Author: hbosen

Without Involving Police, Man Recovers Nearly $200,000 Stolen By Daughter

August 7, 2018

The client, Donald, had opened an account with Carter Bank & Trust in Roanoke, Virginia approximately ten years previously.  At some point thereafter, Donald put his daughter’s name on the account for the purpose of leaving the money to his daughter upon his death.  However, the bank inadvertently made Donald’s daughter a co-owner of the account by using paperwork different from what Donald had intended, which was to make her merely a beneficiary of the account upon his death.  As time passed, Donald’s account, including several CDs, grew to more than $198,000.00.  During this time of joint ownership with his daughter, Donald claimed that his daughter knew of the purpose of this arrangement, she never contributed to or used any of the money in the account, and she never withdrew any money for any purpose.

On March 19, 2018, Donald’s daughter and he argued over a package of bacon.  His daughter stated that Donald accused her husband and her of stealing his bacon by eating it all and then putting the empty bacon package in his freezer.  Shortly thereafter, she went to Carter Bank & Trust and withdrew all money from the account without Donald’s knowledge or consent.  After early withdrawal penalties, the daughter left Carter Bank & Trust with a cashier’s check for $198,781.14 made payable to her.  She then deposited the cashier’s check from Carter Bank & Trust into her own account at Freedom First Federal Credit Union.

When Donald learned of this withdrawal he felt hurt and betrayed, and called his daughter to demand that she return his money, which she rudely refused.  Donald did not want to see his daughter in jail, and so he did not want to call the police.  Instead, he threatened to hire and attorney to get the money back.  His daughter told him, “Go ahead, do what you gotta do.”  Donald then met with several attorneys and ultimately hired Attorney Harry F. Bosen, Jr.

To alleviate the risk of Donald’s daughter inflicting any additional financial harm to Donald, Bosen advised to Donald to revoke the Power of Attorney (POA) that he had previously given to his daughter, and he executed a new POA, prepared by Bosen, designating his brother as his POA.  Donald executed a new Will, prepared by Bosen, naming his brother as the sole beneficiary of his estate.  

Bosen researched for a legal mechanism to overcome a major hurdle in the case:  the fact that Donald had signed documents at the bank that made his daughter a “co-owner” of the account, technically giving her equal control over the funds therein.  Bosen decided that Donald’s report of the money in the account remaining untouched for the previous ten years during which his daughter was a co-owner, established at least a course of dealing and made it appear as if the account was an “account of convenience”, and that such a course of dealing was essentially an agreement as to the nature and status of the account.

Bosen then filed a Complaint in Roanoke City Circuit Court setting out three theories of recovery:  

  1. Wrongful or Fraudulent Conversion,
  2. Unjust Enrichment, and
  3. Promissory Estoppel.  

In the Complaint, Bosen asked for:

  1. temporary and permanent injunctive relief,
  2. punitive damages for conversion,
  3. attorney fees for fraud, and
  4. the return of all of Donald’s money and the penalties suffered on withdrawal.

A Preliminary Injunction prohibiting Donald’s daughter from using or spending any of the subject money was entered and then extended by agreement with the daughter’s attorney.  

Bosen then subpoenaed documents from the daughter’s bank, Freedom First Federal Credit Union.  Bosen discovered that approximately one week after depositing the subject money in her bank account, the daughter withdrew $200,000.00 from her account; and when Donald demanded she return the money to him, she put the $200,000.00 back into that same account at Freedom First Federal Credit Union.

Requests for Admissions were served on Donald’s daughter.  An Answer was filed by her attorney.  She denied the money was Donald’s! 

A few days before a hearing set for extending the Preliminary Injunction, the daughter’s attorney called Bosen with a settlement offer:  the daughter would refund all of Donald’s money and pay Donald the penalties if Donald would drop his claims for punitive damages and attorney fees.   Donald agreed.

An Order modifying the Injunction was entered, allowing the money in the daughter’s Freedom First account to be utilized to pay Donald, which was then done.  A final Order was entered, which dissolved the Injunction and dismissed the case.

Donald was extremely pleased with the outcome, and benefited greatly from Bosen’s representation because Bosen handled the case on an hourly fee basis rather than a contingency basis.  Other attorney’s had offered to handle the case for Donald on a one third (1/3) percentage, which would have cost Donald more than $66,000.00 if they had been successful in recovering all of the money like Bosen was.

No attempt was made to recover the bacon.

‘Recreational immunity’ Does Not Protect Contractor From Lawsuit

July 7, 2018

In many states, landowners and their agents cannot be sued for deaths or injuries on property they have opened to the public for recreational activities like swimming, hiking, fishing, camping, and horseback riding.  This is known as “recreational immunity”, which only applies if the landowners open the property to the public free of charge.  The definition of an “agent” is often unclear, but a recent Wisconsin case gives some guidance.

