Since Florida’s repeal in 1990 of a little-known doctrine in state law known as the “fireman’s rule”, police officers and firefighters injured while responding to calls have been free to sue private parties for damages. “In the past month, a Jupiter motorcycle officer and a Palm Beach County sheriff’s deputy have sued people who called for help. In both cases, the officers blamed their injuries on the negligence of people they were dispatched to protect. Earlier this year, officers in Sunrise and Plantation filed similar suits after suffering serious injuries.” Although the fireman’s rule still exists in most states, it’s “being slowly eradicated state-by-state” according to one observer; in Florida, lobbying by a police union helped ensure its demise. And although the Florida police union claims it only wanted to open the gates for suits over gross negligence and the like, suits have become a growth area and often name deep-pocket bystanders. (Bill Douthat, Palm Beach Post, Sept. 30).
Archive for September, 2003
FTC Commissioner on class actions
Federal Trade Commissioner Thomas Leary’s June 26 speech on the FTC’s interest in class action litigation is on-line. Leary criticizes excessive attorney fees, cites the Manhattan Institute’s work on forum-shopping (see Mar. 24) and also notes the problem that the process can drive the result:
Once a class is certified to address a single common factor, it acquires a life of its own. If the case does not settle promptly, conservation of judicial resources may motivate courts to find ways to shortcut a burdensome inquiry into other substantive elements of the plaintiff’s case, like actual “impact” on, or “reliance” by, a large number of individuals who are differently situated. Substance is tailored to serve the needs of process rather than the other way around.
“Injured student sues goal post maker”
Had to happen dept.: “A man whose legs were paralyzed when fellow Ball State students toppled a goal post after a 2001 football upset of Toledo is suing the goal post maker. Andrew Bourne, 23, of Liberty, Ind., and his parents are suing Marty Gilman Inc. of Gilman, Conn., claiming the aluminum posts were ‘designed and constructed in a manner which allowed them to suddenly snap and collapse.'” (Gary Mihoces, USA Today, Sept. 30). Update Jul. 24, 2005: court rejects Bourne’s case and his lawyer vows appeal.
Increase in number of “retarded” on Death Row
The Philadelphia Inquirer reports on an unintended, but predictable, consequence of the Supreme Court’s 2002 decision forbidding executions of the mentally retarded: hundreds of prisoners sentenced to death claiming for the first time that they are retarded. Pennsylvania has two bills pending to address the tens of such claims in their state, but any laws passed on the subject are surely only the source of additional litigation. (L. Stuart Ditzen, “Suddenly, prisons full of ‘retarded'”, Sep. 28; Atkins v. Virginia decision).
Judge: killer is 70% responsible for killing
“A federal judge ruled Friday that the manufacturer of an ankle monitor should pay $191,400 to the family of an Arlington woman killed in 1997 by an ex-boyfriend who cut off the transmitter 400 feet from her home without triggering an alarm. U.S. District Judge Terry Means held the manufacturer, Boulder, Colo.,-based B.I. Inc., 20 percent liable in Karen Sawyers’ death, but assigned 70 percent of the responsibility to gunman Joseph Whitlow, who committed suicide after killing Sawyers.” The judge, presiding over a bench trial, assigned 10 percent liability to the murder victim herself for her killing because she was drunk and had methampetamine in her system at the time of her death. A plaintiff’s attorney expressed disappointment that the manufacturer had not been held liable for a greater share of the blame. (“Ankle monitor’s maker held 20% responsible in killing” Fort Worth Star-Telegram, Sept. 26).
Ordeal continues for 12 held captive in Oakland
“A criminal trial of three dismissed Oakland police officers accused of falsely arresting and beating suspects has become a marathon unusual even by the often plodding standards of American criminal justice. The trial began more than a year ago, and on Thursday the jury deliberated for a 55th day without reaching a verdict.” According to criminal justice historian Charles Weisselberg at the University of California’s Boalt Hall School of Law in Berkeley, the case’s extreme prolongation is not typical: “Weisselberg said, for example, that of 12,817 trials held in federal courts in the year ended September 2002, only 97 lasted more than 20 days and just one exceeded the 165 trial days this case has logged so far.” (Barbara Grady, “A Year Later, Judge Won’t Let Jury Go Home”, Reuters/Lycos, Sept. 29)
Update: s. 17200
It looks like there may be competing voter initiatives relating to California’s Unfair Competition Law (see Aug. 27, Jul. 22). While bipartisan legislative attempts to reform the notoriously overbroad Section 17200 have failed, the Civil Justice Association of California is looking into a possible voter initiative for reform. In response, a trial lawyers’ organization is threatening a voter initiative to expand ? 17200 liability to individual executives. The lengthy San Francisco Chronicle story includes extensive discussion of the Trevor Law Group scandal, where a law firm used ? 17200 to shake down thousands of businesses for $20 million with frivolous lawsuits (see Aug. 4, Jul. 28). (Bernadette Tansey, “Battle brews over consumer protection in state”, Sep. 28). Update Oct. 26: initiative campaign launched.
St. Paul police sued
On September 27, 2002, Ki Yang ignored orders to drop a BB gun that resembled a rifle and a sickle-like blade 20 inches long. “Instead, he charged at [officer Michael] Tharalson, who fired six shots as Yang kept advancing.” Now, Yang’s family is suing the city and the police in federal court, arguing that Yang should have been treated differently because the officers knew he was mentally ill. (Her?n M?rquez Estrada, “St. Paul police, city sued in case of mentally ill man shot dead by cops”, Minneapolis Star-Tribune, Sep. 26).
Class Action Fairness Act: more editorials
Last month the Hartford Courant editorially endorsed the Class Action Fairness Act: “No one in Congress is proposing doing away with class-action lawsuits. Rather, this overdue legislation would curtail some of the worst abuses. Legislators have debated the issue long enough. There’s no good reason to wait another year to adopt this important reform.” (“Stop Class Action Abuses”, Aug. 22, no longer online). This weekend the New York Daily News takes a sharper tone: “Who could be against this rational reform? The trial lawyers’ lobby, that’s who. The sharks are not about to surrender their feeding grounds. Sens. Chuck Schumer and Hillary Clinton could have a huge impact on the matter, but so far both appear happy in the role of remora.” (“End lawyers’ shopping spree” (editorial), New York Daily News, Sept. 28).
Notwithstanding Schumer’s and Clinton’s stance, Business Week notes that the bill has won significant support among moderate-to-liberal Democrats (Lorraine Woellert, “Tort Reform Even a Democrat Could Love”, Jun. 2). A study from the Illinois Civil Justice League finds that, contrary to widely repeated reports, it is untrue that the state courts will lose jurisdiction over the great majority of the class actions they now hear. Meanwhile, Sen. John Breaux (D-La.) has been promoting a watered-down alternative to the legislation, but last week Sen. Chuck Grassley (R-Ia.) blasted the Breaux alternative as a “poison pill” which would doom class action reform efforts (Mark A. Hofmann, “Grassley blasts competing class-action reform plan”, Business Insurance, Sept. 23). (Earlier editorial (Washington Post, Christian Science Monitor, etc.): see our Jun. 25 report.)
Welcome InstaPundit readers
Leftist filmmaker Michael Moore is again drawing fire for not being willing to submit himself to the sorts of borderline-harassment journalistic investigation to which he has long subjected others. Thanks to reader Robert Racansky, our Sept. 16, 1999 coverage of Moore’s hypocrisy has now become the subject of a Glenn Reynolds Instalanche (Sept. 27). Also, welcome readers from Law.com which linked to our recent Wilbur Wright item.