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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. New York Court Reverses Judgment Based on Recent Gas Work
  2. Washington Court Affirms Arson Conviction
  3. Tenth Circuit Affirms Federal Arson Convictions


In Marcelino Colon v. H&B Plumbing, et al., Supreme Court of New York, Appellate Division, First Department, the court reviewed judgment for the defendants. Two of plaintiff's minor children died. The plaintiffs contended recent work on the gas system caused a leak resulting in the deaths. The contractor and gas system had successfully brought a motion ending the case. They had used the opinion of the Fire Marshall successfully who had said the fire was not caused by a gas leak.

The court reversed and allowed the case to go forward. The court noted the gas company had been to the premises less than a month before the incident. A gas leak was found and gas shut off. The plaintiff hired a plumber to fix the system. The gas company did not check the system. A day before the fire a gas smell was detected. The premises were inspected but the gas left on. The court found this evidence sufficient to proceed with discovery not withstanding the opinion of the fire department.


In State v. Russell, No. 23560-9-ll, the Court of Appeals of Washington, Division Two, reviewed the defendant's arson conviction. A neighbor saw him return to his former girlfriend's apartment. She heard a loud bang and saw him leave. A minute or two later she saw smoke from the apartment. The firefighters arrived and found the front door open and interior in flames.

The defendant was impeached at his trial with three unrelated convictions more than ten years old. He claimed that was error. The court agreed but did not reverse his convictions. It held "that this evidence is virtually airtight, and that with or without Russell's prior convictions, any jury would have rejected his claim that he was taking a 30 minute shower at the crucial time." The court did reverse for a new hearing on his sentence only.


In U.S. v. Grassie, No. 99-2281, the Tenth Circuit Court of Appeals reviewed a challenge to federal arson convictions for burning churches and a truck. The defendant focused his attack on the allegation interstate commerce was not adequately implicated. The court disagreed.

The truck had been seasonally used on an annual basis to transport pecans. Those were sold to a broker in interstate commerce. The proceeds were then passed back to the truck owner from the out-of-state buyer. The court noted the nexus between the vehicle use and interstate commerce cannot be too remote. It stated "The duration and continuity, over a period of years, of this commercial use of Jensen's truck, overcomes the fact that the use was largely seasonal. The convictions were affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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