Repo Madness

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.

Cell phone use leads to employer settlement

International Paper Co. recently settled for $5.2 million a lawsuit filed by a woman who lost her arm following an automobile accident. The plaintiff’s car was rear-ended by a car driven by an International Paper employee who was allegedly using her company-issued cell phone. The plaintiff’s lawyer argued that the employee’s use of the cell phone while driving at a cruise-controlled 77 m.p.h. in a 70 m.p.h. zone constituted intentional negligence under Georgia law. According to the article on

The employee’s cell phone use had a “huge impact” on the final settlement amount . . .That’s true even though the exact timing of the employee’s cell phone use was never determined.

International Paper contended that the employee was not actually on the phone at the moment the collision occurred . . . The employee testified at deposition that she had used the cell phone just prior to getting on the interstate, and the accident occurred nearly two miles later. A witness, however, testified that he had seen her with the phone to her ear at the time of the collision.

“They were concerned the effect this would have on a jury, to know the driver was on a cell phone” . . .

Big Dig Settlement

Bechtel/Parsons Brinckeroff, responsible for design and construction of Boston’s Big Dig, agreed recently (WSJ-subscription required) with the Commonwealth of Massachusetts to pay $407 million settle the state’s lawsuit over design and construction flaws. Payments from smaller contractors bring the total settlement payments to $458 million. In exchange Bechtel/Parsons escapes possible criminal liability for the death of Milena Del Valle, who was killed in July 2006 when a portion of the tunnel project’s ceiling collapsed on her car. Bechtel/Parsons could also be on the hook for up to $100 million if future problems arise from the project’s flaws that cause more than $50 million in damages.

NTSB Report on Big Dig Collapse

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.

Sense and Senselessness

I’ve resisted writing about the Virginia Tech shootings. They provoked shock, horror, incredulity, and profound sadness. My attempts to record my reactions were inadequate and I scrapped them, along with my initial comments about the university’s response. Had I known what the university’s administrators knew when they knew it, I cannot say I would have done anything differently. I was humbled into silence by my own high-horse hindsight, knowing it would take time for me to start to get my arms around these murders and their aftermath.

One word contains what I believe is the truth of these crimes: senseless. A Google search for <"Virginia Tech" senseless> yields 541,000 website hits and almost 2,600 articles. Sphere It reports over 16,000 blog posts containing these words. We acknowledge the killings are senseless and then we try to explain them, to impose order and reason on chaos. These killings are beyond rational explanation. Seung-Hui Cho’s alienation, rage, and sense of persecution were grotesquely magnified a thousand-fold by his mental illness into a perfect storm of violence. Thousands of people are bullied, alienated, shy, lonely, disconnected, and they don’t kill. These killings are the violently irrational product of a profoundly disturbed human being.

I submit that we are incapable of understanding and preventing similar acts. Mine is an unpopular, uncomfortable position. We struggle to explain horrific events because, we say, we have to do something to prevent them from happening again. “Doing something” becomes the rallying cry, proving that we are not powerless and vulnerable. We are doing something, yet that something often bears no relationship to the event that set it in motion. To fight terrorism we ban water bottles on airplanes. There is no reason to ban water bottles yet we do because it satisfies our need for a response. It means we are doing something.

We respond to these murders by identifying a cause. People are appropriating them to prove a link between violence and (take your pick) Korean martial arts films, graphic novels, video games, uninvolved or ineffective parents, bullying, and godless liberal secularism. Depending on which side of the gun debate you listen to, either Cho obtained his weapons because it is too easy to buy guns or Cho’s violence claimed so many victims because not enough people carry guns to defend themselves. The murders are a slate on which we write our explanatory narrative.

The most heated discussion I’ve faced concerned publication of portions of Cho’s manifesto by NBC and of the picture of Cho brandishing weapons by The New York Times and other newspapers. The coverage deeply offended and angered one of my friends. I defended their publication and off we went. He argued that these images would provoke copy-cat killings and should have been squelched. I argued two things. First, that they would surface someplace, if not on NBC or in the Times then on YouTube and the hundreds of Internet sites devoted to graphic images of violence and hatred, in which they would not have the context of news. Second, and more important, I don’t believe that images such as these create copycat killings. A killer may fire a pistol in each hand, find a manifesto in Helter Skelter, or take orders from his dog, but these do not make John Woo, the Beatles, or the the pound responsible for his crimes. Correlation is not causation. We rarely understand human motivation for ostensibly rational behavior. Understanding mental illness that lies beneath acts of random violence against strangers is beyond our comprehension. Trying to draw a direct line between the publication of Cho’s picture above the fold of a daily paper and the next act of senseless violence reduces senselessness to two dimensions.

