Best of 2012: May

by Walter Olson on December 23, 2012

{ 7 comments }

1 Ron Miller 12.26.12 at 3:34 pm

I read the Indiana opinion. (The link had changed.) Ultimately, any holding to the contrary would lead to a finding that there is no such thing as a negligent security claim because the real blame will always rest with the bad guy. I don’t think many people believe there should never be a negligent security claim. Similarly, under the reversed logic of the verdict sheet in that case, there could be no airbag cases because the real fault would lie with the person that caused the accident in the first place.

2 peter 12.26.12 at 4:19 pm

Um Ron, I think the main issue this website and most commentators had with this, was not the finding of liability as such, but the perverse award of 100% the damages on a 2% liability finding.

3 Jason Barney 12.26.12 at 4:50 pm

Come on now, Ron. The real issue is that of joint/several liability and the stupidity of paying 100% of the verdict when the jury found only 2% fault.

Near the end of the opinion, the Court foolishly shores up its opinion with the rationale that those with the ability to pay should, and not the criminal who is insolvent and/or uninsured. So much for the equity and fairness championed by trial lawyers nationwide.

Given the facts in the case according to the opinion–I personally would have found much greater fault to the motel owner given his failure to do a background check and/or key control and that those factors were directly related to the murder. But, the jury in this case disagreed and allocated 2% fault. Tough cookies.

The jury should be allow to understand all relevant facts and balance the culpability and intentional and negligent acts and allocate “fault” or “damages” accordingly. To argue otherwise we get huge verdicts for property owners, governments and others that are merely tangentially involved in horrific crimes and wrongdoing in the six- and seven-figure range. Oh, wait–but they are well-insured so it must be good public policy.

The lack of background check/key control in this case is more egregious than say, for example, not having deterrent armed security patrols (which may also provide a basis for negligence). A jury is best suited to weigh and balance such factors in arriving at their apportionment of damages.

Making 2% = 100% while making things simple (and a good payday for plaintiffs’ lawyers) is NOT justice. I just wish trial lawyers would admit the obvious and simply state it’s about the money. There’s nothing wrong with that. Instead, they parade under the “justice” flag while robbing governments and business blind.

4 Ron Miller 12.26.12 at 11:38 pm

Jason, I actually disagree with you. In the big picture, the bad guy is always 100% responsible. But we expect that there are bad guys out there. In some cases, there is a duty to protect against that known risk.

You comment here a lot. You are a smart guy, obviously, and I respect your opinions. I wish you respected mine. The “plaintiffs lawyers just want money” is a such an overplayed narrative. I guess I can’t support any plaintiffs’ positions because I have an economic interest in it.

Let me tell you, I come out against pro-plaintiff positions all of the time. And I’ve never taken and never will take a negligent security claim. I just don’t like the cases generally. I have no skin in this game. I just have an opinion. So did the appellate court here, a group similarly not made up of plaintiffs’ lawyers.

5 Jason Barney 12.27.12 at 11:31 am

Ron,

My snarkiness was not directed at you personally. If it was taken that way, I am sorry. What I find very frustrating is appellate courts doing legal/logical gymnastics to sock it to the well-insured businessowner. And, every time you see the state trial lawyers association (or now “justice” association) with their amicus brief when these cases go up on appeal. So, it’s not about justice, fairness, or equity–and all I am doing is calling them out on it, whether that is overplayed or not.

And as far as the case at issue here, I still believe the jury should balance and weigh the intentional/negligent torts and apportion the percentage of wrongdoing as they see fit. The court (lawyers) disagreed with the jury (non-lawyers) and manufactured an opinion which had the desired result (sticking it to the big bad business owner).

I have noted that in this case I see the causal nexus that the negligence had to the intentional act and would myself apportion the business owner fault in an amount much greater than 2%–probably something closer to 50%. That would be $1M award here. But, now thanks to the court none of that matters–a tangentially involved negligent party is 100% responsible for some crazed wacko in any number of other imaginable scenarios.

6 Ron Miller 12.27.12 at 12:37 pm

Jason, I don’t know that the court disagreed with the jurors. They answered the question given to them. They proportion blame accordingly and I think correctly. But they were not give the question of whether they believe the defendant should have been fully responsible for not protecting the victim against foreseeable harm. That’s the ultimate issue here. Like I said, your version of the law would gut every negligent security case in the country.

You are frustrated with trial lawyer associations. I get that and even share it. But let’s be honest. Every single trade association acts in the interests of their constituents at the expense of justice. If someone pushed a bill providing taxpayer funded free cigarettes for six months once your turn 18, the Big Cigarette lobby would strongly support the bill.

7 Jason Barney 12.27.12 at 1:24 pm

Agreed on the second paragraph. I just would advocate the various state “Associations for Justice” rename themselves to something more accurately descriptive like, “Association of Indemnity Attorneys”. Not as sexy, though–but accurate.

In Washington the WSAJ mission statement inaccurately calls for, “…promot[ing] a fair justice system and the right to trial by jury…” They don’t want fair–they want unfairly to make 1% of insured fault to equal 100% of damages caused by some crazed nut. Indeed it is good for some victims out there, and all the lawyers who bring these suits but bad for the public as a whole.

I don’t believe my version of the law would “gut” every negligent security claim–not even close. I am simply advocating a jury be allowed to balance the factors involved and apportion responsibility.

Not background checking a person and not inventorying keys after he walks off the job is much more negligent than, say, not patrolling the motel parking lot every ten minutes to deter vehicle thefts, muggings, or rapes–so to impute that negligent act into the intentional act/result is more palatable in the first, rather than second example.

But the court wants the 1% responsibility in the second example to be 100% responsibility for the mugging/rape in my theoretical–if only had the proprietor hired extra security, had more & better lighting etc. This is an absurd result and is more fairly rectified by a jury balancing these issues than the all or nothing approach the court held.

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