Feb 10 2015

Mayor de Blasio Bitten By Tort-Reform Bug?

I was happy with Mayor Bill de Blasio for a while. He brought a youthful, refreshing blast of liberal-themed common sense into the Mayor’s office, and was so forthright that he hurt himself politically.  I’m referring to his acknowledgment that he had given his teenage son, Dante, “the talk,” warning him about the extra cautions that must be taken when the police approach you, if you appear to be a black young man, like Dante.

But today’s Wall Street Journal presents a different picture. In this article, which concerns the City’s annual budget, much of which focuses on law enforcement, we learn that the Mayor has set aside $3.2 million dollars for fighting “frivolous lawsuits against police officers.”

That’s an interesting statement, because law enforcement in NYC generally can certainly use help. We heard that from  police officers turned off by Pat Lynch’s demand that the Mayor apologize to the police in the aftermath of the Black Lives Matter protests. Many said, in essence, “Forget an apology–we need new protective vests, radio cars, and increased man power.”  Also, and unfortunately, NYC remains extraordinarily attractive to terrorists.  And of course, New Yorkers have this thing about gathering in large numbers for demonstrations.  So, yes, it is hard to deny that money should be budgeted for law enforcement here in New York.

But one thing that is not a significant problem, if it exists at all here, is “frivolous” lawsuits against police officers. Whether you want to call lawyers who bring such cases, as my firm does, greedy or sensible, the reality is that no local lawyer is going to take a meritless case against the NYPD, hoping that he will succeed in: (a) fooling the generally very competent Corporation Counsel lawyers who represent the City; (b) the streetwise jurors judging the evidence in the case; and (c) the generally experienced judge overseeing the litigation. Why not? Because we need to make a living, too.  And we are not going to invest our money, which we will never see again if we lose, in a case that is not strong enough to make it through the gauntlet of scrutiny it will receive.  All of which means that, while some incompetent jerk of a lawyer may decide to go ahead and waste his time and money on a suit he knows is garbage, he will not get anywhere with it. So the reality is, no one does it. There is no “jackpot justice” express just waiting for sleazy lawyers and their clients.  That’s a myth created by the tort reformers–those who do not want to be accountable in a court of law when their actions hurt or kill people. Think of the big auto companies, tobacco companies, Big Pharma–the godfathers of this cynical movement.

So what is a bright guy like Mayor de Blasio doing spouting this anti-consumer claptrap?  I’m going to go out on a limb here. I think he knows that “frivolous” lawsuits against the police are not a problem. Instead, that statement is part of his effort to repair his own relations with law enforcement, who may see the Mayor’s pledge as evidence that he is doing more to support his NYPD.  Perhaps the Mayor sees this PR ploy as a necessity after Pat Lynch’s hysterical, shrieked accusations about police blood on Mayor de Blasio’s hands.  But this empty promise about a non-existent problem is an insult to everyone else, and shows that Bill de Blasio has some unseemly political traits we were hoping he lacked.


Jan 23 2015

Fair Is Fair, Unless You’re A Victim Of Medical Malpractice

It’s that time of year when my office gets reminders in the mail about what we must have posted and visible to all employees.  They are entitled, by law, to be apprised of their rights if they hurt themselves here, or become too ill to work.  That’s through Worker’s Compensation and through disability benefits. Posters in english and Spanish are prominently hung in our file room, providing helpful information in case the need arises.  And that’s as it should be.

So if that is how New York State wants us to treat employees, you might think that it would have a similarly caring approach with consumers of  medical care.  You might think that there must be signs up in prominent places in hospitals and doctors’ offices advising patients of the help available to them if they aren’t treated properly—perhaps because they end up as victims of medical negligence–and you’ve just been missing them all these years.

But of course, you’d be wrong.  There are no signs advising such patients that they can pursue a claim for medical malpractice, and that when the hospital fails to take the claim seriously, as is usually the case, they can get themselves a lawyer and take the hospital or doctor to court.  There are no signs, in any language, letting patients know about the statutes of limitations, or time limits, so that by the time a family overwhelmed by the toll a medical error has taken gets around to considering a suit, it is often too late.  And this is particularly true when a NYC Health and Hospitals facility is involved. Generally, if you don’t know enough to file your Notice of Claim with their office within 90 days of the malpractice, you’re prevented from pursuing your claim any further.

Not surprisingly, the victims who are cheated out of their day in court are usually those who can least afford to miss that opportunity.  They are the poor, the immigrants, the day laborers, the speakers of languages other than english, the folks who are disenfranchised and at the margins of society, who have little to no idea about our system of civil justice, let alone how to access it.

I can’t tell you how tired I am of having to tell the people who contact me after time has run out that they are without recourse in our court system.  Such a system is not only unfair.  It is, frankly, un-American. It does not comport with the concept of a land of opportunity, where there is “justice for all.” It benefits only doctors, hospitals, and insurance companies, while it deprives patients who are often severely injured, through no fault of their own, of any opportunity to better their lives in the wake of medical malpractice.  Are we really OK with a system in which the hospital and insurance industries count on the ignorance of consumers of medical care?

Jan 14 2015

The Foreseeability of Accidental Shootings

A couple of weeks ago, a 2-year-old boy accidentally shot and killed his own mother while she shopped in an Idaho Walmart.

By all accounts, the mother was a smart, professional and otherwise responsible woman. The infant had managed to unzip a specially-designed gun compartment in his mother’s purse, from which he withdrew the gun before firing it. How could this have happened, wondered people across the country?  But the more important question is, how can we make it stop?

That got me thinking about tort law, and my first year of law school, when the case of Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928) would become etched into my brain forever. It is a classic, and addresses the concept of foreseeability, which is a key ingredient in negligence actions.

Even though a female passenger at a train station was injured due to carelessness, the railroad was not responsible. Its employees could not have foreseen that a man who was carrying a wrapped package that turned out to contain fireworks would drop it as he tried to board his train, causing an explosion, which in turn caused a shock that dislodged heavy scales at the opposite end of the platform, which fell on the passenger and hurt her.

But the tragedy in the Idaho Walmart was not so hard to foresee.

  • Was it likely that the manufacturer of the purse knew that buyers might include mothers of young children, who might find a closed zipper compartment tantalizing enough to open it, and find out what was inside?
  • Was it likely that the manufacturer knew that such a mother, possibly harried in trying to manage such young children, might not engage the gun’s safety before placing it inside the specially-designed compartment? Or that if she remembered to engage the safety, a toddler might figure out how to disengage it?
  • Was it likely that a young mother carrying her weapon would have it loaded with live ammunition?

Of course it was, in answer to all such inquiries. So if negligence, according to Black’s Law Dictionary, is “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances,” isn’t the maker of this special purse negligent? Here, a lack of care and foresight certainly caused, or contributed to, the shooting death of a young, professional woman, mother and wife, in the prime of her life.

If you think the manufacturer has had a sudden epiphany as a result, and will stop selling this product, you haven’t been following the recent news about auto manufacturers who buried information showing that defects in their cars were killing people, while continuing to market them to the public aggressively. As the Ford Pinto debacle proved, sometimes it takes a lawsuit.

Why hasn’t the recently widowed husband sued the maker of this problematic purse?


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