Today’s post will focus on the first 2 elements which, for the most part, comprise the most interesting and difficult issues that arise in connection with negligence claims:  duty and breach.

Negligence is commonly referred to as the “reasonable man” standard.  Stated differently, a driver involved in a car wreck would be considered negligent if taking some action that most average people would deem unreasonable under the circumstances.  Negligence can be predicated both on acts of commission (e.g. running a red light), as well as acts of omission (e.g. failing to pay appropriate attention to the road).

Basically, the rules of negligence boil down to requiring people to follow society’s basic “rules of the road” for reasonable conduct.  For the most part, it’s commonsense-type stuff.  The law of negligence is about reasonableness and balance.  It does recognize, for example, that some injuries are simply unforeseeable and/or sometimes unavoidable.

Stated in legal terms, a court will consider the issue of legal duty in terms of what is known as “reasonable foreseeability.”  This means that if your conduct would create a “reasonably foreseeable risk of injury” then you would naturally have an obligation to avoid the conduct, or to take reasonable precautions to protect innocent bystanders from the risk.  The rule is really nothing different than The Golden Rule that churches, mothers and fathers teach their children every day.

For example, will a driver be held liable if the brakes on his truck suddenly and without warning fail, and he winds up in a car accident?  Probably not, because the risk wasn’t necessarily foreseeable.   By comparison, though, if the brakes had been acting up previously, and the driver just ignored it and kept on driving the truck instead of taking it to the shop for repairs, then he probably would be deemed negligent in that situation.  Indeed, there was a known risk and he failed to take reasonable steps to protect others against a foreseeable risk of harm.

In other words, that driver would have breached his duty to those around him, and therefore he should rightfully be expected to make good on the injuries and damages unilaterally imposed on an innocent person.

This same analysis would apply to all sorts of things such as speeding, texting while driving, weaving too quickly in and out of traffic — i.e. things which impose an unreasonable and foreseeable risk of harm.

Note that the law of negligence is a far cry from the daily dose of nonsense you get from TV advertising, and from politicians.  Indeed, it is NOT the type of automatic, jackpot money grab that the ambulance-chasing TV lawyers seem to imply, and that the so-called tort reformers would likewise have you believe as part of selling their grossly exaggerated claim that “the sky is falling with lawsuits.”  To the contrary, the law does not provide for automatic liability whenever an injury occurs.  Likewise, it does NOT impose a duty to eliminate each and every one of life’s many risks.

The law of negligence is simply about the common sense “reasonable man” standard which is very much akin the Golden Rule — “Do unto others as you would have them do unto you.”

Stay tuned for more about the question of how the law determines the winner of a lawsuit when — as is often the case in real life situations — both parties are somewhat negligent.   This is referred to as the issue of comparative fault.  Stay tuned.

Some examples of negligence might include:

• Running a red light and causing a car wreck.
• A hurried doctor who fails to follow correct protocol and thus fails to diagnose a curable disease.
• A nurse who fails to check the medical chart and who then dispenses the wrong medication.
• A store owner who fails to mop up a known puddle on the floor.
• A pharmacist who dispenses the wrong dosage of medication.
• A contractor who fails to adhere to building plans or skirts building codes.
• A child care center that fails to conduct background checks before hiring employees to care for children unsupervised.
• A lawyer who fails to file his client’s lawsuit before the statute of limitations expires.

In a negligence case, a plaintiff is required to prove five elements:

1. that a duty of care was owed by the defendant;
2. that the defendant failed to live up to that duty (i.e. referred to as a “breach of duty”);
3. that an injury or loss occurred;
4. that the breach of duty actually caused the injury or loss; and,
5. proximate or legal cause.

More on these five elements tomorrow….

Lang Wiseman, a partner at Wiseman Bray PLLC, said there’s an even bigger worry than that.

“Politics can be a passionate topic that can lead to heated – if not disruptive – incidents and feelings,” he said. “In fact, political discussion can at times even become infused with notions of religion, race and sex that can create actual legal risks for the employers. That’s not to say that every perceived slight or discomfort in the workplace gives rise to a legal cause of action, but just to note that there is a careful balancing act that employers have to stay on top of.”

 Click here to read the article in its entirety.

There’s been lots of talk by pundits and prognosticators about how the seeming skepticism expressed by the Justices during oral argument means that the ObamaCare law will inevitably be struck down.  I disagree.  Not because I believe it will be upheld, but rather because I believe there’s no way to tell much of anything simply by listening to the questions asked by Judges during their hearing of an appeal.

