Monthly Archives: March 2013

Seeing Shadows…and Future Lawsuits

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In the news recently was a story about an attorney who brought “charges” against poor Punxsutawney Phil, the groundhog whose sole claim to fame is being dragged out of a cage (theoretically, his “burrow”) once a year on February 2nd, where some local bigwig in a top hat declares whether or not Phil has seen his shadow. Per folklore, if the little rodent “sees” his shadow, another 6 weeks of winter can be expected, but if he does not, then spring should arrive early.

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This year, after Phil supposedly did not see a shadow, thereby forecasting an early spring, large portions of the country were nevertheless pounded with severe winter weather. In spite of Phil’s historical accuracy rate of less than 40%, the unending snowdrifts led Butler County (Ohio) prosecutor Mike Gmoser to prepare legal pleadings to have Phil indicted for “misrepresentation of spring” thus committing a felony “against the peace and dignity in the state of Ohio.” It seems that most people appreciated the humor in that (it was a joke, after all), and to date nobody has made a stink about Gmoser using county supplies or wasting government time and expense to generate this harmless prank. However, one has to wonder if this will plant a seed in the minds of more litigious individuals. Will someone decide to actually sue a weatherman? Believe it or not, there is precedent… A few years ago, a woman in Israel sued a weather forecaster who predicted a sunny day, which turned out to be incorrect. Claiming that she had dressed for dry weather, she alleged that she got sick from being soaked in the rain, and had to expend funds to buy medication to treat her flu-like virus. And she WON.

While I have no expertise about the Israeli legal system, if one can recover monetary damages for a weather forecaster’s incorrect prediction, what is to stop people from suing not only weather forecasters, but those who predict the outcome of sporting events, races, award shows, elections, etc? The “injuries” one might allege simply for having prepared for a weather forecast that turns out wrong would hardly seem to support much of a damage claim. But what of those who “invest” large sums to bet on the 49ers in the Super Bowl, only to incur huge losses when the Ravens won? Can they sue the prognosticators who suggested that the 49ers were a good bet? Some internet entities charge sports addicts a fee to offer advice on which teams to take, what point-spread can be overcome, and offer an almost certain “pick of the week”, etc. People gamble huge sums of money based on these supposedly well-informed predictions, and still LOSE. Does that, or should that, expose them to legal liability for their predictions?

And what of all of the political “experts” who predict which candidate will carry a state or a district? If they predict a landslide and the results are close, could they be sued for dissuading a political party from investing time and resources in the area, and potentially turning an election? Perhaps these experts are employed by the party itself, which wouldn’t sue its own employee. But what of a bitter local resident, who feels that the voter turnout could have been higher were it not for the negligent projection that their chosen candidate couldn’t win that district? The damage claims could include emotional distress, an increased tax burden, loss of individual freedoms, or whatever other social change is delivered by the “wrongly” elected winner of the vote.

Making decisions based upon someone else’s “predictions” is fraught with peril. Perhaps it is only because we know that such predictions aren’t a guarantee that people refrain from suing over them. But we should be cautious of the slippery slope that may arise even from a satirical suit against poor Phil. It wouldn’t take much for a creative plaintiff to consider taking the next step. Then all of the world’s forecasters and prognosticators will have to start hiding in their own respective burrows.

Got drunk and killed someone … but what about MY damages?

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In one (or more) of the original series of Star Wars movies, flummoxed hero Hans Solo could be heard exclaiming “It’s not my fault” when his bucket-of-bolts spaceship wouldn’t fly as it should. Needless to say, when one faces civil or criminal liability for their conduct, a common defense is that it’s “not my fault”. But a recently filed lawsuit in New Mexico takes the concept of refusing to accept personal responsibility one step further.

James Ruiz, already out on bond on his fifth DWI, was involved in a fatal drunk driving accident in 2010, in which two teenage sisters were killed. Mr. Ruiz was appropriately convicted of his crimes and sentenced to prison. The family of the girls filed civil suits, not surprisingly, against Ruiz (who is undoubtedly judgment-proof), and against the restaurant that served him alcohol that night, leading to his .22% blood-alcohol level at the time of the crash. Such a claim, known as “dram shop” liability, allows aggrieved victims of alcohol-related injuries to seek damages from the bar, restaurant or entity that over-served the drunk driver. Few would argue with the legitimacy of such a claim, although proof, of course, must be established on a case-by-case basis.

