• Didn’t Charles Dickens write about such a legal system in Bleak House?

  • Same comment posted over there: Yes, it is physically possible [to install windshields that will withstand 2.5 lb chunks of concrete hitting them at highway speed]. See the windows that are in armored cars, such as those used by Brinks, et al. Ditto the windows in up armored Humvees and similar vehicles.

    The question is, should those be installed on your typical big rig?

    Clearly, the answer is no, as getting hit by a 2.5 lb chunk of concrete thrown by a criminal from the side of the road is not normal “road rash” that one could expect, unlike pea or so sized gravel, which may be thrown from the tread of a tire, where it was previously lodged.

  • Just read the story over at point of law. I have to say, that whenever I see someone on an overpass or other elevated area near a highway or road, I always think about them throwing something off, a la “The Good Son”. I never thought that I would be able to sue my vehicle manufacturer if that were to happen though.

  • California shamefully and wrongly limits parent’s liability for their children’s crimes to $37,400


  • Well, really! Get serious here. Do you think the kid has a bank account big enough to pay damages and lawyers’ bills? Who else are you going to sue. Well, the highway department, but they usually go for those putzy ‘sovereign immunity’ arguments. Too hard!!

  • Why stop at 2.5 lbs. A quick internet search revealed that cinder blocks weigh 22 pound and up. What else could be dropped? There was a woman killed when some kids dropped a shopping cart off a roof. What angle would suffice? As you increase the angle, you extend the windshield. That may or may not require extending the front end. Remember also, when you add ballistic glass your add weigh –> fuel cost. Would they require retrofitting all current trucks? How about cars?

  • John Burgess,

    “Well, really! Get serious here. Do you think the kid has a bank account big enough to pay damages and lawyers’ bills?”

    If you get wronged by someone who doesn’t have any money you should be SOL. You shouldn’t be able to sue someone else who has no connection to the incident just because they have money.

  • MattS – I think John Burgess forgot the /snark tag, or though it would be obvious and left it off.

  • @MattS

    I believe John Burgess was writing with tongue in cheek.

    I agree that innocent parties should not be dragooned by bogus legal theories into liability for crimes or negligence by the “judgement-proof.” But there can be a role for the community in general (aka “the taxpayer”), eg in the WTC massacre (2001/9/11). No need to create phony liability (though the airlines and their insurance companies were docked for what they could pay). Just compute a reasonable standard of compensation for a disaster that could have happened to anyone.

  • @MattS: I’m still hoping for a sarcasm tag for the Internet. It would prevent inadvertent misreadings.

  • I am having problems with the simple physics of this case. The plaintiffs claim that the Navistar windshield had a rake of 71 degrees while other trucks have a windshield rake down as low as 35 degrees. They offered this as proof the Navistar design was “defective.”

    The force with which the concrete struck the windshield would have been greatest with the angle of approach was perpendicular to the windshield. (ie the concrete would hit the windshield with the greatest force if the concrete hit the windshield coming in from 161 degrees for the 71 degree windshield and 125 degrees for the 35 degree rake windshield.)

    My point is not only were the plaintiffs demanding the angle of the windshield was inherently defective, they really were arguing the windshield needed to change angles of rake on the fly.

    (Oh Lord, please don’t give the government regulators any new ideas.)

  • SOL seems a bit harsh, Matt. On the other hand, punitive damages seem to wind up as gifts for being in the wrong place at the wrong time and even making the wrong decision, rather than punishing the offenders. How about taking punitive damages and using them as a fund for people for whose real injuries exceed the available compensatory damages in other suits?


  • Robert comments “California shamefully and wrongly limits parent’s liability for their children’s crimes to $37,400”

    I would extend the limit to any case involving somebody other than the child, like the truck company. And the truck company’s liability in this case is zero as comclusively explained by Ted Frank.

  • Let’s not freak out here. Let’s understand procedurally what actually happened here which Ted did not mention.

    Lawsuit gets filed. Jury makes the right call. The trial judge made an error of law in the case. Now the case will get retried. I’ll bet you anything the jury gets it right again.

    Is anyone proposing a law here to avoid what has happened besides “let’s sue the parents” for which no one has laid a factual predicate to make that remotely logical.

