Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘personal responsibility’

Six months ago on Overlawyered…

…we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response “in the next week”, though, 26 weeks later, we haven’t seen it.)

Now, Hawaii is considering legislation similar to California’s that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it’s not clear to me that it would apply to unarmed burglary, which seems to only be a “Class C” felony in Hawaii.

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California wants to be your parent

If there’s a backlash underway against paternalism, you’d never know it from the crowded agenda of “nanny bills” under consideration in Sacramento, which include a ban on smoking in cars with kids present and proposed restrictions on keeping unspayed cats or dogs as pets. (Nancy Vogel, “Big mother is watching with new laws in mind”, Los Angeles Times, Mar. 8).

P.S. Regarding an Illinois version of the cigarettes-in-cars idea, Jacob Sullum has the good headline: “I Do Miss Mom, but At Least the Car is Smoke Free”.

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Chutzpah, railroad edition

In 2004, Phillip Waisonovitz accidentally killed his co-worker, Robert Ard, by backing over him with a train. Ard’s family sued, claiming negligent supervision, and just won $4.3 million from the employer, Metro-North Railroad. So that settles that, right? Close, but not quite. As the Associated Press explains:

Phillip Waisonovitz, the engineer who backed up the engine, became distraught after learning it had struck Ard.

(I’ll wager Ard wasn’t thrilled, either!)

He has been out of work on disability since then with a diagnosis of post-traumatic stress disorder.

Waisonovitz has filed suit against the railroad company and Ard’s estate. That case is pending.

In case you think you misread that, I’ll explain it again: Waisonovitz killed Ard, and is suing Ard for the mental anguish Ard’s death caused him. The nerve of Ard!

In case you were wondering, workers comp laws generally don’t apply to railroads.

[CORRECTION: As can be seen in the comments, there’s an important correction to this story. The media report I relied upon got the story wrong; Waisonovitz did not sue Ard. Waisonovitz only sued Metro-North; it was the railroad that brought Ard into the case.

This hardly makes Mr. Waisonovitz a poster child for personal responsibility; his lawsuit still boils down to him suing the railroad because he feels bad that he ran someone over. But he isn’t suing the direct victim.]

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Ken Sah, spelling bee father

A number of newspapers have picked up the tale of Kunal Sah, who will be competing in his second consecutive national spelling bee this year. His parents were recently deported after sixteen years of living in the States, and some bloggers have noted the irony: here’s a successful immigrant who owned a business and raised a successful son, and they’re being deported because of “tough U.S. immigration regulations in the post-9/11 atmosphere.”

Except the deported parents are not anywhere near as sympathetic as the press coverage makes them out to be. Kanhai Lal “Ken” Sah came to the United States in 1990, and, as his visa expired in 1991, applied for political asylum, and managed to keep his case alive for fifteen years. His son Kunal was born during that time, and got American citizenship as a result, and remains in the country. But the parents’ asylum application was denied, and they were deported

Sah’s asylum claim? He feared Muslim persecution in his home country. That might engender sympathy—until one realizes that his home country is India, which has 800 million fellow Hindus for Sah to live amongst. And that Sah’s basis for fearing persecution was because, as a member of the radical Hindu nationalist organization Vishwa Hindu Parishad, he “took a very active part in organizing and conducting [anti-mosque] meeting[s]” and that he “actively participated in the riots to [attempt to] demolish the Babri Mosque.” (Vishwa eventually succeeded in destroying the mosque in 1992, causing religious riots that killed 900 people.)

The Sahs are now engaging in a public relations campaign for citizenship on the basis of the hardship created by the fifteen years they spent in the country churning the bogus asylum application. None of the press coverage mentions Ken Sah’s role in his asylum denial as a radical Hindu. Don’t believe the hype. (Sah v. Gonzales (10th Cir. 2005)). (And welcome Malkin readers.)

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Drinking and eating can kill a friendship

So here’s a quiz to see whether you have what it takes to be a trial lawyer: Man walks into a bar, has some drinks, rides over to a diner with his friend. At the diner, the man orders a sandwich, chokes on it, and dies. So the question is, who do you sue?

(A) You don’t. It’s nobody’s fault; it was just a tragic accident. If anybody is to blame, it’s the man who got drunk and then carelessly choked.
(B) The diner, for serving the sandwich.
(C) The friend, for driving the man to the diner.
(D) The bar, for serving him alcohol; if he hadn’t been drunk, he might not have choked.

If you answered (A), you’re new here, aren’t you? If you answered (B), (C), or (D), well, you’re getting warmer, but you’re not quite there. As every real trial lawyer knows, the answer is (E) The diner, the friend, and the bar.

