December 4th, 2008

Case Dismissed. Case Dismissed. (Slip/Trip and Fall)

There is the perception amongst many that any injury gives rise to a legitimate lawsuit. Not so. Here are two dismissals on Tuesday from the Appellate Division, First Department of personal injury cases, with relatively routine fact patterns.

First up, a slip and fall on a waxy floor. In a very brief decision, the court wrote in a Purcell v. York Building Maintenance Corp.:

Plaintiff’s claim that appellant created the slippery condition of the floor on which plaintiff slipped by excessive waxing rests only on her observation that the floor was “shiny.” Such evidence, without more, does not permit an inference of negligent waxing….Nor may such inference be made on the basis of plaintiff’s testimony that a carpet and a yellow “caution” or “slippery” sign were placed on the floor shortly after her fall.

Next up, this plaintiff was injured when she tripped on garbage at a street fair. In Torres v. Washington Heights Business Improvement District Management Association, the court chucked the case, writing:

Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition, the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition. The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiff’s fall.

Both cases involve the issue of notice. If defendants aren’t aware of defects then they don’t have the chance to fix them. (In the first case, that assumes the floor was even overly waxy to begin with.) That notice has to be actual or constructive (which means proving the defect was there so long that they should have known.)

The time to figure out if you have notice of the defect is (hopefully) not during depositions, but during intake and investigation. If you can’t establish it without discovery from the defendant, the issue becomes that much harder. And if you can’t establish it at all, expect your case to be heading for dismisssal.

December 4th, 2008

Wal-Mart Stampede Victim’s Family Brings Suit

The family of Jdimytai Damour, the Wal-Mart worker that was stampeded to death last week out on Long Island, has brought suit in New York, in Bronx County (where he presumably lives).

The stampede apparently occurred when a group of shoppers waiting in their cars rushed the doors when they opened, clashing with a group that was waiting on a “no-cutting” line. According to this Newsday account, an estimated 2,000 people were there.

A critical issue in the ability to bring suit was a determination of whether he was a Wal-Mart employee or not. Since he was a seasonal worker, I doubted he was employed by the retailer. If he was, then New York’s Worker’s Compensation laws would have prevented suit, as WC would provide the exclusive remedy. According to this Reuters account, however, the victim was an independent contractor, and not an employee.

I blasted Wal-Mart for the stampede as soon as the news hit for failing to have adequate security. Nassau County police made the same claim. Wal-Mart, however, claims that they had security in place.

Plaintiff’s counsel, Jordan Hecht, named Wal-Mart and the mall’s owner (Vornado Realty Trust), manager and security firm as defendants in the suit. According to Hecht in a statement he released:

“When they heard of how he was eventually killed, that he died of asphyxiation, they were visibly shaken. They are angry because this was preventable, and have therefore exercised their right to seek justice in the court”

A substitution of parties will no doubt take place in the future after a proper administrator or executor is appointed for his estate.

Ron Miller at the Maryland Injury Lawyer Blog, it should be noted, is a bit critical of the rush to suit, writing:

Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case?

While I would ordinarily agree with Miller about the rush to suit, in this particular case I think there may be justification for doing it as long as the main parties can be identified, as it may bring witnesses to the attention of the lawyers who might not be too keen, for their own personal reasons, of approaching the police. Sometimes, a rush to suit may bring an appropriate dividend for the client.

Addendum: One other potential reason for quickly filing suit; a very angry family may have demanded it. This could be due to a hope that the publicity would hurt Wal-Mart, to see that it would never happen again, and/or to make sure the police did everything in their power to investigate. This is, of course, speculation on my part. But grief-stricken family members may be doing whatever they feel they can under truly horrible circumstances.

Updated:

Walter Olson at Overlawyered thinks the race to the courthouse door was for publicity
TortsProf Bill Childs thinks it could be to get quick discovery before memories fade
Tony Rosasco thinks that New York Workers’ Compensation Law Will Prevent Lawyer from Suing Wal-Mart Directly for Negligence; He also thinks, as do I, that Wal-Mart could face a criminal investigation due to the death.

