16 Comments

Do you feel the Harris family shouldn’t sue William Conklin?

If William Conklin acted maliciously (as is alleged) or if Harris was an involuntary participant in the violent dancing, then a suit against the younger Conklin has a legitimate basis. I don’t see, however, how anyone watching the video can think that Harris didn’t assume the risk of an accidental blow.

I haven’t yet watched the video, but will do so later today.

I do agree that moshing is an inherently dangerous activity, and as such, I wouldn’t support a lawsuit if the kid got a broken nose. But no one expects to die when moshing. Do you think that Conklin should pay anything?

Why does legal culpability turn on whether Harris suffered a broken nose or a freak fatal accident? That goes to the amount of damages, not liability. (Or are you claiming that Conklin had a duty to investigate and warn Harris of the risks of moshing? If so, why doesn’t any of that duty rest on Harris to investigate and warn Conklin?)

If Conklin did not commit an intentional tort, he should have no liability. Unless Ms. Conklin conspired with William Conklin to hit Harris, she should have no liability.

why everyone knows that moshing is not just inherently dangerous, but inherently malicious. The point is to run into people. No mosh pit is worth its salt without some degree of blood flow (usually from the nose or head).

This is a classic case to lament the disappearance of the defense of assumption of risk.

I don’t know, Ted. My namesake once defined justice as “the constant and perpetual desire to render everyone his due.” Letting Conklin get away without any expenses doesn’t seem like justice.

Shouldn’t he at LEAST have to pay for the boy’s funeral expenses?

With respect to Mrs. Conklin: What if her son told her something to the effect of, “Hey mom, while you’re away I’m going to have an underage beer bash complete with a mosh pit.” Wouldn’t some sort of cause of action against her be justified?

Justinian, it’s distressing that you fail to address what people say. Saying that it “doesn’t seem like justice” merely assumes the conclusion. You need to explain why the principle of “assumption of the risk” violates the ideal of “rendering everyone his due.”

Would you hold the Conklin family liable if the same accident happened in a pick-up football or basketball game in the back yard?

Why stop with the Conklins then? Why not the band who played the music that was likely to lead to moshing? Why not the manufacturer of the guitar and amplifiers that didn’t print any warnings against moshing? Why not the manufacturer of Harris’s shirt, for failing to include a chest-protector or print a warning about the absence of the chest-protector? At what point does liability stop when someone voluntarily engages in a risky activity and has a worst-case scenario occur?

Why is “underage beer bash” relevant? Straight-edge punkers mosh, too. If voluntary moshing is legal, then Mrs. Conklin did nothing wrong simply because her adult son held a mosh in her house while she wasn’t present. There’s no allegation that Mrs. Conklin encouraged or condoned underage drinking, or even that underage drinking was at all related to the incident, much less a contributing cause.

If you want to ban parties, then be honest about it, and use the democratic process to outlaw parties and moshing. This is regulation through litigation, and a limit on the liberties of all of us. In many states, there isn’t even the opportunity to fight back through tort reform, because trial-lawyer-supported judges nullify democratically supported laws.

As usual, Ted chews up and spits out Justinian’s arguments. JL, please think before you post, because it certainly appears (at least to me) that no thought has gone into your reasoning.

I can’t even possibly conceive of any liability on behalf of either young Conklin or his mother, not even if I stretch my imagination to its very limit.

If the assertion that he died suddenly from a blow to the chest is true, then this is a case of commotio cordis. It is extremely rare (http://www.physsportsmed.com/issues/2000/11_00/vincent.htm). I don’t see much contact to suggest this in the video, so could also possibly be a sudden terminal arrythmia, which is more common relatively (at least in Italy). Overall sudden cardiac death in youth is extremely rare(a classic medical needle in the haystack), and commotio is a very rare cause of even that rare event. Commotio is most common (again, relatively)in baseball, usually a line drive to the chest. So, to really prevent these we should get rid of the national pastime, not moshing. However, that isn’t what Mr. Lane is suggesting. He’s arguing for payment, not safety for others, in this case. After all, no risky behavior, no bad outcomes, no cases, no dollars.

Rather, he contends that someone needs to pay, even if at “least” for funeral expenses. He really needs to answer the question of why justice means that someone needs to pay for what is truly a freak event.

As for assumption of risk for the cause of death in this case – more people die from lightning strikes each year. The assumption is one we should all make every second of our days – freak things can happen to any of us at any time and it won’t be anyone’s fault.

(sigh)

Ted – I wasn’t trying to pick a fight. I agree it’s entirely possible that neither Conklin has any liability at all. (In order to make an intelligent argument for either side, I’d need to review the pleadings, evidence, etc. You know as well as I do that the media rarely tells the whole story.) I asked you a simple question – Do you think the Conklins should pay for the funeral expenses? I’ll clarify “should” to mean in your personal opinion, regardless of whether they should be legally liable for any expenses.

In my personal opinion, I believe the Conklins should at the very least pay the funeral expenses.

