A guest blog today, from David Waterbury, a local personal injury attorney I’ve had the pleasure of knowing for about 25 years or so, from the days I worked at my first job after law school. And Waterbury has decided to take on the latest “list” of dubious lawsuits. But are they frivolous? Dave checks out a few of them…
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It’s that time of year again. The calendar says everybody and his third cousin has to make a list of the Top 10, Top 100, Top 5 or Top However-Many of the Best, Worst, Funniest, Stupidest things that they think anybody else might be interested.
So naturally, we here at the NY Personal Injury Law Blog found our interest piqued when we saw this, from The Week, on the 8 craziest lawsuits of 2011. Now this is hardly the first time that somebody has compiled a list of what they perceive to be “wacky” lawsuits. In fact, one such list famously manages to make the viral e-mail rounds nearly every year.
The problem is, ALL of the lawsuits in that famous e-mail list are fake. Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans. The difference in The Week’s list of The 8 Craziest Lawsuits of 2011, and what makes it worth blawging about, is that at least some, and quite possibly all, of the lawsuits on the list are real.
So, after we have chuckled, chortled, whined, groused or ranted about crazy/stupid/frivolous claimants and there claims, is there anything to actually learn from this? I think so. One thing we can learn is to never judge the merits of something as serious as a lawsuit from a cute and clever couple of sentences in an on-line magazine.
At least a few of the eight suits listed by The Week appear to have some merit or value. Take, for instance, suit number 7 from the list: “The Walmart customer who sued over two cents.” The “real” truth behind this case seems to be that Walmart was being accused of systematically overcharging its customers by rounding up to the nearest dollar. As one of my colleagues, New York plaintiff’s lawyer, Mark R. Bower, said,
[this] is, in effect, a class action claim writ small. If the claimed ’rounding error’ is true, Walmart is ripping off consumers collectively for major amounts, 2 cents at a time. The fact that the plaintiff was awarded $180 damages by an impartial judge demonstrates the validity of the claim, while at the same time, gives a modest award that is a reasonable remedy. If enough people were awarded $180 for this offense, Walmart would stop this conduct. “
Indeed they should, and perhaps, now, they will. If not, it may be time for a “real” class-action suit.
Another case on the list that is worth looking into a little more closely is this: “5. The employee who got fired for working overtime.” Now I don’t profess to have inside information on this claim, but I do know that wrongful termination lawsuits are on the rise, particularly in the last few years and at least one of the reasons is that many employers are looking for reasons to let people go, due, in part, to the economic down-turn.
According to The Consumerist, the manager said he was forced to work more than 40 hours a week without receiving overtime pay. He was often off-duty on break, having punched out, but had to help someone and then tried to turn the clock back on. But he couldn’t turn if off again for 1/2 hour. The firing was retaliation for the complaints he had made about being denied uninterrupted breaks.
If, in fact, working through his scheduled lunch break, helping out customers or co-workers, was one of the reasons used to justify this employee’s firing, well then Target deserves to get sued over it, and the manager deserves to win his job back along with back pay and damages. It’s likely that the actual facts and allegations were somewhat different than the way they were couched in The Week‘s article, whether the editorial skewing for entertainment purposes was at the expense of the store or the employee, we don’t know.
Another suit worth taking a little deeper look at is “8. The kids who sued mom for failing to spoil them.” In coming up with a headline that would grab the reader’s attention (and prime them for hating this case before knowing anything about it) The Week’s editors really crossed the line.
The appellate judge who authored the opinion affirming the dismissal of the suit, First District Appellate Court of Illinois Justice Joseph Gordon, nonetheless termed the mother’s actions towards her as “erratic,” “spiteful,” “less than generous” and not “sensitive to the material and emotional needs of her children.” The case was dismissed, according to this HuffPo article, becasue, “The case’s dismissal was attributed in part to the legal ramifications of establishing a precedent allowing retributive actions for parenting style that doesn’t constitute abuse.”
