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deep pocket

Decedent, Lloyd A. Wiseman, a vice president of a San Francisco bank, died of asphyxiation and burns in a hotel room in New York City. He was in that city on bank business, and his traveling expenses, including his hotel bills, were paid by the bank. A woman, not his wife but registered as such, was found unconscious in his room and died shortly thereafter. There was evidence that they had been drinking. Sometime between 4 and 5 in the morning of his death, Wiseman telephoned the hotel manager for help because of a fire in his room. After calling the fire department, the manager went to the room but was unable to open the door with his passkey. Firemen arrived shortly thereafter and broke into the room but were too late to save the occupants. It was the opinion of the assistant fire marshal that the fire was caused by careless smoking by either one or both of the occupants.

The California Supreme Court went on to hold that Wiseman’s widow and children were entitled to death benefits from his employer because his death “was proximately caused by the employment”—a remarkable definition of proximate cause. The Court reasoned that Wiseman might have died while entertaining a legitimate guest in the hotel room (at 4 in the morning?), so the fact that the death occurred in the course of nookie was irrelevant. That seems to me to prove too much: Wiseman might have died smoking in his bed at home, too, and he just happened to be in a hotel when his bad habits killed him. But this was part of Judge Traynor’s successful remaking of tort law in the 1950’s, and the death of proximate cause is a large part why we have the mess we have today. Wiseman v. Industrial Acc. Com. (1956) 46 Cal. 2d 570.

(You can tell that this is still over fifty years ago, though, because the widow didn’t sue the hotel or cigarette company.)


In 2004, truck driver Simon Loza Mejia violated company regulations, and took his eight-year-old Diana Yuleidy Loza-Jimenez along on a long-haul trip from Oregon to Bakersfield. That November 27, he was pulling away in the truck, but apparently didn’t bother to check where his daughter was, and ran over her. This was, argued her attorneys, the fault of her father’s employer—and a Sacramento County judge agreed with the argument that it was legally irrelevant that her father was the one who ran her over. Unsurprisingly, a jury ignorant of the facts awarded Diana, whose lower body was crushed, a jackpot verdict of $24.3 million, over $20 million of which was noneconomic damages. (Andy Furillo, “Sacramento jury awards record $24.3 million to girl run over by dad’s truck”, Sacramento Bee, Mar. 9 (h/t @BobDorigoJones)).


Those of you who have attended my “Law of McDonald’s” talks in California and Florida may recall the case of the strip search hoax. A Florida man who was unusually persuasive would call dozens of fast food restaurants until he could find someone who would believe he was with the police and who would disrobe employees (or themselves) at his instructions; though there have been other lawsuits seeking to blame the fast food restaurants for this, courts have generally thrown them out. One exception was the case of Ogborn v. McDonald’s, where two targets of the hoax successfully sued for millions. On Friday, the Kentucky Court of Appeals largely affirmed the lower court judgment, though it reduced the punitive damages received by Donna Summers (who gave an Alford guilty plea for her role in the strip search) from $1 million to $400,000. McDonald’s hasn’t yet decided whether to appeal to the Kentucky Supreme Court. (Andrew Wolfson, “Appeals court upholds $6.1 million strip-search verdict against McDonald’s”, Kentucky Courier-Journal, Nov. 20, via ABA Journal).


“A woman hit by a Danish tourist driving a rental SUV outside the Olema Deli has filed a lawsuit against the Dane, the delicatessen and Dollar Rent a Car.” [Gary Klien, "Woman files lawsuit in Olema bench mishap", Marin Independent Journal, Calif.]


Washington state jails are overcrowded, so—presumably to avoid lawsuits over overcrowding—Washington State Patrol policy is to arrest nonviolent offenders without jailing them. In the case of Bellingham resident Janine Parker, drunk driving in the early morning hours of January 4, Trooper Chad Bosman arrested her, and drove her home, telling her not to drive until she was sober. Nevertheless, Parker, an hour later, found a taxi to take her nine miles to her car left by the side of the road, and drove drunk head on into Hailey French’s auto, causing the innocent 22-year-old driver many injuries.

French sued Parker, of course, but also the Washington State Patrol and Whatcom County (the latter apparently failed to put an ignition-interlock device in her car as Parker’s probation from an earlier conviction provided). (Miraculously, she doesn’t seem to have sued the taxi company.) A Skagit County jury found the two governmental entities jointly liable for $5.5 million. According to press accounts, the two defense attorneys each tried to get the jury to blame the other deep pocket: apparently, making the suggestion the person responsible for the drunk driving was the person responsible was beyond either hope or comprehension, though a web commenter to the article claims that Parker testified that the accident was entirely her fault. (Peter Jensen, “Whatcom County woman’s suit against county, State Patrol in jury’s hands”, Bellingham Herald, Apr. 24; May 1 post-trial press release of victorious plaintiff’s attorney).


