July 22, 2010

The Legal Consequences Of Getting Fixed

I was commuting to work on the Chester Creek bike trail last week when a guy on a sharp looking red bike passed going the other way. Now passing other cyclists is nothing out of the ordinary. But this guy was riding a fixed gear bike, just as I was. We recognized our common bond at the last possible moment, exchanging sidelong glances.

Fixies are all over the West Coast and the urban fixed gear trend is nothing new. Yet in Anchorage -- out here on the far reaches of the Empire beyond even the Dagobah System -- you just don’t see that many fixies. I’d guess that maybe you could find a few dozen or so if you scoured through all the alleys of Spenard and looked behind the dumpsters in the U-Med District. (I’m not including the singlespeed jobs that aren’t fixed.)

JerryJuday-3.jpgYes, I know fixed gear bikes involve a learning curve for handling the inertia challenge. You have to actually think while riding a fixed gear, planning ahead for the next intersection or hill or obstacle. You have to remember there ain’t no coasting on a fixie and stopping one that is up to speed requires at least a modicum of skill. Most of the uninitiated, I suppose, view fixies as dangerous and utterly lacking in social utility, like the lawn darts of the cycling world.

So I got to wondering: How would the law treat a fixed gear cyclist? What will happen in the legal arena when one of our brave little band of Anchorage fixie riders gets wrapped around the hood ornament of some knucklehead who is turning right on red while looking left and talking on a cell phone?

There is not much precedent out there addressing the legal aspects of fixed gear riding. I searched WestlawNext for “fixie” and “fixed gear bike.” I came up with no court cases at all using those words in the cycling sense. I found one report of an arbitration case in Portland, Oregon that involved a fixed gear cyclist who was struck by a car turning left. The cyclist lost the arbitration since he was riding at dusk without a light. He also made some damaging admissions about the accident on his blog and in a Craigslist posting. (A good illustration of the Internet as litigation tool.) The arbitration report nevertheless gratuitously noted that the plaintiff was operating a bicycle “with no coaster brake or hand operated brake.”

I figure our injured Anchorage hero is going to end up in the realm of ordinary negligence cases with allocation of fault rules being applied. I suppose the over-caffeinated insurance defense lawyer for the knucklehead driver could try to argue assumption of the risk -- that riding fixed is so depraved as to be a deemed to be the equivalent of voluntary consent to getting run over. But Alaska long ago rejected the tort principles behind implied assumption of the risk, along with all the other fine distinctions tied into the old common law doctrine of contributory negligence. (Last call for last clear chance!) And, Alaska’s more recent embrace of pure several liability and allocation of fault should eliminate whatever vestiges of non-contractual assumption of risk might remain.

More promising from a defense standpoint would be negligence per se. Negligence per se is based on a violation of a standard of conduct established by statute. Under negligence per se, the person who violates the statute is presumed to have acted negligently. So if the cynical, hard-bitten defense lawyer in our case can find some statute that the injured fixie aficionado violated, then the lawyer might be able to get the Honorable Judge Learned Blackbottom to tell the jury: “You must find the plaintiff was negligent and allocate some percentage of fault to him if you find his negligence caused his injuries.”

And there is at least one piece of legislation that could apply. Section 9.38.100(B) of the Anchorage Municipal Code says:

Every bicycle shall be equipped with a brake which will enable its driver to stop the bicycle within 20 feet from a speed of ten mph on dry, level, clean pavement.
(Contrast this with the more enlightened provision of the D.C. Municipal Regulations that carves out a specific exception for fixed gear bicycles. In D.C., fixies are not required to have a brake so long as the operator "shall be able to stop the bicycle using the pedals.")

So, if our injured hero is a purist and rides fixed without any brakes, then the defense might have a shot at a negligence per se instruction. Even so, the exact meaning of “brake” in the ordinance can be debated, as I believe it has been debated in some traffic courts Outside. And of course, negligence per se does not mean our damaged hero is thrown out of court entirely and can recover nothing from the knucklehead behind the wheel. It just means our hero’s recovery is going to be reduced by the percentage of fault the jury must allocate to him for riding without a brake. (If I’m the poor fellow who gets run over, though, negligence per se won’t apply; my fixie has an actual front brake.)

