Great moments in defense law

Menlo Park, Calif.: A 90-year-old lawyer’s BMW SUV jumped the curb and pinned two 6-year-old twin brothers against a wall, seriously injuring them. Now the driver, Edward Nelson, “states in his response to the lawsuit that the plaintiffs ‘carelessly, recklessly and negligently conducted and maintained themselves’ in a way that contributed to the accident. Furthermore, ‘knowing the probable consequences thereof, (they) placed themselves in a position of danger and voluntarily participated in all the activities,’ and so assumed any related risks. Finally, the plaintiffs failed to ‘reasonably mitigate’ any damages they sustained.” [Sandy Brundage, The Almanac (Peninsula communities, Bay Area)]


  • Is he going to sue them for damaging his car?


  • “Damage to the car?” That’s petty.

    “Inflection of emotional distress” has better odds for a big payout.

  • Sounds like a boilerplate statement of affirmative defenses to me. The only story here is that the defense attorney would be better served by ensuring that his affirmative defenses conformed to the facts of the case.

  • I’ve done defense. It may look silly, but you gotta say that stuff in your answer. You risk forfeiting pursuit of affirmative defenses if you don’t plead them. You’re at an early stage of the case so you just don’t know. Failing to say that stuff can be legal malpractice. The accusations in a complaint are just as, well, reckless.

  • Sounds like typical boilerplate. It actually almost sounds like they used the template for someone hurt in a sporting event.

    I didn’t know that car bowling was a real organized activity.

  • In California, when responding to a complaint, it is typical for the defendant to state a general denial, then cut-and-paste about 30 affirmative defenses. In all likelihood, Mr. Nelson also asserted in his response that the complaint is barred by the statute of limitations, barred by laches, fails to state a claim upon which relief may be granted; the plaintiff lacks standing; the court lacks jurisdiction; improper venue, and so on. I’m sure Nelson’s attorney does not seriously believe that comparative fault exists. It’s just a case where you may as well throw in any possible defense that may even remotely apply.

    What’s more ridiculous to me is that the plaintiff’s attorney is seeking punitive damages. How do you get to punitive damages in an automobile accident?

  • On the other hand a potential juror may read the article in the newspaper, not understand that this is just so much legal jockeying for position and lower the boom on the old man during deliberations.

    But from my read, it couldn’t happen to a nicer guy.