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Washburn Law Journal Blog Posts From 2019

Photograph: Judge Daniel Coble. Torture, Terrorism, and Torts by Professor Alex Glashausser | November 13, 2019

As first-year law students learn in Torts, one “intends” a result if one either has the purpose of bringing it about or knows with substantial certainty that it will occur. Restatement (Third) of Torts § 1. That is the lesson of Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). Finding that when 5-year-old Brian Dailey had moved a lawn chair, he had not had the purpose of causing a woman to fall to the ground, the trial court entered judgment for the boy on the woman’s battery claim. But the Supreme Court of Washington, perhaps sensing that the defendant had tricked not only the plaintiff but also the trial judge, remanded the case for a finding of whether the boy had “kn[own] with substantial certainty” that the woman would fall—for if he had, then he would be liable for battery notwithstanding his lack of malevolent purpose.

Photograph: Judge Daniel Coble. Warrantless Blood Tests and Unconscious Drivers – What United States v. Mitchell Does (and Doesn’t) Say by Professor Jeffrey Jackson | September 10, 2019
On June 27, 2019, the last day of the term, the Supreme Court handed down its decision in Mitchell v. Wisconsin, __ U.S. ___, No. 18-6210 (June 27, 2019). The case, which addressed a blood draw conducted on an unconscious DUI suspect, was overshadowed by the two other cases handed down that day, one declaring partisan gerrymandering to be a nonjusticiable political question, and another continuing to block the addition of a citizenship question to the 2020 Census. Further, what coverage Mitchell received tended to be misleading, suggesting that the Court’s rule actually went further than it did. However, Mitchell, in which the Court, in a plurality opinion, determined that when a driver is unconscious, cannot be given a breath test, and is required to be taken to a hospital because of his or her condition, the exigent-circumstances doctrine generally permits a blood draw without a warrant, has the potential to be a useful case for law enforcement, prosecutors, defense attorneys and judges dealing with the very specific problem of a DUI suspect who is unconscious or otherwise unable to submit to a breath test.

Photograph: Judge Daniel Coble. Permissible Inference or Impermissible Burden Shift: How the Supreme Court Could Decide State v. Glover by Judge Daniel Coble | March 18, 2019
In Unreasonable Suspicion: Kansas’s Adoption of the Owner-as-Driver Rule, Benjamin Donovan gives a spot-on analysis of the Kansas Court of Appeal’s ruling in State v. Glover. Donovan makes an articulate and convincing examination of the issue he sees most glaring in this case: reasonable suspicion (or the lack thereof). However, I believe that this case hinges on something more important: burden shifting. And if the Supreme Court is to grant the state’s petition for certiorari, it will do so to address this fundamental issue.


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