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 old joke is that chutzpah is defined as the case of the orphan who kills his parents and then begs the court for mercy because he’s an orphan.
A pair of Philadelphia parents, however, may redefine the idea for all time. Danieal Kelly, who suffered from crippling cerebral palsy, was 14 when she starved to death in a West Philadelphia rowhouse, covered in bedsores, weighing just 42 pounds. Her mother, “Andrea Kelly was charged with murder on July 31. Daniel Kelly, who authorities say abandoned his daughter despite knowledge of her mother’s neglect, was charged with endangering the welfare of a child.” (Three friends of the mother were charged with perjury for lying to a grand jury; four social workers were also charged with felony endangerment, which will no doubt screw up incentives further for over-reacting child protective services everywhere.)
The parents responded as any parents would, and sued the city, the state, city and state agencies, and four social workers, blaming them for Kelly’s death, and seeking damages for “love, tutelage, companionship, support, comfort and consortium” as well as the “economic value of her life expectancy”–which couldn’t possibly be anything other than the taxpayer-funded disability benefits. Public outrage has caused the lawyers, Brian Mildenberg and Eric Zajac, to substitute other parties as plaintiffs so that there is no direct hint of Daniel and Andrea Kelly profiting, but the underlying appallingness of the suit remains. (Julie Shaw & Catherine Lucey, “Lawsuit by Danieal’s parents called ‘disgusting’”, Phil. Inquirer, Aug. 13; Nancy Phillips and Kia Gregory, “Danieal Kelly’s parents sue the city”, Phil. Inquirer, Aug. 13; John Sullivan and Craig R. McCoy, “Nine indicted in fatal neglect of girl”, Phil. Inquirer, Aug. 1; ongoing Inquirer coverage).
In May 2006, 14-year-old Texas girl “Julie Doe” listed herself as 18 on her MySpace profile (so she could circumvent the site’s child safety features) and snuck out of her house to surreptitiously meet with a boy she met on MySpace the previous month. Unfortunately for her, the boy was also lying; Pete Solis was not a high-school athlete, but a 19-year-old that (allegedly) raped her. (Solis claims the sex was consensual and that he didn’t know about the illegal age difference, though knowledge ususally isn’t a defense in statutory rape cases.)
The family blamed MySpace and sued in multiple jurisdictions, omitting Solis from the most recent iteration of the suit. The suit was dismissed under the website hosting immunity protections of the Communications Decency Act; and Friday, the dismissal was affirmed by a unanimous panel of the Fifth Circuit (via Childs). We covered the suit in detail in 2006; for that, and other MySpace litigation, see our MySpace tag.
In April, Solis pleaded guilty to reduced charges of felony injury to a child, and will serve 90 days over the course of five years, and will register as a sex offender. (Jen Biundo, “Buda teen gets 90 days in jail, seven years on sex offender list”, The Free Press (Buda), April 23). His attorney? Adam Reposa, known for other reasons. One presume’s Solis’s even more ludicrous lawsuit against MySpace has met a similar fate.
New Jersey: “An Essex County jury has ordered Newark to pay $4.1 million to the family of a murdered Seton Hall University student because of mistakes made by a police dispatcher and 911 operator during her abduction. The jury’s verdict came after the attorney for Sohayla Massachi’s family argued that prompt action by the Newark police may have prevented her murder after she was abducted by a jilted boyfriend in May 2000.” The jury attributed 25 percent of its $5.5 million award to Seton Hall and its security agency, Argenbright Security Inc., but those defendants had already settled. (William Kleinknecht, Newark Star-Ledger, May 16).
I have an op-ed in today’s New York Sun on the affirmance of the “Port Authority is 68% responsible for the 1993 World Trade Center car bomb” verdict. Earlier.
In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What’s Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).
Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not “legal error” to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys’ incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.
On September 3, 2003, 19-year-old Frederick Nesbitt was underaged at “Wing Night” at the C View Inn in Cape May, New Jersey, so the waitress at the bar only served him soda while his companions drank pitchers of beer. (His 21-year-old companion James Hamby had a suspended license for drunk driving.) But Nesbitt had been drinking rum and drinking beer with the others before they got to the bar; and Hamby spiked Nesbitt’s drinks with rum under the table at the bar, which was presumably busy serving sixty other people and didn’t notice. So Nesbitt had a 0.199 blood-alcohol level when, speeding, he “lost control [of his car], careening back and forth across the road before striking a guard rail and landing on the driver’s side. He was thrown out the rear window while Hamby, who was found in the car, was pronounced dead at the scene.” Nesbitt is serving a five-year prison term for vehicular homicide, but Hamby’s estate is suing the bar. (It settled with Nesbitt for his $50,000 insurance coverage.)
