What is negligence?

One of the great lessons that I’ve learned in life as a lawyer and as a parent is that we all learn differently. I’ve also discovered that my own learning style isn’t universal for all tasks.  For example if I’m learning for rote memorization for a test, I learn best by reading and rereading material over and over until its burned into my brain.  But to really comprehend concept such that I can explain it to someone else, I need to take the concept and apply it to everyday life.  I used this lesson over and over in life in law school raising toddlers and  in my legal practice.

My oldest daughter was 6 months old when I started law school and the younger one came into being during the first few weeks of law school.  I spent the summer between year one and year two of law school taking care of babies and reading as much as I could ahead so that when school started back in August I could occasionally sleep.  Since I was a part time law student it took me 4 years to complete my degree while balancing work, babies and school.  Balancing family life and law school meant that I had to learn how to learn in any environment and i had to get creative with my study habits.  As my girls got older and more independent this meant reading in the park or at the McDonald’s play zone while keeping one eye on them and one eye on the text book or flash cards I was studying.  One minute I might be trying to teach the concept of sharing to a 2 & 3 year old fighting over the same happy meal toy and the next minute analyzing why burning the flag is considered protected speech under the first amendment.  It wasn’t until much later in my practice, really the last few years, that I even realized how much this experience enhanced my skills as a lawyer in the courtroom, as a teacher to new lawyers, or in counseling my clients on an everyday basis.

Balancing all of this helped me develop those crazy mom eyes that we all get at some point in the parenting process … you know where you can be doing something on one side of the house while knowing exactly what your kids are doing upstairs on the other side of the house.  However, it also taught me to read people for signs of honesty or deceit, to look for signs of understanding,  and to see complicated legal scenarios happening in everyday life.   The other interesting thing about law school that I didn’t understand until I was a real world lawyer, even though I’d heard it a thousand times, is that law school does not teach you the “business of the law” or even what it means to “practice law,” law school teaches you how to think like a lawyer.

When I think back on when I first realized I had started “thinking like a lawyer” I think about a dreary winter day studying at the McDonald’s playground.  On this particular day  I was trying to wrap my brain around the legal concept of  negligence. Law students are taught that the elements of negligence are duty, breach, causation, and harm.  If all of those elements are satisfied then a negligent act occurred. Great but what does that mean???  If the lawyer cannot translate a concept like negligence into real words to a judge, jury or a client its no different than saying well you should know that NaC2H3O2 is sodium acetate because you can clearly see that the elements that make it up are sodium, carbon, hydrogen, and oxygen.  No that’s not how most people think or analyze facts. In fact I only know that because I randomly recall thinking it was funny in high school that a chemical formula was NaCHO but even today I had to look up what NaCHO was called.

So in real world terms what does it mean when someone says you’re negligent? Negligence is the notion that an ordinary person A going about the routine of life has a DUTY of REASONABLE CARE to ordinary person B. If the DUTY is BREACHED by the doing or not doing of some act that the ordinary person A knows or should know could cause harm and the BREACH CAUSES HARM to ordinary person B. Then the ordinary person A is NEGLIGENT and is liable for DAMAGES to ordinary person B. So what are damages? Damages are a dollar figure used to value the harm, because no lawsuit can undue the harm caused by a negligent act, it just can give you money to act as a band aid so the harm doesn’t hurt so bad. And what if the ordinary person B also has a duty not to harm ordinary person A and ordinary person A got hurt too?  This is called contributory negligence. Then what about ordinary person C who is watching A&B engaging in their duty of reasonable care but he’s acting like a fool.  The first thing you might wonder is “WHY CAN’T WE ALL JUST GET ALONG???”  The second thing you might wonder is how does this all work together and who’s at fault when the inevitable bad thing happens.

