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December 20, 2006
IN THE MATTER OF THE DENIAL OF A FIREARM BY FBIMICHAEL CASEY CARNOHAN , PLAINTIFF,v.UNITED STATES AND THE STATE OF CALIFORNIA, AND DOES 1-100, DEFENDANTS.
Appeal Unit and the California State Firearms Denial Review Unit: ORDER: (1) GRANTING DEFENDANT STATE OF CALIFORNIA'S MOTION TO DISMISS; (2) GRANTING DEFENDANT UNITED STATES' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT; and The (3) REJECTING PLAINTIFF'S PURPORTED MOTION IN LIMINE [Dkt Nos. 10, 12, 31]
This matter is before the court on defendant State of California's ("State") Motion To Dismiss and defendant the United States' Motion To Dismiss And For Summary Judgment of plaintiff Michael Casey Carnohan's ("Carnohan") Complaint, captioned "A Civil Action For Loss Of Property." Carnohan, proceeding pro se, alleges federal and state agencies have wrongfully prevented him from owning a firearm. Carnohan filed an Opposition to each Motion. Each defendant filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues appropriate for decision on the papers and without oral argument. For the reasons discussed below, the State's Motion is GRANTED and the United States' Motion is GRANTED.
As recited in the Complaint and documented in Exhibits to the Complaint, Carnohan purchased a firearm from a sporting goods store on January 13, 2004. He failed the required background check, so was not permitted to take possession. The gun dealer received a letter from the state Department of Justice, Firearms Division, instructing the gun not be released to Carnohan because records indicate he is a person not eligible to possess a firearm. Compl. Exh. A. Carnohan disputed the state agency's conclusion his commitment to a mental health facility in 1999, pursuant to CAL. WELF. & INST. CODE § 5250 ("Section 5250"), warranted a firearm ownership restriction under the Gun Control Act, 18 U.S.C. § 922(g)(4). He unsuccessfully appealed that decision to the Federal Bureau of Investigation's ("FBI") National Instant Criminal Background Check System ("NICS") division in September 2004. Compl. Exh. B.
Carnohan filed a federal lawsuit in March 2005 attempting to overturn the FBI's finding that denied him firearm ownership. He named as defendants the United States, the FBI Appeal Unit, the California Firearms Denial Unit, and the State of California, seeking relief from the ban and compensatory damages. The court approved his voluntarily dismissal of that action without prejudice after the federal defendants moved to dismiss and for summary judgment in June 2005. Compl. pp. 8-9. In May 2005, Carnohan filed both a federal claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), and a state claim with the Government Claims Branch. Compl. Exhs. F, C. He relied on the constitutional right to bear arms, among other things. He included a claim for $582.00 in compensatory damages "computed per receipt of weapon purchased." Compl. Exh. C, pp. 15-17. The State Control Board notified him by letter dated July 26, 2005 that it lacked jurisdiction to consider his claim because the entity that allegedly caused his damages was the FBI through its background checks system. In addition, the claim was rejected as untimely. Compl. Exh. D.
In a letter dated January 9, 2006, the FBI denied Carnohan's FTCA claim as not compensable, on two grounds. Compl. Exh. G. "First, the FTCA does not provide relief for claims alleging a violation of Constitutional rights. 28 U.S.C. § 1346(b)." Id. p. 53. Second, while the FTCA is the exclusive remedy for torts committed by a federal employee acting within the scope of employment, Carnohan presented "no evidence of negligence or a wrongful act or omission on the part of any employee of the FBI that would support" a FTCA claim, nor any evidence of an intentional tort. Id.
Carnohan refiled his federal lawsuit on January 23, 2006. He contends his confinement in a mental health facility pursuant to a CAL. WELF. & INST. CODE § 5250 ("Section 5250") 14-day hold in October 1999, the basis for the denial of authorization for him to possess a gun, was involuntary for only a couple of days. He also argues the commitment order from Dr. Stephen Cole. M.D. with the San Diego County Health And Human Services Agency was inappropriate and in error. For those reasons, he argues he should not be precluded from gun ownership, no 14-day hold under Section 5250 should have the consequence of a lifetime prohibition against owning a firearm, and 18 U.S.C. § 922 (the Gun Control Act) does not support the agencies' denial. He seeks injunctive relief to permit him to possess the gun he purchased and compensatory damages of $12,000 against the State and $12,000 against the United States for a two-year loss of use of "his property." Compl. p. 18.
Carnohan alleges two causes of action: a First Cause of Action based on a purported "misapplication" of 18 U.S.C. § 922(g)(4) ("(g) It shall be unlawful for any person--. . .(4) who has been . . . committed to a mental institution" to receive or possess firearms), and a Second Cause of Action alleging the government violated of 28 U.S.C. § 1346(b) (according exclusive jurisdiction to the district courts of civil actions on claims against the United States for money damages actions as the Federal Tort Claims Act ("FTCA")). He summarizes his Complaint contentions: possession of a firearm he purchased "has been unlawfully withheld from him as a consequence of the denial of a Handgun Certificate by the State of California Firearms Denial Review Unit ('Firearms Unit') and the FBI Appeals Unit ('FBI')" due to their alleged "misinterpretation" of 18 U.S.C. § 922 as applying to a "[California Welfare and Institutions Code §] 5250 14 day hold entered in error by Dr. Cole in the Plaintiff's records for County Mental Health in San Diego California, in October 1999." Compl. p. 8. He identifies the "wrongful act" of the government under 28 U.S.C. § 1346(b) as having "interpreted and applied interstate commerce law 18 U.S.C. 922(e)(4) improperly to Plaintiff as a 'lifetime restriction' against owning a firearm." Compl. p. 17.
The State government defendant moves to dismiss on the ground its sovereign immunity precludes Carnohan's suit. The federal government defendant moves to dismiss and for summary judgment on grounds Carnohan fails to state a claim on which relief can be granted under the FTCA, and the administrative record demonstrates their entitlement to summary judgment as a matter of law because Carnohan's commitment under Section 5250 on a Section 5150 hold is an involuntary commitment disqualifying him from possessing a firearm under 18 U.S.C. § 922(g)(4) without durational limitation.
A. Legal Standards
1. Motions To Dismiss
A motion to dismiss under FED.R.CIV.P. ("Rule") 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.
In reviewing a Rule 12(b)(6) motion to dismiss, the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party, including all reasonable inferences to be drawn from the facts alleged. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In deciding the motion, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994) overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Leave to amend is ordinarily denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655, 658 (9th Cir. 1992).
2. Motions For Summary Judgment
Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party shows there is an absence of evidence to support the non-moving party's claims, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256(1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982). In summary adjudication proceedings, the court does not make credibility determinations or weigh conflicting evidence, as those are determinations for the trier of fact. Anderson, 477 U.S. at 249. Rather, the Court considers the evidence in the light most favorable to the non-moving party. Id. at 255.
To satisfy the shifted burden, the nonmoving party must establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To successfully rebut a properly supported motion, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff[]'s favor, could convince a reasonable jury to find for the plaintiff[]." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing Rule 56, Celotex, 477 U.S. at 323, and Anderson, 477 U.S. at 249. "If reasonable minds could differ," the motion should be denied. Anderson, 477 U.S. at 250-251. However, summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.