Goodyear v. Kirby

by Ted Frank on April 27, 2009

19-year-old Sidney Odom happily went along when 20-year-old Travis Kirby and 18-year-old Riley Strickland asked “Who wants to go to the Beacon?”—a bar in Terry, Mississippi. A long night of drinking and driving came to an end at about 3 am when Kirby’s Camaro hit a tree at about 90 mph. As none of the three were wearing seatbelts, all were ejected from the vehicle. Kirby, whose blood-alcohol level was three times the legal limit at 0.25%, died at the scene; the other two were injured.

Since we’re talking about the case, you can guess that the three blamed everyone except the underage drunk drivers: in this case, the car seller, the tire installer, and the tire manufacturer, Goodyear Tires. The car seller settled for about half a million dollars; a Copiah County jury found the other defendants liable for an additional $2.1 million. Goodyear appealed, complaining about various prejudicial statements made by the plaintiffs’ attorneys, such as introducing evidence from other lawsuits about other types of tires, but the Mississippi state appellate court affirmed. (Holbrook Mohr, “Miss. court agrees tire, not alcohol caused crash”, AP/Washington Post, Apr. 22; Goodyear Tire & Rubber Co. v. Kirby (Miss. App. 2009)).


Dustin Dibble was intoxicated when a Manhattan subway train ran over him in 2006, but a jury found the transit authority 65% responsible in February: $2.3 million for the lost right leg.

James Sanders stumbled onto the tracks and was hit by a train in 2002, but a New York City jury again found him only 30% responsible: $7 million for a lost right leg and eye.

Gloria Aguilar did not look both ways when she crossed the street; there was a dispute whether she was in the crosswalk. A Manhattan jury–after a seven-week trial–found the transit authority 100% responsible, and awarded $27.5 million for her lost left leg; a judge refused to reduce that figure.

Clearly a left leg is more valuable than a right leg. Or, as I’ve noted several times in the past, noneconomic damages are essentially random jackpots.

New York City is appealing all three verdicts. (Liz Robbins, “Woman Run Over by Bus Is Awarded $27.5 Million”, New York Times, Apr. 16).


No doubt there are also other reasons why councilors might vote to keep daredevil and extreme skateboarders off public streets, as the L.A. Times is reporting, but the liability climate can’t help:

In 2004, a 17-year-old boy skating down a Mission Viejo street hit “an alleged defect in the street and took a tumble. In a bicycle he would have rolled right over it,” [self-insurance pool executive Jonathan] Shull said.

The boy suffered a brain injury and his family filed suit, alleging municipal negligence and asking for money to help care for him for the rest of his life.

Under state liability law, a city might have to pay the full settlement if a jury finds it was even 1% liable for the injury, according to Shull.


But an Ohio court said Dolores Karnofel waited too long to sue The Lance Armstrong Foundation over the resulting injury. (The Briefcase; scroll, strong language).

The state of Rhode Island and town of West Warwick, the last major defendants left in the lawsuits over the Station/Great White fire, agreed to throw $10 million apiece into the settlement pot, which now reaches $175 million, to compensate the 200 injured and survivors of the 100 killed in the 2003 blaze. The town of West Warwick, population just under 30,000, is expected to have to borrow heavily to enable its payment; it has a $4 million insurance policy, but defense litigation costs will be deducted before any of that money is made available for the settlement (RedOrbit/ProJo, more, AP/Firefighting News via Childs).

Dozens of private companies named in the suits had settled earlier, including many with peripheral or remote connections to the calamity, such as beer sponsor Anheuser-Busch, which together with a beer distributor agreed to pay $21 million, and radio operator Clear Channel, which paid $22 million. West Warwick will wind up paying much less than that, although its negligent contribution to the disaster (in failing to enforce key provisions of its own fire code) would appear immeasurably greater. Earlier posts here.


This is the silliest claim I’ve seen in a long while.  The shooting victim’s family filed a claim against the school their son attended because it allegedly failed to enforce the dress code.  The “feminine-dressing” boy was thusly singled out for abuse.  (“Family of shooting victim files claim against Huenume School District”, VenturaCountyStar, Aug. 14).

Update: I revised the title for accuracy.


