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Monthly Archives: September 2014

Okla. Woman Sues, Alleging Fracking-Related Earthquake Injury

An Oklahoma woman who claims that nearby fracking operations caused an earthquake in which she was injured has filed a lawsuit against two energy companies. Sandra Ladra was watching a college football game at home in 2011 when a magnitude 5.7 earthquake struck, reports Oklahoma City's KFOR-TV. The earthquake dislodged rocks from Ladra's chimney which she claims struck her in the legs, causing injuries to both her legs and knees which her lawyer says will require surgery. How does Ladra plan on pinning responsibility for her injuries on the defendants, New Dominion LLC and Spess Oil Company? Earthquakes Reportedly Caused by Wastewater Injection Ladra is claiming that the earthquake that caused her injury was itself caused by the injection of wastewater created during the fracking process. Her lawsuit claims this wastewater injection shifted faults lines causing earthquakes like the one that struck her home. Fracking refers to the process of extracting oil and natural gas from the ground by using hydraulic fracturing. The process generates wastewater, which is typically disposed of in deep underground wells. This is not the first lawsuit claiming that underground wastewater injection has caused earthquakes. In 2013, more than a dozen Arkansas landowners brought a lawsuit against the owners of fracking wells, claiming that earthquakes caused by the wastewater injection had damages their homes, reports Reuters. Proving Negligence To hold the energy company liable for her injuries, Ladra will likely have to show that they acted negligently in disposing of the wastewater. Proving negligence typically requires not just prove that a person or in this case a corporation's actions caused an injury, but also that the person acted unreasonably under the circumstances. As injecting wastewater into underground wells appears to be the standard practice of the fracking industry, it may be difficult for Ladra to show that doing so was a breach of the energy companies' duty to operate safely. Related Resources: Vermont Bans Fracking, Citing Injury Concerns (FindLaw's Injured) Texas Family Wins $3M Fracking-Pollution Lawsuit (FindLaw's Injured) Does Fracking Settlement's Gag Order Apply to Kids? (FindLaw's Legally Weird) Ill. Benzene Lawsuit Targets Shell Oil Spill (FindLaw's Injured)
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What’s the Difference Between Support Animals, Service Animals?

You may think that "support animals" are just another name from "service animals," but there's a fine legal distinction. A recent federal court decision put a fine point on the difference in a man's legal battle with a Florida homeowner's association. His HOA's "no pet" policy couldn't be applied to the man's service animal because service animals are not pets -- especially when they are trained to address a condition like PTSD. So when is an animal a "service animal" and when is it a "support animal"? ADA Definition of 'Service Animal' The legal foundation for allowing animals where pets aren't normally allowed is via accommodation for persons with disabilities. The Americans with Disabilities Act (ADA) covers accommodation for disabled persons in employment, transportation, and in government, with similar statutes covering housing and public accommodations. The U.S. Department of Justice has clarified its position on when ADA protections apply to animals or whether they are just pets. According to its guidance, "service animals" are: Only dogs Which are individually trained to do work or perform tasks For a person with a disability. Not every impairment is considered a disability under the ADA, but if it is a physical or mental impairment that substantially limits a person from participating in "major life activities," it probably qualifies. This includes psychological impairments like PTSD. Dogs or other animals which are not trained to do work or perform tasks for persons with these disabilities are essentially just pets. Support Animals Certainly it would be hard to deny that many untrained animals can give enormous support to those in pain. But these "support animals," regardless of their calming effects on their owners, are not necessarily ADA-compliant "service animals." Ask an Oklahoma woman who decided to get a "therapy kangaroo" -- not a service animal under the ADA. Since the ADA provides no rights or protections for animals outside the service animal mold, extra protections for "support" animals may be left to states, cities, or even individual businesses. Airlines have been somewhat looser in allowing support animals of all shapes and sizes onboard, much to the frustration of some passengers and crew. A cottage industry has also sprung up around service or support animal vests and tags, none of which are regulated by the ADA and many of which are misleading. But here's the bottom line: Service dogs are not pets, they work or perform tasks for people with disabilities. Related Resources: Blind Man's Dog Blamed for Flight Cancellation (FindLaw's Law and Daily Life) School to Pay $10K for Denying Disabled Student's Service Dog (FindLaw's Law and Daily Life) Legal to Ban a Customer's Service Animal? (FindLaw's Free Enterprise) Can My Dog be a Service Animal? (FindLaw's Law and Daily Life)
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Teens Sought After ‘Ice Bucket’ Prank Involving Feces, Urine