Big Dig Litigation Update

I’ve written a couple of times (here and here) about the possibility of litigation arising from last July’s collapse of a portion of the ceiling of the Ted Williams Tunnel. To date the litigation includes a civil suit for negligence filed by the family of Milena del Valle, who was killed in the collapse, and the specter of criminal charges for negligent homicide and fraud. The Boston Globe reported recently that the legal actions involve–so far–over “100 attorneys, 17 companies, and dozens of engineers and workers.” The various defendants have filed 172 cross-claims against each other seeking indemnification for any civil damages. A Globe graphic captures these cross-claims in a Death Star, a colorful spider’s web of liability. What it likely means is years of courtroom maneuvering, tens of millions of dollars in legal fees, the sacrifice of thousands of trees, and a long wait for answers on how this stupendously expensive project could go so wrong.

Do-Over Ordered in Weis Malpractice Trial

Charlie Weis, current Notre Dame football coach and former offensive coordinator for the New England Patriots, filed a malpractice suit against the two doctors who performed his gastric bypass surgery in 2002. The trial, in Suffolk Superior Court, started last week and featured a why-on-earth-is-he-testifying appearance by Patriots quarterback Tom Brady. (I’d call Tom too if I could get him to testify anyplace in New England on my behalf, but from what I’ve read about his testimony, I don’t see much relevant evidence in it.) The trial took a bizarre turn today when a juror collapsed while listening to testimony, and the two defendants–surgeons Charles Ferguson and Richard Hodin–went to provide assistance. The judge cleared the courtroom but some jurors saw the defendants, and other doctors in attendance, doing their Hippocratic thing, not the image Weis’s counsel wants lingering in the jurors’ memories. The judge declared a mistrial despite argument by the doctors’ counsel that it would be unfair because the doctors had rearranged their schedules to try the case during the football off-season. The judge said “[t]he integrity of the court is more important than schedules.”

Book your seat now for Tom’s Trial Testimony, Take Two.

MySpace Negligence Suit Dismissed

Last month I blogged about lawsuits seeking damages from MySpace for negligence in connection with sexual assaults on five teenage girls by men the girls met through MySpace. That article mentioned another negligence suit filed against MySpace last year in federal court in Texas on behalf of a 14-year old. The trial court dismissed that suit, ruling that the safe harbor provisions of the Communications Decency Act shield MySpace from liability.

Collateral Damage

I’ll keep this short: reports that Jim Samples, General Manager of the Cartoon Network, resigned today, a casualty of the Boston bomb scare. Samples wrote “I feel compelled to step down, effective immediately, in recognition of the gravity of the situation that occurred under my watch.” Someone from Turner Broadcasting or the Cartoon Network had to fall on his sword over this. My guess is that he’ll be the end of it.

Bomb-Scare Settlement

Massachusetts Attorney General Martha Coakley announced the settlement today with Turner Broadcasting System and Interference, Inc. for last week’s marketing mishegas: they will pay $1 million to reimburse the affected cities and towns for their response and $1 million for goodwill to spend on security, community education, emergency response preparedness, and similar stuff. In a statement TBS and Interference accepted full responsibility for the consequences of the campaign.

The settlement did not dispose of criminal charges against Steven Berdovsky and Sean Stevens, the two knuckleheads Interference hired to place the electronic devices that triggered the scare around the city. Coakley is working to dispose of their pending criminal charges short of trial. As my friend Bob used to say back when we were trying to convince the parole board to release state cons who screwed up their paroles by breaking curfew or urinating in public, “stupidity is not a crime.” They can’t be charged criminally for their foolish behavior, and the charges they do face are likely to be reduced.

I’ll finish this post with two things, a YouTube video (thanks, AP & JK) of Berdovsky and Stevens installing the the devices around Boston and my final thoughts. The devices appear benign in the video. You don’t see dangling wires but the images, all shot at night when the lighted devices’ cartoonish quality is apparent, are not distinct enough to say there were no dangling or suspicious wires on any of the 38 placed around the city. News reports last week said that at least some of the devices did have protruding wires or wires wrapped in duct tape. Even if only a few did–even if only one did–if that one was located under, say, the BU Bridge, then the official response does not look crazy. Some of the devices that set off the alarm were no longer illuminated, or were viewed in daylight and did not appear benign. Ridicule of the official response starts from the premise that the devices were obviously cartoonish, and then concludes that police over-reacted. One needs to analyze the response by asking whether the facts reasonably support a conclusion that the official response was appropriate. Based on my understanding of what officials first learned and saw–one or more electronic devices of ambiguous or unknown character in locations where such unknown devices should raise suspicions–I do not conclude that the response was inappropriate. If the facts are not as I understand them then I would revise my conclusion.