The standard (and applicable implementation specifications) specified in §170.205(g).
At a minimum, the versions of the standards specified in §170.207(a)(3) and (c)(2).
§ 170.207(c)(2) Logical Observation Identifiers Names and Codes (LOINC®) Database version 2.40, Released July 2012, a universal code system for identifying laboratory and clinical observations produced by the Regenstrief Institute, Inc.
The tester verifies that the Health IT Module creates the source Reportable Lab content correctly and without omission through visual inspection of the system under test using the test data specification associated with the selected test case.
The tester imports the ELR message into the test tool for validation and uses the Validation Report produced by the NIST Electronic Laboratory Reporting (ELR) Test Suite to verify the Health IT module passes without error to confirm that the reportable laboratory tests and values/results message is conformant to the § 170.205(g) HL7 Version 2.5.1 Implementation Guide: Electronic Laboratory Reporting to Public Health, Release 1 and the ELR 2.5.1 Clarification Document for EHR Technology Certification.
The reportable laboratory tests and values/results used in the messages created in (f)(3)(i), use, at a minimum, the versions of the standards specified in the named § 170.207(a)(3) SNOMED CT® standard and the named § 170.207(c)(2) LOINC® standard.
Using the Normative Test Description section of the Normative Test Process Document, the tester uses the Test Tool Validation Report from (f)(3)(i) test cases and visual inspection of both the Test Tool Validation Report and the Health IT configuration file to verify laboratory tests and values/results are represented using the named § 170.207(a)(3) standard and the named § 170.207(c)(2) standard.
Revised to indicate this certification criterion is in scope for the CEHRT definition.
Added hyperlinks for the test tool/data, NIST Normative Test Process Document, and 2015 MU Specification Sheet.
Privacy and Security: This certification criterion was adopted at § 170.315(f)(3). As a result, an ONC-ACB must ensure that a product presented for certification to a § 170.315(f) “paragraph (f)” criterion includes the privacy and security criteria (adopted in § 170.315(d)) within the overall scope of the certificate issued to the product.
The privacy and security criteria (adopted in § 170.315(d)) do not need to be explicitly tested with this specific paragraph (f) criterion unless it is the only criterion for which certification is requested.
As a general rule, a product presented for certification only needs to be tested once to each applicable privacy and security criterion (adopted in § 170.315(d)) so long as the health IT developer attests that such privacy and security capabilities apply to the full scope of capabilities included in the requested certification.
However, exceptions exist for § 170.315(e)(1) “VDT” and (e)(2) “secure messaging,” which are explicitly stated.
When a single accessibility-centered design standard is used, the standard only needs to be identified once. Otherwise, the accessibility- centered design standards need to be identified for every capability to which they were applied; or, alternatively the developer must state that no accessibility-centered design was used.
For the public health certification criteria in § 170.315(f), health IT will only need to be certified to those criteria that are required to meet the measures the provider intends to report on to meet Objective 8: Public Health and Clinical Data Registry Reporting.
This certification criterion is intended for technology used in the inpatient (including emergency departments) setting.
The NIST Electronic Laboratory Reporting (ELR) Test Tool tests conformance to the requirements in HL7 Version 2.5.1 Implementation Guide (IG): Electronic Laboratory Reporting to Public Health, Release 1 with Errata and Clarifications, and ELR 2.5.1 Clarification Document for EHR Technology Certification. In the Implementation Guide, RE means “Required, but may be empty” and is not an optional requirement. That is, an RE element is required to be implemented in the EHR technology, but operationally the data may or may not be present (depending on business rules and data availability). The Alternate and non-Alternate data elements have been specified as RE in the IG to ensure the technology can support (receive, process, store, send, etc.) both types (whether or not a particular installation site utilizes/needs this capability is irrelevant for certification testing, which is focused on making sure that buyers of certified EHR technology have the capability). Any Text for Patients and Provider are also RE, and therefore not optional for certification. With regard to repeatable fields, Patient Name (PID.5) can have unlimited repeated instances, and the IG indicates that supporting repeatable fields is a requirement. To support this requirement, the ELR Test Tool and Test Data ensure certified technology can support a minimum of two instances of PID.5.
Technical outcome – The Health IT Module can electronically create reportable laboratory tests and values/results messages which can be transmitted to public health agencies according to the HL7 2.5.1 standard, HL7 Version 2.5.1 Implementation Guide for Electronic Laboratory Reporting to Public Health, Release 1 with Errata and Clarifications, and ELR 2.5.1 Clarification Document for EHR Technology Certification.
Technical outcome – The Health IT can represent data in the reportable laboratory test message using, at a minimum, the July 31, 2012 International Release of SNOMED CT® with the March 2012 Release of the US Extension to SNOMED CT® and Version 2.40 of LOINC®.


The two imperatives underscore the immediacy of the demand: "go, go up," meaning "get going up" or "be on your way."
Or "the land which I swore."
This seems not to be the same as the Angel of the Presence introduced before.
See T. Ishida, "The Structure and Historical Implications of Lists of Pre-Israelite Nations," Bib (1979): 461-90.
This verse seems to be a continuation of the command to "go up" since it begins with "to a land…." The intervening clauses are therefore parenthetical or relative. But the translation is made simpler by supplying the verb.
This is a strong adversative here, "but."
The clause is "lest I consume you." It would go with the decision not to accompany them: "I will not go up with you…lest I consume (destroy) you in the way." The verse is saying that because of the people’s bent to rebellion, Yahweh would not remain in their midst as he had formerly said he would do. Their lives would be at risk if he did.
Or "bad news" (NAB, NCV).
The people would rather have risked divine discipline than to go without Yahweh in their midst. So they mourned, and they took off the ornaments. Such had been used in making the golden calf, and so because of their association with all of that they were to be removed as a sign of remorse.
The verse simply begins "And Yahweh said." But it is clearly meant to be explanatory for the preceding action of the people.
The construction is formed with a simple imperfect in the first half and a perfect tense with vav (ו) in the second half. "[in] one moment I will go up in your midst and I will destroy you." The verse is certainly not intended to say that Yahweh was about to destroy them. That, plus the fact that he has announced he will not go in their midst, leads most commentators to take this as a conditional clause: "If I were to do such and such, then…."
The Hebrew text also has "from on you."
The form is the cohortative with a vav (ו) following the imperative; it therefore expresses the purpose or result: "strip off…that I may know." The call to remove the ornaments must have been perceived as a call to show true repentance for what had happened. If they repented, then Yahweh would know how to deal with them.
This last clause begins with the interrogative "what," but it is used here as an indirect interrogative. It introduces a noun clause, the object of the verb "know."
This unit of the book could actually include all of chap. 33, starting with the point of the Yahweh’s withdrawal from the people. If that section is not part of the exposition, it would have to be explained as the background. The point is that sinfulness prevents the active presence of the Yahweh leading his people. But then the rest of chap. 33 forms the development. In vv. 7–11 there is the gracious provision: Yahweh reveals through his faithful mediator. Yahweh was leading his people, but now more remotely because of their sin. Then, in vv. 12–17 Moses intercedes for the people, and the intercession of the mediator guarantees the Yahweh’s presence. The point of all of this is that Yahweh wanted the people to come to know that if he was not with them they should not go. Finally, the presence of the Yahweh is verified to the mediator by a special revelation (18–23). The point of the whole chapter is that by his grace the Yahweh renews the promise of his presence by special revelation.
A widespread contemporary view is that this section represents a source that thought the tent of meeting was already erected (see S. R. Driver, Exodus, 359). But the better view is that this is a temporary tent used for meeting the Yahweh. U. Cassuto explains this view very well (Exodus, 429–30), namely, that because the building of the tabernacle was now in doubt if the Yahweh was not going to be in their midst, another plan seemed necessary. Moses took this tent, his tent, and put some distance between the camp and it. Here he would use the tent as the place to meet Yahweh, calling it by the same name since it was a surrogate tent. Thus, the entire section was a temporary means of meeting Yahweh, until the current wrath was past.
