formerly S.B. 338) enacted in Lou­i­si­ana will require that certain information produced by the state’s Department of Environmental Quality be restricted from distribution or dissemination via the Internet.

Protected information is defined as any data that is deemed “restricted.” This information may not be placed on or sent through the Internet by the department, its employees, or any contractor. Intentionally distributing restricted information is defined as a misdemeanor, and anyone convicted can be fined or jailed.

Background checks. Another new Louisiana law (formerly S.B. 140) will require that background checks be completed for anyone seeking employment with agencies that care for the infirm, such as nursing facilities, healthcare centers for the mentally retarded, adult residential-care facilities, and adult day-care centers.

Applicants for jobs as personal-care attendants in a supervised independent living program or in a hospice must also undergo a background check. Applicants who are found to have been convicted of crimes of violence will be barred from employment in these facilities.


Security plans. A new Wisconsin law (formerly S.B. 8) allows state utility authorities to withhold access to their security plans if they determine that the subject of the plan is so vital to the state that its incapacitation or destruction would have a debilitating effect on the state’s physical or economic security, or on public health, safety, or welfare.

Under the law, a security plan is defined as a plan for the physical or electronic security of facilities, telecommunications systems, or information technology systems. Protected data can include photographs, audio or video presentations, schematic diagrams, surveys, recommendations, consultations, or other communication related to the plan such as threat or vulnerability assessments and threat response or emergency evacuation plans.

This column should not be construed as legal or legislative advice.