Brain Injury Causes Wrongful Death

Brain injury causes wrongful death is the allegation made in a law suit filed by the family of Derek Boogaard. Boogaard was a so-called "enforcer" in the National Hockey League. Over the course of his playing career he suffered significant physical trauma and brain damage. In addition he probably inflicted considerable physical damage and brain damage on other players. He played for a total of six (6) seasons as one of the league's top enforcers. During the course of his career he became addicted to prescription pain killers.

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Administrative Law-State Rules

These rules and regulations can be very important. Suppose you wanted to assert a claim against a motel owner because of carbon monoxide poisoning that occurred while you were in the motel. The type of claim that would be asserted would be a civil claim (law claim) for money damages based upon the negligence of that motel owner. There may, however, be regulations published by the state agency that controls the motel/hotel industry that set forth certain standards as to how motels are to maintain gas producing appliances, as to prevent carbon monoxide poisoning. The regulations published by that state agency could be extremely helpful in pursuing a civil claim against that motel owner.

Administrative Law-Code of Federal Regulations

At the federal level, all regulations are published within the Federal Register. They are also contained within a document known as the Code of Federal Regulations (C.F.R.). The C.F.R. can be found in a law library and is generally organized in numerical fashion to correspond (to the extent possible) with the statutory code sections that they are designed to interpret and expand upon.

Administrative Law-Rule Making Process

The rule making process consists of the following four steps.

1. The agency publishes proposed rules.

2. Members of the public are given the opportunity to comment on those rules.

3. The rules may be revised based upon the public’s comments.

4. The final rules are enacted.

The document where these rules are published is known as the Federal Register. The Federal Register is a publication put out by the Government Printing Office that contains all of the proposed and adopted rules and regulations of the federal agencies.

As discussed earlier, there may be administrative agencies within the legislative and judicial branches of government. For instance, the General Accounting Office is an independent administrative agency created by Congress and charged with investigating all matters related to the receipt, disbursement, and use of public money. At the state level within the judicial branch of government, there may be an administrative agency, known as the state bar, charged with the responsibility of administering and supervising the legal profession. As an administrative agency within the judicial branch of government, a state bar is subject to the control of the highest court of that state.

The regulations that are adopted by administrative agencies have the effect of law. They are designed to expand on laws created by legislative bodies. The legislative bodies that enact the statutory law try to be as precise as possible in terms of writing the statutes. However, the statutes are often somewhat general because the legislative body simply does not have the expertise or, in some cases, the time to enact statutes that deal with all of the nitty-gritty issues that may arise within that subject area. The administrative agencies generally have the expertise and the time to publish regulations that are much more precise and that deal with the nitty-gritty issues that the agency confronts.

The regulations that are adopted by administrative agencies have the effect of law.

The regulations published by the administrative agencies are designed to be an explanation and an elaboration of the statutes that the agency is charged with enforcing. Theoretically, there should never be a situation in which there is a conflict between what the statute says and what the regulations set forth by the agency say. If there were such a direct conflict, then the statute would be controlling. The regulations are designed to flesh out the statutory scheme. You may think of the statutes as being the skeleton and the regulations as being the meat on the bones.


Administrative Law

Another facet of the law is what is referred to as administrative law. At both the state and federal level, there are administrative agencies. Most of those agencies are part of the executive branch of government. As discussed in the material dealing with constitutional law, our government is divided into three branches—the executive branch, the judicial branch, and the legislative branch.

The executive branch is headed by the president at the federal level and by the governor at the state level. The judicial branch at the federal level is headed by the chief justice of the U.S. Supreme Court. At the state level, the Judicial branch is headed by the chief justice of the highest court of that state, which in most instances is referred to as the Supreme Court (although in some states, it may be referred to as the Court of Appeals).

Within the legislative branch, there typically is no one person who is the head of that branch. At the federal level, the legislature is bi-cameral, meaning that it consists of two bodies. Those two bodies are the House of Representatives and the Senate. The Speaker of the House is the leader of that legislative body. The President Pro Tempore is the leader of the Senate. At the state level, there may be the same general type of organization within the legislative branch.

You may be asking yourself, What do the above comments have to do with administrative rules or regulations? Although most administrative rules and regulations are set forth by administrative agencies within the executive branch, there may be administrative agencies within the judicial branch or the legislative branch that could set forth rules and regulations of their own.

The administrative agencies that most of us are probably familiar with are federal agencies like the Food and Drug Administration, the Department of Justice, the Department of Commerce, the Department of Agriculture, and the Federal Communications Commission. Some of these federal agencies are cabinet-level agencies, meaning that the heads of those agencies are members of the President’s cabinet.

