Lawsuits........any comment

[Rawedge Rim]

George Will: Lawsuits and death of common sense

WASHINGTON — Called to a Florida school that could not cope, police led the disorderly student away in handcuffs, all 40 pounds of her 5-year-old self. In a Solomonic compromise, schools in Broward County, Fla., banned running at recess. Long Beach, N.J., removed signs warning swimmers about riptides, although the oblivious tides continued. The warning label on a five-inch fishing lure with a three-pronged hook says, "Harmful if swallowed"; the label on a letter opener says, "Safety goggle recommended."

No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom. Another teacher's career was ruined by accusations arising from her having positioned a child's fingers on a flute. A 2004 survey reported that 78 percent of middle and high school teachers have been subjected to legal threats from students bristling with rights. Students, sensing the anxiety that seizes schools when law intrudes into incidental relations, challenge teachers' authority.

Someone hurt while running at recess might sue the school district for inadequate supervision of the runner, as Broward Country knows: It settled 189 playground lawsuits in five years. In Indiana, a boy did what boys do: He went down a slide head first — and broke his femur. The school district was sued for inadequate supervision. Because of fears of such liabilities, all over America playgrounds have been stripped of the equipment that made them fun. So now in front of televisions and computer terminals sit millions of obese children, casualties of what attorney and author Philip Howard calls "a bubble wrap approach to child rearing" produced by the "cult of safety." Long Beach removed the warning signs because it is safer to say nothing: Reckless swimmers injured by the tides might sue, claiming that the signs were not sufficiently large or shrill or numerous, or something. Only a public outcry got the signs restored.

Defensive, and ludicrous, warning labels multiply because aggressiveness proliferates. Lawsuits express the theory that anyone should be able to sue to assert that someone is culpable for even an idiotic action by the plaintiff, such as swallowing a fishing lure.

A predictable by-product of this theory is brazen cynicism, encouraged by what Howard calls trial lawyers "congregating at the intersection of human tragedy and human greed." So: A volunteer for a Catholic charity in Milwaukee ran a red light and seriously injured another person. Because the volunteer did not have deep pockets, the injured person sued the archdiocese — successfully, for $17 million.

The thread connecting such lunacies is a fear permeating American life. It is, alas, a sensible fear arising from America's increasingly perverse legal culture that is the subject of what surely will be 2009's most needed book on public affairs — Howard's "Life Without Lawyers: Liberating Americans from Too Much Law."

A nation in which the proportion of lawyers in the work force almost doubled between 1970 and 2000 has become ludicrously dense with laws. Now legal self-consciousness is stifling the exercise of judgment. Today's entitlement culture inculcates the idea that everyone is entitled to a life without danger, disappointment or aggravation. Any disagreement or annoyance can be aggressively "framed in the language of legal deprivation."

Law is essential to, but can stifle, freedom. Today, Howard writes, "Americans increasingly go through the day looking over their shoulders instead of where they want to go." The land of the free and the home of the brave has become "a legal minefield" through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.

Time was, rights were defensive. They were to prevent government from doing things to you. Today, rights increasingly are offensive weapons wielded to inflict demands on other people, using state power for private aggrandizement. The multiplication of rights, each lacking limiting principles, multiplies nonnegotiable conflicts conducted with the inherent extremism of rights rhetoric, on the assumption, Howard says, "that society will somehow achieve equilibrium if it placates whomever is complaining."

But in such a society, dazed by what Howard calls "rule stupor" and victimized by litigious "victims," the incentives are for intensified complaining. Read Howard's book, and weep for the death of common sense.

[Avatar]

It's madness. The rest of the world makes jokes about the litigiousness of American society. (Although I notice the British seem to be heading that way as well.)

I'm not sure what's caused it...but if it seems ridiculous to you, imagine how much more ridiculous it seems to us.

Everybody seems to think that if something bad happens, it must be somebodies fault. And if it's somebodies fault, they must be liable.

--A

[dlbpharmd]

Last summer, my 4 year old daughter had an accident at the pool at our local state park. Standing with her back to the water, she tried to jump into the water, but didn't jump far enough and cut her chin on the side of the pool. It was just one of the crazy things that 4 year olds do. We took her to the ER at my hospital, and a little skin glue later, she was fine.

My insurance company contacted me and inquired about the accident. I told them what happened. The company sent a form to me that I had to sign, promising that if I sued the state of Tennessee for her accident, and won, that I would reimburse my insurance company the cost of the visit to the ER.

Honestly, it never occured to me to sue. It was an accident, no one's fault. But I'm sure there are a lot of people who would've sued the state for something like that, and probably won alot of money.

BTW - the insurance company sent another form that I had to sign - with this form I swore, under penalty of perjury, that my 4 year old daughter was not under the influence of alcohol or drugs at the time of the accident.

The second form REALLY pissed me off.

[Avatar]

*shakes head* It wouldn't occur to anybody here to sue either. And maybe it wouldn't occur to many there either...I suddenly wonder how many people have the idea put into their heads by their insurance companies, hoping for reimbursment?

