1) The definition of an "operator" of a motor vehicle for insurance purposes under LE vs. VAKNIN. The basic facts: Vankin's father owned an automobile. Vankin took the car for a drive, bringing along a friend, Hop Nguyen, the friend's girlfriend, Amanda Le, and her friend, Kate Polouchkina. Both Amanda and Kate were thirteen, did not have learning permits, and had not previously driven a car. Yet, Vaknin somehow decided to allow Kate and Amanda to drive the car. When Amanda was driving, she lost control of the vehicle when negotiating a curve. Vaknin, from the passenger's seat, attempted to grab the steering wheel in order to control the vehicle, but was unsuccessful in preventing the car from leaving the road and crashing into a tree. Amanda sustained severe injuries in the crash. She sued Vankin for negligent entrusting the a motor vehicle to herself as an unqualified driver, but then she also sued her insurance company, American Family, for coverage under the uninsured motorists portion of her mother's policy.
The uninsured-motorist provisions contained in American Family’s policy stated:
"We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle."While Amanda herself was clearly the driver of the vehicle at the time of the collision, the plaintiff argued that the term "operator" should nevertheless be read to include Vaknin, because: 1) The term "operator" should be interpreted broadly in the uninsured motorist context, to include persons with a right to control the vehicle and have delegated physical control to another under their supervision; or because 2) At the time of Vankin's negligent act - the entrusting of the vehicle to Amanda - he was the actual physical operator of the vehicle; or because 3) He had grabbed the steering wheel at the time of the actual impact. The Court made short work of the first argument, quoting ample caselaw to support the premise that only the actual driver is in physical control of the vehicle, and the theoretical right to dictate or supervise where the car goes and how fast does not equate to actual operation. The Court also fairly quickly rejected the second argument: "We are satisfied that the district court correctly determined that the type of uninsured liability that triggers application of American Family’s coverage is operational fault causing the injury for which recovery of uninsured-motorist benefits is claimed. . . . That being the case, it was logical for the trial court to fix the time for the jury’s determination of operator status as the time of the accident." What surprised me was that they also flat-out rejected the third argument: "Assuming without deciding that one who seizes the steering wheel of a motor vehicle and thereby causes an injury-producing accident may be considered to be an operator for uninsured-motorist purposes, we are satisfied that this is not the case if the seizing of the wheel is an effort to prevent an accident caused by faulty operation of the vehicle by the person who has been exercising the driving function." Don't get me wrong,I like the rule and I like the simplicity of the logic. I was just surprised they didn't go with the plaintiff's argument and allow the jury to do some sort of fact-based balancing between Amanda's and Rankin's negligence, but rather just decided that anytime you try to grab the wheel to avoid an accident, you are not an operator - at least for UM purposes - as a matter of law. Interesting.
2) Footnote #1 in FENNELLY v. A-1 MACHINE & TOOL CO.:
1 In Iowa, all real property not exempt is subject to property tax. Iowa Code § 427.13. Importantly, “real property,” for purposes of taxation, encompasses more than is covered by the traditional definition of real property—land and fixtures. See Black’s Law Dictionary 1234 (7th ed. 1999) (“Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.”). The statutory definition of “real property” encompasses these things, see Iowa Code § 427A.1(1)(a) (“Land and water rights.”), (b) (“Substances contained in or growing upon the land . . . .”), (c) (“Buildings, structures or improvements, any of which are constructed on or in the land, attached to the land . . . .”), (d) (“Buildings, structures, equipment, machinery or improvements, any of which are attached to the buildings, structures, equipment, machinery or improvements defined in paragraph “c” . . . .”), but it also includes other items, such as “[m]achinery used in manufacturing establishments,” id. § 427A.1(1)(e), and “computers,” id. § 427A.1(1)(j)(1). The latter two categories of property have had a special valuation scheme since 1995, see id. § 427B.17, but they are still defined as real property. Personal property is not subject to property tax in Iowa. See id. § 427A.2.(emphasis mine). In order to become real property, the computer needs to be attached to the structure by more than just a power cord, so the usual laptop or desktop should be safe. However, any idea of a built-in flatscreen/docking station type of thing may be right out.
3) IOWA vs ALBERTS clarification on the rule against admission of the sexual history of an alleged rape victim to allow evidence of prior instances where the alleged victim claimed unwanted sexual contact occurred, when the instances occurred under circumstances which are factually suspect, for the purposes of establishing consent. The facts of the case: there was a bachelorette party at a local bar, with the alleged victim in attendance, along with the defendant, who was her boyfriend's uncle. The parties knew each other, and not just from family gatherings: some time earlier they'd been at the same bar together, where the defendant and the victim had engaged in some "dirty dancing," and all three of them had sat in the defendant's truck smoking pot. At some point on this prior occasion, the alleged victim had unhooked her bra and strung it across the defendant's rear-view mirror. The boyfriend had retrieved it before they went home. This time around, there was (as is usual for a bachelorette party), a good deal of alcohol consumed. For some reason, instead of sticking with her party, the victim left with the defendant when the bar closed and ended up at the family's lake house. There, she threw up, then indicated she needed to sleep it off. With the defendant still in the room, she removed her skirt and climbed into bed. According to the opinion, she fell asleep, and woke up with the defendant engaging in sexual contact with her and eventually intercourse. She claimed she was frightened and pretended to be asleep through the entire ordeal. He claimed she kissed him and "moved her hips" in a manner connoting consent. The next morning, the defendant drove her home, where she showered. Her boyfriend showed up, she told him what happened, and he drove her to the hospital to report a rape.
