June 29th, 2010

A Dead Child In Central Park (6 Legal Issues)

It is rare for me to discuss a local accident. But I do so today regarding the tree limb that fell over the weekend killing a 6 month old girl in Central Park that also critically injured her mother. She was holding the baby and posing for a picture being taken by the father on a clear summer’s day. It is, essentially, a trauma that could have happened to anyone.

And I write because WABC-TV called me to discuss the liability issues on the air, and it raised a number of concepts that local television isn’t really equipped to handle in soundbite format. And the last two of those issues are things that the Legislature should address:

First — A Duty to Inspect: The tree was inside the Central Park Zoo, run by the Wildlife Conservation Society that also runs the Bronx Zoo. But the limb was overhanging an area just outside the zoo where it came down. Who’s responsible? The answer is that the owner of the tree has a duty to inspect and maintain that tree. And the landowner over which that limb hangs, and under which its patrons walk, also has that duty. And given that this is not an obscure part of the woods but one of the most heavily trafficked spots in Central Park, that duty is rather substantial.

Second — Contractual Obligations: Based on news reports, the Central Park Conservancy has a contract with the Parks Department to do inspections. This would be a contractual obligation that could likewise make them a defendant if a suit were brought.

Third — Notice of a Troubled Tree Limb: The issue of notice is critical, meaning that the zoo/park would be responsible only if they knew, or should have known, that there was a problem with the tree limb. This is similar in concept to the banana peel on the supermarket floor. Just because someone slips on it doesn’t make the store responsible. The store needs to have known it was there (an employee saw it or customer told them) or it was so blackened and old that it is clear the store should have known about it with reasonable care. Those same concepts apply to the tree limb, and much will be made in the investigations about the adequacy and reasonableness of the inspections that took place (if they took place).

Fourth — The Rush To Find a Lawyer: This veers off now away from responsibility to the sad fall-out of tort “reform.” If a municipality is going to be sued, then local laws require people to file a Notice of Claim within 90 days of an incident so that the municipality can investigate. That means that while the husband/father is grieving and trying to help his stricken wife, he has to go looking for lawyers and meeting them. That is terribly unfortunate, but the sad result of attempts by our Legislature to limit actions by forcing excessively tight limitations periods on those that have been injured.

Fifth —  The Demand for Damages: Not only must the father find a lawyer fast (and without a clear head he runs the risk of making a mistake in who he hires) but that lawyer must then make a demand for damages in that Notice of Claim. In other words, without even knowing what the future holds for his wife, there must be some number stuck in the Notice. This is a practice that has been mostly legislated out of existence, except for this one place in the Notice of Claim. But that number will bear no relation to reality. Since the extent of the injuries won’t be known at such an early stage, the lawyer must cover all contingencies and assume a worst case scenario. But this unrealistic number will then be broadcast in headlines far and wide by the media as if it actually has meaning. The Legislature should get rid of this provision, as it serves no useful purpose whatsoever other than for headline writers.

Sixth – Valuing the Life of a Child: In New York, unlike the vast majority of other states, a parent cannot sue for grief over the lost child. An action can only be brought for the pain and suffering of the child, or a wrongful death action for the financial loss. So if a child was knocked out at the time of a car accident, for example, and doesn’t physically suffer and  dies afterward, the law deems the child’s life to have little value since there was little financial loss to be expected. The family is thus unable to hold accountable those that did the true damage.  While some may feel odd about financial recoveries under such circumstances, it is really up to the people who suffered the loss to decide if they wish to donate money to charities, fund education, or embark on any other type of expense that they believe appropriate. The Legislature should bring our archaic wrongful death law into the modern era, and rid us of  this insult to grieving families.

 

May 12th, 2008

Jet Blue Hit With Toilet Lawsuit (Updated)

Another day, another idiot. I see the headline, “NY man sues airline over flight spent in toilet,” with a demand for two million bucks, and all I can think is, Did the tort ‘reformers’ pay them to do that?

It isn’t even Christmas yet. Not even close. And yet there seems to be this compulsion to hand gifts to corporate protectionists trying to slam the courthouse doors closed.

The basic facts of the story are that the plaintiff was allowed to board a packed Jet Blue flight, but was then told he had to sit in the toilet for the second half because a flight attendant needed his seat. While the facts seem ludicrous, I’ll give the guy the benefit of the doubt for the moment that someone effed up by putting one too many people on board, and that he deserves compensation of some kind (and that the FAA should investigate). If everything he says about the facts were true, as reported in the newspaper, a free ticket or two would certainly be in order. That’s why we have Small Claims Court.

My beef is with the idiotic demand for millions for “extreme humiliation” in New York’s Supreme Court.

Where do I start? How about here: The lawyers who brought this suit don’t do personal injury law for a living. How do I know this? Easy. They sued for $2,000,000 for personal injuries. Except that every personal injury attorney in New York, or at least every one that does this on any kind of regular basis, knows that New York banned the practice of monetary demands in personal injury suits years ago. (See: New York Cleans Up Claims Act)

So after getting the big tip off that this firm didn’t practice personal injury law, I logged on the court’s computers to double check. The suit was brought by a firm called Akin & Smith. And if you check their web site you will see that they practice in the field of employment and discrimination suits. I see nothing about personal injury. [See Update 1 below]

Hey guys, thanks a lot for helping to smear those of us that actually practice in this arena. Really, we appreciate it. I have three cases coming up for trial for people whose lives have been profoundly altered by negligence, and now I have to hear jurors talk about crap like this?

