Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘personal responsibility’

Mold repercussions

A Massachusetts woman has won over $500,000 because of a mold infestation of her $75,000 condo. (Thomas Grillo, “After 8 years, a milestone in battle over mold”, Boston Globe, Nov. 25). After thousands of years of humanity coexisting relatively peacefully with mold, how unfortunate must we be to live in the twenty-first century, when plaintiffs’ lawyers have discovered the terrible health effects! The Globe, while paying lip service to a quote that there’s no scientific evidence of generalized health problems from mold, then proceeds to identify stachybotrys as “toxic mold,” and uncritically repeats a claim (rejected by a court that otherwise awarded millions in the same case) that such mold has caused brain damage. The UPI does better, even noting that the wide array of health claims made with respect to mold suggest that there isn’t one cause for all of these problems. (K. L. Capozza, “Mold: Unsightly but not deadly”, Sep. 2).

But who has an economic incentive to point out that bleach is the solution to mold when compared to the money that can be made by positing the opposite hypothesis? (Highlight of this site: claiming that a brochure asking if “toxic black mold” is the “Millennium’s Silent Killer” is “NOT intended to scare you“.)

According to an economist quoted in the Boston Globe story, fear of mold litigation has caused insurance companies, when confronted with a potential claim, to immediately move a family into a hotel and perform testing. Unsurprisingly, the resulting payouts and expenses are causing costs to rise for construction and homeowners’ insurance. (Mark Hornbeck et al., “Sting of high insurance spurs probe”, Detroit News, Dec. 3; Scott Wyland, “Insurance premiums hammer construction”, The Olympian, Nov. 23). More: May 26, 2004.

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Mississippi YMCA drowning case settles

A televised lawsuit against a Mississippi YMCA and a host of other defendants completed settlement late last week. (Terms of the settlement, no doubt motivated in part by the threat of a request for punitive damages, were not disclosed, but the lead plaintiffs’ lawyer, Dennis Sweet (see May 7 and Oct. 25, 2000), implied the total was almost $10 million.) The plaintiffs did not just sue the YMCA over their son’s drowning, but also sued a local television station’s charitable foundation because it had provided funding for the YMCA’s swimming program–which no doubt explains why the press coverage was more skeptical than it usually is when plaintiffs go after deep pockets.

Monte Barton, who represents the Y.M.C.A., says, “The Y.M.C.A. relies on [its] donors and volunteers. If they get scared away, because of the threat of lawsuits, it will definitely [affect] not only the Y.M.C.A., but other organizations like that.”

Charlene Priester, who represents the TV-3 Foundation, says, “That may indeed be something that is discussed in board rooms of charities throughout Jackson, the state and the nation since it was broadcast all over the country.”

Priester represents the TV-3 Foundation, the separate non-profit organization that helps the community. It is also out of the lawsuit now. But Priester says she’s still troubled by it.

Priester says, “Once someone has been sued in this type of lawsuit, it will always make you wonder before you do something to help. Do you subject yourself to this type of litigation?”

That’s why Priester says there needs to be some self-examination in the legal system.

Priester says, “This case might have been the poster child for tort reform…when you start suing charitable organizations when you know all they did is donate money and volunteers.”

(Dawn Russell, “Drowning Suit Draws Community Concern”, WLBT, Nov. 13; “Final defendant settles lawsuit over Jackson YMCA drowning”, AP, Nov. 15; Jimmie E. Gates, “Lawsuit over drowning settled”, Mississippi Clarion-Ledger, Nov. 15; “Three defendants agree to settle lawsuit over Jackson YMCA drowning”, AP, Nov. 14; Joanna Gaitanoglou, “All but One Defendant Dropped from Drowning Suit”, WLBT, Nov. 13; Rochelle Steinhaus, “Most parties in drowning suit settle, but trial goes on”, CourtTV, Nov. 13; complaint).

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Dr. Phil Sued

A scheduled guest on the Dr. Phil show had a panic attack before she was set to appear. (The guest, former Playboy Club waitress “Bambi” Bembenek, was going to proclaim her innocence of murder charges to which she had previously pled no contest.) So she decided to tie bedsheets together to escape the second-floor apartment where she was staying. And she fell, and broke her leg. Which was amputated as a result. If you’ve been reading this website any length of time, you know what happened next. (“Ex-cop blames ‘Dr. Phil’ show for injuries that led to amputation”, AP, Nov. 11; press release; see also Jessica McBride, “Bembenek judge calls case a ‘circus'”, Milwaukee Journal-Sentinel, Oct. 24; “Bembenek Hurts Foot Trying To Escape Hotel Room”, Channel4000.com, Nov. 17, 2002). (via SoCalLawBlog)

