One too many causes of death?

by Walter Olson on March 23, 2010

A woman’s lawsuit charges that the death of her 77-year-old husband was the “direct and proximate result” of his slip and fall 21 months earlier on an “unnatural accumulation of ice” in front of a Trader Joe’s supermarket. A newspaper article last year describes the man as having fought a “courageous battle with cancer” before his death. [Josh Stockinger, Batavia (Ill.) Daily Herald]

{ 7 comments }

1 Anonymous Attorney 03.23.10 at 10:36 am

After years as a civil defense attorney, I can tell you that stuff like this is pooh-poohed by plaintiff’s attorneys. “Struggled with cancer? No problem. The fall was an ‘aggravation’ of that condition.” They’ll come up with a way to make the cancer a point in THEIR column, instead of the defense’s. Even if it wasn’t the proximate cause of the death, they can still proceed, just not on a wrongful death theory. He’ll still be entitled to the portion of pain and suffering caused by the fall he endured until the moment of his death. Few jurors are mechanically-minded enough to separate that out.

2 Whizzle the Spizzle 03.23.10 at 12:18 pm

All this too-doo about a typo ?

The plaintiff’s husband died in Nov. 2009. Somebody wrote “he died from a fall”, but they really meant “he died IN the fall”.

3 E-Bell 03.23.10 at 3:36 pm

Whizzle, where are you getting that information? The article says he fell on Valentine’s Day 2 years ago but died in November, 2009.

4 Bob Lipton 03.23.10 at 6:30 pm

Well, November is in the fall, isn’t it?

Bob

5 Ron Miller 03.24.10 at 9:24 am

This is the exact type of claim that would never fly in Maryland.

6 Ron Miller 03.24.10 at 9:29 am

Anonymous Attorney, you are right. Juries can’t figure anything SO complicated out as this because this is too “mechanically minded.” We really need to go back to system we used to have when just the smart people made these kind of decisions. Oh 1412! I miss it so. The little people are just so dumb, aren’t they?

7 Anonymous Attorney 03.26.10 at 10:27 am

Ron, have you ever tried a jury case?

I’ve won and lost for equally ridiculous reasons based on my discussions with jurors afterwards. In a case I won, for instance, the plaintiff had a facially meritorious case, but the jury rejected her because they “just thought she was real nasty.” Likewise, I’ve lost in a case with no merit because the plaintiff “was a real nice lady.”

Nowhere, of course, does the judge charge the jury that thinking plaintiff is a ‘real nice lady’ is grounds for a plaintiff’s verdict. But that’s the level of sophistication we’re dealing with for the average juror. That’s not to say they can’t ever get it right or that common sense has no place, but law is tricky. In the criminal law, for instance, most people don’t get the Fifth Amendment right not to testify. And if you think about it, that makes sense: “If they didn’t do it, why don’t they just take the stand and tell us?” So, not all jury failures to understand things are so blameworthy.

Juries are like democracy in microcosm. You end up with a system that puts out the approximate level of quality put in. For people in general, that’s not all that high. Maybe that’s better than the alternatives, but I reserve the right to observe and criticize.

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