The infinitive absolute is used here as an adverb (see GKC 341 §113.h).
The clause begins with "and it was," the perfect tense with the vav conjunction. The imperfect tenses in this section are customary, describing what used to happen (others describe the verbs as frequentative). See GKC 315 §107.e.
The form is the Piel participle. The seeking here would indicate seeking an oracle from Yahweh or seeking to find a resolution for some difficulty (as in 2 Sam 21:1LEB) or even perhaps coming with a sacrifice. B. Jacob notes that the tent was even here a place of prayer, for the benefit of the people (Exodus, 961). It is not known how long this location was used.
The clause is introduced again with "and it was." The perfect tense here with the vav (ו) is used to continue the sequence of actions that were done repeatedly in the past (see GKC 331-32 §112.e). The temporal clause is then formed with the infinitive construct of יָצָא (yatsa’), with "Moses" as the subjective genitive: "and it was according to the going out of Moses."
The subject of this verb is specified with the individualizing use of "man": "and all Israel would station themselves, each person (man) at the entrance to his tent."
The perfect tense with the vav (ו) continues the sequence of the customary imperfect. The people "would gaze" (after) Moses until he entered the tent.
This is a temporal clause using an infinitive construct with a suffixed subject.
Both verbs, "stand" and "speak," are perfect tenses with vav (ו) consecutive.
All the main verbs in this verse are perfect tenses continuing the customary sequence (see GKC 337 §112.kk). The idea is that the people would get up (rise) when the cloud was there and then worship, meaning in part bow down. When the cloud was not there, there was access to seek Yahweh.
"Face to face" is circumstantial to the action of the verb, explaining how they spoke (see GKC 489-90 §156.c). The point of this note of friendly relationship with Moses is that Moses was "at home" in this tent speaking with Yahweh. Moses would derive courage from this when he interceded for the people (B. Jacob, Exodus, 966).
The verb in this clause is a progressive imperfect.
Moses did not live in the tent. But Joshua remained there most of the time to guard the tent, it seems, lest any of the people approach it out of curiosity.
The Hiphil imperative is from the same verb that has been used before for bringing the people up from Egypt and leading them to Canaan.
The prayer uses the Hiphil imperative of the verb "to know." "Cause me to know" is "show me, reveal to me, teach or inform me." Moses wanted to know more of Yahweh’s dealings with people, especially after all that has happened in the preceding chapter.
The imperfect tense of the verb "to know" with the vav follows the imperative of this root, and so this indicates the purpose clause (final imperfect): "in order that I may know you." S. R. Driver summarizes it this way: that I may understand what your nature and character is, and shape my petitions accordingly, so that I may find grace in your sight, and my future prayers may be answered (Exodus, 361).
The purpose clause simply uses the imperfect, "that I may find." But since he already has found favor in Yahweh’s eyes, he is clearly praying that it be so in the future as well as now.
The verb "see" (an imperative) is a request for Yahweh to acknowledge Israel as his people by providing the divine leadership needed. So his main appeal will be for the people and not himself. To underscore this, he repeats "see" the way the section opened.
"and he said"; the referent (Yahweh) has been specified in the translation for clarity.
"my face." This represents the presence of Yahweh going with the people (see 2 Sam 17:11LEB for an illustration). The "presence" probably refers to the angel of the presence or some similar manifestation of Yahweh’s leading and caring for his people.
The phrase "with you" is not in the Hebrew text, but is implied.
The expression certainly refers to the peace of mind and security of knowing that Yahweh was with them. But the expression came to mean "settle them in the land of promise" and give them rest and peace from their enemies. U. Cassuto (Exodus, 434) observes how in Exodus 32:10LEB Yahweh had told Moses, "Leave me alone" ("give me rest"), but now he promises to give them rest. The parallelism underscores the great transition through intercession.
The construction uses the active participle to stress the continual going of the presence: if there is not your face going.
"with us" has been supplied.
See W. Brueggemann, "The Crisis and Promise of Presence in Israel," HBT 1 (1979): 47-86; and N. M. Waldman, "Yahweh’s Ways – A Comparative Note," JQR 70 (1979): 67-70.
The verb in this place is a preterite with the vav (ו) consecutive, judging from the pointing. It then follows in sequence the verb "you have found favor," meaning you stand in that favor, and so it means "I have known you" and still do (equal to the present perfect). The emphasis, however, is on the results of the action, and so "I know you."
Moses now wanted to see the glory of Yahweh, more than what he had already seen and experienced. He wanted to see Yahweh in all his majesty. The LXX chose to translate this without a word for "glory" or "honor"; instead they used the pronoun seautou, "yourself" – show me the real You. Yahweh tells him that he cannot see it fully, but in part. It will be enough for Moses to disclose to him the reality of the divine presence as well as Yahweh’s moral nature. It would be impossible for Moses to comprehend all of the nature of Yahweh, for there is a boundary between Yahweh and man. But Yahweh would let him see his goodness, the sum of his nature, pass by in a flash. B. Jacob (Exodus, 972) says that the glory refers to Yahweh’s majesty, might, and glory, as manifested in nature, in his providence, his laws, and his judgments. He adds that this glory should and would be made visible to man – that was its purpose in the world.
The word "goodness" refers to the divine appearance in summary fashion.
The expression "make proclamation in the name of Yahweh" (here a perfect tense with vav [ו] consecutive for future) means to declare, reveal, or otherwise make proclamation of who Yahweh is. The "name of Yahweh" (rendered "the name of the Lord" throughout) refers to his divine attributes revealed to his people, either in word or deed. What will be focused on first will be his grace and compassion.
Yahweh declares his mercy and grace in similar terms to his earlier self-revelation ("I am that I am"): "I will be gracious to whom I will be gracious." In other words, the grace and mercy of Yahweh are bound up in his own will. Obviously, in this passage the recipients of that favor are the penitent Israelites who were forgiven through Moses’ intercession. The two words are at the heart of Yahweh’s dealings with people. The first is חָנַן (khanan, "to be gracious, show favor"). It means to grant favor or grace to someone, grace meaning unmerited favor. All of Yahweh’s dealings are gracious, but especially in forgiving sins and granting salvation it is critical. Parallel to this is רָחַם (rakham), a word that means "show compassion, tender mercy." It is a word that is related to the noun "womb," the connection being in providing care and protection for that which is helpless and dependent – a motherly quality. In both of these constructions the verbs simply express what Yahweh will do, without explaining why. See further, J. R. Lundbom, "Yahweh’s Use of the Idem per idem to Terminate Debate," HTR 71 (1978): 193-201; and J. Piper, "Prolegomena to Understanding Romans 9:14–15LEB: An Interpretation of Exodus 33:19LEB, " JETS 22 (1979): 203-16.
In view of the use of the verb "can, be able to" in the first clause, this imperfect tense is given a potential nuance.
Gesenius notes that sometimes a negative statement takes the place of a conditional clause; here it is equal to "if a man sees me he does not live" (GKC 498 §159.gg). The other passages that teach this are Gen 32:30LEB; Deut 4:33LEB, Exodus 5:24-26LEB; Judg 6:22LEB, Exodus 13:22LEB, and Isa 6:5LEB.
The deictic particle is used here simply to call attention to a place of Yahweh’s knowing and choosing.
"and you will," or interpretively, "where you will."
Note the use in Exod 40:3LEB, "and you will screen the ark with the curtain." The glory is covered, veiled from being seen.
The circumstantial clause is simply, "my hand [being] over you." This protecting hand of Yahweh represents a fairly common theme in the Bible.
The construction has a preposition with an infinitive construct and a suffix: "while [or until] I pass by" ("in the passing by of me").
The plural "my backs" is according to Gesenius an extension plural (compare "face," a dual in Hebrew). The word denotes a locality in general, but that is composed of numerous parts (see GKC 397 §124.b). W. C. Kaiser says that since Yahweh is a spirit, the meaning of this word could just as easily be rendered "after effects" of his presence ("Exodus," EBC 2:484). As S. R. Driver says, though, while this may indicate just the "afterglow" that he leaves behind him, it was enough to suggest what the full brilliancy of his presence must be (Exodus, 363; see also Job 26:14LEB).