I used the phrase “underage beer bash” as a hypothetical to see whether you would support a lawsuit against the mother if she had actual knowledge that her property was going to be used for underage drinking. I am *not* alleging there was drinking or that drinking caused this incident.

MF – Your imagination must be very limited; do you see no liability in the “underage beer bash” hypothetical I raised? What if the mother provided the beer?

cc (and Ted) – Once more, I wasn’t attempting to argue the legal merits of anything. I was merely asking for personal opinions as to whether the Conklins should pay anything. I wasn’t, as Ted suggested, trying to outlaw parties with my cadre of crooked judges and wealthy trial lawyers.

If you (or anyone) says the Conklins shouldn’t pay anything, fine – that’s your opinion and you’re entitled to it. I believe the decent and just thing to do is to offer at least to pay the funeral expenses.

If we have a difference of opinion, so be it. I don’t like chocolate ice cream, and I bet one of you does. That doesn’t mean either of us is “right.”

I’ll ask again once more: Regardless of what the applicable laws are in this case, does anyone else think the “right” or “just” or “appropriate” thing to do is for the Conklins to pay anything?

Justinian: If Mrs. Conklin killed Harris with alcohol (or a cyanide-poisoned apple or supernatural telekinesis), then, yes, Mrs. Conklin has liability. But that’s so far removed from the principles we’re talking about here that I fail to see why you think the alternative hypothetical has any relevance at all.

Similarly, this is a blog about public policy and the law. I don’t imagine that Miss Manners has addressed the specific question of the appropriate gesture when someone accidentally dies in a freak slam-dancing accident in one’s home, but it’s certainly a cutting-edge etiquette question that goes beyond the scope of this post or my comparative advantage as a blogger. I can say that there are very good reasons why what is optimally polite and what is legally mandated are two different categories and that your comments blur the two.

One improperly belittles the discussion by comparing it to chocolate ice cream, because imposing preferences about liability has consequences that one’s preferences about Baskin Robbins flavors does not. I don’t care if you don’t eat chocolate, or prefer your foie gras fried in peanut oil: that’s your business. Holding property-owners strictly liable for all freak accidents that take place on their property and permitting lawyers to use the legal system to extort nuisance settlements affects all of us.

There’s a certain flailing disingenuousness in now claiming that you weren’t “attempting to argue the legal merits of anything”: each of your first three comments explicitly refers to litigation possibilities. What sort of conclusions are we supposed to draw when you repeatedly take indefensible positions that fail to address the issues and then change the subject when refuted? That’s not honest argumentation when you keep commenting and shifting your claims without acknowledging the shift, or when you refuse to engage your opponents; it doesn’t further the discussion, and it will get you banned from the comments as a troll if it persists.

Holding property-owners strictly liable for all freak accidents that take place on their property and permitting lawyers to use the legal system to extort nuisance settlements affects all of us.

Actually, Ted, it might be preferable if we held property-owners strictly liable. I mean, that would be insane, yes — but it makes more sense than randomly holding property owners liable, based on the “imagination” (to use Justinian’s term) of a trial lawyer, which is what the current tort system now does. After all, the “nuisance settlements” come about precisely because of the uncertainty of the tort system.

Meanwhile, I know you want to bypass Justinian’s etiquette question, but in this case, it seems to stem from exactly the same place as his view of the tort system, so I think it’s worth touching upon. He thinks it’s the “decent and just thing to do” to offer to pay the funeral expenses, but he gives no explanation as to why. Does Justinian go around paying for the funerals of random people who happened to die? If he’s driving home from the beach and notices the results of a car accident at the side of the road, does he pull over and volunteer to pay the funeral expenses? I’m sure the answer is “No,” and I’m sure he doesn’t consider himself indecent or unjust for failing to do so. Clearly, he’s not separating etiquette from law, no matter what he says. And also clearly, he just has this visceral notion that if someone is injured, someone else must be responsible.

Ted – If (and I’m not saying she did) Mrs. Conklin had actual knowledge that her son was going to use her property for moshing – which we both agree is a legal but inherently dangerous activity – then why shouldn’t she have liability?

Similarly, if a mosher had accidentally broken one of Mrs. Conklin’s lamps while moshing, wouldn’t that mosher be liable to Mrs. Conklin?

Ted, you point out that this blog is about public policy and the law. You also point out that what is “optimally polite” (what I referred to as “right”) and what is legally mandated are two different things. Isn’t it worth discussing why public policy and the law sometimes allow judicial outcomes that aren’t the “right” outcome?

That was the entire reason for my insistence that you answer my simple question: I’m curious if you think that it’s “right” for the Conklins to have no liability. If you do not, then we could discuss whether it would be possible to reform the justice system in a way that will lead to more just outcomes without banning dancing, drinking, or baseball (or any of the other possibilities you raised). And if you do think it’s “right” for the Conklins to pay nothing, then we simply have a difference of opinion which is pointless to debate.