Mind you, while some of the questioning in this particular case has been unusually illuminating, I’ve been involved in numerous appellate hearings, many of which occurred while I was “on the inside” as a law clerk working for Judge on the federal Sixth Circuit Court of Appeals.  And based on my experience, I can tell you that a Judge’s questioning is often just that:  questioning.  It doesn’t necessarily indicate an opinion one way or another.  Indeed, sometimes the toughest questions are not from a Judge trying to signal what side he/she is on, but rather from a Judge who is genuinely trying really hard to make up his/her mind, and perhaps playing devil’s advocate or trying to rule out any doubts they might have.

Moreover, in this case, the legal theories could make for some interesting combinations of opinions by the Justices.  Some of the most conservative members of the Court, for example, may be inclined to allow their preference for judicial restraint to trump their misgivings over possible constitutional issues withe ObamaCare.

The best prediction is to simply stay tuned.  The Court’s Term will be over in a few weeks, and the latest that their rulings are handed down for a particular Term are usually in June.  So, we’ll know pretty soon what the answer is.

One interesting quote in particular from the article:

Both before and after the arguments, I had revealing conversations with a liberal professor in the courtroom.  He agreed that the government’s chief problem is that it had not provided a limiting factor or boundary line in any of its previous arguments.  Thus, if the Supreme Court agrees that Congress has the power to compel the purchase of an insurance policy from a private company, it could compel the purchase of virtually anything considered good or prudent.  After the arguments ended, the professor agreed that Verrelli had been unable to come up with a concise and reasonable answer to that question, which was asked of him multiple times by different justices.

As for the most pressing substantive issue in the case — the Commerce Clause of the U.S. Constitution — there is a very good summary of the “evolution” of the Court’s interpretation of the Clause over the course of the past century over at The Atlantic.  Click here for the article.

But what about “old style” identity theft?  Indeed, sometimes despite your best efforts, there are occasions where your wallet, purse or briefcase is lost or stolen.

One way to protect yourself is to take a photo of the contents of your wallet or and store them in a password protected app on your smartphone — e.g. take a photo of the front and back sides of your credit cards, your license, and your health insurance card.  Indeed, in the unfortunate event your wallet is stolen, you will need to call your bank and credit card companies to cancel your cards, and it would be helpful to have their customer service numbers readily available along with your account information.  Having photos will also enable you simply to remember what cards are actually in your wallet, too.  (Not to mention, having the photos on your smartphone can be handy for those times when you forget your wallet and need your ID or health insurance card, for example.)

CAUTION: Store photos of your cards only if access to your phone is password protected, or if you use an phone app that is password protected [Ex: My Eyes Only (free) or Folder Lock for the iPhone].  The last thing you want is to have your phone stolen or lost — as if that isn’t bad enough — and to compound that problem by having your credit card info inadvertently available to the thief as well.

Either way, though — whether it involves online or “old style” identity theft — you should timely and carefully monitor your credit card and bank statements for unauthorized or fraudulent transactions.  Under the law, you are NOT responsible for fraudulent transactions if you timely discover and report them.

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

It’s a fascinating issue with all sorts of wide-ranging legal and historical implications, and it’s now set to finally be heard by the Court on Monday, March 26th.

An article in The New York Times offers a glimpse into the importance of the case — and to the legacy in particular of Chief Justice Roberts — noting that “[t]he six hours the court will devote to arguments is a testament to the case’s importance.  The last time the court heard longer arguments in a politically charged case was in 1966, over the Voting Rights Act, a crowning achievement of the civil rights movement. And the last time the Supreme Court ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.”

The case will have important political implications as well.  Indeed, considering the length of time it generally takes for the court to issue their written decisions following argument, the case opinion will likely be handed down just in time for the final stretch run of the upcoming presidential race.

Stay tuned for a short summary and primer on the precise legal issues involved.

In the meantime, click here for an interesting newspaper article about Paul Clement, the lawyer for the parties challenging Obamacare.  He is a former law school classmate of President Obama, and a former Justice Department official in charge of appearing before the Supreme Court to defend similar laws passed by Congress.

Some of the more noteworthy Stella Award winners include:

• The woman who won $1.7 million from Winnebago after putting her RV on cruise control at 70 mph, and then getting up to go make herself a sandwich in the back. She claimed that Winnebago should have warned her that she couldn’t leave the driver’s seat after putting the cruise control on.
• A 19 year old in Los Angeles won $74,000 in medical expenses when his neighbor ran over his hand with a Honda Accord while the teenager was trying to steal a hubcap.
• A woman who was awarded $80,000 after breaking her ankle tripping over a toddler who was running inside a furniture store, even though the toddler was her own son.

