“Things are supposed to be fun, not injury-producing,” says attorney Lawrence Saftler, whose client, Manhattan screenwriter Aaron Schnore, didn’t succeed in staying on the raging mechanical bull at Johnny Utah’s restaurant in midtown. (Jose Martinez, “Raging bull rider suing restaurant”, New York Daily News, Sept. 5; Popehat).
Brian Hopkins, 25, of Astoria, Queens, New York City, “who survived an electric shock and fire two years ago when he climbed atop an empty, stopped Amtrak train after a night of bar hopping in Boston is suing the railroad - because Amtrak didn’t do enough to protect trespassers like him.” (Kathianne Boniello, New York Post, Aug. 31).
A U.S. District Court judge threw out the lawsuit of an Amtrak railroad passenger who claimed he injured himself when he jumped from a train that he had boarded in error. If you guessed that alcohol would somehow be involved, you are correct. You can download the whole decision here.
The facts are even more interesting with confusion from the plaintiff as to who sold him his ticket and how he boarded the wrong train, proving once again that you can’t make this stuff up. The Court’s decision has the details:
On the evening of May 19, 2005, the plaintiff consumed approximately five large tequila-based margarita cocktails [note to court: don't all margaritas have tequilla?] at a New Haven restaurant before walking to the New Haven Railroad Station. …
The plaintiff testified that the ticket agent told him that the train was on track number eight, that it was already there, and that it was the last train so he “better hurry.” Without looking at the announcement board in the train station, the plaintiff walked to platform eight and boarded out-of-service Metro-North train number 1570. The train’s doors then closed and the train traveled for between seven and fifteen minutes before stopping at the New Haven Train Yard.
When the train doors opened, the plaintiff noticed that the train was not stopped at a platform, and he walked throughout the train and yelled for assistance but was unable to find anyone. Unable to see the ground below the train, the plaintiff jumped from the train car and injured his ankle. He then called 911 with his cell phone. Metro-North police responded, and the plaintiff was transported to Yale New Haven Hospital.
And then, of course, he sued….
The group radiates an intransigent, “there is no permissible debate” attitude on its subject, and “there is no politician who has the audacity” to call its bluff (”Let’s chuck the drinking age”, Denver Post, Aug. 21)(via Protein Wisdom). Earlier on the so-called Amethyst Initiative (to reconsider the 21 year old age limit) here, with many reader comments.
More: Steve Chapman, with whom it is rare for us to disagree, takes the opposite view (syndicated/Washington Times, Aug. 24).
A good idea. And from college presidents! (Baltimore Sun, Seattle P-I blog). MADD, of course, is having a fit. (Philadelphia Inquirer). More (via comments): Adler @ Volokh & further.
The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit. Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities. She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.
Does the host’s behavior rise to the level of negligence? And, if so how is the woman’s negligence less than his? He may have offered the alcohol; she drank it. He may have offered the horseback ride; she accepted. Have we reached the point in America that we need to have party goers sign waivers for private festivities? But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone. A lot of fun that will be. (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).
Horse example number 2: Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans. And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals. It’s not as if Clemens is practicing pediatric anesthesiology for kicks. So who cares, really?
I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).
A year ago (Jun. 26, 2007) guestblogger Christian Schneider reported on the Virginia Department of Alcoholic Beverage Control’s suppression of a “frozen beer pop” specialty offered by the Alexandria restaurant Rustico. Now the state legislature has enacted a bill sponsored by Del. Adam Ebbin and Sen. Patsy Ticer (both D-Alexandria) re-legalizing the cooling treats, which went back on sale July 1 in such flavors as framboise, cherry kriek, cassis, plum, and chocolate stout. (Erin Zimmer, SeriousEats.com, Jun. 25; Gillian Gaynair, “Rustico brings back beer pops for summer”, Washington Business Journal, Jun. 20)(& welcome The Agitator and Reason “Hit and Run”, Belgian ladmag ZV, Christian Schneider/WPRI readers).
