Recently in Personal Responsibility Category

A New York woman who took her family to visit the Maritime Aquarium has filed a $100 claim against the city, saying her child's shoes, along with the entire outing, were ruined when her 1-year-old stepped in dog feces early last month outside the Maritime Garage.

Norwalk officials will deny the claim, city attorney M. Jeffry Spahr said.

"The official response is her claim is denied and poop happens," he said.

The claim by Mahopac, N.Y., resident, Kelly DeBrocky was filed with the city clerk on April 7. It came across Spahr's desk yesterday.

...

Spahr said he has seen some frivolous claims, but the feces claim reeks.

"Some wacky stuff comes across. I don't know if people are more litigious. My opinion is two things are at play. No. 1, people are resistant to taking responsibility for their own actions and No. 2, they feel there always has to be somebody to blame," he said.

Other claims without merit, Spahr said, include a boater who blamed the city after his boat, docked at the city marina, filled up with water in a heavy rainstorm and sank, and parents who hold the city responsible when their children fall and injure themselves on playground monkey bars.

Spahr also cited a suit by boxer Travis Simms two days before he won the super-welterweight title in January 2007.

Simms said that a 2005 injury he suffered during a basketball game at Benjamin Franklin School due to city negligence sidelined his boxing career for two years.

The city is waiting to see whether Simms will drop the case amicably.

Spahr said that long after that is resolved, lawyers in his office will still be talking about the feces claim.

"That's kind of way up there in a take-the-cake kind of thing," he said.

The mother claims she had to discard her toddler's clothes and shoes and return home after the incident, and wants reimbursement. Spahr's response: "I'm also having a tough time picturing why (the child) had to be bathed after stepping in this unless he thought it was some kind of poop sandbox." (Alexandra Fenwick, "City: Mom's claim stinks", Stamford Advocate, May 8 (via Romenesko)).

In October 2006, we reported on a $20 million jackpot justice verdict:

Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley's insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn't pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate's claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields's claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.

The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted "with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will." A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn't allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn't suing his attorney.

Today, the Court of Appeals of Indiana reversed.

In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What's Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).

Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not "legal error" to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys' incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.

That's Carter Wood's hard-to-improve-on headline over an item on how two youths involved on the perpetrator side of a sensationally vicious attack onboard a Maryland bus are now suing over being barred from the bus system. ("Teen 'Ringleader' In Bus Beating Sentenced To Juvy Jail; Boys To Sue MTA, Schools", WBAL, Apr. 24; Point of Law, Apr. 24; Jeff Quinton, Inside Charm City, Apr. 23; Malkin, Apr. 23).

"A negligence claim against the Marriott Marquis by a New Year's Eve reveler who was injured in an automobile accident after being evicted from the Times Square hotel has been dismissed by a federal judge in Albany. ... [After being told to leave the hotel, Jeffrey Dagen] retrieved his pickup truck and headed for his home in the Albany area. Three hours later, after driving about 90 miles north on the Taconic Parkway without stopping to rest or seek lodging, Dagen decided to exit for gas. As he did so, his truck skidded off the exit ramp and hit a tree. He sued the hotel for $750,000, claiming it was responsible for his injuries, which included a shattered leg and damage to his chest. In his complaint, Dagen alleged that he had told hotel officials that he had nowhere to go, was too tired to drive home and had been drinking." A state trooper's report indicated that Dagen had been speeding on the Taconic and had tried to exit too fast given wet road conditions. (Daniel Wise, "Eviction From Hotel Found Not Cause of New Year's Accident", New York Law Journal, Apr. 22).

I was a guest on the Houston radio station this morning discussing personal responsibility and our propensity to litigate. A few recent cases possibly on point: "Inmate Sues Jail, Blames It for His Escapes"; five of her friends as well as the inevitable bar sued after college student's fatal alcohol binge; and lawyer gambles away client money at the tables, then sues casinos for not stopping her. (Corrected original post title which got the call letters wrong).

As we reported in 2005:

On December 22, 2000, 15-year-old Michael Foradori Jr. walked into a Captain D's seafood restaurant in Tupelo, Mississippi for dinner; while there, he started flirting with the girlfriend of one of the employees, which resulted in a shouting match. "'This (employee) was kind of picking on him, he started threatening him, he even hit him with a wadded up paper,' said Joey Langston, Foradori's attorney." (More on Langston at Point of Law, May 13.) A manager restored order by kicking everyone out of the restaurant; outside, a cook who clocked out for the evening got into an altercation with Foradori, and pushed him over a wall, breaking his neck and paralyzing him.