B. State's Motion To Dismiss
The State moves for dismissal on grounds this court lacks jurisdiction to decide the dispute and for failure to state a claim upon which relief can be granted. It argues the Eleventh Amendment to the United States Constitution bars an action for damages against a state in federal court without the state's consent: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by Citizens or Subjects of any Foreign State." It is well settled that protection extends to lawsuits against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000). The Eleventh Amendment prevents federal courts from exercising jurisdiction in cases where judgments would be paid directly out of state treasury funds. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48 (1994); see Riggle v. California, 577 F.2d 579, 585 (9th Cir. 1978) ("A state may waive immunity from suit in its own courts [for instance, by enacting legislation such as the California Tort Claims Act] without thereby waiving its Eleventh Amendment immunity from suit in federal courts").
Carnohan opposes the State's Motion on grounds the Eleventh Amendment is "excepted" under 42 U.S.C. § 1983 and under 28 U.S.C. § 1331. However, Carnohan has not stated a 42 U.S.C. § 1983 cause of action. In addition, as noted by the State, Congress did not abrogate state sovereign immunity in enacting Section 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989) ("Congress in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity;" and "neither a State nor its officials acting in their official capacity are 'persons' under § 1983"); see also Kentucky v. Graham, 473 U.S. 159, 169 n. 17 (1985). Similarly. the jurisdictional provision of 28 U.S. C. § 1331 merely accords federal courts jurisdiction to hear cases arising under federal law, mirroring the language found in Article III, section 2 of the Constitution establishing the scope of federal court jurisdiction. Eleventh Amendment immunity is a limitation on Article III jurisdiction. Pennhurst State School & Hospital, 465 U.S. at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III").
In this lawsuit, Carnohan seeks money damages against the State of California. The State has not consented to federal jurisdiction in these circumstances. The Eleventh Amendment bars his claim. The State's Motion To Dismiss is accordingly GRANTED.
C. United States' Motion To Dismiss And For Summary Judgment
1. Motion To Dismiss
The United States moves for dismissal, contending to the extent the Complaint can be construed as a claim under the FTCA, it fails to state a claim upon which relief can be granted. Carnohan's Second Cause of Action invokes the FTCA to redress the denial of his alleged "loss of use and enjoyment of" his property interest in owning a firearm, for which he seeks compensatory damages in the amount of $12,000.00 from the United States. Compl. ¶ 17. The United States argues he was lawfully and properly denied ownership of a firearm under the Gun Control Act, and his claim is not cognizable under the FTCA. Mot. 12:16-21. Moreover, the government asserts even if the claim were cognizable, FTCA claims for damages must be in a "sum certain" (28 C.F.R. § 14.2(a)), and Carnohan stated the "sum certain" in the administrative proceeding as $582.00, so that any FTCA damages would be limited to that amount. See McNeil v. United States, 508 U.S. 106, 108 n.2 (1993) ("[p]ursuant to 28 U.S.C. § 2675(b), a claimant is barred from seeking in federal court 'any sum in excess of the amount of the claim presented to the federal agency'") (citation omitted).
Carnohan attached and relies on the content of multiple exhibits to his Complaint. Neither side contests the authenticity of those documents. Accordingly, the court may properly consider them in deciding a Motion To Dismiss. Parrino,146 F.3d at 705-06; Branch, 14 F.3d at 453-54. The exhibits substantiate Carnohan appealed to the FBI the state agency's denial of the firearm transfer. On December 27, 2004, the FBI upheld the California DOJ's denial, applying 18 U.S.C. § 922(g)(4), and advised Carnohan of procedures he could use to submit documentation to nullify the FBI's decision or to apply to the California DOJ to correct the record. Carnohan provided additional documentation in support of his appeal, but the FBI again sustained the California DOJ's denial based on the federal firearms disability codified at 18 U.S.C. § 922(g)(4), i.e., a person "who has been committed to a mental institution," explaining to Carnohan that commitment pursuant to Section 5250 is involuntary.
The FBI again referred Carnohan to the California DOJ if he had information to show he was involuntarily committed in error, stating until his records were corrected and received by the FBI directly from the state agency, it could take no further action on his claims.*fn1 Carnohan characterizes the decision to block his ownership of a firearm as a misapplication of the gun control statute.
"The FTCA acts as a waiver of the United States' traditional sovereign immunity for certain torts committed by its employees." Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). Under the FTCA, "[t]he United States shall be liable, . . . relating to tort claims, in the same manner and to the same extend as a private individual under like circumstances." 28 U.S.C. § 2674. However, sovereign immunity prevents suits against the United States without its consent, and the consent must be unequivocally manifested in the plain language of the statute, with the waiver of sovereign immunity extending "unambiguously to such money claims." Lane v. Pena, 518 U.S. 187, 192 (1996), citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The United States summarizes Carnohan's FTCA claim as alleging "the FBI breached a duty of care when it 'improperly applied 18 U.S.C. § 922 to [Carnohan's] circumstance.'" Mot. P&A 13:12-13, quoting Compl. p. 17 ("The 'wrongful act' of the government was that it interpreted and applied interstate commerce law 18 U.S.C. 922[(g)(4)] improperly to [Carnohan] as a 'lifetime restriction' against owning a firearm"). However, "the source of substantive liability under the FTCA" in its reference to "the law of the place" (28 U.S.C. § 1346(b)) has consistently been held to mean "law of the State." FDIC v. Meyer, 510 U.S. 471, 477-78 (1994). "The breach of a duty created by federal law is not, by itself, actionable under the FTCA." Love v. United States, 60 F.3d 642, 644 (9th Cir. 1995). Carnohan needed to base his tort claim on California state tort law. Delta Savings Bank, 265 F.3d at 1025; see Lutz v. United States, 685 F.2d 1178, 1184 (9th Cir. 1982) (source of duty under FTCA must be state law, not military base regulation). Instead, Carnohan bases his tort claim upon alleged misuse or misapplication of a federal statute, defeating his FTCA cause of action.
Contrary to Carnohan's allegations, the record reveals no "misapplication" of the gun control legislation. Carnohan does not dispute in principle "the authority of the United States or the State of California to regulate and control the ownership of handguns by citizens in California." Opp. 2:14-16. He opposes the United States' motions by characterizing his Complaint as presenting the question "whether the language of 18 USC 922(e)(4) can be applied to prevent a citizen from lifetime ownership of a handgun." Opp. 2:6-9. In particular, he articulates the issue to be decided as "whether the language in 18 USC 922(e)(4), namely '. . . [c]ommited to a mental institution' constitutes a dispositive permissive construction" in his circumstances. Id. 2:8-10.
As traced in the federal defendants' Motion, in reliance on Carnohan's exhibits, the NICS applied federal gun control legislation and regulations (i.e., 18 U.S.C.§ 922, 27 C.F.R. § 478.11 (2005)) to the record of Carnohan's Section 5250 certification for confinement to a mental health facility, an event the government contends precludes him from lawfully possessing a firearm. Federal policy and gun control statutes reflect the determination that persons with a history of mental disturbances should not have access to weapons. See United States v. Dorsch, 363 F.3d 784, 787 (8th Cir. 2004) ("One of the purposes of enacting the federal firearms ban was to establish uniformity in determinations of whether a person is within a category of persons prohibited from possessing firearms. Once we determine that a defendant has been committed to a mental institution, state legislative intent is irrelevant").
The ATF regulation associated with implementing 18 U.S.C. § 922(g) criminalizing possession of a firearm by any person who has been committed to a mental institution, defines the term to encompass only involuntary commitments:
A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
27 C.F.R. § 478.11 (2005) (emphasis added).
The California DOJ applied 18 U.S.C. § 922(g) to deny the transfer of the firearm Carnohan because commitments pursuant to CAL. WELF. & INST. CODE§ 5250 are involuntary. That section provides, in pertinent part (emphasis added):
If a person is detained for 72 hours under the provisions of Article I (commencing with Section 5150) or under court order for evaluation pursuant to Article 2 (commencing with Section 5200) or Article 3 (commencing with Section 5225) and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism under the following conditions:
(a) The professional staff of the agency or facility providing evaluation services has analyzed the person's condition and has found the person is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled. . . .