While I think justice was certainly done here, there is something to be said for, in the appropriate circumstances, using the civil courts to test where the boundaries of bad behavior lie. Certainly the mother was not vindicated here. In my book, as both a lawyer and a father, being erratic, spiteful, ungenerous and emotionally insensitive to one’s children and their needs is borderline child abuse. It is way at the other end of the spectrum from “failing to spoil them.” Shame on you The Week!
“4. The woman who sued after being ‘forced’ to listen to Limbaugh.” My personal feelings that being forced to listen to Rush constitutes cruel and unusual punishment in violation of the Eight Amendment to the U.S. Constitution, aside, this appears to be, at its core, a false arrest/false imprisonment case. The part about being “forced to listen to Rush” part seems to be an expository item on the issue of her damages for being falsely arrested. In addition, it seems likely that her complaint regarding Rush was the allegedly racist content of show during the time she was a captive audience, rather than it’s purveyor.
While at first blush, “6. The groom who demanded a restaging of his wedding” seems to be a poster-child for a crazy litigant pursuing a frivolous claim. But wait! There’s more! It seems that this was actually just a small claim about bad wedding pictures. Everybody knows somebody whose wedding photographs lousy. Not just the occasional bad proof, but every-photo-has-somebody-with-their-eyes-closed-picking-their-noselousy. The type of lousy that we pay professional photographers $4,100 to prevent on our wedding day.
According to Above the Law and the New York Times, the part about re-staging the wedding was not a claim in the Complaint, but popped out of the plaintiff’s mouth at a deposition. Oops! Unhappy lawyer for sure. Oh, Goodwin Proctor, the plaintiff was the son of one of the partners. They understandably were handling the small commercial matter for him, at least until the plaintiff had his brain-fart.
And finally, there is “1. The couple who sued over a mid-air cockroach sighting.” By way of background, it is important to note that insect and other vermin infestations often provide the underpinnings to valid legal claims. Restaurants, for instance, can be fined, and even closed down, if they fail to keep their establishments relatively free of pests, including roaches. Roaches are dirty. They harbor and carry diseases and other germs. They are attracted to food consumed by humans. They are averse to light and can seemingly fit through impossibly small openings. If one happens to get into or onto your airline food, you could become sick. If one manages to get into your carry-on or other luggage, you will be bringing home a portable infestation.
On a more serious note, many people are pathologically frightened of insects and bugs. My own girlfriend, for instance, would likely have a full-on anxiety or panic attack if she were confined on an airplane for several hours with cockroaches crawling out of the ventilation system. I’m talking serious: Nausea, vomiting, uncontrollable shaking, crying, headaches, followed by at least several weeks of persistent nightmares. In fact, according to the Huffington Post (which appears to be where The Week’s author seems to have exhausted his or her research skills) reports here:
Other passengers, they allege, became aware of the issue and some were even physically sick.
A news report has pictures of the roaches coming out of an overhead vent. While this might not be the most valuable lawsuit to come down the pike lately, it is far from “frivolous.” I am betting the airline pays them something to settle this because it has merit.
So what can we learn from this:
1) Don’t believe everything you read (even here!) Check out the real facts before forming an opinion.
2) Almost any lawsuit can be made to sound “crazy” by careful editing. Magazines, particularly those on the internet, survive by grabbing your attention. Too often, the real facts and issues of a lawsuit don’t have sufficient attention-grabbing interest, so the editors have to create it by playing fast and loose.
3) Just because a suit has minimal dollar value to the litigant, doesn’t make it frivolous. In fact, much social good can be done by folks willing to take a financial hit in order to do the right thing, like keeping a multi-billion dollar chain from stealing millions of dollars from working folk, 2 cents at a time. Most of us don’t or won’t do it, but those who do deserve to be honored, not ridiculed.
