Vegetable Recall

See this CNN article about recalls of sprouts, parsley, and cilantro. The parsley and cilantro have both been linked to Washington state. The sprouts were sold to Jimmy John's franchises.

Teaching Schools Not To Hire Sex Offenders

You remember those ads from the 90s that would say, "It's 1:00 a.m., do you know where your children are?" Change that to 1:00 p.m. because, apparently, twenty years later, schools still haven't figured out how to not hire sex offenders. Yes, schools, the one place away from home where parents feel their kids will be safe, even if not learning anything. This is not an isolated problem. According to an editorial in the Seattle Times, "The number of students who are victims of sexual misconduct by a school employee between their kindergarten and 12th-grade school years is estimated by federal officials as in the millions. Much of the sexual abuse goes unreported."

Per the editorial, the Government Accountability Office (GAO) recently determined that school districts enable misconduct by not performing criminal background checks, performing inadequate screening, and ignoring red flags (e.g., applicant leaves criminal history question blank... oh well). The GAO attributed these failures to district officials not wanting to spend the time and money to perform extensive background checks on new applicants.

Another potential cause identified is that the offender's prior district is often reluctant to report misconduct out of fear of lawsuits. Some even provide glowing recommendations. If district officials do this out of fear of lawsuits, they need to reeducate themselves.

First, one cannot be liable for defamation for telling the truth about misconduct. Even in the event where a prior employer mistakenly communicates inaccurate details about misconduct, the former employer is typically protected by a qualified privilege due to their common interest, as well as the more general public interest. The end result is that the potential employee has to prove negligence, if not actual malice, on the part of the former employer, in making inaccurate statements. (See caveat below).

Given the small legal risk compared to the immense public interest, one would hope school districts could find the time and money to, at the very least, afford students the opportunity to not be harmed where they are supposed to be learning.

Amendment: Thanks to The Amateur Law Professor Justin Walsh for keeping up with case law and keeping me on my toes. He rightly points out that Bellevue John Does vs. Bellevue School District establishes privacy rights for teachers who are the subject of unsubstantiated or patently false accusations. Information related to such instances must not be disclosed.

I should emphasize that the short paragraph above about defamation is an oversimplification of two hundred years of case law. My point is that defamation or similar torts, such as public disclosure of private facts, are generally not in play when school districts communicate regarding instances of actual misconduct.

Scuba Diver Left at Sea Wins Lawsuit

I found this story especially interesting because I'm a Scuba Divemaster (professional level recreational diver).

Daniel Carlock, an aerospace engineer from Santa Monica, CA, won a $1.68 million verdict against a Scuba company running a dive boat in CA. Carlock surfaced about 400 ft from the boat after having trouble equalizing the pressure in his ears. He tried to swim back but got cramps. He then blew on his emergency whistle and inflated his yellow emergency diving sausage, but did not get anyone's attention.

The divemaster on the boat marked him as present before the ship took off for another dive site seven miles away. At that site, Carlock was marked on the dive roster as having taken the second dive. Not until several hours later did anyone realize he was missing.

Crew radioed the Coast Guard, which came to the second dive site. Meanwhile, Carlock was drifting south of the first dive site into strong currents, believing his death was imminent.

The Coast Guard never found Carlock. He was rescued by a ship carrying a bunch of boy scouts (literally), when one scout looking through his binoculars happened to see Carlock. The ship had changed course to avoid colliding with a freighter. Otherwise, Carlock would have been out of sight.

Carlock was in the water for five hours. He suffers from PTSD and now has skin cancer as a result of the sun exposure on the water.

Total damages amounted to $2 million, but the jury found Carlock partially at fault for surfacing away from the boat after the divers had been told to surface near the boat. The Scuba company tried to have the case dismissed on the grounds that divers assume the risks of the sport. They failed. The judge appropriately noted that being abandoned at sea is not a risk inherent in Scuba diving.

What this dive company did is beyond negligence. The single most fundamental and important task of being a Divemaster is assuring that everyone who got in the water gets back on the boat before you leave. You do this by calling names out, in addition to seeing the divers (after all, people often look the same in wetsuits or drysuits). You demand that each diver has a buddy, even if it's a stranger. Each person is responsible for at least checking on his or her buddy, both inside and outside the water. This dive company failed the most basic safety procedure, and did so multiple times.

As for the plaintiff's contributory fault, yes, you are supposed to surface near the boat. But sometimes you need to surface where you are. Under some circumstances it's more dangerous to navigate back underwater. Even if he were negligent, however, his emergency whistle and inflatable sausage should have mitigated the negligence.

When the Criminal Justice System Fails Future Victims

A man has been charged with killing 24 year old Arpana Jinaga on Halloween two years ago. The man, Emanuel Fair, 27, pleaded guilty to two counts of third degree child rape of a 15 year old in 2004. His other priors include second-degree robbery, unlawful firearms possession and drug possession. Somebody please explain why this man was out of prison in 2008.

His crime is described by the Seattle Times as follows:

"The defendant opened the locked door to Jinaga's apartment, attacked her, stripped off her clothing, gagged her, assaulted her and finally strangled her to death," Senior Deputy Prosecutor Jeff Baird said in charging paperwork.

Jinaga had been gagged while she was attacked and the killer used motor oil and bleach on her body, charging documents said. Her Halloween costume, a blanket from her bed and a portion of the carpet from her apartment had been burned.

Social Media Categorically Discoverable

Hopes of some measure of social media privacy are dwindling, according to cases cited by the Delaware Employment Law Blog. In two cases from other states, Romano v. Steelcase and McMillen v. Hummingbird Speedway, courts allowed parties access to social networking materials in the course of litigation. In McMillen, the court went as far as to demand disclosure of user names and passwords, arguing that Pennsylvania does not recognize a "social media privilege." The actual order and opinion can be found here.

Regardless of minor differences in Pennsylvania discovery rules and Washington's rules, this result has to be wrong. The majority of the discovery process is founded upon providing content to the other side in good faith (or else face sanctions). Allowing the other party to obtain direct and unlimited access is akin to allowing a six month pass to an entire warehouse--the scope is inappropriately broad and invasive. There is no need to provide access to hoards of unrelated and private information when the user can provide copies of all relevant posts, pictures, etc.

At least as reported in the McMillen court's order, the fatal flaw in the plaintiff's argument was to ask for too much, a confidentiality privilege. For my non-lawyer friends, privileges, especially absolute privileges, are typically based in a long legislative and common law history and recognized public policy. This means that new privileges are hard to come by. In this case, precedent is largely against the creation of a privilege for social networking materials, as many courts around the country permit access to emails, text messages, and other electronic information. The better argument is to fight the scope and explain the electronic analogy of access to someone's home/warehouse. Just like with physical space, the proper procedure is to ask for content (not access) "related to" x, y, and z. Unless there is evidence the party is responding in bad faith, actual access should not be necessary.

More Toyota/Lexus Recalls

Toyota/Lexus announces recall of 1.53 million cars in Japan and the U.S. for a brake problem that causes fluid leak. Yes, a brake problem.

Facebook Privacy Breach