The Customer declares expressly to perform the purchase for aims extraneous to the exercised commercial or professional activity.
The goods/objects of the present general condition are on sale by Fattoria di Montemaggio S.R.L., with head office/branch in Radda in Chianti, place/street Località Montemaggio, enrolled c/o Chamber of Commerce of di Siena n.04311480489 of the Firms register, tax number 04311480489, VAT number 00866260524 here indicated as “Supplier”.
1.1. With the expression “online sale contract”, we intend: the sale contract regarding the Supplier materials/personal properties, drawn up between the Supplier and the Buyer, in the sale system on distance through telematic instruments, organized by the Supplier.
1.2. With the expression “Buyer” we intend: the consumer physical person that performs the purchase, included in the present contract, for aims not reportable to the commercial or professional activity eventually performed.
1.3. With the expression “Supplier” we intend: the Company that is undertaking to to supply the material/ personal properties.
2.1. With the present contract, respectively, the Supplier sales and the Buyer buys on distance through telematic instrument the indicated materials/personal properties that are offered on sale on the website www.montemaggio.com.
3.1. The contract between the Supplier and the Buyer is concluded exclusively through Internet, when the Buyer has access to the address www.montemaggio.com, where, following the indicated procedures, the Buyer will formalize the proposal and the contract for the properties (see point 2.1 of the present article).
4.2. When the Supplier receives from the Buyer the order, he provides the confirmation e-mail of the shipment or the confirmation web page visualization and the pribtable order summary, where the data described in the previous points, are showed.
4.3. The contract cannot be considered effective between the parties in case there are discrepanies in the points stated above.
5.1. Every payment on behalf of the Buyer will be able to happen only through one of the methods showed in the appropriate web page from the Supplier.
5.2. Every possible refund to the Buyer will be credited through one of the modalities proposed from the Supplier and chosen by the Buyer, in a promptly way and, in case of the withdrawal right exercise, so as regulated from the art. 13, point 2 and successive of the present contract, at maximum within 30 days from the date where the Supplier received knowledge of such withdrawal.
5.3. All communication about the payments happen on an appropriate line of the Supplier protected from coding system. The Supplier guarantees the memorization of these information with a further safety coding level and in obedience of what foreseen from the actual discipline about the personal data protection.
6.1. The Supplier will provide to deliver the selected and ordered products, with the modalities chosen from the Buyer or showed on the website during the goods offer, so as confirmed in the e-mail described in the point 4.2.
6.2. The delivery times can change from the same order day to a maximum of 30 working days from the same confirmation. If the Supplier isn’t able to perform the delivery within this term but, however, within that showed to the following point, a notice will be given via e-mail to the Buyer.
6.3. The modalities, the times and the shipment costs are clearly showed and well highlighted to the address www.montemaggio.com.
www.montemaggio.com are expressed in euro and constitute offer to the public on the basis of the art. 1336 c.c.
7.2. The sale prices of the previous point, are inclusive of VAT and of every possible other tax. The shipment costs and the possible accessories charges (for example clearing), if present, even if not included in the purchase price, must be indicated and calculated in the purchase procedure before the order shipment from the Buyer side and also included in the performed order summary webpage.
7.3. The prices indicated in correspondence of the goods offered to the public have validity up to the date showed in the catalogue.
8.1. The Supplier assures through the used telematic system the orders elaboration without delay. It shows in real time, in own electronic catalogue, the available products number and those which are not available, and also the shipment times.
8.2. If an order should exceed the quantity existent in the warehouse, the Supplier, with an e-mail, will inform the Buyer if the goods are not available or the length of the waiting to obtain those goods.
8.3. The Supplier computer system confirms in the shortest possible time the happened order registration sending to the User a confirmation via electronic mail, on the basis of the point 4.2.
9.1. The Supplier doesn’t assume any responsibility for inefficiencies due to the circumstances beyond one’s control if he doesn’t try to give execution to the order in the times foreseen from the contract.
9.2. The Supplier will be not responsible to the Buyer, except for fraud or gross negligence, for inefficiencies or malfunctioning connected to the Internet use outside of the own/sub suppliers control.
9.3. The Supplier will be not responsible about the damages, lacks and costs suffered by the Buyer after the lacked execution of the contract for causes not imputable to him, the Buyer having rights only to the integral return of the corresponded price and of the possible sustained accessories charges.
9.4. The Supplier doesn’t assume any responsibility for the possible fraudulent and illicit use that can be performed from a third party, of the credit cards, cheques and other payment means, for the purchased products payment, if he demonstrates to have adopted all possible cautions on the basis of the best science and experience and on the basis of the ordinary care.
9.5. In none case the Buyer will be able to be retained responsible for delays or mistakes in the payment if he demonstrates to have performed the payment in the times and ways showed from the Supplier.
Responsible from defect, damage test and compensable damages; the Supplier obligations.
10.1. On the basis of the articles 114 and successive of the consumption Code, the Supplier is responsible of the damage provoked from the sold goods defects if he omits to communicate to the Supplier, within the term of 3 months from the request, the identity and the producer address or the person that has supplied to him the goods.
10.2. The above request, from the Suppliers part, must be performed in written form and must indicate the product that has provoked the damage and the purchase date; besides it must include the product offer, if yet existent.
10.3. The Supplier will be not able to be retained responsible of the consequences derived from a defective product if the defect is due to the product conformance, to an imperative legal standard or to a binding measure, or if the scientific and technical knowledge conditions, during which the producer has put in circulation the product, not allowed yet to consider the products defectiveness.
10.4. None compensation will be performed if the Damaged has been conscious of the product defect or of the danger that can derive and however he is voluntary exposed.
10.5. In every case the Supplier will have to demonstrate the defect, the damage and the causal connection between the defect and the damage.
10.6. The Supplier will be able to ask the damages refund provoked from the death or from personal lesions or from the thing destruction or damaging different from the defective product as long as type normally destined to the use or private consumption and so mainly used by the Supplier.
10.7. The damage to things (see art. 123 of the consumption Code) will be compensable only in the measure that exceeds the sum of three hundred eighty seven euro (€ 387).
11.1. The Supplier answers for every possible conformance defect within the term of 2 years from the goods delivery.
11.2. To the aims of the present contract we assume that the consumption goods are in conformance with the contract if, where pertinent, coexist the following circumstances: a) are suitable to the use to which goods of the same type serve usually; b) are in conformance with the description made from the Seller and have the goods qualities that the Seller has presented to the Consumer as sample or model; c) have the qualities and the goods performances that the Consumer can reasonable expect, taking into account of the goods nature and, if of the case, some public declarations on the goods specific characteristics performed from the Seller, from the producer or from his agent or sales representative, in particular in the advertising or on the labeling; d) are also suitable to the particular use wanted from the Consumer and that has been known from the Seller during the contract conclusion and that the Seller has accepted also for concluding facts.
11.3. The Buyer decays from every right if doesn’t report to the Seller the conformance defect or has concealed it.
11.4. In every case, except on the contrary, we presume that the conformance defects that appear within 6 months from the goods delivery were yet in this date, unless that this hypothesis is incompatible with the goods nature or with the conformance defect nature.
11.5. In case of conformance defect, the Buyer will be able to request, alternatively and without expenses, to the here followed conditions, the repair or the acquired goods change, a purchased price reduction or the resolution of the present contract, unless that the request doesn’t result objectively impossible to satisfy or results for the Supplier excessively onerous in accordance with the art. 130, par. 4, of the consumption Code.
11.6. The request will have to be made in written form, with registered letter with return receipt, to the Supplier that will show own availability to begin the request, or the reasons that hiders him to make it, within 7 working days from the receipt. In the same communication, where the Supplier has accepted the Buyer request, will have to indicate the defective goods sending or return modalities and the foreseen term for the defective goods return or change.
11.7. If the reparation and the change are impossible or excessively onerous, or the Supplier hasn’t provided to the repair or to the goods change within the previous point term or, at least, the change or the repair previously accepted have suffered some disadvantages to the buyer, he will be able to request, on his choice, an adequate price reduction or the contract resolution. The Buyer will have in this case to make his own request to the Supplier, that will show non availability, or the reasons that prevent him to make it, within 7 working days from the receipt.
11.8. In the same communication, where the Supplier has accepted the Buyer request, he will have to indicate the proposed price reduction or the defective goods return modalities. In these cases it will be responsibility of the Buyer to indicate the modalities for the amount new credit previously paid to the Supplier.
12.1. The Buyer commits to pay the acquired goods price in the times and ways showed by the contract.
12.2. The Buyer commits, once concluded the on line purchase procedure, to provide to the print and to the conservation of the present contract.
12.3. The information included in this contract have been yet inspected and accepted by the Buyer, who admits this passage is obligatory before the purchase confirmation.
13.1. The Buyer has in every case the right to withdraw from the drawn contract, without any penalty and without specify the reason, within the term of 10 (ten) working days, becoming effective from the acquired goods receipt day.
13.2. If the professionalism hasn’t satisfy the information obligations on existence, modality and return times or of goods drawing in case of withdrawal right exercise (see art. 52 of the consumption Code), the term for the withdrawal right exercise is of 90 (ninety) days becoming effective from the goods receipt days from the Consumer.
in Località Montemaggio, 53017 Radda in Chianti, Siena, or with fax to the number 0577 738820 or with electronic mail to the e-mail info@montemaggio.com, as long as these communications are confirmed from the return recommended letter sending to the address Fattoria di Montemaggio S.A.S., in Località Montemaggio, 53017 Radda in Chianti, Siena, within 48 (forty eight) successive hours. The stamp of the post office on the released receipt will be valid between the Parties. To the aim of the exercise of the withdrawal right the communication sending will be able to be changed from the acquired goods return, as long as they are in the same terms. The delivery date to the post office or to the forwarding agent will be valid.
13.4. The goods return will have however to happen at the latest within 30 (thirty) days from the goods receipt date. In every case, to have the right to the full refund of the paid price, the goods will have to be returned integral and in normal preservation condition.
13.5. The Buyer cannot have this withdrawal right for the audio visual products purchase contracts or of sealed informatic software that have been opened and goods packed on measure or clearly personalized or that, for their nature, cannot be sent again or risk to deteriorate or change quickly of newspapers supplying, periodical and magazines and goods whose price is connected to financial market rates floating that the professional isn’t able to control and in every other case foreseen from the art. 55 of the consumption Code.
13.6. The only expenses due from the Consumer for the withdrawal right exercise in accordance with the present article are the goods return direct expenses to the Supplier, except that the Supplier doesn’t accept to saddle.
13.7. The Supplier will provide freely to the reimbursement of the entire amount paid from the Buyer within the term of 30 (thirty) days from the withdrawal communication receipt.
13.8. With the communication receipt with which the Buyer communicates the withdrawal right exercise, the Parties of the present contract are released from their obligations, except for what foreseen in the previous points of the present article.
