Speeding through a residential neighborhood, Ross Duran “failed to stop at a dead-end, crashing his car through a cinder block wall and slamming into a flowerbed in Joseph Volpe’s back yard.” And then one of Duran’s passengers sued — who? She sued “[homeowner] Volpe and Pardee Construction Co. of Nevada claiming their negligence was at least partially to blame because of the location of the flowerbed behind the wall in Volpe’s back yard.” The case went all the way to the Nevada Supreme Court, which rejected her lawsuit, saying it would be an “undue burden” on residential property owners to make their yards crashworthy.
(“Nevada Supreme Court rejects lawsuit against homeowner”, Las Vegas Sun, Nov. 6) (via Lori Patel, “Today’s Brief”, Law.com, Nov. 7)
Archive for November, 2003
Recommended book
Highly recommended: David Bernstein’s new book You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. David, who is a professor of law at George Mason and a contributor to the Volokh Conspiracy (and has collaborated with us in the past on a number of projects), does a great job of documenting a theme dear to our hearts, namely the persistent clash between harassment law (and antidiscrimination law more generally) and freedom of speech, conscience and personal association. The book seems to be doing deservedly well on Amazon and can be purchased here (& see Dec. 7).
“Little more than a publicly traded lawsuit”
The Wall Street Journal reports that SCO Group, which has sued IBM and threatened to sue many other companies based on the premise that the open-source Linux operating system infringes its intellectual property, has negotiated an arrangement with the law firm of Boies Schiller & Flexner. Under the arrangement, Boies Schiller will be granted a 20 percent contingent fee applicable not only to judgments and settlements arising from the lawsuits but also to certain events relating to SCO itself as an entity, including sales or equity financing. Corp Law Blog, commenting (Nov. 5), says: “SCO’s willingness to essentially give Boies 20% of SCO — whether through license fees, equity financings or a sale of the company — suggests that SCO is little more than a publicly traded lawsuit.” See William Bulkeley, “Boies’s Firm Could See $49.4 Million From SCO”, Wall Street Journal, Nov. 6 (sub). (via Prof. Bainbridge)
“Americans Demand Increased Governmental Protection From Selves”
For now, it may only be a parody in The Onion. It sure is a believable one, though.
Subsidized brush-fire insurance
“Should the state and federal government encourage Californians to build houses in high-risk brush-fire zones? The brain says ‘no,’ but the policy means ‘yes.'” Matt Welch at Reason (Oct. 22; see our Oct. 31 post) further investigates the so-called FAIR insurance program, which (among its other flaws) tends to redistribute wealth to the residents of affluent Malibu and Topanga Canyon. Glenn Reynolds comments (Nov. 6).
Latest you-didn’t-throw-me-out gamblers’ suit
“Two problem gamblers have filed a potential class-action lawsuit alleging that Detroit’s three casinos have failed to enforce a state program designed to permanently bar gambling addicts from their properties. … Virginia Ormanian of Wyandotte and Norma Astourian of Taylor asked to be barred from the casinos in the summer of 2002. But they couldn’t stay away.” They are now suing the establishments for not doing enough to enforce the program, under which “gamblers who sign up for the program and return to the casino are subject to up to a year in prison, a fine of up to $1,000 or both.” (Becky Yerak and Kim Kozlowski, “Gamblers sue Detroit casinos for not barring them”, Detroit News, Nov. 5). For earlier you-didn’t-exclude-us cases, see Sept. 7, Aug. 1 (Canada).
Updates (blog division)
Our Oct. 28 entry, “Slower saint-making”, about how fear of being sued has slowed down efforts to advance Australia’s Mary MacKillop toward canonization in the Catholic church, has been mentioned on numerous sites and is featured in the latest Carnival of the Capitalists, which rounds up noteworthy business and economic posts. Economic commentator Donald Luskin has withdrawn his speech-chilling demand letter (see Oct. 30) and has issued a curiously worded joint statement with anonyblogger Atrios attributing their dispute to “a series of misunderstandings” and putting it behind them (Kevin Drum, Nov. 4). And Curmudgeonly Clerk (Nov. 2, Nov. 3, Nov. 5) has made himself the one-stop source for information on the seedy saga (see Oct. 31) of how a British reality TV crew organized male contestants to go on camera vying for the affections of “Miriam”, a curvaceous gal who turned out not to be a gal at all, with results that are pregnant at least legally. Update May 26: cases settled.
