Maggie Rizer earned millions as a successful model, but lost it in defalcations by her stepfather John Breen, who held power of attorney over her bank accounts back in her hometown of Watertown, N.Y. Now she’s suing HSBC, the bank; among her claims is that Breen’s demeanor should have constituted adequate warning that his withdrawals were improper and not in her best interest. The bank’s attorneys, in their motion for dismissal of the claim, argue (among numerous other defenses) that: “HSBC has no duty to screen its customers for use (of) alcohol or any other substance. There is no law prohibiting banking while intoxicated or while using medication. To hold that such a duty exists would place an unreasonable, and illogical duty upon banks.” (“Banking While Intoxicated: No Such Law, Says HSBC In Response To Rizer Lawsuit”, WWTI (Watertown, N.Y.), Jul. 18). In other news of intoxication, Eric Laverriere has sued the Waltham, Mass. police department, which collared him while breaking up a New Year’s Eve party at a friend’s house, then took him into “protective custody” and a nine-hour lockup. His suit contends that he had not caused any public disturbance and that drinking in private falls constitutionally short of adequate grounds for arrest. (Shelley Murphy, “Lawsuit asserts right to get drunk on private property”, Boston Globe, Jul. 8). Wave Maker (Jul. 8) has more details.
Posts Tagged ‘Massachusetts’
Unsuccessfully sues fellow skier
“A federal jury found yesterday that Sarah Walker, an aspiring model and ski instructor, was mostly to blame for a skiing accident at Loon Mountain in Lincoln, N.H., and refused to award her any money for injuries she said had derailed her modeling career.” Walker had sued 16-year-old Megan Lowry of Boxford, Mass. for alleged negligence in a collision of the two on the slopes; she also named Lowry’s parents as defendants, but a judge threw out that part of the claim before trial. (Shelley Murphy, “Ski crash model’s own fault, jury finds”, Boston Globe, Jun. 30). Wave Maker comments.
“Court: Man Can’t Take Both Sides of Same Case”
Massachusetts’ highest court has rebuffed John Otis III of Scituate, who first won a largely uncollectable $6.5 million verdict from a drunk driver and then tried to get that victory overturned so as to extract money from others. Otis, a pedestrian, was hit by inebriated motorist Todd Cusick, whose insurance policy limits were only $50,000. Here’s what happened next, according to reporter Sue Reinert of the Quincy Patriot-Ledger:
In a complicated legal maneuver, Otis agreed to free Cusick from his liability. In return, Otis got authority to sue Cusick’s attorneys and his insurer, Arbella Mutual Insurance of Quincy, on Cusick’s behalf. Otis would collect any winnings from the suit.
In this second lawsuit, Otis contended that Cusick got a raw deal from his lawyers, who were hired by Arbella. Cusick would have won the lawsuit if his attorneys had done a good job, Otis argued.
To make his case, Otis’ attorney, Driscoll, had to present the exact opposite arguments that he had made in winning the $6.5 million judgement, yesterday’s ruling said. He even contended that some crucial facts were different, the decision written by Justice Martha Sosman said.
“In short, Otis’ position in the present suit is that he should not have recovered anything in the first suit,” Sosman wrote.
Otis’s downfall proved to be the doctrine of judicial estoppel, which per Wikipedia “precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings”, at least if the position proved successful in the first round. (Sue Reinert, Quincy Patriot-Ledger, Mar. 15)(via Common Good Society Watch). For a 2004 case in which Judge Edith Jones of the Fifth Circuit invoked judicial estoppel to stymie the attempt of a bankrupt debtor to pursue a personal injury case not disclosed during his Chapter 13 bankruptcy proceedings, see In re Superior Crewboats (PDF), summarized at the Louisiana blawg Naked Ownership (Jun. 21, 2004).
Negligent sex
Eugene Volokh and Christine Hurt (both May 17) analyze the Massachusetts case everyone is talking about, in which a man sued his girlfriend after suffering a particularly intimate (and awful-sounding) trauma in bed. The court decided that the standard for liability over sexually inflicted injury should be wantonness and recklessness, rather than mere lack of reasonable care.
“Skate park told comply or close”
A group of volunteer parents and teens built the Uncle Bud Skate Park in downtown Marshfield, Massachusetts over the last five years, but the state Office on Disability is threatening to order the park closed to the public because the park does not meet accessibility requirements. (The park does contain an ampitheater, so it’s not just an issue of accommodating disabled roller-bladers.) So far Public Works Superintendent R. Jeb DeLoach has responded in Harrison Bergeron fashion, by removing a bench and a portable toilet that was not handicapped accessible. (Needless to say, this does not make the park any friendlier to the handicapped, but rather makes it equally unfriendly to the non-disabled.) There’s still an issue because only one of the three entrances to the park is accessible; compliance costs for this and other violations will raise the cost of the park 25%. (Shamus McGillicuddy, Patriot-Ledger, Apr. 12) (via Newman, who asks, “[I]f you hated the handicapped and wanted to hatch a plot that would cause children and their families to resent them, could you really do better than this?”). For the tale of the wheelchair ramp in the mountains, see Jul. 9, 2003.
Patriot Ledger on Massachusetts malpractice
“We are seeing medical students today who are making their career decisions based on the risk of liability in that speciality,” says Dr. Alan C. Woodward, president of the Massachusetts Medical Society. (Sue Scheible, “Docs’ nightmare: Getting sued; Fear of malpractice can drive how treatment progresses”, Mar. 19).