Complainant Rory Beer — yes, her real name, though she used to be known as Rory Roberts — was dancing on the bar at Bar Chicago, a Division Street nightspot, when she fell off, with what her suit says are permanent injuries to her foot and ankle. “The lawsuit claims that Bar Chicago encourages patrons to dance on the bar, but doesn’t warn people of slippery surfaces or provide handrails, ‘cushioned flooring’ or ’safety nets.’” (Mark J. Konkol, “Dancer slips, now she wants bar to pay”, Chicago Sun-Times, Jul. 1; Chicagoist). We covered another bar-wasn’t-safe-for-her-to-dance-on suit, also from Illinois, last year.
Seems it’s not considered tortious when it’s done for a good cause by Mothers Against Drunk Driving and the local constabulary to a captive audience of public school students. (Balko, Reason “Hit and Run”; Pat Sherman, “El Camino teens face heavy emotions brought about by drunken-driving dramatization”, San Diego Union-Tribune, May 30). P.S. Scott Greenfield apparently has been thinking along similar lines.
Class action lawyers — led by David Boies III, son of famed litigator David Boies — continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record… of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don’t allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs’ underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents’ money on the alcohol.
The lower courts have laughed these suits out of court, and last month, in response to Boies’ appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn’t even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:
In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.
In a rational world, this would be the end of these trial lawyer efforts. But since there’s no loser pays, our legal system doesn’t work that way. Trial lawyers can keep filing these over and over again in state after state, tweaking their arguments slightly from time to time, hoping to win the lottery; all they need to do is prevail once to earn back their entire investment in this litigation scheme. Whereas the alcohol companies have to win every one of these suits to avoid a backbreaking financial penalty.
Visitors to Rustico restaurant in Alexandria, VA may think they’re merely enjoying an innocent Beersicle (video)- but state regulators seem to think they are practicing their own vigilante brand of thirst amelioration. The new “frozen beer on a stick” offering apparently violates a state law that requires beer be sold in its original container or served immediately after it is poured.
It would seem to me that the beersicle actually serves as a deterrent to consuming large amounts of beer as fast as possible. This isn’t a good thing? Wouldn’t the cops be a little better served by making sure terrorists aren’t amassing a stockpile of bomb pops?
[Update Jul. 2008: state legislature legalizes the pops.]
According to State Sen. John Whitmire (D-Houston), the new program to arrest intoxicated Texans in bars whether or not they show any inclination to drive (see Mar. 23) is justified because it nips in the bud potential future misconduct: “Even though a public drunk is not planning on driving, that could change in an instant,” he said. “There is certainly potential danger.” (Pete Slover, “Lawmakers to review bar busts”, Dallas Morning News, Mar. 25). Glenn Reynolds reacts disrespectfully (Mar. 31).
…from a former mission of fighting drunk driving to a new mission of just fighting drinking, even when no one is attempting to drive a car, is among topics that “deserve a closer look but won’t get it” in the media, according to Glenn Reynolds (Aug. 15). Lawrence Taylor’s DUI Blog has more (Aug. 10), as does Radley Balko, who charges (Aug. 15) that “not only has MADD’s mission changed from keeping the roads safe to preventing consumption of alcohol, they’ll support a position that cuts down on the latter even when it increases the likelihood of drunk driving fatalities.” See also Jun. 17.
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In Nashville, Tenn., Ibrahim Barzinji has sued his former employer, Arkansas-based J.B. Hunt Transport Inc., on the grounds that asking him to transport alcoholic beverages violated his religious beliefs. Barzinji, who is representing himself in the case, “said he had just trucked a load of auto parts from Clarksville to St. Louis on June 26 last year when he was asked to pick up a return load at the Anheuser-Busch plant.” He informed his supervisor that he was refusing to handle the cargo, and was dismissed. “A local labor and employment attorney said that, to prove his case, Barzinji would have to convince a judge or jury that asking to be assigned a different load was reasonable and would not cause undue hardship on the company.” The issue has come up before in a somewhat different context: “Muslim cab drivers at the Minneapolis airport several years ago began refusing to pick up passengers who carried duty-free alcohol, said Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington, D.C.-based advocacy group.” (Anita Wadhwani, “Fired Muslim truck driver sues employer”, The Tennessean, Jun. 23).
Point of Law Volokh