In Longview, east Texas, the Patterson Nissan dealership held a contest awarding prizes to the participants who could hold their hands on a car the longest. One contestant dropped out, ran to a nearby store where he broke a gun out of its case, and shot himself. The dealership has now settled the lawsuit by Richard Thomas Vega II’s widow claiming that the stress and sleep deprivation of the event amounted to “brainwashing” and that the sponsors failed to make allowances for temporary loss of sanity. (AP/FoxNews.com, Aug. 17).

The old joke is that chutzpah is defined as the case of the orphan who kills his parents and then begs the court for mercy because he’s an orphan.

A pair of Philadelphia parents, however, may redefine the idea for all time.  Danieal Kelly, who suffered from crippling cerebral palsy, was 14 when she starved to death in a West Philadelphia rowhouse, covered in bedsores, weighing just 42 pounds.  Her mother, “Andrea Kelly was charged with murder on July 31. Daniel Kelly, who authorities say abandoned his daughter despite knowledge of her mother’s neglect, was charged with endangering the welfare of a child.” (Three friends of the mother were charged with perjury for lying to a grand jury; four social workers were also charged with felony endangerment, which will no doubt screw up incentives further for over-reacting child protective services everywhere.)

The parents responded as any parents would, and sued the city, the state, city and state agencies, and four social workers, blaming them for Kelly’s death, and seeking damages for “love, tutelage, companionship, support, comfort and consortium” as well as the “economic value of her life expectancy”–which couldn’t possibly be anything other than the taxpayer-funded disability benefits.  Public outrage has caused the lawyers, Brian Mildenberg and Eric Zajac, to substitute other parties as plaintiffs so that there is no direct hint of Daniel and Andrea Kelly profiting, but the underlying appallingness of the suit remains.  (Julie Shaw & Catherine Lucey, “Lawsuit by Danieal’s parents called ‘disgusting’”, Phil. Inquirer, Aug. 13; Nancy Phillips and Kia Gregory, “Danieal Kelly’s parents sue the city”, Phil. Inquirer, Aug. 13; John Sullivan and Craig R. McCoy, “Nine indicted in fatal neglect of girl”, Phil. Inquirer, Aug. 1; ongoing Inquirer coverage).

The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit.  Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities.  She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.

Does the host’s behavior rise to the level of negligence?  And, if so how is the woman’s negligence less than his?  He may have offered the alcohol; she drank it.  He may have offered the horseback ride; she accepted.  Have we reached the point in America that we need to have party goers sign waivers for private festivities?   But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone.  A lot of fun that will be.  (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).

Horse example number 2:  Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans.  And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals.  It’s not as if Clemens is practicing pediatric anesthesiology for kicks.  So who cares, really?

I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).

Matthew Walls, a 13-year-old in the 7th grade at Robert Smalls Middle School in Beaufort, S.C., engaged with a classmate in a rather alarming-sounding pastime, namely “the ‘Open Chest Game’ in which two people punch each other in the chest.” You wouldn’t think a kid could get hurt doing that, but Walls did: he struck his head on the way down and ended up in the hospital in critical condition, though he’s back attending school (a different one) now. Donna Walls, Matthew’s mother, has now sued the Beaufort County School District, the state of South Carolina, and three former superintendents personally, and seeks punitive damages. (Jonathan Cribbs, “Mother sues school district over child’s punching injury”, Beaufort Gazette/Island Packet, Jul. 25; more).

15-year-old honor student and SADD member Lindsey Billman snuck out of a slumber party with three of her friends and had an alcohol-fueled night with two 18-year-old boys. Around 2:45 a.m., two boys and two girls had the clever idea of stacking milk crates to reach an air-conditioning unit that allowed them to clamber onto the roof of Anna S. Kuhl Elementary School. The two couples went to separate sides of the roof. Billman and Nicholas Moscatiello then had the further clever idea of doing whatever they were doing while sitting on a skylight, which didn’t support their weight, and the 33-foot-fall onto the gymnasium floor below killed Billman.

This is, alleges an Orange County, New York, suit filed by Lindsey’s parents, the fault of the school district and the city of Port Jervis, New York. After all, the district was “irresponsible” stacking milk crates by the school. A curious choice of words: out of the number of people irresponsible here, it seems to me that the district is at most a distant eighth. (Steve Sacco, “Parents suing Port Jervis, school in girl’s fatal fall through roof”, Times Herald-Record, Jul. 26; Adam Bosch, “1 teen dead, 1 critical in fall”, Times Herald-Record, Jan. 27). The attorney is Corey Stark, a 2001 law-school graduate in New York City who has single-handedly refuted the proposition that New York state needs more law schools. (Thought experiment: if the milk crates are an attractive nuisance, why isn’t the dairy liable?)