Langston has since pled guilty to bribing a state judge in a different case; he'll have some money to comfort him when he leaves prison, as he obtained a $20.8 million verdict in the Foradori case on the theory that, if only the restaurant had better trained its cook not to sucker-punch customers half his size, Foradori wouldn't have been paralyzed, presumably because the threat of being fired from a minimum-wage job would've done what criminal sanctions would not. (Captain D's didn't fire the cook, Garious Harris. It is unknown whether fear of race discrimination suits had anything to do with that. Captain D's appears to have also suffered from some questionable tactical choices by their attorneys.) The Fifth Circuit has affirmed the verdict, its hands tied to some extent by ludicrous Mississippi state law and Erie. Folo commenters speculate on the means of Langston's success.

We hadn't previously mentioned that the parties also sued the contractor who built the wall.

On September 3, 2003, 19-year-old Frederick Nesbitt was underaged at "Wing Night" at the C View Inn in Cape May, New Jersey, so the waitress at the bar only served him soda while his companions drank pitchers of beer. (His 21-year-old companion James Hamby had a suspended license for drunk driving.) But Nesbitt had been drinking rum and drinking beer with the others before they got to the bar; and Hamby spiked Nesbitt's drinks with rum under the table at the bar, which was presumably busy serving sixty other people and didn't notice. So Nesbitt had a 0.199 blood-alcohol level when, speeding, he "lost control [of his car], careening back and forth across the road before striking a guard rail and landing on the driver's side. He was thrown out the rear window while Hamby, who was found in the car, was pronounced dead at the scene." Nesbitt is serving a five-year prison term for vehicular homicide, but Hamby's estate is suing the bar. (It settled with Nesbitt for his $50,000 insurance coverage.)

The lower court threw out the case since the bar didn't serve Nesbitt any alcohol, but a New Jersey appellate court ruled that the bar has a duty to arrange transportation for anyone who walks in who appears to be drunk "regardless of whether Nesbitt's intoxication resulted from the service of alcohol by the inn or from other causes" (notwithstanding the absence of such a cause of action under the dramshop statute) so the bar will now have to hope the jury credits the witnesses who say that Nesbitt didn't appear drunk. (Mary Pat Gallagher, "N.J. Court: Bar May Be Liable for Fatal Crash Even if It Didn't Serve Patron Alcohol", NJ Law J, Mar. 24; Tom Hester & Abby Green, "Court adds to taverns' duty toward safe driving", Newark Star-Ledger, Mar. 21; Insurance Journal, Mar. 21; AP, Mar. 20; NJLawman.com message board).

If your drinks appear more expensive in New Jersey, it's because you're paying for insurance for drunk drivers who might stop at the bar to use the restroom. Of course, why stop at bars? Why not convenience stores?

By reader acclaim: Arelia Margarita Taveras, once hailed as an up-and-coming lawyer and media commentator who represented 9/11 and air crash victims, says her gambling addiction lost her nearly $1 million; she has admitted dipping into client funds and was disbarred last June. Now she's suing six Atlantic City casinos and one in Las Vegas for $20 million, saying they had a duty to stop her as it became clear her gambling was out of control. Taveras's law practice at one point brought her $500,000 annually, and she appeared on TV and radio shows to discuss legal issues. ("Compulsive Gambler Files $20M Suit Against Casinos", AP/CBS13.com, Mar. 8; Christina Boyle, "Scamming lawyer for 9/11 victims sues casinos for her gambling addiction", New York Daily News, Mar. 8). More: New York Post, Associated Content.

Paul O'Brien of Leeds, Great Britain, says the Royal Mail letterbox in his house is just like every other one in the development and that mail carriers have had no problem using it. Still, he's being sued by cake decorator Joy Goodman, who says her finger was badly hurt when the thing snapped as she was pushing a leaflet, less charitably termed junk mail, through it; she can no longer pursue her trade. Says O'Brien: "I just cannot believe someone who came on to my property uninvited, to put junk mail through my door that I didn't want, can now sue me because she hurt herself. ... It seems like we're becoming more and more like America. Everyone wants compensation." ("Homeowner sued after woman delivering junk mail claims she injured her hand in letterbox", Daily Mail, Feb. 21).

