Tuesday, October 24, 2017

Thurgood Marshall

 Thurgood Marshall (1908 – 1993)
Dale G. Larrimore, Esquire

           This month we celebrate the 50th Anniversary of Thurgood Marshall becoming the first African American on the United States Supreme Court. Often lauded for his insightful legal opinions as a Supreme Court Justice, Thurgood Marshall’s career as a trial attorney before he took the bench is even more significant.
            The great-grandson of slaves, Marshall was born in Baltimore in 1908. As a child his parents instilled in him an appreciation for the Constitution, a feeling reinforced by teachers who forced him to read the document as punishment for acting up in school. He observed segregation at an early age as his mother taught kindergarten in all-black schools, where she earned far less, by law, than white teachers.
            After graduating from Lincoln University in 1930, Marshall sought admission to the University of Maryland School of Law, but was turned away because the school’s segregation policy effectively prevented blacks from studying with whites. Marshall attended Howard University Law School, from which he graduated magna cum laude in 1933. He opened his own law practice in Baltimore, and began to volunteer with the NAACP, where he successfully sued Maryland School of Law for its discriminatory admissions policy.
            Marshall joined the legal division of the NAACP in 1936 and two years later he succeeded his mentor, Charles Houston, in the organization’s top legal post. Over the next two decades, Marshall distinguished himself as one of the country’s leading advocates for individual rights, successfully arguing before the Supreme Court in cases such as Boynton v. Trailways. Marshall won 29 of the 32 cases he argued in front of the Supreme Court, most of which challenged in some way the ‘separate but equal’ doctrine that had been established in 1896 by the landmark case of Plessy v. Ferguson. The high-water mark of Marshall’s career as a litigator came in 1954 with his groundbreaking victory in Brown v. Board of Education of Topeka, a case that was consolidated with similar cases from South Carolina, Virginia, Delaware and the District of Columbia.
            In Brown, Marshall argued that the ‘separate but equal’ principle was unconstitutional, and designed to keep blacks “as near [slavery] as possible” and, as we all now know, the Court agreed, holding that school segregation was illegal as it violated the 14th Amendment to the Constitution. On May 17, 1954, Chief Justice Earl Warren, delivered the unanimous ruling: “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” This decision served as a great impetus for the African American civil rights movement of the 1950s and 1960s and ultimately led to the abolishment of de jure segregation in all public facilities and accommodations.
            In 1961, President John F. Kennedy appointed Marshall to the U.S. Court of Appeals, but his nomination was opposed by many Southern senators, delaying his confirmation until the next year. In 1965, President Lyndon B. Johnson named him as the United States Solicitor General, where Marshall successfully argued on behalf of the United States in Miranda v. Arizona and U.S. v. Price. Following the retirement of Justice Tom C. Clark, President Johnson appointed Marshall to the Supreme Court on June 13, 1967. After a vigorous and often heated debate, his appointment was confirmed by the Senate on August 30, 1967 with a 69-11 vote.
            As an Associate Justice on the highest court in America, Marshall continued his lifelong fight against discrimination, writing numerous opinions protecting the constitutional rights of the most vulnerable Americans. Over the next 24 years, Justice Marshall consistently opposed the death penalty and any discrimination based on race or sex, while supporting the rights of criminal defendants. He also defended affirmative action and women’s right to abortion; and continued his tireless commitment to ensuring equitable treatment of individuals–particularly minorities–by state and federal governments. As appointments changed the politics of the Court, Marshall found his liberal opinions increasingly in the minority.
            After a very distinguished career on the Supreme Court, Justice Marshall retired in 1991, in poor health, and two years later passed away. He left us with a legacy of upholding the rights of the individual as guaranteed by the U.S. Constitution. Current Supreme Court Justice Elena Kagan recently posited that “Thurgood Marshall was the greatest lawyer of the 20th century. No one did more to advance justice.” In a recent celebration of Thurgood Marshall’s life in Philadelphia, Villanova Law School Professor Catherine Lanctot was even more persuasive in suggesting that if we measure greatness by the impact that a person has had and the number of people influenced by those efforts, then Thurgood Marshall should be recognized as the greatest lawyer in American history.
    As we look back on his incredible life, we might reflect on his own words. In a commencement address given in May of 1978 at the University of Virginia, Thurgood Marshall had this to say to the graduates:

