Tuesday, July 22, 2014

California Death Penalty: Cruel and Unusual

While we've all been glued to the television watching the news about Palestine and Israel, a federal judge in the central district of California ruled that California's death penalty is unconstitutional.

Judge Cormac J. Carney has ruled that the death penalty violates the Eighth Amendment. California has sentenced more than 900 people to the death penalty since 1978. Out of those 900, only 13 people have been executed. Almost 100 have died from other causes such as old age, illness, and suicide.

The court noted that these cases can take more than 25 years thanks to delays in the appellate process that stop the execution from occurring. The appellate delays aren't just on the part of the prisoners. Those delays are often caused by the state. A report by the California Commission on Fair Administration of Justice stated that the death penalty system was "plagued with excessive delay." None of the recommended solutions have been implemented by the system. Other delays occur due to a shortage of qualified counsel and a backup of cases. All state cases must exhaust state remedies before moving on to a federal appeal.

Judge Carney ruled that California's death penalty is a violation of Furman (which struck down death penalty sentencing that "created a substantial risk that it would be inflicted in an arbitrary and capricious manner." He also found that it no longer serves the purpose of capital punishment. 

Do you believe in the death penalty? Share your thoughts with us below. How do you see this ruling affecting the nation in the light of all of the "botched" executions that have also taken place within the last year?

Monday, July 21, 2014

ICYMI - Monday, July 21, 2014: Week in Review

If you missed today's Week in Review podcast, you can go here to listen to it for free. It's also available on iTunes.

Things you should know about:


  • Noriega is suing Activision alleging lost profits. The ousted dictator of Panama believes that a character in a Call of Duty game is him. To find out more on this story, click here.
  • Debra Harrell's attorney spoke out to defend the actions of his client. He stated that his client is not guilty of a crime. We happen to agree with him. Ms. Harrell's daughter is still in state custody. 
  • A nine year old girl called the police on her drug dealing parents. Her reasoning? They were blowing marijuana smoke into the face of their dog. They had more than pot in the home, by the way. They also had a stash of meth. While Debra Harrell had her daughter removed from her custody, this little girl still gets to live with her meth dealing parents. 
  • DEA is sued by an addict. The addict alleges that he was paid in crack. The kicker to this story is that he said that before his involvement with the DEA that he was clean. To find out more on this story, click here
  • Speaking of drugs again, Colorado is selling more pot than expected. Math doesn't lie - legalizing marijuana was good for the state. Click here for more. PS - marijuana is still against federal law. That can affect your employment.
  • Pregnant women are now better protected by the EEOC. Click here to learn more. 
Don't forget to download our free app. It puts you straight into contact with a licensed attorney to get a FREE answer to your legal question.

We are currently preparing for a great episode of Legal Q & A. Submit your legal or business question by clicking here

$25k Florida Shake Down

Recently, Lakeland, Florida officials paid Zoe Brugger $25,000.00. Brugger was pulled over in May 2013 because of a broken headlight. Officer Dustin Fetz made Brugger shake out her bra several times allegedly searching for drugs. The officer's dash cam recorded the encounter, but Fetz left his microphone on mute. Additionally, Fetz searched Brugger's vehicle over her objections and without a search warrant.

Fetz was not reprimanded for his behavior. He served a one day suspension because his microphone was on mute. Brugger will sign a release that promises she will not sue the city in exchange for the money.

If this were you, what would you have done? Would you sue or settle?

Saturday, July 19, 2014

Are Parental Rights Endangered?

Last week, we discussed Debra Harrell and her unfortunate arrest. In case you missed it, she left her nine year old daughter at the park (with a cell phone) and went to work around two miles away at McDonald's. Sadly, this is not an isolated incident.

About two years ago, Tammy Cooper of La Porte, Texas spent 18 hours in jail for allegations of child endangerment. Her two children were playing outside on motorized scooters. A neighbor called stating the children were unsupervised. Cooper states she was watching from a lawn chair. Charges were eventually dropped and she decided to sue.

It should be noted that one of the reasons why Elian Gonzalez was returned to his Cuban father was because of the inherent belief that parents should be allowed to raise their children in the manner in which they see fit. The idea is that it is not the job of the government to decide how parents should raise their children. The government should only be involved in cases where children are neglected or abused.

Participating in age appropriate activities outside is not a crime. If you do not like the way your neighbor chooses to raise their children, that doesn't mean that they are committing a crime. It means that you and your neighbor have conflicting ideals. Disagreeing with political ideology, such as in the Elian Gonzalez case, is also not a crime. The government or police should not always interact as the decision maker.

