Tech Central Station runs a lengthy piece, with lots of links, on John Banzhaf’s contradictory claims in support of his fast food lawsuit crusade. (Sandy Szwarc, Oct. 10; see Sep. 23, Aug. 11, Aug. 6, Jul. 3, May 13, and many other entries in the archives; see also Tom Knott, “Fat-cat lawyers on attack against the Big Mac”, Washington Times, Oct. 1).
Posts Tagged ‘personal responsibility’
Mother leaves daughter unattended, collects $2 million
In 1992, Shelly Moore, against Texas law, left her infant daughter Shannon unattended in a car. “In a deposition in 1996, Moore acknowledged that she had been using a faulty lighter that at times continued to flame after she lighted a cigarette and had to be blown out. Several witnesses testified in depositions that Moore told them she thought she had lighted a cigarette as she left the car, then absent-mindedly tossed the lighter on the seat.” The car burst into flames, and Shannon was horrifically burned, eventually losing all of her fingers and her hearing.
Moore and her daughter moved to Johnson County, Texas, a notoriously plaintiff-friendly region, and Shannon sued…Philip Morris, who made the Marlboro 100s Shelly smoked. (Shannon named her mother as a codefendant; where one named plaintiff and one named defendant are citizens of the same state, a defendant is unable to remove the case to federal court on diversity jurisdictional grounds.) The claim was that a smoldering cigarette caused a fire, and Shannon’s injuries were the tobacco company’s fault for failing to design a cigarette that would not stop burning. Rather than risk putting the case in front of a jury that would be exposed to photos of Shannon’s terrible burns, Philip Morris settled for $2 million. Fifteen previous cases alleging product liability over cigarette fires had been dismissed before trial. (Myron Levin, “Tobacco Giant, in a Shift, Pays Victim”, L.A. Times, Oct. 2). More on case: J. R. Labbe, “Somebody has to pay”, Fort Worth Star-Telegram, Oct. 5.
U.K.: defending assumption of risk
There’s been much attention (and deservedly so) to the recent ruling of the Appellate Committee of the House of Lords in Tomlinson v. Congleton Borough Council (see Aug. 11), which vigorously and eloquently defended the principle of assumption of risk as a bulwark of “the liberty of the citizen” which helps prevent the imposition of “a grey and dull safety regime on everyone.” See, for example, Scott Norvell, “‘The Protection of the Foolhardy or Reckless Few’?”, TechCentralStation.com, Oct. 2. Now, in a case that arose on the Isle of Wight, “A judge has stripped a schoolboy of a ?4,250 damages award after his school argued that it would be ‘madness’ to compensate him for breaking his arm after falling off a swing as he played Superman during a sports day at Chillerton country primary school near Newport. … [O]verturning the ruling that the school was negligent, Mr Justice Gross said at London’s high court that if ‘word got out’ the boy had won his case ‘the probability is sports days and other pleasurable sporting events will simply not take place … Such events could easily become uninsurable, or at prohibitive cost.'” (Clare Dyer, The Guardian, Sept. 25; Chris Boffey, “Judge’s ruling ‘saves school sports days'”, Daily Telegraph, Sept. 25). See also articles by barrister Jon Holbrook in Spiked Online: “‘Duties of care’ to the careless and criminal” (Tony Martin case, etc.), Jul. 29; “The trouble with Making Amends” (medical malpractice law), Aug. 22; “Blind spot” (road accident caused by pedestrian), Sept. 23.
Judge: killer is 70% responsible for killing
“A federal judge ruled Friday that the manufacturer of an ankle monitor should pay $191,400 to the family of an Arlington woman killed in 1997 by an ex-boyfriend who cut off the transmitter 400 feet from her home without triggering an alarm. U.S. District Judge Terry Means held the manufacturer, Boulder, Colo.,-based B.I. Inc., 20 percent liable in Karen Sawyers’ death, but assigned 70 percent of the responsibility to gunman Joseph Whitlow, who committed suicide after killing Sawyers.” The judge, presiding over a bench trial, assigned 10 percent liability to the murder victim herself for her killing because she was drunk and had methampetamine in her system at the time of her death. A plaintiff’s attorney expressed disappointment that the manufacturer had not been held liable for a greater share of the blame. (“Ankle monitor’s maker held 20% responsible in killing” Fort Worth Star-Telegram, Sept. 26).
“Fireworks incident leads to lawsuit”
The mother of two Mississippi boys injured in a fireworks accident has sued the company that manufactured the shell. Straightforward enough: if a company holds a fireworks display, one normally expects it not to leave behind undetonated fireworks. The newspaper account, however, hides some critical details in the back of the story:
A report filed by Pascagoula police Sgt. George Tillman stated that he was told that LaBarron’s father, Gregory Powe, told them, “See if it will light.” [Nine-year-old] Kaine Price lit the powder with a lighter.