The lower court threw out the case since the bar didn’t serve Nesbitt any alcohol, but a New Jersey appellate court ruled that the bar has a duty to arrange transportation for anyone who walks in who appears to be drunk “regardless of whether Nesbitt’s intoxication resulted from the service of alcohol by the inn or from other causes” (notwithstanding the absence of such a cause of action under the dramshop statute) so the bar will now have to hope the jury credits the witnesses who say that Nesbitt didn’t appear drunk. (Mary Pat Gallagher, “N.J. Court: Bar May Be Liable for Fatal Crash Even if It Didn’t Serve Patron Alcohol”, NJ Law J, Mar. 24; Tom Hester & Abby Green, “Court adds to taverns’ duty toward safe driving”, Newark Star-Ledger, Mar. 21; Insurance Journal, Mar. 21; AP, Mar. 20; NJLawman.com message board).
If your drinks appear more expensive in New Jersey, it’s because you’re paying for insurance for drunk drivers who might stop at the bar to use the restroom. Of course, why stop at bars? Why not convenience stores?
You may recall the case of De Villers v. County of San Diego (Mar. 2006; Jul. 2006). Kristin Rossum was found guilty of poisoning husband Gregory de Villers and trying to make his death look like a suicide; his family sued both Rossum and her employer, the county of San Diego, and a jury found that Rossum was only 75% responsible, but that still put taxpayers on the hook for $1.5 million. An appellate court has stepped in to belatedly throw out the case against the County. (via On Point)
I’m going to have much much more to say about this case, but for now, let us simply note that a jury found for the plaintiff in a lawsuit against McDonald’s over her victimization by a perverted prank phone call, and awarded $6.1 million; we mentioned the incident in the comments to this lengthy September 2006 discussion of a similar lawsuit that was thrown out of court, and first noted the potential for litigation in April 2004, days before the actual incident took place in this suit.
What the press coverage to date has not mentioned is that the person who almost certainly perpetrated the incident was acquitted after the Kentucky case fell apart because the criminal defense attorney was able to impeach the witnesses by noting their financial stakes in the civil litigation decided today. Thus, thanks to our civil litigation system’s quest for the deep pocket, the guilty party went free and a tertiary innocent victim got hit with damages. Which is precisely why it’s a misnomer when trial lawyers rename themselves associations for “justice.”
Mark Steyn throws down the gauntlet:
Last week the New York Times carried a story about the current state of the 9/11 lawsuits. Relatives of 42 of the dead are suing various parties for compensation, on the grounds that what happened that Tuesday morning should have been anticipated. The law firm Motley Rice, diversifying from its traditional lucrative class-action hunting grounds of tobacco, asbestos and lead paint, is promising to put on the witness stand everybody who “allowed the events of 9/11 to happen.” And they mean everybody – American Airlines, United, Boeing, the airport authorities, the security firms – everybody, that is, except the guys who did it.According to the Times, many of the bereaved are angry and determined that their loved one’s death should have meaning. Yet the meaning they’re after surely strikes our enemies not just as extremely odd but as one more reason why they’ll win. You launch an act of war, and the victims respond with a lawsuit against their own countrymen.
But that’s the American way: Almost every news story boils down to somebody standing in front of a microphone and announcing that he’s retained counsel. Last week, it was Larry Craig. Next week, it’ll be the survivors of Ahmadinejad’s nuclear test in Westchester County. As Andrew McCarthy pointed out, a legalistic culture invariably misses the forest for the trees. Sen. Craig should know that what matters is not whether an artful lawyer can get him off on a technicality but whether the public thinks he trawls for anonymous sex in public bathrooms. Likewise, those 9/11 families should know that, if you want your child’s death that morning to have meaning, what matters is not whether you hound Boeing into admitting liability but whether you insist that the movement that murdered your daughter is hunted down and the sustaining ideological virus that led thousands of others to dance up and down in the streets cheering her death is expunged from the earth.
(Mark Steyn, “No terrorism, just war?”, Orange County Register, Sept. 9; Anemona Hartocollis, “Little-Noticed 9/11 Lawsuits Will Go to Trial”, New York Times, Sept. 4; also to the point).
The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.
…we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response “in the next week”, though, 26 weeks later, we haven’t seen it.)
Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.
Point of Law Volokh