Others may be considered to be independent agencies. For instance, the Federal Election Commission is an independent agency that has the specific responsibility of overseeing compliance with the federal election laws by presidential candidates and other candidates at the national level. Another independent agency is the Nuclear Regulatory Commission, which is charged with the responsibility of overseeing the use of nuclear power in the nonmilitary arena.

These agencies generally have the authority to issue regulations. These regulations in some instances may be referred to as rules. Although there is a technical distinction between a rule and a regulation, for purposes of this discussion they are treated as being one and the same. These administrative agencies are created by acts of Congress and are given a specific purpose as set forth in the U.S. Code. The agencies are also given the authority to write and publish rules and regulations that will govern its conduct.

Case Law-The Status of the Court

The importance of case law from various courts, to some extent, has to be evaluated based upon the status of the court that rendered the decision. This refers to the precedent value the case holds over other courts.

For instance, a decision rendered by a trial judge in the Hanover County Superior Court in North Carolina may be of great interest nationwide, but it is not binding on anyone other than the parties in that particular case. If that case, however, is appealed to the North Carolina Court of Appeals and a written decision is rendered, then that case law becomes binding to every person in North Carolina as the law of the state. If that case is then appealed to the North Carolina Supreme Court, then the decision rendered by the North Carolina Supreme Court becomes the law of North Carolina and is binding upon all litigants in the North Carolina State Court System.

If that case involved a constitutional or federal issue, it may be further appealed to the U.S. Supreme Court. A decision by the Supreme Court is binding upon the entire nation.

In the federal system, a decision rendered by a United States District Court judge is typically only binding upon the litigants in that case. However, if that case is appealed from the United States District Court to the United States Court of Appeals for that circuit, then the decision rendered by that United States Court of Appeals becomes binding upon all of the persons within that federal circuit. For instance, the Fourth Circuit Court of Appeals includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Any decision rendered by the United States Court of Appeals for the Fourth Circuit is binding upon all persons within that five state area.

It is quite possible that the United States Circuit Court for the Eleventh Circuit could decide a case with similar issues and come up with an opposite conclusion. Typically, when a conflict exists between circuits, the issue will be presented to the U.S. Supreme Court to decide how to resolve the conflict between the circuits.

Case Law-State Court Decisions

Written decisions rendered within the state court system are found in regional reporters. The publishing house that is responsible for publishing state court decisions has essentially divided the United States into regions. For instance, Illinois is contained within the North Eastern Region. As such, a decision by the Illinois Supreme Court that is reported in written form could be found both in the state reporter, known as the Illinois Official Supreme Reporter, and also in the regional reporter, known as the North Eastern Reporter. The decision of Jones v. Smith from the Supreme Court of Illinois discussed earlier would be reported under the same name with the following citation: 208 Ill. 2d 450, 804 N.E.2d 480 (2004). The decision then would be found in volume 208 of the Illinois Official Supreme Reporter at page 450 and would also be found in the regional reporter known as the North Eastern Reporter at volume 804, page 480. Again, the year refers to the year when the decision was rendered.

Written decisions from trial courts at the state court level frequently are not published by any publishing house. To the extent they are available at all, they may only be available within that local court house. Some states have adopted trial court reporting systems wherein certain written decisions that are presented to them may be published. In the state of Virginia there is a publication known as Circuit Court Opinions, which consists of written decisions made by circuit court judges in the state of Virginia. Those decisions, however, are only published if either the judge or one of the attorneys forwards that written decision to the publishing firm.

Courts either at the state or federal level are charged principally with resolving disputes that are presented to them and in that context, render interpretations of state or federal statutes or state or federal constitutional provisions. Any decision rendered by a trial court judge is subject to being reviewed and potentially overturned by the appellate court that has appellate jurisdiction over that trial court. For instance, in the federal system, any decision rendered by a United States District Court is subject to appeal to the United States Court of Appeals for that circuit. The United States District Court judge may have rendered a written decision.

That decision then can be reviewed by the judges in the United States Circuit Court for that circuit, and those judges on the circuit court can either agree or disagree with the decision from the United States District Court. The decision rendered by the United States Court of Appeals likewise may be appealed to the United States Supreme Court. If the U.S. Supreme Court exercises its discretion and decides to hear the case, then the U.S. Supreme Court can either uphold or reverse that decision.

At the state court level the same procedure applies. Any decision rendered by a trial court can be appealed to the appellate court that has jurisdiction. The appellate court can then either uphold or reverse the trial court decision. The high court within that state generally has the last word on those cases that are initially tried within that state. However, if the case involves an issue of federal or constitutional law, then the U.S. Supreme Court can decide to hear a case from the state court system.