In that case, a landowner hired a contractor to trim trees along a lakefront path it had opened to the public.  A member of the tree-trimming crew cut a large branch from a tree that landed on Jane Westmas, who was walking on the path with her son.  She was fatally injured.  Her husband, who was also her estate administrator, sued the tree company, claiming its carelessness caused her death and caused emotional distress to their son, who saw his mother die.

The contractor argued in court that because it was an “agent” of the property owner, the Wisconsin recreational immunity law protected it from responsibility.  A lower court judge agreed and dismissed the case.

However, the Wisconsin Supreme Court reversed the decision, finding that because the property owner did not directly control the contractor’s means and methods, the contractor did not count as an “agent” who was protected by recreational immunity.

Of course, the application of these concepts of recovery or defenses may work differently in Virginia than they do in Wisconsin.  In many cases, there may be something a landowner may have done or not done that constitutes negligence on his or her part, which would allow for recovery by an injured party.  If you want to learn more, contact attorney Harry F. Bosen, Jr.

Bars, Restaurants, and Hotels Can Be Held Liable For Patron Violence

June 8, 2018

Many states have “dram shop” laws that hold bars, clubs, and restaurants responsible for harm that occurs when they over-serve alcohol to customers.  Commonly, these cases are based on a bartender serving too many drinks to a customer, who then drives away drunk and hurts someone else.  The injured party can hold the driver accountable.  Often the driver does not have enough insurance to pay for all the harm.  So dram shop laws let the victim hold the establishment accountable too.  Dram shop laws can also cover situations where customers are over-served and engage in drunken, violent attacks on other patrons, employees, or innocent bystanders.

One recent case involved a Michigan woman partying in downtown Grand Rapids, who started her night at a now-closed bar called McFadden’s.  At McFadden’s, she reportedly drank five strong alcoholic drinks within ninety minutes.  She left McFadden’s to drink at another bar and then returned to McFadden’s later the same night.  After using the restroom the restroom at McFadden’s, she stepped outside and sucker-punched a woman who she mistakenly believed had been dancing and flirting with her husband.  The victim fell to the ground, hitting her head on the pavement.  The victim suffered a broken nose and a brain injury.

The victim in this case sued three parties:  the attacker, McFadden’s, and the second bar where the attacker had been drinking.  The second bar settled.  McFadden’s fought the case, arguing that the situation was not its fault because it was not the last place to serve the attacker (There is a “rebuttable presumption” under Michigan law that an establishment is not responsible if it was not the last place to serve the wrongdoer). However, McFadden’s had very little testimony to counter evidence that the attacker was already visibly intoxicated when they continued to serve her.  A jury found the bar at fault, awarding substantial damages to the victim.

Another example recently came from Minnesota.  In that case, two men who had already been drinking met at a bar in Minneapolis.  While the bartender on duty that night claimed the two men only had a beer or two each, surveillance video showed them drinking shots after they had already been there for a couple of hours and were getting surly and unruly.  The two men ultimately caused a major disturbance, with one of them, Nicholas Anderson, throwing a punch at the manager, jumping on the manager’s back, and putting the manager in a headlock.

Food-runner Maxwell Henson came to the manager’s aid.  As Henson and the manager tried to escort Anderson out, one of them tripped, sending all three to the ground.  Henson struck his head on the pavement and suffered a fatal injury.  When his family sought to hold the bar accountable under the state dram shop law, a trial judge dismissed the case, saying Anderson’s intoxication did not directly cause Henson’s death.  However, a state appeals court reversed the decision, finding that the bar’s over-serving of Anderson “amplified the risk” that Henson assumed by coming to his manager’s aid.  Now Henson’s family can bring their case in front of a jury.

A third case from Rhode Island arose when staff at the Omni Providence Hotel kicked out a large group of youths who had been partying loudly in a guest’s room, disturbing others.  The group left the premises, but later returned to the hotel driveway with beer, and engaged in rowdy behavior as the valet watched.  Then the group harassed a passerby, threatening and shouting racial epithets at him.  Later they rushed into the lobby and attacked a random guest, punching, shoving, and kicking him, breaking the guest’s arm.

When the guest sued the hotel, a federal district judge dismissed the case, ruling that this spontaneous attack by third parties was “unforeseeable” and thus not the hotel’s fault.  However, the appellate court reversed, deciding that while the hotel could not have foreseen the attack at the time it ejected the eventual attackers, it could have foreseen the attack when they returned.  Thus, the court ruled, the victim’s case could proceed to trial on the issue of whether the hotel should have done a better job of protecting him.

