“Choosing safety over tradition, legal fears over downhill thrills, some local governments, including [New Jersey’s] Camden and Gloucester Counties, have banned sledding in their parks.” Phillipsburg, N.J., in Warren County, has had a ban on its books for more than a decade but only began enforcing it recently following a $150,000 payout over a boy’s broken leg. “As a result, it was thought prudent by the insurance company to put signs up saying sleigh-riding is prohibited,” said town attorney Joel Kobert. “Nobody wants to deny a child the ability to play in the snow, but you sanction it in today’s world at substantial cost.” In Greenwich, Ct., which lost a $6 million lawsuit last year to a high-income resident injured while sledding, they haven’t banned the pastime, but that’s probably because the town is among the nation’s most affluent, and can afford to pay an insurance bill and deductible that nearly doubled after the sledding case and other courtroom losses. (Christine Schiavo, “Sledders are finding it tough to hit the slopes”, Philadelphia Inquirer, Jan. 26).
Suing booze makers
Poetry corner: Robert Burns
View unsuspecting Innocence a prey,
As guileful Fraud points out the erring way:
While subtle Litigation’s pliant tongue
The life-blood equal sucks of Right and Wrong.
(“On the Death of Robert Dundas, Esq., of Arniston, Late Lord President of the Court of Session”, reprinted in Harvard Classics, Bartleby.com). Matthew Arnold did not find the poem an impressive example of Burns’s art (scroll to #31).
Alleged spammer sues spam-complainer
“A man is being sued by a New Hampshire company for labeling it a spammer and reporting its actions to ISPs, after two years of allegedly receiving unsolicited emails from it. Atriks alleges that Jay Stuler caused financial damage to the firm, resulting in a number of lost contracts. The suit also says that Stuler made defamatory statements against the company, calling it ‘a notorious spam gang,’ and CEO Brian Haberstroh a ‘criminal,’ which the suit denies.” (“Company Sues over Spam Claims”, TheWhir/Article Central, Jan. 20; Jo Best, “Spammed man sued by alleged spammer wants cash”, Silicon.com/The Spam Report, Jan. 18)(via KipEsquire who got it from Privacy Spot).
LA commuter train derailment
At least eleven people were killed and over a hundred injured yesterday when a suicidal Juan Manuel Alvarez parked his Jeep on the train tracks, causing a collision that eventually derailed three trains. The lead train was being pushed, rather than pulled, by the locomotive, a common means to save time by permitting more trips to be taken. According to the LA Times, experts disagree whether this has safety implications. (Dan Weikel and Scott Glover. “Train’s Lineup May Have Added to Risk”, LA Times, Jan. 27). Realistically, at a minimum, this design probably makes some types of accidents worse, has no effect on some other types of accidents, and provides additional protection for still other kinds of accidents such as being rear-ended (as happened in a Long Island RR accident last year). But the conclusion that courts draw when reasonable people differ over the optimal train design is not that the commuter rail system acted reasonably, but that a jury of laypeople should resolve the debate by second-guessing whether they did so. So mark January 26, 2006, on your calendars, for you’ll surely see lawsuits seeking to hold Metrolink liable for the consequences of Alvarez’s deliberate actions, just as Santa Monica was sued one year after a driver plowed into the Farmers’ Market there (Jul. 14).
McDonald’s obesity suit back
The infamous McDonald’s obesity case (Sep. 4, 2003) was reinstated yesterday on the highly technical grounds that the lower court applied the Federal Rule 9(b) “heightened pleading” standard to the New York consumer fraud statutes instead of the more lenient Rule 8. The court cites no relevant precedent for this assertion, which contradicts the language of the rule. As Jim Copland notes on our sister site, the Second Circuit effectively ruled that it was interpreting the Federal Rules so that it would be nearly impossible to dismiss a New York consumer fraud case before giving the plaintiffs an opportunity to conduct discovery. The decision seems wrong (compare, e.g., Tuttle v. Lorillard Tobacco Company, 118 F. Supp. 2d 954 (D. Minn. 2000)), and its main effect will be to raise the cost of defending against meritless claims–which will encourage nuisance settlements, which in turn will encourage more meritless claims in the hopes of extorting such nuisance settlements. (Pelman v. McDonald’s (2d Cir. 2005).).
Iqbal Geoffrey lawsuit
In 1989, London’s Hayward Gallery organized an exhibit of Indian and Pakistani artists. Somehow, they lost or damaged 300 of Iqbal Geoffrey’s works, and Geoffrey says he only found out in 1993. Now, sixteen years later, he’s bringing a lawsuit, claiming that the loss was due to racism, and seeking 65 million pounds in damages. This is presumably meant to be a punitive amount, since his works are generally priced at 786 euros, and were likely insured for the 65,000 pounds the museum offered in compensation. Geoffrey is demanding polygraph tests of museum employees. (Jamie Doward, “Artist accuses top gallery of racial prejudice”, The Observer, Jan. 16).
The previous claim to fame of Geoffrey, a lawyer with an LLM from Harvard, was asking Pakistani courts to halt the Virginia execution of admitted murderer Mir Amail Kasi, who assassinated two people in a terrorist attack outside CIA headquarters in 1993. Geoffrey, who calls himself the world’s greatest living artist, is also apparently known in the Pakistani community as a frequent litigant, including a lawsuit for $800 million or so in rupees for a different perceived slight in 1998. (Khalid Hasan, “Sir Geoffrey the Great”, Friday Times, Jul. 19, 2002). Update Feb. 13: letter to the editor with response from Geoffrey.
Terrell Owens: And they say defensive medicine has no costs…
Philadelphia Eagles fans might be bigger supporters of tort reform now: a doctor has refused to clear star wide receiver Terrell Owens for play in Super Bowl XXXIX after an ankle sprain because of liability fears. (Mark Maske, “Hope Remains for Owens Comeback”, washingtonpost.com, Jan. 26).
Owens might have other reasons to seek tort reform. He’s being sued for $35 million by Formulated Sciences Inc. because he didn’t wear a t-shirt he supposedly agreed to wear in 1999. This might be because the non-FDA-regulated “nutritional supplements” he was supposed to endorse were banned by the NFL in 2001. Of course, perhaps Owens’ business representatives failed to account for such an eventuality in the endorsement agreement, in which case Owens may well be liable for a breach of contract, but alleging $35 million in damages for failing to wear a particular hat or t-shirt is ridiculous. The theory is apparently that there were millions of people clamoring to buy an ointment with Owens’ picture on it. If an athlete’s endorsement carried that kind of weight, athletes would be making much more money in endorsements. (Don Russell, “T.O. facing $35M suit from banned supplement company”, Philadelphia Daily News, Dec. 29). Formulated Sciences, which specializes in a weight-loss snake-oil with as much caffeine as a two-liter bottle of Coca-Cola, has also sued the NFL for supposed antitrust violations. The League has moved to dismiss the complaint. The lawsuit is meritless on its face, and, given the press releases, appears to be an attempt for FS to get free advertising for its products, but the NFL will likely spend at least tens of thousands of dollars defending itself.
In Texas
I’m off to Austin where I’ll take part in a panel discussion on asbestos reform tomorrow (Thurs.) at the Texas Public Policy Foundation’s third annual policy orientation for the state legislature, an event that I understand is sold out. Any posting before Friday will be from Ted.
“Mr. Litigious”
Litigation as hobby: “Meet Peter Malley, a former math teacher who has filed 18 federal lawsuits against the city after he was fired by the [New York City] Board of Education in 1987.” (Carl Campanile, “Courts $pank Frequent Filer”, New York Post, Jan. 24).