DOT Not Immune from Lawsuit

The Maine Supreme Court is allowing a negligence lawsuit against the State Department of Transportation to go forward.   The plaintiff, John Jorgensen, suffered serious permanent injuries after crashing his car in a work zone.  The DOT had closed one lane, but Jorgensen reentered that lane because there were no barricades indicating it was still closed, and subsequently crashed into a parked truck.

In a unanimous ruling, the Maine Supreme Judicial Court said the state can claim immunity when a complaint involves employees making policy decisions with relatively broad implications.

But in this case, the court ruled that immunity doesn’t extend to ”on-the-ground decisions” such as where to place barricades or cones or to park vehicles in repair zones, said Berney Kubetz, the Jorgensens’ attorney.

via Maine Wire – wbztv.com.

Maine is a “comparative negligence”  state, meaning that if the plaintiff is found to be more negligent than the defendant, than he or she cannot recover.  So in this case, the state will been to show that Jorgensen’s negligence in driving back into the closed lane was greater than the negligence of the DOT workers in failing to put enough cones and barriers to indicate that the lane was still closed.

By downeastlaw, ago

Malpractice, Celebrity Edition

Mick Fleetwood of Fleetwood Mac has filed a complaint against Portland firm Bernstein, Shur, Sawyer & Nelson. It appears the firm’s misunderstanding of British law put their client on the hook for $4.5 million in fees. Law.com:

The Fleetwood group had hired the firm, which is based in Portland, Maine, to bring suit against a division of the British Broadcasting Corp. over distribution rights to rare musical recordings worth about $100 million, according to an amended complaint in the lawsuit, which was filed on March 26 in federal court in Maine. McNulty v. McDonald, No. 2:09-cv-00111 (D. Maine).

… At that time, Fleetwood’s group allegedly asked McDonald if they could be individually liable for the BBC division’s attorney fees, to which McDonald replied there was “no chance.”

But in 2005, the BBC division sued Bee Load in England, where a London court imposed about $150,000 in costs against Fleetwood’s group. Bee Load filed for Chapter 11 bankruptcy protection in 2006.

Invoking a British law called the “Funders’ Rule,” the BBC division sought $4.5 million in attorney fees, the suit claims.

By downeastlaw, ago

Railroad May Use Eminent Domain Power

The Northern New England Passenger Rail Authority, which is the  state agency that runs the Amtrak Downeaster train, is looking to acquire land in Portland to build a service building.   The Portland Press Herald reports that the owner of the land does not want to sell the land because they have future plans for a residential development on the site, and the building would be incompatible.

The Authority has the power to invoke eminent domain through the Passenger Rail Service Act.  It seems unlikely that the property owner will be able to prevent the taking of the land, but there will certainly be a dispute over the value of the land.  The owner of any land that is taken by the State must be compensated, but the actual amount of compensation is often highly disputed.

Currently the land, known as Thompson’s Point, is used mainly for industrial type businesses, though its location does suggest potential for residential development.  The Authority will argue that compensation should be limited since they are only taking a small piece of  the land.  The owner’s concern is that the structure will be right next to the road that is the only access to the rest of the property, therefore impacting the value of the entire property.  However, the law only considers property taken if it is actually acquired, or it loses all economic value.  So even if the land the Autority takes is valued as residential property, only the amount of land actually taken for the building will be compensated for.

By downeastlaw, ago

Indigent Legal Defense Changes Proposed

The Bangor Daily News covers the proposed changes to the way indigent criminal defendants are provided legal assistance. The proposal calls for an independent commission to oversee the legal services for indigent defendants, something the State’s Judicial Branch now does. The full report on the proposal is available here.

A growing percentage of criminal defendants, the report concluded, are indigent and entitled to free representation. In fiscal year 2008, 42 percent of all juvenile defendants and 61 percent of all Superior Court defendants qualified for indigent legal services.

In addition, the number of cases in Superior Court, where felony charges are filed, grew nearly 20 percent from fiscal year 2007 to fiscal year 2008. That increase primarily was due to recent changes by the Legislature to the criminal code that turned crimes that previously were misdemeanors and did not require jail time into felonies based on prior convictions or aggravating factors.

By downeastlaw, ago

More Challenges to Railroad Land

Dale Henderson is continuing to contest the ownership of the old railroad bed on his land in Hancock and Steuben.   He is now blocking access to a trail that was created on the old railroad bed.   As was reported earlier, Henderson is claiming that ownership of the land the railroad tracks were on should have reverted back to the previous owner as soon as the railroad company stopped using it.

The landowner recently erected barricades to stop users from traversing his property. In the town of Hancock, Henderson put up a berm on the tracks at one end and a stone wall at the other end. On a smaller piece of land in the Washington County town of Steuben, he built berms on both ends of the 50-acre property where the tracks run through.

Accompanying the barricades are signs that read “This portion of the railroad bed is closed. No trespassing. Violators will be prosecuted.”

via Bangor Daily News.

By downeastlaw, ago

Anecdotal Evidence on the Legal Industry

The Press Herald reports on how the legal industry in Maine is doing in the recession. I am not sure speaking with a handful of attorneys really demonstrates the point, but certainly some firms are doing fine. Though like any industry if you are diversified, you can hopefully find part of your business that thrives while the others wither.

And if your wondering, my rates are not in the quoted range, but that is why I can call my rates ‘affordable.’

Lawyers and others in the legal community say Maine law firms have escaped major layoffs and belt-tightening so far. They said the firms are small enough and diversified enough to switch gears so they don’t have to lay off entire divisions devoted to a recession-sensitive practice area, such as mergers and acquisitions or investment banking.
…
Some say local firms even stand to gain business because of the recession. Maine lawyers charge about half the hourly rates of the big law firms in New York and Washington. Shapiro said the going rate in Maine varies from $150 an hour to $400 an hour, a bargain compared with the $800-and-up rates in big cities.

By downeastlaw, ago

Security Cuts at Courts

Coming from Washington, D.C. I was surprised that there was not always a security check at the Portland courthouse. Budget cuts will mean even few times those checks occur.

Three of 18 marshal positions are open at the courthouse in Portland, Maine’s busiest. The X-ray machine and metal detectors at the main entrance — regularly staffed by marshals as recently as last summer — are usually unmanned except for Fridays, when judges hear cases involving allegations of domestic abuse and harassment.

…”In 2007, more than 7,000 knives and lethal objects were stopped at the doors,” she said. “More terrifying, however, were the number of guns that were prevented from coming into courthouses by entry screening. Sixty-four times, guns or ammunition were stopped at doors.”

via Kennebec Journal.

By downeastlaw, ago

Verrill Dana Hires Former AG

Beleaguered Portland firm Verrill Dana has hired the former Maine Attorney General.

Rowe, a Portland resident, will join the firm’s litigation and trial department and environmental department. “We are delighted to welcome Steve to Verrill Dana,” Managing Partner K.C. Jones said in a statement. “He brings with him a reputation for sound judgment, integrity and collegiality, and a unique understanding of the state of Maine and the issues the state is facing.”

via Mainebiz.

By downeastlaw, ago