Wednesday, April 26, 2006

Fresh Law

Okay, the Iowa Court of Appeals has new caselaw up. However, in the process of transferring the format of the opinions to .pdf from .doc - probably a good idea, as it minimizes the ability to edit them before printing - the web gods have also decided to eliminate the handy "summary" feature. So, to find the odd interesting case you actually have to download all gagillion cases. Hmmm. Maybe not so much time today. I did read some of them:

At approximately 9:00 p.m. on October 5, 2000, Featherstone tripped and fell due to a hole in the parking lot paving of a Hy-Vee grocery store in Des Moines. The hole was approximately seven inches wide, twelve inches long and one and three-quarters inches deep. Featherstone suffered injuries to her knees and lower back, several contusions, and a broken tooth. She filed suit claiming Hy-Vee was negligent, causing her to incur damages for medical expenses, pain and suffering, emotional pain, loss of past and future wages, and loss of earning capacity. She also filed a loss of consortium claim on behalf of her daughter. . . .

The jury awarded Featherstone $10,000 past medical expenses, $5500 past lost wages, and $5000 past physical and mental pain and suffering. The jury also awarded Featherstone’s daughter loss of consortium damages, $5000 for past loss and $20,000 for future loss.

The plaintiff was unhappy with the verdict, feeling it was against the weight of the evidence. More specifically, she thought she should have been able to tag Hy-Vee for punitive damages because it knew that someone else had fallen in the lot nine months earlier and did nothing about the hole, and still hadn't fixed it after she fell. The Court had granted summary judgment to Hy-Vee on that issue, so it was never presented to the jury. She also felt it was unfair that in rebutting her claim that she was depressed as a result of the fall, Hy-Vee was able to get into evidence an abortion she'd had prior to it as evidence she was already depressed. She'd filed a motion in limine to keep the evidence out, but the trial court had overruled her on that point.

The Court of Appeals disagreed with her on the punitive damages issue. First off, it pointed out that under Iowa's punitive damages statutes, Hy-Vee's conduct subsequent to her loss wasn't relevant to how it acted toward her safety on the date in question:
Featherstone also asserted that Hy-Vee’s subsequent conduct in failing to repair the parking lot and/or alleged misrepresentations during discovery should be considered as a basis for allowing a punitive damages award. However, Featherstone cites no support in Iowa law for this application. Moreover, chapter 668A does not support such an assertion but rather ties the issue of punitive damages to “the conduct of the defendant from which the claim arose.” Iowa Code § 668A.1(1)(a) (1999).

As far as not repairing the hole from the prior fall, the court noted the difference between the culpability required to prove punitive damages, and that of ordinary negligence. Punitive (punishment) damages require a willful and wanton disregard for the rights or safety of another, such that the party has "intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." Negligence, on the other hand, requires the plaintiff only to prove the defendant knew or should have known of the danger, had a duty to protect the plaintiff from the harm, failed to act to prevent harm, and that this breach of duty caused the injuries alleged. The indicated that one fall in the past nine months only arose to the negligence level of culpability, given the evidence that some 30,000 people per week went through that parking lot, 9,000 of them after dark. It contrasted it with a 1999 case involving Walgreens, in which thirty-four incident reports in evidence occurring within a three-year period before the incident in question supported submission of a punitive damage claim to the jury.

On the abortion issue, the Court agreed with Featherstone. First of all, apparently the expert witnesses who testified at trial did not link the abortion specifically with the depression she was diagnosed with after the loss. Her own experts specifically refuted such a connection. Secondly, in refuting the depression claim, the defense already had the ability to enter into evidence the facts that Featherstone had prior miscarriages, a gambling problem, financial difficulties, and a marital breakdown including her husband’s infidelity that resulted in her contracting a sexually transmitted disease. Given all that, the existance of an abortion had little probative value. However, as the Court pointed out, the issue of abortion is such a hot-button one, it could well have prejudiced the jury. Thus, the Court ordered a new trial on the damages issue only.

This one had me shaking my head. First off, it's a very controversial topic: terminating the parental rights of an abuse victim because having the child around domestic violence is harmful to the child. Many, many DV theorists would argue that's merely punishing the victim for being a victim. They point out that it also precludes DV victims from reporting abuse, for fear they'll get their kids taken away. I am not against removal per se, particularly when the children are placed in physical danger. Example: a past case of my experience involved a DV claim based on a guy getting stoned and then waving a loaded gun around threatening to kill his partner. The kids were quite literally in the line of fire on that one, and if the Court had lifted the no-contact order, I would have immediately filed a petition for removal. That's an extreme example, but I basically felt that if the abuse occurred when the kids were in direct physical proximity, it placed them in danger of being collateral damage and court intervention of some kind was likely required.

But this case goes beyond the normal debate. The facts which triggered the termination hearing:
Due to past incidents of domestic violence, Timothy was ordered to have no contact with Alicia and Avery. However, Timothy violated the no-contact order and assaulted Alicia in December 2003.

Avery was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent’s failure to supervise). Avery was removed from Alicia’s care in June 2004 based on reports that Timothy and Alicia had violated the no-contact order. Avery was placed with the maternal grandmother.

Alicia participated in services. She resided in an independent living program until she graduated from high school in May 2004. She began attending a community college and worked part-time. Alicia attended a young parent support group. Alicia attended an anger management class and individual counseling. Service providers noted Alicia had good parenting skills. In December 2004, Alicia started unsupervised visitation with Avery, and these visits went well.

Allegations arose that Alicia had violated the no-contact order in April 2005. In May 2005, the State filed a petition seeking termination of the parents’ rights. After a hearing, the district court found Alicia had not violated the no-contact
order, and criminal charges against her based on that contact were dismissed. In August 2005, the parties agreed the termination proceedings would be held in abeyance.

Avery was placed in Alicia’s care for a short period of time in September 2005. Avery was removed and placed in foster care because of a domestic dispute between Alicia and Timothy. Alicia stated that Timothy forced his way into her apartment and then assaulted her. She cooperated with his criminal prosecution. Timothy was sentenced to a term of imprisonment not to exceed two years. Alicia reported Timothy when he attempted to contact her from prison.

Due to the incident in September 2005, a hearing on the termination petition was held in January 2006.

The Court terminated the father's parental rights, but declined to terminate Alicia's because it felt she deserved six more months of services to see if she could keep herself together. The State appealed.

My take: Okay, ignore the controversy and take it for given for a moment that the removal of children from the mother because the father's abusive and she won't stay away from him is justified under all circumstances.

Even so, where is the "she won't stay away from him" here??? She was exonerated of the alleged April violation. In September, he breaks in and assaults her. What, exactly, constitutes her complicity in this??? She then goes on to assist with the prosecution and report further attempts he makes to contact her. In fact, unless the Court's got some information it's not sharing, there's no evidence she participated in a no-contact violation following the original removal from her care back in 2004, before she received any services whatsoever.

I'm sorry, but I don't see the State's logic here.

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