• Nothing new about lawyers stealing money from estates, but embarrassing when they used to head the bar association [Eagle-Tribune; Lawrence, Mass., Arthur Khoury]
• Unusual “reverse quota” case: black job applicant wins $30K after showing beauty supply company turned her down because it had a quota of whites to hire [SE Texas Record]
• Who knew? Per class action allegations, pet food contains ingredients “unfit for human consumption” [Daily Business Review]
• U.K.: “A divorcee who won a £1.4million payout from her multi-millionaire husband is suing her lawyers because she claims she should have got twice that amount.” [Telegraph]
• UW freshman falls from fourth-floor dorm window after drinking at “Trashed Tuesday”, now wants $ from Delta Upsilon International as well as construction firm that put in windows [Seattle P-I, KOMO]
• After giant $103 million payday, current and former partners at Minneapolis law firm are torn by feuds and dissension — wasn’t there a John Steinbeck novella about that? [ABA Journal and again, Heins Mills]
• Small firm that used to make Wal-Mart in-house videos sets up shop at AAJ/ATLA convention hawking those videos for use in suits against the retailer [Arkansas Democrat Gazette, earlier]
• When the judge’s kid gets busted [Eric Berlin; Alabama]

Perhaps it would have been too complicated for Enrique Chavez of Anaheim, Calif. to sue himself for allowing his three year old son access to the loaded gun in the back seat of his pickup truck. So he’s suing Glock instead. “Chavez, 35, is also suing the manufacturer of the gun’s holster and the retail stores that sold him the gun and the holster. He bought the gun at the Los Angeles Police Revolver and Athletic Club and purchased a holster made by Uncle Mike’s and Bushnell Outdoor Products from Turner’s Outdoorsman.” (”Officer hurt in accidental shooting sues gun maker”, AP/San Luis Obispo Tribune, Jul. 9 via Glock Talk Forum).

(Post bumped with 12:20 AM update adding coverage of state Labor Department’s suggestion for new warnings.)

Roller-coaster enthusiast and torts professor Bill Childs is stealing our thunder in his coverage of the recent Georgia Batman roller coaster decapitation of Asia LeeShawn Ferguson IV, so there’s no point in rewriting his excellent post instead of quoting it:

Continue Reading »

On November 14, 1999, high-school dropout Rolando Domingo Montez, celebrating his 19th birthday, was arrested for public intoxication and trespass after the owner of the boat on which he and his friends were sitting complained. Police placed him in Cell No. 1 of the Port Isabel City Jail. The next morning, Montez was permitted to make some collect calls from his jail cell to seek bail money from his mother, Pearl Iris Garza. Mom, complaining that Montez was in jail again, refused. But she generously came to pick up Montez on the 16th when he was released on his own recognizance. Unfortunately, while Garza was waiting in the lobby, and while police were responding to a call for assistance regarding a suspicious vehicle, Montez hung himself with the 19-inch phone cord from the phone he had used to make the calls.

Continue Reading »

Complainant Rory Beer — yes, her real name, though she used to be known as Rory Roberts — was dancing on the bar at Bar Chicago, a Division Street nightspot, when she fell off, with what her suit says are permanent injuries to her foot and ankle. “The lawsuit claims that Bar Chicago encourages patrons to dance on the bar, but doesn’t warn people of slippery surfaces or provide handrails, ‘cushioned flooring’ or ’safety nets.’” (Mark J. Konkol, “Dancer slips, now she wants bar to pay”, Chicago Sun-Times, Jul. 1; Chicagoist). We covered another bar-wasn’t-safe-for-her-to-dance-on suit, also from Illinois, last year.

The manual for the L120 John Deere mower reads:

DANGER: ROTATING BLADES CUT OFF ARMS AND LEGS

· Do not mow when children or others are around.

· Do not mow in reverse.

· Look down and behind before and while backing.

· Never carry children even with blades off.

