For dinner I made a salad of mixed greens, fresh tomatoes, feta, slivered almonds, and Kalamata olives. The olives, from Whole Foods, are packaged in a container labelled pitted–as in “we’re olives without pits.” Except about half of them contain pits. Maybe my prosthodontist switched labels–these are a broken tooth waiting to happen. If I were a products liability lawyer I’d say the label should read pitted olives–may contain pits.
But if you do attend law school you can learn why it is perfectly lawful to watch idly while someone struggles not to drown: “People Offer No Help as Man Struggles in Water.” Fortunately passerby Paul Pinto, possessing the empathy gene lacking from others who were ready to let Dale McNulty drown because they thought he was a “jerk,” jumped into the surf and helped McNulty to safety.
Having discussed the bystander rule in the first week of Introduction to Law and with tort law coming up this week, this chart “of state statutes that impose a duty to rescue crime victims, or report crimes” from The Volokh Conspiracy is timely. The chart covers only ten statutes that apply to the general public, not special duties imposed by legislation on “doctors, teachers, and the like.” All of the statutes listed save Ohio’s exempt a bystander if rescuing or reporting would imperil the bystander. Thus in Vermont “a person who knows that another is exposed to grave physical harm shall . . . give reasonable assistance to the exposed person unless that assistance or care is being provided by others . . . to the extent that the [assistance] can be rendered without danger or peril to himself or without interference with important duties owed to others.” Remember the final episode of Seinfeld where Jerry, Elaine, George, and Kramer watch, video, and laugh about a nearby assault, and then are arrested and convicted for not coming to the victim’s aid? I was not aware there is a Massachusetts statute that might actually apply: “Whoever knows that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery [or hazing] and is at the scene of said crime shall report said crime to an appropriate law enforcement official as soon as reasonably practicable to the extent that said person can do so without danger or peril to himself or others.” A violator faces a fine of up to $2,500 or, in a case of hazing, up to $1,000. Some statutes impose the duty only in situations involving crimes against children, others apply more generally to situations involving “bodily harm” or “grave physical harm.”
Some students will remember Griffith v Valley of the Sun Recovery, 126 Ariz. 227 (1980), the case in which the plaintiff was accidentally shot during a botched, chaotic automobile repossession. Valley of the Sun’s employee, Gorney, attempted to repossess a car in the midde of the night after previous attempts ended in violent confrontations and failure. The trial court granted the repo company’s motion for summary judgment, Griffith appealed, and the Arizona Court of Appeals reversed:
Gorney’s actions in setting off the car alarm around 4:00 a. m., unscrewing the spotlight and then hiding while police investigated what appeared to be a burglary, created an explosive atmosphere in the immediate neighborhood. His persistence in again setting off the burglar alarm and his attempts to remove the car amid the created confusion set the stage for the resulting injury. Since this is a case in which reasonable minds could differ and in which the “foreseeability of harm varies as a result of factual distinctions”, we hold that a jury question was presented as to whether a reasonable man could have foreseen that his actions were creating a confrontation where someone could be injured.
I thought of Griffith when a friend sent me this article from the Associated Press: Violence between repo men, car owners on the rise. The article reports that automobile respossessions are expected to increase by 5% this year after 2007 and 2008 increases of 9% and 12%, respectively. Last year there were 1.67 million automobile repossession, or 1.67 million opportunities for often-untrained repo men to encounter frustrated and angry car owners. The article reports on a fatal shooting of a car owner in Alabama, “a state considered a Wild West territory even by the standards of an industry that’s largely unregulated nationally.” There have been three repossession-related shootings in Alabama since last summer, two fatal. All took place in the middle of the night. The car owners heard noises, grabbed their guns to confront suspected car thieves/troublemakers (who else makes pokes around your car at 3:00 AM?), and then someone got shot.
Economic distress, frustration, repo men, firearms, the dark of the night–it’s a deadly mix.
While making an argument that it was foreseeable for a gun to be introduced into a hostile crowd confronting a person they thought to be a car thief, I said in class that there were more guns in the U.S. than people. No one tracks gun ownership so it is impossible to say, but I was probably wrong. The best estimate appears to be that there are about 200 million privately owned guns in the U.S. That’s still a lot of guns. I stand by my argument.
Discussing the claim of tortious interference with contract recently in class I noted the difficulty plaintiffs face in persuading a court that a defendant’s conduct crossed the line between tough but legitimate competition and unlawful interference. I used to spend time on it in class–when I taught at Babson I employed Pennzoil v Texaco as fodder for moot court–but weaned it from discussion because after Pennzoil v Texaco the case law got pretty thin.