A group of Ohio bullies may be facing criminal charges after pulling a vile prank on an autistic teenager under the guise of taking part in the ALS Ice Bucket Challenge. The bullies allegedly convinced the 15-year-old boy to strip down to his underwear to take the challenge in which a bucket of ice is dumped on a person's head. But instead of using ice, the bullies doused the boy with a bucket full of feces, urine, and cigarette butts, reports the New York Daily News. The entire incident was captured on video on the boy's cell phone, and was also posted to Instagram. Police say they are working to identify the teens responsible for the humiliating prank. What charges could these bullies potentially face, if caught? Assault and Battery Although laws vary by state, assault and battery are usually charged in the event of a harmful or offensive contact made or threatened against another person. Assault is typically threatened or attempted harmful or offensive contact with a person, while battery is generally reserved for instances where an actual harmful or offensive contact occurs. In this case, the bullies dumped a bucket full of bodily fluids onto a boy, which would likely constitute criminal battery. Although the boy did initially consent to taking part in what he thought was the Ice Bucket Challenge, by switching out the contents of the bucket, the bullies exceeded the scope of any consent that the boy may have granted them. Ice Bucket Challenges May Lead to Injuries, Lawsuits The Ice Bucket Challenge was started as a way to raise funds and awareness for research into the disease ALS, also known as Lou Gehrig's Disease. However, after videos of the challenge became wildly popular online, there have been a number of unfortunate incidents linked to the challenge in which participants have been injured, including at least one death, according to the Daily News. In addition to possible criminal charges against Ice Bucket pranksters, victims of unexpected or unwanted Ice Bucket Challenges may have grounds for a civil lawsuit for injuries sustained, as well as the embarrassment caused by posting video of the incident on the Internet.And because the pranksters in the Ohio case are believed to be students, they will likely face school discipline as well, Fox News reports. Related Resources: Ohio cops seek charges in 'ice bucket' prank on autistic teen (Fox News) Can the 'Ice Bucket Challenge' Lead to Injury? (FindLaw's Injured) Senior Prank Gets 60 Teens Arrested in N.J. (FindLaw's Blotter) Feces Attack over Courtroom Restraints Dispute (FindLaw's Blotter)
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Don’t Be a Victim in Your Divorce: 5 Empowering Legal Tips

Often in divorce, one ex-spouse can become shellshocked by the process. Paralyzed by fear over family and financial woes, these former partners can cast themselves in the roles of victims. Writing for ABC News, Laura Mattia of the Baron Financial Group believes that women often become financial victims during divorce because of the way they relate to their spouses during marriage. But divorcing spouses can empower themselves when it comes to financial and family situations, rather than taking a sideline in their own divorces. For both women and men, take note of these five empowering legal tips and avoid becoming a victim in your divorce: 1. Be Proactive About Finances. Be proactive about your finances from the start of your marriage through your divorce -- for example, by using a prenuptial agreement. One of the many benefits of a prenup is the ability to delineate who owns what in a marriage and afterward. Even if you're already married, a postnup can accomplish many of the same financial planning goals. 2. Pay Attention to Tax Returns. If you're going through a divorce, do not hand off the responsibility for filing your tax return to your soon-to-be-ex spouse. You should try to communicate with your partner about which tax options are the most beneficial for both of you (if necessary, through your attorneys or a mediator). Doing this will help you avoid being blindsided when you learn that your spouse claimed all your kids as his dependents. 3. Consider Your Long-Term Security. Mattia cautions against relying too heavily on alimony, as it may leave a divorcee financially dependent on her ex. Craft a divorce settlement that covers you and your family's long-term plans (even your kid's college tuition) and that doesn't leave you praying for a spousal support check every month. 4. Stay Smart on Social Media. Don't bad-mouth your ex on social media. Just don't. Not only will it give your former spouse fodder for trashing you in court, but it won't do much for your self esteem either. Instead, consider a social media clause in your prenup or postnup. 5. Hire an Attorney. You know what's the most empowering feeling? Knowing the law is on your side. And you'll only know that for sure with an experienced divorce attorney's help. You don't have to be a victim in your divorce. Use the law to rise above. Related Resources: 5 Things a Divorce Lawyer Can Do (That You Probably Can't) (FindLaw's Law and Daily Life) A 'Happy' Divorce? 7 Ways to Make It Less Stressful (FindLaw's Law and Daily Life) Facebook, Social Media Use Linked to Divorce Rates: Study (FindLaw's Law and Daily Life) Have a Happy, Healthy... Divorce? (FindLaw's Law and Daily Life)
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Dad Acquitted of Shooting Drunken Driver Who Killed His Sons

