The Volokh Conspiracy
[Orin Kerr, October 30, 2005 at 11:34pm] Trackbacks
Questions About Juries, Responsibility, and the WTC:
My co-blogger David mentions the very interesting jury verdict in the civil case about the 1993 World Trade Center bombing, and the surprising decision holding the Port Authority 68% responsible for the attack. I don't work in any area of law with any remote connection to this case, but my amateurish reaction is that the oddity of the verdict depends in part on the specific legal standard the jury was asked to apply.

  Specifically, I'm not sure I know what it means to assign a victim partial responsibility for an intentional act. The bombing was a planned, purposeful attack, while the Port Authority was at most negligent in failing to defend its property more carefully. But how do you apportion blame between an intentional act and a negligent defense? Is the question who is responsible for the act being attempted? The likelihood that various defenses would have led the wrongdoers to give up and hit another target? The costs of different acts the wrongdoers might have attempted if deterred by better defenses? The extent of the harm following from the attack? Or something else?

  My apologies if the answers to these questions are obvious to others. I haven't followed this trial, and I don't know anything about this area of law. But it seems to me that the jury's answer may seem odd because the jury was required to answer a perplexing set of legal questions.
JohnG:
It was undoubtedly the untended consequences of an intentional act for which the jury apportioned responsibility. That, and to partially line some inventive trial lawyer's pocket.
10.30.2005 11:43pm
GMUSL 2L (mail):
Defense lawyers in (civil) sexual assault cases take note -- if the girl walks down a street in what she doesn't know to be the bad part of town alone at night, it's no longer entirely the rapist's fault.

After all, she was negligent in choosing to walk down an alley alone, and she might have been even more negligent in her choice of clothing!

Obviously, the above line of reasoning is morally repugnant. But it's almost inevitable when you refuse to allow an intentional tortfeasor's wrongdoing to abrogate any causal relationship between the victim's negligence and the harm to the victim.

That's why, in my opinion, normal negligence (i.e., negligence that doesn't rise to the "willful and wanton" standard of gross negligence) should almost never be considered to the fault of the victim in the face of an intentional tort. There's no duty to protect against intentional tortfeasors, especially when those intentional torts rise to the level of crimes... unless you're in California. But that just bolsters my point.

(Yes, we're very tort-happy here at GMU).
10.30.2005 11:55pm
NYU 1L (mail):
If GMU is tort-happy, then what does that make NYU...our first major legal writing project was writing briefs in a theoretical "9/11 victim v. Port Authority" negligence case. I got to write for the plaintiff...lucky me.

At least in New York, there is a definite line of tort cases holding owners of property responsible for foreseeable crimes committed on the property by third persons. Also, if ordinary negligence helps cause the injury, the owner is usually still liable even if the event precipitating the injury is extraordinary (i.e., if your building has fire safety issues, you're still liable for injuries partially caused by the fire safety problem even if the fire is started through some completely bizarre means.) I don't know how much that applies to the '93 case, but it applied strongly to the '01 case we did as part of the Lawyering program.

And GMU 2L--Has any jury in California or anywhere, ruled in favor of defendant on contributory negligence in a civil sexual assault case, particularly where the contributory negligence claim is "She dressed to invite attack, and intentionally put herself in a bad neighborhood"?
10.31.2005 12:13am
GMUSL 2L (mail):
NYU 1L, doubtful at best, at least in the last 50 years or so. But then again, most places sadly aren't contributory negligence anymore :-(
10.31.2005 12:33am
Aasem (mail):
GMUSL 2L:

Huh?

"Defense lawyers in (civil) sexual assault cases take note -- if the girl walks down a street in what she doesn't know to be the bad part of town alone at night, it's no longer entirely the rapist's fault."