Continue Reading »

Amanda Laabs was a passenger in a Porsche Carrera that was being driven at somewhere between 100 and 120 mph in Victorville, Calif., suggesting that the occupants were in quite a hurry to get to their destination, an In-N-Out Burger. Her driver did manage to slow down to an impact speed of 72 mph at the intersection at which he collided with the Mitsubishi of innocent driver Dorothy Specter. Have you spotted the allegedly responsible party yet? Yes, the city of Victorville, for designing the road with “inadequate sight distance and lack of warning signs, devices and signals”, so that Specter couldn’t see the Porsche coming, all that aside from the light pole that was too easy to run into. After pages of tortuous analysis, made more tortuous by the division of authority over the road between the city of Victorville and the County of San Bernardino, an appeals court upheld a trial court’s disposal of the case on summary judgment, but also declined the city’s request for fees, saying the city had not shown that an attorney would have assessed the claim as objectively unreasonable. (Laabs v. City of Victorville, courtesy Law.com; Civil Justice Association of California press release).

18-year-old Lauren Crossan, captain of the Randolph (New Jersey) High School cheerleading squad on a trip to the Hula Bowl, plunged naked to her death from a ninth-floor hotel balcony in Maui in 2004. Police arrested two California men who were staying in the hotel room, but then decided that the death was an alcohol-related accident–Crossan had a BAC of 0.17. (The men told police that they fell asleep while Crossan was still in the room after one had sex with her, and didn’t know what happened to her. Police say there was no evidence of sexual contact or of a struggle.) (AP, “Police: Cheerleader’s death an accident”, Jan. 15, 2004; Gary T. Kubota, “Tests show cheerleader was not on illegal drugs”, Honolulu Star-Bulletin, Jan. 27, 2004; memorial site with obnoxious music).

Continue Reading »

If you recall, the theory of defenders of the McDonald’s coffee case was that McDonald’s, and only McDonald’s, served coffee so hot as to burn, and thus merited special disapprobation.

As Overlawyered readers know, that just ain’t so. The recommended serving temperature of coffee can cause third-degree burns; coffee-drinkers prefer coffee that is that hot. Thus, lots of vendors sell coffee that causes third-degree burns when spilled.

Add to that list the Pilot Travel Center truck stop in Mount Sterling, which is the defendant in a Kentucky suit brought by Thomas Skaggs, who says he spilled coffee on his leg in December and got a third-degree burn. The skimpy press coverage on WLKY.com gives no further details other than an unimpressive photo.

Updating our item of Oct. 2006: a Pennsylvania federal judge has declined to set aside a $24 million jury verdict “against two railroad companies for injuries suffered by two teenagers climbing on a train car parked near Lancaster in 2002.” U.S. District Court Judge Lawrence F. Stengel lambasted attorneys for defendants Amtrak and Norfolk Southern for having at trial “‘demeaned’ the two young men ‘for their lack of intelligence, judgment and common sense in choosing to climb to the top of the boxcar.’” Stengel upheld the jury’s assignment of all the blame for the accident to the railroads and none to the youths, who were both 17 at the time. (Janet Kelley, “$24M verdict upheld in railroad burn case”, Lancaster New Era, Apr. 2).

We wrote about this lawsuit when it was first filed in 2006, and were curious what was up with it. Bentey flunked St. Thomas U Law School; he then retained an attorney, Michael Lombardi, to sue numerous defendants alleging that it was consumer fraud for St. Thomas to admit him in the first place and seeking an injunction over Bentey’s contracts grade, suggesting a second person who should’ve flunked law school. The case was transferred from New Jersey to the Southern District of Florida in December 2006, and the multiple defendants filed a joint motion to dismiss in March 2007. The parties then apparently agreed that Bentey would voluntarily dismiss his case in April 2007; the terms of the settlement were not publicly discussed, but I’d be surprised if they weren’t simply a walk-away.

A Thomas Bentey who lives in New Jersey has a public Facebook page, though we make no representation that it’s the same Thomas Bentey.

Pulitzer-prize winning columnist Leonard Pitts Jr.:

Anna from Estonia mak[es] it a point to show visiting friends a sight they could never see in the old country. They laugh, they point, they whip out cameras and take pictures. Of the Everglades? No. Of Mount Rushmore or Lady Liberty? No.

Anna said they take pictures of the idiot signs. These she said, crack her friends up. “Caution: Coffee is hot.” Apparently, elsewhere in the world, you don’t need a sign to know this.

More on the deservedly infamous McDonald’s coffee case. Similar discussion: March 2.

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)).