The democratizing aspect of the Constitution cannot be overstated. For me, its cardinal principle is that all persons stand in a position of equality before the law. The Constitution gives each and every one of you an equal right to your own opinions and to participate in the process of your own governance. These are precious rights that we must continually strive to preserve, and whose promise we must seek to attain. There are still far too many persons in this country who cannot participate as equals in the processes of Government—persons too poor, too ignorant, persons discriminated against by other people for no good reason. But our ideal, the ideal of our Constitution, is to eliminate these barriers to the aspirations of all Americans to participate fully in our government and society. We have realized it far better than most countries, but we still have a long way to travel and we must continue to strive in that direction.…

Governments derive their power from many sources—the military or police are instruments of power and many in the short run enforce the government’s directives against an unwilling people. But authority is a different question—and no government can govern long, or well, without the authority that comes from a shared consensus among the governed. They must believe that theirs is a rightful, and lawful, and just government.

But in order to preserve this power in the people—the power of defining and limiting the authority of their government—it is first and foremost essential that the people be well informed.… [T]he duty to keep up,… to be knowledgeable in some area of human endeavor, is an essential one, not only for the continued survival of our government but in the long run for our civilization. It is hard work being well-informed; but it is essential work for the citizens of a democracy.…

Those of you here today about to use your degrees, it is for you now to undertake the projects of this age.… It is not for me to tell you what these are—each generation must find its own calling. But you have the energies of youth—and while you have them, use them, that you may look back on your lives with as much a sense of accomplishment as Jefferson no doubt did.…

Each of you as an individual must pick your own goals. Listen to others but do not become a blind follower. Do not wait for others to move out—move out yourself—where you see wrong or inequality or injustice speak out, because this is your country. This is your democracy—make it—protect it—pass it on. You are ready. Go to it.

His words speak volumes to all of us even today, almost 40 years later.

Friday, September 29, 2017

Seat Belts Save Lives!

Seat Belts Save Lives!
Dale G. Larrimore, Esquire
It is well known that motor vehicle crashes are a leading cause of death in the U.S.[i] But what is perhaps less well known is that the death rate for drivers and passengers in America’s most rural counties is up to 10 times higher than those in the most urban counties.[ii] The Center for Disease Control recently completed an analysis of the rural death rate from vehicle crashes and concluded that vehicle occupants in rural areas of the United States were less likely to use seat belts and more likely to die in vehicle crashes.[iii] 

“Although we know motor vehicle crash-related deaths have been historically higher in rural areas, this study shows that the more rural the area, the higher the risk,” said Laurie Beck, an epidemiologist in CDC’s Division of Unintentional Injury Prevention. “It also helps us confirm what works to prevent these crash deaths, such as primary enforcement seat belt laws and seat belt use.”

The CDC’s analysis of nationwide statistics revealed that 61.3 percent of drivers and passengers in rural counties were not wearing seat belts at the time of a fatal crash. In urban counties, 44.4 percent of the vehicle occupants were not wearing seat belts in fatal vehicle accidents.  

In a recent article in The Philadelphia Inquirer,[iv] Jason Nark noted that PennDOT’s statistics from 2014 to 2016 indicated that 69 percent of the drivers and passengers in fatal crashes in Pennsylvania’s four most rural counties were not wearing seat belts, whereas only 29 percent of the occupants of vehicles in fatal crashes in Pennsylvania’s four most urban counties were not protected by a seat belt. 

In his story, Mr. Nark also quoted Nichole Morris, director of the HumanFIRST Laboratory at the University of Minnesota, who indicated that there may also be a cultural component to the lack of seat belt use in rural areas.  “Pickup truck drivers are less likely to use seat belts than drivers of other motor vehicles,” she said.  Morris also noted that rural drivers have less access to Uber and Lyft. “The cities make it so easy to not drive drunk.”

