Rhum Runner, a “car yard” here would generally either be selling or repairing cars. A “junkyard” or “scrap yard” would be referred to here as a “wreckers” and you’d certainly find lots of potentially dangerous situations at a wreckers no matter how diligent the staff were at trying to clean up after the customers who rearrange things as they are poking through the place.
Rhum Runner, a “car yard” here would generally either be selling or repairing cars. A “junkyard” or “scrap yard” would be referred to here as a “wreckers” and you’d certainly find lots of potentially dangerous situations at a wreckers no matter how diligent the staff were at trying to clean up after the customers who rearrange things as they are poking through the place.
Actually, it’s not “pounding on the table”, but “attack the opponent’s character”. Kinda like what the lawyers did in the recent Westerfield case in San Diego. They didn’t have anything else, and it didn’t help their client.
um, cite?
Much against my better judgment, an as futile as it might be, here we go on Assumption of the Risk.
In many States there are standard jury instructions which generally are a concise and complete statement of the law. In Iowa the standard instructions for Assumption of the Risk are tied in with the instructions on Comparative Fault and the apportionment of fault (negligence) between the parties and non-parties. We give two basic instructions, one on a failure to take steps to protect yourself and one on voluntary acceptance of risk of harm. Here they are:
Unreasonable Failure to Avoid an Injury Defined. A party is required to exercise reasonable care for their own safety. This means that if, in the exercise of ordinary care under the circumstances, a party could have taken some particular action to avoid an injury, then they are under a duty to take such action.
In this case defendant claims that plaintiff unreasonably failed to take action to avoid an injury because [here set out the specifics of the claim].
And
Unreasonable Assumption of Risk Not Constituting an Enforceable Express Consent—Definition. Fault is assigned to a party who unreasonably assumes a risk of harm from the [negligent] [reckless] conduct of another. However, a party does not assume a risk of harm arising from the conduct of another unless the party:
- Knows the existence of the danger.
- Understands and appreciates the nature, character and extent of the danger.
- Unreasonably chooses a course of conduct that indicates a willingness to accept the risk created by the danger.
In this case defendant claims that plaintiff unreasonably assumed the risk by [here set out the particulars].
In Products Liability cases the Assumption of the Risk instruction is:
Assumption of the Risk. The defendant claims the defendant voluntarily assumed the risk by [set out the particulars]
To prove this defense, the defendant must prove each of the following propositions:
- The plaintiff knew the defect or dangerous condition was present.
- The plaintiff understood the nature of the danger to himself.
- Nevertheless, the plaintiff freely and voluntarily used the product.
-
The plaintiff’s fault was a proximate cause of plaintiff’s damage.
….
If the defendant fails to prove any of these propositions, the defendant has not proven this defense. If the defendant has proven all of these propositions, then you will include this fault in the total percentage of plaintiff’s fault you find in accordance with the special verdict submitted with these instructions.
It will be noticed that some of the elements of Assumption of the Risk are subjective while some are the old “reasonable man” standard. As a practical matter a jury will figure that the party knew what the jury thinks he should have known. The jury can base this on its power to believe what it want and reject what it doesn’t want to believe. None the less, it should be obvious that Assumption of the Risk is not the blanket defense based on perfect hindsight that some of our friends wish it were.
Um, you do know there is a huge difference between summary dismissal and summary judgment, right? 'Cause the way you are lumping them together, it appears that you do not.
So, a primer -
Summary dismissal - even if all the facts alleged by the plaintiff in the complaint, the complaint does not state a cognizable cause of action against the defendant.
Summary dismissals are pretty damned rare, and an attorney should at the least feel pretty embarrassed if a complaint he filed is dismissed on those grounds (though in some instances, the attorney is openly making a good faith effort to extend existing law, and in those cases no embarrassment is warranted even if it doesn’t work).
In many cases one or a few causes of action in a multi-count complaint is summarily dismissed, but the complaint survives. Usually there is nothing much to be distressed about in those cases - the dismissed counts are usually simply alternative theories of liability.