14.1. The obligations of the points 12.1, taken from the Buyer and the guarantee of the payment end that the Buyer performs with the means described in the point 5.1, and also the exact fulfillment of the obligations of the Supplier to the point 6, have an essential character, so that, for the agreement, the not fulfillment of only one of the obligations, where not determined from casual case or due to the circumstances beyond one’s control, will provoke the contract right resolution ex art 1456 c.c., without needs of judicial pronouncement.
15.1. The Supplier protects own customers privacy and guarantees that the data treatment is in accordance with what foreseen from the privacy standard of the lgs.d. 30 June 2003, n. 196 .
15.2. The personal fiscal data acquired directly and/or through thirties parties from the Supplier Fattoria di Montemaggio S.A.S., treatment owner, are collected and treated in paper form, informatic, telematic, in relation with the treatment modalities with the purpose to register the order and activate it, the procedures for the present contract execution and the relative necessary communications besides the fulfillment of the law obligations and to allow an effective commercial relationships management in the necessary measure to complete better the requested service (art.
24, paragraph 1, lett. b, lgs.d. 196/2003) .
15.3. The Supplier obliges to treat with privacy the data and the information transmitted from the buyer and don’t reveal to not authorized people, nor to use them for purposes different from those ones for which have been collected or to transmited to third parties. These data will be able to be used only on request of the Judicial Authority or of other authorities authorized by law.
15.4. The personal data will be communicated, upon subscription of data privacy commitment, only to people authorized to the activity fulfillment necessary for the drawn contract execution and communicated exclusively for this purpose.
c) The certification that the a) and b) operations have become acquainted, also for what regard their content, of people to which the data have been communicated, except the cases in which this fulfillment is impossible or behaves an disproportionate means use respect to the protected right. The interested has the right to oppose, in all or in part: i) for legitimate reasons to the personal data treatment that regard him with the aim to send advertising material or direct sale or for the market research performing or of commercial communication.
15.6. The personal data communication from the Buyer is necessary condition for the correct and promptly execution of the present contract. In defect, the Buyer application will haven’t to start.
15.7. In every case, the acquired data will be preserved for a time period not superior to that one necessary to the purposes for which they have been collected or successively treated. Their removal will happen however in safe way.
15.8. Collection and personal data treatment owner is the Supplier, to which the Buyer will be able to address, c/o the head office, every request .
15.9. All what could reach the mail address (also electronic mail) Centre (requests, suggestions, ideas, information, materials, etc.) will be not considered information or of confidential nature, and will not violate other rights and will have to include valid information, not damaging and sincere of other rights; in every case will be not able to be attributed to the Centre any responsibility on the messages content.
16.1. In accordance with the art. 12 of lgs.d. 70/2003, the Supplier informs the Buyer that every sent order is preserved in digital/paper form on the server/c/o Supplier head office in accordance with privacy and safety criteria.
17.1. The written communications directed to the Supplier and the possible claims will be considered valid only where sent to the following address: Fattoria di Montemaggio S.A.S., in Località Montemaggio, 53017 Radda in Chianti, Siena, or transmitted via fax to the number 0577 738820 or sent through e-mail to the following address info@montemaggio.com. The Buyer shows in the registration module his own residence or domicile, the telephone number or the electronic mail for the possible Supplier communications.
18.1. All disputes including in the present contract will be referred to the Commercial Chamber of Siena and resolved in accordance with the conciliating Rules.
18.2. If the Parts intend to take the ordinary judicial Authority, the competent Forum is the residence place one or the Consumer elective domicile, binding in accordance with the art. 33, paragraph 2, lett. u) of the lgs d.206/2005.
19.1. The present contract is regulated by the Italian law.
19.2. For what here not expressly disposed, the applicable laws standards are valid to the relationships and to the case in point foreseen in the present contract, and in particular way the art. 5 of Rome Convention on 1980.
19.3. In accordance with the art. 60 of the lgs. d. 206/2005, the discipline included in the part III, Head I of the lgs d. 206/2005 is here expressly recalled.
The present contract overrides and changes every agreement, negotiation, written or oral, concluded previously between the parties and concerning the object of this contract.


The following is a true case report of elder abuse and death caused by a Residential Care Facility in California and is taken verbatim from the complaint filed in the Superior Court.
The names and dates have been changed to protect the privacy of the family of this tragically abused elder who died of starvation and dehydration. The old adage to "watch your children well" also applies to your parents when a nursing home or residential care facility is the only option.
The legal case against this Residential Care Facility is now closed, but the story needs to be told and for that reason the allegations of the complaint filed in this case are reported here.
Rest well John Smith, you never should have died this way.
Thank you to the Smith Family for allowing me to bring this case to justice.
At all relevant times, John Smith was a person who was older than 65 years of age and under the provisions of Penal Code § 368(a) was at all relevant times an "elder" under California law and a "senior citizen" pursuant to Civil Code § 1761. The California Supreme Court has recognized that elders are "among the most vulnerable persons in our society" and the Legislature has adopted special legal protections for elders from abuse and neglect.
* profound dehydration * gangrene in both feet * sepsis * pneumonia and * acute renal failure, plus * pressure ulcers, bed sores, urine burned skin, and open wounds, all of which were caused by Defendant Happy Hours and which are confirmed in the attached record of History and Physical Examination by Dr. David Clark at Valley Hospital on March 29, 2002.
From February 22, 2002 until he was rescued from severe abuse and neglect on March 29, 2002, John Smith was a resident of, and victimized by, Defendant Happy Hours Residential Care Facility, a business organization of unknown form, which was and is in the business of providing 24-hour residential care for the elderly and known as a Residential Care Facility for the Elderly or RCFE.
* in addition, obtained, a physician's report.
Following this appraisal and evaluation, Defendants, and each of them, approved John Smith for entry to Happy Hours as a "cash" customer.
Beginning on or about January 25, 2002 at the home of John Smith, Deceased, and thereafter on two additional occasions before John Smith's entry to Happy Hours's RCFE on the premises of the RCFE, Defendants, and each of them, through Jane Baker, Defendants' Director represented and said to Elizabeth Smith, Ellen Smith and/or Matthew Smith at various times: that they operated an excellent residential care facility; they were dedicated to the care of their residents; were qualified to provide the residential care required for John Smith ; would faithfully fulfill and perform their duties; would fairly provide purchased services for the fees requested and paid; would not take advantage of their relative power over John Smith by withholding residential care or services to him for their convenience, or other purpose, including profit; would provide John Smith with all appropriate assistance and residential care; and would be committed to John Smith's needs. In making these representations Defendants, and each of them, engaged in unfair acts and practices prohibited by California Civil Code § 3345 because at all relevant times, Defendants, and each of them, made such representations knowing that they did not operate an excellent residential care facility, were not dedicated to the care of their residents, were not qualified to provide the residential care required for John Smith, would not faithfully fulfill or perform their duties, would not fairly provide purchased services for the fees paid, would take advantage of their superior power over John Smith by withholding residential care and services for profit, would not provide John Smith with all appropriate assistance and residential care, were not committed to John Smith's needs, did not intend to provide John Smith with quality residential care, and secretly were committed only to maximizing their profits to the ultimate detriment of John Smith .
John Smith and his family, being ignorant of the true facts and intentions of Defendants, and each of them, reasonably believed that John Smith would receive quality care from Defendants, and each of them, relied up the each of the above representations of Defendants, and each of them, made the grave error and mistake of selecting Defendants' Residential Care Facility for the Elderly for John Smith and as a result of Defendants' misrepresentations did pay in a timely manner all fees required and requested by Defendants, and each of them, for residential care and services for John Smith, which were never provided. Had they known the true facts Plaintiffs never would have allowed John Smith to become a resident of Defendants' Residential Care Facility for the Elderly, never would have paid the fees demanded and never would have suffered a substantial loss of their personal assets which were essential to the health and welfare of John Smith and Plaintiff Elizabeth Smith.
John Smith and Plaintiffs placed in Defendants, and each of them, their trust and confidence that Defendants, and each of them, would faithfully fulfill and perform their duties, more specifically set forth below, would provide excellent residential care facility, were dedicated to the care of John Smith, were qualified to provide the residential care required for John Smith, would faithfully fulfill and perform their duties, would never take advantage of their superior power over John Smith by withholding residential care and services for profit, would provide John Smith with all appropriate assistance and residential care, were committed to John Smith's needs, intended to provide John Smith with quality residential care, and secretly were not committed to garnering a profit at the expense of the health and life of John Smith .
Defendants, and each of them, accepted this trust and confidence knowing John Smith was dependent upon Defendants, and each of them, to faithfully and carefully fulfill their duties, thereby creating a fiduciary relationship of trust and fiduciary duties owned by Defendants, and each of them, to John Smith to provide him with all appropriate assistance and residential care.
* protecting John Smith from health and safety hazards, the denial of fluids and water and, most importantly, from any condition or circumstances whenever it was foreseeable that John Smith might be harmed by not taking all appropriate action to prevent injury.
In addition upon his becoming a resident of Happy Hours, Defendants, and each of them, had a duty not to accept or retain John Smith as a resident when Defendants, and each of them, could not properly serve him and could not perform their duties.
At all relevant time during the residency of John Smith at Happy Hours from February 22, 2002 through March 29, 2002, when he finally was rescued, Defendants, and each of them, continually breached all of their duties to John Smith, which include, among other breaches, not continually assessing John Smith, not developing an individualized plan of services, not providing fluids and water, not monitoring, and not notifying Plaintiffs, John Smith's doctor or any doctor when changes in John Smith's condition occurred.
At a time unknown to Plaintiffs, but before March 29, 2002, Defendants, and each of them, knew that John Smith was not able to conduct the Activities of Daily Living, had not taken fluids and was suffering from profound dehydration, had been denied healthful living accommodations, was incontinent of bladder, remained in a urine soaked bed and as a result suffered skin infections and irritations, had suffered trauma resulting in open wounds to his toes which had progressed to gangrene, and had severe pressure ulcers on his heels which had progressed to gangrene, among other severe life threatening conditions. Notwithstanding such knowledge Defendants, and each of them, concealed from Plaintiffs John Smith's true condition and did not report his condition to Plaintiffs.
Notwithstanding Defendants' knowledge, at no time did Defendants, or any of them, conduct a Legislatively mandated re-appraisal "as frequently as necessary to note significant changes and keep appraisals accurate." Furthermore, Defendants, and each of them, retained John Smith as a resident when they could not fulfill their duties and promises to provide the assistance and care set forth above and refused to notify Plaintiffs, John Smith's physician or any doctor of the need to transfer John Smith to a skilled nursing facility; Defendants, and each of them, decided upon and followed a course of non-action, omission and concealment in order to keep John Smith as a source of income and profit. For example on March 28, 2002, Defendants' employee reported to Plaintiffs Matthew Smith and Elizabeth Smith that John Smith had enjoyed a "good lunch," which could not be the case in light of the diagnosis made the following day at Valley' Hospital.