In an interesting anomaly, the most urban county in Pennsylvania is the county with the lowest percentage of seat belt usage. From 2011 to 2014, only 40% of Philadelphia motorists were using seat belts when involved in a vehicle crashes. There was only one other county (Beaver County) with less than 75% rate of seat belt usage.  On the other hand, in 53 of Pennsylvania’s 67 counties over 80 per cent of the vehicle occupants in automobile accidents were using seat belts.[v] 

Not surprisingly, the county in Pennsylvania with the highest percentage of traffic-related deaths is Philadelphia, the county with the lowest rate of seat belt usage.

According to Ashley Schoch,  a PennDot spokeswoman, Gov. Wolf’s administration has dedicated $3 million to seat belt enforcement this year.

"We know seat belts save lives," said CDC Director Brenda Fitzgerald, M.D. "These findings remind us that no matter what kind of road you are traveling on, it is important to everyone to buckle up every time on every trip. "

[i] CDC. WISQARS (Web-based Injury Statistics Query and Reporting System). Atlanta, GA: US Department of Health and Human Services, CDC; 2010. Available at https://www.cdc.gov/injury/wisqars.

[ii] CDC, Press Release September 17, 2017, “Rural Americans less likely to wear seat belts, more likely to die in crashes”


[iii] Id., citing data from the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System (FARS) to identify passenger vehicle occupant deaths among adults and data from CDC’s Behavioral Risk Factor Surveillance System (BRFSS) to estimate how often drivers and passengers used seat belts.

[iv]Rural motorists wear belts less, die more,” Jason Nark, Philadelphia Inquirer, September 28, 2017.

[v] 2014 Pennsylvania Crash Facts and Statistics, PennDOT publication, a statistical five year review of traffic crash reports compiled by the Bureau of Maintenance and Operations of the Department of Transportation. 

Tuesday, July 4, 2017

Why we Celebrate the Fourth of July

We celebrate American Independence Day on the Fourth of July every year. As Americans, we accept that July 4, 1776 is the day that represents our Declaration of Independence and the birth of the United States of America as an independent nation. But July 4, 1776 wasn't the day that the Continental Congress decided to declare independence (that was on July 2nd). It wasn’t the day we started the American Revolution either (that had happened back in April 1775). And it wasn't the day Thomas Jefferson wrote the first draft of the Declaration of Independence (that was in June 1776).  Or the date it was signed (that was August 2, 1776). Or even the date on which the Declaration was delivered to Great Britain (that didn't happen until November 1776).

The Continental Congress met in Philadelphia for months debating whether or not to take this drastic step and the actual vote for independence occurred on July 2, 1776, The next day, John Adams wrote a letter to his beloved wife exuberantly reporting that history had been made the day before: “A Resolution was passed, without one dissenting Colony, that these united Colonies, are, and of right ought to be, free and independent States.” Henceforth, Adams predicted, July 2 would be celebrated by every generation with parades, speeches, songs and what he called “illuminations.” He got everything right, even the fireworks. But he got the date wrong.

So what did happen on July 4, 1776?

The Continental Congress approved the final wording of the Declaration of Independence when they were meeting in Philadelphia on July 4, 1776. A committee (principally Thomas Jefferson) had been drafting a proposed document for weeks and after July 2nd, the Congress spent two more days revising the final draft until they all came to agreement on all of the edits and changes. Keep in mind that with quill pens, it was a tedious process to make edits and create a new edited version of any document. The Declaration of Independence agreed to on the Fourth was merely the thunderous aftermath, the sound following the fury.

July 4, 1776, became the date that was included on the Declaration of Independence, and the fancy handwritten copy that was signed in August (the copy now displayed at the National Archives in Washington, D.C.) It’s also the date that was printed on the Dunlap Broadsides, the original printed copies of the Declaration that were circulated throughout the new nation. So when people thought of the Declaration of Independence, July 4, 1776 was the date they remembered.

In contrast, we celebrate Constitution Day on September 17th of each year, the anniversary of the date the Constitution was signed, not the anniversary of the date it was approved. If we’d followed this same approach for the Declaration of Independence we’d being celebrating Independence Day on August 2nd of each year, the day the Declaration of Independence was signed!

How did the Fourth of July become a national holiday in the United States?