In 1991, a man from upstate New York named Thomas Filiberto had some drinks at a bar Tavern, and then was driven over to a diner by his friend, who also happened to be the bartender. Filiberto ordered a hot roast beef sandwich, choked, and died, despite the attempt of other diner patrons to save him. His family sued everybody “involved” — and I use the term loosely. The bar, the bartender/friend, and the diner.

Read On…

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Warning: “Contains nuts”

Apropos of Walter’s post about silly warning labels, such as “contains nuts” on a can of nuts, I figure we ought to slap the same warning label on the state legislature here in New Jersey.

For instance, the New Jersey Law Journal reports that a state Senate committee unanimously approved a bill this week that would require warning labels on… internet dating sites. The bill first requires that the site inform members “in bold, capital letters in at least 12-point type” whether or not it has conducted a criminal background check on its members. And if it does conduct criminal background checks, it then has to disclose that there’s no real point to conducting criminal background checks:

[The service] shall state that criminal background screenings are not foolproof; that they may give members a false sense of security; that they are not a perfect safety solution; that criminals may circumvent even the most sophisticated search technology; that not all criminal records are public in all states and not all databases are up to date; that only publicly available convictions are included in the screening; and that screenings do not cover other types of convictions or arrests or any convictions from foreign countries.

(How many people do you think are going to read through that verbal thicket of disclaimers?) But wait, that’s not all. The Senate had some extra free time, so it piled on the list of warning labels required:

Read On…

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Blue-ribbon excuses: crematory abuse blamed on mercury

“The lawyer for a former crematory operator said he believes mercury exposure led his client to leave 334 bodies to rot in piles across his property. A prosecutor disputed the theory, saying the lawyer was trying to win parole for Ray Brent Marsh, who admitted dumping the bodies and passing off cement dust as their ashes.” (“Georgia crematory crimes blamed on mercury”, AP/CNN, Feb. 7) (via Lat)(more blue-ribbon excuses).

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Litigious Princetonians

One of my favorite pop-culture bloggers, fellow Chicago Law graduate Adam Bonin, spots a line in today’s New York Times Vows column—

As their dating progressed, Ms. Wu researched Mr. Nobay online and learned that in 1998 he sued Princeton, unsuccessfully, for defamation after the university notified medical schools he had applied to that his applications contained misrepresentations and altered his academic record. (In court, he admitted misstatements but says he still believes some of what Princeton presented was inaccurate.)

—that obviously merited further investigation. Sure enough, AP reported in 1998:

The graduate, Rommel Nobay, had admitted he told numerous lies and half-truths in applying to Princeton and later to medical school. He claimed that he was part black and a National Merit Scholar and that a family of lepers had donated half their beggings to support his dream. … Nobay, 30, a computer science teacher from New Haven, admitted that he was not, in fact, a Merit Scholar and that a family of lepers had not helped send him to school. He also acknowledged that he doesn’t know whether he has any black blood.

Bonin notes an early 1990s suit by Princeton student Bruce L. Miller, who received $5.7 million after getting himself drunk and losing three limbs in a climb-a-train-plus-touch-high-voltage-wires-electrocution accident. (Regular Overlawyered readers know that this sort of suit doesn’t require a Princeton education.) But Bonin forgets to mention the drink-and-fall-off-the-Princeton-bell-tower lawsuit.

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Blame the messenger: Overstock’s $3.5 billion suit

With EPS of negative $3.14, Overstock.com CEO Patrick Byrne is regularly named as one of the worst CEO’s; as MarketWatch’s Herb Greenberg writes, “Byrne has done an atrocious job, proving himself inept at running a public company. And while his idea for Overstock is intriguing, his execution has been a failure, especially relative to what he led shareholders to expect. Worse, he has spent shareholder time and money using innuendo and lies to create a conspiracy theory that includes journalists (including yours truly), regulators, politicians and others as his company’s performance plummeted.” Overstock, apparently unable to make money through its business plan, has a new business plan: sue investment banks for $3.5 billion in California state court, blaming them for the 77% decline in stock price. The suit alleges shenanigans on controversial practices of naked short selling, but the economic theory of price manipulation and damages is simply bogus: if the perpetually-money-losing Overstock were really worth billions more, investors would have every incentive to squeeze the short-sellers, who don’t have the market power to manipulate the price. Forbes writes a sympathetic and unskeptical account of the lawsuit.

Disclosure: I lost an embarrassing amount of money investing in Overstock in 2006 by failing to sell it immediately when Byrne started blaming the company’s problems on short-sellers.

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