Summary judgment - At summary judgment, the party seeking judgment argues that there are no disputed issues of material fact, and the judge may summarily rule by applying the law to the undisputed facts. This usually takes place at a relatively late time in the proceedings. The idea is that the jury’s function is to be the fact-finder - that is, determine what the facts are. If there is no question as to the facts, there is no need for a jury. The other party will either (a) argue that there are indeed disputed facts, or (b) agree that the facts are not in dispute, but that the law requires the judge to summarily rule for them, not the other party.
Losing a case on summary judgment in no way means that your case was frivolous. The key is that there are no undisputed material fact issues. When a complaint is filed, some facts are in the possession of the plaintiff, some are in the hands of the defendant, and some are in the hands of third-party witnesses. The parties engage in discovery to uncover all these facts.
You aren’t expected to know all the facts before you file a suit - indeed, it is usually impossible to do so. I may reasonably think that the lawnmower manufacturer used improper methods when annealing the blade, but I can’t know that until I discover what those annealing methods were - and the manufacturer isn’t going to tell me unless compelled to by discovery during a lawsuit (no manufacturer likes to disclose methods and techniques). If, after discovery occurred, it turns out that the manufacturer did use proper annealing techniques, summary judgment will be granted to the manufacturer, by I did nothing wrong by filing the lawsuit.
Moving on …
(emphasis mine)
Why are you using either of these cases as evidence of what’s wrong with the legal system? In neither case did a jury hand down an outrageous decision - they juries handed down no decision. The cases were settled by the parties. IOW, there was no determination of liability by a court.
Even worse for your argument, in both cases the settlement was sealed. So we don’t know if the defendant paid the plaintiff a freaking penny. (And don’t say that “of course the defendants paid” - as a defendants’ attorney, I have been involved in cases where we settled for $0 (or even payment of some/all of my clients’ attorneys’ fees) and at the request of the plaintiff we kept the settlement confidential.)
Sua
OK, so I have done my part to keep the hamster satisfied today.
Once more
**Spavined Gelding - **
Thank you for the time and explanation of AoR defenses.
These are pretty much my understanding of the matter (that part about “proximate cause” would seem to leave a little more wiggle room than I woud like.
So, why do we still get judgements where AoR would seem to preclude any action?
**SuaSponte - **
In the cases you cite, one says the “judgement was sealed”. I take that to mean that there was a judgement.
The second, as I stated before, involves no cause of action - why did this even go to trail?
And thanks for the differation of dimissal and judgement - I should have limited my comments fo dismissal (although, barring critical evidence from a 3rd party. any case subject to judgement probably was not worth the court’s time IMHO).
Anyway, original point: Minty Green had speculated that 25% of cases were summarily dismissed in whole or part.
Given that number, it would seem that there just might be cases that counsel knew were downright fraudlent.
Q: What, if any, mechanisms exist (in other than theoretical terms) to discourage speculative litigation?
Malpractice? Doesn’t seem to me many such cases.
Disbarrment? Don’t you pretty much need to kill somebody (or rob a disabled client blind) to get a bar assn excited?
and yes, I understand trying to stretch a concept - I don’t think the fellow representing someone who’s faked an injury can be accused of trying to expand legal horizons.
Actually, I didn’t see that in either of the blurbs you quoted, but in any event, it is of no moment. Settlements usually involve judgments - as part of the settlement, the parties ask the court for an agreed judgment of dismissal with prejudice.
Self-evidently, it did involve a cause of action - otherwise it would have been summarily dismissed by the judge on motion by defendant at the start of trial. Again, remember, stating a cause of action means that if all the allegations made in the complaint are assumed to be true, the plaintiff has presented a cognizable theory under which the defendant is liable. In any event, your own blurb stated that the box was placed in a manner that “violated numerous codes meant for the protection of pedestrians.” There was a cause of action because the appropriate legislature enacted laws that created a cause of action.
Your beef in that case is with the legislature, not the courts.
That’s a pretty silly opinion.
-
Even where everyone agrees on the facts from the get-go, it doesn’t make a case “not worth the court’s time.” Take Roe v. Wade. The facts there were reaaaal simple and obvious - Roe was pregnant and wanted to have an abortion.