For the first 15 or 20 years after the Declaration was written, people didn’t celebrate it much on any date. It was too new and too much else was happening in the young nation. By the 1790s, a time of bitter partisan conflicts, the Declaration had become controversial. One party, the Democratic-Republicans, admired Jefferson and the Declaration. But the other party, the Federalists, thought the Declaration was too French and too anti-British, which went against their current policies.
By 1817, John Adams complained in a letter that America seemed uninterested in its past. But that would soon change.

After the War of 1812, the Federalist party began to come apart and the new parties of the 1820s and 1830s all considered themselves inheritors of Jefferson and the Democratic-Republicans. Printed copies of the Declaration began to circulate again, all with the date July 4, 1776, listed at the top.

Coincidentally, the Fourth of July was momentous for other reasons. On July 4, 1803, word arrived from Paris that the Louisiana Purchase had been signed by Napoleon, an event of enormous significance rendered almost providential because of the chronological coincidence. On July 4, 1863, Gen. Robert E. Lee’s army began its retreat from Gettysburg, which newspapers in the northern states reported as a sign from the heavens that the Confederate cause was now lost. Celebrations of the Fourth of July became more common as the years went on and in 1870, almost a hundred years after the Declaration was written, Congress first declared July 4 to be a national holiday. Further legislation about national holidays, including July 4, was passed in 1939 and 1941.

The most providential event of all, however, occurred on July 4, 1826, when both John Adams and Thomas Jefferson died on the same day. Adam’s last words were,“Thomas Jefferson still lives,” although Jefferson had died a few hours earlier. Jefferson’s last words, muttered the preceding evening, were, “Is it the Fourth?”  Both founders seemed determined to die on schedule, thereby endorsing July 4 as the sanctioned anniversary for American independence. Even if the date had been wrong for 50 years, it has been right ever since.

Tuesday, June 20, 2017

Reckless Driving

Reckless Driving[1]
Dale G. Larrimore
Larrimore & Farnish, LLP – Philadelphia, PA

§ 3736. Reckless driving.
Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

            The phrase “willful and wanton” as used in section 3736 of the Vehicle Code, applies when a driver grossly deviates from ordinary prudence and creates a substantial risk of injury.[2]  It conforms to the type of conduct that is generally known as reckless conduct in the law. Under the Restatement Second of the Law of Torts:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.[3]

