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Tag Archives: Tort/Negligence

Tort/Negligence – Contract — Proposed Mountain Development – Faulty Appraisals — Unfair Trade Practices – Real Property — Summary Judgment-Rule 37 (access required)

In re Fifth Third Bank Even though appraisals of mountain property were six times higher than the land’s final tax value, we reject the buyers’ claims of unfair trade practices, negligence and negligent misrepresentation because the buyers did not rely upon the appraisals in deciding whether to purchase the lots. Where the underlying tort claims fail, the claim of civil conspiracy also fails. Further, we affirm the trial court’s award of costs to defendants, and affirm exclusion of plaintiff’s expert testimony, which was submitted late and included false statements as to the timing.

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Attorneys – Tort/Negligence – Legal Malpractice – Civil Practice – Collateral Estoppel – Statute of Limitations (access required)

Royster v. McNamara In a prior fraud case against the current plaintiff — Kevin Royster — and other employees in a family business, the family’s motion for a new trial was denied, and this court affirmed the denial. However, in the fraud case, both the jury instructions and the new trial motion applied to the family as a group and not to Mr. Royster individually. There was evidence that Mr. Royster had no dealings with the fraud plaintiff. Mr. Royster’s legal malpractice claim against the family’s attorney in the fraud case is not barred by collateral estoppel.

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Labor & Employment – Tort/Negligence – Wrongful Discharge – Race Discrimination Claim – Attorneys – Mortgage Securitization Work – Performance — Conversion (access required)

Springs v. Mayer Brown, LLP Despite significant evidence that plaintiff was performing poorly as an associate at the defendant-law firm, not long before a partner fired her, the same partner filed an affidavit with the New York State Court, Appellate Division, regarding plaintiff’s performance and suitability as a “waive-in” candidate for admission to the New York Bar. In that affidavit, the partner averred that he supervised plaintiff and that her duties were “satisfactorily” performed. This is some evidence that the law firm’s proffered reason for firing plaintiff - poor job performance - was a pretext for discrimination.

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Tort/Negligence – Breach of Fiduciary Duty – Civil Practice – Statute of Limitations – Trusts & Estates – Attempted Resignation (access required)

Wortman v. Hutaff Since there were no qualified trust beneficiaries at the time the defendants submitted their resignations as trustees and as executors of the settlor’s estate, defendants were required to obtain court approval before resigning. Plaintiffs allege that defendants were negligent and breached their fiduciary duty to plaintiffs when, after they ineffectively resigned, defendants failed to protect estate-owned property that might have eventually been transferred to the pour-over trust once the estate was settled. Because these acts and omissions occurred less than three years before plaintiffs filed their complaint, plaintiffs’ claims are not time-barred.

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Labor & Employment – FMLA – Disability Discrimination – Tort/Negligence – Public Policy – Emotional Distress (access required)

Satterwhite v. Wal-Mart Stores East, L.P. N.C. courts have not recognized a public policy exception to the at-will employment rule based on a violation of the Family and Medical Leave Act. Plaintiff has failed to state a claim for wrongful discharge in violation of public policy.

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Tort/Negligence – Background Check – Civil Practice – Federal Question Jurisdiction – FCRA – Domestic Relations (access required)

Benzing v. Tharrington-Smith, LLP Plaintiff claims that defendants wrongfully obtained a background check on him for use in domestic violence and child custody matters. Plaintiff’s allegations state a claim under the Fair Credit Reporting Act, so this court has federal question jurisdiction.

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Tort/Negligence – FTCA – Scope of Employment – National Guard – Assault on Recruit – Negligent Supervision (access required)

Pittman v. United States Even though the Federal Tort Claims Act does not waive the government’s sovereign immunity with regard to intentional torts, plaintiff has nevertheless stated a claim by alleging that a National Guard sergeant failed to intervene while a specialist under his command gave alcohol to a 17-year-old recruit and engaged in sexual relations with her.

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Tort/Negligence – Counterclaims – Contract Case – Prospective Economic Advantage – Unfair Trade Practices – Negligence – Crop Treatments (access required)

Crop Production Services, Inc. v. Ormond Defendants allege generally that, once this contract dispute arose, plaintiff strong-armed defendants’ usual suppliers into refusing to do business with defendants. However, defendants do not explicitly assert that they expected to buy supplies from their “regular suppliers”; moreover, defendants do not allege the nature and length of their relationship with these suppliers or even the suppliers’ names and locations. Therefore, defendants have failed to state a claim for tortious interference with a prospective economic advantage.

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Tort/Negligence – Products Liability – Medication Pump – Preemption – Medical Device Amendments of 1976 (access required)

Walker v. Medtronic Inc. The 4th Circuit upholds the district court decision that plaintiff has no common law tort claim against defendant Medtronic, maker of the allegedly defective SynchroMed pump for delivery of medication through a catheter, as her claim is preempted by the Medical Device Amendments of 1976 and regulations which provided for premarket approval by the federal Food and Drug Administration.

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