O'Meara, Leer, Wagner & Kohl, P.A. News

Shamus O’Meara Presents on School Security in New Mexico

September 12th, 2018

Shamus O’Meara recently presented on School Security Design at the New Mexico Counsel of School Attorneys Conference in Albuquerque.  Shamus counsels educational institutions and businesses on safety and emergency management matters, and partners with state and national education and law enforcement agencies to promote safety and violence prevention in schools and on campuses.  He also serves as an expert witness and consultant to a variety of clients on security matters.

For more information on O’Meara Leer Wagner & Kohl’s Safety and Emergency Management Practice Group contact Shamus P. O’Meara.

Best Lawyers in America© Recognizes Two O’Meara, Leer, Wagner & Kohl Shareholders for 2019

September 11th, 2018

The litigation firm O’Meara, Leer, Wagner & Kohl, P.A. in Minneapolis is pleased to announce that Shareholders Dale O. Thornsjo and Christopher E. Celichowski have been selected by their peers for inclusion in The Best Lawyers in America 2019. Mr. Thornsjo is selected in the fields of Insurance Law, and Mass Tort Litigation / Class Actions – Defendants. Mr. Celichowski was selected in the field of Workers’ Compensation Law – Employers. Congratulations Dale and Chris!

This marks the 25th Edition of The Best Lawyers in AmericaBest Lawyers® recognition is based entirely on an exhaustive peer review evaluation.  The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.  Lawyers are not required or allowed to pay a fee to be listed. Corporate Counsel magazine has described  Best Lawyers as “the most respected referral list of attorneys in practice.”

O’Meara Leer Wagner & Kohl Attorneys Tim Leer, Shamus O’Meara and Dale Thornsjo Named 2018 SuperLawyers; Lance Meyer Named 2018 Rising Star

August 21st, 2018

O’Meara, Leer, Wagner and Kohl is proud to announce that three of the Firm’s shareholders –Timothy J. Leer, Shamus P. O’Meara, and Dale O. Thornsjo – have once again been recognized as “Super Lawyers” by their peers in Minnesota.  Joining them this year is Associate Lance D. Meyer who is recognized as a “Rising Star” by his peers. “Super Lawyers” and “Rising Star” recognitions are annually published by
Super Lawyers Magazine. See the edition here.

There’s Something About Stairy

August 9th, 2018

Minnesota Supreme Court Affirms “Increased Risk” Test as Appropriate Standard for Injuries “Arising Out of Employment”

In a 4-2 decision issued yesterday the Minnesota Supreme Court held that “an injury arises out of employment when there is a causal connection between the injury and the employment” and that an employee sustained a compensable injury when she fell down a set of clean, well-lit and OSHA-compliant stairs while carrying a plant in both hands with her purse hanging off her elbow. Roller-Dick v. CentraCare Health Sys. and SFM Mut. Co., A17-1816 (Minn. 2018). In doing so, it added to the growing body of case law interpreting the “increased risk test”.

Roller-Dick worked on the second floor of an office building. Every work day she took the stairs from the second floor to leave. On the date of the injury, she began walking down the stairs, a purse hanging from her elbow and a plant in her hands. She slipped on the second stair out of ten, fell down the remaining stairs and fractured her left ankle. The stairs were coated with rubber and hand railings extended along both sides of the staircase. Roller-Dick testified at trial she fell because her rubber-soled shoes stuck to the rubber on the staircase. (She dropped this allegation on appeal.) At the time of her injury, the stairs were dry and compliant with building and OSHA codes.

A compensation judge denied her workers’ compensation claim, finding her injury did not “arise out of“ her employment. Roller-Dick appealed to the Minnesota Workers’ Compensation Court of Appeals (WCCA).

The WCCA reversed, holding the compensation judge incorrectly applied the “increased risk” test to deny her claim. It ruled a flight of stairs could not be considered a neutral risk because stairs increased the likelihood and severity of an injury. The Court found Roller-Dick did not have to prove there was something about the staircase that further increased her risk of injury. Rather, they concluded the “stairs alone increased her risk, and therefore, [her] injury arose out of her employment.”

The employer appealed to the Minnesota Supreme Court, which ­­­­­affirmed WCCA’s decision, holding the undisputed circumstances of Roller-Dick’s injury created an increased risk that she would fall and injure herself on the stairs.