Do you allow your children to play outside unsupervised? Do you allow them to play outside and keep an eye on them using technology? Comment below.

Wednesday, July 16, 2014

Endangerment or Free Range?

We're sure that you've at least heard a little about the woman who left her child at the park while she worked. Debra Harrell, North Augusta, South Carolina, left her nine year old daughter at the park...while she went to work. Harrell worked at McDonald's about two miles away. The police were called and Harrell was arrested.

Harrell was in a very tough situation that thousands of parents face particularly during the summer when school isn't in session: child care so that the parent can continue to work...to continue to pay for child care. It appears in this instance of "endangerment" that the very people who could afford to make a different decision are the ones complaining that she couldn't afford to make a different decision. This situation brings up more questions than answers about if and when a child should be left alone.

We will be the first to admit that many of us here would not have made her decision. That doesn't make her decision criminal. If the decision to leave an average nine year old child at the park unsupervised is criminal, then parents since the 1950s should have done their time in jail. Children from the 1950s all the way through the 1990s were routinely left to their own devices during the day in the summer without cell phones. Many of us weren't allowed back in the house until dusk unless it was to use the bathroom or get a drink of water.

The park had shade and access to water. The little girl had a cell phone. The little girl knew where her mother worked; stories hold that she was often at that McDonald's right down the road. There's a parenting movement known as free range parenting. They allow their children to go to more places alone than just spend a few hours at the park.

What about teenagers? Often they have very little forethought of consequences. Should they always be supervised at the park?

Do you believe Harrell should be treated like a criminal? Do you believe she made a poor choice? What would you have done in a similar situation? Comment below and join the conversation!

Tuesday, July 15, 2014

Supreme Court Ruled in Favor of Hobby Lobby; Fallout Follows



Just when you thought the ‘worst’ of the ‘Obamacare’ problems were over, something new seems to pop up; the dust never really seems to fully settle on this hot topic. Birth control, which is a hot topic in itself, was specifically included in the Affordable Health care Act and was supposed to be covered 100% by health insurance companies. Not surprisingly, not everybody agreed with providing birth control to women.

Hobby Lobby was perhaps the loudest spoken in regards to how they felt about being forced to provide birth control to women. Hobby Lobby owners felt so strongly about the issue that they decided to take it to the Supreme Court, the lawsuit is formally referred to as Burwell v. Hobby Lobby. In the lawsuit, Hobby Lobby states the business is managed on Christian principles, so for them to be forced to purchase health insurance that supplies birth control to their female employees their religious freedoms are being violated. And, on July 7, 2014, the Supreme Court with a 5-4 ruling, determined that any corporations that are being run by religious families couldn’t be forced to pay for insurance that includes contraception for their female employees.

Justice Samuel A. Alito Jr., who wrote the majority decision, stated that the ruling had a limited scope. If you were to read the decision, you would see that it only applies to “closely-held’ for profit corporations that run their businesses on religious principles. He firmly believes that forcing these types of corporations to pay for contraception coverage puts a huge burden on their religious freedoms. And, we all know that under the Affordable Healthcare Act companies who fail to provide adequate coverage will be fined; Hobby Lobby was looking at around $475 million each year for not providing contraception coverage. While Justice Alito accepted that the government had a reason for providing women with birth control he felt there were better ways to provide that coverage than having a company have to violate its religious principles. One such way according to him was to have the government pay for it.

Now as you might have noticed the ruling was a close one, but the dissent led by Justice Ruth Bader Ginsburg brought out a few arguments that most of us have probably not even considered. One such thing she brought up was how this ruling “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.” She even mentioned how important contraception coverage was to a woman’s health, as well as to her reproduction freedom. Even the White House Press Secretary, Josh Earnest, said, “women should make personal health care decisions for themselves, rather than their bosses deciding for them.”

The Affordable Health Care Act requires employers to provide their female employees with insurance coverage that will cover several methods of birth control. What is interesting to note is that Hobby Lobby did not object to covering all methods of birth control, they simply objected to covering morning-after pills and IUDs. Their reasoning is these methods are just like abortions.

So, while Hobby Lobby doesn’t object to all forms of birth control what is to stop other companies to objecting to the other forms? And, honestly what is going to stop other closely held corporations from filing similar lawsuits, but ones that affect far more SERIOUS health conditions. For example, if an active Jew ran a closely held corporation, what is to stop them from saying any medications that are derived from pigs (gelatin coated pills, IV fluids, and anesthesia) will not be covered.