* profound dehydration * gangrene in both feet * sepsis * pneumonia * acute renal failure * pressure ulcers and bed sores * open wounds * unjustifiable physical pain * severe mental and emotional distress and suffering and * other serious personal injuries.
See the attached record of History and Physical Examination by Dr. David Clark at Valley Hospital on March 29, 2002 and the attached photographs of April 2, 2002 of John Smith's bed sores and gangrene taken by doctors at Valley Hospital, which are incorporated by reference as though fully set forth.
These injuries and conditions each endangered the health and person of John Smith and not only were "likely to produce great bodily harm or death" but in fact did cause John Smith to suffer great pain, suffering and emotional distress and were the direct, legal, substantial and proximate cause of his death on April 10, 2002, all in violation of Penal Code § 368.
This statement of facts provides the basis for the Survival Action brought by and on behalf of the Estate of John Smith by and through his successor-in-interest, Matthew Smith and, in addition, serves as the basis for the separate and distinct claims for the wrongful death of John Smith brought by his heirs, as more fully described below.
The Survival Actions seek all damages caused as a direct, proximate and legal result of the negligence, intentional tort, fraud and breach of statutory duties committed by Defendants, and each of them, including pain, suffering, mental and emotional distress, the hospital and medical expenses incurred as a result of the acts of Defendants, and each of them and return of monies paid for residential care which was not provided.
California's Elder Abuse and Dependent Adult Civil Protection Act specifically provides and authorizes that, unlike any other civil action under California law for non-elders, John Smith's claims for damages for pain, suffering and severe mental and emotional distress survive his death and are properly collectible in this action. For that reason the Survival Actions are brought by John Smith's successor-in-interest on behalf of the Estate of John Smith, as if John Smith were alive today and making these same claims himself.
The Wrongful Death Action is a separate and distinct cause of action brought by the heirs of John Smith, as a direct, proximate and legal result of the acts of Defendants, and each of them, which have caused Plaintiffs to suffer the loss of the love, care, comfort and society of John Smith and in addition Plaintiffs have been damaged in the amount of the expenses related to his funeral.
Plaintiff in the Survival Action: Plaintiff Matthew Smith is the son of John Smith, Deceased is the Successor in Interest of the Decedent, has complied with the provisions of CCP § 377.32 and brings the survival actions on behalf of the Estate of John Smith, pursuant to Welfare and Institutions Code § 15657.3(d).
Plaintiffs in the Wrongful Death Action: The plaintiffs bringing the action for wrongful death are: Plaintiff Elizabeth Smith the surviving widow of John Smith and Matthew Smith, individually and as the personal representative on behalf of the daughters and sons of John Smith : Shelley Thomas, Dorothy Callan, Ellen Smith, Michael Smith and Matthew Smith. Plaintiff Elizabeth Smith was born on June 21, 1926, is age 75, was married to John Smith and for that reason has a substantial interest in this action; she respectfully petitions this court for a preferential and earliest trial date pursuant to California Code of Civil Procedure § 36.
At all relevant times, under Civil Code § 3345 the acts of Defendants, and each of them, constituted unfair and deceptive acts and practice and unfair methods of competition for the following reasons: first, Defendants, and each of them, knew that Defendants' conduct was directed to a senior citizen; second, Defendants' conduct caused John Smith and Plaintiff Elizabeth Smith to suffer substantial loss of their personal assets which were paid to Defendants and which were assets essential to the health and welfare of John Smith and Plaintiff Elizabeth Smith; and third, John Smith as a senior citizen was "substantially more vulnerable than other members of the public to the conduct" of the Defendants because of his "age, poor health, infirmity, impaired understanding, restricted mobility" and actually suffered "substantial", in this case lethal, physical injuries and outrageous emotional damage caused by the Defendants, and each of them. For these reasons Plaintiffs are entitled to all special relief provided by § 3345.
In addition the Estate of John Smith in this survivor's actions is entitled to reasonable attorneys fees pursuant to Welfare and Institutions Code § 15657 (a) and costs for bringing this action for the abuse, neglect and batteries suffered by John Smith and by the prolonged and continual mistreatment that John Smith was caused to suffer.


text:
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144) Zhou,X.; Lu, H.; Kong,L.; Zhang,D.; Zhang,W.; Nie,J.; Yuan,J.;, Du,B.; Wang, X.,* Thermo-Sensitive Microgels Supported Gold Nanoparticles as Temperature-Mediated Catalyst. Chin. J. Polym. Sci. 2019, 37(3), 235-242.
142) Sun, J.-K.; Zhang, W.; Guterman, R.; Lin, H.; Yuan, J.,*. Porous polycarbene-bearing membrane actuator for ultrasensitive weak-acid detection and real-time chemical reaction monitoring. Nat. Commun. 2018, 9, 1717.
141) Wang, H.;* , L.Wang; Wang, Q.; Ye, Y.; Sun, W.; Shao, Y.; Jiang, Z.; Qiao, Q.; Zhu, Y.; Song, P; Li, D.; He, L.; Zhang, X.; Yuan, J.;* Wu, T.; Ozin, G.A.,* Ambient Electro-Synthesis of Ammonia - Electrode Porosity and Composition Engineering. Angew. Chem. Int. Ed. 2018, 57, 12360-12364.
140) Zhang, W.; Zhao, Q.;* Yuan, J.,* Porous Polyelectrolytes: charge pores for more functionalities. Angew. Chem. Int. Ed. 2018, 57(23), 6754-6773.
139) Yin, M.-J.; Zhao, Q.;* Wu, J.; Seefeldt, K.; Yuan, J.,* Precise Micropatterning of a Porous Poly(ionic liquid) via Maskless Photolithography for High-Performance Nonenzymatic H2O2 Sensing. ACS Nano 2018, 12 (12), 12551-12557.
138) Shao, Y.; Jiang, Z.; Zhang, Y.; Wang, T.; Zhao, P.; Zhang, Z.; Yuan, J.; Wang, H.,* All-Poly(ionic liquid) Membrane-Derived Porous Carbon Membranes: Scalable Synthesis and Application for Photothermal Conversion in Seawater Desalination. ACS Nano 2018, 12 (11), 11704-11710.
137) Gong, J.; Zhang, J.; Lin, H.; Yuan, J.,* Cooking carbon in a solid salt": Synthesis of porous heteroatom-doped carbon foams for enhanced organic pollutant degradation under visible light. Appl. Mater. Today 2018, 12, 168-176.
136) Sun, J.-K.; Zhang, Y.; Yu, G.; Zhang, J.; Antonietti, M.; Yuan, J.,* Three Birds, One Stone - Photo-/Piezo-/Chemochromism in One Conjugated Nanoporous Ionic Organic Network. J. Mater. Chem. C 2018, 6, 9065-9070.
135) J. Wu, M. Yin, K. Seefeldt, A. Dani, R. Guterman, J. Yuan, A. P. Zhang,*, H.Y. Tama. In situ -printed optical fiber-tip CO2 sensor using a photocrosslinkable poly(ionic liquid). Sens. Actuat. B: Chemical. 2018, 259, 833-839.
134) Yu, X.; Sun, J.; Yuan, J.; Zhang, W.; Pan, C.; Liu, Y.; Yu, G., * One-pot synthesis of an ionic porous organic framework for metal-free catalytic CO2 fixation under ambient conditions, Chem. Eng. J., 2018, 350, 867-871.
133) Y. Wu, M. Regan, W. Zhang, J. Yuan*. Reprocessable Porous Poly(ionic liquid) Membranes derived from Main-chain Polyimidazolium. Eur. Polym. J. 2018, 103, 214-219.
132) Wang, H.; Yuan, J.,* et al., Synthesis of Single-crystal-like Nanoporous Carbon Membranes and Their Applications in Overall Water Splitting. Nat. Commun. 2017, 8, 13592.
131) Gong, J.; Lin, H.; Dunlop, J. W. C.;* Yuan, J.,* Hierarchically Arranged Helical Fiber Actuators Derived from Commercial Cloth. Adv. Mater. 2017, 29, 1605103.
130) Sun, J.; Kochovski, Z.; Zhang, W.; Kirmse, H.; Lu, Y.; Antonietti, M.; Yuan, J.,* General Synthetic Route Towards Highly Dispersed Metal Clusters Enabled by Poly(ionic liquid)s. J. Am. Chem. Soc. 2017, 139 (26), 8971 - 8976.
129) Sun, J.; Antonietti, M.; Yuan, J.,* A tale of two membranes: from poly(ionic liquid) to metal-organic framework membranes via pseudomorphic replication. Mater. Horiz. 2017, 4, 681 - 687.
128) Wang, H.; Jia, J.; Wang, Q.; Li, D.; Qian, C.; Wang, Lu.; Min, S.; Ma, C.; Wu, T.; Yuan, J.;* Antoniettie, M.; Ozin, G. A.,* Efficient Electrocatalytic Reduction of CO2 by Nitrogen-Doped Nanoporous Carbon/Carbon Nanotube Membranes - A Step Towards the Electrochemical CO2 Refinery. Angew. Chem. Int. Ed. 2017, DOI: 10.1002/anie.201703720.
127) Gong, J.; Antonietti, M.; Yuan, J.,* Poly(ionic liquid)-Derived Carbon with Site-Specific N-Doping and Biphasic Heterojunction for Enhanced CO 2 Capture and Sensing. Angew. Chem. Int. Ed. 2017, 29 (16), 1605103.
126) Wang, H.; Min, S.; Wang, Q.; Li, D.; Casillas, G.; Ma, C.; Li, Y.; Liu, Z.; Li, L.; Yuan, J.,* Antonietti, M.; Wu, T.,* Nitrogen-Doped Nanoporous Carbon Membranes with Co/CoP Janus-Type Nanocrystals as Hydrogen Evolution Electrode in Both Acid and Alkaline Environment. ACS Nano 2017, 11 (4), 4358 - 4364.
125) Dani, A.;* Crocella, V. ; Magistris, C.; Santoro, V.; Yuan, J.; Bordiga, S.,* Click-Based Porous Cationic Polymers for Enhanced Carbon Diox-ide Capture. J. Mater.Chem. A 2017, 5, 372 - 383.
124) Lin, H.; Gong, J.; Miao, H.; Guterman, R.; Song, H; Dunlop, J. W. C.;* Yuan, J.,* Flexible and Actuating Nanoporous Poly(ionic liquids)-paper based Hybrid Membranes. ACS Appl. Mater. Interfac 2017, 9 (17), 15148 - 15155.
123) Willa, C.; Schmid, A.; Briand, D.; Yuan, J.; Koziej, D.,* Lightweight, Room Temperature CO2 Gas Sensor Based on Rare-Earth Metal Free Composites - An Impedance Study. ACS Appl. Mater. Interfac. 2017, 9 (30), 25553 - 25558.
122) Gao, M.; Yuan, J.; Antonietti, M.,* Ionic liquid in controlled synthesis of inorganic materials. Chem. Eur. J. 2017, 23 (23), 5391 - 5403.
