David GIORDANO, Plaintiff-Appellant, v. CITY OF NEW YORK, Howard Safir, Police Commissioner, New York City Police Department, Medical Board, Police Pension Fund, Article II, Defendants-Appellees.
Before: VAN GRAAFEILAND, WINTER, and SACK, Circuit Judges. Rosemary Carroll,Carroll & Friess, New York, NY, for Plaintiff-Appellant. Cheryl Payer, New York City Law Department (Michael D. Hess, Corporation Counsel of the City of New York; Stephen J. McGrath, of counsel), New York, NY, for Defendants-Appellees.
Plaintiff David Giordano, a former longstanding employee of the New York City Police Department (“NYPD”), appeals from a judgment of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge ) granting summary judgment to the defendants and dismissing his complaint in its entirety. The complaint alleges violations of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Due Process and Equal Protection Clauses of the United States Constitution, the New York State Executive Law, and the New York City Administrative Code.
Giordano's claims arise from his discharge from the NYPD following a hearing before the defendant Medical Board, Police Pension Fund, Article II (“Article II Board”), which recommended that Giordano “be separated from the Police Department because of [his need for] life long anticoagulation.” Giordano alleges that the defendants discharged him in violation of the ADA because they mistakenly “regard[ed] him as disabled” because of his regimen on the drug Coumadin, an anticoagulant. He further alleges that by discharging him without affording him a personal physical examination by the Article II Board and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the defendants violated his constitutional rights under, respectively, the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. Finally, Giordano alleges that the defendants' actions violated his right “to be free of intentional discrimination based on disability,” Compl. ¶ 57, as defined by the New York State Executive Law and the New York City Administrative Code.
We affirm the district court's dismissal of Giordano's ADA claim because we agree that he failed to offer evidence from which a reasonable juror could conclude that the defendants “regarded him as disabled” within the meaning of the ADA. We also affirm the court's dismissal of Giordano's § 1983 claims. The record contains nothing to suggest that the alleged disparate treatment of Giordano and Officer Rowe resulted from any illicit motivation of the defendants. We recognize that we have not yet decided whether the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam), altered this Circuit's rule that a “class of one” plaintiff such as Giordano must show an illicit motivation in order to state a cognizable equal-protection claim. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001). We affirm without reaching this issue, however, because Giordano did not in any event introduce evidence to show that the defendants “intentionally treated [him] differently from others similarly situated.” Olech, 528 U.S. at 564, 120 S.Ct. 1073 (emphasis added). Finally, we agree with the district court that contrary to Giordano's assertion, due process of law did not require the members of the Article II Board to conduct a personal physical examination of Giordano before recommending his discharge from the NYPD.
Because we hold that Giordano failed to introduce evidence to suggest that the defendants “regarded him as disabled,” we do not reach the other ADA issues discussed by the district court: whether patrol duty is an “essential function” of police work, and, if so, whether Giordano was able to perform this function with or without reasonable accommodation. Finally, we disagree with the district court's conclusion that Giordano's pendent state-law claims necessarily fail because even though those laws “have a broader definition of disability than does the ADA,” they otherwise “use the same analytical framework as the ADA.” Giordano v. City of New York, No. 99 Civ. 3649, 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *19 (S.D.N.Y. Feb.28, 2001). We therefore reverse the district court's grant of summary judgment against Giordano on his pendent state-law claims and remand with instructions to dismiss them without prejudice to their renewal in an appropriate state forum.
In April 1991, the NYPD reassigned Giordano to the Central Park Precinct in Manhattan. There, he initially performed patrol duty; later, he served in the Street Narcotics Enforcement Unit. He continued to work in the latter capacity until 1998. His performance evaluations indicate that he fulfilled his duties not only competently, but at a level above average.
In 1998, Giordano's physicians diagnosed an aneurism in his aortic root. On May 19, 1998, Dr. Donato Sisto, a surgeon, performed corrective surgery to replace the root with an aortic valve prosthesis. The operation was successful, and on May 24, 1998, Dr. Sisto authorized Giordano's discharge from the hospital. To prevent the danger of blood clotting, a risk associated with the presence of an artificial aortic valve in the body, Giordano's physicians instructed him to take five milligrams of Coumadin, an anticoagulant blood thinner, daily. It is expected that Giordano will be required to take Coumadin for the rest of his life.
In all other respects, according to Dr. Demetrios Georgiou, one of Giordano's cardiologists, “Mr. Giordano can conduct a normal lifestyle, including regular exercise training.” Letters provided by Giordano's physicians at his attorney's request affirm that he remains in good health, takes his medication as directed, and complies meticulously with the periodic monitoring schedule recommended by his physicians. Giordano also emphasizes that he exercises regularly, controls his diet, and neither smokes nor drinks.
On September 14, 1998, Dr. Eliscer Guzman, Giordano's district surgeon and a cardiologist by training, recommended Giordano for “survey”-i.e., an investigation-“to ascertain whether [an NYPD employee] is incapacitated for the performance of duty and ought to be retired.” 3 Giordano testified that Dr. Guzman “told [him] that because [he] take[s] Coumadin [he] could bleed to death in the event of a blow or physical attack and that [he] should put in [his] papers to retire.” Concluding that he “had no option,” Giordano applied for accident-disability retirement on the same day.
different people with varying lifestyles have more difficulty controlling the amount of anticoagulation and each patient has to be individually evaluated, so that we find people who can't comply or change their diet or change their activities and it causes variation in the amount of anticoagulation or[,] in lay terms, the bleeding tendency of a person because of the Coumadin.
After discussing Giordano's case with him and evaluating various medical reports, including those of the cardiologists who examined Giordano, Dr. Fried personally restored Giordano to patrol duty.4 One week later, on September 28, 1998, Giordano withdrew his application for accident-disability retirement.
Immediately after his consultation with Dr. Fried, Giordano returned to work as a full-duty officer in the Central Park Precinct Street Narcotics Enforcement Unit. He continued to work in this capacity until January 5, 1999, when Commissioner Safir again placed him on restricted duty. Giordano asserts that during the interim he made arrests that “required the use of physical force,” and even though he “incurred some bruising,” these wounds did not cause catastrophic bleeding. He also reports that he did not experience any problem with excessive bleeding after undergoing a minor skin operation in December 1999.
On October 15, 1998, Dr. Thomas officially discontinued Giordano's survey. The record suggests, however, that the survey continued unofficially. Two months later, on December 18, 1998, Dr. Thomas submitted a “Recommendation for Examination by Article II Medical Board.” On January 5, 1999, Commissioner Safir authorized the Article II Board examination pursuant to Section 13-251 of the Administrative Code of the City of New York, and he again placed Giordano on restricted duty.
On March 15, 1999, the Article II Board conducted its examination of Giordano's fitness for duty. The Board concluded that his need to take Coumadin rendered him “physically-mentally incapacitated for performance of duty,” and that he should therefore be retired. Giordano argues that New York law required the Board to conduct an individual physical examination of him before issuing its recommendation. The Board instead relied exclusively on the reports of other physicians. It “agree[d] with the[ir] almost unanimous opinions ․ that [Giordano] should be separated from the Police Department because of life long anticoagulation which he requires, and should not be on either full duty or patrol.” It noted that “the only dissenting opinion [among those physicians] is that of Dr. Gregory Fried.” The Board disapproved Giordano's application for accident-disability retirement, concluding that his disability arose from a birth defect unrelated to his employment by the NYPD.
On May 18, 1999, Giordano filed suit against the City, the Police Commissioner, and the Board in the United States District Court for the Southern District of New York. He brought federal claims under the ADA and 42 U.S.C. § 1983 and pendent state-law claims under the New York State Executive Law and the New York City Administrative Code. Following discovery, the parties cross-moved for summary judgment.
On February 28, 2001, the district court granted summary judgment to the defendants on all claims. First, it held that Giordano did not qualify as “disabled” within the meaning of the ADA because, contrary to Giordano's argument, the evidence did not suggest that the defendants “regarded him as having a disability.” See Giordano, 2001 WL 204202, at *3-*5, 2001 U.S. Dist. LEXIS 2039, at *7-*13. While this conclusion alone disposed of Giordano's ADA claim, the court went on to consider whether, assuming Giordano did qualify as “disabled” under the ADA, he could establish the “third element of his prima facie case”: qualification, with or without accommodation, to perform the “essential functions” of an NYPD police officer. Id., 2001 WL 204202, at *5-*6, 2001 U.S. Dist. LEXIS 2039, at *13-*18. The court concluded that patrol indeed constitutes an “essential function” of NYPD police work and that because Giordano cannot show he can perform this function without posing a danger to himself or others, he cannot demonstrate that he was “otherwise qualified” for the job of an NYPD police officer. See id., 2001 WL 204202, at *6, 2001 U.S. Dist. LEXIS 2039, at *18.