Isn't it more like this?:

Body guard walks girl through rapist alley but passes out, drops his gun, and lets rapist have his way with her. He had a contractual duty to protect her, and he contractually and tortiously breached that duty. But for his breach, she would not have been raped. Shouldn't she recover from the one she paid to assume the duty to protect her?
10.31.2005 2:37am
Charles Chapman (mail) (www):
I can give an example of how one California Court of Appeal explained such a result. The case is Rosh v. Cave Imaging Systems, Inc., 26 Cal.App.4th 1225, 32 Cal.Rptr.2d 136 (1994). In Rosh, a negligence action was brought against a security company to recover for injuries sustained by one of its client's managers when a former employee returned to the premises and shot a manager. The trial court entered judgment on jury a verdict finding the security company 75% at fault, and the shooter 25% at fault. The Court of Appeal affirmed, explaining:


[1a] Defendant first contends no reasonable person could conclude a negligent tortfeasor was more responsible for an injury than an intentional tortfeasor. We disagree.

[2] Since the comparative fault doctrine was first adopted in California in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], our Supreme Court has repeatedly acknowledged that it is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine "is a flexible, commonsense concept, under which a jury properlymay consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an 'equitable apportionment or allocation of loss.' " (Knight v. Jewett (1992) 3 Cal.4th 296, 314 [11 Cal.Rptr.2d 2, 834 P.2d 696]. " '[C]omparative negligence' " does not lend itself to "the exact measurements of a micrometer-caliper." (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 736 [144 Cal.Rptr. 380, 575 P.2d 1162]; see also Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328-332 [146 Cal.Rptr. 550, 579 P.2d 441]; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 594-595 [146 Cal.Rptr. 182, 578 P.2d 899].) The court has also noted that juries are "fully competent to apply comparative fault principles ...." (Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d 322, 331.) Thus, in Daly v. General Motors Corp., supra, 20 Cal.3d 725, 738, the court rejected the claim that a jury is unable to apportion fault where different classes of tortfeasors are involved. fn. 2



FN 2. Courts in other jurisdictions are in agreement on this point. (See, e.g., Martin v. Bussert (1971) 292 Minn. 29 [193 N.W.2d 134, 139]; Bourassa v. Gateway Erectors, Inc. (1972) 54 Wis.2d 176 [194 N.W.2d 602, 604]; Transamerica Insurance Co. v. Pueblo Gas &Fuel Co. (1973) 33 Colo.App. 92 [519 P.2d 1201, 1204].)


[3] As one commentator has noted, "[c]ourts in comparative negligence states are usually circumspect about altering determinations made by the [26 Cal.App.4th 1234] jury. The courts will rarely disturb the jury's apportionment of negligence between parties or reverse findings for the plaintiff or defendant." (Schwartz, Comparative Negligence (2d ed. 1986) § 18.1 at p. 315.)

This court reviews the jury's apportionment of fault under the substantial evidence standard. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1483 [255 Cal.Rptr. 755].) As the court noted in Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346 [145 Cal.Rptr. 47], the jury's power to apportion fault is as broad as its duty to resolve conflicts in the evidence and assess credibility: "These same considerations apply to the jury's apportionment of fault under comparative negligence rules. Furthermore, the appellate court may not substitute its judgment for that of the jury or set aside the jury's finding if there is any evidence which under any reasonable view supports the jury's apportionment. [Citation.]" (See also Metzger v. Barnes (1977) 74 Cal.App.3d 6, 9-10 [141 Cal.Rptr. 257].)

[1b] Here the evidence supports the jury's apportionment of fault. The liability theory against defendant did not lend itself to an apportionment of substantial fault to Mr. Hua and minimal fault to defendant or even equal fault to each. If the jury was going to find defendant negligent, it was because it believed that defendant negligently permitted Mr. Hua to repeatedly enter the premises of Conner Peripherals. The evidence clearly supported this theory. Defendant was hired to protect the personnel and property of Conner Peripherals. Defendant's employees were also aware that terminated employees pose a security risk, that Mr. Hua had been terminated, and that he was no longer allowed on the premises. Nevertheless, they allowed Mr. Hua to remain on the premises on three occasions within twenty-six hours of his termination. When informed of Mr. Hua's presence on the premises, defendant's employees also stated they would "take care" of the matter. Under these circumstances, there is substantial evidence to support the jury's apportionment of fault.

