Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘personal responsibility’

Bar wasn’t safe for her to dance on

Illinois: “A woman who tried to dance atop the bar at a Joliet tavern is suing the establishment after she fell and shattered her ankle.” Amy Mueller, who is in her early twenties, wants damages from Samy’s Bar and Grill for “allowing [her] to climb upon the bar without a step-stool, ladder or other device used for safety.”

“They encouraged their patrons to dance on the bar — they cajole them, they yell at them, but they fail to take any safety precautions whatsoever,” said Frank Cservenyak Jr., Mueller’s attorney.

Cservenyak adds that he “wouldn’t take a case I believe is frivolous.” (Steve Schmadeke, “Woman who hurt her ankle sues bar”, Chicago Tribune, Jul. 23; “Woman suing Joliet tavern for broken ankle”, AP/ABC7Chicago, Jul. 23).

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Climbed electric tower on dare

On a $5 dare from friends, 13-year-old Justin Porter climbed 35 feet up an electric transmission tower. Who was to know such an adventure might prove dangerous? 19,700 volts later, his mother, Anna Thebeau, is suing the electric utility, Ameren, saying it should have fenced off the tower against trespassers, should have posted a big warning sign on it, should have designed it so that it could not be climbed up, and should have insulated the wires far overhead. (Jim Suhr, “Ameren asks judge to toss lawsuit over boy who fell from tower”, AP/Bloomington, Ill., Pantagraph, Jun. 12; Steve Gonzalez, “Boy was negligent in climbing power pole, Ameren argues”, Madison County Record, Jun. 11; Brian Noggle (“Because teenagers heed all signs and obey all posted rules”), May 13, 2005). More zapped pylon-climbers here and here (& welcome Michelle Malkin readers).

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Deus ex curium

So on the eve of the Sabbath (for me), I end my week of guest-blogging offering conceptually loftier reporting of loftier, if heretical, overlawyering of a Central European kind (hat tip to a blog called Religion Clause).

Now, we all remember this popular number from law school — United States ex rel. Gerald Mayo v. Satan and his Staff (“Mayo“), the guy who unsuccessfully sued The Prince of Lies (instead of hiring one) in federal court. Now a court in Timisoara, Western Romania, has dismissed a lawsuit purportedly against God Himself by Mircea Pavel, 40, who is serving 20 years in prison for murder. He has some issues, only not justiciable ones, it seems. The English is Interfax’s, and their regular English-speaking guy seems to be in the Catskills this weekend, so let’s work our way through this together, with Defendant’s help:

Failing to [receive an] answer [to] his prayers, the prisoner sued the [sic] God for “fraud, betrayal of trust, corruption and influence peddling.”

Pavel brought charges against “the defendant God, who lives in the heavens and is represented in Romania by the Orthodox Church,” the Evenimentul Zilei daily reported.

According to the act [lawsuit?], during the baptismal service he “drew a conclusion with [entered into a stipulation with?] the defense” to rescue him from any disaster.

“But the contract’s terms were offended [breached], despite of [sic] my payment in different forms and numerous compellations by way of prayers,” Pavel said in his lawsuit.

Eventually the court dismissed the case, ruling that “God is not subject to law and does not have an address.”

No address?! Now that is heretical; He is, as we know, found everywhere. Well, these folks just recently got rid of Communism, so we can be charitable on the theological training.

But the subject matter jurisdiction point is well taken. There may be other problems with the alleged contract, including most of the grounds for dismissal relied on in Mayo. Also: Pavel’s capacity to enter into a contract (Orthodox baptism is done in infancy); the statute of frauds (or its Soviet-era Romanian equivalent) on several counts; and, of course, in a suit against God, there must always be recourse to the defenses in equity — the plaintiff, the murderer Pavel, comes to court with some very unclean hands.

Give Pavel credit, though, and not just for going after the deep pockets. He believes God had a role in his misfortune, even if, perhaps, he has failed to name an indispensible necessary party — namely Mircea Pavel.

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Bulldozer’s progress

They didn’t tell me guest-blogging at Overlawyered would be an autopilot proposition, but thanks to James Taranto, it is — complete with a law professor to do the work for me:

The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.

“Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm,” one of the family’s lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.

Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he’s not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong — the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America.”

This could be one even the Ninth gets right. Meanwhile,

Corrie’s parents said after the hearing that they have been carrying on their daughter’s work since she died.

“You can’t go back to the way things were before, so you determine a path forward,” Cindy Corrie said.

I thought that’s exactly what they were suing over!

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Tattoos Now a Civil Right?