The flight attendant sought a whopping $405K for the alleged assault.  This demand seemed unreasonable based on the description of the injuries, even if they occurred as alleged (“Jury says no assault, agrees with Osteen’s wife”, MSNBC, Aug. 14, earlier).


We express no opinion as to exactly how badly Victoria Osteen, wife of a celebrated evangelical minister, may have behaved on that Continental Airlines flight in 2005; “The Federal Aviation Administration fined [her] $3,000 for interfering with a crew member.” Readers keep writing in, however, to call our attention to the financial demands that flight attendant Sharon Brown is making in her lawsuit, which just went to trial. It seems Brown wants compensation not only for such things as hemorrhoids and damage to her religious faith but also, by way of punishment, “10 percent of Victoria Osteen’s net worth”. Wouldn’t we all! (“Joel Osteen’s Wife on Trial in Flight Attendant Assault”, AP/, Aug. 7).


The manual for the L120 John Deere mower reads:


· Do not mow when children or others are around.

· Do not mow in reverse.

· Look down and behind before and while backing.

· Never carry children even with blades off.

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Amanda Laabs was a passenger in a Porsche Carrera that was being driven at somewhere between 100 and 120 mph in Victorville, Calif., suggesting that the occupants were in quite a hurry to get to their destination, an In-N-Out Burger. Her driver did manage to slow down to an impact speed of 72 mph at the intersection at which he collided with the Mitsubishi of innocent driver Dorothy Specter. Have you spotted the allegedly responsible party yet? Yes, the city of Victorville, for designing the road with “inadequate sight distance and lack of warning signs, devices and signals”, so that Specter couldn’t see the Porsche coming, all that aside from the light pole that was too easy to run into. After pages of tortuous analysis, made more tortuous by the division of authority over the road between the city of Victorville and the County of San Bernardino, an appeals court upheld a trial court’s disposal of the case on summary judgment, but also declined the city’s request for fees, saying the city had not shown that an attorney would have assessed the claim as objectively unreasonable. (Laabs v. City of Victorville, courtesy; Civil Justice Association of California press release).

Update: The following was received April 14, 2010 from a commenter identifying herself as Amanda Laabs: “…You commented and had to make your business. If you had read it correctly we were not on our way to In-n- Out, we were turned around going the opposite direction for your information. I lost both of my legs in that accident and a good friend who was sitting behind me. This is a horrible site that allows people to be rude and insensitive to the people and family who were really hurt.”


Suing the chaperone

by Ted Frank on June 17, 2008

18-year-old Lauren Crossan, captain of the Randolph (New Jersey) High School cheerleading squad on a trip to the Hula Bowl, plunged naked to her death from a ninth-floor hotel balcony in Maui in 2004. Police arrested two California men who were staying in the hotel room, but then decided that the death was an alcohol-related accident–Crossan had a BAC of 0.17. (The men told police that they fell asleep while Crossan was still in the room after one had sex with her, and didn’t know what happened to her. Police say there was no evidence of sexual contact or of a struggle.) (AP, “Police: Cheerleader’s death an accident”, Jan. 15, 2004; Gary T. Kubota, “Tests show cheerleader was not on illegal drugs”, Honolulu Star-Bulletin, Jan. 27, 2004; memorial site with obnoxious music).

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Sealed Air makes polyethylene foam for packaging material. The Great White plaintiffs allege that polyethylene foam in the soundproofing was part of the reason the Rhode Island Station nightclub fire spread so fast, killing 100–though they have no evidence that Sealed Air manufactured the foam in the club, not to mention the fact that the packing foam was never intended to be used as building material. Not to worry: with joint and several liability in Rhode Island, Sealed Air faced billions of dollars of potential liability because all of the other deep pockets (dozens of defendants ranging from a radio station to four other foam manufacturers to Anheuser-Busch to the bus that transported the band to the concert to a television station that covered the fire) have settled, Sealed Air couldn’t risk being held even 1% liable, especially given that at a trial plaintiffs would have no incentive to blame empty-chair or empty-pocket or settling defendants. Sealed Air will pay $25 million in protection money. (AP; Providence Journal; TortsProf). The miscarriage of justice continues, but the remaining defendants are apparently judgment-proof.


We were curious what happened to the case of Rose Marie Munoz v. Ford, the $29 million verdict against an auto manufacturer when a 10-year-old recalled Firestone tire failed and a passenger who wasn’t wearing a seatbelt was ejected. Our original post had provoked a response from the plaintiffs’ lawyer, Roger S. Braugh, Jr.

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