The court briefly acknowledged that New York state and municipal laws define “disability” in broader terms than the ADA. But it noted that these laws are enforced under the same analytic framework as the ADA. Giordano's pendent state-law claims, the court therefore concluded, failed under the “essential functions” analysis that the court elaborated on in the immediately preceding section of its opinion, in connection with Giordano's ADA claim. See id., 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *19.
Turning to Giordano's constitutional claims, the court first dismissed Giordano's equal-protection claim because it found no “impermissible motive” on the part of the defendants. Id., 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *19-*20. It then dismissed his due-process claim because it concluded that the Article II Board's evaluation provided all the process that was due. See id., 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *20-*23.
We review de novo the district court's grant of summary judgment, construing the evidence in the light most favorable to the nonmoving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). A district court must grant summary judgment if “there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.
Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir.1999) (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.1998)).
Giordano indisputably satisfies the first and fourth of these elements. The NYPD is an “employer” because it is “engaged in an industry affecting commerce” and employs “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year,” 42 U.S.C. § 12111(5)(A); and Giordano's involuntary retirement from the NYPD plainly falls within the scope of “adverse employment action,” see id. § 12112(a) (prohibiting discrimination with regard to, inter alia, “discharge of employees”). We conclude, however, that Giordano is not “disabled” within the meaning of the ADA and therefore fails to satisfy the second element of his prima facie case.
Id. Because the Equal Employment Opportunity Commission (“EEOC”) is the agency that bears responsibility for implementing specific provisions of the ADA, we generally defer to the EEOC regulations in construing the ADA's terms. See Bartlett v. N.Y. State Bd. of Law Exam'rs, 226 F.3d 69, 79 (2d Cir.2000); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 150 n. 3 (2d Cir.1998).
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
Id. § 1630.2(j)(3); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (discussed below); Bartlett, 226 F.3d at 82-85 (discussing and applying Sutton on remand from the Supreme Court for that purpose). The Court has therefore noted that “[t]o be substantially limited in the major life activity of working ․, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.” Sutton, 527 U.S. at 492, 119 S.Ct. 2139.
Giordano introduced voluminous evidence to establish that his employer, the NYPD, regarded him, correctly or incorrectly, as unable to work as a NYPD police officer because he must take Coumadin; and the defendants concede, both in the district court and on appeal, that they “sought to survey plaintiff from the position of a full duty police officer, because ․ he is unable to safely perform the essential functions of [that position] without danger to himself and others.” Appellees' Br. at 29.
This does not mean, however, that the defendants regarded Giordano as disabled from a “broad class of jobs” compared to “the average person having comparable training, skills, and abilities.” Bartlett, 226 F.3d at 82 (internal quotation marks and citation omitted). Giordano introduced evidence that establishes at most that the defendants regarded him as disabled from police or other investigative or security jobs that involve a substantial risk of physical confrontation. The record contains no evidence from which we can infer that the defendants thought, or had grounds for thinking, that other jobs in the public or private sector-such as, for example, a job as a security guard or a private investigator, or with a police department that does not require every officer to be capable of patrol duty-carry the same nature or degree of risk. Giordano stated in an affidavit that the very “duties of police officer which defendants claim [he] cannot perform are the kinds of duties which [he] would have to perform ․ as a private investigator and/or in security which are really the only related fields for which [he is] qualified.” The district court correctly noted, however, that Giordano adduced no evidence of the qualifications for these jobs. His assumption that his disqualification from the specific duties of an NYPD police officer will preclude him from working in related fields-or that the defendants perceived him as such-is, as the district court noted, “[s]peculation and conjecture,” which will not suffice “to defeat a motion for summary judgment.” Giordano, 2001 WL 204202, at *4, 2001 U.S. Dist. LEXIS 2039, at *11 (citing Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.1996)); see also Tubens v. Police Dep't, 48 F.Supp.2d 412, 419 (S.D.N.Y.1999) (noting that the plaintiff “has demonstrated at most that the NYPD perceived her as substantially limited in performing only a narrow range of jobs-those requiring regular strenuous isometric exercise,” and that “[the plaintiff] has not provided specific evidence about the kinds of jobs for which she alleges the NYPD perceived her to be disqualified”).
We thus find no evidence in the record that suggests that the defendants perceived Giordano as unable to work in a “broad class of jobs.” Giordano had the burden of proof on the issue. See Colwell, 158 F.3d at 647 (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir.1998)). We therefore affirm the district court's grant of summary judgment to the defendants on Giordano's ADA claims.
Giordano further asserts two constitutional violations: first, that by discharging him but continuing to employ Officer Rowe, another officer who takes Coumadin, the defendants denied Giordano the equal protection of the laws; and second, that by declining to examine Giordano personally before recommending his discharge from the NYPD, the Article II Board deprived him of a property interest without due process of law. Giordano brings each of these allegations under 42 U.S.C. § 1983. To state a cause of action under § 1983, Giordano must allege (1) that the defendants deprived him of a right “secured by the Constitution or laws of the United States”; and (2) that they did so “under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); accord Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993).
The defendants, a municipal corporation and employees of its law-enforcement agency, were plainly acting “under color of state law” in their dealings with Giordano. See Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part on other grounds by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We conclude, however, that Giordano fails to make out a cognizable violation of his rights under either the Equal Protection Clause or the Due Process Clause.
Giordano alleges that “by continuing the employment of P.O. Rowe,” who also takes Coumadin, but terminating Giordano for this reason, the defendants deprived him of the “Equal Protection of the Law in violation of the 14th Amendment.” Compl. ¶ 56. Giordano thus alleges a form of selective enforcement: that the defendants “surveyed” and discharged him because he must take Coumadin but took no action against a similarly situated NYPD officer. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (noting that the “Equal Protection Clause ․ is essentially a direction that all persons similarly situated should be treated alike”) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)).
Before the Supreme Court's recent decision in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam), we held repeatedly that a selective-enforcement claim based on the Equal Protection Clause must allege that: “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir.1999) (quoting LaTrieste Rest. & Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir.1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980))) (internal quotation marks omitted). Under this test, Giordano's equal-protection claim would plainly fail. While the NYPD's rationale for its disparate treatment of Rowe and Giordano remains nebulous, no evidence in the record on appeal suggests any “impermissible motive”; nor did Giordano allege one in his complaint. See Compl. ¶ 56.
Giordano contends, however, that the defendants must at a minimum “articulate a rational basis for the difference in treatment.” Appellants' Br. at 28. Giordano does not elaborate on this argument. But he may be relying tacitly on a contention we considered but declined to decide previously: “that the Supreme Court's decision in Olech ․ remov[ed] the requirement that malice or bad faith be shown in order to state a valid ‘class of one’ equal protection claim.” Harlen, 273 F.3d at 499.
As in Harlen, we decline to resolve this issue because its resolution would not affect the outcome of this appeal. Assuming without deciding that Olech changed this Circuit's requirement that a “class of one” plaintiff alleging an equal-protection violation show an illicit motivation, such a plaintiff would still be required to show, not only “irrational and wholly arbitrary” acts, Olech, 528 U.S. at 565, 120 S.Ct. 1073 (internal quotation marks omitted), but also intentional disparate treatment. See id. at 564, 120 S.Ct. 1073 (observing that the Court's cases have recognized “class of one” equal-protection claims “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment”) (emphasis added); see also Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923) (noting that “[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination”) (internal quotation marks and citation omitted; emphasis added).
Giordano points to no evidence in the record that would support a jury finding that those responsible for terminating him because of his Coumadin use knew that they were treating him differently from anyone else. Giordano submitted evidence that the NYPD continues to employ Rowe even though he, like Giordano, must take Coumadin. Rowe testified that the “Police Department” was aware that he must take Coumadin but that, to date, the “Police Department medical unit” has not questioned him for this reason. Dr. Fried, the NYPD's executive chief surgeon, also testified that he knew that Officer Rowe at one time took Coumadin. This evidence provides no basis, however, for imputing knowledge of disparate treatment of Giordano to the defendants whom Giordano alleges violated his rights under the Equal Protection Clause. The record contains nothing to suggest that the physicians who “surveyed” Giordano, the three physicians comprising the Article II Board that recommended his termination, or the police commissioner who did ultimately terminate Giordano had any knowledge of Officer Rowe's condition, or of the condition of anyone else retained as an NYPD police officer despite an anticoagulant regimen. Absent some evidence of this knowledge, no reasonable juror could infer that the defendants intended to treat Giordano differently from other NYPD officers. Because we find no evidence in the record to support a jury's finding of intentional discrimination, we affirm the district court's grant of summary judgment to the defendants on Giordano's equal-protection claim.