Tillman’s report said he also spoke to Powe about the incident. “(Powe) advised that he had seen that the boys had poured the stuff on the sea wall. He advised that he said, I wonder if that stuff will light,” according to the report.
Powe told Tillman that he didn’t realize his statement might prompt the boys to light the explosive material.
(Brad Crocker, Pascagoula Mississippi Press, Sep. 26). It’s one thing to hold a fireworks company responsible because unsupervised children injured themselves with their explosives–though one would expect children of a certain age to be well aware that they shouldn’t be playing with lighters. But shouldn’t some societal culpability rest with a parent present who not only failed to intervene to stop children playing with explosives and a lighter, but egged on reckless behavior?
Mississippi recently adopted reforms that limit the damages of a defendant that is less than 30% responsible to 50% of economic damages and the defendant’s share of non-economic damages. But many other states allow a defendant who was only partially responsible to be required to bear the full share of damages if the other tortfeasors are judgment-proof under the principle of “joint and several liability.”
Eatery asks for waiver
OK, it’s a PR gimmick. But after Professor Bernstein at the Volokh Conspiracy pointed it out, how could we not mention it? Seattle’s “5 Spot” restaurant offers a new $5.75 decadent dessert, but requires diners to sign a waiver before being served the fattening item. Telling remark: GWU Professor John Banzhaf, the target of the tongue-in-cheek red tape, told the Washington Post he wasn’t fazed by the loss of the McDonald’s suit (see Sep. 4) because “it takes time for legal theories to coalesce in a way that forces major societal change.” (Blaine Harden, Eatery Joins Battle With ‘The Bulge’, Washington Post, Sep. 20; “Seattle and the Bulge”, Seattle Weekly, Sep. 10-16; Sep. 5 press release).
Compulsive gamblers not faring well against casinos
Although hope springs eternal among some trial lawyers and foes of legalized gambling that casinos might be made legally responsible for the losses of problem gamblers they negligently failed to eject from their premises, courts are still unwilling to see it that way, with three cases early this year all resulting in strong pro-casino opinions. (I. Nelson Rose, “Compulsive Gamblers Lose Again, In Court”, Jun. 2). Among them was the widely publicized case (see Sept. 12, 2002) of David Williams, who sued the Aztar casino for failing to exclude him although it had reason to know he was violating an order to stay away. U.S. District Judge John Tinder wrote that the case was barred by applicable precedent and added: “Whether this case is viewed as a claim for just compensation… or an effort to hit the jackpot in litigation that he couldn’t achieve on the river boat casino… through this lawsuit and a plethora of federal and state law theories, Williams seeks a determination that the gambling industry owed him a duty to protect him from himself. Despite his counsel’s creative efforts, and regardless of Williams’ sympathetic plight, neither federal nor Indiana law provides him any refuge or reward.” (“Compulsive gambler loses lawsuit against Casino Aztar”, Louisville Courier-Journal, reprinted CasinoMan, Mar. 7; “Problem gambler asks court to reverse ruling”, Las Vegas Review-Journal, May 14).
McDonald’s case dismissed
Pelman v. McDonald’s, the original fast-food case (see July 25, 2002), has been dismissed, this time with prejudice. An earlier version of the complaint was dismissed with leave to file an amended version. (Jan. 23). (Reuters, Sep. 4). (via How Appealing) Update: Case reinstated, if only temporarily.
A streetcar named excessive
New Orleans: “The city’s public transit system should pay $51.4 million to the family of an 11-year-old girl whose arm was crushed beneath the wheels of a streetcar after she fell out of a window five years ago, a jury has decided.” A lawyer for the regional transit authority argued in vain that if the girl’s parents had been supervising her adequately she would not have fallen out of the streetcar window in the first place. (“Girl wins $51.4 million for streetcar accident”, AP/New Orleans Times-Picayune, Aug. 29). Ernest Svenson (Ernie the Attorney) writes to add that the printed edition of the newspaper contains the following passage, absent from the currently online version: “After the verdict was rendered a partylike atmosphere prevailed in the hallways outside Judge C. Hunter King’s courtroom, where jurors posed for photographs with [winning lawyer Johnnie] Cochran and the judge.” And he (Svenson) adds: “Which is nice, because that sort of thing is guaranteed to enhance public perception of our judicial system.” Addendum: the fuller version of the newspaper story is now online. Update Sept. 15: more about Judge King. Further update Oct. 25: Judge King removed from bench.
UK: “Ex-Pc wins ?87,000 for trauma”
If he wanted to avoid emotional trauma, maybe he chose the wrong line of work? From Glasgow, Scotland: “A former policeman who sued a widower because he experienced the trauma of seeing the man’s wife die in a crash with his speeding patrol car has won ?87,275 damages. George Gilfillan was awarded the money even though a judge ruled that he was driving ‘much too fast’ and said that he was 50 per cent to blame.” The court also awarded the widower ?16,000 in a counterclaim. (Tom Peterkin, Daily Telegraph, Aug. 13).