Priceless pets, cont’d
Boston: “The family of Cassius, the dog killed by leaking electricity from an old NStar Electric lamppost site, said last night it had turned down $200,000 in ‘comfort money’ from NStar and is demanding $740,000 from the utility or it will sue. The family said it picked the dollar figure because it equals NStar chief executive Thomas J. May’s annual salary.” It’s so hard to be an ordinary family grieving for a lost pet — much fairer if we were an affluent family grieving for a lost pet (Peter J. Howe, “Dog’s family demands $740,000”, Boston Globe, Mar. 8). For earlier stories on pets’ sentimental value and the dollar figures attached thereto, see Jul. 30, Nov. 21 and Dec. 10, 2003, etc.
More: Robert Ambrogi (LawSites) thinks I should have included more details from the Globe story that tend to cast the DeVito family’s suit in a more sympathetic light, such as that (his words): “The family would donate most of the $750,000 to the Massachusetts Society for the Prevention of Cruelty to Animals and the Animal Rescue League.” My response:
I wonder how you reach the conclusion that the family “would donate most of the $750,000” ($740,000 per the Globe) to animal charities. At the press conference, according to the Globe, attorney John G. Swomley — who was at pains to portray the suit as not a money grab — said the family plans on “keeping $200,000, plus enough to pay for four years of college for Kyle and his brother Alec, 10”. At, say, Boston College (currently $37,413 room and board, and who knows how high the figure’ll be by the time the boys are grown?) that amounts to roughly another $300,000 ($37K x four years x 2 boys), leaving $240,000 of the settlement. And assuming Swomley takes, say, 30% of the $740,000 = $220,000 for his fee, that would leave a grand total of $20,000 to go to the animal charities — assuming there aren’t expenses and that sort of thing to be charged against the remainder.
You’re probably right that I should have expanded my three-sentence summary of the case at Overlawyered to delve further into these matters, since they afford valuable insight into how lawyers can manage the p.r. aspects of their cases.
Further: his response. (& letter to the editor, Mar. 15).
Lottery fine print
A judge has rejected a lawsuit by 94-year-old lottery winner Louise Outing of Everett, Mass., seeking to force the Massachusetts Lottery Commission to suspend its rule that lottery jackpots get paid out in installments over 20 years; she wanted it paid as a lump sum in view of her advanced age. The lottery’s executive director pointed out that the rule is printed on the back of all bet slips. A judge also noted that there are companies that will pay lottery winners a lump sum in exchange for the right to collect the twenty-year stream of payouts. (David Weber, “Judge nixes quick cash for elder lotto winner”, Boston Herald, Dec. 31; “Lottery winner, 94, loses in court”, AP/Boston Globe, Dec. 31; “Massachusetts Judge Denies Demand for Lump-Sum Lottery Prize Payment”, Dec. 30). The maxim Brian J. Noggle derives from the woman’s unsuccessful suit, in a post at his blog: “Rules are made to be litigated”. More lottery litigation: Mar. 26, 2004, May 20-21, 2002, and, a bit farther afield, Jun. 28, 2004.
Ted’s mythbusting at Point of Law
Maybe he’s too modest to mention it here, but over at our sister website, Ted has been on a roll with several devastating posts correcting fallacies that have circulated during the past week’s intense news coverage of liability reform:
* The George Soros-sponsored, David Brock-run media gadfly organization, Media Matters for America, recently criticized the Washington Post for running coverage that was not (to its taste) sufficiently critical of medical malpractice reform. Trouble is, as Ted shows, Media Matters itself blundered into whopping errors on the subject, badly misrepresenting the views of the Congressional Budget Office (CBO). “This is what MMFA gets for relying on ATLA fact sheets instead of primary sources.”
* Pointing to evidence that payouts by 98 Massachusetts doctors accounted for more than 13 percent of one year’s malpractice payouts in the state, the New York Times concluded that cracking down on bad doctors could greatly help the malpractice crisis. But the numbers announced in the study warrant no such conclusion;
* The Association of Trial Lawyers of America is out with a supposed fact sheet on medical malpractice, which (no surprise) Ted finds to be full of gross distortions. Equally embarrassing, he catches Illinois Democratic Congresswoman Jan Schakowsky posting on her official website a huge chunk of the lame ATLA argumentation, cut and pasted without acknowledgment of its interest-group origins. (Allen Adomite at Illinois Civil Justice League has more).
* Finally, Ted discovers the Alabama Trial Lawyers Association claiming that a profitable year in the property insurance business is reason to doubt that there’s a crisis in the liability insurance business.
“Judge to hubby: forget prenup, pay up”
Donna Austin, 37 at the time, signed a prenuptial agreement waiving alimony before marrying Craig Austin back in 1989, in what was a second marriage for both parties. Nonetheless, a Massachusetts appeals court has decided that her alimony waiver is “unreasonable” and will not be enforced. A lawyer for Craig Austin says his client plans appeal and says Donna Austin benefited substantially from the division of property assets from the marriage. (David Weber, Boston Herald, Dec. 30). And the New Jersey Supreme Court has been asked to decide whether Craig Caplan, who retired in his 30s with a so-called silver parachute, should be obliged to return to the work force to pay increased child support, thus sparing his ex-wife Sandra the need to dip into her $2.4 million divorce settlement; for more on the “imputed-income” doctrine, see Sept. 18, 2003 (Michael Booth, “In Divorce Case, Early Retiree Gets Tangled in Silver Parachute”, New Jersey Law Journal, Oct. 6).