Virginia’s dram shop laws are generally more favorable to bars than laws in other states.  Nevertheless, if you have been injured by a violent attacker who may have been over-served by an establishment selling or providing alcohol, contact attorney Harry F. Bosen, Jr. to discuss your case.

Liability Waiver Unenforceable Against Spanish Speaker

May 8, 2018

Anyone who has visited a family entertainment center, like a trampoline park, indoor rock-climbing facility, or bouncy house, has probably signed a liability waiver agreeing that they cannot hold the facility accountable for any injuries they or their family may suffer.  Alternatively, they may have agreed to take their claim to “arbitration”, a private proceeding in which a “neutral” third party hired by the facility will resolve the dispute with no right of appeal.  However, these waivers are generally not enforceable in Virginia.  So if an injury occurs at one of these facilities, the injured party should still contact an attorney for a case evaluation.

A recent example comes from Massachusetts.  Elmer Cruz took his 15- and 8-year old sons and his 13-year-old niece to Sky Zone, an indoor trampoline park north of Boston.  Cruz, an immigrant from El Salvador, reportedly could not read or write in English.  So his 15-year-old son signed Sky Zone’s liability waiver, which consisted of typing information into a computer and hitting a button.  The boy did not attempt to explain to his father what he was doing, nor is it clear that the boy understood the legal significance, because he apparently only told his father that they needed to “go to the computer” before they could enter the facility.

Once inside the park, Cruz broke his ankle, necessitating several surgeries and leaving him unable to work for two years.  He and his wife sought to hold Sky Zone responsible.

Sky Zone tried to get the case dismissed, citing the waiver and arguing that even if Cruz had a claim, he agreed in the waiver that any dispute would be decided by a private arbitrator.

However, a trial judge ruled that the case could go to trial.  According to the judge, Sky Zone presented no evidence that Cruz understood the waiver, gave his son the authority to execute it on his behalf, or agreed to the terms on his own by entering the facility after his son put their information into the computer.  As a result, Cruz will get his day in court.

If you have been injured in Virginia after signing a liability waiver, do not presume you have no recourse for recovery!  Contact attorney Harry F. Bosen, Jr. for a free case evaluation.

‘Soverign Immunity’ Does Not Shield ‘Gross Negligence’

January 8, 2018

A homeowner in Michigan could hold a utility worker accountable for “gross negligence” that resulted in her home burning down, a Michigan appeals court recently decided.

The worker, who was an employee of the Board of Water and Light, a city-owned utility company in Lansing, was working on a house next door to the home of Cora Lee Hobbs-Jackson.  The worker wanted a drink of water, and tried to get water from an outside water spigot on Hobbs-Jackson’s house, but the spigot was frozen.  The worker then used a gas blowtorch to thaw it.  The blowtorch’s flames set Hobbs-Jackson’s house on fire, destroying the building and all the possessions in it.  Hobbs-Jackson was not home at the time.

Hobbs-Jackson took the worker and the Board of Water and Light to court, seeking compensation for her losses.  Both defendants claimed they were shielded from responsibility by “sovereign immunity,” a legal doctrine under which state, city, and town entities cannot be held responsible for harm caused by negligence (lack of reasonable care) in carrying out their duties.  A trial judge agreed and dismissed the case.

However, the Michigan Court of Appeals decided the worker could be held responsible because the use of the blowtorch was considered “gross negligence” — in other words conduct so reckless that it showed an absolute lack of concern for the possibility of harm — and governmental immunity did not apply.

The court ruled that the Board was still immune from suit because it was serving a public function, rejecting Hobbs-Jackson’s argument that the Board was making enough money to generate an actual profit rather than just sustaining itself.

In addition to gross negligence, Virginia offers additional avenues of recovery against governmental entities.  In Virginia, willful or wanton negligence by a governmental entity, its contractors, employees, and agents are also excluded from sovereign immunity protection.  If you have been injured by a governmental entity, including its employees, contractors, and/or agents, contact Virginia attorney Harry F. Bosen, Jr. for a free case evaluation.

Disagreements Between Parents May Affect Child Custody

October 15, 2017

It is difficult for a child to be shuttled back and forth between divorced parents who cannot communicate constructively.  It is worse for the child as he or she gets older and becomes more aware of the hostility between his or her parents.  If a recent decision from North Carolina is any indication, this growing awareness of parents’ hatred toward one another may be grounds for modifying a custody order.