Back to McDonald’s, I had my aha moment on these concepts at McDonald’s watching the kids on the playground.  Picture it if you will …. Adam is sliding down the slide, while Billy is climbing up the slide, while Chris is standing at the top of the play zone screaming his head off because he’s a kid, its raining & mom said no ice cream so he’s throwing the ball pit balls he carried to the top with him at Adam & Billy who aren’t paying any attention to him or each other  The inevitable happens and Adam & Billy collide and fall over the side of the slide and both break their arm (in real life there were only bumps and bruises). Who’s at fault and why? Well Adam is using the slide properly he climbed up the steps and is sitting at the top trying to go down properly.  But Adam either sees or should see Billy climbing up the slide and a reasonable person in Adam’s  place should know if he slides down he is going to hurt Billy so even though Adam is in the right, if he slides, he might have breached his duty if he knows or should know that sliding will cause Billy to get hurt.  Doesn’t Billy have the same duty to Adam, not to crawl up the slide when he knows that is not the right way? Yes Billy has to know because his mother has told him 100 times “we climb up the ladder and slide down, NOT climb up the slide and down the ladder.”  Billy has “ASSUMED THE RISK”  of getting hurt because he knows or should know that playing on the slide in this way is wrong and can cause him or someone else to get hurt.  So if its just Adam and Billy, playing on the slide and Billy sues Adam, the jury decides who’s more negligent.  If the judge or jury decides that Billy has $100 in damages from the accident and Billy was 50% at fault in the accident then Billy gets 50% of his damages ($50) from Adam.  The damage award is reduced by Billy’s percent of negligence.  However, if Billy is 51% negligent in causing his injuries then Billy can’t recover any money damages from Adam because Billy’s negligence is greater than Adam’s negligence.

Well what about Chris who was screaming and throwing the balls at Adam and Billy is he at fault in this whole mess? Maybe. If Chris’s screaming and ball throwing distracts Adam and causes Adam to slide down the slide because he was trying to get away from the balls even though he knew Billy was climbing up the slide, then Adam isn’t the cause of Billy’s harm when they collide because Chris’s actions are an “intervening cause.” An intervening cause is a set of actions that by themselves are enough to cause harm and interrupt a previous bad act to cause harm.  Here it would stop Adam from being at fault in the collision because Chris’s behavior of distraction and ball throwing was enough to cause the harm itself and it is what actually caused Adam to slide down the slide, not Adam’s disregard for Billy.  However, if Adam slides because he wants to slide regardless of Billy and Chris is throwing the balls that hit Billy and the ball throwing and screaming cause the impact to be more dangerous and cause greater harm to Billy than if either had just happened, then Adam and Chris are “concurrent causes” and the judge/jury gets to decide what percent of harm is caused to by Adam, Billy and Chris.  However, Billy still has to be less than 51% at fault total to recover any money from Adam and Chris.  A question left to another day is does McDonald’s have any fault in all of this?

Watching this scene unfold in part peaked my interest in civil personal injury law.  It also led to my family calling me a “fun sucker” because I developed a habit of saying do you know how many ways what you are proposing to do could go wrong and I won’t have anyone to sue??? But most of all this day at McDonald’s flipped a switch in my “think like a lawyer” brain to translate a complicated legal concept I had tried to understand through rote memorization into a concept I understood and could explain to you because I applied it to everyday life.  I had to look for the duty, find the breach, determine if the breach was the cause something to happen and if the harm that happened was real.  I had to watch the actions and explanations to determine who was being truthful, who was lying, what each child’s intent was and what he reasonably believed would happen based on his action.  My practice of law ironically started in the raising of children and to this day I often explain negligence to my clients in terms of these 3 kids at McDonald’s.

Preparing for a storm

Spring is here and spring in Oklahoma means storms!  Living in tornado alley, social media feeds are full of references to our legendary weather – the Gary England Drinking Game, Mike Morgan’s weather ties and Rick’s tornado circles.  Rick likes to draw one of those circle over my house in Piedmont and yell “take cover” at least once a year.  All of this crazy spring weather often leads to lots of questions about insurance.  What do I have? What do I need? What do I do?

Whether you own or rent a home, you need insurance.  If you are a renter, you need renter’s insurance.  That will cover your personal contents in the event of a weather disaster that causes loss or damage to your rented home or apartment. If you are a homeowner and there is a mortgage on your home, then you will be required to maintain home owner’s insurance which covers both the structures of the home and the contents within the home.  If there is no mortgage on the home the requirement for homeowner’s insurance goes away but the need for it does not.