The Niphal imperfect could simply be rendered "will not be seen," but given the emphasis of the preceding verses, it is more binding than that, and so a negated obligatory imperfect fits better: "it must not be seen." It would also be possible to render it with a potential imperfect tense: "it cannot be seen."


text:
A few weeks ago we looked at this same verse and examined what it meant to be “assigned an area of influence by God.” (v.13) We looked at how each of us has an area of influence, and how our job is to help increase the faith of those we influence.
But what does it mean to “increase someone’s faith?” How do we know what we’re looking for in the lives of those whom we disciple?
For this reason I bow my knees before the Father, 15 from whom every family in heaven and on earth is named, 16 that according to the riches of his glory he may grant you 1)to be strengthened with power through his Spirit in your inner being, 17 so that Christ may dwell in your hearts through faith—that you, being 2)rooted and grounded in love, 18 may have 3)strength to comprehend with all the saints what is the breadth and length and height and depth,19 and to know the love of Christ that surpasses knowledge, that you may be 4)filled with all the fullness of God.
But Paul does not leave it at that. He does not just pray for the people he disciples and leave the rest to God. He realizes that there is a responsibility that one has towards those he disciples in order to increase their faith. Therefore, he spends the entire chapter outlining for us how he, as an apostle of the Lord Jesus Christ, went about this task. The prayer quoted above is only a piece of what he did. But as you can see in the table below, the discipler increases his disciples’ faith through much, much more than merely bowing before God for the people in his area of influence. He takes an active role in their faith journey, both when he is with them and when he is away.
Here is an outline of chapter 3 to help us understand how to apply these same efforts for the people we influence.
v.1 – For this reason I, Paul, a prisoner of Christ Jesus on behalf of you Gentiles Know that when you invest your life in increasing the faith of others, your sufferings will no longer be about you alone but will also be on behalf of those you are influencing. Therefore, you must remember your disciples, encouraging them and enduring your suffering on their behalf.
v. 4-5 – When you read this, you can perceive my insight into the mystery of Christ, 5 which was not made known to the sons of men in other generations as it has now been revealed to his holy apostles and prophets by the Spirit. Let others perceive your insight into the mystery of Christ as you teach to them the truth.
Rely only on God for revelation into this mystery. Your talent or intellect or abilities are nothing when used in the service of yourself. But when you use them in the service of God, others can see Him and understand the truth as He defines it.
v. 7 – Of this gospel I was made a minister according to the gift of God’s grace, which was given me by the working of his power. Keep this idea foremost in your mind: you are a minister to this person/these people according to the gift of God’s grace and that this was given you by the working of His power. You did not conjure this up on your own. And you do not sustain it on your own. It is all of God, from God, and for God.
v. 8a – To me, though I am the very least of all the saints, Be humble — view yourself as the least of the saints.
v. 11-13 – This was according to the eternal purpose that he has realized in Christ Jesus our Lord, 12 in whom we have boldness and access with confidence through our faith in him. 13 So I ask you not to lose heart over what I am suffering for you, which is your glory. Receive the boldness you have in Christ and access Him with the confidence you have through faith in Him.
v. 14-17a – For this reason I bow my knees before the Father, 15 from whom every family[c] in heaven and on earth is named, 16 that according to the riches of his glory he may grant you to be strengthened with power through his Spirit in your inner being, 17 so that Christ may dwell in your hearts through faith Pray diligently to God that He may strengthen your disciples with power through His Spirit in your inner being according to the riches of his glory SO THAT Christ may dwell in their hearts through faith.
v. 17b-19 – that you, being rooted and grounded in love, 18 may have strength to comprehend with all the saints what is the breadth and length and height and depth, 19 and to know the love of Christ that surpasses knowledge, that you may be filled with all the fullness of God. Pray that they will be 1) rooted and grounded in love, 2) have strength to comprehend the breadth and length and height and depth of this love, and 3) to know that the love of Christ surpasses knowledge, i.e. that they may be filled with the fullness of God. Do not pray for only one of these characteristics. Pray for all of these things. For without all of them in your disciples, your disciples lack the fullness of God and will make poor ambassadors for Christ to the world and to those whom they eventually disciple as well.
v. 20-21 – Now to him who is able to do far more abundantly than all that we ask or think, according to the power at work within us, 21 to him be glory in the church and in Christ Jesus throughout all generations, forever and ever. Amen. Pray that God’s incomprehensible purposes will be accomplished according to the power at work within your disciples FOR THE GLORY OF GOD.
I was excited and intrigued the other day when you sent me a text message that stated you were feeling God’s call to be a theologian. I think this is exciting and wonderful and a glorious thing and would love to talk to you more about it in detail. But first I have some preliminary things I want to say.
First, please be aware that we are all theologians. From the most strident atheist to the most devout moralist to the most humble evangelist, all of us humans participate in the study and analysis of God, His attributes, and His relationship with the universe.
The atheist does this through denial. He examines the evidence to the best of his ability, analyzes God, the premises established regarding God’s character, and how God is to relate to the universe (particularly on an individual level), and he denies the existence of a supreme being. For him, something else is more valuable in this universe than any proposed god, particularly a Christian one. For some that is the universe itself. For some it is science. For others it is hedonism. But whatever it is that they decide to attribute supreme value to, then that thing becomes the object of their study and analysis and the defining framework for their lives. In other words, it becomes their god.
The moralist is only slightly different. Like the atheist, moralists have examined the evidence and done some analysis as well but they have concluded that there is a supreme being; however, they may or may not agree that this god is the Christian god. The moralist’s approach this supreme being, though, through the lens of works, not denial. They believe that it is the accumulation of good deeds that gains the favor of the supreme being, so they spend the majority of their lives performing good works in an attempt to outweigh all the bad that they have also done. Moralists, it must be pointed out, can be avid students (or followers) of other religions or they can be non-religious altogether. It doesn’t really matter, because their god is not the supreme being that they acknowledge. It is themselves and the good works that they can accomplish. And they spend their lives organizing their lives around this central ideal.
The last category of theologian, I would argue, is the Christian. This is the most difficult position to maintain, not because there is no evidence to support their position but because they are called to do everything in their lives in such a way as to make Christ appear more valuable than anything else. Christians are called to live their lives defiantly. To organize their lives around the central principle of “whether through my life or through my death, I will endeavor to display Christ as not only supremely valuable to me but to also make His value and His perfections publicly seen and experienced so clearly through ALL that I do, that He is recognized as supremely valuable over all.” (Php. 1:20-21; 1 Cor. 10:31) Such a calling is both convicting and conforming at the same time. For as we seek through our lives to make others see and experience the supreme value, worth, and desirability of God, we find ourselves constantly being challenged to release the selfish ambitions of moralism and the intellectual conceit of atheism so that we may, in humility, put on the mind of Christ and conform more and more to His image (Php. 2:3-8).
Therefore, my dear friend, I would ask you to please consider what you mean when you say, “God is calling me to be a theologian.” If you imagine a theologian to be a deep thinker about God or a seminarian or even a pastor/priest of some kind, that’s all well and good, but please do not fall into the trap of being so intellectually or morally invested in Christianity that you fail to actually apply or live out the truth of the Gospel among the lost. Good theologians are not only good students or good citizens. They are people of defiant faith. The ones who stand up against the tide of a post-truth culture and create a fixed reference point for all those seeking land in a fluid-truth society.
Good theologians are not ashamed. They are full of courage so that Christ is always honored in their body, whether by life or by death (Php. 1:20). They hear the edict, know the consequences of honoring God, and say, “I am trusting in God, and regardless of whether I die or not, I will only worship and serve Him.” (Daniel 3:17-18) Such faith can be found throughout both the Old and New Testaments as well as in modern examples, such as Dietrich Bonhoeffer, who faced down the Nazi regime and its horrible atrocities with a steely will and the Word of God.
