Center for Justice & Democracy’s Zany “Zany Immunity Law Awards”

by Ted Frank on December 23, 2004

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.


Other “awards,” such as a complaint that owners of baseball facilities in three states are immune from liability for spectator injuries caused by baseballs used in a game, are similarly misguided. For example, CJD complains about Louisiana immunity for Mardi Gras parade injuries from thrown prizes–but neglects to mention that the immunity came about from community outrage when the predominantly African-American “Zulu Krewe” announced in 1987 that it would no longer engage in the decades-old tradition of throwing decorated coconuts from floats because of liability concerns. In any event, the immunity provided by the law is sufficiently limited that even today, the Zulu Krewe only hands out the coconuts rather than throws them. Heaven forfend. (Nora Sherman, “Guide to the Mardi Gras Parades”, Tulane Arcade, Feb. 13; Zulu history).

In some cases, CJD simply misleads about the scope of the immunity.

CJD: [A]fter an autopsy, there are some extra body parts hanging around so the coroner puts them in [the wrong] coffin. … Indiana’s morticians lobby made sure they wouldn’t be legally accountable for any of this.

Fact: A mortician is only immune for this mistake if those remains have been “hanging around” for three years without being placed in a coffin or urn and there is no written contract specifying where those remains go. IC 23-14-55-2(c). (And why should a cemetery owner be liable for a coroner’s mistake anyway?)

CJD: [I]n a bunch of states, an agent or real estate owner can’t be held liable for failing to tell a potential buyer or renter that the house is “psychologically affected.” What’s scarier than a haunted house? A statehouse that grants immunities like this one.

Fact: The only law that CJD cites, Indiana’s, provides “an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.” IC 32-21-6-6. Connecticut law similarly strips immunity when a purchaser makes affirmative inquiries. Sec. 20-329ee. Are you really concerned whether an HIV+ person used to live in a house? A buyer is entitled to ask and demand disclosure (though the federal fair housing laws may come into play). But why is CJD so concerned about protecting the rights of bigots to sue on the psychological damage self-imposed by their bigotry? Where’s the justice in requiring a seller to admit their HIV+ status on pain of liability for failing to affirmatively do so?

The complaint about haunted house immunity is especially ironic, given that the famous New York haunted house case of Stambovsky v. Ackley–where a court held that a buyer could back out of a home purchase because the seller failed to disclose poltergeists–is a famous poster child for a justice system run amok. 169 A.D.2d 254, 572 N.Y.S.2d 672 (1st Dept. 1991).

CJD: [M]aybe you leave [a deer] carcass out in the sun while celebrating the joy of hunting. Does that mean you can’t donate the meat to a charity…? … And if someone gets sick from eating the meat that’s gone bad, is that your fault? Not in a bunch of states, it isn’t! [A donor] of wild game meat for free use by a charity (a soup kitchen, for example) has limited liability for injuries or death caused by the age, condition, or packaging of the meat.

Fact: The fact pattern described wouldn’t result in immunity; in all of the states cited by CJD, the hunters could be sued for being grossly negligent or even reckless.

CJD: In Oklahoma, institutions using dogs unclaimed at the pound aren’t liable to the dog’s owners if they kill or injure the dog during a “scientific” experiment.

Is CJD seriously arguing that a research lab that purchases a dog about to be euthanized at the pound should bear the risk that an owner will claim the dog later?

CJD: In Arizona, a veterinarian who files a report with a local law enforcement agency, stating that he believes a dog he’s treated or examined has participated in a dogfight, is immune from liability.

Is CJD seriously claiming that vets should be liable for mistakenly reporting suspected cruelty to animals? That’s a good way to ensure that such cruelty doesn’t get reported.

CJD: Pawnbrokers in Missouri and Nevada who don’t release or dispose of pledged property, because they’ve been ordered to hold it by a police officer, are immune from liability.

Amazing! CJD actually contends that someone should be sued for obeying a lawful order of the police.

If ever there was proof that the Center for Justice and Democracy cares little for justice or democracy or consumers, it’s this report that shows the only things CJD cares about are trial lawyers and creating as much litigation as possible, regardless of its effect on justice, democracy, or consumers.

{ 9 comments }

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