October 2016
LITIGATION CASE LAW UPDATE
Good Fences And Good Laws Make Good Neighbors: By The Way Give Me Back The Hedge Clippers You Borrowed.
Prior fisticuffs between neighbor partygoers does not amount to wanton disregard of the landowner to escape the purview the Delaware’s Premises Guest Statute, codified in 25 Del. C. § 1501.The factual circumstances surrounding the litigation are straightforward. Plaintiff attended a barbeque at the home of Defendant, his next door neighbor. While at the barbeque, Plaintiff twice physically struck another Guest. Following both incidents, Defendant separated the individuals, requested they stop fighting, and required Plaintiff to apologize. Shortly thereafter, Guest assaulted Plaintiff. Plaintiff filed suit alleging negligence upon numerous grounds – essentially failure to warn, protect, and discover a danger. Defendant moved for summary judgment contending Plaintiff’s claim is barred by Delaware’s Premises Guest Statute:
No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the willful or wanton disregard of the rights of others.
25 Del. C. § 1501 (emphasis added).
On August 23, 2016, the Delaware Superior Court granted Defendant’s Motion for Summary Judgment. It was undisputed that Plaintiff was a guest without payment; therefore, Plaintiff could only recover if Defendant intentionally or with willful or wanton disregard caused the harm. The Court noted the clear distinction between negligence and wantonness, the latter requiring a landowner have, “…knowledge of the conduct causing harm, realize the probability that another person would be injured and still disregarded the consequences.” The Court concluded the previous altercations – where Defendant acted as a mediator attempting to keep the peace – failed to establish Defendant’s knowledge and disregard of any “risk”.
For more information on the Delaware Premises Guest Statute or any other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Bates v. Vasquez, 2016 Del. Super. LEXIS 424 (Del. Super. 2016).
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PRESS RELEASE INSURANCE COMMISSIONER
Workers’ Compensation Rates Unchanged for 2017
DOVER, DE PRESS RELEASE (October 12, 2016) – Insurance Commissioner Karen Weldin Stewart today approved the Delaware Compensation Rating Bureau (DCRB)’s workers’ compensation amended rate filing, which recommends no changes in the overall levels of residual market rates and voluntary market loss costs for 2017.
“I hope this is the beginning of a period of rate stabilization in the workers compensation market,” said Commissioner Stewart. “I want to thank my staff, the Ratepayer Advocate and the DCRB for their hard work to keep the rates at their current overall level. I also want to recognize the General Assembly and my fellow members of the Governor’s Workers Compensation Oversight Panel and the Workers’ Compensation Task Force, whose efforts over the past few years are now bearing fruit.”
The Commissioner’s independent actuaries and the state’s Ratepayer Advocate examined the DCRB’s original filing and agreed on the amended rates approved by the Commissioner.
The DCRB’s amended filing No. 1603 may be found at:
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WORKERS’ COMPENSATION REPORTS
A Workers’ Compensation Miracle:
Board Confirms Chronic Regional Pain Syndrome Recovery
Board finds that despite five (plus) years of accepted treatment and total disability for a right arm chronic regional pain syndrome (“CRPS”) diagnosis, claimant no longer had CRPS, was capable of modified duty employment, and does not need narcotic medications or a spinal cord stimulator.
Employer previously attempted to challenge the CRPS diagnosis, total disability, and medical treatment at a Hearing in 2013, but the Board denied the Petition, accepting the testimony of her treating physician Dr. Ameer, and ongoing narcotic medication and injection treatment. Employer subsequently accepted 90% permanency to the affected upper extremity.
Following a new defense medical examination with Dr. Schwartz again challenging the diagnosis, disability, and treatment, Employer filed a Petition to Terminate benefits. Claimant then transferred her pain management treatment to Dr. Xing, who continued to prescribed narcotic medication, suggested chiropractic, and considered a spinal cord stimulator. She also maintained claimant’s total disability certification.