Many people learned this lesson the hard way after Piedmont was hit with a devastating F5 tornado in 2011.  I’m not the kind of girl you want out swinging a hammer or picking up debris post storm, not because I can’t, but because I’m a klutz and likely to injury myself or someone else in the process.  Therefore, I volunteered to help the community in the best way that I could which was helping people interpret their insurance documents, make claims, and get their reimbursements.  One of the things that I universally found was that many older folks were either uninsured or underinsured.  Uninsured meaning that they had let their coverage lapse because they no longer paid the mortgage and/or thought that insurance wasn’t necessary or could no longer afford insurance.  Underinsured meaning they had some coverage but not nearly enough coverage for what they owned and what needed to be repaired or replaced. While its impossible to value a lifetime of memories and stuff, it is very possible to value the buildings we live in and the household goods we accumulate.  A good insurance agent will help you review this on a regular basis to find the right mix of coverage and affordability.

As we get older, incomes tend to decrease and become ‘fixed’ as we rely on social security and pensions to live out our twilight years.  Often expenses have to be cut and homeowner’s insurance is viewed as a luxury or unnecessary expense once the home is paid off because its no longer required, but that is when insurance is needed the most. After years of scrimping and saving to pay off your mortgage, insurance is still needed to protect your investment. Your home is an asset that should appreciate from year to year rather than depreciate, meaning the dollars you invested in it continue to grow so its value increases rather than decreases. Further, when your income is fixed you need that investment protected because you likely do not have the income or the savings to repair or replace a home and/or contents due to storm damage or other destruction.

Homeowner’s insurance covers more than just the structure of your home or other buildings on your property. It also covers the contents of your home and your belongings, alternate living expenses and liability protection.   Policies need to be reviewed closely though to ensure that you have the proper level of coverage for structures, contents and belongings.  Most standard policies only provide up to a certain dollar amount of protection for things like electronics, jewelry, furs, and firearms.  In today’s consumer focused society with gadgets especially, the standard policy is often not enough to cover you in the event of major home damage or theft.  The value of the contents of the home is also a calculation based off the value of the home itself rather than the actual value of your contents. Most people really do not know the value of the cost of their ‘stuff.’  Spring is a good time to make a list of all of then contents of your home with models, serial numbers, and the like.  This lets you know what is in your home in the event of a tragedy but also helps you evaluate your coverage.  Additionally, it’s a good idea to keep this list in electronic format and stored off site or in a secure cloud file so that if your technology is ever damaged you can get the list back.

If you have to move out of your home during repairs or if your home is completely lost due to storm, fire or other damage, your policy provides funds to cover alternative living arrangements while the home is being repaired. Alternate living usually covers up to a year but may be shorter or longer depending on the loss event or the terms of the policy. Liability protection is also an invaluable asset to have. If a friend or family member gets hurt while visiting you, if your dog bites someone, or if you do something negligent and it causes harm to someone your liability protection is available to pay the cost of a lawyer to defend you in court and then if you are liable to pay for the damages up to the amounts of your coverage.  An umbrella policy can also be purchased to cover liability for auto accidents or other damage.  April showers have arrived and storm season is upon us.  Make sure you have prepared financially for the storms so that when its time to take cover, you know you are protected.


Am I a victim of employment discrimination? – Part 1

I get a lot of calls from people who have lost their job inquiring as to whether something is discrimination or if they were wrongfully fired.  My answer is often you may very well have been discriminated against but not all discrimination is illegal.  Oklahoma is what is known as an “at will employment” state. This means that assuming you do not have an employment contract or some kind of collective bargaining agreement associated with a union, an employee can leave a job at any time for any reason. Likewise your employer may fire you at any time for any reason, as long as it’s not an illegal reason. So what’s a legal reason versus an illegal reason. If you’re a woman and your boss is a woman and she doesn’t like you and maybe even she’s jealous because you’re prettier than she is or nicer than she is, that’s a perfectly legal reason.  However if your boss doesn’t like you based on a protected class, that’s an illegal reason.

The law is an every changing animal which grows as with the changes in our society both good and bad.  The currently recognized protected classes under the Oklahoma Anti Discrimination Act and the Federal law equivalents include race, color, sex, gender, sex, physical or mental disability, national origin, ancestry, religion, creed, age, veteran status, genetics, or citizenship. It is also to retaliate against an employee who takes action to protect another rights or to assert their legal rights.  Sexual orientation is not currently a protected class, however some courts are addressing discrimination based on orientation based on gender and compliance with “societal gender norms” which targets discrimination based on a man or woman’s failure to adhere to certain behaviors society normatively attributes to those groups examples would be a man with feminine mannerisms or a woman with more masculine mannerisms.

