The burglar and the skylight: another debunking that isn’t

by Ted Frank on September 25, 2006

Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving “a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight,” and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it’s hardly central to the reform movement. It doesn’t appear on the ATRA website, either. But why split hairs when there’s a chance to demonize reformers?)

Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine’s accident for a school bureaucracy to have time to react. But, for most people’s sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, “If you can’t do the time, don’t do the crime.”

If this is the best the anti-reformers can do to point out “distortions” in the reform movement, I’d say we’re doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.

Update: David Nieporent notes in the comments:

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)

That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”

{ 12 comments }

1 J.T. Wenting 09.25.06 at 3:32 am

At least the school didn’t face criminal charges, as happened in the Netherlands when a burglar (in the dark, after forcing the front door of a house) stepped on a skateboard in the hallways, tripped, and broke his ankle (or lower leg).
Homeowner was woken by the noise, called the police, and was promptly arrested and charged with illegally restraining a person and causing bodily harm,

The burglar was treated and released.

Homeowner spent several month in prison, and of course came home to find his property completely emptied.

2 Pat W 09.25.06 at 7:26 am

Ted, you missed the “fact” that the criminal couldn’t tell the difference between roof and skylight! This fact alone makes it the school’s fault.

Or so says that genius over there.

I can’t really tell WHO said it, with that indented, shaded text box.

3 David Nieporent 09.25.06 at 1:33 pm

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)

That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”

(He was trying to “redirect” it in the same way John Dillinger was trying to “redirect” a bank’s assets, I guess.)

4 Cyrus Dugger 09.25.06 at 2:44 pm

I will have a comprehensive post/response on this issue in the next week or so.

5 Piotr Reysner 09.25.06 at 2:49 pm

I think I’m going to be sick. I just read a few of the posts on tortdeform.com. It’s like these people are so removed from reality that they can’t even think straight.

Once again, I am reminded of why I generally dislike the plaintiffs’ bar.

6 Deoxy 09.26.06 at 10:15 am

“I will have a comprehensive post/response on this issue in the next week or so.”

If you do, it will be the very first “comprehensive” post I have seen there. Your previous attempts have all fallen far, far short.

7 Supremacy Claus 09.26.06 at 9:36 pm

An award in such a case would reward a crime or an infraction of trespassing if there was no intent to carry away the lamp. Compensating a tort taking place in a crime is against public policy in many states.

If the school had not settled, that argument could have been made at preliminary pleadings, at trial, and on appeal.

This case has ambiguity because the defendant settled an unjust claim and prevented the decision of a tribunal.

If a claim is unjust, it should be disputed. Even if the legal defense costs exceed the potential payout, prevailing prevents that subject matter from becoming a lawyer cottage industry. Expensive resistance is an investment in the prevention of future bogus claims.

8 Coppo 05.26.08 at 8:46 pm

and we read further in and we start to get to the “aha” moment….

In 1968, the California Supreme Court in Rowland v. Christian had written, “a man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission…
reasonable people do not ordinarily vary their conduct depending upon such matters.” Nonetheless, the defendants filed a motion for summary judgment arguing that that the plaintiff’s status as a trespasser barred recovery as a matter of law. On June 6, 1983, Judge Redmon denied the motion for summary judgment, holding that the issue of whether the skylight was a dangerous, defective, and hazardous condition on public property was a question of fact for the jury.
In contrast, certain elements of the Bodine case made it less likely that the jury would deem Ricky’s accident an extraordinary occurrence. First, the defendants faced the possibility that because the skylights were hidden, the jury would be incensed that the high school and the school district had endangered other young people who were not engaging in crimes and would seek to punish them by awarding a substantial verdict to Ricky. The defendants admitted in their responses to the plaintiff’s interrogatories that they were aware that students and other young people commonly went onto the gymnasium roof to retrieve sports equipment. In Larry’s deposition, he reported hearing that “another kid fell through the same place Rick fell through, I don’t know how long after.” Moreover, any doubt as to whether the defendants recognized the specific risk that someone could fall through one of the painted-over skylights was resolved by the fatal accident at Shasta High less than a year earlier. The defendants undoubtedly recognized the risk of going to trial and having the jury learn that they had failed to take even minor steps such as posting warnings on the roofs or placing a wood barrier over the skylight following Paul Schuur’s fatal fall.