4) The justice system generally works in this country. Sure, everybody has their own favorite story or two of when it didn’t, whether criminal or civil, but for the overwhelming majority of cases, it works just fine. Click here to view a famous foreign observer’s homage to the American jury system
5) There is an economically and politically powerful lobby in this country, consisting largely of big business and the insurance industry, and coordinated by the U.S. Chamber of Congress and the NAM, who have a vested economic interest in closing the courthouse doors to average Americans. Articles like that in The Week serve their interest, usually not by chance or coincidence.
A very interesting break down of these cases. More than just speaking out against the corporate lobby that wants to re-write laws to limit damages, the ridicule of the media or a viral email can have a chilling effect on those with valid claims being reluctant to come forward. If people are afraid they’ll be dragged through the mud for bringing a “frivolous” claim, they may not seek the justice they are entitled to.
Congrats on making the ABA Journal’s fifth annual top 100 law blog list!
>Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans.
This is an assertion of serious misconduct. Please document it. If you can establish who wrote the “Kara Walton” string of fictional anecdotes, and show that they did so with a willful political aim of misleading readers as opposed to, say, trying to write satire that later escaped to be taken seriously, you will achieve mini-fame in tort policy circles. If you can’t establish such things, on the other hand, you might ask exactly who is spreading urban myths for political advantage.
@Walter Olson – I’m not sure what you are looking for. There is no doubt the “Kara Walton” stories, as you refer to them, were fabricated, nor that they continue to make the rounds touted as true by some in the media and others. As for their original source, apparently neither you nor I can prove our own theories/opinions. You choose to believe it was innocent satire, which comports with your Weltsanshauung, and I choose to believe it was from persons with an ax to grind against those who toil to keep their power and greed in check, which comports with mine. I do find it interesting/curious that my opinion as to the source of the false stories, which were not what was being discussed here, was the only thing you chose to comment on.
David E. Waterbury
Serious Representation for the Seriously Injured
I am not running around on the internet flatly asserting this was an innocent satire, since I have no evidence. On the other hand, you first flatly assert that it was a non-innocent non-satire, and when challenged, acknowledge that this is just something you “choose to believe” with zero, zip, actual evidence. I will keep these standards in mind when I find you asserting other factual propositions.
It’s called opinion, you should look it up.
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@Walter Olson – Ok, I’ve got more to say: I tried being respectful out of deference to your esteemed position within the Tort Deform movement. But since that apparently doesn’t work for you, lets get real, shall we? As I was starting to say before my phone belched: It’s called opinion, you should look it up some day. I would have thought that somebody as smart as you would know the difference between an opinion and statement of fact. The only part of this: “The problem is, ALL of the lawsuits in that famous e-mail list are fake. Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans” which was an assertion of fact, is the part about them being all fake, and completely made up. That’s a fact, it’s true. You can even look it up on some tort deform sites to see that they are made up. Even you don’t deny they are not true. You called them, and I quote: “[a] string of fictional anecdotes. . .” The rest of my statement, that it was part of a campaign by the enemies of justice to close the courthouse doors to Americans, was clearly my opinion, and one I stand by. As to the rest of your most recent comment, I did not use the term “a non-innocent non-satire”. I don’t write that stiltedly (at least I hope not!). More importantly, I did not “acknowledge” (challenged or otherwise) that there is “zero, zip, actual evidence” to support my opinion. What I said, was that neither your nor I could “prove” our opinions as to the original source of the material. (You should look that up, too. There is no reason or excuse for misquoting me when the actual text is right up there ^.} For those keeping score at home, “evidence” and “proof” are not the same thing. You can’t prove something without evidence, but some evidence of something does not necessarily prove it. I think there is plenty of “evidence” to support my opinion that the enemies of justice at least had something to do with disseminating those fabrications. But I don’t have conclusive proof, by any means. The last I checked, a lack of conclusive proof does not prevent anyone from stating an opinion. More importantly, nor does it necessarily invalidate the opinion. I never ceases to amaze me that wingnuts love to misquote people and accuse them of doing or saying things they haven’t ever done or said. It must be because their causes are so morally bankrupt that there is no legitimate means of defending them, so they resort to smear and intimidation.