The Supreme Court began its analysis by distinguishing between “special hazards” created by employment and hazards created by “neutral conditions” not inherently dangerous or risky but which still increase the employee’s exposure to injury. To illustrate the latter type of case, they discussed their 1983 decision in Kirchner v. Anoka which held an employee’s injury arose out of employment when he descended the stairs without using a handrail because other people were on the side of the stairs with the only handrail. Although the stairs were not obviously hazardous, Kirchner encountered a set of circumstances – the need to descend the stairs without a handrail – that increased his risk of injury. Dykhoff, in contrast, was a “neutral condition” case involving an unexplained fall with no causal connection between her work environment and her injury; therefore, her injury did not arise out of her employment.

The Court also reviewed post-Dykhoff decisions.  It distinguished Kubis from Hohlt. They considered Kubis as a case in which the WCCA inappropriately exceeded its standard of review and substituted its own factual findings and assessment of witness credibility. In contrast, they viewed Hohlt as a case involving misapplication of the law – the “increased risk” test. The Supreme Court affirmed the WCCA’s position that Hohlt’s employment exposed her to a hazard – an icy sidewalk – that caused her injury. According to the Court, Hohlt affirmed the core principles underlying its conclusion in Dykhoff: “[F]or an injury sustained on employer’s premises to arise out of employment, the employee must have faced a hazard that originated on the premises as part of the working environment, thus supplying the requisite causal connection between the injury and employment. Such injuries are explained due to the employee’s exposure to the hazard. Injuries caused by inexplicable slip-and-falls, as was at issue and Dykhoff, do not arise out of employment because employees in such cases have not faced a hazard which would explain the cause of their injury.”  According to the Court, the rule is: “an injury arises out of employment when there is a causal connection between the injury and the employment.”.

The Supreme Court conceded there was nothing wrong with the stairs or stairway. Roller-Dick did not use the handrails while descending the stairs because she was carrying a plant and her handbag. “These circumstances created an increased risk that [she] would fall and injure herself on the stairs, thus satisfying the requisite causal connection between the workplace and her injury.” They felt the case was on point with Kirchner.

The Court majority rejected any attempt to, in their view, insert negligence concepts into the legal determination regarding whether an injury arose out of employment by considering the good or bad choices made by an employee which may have caused or even contributed to her injury. The Supreme Court explicitly noted, “We need not hold today, as the WCCA did, that stairs themselves are workplace hazards exposing employees to an increased risk of injury…Whether stairs generally are hazardous is a matter for another case and another record.”

Chief Justice Gildea, joined by Justice Anderson, dissented. The Chief Justice believed the majority misapplied the law, improperly merged the “arising out of” and “in the course of” requirements, and essentially created a single compensability test. She argued the majority ignored the “arising out of” causation standard and simply held that because the injury happened at work, it was compensable. Chief Justice Gildea concluded Roller-Dick failed to meet the “arising out of” requirement because the employer provided a “safe, non-hazardous stairway for its employees to use” and the employee chose not to use the provided handrails. She felt the Supreme Court’s decision in Kirchner was consistent with her view because the employer in Kirchner provided only one handrail, and the injury was caused by the absence of a second handrail; therefore, it arose out of his employment. In other words, Kirchner’s injury was compensable because he had no choice to use the single handrail; Roller-Dick’s injury was not compensable because she had a choice to use either one of the two handrails and used neither. According to Chief Justice Gildea, “Nothing about Roller-Dick’s employment dictated that choice.”

OUR VIEW

We anticipate Minnesota’s workers’ compensation courts will continue to wrestle with the appropriate application of the “increased risk test” announced in Dykhoff.  We are pleased the Minnesota Supreme Court affirmed the “increased risk” test as the appropriate standard for deciding when injuries “arise out of” employment. We are also pleased the Court did not adopt the WCCA’s position that stairs are, as a matter of law, a hazardous condition and any fall on the stairs at work is compensable under Minnesota’s Worker’s Compensation statute. While we would have preferred the Supreme Court to explicitly reject that conclusion, we also recognize the Court appropriately exercised judicial restraint in not going beyond what was essential to decide the case.

Please contact any of the attorneys in O’Meara, Leer, Wagner & Kohl’s Workers’ Compensation Practice Group if you have any questions about how the Supreme Court’s holding in Roller-Dick may apply to your claims.