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Homeowner not liable for garden-wall crash

Speeding through a residential neighborhood, Ross Duran “failed to stop at a dead-end, crashing his car through a cinder block wall and slamming into a flowerbed in Joseph Volpe’s back yard.” And then one of Duran’s passengers sued — who? She sued “[homeowner] Volpe and Pardee Construction Co. of Nevada claiming their negligence was at least partially to blame because of the location of the flowerbed behind the wall in Volpe’s back yard.” The case went all the way to the Nevada Supreme Court, which rejected her lawsuit, saying it would be an “undue burden” on residential property owners to make their yards crashworthy.
(“Nevada Supreme Court rejects lawsuit against homeowner”, Las Vegas Sun, Nov. 6) (via Lori Patel, “Today’s Brief”, Law.com, Nov. 7)

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Latest you-didn’t-throw-me-out gamblers’ suit

“Two problem gamblers have filed a potential class-action lawsuit alleging that Detroit’s three casinos have failed to enforce a state program designed to permanently bar gambling addicts from their properties. … Virginia Ormanian of Wyandotte and Norma Astourian of Taylor asked to be barred from the casinos in the summer of 2002. But they couldn’t stay away.” They are now suing the establishments for not doing enough to enforce the program, under which “gamblers who sign up for the program and return to the casino are subject to up to a year in prison, a fine of up to $1,000 or both.” (Becky Yerak and Kim Kozlowski, “Gamblers sue Detroit casinos for not barring them”, Detroit News, Nov. 5). For earlier you-didn’t-exclude-us cases, see Sept. 7, Aug. 1 (Canada).

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Update: two personal-responsibility cases

Updating a case covered on Mar. 28, 2000: a Texas court of appeals earlier this year reversed an award of $43 million (voted as $65 million by the jury, then reduced by the trial judge) against Honda to the survivors of a woman who accidentally rolled her car off a boat ramp into Galveston Bay and at autopsy was found to have .17 alcohol in her bloodstream. Her survivors argued that she was trapped in the sinking car by her seat belt, but the appeals court said they had not shown that any alternative belt design would have been any safer overall. Incidentally, this particular Galveston boozy pier roll-off award is guaranteed to be a different case entirely from the Galveston boozy pier roll-off award discussed in this space Aug. 28, in which the city of Galveston and its pier lessee were supposedly the ones to blame, the verdict came in at $10.5 million, and an appeals court again threw it out (Mary Alice Robbins, “Texas Court Reverses $43M Judgment Against Automaker”, Texas Lawyer, Feb. 19).

In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state’s highest court in which he had argued that his girlfriend’s grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, “Open and Obvious Danger Doctrine Reaffirmed”, Winter 2001; for details of case see also Cathleen F. Crowley, “Court decision could impact pool owners”, Lawrence Eagle Tribune, Jan. 4, 2000).

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Bill Shoemaker, 72

Legendary record-setting jockey Bill Shoemaker died today at the age of 72. The New York Times obituary (Joseph Durso, “Bill Shoemaker, Jockey With Winning Touch, Dies at 72”, Oct. 12) only lightly touches on one of the less admirable incidents of Shoemaker’s life. Shoemaker was driving after a couple of beers–enough to make the 98-pounder legally drunk according to a blood test. When he reached for his car phone, he lost control of his vehicle, and crashed down a steep embankment, paralyzing him beneath the armpits. Shoemaker sued the auto manufacturer, the state of California (for failing to install guardrails on a straight road), and the seven doctors who saved his life–a decision he said he regretted in a 1999 interview: “Shoemaker says he always has felt solely responsible for the accident. ‘I’ve never asked, “Why me?” because it was my own fault. I did it. I can’t blame anybody else. I was at that point at the beginning.’ He now expresses regret over the suits, saying he only followed his attorney’s advice.” (Nancy Kruh, “Legendary Shoemaker has made peace with his new ride”, Dallas Morning News, June 25, 1999).

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Suing NFL over fan’s DWI

A fan downed 14 beers at a New York Giants game and drove off, causing a crash that left a child paralyzed. Now the family’s lawyers want the league to pay. “I understand they are searching for a deep pocket,” said Rutgers law prof Howard Latin. “But at a certain point, people have to be responsible for their own behavior.” (Peter Pochna, “Family sues NFL for fan’s DWI that left child paralyzed”, NorthJersey.com, Oct. 10)(reg) (& see “Sports Betting: The National Football League Versus the Trial Lawyers” (commentary), Center for Individual Freedom, Oct. 16). Update Jan. 21, 2005: jury returns $105 million award against beer concessionaire Aramark after dismissal of claims against team and league.

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