The recent Senate confirmation hearings for the nomination of Solicitor General Elena Kagan to the Supreme Court was an affair several days in length packed with incisive political  questioning and rigorous discussion. For many viewers these hearings served as the first forum to become acquainted with the nominee set to fill the vacancy left by Supreme Court Justice John Paul Stevens.  Unlike many nominees, Kagan has not previously been a Judge, leaving many of her legal opinions open to the extensive questioning of the Senate. But few questions were as effective in shedding light on the strikingly radical direction of our current court, and the need for well tempered minds to fill the vacated benches, as that posed by Senator Sheldon Whitehouse (D-R.I.)

Senator Whitehouse accurately portrayed our present Supreme Court as a court driven by ideological partisans who render decisions along the slenderest of margins (5-4), who selectively apply judicial philosophy and who favor corporations to the detriment of individual Americans. The Supreme Court allowed wage discrimination, as long as it is successfully hidden from the employee (Ledbetter v. Goodyear). The court made it harder for victims of age discrimination to prove their case (Gross v. FBL Financial Services Inc.), provided new protections for defendants, usually corporations, from injured plaintiffs (Ashcroft v. Iqbal), and worst of all, created a constitutional right for private interests to funnel endless amounts of money into our democratic process creating greater possibilities for corruption, and greater corporate power over our government (Citizen’s United v. Federal Election Commission).

Most importantly, Senator Whitehouse addressed one of the most crucial and overlooked aspects of our government, one that must be safeguarded and preserved if our democracy is to remain vital: the Jury. The Jury Box remains the great equalizer and arm of democracy, even when the forces of society are in stalemate and the legislature is halted by lobbyists. Before a jury, powerful private interests are forced to stand toe to toe with ordinary Americans outside the shield of their monetary influence.  Needless to say, they don’t like it. Apparently the Five Man-Wing of our Supreme Court doesn’t either.

To illustrate this point, Whitehouse mentioned the recent Baker v. Exxon Valdez case which dealt with the now infamous oil spill of 1989. The court rejected the Jury’s 5 billion dollar award (only a year of profit for the world’s most profitable corporation) in punitive damages reducing it by 90 percent, stating that anything more than the compensatory damage award would be too “unpredictable” for private companies. This decision has given safe cover for continued and intentional disregard for safety measures by oil companies like BP that leave us Tampa Bay and Florida residents to deal with the current ecological and economical disaster brewing in the Gulf of Mexico.

The Supreme Court’s disdain for the individual has created a political and legal climate in direct opposition to the aims of our government and our Constitution. In this environment court appointments are crucial in turning the tide back in favor of equal representation and true judicial restraint.

In light of Elena Kagan’s recent approval from the Senate Judicial Committee and a final floor vote slated on August 2nd, we at PERENICH The Law Firm are hopeful that General Kagan will exercise the necessary prudence and legal wisdom to advance a philosophy of judicial review, free from partisan influence reflecting the best institutional traditions of the Supreme Court.

Modern civilizations have always recognized that storeowners have a duty to provide a safe environment to their customers. From the very beginning, Florida law has required business owners to be accountable when they do not provide safe premises for their customers. One of the most obvious safety infractions occur when walkways and floors are not free of debris or items that can create a hazard for tripping or slipping. In the law, these are known as transitory foreign substances. Transitory foreign substances are defined as any liquid or solid substance, item or object that does not belong on the floor surface of a business.

The failure to protect invitees or patrons from possible injury exposes the business owner to a legal liability and potential lawsuit.  Notwithstanding the recognized duties of the business owner, under Florida law an injured person was still required to prove that the business owner knew of the presence of the transitory foreign substance or should have known of its presence if it could be established that it was there for a sufficient time so as to create constructive knowledge. Additionally, the injured person had the duty to prove that ordinary maintenance could have prevented the condition and that the storeowner could reasonably foresee the likelihood of the occurrence of such substances on floors and walkways.

Yet in 2001 the Florida Supreme Court ruled in the case of Owens v. Publix Supermarkets, that the mere existence of such conditions would create a rebuttable presumption that the business owner failed to maintain the premises in a reasonably safe condition. This consumer friendly ruling recognized the unfairness of burdening a consumer with proving the owner’s knowledge, when the business owner was in a better position to offer evidence of the compliance with standards of maintenance. Thus the Court’s decision relieved plaintiffs of their burden of proof and instead shifted such responsibility to business owners. This clearly established that business owners were responsible for warning the invitee of concealed dangers that are unknown by the invitee and cannot be discovered by the exercise of due care.

The victory for consumers was ultimately superseded by a pro-business/anti-consumer legislature in 2002 with the passage of Florida Statute § 768.0710. This statute shifted the burden off of the business owner and back onto the injured person to prove that the business owner knew or should have known of the presence of the foreign substance. Over the past months Governor Crist and the state legislature have pushed to create an even more business friendly system leaving countless numbers of injured consumers at a great disadvantage.

As of this month, previous progress made in the protection of consumers has been virtually erased. The Supreme Court decision of 2001 has been completely disregarded by the legislature and the old advantages of business owner’s has been restored. In effect, the consumer is now burdened with having to prove, not just that he or she was injured because of the hazard, but that the business owner was in a position to know about its presence and prevent the injury. As such, the duty to provide a safe environment for consumers is conditional.  Today’s pro business environment fails to protect the injured person and allows for little or no accountability on the part of the business owner.

The Melissa Cook Foundation is a non-profit charitable organization dedicated to giving four year college scholarships to deserving individuals who otherwise would not have the means to go to college. The Melissa Cook Foundation was created to honor the memory of Melissa Cook who tragically died at a young age when scaffolding fell from the John Hancock building in Chicago. Melissa graduated from the University of Notre Dame, having attended on a softball scholarship. The Foundation keeps Melissa’s memory alive and perpetuates the legacy of her life that was focused on giving to others and participating on the field.

PERENICH The Law Firm is a proud supporter of the Melissa Cook Foundation. We encourage others to participate in supporting this worthy organization in any way possible.

The Foundation is currently holding a raffle with all proceeds going to the scholarship fund. The raffle is for press box seating to see the Notre Dame Fighting Irish host the Pitt Panthers on October 9, 2010. All travel and hotel accommodations are included in the prize. Please consider purchasing a raffle ticket for this worthy cause and a chance to see a great game of college football at the University of Notre Dame.

For further information about the Melissa Cook Foundation, visit http://melissacook.org.

Partners Greg and Tim Perenich stand in front of the new office building that Perenich Law will be moving to in the near future

Many haven’t heard yet, but we here at Perenich Law are undergoing an exciting process as our firm continues to grow. In order to serve you better, we have purchased new office space that not only gives us more room and even better equipment to handle cases, but it also is located on a prime strip of highway that will make us even more centralized in Pinellas County and therefore better suited to accommodate our clients from not only Clearwater, North Pinellas, Pasco and the Suncoast, but also St. Petersburg, South Pinellas, Tampa, and Hillsborough.

The new offices will be located right off US Highway 19 in Clearwater, between the Sunset Point overpass to the south and the stoplight at Enterprise Road a half of mile to the north. We will be only 3 miles away from State Highway 60 and the Courtney Campbell Causeway, and we are also expanding our office space from 3,000 square feet to 5,500 square feet! Having more office space will allow us to not only expand our practice but also bring in new equipment and resources to help us better serve our clients. As our move in date in December draws nearer, we will continue to update you on this exciting development!