Giordano also argues on appeal that due process of law required the defendant Article II Board to conduct a personal physical examination of him before recommending his discharge to the police commissioner. This claim he did raise in the district court, and he reasserts it briefly on appeal. Compl. § 55; Appellant's Br. at 27. He alleges that the New York City Administrative Code requires the Article II Board itself to examine him physically before recommending his involuntary retirement.
N.Y. Exec. Law § 292(21)(a). According to the City Code, “The term ‘disability’ means any physical, medical, mental or psychological impairment, or a history or record of such impairment.” N.Y. City Admin. Code § 8-102(16)(a). Neither of these definitions requires Giordano to show that his disability “substantially limits a major life activity.” See Hazeldine v. Beverage Media, Ltd., 954 F.Supp. 697, 706 (S.D.N.Y.1997) (observing that a person can be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity); accord Reeves, 140 F.3d at 155 (same) (citing Hazeldine ).
As we noted in Reeves, the New York Court of Appeals, whose construction of New York State law binds this Court, see, e.g., West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940), has confirmed that the definition of a disability under New York law is not coterminous with the ADA definition. See Reeves, 140 F.3d at 154-56 (citing and discussing State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 491 N.Y.S.2d 106, 480 N.E.2d 695 (1985)). While the district court recognized this distinction, it concluded that because these laws otherwise “use the same analytical framework as the ADA,” Giordano's state-law claims fail for the same reasons elaborated in its analysis of the “essential functions” of a police officer under the ADA. Giordano, 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS, at *19.
Because we conclude that Giordano failed to introduce evidence that the defendants “regarded him as disabled” under the ADA, we do not reach these issues. We think that in the absence of any remaining federal claims, the appropriate analytic framework to be applied to discrimination claims based on a “disability” as defined by New York state and municipal law is a question best left to the courts of the State of New York. While the statute governing supplemental jurisdiction, 28 U.S.C. § 1367, does not require dismissal of pendent state-law claims where all of the federal claims have been dismissed, see id. § 1367(c)(3), “if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); see also Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir.1998) (noting that it is particularly appropriate for the district court to dismiss where “the federal claim on which the state claim hangs has been dismissed”); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir.1998) (“In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.”) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994), and Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir.1988)). Indeed, we conclude that the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present. Cf. Robison v. Via, 821 F.2d 913, 925 (2d Cir.1987) (remarking that it “may be an abuse of the district court's discretion” not to remand state-court claims especially when they involve “novel questions of state law”).
Because we affirm the dismissal of his federal claim under the ADA for failure to show the requisite disability under federal law, we need not and do not reach the question of Giordano's qualifications to perform the essential functions of his job with regard to that claim. We also see no reason to address that issue with regard to the state and municipal claims, lest we render a decision that does not accurately reflect New York law on the subject. Should this case come before New York courts on the state and municipal claims, we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job. We ourselves do not intimate any view as to whether summary judgment for the defendants on the ADA claim based on this issue would have been proper. We therefore vacate the district court's judgment dismissing with prejudice the state and municipal claims and instruct the court to dismiss them without prejudice so that the state courts may adjudicate those claims in their entirety if the plaintiff chooses to pursue them in those courts.
For the foregoing reasons, we affirm the district court's grant of summary judgment to the defendants on Giordano's ADA and § 1983 claims. We vacate that part of the judgment granting summary judgment to the defendants on Giordano's state and municipal law claims, as well as the findings and conclusions set forth in section III(A)(ii) of the district court's opinion as to whether Giordano was otherwise qualified to perform the essential functions of his job. We remand with directions to dismiss the remaining claims without prejudice to their being brought in an appropriate state forum.
1. Howard Safir, a named defendant, is no longer the NYPD's commissioner. Because Giordano sued Safir “in his official capacity,” however, Bernard B. Kerik, the present commissioner, “shall be automatically substituted” for his predecessor pursuant to Fed.R.Civ.P. 25(d).
5. While it does not affect our disposition of this appeal, we note that Giordano introduced evidence than tends to call this proposition into doubt. Certain positions, such as “Community Affairs Officers,” appear to involve a substantially decreased risk of physical confrontation. The deposition of Officer Rowe also establishes that at least one Coumadin-medicated police officer continues to work as a “full-duty/patrol” officer in the NYPD. The distinction between the situations of Officer Rowe and Giordano is not apparent. This evidence does not, however, suggest that the defendants in fact “regarded” Giordano as disabled from less confrontational jobs that involve comparable skills, training, and ability; the defendants' claim is that no such jobs exist in the NYPD. Whether this claim is accurate or not says nothing about the defendants' perception of Giordano's ability to perform such jobs. See Francis, 129 F.3d at 284 (noting that, under the “regarded as” prong, qualification as “disabled” under the ADA “turns on the employer's perception of the employee”); Colwell, 158 F.3d at 646 (citing Francis ).
6. In any event, this claim appears to be meritless. See Calzerano v. Bd. of Trs. of Police Pension Fund, 877 F.Supp. 161, 164 (S.D.N.Y.1995) (holding that due process in the context of a disability-retirement hearing before the Police Department's Board of Trustees does not require “an opportunity to be heard in person” and that an opportunity to submit arguments and the opinion of physicians in writing satisfies the Due Process Clause); Flannelly v. Bd. of Trs. of N.Y.C. Pension Fund, 6 F.Supp.2d 266, 268 (S.D.N.Y.1998) (same; collecting cases).
7. We agree with the district court that Coffran v. Bd. of Trs. of N.Y.C. Pension Fund, 842 F.Supp. 723, 733 (S.D.N.Y.), rev'd on other grounds, 46 F.3d 3 (2d Cir.1995), which held that due process requires an adversarial hearing before the Board of Trustees before it may involuntarily retire a police officer based on a psychiatric disability, is distinguishable; indeed, Judge Keenan wrote in that case that a “ ‘medical determination’ made on written evidence may be sufficient for [retirement based on] a physical disability.” Id. at 732. On appeal, Giordano also cites Gonzales v. Sandoval County, 2 F.Supp.2d 1442, 1444 (D.N.M.1998), in support of the contention that the ADA requires the Board to conduct a personal examination of Giordano. Appellant's Br. at 27. Gonzales, however, simply confirms that a state statute-in that case, New Mexico's-“can only require fitness [of a police officer] to the extent permissible under the ADA-the level of fitness necessary to perform the essential functions of the relevant position, with or without reasonable accommodation.” Id. at 1444. But Giordano does not contend that New York's statutes require a level of fitness inconsistent with the dictates of the ADA.


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Insofar as we obtain the consent of the data subject for processing of personal data, Art. 6 para. 1 lit. a EU General Data Protection Regulation (GDPR) as legal basis.
In the processing of personal data necessary for the performance of a contract to which the data subject is a party, Art. 6 para. 1 lit. b GDPR as legal basis. This also applies to processing operations required to carry out pre-contractual actions.
Insofar as processing of personal data is required to fulfill a legal obligation that is subject to our company, Art. 6 para. 1 lit. c GDPR as legal basis.
In the event that vital interests of the data subject or another natural person require the processing of personal data, Art. 6 para. 1 lit. d GDPR as legal basis.
If processing is necessary to safeguard the legitimate interests of our company or a third party, and if the interests, fundamental rights and freedoms of the data subject do not prevail over the first interest, Art. 6 para. 1 lit. f GDPR as legal basis for processing.
The personal data of the data subject will be deleted or blocked as soon as the purpose of the storage is deleted. In addition, such storage may be provided for by the European or national legislator in EU regulations, laws or other regulations to which the controller is subject. Blocking or deletion of the data also takes place when a storage period prescribed by the standards mentioned expires, unless there is a need for further storage of the data for conclusion of a contract or fulfillment of the contract.
Each time our website is accessed, our system automatically collects data and information from the computer system of the calling computer.
The data is also stored in the log files of our system. Not affected by this are the IP addresses of the user or other data that allow the assignment of the data to a user. A storage of this data together with other personal data of the user does not take place.
The legal basis for the temporary storage of data is Art. 6 para. 1 lit. f GDPR.
The temporary storage of the IP address by the system is necessary to allow delivery of the website to the computer of the user. To do this, the user's IP address must be kept for the duration of the session.
For these purposes, our legitimate interest in the processing of data according to Art. 6 para. 1 lit. f GDPR.
The data will be deleted as soon as it is no longer necessary for the purpose of its collection. In the case of collecting the data for providing the website, this is the case when the respective session is completed.
The collection of data for the provision of the website and the storage of the data in log files is essential for the operation of the website. There is consequently no contradiction on the part of the user.