That may change if the Wachovia litigation has legs. Last Monday Citigroup announced it would buy Wachovia for $2.2 billion, or about $1/share, in a deal backed by the federal government in the face of Wachovia’s imminent collapse. On Friday Wells Fargo announced that it would buy Wachovia for $15 billion, or orver $7/share. Citigroup cried “foul,” claiming the FDIC encouraged Wells Fargo’s bid after helping broker Citigroup’s deal days earlier. Over the weekend Citigroup sought a court order enjoining the Wells Fargo deal, which Wachovia and Wells Fargo opposed. The parties raced between New York state court (in the person of a state trial court judge who heard arguments from his country home in Connecticut), the New York federal district court, and the New York Court of Appeals in inconclusive attempts to trump each others tactics, agreeing today to put all litigation on hold until Wednesday while they try to negotiate a resolution. It’s a high-stakes legal contest involving some of the country’s top litigators duking it out against the background of the most turbulent financial markets in over 70 years.
Black’s Law Dictionary (5th Edition–yes, it’s old) defines attractive nuisance as “an instrumentality, agency, or condition . . . which may reasonably be apprehended to be a source of danger to children . . .” The law requires a person who creates or maintains an attractive nuisance “to take such precautions as a reasonably prudent man [I said it was old] would take to prevent injury to children of tender years who he knows may be accustomed to resort there, or who may, be reason of something there which may be expected to attract them, come there to play.”
D.C. officials confirmed this week that Administrative Law Judge Roy Pearson was not reappointed. Pearson is the one who sued a dry cleaner for $67.3 million over a pair of lost pants. The case ended poorly for everyone. The court dismissed Pearson’s suit, he lost his job, the dry cleaner’s owners went out of business because they were so shaken by the suit, and the legal system took a hit.
A number of people have sent links (here is one) to YouTube videos of the Tasering incident during John Kerry’s speech at University of Florida. Viewing it on these videos it seems the police may have overreacted in subduing the young man, but it is very hard to see what is going on. The victim was more interested in making a scene than in having Kerry answer any of his questions, which of course is not a reason to hit him with the Taser. As he is escorted from the hall more officers get involved in subduing him and they use the Taser while he is on the ground. In the first video I watched the Taser is neither seen nor heard but the video linked above provides clear audio evidence of the Taser. The incident bears some resemblance to last November’s Tasering incident at a UCLA library. To my viewing the UCLA incident, in which campus police repeatedly used a Taser on a young man who was leaving the library after and ID check, is more disturbing. The UCLA student was complying with police directives, while this UF student was struggling with police removing him from a hall for disrupting Kerry’s appearance. Kerry’s ghostly voice-over is strangely passive throughout. Again, I’m not agreeing that the student deserved to be Tasered for the disruption. Police may have been warranted in removing him from the hall–I haven’t looked into the circumstances of Kerry’s speech and the student’s presence there–and if so, they can use appropriate force to do so.
Last summer’s death of Milena del Valle under 26 tons of concrete that fell from the ceiling of a Big Dig tunnel raises a complex web of potential liability. I’ve posted about this over the past year as investigators pore through a mountain of evidence to fix the cause of the ceiling’s collapse. See Big Dig, Big Liability, Massachusetts Sues for Big Dig Negligence, and Big Dig Litigation Update. The National Transportation Safety Board (NTSB) recently identified use of the incorrect epoxy as the culprit. In the words of an NTSB member “[i]t’s kind of ironic in a $14 billion project . . . About $1.50 per anchor is what ended up bringing the ceiling down.”
According to the NTSB this is what happened. Bechtel/Parsons Brinkerhoff, which oversaw all Big Dig construction, reviewed the epoxy specifications prepared by Gannet Fleming, one of six subcontractors and suppliers who worked on the ceiling. The NTSB says that Bechtel/Parsons did not consider the fast-set epoxy’s long-term strength. The epoxy’s supplier, Powers Fasteners, stated in project documentation–“in the fine print”–that fast-set epoxy was not for long term use but apparently no one acted on this language. A Powers spokeswoman says that Powers supplied its standard-set epoxy, an order valued at $1,287, and assumed it was used. Big Dig contractors were aware that the bolts supporting the massive concrete ceiling panels were slipping and devised theories as to the cause, but the nature of the epoxy securing the bolts in their holes was not among them. Despite knowledge that these bolts were loosening the project’s overseers and the tunnel’s managers never instituted regular inspection of them. Reporting on the NTSB’s findings The Boston Globe stated “[t]here were no regular inspections in the more than three and a half years between the completion of the tunnel and the collapse . . . But after the disaster, investigators found that other ceiling panels were in imminent danger of falling.”
Expect more details over the coming months as other investigations continue, including one by Massachusetts Attorney General Martha Coakley to determine whether to file criminal charges in connection with del Valle’s death.