December 11, 2018

Archives for July 19, 2018

Nose Pressed Up Against the Glass

You’re on the outside looking in. What you want is only a window pane away, but it might as well be on Mars. Novelist Maria E. Andreu captures the feeling:

“There is a wonderful scene in the 1939 film version of Wuthering Heights . . . in which Heathcliff and Catherine sneak on to the grounds of the Linton house at night. The Lintons, the rich neighbors, are having a grand party. Heathcliff and Catherine watch through the window, unseen. It’s exactly what’s meant by ‘nose pressed up against the glass,’ watching but not being able to participate.

“You can see a lot in their faces as they watch the others dance. Catherine, the daughter of a landed ‘gentleman,’ gets a look that lets you know that she’s intrigued, beginning to want to let go of her wild childhood and take her place in the Lintons’ world. Healthcliff, the servant who adores Catherine, knows that even if he could stop being poor, he would never belong there. He will always be watching from outside the glass.”

Nose pressed up against the glass — it’s an enduring image in literature and in life. Ms. Andreu continues:

I’ve thought about this scene a lot. I’ve used the image in my writing. It illustrates how I’ve felt sometimes, able to see ‘the good life’ but not able to live it. Most of my life, the Heathcliff in me has weighed heavy inside my heart.

But then one day the magic happened, and suddenly she found herself transported to the other side of the window pane:

Yesterday, I got a rave review for my novel that comes out in a month and a half. In my email, I got an invitation to a launch party for another author’s book. I packed to go to a book signing and remembered I needed an extra outfit for an industry cocktail party and the ‘members only’ dinner afterwards with people from my publishing house.

If that’s not being inside the party, I don’t know what is.

Someone has opened the door of the party for some fresh air, seen me lurking, and extended a hand of friendship to let me in. It is an unbelievable feeling. I live a life of impossible splendor, of magical beauty, of infinite luck. And I am so deeply grateful.

We’d feel the same way, if we ever got so lucky. (Assuming we’ve been working hard enough to get lucky — here’s The Quote Investigator on where that saying came from.)

In economic terms, the distance between Heathcliff and the Lintons is a matter of social capital. Ryan Avent, author of The Wealth of Humans, distinguishes between human capital and social capital. Human capital, he says, is a particularly focused and useful form of knowledge that an individual gains through education, hard work, experience, on-the-job training, etc. It’s the hard work part of the formula. Social capital, on the other hand, is the opportunity part, and it’s not just personal, it’s cultural. Avent says it’s “like human capital . . . but is only valuable in particular contexts, within which a critical mass of others share the same social capital.”

For those not already in the social capital club, converting human capital into social capital requires upward mobility. Ms. Andreu’s upward mobility moment was getting her “members only” invitation – official permission to duck under the red velvet rope and join an exclusive gathering where she could schmooze the “others [who] share the same social capital.” Heathcliff, on the other hand, never got his upward mobility moment. As a result, there wasn’t just a glass window pane between him and the Lintons, there was a glass ceiling.

Nose pressed against the glass… glass ceiling… we’ve heard those expressions before. Nowadays, another glass metaphor has entered the economic lexicon: the “glass floor, which protects the upper middle class against the risk of downward mobility.” (My emphasis. The quote is from Dream Hoarders:  How the American Upper Middle Class is Leaving Everyone Else in the Dust, Why That is a Problem, and What to Do About It by Richard V. Reeves.)

Hoping to move up? Afraid of moving down? These days, it’s hard to do either. And if you’re hoping to move up, there’s one additional, elusive element required for membership in the red velvet club:  the notion of identity — the need to be the kind of person who belongs there. In this short video (click the image below), Michael Port, author of the bestseller Book Yourself Solid, asks, “What makes [red velvet rope people] who they are?” He answers that it’s “their quality, their characteristics, their personality — things that are innate, are part of who they are as people, not necessarily their circumstances.”

We’ll be looking lots more at upward mobility and social capital in the weeks to come.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning. Check out his latest LinkedIn Pulse article: “Rolling the Rock: Lessons From Sisyphus on Work, Working Out, and Life.”

Colorado Court of Appeals: Governmental Immunity May Be Waived for Operation or Maintenance of Public Facility Performed by Independent Contractor

The Colorado Court of Appeals issued its opinion in Lopez v. City of Grand Junction on Thursday, July 12, 2018.

Negligence—Colorado Governmental Immunity Act—Waiver—Independent Contractor—Maintenance Work.

The underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Gas from the ruptured line leaked into the surrounding ground and a sewer main and migrated to a house, resulting in an explosion. Lopez, Pierson, and Gimmeson (plaintiffs) brought negligence claims against the City of Grand Junction (City) for their resultant personal injuries and property damage. Plaintiffs’ complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines. As pertinent here, the complaint alleged that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light; during this maintenance project Apeiron ruptured a gas line; and the leaking gas resulted in the house explosion. The complaint further alleged that Apeiron’s conduct should be imputed to the City. The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA). The court granted the motion.

On appeal, plaintiffs contended that the district court erroneously concluded that Apeiron’s conduct in maintaining the traffic light was not attributable to the City for purposes of waiving the City’s immunity under C.R.S. § 24-10-106(1)(f). For purposes of the immunity waiver in C.R.S. § 24-10-106(1)(f), a public entity maintains a public facility even if it hires an independent contractor to perform the maintenance. Here, plaintiffs met their burden to establish a waiver of immunity as to their negligence claims against the City.

Plaintiffs next asserted that the district court erred when it dismissed their negligence claim against the City as to its operation and maintenance of its sewer main. Plaintiffs asserted that the City’s failure to keep the main free of invasive roots was a failure to maintain that waived liability under the CGIA. Based on the record, plaintiffs failed to meet their burden to prove a waiver.

The dismissal of plaintiffs’ negligence claim against the City as to its operation and maintenance of its sewer main was affirmed. The dismissal of the negligence claims against the City for Apeiron’s maintenance work on the traffic light was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Must Determine Whether Retrospective Competency Evaluation Feasible

The Colorado Court of Appeals issued its opinion in People v. Lindsey on Thursday, July 12, 2018.

Competency—Jury Instructions—Unanimity Instruction.

Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors that he had contracts to sell his new technology. Neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses. A jury convicted Lindsey of eight counts of securities fraud and four counts of theft.

On appeal, Lindsey contended that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel’s motion before trial. Here, the trial court failed to comply with the statutory procedure. The motion was facially valid, and the trial court abused its discretion in concluding that a facially valid motion on competency did not fall under the competency statute.

Lindsey next argued that the trial court erred by (1) instructing the jury that “any note” constitutes a security, and (2) giving an improper unanimity instruction. As to the first argument, Lindsey’s trial was conducted before People v. Mendenhall, 2015 COA 107M. In the event of retrial, the trial court and parties should apply Mendenhall’s four-factor test in crafting new jury instructions. As to the second contention, regarding Count 6, which included three separate transactions, the unanimity instruction should be modified to specify that the jury must agree unanimously that defendant committed the same act or that defendant committed all of the acts included within the period charged.

The judgment was vacated and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/18/2018

On Wednesday, July 18, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Brown

United States v. Handy

Valles v. Hansen

United States v. Jaramillo

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.