Sunday, July 13, 2014

Amusement Park Liability?

Yesterday we discussed the tragic mishap that caused a tourist from Britain to lose parts of two fingers while not obeying the ride rules at Disney World. If you missed it, you can find the blog post here. No one visits an amusement park with the intention of being injured. We attend amusement parks to spend time with our friends and family...and to have a lot of fun!

Are amusement parks ever liable for injuries that occur on their rides or on their property? The short answer is yes. Of course, not every thing that happens will result in a successful claim in a court of law. Each individual potential claim should be discussed with a licensed and knowledgeable attorney in your state. Every state has different laws in reference to negligence, tort law, and even statute of limitations (the time limit you have to file a claim). Some states even cap the amount of money that can be recovered in damages. That is why it is so very important to speak with an attorney in your area that specializes in personal injury.

Here are the two most common causes of action that result from amusement park accidents:


  • Negligence - There are particular elements that must be met in order to have a successful claim of negligence. In some states, the jury (or the judge) can look at how much responsibility they believe the Plaintiff had in the actions that caused an injury. Examples of negligent acts in an amusement park may include failing to properly maintain a ride or not keeping a walking area as safe as they reasonably can keep it. 
  • Product liability - There are several different areas that can make up a product liability case. The main example when discussing amusement park liability is if the design of a ride is dangerous. That is known as a design defect. 
Monday, July 14, 2014 at 10:00 AM EST we will be discussing the Disney World ride injury and other recent business law developments. Make sure that you join us. You can also subscribe through iTunes by using the button on the right side of this page. Call in and give us your opinion and ask questions. 



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If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com We answer legal questions on a daily basis and would be happy to discuss any issues or questions that you have with you.  Offices in: New Jersey New York, Colorado & Puerto Rico.  Affiliated throughout the country.

© 2014, Law Offices of Peter J. Lamont. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Saturday, July 12, 2014

Disney Disaster: Law Suit Possibility?

A British tourist lost parts of his ring and pinky fingers on his right hand while visiting Disney World in Orlando, Florida. The British tourist's mishap occurred on the Pirates of the Caribbean water ride. WDW Theme Parks (not affiliated with Disney World) holds itself out on Twitter as a source for Disney World News. It was recently tweeted that "evidently the hand was outside the boat on the drop."

It's truly a disheartening situation for the man, Disney World staff, and other park visitors.

What if a child witnessed this incident? What if you had spent even just a year following the Saving for Disney plan to take your child on a dream vacation? Do you think that a lawsuit against this man (who did not follow the rules of the ride) would be successful? After all, your child is now traumatized and the vacation is ruined. Disney is no longer the happiest place on earth.

If a child were to witness this sort of catastrophic event, it would definitely magnify this entire tragedy. After all, we are talking about an adult who knew or should have known that his hands should not leave the boat while the ride was in motion. Is there enough to sue for negligent infliction of emotional distress?

To sue someone for negligence, four elements must be met to show that what did or didn't happen was indeed negligent behavior. First, let's look at the elements and then we will compare them to the above story.


  1. Duty of care;
  2. Breach of duty;
  3. Causation; and
  4. Actual damages.
A duty of care means that you owed an actual duty to the people around. For instance, our staff owes a duty to our clients. Doctors have a duty to their patients. Parents have specific duties toward their minor children. So, first we must determine whether or not the tourist who was injured had a duty of care. The answer to this question is that there was probably not a duty of care (other than maybe to himself). These were total strangers to him. Yes, duty of care will arise toward total strangers when you operate a motor vehicle. However, there's generally not a duty of care for strangers when you are visiting an amusement park. Sure there are exceptions to the rule, but in this case there was most likely not a duty of care. He was a visitor just like our fictional family.

Breach of duty is a simple element. There must be a duty for it to be breached. If there is no duty of care, then that duty cannot be breached. 

For a negligence claim to succeed, the allegation must be the proximate cause of the harm. If a child witnessed this, then it would be safe to say yes. The accident would have been the proximate cause of the child's emotional distress. 

The final element is actual damages. The breach of said duty must cause actual damage in some capacity such as an injury or monetary damage. If our fictional family really couldn't finish their vacation because the child felt terrified then an actual damage may have occurred.

The elements of negligence would not be met in order for the man to be sued by someone who witnessed the event. 

Negligence can be a very interesting legal avenue. Do you think an action of negligence could be supported in a court of law? Why or why not? Join in the discussion. We'd love to hear from you. 

Don't forget to tune in at 10:00 am EST on Monday and Thursday mornings for free legal and business advice in addition to hearing the best legal news coverage. 