In that case, a couple divorced in 2012.  The judge awarded the father primary physical care and custody of the couple’s young daughter, Reagan.  The judge apparently made this decision based on the couple’s “utter inability” to work together for their daughter’s benefit, as well as the mother’s repeated unsubstantiated allegations that the father was abusing Reagan.

Two years later the mother asked the court to modify the custody order, claiming that the father’s new girlfriend was acting as Reagan’s primary caregiver.  The court granted the motion, citing “changed circumstances” and giving the mother primary custody.  Specifically, the judge found that the parents still couldn’t communicate effectively and that Reagan, who was getting older and becoming more aware of the situation, was experiencing increasingly higher anxiety as a result.  He also noted that the father and his girlfriend were keeping Reagan away from other family members, and that the mother was no longer making false abuse allegations.

The father appealed, arguing that his differences with his ex-wife were not grounds to modify custody based on a change in circumstances, since they had never gotten along after the divorce.  The North Carolina Court of Appeals disagreed with the father, finding it “entirely foreseeable” that communication problems between parents would affect a child more as she grows older, becomes involved in more activities that require her parents to cooperate, and becomes more aware of and sensitive to conflict between her parents.

Virginia law differs from North Carolina law.  Check with a Virginia lawyer who practices in family law to find out how these situations could be handled in Virginia.

Website Compliance With the Americans With Disabilities Act

September 14, 2017

Although the Department of Justice does not have rules for places of public accommodation specific to websites, organizations and businesses that have websites are already at risk.  Blind or visually impaired plaintiffs have been filing federal lawsuits against companies regarding the accessibility of their websites.  Four recent cases, discussed below, have had varied outcomes.

A federal court judge in California recently ruled that a blind plaintiff, Sean Gorecki, could continue his lawsuit against a retailer, Hobby Lobby, about the accessibility of it’s website.  Hobby Lobby had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.

A week earlier, a federal judge in Florida handed down a verdict in the case of Gil v. Winn-Dixie Stores, Inc., finding that Winn-Dixie had violated Title III of the Americans with Disabilities Act (“ADA”) by having a website that could not be used by the blind plaintiff.

In the Winn-Dixie case, Judge Robert Scola ruled on three issues:

  • whether Winn-Dixie’s website was subject to the ADA;
  • whether the plaintiff was denied the full and equal enjoyment of Winn-Dixie’s goods and services because of his disability; and
  • whether the requested modifications to Winn-Dixie’s website were reasonable and readily achievable.

First, the court concluded that Winn-Dixie’s website was subject to the ADA.  In his ruling, the judge noted that the website operates as a gateway to the company’s physical stores.  Although the ADA does not contemplate websites, it does deal very clearly with physical stores.

Second, the judge determined that Winn-Dixie’s website violated the ADA because it was incompatible with screen reader software for the visually impaired, and therefore was inaccessible to visually impaired persons.  Although third-parties operated parts of the website, the court held Winn-Dixie responsible for the lack of accessibility because the company was in fact responsible for the third-parties that operated parts of the website.

Lastly, the judge ruled that the cost of making the website accessible – $250,000 – was not an undue burden.  The cost was small compared to the millions of dollars Winn-Dixie spent to launch and later remake the website.

The Winn-Dixie ruling contrasts with two wins for retailers in this area of law from earlier this year.

In a Florida case, a federal court judge dismissed a lawsuit because the plaintiff failed to allege that his ability to use Bang & Olufsen’s retail website prevented him from accessing it’s stores.  The court explicitly rejected the argument that the ADA requires a website to provide the same online shopping experience as it does for non-disabled people.  In his ruling, the judge wrote:  “if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.”

In a California case, a federal court dismissed a lawsuit by a blind plaintiff who claimed that he could not use his screen reader to order a pizza from Domino’s Pizza.  The court rejected the argument that the ADA did not cover websites, but ruled that Domino’s had met it’s obligations under the law by providing access to essentially the same services by phone.  The court noted that requiring Domino’s to have a disabled-accessible website at this time, when neither law nor regulations explicitly require websites to be disabled-accessible, would violate the company’s constitutional rights.

To conclude, brick and mortar retailers who integrate online experiences with their physical stores may be required by the ADA to make their websites disabled-accessible.  Despite the varied results in these cases, the rise in these types of cases will inspire more demands and lawsuits against retailers asserting website accessibility claims.  Businesses should consult with a legal professional to determine if the ADA requires them to make their website disabled-accessible.

What to Learn from Celebrities’ Estate Planning Blunders

August 13, 2017

Celebrities’ Estate Planning Blunders

There are many lessons to learn about estate planning from the bad experiences of several celebrities.  The AARP recently gathered their stories.  Below are the highlights.