Back at the old test-rigging game
Ten years after litigation consultants helped NBC News stage fake “tests” which supposedly proved a GM truck vulnerable to fuel-tank puncture (see “It Didn’t Start With Dateline NBC“, our 1993 effort), you have to wonder whether much has changed. “Ford Motor Co. says Dallas rigged a crash test that purported to show that the Crown Victoria is vulnerable to deadly fuel tank explosions even when equipped with safety gear. Ford said its inspection of the car used in the test showed that items in the trunk had been welded together, including a crowbar that was aimed at the back wall of the fuel tank.” The test was paid for by personal injury lawyers representing the city of Dallas in a lawsuit over the death last year of police officer Patrick Metzler, who died when his Crown Victoria was rear-ended by a drunk driver at high speed. (“Dallas rigged Crown Victoria crash test, automaker alleges”, AP/Fort Worth Star-Telegram, Sept. 18.) In the 75-mph test, the vehicle’s trunk was filled with “items that the city said were commonly found in a police officer’s trunk”, which turned out to include a crowbar welded to a vehicle jack — just the sort of contraption an officer might lug around to traffic stops, no? Ford, which discovered such details only later on when it was allowed to inspect the test vehicle during litigation, “criticized the city for not disclosing the artificial conditions when reporting its testing results.” Reinforcing the sense of deja vu, Center for Auto Safety head and trial lawyer chum Clarence Ditlow publicly defended the use of the peculiar trunk contents as legitimate, the same way he defended NBC’s use of hidden rockets back then. (“Ford Questions Dallas Crash Tests”, AP/Primedia, Sept. 18; “City calls Crown Victoria tests ‘valid'”, Dallas Business Journal, Sept. 18). “Mark Arndt, the president of the company that oversaw the testing, is himself an expert witness for the City of Dallas in its lawsuit against Ford. Arndt makes his living as a hired gun testifying against carmakers.” (Mike Scott, “City’s crash test spawns controversy”, reprinted at Houston Citizens Against Lawsuit Abuse site). For trial lawyers’ side on the Crown Victoria controversy, see Ditlow’s Center for Auto Safety; Dallas City Hall; and Crown Victoria Safety Alert. For Ford’s side, see CVPI.com.
New York abolishes ad damnum
Late last month New York Gov. George Pataki signed into law a bill that will abolish the requirement that a personal injury or wrongful death lawsuit specify at the outset (in its “ad damnum” clause) the amount in dollar damages it is seeking. New York thus becomes the latest state to adopt a measure that is relatively rare among litigation reforms in eliciting widespread support from among both defense interests (example: American Medical Association model legislation, PDF) and the plaintiffs’ bar, which is perennially embarrassed by news items such as the one cited in yesterday’s New York Times about how a woman who survived the Staten Island Ferry catastrophe has demanded $200 million for a sore back and lost sleep. Lawyers “often will pick an astronomical figure for fear that a lower number will preclude their clients from recovering damages if they win a case” — or, of course, they may be seeking the publicity that often accompanies huge demands. The state bar association urged Pataki to sign the bill, saying it “will reduce pretrial publicity about how much money is sought from particular defendants, and deals with the common misunderstanding by the general public that the amount sued for is the amount actually obtained by plaintiffs.” (Joel Stashenko, “Pataki Signs Bill Eliminating Damage Amounts In Liability Suits”, AP/Newsday, Oct. 31).
Election results
Tort reformers did well in Mississippi elections, with GOP challenger Haley Barbour toppling incumbent Gov. Ronnie Musgrove (D) and Republican Lt. Gov. Amy Tuck handily fending off a challenge from trial-lawyer-legislator Barbara Blackmon (Julie Goodman and Patrice Sawyer, “Republican challenger unseats Musgrove”, Jackson Clarion-Ledger, Nov. 5; Andy Kanengiser, “GOP’s Tuck breezes to victory over Blackmon”,
Nov. 5). The Democrats did hold onto the state’s attorney generalship, however. Meanwhile, doctors campaigning for malpractice reform (see Nov. 4) suffered stinging defeats in Pennsylvania, where Democrat Max Baer beat Republican Joan Melvin for a seat on the state supreme court, and New Jersey, where Democratic followers of Gov. Jim McGreevey solidified their hold on the state legislature, in part by outspending their rivals four to one. (“Democrat Baer defeats Melvin for top Pa. court”, AP/Philadelphia Inquirer, Nov. 5; Tom Turcol, “N.J. Democrats secure control of legislature”, Nov. 5).