…discussed on PointOfLaw.com this morning.
Archive for June, 2004
Put out fewer flags
Writes Matt Conigliaro at Abstract Appeal, the Florida legal weblog: “Remember the green or yellow or red flags that could be seen on Florida’s beaches, letting would-be swimmers know whether it was safe, risky, or dangerous to enter the water? They won’t be found any longer on state park beaches without lifeguards, on the theory that it’s better to have no flag than the wrong flag, and without lifeguards present, changing the flags in a timely fashion is too difficult.
“That’s one way to look at, as presented in this story from the AP. Another way would be to look at the lawsuit mentioned in the story — a man dove into riptide-filled waters to save a struggling couple despite red flags and wound up drowning himself, and his family sued the state for providing inadequate warnings — and wonder if the Florida Legislature’s calculus in abandoning the flag system was not as simple as: say something, get sued for saying it wrong; say nothing, avoid suit.” (Abstract Appeal, Jun. 21). The AP story Conigliaro cites has been taken down, but other news clips detail the lawsuit recently filed by survivors of Daniel F. Heede, 52, of Barnhart, Mo., over his 2002 drowning at St. Andrew State Park, and the Florida Legislature’s vote to remove warning flags from state parks without lifeguards. See “Lawsuit Leads Florida To Pull Warning Flags From Beach Parks”, WFTV, Jun. 21.
“Failure to Plead 17200 Claim = Malpractice”
Legal Reader (Jun. 22) on a new development in the saga of California’s please-abuse-me law, s. 17200: “according to California’s First District Court of Appeal, failing to include a cause of action under 17200 in many civil actions may actually constitute malpractice, even if the plaintiffs’ attorney thought it unwarranted or unjustified. The opinion was filed today in Janik v. Rudy, Exelrod & Zieff. …
“My problem is that the Court’s reasoning here applies to almost any civil lawsuit against a ‘business’ in California. As a rule, if you can state a cause of action for anything, you can also state a cause of action under section 17200, as whatever wrongs constitute the first will also constitute the second. By including section 17200 you automatically get a bunch of ‘freebies,’ such as: four year statute of limitations, the ability to recover on behalf of other non-parties, and most likely a case that is at least partially impenetrable to a petition for arbitration.
“In fact, most California civil lawsuits already include section 17200 claims, but now lawyers may be subject to malpractice claims (even from non-clients) if they file compaints that don’t.” For an analogous problem, see “Omit a peripheral defendant, get sued for legal malpractice”, Feb. 15-17, 2002. More: Declarations and Exclusions analyzed the case Jun. 24, pointing out that the ruling, while exposing the defendant attorneys to a claim of breach of duty, does not establish on the merits whether or not they did breach a duty.
“Parents sue rescue crews in son’s death after fall”
Sue those rescuers: “The parents of a 15-year-old Redmond boy who died after a fall in the Crooked River Gorge [in Oregon] have filed a $9.5 million suit in U.S. District Court against the fire district and rescue workers who responded to the accident. Patricia and Michael Keller allege that their son [Elijah Keller] did not receive proper medical care from rescuers. …According to the suit, the teenager wasn’t strapped down properly when rescuers hauled him up on a stretcher, and ‘his head fell sharply down to his chest during the lift up the side of the cliff.’ … Attorney Robert Lowry, who is representing the Crooked River Ranch Rural Fire Protection District and the rescue workers named in the suit, said Keller wasn’t walking along the precipice’s edge, but leaping from rock to rock when one rock broke loose. He said those who responded did everything they could to save the teenager.” (“Briefly”, The Oregonian, Jun. 20). Commenting on the case: “Rural communities depend on the no-questions-asked courage and compassion of thousands of men and women serving without pay as firefighters, EMTs and search and rescue volunteers. … these volunteers and professional first responders keep getting signals that mistakes, no matter how they happen, carry a punishing multimillion-dollar liability”. (“A delicate balance: We sue rural volunteer rescuers at our peril” (editorial), Eugene Register-Guard, Jun. 22).