God may be calling you to learn more. He may be calling to live better. But please, be the theologian who also “plays the man,” (2 Sa. 10:12) facing down the evil within this world, and making the value and the glory of God shine brightly within the encroaching darkness, whether it be by your life or your death.

matches: v. v. v. v. v. v. v.


Party Name: Julie M. WINCHESTER, Plaintiff-Appellant, v. PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellee, and Life Insurance Company of North America, Defendant.
Life Insurance Company of North America, Defendant.
John R. Anderson of Beaslin & Anderson, Vernal, Utah, for plaintiff-appellant.
Peter W. Billings, Jr., and Craig T. Jacobsen of Fabian and Clendenin, Salt Lake City, Utah, for defendant-appellee.
In this appeal, we address whether an insurance company providing a group accidental death and dismemberment insurance policy to an ERISA plan permissibly denied coverage to a plan participant who died of heart failure following a firefighting training exercise. To answer this question, we must consider (1) the standard under which we must review the insurance company's actions, (2) the sweep of ERISA's preemption section, and (3) the construction the Utah courts place upon certain terms in the insurance policy.
We hold that the district court correctly granted summary judgment in favor of the insurance company based on three grounds. First, under Utah law, heart failure alone does not constitute "bodily injury" within the meaning of an accidental death insurance policy. Second, to the extent that Utah law is ambiguous, we must defer to the plan administrator's interpretation of the policy terms unless it is arbitrary and capricious. Third, the appellant did not meet her burden on summary judgment of showing adequate evidence that death resulted independent of a preexisting bodily infirmity or illness so as to establish that as a genuine disputed issue of fact. Accordingly, we affirm.
Julie Winchester, the appellant, is the widow of William Winchester. Prior to his death, Mr. Winchester worked as a plant operator at an electrical power plant. He died of an apparent heart attack following a firefighting training exercise at the plant.
Mr. Winchester participated in an employee benefit plan sponsored by the National Rural Electric Cooperative Association and governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. The plan extended coverage to participants in a group insurance policy issued by Prudential Insurance Company ("Prudential"), the appellee. Prudential also served as administrator of the plan with regard to benefits provided under the policy. These benefits included term life insurance and accidental death and dismemberment insurance.
Because of the lack of a nearby firefighting facility, the job duties of plant operator included fighting fires that occurred at the power plant. On the day of his death, Mr. Winchester participated in a firefighting training exercise. He and the other operators ran through one twelve-minute drill in which they were unable to extinguish the fire. They then took a half-hour break, after which they engaged in a second drill. They successfully extinguished this second fire in seven minutes. During both drills, all the participants wore fireproof rubber suits.
Mr. Winchester collapsed shortly after the second drill. He was pronounced dead at the hospital. Mr. Winchester apparently suffered heart failure, but the cause of the heart failure was undetermined. No autopsy was performed.
Mrs. Winchester filed claims for both life insurance and accidental death insurance benefits. Prudential paid the former but denied the latter on the grounds that Mr. Winchester's death did not come within the terms of the policy for accidental death. Specifically, the policy conditioned accidental death coverage on "[t]he [e]mployee [having] sustained an accidental bodily injury,"
and "[t]he injury, directly and independently of all other causes, [having] resulted in the loss." Prudential contended that Mr. Winchester's death had not met these conditions.
After Prudential's refusal to pay accidental death benefits, Mrs. Winchester brought suit in Utah state court. Prudential then removed the case to the United States District Court for the District of Utah based on diversity jurisdiction. Although not styled as such, this case arises under 29 U.S.C. § 1132, which provides the exclusive remedy for the failure to obtain benefits from an ERISA plan. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 1556, 95 L.Ed.2d 39 (1987); cf. Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1439 (9th Cir.1990) (district court required plaintiff to file amended complaint restating cause of action as an ERISA claim following removal to federal court).
Prudential moved for summary judgment. The district court granted Prudential's motion based on several theories. It held first that "bodily injury" required injury caused by external violence such as a cut, bruise, or wound, and Mrs. Winchester had put forth no evidence of such injuries. Second, Mrs. Winchester set forth no facts to show that the death was "accidental" within the meaning of the policies. This appeal followed. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291.
The district court implicitly reviewed Prudential's actions de novo. Prudential asserts that the court should have reviewed its decision to deny benefits under the arbitrary and capricious standard.
Courts must review an ERISA administrator's actions de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan," Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989), in which case review is under the arbitrary and capricious standard. See Sandoval v. Aetna Life and Casualty Ins. Co., 967 F.2d 377, 380 (10th Cir.1992). The key, then, lies in determining whether a plan provides an administrator with such discretion. Here, the plan summary stated that "Prudential, as Claim Administrator, determines the benefits for which an individual qualifies under the Benefit Plan" and that "the insurance company has the exclusive right to interpret the provisions of the Plan, [and] its decision is conclusive and binding." R., Doc. 42.


In Lexmark Int’l, Inc. v. Impression Prods., Inc., 16 F.3d 721 (Fed. Cir. 2016) (en banc), the Federal Circuit was asked to determine the applicability of the doctrine of patent exhaustion in two contexts. First, the court was asked to determine whether the sale of a patented article to end users under a restriction that is otherwise lawful and within the scope of a patent grant nonetheless gives rise to patent exhaustion. The court held that a patentee may reserve its patent rights by selling a patented article under otherwise-proper restrictions on resale and reuse that are properly communicated. Second, the court was asked to determine whether a sale of a patented item outside the United States gives rise to patent exhaustion for a U.S. patent. The court held that the doctrine of patent exhaustion is not triggered by a foreign sale of a U.S.-patented article.
A patent gives the patentee the right to exclude others from engaging in certain acts–whoever “without authority” “makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention” infringes that patent. 35 U.S.C. § 271(a). The patentee may, however, grant authority to another to engage in one or more of the enumerated acts, such that an otherwise infringing action is non-infringing. The court notes that each of the enumerated acts is joined by the disjunctive “or,” such that the patentee may grant “authority” to engage in as few or as many of the enumerated acts as the patentee wishes.
Lexmark sued Impression for importing and selling printer cartridges covered by a number of Lexmark patents. Lexmark offers its buyers a choice when purchasing printer cartridges. A buyer may purchase a “Regular cartridge” at full price, or a buyer may purchase a “Return Program cartridge” at a discount. Sales of the Regular cartridges were subject to no restriction on reuse or resale of the printer cartridges. The Return Program cartridges were subject to a “single-use/no-resale restriction,” however. Under the single-use/no-resale restriction “the buyer may not reuse the Return Program cartridge after the toner runs out and may not transfer it to anyone but Lexmark once it is used.” Third parties gathered spent Return Program cartridges, replaced protective features that prevented the cartridges from being reused, refilled the cartridges, and sold the cartridges to resellers, such as Impression, for sale to consumers to use with Lexmark printers.
Lexmark alleged infringement for two groups of cartridges: (1) Return Program cartridges that Lexmark sold in the United States under the single-use/no-resale restriction; (2) all cartridges sold abroad by Lexmark, including both Regular and Return Program cartridges. It was undisputed that the patents covering the cartridges were valid and enforceable, that both the first purchaser and Impression had adequate notice of the single-use/no-resale restriction, and that the restriction did not violate antitrust law or exceed the scope of the exclusive rights granted by the Patent Act. Impression instead argued that Lexmark had exhausted its U.S. patent rights by its initial sale of the cartridges, regardless of the existence of any restriction and the location of the sale.
Impression filed a motion to dismiss Lexmark’s claims in the district court. First, the district court granted Impression’s motion to dismiss the claims involving the Return Program cartridges first sold in the United States. In finding for Impression on the issue of domestic sales, the district court distinguished articles manufactured and sold by a patentee from articles made and sold by a licensee. Second, the district court ruled against Impression regarding Impression’s argument that patent exhaustion applied to cartridges initially sold abroad. As such, an initial, authorized foreign sale does not exhaust the patentee’s United States patent rights. The Federal Circuit reversed the district court’s ruling regarding the domestically-sold Return Program cartridges. The Federal Circuit affirmed the district court’s ruling regarding foreign sales of both the Regular cartridges and Return Program cartridges.