-
Forget about a 3rd party - the plaintiff usually can’t know what the defendant knows. Take a typical fraud case. A requirement of fraud is scienter - that the defendant knowingly misled the plaintiff. Say a plaintiff loses $300,000 in what appears to be an obvious fraud. However, after investigation during discovery, it turns out that, not only did the defendant not pocket the $300,000, she lost $200,000 herself. The case likely gets dismissed on summary judgment, but it doesn’t mean that the case was frivolous from the get-go.
First off, I’d say Minty’s number is accurate, so long as we remember that (i) dismissal in part usually means nothing of significance - often partial dismissals include such things as where a plaintiff makes alternative pleadings for causes in actions in both tort and contract, each for the full amount of damages, and the court determines that only the causes of action in contract may proceed. The plaintiff still gets to go forward for the full amount of alleged damages. (ii) Minty’s figure recognizes the flat-out goofball suits - you would be amazed at the immense number of lawsuits filed by two groups: prisoners and the mentally ill (my personal favorite is where a guy sued Satan and his minions)
That being said, absolutely there are fraudulent suits, and it is a huge problem. Hell, I’ve made my career (such as it is) on a case in which we beat off a fraudulent lawsuit (literally, a “fraud upon the court”) filed for purposes of extortion, got a seven-figure sanction imposed on the other side, got the opposing attorney referred for a disbarment trial, and got a reference to the U.S. and State’s Attorney’s office for criminal investigations, among other things (the Circuit Court of Appeals just affirmed dismissal and sanctions, but vacated for a re-allocation of the sanction amongst the bad guys).
Sadly, to get a result like that, you need a client willing to risk a butt-load of money in legal fees.
Fed.R.Civ.P. 11(b) (imposing monetary sanctions on either or both attorneys and parties for frivolous filings of lawsuits - or defenses - not reasonably grounded in fact or law)
28 U.S.C.A. 1927 (imposing monetary sanctions on attorneys who engage in “vexatious duplication” of litigation)
Fed.R.Civ.P. 26(g)(3) (imposing monetary sanctions on attorneys or parties for frivolous discovery requests)
Inherent authority of the courts (imposing monetary sanctions, contempt, etc., on parties and counsel for bad-faith conduct)
Other various and sundry rules and statutes.
Malpractice is as much of a problem for attorneys as doctors. There is many a case where, as you get into proceedings, you just know that your client will sue you for malpractice if you don’t win. And it is usually pretty damn hard to get out of representing a party.
I utterly agree that disbarment does not happen often enough. This is a common problem among self-regulated professions.
But if said faker presents the attorney with medical reports from a quack doc, is the attorney responsible?
In any event, HH, part of the problem here is that you are arguing two different things at once, and conflating them.
First, you are arguing that lawyers bring frivolous and fraudulent lawsuits.
Second, you are arguing that jurors find in favor of plaintiffs in frivolous and fraudulent lawsuits.
The two are pretty contradictory. If the jury finds for the plaintiff, the case is pretty much by definition not frivolous or fraudulent - the legal system vindicated the lawsuit.
The first problem is an issue of attorney ethics. The second problem is an issue of tort law in America. They are unrelated issues. If an attorney brings a lawsuit that, under applicable precedent, is a winner, the attorney is acting ethically - indeed, an attorney must zealously represent his/her client - even if the tort system is screwed up when it makes such a case a winner.
Sua
Actually, I said:
I was being intentionally vague on the difference between dismissal and summary judgment because I didn’t think it was germane to the point of preventing cases from reaching the jury. And of course, the vast majority of lawsuits reach a settlement–agreed to by all parties–without ever reaching a trial.
And if I remember the case, didn’t the guy who sued Satan try to effect service on his agent, Bill Clinton? 
never argue with lawyers…
Sua -
so there was an award
and
[quote]
…box, similar to those frequently seen on construction sites, violated numerous codes meant for the protection of pedestrians.
**
The assertion was that the box was somehow deficient - NOT its placement. I cannot imagine a box being defective to the point of tripping someone - electrocuting them, yes - had a poorly constructed box been placed in standing water…
But tripping? render unto me a break.