Thursday, July 10, 2014

The Snooze Seen Round The World

Everybody has dreamed at one point or another of getting their 15 minutes of fame. Nevertheless, for New York Yankee’s fan Andrew Rector it has been more like a nightmare. Back in April Mr. Rector was caught snoozing in his seat during a Yankee versus Red Sox game. Moreover, everybody, including Mr. Rector, has been cashing in on it.

Announcers during the game were poking fun at Mr. Rector, as well as the man sitting next to him. After the game, his image went viral and you can now find several memes created in Mr. Rector’s honor. While some might be funny, most are being used to poke fun at fans of opposing teams, but it is all in good fun. Mr. Rector on the other hand doesn’t seem to find any of this entertaining.

It was reported on Monday, July 7, 2014, in the New York Daily News that Andrew Rector was filing a lawsuit for defamation of his character, he is also claiming emotional suffering. In his lawsuit, he names announcers John Kruk and Dan Shulman, ESPN, Major League Baseball, and the Yankees, as defendants and is asking for up to $10 million in damages. Mr. Rector claims in his lawsuit that the announcers used degrading terms, including “a fatty cow, stupor, unintelligent, and stupid.”

The lawsuit also claims, “These unmitigated verbal onslaughts crossed the line between reporting on sport and abuse against the plaintiff without reasonable cause or restraint.” A video of the announcers making fun of Mr. Rector and the gentleman sitting next to him was posted on YouTube and it does not include any of the putdowns Mr. Rector claims the announcers used.

Sure being picked on isn’t fun. Nobody wants their 15 minutes of fame to be of them sleeping at a professional baseball game, but when did that turn into a reason to file a lawsuit?

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If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com We answer legal questions on a daily basis and would be happy to discuss any issues or questions that you have with you.  Offices in: New Jersey New York, Colorado & Puerto Rico.  Affiliated throughout the country.

© 2014, Law Offices of Peter J. Lamont. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

NJ Business Attorney Peter Lamont Explains the Basics of an S Corp

An S Corp, short for an S Corporation, is one of the many different business structures you can choose from when starting your own business. To put it simply an S Corp is a ‘special’ corporation that can only be formed through a tax election from the IRS. What sets an S corporation apart from a ‘regular’ corporation is the Subchapters it is given by the IRS.

Registering your business structure as an S Corporation is not as straight forward as forming a corporation or even a Limited Liability Company. To become an S Corporation your business must first be formed as a corporation in the state where headquarters are located. If your business’s headquarters are in CA, then you must form a corporation in CA. Businesses must also meet a series of ‘tests’ from the IRS before they can become an S Corp. For example, the IRS states the business cannot have more than 100 shareholders, the shareholders can only be individual, estates, exempt organizations, and certain trusts, which further details of what trusts and organization qualify, can be found in the IRS Code.

To further understand what an S Corporation is you have to understand how it is different from other structures. What makes the S Corporation stand out from a corporation is how the profits are taxed. With a corporation both the shareholders and the corporation are taxed, the corporation must pay taxes on its profits and the shareholders must pay taxes on any dividends they receive. With an S Corporation, this ‘double taxation’ is avoided as the profits or losses are passed through to the shareholders personal income tax returns. In this case, the business itself is not taxed on its profits; just the shareholders are taxed on any profit or loss they made through the business.

An S Corporation also stands out from other business structures in terms of liability. With a corporation, the shareholders are not financially responsible for any actions brought against the corporation. Even though the IRS states that an S Corporation is “considered by law to be a unique entity, separate and apart from those who own it,” this is not always the case. Yes your financial liability is limited when you structure your business as an S Corporation, but you can still be held financially responsible for certain things. For example, an employee brings a lawsuit against the business based on a workplace incident and wins a lump sum, as a shareholder you will be held responsible for paying a portion of that lump sum. However, you as a shareholder will not be financially responsible for the debts of the corporation.

The IRS taxes all S Corporations the same, but not all states use the federal guidelines. While most states follow the IRS guidelines, some will tax profits above a certain amount, such as Massachusetts. Other states simply do not recognize S Corporations and simply treat the business as a ‘regular’ corporation. For example, New York taxes the corporation’s profits, as well as the shareholders share of the profits.
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If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com We answer legal questions on a daily basis and would be happy to discuss any issues or questions that you have with you.  Offices in: New Jersey New York, Colorado & Puerto Rico.  Affiliated throughout the country.

© 2014, Law Offices of Peter J. Lamont. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.
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