So what should you do if you believe you have been discriminated against in your employment? First  familiarize yourself with your employers anti discrimination policies. Does the conduct violate the policy? Second if you feel action has been taken against you speak up and tell someone in charge.  Most employers have a procedure in place to report discrimination. Third, and most importantly document The Who, what, when, where, why and how regarding the discrimination. When you live with a situation you know the ins and outs of it but your employer will not. Having a journal or list of incidents with dates, times, places, people involved etc helps you remember, gives the employer specifics to investigate and helps protect your rights.  When you report to an employer do not just tell someone either. Document your report. If you see your HR Rep in the hallway and tell him or her about the situation, follow up with an email or memo and keep a copy for yourself. If the employer fails to take action, this documentation is key in the last step. Lastly, if the employer fails to address the situation or you are fired, take your documentation and information to the appropriate agency and file your claim.  In Oklahoma an employee who has been discriminated against has 300 days from the last day of discrimination to file a charge with the Equal Employment Opportunity Commission (“EEOC”) or Oklahoma Attorney General’s Office (“AG”) to assert claims under Federal law and 180 days after the last date of discrimination to file a claim under Oklahoma’s anti discrimination law with either the EEOC or the AG. After you file a charge, the EEOC or AG’s Office can  either investigate your claim for up to 180 before issuing a right to sue letter or may immediately issue a right to sue letter. Once the notice of right to sue is issued, you have 90 days to file a lawsuit or the claim is gone forever. There are lots of ins and outs of this process that an experienced attorney can explain. An employee has a right  to contact an attorney at any time in this process and the attorney can guide you about what does and does not rise to the level of discrimination.


Amending the Constitution

No matter where one falls on the political spectrum I believe there are certain universal truths that hold true for all of us. We all want the right to be free in our homes, safe in our property, the right to privacy and the right to worship openly and freely.  Every election cycle it seems that one side claims the other side is trying to take away or infringe on one or more of these rights.  So I thought it would be worthwhile to look at what actually must happen for there to be a change to the US Constitution.  Because one issue that is particularly important Oklahoma is the right to bear arms, I’m going to analyze this in terms of the second amendment.

First let’s look back at history……While the Declaration of Independence ratified on July 4, 1776, might be the shot across the bow that helped establish our great nation as a separate entity from the British Empire, The Constitutional Convention and the resulting Constitution is the guiding document which still rules our country today. The US Constitution was first drafted in in 1787 at the Constitutional Convention and fully ratified by 1789.  Some 13 years after the Declaration of independence was written. The purposes of the Constitutional Convention were to provide a stronger framework of government than what existed under the Article of Confederation. The Articles of Confederation were the US’s first attempt at a constitution and its primary focus was to protect states’ rights. However, it was apparent even then that to truly protect States Rights there must be a strong central form of governance, thus the Constitutional Convention was born and our guiding document for over 225 years was born.

The US Constitution has 7 Articles and 27 Amendments.  Each Article of the Constitution addresses separate rights and powers of the Federal Government.  Further, those rights/powers not granted in the Constitution to the Federal Government are reserved to the States.  The rights/powers addressed in the Constitution in order of the Articles are: Legislative (Congress); Executive (Presidential); Judicial (Federal Courts); States Rights; Amending the Constitution; the Legal Status of the Constitution; and Ratification of the Constitution. The first ten amendments are known as the “Bill of Rights” and are our most known rights.   In their original form those rights were only afforded to citizens under Federal Law meaning that unless the states adopted similar laws in their Constitutions, those rights were not guaranteed by the states. Even today, not all of the rights set forth in the Bill of Rights apply to the states.

The 14th Amendment to the US Constitution, which was ratified on July 9, 1868, provides in relevant part that:

No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States no shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Prior to 1925, the Bill of Rights did not apply to the States.  It was only after 2 key cases were decided by the Supreme Court that the rights were incorporated to the state level.  The first case was in 1897 for “just compensation” for taking of land by eminent domain under the Fifth Amendment and the second case was in 1925, required states to protect “free speech” under the First Amendment. To apply these rights to the States, the Supreme Court looked to the 14th Amendment’s due process clause and slowly these rights were incorporated from the Federal Government to the State Government.