By its terms, detention under Section 5250 is involuntary. See Section 5250(c) ("The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis") (emphasis added). A Section 5250 detention is also, by its own terms, for intensive treatment of a mental illness. See Bragg v. Valdez, 111 Cal.App.4th 421, 426, 429-30 (2003). Carnohan would have the court construe his post-certification "request" for "voluntary" confinement as trumping the record of his involuntary admission under Section 5250 two days earlier and as converting the required and unambiguous prior finding of "danger" to self and others "as a result of mental disorder or impairment" to detention simply for benign assessment or observation. As a matter of law, Carnohan offers no authority to support that theory of his case. The administrative record supports as the only reasonable construction that Carnohan was "committed" to the mental institution on a 14-day hold after Section 5250 certification.
Carnohan must and does concede he was certified for a Section 5250 commitment. He attempts to circumvent the legal import of that fact by suggesting he could unilaterally convert the formal, involuntary commitment into a voluntary commitment outside the sway of 18 U.S.C. § 922 merely by making that request during the course of his involuntary confinement, and without any evidence the request was granted. He describes his circumstances as "having been admitted to a mental hospital under a 5250 14 day hold that was subsequently changed two days later by the Plaintiff to a Request for Voluntary Admission." Opp. 2:10-12 (emphasis added). On that basis, he takes issue with the United States' construction of his 5250 hold as satisfying the "commitment to a mental institution" criterion in 18 U.S.C. § 922(g)(4) justifying a ban on his subsequent ownership of a firearm and urges the court to "disregard" that argument. Id. 2:21-23. However, the record he provides demonstrates not only that the commitment was certified, not voluntary. Moreover, the record reflects he was re-certified for involuntary commitment under Section 5250 "as being a danger to others and gravely disabled" after he made his Request For Voluntary Commitment. See Compl. Exh. J p. 63 (Dr. Stephen Cole, M.D. Letter).
Carnohan also argues the Section 5250 commitment certification was entered through in error or misunderstanding by his certifying physician. His Complaint Exhibit J is a June 24, 2005 letter from the attending physician at the time of the October 1999 commitment, Dr. Cole. Carnohan wants the court to construe the Section 5250 commitment Dr. Cole unequivocally describes in that letter as involuntary into a "voluntary" commitment outside the scope of the gun control prohibition, on grounds two days into the forced confinement he asked to remain y on a voluntary bases, purportedly "nullifying" the agencies' findings in support of denying him authorization to posses a firearm under 18 U.S.C. § 922(g). However, Dr. Cole substantiates he had Carnohan "admitted to the San Diego County Psychiatric Hospital on 9/23/99 with a 5150 hold as being a danger to others and gravely disturbed," and Carnohan was "certified for a 14-day hospitalization" twice "as being a danger to others and gravely disturbed." Compl. Exh. J at page 61. Similarly, Carnohan's argument that a Section 5250 hold is simply "designed to provide observation and treatment of a patient," thus purportedly outside the scope of the "committed to a mental institution" element of 27 C.F.R. § 478.11 firearm possession exclusion, is without merit. Opp. p. 3. By its terms, a Section 5250 commitment is for "intensive treatment" for mental illness.
As summarized by the United States, from the foregoing authority and an undisputed record: "an involuntary admission to a mental institution in compliance with California law constitutes a commitment for purposes of the federal firearms ban, and, thus, Carnohan is precluded from possessing a firearm" as a matter of law. Mot. 9:21-23. The court concurs on this record Carnohan has not stated a claim upon which relief can be granted and is persuaded any leave to amend the Complaint would be futile. The regulations implementing 18 U.S.C. § 922(g) to preclude firearm possession by certain persons set no limitation on the duration of the prohibition.
The government also argues dismissal and summary judgment are proper because Carnohan can name no Doe defendants, in consideration of the immunity provision of the Gun Control Act codified at 18 U.S.C. § 922(t)(6):
Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages --(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or (B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.
Moreover, the defendant Does are defined in the Complaint as individuals acting in their official capacities. See Compl. ¶¶ 6, 7. The Brady Act, 18 U.S.C. § 925A (emphasis added), identifies political entities as the only proper defendants: "Any person . . . may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved." In addition, leave to sue is restricted to obtaining an order to correct erroneous information. Carnohan has not raised any reasonable inference the classification of his commitment as "involuntary" is erroneous.
Finally, the United States debunks Carnohan's suggested inference he has a constitutionally protected property right under the Second Amendment to own the firearm he purchased. The Second Amendment prohibits the Government from infringing the right "to keep and bear arms." Comp. p. 6. However, Carnohan reads the Second Amendment too broadly. See United States v. Miller, 307 U.S. 174, 178 (1939). Even were a constitutional right to possess a firearm is conferred on individuals, Carnohan's FTCA legal theory provides no remedy for constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 478 (1994). The only other avenue to liability suggested by Carnohan's pleading -- interference with a contractual right to own a firearm (see Compl. pp. 18- 20 alleging the Government "delayed rightful ownership of [his] property" that "he purchased") -- is also barred by the FTCA, 28 U.S.C. § 2680(h), expressly foreclosing claims brought under the FTCA "arising out of . . . interference with contractual rights."*fn2 The United States' Motion To Dismiss is accordingly GRANTED.
2. Motion For Summary Judgment
The United States makes an adequate and unrefuted showing of entitlement to summary judgment on the theories and record presented, as Carnohan has identified no triable issue of material fact and the applicable law compels judgment in favor of the United States.*fn3 The United States presents detailed evidence in the form of a competent Declaration regarding the NICS process, and the application of the background check in Carnohan's case, in support of its showing of entitlement to judgment as a matter of law.*fn4 The system regulates the transfer of firearms from Federal Firearms Licensees ("FFL") (i.e., persons licensed by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives as manufacturers, dealers, or importers of firearms) to non-licensed persons and was implemented to comply with the 1993 Brady Handgun Violence Prevention Act. See P&As pp. 2-3; Haslebacher Decl. The United States Attorney General delegated to the FBI the authority to perform that function. Under FBI regulations, these background checks may be conducted either by the FBI or by a state or local law enforcement agency acting as an intermediary between an FFL and the FBI. P&A's 2:16-22; Haslebacher Decl. The California Department of Justice is designated in this state as the contact point for FFLs' requests for background checks before they may transfer any firearm to a non-licensed individual. Mot. 2:22-3:32. The United States' explanation of the statutory scheme, the complying review process that was followed in Carnohan's case, and its appropriate construction of a Section 5250 involuntary commitment to a mental institution, such as Carnohan's in 1999, as an event foreclosing his certification to own a firearm, shifted the burden to Carnohan to create a triable issue of material fact on the issue of the nature (voluntary or involuntary) of his commitment. As discussed above, the only evidence he produces in purported support of that dispositive element is the June 24, 2005 letter from Dr. Cole, on County of San Diego Health And Human Services Agency letterhead and signed by him. Carnohan characterizes the contents of that letter as demonstrating Dr. Cole erred and had recorded the hospital admission as involuntary solely for his own convenience. The actual contents do not support Carnohan's interpretation. The letter provides, in its entirety,:
Dear Mr. Carnohan:
This is in response to your letter dated June 12, 2005. After review of your medical records, the documentation confirms the following:
* You were admitted to the San Diego County Psychiatric Hospital on 9/23/99 with a 5150 hold as being a danger to others and gravely disabled.