 

Federal Appeals Court Affirms Minnesota District Court’s Authority to Order State to Comply with Landmark Settlement Benefitting People with Disabilities

July 27th, 2018

In 2011, O’Meara Leer Wagner & Kohl negotiated a landmark class action settlement with the State of Minnesota on behalf of people with disabilities across the state. In the Settlement, the State agreed to create an Olmstead Plan, eliminate the use of physical and chemical restraints and seclusion, close state facilities that were utilizing abusive practices, and provide training to State employees. The Court approved the Settlement and ordered the State to implement its terms, while retaining jurisdiction to ensure the State’s compliance with the Settlement.

In 2017, after years of submission to the Court’s authority, the State initiated a challenge to the Court’s ongoing jurisdiction, seeking to dismiss the case before it had properly complied with the terms of the Settlement. The Court denied the challenge and the State appealed the decision.

On July 26, the Eighth Circuit Court of Appeals denied the State’s appeal, ruling the District Court properly retained authority over the State to review its compliance with the Settlement.  Read more here and review the Eighth Circuit Court of Appeals decision here.

Minnesota Supreme Court Affirms WCCA Award of .191 Attorney Fees

July 24th, 2018

The Minnesota Supreme Court recently affirmed the Minnesota Workers’ Compensation Court of Appeals (WCCA), holding an attorney is entitled to reasonable fees under Minn. Stat. §176.191 and the award of reasonable attorney’s fees should cover the value of the attorney’s representation, even time spent developing ultimately unsuccessful arguments. Hufnagel v. Deer River Health Care, et al., A17-2064 (Minn. 2018).

Hufnagel, working as a certified nursing assistant, sustained multiple work-related low back injuries. Her first injury occurred in 2009 while working for Deer River. In 2013, Deer River became Essentia Health-Deer River and changed workers’ compensation insurers. She alleged additional injuries in 2014 and 2015 but Essentia denied liability stating her injury was merely a “continuation of the prior work injury from 2009 [with Deer River], which was under a different insurer.”  Hufnagel filed a Claim Petition against Deer River seeking benefits for the admitted 2009 date of injury. Deer River asked Hufnagel to add Essentia as a party. When Hufnagel refused, Deer River filed a motion to join Essentia which the compensation judge granted. Both employers and their insurers obtained multiple IMEs, each placing responsibility on the other.

Following trial, the compensation judge found the disputed medical care was reasonable and related to the 2009, 2014, and 2015 work injuries. While the compensation judge also found the 2009 injury continued to be a substantial contributing factor to the claimant’s overall low back condition, the compensation judge denied apportionment between the injuries because the 2014 and 2015 injuries were temporary and the compensation judge held Essentia (the new employer) liable for TTD and medical benefits related to the 2014 and 2015injuries. Hufnagel’s attorney filed a Statement of Attorney Fees requesting Roraff/Irwin fees, and, alternatively, fees under Minn. Stat. §176.191 subd. 1 (i.e., .191 fees). The compensation judge found Hufnagel’s attorney failed to differentiate between the time spent on the 2009 injury and the time spent on the 2014 and 2015 injuries. The judge said that because this was not a dispute “primarily between insurers” and there were no benefits specifically awarded for the 2009 injury, Hufnagel’s attorney was not entitled to .191 attorney fees. The judge awarded Hufnagel’s attorney $8,000 in Roraff/Irwin fees, substantially less than the $31,120.47 in fees claimed.

Hufnagel’s attorney appealed to the WCCA. The WCCA reversed and held the employers had “‘rendered the apportionment a significant issue…and greatly increased the burden on the employee’s counsel to provide effective representation’ by seeking to place sole liability on each other.” The WCCA said disallowing .191 fees denied Hufnagel’s attorney “adequate compensation” for the representation provided. Furthermore, the WCCA concluded that when the compensation judge evaluated the claim for Roraff/Irwin fees, the compensation judge inappropriately treated the time spent in the 2009 injury as unreasonable. The WCCA vacated the compensation judge’s order on attorney fees and Essentia appealed to the Minnesota Supreme Court.