Defendant suggests, however, that this court follow cases involving excessive damage awards. [4] In those cases, the amount of damages awarded to the plaintiff is also a question to be resolved by the trier of fact. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259 [259 Cal.Rptr. 311].) A reviewing court will overturn a damage award only where "the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 727 [236 Cal.Rptr. 633].) [1c] Even applying this standard to the instant case, we would not overturn the award due to the egregious nature of defendant's conduct.

Defendant's reliance on Weidenfeller v. Star &Garter (1991) 1 Cal.App.4th 1 [2 Cal.Rptr.2d 14], is also misplaced. In Weidenfeller, the [26 Cal.App.4th 1235] plaintiff was the victim of an assault in a bar parking lot. The plaintiff brought an action against the bar and alleged that its failure to provide adequate lighting and other security services was a substantial factor in causing his injuries. The jury assessed 75 percent fault to the assailant, 20 percent to the bar, and 5 percent to the plaintiff. The court rejected the plaintiff's due process argument that the jury was unable to compare intentional misconduct and negligence, stating "The jury here found defendants to be a substantial factor in causing [the plaintiff's] injuries, but apportioned most of the fault to the individual who actually pulled the trigger. This verdict reflects the jury applied a proper standard and understood fully how to compare the torfeasor's conduct." (Id. at p. 8.) Weidenfeller does not stand for the proposition that a jury must make this type of apportionment in every case where there are intentional and negligent tortfeasors. Moreover, the facts of Weidenfeller are readily distinguishable from those before us. In Weidenfeller, there was no evidence the bar had notice that its parking lot was inadequately guarded, that a would-be assailant had returned several times to the premises, that a particular patron would be at risk, or that security procedures were being violated.

Rosh, 26 Cal.App.4th at 1233-35, 32 Cal.Rptr.2d at 139-141.
10.31.2005 2:58am
Charles Chapman (mail) (www):
One additional note. It appears that in California comparative negligence does not apply where the plaintiff was merely negligent and the defendant was guilty of an intentional tort. See Heiner v. Kmart Corp., 84 Cal.App.4th 335, 349, 100 Cal.Rptr.2d 854, 864-865 (2000).

However, it appears that (if California law applied) Heiner would not save the Port Authority because it was not the plaintiff in the action. It instead appears that Rosh probably would apply on the theory that the Port Authority had a duty to protect the plaintiffs.
10.31.2005 3:16am
Aasem (mail):
Thanks Charles Chapman, I'm familiar with that case, and I've used it during the short time I did plaintiff work in the late 90's. Despite the fact that I am a defense lawyer at heart, I don't quite understand why Bernstein can't grasp the subject.
10.31.2005 3:22am
DavidBernstein (mail):
As I expressed in the comments section of the previous post, it would be perfectly reasonable, though I would likely disagree (perhaps, as GMUSL 2L has argued, that the intentional tort is a superseding cause), to have a rule that intentional tortfeasors' (e.g., criminals) fault is not considered when considering the comparative fault of an allegedly negligent actor who was charged with protecting others from criminals. But if state law requires such a comparison, it is lawless and irrational for a jury to find that a negligent party is more at fault than a criminal. The Cal. S.C. opinion quotation above basically says that juries can do whatever they want, because comparative fault is solely a matter of social policy. Forgive me for not wanting to trust "social policy" to twelve random, unelected, and unaccountable individuals, and for wanting American law to give potentially liable parties more guidance than "your liability will be determined by the whims of [twelve such individuals]--you can't predict what their ruling will be, and neither can we, but we'll uphold it regardless."
10.31.2005 6:38am
Ted F (www):
Of course, Aasem's analogy is inapposite, since the Port Authority case is not a breach-of-contract case. I don't think Bernstein or Kerr (or even Walter Olson) would object to a suit in contract where the contract permitted the recovery of consequential damages for breach.

