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What if the Wicked Witch Had Just Hired a Lawyer Instead . . .

July 8th, 2016 Comments off

Almira Gulch a/k/a the Wicked Witch of the West, as Executor of the Estate of the Wicked Witch of the East, deceased v. Dorothy Gale

United States District Court of Kansas

Index No.: 20154-1939

Hon. L. Frank Baum, U.S.D.C. Senior Judge Presiding

Plaintiff counsel: Margaret Hamilton, Esq., Hamilton, Walshe & Lewis, LLP

Defense counsel: Raymond Bulger, Esq., Bulger, Haley & Lahr, Esqs.

MEMORANDUM AND ORDER

History


The plaintiff, who was the decedent’s sister, qualified and was appointed as Executor for the decedent’s estate pursuant to the decedent’s Last Will and Testament.  Thereafter she brought an action for conversion of property and wrongful death in the Supreme Court of the Magical Land of Oz.  Defendant answered and made a motion to remove the case to this court, the District Court of the United States for the State of Kansas.  Removal was granted based upon federal diversity jurisdiction as enumerated in 28 U.S. Code § 1441, titled “Removal of Civil Actions.”

The case comes before the court on two motions.   The first, by the plaintiff, is to dismiss the action based upon a claim of  forum non conveniens.  The second, by the defendant, is for summary judgment on the wrongful death claim on the grounds that, as a matter of law, she is not civilly liable for the death of the decedent.

Facts

On July 23, 1939, the defendant, Gale, finding herself suddenly engulfed by a tornado and unable to reach the safety of her family’s storm cellar, sought safety with her dog, Toto, in their residence.  Thereafter, the storm became one of such great magnitude and extraordinary power, that it lifted the residence off its foundation and propelled it into the air and thus into the eye of the storm.  The residence came to rest in Munchkinland in the Magical Land of Oz with great force and struck the plaintiff’s decedent causing her to sustain serious personal injuries and to die.  The defendant (and her little dog, too) survived the crash.

The defendant may have been disoriented by the crash, as her description of its locale, its inhabitants, and her recitation of the subsequent course of events is fanciful and less than credible.  There is evidence that she may have suffered a concussion upon landing.  Alternatively, she may have been under the influence of hallucinogenic drugs, as she testified that at one point she fell asleep in a field of poppies.

Although the defendant’s tale is farcical, her counsel contends that it is supported by an independent witness.   The plaintiff alleged that the man was brainless.  Nevertheless he very articulately and intelligently testified at deposition that the defendant’s description of the location was accurate and that Munchkinland is a real place in the land of Oz.  Furthermore, he testified that it is the beginning of a Yellow Brick Road that he and the defendant later traveled intending to meet someone named “the Wizard.”

Plaintiff’s counsel claims that the witness’ testimony is irrelevant and that defendant’s  counsel offers it as a “straw man argument” which has no relevance to the issue of whether the defendant was  negligent or committed an intentional tort.   In other words, counsel claims that the witness’confirmation of the defendant’s description actually refutes an argument that is not germane to the plaintiff’s claims.

Two other witnesses were subpoenaed to appear at deposition.  One, a recent heart transplant recipient, was excused for medical reasons.  The other apparently fled the jurisdiction rather than testify – a cowardly act, by any measure.

By the wrongful death claim, the plaintiff pled liability based upon alternative theories of intentional tort and negligence.  Upon information and belief, the Munchinland  District Attorney investigated the accident but refused to prosecute for manslaughter,  as there was no evidence that the defendant intended to crash the house in which she was flying.  The defendant had no prior contact with the decedent nor is she known to be a member of any extremist terrorist organization.   The plaintiff subsequently amended her pleading to withdraw the allegation of an intentional tort and, now, relies soley upon the negligence claim.  The defendant has denied all allegations of negligence and it is this issue that lies before the court.

The plaintiff seeks compensation for (1) the decedent’s conscious pain and suffering, (2) the value of support and services the deceased provided to her family, and (3) burial expenses.

In her defense, the defendant argues that the decedent died upon impact, or, alternatively, was immediately rendered unconscious.  Therefore, she did not suffer conscious pain.  Although there were no emergency medical personnel who attended to the decedent at the scene of the accident, there were several witnesses including members of a candy merchant’s guild and employees of a local sleep clinic.  All of these testified that the decedent did not appear to be breathing after she was struck by the house.  Their opinions were confirmed by the local coroner who quoted, “As coroner I must aver, I thoroughly examined her.  And she’s not only merely dead, she’s really most sincerely dead.”   To date, the plaintiff has offered no competent medical evidence that the decedent survived the crash for any length of time, but that issue is yet to be resolved and the court reserves judgment.

