Dram Shop Actions: When a Bar Goes too Far

Nurses facing abuse or other misconduct charges over inappropriate patient restraint need skilled defense representation.

The news has recently had almost daily stories about the social media app, Tik Tok, and Congress’ threat to make using it illegal unless its ownership is transferred from its present Chinese owners. The argument for requiring the removal of Chinses owners is that they require access to personal and confidential information and that poses a national security risk. I have seen tech experts who question whether transferring ownership will actually eliminate that threat. They suggest that if the computer code for the Tik Top app already contains a “backdoor” enabling the secret access to information, changing ownership will not correct the problem. This blog is not intended to discuss those issues. Instead, we will address the claims by many that preventing people from using Tik Tok is a First Amendment free speech violation. I suggest that it is not. This is a tidbit to keep for your next Trivia Night. The First Amendment was originally only intended to prohibit the federal government from interfering with free speech. It was not until 1925, in Gitlow v. New York, that the United States Supreme Court held that the First Amendment prohibited all levels of government (states and local governments) from interfering with free speech. A government can limit speech if doing so is content neutral. As the United States Supreme Court has explained, “A regulation of speech is facially content based under the First Amendment if it ‘target[s] speech based on its communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’” City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61 (2022). Thus, where a transit system prohibited all advertisements on its premises, the Court held that the limit was constitutional because it applied to all subjects and opinions. In contrast, a limitation on a single message is not permitted. In Ctr. for Investigative Reporting v. SEPTA, 975 F.3d 300, 303 (3d Cir. 2020), a Court of Appeals ruled against a public transit agency’s refusal to accept advertisements that were political or discussed matters of public debate. The regulation was not content neutral. The prohibition against Tik Tok would likely be found constitutional because the prohibition is not based on a specific subject or viewpoint. There is one other issue that must be raised --- it is highly unlikely that a government could prohibit all means of public forums for speech. Even if content neutral, it is unlikely that a government could prohibit all social media any more than it could prohibit all newspapers. However, in the case of Tik Tok, prohibiting it from operating in the United States does not effectively prohibit all means of public forums as several other social media platforms still exist. Thus, the often-voiced opinion that eliminating Tik Tok denies its users their First Amendment rights is inaccurate.

While dogs are often referred to as “man’s best friend,” dogs can also be dangerous, and even the friendliest of dogs may bite when provoked. This this blog post we will discuss some general legal theory about animal bites, including dog bites, and outline what you should do if you were bit by another person’s dog or other animal. Can I Sue for a Dog Bite? Before I answer this question, it is important to understand the legal theory that undergirds animal bite cases. The law classically categorized animals into two categories: domitae naturae – meaning, those animals that are classically domesticated or tamed – and ferae naturae – meaning, those animals that are classically feral, wild, or exotic. This distinction is significant legally because, generally speaking, those who possess a ferae naturae animal – for example, a tiger – do so at their own peril. This is because if ferae naturae animal bites another person, the owner of the animal is generally presumed to be at-fault. While the owner of a domitae naturae animal can also be held liable for the actions of that animal, generally, a bite by such an animal – for example, a cat or a dog – may not necessarily give rise to a presumption of fault. At least, that was the classical framework. This has been changed by individual laws in many states. Most states have adopted a strict-liability standard in connection with dog bites. This means that a biting dog’s owner will be held liable for injuries caused by the dog, even if the owner used reasonable care to restrain the dog or to protect or warn the other party. Often, this strict-liability view can be viewed as harsh, if one adheres to the “accidents happen” mentality. In recognition of the potentially harsh outcomes strict-liability may bring about, a handful of other states have adopted a “One-Bite Rule”. In essence, a One-Bite Rule is a law that provides that a dog owner may only be held liable if they knew or should have known that the dog has a vicious propensity or is prone to bite, and that owner would only have such knowledge if the dog has bitten someone in the past. In other words, the One-Bite Rule is called this because the owner of a dog with a propensity to bite essentially gets their first bite free because the owner will likely not be found liable for the first bite. This is consistent with the notion of the “foreseeability of the harm” that undergirds much of tort law – in other words, how could the owner foresee that his or her dog would bite if it has never done so before? Conversely, the owner should know, and should therefore be held liable, if the dog has bitten someone before. So, to answer the question of whether you can sue if you have been bitten by a dog, the answer, generally is yes, but the merits of you claim will depend largely on whether you live in a strict-liability state or a One-Bite Rule state. What Do I Do If I Have Been Bitten? While you may, of course, be panicked immediately following a dog bite, it is important to do the following: · Call 911 to report the incident. Make sure a police report is filed, and get a copy of it. · Get the dog owner’s name and contact information, if possible. · Try to get a picture of the dog and the owner, if possible. · Take pictures of the bite wounds while they are still fresh. · Go seek medical treatment, if necessary, and try to leave the appointment with a copy of your medical record in connection with the visit. · Contact a knowledgeable personal injury lawyer as soon as possible. If you or a loved one have been injured by a public actor or public entity, call the Lento Law Group today. Our team of knowledgeable and compassionate attorneys and support staff can help guide you while you work to pick up the pieces after a traumatic accident. Call Lento Law Group today at (856) 652-2000. We will fight to get you the recovery you deserve.

By Joseph Cannizzo Jr. July 2023

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Professional discipline in one state can affect a professional license in another state. Don’t run. Get help up front.