Palsgraf Loses Again:
The jury has ruled in Benihana's favor in the killer shrimp lawsuit:
A Benihana chef may have tossed a hot shrimp at a customer five years ago, but a Nassau jury decided yesterday it's not the restaurant's fault the man wrenched his neck that night and later died.
It took the jury less than two hours to decide that Benihana, a Japanese restaurant chain famous for its theatrical table-side food preparation, was not responsible for the death of Jerry Colaitis, 47, of Old Brookville. . . .
UPDATE: Thanks to Jim Lindgren and Joe Zwers for giving me the correct cite.
Related Posts (on one page):
- Palsgraf Loses Again:
- Palsgraf All Over Again:
When I first read the story, I saw that the link was wrong, but it took only a few seconds to find the story.
Here was your original Newsday story:
I got it by putting the first sentence you quoted into Google, and then switching to (Google) "News."
Jim Lindgren
I hope that all the posters in the previous thread who were claiming that tort law had lost any connection to fairness or reality will note the actual disposition of this case.
I don't know enough about the details of the case to know whether I buy that argument or not.
This is the rare case where the jury gets it right AND we actually hear about it. If there were more such examples, people might have a fairer picture of the justice system.
Steve: Benihana won this case only after a four-week trial. They will recoup none of their attorneys' fees, which are well into the six digits. This is not a case where the system got it right, it's a case where Benihana was not hurt as much as it could have been if the jury came to a ludicrous result. Right would have been the judge throwing this case out on summary judgment in November 2004, and awarding Benihana its attorneys' fees so that it would be in the same position it would have been if the illegitimate suit had never been brought.
Overlawyered has additional detail.
It is also important to note that, were the plaintiff's claims believed (i.e. repeatedly asked the chef to stop throwing, he wouldn't), this is a textbook case of tortious assault/battery. Moreover, NY law holds assault/batterers liable for injuries caused by resulting medical malpractice. If it went to the jury on assault/battery, the system worked exactly as it should.
The denial of the summary judgment increased the value of the case, and the ability of Colaitis to profit from settlement. The Colaitis family didn't lose anything other than time (and gained that back in publicity); the case was taken on contingency. The plaintiffs' lawyers' business-model expects to lose the majority of cases; they're hoping for a lottery-sized verdict, and know that they'll be scratching a lot of losing tickets on that path. So while they're technically worse off ex post, there clearly isn't sufficient disincentive ex ante against bringing these cases and imposing externalities on innocent defendant.
Even given settlement expectations, I'm not sure that this business plan supports the number of lawyers who actually take on plaintiff's work. (though it might be a business plan for a few larger firms.)
The plaintiff testified that the chef threw shrimp at them. They asked him to stop. The chef continued to throw shrimp. Now, how can you say there's no argument when a person continues throwing things at you after you have asked them to stop. Obviously there are proximate cause issues but those go to the magnitude of damages, not the existence of a claim.
"The plaintiffs' lawyers' business-model expects to lose the majority of cases; they're hoping for a lottery-sized verdict, and know that they'll be scratching a lot of losing tickets on that path."
This is often asserted but without evidence. There's plenty of empirical evidence, by Bert Kritzer and others, that this claim is simply false as a general rule.
On the other hand, there's the empirical evidence of the plaintiffs' lawyers like Mark Lanier who explicitly state to the press that they're thrilled with a ".333 batting average." Too bad for the two out of three plaintiffs who lose, but they're just cannon fodder.
The SUV-rollover cases against Ford are a good example of the lottery-style litigation in action. Ford won the first thirteen trials, and, in the fourteenth case, got hit with a nine-digit verdict.
Kritzer's research is on the low-level run-of-the-mill PI auto-accident lawyer, not the big-time plaintiffs' bar organized attack on American corporations and consumers (which would never open their books to an honest study), and can't be generalized to the latter. Kritzer would probably acknowledge this, judging by his paper in the DePaul L. Rev. on stratification in the plaintiffs' bar, but I don't want to put words in his mouth.
You base this on what? The newspaper reports?
How odd that you ignore the substantial out-of-pocket costs to both the plaintiffs and their lawyers, but you attach significant positive value to the "publicity" which accrues to the plaintiffs, as if HBO will be paying them millions of dollars to film "The Case of the Sinister Shellfish."
And what is the answer on summary judgment. How can you grant summary judgment in the presence of testimony that plaintiffs requested the chef stop throwing shrimp? And how can you grant summary judgment on proximate cause when some of the damages were immediate?
Do you think the family is lying about having told the chef not to toss food at them? Fine, but others might disagree. It's a triable issue because a rational jury could believe the family and because whether the chef had Colaitis's consent is a material fact.
The same is true about whether Colaitis's death was caused by the neck injury that he allegedly sustained at the restaurant. Maybe you don't believe his injury happened the way his family claims, but other reasonable people might. Maybe you believe he was injured but not that the injury ultimately caused his death, but if there is believable evidence that it did then the MSJ has to be denied.
The judge deciding an MSJ essentially isn't allowed to base his decision on his own opinions of witness credibility or about any factual question except in extreme cases, like where a plaintiff testifies that David Letterman uses his monologues to signal a desire to marry her. He can only grant the motion if he finds that no reasonable person would believe enough of the plaintiff's case to rule in his favor. That's an awfully hard burden to carry.