121) Lin, H.; Gong, J.; Eder, M.; Peng, H.; Dunlop, J.W.C.; Yuan, J.,* Programmable actuation of porous poly(ionic liquid) membranes by aligned carbon nanotubes. Adv. Mater. Interfaces. 2017, 1600768.
120) Dani, A.; Taeuber, K.; Yuan, J.,* Covalent Crosslinking of Porous Poly(Ionic Liquid) Membrane. ACS Macro Lett. 2017, 6, 1 - 5.
119) Frenzel, F.; Guterman, R.; Anton, A. M.; Yuan, J.; Kremer, F., Molecular dynamics and charge transport in highly conductive Polymeric Ionic Liquids. Macromolecules 2017, 50 (10), 4022 - 4029.
118) Dani, A.; Taeuber, K.; Schlaad, H.;* Yuan, J.,* Stable covalently photo-crosslinked poly(ionic liquid) membrane with gradient pore size. Macromol. Rapid Commun. 2017, 38(16), 1700167.
117) Guterman, R.,* Antonietti, M., Yuan, J.,* Plants to Polyelectrolytes: Theophylline Polymers and Their Microsphere Synthesis. Macromol. Rapid Commun. 2017, 38 (8), 1600748.
116) Cao, C.; Chen, J.; Yuan, J.;* Han, B.,* Synthesis of porous polymer/tissue paper hybrid membranes for switchable oil/water separation. Sci. Report 2017, 7, 3101.
115) Gong, J.; Lin, H.; Grygiel, K.; Yuan, J.*, Main-chain poly(ionic liquid)-derived nitrogen-doped micro/mesoporous carbons for CO2 capture and selective aerobic oxidation of alcohols. Applied Mater. Today 2017, 7,159 - 168.
114) Zhang, W.; Willa, C.; Sun, J.; Guterman, R.; Taubert, A.; Yuan, J.*, Polytriazolium poly(ionic liquid) bearing triiodide anions: synthesis, basic properties and electrochemical behaviors. Polymer 2017, 124, 246-251.
113) Grygiel, K., Gong, J., Antonietti, M., Yuan, J.,* Main-chain Polyimidazolium Polymers by One-pot Synthesis and Application as Nitrogen-doped Carbon Precursors. Macromol. Chem. Phys. 2017, 218 (18), 1600586..
112) Ajjan, F.N.; Ambrogi, M.; Yuan, J. ; etc. Innovative Polyelectrolytes/Poly(ionic liquid)s for Energy and Environment (RENAISSANCE-ITN Project). Polym. Int. 2017, 66 (8), 1119 - 1128.
111) Sun, J.; Antonietti, M.; Yuan, J.,* Nanoporous ionic organic networks: from synthesis to materials applications. Chem. Soc. Rev. 2016, 45, 6627 - 6656.
110) Zhang, W.; Kochovski, Z.; Lu, Y.; Schmidt, B. V. K. J.;* Antonietti, M.; Yuan, J.,* Internal Morphology-Controllable Self-Assembly in Poly(Ionic Liquid) Nanoparticles. ACS Nano, 2016, 10 (8), 7731-7737.
109) Gao, M.;* Yu, S.; Yuan, J.: Zhang, W.; Antonietti, M., Poly(ionic liquid)-mediated morphogenesis of bismuth sulfide with tunable band gap and emerged electrocatalytic property. Angew. Chem. Int. Ed. 2016, 55, 12812-12816.
108) Cecchini, M. M.; Steinkoenig, J.; Reale, S.; Barner, L.; Yuan, J.; Goldmann, A. S.; Angelis, F. D.; Barner-Kowollik, C., Universal mass spectrometric analysis of poly(ionic liquid)s, Chem. Sci., 2016, 7, 4912-4921.
107) Gong, J.; Lin, H.; Antonietti, M.; Yuan, J.:* Nitrogen-doped porous carbon nanosheets derived from poly(ionic liquid)s: hierarchical pore structures for efficient CO2 capture and dye removal. J. Mater. Chem. A, 2016, 4, 7313-7321.
106) Yang, J.; Yuan, J.; Huang, F., Construction of a pillararene based water-soluble supramolecular pseudopolyrotaxane driven by cucurbituril-enhanced π-π interaction. Chem. Commun. 2016, 52, 12510-12512.
105) Dong, S.; Heyda, J.;* Yuan, J.; Schalley, C. A.,* Lower critical solution temperature (LCST) phase behaviour of an ionic liquid and its control by supramolecular host–guest interactions. Chem. Commun., 2016,52, 7970-7973.
104) Song, H.; Lin, H.; Antonietti, M.; Yuan, J.:* From Filter Paper to Functional Actuator by Poly(Ionic Liquid)-Modified Graphene Oxide. Adv. Mater. Inter. 3, 12, 1500743.
103) Cao, J; Jafta, C.; Gong, J.; Ran, Q.; Lin, X.; Félix, R.; Wilks, R.; Bär, M.; Yuan, J.; Ballauff, M.; Lu, Y.,* Synthesis of Dispersible Mesoporous Nitrogen-doped Hollow Carbon Nanoplates with Uniform Hexagonal Morphologies for Supercapacitors. ACS Appl. Mater. Interfaces 2016, 8 (43), 29628–29636.
100) Guterman, R.; Ambrogi, M.; Yuan, J.:* Harnessing Poly(ionic liquid)s for Sensing Applications. Macromol. Rapid Commun. 2016, 37, 1106−1115.
99) Steinkoenig, J.; Bloesser, F.R.; Huber, B.; Welle, A.; Trouillet, V., Weidner, S.M.; Roesky, P.W.; Yuan, J.;* Goldmann, A.S.;* Barner-Kowollik, C.,* Controlled Radical Polymerization and In-Depth Mass-Spectrometric Characterization of Poly(Ionic Liquid)s and their Photopatterning on Surfaces. Polym. Chem. 2016,7, 451-461.
98) Zhang, W.; Kochovski, Z.; Schmidt, B. V. K. J.; Antonietti, M.; Yuan, J.,* Crosslinked triazolium Poly(Ionic Liquid) Nanoparticles. Polymer, 2016, 107, 509–516.
97) Fernandes, A. M.; Paulis, M.; Yuan, J.;* Mecerreyes, D.,* Magnetic poly(ionic liquid) microcapsules for Oil Capture and Recovery. Particle & Particle Systems Characterization, 2016, 33, 734–739.
96) Men, Y.; Ambrogi, M.; Han, B.; Yuan, J.:* Fast Conversion of Ionic Liquids and Poly(Ionic Liquid)s into Porous Nitrogen-Doped Carbons in Air. Inter. J. Mol. Sci. 2016, 17 (4), 532.
94) Ghasimi, S.; Prescher, S.; Wang, Z. J.; Landfester, K.; Yuan, J.;* Zhang, K. A. I.,* Heterophase photocatalyst from water-soluble conjugated polyelectrolytes: a self-initiation example under visible light. Angew. Chem. Int. Ed. 2015, 54, 14549 –14553.
93) Zhao, Q.; Heyda, J.; Dzubiella, J.; Dunlop, J.; Yuan, J.,* Sensing solvents with ultra-sensitive porous poly(ionic liquid) actuators. Adv. Mater. 2015, 27, 2913–2917.
92) Willa, C.; Yuan, J.; Niederberger, M.; Koziej, D., When Nanoparticles meet Poly(Ionic Liquid)s: chemoresistive CO2 sensing at room temperature. Adv. Funct. Mater. 2015, 25, 2537–2542.
91) Yang, Y.; Ambrogi, M.; Kirmse, H.; Men, Y.; Antonietti, M.; Yuan, J.,* Poly(ionic liquid) Core Turns Hollow Silica Spheres into Amphiphilic Nanoreactor in Water. Chem. Mater. 2015, 27, 127–132.
90) Yuan, J.;* Prescher, S.; Sakaushi, K.;* Antonietti, M., Novel Polyvinylimidazolium Nanoparticles as High-performance Binders for Lithium-ion Battery. J. Mater. Chem. A, 2015, 3, 7229-7234.
89) Ambrogi, H.; Taeuber, K.; Antonietti, M.; Yuan, J.,* Microstructure Replication of complex biostructures via Poly(ionic liquid)-assisted Carbonization. J. Mater. Chem. A 2015, 3, 5778-5782.
88) Taeuber, K.; Zhao, Q.; Antonietti, A.; Yuan, J.;* Tuning the pore size in gradient poly(ionic liquid) membranes by small organic acids. ACS Macro Lett. 2015, 4, 39–42.
87) Grygiel, K.; Lee, J.; Sakaushi, K.; Antonietti, M.; Yuan, J.,* Thiazolium poly(ionic liquid)s: synthesis and application as binder for lithium-ion batteries. ACS Macro Lett. 2015, 4, 1312–1316.
86) Täuber, K.; Lepenies, B.; Yuan, J.,* Polyvinylpyridinium-type gradient porous membranes: synthesis, actuation and intrinsic cell growth inhibition. Polym. Chem. 2015,6, 4855-4858.
84) Mäkiniemi, R. O.; Das, P.; Hönders, D.; Grygiel, K.; Cordella, D.; Detrembleur, C.; Yuan, J.; Walther, A., Facile Access to Large-Scale, Self-Assembled, Nacre-Inspired, High-Performance Materials with Tunable Nanoscale Periodicities. ACS Appl. Mater. Interfaces, 2015, 7 (29), 15681–15685.
83) Mascotto, S.;* Kuzmicz, D.; Wallacher, D.; Siebenbürger, M.; Clemens, D.; Risse, S.; Yuan, J.; Antonietti, M.; Ballauff, M., Poly(ionic liquid)-derived nanoporous carbon analyzed by combination of gas physisorption and small-angle neutron scattering. Carbon 2015, 82, 425–435.
82) Einert, M.; Wessel, C.; Badaczewski, F.; Leichtweiß, T.; Eufinger, C.; Janek, J.; Yuan, J.; Antonietti, M.; Smarsly, B. M., Nitrogen-doped Carbon Electrodes: Influence of Microstructure and Nitrogen Configuration on the Electrical Conductivity of Carbonized Poly(acrylonitrile) and Poly(Ionic Liquid) Blends. Macromol. Chem. Phys. 2015, 216(19), 1930–1944.
81) Täuber, K.; Zimathies, A.; Yuan, J.* Porous membranes built up from hydrophilic poly(ionic liquid)s. Macromol. Rapid Commun. 2015, 36, 2176−2180.
80) Ambrogi, M.; Sakaushi, K.; Antonietti, M.; Yuan, J.* Poly(ionic liquid)s for enhanced activation of cotton to generate simple and cheap fibrous electrodes for energy applications. Polymer, 2015, 68(26), 315-320.
79) Mai, T.; Boye, S.; Yuan, J.; Völkel, A.; Gräwert, M.; Günter, C.; Lederer, A.; Taubert, A.,* Poly(ethylene oxide)-based block copolymers with very high molecular weights for biomimetic calcium phosphate mineralization. RSC Adv. 2015, 5, 103494-103505.