Many defendants, including five of her friends as well as the inevitable bar, are to blame for not doing more to keep Amanda Jax from downing so much alcohol that night, according to the lawsuit by her family. ("Alcohol death: five times limit", Mankato (Minn.) Free Press, Nov. 9; Dan Nienaber, "Lawyer: Civil suit coming in drinking death", Mankato Free Press, Dec. 28; "The defendants and their alleged actions that night", Minneapolis Star-Tribune, Feb. 28; Scarlet Raven, Feb. 29).

Inmate Jorey Lee Brewis, also known as Rebekah Katherine, is suing officials of the Oregon Department of Corrections who allegedly ignored Brewis's gender identity disorder, leaving Brewis to resort to -- details not for the squeamish -- do-it-yourself sex change surgery by way of fingernails, hair ties, rubber bands and other implements available in the cell. A spokeswoman for the corrections department "says she can't discuss Brewis' case because of medical privacy concerns". (James Pitkin, "Juicy Suits: Cutting Off Her Own Testicles in Prison", Willamette Week, Dec. 13).

Innocent bystanders have paid the bulk of settlements to date in the catastrophic fire caused by Great White's pyrotechnic display that killed 100 people at The Station nightclub in Providence, Rhode Island. The latest victims are a television station, WPRI, and a cameraman who will contribute $30 million to a settlement fund: WPRI's Brian Butler is accused of impeding the crowd's exit through the front door, though Butler's contemporaneous account suggests that he probably saved some lives at the time. "Dozens of defendants remain, including ... Anheuser-Busch Inc., which sold beer at the concert; and Clear Channel Communications, which owns a Providence radio station which ran advertisements promoting the show." (Andrea Estes, "Tentative deal set in R.I. fire case", Boston Globe, Feb. 2; "Tentative $30 Million Settlement in Club Fire", AP/NY Times, Feb. 2). Earlier: Feb. 2006 and Nov. 2 (Home Depot pays $5M for failure to warn, though their foam is different than the foam that caught on fire).

Spain: "A speeding motorist who killed a teenage cyclist is suing the boy's parents over damage to his luxury car, the government says." (AP/WINS, Jan. 25).

Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he's sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused "emotional distress" and "adrenal fatigue." The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn't actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]

Cross-posted from Point of Law.

Says the NAACP complaint: "In 2004, African-American homeowners who received subprime mortgage loans from Defendants were over 30% more likely to be issued a higher-rate loan than Caucasian borrowers with the same qualifications." (¶ 1.) Thus, it concludes, the disparity "result[s] from a systematic and predatory targeting of African-Americans." (¶ 6.)

Similarly, Baltimore's suit argues that Wells Fargo is more likely to foreclose in African-American neighborhoods—and that suit does not even attempt to adjust for similar qualifications or finances, just alleging racial disparity.

Of course, there is a difference between being targeted for a subprime mortgage loan and accepting a subprime mortgage loan. And I don't believe that African-American homeowners were targeted for subprime mortgage loans because they were African-American. They were targeted because they were homeowners.

Between 2001 and 2005, I was a law-firm associate, high-income, making multiples of what I make today at a thinktank. And, like I am today, I was also white. And the minute my adjustable-rate mortgage was registered in the title books in 2001, I got several solicitations a week in the mail from fly-by-night mortgage brokers offering to refinance my mortgage with ludicrous financial products. (And when I made the mistake of investigating on-line options for switching to a fixed-rate mortgage in 2004, I also got several e-mails a day and phone-calls a month on the same basis to the point that I switched e-mail providers.)

Somehow, I resisted refinancing with a mortgage that was not favorable to me in the long run—I took a 5.25% fixed-rate instead. But I sure was targeted with subprime opportunities, especially as the real-estate prices in my neighborhood skyrocketed about 10% a year. And if, with my skin-color, income, education-level, and impeccable credit-score, I was targeted, so was every homeowner and their grandmother.

To the extent a statistical study says minorities were, ceteris paribus, more likely to receive unfavorable mortgages than whites, the study reflects a specification error, perhaps in failing to account for different levels of consumer education. Another possibility: there is a lot of state-by-state regulation of the mortgage industry. Are subprime mortgages more likely in states with high minority populations, for example? Are subprime mortgage brokers more likely to be aggressive in urban areas in states on the coasts where real estate prices were increasing faster than average, and those states correspond to states with high minority populations?