    Bob, some states do that. It is just hard to motivate plaintiffs’ to bring punitive damage claims if they don’t get the money. Punitive damages are not a big problem in most states, even for the “system is amok” crowd. I can assure you there has not been an award of punitive damages in Maryland, for example, that would offend your sensibilities in the last 10 years.

  • It is just hard to motivate plaintiffs’ to bring punitive damage claims if they don’t get the money.


    Punishment should not be in the purview of civil courts.

  • “Is anyone proposing a law here to avoid what has happened besides “let’s sue the parents” for which no one has laid a factual predicate to make that remotely logical. ”

    No one is proposing a law to prevent this because we already have laws against throwing large rocks at cars, assault, attempted murder, and such. The threat of incarceration was apparently not sufficient to deter this young man and prevent the injury. The notion that we can use tort liability to eliminate harms caused by intentional crimes is dubious, at best. But the sort of strict liability schemes California has imposed are pretty good a redistributing income from corporations to lawyers, and that, of course, is the real intent.

    Maybe you are correct that the jury will reach the right result again, though of course that skips over the expense of a second trial and the greater risk for Navistar, which is now stripped of any right to instruct the jury that the real cause of this injury was a criminal act. More likely than a defense verdict is a settlement driven by California’s effort to make product liability cases all but impossible to successfully defend.

  • Ron – lets understand what actually happened here.

    A company that has zero responsibility and culpability for the crime that was done (e.g. punk kid throws concrete chunk at truck on freeway) was wrongfully sued. They spent, undoubtedly, tens of thousands, if not more, dollars defending themselves. Now they get to spend still more defending themselves yet again from this frivolous suit.

    I feel sorry for the crud that happened to Mr. Collins, clearly an innocent victim, however he or who ever decided on his behalf to sue Navistar needs to be slapped upside the head and have the kid responsible for this deed pointed to, and be told “there’s the person to sue if you feel the need to drag this out”. The lawyer for Mr. Collins….well, I won’t say out loud what I think of that individual.

    Oh for loser pays.

  • No Name, tens of thousdands is a low, low, estimate. A quick read of the appellate decision showed that Navistar spent at least that much on experts alone. And some of the experts were battling over the question of whether this particular act was “reasonably forseeable.” That’s right, a battle of experts over whether one could reasonably forsee a kid throwng large rocks at cars from an overpass who happens to score a direct hit with a winshield.

    Somehow, that forseeability question is relevant to whether the Navistar winshield was “defective.” In the upside-down world of tort law, defective really means, “could it, with the benefit of hindsight, been any safer, at any cost?” If yes, pay up, Navistar. And then, for all you consumers who may not want to pay whatever a nearly indestrucible winshield costs, well, too bad.

  • I know DEM, I was trying to low ball the costs so that Mr. Miller wouldn’t pull out that straw man of “oh, you just are inflating the costs” bull.

    And anyone that argues that getting hit in the windshield with a 2.5 lb chunk of concrete is “reasonably foreseeable” needs to have their own heads examined, since they clearly were dropped on said heads on a slab of said concrete as a child (before said concrete slab was broken up and thrown at cars by the original punk kid).

    snark follows (tag for MattS): I guess I’m really surprised that Mr. Collins didn’t sue the entire concrete industry as well, since their product is clearly defective and / or they have liability in a couple of ways.
    1) That the concrete wasn’t sufficiently strong or durable enough to prevent it from being broken up into nice 2.5 lb chunks that the punk kid hurled. It is clearly defective for being able to be broken.

    2) That the concrete industry didn’t take precautions that their product would be misused. It is clearly foreseeable that someone might throw chunks of their material in a malicious manner. By not instituting a program to insure that concrete is only formed, and remains, in sizes that can not be hurled, the concrete industry is negligent by providing the projectile by which Mr. Collins was injured.

    Since the original producer of the concrete probably can’t be found, I’d suggest Mr. Collins simply sue all current concrete producers, and companies that have produced concrete in the past, similar to how the vampire shark lawyers went after the asbestos industry. After all, they’re collectively liable.