78) Lee, J.; Sakaushi, K.;* Antonietti, M.; Yuan, J.,* Poly(ionic liquid) Binders as Li+ Conducting Mediators for Enhanced Electrochemical Performance. RSC Adv. 2015, 5 (104), 85517-85522.
77) Zhao, Q.; Dunlop, J. W. C.; Qiu, X.; Huang, F.; Zhang, Z.; Heyda, J.; Dzubiella, J.; Antonietti, M.; Yuan, J.,* An instant multi-responsive porous polymer actuator operating via solvent molecule sorption. Nat. Commun. 2014, 5, 4293.
75) Prescher, S.; Polzer, F.; Yang, Y.; Siebenbürger, M.; Ballauff, M.; Yuan, J.,* Polyelectrolyte as Solvent and Reaction Medium. J. Am. Chem. Soc. 2014, 136 (1), 12–15.
74) Dong, S.; Yuan, J.; Huang. F.,* A pillararene/imidazolium rotaxane: solvent- and thermo-driven molecular motions and supramolecular gel formation. Chem. Sci. 2014, 5, 247-252.
73) Men, Y.; Kuzmicz, D.; Yuan, J.,* Poly(ionic liquid) colloidal particles. Curr. Opin. Coll. Interface Sci. 2014, 19(2), 76–83.
72) Heyda, J.; Sebastian Soll, Yuan, J., Dzubiella, J.,* Thermodynamic Description of Charge-Induced Changes of the Critical Solution Temperature of Stimuli-Responsive Copolymers. Macromolecules 2014, 47 (6), 2096–2102.
71) Zhang, Z.; Zhao, Q.; Yuan, J.;* Antonietti, M.; Huang, F.*, Hybrid porous material from a pillararene and a poly(ionic liquid): selective adsorption of n-alkylene diols. Chem. Commun. 2014, 50, 2595-2597.
70) Grygiel, K.; Wicklein, B.; Zhao, Q.; Ederc, M.; Pettersson, T.; Bergström, L.; Antonietti, M.; Yuan, J.,* Poly(ionic liquid)-functionalized nanofibrillated cellulose for porous polymer membrane reinforcement. Chem. Commun. 2014, 50 (83), 12486 - 12489.
69) Men, Y.; Schlaad, H.;* Voelkel, A,: Yuan, J.,* Thermoresponsive Polymerized Gemini Dicationic Ionic Liquid. Polym. Chem.2014, 5, 3719-3724.
68) Prescher, S.; Ghasimi, S.; Höhne, P.; Grygiel, K.; Landfester, K.; Zhang, K.A.I.;* Yuan, J.,* Polyfluorene polyelectrolyte nanoparticles: synthesis of innovative stabilizers for heterophase polymerization. Macromol. Rapid Commun. 2014, 35(22), 1925−1930.
67) Mai, T.; Rakhmatullina, E.; Bleek, K.; Boye, S.; Yuan, J.; Völkel, A.; Gräwert, M.; Cheaib, Z.; Eick, S.; Günter, C.; Lederer, A.; Lussi, A.; Taubert, A.,* Poly(ethylene oxide)-b-poly(3-sulfopropyl methacrylate) block copolymers for calcium phosphate mineralization and biofilm inhibition. Biomacromolecules. Biomacromolecules, 2014, 15 (11), 3901–3914.
65) Soll, S.; Antonietti, M.; Yuan, J.,* Poly(ionic liquid) nanoparticles as novel colloidal template for silica nanocasting. Polymer, 2014, 55(16), 3415-3422.
64) Kuzmicz, D.; Coupillaud, P.; Men, Y.; Vignolle, J.; Vendraminetto, G.; Ambrogi, M.; Taton, D.;* Yuan, J.,* Functional mesoporous poly(ionic liquid)-based copolymer monoliths: from synthesis to catalysis and microporous carbon production. Polymer 2014, 55(16), 3423-3430.
61) Grygiel, K.; Chabanne, L.; Men, Y.; Yuan, J.,* Thiazolium-containing Poly(ionic liquid)s and Ionic Polymers. Macromol. Symp. 2014, 342, (1), 67–77.
60) Zhang, P.; Yuan, J.*; Fellinger, T-P.; Antonietti, M.; Li, H.; Wang, Y.,* Improving Hydrothermal Carbonization by Poly(ionic liquid)s, Angew. Chem. Int. Ed. 2013, 52, (23), 6028–6032.
59) Dong, S.; Zheng, B.; Yao, Y.; Han, C.; Yuan, J.;* Antonietti, M.; Huang, F.,* LCST-Type Phase Behavior Induced by Pillararene/Ionic Liquid Host-Guest Complexation. Adv. Mater. 2013, 25, (47), 6864–6867.
58) Fellinger, T-P.; Thomas, A.; Yuan, J.; Antonietti, M.,* Cooking Carbon with Salt: Carbon Materials and Carbonaceous Frameworks from Ionic liquids and Poly(ionic liquid)s. Adv. Mater. 2013, 25(41), 5838–5855.
57) Zhao, Q.; Yin, M.; Zhang, A. P.; Prescher, S.; Antonietti, M.; Yuan, J.,* Hierarchically Structured Nanoporous Poly(Ionic Liquid) Membranes: Facile Preparation and Application in Fiber-Optic pH Sensing. J. Am. Chem. Soc. 2013, 135 (15), 5549–5552.
56) Yuan, J.;* Mecerreyes, D.; Antonietti, M.;* Poly(ionic liquid)s: an Update. Prog. Polym. Sci. 2013, 38(7), 1009–1036.
55) Soll, S.; Fellinger, T.-P.; Wang, X.; Zhao, Q.; Antonietti, M.; Yuan, J.,* Water Dispersible, highly Graphitic Nitrogen-doped Carbon Nanobubbles. Small 2013, 9, (24), 4135-4141.
54) Soll, S.; Zhao, Q.; Weber, J.; Yuan, J.,* Activated CO2 Sorption in Mesoporous Imidazolium-type Poly(Ionic Liquid)-based Polyampholytes. Chem. Mater. 2013, 25, (15), 3003–3010.
53) Zhao, Q.; Fellinger, T.-P.; Antonietti, M.; Yuan, J.,* A Novel Polymeric Precursor for Micro/mesoporous Nitrogen-doped Carbons, J. Mater. Chem. A 2013, 1, 5113-5120.
52) Men, Y.; Siebenbürger, M.; Qiu, X.; Antonietti, M.; Yuan, J.,* Low fractions of ionic liquid or poly(ionic liquid) can activate polysaccharide biomass into shaped, flexible and fire-retardant porous carbons. J. Mater. Chem. A 2013,1, 11887-11893.
51) Men, Y.; Schlaad, H.; Yuan, J.,* Cationic Poly(ionic liquid) with Tunable Lower Critical Solution Temperature-Type Phase Transition. ACS Macro Lett. 2013, 2 (5), 456–459.
50) Men, Y.; Drechsler, M.; Yuan, J.,* Double-stimuli responsive spherical polymer brushes with a poly(ionic liquid) core and a thermoresponsive shell, Macromol. Rapid Commun. 2013, 34, (21), 1721–1727.
49) Rozik, N.; Antonietti, M.; Yuan, J.*; Tauer, K.,* Polymerized Ionic Liquid as Stabilizer in Aqueous Emulsion Polymerization Enable a Hydrophilic - Hydrophobic Transition during Film Formation, Macromol. Rapid Commun. 2013, 34, (8), 665–671.
48) Soll, S.; Zhang, P.; Zhao, Q.; Wang, Y.; Yuan, J.,* Mesoporous zwitterionic poly(ionic liquid)s: intrinsic complexation and efficient catalytic fixation of CO2. Polym. Chem. 2013,4, 5048-5051.
47) Zhao, Q.; Soll, S.; Antonietti, M.; Yuan, J.,* Organic Acids Can Crosslink Poly(ionic liquid)s into Mesoporous Polyelectrolyte Complex, Polym. Chem., 2013, 4, 2432-2435.
46) Zhang, P.; Yuan, J.; Li, H.; Liu, X.; Xu, X.; Antonietti , M.; Wang, Y.;* Mesoporous nitrogen-doped carbon for copper-mediated Ullmann-type C-O/-N/-S cross-coupling reactions. RSC Adv. 2013, 3, 1890-1895.
45) Balach, J.; Wu, H.; Polzer, F.; Kirmse, H.; Zhao, Q.; Wei, Z.;* Yuan, J.,* Poly(ionic liquid)-derived nitrogen-doped hollow carbon spheres: synthesis and loading with Fe2O3 for high-performance lithium ion batteries. RSC Adv. 2013, 3, 7979-7986.
44) Zhao, Q.; Zhang, P.; Antonietti, M.; Yuan, J.,* Poly(ionic liquid) Complex with Spontaneous Micro-/Mesoporosity: Template-Free Synthesis and Application as Catalyst Support. J. Am. Chem. Soc.2012, 134, (29), 11852-11855.
43) Zhang, W.;* Yuan, J.; Weiss, S.; Ye, X.; Li, C.; Mueller, A. H. E.,* Telechelic Hybrid Poly(acrylic acid)s Containing Polyhedral Oligomeric Silsesquioxane (POSS) and Their Self-Assembly in Water. Macromolecules2012, 44, (17), 6891-6898.
42) Wilke, A.; Yuan, J.;* Antonietti, M.; Weber, J.,* Enhanced Carbon Dioxide Adsorption by a Mesoporous Poly(ionic liquid). ACS Macro Lett.2012, 1028-1031.
41) Soll, S.; Antonietti, M.; Yuan, J.,* Double Stimuli-Responsive Copolymer Stabilizers for Multiwalled Carbon Nanotubes. ACS Macro Lett.2012, 1, (1), 84-87.
40) Schliehe, C.; Yuan, J.; Glatzel, S.; Siemensmeyer, K.; Kiefer, K.; Giordano, C.,* Iron Nitride and Carbide: from Crystalline Nanoparticles to Stable Aqueous Dispersions. Chem. Mater.2012, 24, (14), 2716-2721.
39) Men, Y.; Li, X.-H.; Antonietti, M.; Yuan, J.,* Poly(tetrabutylphosphonium 4-styrenesulfonate): a poly(ionic liquid) stabilizer for graphene being multi-responsive. Polym. Chem.2012, 3, (4), 871-873.
38) Koebe, M.; Drechsler, M.; Weber, J.; Yuan, J.,* Crosslinked Poly(ionic liquid) Nanoparticles: Inner Structure, Size, and Morphology. Macromol. Rapid Commun.2012, 33, (8), 646–651.
37) Zhao, Q.; Fellinger, T.-P.; Antonietti, M.; Yuan, J.,* Nitrogen-Doped Carbon Capsules via Poly(ionic liquid)-Based Layer-by-Layer Assembly. Macromol. Rapid Commun. 2012, 33, (13), 1149-1153.