Patent exhaustion is a doctrine whereby a patentee confers authority to a purchaser to take certain actions, such as selling or using the purchased product in the United States, which action would be infringing without the authority from the patentee. Under the doctrine of patent exhaustion, an unconditional sale “exhausts” the patentee’s right to control the purchaser’s use of the patented device. In such an instance, the patentee’s rights in the patent are “exhausted” by the sale such that the purchaser may use or sell the purchased device without infringing the patent. The patentee may preserve certain rights by communicating a lawful restriction as to post-sale use or resale, however, and such a communication does not confer “authority” to engage in the activity precluded by the communication. So long as the restriction does not violate some other law or policy, such as antitrust law or engaging in patent misuse, then restrictions on the use of patented goods are allowable.
The Federal Circuit was asked to address two questions related to the doctrine of patent exhaustion. First, does the doctrine of patent exhaustion apply to the domestic sale of a product by the patentee, even where an otherwise-lawful restriction has been clearly communicated? Second, does a foreign sale of a U.S.-patented article trigger the doctrine of patent exhaustion?
In addressing the first question, the court reaffirmed the principles of Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992). The court noted that Supreme Court precedent clearly leads to the conclusion that a patentee does not exhaust its patent rights upon a first sale where a buyer with knowledge of the restrictions resells or reuses the product in violation of the restrictions. The court was urged to distinguish between patentee sales and licensee sales. The argument behind the distinction was that “any sale of a patented article by a patentee, even when the rights granted are expressly restricted, is automatically an ‘authorized sale,’ causing the patentee to lose all § 271 rights in the item sold.” As such, the argument goes that because Lexmark is both the patentee and the seller, Lexmark has necessarily authorized the sale, thereby exhausting its patent rights regardless of any express restrictions. The court rejected the invitation to draw a distinction between patentee sales and licensee sales, however.
The Federal Circuit reaffirmed the principles of Mallinckrodt and overturned the district court’s ruling as to Return Program cartridges first sold in the United States. In Mallinckrodt, a patentee sold a medical device subject to a single-use restriction. Some purchasers sent used devices to Medipart for refurbishing and Mallinckrodt sued Mediprt for infringement due to the reuse in violation of the single-use restriction. The Federal Circuit found that a sale subject to a lawful, clearly communicated single-use/no-resale restriction does not give rise to patent exhaustion such that buyers, or downstream buyers, have the reuse/resale authority that was expressly denied previously.
The district court had relied on Quanta Computer, Inc. v. LG Electronics, Inc., 552 U.S. 617 (2008), as implicitly overturning Mallinckrodt as to a patentee’s sale of a patented article subject to a lawful single-use/no-resale condition. Quanta involved sales made to a manufacturer by a manufacturing licensee, not a patentee. The patentee had authorized the manufacturing licensee to make and sell the articles at issue, and the authorization was not subject to any conditions. The Federal Circuit distinguished Quanta by noting that Quanta involved no patentee sales and there were no restrictions on the sales made by the licensee. The manufacturer in Quanta raised the argument that patentees may preserve patent rights through lawful restrictions. The Court in Quanta responded to the manufacturer’s argument by concluding that there were no restrictions placed on the first sale of the articles, not that there was any meaningful distinction between patentees and licensees for purposes of patent exhaustion. The Federal Circuit thus concluded that the principles of Mallinckrodt remain after Quanta, such that a patentee may place lawful restrictions on the sales of patented articles regardless of whether the articles are made or sold by the patentee or a licensee.
The Federal Circuit concluded that the principle of Mallinckrodt remains good law. As such, “a patentee may preserve its § 271 rights when itself selling a patented article, through clearly communicated, otherwise-lawful restrictions, as it may do when contracting out the manufacturing and sale.” No practical reason exists to distinguish between sales made by the patentee and sales made by a manufacturing licensee. In fact, the court found that a distinction between patentee sales and licensee sales was “unjustifiably formalistic, [and] not founded in relevant economic substance.” Therefore, a patentee may preserve its exclusionary rights detailed in § 271 of the Patent Act through the use of a clearly communicated, otherwise-lawful restriction. A use in violation of the restriction can thus constitute infringement of the patent.
In addressing the second question the court reaffirmed the principles of Jazz Photo Corp. v. Int’l Trade Comm’n, 264 F.3d 1094 (Fed Cir. 2001). In Jazz Photo, the Federal Circuit concluded that “there is no legal rule that U.S. rights are waived, either conclusively or presumptively, simply by virtue of a foreign sale, either made or authorized by the patentee.” In Jazz Photo, the defendant, Jazz Photo, was importing refurbished disposable cameras originally sold by or with the authority of Fuji Photo Film. The Federal Circuit found that the doctrine of patent exhaustion does not apply to products originally sold abroad, though the circumstances of the sale may confer an express or implied license. As such, a foreign sale alone is insufficient to trigger the doctrine of patent exhaustion. A foreign first sale thus fails to “confer on the buyer ‘authority’ to import the item into the United States or to sell and use it here,” in the absence of an express or implied license.
Impression argued that the Supreme Court decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), undermines the no-exhaustion holding of Jazz Photo. In Kirtsaeng, the Court addressed the statutory copyright first sale doctrine, and determined that owners of copyrighted articles may take certain actions with the authority of the copyright holder. However, the Federal Circuit found Kirtsaeng inapplicable for several reasons, including that Kirtsaeng is a copyright case that did not address any patent law, and more specifically, Kirtsaeng failed to address the exhaustion issue at hang in Lexmark, even in the context of copyright law. The Federal Circuit concluded that Kirtsaeng was not controlling; instead, the question of patent exhaustion resulting from foreign sales “requires a separate analysis in its own legal setting” distinct from copyrights.
The Federal Circuit concluded that the principle of Jazz Photo remains good law. As such, “[a] U.S. patentee, simply by making or authorizing a foreign sale of an article, does not waive its U.S. rights to exclude regarding the article.” The Federal Circuit went on to explain that the patent grant is a “market reward,” and that the market within which the reward is realized is necessarily the U.S. market subject to U.S. laws. The territorial nature of patent systems provides a strong indication that the first sale doctrine should not apply to purely foreign sales, as the patentee will not have received the same market award through the foreign sale. The court went on to differentiate the standards required for obtaining a patent to those required for obtaining a copyright, and noted that copyrights are generally easy to acquire and that governmental standards vary considerably less for copyrights than for patents. Foreign sales in the context of copyrights are thus distinguishable from foreign sales in the context of patents. The court further discussed the differences between foreign markets and U.S. markets and the practical effects that would result from foreign sales triggering the doctrine of patent exhaustion. The court concluded that a foreign sale of a U.S. patented article does not exhaust the patentee’s U.S. patent rights in the article sold, even where there is no express reservation of U.S. patent rights. The Federal Circuit thus affirmed the district court’s judgment of infringement as to all cartridges initially sold abroad, even though there was no express reservation of U.S. patent rights by Lexmark for the foreign sales.
The doctrine of patent exhaustion extinguishes a patentee’s ability to exert further control over a patented article after an authorized sale of the article. The patentee may, however, reserve its patent rights by selling the patented article under otherwise-proper restrictions on resale and reuse communicated to the buyer at the time of sale. The sale of a patented article may be so restricted regardless of whether the seller and manufacturer are themselves a patentee or a licensee. In addition, where a foreign sale is made by or with the approval of the U.S. patentee, the foreign sale does not exhaust the patentee’s U.S. patent rights, even when no reservation of the rights accompanies the sale. A foreign sale may cause a loss of U.S. patent rights only through an express or implied license.


Landlord harassment is illegal. California state law and local city ordinances protect tenants against harassment. Whether physical or verbal, all landlord harassment has the same goal—to force the tenant to move out.