Also, Ted, you accuse me of taking indefensible positions, being dihonest, etc. But if you’ll re-read my comments, the majority of them were simple questions. How can asking questions be dishonest?

I am certainly not trying to troll your blog. If I were, my response to MF would have been far more entertaining. I’m honestly, genuinely trying to understand your beliefs and upon what they are based.

David – There’s a big difference between my paying for the expenses of someone who had a car accident in which I wasn’t involved, and paying for the funeral expenses of a guy who died after I (may have) punched him in the chest while moshing.

I certainly have no notion that someone is always responsible when another is injured. I do have the notion that when someone IS responsible for injuring another, he or she should ALWAYS pay.

JL – My intent was not to troll or attempt to turn you into one. I simply can’t even imagine a reasonable person taking your position.

But let me explain that a bit. My position is that unless the facts state that something did or did not happen, we are to hypothesize nothing. That means that we should not consider the possibility that Mrs. Conklin provided beer or knew about the party at all. If the facts later come out that demonstrate either of the above, then I reconsider. But until that happens, I am to assume she knew and approved of nothing. Given that, she has no legal or moral liability.

Similarly, if a mosher had accidentally broken one of Mrs. Conklin’s lamps while moshing, wouldn’t that mosher be liable to Mrs. Conklin?

Interesting first word you chose there. The situations aren’t very similar at all. First, we would assume that the facts would show that a mosher really did break the lamp. Yes, he or she is liable. The lamp was broken as a direct result of those activities.

Alternatively, even if the facts come out that Mrs. Conklin knew about the party and supplied the beer (and I haven’t seen any such facts presented), it’s still a very indirect responsibility on her part. Yes, she has some liability for her actions, and of course there is the criminal aspect to consider. But her supplying beer would not CAUSE the mosher to die, it would merely be a CONTRIBUTOR. It would be up to a jury to assign a percentage responsibility.

Remember, it’s about the FACTS. We are not to speculate (hypothesize, pick your term) anything.

Ted, you accuse me of taking indefensible positions, being dihonest, etc. But if you’ll re-read my comments, the majority of them were simple questions. How can asking questions be dishonest?

Justinian, the record will reflect that what I said “That’s not honest argumentation when you keep commenting and shifting your claims without acknowledging the shift, or when you refuse to engage your opponents.”

Your very statement that all you were doing is “asking questions” is dishonest in three ways. First, by mischaracterizing my complaint about your tactics, you refuse to engage what I actually said while pretending that you are. Second, your most recent question is dishonest because it falsely assumes the premise that all you have done is ask questions (with the additional false implied premise that I am unjustly criticizing you for just asking questions) when in fact you also made sweeping claims like “Letting Conklin get away without any expenses doesn’t seem like justice” as defined by the original Justinian. Third, questions like “Shouldn’t he at LEAST have to pay for the boy’s funeral expenses?” is not an interrogatory request for information, but, rather a rhetorical question that English speakers recognize as a normative claim, so you are being disingenuous when you say you were just asking questions.

Such dishonest argumentation is generally recognized as rude and certainly not “right”. Because you asked the question about the legal system and etiquette without thinking about it very hard (also somewhat rude), I leave to you to dwell upon the issue of whether it is a good thing that your rudeness does not create a cause of action for the time you’ve wasted.

As Mickey notes, your example with the broken lamp is not analogous. If Mrs. Conklin invited a party-goer to use the lamp as a baseball bat, and the lamp suffered damage as a result, Mrs. Conklin would be hard-pressed to blame the party-goer for damage to the lamp.

Justinian, we suspect you’re trolling because you say contradictory things without acknowledging the contradiction, even after the contradiction is pointed out. For example:

JL, Dec. 29: I wouldn’t support a lawsuit if the kid got a broken nose.

JL, Dec. 30, on the funeral expense question: I do have the notion that when someone IS responsible for injuring another, he or she should ALWAYS pay.

What’s the legally distinguishable principle by which Conklin is not responsible for the first mosher’s plastic surgeon but is responsible for the second mosher’s funeral expenses? Or, as I asked three days ago, “Why does legal culpability turn on whether Harris suffered a broken nose or a freak fatal accident?” Simply announcing that Coughlin is “RESPONSIBLE” in capital letters assumes the conclusion. You fail to address the question raised by your inconsistency and to acknowledge the inconsistency. What are the rest of us supposed to assume about the utility of responding to you at all?

Actually, in the lamp case, if Mrs Conklin had condoned the party, then the mosher would NOT be liable… as Mrs Conklin had assumed the risk (unless they could be shown to have broken the lamp on purpose).

JL: “I do have the notion that when someone IS responsible for injuring another, he or she should ALWAYS pay.”

And in this case, the perrson responsibl is the person who ASSUMED THE RISK. That would be Mr. Harris.

Does one feel badly for his family? Yes. Would it be a nice gesture to offer to pay for his funeral? Well, yes, it would be nice. Would it be “right”? No – it would be a kindnss, something not required but nice to do.