36) Yuan, J.; Wunder, S.; Warmuth, F.; Lu, Y.,* Spherical polymer brushes with vinylimidazolium-type poly(ionic liquid) chains as support for metallic nanoparticles. Polymer2012, 53, (1), 43-49.
35) Yuan, J.;* Soll, S.; Drechsler, M.; Müller, A. H. E.; Antonietti, M., Self-Assembly of Poly(ionic liquid)s: Polymerization, Mesostructure Formation, and Directional Alignment in One Step. J. Am. Chem. Soc. 2011, 133, (44), 17556-17559.
34) Yuan, J.; Xu, Y.; Müller, A. H. E.,* One-dimensional magnetic inorganic–organic hybrid nanomaterials. Chem. Soc. Rev.2011, 40, 640-655.
33) Yuan, J.;* ten Brummelhuis, N.; Junginger, M.; Xie, Z.; Lu, Y.; Taubert, A.; Schlaad, H.,* Diversified Applications of Chemically Modified 1,2-Polybutadiene. Macromol. Rapid Commun.2011, 32, (15), 1157-1162.
32) Yuan, J.;* Marquez, A. G.; Reinacher, J.; Giordano, C.; Janek, J.; Antonietti, M., Nitrogen-doped carbon fibers and membranes by carbonization of electrospun poly(ionic liquid)s. Polym. Chem. 2011, 2, (8), 1654-1657.
31) Yuan, J.;* Antonietti, M., Poly(ionic liquid) Latexes Prepared by Dispersion Polymerization of Ionic Liquid Monomers. Macromolecules 2011, 44, (4), 744-750.
30) Yuan, J.;* Antonietti, M., Poly(ionic liquid)s: Polymers expanding classical property profiles. Polymer 2011, 52, (7), 1469-1482.
29) Zhang, W.;* Wang, S.; Li, X.; Yuan, J.; Wang, S., Organic/inorganic hybrid star-shaped block copolymers of poly(l-lactide) and poly(N-isopropylacrylamide) with a polyhedral oligomeric silsesquioxane core: Synthesis and self-assembly. Eur. Polym. J.2011, 48, (4), 720-729.
28) Yuan, J.;* Schlaad, H.; Giordano, C.; Antonietti, M., Double hydrophilic diblock copolymers containing a poly(ionic liquid) segment: Controlled synthesis, solution property, and application as carbon precursor. Eur. Polym. J. 2011, 47, (4), 772-781.
27) Lu, Y.;* Yuan, J.; Polzer, F.; Drechsler, M.; Preussner, J., In Situ Growth of Catalytic Active Au-Pt Bimetallic Nanorods in Thermoresponsive Core-Shell Microgels. ACS Nano 2010, 4, (12), 7078-7086.
26) Müllner, M.; Yuan, J.; Weiss, S.; Walther, A.; Förtsch, M.; Drechsler, M.; Müller, A. H. E.,* Water-Soluble Organo-Silica Hybrid Nanotubes Templated by Cylindrical Polymer Brushes. J. Am. Chem. Soc. 2010, 132, (46), 16587-16592.
25) Xu, Y.; Yuan, J.; Fang, B.; Drechsler, M.; Bolisetty, S.; Ballauff, M.; Müller, A. H. E.,* Hybrids of Magnetic Nanoparticles with Double-hydrophilic Core-shell Cylindrical Polymer Brushes and their Alignment in a Magnetic Field. Adv. Funct. Mater. 2010, 20, (23), 4182–4189.
24) Yuan, J.;* Giordano, C.; Antonietti, M., Ionic Liquid Monomers and Polymers as Precursors of Highly Conductive, Mesoporous, Graphitic Carbon Nanostructures. Chem. Mater. 2010, 22, (17), 5003 - 5012.
23) Yuan, J.; Schacher, F.; Drechsler, M.; Hanisch, A.; Lu, Y.; Ballauff, M.; Müller, A. H. E.,* Stimuli-Responsive Organosilica Hybrid Nanowires Decorated with Metal Nanoparticles. Chem. Mater. 2010, 22, (8), 2626-2634.
22) Yuan, J.; Müller, A. H. E.,* One-dimensional organic-inorganic hybrid nanomaterials. Polymer 2010, 51, (18), 4015-4036.
21) Schacher, F.; Yuan, J.; Schoberth, H. G.; Müller, A. H. E.,* Synthesis, characterization, and bulk crosslinking of polybutadiene-block-poly(2-vinyl pyridine)-block-poly(tert-butyl methacrylate) block terpolymers. Polymer 2010, 51, (9), 2021-2032.
20) Wagner, C. S.; Shehata, S.; Henzler, K.; Yuan, J.; Wittemann, A.,* Towards nanoscale composite particles of dual complexity. J. Colloid Interface Sci. 2010, 355, (1), 115-123.
19) Yuan, J.; Walther, A.; Müller, A. H. E.,* Template-directed synthesis of hybrid nanowires and nanorods. Physica status solidi (b) 2010, 247, (10), 2436-2450.
18) Goldmann, A. S.; Schödel, C.; Walther, A.; Yuan, J.; Loos, K.; Müller, A. H. E.,* Biomimetic Mussel Adhesive Inspired Clickable Anchors Applied to the Functionalization of Fe3O4 Nanoparticles. Macromol. Rapid Commun. 2010, 31, (18), 1608-1615.
17) Yuan, J.; Gao, H.; Schacher, F.; Xu, Y.; Richter, R.; Tremel, W.; Müller, A. H. E.,* Alignment of Tellurium Nanorods via a Magnetization-Alignment-Demagnetization ("MAD") Process Assisted by an External Magnetic Field. ACS Nano 2009, 3, (6), 1441-1450.
16) Walther, A.; Yuan, J.; Abetz, V.; Müller, A. H. E.,* Structure-Tunable Bidirectional Hybrid Nanowires via Multicompartment Cylinders. Nano Lett. 2009, 9, (5), 2026-2030.
15) Fang, B.; Walther, A.; Wolf, A.; Xu, Y.; Yuan, J.; Müller, A. H. E.,* Undulated Multicompartment Cylinders by the Controlled and Directed Stacking of Polymer Micelles with a Compartmentalized Corona. Angew. Chem. Int. Ed. 2009, 121, (16), 2921-2924.
14) Yuan, J.; Lu, Y.; Schacher, F.; Lunkenbein, T.; Weiss, S.; Schmalz, H.; Müller, A. H. E.,* Template-Directed Synthesis of Hybrid Titania Nanowires within Core-Shell Bishydrophilic Cylindrical Polymer Brushes. Chem. Mater. 2009, 21, (18), 4146-4154.
13) Xu, Y.; Bolisetty, S.; Drechsler, M.; Fang, B.; Yuan, J.; Harnau, L.; Ballauff, M.; Müller, A. H. E.,* Manipulating cylindrical polyelectrolyte brushes on the nanoscale by counterions: collapse transition to helical structures. Soft Matt. 2009, 5, (2), 379-384.
12) Schumacher, M.; Ruppel, M.; Yuan, J.; Schmalz, H.; Colombani, O.; Drechsler, M.; Müller, A. H. E.,* Smart Organic-Inorganic Nanohybrids Based on Amphiphilic Block Copolymer Micelles and Functional Silsesquioxane Nanoparticles. Langmuir 2009, 25, (6), 3407-3417.
11) Xu, Y.; Yuan, J.; Müller, A. H. E.,* Single-molecular hybrid nano-cylinders: Attaching polyhedral oligomeric silsesquioxane covalently to poly(glycidyl methacrylate) cylindrical brushes. Polymer 2009, 50, (25), 5933-5939.
10) Yuan, J.; Xu, Y.; Walther, A.; Bolisetty, S.; Schumacher, M.; Schmalz, H.; Ballauff, M.; Müller, A. H. E.,* Water-soluble organo-silica hybrid nanowires. Nat. Mater. 2008, 7, (9), 718-722.
9) Yuan, J.; Schmalz, H.; Xu, Y.; Miyajima, N.; Drechsler, M.; Möller, M. W.; Schacher, F.; Müller, A. H. E.,* Room-temperature growth of uniform tellurium nanorods and the assembly of tellurium or Fe3O4 nanoparticles on the nanorods. Adv. Mater. 2008, 20, (5), 947-952.
8) Yuan, J.; Drechsler, M.; Xu, Y.; Zhang, M.; Müller, A. H. E.,* Cadmium selenide nanowires within core-shell cylindrical polymer brushes: Synthesis, characterization and the double-loading process. Polymer 2008, 49, (6), 1547-1554.
7) Petrov, P.;* Yuan, J.; Yoncheva, K.; Müller, A. H. E.; Tsvetanov, C. B., Wormlike Morphology Formation and Stabilization of Pluronic P123Micelles by Solubilization of Pentaerythritol Tetraacrylate. J. Phys. Chem. B 2008, 112, (30), 8879-8883.
6) Schmalz, H.; Schmelz, J.; Drechsler, M.; Yuan, J.; Walther, A.; Schweimer, K.; Mihut, A. M.,* Thermo-Reversible Formation of Wormlike Micelles with a Microphase-Separated Corona from a Semicrystalline Triblock Terpolymer. Macromolecules 2008, 41, (9), 3235-3242.
5) Xu, Y.; Bolisetty, S.; Drechsler, M.; Fang, B.; Yuan, J.; Ballauff, M.; Müller, A. H. E.,* pH and salt responsive poly(N,N-dimethylaminoethyl methacrylate) cylindrical brushes and their quaternized derivatives. Polymer 2008, 49, (18), 3957-3964.
4) Gao, C.; Muthukrishnan, S.; Li, W.; Yuan, J.; Xu, Y.; Müller, A. H. E.,* Linear and Hyperbranched Glycopolymer-Functionalized Carbon Nanotubes: Synthesis, Kinetics, and Characterization. Macromolecules 2007, 40, (6), 1803-1815.
3) Xu, Y.; Becker, H.; Yuan, J.; Burkhardt, M.; Zhang, Y.; Walther, A.; Bolisetty, S.; Ballauff, M.; Müller, A. H. E.,* Double-Grafted Cylindrical Brushes: Synthesis and Characterization of Poly(lauryl methacrylate) Brushes. Macromol. Chem. Phys. 2007, 208, (15), 1666-1675.
2) Liu, S. H.; Qian, X. F.;* Yuan, J.; Yin, J.; He, R.; Zhu, Z. K., Synthesis of monodispersed CdSe nanocrystals in poly(styrene-alt-maleic anhydride) at room temperature. Mater. Res. Bull. 2003, 38, (8), 1359-1366.
1) Liu, S. H.; Qian, X. F.;* Yin, J.; Ma, X. D.; Yuan, J.; Zhu, Z. K., Preparation and characterization of polymer-capped CdS nanocrystals. J. Phys. Chem. Solids 2003, 64, (3), 455-458.
6) Guterman, R.; Yuan, J.; Sobhanadhas, L.S.; Alvarez, G.S., Sustainable organic-inorganic interfaces in energy applications and devices. 2017, Wiley book, in review.