* On 9/26/99, you were certified for a 14-day hospitalization. * On 9/28/99 after 2 days of treatment, you signed a Request for Voluntary Admission.
* On 9/29/99, you were again certified as being a danger to others and gravely disabled.
* On 10/7/99, a Temporary Conservator was appointed to you.
I understand your need and interest in developing a hobby, however the documentation during your hospital stay supports my decisions.
Compl. Exh. J, p. 61.
Moreover, Carnohan attempts no explanation how the second certification for involuntary confinement Dr. Cole substantiates, after Carnohan's request that his admission be voluntary and the appointment of a temporary conservator about ten days later supports a "voluntary commitment" inference. He offers no evidence that he was granted a reclassification of his commitment from involuntary to voluntary in response to his request. On the contrary, Dr. Cole's letter reflects that the day after that request, Carnohan was again found to be a danger to others and himself, warranting continuance of the compulsion associated with involuntary commitments.
The government has shown a complete absence of evidence to support Carnohan's claims, making summary judgment appropriate. See Celotex, 477 U.S. at 325. The court finds the three "facts in controversy" Carnohan identifies as purportedly precluding summary judgment are either immaterial, unsupported by any evidence, contrary to the evidence before the court, or are actually conclusions of law.*fn5 None is adequate to meet his shifted burden to avoid summary judgment. Carnohan has provided no Declaration or affidavit in support of his bare allegations and arguments. Dr. Cole's letter does not satisfy his shifted burden to raise a triable issue of fact on the voluntariness of his certified commitment, on the allegation of "error" in the record, or of any inadvertence in Dr. Cole's intent to compel Carnohan's 1999 confinement. The purpose of Section 5250 holds is unequivocally to obtain treatment for severe mental health episodes of persons found to be in serious difficulty under Section 5150, not for simple assessment at the request of the patient. Accordingly, applying the 18 U.S.C. § 922 and implementing regulations, Carnohan was properly denied possession of a firearm as a matter of law, warranting summary judgment in favor of defendant the United States.
D. Carnohan's Purported Motion In Limine
After defendants' motions were fully briefed, Carnohan presented a purported "Motion In Limine" objecting under FED.R.EVID. 403 to "statements, representations, and argument" that he has been committed to a mental institution and any bipolar diagnosis as prejudicial, conclusory, and irrelevant. Dkt No. 31. The court rejects the purported "Motion In Limine" as immaterial to its decision on defendants' dispositive motions. In deciding motions to dismiss and motions for summary judgment, the court resolves no factual disputes and makes no factual findings. The court disregards as immaterial to these motions the underlying condition or cause of Carnohan's 1999 confinement in a psychiatric hospital. The fact and record of the commitment itself are the relevant considerations in assessing whether his Complaint states a claim and whether summary judgment for defendants is proper. The court confines its considerations to the Complaint allegations, materials attached to the Complaint, and competent evidence the court is permitted to consider under Rule 12(b)(6) or Rule 56 standards. The Motion In Limine is REJECTED.
For the foregoing reasons, IT IS HEREBY ORDERED:
1. Defendant State of California's Motion To Dismiss is GRANTED, with prejudice.
2. Defendant United States' Motion To Dismiss is GRANTED, with prejudice, and judgment on the merits in its favor shall be entered, constituting a GRANT of its Motion For Summary Judgment.
3. Carnohan's Motion In Limine is REJECTED.
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SG nears â¬600m as fixed income surges
Record corporate banking and fixed income revenues at Société Générale drove its investment banking profits up 70% in the second quarter to â¬589m ($752m).
Strong results in commodity derivatives and structured finance helped push second quarter net revenues in corporate banking and fixed income to a record €972m, up 65% from the same period last year.
Corporate and investment banking revenues grew 49% to €1.8bn. The bank highlighted a 23% rise in client-driven activity as well as a strong performance in its proprietary trading businesses.
The bank said that despite a stock market correction in mid-May, "the fluctuating dollar, higher oil prices and strong volatility in the equity markets only partially weighed on the Group's business. At the same time, the credit risk environment remained highly favourable."
Revenues rose 34% year-on-year in equity and advisory to €860m, though they failed to keep pace with record results in the division in the first quarter this year when net income hit €1.14bn.
The bank said client-driven equity derivatives, cash equity and advisory and arbitrage trading helped drive profits in the second quarter.
Jean-Pierre Lambert, a banks analyst with Keefe, Bruyette & Woods, said revenues from corporate banking and fixed income were 33% above expectations.
Rising costs for performance-related pay pushed operating expenses in the investment bank up 36% on the second quarter last year. The bank said its "ongoing policy of tight cost control together with targeted investment in line with its strategy of profitable growth" also pushed expenses higher.
The group as a whole saw revenues rise to €5.7bn, up 27% on the second quarter last year and roughly flat on the first quarter this year. The corporate and investment bank's share of net profits at the bank rose 70%, while the group's return on equity rose 3.5% year-on-year to 25.7%.
The bank's asset management unit saw profits increase 11% to €69m on the bank of net inflows of €8.9bn.
Rival French bank BNP Paribas reported its results yesterday. Pre-tax corporate and investment banking revenues grew more than a fifth year-on-year to €1.9bn as profits from advisory and capital markets businesses rose more than 75%.
Like SG, profit growth in the investment bank was offset by higher compensation costs.
SG's shares fell 0.3% to €118.9.


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Bring Me the Head of Dobie Gillis
Release Date: January 1st, 1988
Not Yet Rated|1 hr. 35 min.
Plot Summary
Beatnik Maynard G. Krebs (Bob Denver) returns after 20 years to help old buddy Dobie (Dwayne Hickman) save their hometown.
Cast: Dwayne Hickman, Bob Denver, Connie Stevens, Sheila James Kuehl, Steve Franken, Scott Grimes,
Director: Stanley Z. Cherry
Genres: Comedy


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February 24, 1964
VANCE SIMMONS, APPELLANT,v.UNITED STATES OF AMERICA DEPARTMENT OF HEALTH, EDUCATION & WELFARE, SOCIAL SECURITY ADMINISTRATION.
Per Curiam.
Appellant Vance Simmons, acting pro se, filed this action in the district court to obtain judicial review of a final decision of the Secretary of Health, Education, and Welfare denying Simmons' request for review of a hearing examiner's decision that he was not entitled to benefits under the Social Security Act. This appeal was taken from the order of the district court dismissing the complaint upon the motion of the United States Attorney.
Section 205(g) of the Social Security Act provides in relevant part:
"(g) Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. * * * As part of its answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based." 42 U.S.C.A. § 405(g).
Although Simmons filed this suit within sixty days after notice of the Secretary's decision was mailed to him, the caption of the petition he filed in the district court named the "United States of America Department of Health, Education & Welfare Social Security Administration, Defendants." The United States Attorney moved to dismiss the complaint on the grounds of failure to join an indispensable party, i. e., the Secretary of Health, Education, and Welfare. The district court granted the motion, holding that the Secretary was not only an indispensable party but the only proper party defendant under § 205(g) and (h) of the Social Security Act. Although Simmons had amended his complaint to substitute the Secretary as a party defendant after he received notice of the motion to dismiss, the court held the amendment ineffective because filed more than sixty days after the mailing of notice of the Secretary's decision.