  • I’m not a fan of loser pays although I promise you it would do wonders for the bulk of my practice. These are our last 13 trials. We have had two since that will help these numbers: http://www.millerandzois.com/Maryland-Auto-Accident-Lawyers.html#mzverdicts

    Trust me, it would pad my pocket. I’m just think it would create a disincentive from people with little money from bringing lawsuits. I’m glad the folks who brought Brown v. Board of Education were no fearing paying the costs. Same goes for the gay rights cases that just went to the Supreme Court.

    BUT…. Loser pays does not help your cause here. This kid is not going to care if he loses the case.

    DEM – Yes, I agree with you DEM, is is unbelievably unfair to have to defend against dumb lawsuits. But you can’t device a perfectly fair
    system unless you have a guy who sits at the courthouse and gets to decide the ones that just sound too dumb.

    NO NAME GUY, I agree with substance of what you are saying. I really do. But, again, our civil system sucks… but it is the best in the history of the world.

    We really don’t disagree with much here, guys. On an individual level, I share your outrage. People bring the dumbest lawsuits, there is no doubt. The question is what can be done about it, beside complaining on a message board. And I think the answer is very little without changing the world in a way you don’t want to change.

  • May I be the first to suggest a suit against the manufacturer of the pressure cooker used in the Boston Marathon Murders.

  • “I’m not a fan of loser pays although I promise you it would do wonders for the bulk of my practice. These are our last 13 trials. We have had two since that will help these numbers: http://www.millerandzois.com/Maryland-Auto-Accident-Lawyers.html#mzverdicts

    Somebody, quick, hand me my little violin so I can play a doleful tune for poor, put-upon Ron!

    Sorry, Ron, but the law already takes care of you very well:

    “The purpose behind adopting motor vehicle regulations that require insurance on vehicles is to promote the established legislative policy in Maryland that seeks to assure that victims of automobile accidents have a guaranteed avenue of financial redress. See Pa. Nat. Mut. Casualty Ins. Co. v. Gartelman, 288 Md. 151, 154, 416 A.2d 734 (1980).”
    Rentals Unlimited, Inc. v. Aetna Cas. & Surety Ins. Co., 101 Md.App. 652, 660; 647 A.2d 1278, 1282 (1994), cert. den., 337 Md. 90, 651 A.2d 854 (1995) (Table).

    Maryland law ensures that there’s money to pay your contingency fees by requiring that that drivers carry liability insurance.

    However, what Maryland, and most other states, do not do is ensure that people like the lady from Ohio (whose eBay comments were apparently accurate) are protected. See the article above:

    “Seller sues customer over accurate eBay feedback”

    Quoting from Popehat:

    “Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.”

    So, if you want to require the court to do a lodestar analysis of your contingency fees each time, and limit your fees to that which you show are reasonble, then maybe your protestations won’t appear cynical and self-serving. You’re already benefitting from a form of loser pays, and there’s no oversight or review of your fees. However, for most people, the threat of suit and having to incur defense costs is a fairly realistic threat of being forced to chose between bankruptcy vs. waiving their rights.

  • Ron, you miss or gloss over the point of loser pays in this case.

    It’s Mr. Collins who should be paying Navistar’s attorney fees and expenses for frivolously suing them. Forget the kid – no one, it would appear, sued the guilty party in this case. Why? No money there.

    With loser pays, Navistar, an innocent victim of the legal system in this case probably wouldn’t have been sued by Mr. Collins, and even if they were, wouldn’t have had massive costs imposed upon them.

    And yes, the point of loser pays is to dis-incentive people, ALL people, including those with money, and their shyster lawyers seeking a 40% of the win pay day, from filing frivolous suits. Game it out there Mr. Miller – I may be able to afford my own attorney (were I to go and want to sue someone), but could I also afford to pay THEIR attorney as well? Especially if I was filing what they knew to be a bogus claim? They’d fight like heck knowing that when they won, they wouldn’t be out a dime and would have the satisfaction of bankrupting me.

  • wjfag, you got it backwards. I’m saying in my personal practice, we would benefit from loser pays. We win, as most plaintiffs’ lawyer do who stay in business – the overwhelming majority of our cases. For good or every average personal injury lawyers, loser pays would not hurt us. So, thanks for the violin, I’m sure you play it very well. But that’s not what I’m asking for here.