The sort of absurd results reached in the Port Authority case, where an innocent bystander with a deep pocket is held completely financially liable for a third party's intentional tort or other criminal act, are a regular consequence of the currently screwed-up American tort system. Overlawyered covers only a small fraction of these cases, but still has plenty of material to regularly post about them.
10.31.2005 6:39am
Tom Tildrum:
The implication of this decision is that the owner of a parking garage has a duty to conduct a thorough search of every vehicle that enters. Furthermore, the owner of any business in NY now apparently has a duty to conduct a thorough search of every person who walks in the door.
10.31.2005 7:22am
AppSocRes (mail):
In the California case cited, supra, the defendants (the security firm) clearly failed in their contractual obligations to protect against obvious potential threats. In the 1991 WTC case the Port Authority also had an obligation to protect tenants against obvious threats, e.g., fire and criminal trespass.

The interesting legal question here would seem to be their contractual obligation to protect tenants against less obvious threats or threats with a very low probability. For example, would the Port Authority be liable for meteor damage to a tenant's property because it had not foreseen the possibility of a meteor shower's damaging the building, and pre-emptively installed a meteor shield.

I would suggest that in 1991 the expected probability -- based on experience in the prior century -- of a seriously damaging terrorist bomb attack on a building in the United States was very close to zero and, therefor, the Port Authority's legal liability for not having in place systems to thwart such attacks should also be close to zero.

Wouldn't it seem reasonable to make the liability of defendants in cases like this proportional to the subjective probability of the event they failed to protect against as estimated based on history prior to the event in question? If so, then the judgement against the Port Authority would seem disproportionately severe.
10.31.2005 7:27am
JohnG:
Prof Bernstein:

I think that you, like me, are recoiling at the sheer incomprehensibility of a single instance that's part of an overall trend that's been ongoing for decades. As Dr. Theodore Dalrymple more eloquently, and succinctly put it, in Our Culture, What's Left Of It: The Mandarins And The Masses, mischief among existing social conventions and avoidance of external threats are the primary identifying factors of our, so called, intellectual classes, whose involvement has led this chaos upon us. He states:


"One might have supposed...that a principal occupation of intellectuals, who after all are supposed to see farther and think more deeply than ordinary men and women, would be the maintenance of the boundaries that separate civilization from barbarism, since those boundaries have so often proved so flimsy in the past hundred years. One would be wrong to suppose any such thing, however. Some have knowingly embraced barbarism; others have remained unaware that boundaries do not maintain themselves and are in need of maintenance and sometimes vigorous defense. To break a taboo or to transgress are terms of the highest praise in the vocabularly of modern critics;..."


While focused on a sociological examination of modern day culture, his thesis is as applicable to our present day judicial system as any other, for our judicial sysytem is but a part of the larger culture.

That foundational beliefs no longer makes sense to the thinking mind is a telling indictment of that system. That it's been acclaimed as progressive in meeting out justice to the masses based upon higher ordered principles that us mere mortals can't comprehend is condemnation enough in our own minds.

Comparative negligence is not a refinement but a diminution of rights and responsibilities of the individual. It is, at bedrock, codification of the principle that it's best to pass the blame rather than suffer the rational consequences of one's own conduct or of the happenstance nature of life itself. So too, according to Dalrymple, is the movement propelling all of larger society: Life's ills are of somebody else's making; they never are the result of our own choices and actions. The anti-social, self-destructive nature of the lower classes that Dalrypmle chronicled in an earlier book, Life At The Bottom, now manifests itself throughout society, including so-called higher-ordered society, that area formerly occupied only by the elites and intellectuals.

Society is as depressing as Dalrymple notes it to be.
10.31.2005 7:36am
AppSocRes (mail):
The following link raises an interesting point: If a judge, in response to an ACLU suit, limits searches of those entering a sports stadium that has previously been targeted for a terrorist attack, who will be responsible for damages in the event a later terrorist attack is successful? (1) the ACLU, (2) the judge, (3) the stadium.

10.31.2005 7:40am
nick stieglitz (mail):
greetings from florida folks; got our power back yesterday, yee ha.

found your blog looking up scalito. used to work with the law and econ guys at u miami before they ended up at GMU. say hi to muris, et al.

below is case list for florida intentional tort/negligence law i used to overturn initial summary judgment, win trial and defend nice judgment on appeal.

the new york case is old news.

give a call if you need help on either side of this kind of a case. nick stieglitz, miami, florida, (305) 358-2900.

