Stories that shouldn’t get away, part II

by Walter Olson on January 10, 2008

Three cases of catastrophic injury to children, three defendants asked to pay:

  • Freak accident in school parking lot “foreseeable”. According to a Los Angeles jury, it was reasonably foreseeable that an ailing parent driving a disability-converted van with hand-controlled accelerator and brakes would lose control of her vehicle and jump the curb at full speed, killing first-grader Jordan Sandels in the company of her father at Encino’s Lanai Road Elementary School in 2005. Aside from the many and baffling supposed lessons of the resulting $10 million verdict for school grounds planners (always build lots big enough that parents won’t have to park off-site?), a highlight was the jury’s finding that the parent behind the wheel was only 20 percent to blame and shouldn’t have to pay anything [LA Times via Handel on the Law]
  • Destroy evidence, then win $41 million from second defendant. Joseph Provenza, 13, was catastrophically burned in 2001 when he “jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire” [Bowman & Brooke summary] The plaintiff’s father, himself a plaintiff in the suit, later admitted that he willfully removed and discarded a bypass wire from the motorcycle before Yamaha’s investigators could see it because he thought the evidence of modification might interfere with his son’s lawsuit, and either he or members of the legal team removed or modified other relevant equipment on the vehicle. A judge dismissed the claims against Yamaha, citing willful and pervasive spoliation of evidence as well as lack of candor in discovery responses on the issue. The family then proceeded to trial against a Wisconsin clothing manufacturer which it argued should have made its garments flame-retardant because they were promoted for use with motorcycles, although federal law did not and does not require flame retardance in such garments. The jury awarded $41 million; a defense lawyer says the jurors were never allowed to learn about the hot-wire modification, though it was the cause of the accident, or the subsequent spoliation. [Las Vegas Review-Journal, Janesville (Wis.) Gazette; Carcione law firm (also of Romo v. Ford Motor fame)]. More: BrooklynWolf.
  • Schools sometimes responsible for injuries after school hours.The South Main Street Elementary School in Pleasantville, N.J. had long preannounced a 1:30 p.m. early dismissal on a certain day in 2001. Third-grader Joseph Jerkins was allowed to leave, in accord with school policy for youngsters whose families had not requested that they be released only into adult custody. Two hours and twenty minutes later, while playing with a friend, Joseph ran into the street and was struck by a car and horribly injured. The family said it had not been adequately informed of the early dismissal. A trial court dismissed the suit, but the New Jersey Supreme Court, announcing a new duty of care for school districts, ruled that the family could sue on the grounds that the school’s policies should have restrained the boy from leaving. The district settled for $6 million. [AP/Philly.com; NJ Principals and Supervisors Association]
Our first installment of stories from 2007 that merited coverage but slipped away is here.

{ 7 comments }

1 ben tillman 01.09.08 at 11:04 pm

Foreseeability? That has nothing to do with it. The issue is duty, and there is no duty to protect against such foreseeable events.

2 Anderson 01.10.08 at 11:43 am

The school case was correctly decided — the default position for 3d-graders should be keeping them in custody, not turning them loose unless the parents opt otherwise.

Pretty bad outcomes in the other two, though – let’s hope for reversals. (Note also the random nature of the judgments – $10M for a dead 1st-grader, $41M for a burned 7th-grader?

3 nevins 01.10.08 at 3:41 pm

The burned kid does not deserve any money from the clothier. They pretend to be so stupid as to state that they thought the clothing was fireproof when it probably cost a tenth of the cost of clothes labeled and capable of shielding one from flames. They confuse fire retardant (the cloth will not burn when REMOVED from flame) with fire proof. And any fabric saturated with liquid gasoline will do little to protect a person because it is not the fabric that is burning

4 Ilya 01.10.08 at 11:03 pm

Re: school case

Why should 3rd graders be kept in custody by default?

If parents did not like the policy THEY should have opted out.

The point here is this:

1. The school’s policy WAS NOT NEGLIGENT in any significant way.

2. No matter how you look at it, parents share a lot of blame for what happened.

Which means that, school district should not have paid 6M to them.

5 Frank 01.11.08 at 9:36 am

I realize this is thought to be a far different world than when I grew up, but since when can’t kids walk to or from school alone or with their pals?

I can’t see that the proximate cause of the injury was the early release. “But for” that? Seems very likely to me that had the child been released to a gaurdian, once home he would have sought to play with friends and could/(would?) have been in exactly the same circumstance 2.5 hours after dismissal.

Keep the kids in custody?

I suggest you watch the opening credits of “The Simpsons”. It well illustrates how kids feel (and react) when the “School’s Out” bell rings.

6 Republican Patriot 01.11.08 at 5:17 pm

Stories like these lead me to believe that freedom and responsibility in this country are doomed.

7 dannyinla 01.13.08 at 6:03 pm

Learning a little more about the Jordan Sandels death at Lanai Road Elementary might change your mind.

This school, in a congested, hilly part of Los Angeles, was a disaster waiting to happen. Parking and traffic is atrocious. Parents and parent groups were vocal in their attempt to make changes to the parking situation. The driver of the vehicle that killed Jordan complained about the paking situation. The principal complained to the district about the parking situation. Nothing was done. Yes it was “forseeable.”

Jordan Sandels died three years ago today.

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