Articles Posted in Wrongful Death

Lots-of-Guns-300x200I have posted several blogs regarding the legal considerations surrounding firearms. The first post related to the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”), which prohibits lawsuits against gun manufacturers and dealers, except under very limited circumstances. I also wrote about the surviving families of the Sandy Hook massacre’s lawsuit against Remington Arms Co., under PLCAA, based upon violation of a state consumer protection law. More recently, I wrote about the City of Kansas City’s lawsuit against a gun manufacturer, Jiménez Arms, and several gun dealers arising out of a gun trafficking ring. This blog explores that trafficking ring, how it worked, and what damage it caused before it collapsed with the arrest of the main perpetrator, James Samuels, on October 4, 2018.

Samuels, a captain with the Kansas City fire department illegally traded in arms from 2013 to 2018. Domestic gun traffickers usually sell to two types of clients. First, they sell firearms to “prohibited persons,” which are individuals restricted from owning or possession a firearm. Under federal law, anyone convicted of a felony is permanently banned from owning or possessing a gun. This leads to the second reason gun traffickers exist. The guns they sell will not be traceable to the purchaser, as the transaction is not recorded. Much of the time, the gun has been reported stolen, so it has no owner. A felon that wants to have a firearm can buy that gun from a trafficker, and when if it is used in the commission of crime, it can be disposed of without concern of being identified through its registration.

On November 22, 2013, Samuels placed a call to Jiménez Arms, a gun manufacturer with the reputation for building very cheap pistols, ideal for disposal after committing a crime. He told the company contact that he was a firefighter but worked part-time at Conceal & Carry (C&C), a gun dealer in Kansas City. The manufacturer received confirmation from C&C that Samuels in-fact worked for the dealer. As a consequence, it gave Samuels permission to purchase guns.

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As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

pistol-and-bullets-300x200In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”)into effect. The PLCAA prevents gun manufacturers and dealers from being sued in relationship to the production and/or sale of firearms, subject to a few exceptions. Historically, these exceptions have been construed narrowly, and as a consequence, manufacturers and dealers have been immune to most types of lawsuits.

The PLCAA permits certain commercial suits, such as a contractual dispute or a claim for breach of warranty. § 7903(5)(A)(iv). Further, immunity does not extend to the defective design or manufacture of a firearm. § 7903(5)(A)(v). Gun manufacturers are subject to the same rules as any other manufacturer of consumer goods. If a manufacturer places a firearm into the stream of commerce which malfunctions due to defective parts or improper assembly, or if it was designed in a dangerous manner and poses an unreasonable danger when operated, the manufacturer can be held liable for resulting injury.

Other exceptions apply when dealers provide firearms to people who should not have one in their possession. One such exception involves negligent entrustment. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as the act of supplying a firearm to someone the seller knew, or should have known, would likely injure others with the gun. § 7903(5)(B). Similarly, if a dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, the dealer is susceptible to suit. § 7903(5)(A)(i).

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Despite decades of government programs discourage drinking and driving, drunk driving represents one of the major causes of all Michigan car accidents. Indeed, it is estimated that approximately 27% of all serious Michigan car accidents are caused by drunk or drugged driving. Michigan lawmakers take drunk driving seriously, and have enacted a strict set of penalties to punish those found guilty of drunk driving. However, criminal cases are more concerned with punishing an alleged drunk driver for violating the law than providing financial assistance to injury victims. Thus, criminal proceedings often provide little solace for accident victims.

While a criminal case against a drunk driver may not provide much help to an accident victim, anyone who has been injured in a Michigan DUI accident may be able to pursue a claim for compensation against the allegedly drunk driver through a civil personal injury lawsuit. If a crash results in the death of an accident victim, the surviving family members of the deceased may pursue a Michigan wrongful death claim.

In the event that the defendant dies as a result of the accident, injured parties are not without a remedy. This is because Michigan car accident victims can name the estate of an allegedly negligent driver in either a personal injury or wrongful death case.

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In 2011, the plaintiff was hit and killed by a train in Wayne County, Michigan. His representatives sued the train operators responsible for the crossing where the accident happened. After a trial, the jury found the defendants not liable for the plaintiff’s death. Now the plaintiff is asking for a new trial.

Grounds for a New Trial 

In federal court, there are many reasons that a court can grant a new trial. These include that the verdict is against the weight of the evidence, there were substantial errors in the admission or exclusion of evidence, or other reasons that leads the court to believe that the trial was unfair. The plaintiff here puts forth five different arguments as to why there should be a new trial.