At the oral argument of this appeal, the Assistant United States Attorney agreed with the view expressed by this court that this would appear to be a particularly appropriate case for the Secretary to exercise the discretion vested in it*fn1 by § 205(g) of the Social Security Act to extend the time for obtaining review of its decision.Accordingly, he agreed to apply for such an extension on behalf of the appellant, and we have been informed that an extension has been granted. Since the appellant has already amended his complaint to substitute the Secretary as a party defendant, the cause will be remanded to the district court for further consideration in the light of these circumstances.
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Analysis & Commentary
The Iran Talks: Nuclear Schizophrenia
The Iranian and American negotiators in Switzerland apparently have decided to kick the nuclear can a little farther down the road and hope like hell that sometime soon—at least before the end of June—they can finally hold it up like a trophy and declare there will be peace in our time....
Is ISIS Proposing a Truce, or Waging Psychological Warfare?
In a recent edition of Dabiq, an English-language propaganda tool of ISIS, the group appears to be seeking legitimacy from the international community. FDD Senior Fellow Daveed Gartenstein-Ross comments on the goals and motivations of these new comments and what they mean moving forward....
Reports: Iran Concealing Nuclear Materials in North Korea, Syria Read Latest Breaking News from New
As suspicions grow that Iran may be hiding nuclear material in North Korea, State Department spokeswoman Marie Harf dismissed the possibility and suggested that it was a strange concept, the Washington Free Beacon reported Tuesday.
Experts: Iran Housing Nuke Materials in North Korea, Syria
A top State Department official on Monday dismissed reports that Iran may be hiding key nuclear-related assets in North Korea and implied that she was unaware of the possibility, despite the publication this weekend of several articles by top analysts expressing alarm at the extent of...
Amid Nuclear Talks, Iran Forges Ahead with Middle East Power Play
As the world awaits the results of nuclear negotiations in Switzerland, the Middle East continue to struggle with various conflicts across the region.
Obama 'giving too much away' to Iran
The US has made fundamental mistakes in nuclear negotiations with Iran that have wrecked the chances for a good deal, an expert on Tehran's ambitions has claimed.
Schumer facing first big test in Iran nuclear deal
Sen. Charles Schumer, a strong ally of the White House and of Israel, faces his first big test as heir apparent to the Senate Democratic leadership over a possible Iran nuclear deal.
ISIS Wants a Truce
Through an English-language propaganda platform ISIS has seemingly extended an invitation for dialogue with the international community and possible truce. FDD Senior Fellow Daveed Gartenstein-Ross explains why this is actually a ploy by ISIS to break the coalition opposed to it.
Lausanne Dispatch: Secret Facilities in NK, Syria a Possible New Issue in Iran Nuke Talks
Iran has dispersed elements of its nuclear program to North Korea, introducing redundancy into its nuclear infrastructure that will undermine the usefulness of any deal, according to recently published articles by a range of journalists and policy analysts.
Iran Tests Obama's Desperation Again
As the last weekend before the deadline for its nuclear talks with Iran wound down, administration sources were talking as if a deal was a foregone conclusion.
Obama surrendered leverage in Iran nuke talks by easing sanctions, critics say
U.S. and Iranian negotiators struggled to clinch a nuclear deal as Tuesday's self-imposed deadline drew ever nearer, even as critics said the White House already had given up a key point of leverage by easing pressure on Iran's economy in the months leading up to a prospective deal.
Obama faces enormous stakes as Iran talks go down to wire
The centerpiece of President Obama's second-term foreign policy agenda is hanging in the balance Tuesday as negotiators struggle to reach a deal to limit Iran's nuclear program.
In Iran talks, failure is an option
Even if negotiators in Switzerland strike a partial agreement on Iran's nuclear program ahead of a midnight deadline Tuesday, they can't relax yet.
These maps show what could happen next in Yemen — and how it could impact global politics
As Saudi Arabia and its coalition of partner Sunni states intervenes in the growing war within Yemen, the south Arabian country is taking on major geopolitical significance.
Iran can accept nuclear limits for 10 years says ally of Supreme Leader
The chances of America and Iran reaching a landmark nuclear deal have risen after a senior aide to the country's Supreme Leader said that Tehran could accept a limit on its capacity to enrich uranium for 10 years.
Analysis: Sunni-Shi'ite wars going global
Feeling that its back was against the wall as Iranian-backed Shi'ite Houthi forces moved to take over neighboring Yemen, Saudi Arabia has lashed out with its own Sunni coalition, threatening to take the sectarian conflict to a new level.
IS Likely Trying to Add Al-Shabab to Its Ranks
Growing divisions within the leadership of the al-Shabab terror organization could soon push some, if not all, of the Somali-based outfit to pledge allegiance to the group known as the Islamic State.
Yemen crisis threatens Obama Iran nuclear talks, further clouds Middle East policy
The confusion and cross-purposes that have plagued President Obama's troubled Middle East policy are only getting worse as the U.S. on Thursday voiced its support for a new Egypt-Saudi military campaign to roll back the Iran-allied rebels in Yemen.
Feds canceled Deloitte Palestinian contract on evidence of joint cover-up
A $12.2 million contract to boost the Palestinian economy was scrapped more than a year before its scheduled completion after U.S. Agency for International Development officials covered up the poor performance of its contractor, Deloitte Consulting.
Obama's anti-terror strategy suffers setback in Yemen
President Barack Obama has pointed to Yemen to boast that his new global anti-terror strategy was thriving. But with Iranian-backed rebels now overrunning the U.S. ally tasked with beating back local al Qaeda affiliates, the nation at the tip of Arabian Peninsula makes a better case study in...


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17020 Lake Avenue, West Olive 49460
See more homes for sale in West Olive, MI
This property has been Sold!
03/14/2016 at $589,900
Enjoy the resort amenities of a huge private association on Lake Michigan beach and Pigeon Lake which includes tennis courts, your own boat dock on Pigeon Lake, deep water channel to Lake Michigan, boardwalks, waterfront parks, plus bike paths to Holland and Grand Haven and beyond. This cottage or year 'round home has great vistas of Pigeon Lake from a spacious Florida room. Other features include a large field stone fireplace in living room with vaulted ceiling, areas expand to more bedroom space, oversized and heated 2+ car garage, tennis courts right out the back door, short walk to parks, Lake MI beach and boat dock cove.
Property Information
- Status
- Sold
- Address
- 17020 Lake Avenue
- City
- West Olive
- Zip
- 49460
- County
- Ottawa
- Township
- Port Sheldon
- Possession
- At Time Of Clos
- Garage Desc.
- 2, Attached
- Waterview
- Waterfront Desc
- All Sports, Assoc Access, Channel, Dock, View
- Body of Water
- Lake Michigan
- Water
- Well
- Sewer
- Septic System
- Year Built
- 1948
- Taxes
- $6,585
- Association Fee
- $350
Rooms and Land
- MasterBedroom:
- 9x25 Main Floor
- Bedroom2:
- 9x25 2nd Floor
- Bedroom3:
- 14x19 2nd Floor
- Bedroom4:
- 11x19 2nd Floor
- Bedroom5:
- 11x18 Lower Floor
- Family:
- 18x18 Main Floor
- Kitchen:
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- Living:
- 14x25 Main Floor
- Dining:
- 7x10 Main Floor
- Laundry:
- 8x16 Lower Floor
- Basement
- Partial Basement, Walk Out
- Cooling
- Central
- Heating
- Forced Air, Natural Gas
- Acreage
- 0.17
- Lot Dimensions
- 80x163x42x160
- Appliances
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- Fireplace Desc.
