Deborah La Fetra at Pacific Legal on a case that arose against a shopping mall after a runaway car smashed through a floor-to-ceiling glass wall into a medical clinic:
[On May 8,] the New Mexico Supreme Court decided in Rodriguez v. Del Sol Shopping Center that when a court decides whether a property owner has a duty to protect people from harm on the premises, the court must never consider whether the harm was foreseeable. PLF has long argued in premises liability cases that foreseeability cannot be dispositive, because the court must also consider the public policy considerations of imposing a duty to protect. The court’s holding that foreseeability must never be even a factor, however, sets it apart from every other court in the nation, to the detriment of New Mexican property owners and businesses….
This approach means that, as a practical matter, New Mexico courts can never dismiss a case on the grounds that the defendant owed no duty to the plaintiff. …This is a shocking departure from standard tort doctrine that squarely places upon courts the responsibility to determine the nature and extent of tort duties. All property owners and businesses in the state should be on notice that any accident, no matter how bizarre or unlikely, that occurs on their premises will almost certainly go to a jury – or settle.
Seeking help with an auto accident claim, Robert Friedrich was in a meeting with an attorney at a personal injury law firm in 2003 when a chair collapsed under him. He won a $2.2 million jury verdict against the law firm of Fetterman & Associates and a retailer that sold the chair, but an appeals court directed a verdict against him, finding a lack of needed causation. Now the Florida Supreme Court has reinstated the verdict [Legal Profession Prof, ABA Journal, earlier]
Perhaps the most remarkable passage in the ABA Journal’s coverage:
An expert for Friedrich said an inspection should have revealed the “weak joint” in the chair blamed for the collapse and said it should be standard procedure for businesses to test chairs every six months, the court recounts. An expert for the law firm said the only test for defects in chairs is to sit in them, and no other test would have revealed the defect that caused the Friedrich accident. …
A dissenting judge would have upheld the directed verdict against Friedrich. Even if the jury agreed that businesses should inspect chairs every six months, the dissenting judge said, there was insufficient evidence to prove that an inspection would have revealed the defect in the chair at issue.
Commenter DKJA at the ABA Journal writes:
So every business in Florida now has to “inspect” every piece of furniture every six months in perpetuity?
Maybe we should just replace all furniture with beanbag chairs. Although I’m sure someone would figure out how to injure themselves on one of them as well.
“State Senator Jim Alesi fell off a ladder and broke his leg at someone else’s unfinished home three years ago – and now he’s blaming the homeowners for his injury. Alesi is also suing the home builder, Louis DiRisio.” Alesi has said he was checking out the development and didn’t realize the house in question, which he entered through an unlocked basement door, had already been sold to owners. The homeowners’ right to sue Alesi for trespassing has now expired under the statute of limitations, and they may be rethinking their decision not to press charges at the time. [WHAM, WHEC, Rochester Democrat & Chronicle] Update: he drops suit.
Wal-Mart stores in many parts of the country are famous for letting motor-home travelers park overnight in their lots for free. One wonders whether that policy will last: a Florida couple is now suing the retailer over an incident in the parking lot of its Cedar City, Utah store, in which the family shot and killed a man who intruded in their parked home. They say they have suffered emotional distress and medical problems and that “store officials knew the man was loitering in the lot” but failed to act. [Salt Lake Tribune via Consumerist, where commenters haven't been conspicuously sympathetic to the plaintiffs]
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]
“…[T]he professional body that represents health and safety experts has issued a warning to businesses not to grit public paths – despite the fact that Britain is in the grip of its coldest winter for nearly half a century. … The Royal Society for the Prevention of Accidents expressed its disappointment that public safety was being neglected because of fears of possible litigation.” A past president of the British Orthopaedic Association said: “If people want to clear pavements, they should just do it. I would have thought it’s a public service and it is a shame we have ended up with a culture where if someone slips, they want to sue someone. People need a bit of grit, in both senses.” [Telegraph] Update: IOSH, the health and safety group, says newspapers misstated its position and that it is indeed in favor of businesses’ gritting public paths (h/t commenter Yossarian).
Deron Johnson, 48, a man “with a lengthy rap sheet”, denies that he was trying to rob Margaret Johnson, 59, of her purse and gold chain when she shot him from her motorized wheelchair with her licensed .357 Magnum. Cops grabbed him but he won acquittal at trial and he’s now suing her and the landlord of her Lenox Terrace housing complex in Harlem, asking millions. [New York Post]
More: Scott Greenfield has questions, as does Bill Poser in comments.
Last year we covered the unsuccessful suit against Contemporary Watercrafters, a Rockville, Md.-based pool maintenance business. It’s getting some more attention now as one of the entries in the U.S. Chamber’s Faces of Lawsuit Abuse campaign (careful, it auto-plays video with sound). Angle we didn’t mention in our earlier post: the owner was annoyed at the mess made by the geese and approached the Humane Society about removal but was told “it was a no-go — the Migratory Species Act forbade him from moving or disturbing the geese. All he could do was wait for their goslings to hatch and hope they then moved on of their own free will. The store put up tape around the area and signs warning passersby of the terrible geese threat.” (On the Record (Md. Daily Record blog), Dec. 9).
“Florida premises liability law appears to be generous enough toward plaintiffs that Home Depot could be held liable for the death of a customer who was allegedly struck by an overloaded shopping cart being pushed by another customer.” (Matthew Heller, On Point News, Nov. 11; complaint).
Hello, and thanks again to Walter Olson for welcoming me back to help fill in this week. His prior post reminded me of this surveillance tape I’ve kept after all these years simply for comic relief.
The tape shows one customer casually stroll through the door without incident all the while another intending customer in quite the hurry tries to run in–he thought–through an open door. Instead, it was the plate glass adjacent to the door. He smacks into it bowing the glass and then storms into the store while the other customers gawk at him. The original clip was without sound but I couldn’t resist jazzing it up with Gonna Fly Now from Rocky.
Here’s the Overlawyered part: he made a claim against the store owner; and, the claim was paid as a compromise. Part of the reason why is visible on the video—can you see it?
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