David E. Waterbury
Serious Representation for the Seriously Injured
You have evidence? Wonderful. Can you share it please? Then we can make our own minds up instead of relying on unevidenced assertions.
How about commenting on the subject of the post, to wit: the story in The Week?
David E. Waterbury
Serious Representation for the Seriously Injured
Geez, a guy goes away to ski for a few days and all hell breaks loose.
Leaving aside who is responsible for creating and spreading the stories, and focusing on the article in The Week:
Walter, do you agree that the headlines for these stories (that Dave commented) represented distortions of what the suits were actually about? Do you think The Week’s article was fair in how the lawsuits were depicted?
Well, sure, if The Week had asked me to compile such a list some of the items and all the headlines would have been chosen differently. Instead the editors wanted an exercise in light consumer journalism, and that’s what they got. To imply that it ran to “serve the interest” of the “enemies of justice” is … quaint.
The one bit of his critique I probably should have lingered over is when he found “something to be said for, in the appropriate circumstances, using the civil courts” to hear cash damage claims by kids over “erratic, spiteful, ungenerous and emotionally insensitive” parenting styles. Just as close to 100% of divorce litigants can cobble together assertions along these lines if needed to get into court, so could close to 100% of disgruntled kids. I’m glad the court sided instead with, as Mr. Waterbury calls them, the “enemies of justice.”
The one bit of his critique I probably should have lingered over is when he found “something to be said for, in the appropriate circumstances, using the civil courts” to hear cash damage claims by kids over “erratic, spiteful, ungenerous and emotionally insensitive” parenting styles. Just as close to 100% of divorce litigants can cobble together assertions along these lines if needed to get into court, so could close to 100% of disgruntled kids.
The line between being a lousy parent and being an abusive one is, in many circumstances, in the eyes of the beholder and the constantly shifting mores of society.
If a parent was found, with objective evidence, to have abused a child, should the parent be subject to suit? Or does a parent have immunity from civil suit for anything that s/he does?
There you go again Mr. Olson. It seems that you are nearly pathologically incapable (or at least stubbornly unwilling) to quote me correctly and in context. Firstly, I note that I plainly said that “I think justice was certainly done here . . .” So I was agreeing with the outcome, to wit: dismissal of the case. What I actually said, in the part you purport quote, was “there is something to be said for, in the appropriate circumstances, using the civil courts to test where the boundaries of bad behavior lie.” I did not mention “cash damage claims” or “parenting styles.” Certainly, “in the appropriate circumstances” claims for money damages are appropriate for certain types of “bad behavior” whether in parenting or otherwise, wouldn’t you agree? In addition, there are other tools available to the civil justice system to “test where the boundaries of bad behavior lie.” It was you, not I who chose to focus on “cash damage claims.”
Finally, the courts in this case clearly did not, as you state “side[] . . . with . . . the ‘enemies of justice’.” This is, in essence an oxymoron. Courts, by definition, are dispensers of justice, not its enemies. The enemies of justice would close the courthouse doors, preemptively, to most litigants (big businesses suing each other being a notable exception). The courts here, as in most cases, were friends of justice. They found the particular claim lacking in sufficient merit to proceed further and dismissed it, a result which I, and I dare say most if not all other friends of justice, agree with, at least procedurally. Both sides got their day in court. That is something we may not always be able to say if you and the folks who share your opinions get your way.
David E. Waterbury
Serious Representation for the Seriously Injured
Read that list of adjectives again: “erratic, spiteful, ungenerous and emotionally insensitive,” or better yet read the case:
http://volokh.com/2011/08/28/adult-children-sue-mother-for-allegedly-having-been-really-mean/
The law of course has provided for the most stringent penalties, such as life imprisonment, for some forms of parental child abuse. We probably disagree on the proper scope of parental tort exposure, but even if you believe in breaching the traditional immunity for, say, automotive negligence, I hope you agree it’s bonkers to invite money claims over “erratic, spiteful, ungenerous and emotionally insensitive” parenting.