    No Name Guy, I’m don’t think I’m missing the point of loser pays. It simply deters too many meritorious cases. You may be missing the point of the risk involved in closing the courthouse steps to so many Americans. We don’t want people to only file cases where there are 100% sure they will win or face personal bankruptcy. I mean, there is a reason why this system has not caught on here. If it was just so obvious, you would think it would gain currency here. Even conservatives who support curbs on litigation are paying little more than lip service to it. States with a GOP governor and legislature still, by and large, do not have loser pays. Even in Texas, a state where the govt truly hates lawsuits, they have only a very watered down version of loser pays.

  • @nng–

    I sometimes disagree with Ron Miller, but he is spot-on about “loser pays”: it curbs abuse only if jurors are fundamentally sound. For example, juries in West Virginia in the late 1990s were notoriously hostile to physicians, so loser pays would have incentivized physicians to pay off quicker and more lavishly even on the most dubious claims.

  • While I hear what you are saying Ron, and to some degree agree with it–the alternative is if you are the sued defendant it’s okay to face personal bankruptcy unless you capitulate, but not okay if you are the plaintiff? Surely, there are other mechanisms to ensure a blameless defendant has its fees paid by a losing plaintiff without him or her facing financial ruin.

  • I’m not unmindful of your point, Jason. SOMEONE is certainly going to bear the burden of litigation. This is certainly true in criminal cases – the state does not pay your legal fees when a jury finds you innocent.

    I’m less worried Navistar which can absorb the costs – not with ease but we are talking relatively here. It is a bigger problem when you sue the mom and pop grocery store or something. I don’t have an answer. I hate that mom and pop guy paying when, if I was on a jury, I would have found him not liable. I just think it beats the alternative.

  • “Jury makes the right call”

    Just how exactly? Unless you are contending that Jurys always make the right call and cannot be subject to criticism, this is plainly the innocent party being found guilty for failing to design something to be ‘safe enough’. (If you do design a windshield to withstand a 2.5lb lump, it will not withstand a 3lb lump. So you design the windshield to withstand a 3lb lump, it will fail if someone lobs a 5lb lump. Where do you stop? Who defines what is ‘safe’ in this situation?)

  • Peter, if not a jury, then who? Someone has to decide. No human fact finder is going to be perfect.

    For the hypo you propose, experts testify and juries decide based on the evidence what is reasonable.

    If juries are just so dumb that they can’t figure these things out when presented with the evidence, aren’t you even more worried they are out voting for president and such?

  • Valid claims will certainly still go forward Mr. Miller. Of course, the parties that hold, let’s say, an 80% solid claim, or 60% claim, will certainly be more cautious of filing suit in a loser pays situation and more open to settling pre-trial. Even defendants in such cases, will need (as they do today) to weigh the relative costs – if the defendant loses, they’re on the hook for the plaintiffs fees in addition to their own. Nothing really changes there (or it could be worse – tack on 40% potentially). IMO, in such a system, both parties are going to be incentiveized to make reasonable settlements of legitimate claims and most frivolous claims will never see a filing since the cost of doing so will become prohibitive.

    As a plaintiff with a 70 or 80% solid case, do I really want to risk that 20-30% chance of a loss and end up owing the SOB that wronged me? Then again, I have a solid, but not guaranteed case – a good position to negotiate from. If the SOB makes a reasonable offer, or my shyster lawyer can negotiate one before filing a suit, why wouldn’t I take it? From the defendants side do they swing for the fences and go strait for the win by telling me “see ya in court buddy”, or does it game out that since they’re more likely than not to lose, ’tis better to make a settlement now and hold the costs down? The defendant’s negotiating position is clearly along the lines of “look Mr. No Name Guy plaintiff, we’re offering you a reasonable settlement here. If you choose to reject it and take this matter to court, you have a 30% chance of losing, in which case, our fees so far are so many thousands, which you’ll have to pay. Push us too hard, we’ll see ya there in front of the Judge and go for the win since it won’t be much worse anyways that you being unreasonable with that ridiculous demand and all, and we just might stick it to you in the process.”