The Minnesota Supreme Court affirmed the WCCA. It found there was a dispute between Hufnagel’s two employers and their insurers which would entitle her attorney to hourly .191 fees. The Court noted that under Minn. Stat. §176.191 subd. 1, when two or more such insurers dispute liability for benefits, the compensation judge must award attorney fees. (The statute uses the word “shall”.) The court held the dispute arose when Essentia denied liability. The court suggested that by denying liability, Essentia attempted to shift the burden to Deer River and this created “a dispute between two employers”, thus invoking Minn. Stat. §176.191 subd. 1. The court inferred that both employers/insurers conceded Hufnagel was entitled to benefits from somebody, but disputed which of them was responsible. It concluded that the efforts by the employers and insurers to shift responsibility to the other “greatly increased the burden” on Hufnagel’s attorney and that he was entitled to receive reasonable .191 attorney fees.

The court also concluded Hufnagel’s attorney was entitled to fees for time spent developing the 2009 injury. It found that “Although no compensation was awarded to the employee for the 2009 injury as a result of this litigation, the 2009 injury was directly related to the benefits the employee successfully obtained for the 2014 and 2015 injuries.” It found attorneys should be compensated for the preparation required to thoroughly represent clients, not just for time developing arguments that are ultimately successful. Thus, an award of reasonable fees should be adequate to compensate the attorney for the value of the representation provided, including the time reasonably necessary to thoroughly prepare. The court took pains to note that “an ‘adequate’ and ‘reasonable’ fee is not an excessive fee nor an award that compensates the attorney twice.”

OUR VIEW: We view Hufnagel as a fact-specific case which does not represent a departure from established Minnesota law. We do not believe it breaks any new legal ground in Minnesota Worker’s Compensation cases nor does it expand the cases in which .191 fees may be payable. The key, in our view, is the Supreme Court’s “inference” that both employers/insurers conceded the employee’s claims were compensable and that the main issue was the allocation or apportionment of responsibility between them. We believe that an award of .191 fees is not appropriate in a case where there is a legitimate, substantive dispute about an employee’s entitlement to the benefits claimed.

If you have questions regarding the Minnesota Supreme Court’s decision or any other workers’ compensation issues, please contact the O’Meara Leer Wagner & Kohl Workers’ Compensation Group at (952.831.6544).

Wisconsin Supreme Court Addresses What it Takes to Properly Plead a Claim of Successor Liability in Wisconsin and How, When Properly Pled, the Fraudulent Transaction Exception to Wisconsin’s Successor Non-Liability Rule is Analyzed

June 7th, 2018

In a split decision, the Wisconsin Supreme Court recently held in Springer v. Nohl Electric Products Corp., No. 2015AP829 (May 15, 2018) that a plaintiff who pled only allegations of negligence and strict liability failed to state a claim of successor liability.  Although it did not need to reach the issue given its decision, the supreme court held in the process that the Wisconsin Uniform Fraudulent Transfer Act (“WUFTA”) does not govern the “fraudulent transaction” exception to the general rule of successor non-liability in Wisconsin.  In other words, had the plaintiff properly pled a claim of successor liability based on the fraudulent transaction exception to successor non-liability, her claim would have been governed by the common law of fraudulent conveyances, not the WUFTA.

The facts of Springer are somewhat complicated.  Plaintiff sued several companies alleging negligence and strict liability after her husband died of mesothelioma allegedly due to asbestos exposure. Two of the defendants were Fire Brick Engineers Company Inc. and Powers Holding Inc. That is where things get complicated.

Fire Brick Engineers “FBE1” was formed in the 1940s and had several successors up until 1983, when a group of investors formed a company also known as Fire Brick Engineers Company “FBE2”, for the purpose of acquiring the assets of FBE1. As part of the asset purchase, FBE2 agreed to accept some of FBE1’s liabilities but disclaimed the assumption of most of FBE1’s liabilities, including tort liabilities. Years later, FBE2 merged with Curtis Industries, and the two companies became Powers Holdings, Inc., which currently does business under the name Fire Brick Engineers Company. FBE2 no longer exists as a separate entity, and importantly, neither FBE2 nor Powers ever manufactured, distributed, or dealt with asbestos-containing products.