Right. So, we cover up the fact that the school was criminally negligent, given that they knew students were up there regularly and also knew of the previous fatality, and we play up the fact that the person who WAS grievously injured happened by chance to be up there for illegitimate purposes, and presto-change-o, we’ve sufficiently distorted the facts to whip up the public’s emotions to get them to support surrendering vital rights that protect them from corporate abuses.

Ah, the evil genius of Corporate Amerika.

9 Ted Frank 05.26.08 at 9:56 pm

Coppo correctly notes that California law permitted trespassers to sue their victims, even when they are in the midst of committing a crime. Which is precisely what reformers were complaining about.

He or she does ignore the argument why the school was not “criminally negligent,” and that the settlement was for about 6% of the initial demand, suggesting that it was a purely extortionate nuisance settlement, rather than one reflecting wrongdoing by the school. And while there is an accusation of “distorting” facts, he or she fails to identify a single such distorted fact. But the misspelling of the last word of Coppo’s comment is certainly telling.

10 Mike W 07.04.08 at 5:39 pm

Mr Frank, are you sure California law still allows trespassers to sue property owners if they are injured
while committing a crime?

The McAllister bill in the California Legislature was introduced to prevent those lawsuits. It was called Assembly Bill 1 in about 1985.

That bill was bottled up in a state Senate committee chaired by my Senator, David Roberti, (D-Los Angeles/Burbank). I joined with a number of local residents and flooded Senator Roberti’s office with phone calls, letters and personal visits for several weeks. Eventually, the Senator’s committee moved the bill to the Senate floor, where it passed and was signed into law.

Nobody should underestimate the perfidy of the California Legislature, however. I would not be surprised if those scoundrels quietly passed a measure to gut or undo Assembly Bill 1.

11 James N 08.06.08 at 7:08 pm

California law does not permit injury lawsuits against property owners for any injury occuring during the course of or after the commission of a felony. The statute then defines 25 felonies, of which burglary and robbery are included.

Mike W is right. AB 200 was passed in 1985 and is still part of the California Civil Code. 847 reads:

“847. (a) An owner, including, but not limited to, a public entity,
as defined in Section 811.2 of the Government Code, of any estate or
any other interest in real property, whether possessory or
nonpossessory, shall not be liable to any person for any injury or
death that occurs upon that property during the course of or after
the commission of any of the felonies set forth in subdivision (b) by
the injured or deceased person.
(b) The felonies to which the provisions of this section apply are
the following: (1) Murder or voluntary manslaughter; (2) mayhem;
(3) rape; (4) sodomy by force, violence, duress, menace, or threat of
great bodily harm; (5) oral copulation by force, violence, duress,
menace, or threat of great bodily harm; (6) lewd acts on a child
under the age of 14 years; (7) any felony punishable by death or
imprisonment in the state prison for life; (8) any other felony in
which the defendant inflicts great bodily injury on any person, other
than an accomplice, or any felony in which the defendant uses a
firearm; (9) attempted murder; (10) assault with intent to commit
rape or robbery; (11) assault with a deadly weapon or instrument on a
peace officer; (12) assault by a life prisoner on a noninmate; (13)
assault with a deadly weapon by an inmate; (14) arson; (15) exploding
a destructive device or any explosive with intent to injure; (16)
exploding a destructive device or any explosive causing great bodily
injury; (17) exploding a destructive device or any explosive with
intent to murder; (18) burglary; (19) robbery; (20) kidnapping; (21)
taking of a hostage by an inmate of a state prison; (22) any felony
in which the defendant personally used a dangerous or deadly weapon;
(23) selling, furnishing, administering, or providing heroin,
cocaine, or phencyclidine (PCP) to a minor; (24) grand theft as
defined in Sections 487 and 487a of the Penal Code; and (25) any
attempt to commit a crime listed in this subdivision other than an
assault…”

12 Ted Frank 08.06.08 at 7:46 pm

I don’t understand why everyone is pointing out that a bill was passed in 1985 to serious-prevent felony trespassers from suing for injuries incurred in the commission of their crimes when the whole post is about the lawsuit that led to that law being passed.

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