Note that the CRL study that has been driving the debate and highlighted in the NAACP suit finds that for many types of loans, whites were "disadvantaged" relative to Hispanics, which would seem to count against a racial explanation (unless one believes that bankers hold a racial animus against whites and towards Hispanics) and more towards a geographic explanation.

Note also the irony that these same defendants were accused of failing to offer loans to African-Americans just a few years ago. (See also Apr. 1.)

Finally, note that the NAACP complaint is legally frivolous in at least one respect because of the lack of standing in a federal court. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (no § 1981 standing for third parties). (Baltimore brings no § 1981 claim.) Fair Housing Act standing is questionable, too, given the lack of allegation of injury to NAACP in particular, though that could be fairly easily rectified by an amended complaint, especially in the Ninth Circuit. Cf. Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) ("[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit") (R. Bader Ginsburg, J.); Fair Housing of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). N.B. that there is an amended version of the NAACP complaint that may already fix these issues. NAACP v. Ameriquest Mortgage Co., No. 8:07-cv-00794-AG-AN (C.D. Cal.). For some reason, this is not available on PACER, so I haven't seen it.

Related: Jan. 8 (Krauss on Baltimore suit); Apr. 25 (me on third-party liability for subprime lending).

(Disclosure: I own less than $15,000 in stock in Citigroup, one of the defendants in the case.)

That's the title of a post by Ed Silverman over at Pharalot. The issue is the use if atypical antipsychotics in children:

Florida Medicaid records show the number of children - some just months old - who were prescribed the drugs went from 9,364 seven years ago to 18,137 in 2006. No records for privately insured patients are available.

As I mentioned earlier this week, putting the blame on the pharmaceutical industry is an oversimplistic reaction to how psychiatry, psychology,and our culture have transformed childhood into a diagnostic checklist. As mentioned in Ed's post, the litigation in Florida appears to be the recommendation by agencies receiving Medicaid funds to use these drugs in children with ADHD who also had tics. While none of the atypical antipsychotics, to my knowledge, are FDA approved for this condition, it is common knowledge among mental health professionals that the most effective treatment for tics are dopaminergic antagonists such as atypical antipsychotics. True, the recent National Institute of Health's CATIE study demonstrated that most of the atypicals were no better than the older ones. But that doesn't mean that the newer atypicals aren't effective or an appropriate treatment. Perhaps, our current social construction of adolescence is partly to blame for the boom in mental health diagnosis in our children.

There's been a lot of news lately involving child psychiatry. As noted by others, the Supreme Court may grant cert in the case of Pittman v. South Carolina which has the interesting twist that the defendant, age 12 at the time of the crime, was taking antidepressants when he killed his grandparents. Yet, as I mentioned the link between antidepressants and violence is tenuous at best.

On the heels of the Pittman case, comes this weeks Frontline program which explored the explosive growth of children being diagnosed with bipolar disorder. Unlike ADHD, bipolar disorder is generally treated with antipsychotic medications which can have profound and lasting side-effects. Yet, the desire to place the blame at the foot of the pharmaceutical industry is misplaced; the psychiatric community has a long tradition of capturing behaviors within their diagnostic net and transforming them into pathologies. All of the pharmaceuticals in the world do nothing to our children without a mental health culture which favors medicine as the first line of treatment for troubled children. And that mental health culture is not just a product of myopic physicians or Big Pharma, but very much one of our own creation.

Jeremy Meyer has this article in the The Denver Post about a proposed plan to offer pregnant teenage mothers 4 weeks of maternity leave as official school policy. It surely is commendable when schools allow new mothers time to be with their newborns and adjust to parenthood; yet to make such accommodations official policy essentially means that it becomes a right -- and all rights are ripe for litigation.

Colorado: "An inmate who twice escaped from the Pueblo County jail filed a federal lawsuit Thursday, alleging that guards abused him and didn't do enough to stop him from breaking out." Scott Anthony Gomez, Jr.'s lawsuit "claims authorities 'did next to nothing to ensure that the jail was secure and that the Plaintiff could not escape.'" (TheDenverChannel.com, Jan. 4).