Note: in my hypothetical, I specified that counsel knowingly brought a fraudelent suit.
But to your question: does the term “horse shed” still exist?
Yes, an officer of the court has a duty (I hope) to know that his plaintiff is legit BEFORE filing.
The OP here asked about reforming the law. We have now limited the discussion to tort law (Roe v. Wade is constitutional law - who’s conflating? 
), so I think addressing both the origin of frivolous and/or fraudulent suits and their ajudication is valid.
And, I disagree that winning a suit proves that the case had merit - if that were true, there would not be the large noise about tort reform that currently exists.
It is because such suits succeed that reform is needed.
p.s. - thank you for nailing the bad guys - how much has the client spent so far (if you can say) and, more importantly, where does he or she go to get his money back?
<Tom Paxton>
1,000,000 Lawyers and Other Disasters
</Tom Paxton>
[QUOTE]
*Originally posted by happyheathen *
**These are pretty much my understanding of the matter (that part about “proximate cause” would seem to leave a little more wiggle room than I woud like.
So, why do we still get judgements where AoR would seem to preclude any action?**
Hold on here! Proximate cause allows “wiggle room?” Do you understand the word, Happyheathen? You know about approximate? Amoral? Asexual? So, proximate is to approximate as sexual is to asexual. As used in the law, and admittedly it is not a word used in every day speech, it is pretty simple. Except in an abomination of a case involving the Long Island Railroad, Helen Pfalsgraff, a your-weight-for-a-penny machine and a sack of firecrackers, it means direct, immediate and obvious–so in the Products Liability Assumption of the Risk situation in order to constitute a defense the harm to the plaintiff must be directly, immediately and obviously caused by the plaintiff’s voluntary use of the product with knowledge of its dangerous nature. In other words, Rube Goldberg convoluted and surprising chains of causation are not going to cut it. In the ordinary civil case you don’t worry about causation by the plaintiff because the harm you are concerned with was caused by the defendant and the question is whether the plaintiff is at fault for getting in the way.
On your “why do we still get judgement…?” question, you are going to have to expand and illustrate before I can attempt an answer. Give me a case with a good assumption of the risk defense that was flat rejected, that is, no amount of fault was attributed to the plaintiff under what the more cynical insurance adjusters call the dumb ass clause.
HH, the award amount sealed by the court could well have been an award of attorneys’ fees against the plaintiff, or an award of $0.00. Such things certainly do happen. The point is that we just don’t know, so it’s a bad example.
A successful suit defines merit, under a system that relies on precedent. To corrupt an old saw, the bravest attorney ever was the attorney who first brought a case over a bad oyster. Every other attorney who brought a bad oyster lawsuit was simply bringing a case that had merit before the court.
To continue the hideous analogy, the issues you are raising are:
-
How should we stop attorneys from bringing bad oyster cases where they know their client didn’t eat an oyster; and
-
Should eating a bad oyster be the basis of a successful lawsuit?
Reform that deals with issue #1 won’t address issue #2, and vice versa.
Sua
Lawyers be damned. Don’t argue with anyone when you don’t know what you are talking about. Asking questions is fine, but when you continue to advocate a position when it becomes apparent that you argue from a position of ignorance you are not going to win many arguments.
This thread started as an attack (or maybe a debate) about out of control jury verdicts in personal injury cases using the completely discredited hysterical accounts of the Hot Coffee case as an illustration. You want to argue about the reform of the law generally, fine. But first hand out a proposition for reform and while you are at it tell me every thing you know about riparian rights.
Look, friend, this would go a lot better is you would hold one ascertainable position instead of weaseling around whenever you talk your self into a corner. The shifting and ambiguous hypothetical question, of which you are the acknowledged master, is not getting us anyplace.
And while we are at it, Hey!, I Am Sparticus, are you going to join in this fight or are you just going to sit in the wood line at snipe at the stragglers?
Spavined Gelding I tried to get HH to give me some solid suggestions about a half dozen times, to no avail. I have given up, more or less. And where did the OPer go who started all of this?
must I now recap (again)?