--A

[taraswizard]

Rather than join this group's racous and vigorous condemnation of the litigous I'll offer some alternative information. This actually refers to point brought up before. It was pointed out that an insurance company wanted and required a statement of third party indemnifcation regarding any claims and awards given as a result of the injury.

So a few years back a Walmart employee was seriously injured in a car accident, their Walmart employee health insurance paid for their complete as possible recovery to the amount of $400,000+; however, the former Walmart employee has suffered a permanent disability, including loss of her short term memory. The accident was the result of willfull negligence on the part of the driver who injured the Walmart employee, and IIRC drunk driving was involved. The drunk driver was sued and the injured party received a ca. $400,000 settlement, and then Walmart's health insurance carrier sued the injured party for recovery of the settlement. UNREAL and Greedy much.

[wayfriend]

As I always say, you can't judge whether people should be free to do something based on what they do with their freedom. Either the freedom is deserved or not, based on principles, not on examples.

In this case, we are talking about the freedom to recover damages from someone who caused you to be hurt. In principle, that's a good freedom to have.

If a lawsuit is truly frivolous, it will be dismissed out of hand, or as near to as possible. It doesn't impact the system to any significant degree. If it does, then it's probably not as frivolous as you wish, it's probably something with enough merit to look into.

Beats the heck out of taking away people's rights to claim damages, whether in full or in part.

[SoulBiter]

There was a thread about this Walmart Vs Brain Damaged Woman

[Blackhawk]

heres a good case of frivolous lawsuits....

My friend was in his car with a car load of people going to a play and they came to a parking lot ..when he tried to park (very little parking) he found a spot and when he started pulling in a lady jumped off the curb and yelled...Im Saving this spot!! he was halfway in and people were already tailgating him so he said fine....let me pull in until these people pass and i will back out to find another spot (he had no room to back up or turn back into the lane)..... she said NO!! so he started edging into the spot to let people pass...well this lady sticks her leg out brushes up against the front fender and screams like she got hit by his car, and laid down until an ambulance was called, and he was doing maybe .003 mph to make my point. she ended up taking him to court and suing his insurance for $150,000 dollars because she had previous back injuries that were "re-aggravated" by this "accident". I told him (Jokingly) he would have been better off running over and killing her and calling it an "accident".

they said the people in the car were biast because they were Family members, and no one else besides them witnessed it.

The only reason his insurance didnt completly drop him was because they researched her background and she apparently had won a couple other lawsuits similar to this.

[Farsailer]

That letter now makes sense. Following my knee surgery a couple of years back, I got a letter from some outfit I never heard of that I found out later they specialized in cost recovery for insurance companies. They wanted to know if someone was liable or otherwise negligent in causing my injury. Judging from the tone of the letter and the questionnaire that came with it, I figured they were fishing for someone to sue on my behalf and recover the insurance company's cost of paying for my MRI and subsequent surgery. Just odd at the time as I had never heard of this sort of thing. About the injury itself, it was just one of those things that can happen on a basketball court so I round-filed it.

[Avatar]

Nice to see you at the Watch Taras.

If a lawsuit is truly frivolous, it will be dismissed out of hand, or as near to as possible. It doesn't impact the system to any significant degree. If it does, then it's probably not as frivolous as you wish, it's probably something with enough merit to look into.

Well, I was about to say that frivolous lawsuits don't always get dismissed out of hand, but a quick check of the so-called famous ones shows me that tort reform does happen. In fact, I've just learned that GW Bush's first act as governor was to limit punitive damages, reduce venue shopping for favourable judges and juries, and make it easier to impose sanctions on those bringing frivolous suits.

That said, I then wonder how much influence the perception of frivolous lawsuits affects people's fear of them. The examples in the original post certainly seem frivolous, if not ridiculous, to some extent.

Does the fishing-hook have a warning label because the manufacturer has had problems with people swallowing them and blaming him? Or is it because the perception of rampant lawsuits makes him fear one being brought against him?

--A

[wayfriend]

In fact, I've just learned that GW Bush's first act as governor was to limit punitive damages

Now there's an assault on personal liberty that should make a libertarian vomit. Who is the government to say what I can litigate for? If the judge says I can, then the government should butt out. But, alas, this is not anything to do with frivolous lawsuits, this is all about corporate welfare dressed up as court reform. To wit: it limits all damages, frivolous case or not. Was your case absolutely non-frivolous? Too bad.

That said, I then wonder how much influence the perception of frivolous lawsuits affects people's fear of them.

Drive up the fear, and then justify attacking personal liberty. Same old pattern.

[Avatar]

But there should be some sort of regulation...it would be ridiculous to sue the fish-hook manufacturer if you swallow the fish-hook.

--A

[rdhopeca]

But there should be some sort of regulation...it would be ridiculous to sue the fish-hook manufacturer if you swallow the fish-hook.

--A

Sort of like how it would be ridiculous for your family to sue a gun manufacturer if you shot yourself in the head with it?

I agree there should be some sort of regulation, but there should be even more common sense.

[Avatar]

Common sense is anything but...

It's also what tells you that the earth is flat...

And you can't legislate it.



Anyway, yes, your example would be ridiculous too.