Plaintiff did not name FBE1 as a defendant and did not allege that Powers Holdings Inc. was liable for Fire Brick’s negligence as the successor to Fire Brick Engineers Company Inc. in her complaint.  Based on this corporate history,  Powers asserted that Plaintiff had sued the wrong company and moved for summary judgment.  In opposition, Plaintiff argued for the first time that Powers was liable as a successor to FBE1 under the “mere continuation” or “de facto merger” exceptions to Wisconsin’s general successor non-liability rule.  After additional discovery, Powers amended its motion, and Plaintiff additionally argued that the “fraudulent transaction” exception should apply.  But Plaintiff never amended her complaint to add allegations of successor liability against Powers.

The circuit court granted Powers’ motion and dismissed FBE2 and Powers from the case.  Plaintiff appealed, and the court of appeals determined that the circuit court failed to properly analyze the fraudulent transaction exception under the WUFTA.  It therefore reversed and remanded so that a jury could determine whether Powers should be held responsible for the liabilities of FBE1 under the WUFTA.

The supreme court granted further review and reversed, reinstating the circuit court’s dismissal of FBE2 and Powers.  The supreme court disagreed that the WUFTA governs the fraudulent transaction exception to the rule of successor non-liability.  But it went a step further.  Rather than remanding for further proceedings, the supreme court held sua sponte that Plaintiff had not pled a claim of successor liability so as to warrant further proceedings as to FBE2 and Powers.

The supreme court began by addressing the fraudulent transaction exception, which was the sole issue raised on appeal.  As background, a corporation which purchases the assets of another corporation generally does not succeed to the liabilities of the selling corporation. This rule protects an innocent purchaser from liabilities caused by a predecessor corporation. But there are four well-recognized exceptions to the general rule of successor non-liability, including a fraudulent transaction exception, which allows for successor liability when a transaction is entered into fraudulently to escape liability of their obligations.  The issue before the supreme court in Springer was how the exception should be analyzed.

The supreme court held that the exception remains a common-law exception and that the WUFTA has not supplanted the common law when it comes to applying the fraudulent transaction exception to the rule of successor non-liability.  Unlike the fraudulent transaction exception, which is meant to prevent successor companies from avoiding obligations incurred by their predecessors, the WUFTA is designed to assist creditors in collecting on claims that may be frustrated by recent asset transfers.  The WUFTA thus fulfills a purpose quite separate from that of the fraudulent transaction exception.

But, again, the supreme court did not stop there.  The supreme court went on to hold that Plaintiff’s claims against FBE2 and Powers were properly dismissed because Plaintiff had failed to properly plead a claim of successor liability.  The court reasoned that a claim of successor liability, as distinct from a claim based on the underlying tort, puts on the plaintiff the burden of establishing one of the exceptions to the general rule of successor non-liability in Wisconsin.  In other words, the elements of a successor liability claim are distinct from the familiar elements of duty, breach, causation, and damage that a plaintiff must plead to state a negligence claim.  Because Plaintiff pled the latter and not the former, the supreme court determined that her claims were properly dismissed.

Two justices dissented. They would have held that courts may consult the WUFTA when determining whether the fraudulent transaction exception applies. But they also took issue with the majority’s sua sponte dismissal of Plaintiff’s claims against FBE2 and Powers, expressing due process concerns.

If you have questions regarding the Wisconsin Supreme Court’s decision or any other general liability issues, please contact Lance D. Meyer or one of our Firm’s other liability attorneys at (952.831.6544).

Wisconsin Supreme Court Holds Negligent Supervision is Not an “Occurrence”

May 23rd, 2018

In a 4-3 decision, the Wisconsin Supreme Court recently held in Talley v. Mustafa, No. 2015AP2356, 2018 WI 47 (May 11, 2018) that an employer’s business-owners liability policy does not cover a negligent supervision claim arising out of an employee’s intentional act of physically punching a customer in the face.  The court reasoned, “When the negligent supervision claim pled rests solely on an employee’s intentional and unlawful act without any separate basis for a negligence claim against the employer, no coverage exists.”

The case stems from an altercation at a liquor store.  A customer claimed that he was punched in the face by a security guard while he was in the store.  The customer filed suit against the security guard, the store owner, and the store owner’s liability insurer, Auto-Owners.  The customer alleged the store owner was negligent in training and supervising the security guard.

Auto-Owners defended the store owner under a reservation of rights and sought a declaratory judgment as to insurance coverage.  The circuit court held that no coverage existed for the customer’s negligent supervision claim.  The store owner appealed, and the court of appeals reversed in a split decision.  The court of appeals held that a reasonable insured would expect coverage for the negligent supervision claim.  The supreme court granted further review and reversed, reinstating the circuit court’s decision in favor of Auto-Owners.