5) Yuan, J.; Antonietti, M. “Poly(ionic liquid)s as Ionic Liquid-based Innovative Polyelectrolytes.” In “Applications of Ionic Liquids in Polymer Science and Technology.” Mecerreyes, David (Ed.). Springer, ISBN 978-3-662-44903-5 (2015).
4) Yang,Y.; Yuan, J.* “Poly(ionic liquid)-based shaped functional carbon nanomateraials”, in “Polymer Precursor-Derived Carbon”, ACS Symposium Series 1173, Edited by Amit K. Naskar and Wesley P. Hoffman, ISBN13: 9780841229662, eISBN: 9780841229679, DOI: 10.1021/bk-2014-1173 (2015).
3) Yuan, J.; Müller, A.H.E.: Cylindrical polymer brushes in: Synthesis of Polymers, Vol. 1, A.D. Schlüter, C.J. Hawker, M. Sawamoto, Eds., Wiley-VCH, Weinheim, p. 263 (2012).
1) Plamper, F.A.; Xu, Y.; Yuan, J.; Ballauff, M.; Müller, A.H.E.: Polyelectrolyte stars and cylindrical brushes made by ATRP: New building blocks in nanotechnology in: New Smart Materials via Metal Mediated Macromolecular Engineering, E. Khosravi, Y. Yagci, Y. Savelyev, Eds., NATO Science for Peace and Security Series, Springer, Dordrecht, p. 17-36, ISBN 978-90-481-3276-8 (2009).
2) Cao, C.; Yuan, J.; Han, B.-H., The Preparation of Solvent-responsive Ionic Organic Porous Membrane and its Application. Patent KHP171112317.4, filing in process.
1) Yuan, J.; Sakaushi, K.; Fechler, N.; Antoneitti, M., Use of a poly(ionic liquid) polymer as a binder material for electrodes in electrochemical devices. PCT/EP2015/002169 (filing date on 2015-10-28).

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What Does The Family Of A Victim Need To Know About A Wrongful Death Claim?What Does The Family Of A Victim Need To Know About A Wrongful Death Claim?
Losing a loved one is always tragic. The law offers redress when a death is caused by the carelessness of someone else. While these lawsuits cannot bring the loved one back, they can ensure that those individuals who survived the deceased are provided for. These claims are known as wrongful death claims and are directly provided for by Kansas law. The details of the Kansas wrongful death statute (K.S.A. § 60-1901) are discussed on this page.
Generally, lawsuits are brought by the injured party and are allowed to continue if that party dies. However, wrongful death claims are different. K.S.A. § 60-1902 will only allow an “heir at law” of the deceased to initiate a wrongful death lawsuit. This is not the estate of the deceased. An heir at law is a spouse or blood relative of the deceased individual. “The estate” of the deceased refers to the estate’s executor. The executor is in charge of dealing with the deceased individual’s affairs, debts, and other business. This distinction can result is some odd findings, as is what happened in the case Lewis v. BHS College Meadows. In Lewis, a man died after he received negligent medical treatment which prompted his daughter to bring both a claim for medical malpractice and wrongful death. The court held that the she could only bring the wrongful death claim (as she was heir at law to the deceased) but she couldn’t bring the medical malpractice claim as only the decedent’s estate can maintain an action that an individual could have originally brought while living.
There is an additional difficulty for plaintiffs in a wrongful death cases; how to divide the reward among the heirs. K.S.A. 60-1905 requires the awarded damages be apportioned to the heirs at law according to “the loss sustained by each of the heirs”. This is true even if an heir didn’t take part in the litigation (meaning they didn’t help retain an attorney, gather evidence, testify, etc). However, this can be addressed by having that heir sign a waiver of their portion of the recovery or very simply, have all heirs take part in the lawsuit.
K.S.A. § 60-191 permits an heir to recover when the decedent’s death was a result of “wrongful acts or omissions” of another. This means, in Kansas, any careless action that causes a death of another, the basis of a wrongful death lawsuit is formed. Intentional harms can also be a basis for a wrongful death lawsuit. For example, under K.S.A. § 60-1901 both a car accident and an intentional shooting that result in a death can constitution wrongful death actions.
A specific type of conduct that can warrant special attention is governmental actions. Usually, under the term sovereign immunity, both the federal and state governments are immune from being sued by persons for monetary damages. However, both the federal government (via the Federal Tort Claims Act, 28 USC § 2671) and Kansas (via the Kansas Tort Claims Act, KSA § 75-6101) have waived a portion of their sovereign immunity in certain situations. Common wrongful death suits against the government includes medical practice by VA doctors and vehicle accidents caused by a state vehicle. However, their sovereign immunity hasn’t been waived completely by either act which means not all wrongful death cases permit an imposition of liability. Examples of this include actions of law enforcement that are covered by qualified immunity and discretionary functions by government officials.
K.S.A. § 60-1904 outlines the six considerations for damages in a wrongful death claim. First is mental anguish which includes bereavement. Second is loss of companionship which is the actual pain and suffering of missing the deceased individual. The next three considerations are closely related and are as follows; seeking to compensate for lost advice, attention, care, and counsel provided by the deceased in their role as a spouse, parent, and a relative. The last consideration is funeral expenses.
Kansas legislature has instituted a cap on the amount of damages a wrongful death lawsuit can have. Thus, under Section 60-1903, the amount a plaintiff can receive is limited, no matter what the jury wants to award them. This cap applies to all damages except for pecuniary loss. Pecuniary losses are those loses that can be readily calculated such as lost wages and medical bills. Plaintiffs all permitted to recover the full amount of those pecuniary damages. All other damages, loss of companionship, emotional harm, and punitive damages (those designed to punish the defendant for their conduct) are not allowed to exceed $250,000. Although this is not a small sum of money, when considering the nature of a wrongful death claim, it is strange that this amount has been determined as enough to redress the heirs’ possible losses.
Wrongful death lawsuits are a very difficult and trying experience. Through the course of litigation, it will mean that the loss of the loved one will be revisited time and time again. The individual’s last moments will be analyzed thoroughly. Consulting with experienced legal counsel ensures that not only with the recovery be fair and sufficient, but also that the process of litigating the claim isn’t more difficult than it needs to be.
Home » What Does The Family Of A Victim Need To Know About A Wrongful Death Claim?


L.E. Elliott, Dallas, Tex., for petitioners.
David O. Walter, Ellis N. Slack and John J. Kelley, Jr., Sp. Assts. to Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Daniel A. Taylor, Chief Counsel, Vernon F. Weekley, Sp. Atty., Internal Revenue Service, Washington, D.C., for respondent.
The sole issue on this petition for review is whether certain payments made to Messrs. Wallace and Hambleton in 1946, 1947 and 1948 by their employer, the Great American Reserve Insurance Company, were gifts or compensation for services rendered. The Tax Court held that they were compensation and therefore taxable income under 26 U.S.C.A. § 22(a).
The Tax Court's opinion states, 12 T.C.M. 1462, 1464: "The original trust agreement is not before us, but we assume that the releases which the two men executed were only to comply with a technical provision of the Kansas Law and that they, in fact, have no claims against the Company." Petitioners never had contended that the payments were intended as payment for their quitclaim, but insist they were pure gifts. We may properly disregard the hypothetical worth of their interests, then.
"Be it Further Resolved that the Board of Directors of this corporation may suspend delivery in any year that, in their opinion, the surplus of the corporation would be unduly diminished."
This resolution was ratified and adopted at the 1947 stockholders' meeting. Pursuant to the resolution Great American during each of the calendar years 1946, 1947 and 1948 paid $5,000 to Wallace and $2,500 to Hambleton. The Company did not deduct these amounts as expenses for tax purposes; Wallace and Hambleton reported these amounts in their returns as gifts. The Commissioner determined that they were additional compensation and assessed deficiencies against all the petitioners herein. They petitioned for a redetermination of these deficiencies, and the Tax Court approved the deficiencies as assessed.
We agree with the Tax Court's conclusion and with the result reached by it. Whether amounts received by employees are gifts or compensation depends on the intention of the parties, principally the payor. The failure of the employer to deduct the amount on its return is significant, but not conclusive. If services have been performed by the recipients, it may well be said the presumption is that the payment is for the services and not a gift. We have little to add to the Tax Court's able discussion of the authorities supporting these principles. Thomas v. Commissioner of Internal Revenue, 5 Cir., 135 F.2d 378; Carragan v. Commissioner of Internal Revenue, 2 Cir., 197 F.2d 246; Nickelsburg v. Commissioner of Internal Revenue, 2 Cir., 154 F.2d 70; Fisher v. Commissioner of Internal Revenue, 2 Cir., 59 F.2d 192; Wilkie v. Commissioner, 6 Cir., 127 F.2d 953; Van Sicklen, Jr., 33 B.T.A. 544. And we think the circumstances under which the payments were made, namely the fact that the Company had in the past prospered greatly under taxpayers' able and devoted management, and the fact that the resolution authorizing the payments sprang immediately from an act that brought to mind a substantial benefit given to the company by the payees several years earlier; the contingent nature of future payments, implying that if it was an act of simple generosity, such generosity was modified at least partially by a consideration of the effect on the business, support the conclusion that the payments were compensation more convincingly than the wording of the resolution and the evidence that the stockholders, directors, and general counsel spoke of making a gift and called it a gift, negatives that conclusion.
Bogardus v. Commissioner of Int. Rev., 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32; Bass v. Hawley, 5 Cir., 62 F.2d 721.
Every one of the cases urged on us by petitioners as authorities for reversal, involve special circumstances indicative that the intention was to make a gift, none of which is present here.
Where the recipient was never employed by the payer, Bogardus v. Commissioner, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32; McAdow Est., 12 T.C. 311, Acq. 1949-1 C.B. 3; Newton, 11 T.C. 512, Acq. 1949-1 C.B. 3; where the recipient was never employed and is the widow of a deceased employee of the payer (W.D. Haden Co., 5 T.C.M. 250, reversed in part on another point, 5 Cir., 165 F.2d 588; MacFarlane, 19 T.C. 9, partial Acq. 1953-1 C.B. 5); where the payer is dead and leaves a bequest, United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547; Bank of New York v. Helvering, 2 Cir., 132 F.2d 773; McDonald, 2 T.C. 840, Acq. 1944 C.B. 19; where the payee has left or is leaving the employ of the payer, Schall v. Commissioner of Internal Revenue, 5 Cir., 174 F.2d 893; Mutch v. Commissioner of Internal Revenue, 3 Cir., 209 F.2d 290; Cunningham v. Commissioner of Internal Revenue, 2 Cir., 67 F.2d 205; Abernethy v. Commissioner of Internal Revenue, D.C. Cir., 211 F.2d 651; Wright, 7 T.C.M. 738; Gillespie, 7 T.C.M. 776; where the payee has been too ill during the tax years to devote his time to the employer's business, Blair v. Rosseter, 9 Cir., 33 F.2d 286; where payment was reimbursement for legal expenses incurred in connection with the employment but otherwise than for the employer's benefit, Cox v. Kraemer, D.C.D.Conn., 88 F. Supp. 835; where payment was by ex-stockholders individually and not the corporate employer, and it was expected that payees would lose their jobs by reason of the sale of all the stock of the corporation, Jones v. Commissioner of Internal Revenue, 3 Cir., 31 F.2d 755; and where the agreed compensation of a lawyer for a specific transaction had been paid and the client gave him in addition a stock option which later proved valuable (Siegel, 39 B.T.A. 60, Acq. 1939-1 C.B. (Part 1) 32; see discussion of this case in Silliman, 11 T.C.M. 921, 925).