 The Board disagreed with Dr. Xing and found that Claimant no longer had CRPS, was capable of working, and held that Dr. Xing’s treatment with narcotic medications/chiropractic/proposed spinal cord stimulator was not compensable. Dr. Xing did not conduct a physical examination to confirm objective findings of CRPS. Employer’s medical expert did not find any objective evidence of CRPS. Dr. Xing ordered a bone scan which was negative, and testified that a negative bone scan did not rule out CRPS. Employer’s expert testified that bone scans are more than 90% accurate in detecting late stage CRPS, and the Board accepted his testimony. The Board also noted that surveillance footage showed claimant involved in activities such as smoking regularly, driving, shopping, holding her phone with the allegedly injured arm, using the arm to tap her phone screen, and shutting car doors with the arm.
For more information on this Board Decision or any other legal questions, feel free to contact Anthony M. Frabizzio or Gregory P. Skolnik of our Workers’ Compensation Department.
Lisa Chambers v. Perdue Farms, IAB Hrg. No. 1363444 (Sept. 30, 2016).
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EMPLOYMENT LAW UPDATE
I DON’T HAVE TO SHOW YOU THE MONEY
Delaware Legislators Propose to Close Gender Wage Gap Through Past Salary Disclosure Prohibition In Employment Hiring
Released in September 2016, the Census Bureau’s Income and Poverty in the United States: 2015 report concludes that nationally, based on census data and statistical analysis, when females performed the same or similar job as their male counterparts, they were paid only 80% of the wages. In other words, according to the Census Bureau, for every dollar a male was paid to do a job, a female was paid 80 cents. In measuring income equality state by state, Delaware ranks as the best in the nation (tied in first place with New York), with an 11% wage gap – women earning 89 cents for every dollar a male earns. In an effort to close the Census Bureau’s identified gender wage gap, Delaware Legislators have taken and continue to take a proactive stance, seeking to enact laws which they believe will work to stop the perpetuation of the disparities from one job to another.
19 Del. C. §711, as enacted, restricts employers from creating and enforcing policies which restrict discussion between employees regarding the disclosure of their salaries. Representative Valerie Longhurst has now proposed an amendment to §711, adding more substance to the measure with the goal of preventing a history of gender wage gaps following a perspective employee to their new company. The proposed amendment not only restricts the same actions already set forth in §711 as enacted, but adds that an employer may not request or require prior wage information from a prospective employee until all employment negotiations have been agreed upon. The amendment does allow for voluntary disclosure of prior wages by the prospective employee, at which time the employer may confirm the wage or permit the prospective employee to do so on their behalf. In short, “the bill explicitly permits discussion of salary and wage expectations . . ., so long as the employer does not affirmatively seek salary and wage history in the course of discussion and negotiation.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
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NEW FEATURE
This Day in Legal History: October 14, 1774
First Continental Congress makes Declaration of Colonial Rights in Philadelphia
The First Continental Congress, which met between September 5, 1774 and October 26, 1774, makes Declaration of Colonial Rights in Philadelphia, precursor to the Declaration Of Independence. The Second Continental Congress convened in Philadelphia in May 1775, managed the colonial war effort, and moved incrementally towards independence, adopting the United States Declaration of Independence on July 4, 1776.
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ANNOUNCEMENTS
Giving Back to the Community
Anthony Frabizzio was Chairperson of the Columbus Day Communion Breakfast Committee that celebrated Columbus Day on 10/10/16. The event was a big success and included attendance by Vice President Biden, Delaware Governor Markell and other state and local officials. The event raised approximately $16,000 which is donated to the Oblate of St. Francis deSales retirement fund and to St. Anthony’s grade school for technology to include individual I-Pads for student use.
Staff Personal Interest
Attorney John Ellis and his wife Lauren proudly welcomed a little girl into the world on September 30th, 2016. Vivienne Ellis was born at 1:35 am weighing in at 6lbs 13oz. Both mother and Baby are happy and healthy. Congratulations to the new parents!
Help us help you!
Heckler & Frabizzio sent out a client feedback survey through SurveyMonkey in May. We obtained some responses but wanted to make it available to our clients again. If you complete the survey linked below, please send an email to physon@hfddel.com to win a $5 gift card. Your feedback is important to us!
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