The data of the users collected in this way are pseudonymized by technical precautions. Therefore, an assignment of the data to the calling user is no longer possible. The data will not be stored together with other personal data of the users.
The legal basis for the processing of personal data using cookies is Article 6 (1) lit. f GDPR.
The user data collected through technically necessary cookies will not be used to create user profiles.
For these purposes, our legitimate interest in the processing of personal data pursuant to Art. 6 para. 1 lit. f GDPR.
For the processing of the data in the context of the sending process your consent is obtained and referred to this privacy statement.
Alternatively, contact via the provided e-mail address is possible. In this case, the user's personal data transmitted by e-mail will be stored.
In this context, there is no disclosure of the data to third parties. The data is used exclusively for processing the conversation.
Legal basis for the processing of the data is in the presence of the consent of the user Art. 6 para. 1 lit. a GDPR.
The processing of the personal data from the input mask serves us only to process the contact. In the case of contact via e-mail, this also includes the required legitimate interest in the processing of the data.
The other personal data processed during the sending process serve to prevent misuse of the contact form and to ensure the security of our information technology systems.
The data will be deleted as soon as it is no longer necessary for the purpose of its collection. For the personal data from the input form of the contact form and those sent by e-mail, this is the case when the respective conversation with the user has ended. The conversation is ended when it can be inferred from the circumstances that the relevant facts have been finally clarified.
The additional personal data collected during the sending process will be deleted at the latest after a period of seven days.
The user has the possibility at any time to revoke his consent to the processing of the personal data. If the user contacts us by e-mail, he may object to the storage of his personal data at any time. In such a case, the conversation can not continue. Please contact our data protection officer at dataprotect@carpetlight.com.
All personal data stored in the course of contacting will be deleted in this case.
We use Google Analytics for our own website. Google Analytics is a web analytics service provided by Google Inc. ('Google') in which cookies are also stored on the visitor's device, enabling an analysis of the use of the website The information generated by the cookie is transmitted to a Google server in We use the option of IP anonymization so that the IP address is always truncated by Google within member states of the European Union and in other contracting states of the Agreement on the European Economic Area prior to the transfer to the USA. Only in exceptional cases will the full IP address be sent to and shortened to a Google server in the US Google will use this information on our behalf to evaluate the use of the website, compile reports on website activity for website operators and others with website usage and internet usage provide undene services. The IP address provided by Google Analytics as part of Google Analytics will not be merged with other data provided by Google. The setting of cookies can be prevented by a corresponding setting in the browser; however, we point out that in this case not all features of this website may be fully exploited. The collection and storage of the IP address and the data generated by cookies can be contradicted at any time with effect for the future. The corresponding plugin for the browser can be found here: http://tools.google.com/dlpage/gaoptout.
The controller has integrated components of the company Facebook on this website. Facebook is a social network.
A social network is an Internet-based social meeting place, an online community that typically allows users to communicate with each other and interact in virtual space. A social network can serve as a platform to exchange views and experiences, or allows the Internet community to provide personal or business information. Facebook allows social network users to create private profiles, upload photos and socialize via friend requests.
The operating company of Facebook is Facebook, Inc., 1 Hacker Way, Menlo Park, CA 94025, USA. Persons responsible for the processing of personal data, if an affected person lives outside the US or Canada, are Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbor, Dublin 2, Ireland.
Each visit to one of the individual pages of this website, which is operated by the controller and on which a Facebook component (Facebook plug-in) has been integrated, the Internet browser on the information technology system of the person concerned automatically by the respective Facebook Component causes a representation of the corresponding Facebook component of Facebook to download. An overview of all Facebook plug-ins can be found at https://developers.facebook.com/docs/plugins/?locale=en_US. As part of this technical process, Facebook receives information about which specific underside of our website is visited by the person concerned.
If the data subject is simultaneously logged into Facebook, Facebook recognizes with each visit to our website by the data subject and during the entire duration of the respective stay on our website, which specific underside of our website the data subject visits. This information is collected through the Facebook component and assigned by Facebook to the respective Facebook account of the data subject.
Facebook always receives information via the Facebook component that the data subject has visited our website if the data subject is logged in to Facebook at the same time as accessing our website; this happens regardless of whether the person clicks on the Facebook component or not. If such a transfer of this information to Facebook is not wanted by the data subject, it can prevent the transfer by logging out of their Facebook account before calling our website.
The data policy published by Facebook, which is available at https://de-de.facebook.com/about/privacy/, provides information on the collection, processing and use of personal data by Facebook. It also explains which options Facebook offers to protect the privacy of the data subject. In addition, different applications are available, which make it possible to suppress data transmission to Facebook. Such applications can be used by the data subject to suppress data transmission to Facebook.
The controller has integrated Twitter components on this website. Twitter is a multilingual publicly available microblogging service where users can post and distribute so-called tweets, which are limited to 140 characters. These short messages are available to anyone, including non-Twitter subscribers. The tweets are also displayed to the so-called followers of the respective user. Followers are other Twitter users who follow a user's tweets. Twitter also allows you to address a broad audience via hashtags, links or retweets.
The operating company of Twitter is Twitter, Inc., 1355 Market Street, Suite 900, San Francisco, CA 94103, USA.
Each time one of the individual pages of this website, which is operated by the controller and on which a Twitter component (Twitter button) has been integrated, the Internet browser on the information technology system of the person concerned is automatically activated by the respective Twitter component causes to download a presentation of the corresponding Twitter component of Twitter. Further information on the Twitter buttons is available at https://about.twitter.com/en/resources/buttons. As part of this technical process, Twitter receives information about which specific subpage of our website is visited by the person concerned. The purpose of the integration of the Twitter component is to allow our users to redistribute the contents of this website, to promote this website in the digital world and to increase our visitor numbers.
If the data subject is simultaneously logged in to Twitter, Twitter recognizes with each visit to our website by the data subject and during the entire duration of the respective stay on our website, which specific underside of our website visits the data subject. This information is collected through the Twitter component and assigned through Twitter to the affected person's Twitter account. If the person concerned activates one of the Twitter buttons integrated on our website, the data and information transmitted with it are assigned to the personal Twitter user account of the person concerned and stored and processed by Twitter.
Twitter always receives information via the Twitter component that the person concerned has visited our website if the person concerned simultaneously logs on to Twitter at the time of access to our website; this happens regardless of whether or not the subject clicks on the Twitter component. If such a transfer of this information to Twitter is not wanted by the person concerned, it can prevent the transfer by logging out of their Twitter account before calling our website.
The applicable privacy policies of Twitter are available at https://twitter.com/privacy?lang=en.
The controller has integrated YouTube components on this website. YouTube is an internet video portal that allows video publishers to freely watch video clips and other users for free viewing, rating and commenting. YouTube allows the publication of all types of videos, so that both complete film and television broadcasts, but also music videos, trailers or user-made videos via the Internet portal are available.
YouTube's operating company is YouTube, LLC, 901 Cherry Ave., San Bruno, CA 94066, USA. YouTube, LLC is a subsidiary of Google Inc., 1600 Amphitheater Pkwy, Mountain View, CA 94043-1351, USA.
Each visit to one of the pages of this site operated by the controller and incorporating a YouTube component (YouTube video) will automatically cause the Internet browser on the subject's information technology system to be represented by the respective YouTube component to download an illustration of the corresponding YouTube component from YouTube. More information about YouTube can be found at https://www.youtube.com/yt/about/en/. As part of this technical process, YouTube and Google are aware of the specific bottom of our site visited by the person concerned.
If the data subject is logged in to YouTube at the same time, YouTube recognizes by calling a sub-page containing a YouTube video, which specific bottom of our website the affected person visits. This information is collected by YouTube and Google and associated with the individual YouTube account.
YouTube and Google will always receive information through the YouTube component that the data subject has visited our website if the data subject is simultaneously logged into YouTube at the time of access to our website; this happens regardless of whether the person clicks on a YouTube video or not. If such transmission of this information to YouTube and Google is not wanted by the data subject, it can prevent the transmission by logging out of their YouTube account before calling our website.
This site uses the mapping service Google Maps via an API. Provider is Google Inc., 1600 Amphitheater Parkway, Mountain View, CA 94043, USA.
To use the features of Google Maps, it is necessary to save your IP address. This information is usually transmitted to and stored on a Google server in the United States. The provider of this site has no influence on this data transfer.
The use of Google Maps is in the interest of an attractive presentation of our online offers and an easy findability of the places we have indicated on the website. This constitutes a legitimate interest within the meaning of Art. 6 para. 1 lit. f GDPR.
You may ask the person in charge to confirm if personal data concerning you is processed by us.