The first argument that the plaintiff makes is that it was improper for the court to allow in evidence about the plaintiff’s medications. Specifically, the medical examiner’s testimony that the deceased had an antidepressant that can cause suicidal ideations. The plaintiff can only get a new trial by proving that the court abused its discretion by allowing this evidence to be heard by the jury. Here, the Eastern District Court of Michigan held that the evidence was properly allowed in.

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Last month, the parents of a 15-year-old filed a federal lawsuit seeking $50 million from a Michigan State Police Officer. The victim died on August 26th after crashing his ATV into a pickup truck. The crash was prompted when the officer, who was trying to get the victim off the road during a chase, reached out of his patrol car and Tasered the victim. The victim was not armed, and it’s against Michigan State Police policy to use a Taser from a moving vehicle. Detroit police are investigating the fatal incident.The plaintiffs’ lawyer said the officer shot “like a cowboy” out of his car. The officer’s lawyer said that the victim was driving his ATV dangerously and recklessly to actively evade being arrested. The officer was therefore, according to his attorney, forced to make a split-second decision on the scene during an uncertain, tense, and quickly changing situation. His attorney concluded that the officer was cooperative in the investigation and trusted that the investigators would assess the facts objectively.

The 43-year-old officer joined the Michigan State Police’s Metro Post in 2012, after serving for three years with the Canton Township Police. He graduated from the Wayne County Regional Police Academy in November 2008. He earned his BA from Texas A&M, a Master’s from University of Texas at Arlington, and a JD from Ava Maria School of Law. In June, he was honored by Detroit Wayne Mental Health Authority for saving the lives of overdose victims by using Naloxone.

According to court records, however, the officer has a history of excessive force. Two lawsuits have been filed against him in the last four years. The first was filed in 2013 in federal court in Detroit and alleged that he beat an unarmed man who was never charged with a crime. The case claimed that several Michigan State Police troopers approached and then violently tackled the plaintiff at a Detroit hospital without provocation. The plaintiff posed no threat, but the officer nonetheless repeatedly kneed the plaintiff in the face while he was lying defenseless on the ground. The case was settled a year after it was filed, in October 2014.

Over five years after a man was beaten to death inside the Grand Rapids Home for Veterans, his family is finally getting closure. His survivors reached a financial settlement for $544,000 in their civil lawsuit against the state of Michigan. The state will also cover $281,000 in attorneys fees and court costs. Sadly, however, the victim’s wife, sister, brother, and daughter have all passed since the filing of the lawsuit. The settlement was approved by his other family members in Michigan.The victim, a World War II veteran who suffered from Alzheimer’s disease, was attacked in April 2012 by another patient. He passed away just days after the attack from injuries he sustained during it, and the Kent County medical examiner ruled it a homicide. The prosecutor, however, did not file criminal charges. The prosecutor reasoned that he did not wish to compound the tragedy by prosecuting the suspect, who was also in the advanced stages of Alzheimer’s and dementia. He concluded that prosecuting him in addition would accomplish nothing, particularly since he likely has no memory of the attack.

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A plaintiff, suing on behalf of his deceased son’s estate, appealed an order granting summary disposition in favor of the defendant school officials in a case stemming from his son’s suicide. The appeals court affirmed the lower court’s holding for the defendants.In March 2012, the son was a 17-year-old senior at Marysville High School when he was suspected of stealing a teacher’s laptop. Instead of contacting the police and pursuing criminal charges, as advised by the school district’s attorney, the matter was handled as a school discipline issue.

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On behalf of a victim’s estate, a plaintiff sued A Forever Recovery, Inc. (AFR) and a specialist for ordinary and medical negligence. She appealed the trial court’s opinion granting summary disposition to the defendants, pursuant to MCR 2.116(C)(8). The Michigan appeals court affirmed.This case arose out of the victim’s seeking treatment at AFR for drug addiction. A Texas resident, he was 23 years old when he died. He underwent inpatient rehabilitation treatment at AFR in Michigan for several months in 2011.

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Shortly before attempting to hang herself at Women’s Huron Valley Correctional Facility, 25-year-old inmate Janika Edmond asked prison guards for a suicide prevention vest, a restrictive smock with Velcro used to prevent someone from being able to hurt themselves. State corrections officers Dianna Callahan and Kory Moore ignored her plea for help.Instead, the officers began talking between themselves about a bet they had placed on when Edmond would ask for a vest. Callahan won the bet, so she began taunting Moore about how she now owed her a Subway sandwich. Callahan can be heard on security video at the prison, shouting “Somebody owes me lunch.”

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