Harassment is when a landlord uses persistent aggressive methods, fraud, coercion, or intimidation to get a tenant to do what the landlord wants. Harassment is meant to disrupt the tenant’s legal right to quiet enjoyment of their unit in order to force the tenant to move or to force the tenant to refrain from pursuing any potential legal rights they may have against the landlord.
Why would a landlord harass a tenant?
In rent-controlled jurisdictions, such as San Francisco, Berkeley, Richmond, Moiuntain View, Alameda, and Oakland, landlords are highly motived to get long-term tenants to move out in order to raise the rent to market rate. Many landlords rely on the assumption that tenants do not know their legal right. Harassment of the tenant is pursued in order to avoid costly legal fees and the hassle of a legal eviction and, most importantly, the landlord typically has no actual cause to evict the tenant other than their bad faith motivation to substantially raise the rent.
How can a tenant prove harassment?
Landlord harassment claims can sometimes be difficult to prove. These cases often come down to a tenant’s ability to prove the harassment. It is important for tenants to be extremely diligent in notating each harassing event. Tenants should maintain a log with dates and times. If possible, they should also get statements from friends and neighbors, and take pictures and recordings. If a tenant feels that they are in physical danger, they should call the police and can also pursue a restraining order against their landlord.
What are the harassment laws in the State of California?
It is illegal for a landlord to induce a tenant to leave a unit by the use of “force, willful threats, or menacing conduct”; by threatening to disclose the citizenship status of the tenant or the tenant’s guests; by entering the tenant’s unit in substantial violation of the law; and to take, deprive, or remove the tenant’s property from the unit without consent. Cal. Civ. Code § 1940.2.
Landlords who are found to have harassed their tenants are liable for punitive damages of up to $2,000.00 for each violation of the law. Id. Tenants do not have to be actually evicted or constructively evicted to be awarded damages for harassment. Id.
Additionally, the state’s anti-retaliation statute prevents a landlord from harassing a tenant after the tenant has asserted rights under law. Cal. Civ. Code § 1942.5. Landlords who violate this prohibition are liable for actual damages, attorney’s fees, and punitive damages of up to $2,000 per retaliatory act. Id.
What are the harassment laws in the City of San Francisco?
Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. Id.
Tenants who are harassed by their landlord can file a civil lawsuit against their landlord for damages and for an injunction to stop the behavior. Additionally, a landlord convicted for violation of this section of the Rent Ordinance will be subject to criminal penalties. Id.
Where the tenant can prove harassment, the landlord will be assessed a statutory penalty of $1,000.00 for each instance of harassment. Id. The tenant can also seek an award of three times (treble damages) their emotional distress and out-of-pocket damages. Id. And, punitive damages and attorney fees are provided for under the ordinance. Id.
What are the harassment laws in the City of Oakland?
Removing a housing service for the purpose of causing the tenant to vacate the Rental Unit. For example, taking away a parking space knowing that a Tenant cannot find alternative parking and must move. Oakland, Cal., Mun. Code § 8.22.640.
Oakland’s Tenant Protection Ordinance also prohibits retaliation by the landlord against the tenant for exercising their rights under the law and allows tenants to bring retaliation claims against the landlord in civil court. Id.
It is important to note that under the Oakland TPO, tenants must first comply with a notice requirement before they can pursue a civil remedy in court against their landlord if the tenant alleges a violation of 1, 2, 3, 10, 11, 12, or 13 listed above. Oakland, Cal., Mun. Code § 8.22.650. Tenants alleging a violation of those subsections must notify the property owner or their agent of the problem prior to filing a lawsuit. Id. And, in the case of 1, 2, 3, 11, or 12 listed above, the tenant must give fifteen (15) days from the notification for the owner to correct the issue. Id.
Similar to San Francisco’s ordinance, Oakland provides for substantial money damages against landlords found liable for harassment. Oakland, Cal., Mun. Code § 8.22.670. Attorney fees and costs, punitive damages, treble damages, and injunctive relief are all available under the ordinance. Id.
What are the harassment laws in the City of Berkeley?
Engage any tenant in any form of human trafficking as defined by California Penal Code section 236.1, as a condition of that tenant’s continued occupancy of a Rental Unit. Id.
Like the Oakland TPO discussed earlier, before a tenant can bring a claim in civil court for violation of certain subsections listed above, the tenant must first comply with the notice requirement to the property owner or the owner’s agent. Id.
Landlords found to have violated the TPO can be liable for actual damages, attorney fees, treble damages, injunction, and an award of civil penalties in the sum of between $1,000 and $10,000 for each violation. Plus, the landlord may be held liable for an additional penalty of up to $5,000 for each violation against any person who is disabled or elderly (age sixty-five or over). Id.
What are the claims and damages in a tenant lawsuit against their landlord for harassment?
As discussed above, depending on which jurisdiction the tenant resides, tenants can recover a myriad of damages in a lawsuit against their landlord for harassment. Some of the damages include actual damages, treble damages, punitive damages, attorney fees and costs, civil penalties that vary in amount depending on the city, and in some jurisdictions, additional awards for disabled or elderly tenants are available.
Aside from the harassment claim, other claims a tenant may pursue against the landlord that will yield additional money damages are for breach of contract and covenant of quite enjoyment, wrongful or constructive eviction, and intentional infliction of emotional distress.
Breach of Contract and Covenant of Quiet Enjoyment: Implied in every residential lease is a covenant of quiet enjoyment, guaranteeing that tenants will be able to peacefully enjoy their homes. Cal. Civ. Code § 1927. Where a landlord has substantially interfered with a tenant’s peaceful enjoyment of a unit, the tenant can sue for back rent. Through use of expert appraisers, the court will determine if, and by how much, the rental value of the property declined due to the harassment. In Guntert v. City of Stockton, 55 Cal. App. 3d 131 (1976), for example, the court awarded a tenant back rent where the landlord gave several arbitrary eviction notices. Where a tenant is under constant threat of eviction, receives unlawful eviction notices, is verbally or physically threatened by a landlord, and is not benefiting from timely and proper repairs, the tenant can file a breach of contract claim against the landlord. Id. at 139.
Constructive Eviction: If a tenant is forced out of a rent-controlled home because of landlord harassment, the tenant can sue for the cost to replace the rent-controlled home. At least one court has allowed a tenant to recover twenty years worth of increased rent. Where a landlord is motivated by a desire to get a rent-controlled tenant out from under rent control, this rent differential may be trebled (i.e. tripled).
Intentional Infliction of Emotional Distress: In cases of particularly outrageous conduct, a tenant may sue a landlord in tort for intentional infliction of emotional distress. The elements of the tort of intentional infliction of emotional distress are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 1120 (1988) (emphasis added), quoting Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (1979). Where a tenant can prove that harassment is intentional or has a reckless disregard, the landlord will be required to pay actual and punitive damages.
In the San Francisco case Richardson v. Pridmore, 217 P.2d 113, a tenant suffered a miscarriage as a result of being intentionally and wrongfully evicted. The landlord in that case broke into the tenants’ apartment while they were gone for a few days, put all their stuff in a basement, and changed their locks before giving the place to new tenants. The jury awarded plaintiffs a sum of $7,250 ($63,910 in 2009 dollars) as compensation.
In Aweeka v. Bonds, 20 Cal. App. 3d 278 (1971), a landlord raised the rent on tenants in retaliation for a repair and deduct against tenants who used rent to repair. The court noted that no physical injury need be present to award damages for emotional distress.
In Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004 (2009), the court determined that an unlawful eviction may be outrageous despite the “polite and sympathetic” attitudes of a landlord’s agents. A tenant’s particular vulnerability at the time of the eviction, in this case a recent reconstructive surgery of the arm, can make an unlawful eviction outrageous conduct on the part of the landlord.
When should a tenant contact a lawyer?