CASELAW CHRONOLOGY: COMPARATIVE NEGLIGENCE INAPPLICABLE TO CASES BASED UPON AN INTENTIONAL TORT

Shayne v. Saunders (Fla, 1937) Prior to Hoffman v. Jones, Florida followed contributory negligence.

Davidow v. Seyfarth (Fla., 1952) “... distinct acts of negligence that concurred in producing an injury gave rise to a joint and several liability...” p. 868.

Deane v. Johnston (Fla., 1958) “It is commonly conceded that contributory negligence will not bar an action for an intentional tort.” p.7, 8.

Hoffman v. Jones (Fla., 1973) “Therefore, we now hold that a plaintiff in an action based on negligence will no longer be denied any recovery because of his contributory negligence.” p. 438.

Honeywell v. Trend Coin (3rd DCA, 1984) inapplicable portions disapproved (Fla., 1986) “Honeywell’s other arguments are without merit. (comparative negligence not a defense to intentional tort), (contributory negligence not a bar to intentional tort), (exculpatory clause not a defense to intentional misrepresentation), citations omitted.

Mazzilli v. Doud (3rd DCA, 1986) “Even as contributory negligence did not under former law bar an action for a tort legally classified as intentional, Deane v. Johnston [above], comparative negligence is not a defense to such a tort action under present law.” p. 480.

Florida Statute 768.81 takes effect: “(4)(b) This section does not apply ... to any action based upon an intentional tort...”

Slawson v. Fast Food (4th DCA, 1996) “After the supreme court replaced contributory negligence with comparative negligence, the court held that intentional wrongdoing could not be used for purposes of comparative fault to reduce a plaintiff’s recovery.” p. 257

“We agree ... that the statute is inapplicable to this action founded on an intentional tort.” p. 256.

Stellas v. Alamo (3rd DCA, 1996), quashed, (Fla., 1997) Section 768.81 does not apply to cases based on intentional torts. p. 234.

Merrill Crossings v. McDonald (Fla., 1997 reh.den. 1998) “Thus, it would be irrational to allow a party who negligently fails to provide reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against.” p. 562, 563.

“... we conclude that the substance of this action was an intentional tort, not merely negligence. In limiting apportionment to negligence cases, the legislature expressly excluded actions “based upon an intentional tort.” quoting Slawson, emphasis in original. p. 563.

“The substance of the action here is that [plaintiff] was the victim of an intentional tort; we are not faced with the true negligence action we examined in Fabre. Accordingly, we agree with the reasoning of the Slawson court as to this issue and hold that section 768.81, by its own terms, does not apply to the instant case to mandate comparative fault.” p. 563.

Smith v. Hooligans (3rd DCA 2000) “... no argument was made that [plaintiff’s] alleged comparative negligence was not a proper defense to [defendant’s] intentional conduct or that comparative negligence did not apply...” p. 598, 599.
10.31.2005 7:45am
Anderson (mail) (www):

it is lawless and irrational for a jury to find that a negligent party is more at fault than a criminal

"At fault" for what continues to be the question. I think DB is eliding two different kinds of "fault" here.
10.31.2005 7:56am
frankcross (mail):
GMU, I think you are wrong on the law.
This case is different, because it is not comparative negligence of plaintiff, it is third party negligence.

But how can you call it lawless without researching New York law? There seem to be cases holding that intervening criminality, such as DUI, does not prevent allocation of substantial damages for unsafe auto design. One case held: "that application of comparative fault statute did not allow liquor vendor to reduce its share of damages for its own wrongdoing, but merely prevented it from paying damages for conduct it could not have prevented." If that is the law, the jury verdict looks lawful, no?
10.31.2005 8:48am
Visitor Again:
Impossible or difficult to apportion fault for an intentional act?

Crime is a fact of life and I don't see why a duty of care to safeguard against it should not be imposed on certain businesses that attract the public. It is as dangerous a condition as faulty machinery liable to go whacko at any time.

