So Who's 'Loony' -- the Lawyer or the Critic?

Monday, April 11, 2005

Page 15

PERSPECTIVES:

So Who’s ‘Loony’—the Lawyer or the Critic?

By ROGER M. GRACE

San Diego County Citizens Against Lawsuit Abuse designates a “Loony Lawsuit of the Month.” In a press release on March 28, it pointed to an action which it said had been filed in Orlando, Florida, reporting:

“Attorney Vincent D’Assaro has filed a lawsuit on behalf of an 18-year old Florida man who after attempting to make a jump from one parking structure to the next—a distance of just 2.5 feet—missed, fell six stories and knocked himself unconscious. What grounds were given for filing a lawsuit? D’Assaro contends that the fence at the edge of the structure was ‘very, very short’ and inadequate to prevent a teen from [deliberately] making the jump.”

Jumping from building to building is, according to the press release, a teen sport in Orlando.

Andy Kotner, president of the San Diego group, was quoted as commenting:

“Under existing law everyone is responsible for his or her own actions. Everyone should take personal responsibility not only for the result of his or her willful acts, but also for any injury brought upon them by those actions. The trial attorney in this case on the other hand, would like the public to believe that responsibility should fall to the owners of the parking structure for giving the teenagers the opportunity to jump.”

Indeed, at first blush, the action appears utterly frivolous, if not outrageous.

But is there another side to it?

I e-mailed D’Assaro, asking for a comment. Here’s his response:

“My client was not out indulging in ‘the latest teen thrill-seeking trend,’ as reported in our local news. Rather, our investigation revealed that he was the last of several garage patrons who, after a night out in downtown Orlando, went to what they thought was the garage where he and his friends had parked, and, after looking for their car on several floors, got to the top, realized they were parked in the adjacent garage, and attempted to get from one to the other by going across a gap between the two. My client’s friend successfully negotiated the gap; my client did not.

“Our investigation revealed that representatives of the city-owned garage (the wrong one) and the adjacent private garage (the right one), knew of several prior almost identical incidents, but did nothing to correct the condition. Indeed, the private garage was opened to the public for evening use only after numerous clubs and bars opened and began flourishing in downtown Orlando, obviously to capitalize on increased parking demand and make money on the garage after hours. After my client’s fall, each garage had fences erected spanning the top floors of each.

“I’m certain Florida law is not unlike that of other states, where foreseeability of a potential hazard gives rise to a duty on the part of the business owner or operator to correct a dangerous condition. This is the theory that would be plead on behalf of my client. In the absence of prior incidents, and the circumstances behind the owners of the private garage opening it to the public at night, my firm would not have taken this case.”

The lawyer noted:

“No lawsuit has yet been filed. Florida is also, you should know, a pure comparative negligence state, and any eventual jury will be free to assess whatever percentage of negligence against my client they deem fit.”

I sent a further e-mail, querying as to the applicability, under Florida law, of an assumption-of-the-risk defense. D’Assaro responded:

“Assumption of the risk is generally subsumed under comparative negligence in Florida, and is available as a complete defense only in very limited circumstances, i.e., participation in contact sports. It would not be applicable to the facts of this case.”

I took a look at Florida law. What I saw bears out what D’Assaro said.

The Florida Supreme Court in Blackburn v. Dorta (1977) 348 So.2d 287 said the same thing the California Supreme Court did in Knight v. Jewett (1992) 3 Cal.4th 296: that where there is a duty to the plaintiff, the defense of assumption of the risk is merged into the comparative fault scheme.

A major difference in the two cases, however, is that the California high court retained “primary assumption of risk”—where the plaintiff engages “in a potentially dangerous activity or sport”—as an absolute bar to liability. The Florida Supreme Court scrapped the doctrine.

While primary assumption of the risk is generally invoked as an affirmative defense in California in cases where the plaintiff was injured while participating in a recreational sport, it has been applied in other contexts. The court in Knight mentioned that the fireman’s rule, precluding liability to fire fighters and police officers who are injured in seeking to combat the danger that was caused, is but an application of primary assumption of the risk. The affirmative defense has also held to bar liability to a veterinarian bit by the defendant’s dog.

A California court would be hard-pressed to do other than to scuttle an action for injuries brought by a man who had fallen when attempting to jump from the sixth floor of one building to another building. This is, plainly, “a potentially dangerous activity.” By virtue of the nature of the activity, there would necessarily be no duty to the plaintiff absent some conduct on the part of the garage owners to increase the danger—and there was none.