Wal-Mart sex-bias class action
…discussed today on PointOfLaw.com, including a mention of how some of the allegations in the case hark back to the EEOC’s great crusade against Sears in the 1970s and 1980s.
Jacoby & Meyers: zero net worth?
“An accountant tapped to help clean up the state’s matrimonial courts is under investigation by the FBI for allegedly making crooked evaluations in cases before embattled Manhattan Supreme Court Justice Marylin Diamond, The Post has learned. … The feds are looking into complaints about [forensic accountant John R.] Johnson stemming from divorce squabbles in which he evaluated marital assets. The cases in Diamond’s court include the divorces of millionaire lawyer Gail Koff, head of the Jacoby & Meyers law firm, and fashion designer Cathy Hardwick.
“Johnson determined that Jacoby & Meyers had zero net worth — a finding that supported Diamond’s ruling. She had ruled that Koff’s husband, architect Ralph Brill, was responsible for half of the firm’s $8 million debt from tax problems. … Johnson also said that Hardwick’s name had no value.” (Brad Hamilton, “Divorce Expert Eyed for Covering His Assets”, New York Post, Jun. 27). Koff, we note, is the author of the Jacoby & Meyers Guide to Divorce (Henry Holt, 1991).
Thanks to Mike DeBow…
…for his contributions as a guest blogger over the past week. Aside from Mike’s postings at Southern Appeal, be sure to check out the outstanding links page he maintains at his Cumberland School of Law faculty website, and the conservative/libertarian legal scholarship reading list and pre-law reading list that he co-edits in conjunction with the Federalist Society. Also watch for his work to appear soon on Point of Law, the new Manhattan Institute website I’m editing.
Union Pacific: pay us for logo use on model trains
Squandering consumer goodwill dept.: “For decades, model-train makers have routinely decorated their train sets with the logos of train companies past and present, without paying for the right to do so. But now, Union Pacific wants a piece of the action, and it’s seeking a 3 percent royalty from companies that stick the UP logo on model trains.” (James P. Miller, “Model train fans steaming mad at UP”, Chicago Tribune, Jun. 27). More: “Community goodwill” would doubtless be a more accurate phrase than “consumer goodwill” in the above, and might have made blogger SlitheryD (Jun. 30) happier. See also Feb. 4, 2005 (planes, ships, etc.)
“Judge Says Artist Can Make Fun of Barbie”
Merits of loser-pays: Five years ago, the Mattel toy company sued artist/photographer Tom Forsythe for copyright and trademark infringement over “a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances. … After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million.” (Bill Werde, New York Times, Jun. 28).
A new regulatory regime for tobacco?
Fred Smith, the president of the Competititve Enterprise Institute, makes the case against pending federal legislation that would “[p]ut the Food and Drug Administration in charge of regulating tobacco in exchange for a buyout of farming quotas.” The proposed deal would, according to Smith, “strengthen the nanny state at the expense of individual choice, increase black market activity, hurt lower-income consumers, and, perversely, create new health risks for all Americans.” (Fred L. Smith, Jr., “The FDA poses threat to our health, liberty,” Investor’s Business Daily, June 21 (PDF file)).
Quota buyout legislation was passed by the House of Representatives on June 17 as title VII (the “Fair and Equitable Tobacco Reform Act of 2004”) of H.R. 4520, the “American Jobs Creation Act of 2004.” The focus now shifts to the Senate, which is apparently considering the deal outlined by Smith’s op-ed. For more on this, see Will Snell & Kelly Tiller, “Fair and Equitable Tobacco Reform Act of 2004,” U. of Ky. Dept. of Ag. Econ., June 2004 (PDF file); Jasper Womach, “Tobacco Quota Buyout Proposals in the 108th Congress,” Congressional Research Service, updated April 6 (PDF file); Blake Brown & Gary Bullen, “Tobacco Buyout,” N.C. State U. Dept. of Ag. & Resource Economics.