    With loser pays, both sides have an incentive to come to a settlement on meritorious or mostly meritorious claims. Defendants have no incentive to settle frivolous claims (they’ll take it to trial, prevail and recoup costs), and plaintiffs have every incentive to not file frivolous claims in the first place since they’ll be bankrupted by a loss.

    And Mr. Miller – it really doesn’t make a hill of beans difference if it’s Navistar or Mom-n-Pop Corner Grocery Mart who is the defendant of a BS claim. The principal of the matter is the same – innocent parties shouldn’t be hauled into court, and if they are, should fully recoup their costs. And loser pays is not closing the courts at all: It’s giving plaintiffs a dose of the risk they can impose upon defendants at will (the current system is a classic case of moral hazard – no risk to the plaintiff filing frivolous claims, only potential reward).

    Besides, you’re thinking like a lawyer since you appear to think the only way to settle matters is in a court of law. Court / lawsuits should be the last resort (like warfare), not the first. And everyone knows that legislatures are full of attorneys – why no, there is NO conflict of interest there AT ALL? Goose….golden egg….cartel pricing. Yep. To paraphrase, “War is too important to be left to the military men.” And law is too important to be left to the lawyers.

  • ‘ if not a jury, then who?’

    Ohhh I dunno. Who decides that a bicycle or motorbike helmet that meets safety standards for impact is ‘safe’. Who decides that a vehicle that protects occupants crashing at a certain speed is ‘safe’. Who decides the survivability of airline seats? etc etc All of these may result in injury /death if they encounter forces greater than designed for and none are a guarantee of survival. Should all of these now be decided by jurys. If so, how is a manufacturer to decide how safe to make something? Crystal ball?

    “aren’t you even more worried they are out voting for president and such”. Considering the standard of Presidents and Senators over the years, the only possible answer to that is – Hell Yes!.

  • Okay, Peter. But I bet you don’t like the folks that make the safety regulations, either. At core, you don’t like democracy. Is there a better plan you have in mind that does not involve the words King Peter?

    I met with a 82 year-old woman yesterday. Her chances of success at trial are, approximately, 100%. I guarantee you she would not have brought a claim if there was a .000000001% chance she was going to have to pay the defendant’s attorneys’ fees. Your theory works great in a lab. In the real world? Not so much?

    No Name are you making this argument for criminals too? Why are we not paying their legal bills? Shouldn’t they be the FIRST to get compensated for criminal charges brought against them that could not be proven? Why does that not trouble you more?

    You confuse “innocent” parties with the final outcome. Plaintiffs who should not get verdicts win at trial. Defendants who should not prevail, do prevail. If we go to loser pays, can we get rid of plaintiff’s burden of proof and just say whoever wins wins?

    I don’t think many people are really pushing, as I said, loser pays. But, look, people smarter than I am support it. They realize the harm it would cause but decide the benefits outweigh the harm. I get that. But you just go on and pretend that this would be just great for everyone and would not have a chilling impact or meritorious cases.

  • Moreover, you have to realize that 98% of successful auto tort claims there is no real defense. So we are not going to inflate the values of every auto tort case by 40%.

    No Name, there is a State Farm lobbyist who needs to speak with you on line one.

  • “No Name are you making this argument for criminals too? Why are we not paying their legal bills?”

    But we are, on a massive scale.

    Anyway, more to the point, would loser pays deter some meritorious cases? Sure it would. That would be a byproduct of the system. The system we have now, on the other hand, has the huge byproduct of non-meritorious cases filed with impunity. Moreover, magnifying the complexity and scope of litigation imposes huge costs on defendants while often costing plaintiffs nothing at all — hence our insanely slow, inefficient, and expensive system of resolving civil disputes.

    Loser pays isn’t the only possible solution. I think a better one is to completely re-engineer the rules of civil procedure and rules of evidence to make lawsuits far less expensive. We should have more summary adjudications, far less exchange of discovery, and depositions should be limited to 3 hours. And that’s for starters. I think in such a system loser pays would not be necessary.

  • DEM, this is the way it works in many states. I have a malpractice case pending in Oregon. It is pretty much show up for trial. I like it on some level – less work for everyone. The problem is if you can’t see the other side’s case, you are far more likely to go to trial. That is not a good thing for judicial economy.