At trial, to bolster his claim of consent, the defendant wanted to put into evidence an earlier incident in which the boyfriend's brother had "busted" the victim and another man skinny dipping together, with her arms around the guy. Upon discovery, she got out of the water crying, claiming “Thank God you saw me. I didn’t know what to do out there. . . . I couldn’t get away from him. I didn’t know what to do.” The man she was swimming with was prepared to testify that it was her idea to go skinny-dipping, and that nothing sexual had happened. The defendant claimed this evidence was important to his case because it supported his theory that the victim accused men of improper sexual conduct in order to shift blame away from her supposed infidelity. He also claimed this incident was particularly relevant because it reflected on the credibility of the only other witness to the alleged rape - the victim herself.
Interpreting the rape shield law, the district court sustained most of the State’s motion in limine and specifically excluded any evidence pertaining to the skinny-dipping incident. The court also excluded any testimony which described the victim’s character as flirtatious or promiscuous. However, the court allowed the jury to hear evidence that the victim had engaged in “dirty dancing” with Alberts a few weeks before the alleged sexual abuse, smoked marijuana with him in the cab of his semi-truck, and removed her bra and hung it on his rear-view mirror.
In so ruling, the district court judge stated:
I’m not going to permit testimony or evidence concerning [R.M.’s] mental health or past sexual comments or activities, with the exception of [the event where she danced with Alberts a few weeks prior to the alleged sexual assault].
The court also made the following additional comments regarding its ruling:
if R.M. gets into her virtue, if that’s the right term - - I’m referring now to the potential testimony that she had never cheated on her boyfriend - - that could open the door to some of these other matters that have been raised.
When asked whether testimony that she would never “cheat” on her boyfriend would open the door to this excluded evidence, the court stated “Not necessarily. I can’t tell you right now. It depends on the context that comes in.”
The Defendant took what evidence he could get in and argued that the sexual contact was consensual, and that the victim was only denying consent in order to preserve her relationship with the boyfriend. This argument was unsuccessful, and the jury convicted Alberts of third-degree sexual abuse.
The Supreme Court noted that "Rule 5.412 prohibits introduction of reputation or opinion evidence of a complainant’s “past sexual behavior” and substantially limits admissibility of evidence of specific instances of a complainant’s past sexual behavior. Rule 5.412(d) defines “past sexual behavior” as “sexual behavior other than the sexual behavior with respect to which sexual abuse is alleged.”" Although all parties to the skinny-dipping incident specifically denied any sexual contact, the Court found that the incident did constitute "past sexual behavior" under the meaning of the Rule. However, the Court also recognized that in prior caselaw it had determined that prior false claims of sexual activity do not fall within the coverage of our rape-shield law.(“Because a false allegation of sexual activity is not sexual behavior, such statements fall outside both the letter and the spirit of the rape-shield law.”).
The Court noted that a rule outlining admissibility in these circumstances is vital: the purpose of a rape shield law is to keep evidence of prior sexual behavior entirely out of the purview of the jury, so the court can't simply let the jury hear the evidence of the past conduct and determine for itself whether the past sexual behavior was a "false allegation of sexual activity" or not. Instead, it must make that determination first, and then only allow prior false accusations to be heard within the confines of the courtroom. The Court articulated the showing needed to be made by a defendant wishing to enter evidence of a past incident involving an alleged victim under the auspices of a false allegation of sexual activity:
"[A] criminal defendant wishing to admit such evidence must first make a threshold showing to the trial judge outside the presence of the jury that (1) the complaining witness made the statements and (2) the statements are false, based on a preponderance of the evidence."
The Court noted that even when this facial showing of admissibility is made, the State may still rebut or attack the evidence offered by the Defendant once it got before the jury.
Based on this, the Court ruled:
"In the present case, the trial court sustained the State’s motion in limine without explanation. Presumably, the court found the skinny-dipping incident to be “past sexual behavior.” However, the court failed to take the additional step of determining whether R.M. made a false claim of sexual misconduct relating to the incident, which would make the rape-shield law not applicable."After dealing briefly with the issues of whether the evidence of the skinny dipping incident would be more prejudicial to the alleged victim than probative toward the issue of consent (it wouldn't), and whether the skinny-dipping incident was relevant to the charge at hand (it was), the Court noted that precluding the incident from going in front of the jury unfairly prejudiced the Defendant from making his case for consent, and sent the case back down to the lower court. However, rather than ordering a whole new trial with the issue of admissibility of the skinny dipping incident to be determined by motion in limine, they only ordered a hearing on the admissibility issue, based on the interests of judicial economy, with a new trial to follow only if the evidence was wrongfully excluded. Rationale: If the incident wasn't wrongfully excluded under the standard articulated by the Supreme Court, then the trial wasn't tainted after all and the conviction can stand.
Okay, that wraps it up for the latest brain-bleed legal posting. Back to cute skirts, theater, and odd videos.
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