(8) the existence of automated decision-making including profiling under Article 22 (1) and (4) GDPR and, at least in these cases, meaningful information about the logic involved, and the scope and intended impact of such processing on the data subject.
You have the right to request information about whether your personal information relates to a third country or an international organization. In this connection, you can request the appropriate guarantees in accordance with. Art. 46 GDPR in connection with the transfer.
You have a right to rectification and / or completion to the controller, if the personal data you process is incorrect or incomplete. The responsible person must make the correction without delay.
(4) if you have objected to the processing pursuant to Art. 21 (1) GDPR and it is not yet certain whether the legitimate reasons of the person responsible outweigh your reasons.
If the processing of personal data concerning you has been restricted, this data may only be used with your consent or for the purpose of asserting, exercising or defending legal claims or protecting the rights of another natural or legal person or for reasons of important public interest Union or a Member State.
If the limitation of the processing after the o.g. If conditions are restricted, you will be informed by the person in charge before the restriction is lifted.
(1) Personal data concerning you are no longer necessary for the purposes for which they were collected or otherwise processed.
(2) You revoke your consent, to which the processing acc. Art. 6 para. 1 lit. a or Art. 9 para. 2 lit. GDPR and there is no other legal basis for processing.
(3) According to. Art. 21 para. 1 GDPR objection to the processing and there are no prior justifiable reasons for the processing, or you lay gem. Art. 21 para. 2 GDPR Opposition to processing.
(4) Your personal data have been processed unlawfully.
(5) The deletion of personal data concerning you shall be required to fulfill a legal obligation under Union law or the law of the Member States to which the controller is subject.
(6) The personal data concerning you were collected in relation to information society services offered pursuant to Art. 8 (1) GDPR.
If the person in charge has made the personal data concerning you public and is acc. Article 17 (1) of the GDPR, it shall take appropriate measures, including technical means, to inform data controllers who process the personal data that you have been identified as being affected, taking into account available technology and implementation costs Persons requesting deletion of all links to such personal data or of copies or replications of such personal data.
If you have the right of rectification, erasure or restriction of processing to the controller, he / she is obliged to notify all recipients to whom your personal data have been disclosed of this correction or deletion of the data or restriction of processing, unless: this proves to be impossible or involves a disproportionate effort.
You have a right to the person responsible to be informed about these recipients.
(2) the processing is done by automated means.
In exercising this right, you also have the right to obtain that your personal data relating to you are transmitted directly from one person to another, insofar as this is technically feasible. Freedoms and rights of other persons may not be affected.
The right to data portability does not apply to the processing of personal data necessary for the performance of a task in the public interest or in the exercise of official authority delegated to the controller.
You have the right at any time, for reasons that arise from your particular situation, against the processing of your personal data, which pursuant to Art. 6 para. 1 lit. e or f GDPR takes an objection; this also applies to profiling based on these provisions.
The controller will no longer process the personal data concerning you unless he can demonstrate compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or the processing is for the purpose of enforcing, exercising or defending legal claims.
If the personal data relating to you are processed for direct marketing purposes, you have the right to object at any time to the processing of your personal data for the purpose of such advertising; this also applies to profiling insofar as it is associated with such direct mail.
If you object to processing for direct marketing purposes, your personal data will no longer be processed for these purposes.
Regardless of Directive 2002/58 / EC, you have the option, in the context of the use of information society services, of exercising your right to object through automated procedures that use technical specifications.
You have the right to revoke your data protection declaration at any time. The revocation of consent does not affect the legality of the processing carried out on the basis of the consent until the revocation.
(3) with your express consent.
However, these decisions must not be based on special categories of personal data under Art. 9 (1) GDPR, unless Art. 9 (2) lit. a or g GDPR applies and reasonable measures have been taken to protect the rights and freedoms as well as your legitimate interests.
With regard to the cases referred to in (1) and (3), the person responsible shall take appropriate measures to uphold the rights and freedoms and their legitimate interests, including at least the right to obtain the intervention of a person by the controller, to express his / her own position and heard on challenge of the decision.
Without prejudice to any other administrative or judicial remedy, you shall have the right to complain to a supervisory authority, in particular in the Member State of its residence, place of work or place of alleged infringement, if you believe that the processing of the personal data concerning you is against the GDPR violates.
The supervisory authority to which the complaint has been submitted shall inform the complainant of the status and results of the complaint, including the possibility of a judicial remedy pursuant to Article 78 of the GDPR.
Professional filmlighting has never been so easy.
We are as flexible as our lights.

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As digital technologies continue to advance and encompass many aspects of everyday life, the development and use of “software” increases in direct proportion. Whether embedded system software (e.g., in mobile devices, appliances and IoT products), cloud hosted services, platform/infrastructure services, enterprise software or downloadable programs and apps, it is software that runs our computers and devices, allows for worldwide connectivity and communications, and provides for content and entertainment delivery. Software development is a major component of the global economy, and businesses, large and small, need to undertake significant efforts to protect, enforce and defend their proprietary code.
A computer program is a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. The copyright law does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design.
And, software companies have not hesitated to pursue claims of copyright infringement of their code. See, e.g., Antonick v. Electronic Arts, Inc., No. 14-15298, 841 F.3d 1062 (9th Cir. 2016) cert. denied __S. Ct. __ (November 6, 2017); Adobe Sys., Inc. v. Christenson, No. 12-1737, 809 F.3d 1071 (9th Cir 2015); Oracle America, Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) cert. denied 135 S. Ct. 2887 (2015).
Oracle v. Google is one of the more memorable software copyright infringement cases. In that litigation, Oracle pursued software copyright and patent infringement claims against Google and its Android operating system. Oracle alleged several distinct claims of infringement: a nine-line rangeCheck function, several test files, the structure, sequence and organization of Oracle’s Java application programing interface (API), and the API documentation. Oracle’s copyright infringement claims were primarily directed to its Java APIs, of which Oracle alleged 37 separate acts of infringement. While the jury found that the APIs were infringed, the jury deadlocked on Google’s fair use defense. The trial judge, however, ultimately ruled that the structure of Oracle’s Java APIs used by Google was not copyrightable. The Federal Circuit partially reversed the district court, ruling in Oracle’s favor on the copyrightability issue, and remanding the issue of fair use to the district court. After a second trial, the jury sided in favor of Google, ruling its actions to constitute fair use – a defense to infringement.
Although Oracle failed on its copyright infringement claims, could it have nonetheless pursued claims of “reverse engineering” against Google (setting aside the issue of whether Google legitimately acquired the API source code from Oracle predecessor, Sun Microsystems, in the first instance)? In short, the answer is “no.” While many developers and software companies are of the opinion that software code is protected against “reverse engineering” as a matter of copyright protection, absent an express contractual limitation or prohibition against reverse engineering, there is no right – under copyright law or otherwise.
While the Copyright Act is a powerful statutory tool for pursuing claims of copyright infringement – including the ability to obtain statutory damages provided the statute’s prerequisites are established – not all “copying” of software is tantamount to copyright infringement. Where there has been copying but not infringement under the Copyright Act, contractual prohibitions against reverse engineering may well prove to vindicate the software owner’s rights.
The issue of whether copyright infringement claims – provided for in the Copyright Act – preempt reverse engineering claims has been rejected by the courts. In Bowers v. Baystate Technologies, Inc., 370 F.3d 1317 (Fed. Cir. 2003), plaintiff Harold Bowers (“Bowers”) brought claims of copyright infringement and reverse engineering against Baystate Technologies, Inc. (“Baystate”) under the terms of a “shrink wrap” license agreement. Baystate defended the reverse engineering claim on the basis that the U.S. Copyright Act preempts the reverse engineering prohibition in the license agreement. The lower court agreed, finding that Bowers’ contract and copyright claims “coextensive.” As such, the district court instructed the jury that “reverse engineering violates the license agreement only if Baystate’s product that resulted from reverse engineering infringes Bowers’ copyright because it copies protectable expression.” The Federal Circuit reversed the district court, ruling that the Copyright Act does not preempt or narrow the scope of a contract claim prohibiting reverse engineering. 370 F.3d at 1327. As such, the Federal Circuit held that there exists a separate and distinct cause of action for the wrongful “copying” of Bowers’ software under the contractual prohibition of reverse engineering, which the trial jury found breached by Baystate.
In this case, the contract unambiguously prohibits “reverse engineering.” That term means ordinarily “to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version.” [Bowers, 370 F3d at 1326, citing Random House Unabridged Dictionary (1993)].