These examples are humorous, and indeed, the list goes on and on with other silly examples. The only problem is that ALL OF THESE LAWSUITS ARE ENTIRELY FALSE! Click here and here where these silly myths and urban legends have been debunked.

Even the underlying McDonald’s hot coffee case itself has reached unwarranted levels of urban myth-ism.  If you want the REAL story behind the case, click here for more info on why the final verdict in that case was actually quite reasonable under the circumstances.

Why do I bring up these awards? Because you wouldn’t believe the number of people I talk to who bring up these “cases” as examples of what’s wrong with our legal system.

The problem is that these wild misconceptions foster the type of false notion perpetuated by insurance companies and politicians who claim that there’s no rhyme or reason to our judicial system — which, of course, is the sort of “problem” that they just happen to have a government solution for.  How convenient.

Well, take it from a lawyer who’s in the trenches everyday: despite what you may hear — the concept of jackpot justice is exceedingly rare.  Are there occasionally exceptions and outlier verdicts? Absolutely. Just like there are times when clearly negligent defendants get away with maiming people.  But both situations are exceptions and hardly the norm.

Is the system expensive and in need of tweaking here and there?  Sure.  Just like everything else in life, it can be improved.

But good policy decisions aren’t made by throwing out the baby with the bathwater — and cutting off people’s legal rights in the meantime — based on urban myths perpetuated as fact.  That makes absolutely no sense at all.

So, don’t believe the hype.  Do your own homework before you fall hook, line and sinker for a story that sounds too crazy to be true.  Because most times, it isn’t.

You’ve no doubt heard all the talk before.  The case has become the poster child for so-called frivolous lawsuits and politicians screaming for silly tort reform.  The verdict supposedly represents everything that’s wrong with America and the legal system.

Of course, there’s only one problem: the legend has outgrown the truth.

As Paul Harvey used to say: “And now, here’s the rest of the story.”

• The plaintiff was Ms. Stella Liebeck.  She was a grandmother who attempted multiple times to settle her case with McDonald’s.  They refused.
• She wasn’t driving down the street when she got burned.  She was a passenger in a stopped vehicle.  They had ordered coffee at the drive-thru window.  After receiving the order, her grandson pulled his car forward and stopped momentarily so that she could add cream and sugar. The coffee spilled when she was attempting to remove that hard plastic lid from the little cheap styrofoam cup.
• The coffee wasn’t just hot — it was scalding.  Indeed, it was discovered during the case that McDonald’s actively enforced a requirement that its restaurants keep coffee at 180-190 degrees Fahrenheit — only a few degrees away from the boiling point! By comparison, home coffee makers generally maintain coffee at 135-140 degrees.
• Notwithstanding, a McDonald’s’ quality assurance manager testified that the company enforced the 185 degree requirement even thought they knew a burn hazard existed with any food substance greater than 140 degrees, and that it was not fit for human consumption because it would burn the mouth and throat, and cause full thickness burn injuries to the skin in only 2-7 seconds.
• In fact, McDonald’s produced documents showing that there were more than 700 other claims by other people similarly burned by its coffee over a 10- year-period. McDonald’s quite clearly knew the risk involved and simply chose to ignore it.
• Ms. Liebeck’s injuries were legitimate.  In fact, they were horrendous.  Her vascular surgeon determined that she suffered full thickness burns (3rd degree burns) over 6 percent of her body — including her inner thighs, perineum, buttocks, and genital and groin areas. (See the photo below if you have a strong enough stomach.)
• She was hospitalized for 8 days, during which time she underwent skin grafts in her genital area.
• Despite these grotesque injuries, Ms. Liebeck merely asked McDonald’s to pay for the cost of her medical treatment, and offered to settle the case for only $20,000. They refused.
• At the end of the day, this wasn’t a runaway jury.  Indeed, Ms. Liebeck was only awarded $200,000 in compensatory damages. And even this amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault for the spill, and thus they made a corresponding 20% reduction to the damages.
• Based on the evidence of past claims and McDonald’s conscious decision to ignore a substantial risk, the jury also awarded $2.7 million in punitive damages.  The idea behind punitive damages is to make sure the defendant is properly motivated to change its conduct by taking into account the fact that there were other instances of egregious damages for which they might have escaped appropriate responsibility. And even then, the $2.7 million punitive verdict only equaled about 2 days of coffee sales at McDonald’s.  2 whole days.
• And the court reduced even that amount to only $480,000.

So take a look at the photo and ask yourself whether you’d willingly trade those injuries and skin grafts to genitalia for a mere $600,000.

No way.  Not me.  No thanks.

Doesn’t sound so “frivolous” anymore, does it?