Case Law-Federal Court Decisions

Case law for the most part comes from appellate courts. The appellate courts may be intermediate courts or they may be the high court of that state or court system. For instance, there is an abundance of case law rendered by the U.S. Circuit Court of Appeals. Likewise, there is a wealth of decisions rendered by the United States Supreme Court.

The decisions of the appellate courts are contained within various bound volumes published by different law publishing companies. A written decision rendered by a United States District Court judge may be published in legal books known as the Federal Supplement (abbreviated F. Supp.).

Example: A decision rendered by a United States District Court judge is generally referred to by the name of the parties, e.g., Jones v. Smith, 317 F. Supp. 2d 820 (N.D.IL. 2004). That case would then be found in volume 317 of the Federal Supplement Second beginning on page 820. The parenthetical means that it is a decision from a United States District judge in the Northern District of Illinois, that was rendered in 2004.

NOTE: The volumes are put into series and when they reach a certain number, generally 999, the numbering begins again at one. That is why you will find a 2d or 3d in the citation.

Decisions rendered by a United States Circuit Court of Appeals are found in law books known as the Federal Reporter. For instance, a decision rendered by the United States Circuit Court of Appeals for the Ninth Circuit could be reported at 356 F.3d 121 (9th Circ. 2004). That citation means that the decision was rendered by the United States Court of Appeals for the Ninth Circuit in 2004 and can be found in Volume 356 of the Federal Reporter Third Series at page 121.

Decisions from the United States Supreme Court may be reported in three different reporting systems, all of which are published by different publishing houses. For instance, a decision from the United States Supreme Court would frequently be referred to as Jones v. Smith 535 U.S. 85, 125 S. Ct. 25, 159 L. Ed. 2d 125 (2004). That decision would be found in any one of those three volumes with the first volume being referred to as the United States Reporter, Case Law 23 Volume 535, page 85. That same decision can also be found in the Supreme Court Reporter, in Volume 125, page 25 and would also be found in the Lawyer’s Edition Second Series in volume 159, page 125. The year refers to the year when the decision was rendered.

Case Law

The case law referred to earlier in this chapter consists of the written decisions of the various courts. Typically, trial courts do not generate case law. Even though a trial court judge may issue a written opinion (also called a decision) in a given case, that decision has very limited application. Decisions rendered by trial judges are only binding in regard to that specific case. They do not necessarily have any controlling effect upon any other trial judge within that trial court and do not have any controlling effect on any trial judge in any other trial court. Trial courts are the lowest tribunal and as such any written decisions rendered by trial court judges are of limited application.

Many cases decided by trial courts are decided by juries. Juries do not render written decisions explaining their analysis of the case, but rather simply render a verdict. That verdict in a civil case would be either in favor of the plaintiff or in favor of the defendant. If the verdict is in favor of the plaintiff and there is an amount of money being sought by the plaintiff, then the jury would fix the amount of the monetary award (i.e., value the damages). If there is no jury deciding the case, then the judge may enter a verdict or a judgment order fixing the amount of damages or granting one party the form of relief that is sought.

Case Law-State Courts

The state court systems vary dramatically from state to state. Some states have a single trial court. In these states, the trial court is generally referred to as a court of general jurisdiction, wherein all civil and criminal cases are initiated.

Other states have what is referred to as a two-tier trial court system. In the state of Virginia, the lowest trial court is the General District Court. That court hears all criminal misdemeanor cases and can also hear all civil cases wherein the amount claimed is less than $15,000. (A misdemeanor is a crime wherein the potential penalty is no more than one year in jail.) There are no juries in the General District Court. Any case that is heard in the General District Court may then be appealed to the Circuit Court, where the party bringing the appeal is entitled to a new trial (referred to as a trial de novo). In the Circuit Court either party can request a jury trial. The Circuit Court is a court of general jurisdiction, meaning that virtually any type of case can be brought within the circuit court.

Many states also have what is referred to as an intermediate court of appeals. That intermediate court of appeals is essentially the equivalent of the United States Circuit Court of Appeals, except that the state intermediate court of appeals only hears appeals from the state trial courts. These intermediate courts of appeals generally will hear any case that is appealed to them. However, in some states the intermediate courts of appeals are courts of limited jurisdiction and may have authority to only hear certain types of cases.

The highest court in most states is referred to as the Supreme Court, but some states may refer to their highest court by a different name. That high court may be a court of discretionary appeal, meaning that they exercise discretion as to which cases they will hear, much like the U.S. Supreme Court. These courts of appeal, whether they be intermediate or supreme, do not actually try cases, but simply review briefs and records submitted to them by the attorneys, then hear oral arguments and make a decision.