- Litigants’ “not about the money” assertions: Mark Obbie has further thoughts on reporters’ uncritical deployment of this cliche, and kind words for our archive of posts on the subject [LawBeat]
- Lawyer on the other side of that much-circulated “I’m sorry” deposition-dispute letter has his say [Markland and Hanley via Turkewitz and Above the Law]
- Local authority in England tells gardener to remove barbed wire from wall surrounding his allotment, thieves might get hurt on it and sue [Never Yet Melted, Steyn/NRO Corner]
- Same-sex marriage in Connecticut through judicial fiat? Jonathan Rauch says no thanks [IGF]
- Lawyers are back suing despite reform of FACTA, the credit-card-receipt “gotcha” law, but insurance might just dry up [Randy Maniloff at Point of Law]
- “Racing to the trough” — auto lenders latest to ask bailout though original TARP rationale of liquidity fix seems remote [Naked Capitalism]
- “To be a green-certified property (pretty important in crunchy Portland) there must be an absolute prohibition on smoking, including outdoor spaces.” [Katherine Mangu-Ward, Reason “Hit and Run”]
- (Failed) claim in trademark case: “the term ‘electric’ is not commonly used by the general public to describe a source of power for watches” [TTAB via Ron Coleman]
Posts Tagged ‘assumption of risk’
U.K.: Footballer sues over “negligent” tackle
It’s “like a climber suing a mountain”, writes Rod Liddle of the U.K. case of Manchester United trainee Ben Collett, awarded £4.5 million for the injury. (“Footballer” does not signify American football, but soccer). (The Spectator, Aug. 13; Times Online, Telegraph).
Kernel of sense
New York City: Judge Matthew Cooper has dismissed a suit for dental repairs by a moviegoer who said he broke his tooth on an unpopped kernel of popcorn at Manhattan’s AMC-Lincoln Square Cinema, ruling that plaintiff Steve Kaplan “could not reasonably expect every kernel to be popped”. (“N.Y. Judge: Broken-Tooth Popcorn Suit’s a Dud”, AP/1010 WINS, Sept. 29).
More: “Anyone who has ever made fresh popcorn … soon learns the bitter truth that the final product is almost always marred by the presence of unpopped, partially popped or burnt kernels,” wrote Judge Cooper. “Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process.” The judge suggested that the dentally risk-averse consumer stick to Raisinets or Milk Duds in future, although, he conceded, Milk Duds do have a reputation for pulling out your fillings. (NYLJ).
Jockey sues track owner over fall
Maryland jockey Christopher Martin was thrown from his horse during a 2005 race and filed suit three years later claiming permanent disability, contending “the irregular shape and poor maintenance of the racetrack caused his thoroughbred, ‘Miner Distraction,’ to collide with another horse and stumble.” (Bill Childs, TortsProf, Sept. 15).
Overlawyered – All Horse Edition
The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit. Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities. She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.
Does the host’s behavior rise to the level of negligence? And, if so how is the woman’s negligence less than his? He may have offered the alcohol; she drank it. He may have offered the horseback ride; she accepted. Have we reached the point in America that we need to have party goers sign waivers for private festivities? But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone. A lot of fun that will be. (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).
Horse example number 2: Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans. And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals. It’s not as if Clemens is practicing pediatric anesthesiology for kicks. So who cares, really?
I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).
Asbestos litigation: foundations
Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.
Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.
Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.
The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.
Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”
In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”
Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…
Jello wrestling and assumption of risk
NYU student Avram Wisnia was “horsing around a kiddie pool filled with gelatin” at a dorm party in 2004 when he was pushed and broke his hip. A judge has now ruled he cannot sue the university for allowing the event and having the school food service furnish the gelatin, the risks of such a recreation being obvious enough to put him on notice. (“No Go In Jell-o Wrestling Lawsuit Against NYU”, AP/WNBC, Jan. 29).
Contracts no good in Utah: Rothstein v. Snowbird Corp.
In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.
Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.
“Making Civil Justice Sane”
In the Manhattan Institute’s City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a “compensation culture” has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).
“The timorous may stay at home”
John Caher in the New York Law Journal discusses the views of Benjamin Cardozo on assumption of risk:
Assumption of risk in cases arising from athletic or recreational activities is a principle that has been part of New York law at least since 1929, when in Murphy v. Steeplechase Amusement Co., 250 NY 479, Chief Judge Benjamin N. Cardozo said that one who “takes part in … sport accepts the dangers that inhere in it so far as they are obvious and necessary.” That case involved a plaintiff who fell from an amusement park ride called “The Flopper” and suffered a leg injury.
“Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall,” Cardozo wrote in reversing the Appellate Division, 1st Department. “Many a skater or a horseman can rehearse a tale of equal woe… . One might as well say that a skating rink should be abandoned because skaters sometimes fall.” He added: “The timorous may stay at home.”
(“Panel Rules Hurt Olympic Skater Assumed ‘Inherent Risk’ of Sport”, May 1). Declarations and Exclusions (Apr. 7) and Rick Karcher (May 22) have more on some recent assumption-of-risk cases in California, including a 6-1 decision by the state’s high court ruling that a college baseball player could not sue over a “bean ball”. See Mike McKee, “Calif. Supreme Court: Ballplayer Can’t Sue for Bean Ball”, The Recorder, Apr. 10.