Tenants who have a landlord that is using harassment in an attempt to force them to move should contact Tobener Ravenscroft LLP to speak with an experienced attorney.
recovered in action brought against a landlord in San Francisco who failed to make repairs and abate several Notices of Violation issued by the City. Instead, the landlord harassed the tenants in attempts to force them to leave the rent-controlled unit they occupied for three decades. As a result of the landlord’s failure to repair, one of the tenants fell and suffered serious personal injuries requiring hospitalization.
recovered in action brought against landlord who harassed transgender tenants and failed to maintain an SRO building in San Francisco where individual rooms were rented out with shared kitchen and bathroom facilities. The landlord frequently trespassed into their rooms, demanded rent, dumped out their purses looking for money, and implied they should prostitute themselves to pay rent. The five plaintiffs suffered from collapsed ceilings, no heat, mice, bedbugs, filthy common area bathrooms and kitchen, and an unsecured building that led to frequent trespassing by homeless persons and drug-addicts.
recovered on behalf of a single tenant who was forced out of his rent-controlled apartment in San Francisco when the landlord posted dozens of notes illegally demanding he move out in response to his complaints about lack of heat and unlawful rent increases.
recovered on behalf of a single-parent living in an in-law unit in Oakland. The landlord engaged in a pattern of harassment aimed at forcing the tenant out of her rent-controlled unit. The landlord's harassment included repeatedly yelling at the tenant, saying she needed to move out because her rent was too low, and telling her young son that she should call Child Protective Services on his mother.


text:
One Hall, a locomotive engineer familiar with the road, testified that there were many cuts on the line; that sand was frequently found thereon in several places; that there were usually rains about the latter part of August or September; and that, in rainy weather, on account of the steepness of the mountains, more or less material would be deposited on the track. Defendant then propounded this question on cross-examination, 'Are the engineers here aware of that fact'? to which plaintiff's counsel interposed an objection, which was sustained, and defendant excepted. The witness had also testified that a culvert would have added to the safety of this cut, and was asked this question by defendant: 'You said you thought the culvert would make it much safer, but is not that cut constructed there, and the water run out of it, exactly as the cuts are ordinarily constructed, on roads running through such places?' The question was objected to, the objection sustained, and defendant excepted.
George Warnick, the locomotive fireman who was on the engine when the accident happened, gave evidence on defendant's behalf tending to show negligence on the part of deceased, and was asked, on cross-examination, whether he had, in answer to certain specified questions, put to him at the hospital on the Sunday following, stated that neither he nor the engineer was to blame for the accident. This he denied, and leading questions were permitted to be propounded to a witness called in rebuttal to contradict him, to which exceptions were saved.
'(1) The court is asked to instruct the jury that the burden of proof is upon the plaintiff to show that the accident occurred by reason of the negligence of the defendants, and [161 U.S. 451, 454] that the plaintiff was in the exercise of due care at the time of the accident, and that due care in such a case required of the deceased that he be vigilant and watchful to avoid such danger as his experience of the road must have made him aware he must expect in such places as the place where the accident occurred, and under the circumstances detailed by the witnesses, to wit, at time when heavy rains had been met with, and that there has been offered no evidence whatever upon that point by the plaintiff, not even a reputation for care, but there has been evidence offered by defendant that he was not in the exercise of due care; nor has there been any evidence offered as to whether, if the sand had been discovered at the time it might have been discovered, he could or could not have applied the air in time to prevent the accident.
'(2) The court is asked to instruct the jury that a party taking employment as an engineer in running a locomotive assumes the risks that are incident to the employment, and to the running of locomotives over the roads operated by his employer; and, if the jury believe that the country through which this road ran, and its location, was such that sand was frequently deposited on the track, then the deposit of sand on the track when heavy rains occurred must be taken as one of the ordinary risks of his employment, and the duty of the engineer was to be vigilant in avoiding it; and, if the jury believe that the lack of such vigilance on the part of deceased contributed to the accident, then the plaintiff cannot recover.
'(3) The court is asked to instruct the jury that the duty that an employer owes to the employe is to exercise ordinary care in providing the employe a safe place in which to work, and what is ordinary care is such care as men of ordinary prudence use in similar circumstances in the same employment.
'(4) The court is asked to instruct the jury that there is no evidence to show that the construction of a culvert at the place where the accident happened would have avoided, or would probably have avoided, the accident.' [161 U.S. 451, 455] The court refused to give each of these instructions, and defendant excepted.
The jury found in favor of plaintiff, and, judgment having been entered on the verdict, the company carried the case to the circuit court of appeals for the Eighth circuit, which affirmed the judgment. 4 U. S. App. 221, 1 C. C. A. 354, 49 Fed. 538.
Thereupon this writ of error was brought. [161 U.S. 451, 456] John M. Thurston, for plaintiff in error.
C. S. Thomas, for defendant in error.
The circuit court of appeals held that, as to the first question which the circuit court declined to allow to be put to Hall, the answer would have been purely an inference, based upon facts previously proven, and an inference which it was for the jury to draw from those facts, and therefore that it was properly excluded; that, as to the second question addressed to that witness, and excluded, namely, whether the cut was not constructed as cuts were ordinarily constructed on roads running through such places, the court did not err in its exclusion, because railway cuts are not made upon any recognized pattern, and the testimony offered would have been no aid to the jury, without further testimony showing that the surroundings of other cuts were substantially similar to those of the cut where the accident happened, which would have involved collateral issues, tending to confuse and mislead; and that it was within the discretion of the trial court to permit leading questions to be propounded for the purposes of impeachment. It was also held that the circuit court did not err in refusing the first instruction asked for defendant, because the burden of proof was not upon plaintiff to show, in the first instance, that he was in the exercise of due care at the time of the accident; that the second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an employ e in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances, and because, furthermore, the instruction was not justified under the evidence; that, while it was true that persons employed on lines of railway constructed at the foot of mountain ranges are necessarily subjected to greater dangers than those employed upon [161 U.S. 451, 457] railroads passing over prairie country, and that an engineer on a line running at the foot of a mountain range assumes the increased risk due to this fact, yet the employe does not assume the risks and dangers that are caused by negligence on the part of the company, but has a right to expect that the company will construct and maintain its track and roadbed in such a condition as not to subject its employees to unnecessary risks and dangers; and that it is the duty of such company to use due care to construct its roadbed, at a place where it crosses a waterway, so that it may be reasonably safe for use, and, if it has not done that, a jury may be justified in finding negligence on its part.
And also that there was no error in declining to give the third instruction, inasmuch as it was fully covered in the charge; nor in refusing the fourth instruction, because it was not proper under the evidence; nor in those parts of the charge complained of.
In our opinion the circuit court of appeals committed no error in its rulings, and in affirming the judgment of the court below, and we are not inclined to restate the reasons for the conclusions reached by that court, which are fully set forth in the case as reported.
The general rule undoubtedly is that a railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from a defective construction thereof, an injury happen to one of its servants, the company is liable for the injury sustained. The servant undertakes the risks of the employment as far as they spring from defects incident to the service, but he does not take the risks of the negligence of the master itself. The master is not to be held as guarantying or warranting absolute safety under all circumstances, but it is bound to exercise the care which the exigency reasonably demands in furnishing proper roadbed, track, and other structures, including sufficient culverts for the escape of water collected and accumulated by its embankments and excavations. Hough v. Railroad Co., 100 U.S. 213 ; Railroad Co. v. Cox, 145 U.S. 593 , 12 Sup. Ct. 905; Gardner v. Railroad Co., [161 U.S. 451, 458] 150 U.S. 349, 359 , 14 S. Sup. Ct. 140; Railroad Co. v. Daniels, 152 U.S. 684 , 14 Sup. Ct. 756; Railroad Co. v. Swett, 45 Ill. 197; Railway Co. v. Conroy, 68 Ill. 560; Stoher v. Railway Co., 91 Mo. 509, 4 S. W. 389; Paulmier v. Railway Co., 34 N. J. Law, 151; Snow v. Railroad Co., 8 Allen, 441; Huddlestone v. Machine Shop, 106 Mass. 282; Smith v. Railroad Co., 19 N. Y. 127; Patterson v. Railroad Co., 76 Pa. St. 389.