29-year old Russell Parrish decided he wanted to tell his life story through his tattoos. Unfortunately for him, his life story now contains a chapter on why he couldn’t get a job because he’s covered with tattoos. Naturally, he claims this is all a result of discrimination:

His tattoos cover his right and left arms and hands. There is a spider in a web crawling up his neck.
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Russell says in the last two months he’s applied for over 100 jobs. In almost half of them, he says he was denied because of his tattoos. He says that’s discrimination.

Having tried the EEOC and the Department of Labor, Parrish is now lobbying state lawmakers for a new law that would protect him from discrimination against tattoos. In other words, he now needs the government to step in and bail him out of the bad lifestyle decisions he’s made.

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Oz: “Gambler loses, sues casino”

Behrouz Foroughi, 43, says he volunteered for the exclusion list at the Star City casino and was told he would be denied entry, but was admitted anyway and lost large sums due to his gambling compulsion. (Gemma Jones, Daily Telegraph, Jun. 19). Similar claims have been tried a number of times in the U.S. but without much success: see Apr. 28, 2004, Apr. 19, 2005, Nov. 22, 2005 (France), etc.

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Flashback: the tort system in action in the case of Curtis Campbell

In 1981, Curtis Campbell (Campbell) was driving with his wife, Inez Preece Campbell, in Cache County, Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed.

Guess quickly: which plaintiff in the resulting twenty years of litigation won the biggest jury verdict?

How many of you say Ospital?

How many of you say Slusher?

You’re both wrong. The plaintiff with the biggest jury verdict was Curtis Campbell, whom a jury awarded an incredible $147.6 million.

Read On…

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Bork sues the Yale Club

Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork’s slip and fall suit against the Yale Club embarrassingly silly. The Wall Street Journal has the complaint. Judge Bork, speaking at the Yale Club, attempted to climb a raised dais that had no stairs or handrail; the 79-year-old failed to do so, and fell back, and hurt himself severely. I sympathize with Judge Bork’s serious injuries, but it’s beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the “unreasonable” height that the complaint alleges it to be.

(Bork used to be a fellow at AEI; and Walter and I have dined at the Yale Club.)

Update: Bloomberg has some relevant (and some not-so-relevant) quotes from Bork.

Update: More from David Bernstein. (The “Olson” quoted is Ted Olson, not Walter.)

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Update: Australian’s failed suicide try

A 19-year-old Australian who fell from a tree and was left quadriplegic after a failed suicide attempt has failed in his effort to lay legal blame on a mental hospital that had discharged him eleven days earlier. Timothy Walker “sued the Sydney West Health Service for negligence, claiming not enough was done to care for him prior to the accident. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment.” However, a judge found that the health service had not rendered substandard care, that it properly declined to prescribe antidepressants because Walker would not promise to stay off liquor, and that it had followed up with home visits after Walker’s discharge, during which he reported feeling better. Walker will, at least notionally, be liable for the hospital’s legal expenses under the rule that costs follow the event (sometimes known as the “everywhere-but-America rule”). (Alyssa Braithwaite, “Would-be suicider fails in hospital sue bid”, AAP/Daily Telegraph, May 25). Earlier: May 9.

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MacDermid v. Discover

Nina Kay MacDermid was bipolar and suffered from drug and alcohol problems. Discover Financial Services did not know this when she successfully obtained a card in her husband’s name and charged $15,000 worth of exotic cats and computer products and other shopping, despite her husband having forbidden her from having credit cards because of her previous manic spending sprees that sent her into personal bankruptcy. MacDermid also obtained cards from American Express and others, but it was checks from Discover that her husband intercepted and confronted her over on February 14, 2003. Ms. MacDermid overdosed on drugs, and was admitted to the hospital for five days that week, but later managed to commit suicide in June, which Mr. MacDermid claims in his lawsuit was a surprise. Mr. MacDermid complained to Discover in March that he had not authorized the card, but sued Discover, claiming that Discover’s resulting attempts to collect on Ms. MacDermid’s debts from the cancelled card was what actually drove her to suicide. (A psychiatrist conveniently submitted an affidavit that MacDermid would have been peachy keen if not for Discover’s actions, notwithstanding her substantial history of mental illness.) A magistrate judge dismissed the case under 12(b)(6), but the Sixth Circuit, in an opinion by Judge Boyce Martin, resuscitated it on a theory that Discover’s allegations of criminal violations may have been an intentional infliction of emotional distress. The opinion does not cite this month’s Twombly decision, which perhaps explains the wild save of the almost-surely doomed case, and Discover will now have to spend additional money defending it—which is why your credit-card interest rates are so high. (MacDermid v. Discover Financial Services (6th Cir. May 29, 2007) (via Bashman)). The opinion contains a variety of gratuitous slams at Discover for being a victim of MacDermid’s fraud.

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