June 7th, 2012

The $30M Dog Bite (and Rosemarie Arnold)

Rosemarie ArnoldI was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000.

Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”

Really? The Queen? Well, let’s see about that, shall we?

Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”

That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?

As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.

So the old law was, thankfully, changed by the Legislature.

Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:

1.  The Queen of Torts is actually ignorant of the law; or

2.  Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.

Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.

Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to  measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she  has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.

And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.

Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.

I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.


April 9th, 2012

A Cow Walks Into the Road…(Update x2)

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate  appellate court has written that it doesn’t like the decision it was forced to render  and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and,instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident.The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.




November 12th, 2008

First Pooch Barney Gets Defense Counsel

Right on the heels of Barney, the White House dog, biting biting Reuters reporter Jon Decker, we now find he may have the perfect defense lawyer.

Guide dog Skeeter Jones now has earned a law degree Juris Dogtor. I’ll try to reach out to Barney, carefully, for an updated interview on the ramifications for the species, and of Skeeter defending him.

Meanwhile, while one wag thinks you’d be barking up the wrong tree if you hired Skeeter, the paw firm of Barker and Meowsky has already made him an offer.

What will become of Skeeter and Barney? Stay tuned.


November 9th, 2008

Welcome Economic Times of India Readers!

You know this blogging is a funny thing. You really can publish whatever you want and have it seen almost anywhere in the world.

So I’ve now been quoted in India. That’s right, India. I’ve traveled there, as you can see from the 20-year old picture at left. And had a great time in a wonderful country. But I can honestly tell you I never expected my little blog on personal injury law to pop up in one of their papers.

And the quote comes in an editorial, of all things, in the highly-regarded Economic Times of India. (I just made that highly-regarded thing up, I didn’t actually know squat about it until I looked on Wikipedia and found it to be the second largest financial paper in the world.) The editorial dealt with my legal analysis of the gripping story of First Pooch Barney taking a bite out of Reuters reporter Jon Decker. Somehow, though, they missed Barney’s own account of the incident.

And so as I close out my second year of blogging, I would like to welcome all those readers from India who have an interest in New York personal injury law. Both of you. And don’t forget to add me to your RSS feed.


November 7th, 2008

Barney Speaks Out (An Interview with the First Pooch)

As readers know, presidential pooch Barney took a bite out of Reuters’ reporter Jon Decker yesterday. The NYPILB caught up with the First Dog for this exclusive interview covering the incident, life in the White House, and the prospect of being sued:

NYPILB: Dog, what happened?

Barney: Please. It’s Barney. Save your familiarities. I’m still in the White House, you know. I’m not some common mutt on the street.

NYPLIB: My apologies. Barney, what happened?

Barney: You think it’s easy living in this prison? I snapped, OK?

NYPILB: Someone take away your doggie treats?

Barney: Oh sure, be a smartass. It’s bad enough that The Master has been walking around caged up in here because McCain didn’t want to see him and he’s grumpy because people don’t like him anymore. He says this place is worse than Gitmo. And I got these yahoos from the media crawling all over me with their cutchy, cutchy coo stuff like I’m a baby.

NYPILB: Don’t you have protection from them?

Barney: I did until yesterday. My Sheppards have been reassigned to the incoming puppy. They gave me a fist bump and were gone.

NYPILB: Incoming puppy?

Barney: Yeah, word is the new dog in town is already being trained.

NYPILB: How does that make you feel?

Barney: Like biting.

NYPILB: I heard you’ve done this before.

Barney: I need to keep myself amused. We get these tourists coming through the Rose Garden, traipsing on my turf. Don’t you humans have noses? I clearly marked it. You think Saddam was the only one to have active chemical weapons?

NYPILB: But he didn’t.

Barney: They should have sent me over. I could have sniffed them out.

NYPILB: Are you worried about being sued?

Barney: In order to serve me with the papers, they have to catch me first. I’m small, but I can move when I have to. And besides, it would be a frivolous suit!

NYPILB: But Dog, you’ve bitten before. You’ve got what lawyers call a “vicious propensity.”

Barney: What did I tell you about that? You think this is American Idol?

NYPILB: Sorry. Barney, you’ve bitten before.

Barney: Would it be OK if I water boarded them instead? And besides, I thought they were terrorists.

NYPILB: In the Rose Garden?

Barney: 9/11!!!


Barney: Rudy Giuliani likes to visit me. He said that was a defense to everything.

NYPILB: And where is Rudy now? Preparing his inaugural address, is he?

Barney: Again with the sass mouth. Look, the guy was coming after me. He bent down and made a grab. Am I supposed to let every Tom, Dick and Harry stroke my fur? I don’t think so! A dog’s gotta defend himself. By now the whole world’s seen the video. He’s 6 feet tall, I’m 1′-4″ on a good day. How can I reach his hand unless he’s coming down after me?

NYPILB: Barney, first you said you bit Decker because you snapped. Then you said you bite to amuse yourself. Then terrorists and now self defense. What gives?

Barney: I have a constitutional right to self-defense!

NYPILB: Where does the constitution say that?

Barney: The Second Amendment.

NYPILB: That deals with arms. We’re talking teeth.

Barney: Yeah, that’s what you think. In District of Columbia v. Heller Justice Scalia wrote that “The inherent right of self-defense has been central to the Second Amendment right.” Woof!

NYPILB: I didn’t know you were a constitutional scholar. Does it trouble you that they just made that “inherent right” stuff up, and that it isn’t part of the text?

Barney: You new to politics? Folks make stuff up all the time.

NYPILB: I notice that you didn’t answer the question about the multiple and contradictory defenses that you have raised.

Barney: Well, I have a book in progress. Millie cashed in, so why can’t I? My agent at William Morris is already working on the talk show and college campus circuits. I need to try out some lines to see what works.

NYPILB: Aren’t you afraid folks will see these conflicting things in print?

Barney: Nah. Your audience is too small. OK, I gotta go. Literally. I suggest you get out of my way.