The supreme court began its analysis by reiterating that under Wisconsin law “it is the act that caused the harm that is important in determining whether the insurance policy provides coverage.  If the act that caused the harm was not an accident, then there was no occurrence to trigger coverage.”   The court then went on to state that when “analyzing whether a claim of negligent supervision is covered under an insurance policy, courts must compare the specific facts alleged against the employer with the language of the insurance policy to ascertain whether the incident or injury that gave rise to the claim satisfies the definition of occurrence.”  Since no specific separate acts by the store owner were alleged to have cause the customer’s injuries, the court held that the customer’s allegations against the store owner did not trigger coverage under the store owner’s liability policy.

The supreme court summed up its decision as follows:

We reverse the decision of the court of appeals and hold that there is no coverage under the Auto-Owners insurance policy.  This policy applies only to bodily injury caused by an “occurrence,” which is defined as an accident.  Intentionally punching someone in the face two times is not an accident under any definition.  Accordingly, the negligent supervision claim against [the store owner] can qualify as an occurrence only if facts exist showing that [the store owner’s] own conduct accidentally caused [the customer’s] injuries.  Because there are no facts in [the customer’s] complaint (or in any extrinsic evidence) alleging any specific separate acts by [the store owner] that caused [the customer’s] injuries, there is no occurrence triggering coverage for the negligent supervision claim.  The only specific assertion [the customer] made in this regard is that [the store owner] should have trained [the security guard] not to hit people.  We hold that when a negligent supervision claim is based entirely on an allegation that an employer should have trained an employee not to intentionally punch a customer in the face, no coverage exists.

The supreme court did recognize that coverage may exist for a negligent supervision claim if a plaintiff alleges facts independent from the intentional act giving rise to the injury.  As an example of a case in which such a claim may trigger insurance coverage, the court cited Vandenberg v. Cont’l Ins. Co., 2001 WI 85, 244 Wis. 2d 802, 628 N.W.2d 876, a case in which the court held that coverage existed for a daycare provider’s negligent supervision of her child, who placed pillows on top of a sleeping infant that caused infant to suffocate.  The court also cited QBE Ins. Corp. v. M & S Landis Corp., 915 A.2d 1222 (Pa. Super. 2007), a case in which the court held that an insurer had a duty to defend a nightclub against a claim that the night club negligently trained its bouncer employees on how to safely evict unruly patrons and render first aid.  Admittedly, the facts of these cases, and particularly the QBE Ins. case, are not as easily distinguishable from the facts of Talley as the supreme court’s holding seems to suggest.

As a collateral issue, the store owner apparently agreed with Auto-Owners’ coverage assessment, and Auto-Owners’ argued that neither the customer nor the court should be able to contest that agreement.  The supreme court rejected Auto-Owners’ position and declined to adopt a bright line rule that when the insured and insurer agree that an insurance policy does not provide coverage, their agreement controls the coverage determination.

Three Justices dissented and would have held that Auto-Owners’ policy provided coverage for the customer’s negligent supervision claim against the store owner.  In two dissents, the three Justices in the minority challenge the majority’s opinion in two respects.  First, they contend that the majority improperly analyzed the case from the standpoint of the security guard rather than the store owner, the insured.  In other words, the court should have instead focused on the store owner’s alleged negligent failure to properly supervise and train its security guard.

Second, they contend that the majority impermissibly relied on the perceived weakness of the customer’s negligent supervision claim to determine that the store owner’s insurance policy did not provide coverage for that claim.  They contend that the court should have instead focused on whether coverage was required by the language of the policy, assuming the customer’s claims were successful.

While notable, the significance of the Talley may be limited by its facts.  The majority clearly took issue with the customer’s attempt to creatively plead a covered claim against the store owner and based its decision principally on deficiencies in the customer’s complaint.  As a result, the case might have come out differently had the customer alleged specific facts separate from the assault and battery in support of its claim against the store owner.

If you have questions regarding the Wisconsin Supreme Court’s decision or any other insurance-coverage issues, please contact Dale O. ThornsjoLance D. Meyer, or one of the other members of our Firm’s Insurance Coverage Practice Group at (952.831.6544).