--A

[wayfriend]

But there should be some sort of regulation...it would be ridiculous to sue the fish-hook manufacturer if you swallow the fish-hook.

That's what judges are for.

You can't prejudge a case as frivolous without hearing it. That's unjust.

And the answer isn't to pass a law saying sporting goods manufactorers can't be sued for more than some amount. Because that's also unduly protecting the company that made made teeth guards out of arsenic and asbestos and sold them to grade schools across the country. Whom I don't think deserve such protection.

Limiting damages is really about lowering the cost of making bad products. Frivolous lawsuits is a cover story.

[Rawedge Rim]

But there should be some sort of regulation...it would be ridiculous to sue the fish-hook manufacturer if you swallow the fish-hook.

That's what judges are for.

You can't prejudge a case as frivolous without hearing it. That's unjust.

And the answer isn't to pass a law saying sporting goods manufactorers can't be sued for more than some amount. Because that's also unduly protecting the company that made made teeth guards out of arsenic and asbestos and sold them to grade schools across the country. Whom I don't think deserve such protection.

Limiting damages is really about lowering the cost of making bad products. Frivolous lawsuits is a cover story.

Why is it unduly protecting the company. One should sue for damages certainly, and I believe some punitive damages are appropriate in gross cases, but why should I be able to sue someone for what amounts to a $100K for damages, and then turn around and sue them for $10,000,000 in punitive damages, unless I can prove absolute gross negligence of an ongoing nature. And why should I be able to shop around for a county and a judge more friendly to my case, instead of the juridiction where my damage occurred?

Or how about the judge in D.C. who sued his dry cleaner for millions because the sign in the window stated "Satisfaction Guaranteed" and he said that he would not be satisfied unless he was paid millions?

[Avatar]

Why is it unduly protecting the company.

Well, I think it is in cases of gross negligence WF is talking about. If they're limited, even gross negligence can't be sued for more than that limit.

--A

[wayfriend]

Why is it unduly protecting the company.

Because we already have a system that includes a judge and a jury that decides what is an appropriate amount of damages and what is not.

A law that sets a limit -- without even hearing the merits of the case -- can only do ONE THING. It can only lower the damages when a judge and a jury think that higher damages are appropriate.

Ergo, it is unduly protecting the company.

In a single blow, we have unfairly ruled on a case without hearing it, we have undermined the authority of judges and juries, and we have protected criminals from fair and appropriate punishment.

The only basis put forward for this is a hysterical fear of unreasonable damages in lawsuits. This intentionally overlooks that there is a judge and jury involved, and that what may seem unreasonable to someone unfamiliar with the case is probably fair and appropriate when the merits of the case are understood. The majority of the of the time anyway.

If there are oddball cases where the outcome is suspect --- and if the appeals process built into our justice system can't resolve it in due course --- then that needs to be addressed. But not this way. This way does too much harm for the little good accomplished. It unduly protects companies, so that they can factor in the cost of litigation as the cost of doing business, while pretending to be reform.

[Rawedge Rim]

Why is it unduly protecting the company.

Because we already have a system that includes a judge and a jury that decides what is an appropriate amount of damages and what is not.

A law that sets a limit -- without even hearing the merits of the case -- can only do ONE THING. It can only lower the damages when a judge and a jury think that higher damages are appropriate.

Ergo, it is unduly protecting the company.

In a single blow, we have unfairly ruled on a case without hearing it, we have undermined the authority of judges and juries, and we have protected criminals from fair and appropriate punishment.

The only basis put forward for this is a hysterical fear of unreasonable damages in lawsuits. This intentionally overlooks that there is a judge and jury involved, and that what may seem unreasonable to someone unfamiliar with the case is probably fair and appropriate when the merits of the case are understood. The majority of the of the time anyway.

If there are oddball cases where the outcome is suspect --- and if the appeals process built into our justice system can't resolve it in due course --- then that needs to be addressed. But not this way. This way does too much harm for the little good accomplished. It unduly protects companies, so that they can factor in the cost of litigation as the cost of doing business, while pretending to be reform.

Such as the judge who sued his dry cleaners for millions. Cost the business thousands (in fact they offered him like 100k to drop his suit cause it was bankrupting them), and instead of throwing this case out of court with prejudice, it keep getting resurrected.

Unfortunately, judges are not using "COMMON SENSE" here. A kid gets hurt on the fricken' slide at the playground, you should not be able to sue the school for more than it cost to cover the medical care. One should not be able to sue a business owner for booby-trapping an vent that burglers had been using to break into his store. And I could go on and on.

Now if huge punitive damages should be imposed, would I would love to see is the lawyers get none of the punitive, and all of the punitive go to charity. This would serve two purposes:

1. Helps the chosen charity
2. If punitive damages are being actually sought in order to "punish" the abusing party, then they still get punished, but it isn't being driven by a lawyer wanting an ever greater recovery.

[Avatar]

A kid gets hurt on the fricken' slide at the playground, you should not be able to sue the school for more than it cost to cover the medical care.

Agreed in principle. And I'd be fine with the charity thing too, as long as the victim and/or family is covered for their related costs ect as well.

--A