In Florida, however, the law is otherwise. Justice Alan C. Sundberg (since deceased) said in Blackburn:

“It is apparent that no useful purpose is served by retaining terminology which expresses the thought embodied in primary assumption of risk. This branch (or trunk) of the tree of assumption of risk is subsumed in the principle of negligence itself. Under our Florida jury instructions, the jury is directed first to determine whether the defendant has been negligent, i. e., did he owe a duty to the plaintiff and, if so, did he breach that duty? To sprinkle the term assumption of risk into the equation can only lead to confusion of a jury.”

So, in Florida, unlike California, the case would get to the jury, which would look at whether the garage owners had a duty to the plaintiff. And without the doctrine of primary assumption of the risk to preclude a finding of duty, duty would likely be found.

There had been prior incidents of garage-hopping. The garages were open late to accommodate patrons of night clubs and bars in the area, and these patrons would likely be inebriated, with their judgments and/or balance thus impeded. The garage owners could well be imputed with a duty to erect fencing other than that which is “very, very short” around the perimeter of the structures.

While a jury would be apt to find only a small percentage of fault on the part of the garage owners, there is an obvious settlement value to the claim.

Accordingly, the assault by the San Diego County Citizens Against Lawsuit Abuse was ill-founded.

Kotner told me she got the information on the matter “out of a newspaper,” probably one from Florida.

There are four attorneys on the group’s “Board” and three on its “Advisory Committee.” Is it appropriate for members of the bar to lend their names to a group whose lay president spouts off about pending or impending cases based merely on her reaction to news accounts?

The stock example that’s given of how the courts have gone hog wild in imposing liability is the award of nearly $3 million to a woman who was burned when she spilled a cup of coffee on herself in 1992 at a McDonald’s Restaurant. The normal reaction is that it was her own fault for being clumsy—and whatever happened to the concept of individual accountability?

However, the evidence was that the coffee was heated to a scalding temperature of 180-190 degrees Fahrenheit, and that in a matter of a few seconds, third-degree burns were caused. The 79-year-old woman spent eight days in the hospital; there were medical costs of $10,000 and permanent scarring.

The excessive temperature of the coffee was pursuant to McDonald’s policy—and it knew the dangers. McDonald’s admitted at trial that between 1982 and 1992, it had received in excess of 700 reports of burns from coffee and had paid more than half a million dollars in claims from victims.

The jury in New Mexico awarded $200,000 in compensatory damages, which was pared by 20 percent, representing the plaintiff’s comparative fault, and punitive damages were assessed at $2.7 million—slashed by the trial judge to $480,000. How much the plaintiff was actually paid is unknown. There was a confidential settlement.

The San Diego County Citizens Against Lawsuit Abuse would no doubt have labeled the action in that case “loony.” What was loony was McDonald’s persistence in serving coffee at a temperature so hot that if the beverage spilled, third-degree burns were apt to be caused. Its highest settlement offer was $800.

‘X’ ADVISES—I’ve received a couple of anonymous letters recently. While I’ve never paid much attention to unsigned missives, I found these two of interest. One concerned the election for the 2005/2006 Los Angeles Superior Court assistant presiding judge. The letter advised:

“Regarding your article on Peter Lichtman: I feel compelled to correct one statement. You indicated that Steve Czuleger ‘handily defeated’ Lichtman and Mary House in the Assistant [Presiding] Judge election. That is not exactly true.

“While Czuleger trounced Lichtman, we hear that Mary House came very close (i.e. within a handful of votes) of forcing Czuleger into a runoff. I just thought that you should know.”

The same information came in an e-mail from a judge (who identified himself or herself and whom I know to be reliable).

I stand corrected.

Another letter alluded to Los Angeles County District Attorney Steve Cooley’s barb that jurors who acquitted actor Robert Blake of murdering his wife were “incredibly stupid.” The letter said:

“Do you think it will be O.K. for defendants to ask prospective jurors if they will feel incredibly stupid for voting Not Guilty; to argue to the jury that they should not be intimidated by the D.A. ridiculing them if they vote Not Guilty?

“Maybe name Steve Cooley as Person of the Year.

“A stroke of genius?

“Or INCREDIBLY STUPID?”

Incredibly stupid.

Steve should know something about incredible stupidity—having demonstrated it when he had 11 armed investigators seize the premises of this newspaper three years ago to search for a document we had agreed to provide upon presentation of a simple demand in writing.

To this date, he has not apologized.