The evidence presented in Bowers v. Baystate in support of the reverse engineering claim is also informative. For example, Baystate scheduled two weeks in the development schedule of its competing product to specifically analyze Bowers’ software. In fact, Baystate’s president and CEO testified that Baystate generally analyzed competitor’s products to duplicate their functionality. In addition, the record also contained evidence of extensive and unusual similarities between the original and accused products – further evidence of reverse engineering to support the jury’s finding. An expert on behalf of Bowers testified that he examined the relevant software programs to determine the overall structure of the programs, such as how the programs actually executed the task of walking a user through certain processes. That expert concluded that in the larger process of taking a relevant standard “and breaking it down into its component parts to actually create a step-by-step process for a user using the software,” both the original and accused programs use “almost the identical process of breaking down that task into its individual pieces,” and that the programs are “organized essentially identically.” Id. at 1326-1327.
In addition, a fact witness – an individual who licensed to Bowers certain software components and features that comprised Bowers’ software program – testified that he had compared the original and accused programs. When asked to describe the accused program’s interface, the witness responded: “It looked like I was looking at my own program . . .” As such, both the expert and fact witnesses for Bowers explained in detail the similarities between the original and accused programs – similarities that included the interrelationships between program screens, the manner in which parameter selection causes program branching, and the manner in which licensed symbols are drawn. Id. at 1327.
Even more compelling, both witnesses also testified that those similarities extended beyond structure and design to include many idiosyncratic design choices and inadvertent design flaws. The expert concluded that based on his “summary analysis of how the programs function, their errors from the standard and their similar nomenclatures reflecting nonstandard items,” the accused program is a “derivative copy” of the original program. Id.
The court noted that both Bowers’ “copyright and contract claims both rest on Baystate’s copying of Mr. Bowers’ software.” Id. As concluded by the Federal Circuit: “The shrink-wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers’ software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying.” Id. As such, Bowers’ could pursue both copyright infringement and reverse engineering claims – separate and distinct causes of action that were both premised on the copying of Bowers’ software under the facts and circumstances of the case.
Contracts covering software, such as license agreements, SaaS service agreements, website services agreements, etc., should all include a prohibition against reverse engineering. While the Copyright Act is a powerful statutory tool for pursuing claims of copyright infringement – including the ability to obtain statutory damages provided the statute’s prerequisites are established – not all “copying” of software is tantamount to copyright infringement. Developers often develop functionality through different code in as much as two persons would likely use different words to tell a story. In such cases – where there has been copying but not infringement under the Copyright Act – contractual prohibitions against reverse engineering may well prove to vindicate the software owner’s rights.

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This chapter cited in 55 Pa. Code § 3800.3 (relating to exemptions).
ActThe Pennsylvania Drug and Alcohol Abuse Control Act (71 P. S. § § 1690.1011690.115).
Active clientA client in any phase of treatment.
Administration activityThe provision of planning, organizing, funding and control of the SCA drug and alcohol program.
Aftercare planA plan for clients to follow after they leave formal treatment. It is the clients individual plan for the future, including an identification of the clients personal goals and objectives.
AgentA Commonwealth approved opioid pharmacotherapy substance.
CSATCenter for substance abuse treatment.
CaseloadThe number of clients who are receiving direct counseling services on a regular basis at least twice per month. The number of clients does not include clients who are seen by a counselor only for intake evaluations.
Case managementAn organized system of coordinative activities developed and administered by the SCA to ensure client continuity of service, efficient and effective utilization of available resources, and appropriateness of service to meet the needs of the client.
Certificate of complianceA certificate which indicates that the Department has found a drug and alcohol treatment activity, which is part of a health care facility, to be in full or substantial compliance with standards established by the Department.
ClientAn individual who is or has been the recipient of the services of a project. A client may be receiving drug services, alcohol services, or both.
Client recordsThe medical, psychological, social, occupational and financial data obtained as part of the diagnosis, classification and treatment of a client.
Clinical supervisorThe director of treatment services who supervises counselors and counselor assistants and who meets the education and experience requirements in Chapter 704 (relating to staffing requirements for drug and alcohol treatment activities).
Close supervisionFormal documented case review and an additional hour of direct observation by a supervising counselor or a clinical supervisor once a week.
Commonwealth approved opioid pharmacotherapy substanceMethadone, LAAM or other controlled drug approved by the Department for the detoxification or maintenance of opiate addiction.
Controlled substanceA drug, substance or an immediate precursor included in Schedules I through V of the Pennsylvania Controlled Substance, Drug, Device, and Cosmetic Act (35 P. S. § § 780-101780-149).
Correctional institution activityThe provision of drug or alcohol services within or under the jurisdiction of a State or county correctional facility.
CounselorAn individual who provides a wide variety of treatment services which may include performing diagnostic assessments for chemical dependency, developing treatment plans, providing individual and group counseling and other treatment modes and who meets the education and experience requirements in Chapter 704.
Counselor assistantAn entry level position for an individual without counseling experience who provides treatment services under the direct supervision of a trained counselor or clinical supervisor. This individual shall complete a structured supervision and training program as delineated in § § 704.9 and 704.11(g) (relating to supervision of counselor assistant; and staff development program). The length of time spent in assistant status is dependent upon previous education and clinical experience and satisfactory completion of the performance evaluation completed during the assistant status.
DepartmentThe Department of Drug and Alcohol Programs of the Commonwealth.
Department-approved curriculumTraining courses developed or funded by the National Institute on Drug Abuse (NIDA), the National Institute on Alcohol Abuse and Alcoholism (NIAAA), the Office for Substance Abuse Prevention (OSAP), the Department or other Federal or State agencies.
DEAThe Federal Drug Enforcement Administration.
Detoxification of a narcotic dependent person utilizing an agentDispensing of an agent in decreasing doses to an individual to alleviate adverse physiological or psychological effects incident to withdrawal from the continuous or sustained use of an opiate and for assisting patients in reaching and maintaining a narcotic drug-free state of detoxification.
Direct observationIn person observation of staff working in a clinical setting for the purpose of planning, oversight, monitoring and evaluating their activities.
Driving under the influence activityThe provision of services aimed at the reduction of alcohol related motor vehicle offenses through education, information and consultation; identification of individuals in need of treatment; and referral to other resources.
(i) Recognized in the official or supplement to either the United States Pharmacopeia or official National Formulary.
(ii) Intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals.
(iii) Other than food, intended to affect the structure or function of the body of man or other animals.
(iv) Intended for use as a component of any article specified in subparagraph (i), (ii) or (iii), but not including devices or their components, parts or accessories.
Drug and alcohol specialistThe administrator of a drug and alcohol planning council.
Drug dependent personA person who is using a drug, controlled substance or alcohol, and who is in a state of psychic or physical, or both, dependence arising from administration of that drug, controlled substance or alcohol, on a continuing basis.
Drug free approachThe provision of guidance, advice, and psychological treatment as a means to deal with the clients emotional structure and concurrent problems without the use of a maintenance substance. Temporary medication for treatment of physiological conditions or as an adjunct to psychosocial treatment may be utilized in this approach.
Drug screeningA clinical test to detect a drug or its metabolities in human biological fluid.
Dynamic capacityThe maximum number of clients that can be treated in 1 year in each activity or activity/approach combination.
Evaluation activityThe systematic collection, analysis and interpretation of objective data pertaining to the measurement of success in achieving goals and objectives or to the development of a needs assessment.
Executive directorThe administrator of a drug and alcohol commission.
Experimental approachAn innovative treatment approach not generally utilized for treatment of drug and alcohol clients.
FacilityThe physical location in which ongoing, structured and systematic drug and alcohol services are delivered. A facility may have more than one activity.
Facility directorThe administrator of the treatment facility who is responsible for the overall management of the facility and staff and who meets the education and experience requirements in Chapter 704.
Follow-upThe procedure by which a project determines the status of a client who has been referred to an outside service provider for services or who has been discharged from the project.
Freestanding treatment facilityThe setting in which drug and alcohol treatment services take place that is not located in a health care facility.
Governing bodyThe persons with full legal responsibility for the overall operation of the project.
(i) A general, tuberculosis, chronic disease or other type of hospitalbut not hospitals caring exclusively for the mentally illa skilled nursing facility, home health care agency, intermediate care facility, ambulatory surgical facility or birth centerregardless of whether the health care facility is created for profit, nonprofit, or by an agency of the Commonwealth or local government.
(ii) The term does not include an office used primarily for the private practice of medicine, osteopathy, optometry, chiropractic, podiatry or dentistry; nor a program which renders treatment or care for drug or alcohol abuse or dependence, unless located within a health facility; nor a facility providing treatment solely on the basis of prayer or spiritual means.
(iii) The term does not include a mental retardation facility except to the extent that it provides skilled nursing care.
(iv) The term does not apply to a facility which is conducted by a religious organization for the purpose of providing health care services exclusively to clergymen or other persons in a religious profession who are members of a religious denomination.