The Minnesota Supreme Court Interprets Minnesota’s Statutory Dram Shop Notice Requirement

April 6th, 2018

In Buskey v. Am. Legion Post # 270, ___ N.W.2d ___ (Minn. April 4, 2018), a divided Minnesota Supreme Court reversed the trial court’s and court of appeals’ interpretation of the Minnesota Civil Damages Act “dram shop” statutory notice requirement and held:

(1) the statutory notice requirement only requires the liquor licensee to possesses knowledge of “sufficient facts” to put it on actual notice of a potential dram shop claim; and

(2) the notice requirement is satisfied if a dram shop claimant provides notice to a liquor licensee’s agent or if the licensee’s agent possesses the aforementioned actual notice of a potential claim.

Read the full summary here.

Our Retail and Hospitality Group is happy to answer any questions you may have about Buskey or any other Liquor Liability-related issues.

Schools and Public Safety: Minnesota Doesn’t Have to Stoop to Arming Teachers

March 2nd, 2018

Following the school shooting tragedy in Parkland, Fla., President Donald Trump said that teachers who have “natural talent like hitting a baseball or hitting a golf ball” should be armed in schools. Rather than rushing to such extremes, there must be a meaningful dialogue about school safety. Fortunately, Minnesota schools have listened, incorporating significant federal guidance as part of their approach to emergency management.

Within an 18-month period from September 2003 to March 2005, Minnesota suffered two school shootings, with 12 dead. Minnesota school districts; federal, state and local law enforcement agencies; and the Minnesota and U.S. Departments of Education worked together to prevent further violence in our schools.

Emergency concepts used by fire and police agencies became part of emergency planning for schools. In addition, standards issued by the National Fire Protection Association, OSHA and FEMA guide how schools now approach emergency management. These important principles do not include arming teachers.

Following the Minnesota school shootings, I served on a legislative school safety task force. We recommended creating a Minnesota School Safety Center as a centralized resource for planning. Over the years, this center provided best-practice recommendations for crisis teams, lockdown protocols, security technology, suspected threats and programs to improve school culture as a violence deterrent.

The task force also recommended using the federal “all hazards” approach to prepare schools for any emergency, whether a natural disaster, pandemic flu or an act of violence. We suggested that student safety teams evaluate student behavior to prevent violence. Many schools now partner with local law enforcement agencies, health professionals, students and families to share information.

The task force also recommended that schools be given additional school safety levy authority. Remarkably, years later, Minnesota school districts still can’t use that authority to improve the security of their buildings. The Legislature should act to correct this and provide sufficient funding for school security infrastructure costs.

After Sandy Hook, the security of school buildings became a focus within school communities. School leaders sought the guidance of architects and security experts to assess building designs for protection against intruders. Design professionals now use a federally recommended process termed Crime Prevention Through Environmental Design (CPTED).

Rather than concentrating on single-source security measures, such as cameras or arming teachers, CPTED focuses on changes to the physical and social environment to reinforce positive behavior. Design teams evaluate the relocation of offices, improved sight lines, bulletproof glass, integrated cameras and lighting, vestibule protection, and reconfigured traffic patterns. Schools also quickly remove graffiti and repair vandalism to promote a culture of responsibility.

The presence of law enforcement officers has become an important part of school emergency plans. However, many school districts cannot afford to pay for a school resource officer or security presence despite an identified need. In such situations, our federal and state governments should support funding for trained police officers, either serving as school resource officers or through local law enforcement agencies under a joint powers or mutual aid arrangement.

After the Minnesota tragedies, the U.S. Department of Education, in coordination with the Secret Service, worked with the U.S. Attorney’s Office and the Minnesota Department of Public Safety on a well-received publication for school administrators and law enforcement officials. It focused on identifying threats and responding to potential violence within schools, based on national studies of school shootings and the behavior of students who carried them out, and why other students with information about an attack did not tell authorities.

Importantly, the message was not to arm teachers, but to help build a positive school climate to establish trust and respect among students and staff and to encourage sharing information about threatening behavior before an incident occurs.

Working together, our schools and community partners have focused their emergency planning using time-tested national guidance. The clear message from our shared experience is that arming teachers has no place in any emergency management plan.

This article was written by O’Meara leer Wagner & Kohl shareholder Shamus O’Meara. It was originally published in the Opinion section ( page 7A) of the Star Tribune Friday, March 2nd, 2018.