Humphrey & Petersen, P.C.

Humphrey & Petersen, P.C. Humphrey and Petersen provides excellence in legal representation to professionals, businesses, muni

06/06/2018

Setting Aside Default Judgments
by Andrew. J. Petersen

The law favors resolving cases on their merits. Sometimes defendants fail to timely answer a lawsuit. The insured may provide notice to the insurance carrier, but for some reason, there is delay and an answer is not timely filed. Rule 60(b) allows a defendant to later move to set aside the default under certain circumstances. In deciding whether to set aside a judgment, the trial court may consider whether there was due diligence, excusable neglect, or a meritorious defense. Trial courts are given broad discretion. “Because the law favors resolution on the merits, all doubts are to be resolved in favor of the moving party and the trial court is given broad discretion to grant or deny relief. That discretion extends not only to the adequacy of the factual showing but also to the balancing in particular cases of the competing legal principles favoring finality of judgments and resolution on the merits.” Addison v. Cienega, Ltd., 146 Ariz. 322, 323, 705 P.2d 1373, 1374 (App. 1985).

11/20/2017

Intent
by Andrew J. Petersen

In a recent Arizona Court of Appeals case involving the use of a canine to subdue a suspect, the Court discussed whether the intentional release of the canine was an intentional tort (battery) or was a consequence of a negligent act, i.e., a misperception of fact. The distinction was important because the court held the justification statutes for use of force by a law enforcement officer do not apply to a negligence claim but only to an intentional tort case such as battery. McDonald v. Napier (Division II, Arizona Court of Appeals, October 18, 2017). This decision raises a question of what exactly is an intentional tort and how is it different from negligence.

For the complete article, contact Humphrey & Petersen, P.C. at [email protected], or call (520) 795-1900.

08/22/2017

Too Trivial to Be Actionable
by Andrew J. Petersen

Recognizing the earth is not flat, New York’s premises liability law holds:

A property owner may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection.

Chirumbolo v. 78 Exch. St., LLC, 137 A.D.3d 1358 (2016). This “too trivial to be actionable” doctrine holds that courts can decide as a matter of law the condition is not unreasonably dangerous by considering “such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury.” Id. New York also rejects allowing a plaintiff to use the Americans with Disabilities Act accessibility standards as a safety standard of care. Id. at 1360.

For the complete article, contact Humphrey & Petersen, P.C. at [email protected], or call (520) 795-1900.

06/12/2017

The Half Death of the Irreparable Injury Rule
by Andrew J. Petersen

The irreparable injury rule is based on a body of cases where courts have denied injunctive relief when the complainant has an adequate legal remedy, i.e., monetary damages. In 1990, Douglas Laycock wrote a law review article entitled The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687 (1990). A year later, his research became a book, and he argues against use of the rule, quite convincingly. Professor Laycock concludes that the irreparable injury rule is misleading rhetoric because of the numerous cases where the meaning of “adequate” or “irreparable” is result oriented. The rule fosters inconsistency and an outdated hierarchy of remedies: “When a judge believes that the irreparable injury rule requires a wrong result, he may do what he thinks is right whether or not he can explain it.” The rule is not a significant barrier to equitable relief because the legal remedy is almost never adequate. Professor Laycock concludes that often damages are not adequate unless the law wants them to be.

For the complete article, contact Humphrey & Petersen, P.C. at [email protected], or call (520) 795-1900.

02/10/2017

Supreme Court Nominee Judge Gorsuch
by Andrew J. Petersen

I have reviewed several of Judge Gorsuch’s opinions from the 10th Circuit Court of Appeals involving claims against public officials and governmental entities.The Supreme Court’s docket always includes several §1983 cases. Cases this term include: District of Columbia v. Wesby (Fourth Amendment claims against officers for citing partygoers for trespass); Manuel v. City of Joliet (Fourth Amendment claim and relationship to malicious prosecution); and County of Los Angeles v. Mendez (so-called Ninth Circuit provocation rule and Fourth Amendment). It is unlikely that Judge Gorsuch will be confirmed in time to participate in these cases. Manuel v. City of Joliet was argued back in October. County of Los Angeles v. Mendez will be argued March 22nd. I believe the standard practice is for a new justice not to participate in previously argued cases. Cases are argued through April.

For the complete article, contact Humphrey & Petersen, P.C. at [email protected], or call (520) 795-1900.

01/11/2017

The Subcontractor Exception to the “Your Work” Exclusion
by Andrew J. Petersen

The standard CGL policy includes a “your work” exclusion stating that the insurance does not apply to property damage to “your work” arising out of or in any part of it and included in the products completed operations hazard. This exclusion prevents a general liability policy from becoming a performance bond by excluding the insured’s work. There is an exception to the exclusion when the work was performed by a subcontractor. Over the years, this exception to the “your work” exclusion has become one of the leading ways to find coverage for construction defects.

For the complete article, contact Humphrey & Petersen, P.C. at [email protected], or call (520) 795-1900.

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