- Living, Wood
- Exterior Materials
- Vinyl
- Exterior Features
- Deck(s), Patio, Porch(es)
Listing Video for 17020 Lake Avenue, West Olive MI 49460
Mortgage Calculator
Listing Broker
Listing Courtesy of Summit Properties
Office Address 691 Ottawa Beach Rd
Listing Agent Lindsey Vesnic
Listings last updated: . Some properties that appear for sale on this web site may subsequently have been sold and may no longer be available.
Our Michigan real estate agents can answer all of your questions about 17020 Lake Avenue, West Olive MI 49460. Real Estate One, Max Broock Realtors, and J&J Realtors are part of the Real Estate One Family of Companies and dominate the West Olive, Michigan real estate market. To sell or buy a home in West Olive, Michigan, contact our real estate agents as we know the West Olive, Michigan real estate market better than anyone with over 100 years of experience in West Olive, Michigan real estate for sale.
The data relating to real estate for sale on this web site appears in part from the IDX programs of our Multiple Listing Services. Real Estate listings held by brokerage firms other than Real Estate One includes the name and address of the listing broker where available.
IDX information is provided exclusively for consumers personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
All information deemed materially reliable but not guaranteed. Interested parties are encouraged to verify all information. Copyright© 2016 MichRIC LLC, All rights reserved.


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October 14, 1958
Joseph PETTUS, Plaintiff,
GRACE LINE, INC., Defendant, Third-Party Plaintiff, Sealand Dock & Terminal Corp. and Federal Stevedoring Co., Inc., Third-Party Defendants
The plaintiff objects to all of the interrogatories directed to him by the third-party defendant, Sealand Dock & Terminal Corp. and by the third-party defendant, Federal Stevedoring Co. Inc., on the ground that they are not directed to an 'adverse party' within the meaning of Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
The plaintiff has instituted this action against the defendant to recover damages in the sum of $ 200,000 for personal injuries which he alleges to have sustained while he was aboard the S.S. 'Santa Ana', a vessel owned by the defendant, as an employee of the third-party defendant, the Federal Stevedoring Co. Inc., in the capacity of a longshoreman. He contends that his injuries were due to the unseaworthiness of the vessel and also to the negligence of ship owner, its agents, servants and/or employees. The defendant impleaded Sealand Dock & Terminal Corp. and Federal Stevedoring Co., Inc., as third-party defendants. Each third-party defendant answered not only the third-party complaint but also the plaintiff's complaint and served a copy of its answer not only upon the third-party plaintiff but also upon the plaintiff. The answer of each third-party defendant denies the material allegations of the plaintiff's complaint and pleads several separate defenses thereto. Thereafter each third-party defendant addressed identical interrogatories to the plaintiff, to each of which the plaintiff objects.
The plaintiff contends that it is not an adverse party to these third-party defendants because the plaintiff's complaint does not state 'a cause of action as against the said Third-Party Defendants, but states the cause of action solely and only as against the Defendant, Grace Line, Inc., that accordingly, neither the plaintiff nor either of the third-party defendants is a party entitled to propound and direct interrogatories to the other.'
Rule 14 of the Rules of Civil Procedure provides in part as follows '* * * the third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim.' This provision in Rule 14 is not mandatory but, rather, permissive. The third-party defendant may remain aloof from the controversy between the plaintiff and the defendant by refraining from asserting against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. If he does not avail himself of the right provided by Rule 14 then, obviously, there is no issue between the plaintiff and the third-party defendant and the plaintiff is not a party adverse to the third-party defendant. If, however, the third-party defendant does avail himself of this right afforded to him by Rule 14 then there are issues between the plaintiff and the third-party defendant and the plaintiff thereby becomes an adverse party. This, in effect, is the holding of District Judge Dimock of the Southern District of New York in the case of M.V.M., Inc., v. St. Paul Fire & Marine Insurance Co. (U.S. Lines Co.) D.C.S.D.N.Y.1957, 20 F.R.D. 296. See also Cooke v. Kilgore Mfg. Co., D.C.N.D.Ohio E.D.1954, 15 F.R.D. 465; Harlan Produce Co. v. Delaware L. & W.R. Co., D.C.W.D.N.Y.1948, 8 F.R.D. 104. The plaintiff cites these 3 cases for the proposition that a third-party defendant may never direct interrogatories to a plaintiff where the plaintiff's complaint does not allege a claim against the third-party defendant. All that these cases hold is that a third-party defendant may not direct interrogatories to a plaintiff where there is no issue between them; where they have not locked horns. In the instant case the third-party defendants and the plaintiff are adverse parties; there are issues between them raised by the pleadings; they have locked horns.
The plaintiff's objections to the interrogatories directed to him by each of the third-party defendants are overruled. Settle Order.
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decided: December 16, 1965.
HITZ ET AL., APPELLANTS,v.STOUFFER
Appeals from judgments of Court of Common Pleas of Lebanon County, Sept. T., 1963, Nos. 76 and 409, in cases of Marlin H. Hitz et ux. v. Jean M. Stouffer; and Clair J. Stouffer et ux. v. Paul E. Hershey, individually and trading as Hershey Brothers Garage, and James W. Pearson. Judgment in favor of Stouffers reversed and judgment n.o.v. entered in favor of Hershey and Pearson.
Stanley W. Katz, with him Bernerd A. Buzgon, and Davis & Katz, for appellants.
H. Rank Bickel, Jr., for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Ervin, P. J. Dissenting Opinion by Watkins, J.
[ 207 Pa. Super. Page 57]
We have for consideration two separate trespass cases which were consolidated for trial. In the first case Marlin H. Hitz and Dolores K. Hitz instituted an action against Jean M. Stouffer for the recovery of property damages to the Hitz car. In the second case, Clair J. Stouffer and Jean M. Stouffer instituted an action against Paul E. Hershey, individually and trading as Hershey Brothers Garage, and James W. Pearson, for the recovery of property damages to the Stouffer car.
On the afternoon of June 27, 1961, a clear, dry day, Jean Stouffer was operating an automobile, owned by her husband and herself, in an eastwardly direction on East Birch Street, at or about its intersection with South Green Street, in Palmyra, Lebanon County, Pennsylvania. At the same time the automobile owned by Marlin H. Hitz and Dolores K. Hitz was being operated by a bailee, James W. Pearson, an employe of Paul E. Hershey, in a northwardly direction on South Green Street at or about the aforesaid intersection. The intersection was not controlled by any traffic signs or signals and the visibility for the operators of both vehicles was good. Both streets are forty feet wide. The Hitz vehicle was approaching the intersection from Mrs. Stouffer's right.