If this guy sues JetBlue for extreme humiliation for what they did to him, can attorneys who actually know what they are doing sue him for what he has done to us?

Update 1 — 5/15/08: It seems I missed the mark on whether this firm does personal injury work. I recieved this email about the firm from Louis J. Schepp:

You talk about the plaintiff’s attorneys, Akin & Smith as not doing personal injury work. During my days (29 years) at Liberty Mutual, I had dealings, in the last few years, with this firm in cases involving personal injury in both State and Federal Court. They do a sufficient amount of personal injury work, that they should know the rules about ad damnums, but may have wanted to get the press that large ad damnums bring.

On the other hand they may have wanted to start the clock on removal as soon as possible. Putting the ad damnum in the complaint is good strategy, (the statute does not provide any real penalty for putting it in) as it starts the time running on Federal court removal. I had a number of cases that I removed to Federal court, that I would not have been able to do so, if the ad damnum had been in the complaint, since the 30 day time limit is unforgiving.

Update 2: JetBlueLoo Follow-Up: What Really Happened? (5/15/08)
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Link is via TinyURL redirect, so their website doesn’t benefit from any Pagerank as a result of this post.

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Photo credit: From Wikimedia Commons

 

April 15th, 2008

Judge Suing City for $1M Makes Headlines. Why?

I don’t really get the newspaper biz sometimes. I saw the front page headline in the Daily News as I passed through the train station yesterday, and read the story online here. New York Supreme Court Justice Jack Battaglia slips and falls on a floor in his courtroom because it was left wet and soapy by a janitor. Water on the floor is hard to see. He busts up his knee. It seems, in all respects, to be a run-of-the-mill lawsuit.

He then sues for a million dollars. Well, not really, but that is an archaic quirk in New York law. Litigants have actually been prohibited since 2003 from putting a number in the Complaint, as I’ve discussed previously. But because this is an action against the City of New York, a litigant is required to file a Notice of Claim within 90 days and is required to put a number in the claim. Dumb rule. How many people know how bad a knee injury will be within 90 days? Will they need surgery or will conservative treatment work? Three surgeries? Will there be pain and a limp forevermore? The answers are generally unknowable at the time a claim must be filed.

But you are required by law to put a number in the Notice. And so any lawyer with functioning neurons knows you are forced to assume, by law, a worst case scenario. Because if you state that fair and reasonable compensation would be $100,000, and it turns out much worse, then you might be, as we say in legalese, shit out of luck.

Last year the New York legislature took another step in abolishing this rule with regard to suits in the Court of Claims, where suits against the state are brought. (See: New York Cleans Up Claims Act). The ad damnum thus went to the scrap heap for cases against the State, as they had for everything else.

It’s time the legislature took the next step and dumped the rule for Notices of Claim against the City of New York. It serves no useful purpose. If the city wants to know what a litigant feels is the fair value of a matter, they can easily pick up the phone and call, or ask for it in writing, but requiring it by law is dumb, dumb, dumb.

As to the Daily News article, the writer calls it “the mother of all slip-and-fall cases.” Well, no, pretty routine actually. They call the judge “politically connected.” Do you know any that aren’t?

[Update: No suit has been brought, just a Notice of Claim filed. The purpose of which is to give the city prompt notice allow it to investigate the matter. So no, the janitor has not been sued, but has been partially identified. Which allows the city to investigate the claim. Which is kinda the whole idea.]

Should he not sit on city cases? Good question. Since there are plenty of judges in the courthouse, avoiding the appearance of impropriety is probably a good thing here.

But a much better question is: Why hasn’t there been any similar question about Wacthell Lipton representing the judiciary in the judge’s lawsuit for pay raises, and the ramifications of them appearing in front of judges whose interests they represent? Now that is a front page story. Yet I seem to be the only one to have covered it.

 

August 20th, 2007

New York Cleans Up Claims Act

One of my pet peeves is the demand for damages that often gets placed in personal injury suits. Sometimes those claims for a bazillion dollars end up in the paper. Which is to say, they make the attorney (and the bar as a whole) look stupid and greedy. The folks at Overlawyered and other tort “reform” sites love that kind of stuff.

Except that the ad damnum clause — as it is still known to latin-loving lawyers who want to look smart in front of others — is usually all-but-meaningless. The claims are often put in because the lawyer has no choice, since putting a number in may be statutorily required (though putting a stupid number in is not). The basic problem in determining what the demand will be is that, quite often, it is unknown how extensive the injuries will be when the complaint is drafted. So an attorney, scared of putting in a number too low and being bound by it if the injuries turn out worse than currently known, puts in a whopper of a number to be safe. Making a $100,000 demand on a case that turns out to be worth $300,000 could lead to big problems depending on where you are.

Back in the 80s, New York did away with this foolishness in medical malpractice cases, because the doctors’ lobby thought the big numbers in the complaints were outrageous. Big numbers made big headlines. When the case settled for less, or was resolved on some “normal” terms, it certainly wasn’t newsworthy. The medical community was right to want this demand removed from the filings.

Then New York expanded the rule to all personal injury cases in 2003. Thankfully, we were no longer required to create some number to put in the papers.

But there was one catch. If you sued the State of New York in the Court of Claims, you were required to make that damages demand. And a case was dismissed this year for failing to do so. New York clearly needed to get its act together on this.

As of last week, that problem no longer exists as it has been legislated out of existence.

Other states that still require such a speculative demand at the outset of a suit should likewise send this rule to the trash heap. It is unfair to a plaintiff that is forced to create it and likewise unfair to a defendant that must endure it.