The petitioners contend, however, that the Tax Court erred in holding that the inference "arising from the circumstances that Wallace and Hambleton were stockholders and directors and officers of the Company was sufficient to override the positive uncontradicted, and consistent testimony of an unimpeached witness that the amounts delivered to petitioners were in fact gifts." In other words, they maintain that the circumstantial evidence that the payments were compensation for services must be accorded less weight than witness Brundidge's testimony that the corporation intended a gift, citing in support Foran v. Commissioner of Internal Revenue, 5 Cir., 165 F.2d 705; Capitol-Barg Dry Cleaning Co. v. Commissioner of Internal Revenue, 6 Cir., 131 F.2d 712; and Loesch Green Const. Co., v. Commissioner of Internal Revenue, 6 Cir., 211 F.2d 210. The rule contended for by petitioners, stated thus baldly, is not supported by the cases cited, since in each of them the court held that the positive and uncontradicted testimony was not refuted even by conflicting circumstantial evidence.
Moreover, it is not necessary for us to attempt to resolve the abstract problem as to whether positive unimpeached testimony of a witness can be overcome by inferences drawn from convincing circumstantial evidence. Here there are several undisputed facts. Some of those which lend support to the Tax Court's finding are: taxpayers have long been and at the time of the payments, still were, officers and directors; they were very substantial stockholders; the payments were in proportion to their stock holdings; they had unquestionably placed the company greatly in their debt by giving to it assets and cash without adequate compensation; the payments were made at a time when all of these substantial contributions by them to the company were freshly brought to the attention of the directors. These are all substantive facts. In the light of them the directors desired to do something to show their appreciation and friendly feeling. Such appreciation and friendly feeling was shown by the adoption of the resolution set out above. This also was a fact. The act of the directors was called by them a "gift," and it was so called by the company's lawyer. For us to hold that the Tax Court can ignore the terminology used by the parties and find that what was really done was to make payments which amounted to additional compensation by drawing reasonable inferences from the other circumstances or facts, does violence to no rule or principle of law which we are aware. Certainly it is not in conflict with the cases cited by appellants.


A very short opinion dated December 2, 2016, which is of little interest, except for the reference made to a Redfern Schedule at 3.2.1 in the opinion.
Otherwise, regretfully in these writers’ opinion, the Federal Tribunal simply reiterates its very narrow construction of the principle of pacta sunt servanda to reject the appeal against the July 29, 2016 award in a dispute involving a claim against an estate raised in a Swiss Chambers Arbitration.
1.1. In a final award of July 29, 2016, the Geneva lawyer2 deciding as Sole Arbitrator under the aegis of the Swiss Chambers’ Arbitration Institution, ordered Defendant X.________, an Algerian citizen, to pay to Claimants A.Z.________, B.Z.________, C.Z.________ and D.Z.________, all domiciled in Switzerland, in their status as heirs of the late Z.________, who died on April 19, 2008, the amount of EUR 1’219’592 with interest at 5% yearly since March 12, 2015, pursuant to an “Agreement on Reimbursement and Compensation” signed by Z.________ and X.________ on October 25, 2001.
1.2. On September 14, 2016, X._________ invoked Art. 190(2)(e) PILA3 and filed a civil law appeal with the Federal Tribunal with a view to obtaining the annulment of the award.
The four Claimants – here, Respondents – all represented by the same attorney, submitted that the appeal should be rejected. The Sole Arbitrator produced her file and waived the right to submit observations as to the appeal.
By letter of November 16, 2016, the Appellant stated that it did not intend to file a reply.
In the field of international arbitration, a civil law appeal is admissible against the decisions of arbitral tribunals, pursuant to the requirements at Art. 190 to 192 PILA (Art. 77(1)(a) PILA). Whether as to the object of the appeal, the standing to appeal, the time limit to appeal, the Appellant’s submission or the ground for appeal invoked, none of these admissibility requirements raises any problem in the case at hand. The matter is therefore capable of appeal.
The Appellant raises one single argument divided into two branches in which he argues that the Arbitrator violated substantive public policy within the meaning of Art. 190(2)(e) PILA.
3.1. An appeal brief aimed at an arbitral award must comply with the requirement to submit reasons as contained at Art. 77(3) LTF4 in connection with Art. 42(2) LTF and the case law concerning the latter provision (ATF 140 III 86 and 540/2016 of October 26, 2016, at 4.2). This requires the Appellant to discuss the reasons of the award under appeal and to indicate precisely why s/he considers that it disregarded the law (judgments 4A_536/2016 and 4A_540/2016 of October 26, 2016, at 4.2). It goes without saying that this can be done only within the limits of the grievances admissible against the aforesaid award, namely only in the light of the grounds for appeal listed at Art. 190(2) PILA when the arbitration is international in nature.
In the case at hand, it is doubtful the Appellant even satisfied the requirement to provide reasons thus defined. Indeed, he does not indicate even briefly the reasons on which the award under appeal relied but proceeds to directly criticize it, thus leaving it to this Court, in order to know what such criticism is about, to peruse itself the twenty pages or so that the Arbitrator devoted to the legal reasons of the solutions she found. Yet, it does not behoove the supreme judicial body of the Confederation to go looking sua sponte for the legal grounds of each solution to measure them against the arguments contained in the appeal brief. It hardly needs to be recalled that the Federal Tribunal is not a court of appeal and that this is even more true when, as in the case at hand, its judicial review is limited to the grievances raised and reasoned by the Appellant (see Art. 77(3) LTF).
Be this as it may, even if admissible, this appeal can only be rejected for the reasons indicated hereafter.
3.2. An award is contrary to substantive public policy when it violates some fundamental principles of substantive law to such an extent that it is no longer consistent with the governing legal order and system of values; among such principles are, in particular, contractual fidelity, compliance with the rules of good faith, the prohibition of the abuse of rights, the prohibition of discriminatory or confiscatory measures, as well as the protection of incapable persons (ATF 132 III 389 at 2.2.1).
3.2.1. In the first branch of his argument seeking to demonstrate the alleged incompatibility of the award under appeal with substantive public policy, the Appellant argues that the award gravely contradicts the principle of good faith when it held that the Respondents’ destruction of documents essential to the fact finding was not a factor in the apportionment of the burden of proof. After citing what he believes to be the relevant federal case law in this respect, the Appellant listed the exhibits he requested be produced and outlined the fate his request met in the ad hoc procedure known as a “Redfern Schedule” (on this procedure, characterized by a chart containing various columns which enables the Arbitral Tribunal or the Sole Arbitrator to decide the admissibility of the evidence requested, see Girsberger and Voser, International Arbitration, 3rd ed. 2016, n. 997-999). The Appellant then challenges the “reasoning” on the basis of which his criticism of the Respondents as to the destruction of a number of documents was set aside by the Arbitrator (see award n. 274). He argues that she gravely breached the rules concerning the distribution of the burden of proof and therefore to have violated the principle of good faith.
Moreover, the Appellant overlooks that the manner in which the rules concerning the burden of proof are applied is exempted from the scrutiny of the Federal Tribunal when seized of a civil law appeal against an international award because such rules are not part of substantive public policy within the meaning of Art. 190(2)(e) PILA (Judgment 4A_616/2015 of September 20, 2016, at 4.3.1 and the precedents quoted). Moreover, claiming that the Sole Arbitrator violated the principle of good faith is tantamount to a judgment of intentions.
3.2.2. In the second branch of the same argument, the Appellant argues a violation of the principle pacta sunt servanda, to his detriment.
The principle of sanctity of contracts, expressed by the adage pacta sunt servanda, with the restrictive meaning it is given by case law concerning Art. 190(2)(e) PILA, is violated only if the arbitral tribunal refuses to apply a contractual clause while admitting that it binds the parties or conversely, if it imposes upon them compliance with a clause that it considers non-binding. In other words, the arbitral tribunal must have applied or refused to apply a contractual provision in contradiction with the conclusion of its interpretation as to the existence or the content of the legal deed in dispute. However, the process of interpretation itself and the legal consequences logically drawn therefrom are not governed by the principle of sanctity of contracts, so that they cannot be invoked as a violation of public policy. The Federal Tribunal has emphasized many times that almost all contractual disputes are outside the scope of protection of the principle pacta sunt servanda (judgment 4A_319/2015 of January 5, 2016, at 4.1).
In the case at hand, the Sole Arbitrator held that the Respondents had a claim against the Appellant, that the claim was not time barred, and that the debtor could not invoke set-off to escape his obligation to honor his debt to the heirs of the individual with whom he signed the “Agreement on Reimbursement and Compensation” of October 25, 2001. Having upheld the existence of the claim, she ordered the debtor to pay the corresponding amount to the creditors. One does not see why, by doing so, she would have contradicted the result of her interpretation of the aforesaid agreement. If one understands him well, the Appellant objects that the Arbitrator would have contradicted herself because in order to admit the existence of the claim in dispute, she found that Z.________ signed the reimbursement agreement of October 25, 2001, in his own name and as indirect representative of the two companies mentioned on the first page of the agreement, which would give him standing to claim the payment of the unpaid amount indicated in the agreement; whilst in order to exclude set-off, she would have held that the payments made into the accounts of the aforesaid companies after the agreement was executed did not extinguish the Appellant’s debt up to the set-off amount. There is no need to review any further the reality of the alleged contradiction. Even if such a contradiction existed, the outcome of the case would not change. It must indeed be recalled that the argument of inbuilt incoherence in the reasons of an award does not fall within the definition of substantive public policy (judgment 4A_150/20125 of July 12, 2012, at 5.2.1).
The second argument is therefore also doomed to fail.
The Appellant loses and shall pay the costs of the federal proceedings (Art. 66(1) LTF) and compensate the Respondents (Art. 68(1) and (2) LTF).
The judicial costs set at CHF 16’000 shall be borne by the Appellant.
The Appellant shall pay to the Respondents CHF 18’000 for the federal judicial proceedings.
1. Translator’s Note: Quote as X.________ v. A.Z.________ et. al., 4A_522/2016. The decision was issued in French. The full text is available on the website of the Federal Tribunal, www.bger.ch.
2. Translator’s Note: In the French original text, “Geneva lawyer” is in the feminine.
4. Translator’s Note: LTF is the French abbreviation of the Federal Statute of June 17, 2005, organizing the Federal Tribunal, RS 173. 110.