Prince:  When Prince died, he left no will.  Now a Minnesota judge must decide how to distribute the singer’s estimated $300 million estate among six siblings.  Other potential heirs have surfaced too, including a federal inmate claiming to be Prince’s son.

Lesson learned:  have a will.

Florence Griffith Joyner:  Before her death, Olympic gold medalist Florence Griffith Joyner never told anyone the location of her will.  Without the original document available, her relatives battled for four years before her probate estate could be finalized.

Lesson learned:  do not keep the location of a will a secret.

Whitney Houston:  Songstress Whitney Houston had a properly executed and available will when she drowned.  Her will was made a month before the birth of her only child, Bobbi Kristina, and was never revised.  Per the terms of the will, Bobbi was to receive ten percent of the estate when she turned twenty-one, and the rest of the estate later.

Houston apparently failed to consider whether her daughter was mature enough to handle millions of dollars.  Bobbi received the initial ten percent — $2 million — when she turned twenty-one, but did not live long enough to receive the remaining $18 million.  She died as a result of drug intoxication and drug intoxication.

Lesson learned:  review and update wills regularly.

James Gandolfini:  The “Sopranos” actor, James Gandolfini, was reported to be worth $70 million when he died in 2013 of a heart attack in Rome.  His will had been drawn up hastily before a vacation.  Although his will provided for his widow, daughter, and two sisters, it did not consider proper tax planning.  As a result, the estate paid federal and state estate taxes at the relatively high rate of fifty-five percent.

Lesson learned:  be sure to properly finalize estate plans.

Marlon Brando:  When he died in 2004, actor Marlon Brando had a written estate plan for his $100 million fortune, which did not include promises he allegedly made orally to his long-term housekeeper, Angela Borlaza.  She claimed that Brando gave her his house as a gift, but he never completed the paperwork to transfer the deed.  In court, she sued for $627,000 — the market value of the house — plus $2 million in punitive damages.  The case settled for $125,000.

Lesson learned:  avoid oral promises.

Avoiding Case Mills

April 7, 2016

Identifying Case Mills

Recently we have seen solicitations from a few law firms that are automatically mailed to any person recently charged with serious traffic offenses or minor infractions in our local courts. In these solicitations, the law firms claim to be experts in the field of criminal and traffic defense. These solicitations may include misleading language and other obfuscations with fine print and seals of approval that actually mean very little in the legal field.

Be aware that the law firms sending these solicitations may be “case mills” that offer little more than cheap fees for little work, and do a high volume business to make high profits at the expense of the general public. Case mills assign inexperienced attorneys to whom they pay next to nothing to represent their clients. The attorneys are often times subcontractors and not actual employees of the law firm. These attorneys are typically unfamiliar with our local judges and courts.

Case mills, despite being small firms, often hire full-time marketing and sales staff to churn new business into their mills.  With few clients making the mistake of hiring them more than once, new and unsuspecting clients are necessary for them to continue their “churn and burn” style of business.  Often they spend as much time and money on their sales and marketing efforts as they do on the actual practice of law.

Avoiding Case Mills and Retaining Effective Legal Counsel

By taking cases for a cheap fee and only paying the assigned attorney a pittance to work on the case, case mills can only afford to make a minimum effort to prepare for the case in advance of the court date. Many times, the final results of the case reflect the lack of lack of time and effort put into preparing the cases and the inexperience of the attorneys and their unfamiliarity with our local judges and courts.

The general public should avoid case mills at all costs. The general public should seek to retain effective counsel that is focused on practicing law rather than sales and marketing.

See Winning Matters for more details on the difference that allows us and other reputable law firms to be successful in obtaining excellent results for our clients time and time again.

Stadium Owner May Be Liable For Fight In Men’s Room

October 21, 2015

A man who was injured by a fellow hockey fan in a drunken fight in a rest room at a Boston Bruins game can sue the stadium owner and its security company, a judge recently ruled.

John Foley was apparently trying to defuse an argument between a friend of his and another man when the fan approached, screaming and swearing, and injured Foley.

Foley sued, claiming that if stadium security had been properly trained and staffed, it could have intervened in time to prevent his injuries. The stadium owner argued that this wasn’t true, and that it was impossible to fully guarantee everyone’s safety throughout the arena.

The judge observed that hockey is a violent sport with a history of attracting intoxicated fans, which means the stadium owner could have foreseen that there might be incidents like this one. The judge said it should be up to a jury to decide whether the stadium’s security measures were adequate under the circumstances.

In Roanoke County, Montgomery County, Blacksburg, Roanoke City, and the City of Salem, venue owners can also be liable for maintaining security.