Inpatient hospital activityThe provision of detoxification or treatment and rehabilitation services, or both, 24 hours a day, in a hospital. The hospital shall be licensed by the Department as an acute care or general hospital, or approved by the Department of Public Welfare as a psychiatric hospital.
(i) Residential treatment and rehabilitation services.
Intake, evaluation and referral activityThe provision of intake and referral by a facility designated by the SCA to perform those services centrally for two or more facilities within that SCA.
Intervention levelThe provision of services aimed at assisting the client in coping with a specific crisis or other situation in his life for which his customary modes of adaptation have proved inadequate. This level is aimed at assisting in decision making and supporting the client until he can cope with the situation independently. Referral is provided if the need for a structured treatment regimen or other services is indicated.
JoinderA drug and alcohol administrative unit whose geographic area consists of two or more counties.
LicenseA certificate which indicates that the Department has found a freestanding treatment facility to be in full or substantial compliance with standards established under this part.
Local authorityThe elected executive officials of a county.
Long-term detoxification treatmentDetoxification treatment for more than 30 days but not in excess of 180 days.
Long-term residential facilitiesFacilities where the average length of stay exceeds 90 days.
MH/MR administratorThe person appointed by the local authority to carry out duties, as provided in the Mental Health and Mental Retardation Act of 1966 (50 P. S. § § 41014704), within a county MH/MR program.
Maintenance treatmentDispensing of an agent in sufficient doses to an individual on a continuing basis in conjunction with assessment, rehabilitation, treatment and ancillary services, to achieve stabilization or prevent withdrawal symptoms for treatment of an individual with an opiate dependency.
Medical directorA narcotic treatment physician who assumes responsibility for the administration of all medical services performed in the narcotic treatment program, including ensuring that the program is in compliance with all Federal, State and local laws and regulations regarding the medical treatment of narcotic addiction with a an agent.
MedicationA prescription drug ordered by a licensed physician.
Medication unitA facility established as part of, but geographically separate from, the narcotic treatment program site, from which a retail pharmacist or a practitioner, who is licensed under State law and registered under Federal law to administer or dispense a narcotic drug, may dispense or administer a narcotic drug or collect samples for drug testing or analysis for narcotic drugs.
Narcotic or opioid dependent personAn individual who physiologically needs heroin or an opiate to prevent the onset of signs of withdrawal and who meets the accepted diagnostic criteria for opioid dependence.
Narcotic treatment physicianA physician who meets the qualifying criteria in § 715.6(a)(1)(i)(iii) who is employed or contracted by a narcotic treatment program to provide medical services to patients.
Narcotic treatment programA program for chronic opiate drug users that administers or dispenses agents under a narcotic treatment physicians order either for detoxification purposes or for maintenance and when appropriate or necessary provides a comprehensive range of medical and rehabilitative services.
Nonresidential facilityA facility that does not provide sleeping accommodations and provides one or more of the following activities: outpatient, partial hospitalization, intake, evaluation or referral activities.
Occupational program activity/employee assistance programsThe provision of consultation, education, training and referral services to industry to assist employees whose job performance is deteriorating due to substance abuse.
Other chemotherapy approachA treatment approach that includes chemotherapy using a primary medication for other than detoxification purposes. The term implies continued doses of medication. If a client receives only short-term medication for temporary symptomatic relief, the client is entered under the drug free or the detoxification approach, as appropriate.
Outpatient activityThe provision of counseling or psychotherapeutic services on a regular and predetermined schedule. The client resides outside the facility.
OutreachIdentifying persons who are in need of services, and alerting them to the availability and location of the services.
ParaprofessionalAn individual, currently serving in a clinical capacity in a drug or alcohol treatment intervention or prevention project, whose performance closely relates to the technical or ethical standards normally ascribed to a professional.
Partial hospitalization activityThe provision of psychiatric, psychological, social and other therapies on a planned and regularly scheduled basis. Partial hospitalization is designed for those clients who would benefit from more intensive services than are offered in outpatient treatment projects, but who do not require 24-hour inpatient care.
Performance auditAn examination of the total fiscal and program operations of the SCA and its drug and alcohol projects.
PhysicianAn individual who has a currently registered license to practice medicine or osteopathic medicine in this Commonwealth.
Planning council/executive commissionA body of individuals appointed to plan, approve and coordinate the county drug and alcohol program.
Primary care hoursThe primary hours of operation during which primary care services are provided as established by the facility and approved by the Department.
Primary care servicesMedical, psychological, counseling and support services provided by primary care staff in a treatment and rehabilitation activity as defined in this chapter.
Primary care staffThe group of individuals, including clinical supervisors, counselors, physicians, physicians assistants, psychologists, registered nurses and licensed practical nurses who provide primary care services and those individuals who are responsible for developing and implementing the treatment plan.
ProgramThe aggregate of drug and alcohol projects under the jurisdiction of an SCA. This aggregation may be by type (SCA alcohol program), by level (SCA prevention program) or may include drug and alcohol projects (SCA drug and alcohol program).
ProjectThe public or private organization responsible for the administration and delivery of drug or alcohol services, or both, through one or more facilities. A project is a component of an SCA drug and alcohol program.
Project appovalThe process for determining a projects compliance with published standards and certifying that the project is in compliance.
Project directorThe administrator of the treatment project who is responsible for the overall management of the project and staff and who meets the education and experience requirements in Chapter 704.
Project staffPersons performing the activities necessary for the operation of the project or facility.
PsychologistA person licensed to practice psychology under the Professional Psychologists Practice Act (63 P. S. § § 12011218).
PsychotherapyTreatment of problems of an emotional nature by psychological means in which a trained person deliberately establishes a professional relationship with the patient with the objective of removing, modifying or retarding existing symptoms, mediating disturbed patterns of behavior and promoting positive personality growth and development.
Residential facilityAn inpatient, nonhospital facility or inpatient freestanding psychiatric hospital that provides sleeping accommodations and provides one or more of the following activities: residential treatment and rehabilitation services, transitional living services or short-term detoxification services, 24 hours a day.
SCASingle County AuthorityThe agency designated by the local authorities in a county or joinder to plan, fund and administer drug and alcohol activities in that county or joinder. The SCA consists of the planning council/executive commission, the specialist/executive director, and, in the case of the planning council option, the MH/MR administrator. The local authorities are the final fiscal and management authority.
SCA levelThose activities conducted by the SCA which do not involve direct contact with clients or participants.
SCA planThe annual drug and alcohol prevention, intervention and treatment plan of the SCA.
Short-term detoxification activityThe provision of detoxification services in a residential facility, not to exceed 7 days.
Short-term detoxification treatmentDetoxification treatment for 30 days or less.
State authorityThe agency designated by the Governor or other appropriate official to exercise the responsibility and authority for the treatment of narcotic addiction with an agent.
Training activityThe provision of necessary education and experience used to prepare those who will work or are currently working in the drug or alcohol field.
Transitional living activityThe provision of supportive services in a semiprotected home-like environment to assist a client in his gradual reentry into the community. No formal treatmentcounseling/psychotherapytakes place at the facility. This is a live-in/work-out situation.
TreatmentActivities carried out specifically to effect the reduction or alleviation of the dysfunctions or disability of the client.
Treatment and rehabilitation activityFollowing the physiological detoxification phase, a full range of treatment and supportive services carried out specifically to alleviate the dysfunction of the patient. This includes the systematic application of social, psychological or medical service methods to assist individuals to deal with the causative effects or consequences of drug or alcohol abuse. These services can be provided either in a hospital or residential nonhospital setting licensed/approved by the Department.
Treatment levelThe activities aimed at the systematic application of social, psychological or medical service methods to assist individuals to deal with negative effects or consequences of drug and alcohol use or abuse.
UDCSUniform Data Collection SystemIncludes the client management facet, the fiscal management facet, and the program management facet set of forms developed and maintained by the Department.
The provisions of this § 701.1 amended under Articles IX and X of the Public Welfare Code (62 P. S. § § 901922 and 10011059), as transferred to the Department under Reorganization Plan No. 2 of 1977 (71 P. S. § 751-25) and Reorganization Plan No. 4 (71 P. S. § 751-31); the Health Care Facilities Act (35 P. S. § § 448.101448.904b); the Pennsylvania Drug and Alcohol Abuse Control Act (71 P. S. § § 1690.1011690.114); Article VI-A of The Insurance Company Law of 1921 (40 P. S. § § 908-1908-8; and section 2301-A of The Administrative Code of 1929 (71 P. S. § 613.1).