A father accused of murdering the drunken driver who killed his two sons was acquitted by a Texas jury. In 2012, David Barajas and his two sons -- David Jr. 12 and Caleb 11 -- were pushing Barajas' truck on a road near their home in Alvin, Texas after the truck ran out of gas. A drunk driver, 20-year-old Jose Banda, plowed into the two boys, killing them. Prosecutors accused Barajas of running home, grabbing a pistol, and fatally shooting Banda in revenge, reports the Houston Chronicle. The jury in Barajas' criminal trial, however, wasn't convinced. Why not? Guilt Must Be Beyond a Reasonable Doubt In any criminal trial, the prosecution my show the defendant was guilty beyond a reasonable doubt. A reasonable doubt is generally considered doubt that would cause a reasonable person to hesitate before acting in a matter of importance or which prevents a person from saying with moral certainty that a person is guilty of the crime that person is accused of committing. There were several aspects of prosecutors' case against Barajas that could have created doubt in jurors' minds. There were no witnesses to the alleged murder, and police were unable to find the weapon used to kill Banda. In addition, reports the Houston Chronicle, gunpowder tests performed on Barajas' hands came back negative -- which may have indicated if the father had fired a weapon recently. Jury Nullification In some instances, juries faced with convicting a defendant who they believe may have committed a crime but is being unjustly or unfairly prosecuted may choose to acquit the defendant regardless of the facts. This phenomenon is known as jury nullification. In this case, jurors may have sympathized with Barajas, who had watched his two sons killed by a driver, Banda, who was driving with twice the legal limit of alcohol in his system. In either event, Barajas' constitutional rights to be free of double jeopardy mean that following his acquittal, he may not be charged for the same crime again, even if police uncover new evidence. Related Resources: Dad Acquitted in Slaying of Driver Who Killed Sons (Houston's KTRK-TV) Stand Your Ground Rejected in TX Murder Case (FindLaw's Blotter) Texas Man Shot, Killed Over Flirtatious Tweet (FindLaw's Blotter) When Can a DUI Be Charged as Murder? (FindLaw's Blotter)
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Gay Marriage Legal in Wisconsin and Indiana: 7th. Circuit

Wisconsin and Indiana gay couples were vindicated today by a Seventh Circuit ruling that found both states' gay marriage bans unconstitutional. In a unanimous decision, the federal appellate court found that neither state was able to provide a rational basis for the same-sex marriage prohibition, leaving it to unconstitutionally deny gay couples equal protection of the laws. The Associated Press notes that with this new decision, the number of states with legalized gay marriage jumps from 19 to 21. What else is important about this gay marriage decision? Gay Marriage Now? In June, both Wisconsin and Indiana had their states' gay marriage bans ruled unconstitutional in federal court. In both states, marriages began shortly after each respective federal district court decision, allowing hundreds of gay and lesbian couples to wed. However, upon accepting both appeals, the Seventh Circuit had stayed these decisions, effectively putting marriages on hold until it came to a decision. Now the Seventh Circuit has come to a decision, so it appears that -- absent an emergency stay from the Supreme Court -- gay marriages can begin again in either state. New Test for Discrimination The traditional test for finding a law unconstitutional for violating the Fourteenth Amendment's guarantee of equal protection was to turn to the three levels of constitutional scrutiny. Many courts have chosen to elevate gays and lesbians to a quasi-suspect class, giving laws which discriminate against them a higher level of scrutiny. Others have chosen to apply the lowest level of scrutiny (rational basis) and still find the laws lacking. In its opinion, the Seventh Circuit sought to clear the air with a new inquiry for testing whether laws are unconstitutionally discriminatory: Does it discriminate against a historically prejudiced group, resulting in harmful, unequal treatment? Is the discrimination based on immutable or tenacious characteristics? Does the law provide an important offsetting benefit to society as a whole? Is the law overinclusive or underinclusive in providing that benefit? In answering these questions with regard to Indiana and Wisconsin's laws, the Seventh Circuit found they discriminated against a group that has been historically prejudiced (gays), who cannot and should not change their orientations. It also found that both states' reasons for denying gays marriage (childrearing and possible future harms) were either illusory or were poorly tailored in light of the reality of families in both states. Near the tail end of its opinion, the Court reminded America that "[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law." Related Resources: Appeals court nixes Indiana, Wisconsin gay marriage bans (USA Today) Ky.'s Gay-Marriage Ban Struck Down; Judge Stays Own Ruling (FindLaw's Law and Daily Life) Idaho's Gay Marriage Ban Struck Down; Gov. Vows to Appeal (FindLaw's Decided) Ind. and Wis. Same-Sex Marriage Cases Preview, Hearing Rescheduled (FindLaw's U.S. 7th Circuit Blog)
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Ga. Dad Indicted on Murder Charges for Toddler’s Hot Car Death