It is the duty of the company, in employing persons to run over its road, to exercise reasonable care and diligence to make and maintain it fit and safe for use; and, where a defect is the result of faulty construction, which the employer knew, or must be charged with knowing, it is liable to the employe, if the latter use due care on his part, for injuries resulting therefrom.
There are cases in which, if the employe knows of the risk, and the danger attendant upon it, he may be held to have taken the hazard by accepting or continuing in the employment; but this case, as left to the jury under the particular facts, is not one of them. This engineer was entitled to rely upon the company as having properly constructed the road, and to presume that it had made proper inquiry in respect of latent defects, if there were any, in the construction, for such was its duty; and he cannot be held to knowledge of the danger lurking in this narrow seam in the mountain side by whose inequalities its sinuosities were hidden. We agree with the circuit court of appeals that the circuit court properly instructed the jury in this regard, and that no error was committed in allowing the jury to consider the evidence in the light of their own judgment and knowledge, taking into consideration all the facts bearing on the defective construction in question.

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����������� The United States Department of Justice (Department) initiated this matter as a compliance review of Ada County, Idaho, under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.� Because the County receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.
C�������physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department's title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.
C���������� to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).
����������� As part of its compliance review, the Department reviewed the following facilities,� which � because construction or alterations commenced after January 26, 1992 � must comply with the ADA's new construction or alterations requirements: Ada County Courthouse, Western Idaho Fairgrounds, Juvenile Detention Center, Juvenile Services, and Juvenile Court Services.
����������� The Department's program access review covered those of the County's programs, services, and activities that operate in the following facilities: Coroner's Office, Emergency Medical Services Main Office and adjacent response station, Extension Office, Western Idaho Fairgrounds, Juvenile Detention Center, Juvenile Court Services West, the Landfill, Department of Motor Vehicles - Chinden, Noxious Weed and Pest Control, Public Safety Complex, Women's Detention Unit, and the Work Release Center.
����������� Finally, the Department reviewed the County's Sheriff's Department's policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.
1.�������� The ADA applies to the County because it is a "public entity" as defined by title II.� 42 U.S.C. § 12131(1).
2.�������� The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the County with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.� Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
3.�������� The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the County's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.� Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the County provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
4.�������� The parties to this Agreement are the United States of America and Ada County, Idaho.
5.�������� Although Ada County admits no violation of any applicable provision of the ADA, and because it is in full support of the goals of the ADA to make county governmental services accessible to all individuals to the fullest extent possible and to avoid the burdens and expenses of any further investigation and possible litigation might bring to taxpayers of Ada County, the parties enter into this Agreement.
6.�������� In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."
7.�������� In April, 1992, an ADA Steering Committee was established.
8.�������� In April, 1992, the position of ADA Coordinator was established.� At present, the County has two employees serving as ADA Coordinator.
9.�������� In 1992, an individual with a disability was appointed as an independent consultant for ADA issues.
10.������ In 1993, Ada County Resolution #735 was passed for ADA Reasonable Accommodations and Grievance Procedures.� The Grievance Procedure serves to handle disability-related complaints from the public.
11.������ In 1993, the County began structural barrier removal according to their Transition Plan.
14.������ In 2004, the County provided ADA awareness training for its employees by the Executive Director of the Idaho Task Force on the ADA.
15.������ The County ADA Coordinators attended the National Symposium and Expo in 2004.
16.������ The County has an Effective Communications Policy that provides for sign language interpreters and assistive listening devices for court proceedings, County Commissioners meetings, and in-person interactions.� The County also has a TTY available for public use and signs posted to alert the public as to the availability of these services.
17.������ The County is proactive in keeping current with the ADA Standards.� Before the Department initiated its review, the County was in the process of updating its Transition Plan and had conducted its own review of its facilities.
18.������ The County has consulted persons with disabilities and groups representing them n determining how to provide services in a manner that meets the needs of persons with disabilities.
19.������ The County Elections Board has met with persons with disabilities and groups representing them to improve access to voting for persons with disabilities.
20.������ The County provides curb-side voting at all polling places as a means of giving access to disabled citizens to cast their ballots.
21.������ Within two months of the effective date of this Agreement, the County will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the County; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings.� It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.� Copies will also be provided to any person upon request.
22.������ Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the County will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the County's accessible programs, services, and activities.
23.������ Within three months of the effective date of this Agreement, the County will identify sources of qualified oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).
24.������ The County will take steps to ensure that all appropriate employees are trained and practiced in using the Idaho Relay Service to make and receive calls.
25.������ Within three months of the effective date of this Agreement, the County will adapt for its own use and implement the Ada County Sheriff's Office Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C] and distribute to all sheriff department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment D].
26.������ Within three months of the effective date of this Agreement, the County will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its sheriff department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).
27.������ Within three months of the effective date of this Agreement, the County will ensure that each sheriff station and each jail/detention facility is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls.� Where inmate telephone calls are time-limited, the County will adopt policies permitting inmates who use TTY's a longer period of time to make those calls, due to the slower nature of TTY communications compared with voice communications.
28.������ If the County contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the County will ensure that the other entity complies with the following provisions on its behalf.
29.������ Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).
30.������ Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others.� Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification.� If the County adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability.� Whether or not a registry is used, the County plan should address accessible transportation needs for persons with disabilities.
31.������ Within three months of the effective date of this Agreement, the County will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster.� The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.
32.������ Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the County will distribute to all persons � employees and contractors � who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the County (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
E.�������� Periodically (at least annually) enlist persons with disabilities to test its pages for ease of use.
34.������ The elements or features of the County's facilities that do not comply with the Standards, including those listed in Attachments I, J, and K, prevent persons with disabilities from fully and equally enjoying the County's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.
35.������ The County will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
36.������ Within three months of the effective date of this Agreement, the County will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.
37.������ Newly Constructed Facilities:� In order to ensure that the spaces and elements in County facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment I.
38.������ Altered Facilities:� In order to ensure that the spaces and elements in County facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment J.
39.������ Program Access in Existing Facilities:� In order to ensure that each of the County's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the County will take the actions listed in Attachment K.
40.������ Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the County will submit written reports to the Department summarizing the actions the County has taken pursuant to this Agreement.� Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
41.������ Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the County will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.� This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.� 28 C.F.R. § 35.133(b).
42.������ Within six months of the effective date of this Agreement, the County will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.� The County will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.
43.������ Within one year of the effective date of this Agreement, the County will deliver its training program to all County employees who have direct contact with members of the public.� At the end of that period, the County will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.
44.������ If at any time the County desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.� Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.� These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.
45.������ The Department may review compliance with this Agreement at any time.� If the Department believes that the County has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the County in writing and it will attempt to resolve the issue or issues in good faith.� If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the County, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.
46.������ For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the County to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
47.������ Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
48.������ This Agreement is a public document.� A copy of this document or any information contained in it will be made available to any person by the County or the Department on request.
49.������ This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable.� This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.� This Agreement does not affect the County's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
50.������ This Agreement does not address the accessibility of voting equipment or voting systems, including polling place accessibility, or any modifications to polling-related policies and procedures that may be necessary to ensure access for persons with disabilities.
51.������ While recognizing that Settlement Agreements such as this are generally effective for three years, the parties also recognize that Ada County is subject to Art. 8, Sec. 3 of the Idaho Constitution, which prohibits multi-year agreements.� Therefore, this Agreement shall be effective upon execution by the parties and shall be effective through September 30, 2005, and shall be renewed for two additional one-year terms subject to the continued applicability of the ADA, appropriation of funds by the Board of Ada County Commissioners, and the mutual consent of the parties. The County recognizes its obligation to be in compliance with the relevant portions of the ADA and will take such obligation into consideration in appropriating funds necessary for the continued compliance by the County with this Agreement.
52.������ The person signing for the County represents that he or she is authorized to bind the County to this Agreement.
53.������ The effective date of this Agreement is the date of the last signature below.
���� 950 Pennsylvania Avenue, N.W.