My assertions/questions:
“Assumption of Risk” should out-weigh “Reasonably Foreseeable Risk”. When the both theories can be brought, AoR is to prevail.
Juries should be directed to follow the law, not redefine it (Cleveland)
Are juries qualified to decide technical issues?
Perhaps juries should not hear personal injury cases? Are they too likely to render an emotional decision instead of a rational one?
How are lawyers regulated to prevent the filing of frivilous and/or fraudulent actions?
Is such regulation adequate?
So far, the responses (the polite ones):
an explanation of RFR.
Statement of rules of AoR as specified in IA civil law.
Conclusion: none. Cases presented seem to favor RFR, but AoR is at least still available.
It is the responsibility of counsel to explain complex issues in a manner that the jury can be expected to understand.
Even so, there is general agreement that such things as “out of control juries” do exist.
Specific story of so-far-successful action against a perpetrator of a fraudulent suit.
**Spavined Gelding - **
Sorry kids, is Cleveland again…
I think Cleveland is a classic example of AoR - from selecting a taildragger (gasp you can’t see over the nose!), to placing a large, heavy, solid object (camera mount) directly in front of his face (as sold by Piper, the rear seat occupant did not need a shoulder belt - it was the addition of the mount that created the deathtrap)
and yes, I know what “proximate” means - I do belive that the jury in Cleveland must have somehow determined that plaintiff’s actions were NOT the proximate cause of his injuries.
When such a decision is reached, I’d say the jury found all KINDS of wiggle room SOMEWHERE.
(is that a good enough example? sorry, I do not have a transcript, so I cannot be certain that Piper raised AoR as a defense, but I’d guess they did).
As IANAL, all I know about riparian rights are that they deal with access to water - being a Californian, I should know more (Hetch Hetchy is becoming an issue).
How are riparian rights related to this descending-into-oblivion thread?
Sua -
OK, oysters…
What if the plaintiff knew that a ‘red tide’ was in when/where the oysters were caught (OK, I don’t know if a red tide affects oysters. work with my here), knew that the oysters were most certainly toxic, and ate them anyway?
This would be a classic - should the restaurant/fishmonger (a word i don’t get to use often) liable under RFR, or is the plaintiff responsible under AoR?
Was the answer to the above Q a forgone conclusion? Say, 15 state cases, 12 affirmed on appeal, 5 federal (all affirmed), 1 SCOTUS, and, just for the hell of it a Constitutional admendment?
If the ‘file under duh’ answer was AoR, is the attorney a noble crusader or a scumbag ambulence-chaser?
And anyone thinking I’m going to apologise for adding new Q’s/assertions to the mix - forget it.
Happyheathen, would you please give me a citation to this Cleveland case you keep blathering about. You may have done this already, but I have missed it. You seem to think that it is a shining example of something but I’ll be damned if I can figure out what.
I thought my suggestions re. use of juries/composition of juries/caps on atty fees fairly addressed your Q’s 
and Gelding - might I suggest lawyers refrain from mentioning sniping? Remember Henry VI?
from the first page of Google on “Cleveland v. Piper”:
http://www.netvista.net/~hpb/cases/piper-1.html
and
**Sua - **
re. my assertion that a case involving summary judgement being a waste of the court’s time:
If we assume that the only thing in play is what the other side will find out during discovery, are we not involved in gamemanship?
This is the “yeah, I know I’m wrong, but I’m betting that you won’t be able to PROVE I’m wrong” thinking.
If I bring an action HOPING the opposing side won’t find out that I’ve really been spending the money I’m accusing the defendant of stealing, am I not being a tad dishonest?
Should I not have my butt sued and be disbarred?
At the very least, isn’t it really a waste of the court’s time to oversee the process by which I am proved a fraud?
Why not have the lawyers just find out/admit the facts, and sue only if a settlement cannot be agreed upon?
(I know, I am being unreasonable - we will continue to play games with facts, hoping the other side is too incompetant to discover them)
hh, who has been sued even when he has indisputable proof that the plaintiff has no case. No, no cites - none of your business
how many default judgements are granted because the claim was not refuted?
(yes, this is a hijack to tort reform - sorry)