A Georgia father who left his toddler in a hot car, leading to the boy's death, was indicted Thursday on eight counts, including malice murder and felony murder. Justin Ross Harris, 33, had initially pleaded not guilty to murder and child cruelty charges in mid-June, but CNN reports that this new grand jury indictment supersedes the previous charges. Prosecutors have alleged that Harris intentionally strapped his child into his overheated SUV to die, claiming that he "wanted a childless life." What does this new indictment mean for this hot-car murder case? Malice, Felony Murder Alleged The grand jury returned with three counts relating to murder: two counts of felony murder and one count of malice murder. While it is unclear what evidence that the grand jury was presented to come to these charges, since the proceedings are secret, we can explain a bit about these two different types of murder indictments: Malice murder. In Georgia, as in many other states, murder may be proved by showing that the defendant had malice aforethought -- the intention to take the life of another human being -- and caused that person's death. This intent can often be implied by a defendant's actions (or inaction) if the circumstances of the killing "show an abandoned and malignant heart." Felony murder. A separate charge of murder can be applied when a defendant causes the death of another during the commission of a dangerous felony. This charge requires no finding of malice. The jury in Harris' case will likely be asked to consider first-degree cruelty to children as an inherently dangerous felony. These murder charges may leave Harris to face life in prison if convicted, or even the death penalty. Other Charges The grand jury's indictment reveals details that make this macabre story of a toddler's death even stranger. In addition to child cruelty charges, Harris was also indicted on attempt to sexually exploit a minor and two counts of dissemination of harmful material to minors, reports CNN. Prosecutors allege that Harris was sexting with women while at work -- one of whom was underage. All the while, Harris' son was strapped in a broiling car parked at his father's workplace. With murder charges looming, these sexting allegations seem to be the least of Harris' worries, but they may certainly make it harder for a jury to believe he was a hapless -- and not malicious -- father.Prosecutors are set to discuss the charges at a news conference this afternoon, CNN reports. Related Resources: Ross Harris indicted on murder, 7 additional charges (Atlanta's WSB-TV) Ga. Toddler's Hot Car Death: Why Is Dad Charged With Murder? (FindLaw's Blotter) Baby Dies in Hot Car, Young Father Arrested (FindLaw's Blotter) Dad, 32, Charged in Toddler's Hot Car Death (FindLaw's Blotter)
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Legal How-To: Getting Back Pay That’s Owed to You

If your employer has violated federal or state employment laws, you may be owed back pay. Back pay is typically the remedy for wage or hour violations, making up the difference between what an employee was actually paid and what he or she should have been paid. How can you get your hands on back pay that may be owed to you? Here are a few general considerations: Fair Labor Standards Act Violations One common source of back pay awards are violations of the Fair Labor Standards Act (FLSA). The FLSA sets federal rules for working conditions and generally also set the minimum standard for states' own employment guidelines. According to the Department of Labor, back pay can be recovered for violations of the FLSA by way of Wage and Hour Division enforcement, a lawsuit, an injunction brought by the Secretary of Labor, or a private lawsuit. In one recent example, the social networking company LinkedIn agreed pay almost $6 million in back pay and damages to employees to 359 employees who were allegedly denied overtime pay in violation of FLSA. In that case, the company agreed to a settlement after an investigation by the Department of Labor discovered the violations. Workers who have a complaint about possible wage and hour violations can submit confidential reports to the Department of Labor's Wage and Hour Division by phone or online. State Law Claims Back pay may also be awarded for violations of state employment laws, which like federal employment law, may typically be enforced by filing a complaint with state labor authorities or pursuing a private lawsuit. Case in point: a cheerleader for the NFL's Oakland Raiders who filed a lawsuit earlier this year alleging violations of California's minimum wage law and a California employment law that requires workers be paid at least twice a month. The lawsuit claimed that cheerleaders were paid less than $5 an hour for work they were contractually obligated to perform in addition to their game-day duties --such as appearances and photo shoots -- and weren't paid at all until after the season was over. If successful, the disgruntled Raiderette could recover damages including both penalties and back pay for the difference between her wage and California's minimum wage as well as any unpaid overtime she was obligated to work. Need More Help? If you believe that you are entitled to back pay, an employment attorney can help ensure that you get everything you're owed. Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo. Related Resources: Who Has the Highest Minimum Wage? (FindLaw's Law and Daily Life) Second Raiderette Joins Wage and Hour Lawsuit (FindLaw's California Case Law Blog) Walmart Sued by Temporary Workers for Wage and Hour Violations (FindLaw's Courtside) Chickie's & Pete's Settlements: $8.5M for Wage, Tip Violations (FindLaw's Decided)
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DNA Exonerates 2 Men Wrongfully Convicted of Murder

