“Will Sue For Food”, cont’d

Kentucky trial lawyers just won’t let up in their po-faced indignation about that innocuous cartoon in the state bar magazine (see Feb. 15 roundup). “‘The cartoon exhibits an indifference to the rights of all Kentuckians to access the justice system — the very system the KBA is charged with preserving on behalf of its members and their clients,’ Bowling Green lawyer Steve Downey, the immediate past president of the trial lawyer group, said in a letter to the bar association.” (Andrew Wolfson, “Trial lawyers find nothing funny in cartoon”, Louisville Courier-Journal, Feb. 19). David Lat covers the story (Feb. 20). What would have taken guts, I think, is for the Kentucky bar magazine to have run a cartoon making reference to the state’s deeply embarrassing fen-phen fee scandal. But let’s not hold our breath waiting for that.

Class action settlement: credit ratings in insurance

Allstate used applicants’ credit ratings as one piece of information in rate-setting, a baldly rational policy if you accept that credit ratings do on average help predict future consumer behavior. Lawyers sued claiming that the credit ratings were really an improper proxy for race, and a federal judge has now approved a class action settlement in which Allstate will revamp its policies and pay six named plaintiffs $5,000 each, minority policyholders will be free to seek refunds of $50 to $150 if they get around to it and can prove they qualify, and plaintiff’s lawyers will get $11.7 million. (“Judge Approves Settlement in Allstate Class-Action Suit”, AP/WOAI, Feb. 17).

Jury blames hit-run death on wheelchair curb cut

In 2001, when a CVS pharmacy opened on North Middletown Road in Pearl River, N.Y., Rockland County administrators approved a curb cut on the nearby sidewalk to facilitate wheelchair access from the road to the sidewalk. Three years later Stacey Gersten, 48, who had a “mild developmental disability”, tried to cross the road on foot at that point and was struck and killed by a hit-run driver, Duane Boos. In December a jury agreed to assign 65 percent of the blame for Gersten’s death to the county; it assigned 35 percent of the blame to Boos and none to Gersten. James Lynch, a Paramus, N.J. lawyer who represented the Gersten family, “said the jury agreed that the curb cut at the sidewalk outside the CVS was an ‘invitation’ for pedestrians to cross at a ‘dangerous spot’,” one with no crosswalk and no curb cut at the opposite side.

In short, it would seem that the county is liable because in its effort to help wheelchair users, it provided an inordinate temptation to jaywalkers. And as disabled advocates regularly point out, wheelchair users are not the only group that benefits from curb cuts. Bicyclists and scooter users, parents with strollers, the elderly with walkers, people using a dolly or cart to manage a load of goods — all may legitimately desire midblock access to a road without intending to cross to its other side.

Without visiting the actual site of the accident it’s hard to draw definitive conclusions. It would be a shame, however, if liability-averse road authorities drew the lesson that from now on it is going to be legally risky for them to install curb cuts anywhere other than at crosswalks. (Khurram Saeed, “Rockland hit-and-run victim’s family wins $1 million lawsuit”, White Plains (N.Y.) Journal-News, Dec. 22).

Major SCOTUS punitive damages ruling

Some initial thoughts on Philip Morris v. Williams from Jim Copland at Point of Law. By a 5-4 vote, in an opinion by Justice Breyer, the Court held that a punitive damage award cannot be based in part or whole on a jury’s desire to punish harms committed against non-parties to the litigation, although (a fine distinction, if indeed a tenable one) such harms may be taken into account in determining the defendant’s degree of reprehensibility.

More: Ted comments and rounds up links, also at PoL. Roger Parloff (Feb. 20) calls the majority’s distinction “narrow” and “confusing”. And Eric Turkewitz offers one view from the plaintiff’s side (“hair-splitting”; majority’s “Clintonian parsing…was too much for four of the justices”).

February 20 roundup

  • Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]
  • Crumb of approbation dept.: I’m “[not] as unreasonable as most of the tort-reform crowd” [Petit]
  • Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]
  • Homeowner’s insurance doesn’t cover homewrecking: umbrella policy doesn’t create duty to defend lawsuit claiming the insured broke up someone’s marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)
  • New York mag on RFK Jr.: Is there some law saying all press profiles of America’s Most Irresponsible Public Figure® must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?
  • Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]
  • High medical costs and their causes: am I listening? [Coyote]
  • Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it’s whatever Gov. Jim Doyle says it is [Krumm via Taranto]
  • Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it’s perfectly legal for athletes to appear in such [To The People]
  • Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]
  • Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]

Nancy Grace (& lawprofs) on the Duke case

K.C. Johnson has assembled the details (Feb. 19) on the CNN/Court TV commentator’s scurrilous handling of the lacrosse rape allegations. For more on Grace, see Mar. 1, 2006, as well as Legal Blog Watch, May 4, 2005, and Suz at Large, Mar. 2, 2006 (quoting Prof. Bainbridge’s pungent assessment).

The legal professoriate does not escape unscathed from Johnson’s attention, either. He is a particular critic (e.g., Jan. 21) of the televised pronouncements on the case of New England School of Law professor Wendy Murphy. And recent assertions by South Texas College of Law professor Kathleen A. Bergin on the Feminist Law Professors blog (Jan. 29, declaring the players “far from ‘innocent'” whether or not a rape is proven in court) fail to stand up to critical scrutiny, Johnson says (Feb. 18). (More: Cernovich).

P.S. And here’s the Saturday Night Live parody. Plus: Ambrogi, Bainbridge.