The decedent was unmarried and childless.  The plaintiff alleges that her sister supported her, but the defendant disputes this and claims that the plaintiff is independently wealthy.  She asserts that the plaintiff lives in a castle and employs a fleet of Flying Monkeys and Winkie Guards.  The source of the plaintiff’s wealth is under investigation by Ozian Federal Authorities  who suspect that the Witch, the Monkeys and the Guards have derived income, directly or indirectly, from a pattern of racketeering activity including kidnap for ransom, menacing and extortion.  Although formal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, have not been brought against this group, the allegations, if accurate will likely disprove the plaintiff’s claim that she was supported by the decedent.

The defendant also challenges the plaintiff’s claim to have incurred burial costs.  After the coroner declared her dead, a torrential rainstorm prevented Munchkins from retrieving the body.  Later they recovered the decedent’s hat, dress and coat piled in a heap, but the  decedent’s body was not found and seemed to have melted away.

Nevertheless, for the purposes of this motion, I will presume the plaintiff’s damages under the wrongful death claim to be genuine.

The plaintiff also asserts that after the crash, the defendant absconded with the decedent’s personal property – to wit: a pair of Ruby Slippers, value unproven, but alleged to have magical powers.  The plaintiff claims that the defendant unlawfully appropriated the slippers.  The plaintiff claims that they were gifted to her by one of the decedent’s distant relatives who glued them to her feet.

In any event, the conversion claim is not the subject of the plaintiff’s summary judgment motion.

Legal Analysis

The common-law doctrine of forum non conveniens provides a federal district court with the discretion to decline to accept jurisdiction over an action in favor of a more convenient venue where the interests of justice indicate that the action should be tried in another forum. See, e.g., Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 429 (2007); Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003).  Under the doctrine, a district court has the inherent power to decline to exercise jurisdiction even where venue is proper.  The defendant believes that, as a witch, she cannot get a fair trial inasmuch as Kansans are by reputation, conservative and bible-thumping Christians.  While the court is sympathetic to the defendant’s concerns, she is not likely to find a more sympathetic jury in any other jurisdiction.  The plaintiff’s motion is denied.

Previously, the plaintiff moved pursuant to 28 U.S.C. §144 demanding that this Court recuse itself.  She claimed that this Court was unable to perform its judicial duties impartially, competently and diligently because she is green and the Court is Caucasian.  The Court denied her motion.  As no sitting federal district court judge is green, the “rule of necessity” as enunciated by Chief Justice Burger in United States v. Will, 449 U.S. 200 (1980) Trumps the plaintiff’s objection.

Apparently, the Munchkins are not a litigious people and there is little or no case law regarding negligence claims in the history of Munchinland jurisprudence.  Citing an obscure choice of law clause in the purchase agreement for the Ruby Slippers, the defendant claims that the case should be decided under New York law.  This court agrees.

As previously stated, the plaintiff’s claim for wrongful death is predicated on a claim of  negligence.  Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same situation.  See: Gray v Gouz, Inc., 204 A.D.2d 390, 611 N.Y.S.2d 637 (1994); It is not a fixed concept, but is shaped by “time, place and circumstance” (Sadowski v Long Island R.R. Co., 292 N.Y. 448, 455, (1944).

In her defense, the defendant has asserted a defense based upon the common-law emergency doctrines which recognizes that, faced with an emergency, even a reasonable person might choose a course of action which, in hindsight, proves to have been mistaken or ill-advised.  It holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.  See: Caristo v Sanzone, 96 N.Y.2d 172, 174 (2001); Rivera v New York City Tr. Auth., 77 N.Y.2d 322, 327 (1991).

The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances.  See: Amaro v City of New York, 40 N.Y.2d 30, 36 (1976).

Although the existence of an emergency and the reasonableness of a party’s response to it will ordinarily present questions of fact.  See: Morgan v Ski Roundtop, 290 A.D.2d 618 (2002), they may in appropriate circumstances be determined as a matter of law.  See:  Huggins v Figueroa, 305 A.D.2d 460 (2003).  Here, invoking the emergency doctrine, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that her emergency landing of the house in which she was traveling was made only when the tornado, an act of God, forced her to make an emergency landing.  Apparently, the defendant’s house was not equipped with any brakes or steering mechanism.  Given these circumstances, it is apparent that the defendant had no other course of action but to land the house emergently in the place where the accident occurred.

Although negligence actions are not normally the subject of summary judgment motions, the factual circumstances of this case will lead this Court to the conclusion that summary judgment is appropriate.  Summary judgment is proper to eliminate unnecessary expense to litigants where no issue of material fact is present to justify a trial.  See: Axelrod v. Armitstead, 36 A.D.2d 593 (1st Dept. 1971); Donlon v. Pugliese, 27 A.D.2d 786 (3d Dept. 1967).  In Morowitz v Norton, 150 A.D.2D 536, 51 N.Y.S.2d 122 (2d Dept. 1989), the Court ruled that, “although negligence cases do not generally lend themselves to resolution by a motion for summary judgment, the Court will grant such a motion where, as here, the facts clearly point to the negligence of one party without any culpable conduct from the other.”  While summary judgment is granted infrequently in negligence actions, the remedy should be granted where there is no triable issue of fact. The Court of Appeals in Hartford Acc. & Ind. v. Wesolowski, 33 N.Y.2d 169 (1973), indicated that “the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR § 3232(b)).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s cause of action for wrongful death and personal injury is dismissed. The plaintiff’s motion to dismiss the action based upon a claim of forum non conveniens is denied.  This is a non-final disposition of the case.  The plaintiff’s cause of action for conversion is not affected by this order.