Three decades after being convicted of raping murdering an 11-year-old girl in North Carolina, two mentally disabled half-brothers have been declared innocent and ordered released from prison. The two men -- one of whom was sentenced to death, the other to life in prison -- were convicted based in large part on confessions that the men claimed were coerced and which they immediately recanted, reports The New York Times. What was the new evidence that finally convinced a judge the two men were telling the truth about their innocence? Post-Conviction Analysis of DNA Evidence Similar to other recent overturned convictions, the convictions of Henry Lee McCollum and his half-brother Leon Brown were overturned after DNA analysis of evidence collected during the original investigation implicated another man in the crime. In this case the other man was Roscoe Artis, who, according to The New York Times, lived just a block from where 11-year-old Sabrina Buie's body was found. Artis later admitted to raping and murdering a teenage girl. He was convicted and is now serving life in prison for that crime, but has never been charged in relation to Sabrina Buie's death. Case Previously Cited by U.S. Supreme Court Even before the men's exoneration, their convictions had become newsworthy due to the moral divide over death sentences in cases where the defendants are mentally retarded or challenged. Although the Supreme Court denied review of the case, in a dissenting opinion, Justice Blackmun decried McCollum's death sentence as "unconstitutional" given that McCollum "has an IQ between 60 and 69 and the mental age of a 9-year old." Previously, the case had also been cited by Justice Antonin Scalia in his opinion denying certiorari in a different death penalty case, 1994's Callins v. Collins. In his opinion, Scalia described McCollum's death sentence as "enviable" and "a quiet death" compared to the death of Buie. However, now Brown and McCollum's case is equally noteworthy as the latest murder conviction overturned through the use of DNA evidence. According to The New York Times, the men were set to be released from prison today. Related Resources: After 30 years in prison, two mentally challenged men exonerated in North Carolina rape-murder case (The Washington Post) Ohio Man Freed by DNA Evidence After 29 Years in Prison (FindLaw's Blotter) DNA Evidence Clears 2 Men After 30 Years (FindLaw's Blotter) NYC Reviewing 800 Rape Cases for Evidence Errors (FindLaw's Blotter)
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O’Hare Shuttle Bus Crash Injures 14; 1st Lawsuit Filed

One of the 14 people injured in a shuttle bus crash at Chicago's O'Hare International Airport has filed a lawsuit against the bus driver and the company that owns the bus. Talipha Charles suffered broken bones, contusions, and other injuries in the crash, the Daily Herald reports. According to Charles' lawyer, the bus driver was speeding at the time of the collision and failed to stay in the proper lane, causing the bus to crash into a concrete median. How will these allegations affect both the driver's and the bus company's potential liability for the crash? Bus Accident Lawsuits Lawsuits arising from bus accidents may be somewhat different than lawsuits involving ordinary automobile accidents. That's because buses are typically considered common carriers under both federal and state law, meaning that they are held to a higher standard of safe operation than other vehicles on the road. Generally, common carriers must use the utmost care in transporting their passengers. In addition to proving that the carrier breached its duty to keep passengers safe, a plaintiff in a bus accident case must also generally prove that the carrier's breach was the cause of her injuries. Negligence Per Se If Charles can prove that the driver of the bus was violating traffic laws at the time of the accident, then she may be able to hold the driver and the bus company liable for her injuries under the legal theory of negligence per se. If a plaintiff alleging negligence can show that the defendant violated a statute that involves safety, and that statute was meant to protect those in the plaintiff's position against the type of harm suffered by the plaintiff in the accident, then the defendant can be found liable for the plaintiff's injuries by negligence per se. In this case, the traffic laws allegedly violated by the bus driver were meant to protect others on the road, such as passengers, from being injured in auto accidents, so negligence per se may apply. Whenever an employee of a business is found negligent while performing a job related duty, the employer may also be vicariously liable for their employee's negligence through the doctrine of respondeat superior. In addition, the bus company may be found liable through negligence of their own, such as negligent training or negligent supervision of the driver.As for the defendants, local news sources have been unable to reach them for comment. Related Resources: Passenger Files Lawsuit Following O'Hare Shuttle Bus Crash (Chicago's WBBM Newsradio) Greyhound Bus Crash in Ohio Injures 34 (FindLaw's Injured) FedEx, Bus Company Sued Over Crash That Killed 10 (FindLaw's Injured) Missouri School Bus Crash Kills 2, Injures More (FindLaw's Injured)
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