A motorist who exhibits a callous disregard for the danger created by his or her conduct would be guilty of reckless driving under this section.[4]
            Reckless conduct is the “intentional acting or failing to act in complete disregard of a risk of harm to others which is known or should be known to be highly probable and with a conscious indifference to the consequence .... In other words, it’s more than mere negligence. It’s acting in such a way that the person acting has a conscious indifference to the consequences.”[5] The Pennsylvania Supreme Court has indicated that a person is guilty of wanton misconduct if that person recklessly disregards an existing danger, realizing, or at least having knowledge of sufficient facts to cause a reasonable man to realize, the existence of the peril for a sufficient period of time to give an opportunity to take action to avoid the accident.[6]
Driving a vehicle at 70 miles-per-hour around a blind curve demonstrates willful or wanton disregard for the safety of persons or property, sufficient to support a conviction for reckless driving.[7] Entering the opposite lane of travel constitutes reckless driving.[8] Every licensed driver is aware that driving while under the influence of alcohol presents a significant and very real danger to others and, under the appropriate circumstances, evidence of driving under the influence is outrageous misconduct demonstrating a reckless disregard to the safety of others sufficient to warrant punitive damages.[9]
            Thus, whether it is termed ‘reckless disregard’ or ‘wanton misconduct,’ the basis of this liability in tort is premised upon the actor intentionally doing an act creating a great risk of harm when the actor either (1) knows of the great risk, but consciously disregards it and proceeds, or (2) had knowledge of facts that would lead a reasonable man to become aware of this risk in time for the actor reasonably to avoid the danger.[10] Our Superior Court has held that a motorist can drive in such a reckless manner that he must be deemed to have been aware of the fact that he was creating a substantial risk of causing a motor vehicle collision.[11]
            The violation of multiple provisions of the Vehicle Code can result in a conviction of reckless driving, even where one violation may not have been sufficient to demonstrate the requisite degree of wanton disregard for the safety of others. The Pennsylvania Superior Court has held that the “cumulative conduct” of a motorist who was speeding, tailgating and erratically changing lanes was sufficient to demonstrate that he acted in a reckless and grossly negligent manner.[12]
            While drunk driving is certainly reckless behavior, courts have held that driving under the influence of an intoxicating substance does not, in and of itself, establish reckless driving per se; there must be other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously disregarded.[13] An intoxicated driver’s flight from an approaching police officer could be considered reckless driving.[14] However, it is recognized that there is a level of intoxication that would render a person so incapable of safe driving that the probability of injury or death would rise high enough to satisfy the willful and wanton recklessness standard for a violation of Section 3736 of the Vehicle Code.[15]
            There are two significant effects of reckless conduct by a defendant. First, if the evidence reveals and the fact finder determines that the defendant acted with recklessness, then the defendant would be barred from utilizing the affirmative defense of comparative negligence[16] at trial.[17] When willful or wanton misconduct is involved, comparative negligence should not be applied, as reckless conduct and negligent conduct require different levels of culpability.[18] Recklessness is different “in kind” from mere negligence or carelessness; it cannot be compared with negligence for purposes of apportioning fault under the Comparative Negligence Act.[19] For this reason, an averment of recklessness in pleadings is proper on its own, with or without a claim for punitive damages.
            The second significant effect of reckless conduct is that it exposes the defendant to a claim of punitive damages. Assessment of punitive damages are proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.[20] In Feld v. Merriam, the Supreme Court adopted Section 908(2) of the Restatement (Second) of Torts, under which punitive damages may be awarded against a defendant who acts with reckless indifference to the rights of others.[21] Where a defendant knows, or has reason to know, of facts that create a high degree of risk of physical harm to another and deliberately proceeds to act or fails to act in conscious disregard of, or indifference to, that risk than punitive damages may be awarded.[22]
            The question of whether a person's actions rise to outrageous conduct done with reckless indifference to the interests of others lies within the sound discretion of the fact-finder and should not be disturbed by an appellate court so long as that discretion has not been abused.[23] 

[1] Excerpted from Larrimore, Dale, Pennsylvania Rules of the Road, Vol. 13 of West’s Pennsylvania Practice Series, 2016-2017 Edition, Section 6:2. Copyright Thomson Reuters.
[2] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005), cited with approval in Com. v. Carroll, 936 A.2d 1148 (Pa. Super. Ct. 2007).
[3] Restatement Second of Torts §500, as quoted in Sullivan v. Wolson, 396 A.2d 1230 (Pa. Super. Ct. 1978).
[4] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005).
[5] Junk v. East End Fire Dept., 396 A.2d 1269, 1274 (Pa. Super. Ct. 1978).
[6] Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965).
[7] Com. v. Fieldler, 931 A.2d 745 (Pa. Super. Ct. 2007).
[8] Com. v. Best, 120 A.3d 329 (Pa. Super. Ct. 2015).
[9] Focht v. Rabada, 268 A.2d 157, 161 (Pa. Super. Ct. 1970).
[10] Sullivan v. Wolson, 396 A.2d 1230, 1236 (Pa. Super. Ct. 1978).
[11] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), reargument denied January 10, 2008, citing Com. v. Greenberg, 885 A.2d 1025, 1028–29 (Pa. Super. Ct. 2005).
[12] Com. v. Matroni, 923 A.2d 444 (Pa. Super. Ct. 2007).
[13] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007)(citing Com. v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. Ct. 1998).
[14] Com. v. Finley, 135 A.3d 196 (Pa. Super. Ct. 2016).
[15] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), citing Com. v. Bullick, 830 A.2d 998, 1004 (Pa. Super. Ct. 2003).
[16] Pennsylvania’s Comparative Negligence Act is found at 42 Pa.C.S. §7102(a).
[17] Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943).
[18] Krivijanski v. Union R. Co., 515 A.2d 933, 936 (Pa. Super. Ct. 1986).
[19] Johnson v. City of Philadelphia, 808 A.2d 978 (Pa. Commw. Ct. 2002).
[20] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991).
[21] Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).
[22]SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 494–95, 587 A.2d 702, 704–705 (1991), citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963).
[23] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991).