If I own a convenience store and customers attracted to my store by its sign are regularly mugged and robbed in the parking lot, am I not on notice that I must do something?

Or I own an amusement park or public swimming pool that attracts large numbers of unescorted children and I allow a known child molester to roam the premises. I do nothing.

Or I own a building which is known to be a target of terrorist threats. I do nothing.

I see nothing unusual about imposing liability in these circumstances, and in fact I would impose full liability on the owner if he/she has reason to know of the danger and if reasonable steps would have prevented the crime.

If the courts are out of whack in imposing common law tort liability in these circumstances, you have a remedy. Have the Legislature pass a law removing liability.
10.31.2005 9:08am
JosephSlater (mail):
As somebody who teaches torts, let me try to distinguish two different types of cases.

Case one. I'm negligent -- say, I have a duty to screen passengers carefully at an airport, but I fail to do that. Because I screen negligently, a bad guy gets through. The bad guy commits an intentional tort/crime by hijacking a plane, and this hurts others. It's not at all new or radical that I, as well as bad guy, can be liable for resulting damages. The whole basis for my tort duty here is to try to avoid this exact type of harm.

Intentional torts by others often break the proximate cause chain, but not always. The key question is whether the harm that occurred is a reasonably foreseeable harm that my negligence risked. That's a well-established rule and I don't see any big problem with it.

Here's another example: I negligently violate a fire code (by forgetting doors are locked, by not refilling fire extinguishers, and/or etc.). An arsonist then sets a fire in my building. Evidence shows that had I not been negligent (if I had fire extinguishers and unlocked exits), nobody would have been hurt. But because of my negligence, the fire kills several people. Sure, the arsonist should be liable, but isn't a judgment against me fair, in this case?

Case two. I'm negligent, and that negligence contributes to somebody intentionally attacking *me*. For example, I walk through a bad neighborhood without paying attention, and I get mugged. The traditional rule was/is that the defendant could *not* use my comparative negligence as a defense. The theory is that comparative negligence is only a defense in negligence cases, not in intentional tort cases.

It is possible to read the language of the (relatively new) Restatment Third of Torts to allow an intentional tortfeasor to use comparative negligence of a victim as a defense. Few if any cases have allowed that so far. I personally think it would be a bad idea, precisely because of the rapist hypos others have given. I predict (for whatever that's worth) that courts will not allow this defense in that kind of case.

It is simply not true, however, that because we allow suit against the negligent party in case one, that we have to allow intentional tortfeasors to use comparative negligence in case two. In fact, for a number of decades we have allowed suit in case one but not the defense in case two. That's correct, in my opinion.
10.31.2005 9:25am
Passing By:
GMUSL 2L, while agreeing with the larger point raised by frankcross, the better comparison would be to leaving your car unlocked with the keys in the ignition in the neighborhood you described. Do that for night or two..., then try to make a claim with your insurance company after the car disappears - giving them the full and honest truth about what happened - then relate back to us whether they pay your claim.
Comparative negligence is not a refinement but a diminution of rights and responsibilities of the individual
JohnG, that's a great conclusion, which you unfortunately neglected to support. I generally regard statements like that as essentially political in nature, but if you can back up your position with something a bit less conclusory I'm all ears.
10.31.2005 9:53am
JohnG:
Passing By: You're exactly right. It is a conclusion. It was meant to be a conclusion based upon my earlier statements. Read them first and see if they lead you to the same conclusion. (Frankly, political theory never entered my mind in formulating it for the simple reason that it's completely inapplicable.)

If you don't agree, fine. We disagree on the philosophical background behind our current situation. If you agree, fine. We agree. On an opinion.

But, if you're looking for liber and page of citations in support or in opposition, you've completely missed the boat here. Go back and read Prof. Bernstein's basic philosophical misgivings about the whole concept. It was to him that my musings were addressed based upon the scenario he had set.