Links to this post:

“5 minute after” suits and the wal-mart trampling
ron miller at maryland personal injury thinks the filing of suits only days after an event like the long island wal-mart trampling, at a point when key facts relevant to the nature and extent of liability have yet to be brought out, …

posted by Walter Olson @ December 04, 2008 10:52 AM

December 3rd, 2008

Punitive Damages Again Before Supreme Court (Philip Morris v. Williams, Round 3)

It’s rare for any case to go the Supreme Court, but one case going three times? Philip Morris v. Williams was heard again today. And in a remarkable suggestion from the Chief Judge during oral argument, the court may consider deviating from the technical issue before it today and decide once and for all the issue of whether or not bright line limits on punitive damages can be read into the Constitution, and if so, by how much.

This is the nutshell history for this smoker’s case that challenges the limits of punitive damages:

Jury verdict for $821,000 in compensatory damages and $79.5M in punitive damages;
Punitive damages reduced by trial court to $32M;
Punitive damage award reinstated by Oregon Court of Appeals;
Affirmed by Oregon Supreme Court;
Remanded by U.S. Supreme Court to decide punitive damages issue in light of its new punitive damages ruling in State Farm v Campbell, which gave confusing guidance on the degree to which the Due Process Clause of the Fourteenth Amendment is violated by a large award;
After considering State Farm v. Campbell, the Oregon Court of Appeals and then Oregon Supreme Court both affirm again;
Philip Morris appealed and the US Supreme Court once again remanded the case to Oregon, this time based on the jury instructions;
Affirmed for the third time by the Oregon Supreme Court; and
Argued in the U.S. Supreme Court today for the third time, with Philip Morris trying to claim that the Oregon courts were defying the Supremes by not knocking the award down.

Now here is the interesting part: During oral argument today about the esoteric issue of the federal courts interceding on state law issues involving jury charges, Chief Justice Roberts reportedly suggested that the court finally decide the penultimate issue of whether the Constitution permits a nearly 100 to 1 ratio of punitive to compensatory damages. (Pages 51-53 of this transcript, via How Appealing)

This is odd for two reasons. First, Roberts suggested that the court decide an issue it doesn’t really have to decide, since the issue before it was jury instructions. But more importantly, if the court were to decide whether a 100:1 punitive to compensatory ratio is constitutionally permissible, there are already five votes in favor of upholding the principle of a 100:1 ratio.

Here’s why the court will uphold the award it if decides that issue: The prior punitive damage case of State Farm v. Campbell was decided by a 6-3 majority. But two members of that majority are gone (Rehnquist and O’Connor) and two others from that majority have indicated in this case, either in dissent (Stevens) or oral argument (Breyer) that they have no problem with the concept of a 100:1 ratio if the facts deem it appropriate. Therefore, there are already five votes in favor of upholding a 100:1 ratio in principle. (See, Philip Morris Punitive Damages Decision — Why It Was Good For Plaintiffs.) And that is without Roberts and Alito having tipped their hands as to which way they will vote.

Wal-Mart Liability in Stampede Death (Civil and Criminal) (Bumped and Updated)

(Updated 12/3/08 at bottom)
The stampede at a Long Island Wal-Mart that resulted in the death of a worker yesterday was rather predictable. Every year the news cameras are out early on Thanksgiving Friday as the stores engineer crowds to come in to their stores for “door buster” bargains.

The stampedes result from lousy crowd control for which it isn’t difficult to foresee civil liability. But while the police are out looking for the stampeders, they should also be looking at Wal-Mart’s own conduct and potential charges of criminal negligence.

(original publication, 11/29)
———————–
Updated 12/3/08:

According to CNN, two other individuals that were injured have filed a $2M lawsuit against the Nassau County Police citing poor crowd control by the police. The police claim non-existent security by Wal-Mart.