Dated:  January 4, 1941

Hon. L. Frank Baum, U.S.D.C. Senior Judge

© 2016 Donald T. Kiley, Jr. –  dkiley@kileylawfirm.com All Rights Reserved

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New Law Makes Significant Changes to New York Estate and Gift Tax

April 1st, 2014 Comments off
The New York State legislature passed a budget bill on April 1, 2014 which will increase the New York State estate tax exemption over a four year period to $5,250,000 and, by 2019, bring the state estate tax exemption in conformity with the federal estate tax exemption.  The increased amounts are as follows:
– April 1, 2014 $2,062,500
– April 1, 2015 $3,125,000
– April 1, 2016 $4,187,500
– April 1, 2017 $5,250,000
– January 1, 2019 $5,000,000 (plus the cost of living index from 2010 – thus making the exclusion the same as the Federal exclusion amount).
In addition, the top New York State estate tax rate will be gradually reduced from 16% to 10% over the same four year period and the generation skipping transfer tax enacted in 1999 will be repealed.  More significantly, the new law will require that the value of any lifetime taxable gifts made by a New York resident decedent after March 31, 2014 be added back into the New York gross estate.  This will increase the amount of estate taxes due.   Contact Kiley, Kiley & Kiley to determine if and how the new law will impact your estate plans.

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Finding a Guardian Angel

July 11th, 2012 Comments off

As a parent of a minor child, you may in your will designate a guardian for your children in the event that you die during their minority.  The New York State Domestic Relations Law (DRL) § 81 authorizes the appointment of guardians by parents.  The Surrogate, who is the judge who handles estate matters, will generally approve your designee, provided he or she is not a person of dubious character.

Of all the decisions parents make when preparing their wills, the most difficult will likely be the choice of a guardian.

Here are some issues to consider before you make your choice:

(1)        Geographical Proximity (“Something tells me we’re not in Kansas anymore, Toto”):  Your children will likely have to move in with their guardian.  If you prefer that they continue to live in your neighborhood, then your brother Travis who owns an Alpaca farm in Pocatello, Idaho may not be a good choice.

(2)        Your Children’s Choice (“You’re going to send me WHERE!?”):  This is not a consideration with young children, but once your children reach a certain age, the courts will give some “deference to their preference.”  Either way, it’s good to make sure that your children will be comfortable with your selection.

(3)        Your Spouse’s Preference (“Hey, they’re my kids, too!”):  If you die, the children will come under the care of their other “parent and natural guardian.”  But, if he or she dies first the court will likely confirm your choice.  Still it’s best if you confer and come to an agreement on the same person or persons.

(4)        Religious, Moral and Political Beliefs (Better Not Choose Uncle Buck!):  Your good friends and loving relatives may not share the same beliefs as you do.  Give this consideration, as your children will be under their guardian’s influence.  It’s not likely that your children will go to church if their guardian doesn’t.

(5)        Age and Inclination (“Been there; done that.”):  Make sure that the person you choose choice is young enough and willing to assume the awesome responsibility of raising your children.  No matter how wonderful your children may be, parenting is still a job.  Also, consider that your babies will be minors until they turn eighteen.  Grandma and Grandpa may not be up to the task in fifteen years.

(6)        The Guilt Factor (It’s not just reserved for Catholics and Jews): Your friend or relation may agree to be the guardian of your children because they love you and your child.  Make sure that they feel comfortable to say no, if they believe that the burden is too great.

(7)        The Old Woman Who Lived in a Shoe Problem (Or . . . never have more children than you have car windows.):  Consider whether your prospective guardian has too many other children.  They may always have room for your children in their hearts, but make sure they have enough rooms in their house.

(8)        Financial Stability: (“A Fool and Your Children’s Money Are Soon Parted”): Your children’s guardian need not be the same person as the trustee who will invest their assets and manage their money.  Nonetheless the guardian should be good with money.  At the very least, his or her responsibility in this regard will impart an important lesson to your children.

Too many people postpone making a will because they cannot agree or decide on a guardian.  Never fear.  There is likely no perfect choice, as you can’t expect that your friends or family will make all the same choices you might make.  Nevertheless, consider the pros and cons for each possible choice.  Make up your mind and don’t delay making your will.

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