Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving “a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight,” and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it’s hardly central to the reform movement. It doesn’t appear on the ATRA website, either. But why split hairs when there’s a chance to demonize reformers?)
Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.
In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.
Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine’s accident for a school bureaucracy to have time to react. But, for most people’s sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, “If you can’t do the time, don’t do the crime.”
If this is the best the anti-reformers can do to point out “distortions” in the reform movement, I’d say we’re doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.
Update: David Nieporent notes in the comments:
Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here’s how it describes it:
The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn’t a burglar. (Emphasis added.)
That’s right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy “trying to redirect a light.”