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Appellate Highlights
Appellate Highlights Caveat – Any of the Court of Appeals cases listed may currently be on review pending reconsideration. Dinsmoor v. City of Phoenix and Deer Valley USD 1 CA-CV 19-0045 (6/30/20) A high school student shot and killed his classmate and then himself off campus. The classmate had previously reported threats to the school […]
ADA Protection for Children with Food Allergies and Negligent Serving
Anaphylaxis, the most common reaction to food allergies, can be serious and life-threatening. Anaphylaxis can cause a rapid onset of rashes, swelling of the face and throat, as well as serious neurological, cardiovascular, and respiratory problems. According the Center for Disease Control (CDC) 4 to 6 % of children under the age of 18 have a food allergy that can lead to anaphylaxis.
Children with a family history of asthma or allergies or a genetic predisposition for allergic disease are at greatest risk for food allergies. Young children, under the age of 3, are particularly vulnerable. The CDC believes that the rates of children diagnosed with food allergies appear to be on the rise.
The most common sources of food allergies include: dairy, eggs, fish, gluten, legumes such as peanuts, shellfish, soy, and tree nuts. A significant percentage, upwards of 18%, of children suffering from food allergies have allergic reactions to food given to them at school. However, now students may have legal protection under the Americans with Disabilities Act (ADA).
The ADA forbids schools and businesses open to the public from discriminating against individuals with disabilities. Earlier this year Lesley University, located in Massachusetts, settled a lawsuit brought by the US Department of Justice alleging that the school violated the ADA by failing to provide students suffering from food allergies accommodations in its meal plan system.
Protection by the ADA is fairly new approach to protecting students with food allergies. Additionally, schools also owe a legal duty of care to the children that attend. Negligently serving or failing to warn students of allergen contaminated food when the school is aware of a student’s allergy can lead to liability for the child’s medical complications and injuries. Food manufacturers who fail to warn of allergens may also be liable for selling products with defective warnings.
Source:
Mary Clare, Food service vulnerable to food allergy lawsuits, Usatoday.com (January 18, 2013).
Government Negligence to Toxic Metal Exposure Leads to Lead Poisoning Lawsuits
The fact that the Environmental Protection Agency has failed to revise its standards for lead exposure since 2001 is troubling. Since that time, numerous studies have uncovered new evidence that no amount of lead can exist in a child’s body safely. According to the report by the Center for Disease Control and Prevention’s Advisory Committee on Childhood Lead Poising Prevention, even blood lead levels less than 10 μg/dL can cause serious adverse health effects in children. These can include loss of cognitive abilities, as well as compromised immune and cardiovascular functioning. Nevertheless, the EPA has still not lowered the acceptable level of lead exposure.
Despite the failure to raise standards, parents and guardians of children harmed by lead poisoning may be able to bring lawsuits against the government for allowing heavy metals to be dumped in close proximity to children. In Myers v. U.S. 652 F.3d 1021 (2011), the Ninth Circuit Court of Appeals upheld a parent’s ability to sue the government for allowing hazardous waste such as thallium to be dumped in a landfill near a child’s home and school. The trial court had originally dismissed the case based on the government’s arguing that it could not be held liable for torts such as nuisance, negligence, or strict liability because it was acting within its discretionary powers as a sovereign. However, the Ninth Circuit reversed and allowed the claims to proceed because the government failed to follow its own protocol in hiring a certified industrial hygienist to review its remediation plan that involved moving the toxic material in the location that harmed the child.
Source: Alison Young, EPA fails to revise key lead-poisoning hazard standards, USA Today (March 10, 2013).
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The Arizona personal injury, accident, and insurance bad faith dispute lawyers at the Law Offices of Shane L. Harward PLC represent insurance, personal injury and accident victims throughout the state of Arizona (AZ) including, but not limited to, Phoenix, Scottsdale, Mesa, Tempe, Chandler, Glendale, Gilbert, Sun West, Sun City, Tucson, Flagstaff, Kingman, Bullhead City, Yuma, Lake Havasu, Fountain Hills, Anthem, Ahwatukee, Carefree, Cave Creek, Gold Canyon, Bisbee, Sierra Vista, Cochise, Paradise Valley, East Valley, Maricopa, Pima, Pinal, Gila, White Mountain, Heber, Payson, Prescott, Forest Lakes, Apache Junction, Avondale, Queen Creek, Benson, Black Canyon City, New River, Buckeye, Casa Grande, Coolidge, Cottonwood, Douglas, Florence, Gila Bend, Goodyear, Greer, Glendale, Lakeside, Guadalupe, Holbrook, Huachuca City, Oro Valley, Overgaard, Avra Valley, Parker, Peoria, Pinetop, Pine, Prescott Valley, Quartzite, Strawberry, Safford, Show Low, Sun City West, Sun Lakes, Superior, Surprise, Snowflake, Tombstone, Wickenburg, Winslow, Wilcox, Williams, Young, Youngtown, and surrounding areas.