Mrs. Stouffer testified as follows on direct examination: "Q. I interrupted you. Then what happened? What did you do and what did you observe and what happened? A. As I proceeded toward the intersection I looked to see if there was any traffic on South Green Street and when I looked I saw that there was a car approaching from the south going north on Green Street. I would say at the time that I saw the car he was about half the distance between Birch and Elm Street. Q. Can you estimate what the distance was? How far away was he from the intersection, if you can
[ 207 Pa. Super. Page 58]
estimate? A. I would say at least 250 feet. Q. All right, now go ahead. A. As I said, I saw the car to my right and, as I said, he was at least 250 feet away. And so I proceeded into the intersection on my way across. Q. How fast were you driving? Can you fix your speed in any way from the time you got to the driveway until the time you entered the intersection? If it varied, give the varying speeds at which you drove. A. I don't believe it varied and I believe I was driving about fifteen miles an hour. Q. Will you state whether or not you were able to observe his speed when you saw him? A. No, I was not able to observe his speed. Q. What happened then with respect to the collision between the two cars? A. As I was about three quarters of the way through the intersection I heard the screech of brakes and I saw the car just as he was off the right side of my car just before impact. . . . Q. How far were you from the west curbline of Green Street when you observed this car at the distance at which you testified? A. I would say about twenty to twenty-five feet. Q. Do you know whether the intersection was controlled, as we use the term? A. The intersection was not controlled." On cross-examination Mrs. Stouffer testified as follows: "Q. When you were twenty to twenty-five feet from the intersection did you look again to observe Mr. Pearson? A. No. He was entirely too far away." She further testified: "Q. If you saw Mr. Pearson when you were twenty to twenty-five feet away from the intersection, as you now say, when did you next see him, if you did? A. The next time I saw him was just before impact. Q. So as you entered the intersection itself you didn't look to your right to see if Mr. Pearson was coming; is that right? A. No. I had discarded him from my realm of danger at that point."
After the trial the jury found in favor of Jean M. Stouffer in the first case and in favor of Clair J.
[ 207 Pa. Super. Page 59]
Stouffer and Jean M. Stouffer in the second case in the amount of $591.11. Motions for judgment n.o.v. and for new trials were filed in both cases and were denied. Judgments were entered on the verdicts. Hence these appeals.
It is the duty of the driver of a vehicle approaching a two-way street to look first to his left and then to his right. That is because he first enters the lane in which traffic coming from his left is traveling. If he sees nothing approaching that would be likely to prove a source of danger to him, he may proceed, but as he nears the middle of the street, it is his duty to look to his right again before entering into the traffic lane coming from that direction. If another car is approaching in the right lane, the driver should stop unless, in the exercise of care and prudence, he is reasonably justified in believing he can cross ahead of it without danger of a collision: Grande v. Wooleyhan Transportation Co., 353 Pa. 535, 538, 539, 46 A.2d 241; Merkel v. Janiszewski, 180 Pa. Superior Ct. 71, 73, 117 A.2d 795; and Freedman v. Ziccardi, 151 Pa. Superior Ct. 159, 162, 30 A.2d 172.
Under the evidence taken most favorably to Mrs. Stouffer, there can be no doubt that after looking to the right at a point twenty to twenty-five feet from the intersection and seeing a car approaching from that direction, she failed to look to her right again at the approaching vehicle until the point of collision. She admitted this fact both on direct and cross-examination. She also admitted that she did not know how fast the other car was going. Had she looked as required she undoubtedly would have seen how close the other car was to her and she could have stopped before entering the northbound lane, thus avoiding the collision. Under these circumstances, she was contributorily negligent as a matter of law and we cannot place our stamp of approval upon such conduct.
[ 207 Pa. Super. Page 60]
The judgment in favor of Clair J. Stouffer and Jean M. Stouffer must be reversed and judgment n.o.v. must be entered in favor of Paul E. Hershey, individually and t/a Hershey Brothers Garage, and James W. Pearson.
Since Jean M. Stouffer, who was negligent as a matter of law, was the sole defendant in the first case, and since any negligence of the bailee (Pearson) in the second case could not be imputed to the bailor (Hitz) and since the damages to the Hitz car had been stipulated, it is hereby directed that judgment be entered by the court below in favor of Marlin H. Hitz and Dolores K. Hitz, plaintiffs, appellants, and against Jean M. Stouffer in the amount of $526.10. See D. M. Bare Paper Co. v. Steward, 205 Pa. Superior Ct. 286, 208 A.2d 890.
Judgment directed to be entered by court below in favor of Hitz et ux. and against Jean Stouffer.
Dissenting Opinion by Watkins, J.:
I respectfully dissent. The appellants contend that they are entitled to judgment n.o.v. or failing in that, a new trial, because Jean M. Stouffer was guilty of contributory negligence as a matter of law and because of an error in the charge of the court below.
It appears that Mrs. Stouffer entered the intersection after seeing Pearson approaching over 250 feet away and did not look again until just before the collision. Regarding this the court charged as follows: "Bear in mind what I said to you, members of the jury, about the duty to observe. Normally, when you cross an intersection, you should look and continue to look as you cross the intersection. When you reach the middle, then you are going to proceed across the line of traffic which would be coming from your right, and it would be your duty to look to the right. However, members of the jury, bear in mind also what I said; you have a duty to look and see what else is going on. However, if what Mrs. Stouffer said is true, that the
[ 207 Pa. Super. Page 61]
vehicle operated by Pearson was far away when she entered the intersection, in that case you might consider that a reasonable, prudent person wouldn't have taken a second look as they crossed the intersection, because there wasn't anything between him and the Pearson vehicle. If you find that that is a fact, you might consider that she acted reasonably and prudently, even though normally it is your duty to look again to the right as you get to the middle of the intersection. The law never requires you to do an unnecessary thing, members of the jury." I do not believe that this portion of the charge, reading the charge as a whole, was in any way prejudicial to the appellants so as to warrant a new trial.
The legal difficulties in making decisions in this type of case are eminently pointed out in the majority and dissenting opinions in Hartnett v. Wharton Hardware & Paint Co., 187 Pa. Superior Ct. 308, 144 A.2d 581 (1958). The fulcrum of the problem is whether or not, when Mrs. Stouffer took one look at the edge of the intersection and then proceeded across without again looking until she saw the other car upon her, knowing there was another automobile approaching the intersection at the distance here involved of over 250 feet and accepting the speeds as testified, her safe passage through the intersection was questionable. "There is no rigid rule as to how far away the approaching vehicle must be to allow another vehicle approaching the same crossing from the side to continue to advance without its driver being guilty of negligence. Each case must be determined by the circumstances . . ." Primio v. Haertter, 115 Pa. Superior Ct. 564, 176 A. 58 (1935). Contributory negligence should only be declared as a matter of law when it is so clearly revealed that fair and reasonable persons could not disagree as to its existence. Pro v. Pennsylvania RR. Co., 390 Pa. 437, 135 A.2d 920 (1957).
[ 207 Pa. Super. Page 62]
In a case, stronger than the instant one, where a car was approaching a stop sign controlled through-highway from a side road, we held that the driver is not required to yield the right of way if he is so far in advance that in the exercise of reasonable care he is justified in believing he can cross ahead of approaching vehicles without danger of collision. In that case the driver estimated the other car to be about 100 to 125 feet away and traveling at about 15 to 20 miles per hour and the driver believed she had plenty of time to drive through the intersection. She was practically across the street when her car was struck in the middle rear. She testified that just before the collision she saw the car and it was going faster then. We held that: "'Declaring an individual guilty of contributory negligence as a matter of law should be done only where the conclusion is inescapable.' Enfield v. Stout, 400 Pa. 6, 12, 161 A.2d 22 (1960)", and decided that holding her negligent as a matter of law was not justifiable. Brodsky v. Bockman, 197 Pa. Superior Ct. 94, 176 A.2d 924 (1962).
In the instant case, unlike the Brodsky case, neither road was controlled and although it is true that there was no evidence from the plaintiff as to the estimate of the speed of the car, which she saw for the first time more than 250 feet away, there could be an inference concerning speed by the jury from the distance traveled, the screech of the brakes and the skid marks on the highway for a distance of 48 feet to the point of impact.