The provisions of this § 701.1 amended February 2, 1996, effective March 4, 1996, 26 Pa.B. 567; amended December 5, 1997, effective December 6, 1997, 27 Pa.B. 6330; amended March 1, 2002, effective March 2, 2002, 32 Pa.B. 1183; amended July 5, 2002, effective July 6, 2002, 32 Pa.B. 3201; amended November 15, 2002, effective November 16, 2002, 32 Pa.B. 5638; amended October 17, 2014, effective October 18, 2014, 44 Pa.B. 6658. Immediately preceding text appears at serial pages (293135) to (293142) and (342435).
This section cited in 28 Pa. Code § 49.17 (relating to Department of Health licensing of substance abuse services provided by professional counseling practicesstatement of policy); and 55 Pa. Code § 1223.52a (relating to requirements for clinic supervisory physician reviews and reevaluations of diagnoses, treatment plans and updatesstatement of policy).
The provisions of this § 701.2 reserved December 5, 1997, effective December 6, 1997, 27 Pa.B. 6330. Immediately preceding text appears at serial pages (210237) to (210238).
(1) The act, as transferred to the Department by Reorganization Plan No. 4 of 1981 (P. L. 610) (71 P. S. § 759-4).
(2) The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101780-144).
(3) Articles IX and X of the Public Welfare Code (62 P. S. § § 901922 and 10011088), as transferred by Reorganization Plan No. 2 of 1977 (P. L. 372) (71 P. S. § 757-2) and No. 4 of 1981 (71 P. S. § 757-2).
(4) The Health Care Facilities Act (35 P. S. § 448.101448.904b).
(5) The act of July 9, 2010 (P. L. 348, No. 50), codified in section 2301-A of The Administrative Code of 1929 (71 P. S. § 613.1).
The provisions of this § 701.3 amended under section 2301-A of The Administrative Code of 1929 (71 P. S. § 613.1).
The provisions of this § 701.3 amended October 17, 2014, effective October 18, 2014, 44 Pa.B. 6658. Immediately preceding text appears at serial page (342435).
701.11. Exceptions to this part.
§ 701.11. Exceptions to this part.
(a) SCAs and projects may submit a written request to the Department for an exception to a provision of this part.
(1) In furtherance of sound project or program implementation.
(2) Consistent with the policy objectives of this part.
(c) The granting or denial of an exception to this part will be in writing, will be signed by the Secretary or a designee, and will set forth the reasons therefore.
(d) Exceptions will not be granted to standards and regulations which are mandated by State or Federal statutes, or Federal regulations which shall be met for certification of eligibility for Federal funds.
§ 701.12. Revocation of exceptions.
(a) An exception granted under this chapter may be revoked by the Department, at its discretion, for a justifiable reason. Notice of revocation will be in writing and include the reason for the action of the Department and a specific date upon which the exception will be terminated.
(b) In revoking an exception, the Department will provide for a reasonable time between the date of written notice of revocation and the date of termination of an exception for the project or an SCA to come into compliance with this part. Failure by the project or an SCA to comply after the specified date may result in enforcement proceedings under this part.
Questions concerning this part should be directed to the Department of Drug and Alcohol Programs, Division of Program Licensure, 132 Kline Plaza, Harrisburg, Pennsylvania 17104.
The provisions of this § 701.13 amended under section 2301-A of The Administrative Code of 1929 (71 P. S. § 613.1).
The provisions of this § 701.13 amended October 17, 2014, effective October 18, 2014, 44 Pa.B. 6658. Immediately preceding text appears at serial page (342436).


MATT DENN, et al., Defendants.
Matthew Jones, Greenwood, Delaware. Pro Se Plaintiff.
Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants.
Plaintiff Matthew Jones, who appears pro se and has been granted leave to proceed in forma pauperis, filed this action in June 2017 in the United States District Court for the Eastern District of Pennsylvania against several State of Delaware Defendants. The matter was transferred to this Court on July 21, 2017. (D.I. 5). Jones asserts jurisdiction by reason of a federal question and diversity of citizenship. He alleges that his claims arise under federal criminal statutes and the Fifth Amendment of the United States Constitution. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) prior to review and screening of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). (D.I. 7). Plaintiff opposes the motion to dismiss. (D.I. 8). The Court proceeds to screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Complaint is a rambling, disjointed biography of Jones' life that skips from topic to topic. He claims he was taken from his parents at birth and given to another couple. He states that he has been imprisoned illegally since birth for sexual reasons. He describes acts taken against him from the time he was an infant through high school. Jones has been diagnosed with schizophrenia, has had forced hospitalizations sixteen times, and court-ordered administration of anti-psychotic medications. The Complaint describes various hospitalizations and the treatment received.
Plaintiff alleges the Attorney General "has taken no action to end the bloodshed, continues to work for the villains, and moves on their behalf." (D.I. 1-2 at 13). He alleges, "[T]he Attorney General's Office has made blatant death threats on the judges and other attorneys to continue the murderous rage that he and the police have implemented over [his] entire life in their illegal parsonage to sexual slavery." (Id. at 13-14). Plaintiff asks to be released from slavery. The Complaint also discusses various lawsuits Plaintiff has filed and decisions rendered in the cases.
A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94.
The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. SeeAshcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __ U.S. __, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.


RESPECT TO DANGEROUS CONDITION? IF SO, UNDER WHAT CIRCUMSTANCES?
INDEPENDENT CONTRACTOR AND THUS NO LIABILITY COULD ARISE FOR DEFENDANT.
duties landowners owe to independent contractors.
We hold the trial court correctly found no duty here, and the court of appeals erred in reversing it.
straight, 10 feet wide, 40 feet long, and had six-inch curbs along both edges but no guard rails.
load his truck on the ramp or outside in the driveway.
fall off the ramp’s side and fracture his hip, pelvis, and thumb.
theories and reversed. We address each theory in turn.
does not owe a duty to ensure that independent contractors perform their work in a safe manner.
cords he used for that purpose were entirely his own.
Moritz’s activities if his injury arose from another.
Accordingly, the court of appeals erred in finding a fact question on his negligent activity theory.
existing condition and obviously not a concealed hazard.
shoppers, sightseers, or other business invitees.
controls the details and methods of its own work, including the labor and equipment employed.
defects ensures that the party with the duty is the one with the ability to carry it out.
been using for more than a year had no handrails.
unquestionably had a duty to provide second-floor renters some way down besides jumping.
must, however, prove the defendant had a duty and breached it.
the First, Seventh, Eighth, and Fourteenth Districts, and the federal Fifth Circuit.
employer must owe him a duty here. We expressly rejected any such duty forty years ago.
or otherwise — as the dissent asserts.
but we decline the dissent’s suggestion that we simplify them by mashing them all together.
conditions that are not open and obvious and that the owner knows or should have known exist.”).
before the summary judgments at issue here.
Co., 845 S.W.2d 262, 264 (Tex. 1992).
Coastal Marine Serv. of Tex., 988 S.W.2d at 225; Olivo, 952 S.W.2d at 527.
 Khan, 138 S.W.3d at 292; accord, Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex. 2002); Lee Lewis Constr., Inc. v.
(Second) of Torts § 414 (1965).
11 S.W.3d 153, 155 (Tex. 1999).
 70 S.W.3d 778 (Tex. 2001).
 ___ S.W.3d at ___ (emphasis added).
ones it controlled had nothing to do with the criminal act that ultimately occurred.”).
 Id. at 291; Dow Chem., 89 S.W.3d at 606; Koch Ref., 11 S.W.3d at 156 n.3; Redinger, 689 S.W.2d at 417.
443, 446 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.).
 Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Brownsville Navigation Dist. v.
(Second) of Torts § 358 (1965).
and the duty to furnish reasonably safe instrumentalities with which employees are to work.”).
 Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).
 565 S.W.2d 512, 517 (Tex. 1978).
 682 S.W.2d 533, 533-34 (Tex. 1984).
so open and obvious as to charge her, as a matter of law, with such knowledge and appreciation”).
legal duty owed to him by the defendant to establish tort liability.”).
 Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex. 1999); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.
W.2d 749, 756 (Tex. 1998).
 Joachimi v. City of Houston, 712 S.W.2d 861, 863 n.1 (Tex. App.—Houston [1st Dist.] 1986, no pet.).
 Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.).
 Delgado v. Houghston, No. 08-99-00044-CV, 2000 WL 678774, at *5 n.2 (Tex. App.—El Paso May 25, 2000, no pet.).
 Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). But cf.
of that danger even if the invitee is already aware. However, that result is dictated by Parker . . . .”).
 See Thomas v. Internorth, Inc., 790 F.2d 1253, 1256 (5th Cir. 1986).
 258 S.W. 803, 806 (Tex. 1924).
 Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390, 394 (Tex. 1967).
defect when a safer, reasonable alternative design exists.”); Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex.
 Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 544 (Tex. 1998).