So now let’s talk about the second amendment which was much debated in the last round of elections.  The Republicans often accuse the Democrats of wanting to repeal the second amendment. But can the second amendment be repealed???? Can any fundamental right be repealed completely? The answer is yes there is a process for amendment to the constitution but the rights given under the second amendment and as incorporated under the 14th amendment have been determined to be so fundamental that they are beyond a vote of the people and the process by which the constitution is amended is so onerous that your second amendment rights, really any fundamental right, is not in jeopardy unless a super majority of congress and a super majority of the citizens of the US suddenly change their minds on what is important.  I don’t believe that is likely to happen.

In the landmark case of West Virginia State Board of Education v. Barnette the US Supreme Court held that “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.””   In 2010, the US Supreme Court in the case of McDonald v. Chicago, 561 US 742 (2010), held that the second amendment is a fundamental right, incorporated against the states and protected from infringement by local governments.

So can a president take away your fundamental right to bear arms with an Executive Order? No. Can congress simply pass a law amending your fundamental right to bear arms? No.  In order to amend or take away the fundamental right to bear arms guaranteed by the US Constitution and incorporated under the due process clause of the 14th Amendment, there must first be either a proposal agreed upon by 2/3 of both the Senate and the House of Representatives in Congress. After that agreement is reached, the proposed Amendment has to be sent to the states where the amendment is ratified by 3/4 of the state Representatives and Senators. I’m sure we can all agree that getting 2/3 of Congress and 3/4 of the State Legislators is next to an impossible task in today’s world.  The last time that the Constitution was amended to take away a right was prohibition which was approved for ratification in 1917 and fully ratified in 1919.  It has been 100 years since Congress has acted to take away American rights in the Constitution. It also took 202 years for the 27th amendment addressing Congressional raises to be ratified.  I believe that the second amendment and all of our fundamental rights are protected from abridgment by this and any other congress.

How do I pay for college if I’m divorced?

It’s the time of year when kids all over the country are receiving acceptance letters and financial aid awards from colleges and universities.  Everywhere we look we see the statistics about how the cost of a secondary education is increasing and how students are saddled with the burden of debt more and more. In a perfect world, we as their parents have carefully saved money every month since they were born to pay for the education but very few of us live in this perfect world.  So, we all face the tough question of paying for college and even more so if you are a single parent.

A good divorce attorney will ask you questions about your children’s educational goals because they should be considered at the time of the divorce.  In Oklahoma, the obligation to support your children ends at the age of 18 or when the child graduates from high school, whichever is later up to the age of 20.  Unless your child is disabled or has a qualifying However, many colleges and universities, particularly the elite ones expect both parents to contribute to the child’s education costs. So, what does that mean?

A divorce degree can either be a consent decree or based on a finding by the court.  If you go to trial and the judge makes decisions about custody, support and visitation, the judge only has the power to order that which is allowed under Oklahoma law, which means the judge cannot order that child support continue past 18 or high school graduation under most circumstances. However, if the parties reach an agreement either through mediation or some other settlement or agreement, the parties can enter any agreement about continued support they wish so long as it does not violate the law.  So, in a consent decree, the parties can agree that the obligation to continue to support the children lasts during a post-secondary education likewise and agreement can be made on medical support and extracurricular activities for phone, car insurance, spending money etc.  While it seems strange that these kinds of matters need to be addressed in a divorced decree, it is better to have them and not need them than need them and not have them.

Additionally, Oklahoma offers the promise program.  Often when parents are married a child will not qualify for the Promise program due to combined income limits.  However, once the separation occurs, even if the divorce is not final, a parent should apply for promise if either individual parent’s income satisfies the income requirements. Documentation can be provided to the Promise Program about the circumstances and the parents separate income even if the joint tax returns show that the parents together exceed the income.  Further, even if there is joint custody if one parent qualifies based on income the student will qualify as well.  Sound financial planning in all aspects of your divorce is important and should be considered when going through these proceedings. If your divorce attorney isn’t talking to you about these things you need to ask, and if they do not understand why this is important you should consider whether this attorney understands the issues that are important to you as an attorney.