While it is true that uncontrolled intersections are fraught with danger and the courts have held plaintiffs guilty of contributory negligence as a matter of law under the peculiar circumstances of each case, however, just the fact that an accident occurred at an uncontrolled intersection does not per se mean both parties are contributorily negligent. There must be
[ 207 Pa. Super. Page 63]
some point in distance at which a driver, who observes another vehicle approaching at right angles to an uncontrolled intersection, can proceed to cross the intersection and can assume the other driver, who has a clear view of him, will not almost intentionally conduct himself as to cause an accident, but will respect the rules of the road and make whatever minor adjustments are necessary to avoid a collision, and not be guilty of contributory negligence as a matter of law. This question was fairly submitted to the jury and it found that her action was prudent and reasonable. This finding does not shock my conscience and a preponderance of the evidence supports it. I would affirm the court below.
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Spring Special on UPS's and others
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Most listings are in the $30's per square foot per year. The Old Town Chinatown region is going through a an increase in rates. In the last 3 months, the median rate rose $2 per sqft per year. That's a 5% increase in rent.
Compared to the rest of the Greater Portland market, the Old Town Chinatown region has greater rates, and you'll need to pay a premium to be in this hot submarket.
In the last 90 days, 5 listings have come on the market, which means office spaces most likley are leasing quickly. You'll want to be prepared to make an offer immediately. There aren't many listings below 2,000 square feet on the market, so finding a space for a small business might be tough.
Even though the median size is 13,170 sqft, there are still 0 new availabilities below 2,000 sqft. Most properties in this market are close to 4 floors. Most buildings in this area were built in 1904 and are Class B.
Not much of the real estate is used for commercial space, so it might be hard to find office space. Education is the dominant industry in this area. Most of the folk of Old Town Chinatown work from home. Commuting around an hour a day is the norm for those who opt to reside in this part of town.
Trends and status of the commercial real estate market in Old Town Chinatown.
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Claire Darlington, Dip.Couns, Bsc.
Greater Manchester
07428 774132
About me
I am a Person Centred Counsellor based in Whitefield, Manchester offering face-to-face and telephone counselling. I offer counselling to anyone aged 16 years old and over.
My journey started soon after completing my Bachelor's Degree in Psychology, when I began volunteering as a Facilitator for a drop-in group focusing on Social Phobia and Anxiety. I soon realised my passion was working with people and that I wanted to do this on a one-to-one basis. I have gained experience in working with clients from various age groups and with a range of well-being needs. I am passionate about the Person Centred Approach and believe we all have the ability to help ourselves, we just might need support when looking for the key.
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If you feel you need help with anxiety, bereavement, depression, low self esteem, mental health, recovery from past abuse, relationship issues or stress give me a call. I know as well as you do that taking that first step can be the hardest thing, but if you think you may be ready, give me a ring and start that journey.
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BTEC Level 5 Diploma in Therapeutic Counselling
Level 3 Certificate in Counselling Skills
Level 2 Certificate in Counselling Concepts
BSc (Hons) Psychology
I work within the ethical guidelines of the British Association of Counselling and Psychotherapy.
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- Abortion
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My work is fully insured and I undergo regular supervision, a requirement stated by the BACP ethical framework.
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My boyfriend told me he ordered a ring online and was going to propose this week but am out of town , my grandmum is sick , we are in long distance relationship , he is going back without us meeting , next meeting is 3 months from now! I got excited , should i tell him my ring size?
Should I tell him my ring size thou he didn't ask for it?
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Talking cat part 2 continued
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Puffy the talking cat goes swimming with her nin com poop hillbilly cousin tom. Puffy has some very funny things to say in this video episode... (The ongoing adventures of "Puffy the talking cat" -This is Part 2 continued.
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A Piece of Summer under the Christmas Tree
Christmas is a truly magical time, unfortunately it only comes once a year. Luckily for the biggest Christmas lovers, there are places like Santa village where you can meet Santa even during hot summer months. Similarly during the winter holidays, while enjoying the frenzy and seasonal rush we long for the lazy and slow days of summer. With our products you can have the best of both worlds- a little piece of summer under the Christmas tree which is sure to bring a warm smile to your children's faces.
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We usually associate hammocks with relaxing in the backyard on a lazy Sunday afternoon. While they're certainly great for that, hammocks can also be a valuable tool for vestibular therapy in children and adults with Sensory Processing Disorders. People with proprioceptive dysfunction, tactile defensiveness, Autism, Pervasive Developmental Disorder (PDD), Attention-Deficit Hyperactivity Disorder (ADHD), Asperger's and excessive energy levels will all benefit from the calming "all-body hug" hammocks provide. There is a great variety of hammocks on the market, and choosing one depends on who will be using it and for what purpose, as well where it will be primarily used....
Protective Surfacing for Children Home Gym
Protective surfacing is intended to cushion falls and prevent serious injuries from any children gym used indoors and outdoors. The amount of a consistent type of surfacing required is based on the critical height or fall height of the equipment, which is the height of the highest designated play surface on the equipment. Common indoor surfaces (such as rugs, tumbling mates, or carpet) are not adequate cushioning for gross motor equipment with a fall height greater than 18 inches even. The following information has been extracted from the website www.safekidscanada.ca (section "For Parents – Safety Information by Topic – Playground...


text: Synopsis: 8 GB Iphone bought in 11/08 with stock 2.1 firmware. Chose to downgrade to 1.1.4 but only EN_Ziphone baseband downgrade and and Ziphone 3.0 would work after I tried several other tools. Unlock and Jailbreak successful at 1.1.4 I did a restore to stock 2.2.1 firmware. Phone rebooted in factory locked state. Tried Quickpwn 2.2.5 and followed all instructions. Phone rebooted unlocked, however when I insert my tmobile sim, status changes between "no service" and weak 1 bar signal - unable to make or receive calls. I have tried restoring to stock and Quickpwn several times with no results. ideas?


text: Welcome to 320 Roesch! The home features a fully fenced yard, some newer windows, first floor bedrooms, formal dining room, bonus space off the living room as well as a bonus room on the second floor. The home has some carpeting as well as hardwoods. Conveniently located near boarder crossings, minutes from downtown Buffalo, bus routes, and area expressways.


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The Hatfield and McCoy feud coming to Elkins on Saturday
Covey Promotions LLC (Covey Pro Wrestling), is bringing one of West Virginia's longest running and well known feuds to Elkins but this time things will get settled in a wrestling ring.
Covey Pro is a West Virginia based 100 percent veteran-owned independent professional wrestling company based out of Berkeley Springs where it has a pro wrestling training facility, as well as a weekly TV Show which airs on WJAL TV Saturdays at 11 p.m. and is available in 1.3 million homes in the greater Washington, D.C. metro area and worldwide via the Covey Pro YouTube Channel which is available at "http://www.youtube.com/CoveyProTV">www.youtube.com/CoveyProTV.
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For more information, call Covey Pro at 304-298-2192.


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Time Attack is insane. I have no idea how to get under 57 seconds for the gold DK medal on level 1-1, I don't want to know how I'd fare in later levels.
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Never thought I'd love the pink/white 3DS XL ♥
Currently Playing: Donkey Kong Country Returns 3D
3DS Friend Code: I'll post it eventually xD


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Beautifully Created 3D Landscape Scenes
This post is for the inspiration of 3D artists. This post features the beautifully created 3D landscape scenes. Each and every scene has been the perfect example of perfection in 3D design. All the designs look real that's why I feature them here. Lets get inspire to create more 3D landscape scenes.
In Perfect Harmony
Return to the Swamp
Moonlit Space
Conure Cay
Way of the spirit
Snow Queen Realm
Mist of Summer
Next generation of New York
The Forgotten Land