At the outset let me note that the statements in the article about a lawsuit are likely an error in reporting, since a claim against the county must be preceded by a Notice of Claim, which Notice must be filed within 90 days. The Notice forces potential litigants to state an amount of damages, whereas the lawsuit forbids stating an amount (see New York Cleans Up Claims Act).

Nevertheless, the interesting thing about the article are the statements that Wal-Mart failed to provide security for crowd control, despite the fact that such a stampede was not only predictable, but such things are often sought after by merchants for the publicity they get for their “door buster” deals on Thanksgiving Friday.

According to the article:

Lt. Kevin Smith of the Nassau County Police Department said, “it’s our policy that we don’t comment on open litigations” and would not respond directly to [plaintiffs’ counsel] Mollins and his clients claim that officers left the scene.

He said it is “incumbent upon the store to provide security” but noted that there was no security force present when officers responded to an initial phone call after 3 a.m. Friday for an unknown disturbance at the site.

Smith said the officers noticed a lack of order with the crowd and began to organize them into a line, remaining on site for about 30 minutes until the crowd had become orderly.

Of course, it is not the duty of the Nassau County Police to provide crowd control on private property. That duty belongs to Wal-Mart who should have had that set up long ago. Whether the police subsequently assumed that duty by their actions is another matter, but clearly the duty in the first instance is with Wal-Mart knows well this is an issue on this particular shopping day.

If the part about Wal-Mart not having security is accurate, then they very clearly dropped the ball and endangered public safety by not having crowd control personnel on the scene. There is really no excuse for that.

(Hat tip to Overlawyered)

———————————
Update 12/4/08: Wal-Mart Stampede Victim’s Family Brings Suit

Links to this post:

wal-mart trampling suit
father and son fritz mesadieu and jonathan mesadieu say they were in the crowd during the now-notorious black friday crowd-crush episode at a long island wal-mart. they say they were left with neck and back pain for which they want > …

posted by Walter Olson @ December 03, 2008 12:26 AM

December 1st, 2008

Personal Injury Blogs Make ABA List of Top 100 Blogs

Last year when the ABA put together their list of the top 100 law blogs, personal injury lawyers were noticeably absent. I was sharply critical of the ABA for ignoring this entire field of law. Part of my rant looked like this:

It’s not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don’t have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn’t think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

This year, however, there are two included, mine and Drug and Device Law. Half of the “honorees” in last year’s 100 are gone, replaced by 50 new ones.

Drug and Device, which discusses the field from the defense side and focuses on personal injury cases that tend toward having hundreds or thousands of claimants, is in the niche category that didn’t exist last year. The ABA description is:

From the pharmaceutical and medical-device product liability litigation corner of the blogosphere, there’s no beating this defense-oriented blog. Seasoned defense lawyers Jim Beck of Philadelphia and Mark Herrmann of Chicago, along with authoritative guest contributors, pick apart rulings and explore issues common to this niche practice.

Those guys have stiff competition when you see the niche category with 15 entrants — tough competition because they want people to vote. No matter what happens, they come out smelling like a rose.

I, on the other hand, have thin competition with only five entrants in the regional category. My description looks like this:

Aside from thoughtful posts on New York tort law and insights into tort litigation in general, Eric Turkewitz also gets props for punking the blogosphere. On April 1 he posted a story contending that the U.S. Supreme Court granted cert in a fantasy baseball case — and that fantasy-baseball-player Justices Stephen G. Breyer and Samuel A. Alito Jr. had recused themselves while Antonin Scalia and Ruth Bader Ginsburg, also players in this fantasy story, declined to do so.

Alas, in the early voting I am fighting for last, not first. That means that the small category is a curse and not a blessing if you’re heading for the basement, as it sets me up for big-time abuse from others. Like my family. So please do me a favor in this utterly meaningless vanity contest, and throw me a vote so I don’t come in last.

You can find the whole list here. And remember, it’s all very subjective, both as to quality and category. Voting ends January 2nd.