Mr. Ruiz, however, also felt personally aggrieved at having to do a 40 year stretch in the state’s correctional facilities, and therefore filed his own suit against the restaurant (and his drinking buddy that night as well), claiming that their actions caused him to suffer emotional distress, loss of liberty and loss of the ability to enjoy life. Apparently, since this was his sixth DWI, he will contend that he faced much less than 40 years in prison if convicted only on the charge for which he was out on bond at the time of this accident, had he not been forced by his buddy and the restaurant to down enough drinks to register a .22% blood alcohol level. Everyone knows that the profit margin on alcohol at any restaurant is pretty good, hence the reason the wait staff will frequently inquire if you “want another?” (and which, by increasing the bill, likely increase their tip). When the restaurant staff ignores the increasing inebriation of a hard-drinking patron who then causes injuries to someone after leaving the facility, dram shop laws make that restaurant liable to the injured party. But if the law were to make them liable for damages to the person actually doing the drinking too, then we’ve gone way past compensating the innocent victim, to the point of financially rewarding the actual guilty party. Doesn’t the “drinker” have to take personal responsibility for his own actions? Even when the staff politely and frequently inquires about another drink, or even pushes or cajoles one to order more, every customer has the right to say “no”. Or can they claim to be so weak-minded and lacking of backbone that they cower at the mere inquiry from a waitress about having another drink?

If a claim like this moron’s is valid, then where does it stop? A street thug who shoots a robbery victim sues the good Samaritan or police officer whose intervention causes the gun to go off for his own emotional distress at having to do time or watching his victim bleed? Perhaps Captain Schettino should consider suing the people waving to his boat from the nearby shore which apparently caused him to divert the Costa Concordia into the rocks that sank his ship, killing several dozen people. Couldn’t he claim that their conduct ultimately have caused him emotional distress? And he’s likely going to have that whole “loss of liberty” claim to raise because of his probable incarceration. That’s the new tort law idea…even when your own personal conduct and actions cause death or destruction, just claim “it’s not my fault” and find someone else to whom you can pass the responsibility, and sue them for your own damages over the incident where you injured or killed someone else.

At least I’m happy to say that in Mr. Ruiz’ case, he filed his lawsuit himself, so we can’t blame this poppycock on some sleazy ambulance-chasing attorney.

Anheuser-Busch Faces Class Action Suit Over Allegedly Watered Down Beer

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There are no limits to the imagination of “class action” attorneys who want to find an issue to raise on behalf of those little people allegedly victimized by the conduct of the big corporate defendant. As most people know, the class plaintiffs in any such suit generally each get a few bucks, or a coupon for 50% off future purchases of the product in issue, while the attorneys reel in millions of dollars in fees for representing the class. I don’t begrudge the attorneys their contingent fee — if you take the risk of litigation you should reap the reward — but class action cases just seem so inequitable because instead of an individual plaintiff receiving the bulk of any settlement or verdict, millions of “plaintiffs” really get nothing. The more troubling part are the trivial things they come up with over which to file suit. The whole idea behind bringing a class action suit over some minor issue is that it is fiscally more reasonable for the defendant to settle the claim than to litigate it. I only wish more of them really went to trial, where the proof of some actual damage is required. The latest ingenious claim is that Anheuser-Busch has “watered down” their beer. To their credit, A-B is fighting back with an advertising campaign mocking the idea that they water down their product. But what I’d really like to see is the actual trial on these claims. How do the plaintiffs march into court and assert that they were damaged by getting LESS alcohol? Are they going to claim that in order to get good and wasted they had to buy 12 beers instead of 11? That when they got pulled over for drunk driving they only blew a .07 instead of the legally required .08 to get that DUI ticket because A-B was cheating them out of alcohol? And if it is really watered down, they likely got a few less calories than expected. Are they going to assert that their beer gut just doesn’t measure up to their buddies?http://www.dreamstime.com/stock-photography-pouring-beer-image5000172

We all understand the concept that we expect to get what we paid for. If you expected your beer to be 5% alcohol and for some reason it was only 4.9%, then the seller didn’t meet their end of the bargain. No doubt about it. And I guess this is what the plaintiff lawyers here are really trying to say. But seriously, is this the kind of thing that should be tying up our legal system? This is the kind of suit that really does give lawyers a bad name. I’m upset. Think I’ll go have a beer…or maybe two.