If you think you have something to say in that regard, please join in. I'd be interested to hear what you have to think about this particular topic.
10.31.2005 10:50am
Robert Schwartz (mail):
Juries can and do go nuts. This is one case, the McDonalds coffee case was another and there have been many others. But, once we have said that, we need to analyze what happened and figure out how to avoid its repetition.

My first take is that there was a failure of legal rules here. This is not a question of contractual liability. The contracts between the PA and its tenants are the leases for office space. I am quite certain that they did not contain any clauses expressly assuming liability for any personal injury or undertaking any obligations except the usual landlord obligations (quite enjoyment, deliver the space fitted in a certain manner, etc.). I am also certain that the leases disclaimed third party beneficiary implications and liability for consequential damages.

Further the PA did not contract with the people who were injured, at all. They were business invitees of the tenants.

It is true, and sad, that a great deal of case law has imposed liability on landlords for injuries to tenants and their guests. The law has all arisen in the last couple of generations. It is harsh and perverse. Landlords are not the police, and we should not want them to be the police. They are not bound by the bill of rights and we do not want them spying on us and regulating our visitors and our private conduct.

The correct rule would be that, in the absence of contract, I am only liable for the actions of persons under my care, custody and control or whit whom I have acted in concert. A fortiori, no one should be liable for the criminal acts of a third party in the absence of conspiracy or CCC. The PA should not be liable for the actions of blind sheiks affiliated with Al-Qaeda.

The comparative negligence rule and other fault apportioning devices need to be severely pruned. They have become the means of mulcting deep pockets not justly apportioning fault.

Second, Judges need to be more tightly in control of jury trials. They should eliminate emotionalism and tightly control the presentation of evidence so that jurors are not exposed to inflammatory, non-probative material.


Arguments like this need to be banned from court rooms:

Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: "She said at 3, `I'm fine.' She said at 4, `I'm having a little trouble, but I'm doing O.K.' Five, she said, `I'm having problems.' At 5:30, she said, `I need out.' "

But the obstetrician, he argued in an artful blend of science and passion, failed to heed the call. By waiting 90 more minutes to perform a breech delivery, rather than immediately performing a Caesarean section, Mr. Edwards said, the doctor permanently damaged the girl's brain.

"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you."

The jury came back with a $6.5 million verdict in the cerebral palsy case


The ability to request and give evidence as to punitive damages, in cases other than "I'm gonna getcha suckah" batteries has allowed a great deal of prejudicial and inflammatory material to be produced at trial. The requirement that ability to pay be part of the punitive damage assessment has allowed "deep pockets" information in the trial in a way that is prejudicial.

Punitive damages, should be tried in a separate phase so that the liability determination is made without having the punitive material in front of the jury. Because Punitive damages are a quasi-criminal remedy, they should require proof beyond a reasonable doubt and allow defendants the full panoply of criminal rights, such as the ability to not testify against ones-self.

Other factors that lead to juries going out of control should be looked at. There is no reason to allow lawyers to make peremptory challenges of jurors. Nor is there any reason to allow lawyers to soften up a jury in voir-dire. Judges should pick juries and voir-dire and objections should be limited to cause.

Jury instruction need to be translated into English and Judges need to meet with juries to explain confusing concepts. General verdicts need to be abolished and jurors should enter verdicts on tightly drafted interrogatories.
10.31.2005 11:59am
arbitraryaardvark (mail) (www):
Let's apply some legal realism to new york juries.
I think they are fairly savvy about knowing that torts litigation is a search for a deep pocket, and that terrorists may underinsure.
New York jurors tend to be liberal democrats, with a different view of how fairness relates to personal responsibility than the typical reader of this blog would have.
It is possible that there is some hostility toward the port authority. Robert Caro's book "the power broker: robert moses and the rise and fall of new york" tells the story of how the port authority was a private kingdom of one man, who made some unpopular choices along the way. Caro then turned to a career of writing a bio of LBJ, most recently "master of the senate" that is a masterpiece of political history.
A defendant negligent tortfeasor may have a right to interplead or crossclaim and recover from the acts of an intentional tortfeasor, but that often won't be collectible.
10.31.2005 12:52pm

PicoSearch
Help