One more thing the dastardly defense attorney may argue is that riding fixed is negligence as a matter of law. This is like negligence per se, except there is no statute defining it. In a very small number of cases not involving statutory violations, the Alaska Supreme Court has ruled negligence is just so darn obvious the trial judge must direct a verdict of negligence. These cases have all involved either rear-end collisions or Kim Farnsworth’s seatbelt. According the court, the trailing driver involved in a rear end collision is negligent as a matter of law and the judge has to instruct the jury to so find. In Ms. Farnsworth's case, the court said the jury had to allocate fault to the driver who collided with the vehicle she was riding in, even though she claimed she would have escaped injury with a proper functioning seatbelt.

Since our hypothetical fixie accident doesn’t involve either a rear-end collision or Ms. Farnsworth’s seatbelt, I don’t think negligence as a matter of law should apply. In fact, I'd refudiate it if I was the judge. But I suppose it’s still open to the ever aggressive defense lawyer to argue for a new entrant in this category -- that riding a fixed gear bike is just so far out on the fringes of an ordered society that the law ought to automatically make the rider negligent just for doing so. I don’t see that working even with old Judge Blackbottom, but I concede some more far-fetched legal arguments have succeeded.

My research on WestlawNext also turned up a motion in limine that a plaintiff's lawyer in California filed in a fixie case. This motion asked the judge to keep out any mention of the fact that the plaintiff was riding a fixed gear bike at the time of the accident. The theory was that the kind of bike had nothing to do with the accident and was irrelevant. Although I could not discern all the details of this particular case from the summary of the motion I read, I'm skeptical of the motion's chances for success. One ordinarily expects that all the aspects of a particular accident will come in when comparative fault is at issue. Unless the cyclist was just innocently stopped at the street corner when he was run over, standing next to a priest, a widow and a couple of Girl Scouts selling cookies, all waiting for the light to change, then I'd expect old Judge Blackbottom to give this a quick: "Motion 'nied counsel, move on."

In the end, I think that our hero will be able to get to the jury on his claim against the knucklehead driver. The jury will have to retire to the back room to allocate fault amongst the participants in the accident. But I’m not sure that I should take all that much comfort from this likely outcome. I mean, I would like to think our brave hero would be found blameless, but you just have to wonder what an Anchorage jury would do with the case. Are twelve ordinary Anchorage citizens going to relate more to the driver with the cell phone or to the dazzling urbanite roaming the streets on a fixed gear bike?

(By the way, I’ve been thinking about naming my fixie “Mrs. Palsgraf,” but then you were probably able to foresee that.)

June 25, 2010

Evidence Rules Cramping Up Common Sense

Smarter fellows than I have observed that the rules of evidence are a systematic effort to keep the truth from seeping into the courtroom. As one of the authors of the Notable British Trials series observed way back in 1933, the “law of evidence has been built up by generations of judges distrustful of the capacity of juries.” The evidence rules are the law’s way of saying that the trial judge is the only one in the courtroom with a lick of common sense.

Obviously this thesis overstates things a smidge. But I fear that the Alaska Supreme Court’s recent decision in Mueller v. Buscemi demonstrates that there is actually something to this view. (And, yes, I admit that I only read the opinion because I thought it might involve wacky Steve Buscemi or the Coen Brothers. Sadly, it does not and the entertainment value of the decision is vastly reduced.)

The Mueller case involved a simple slip and fall in a parking lot outside a commercial building. (Warning: Gravity In The Area!) The plaintiff rolled snake eyes in front of the jury on her claim against the building owner. The plaintiff blamed the adverse outcome on the trial judge not allowing in evidence of other accidents. Specifically, the trial court kept the plaintiff from giving the jury evidence that a pregnant woman fell in front of the building two weeks before the plaintiff’s accident; that on the same day as the plaintiff’s accident another woman complained about falling in front of the building; and that on the same day as the plaintiff’s accident, a guy fell and hurt his knee in front of the building.

Citing the established evidence rule, the Supreme Court said that the plaintiff was entitled to bring this evidence in only if she showed the other falls occurred “under substantially similar circumstances.” This she failed to do, according to the court, because the plaintiff fell in the back parking lot and the other falls happened in the front of the building. As such, the other falls “are not necessarily probative of the conditions that existed in the building’s rear parking lot.”

Hmmmm . . . It seems fairly obvious from the opinion that the presentation of plaintiff’s case was lacking. In other words, the plaintiff may have deservedly lost at trial.

Yet, in the rush to confirm the outcome, the Supreme Court gave an exceedingly tight interpretation to the evidence rules. I mean, you have to wonder about the science underlying the Supreme Court’s microclimatic application of the law of evidence. We’ve got people falling like ten pins outside this building. But the jury is not entitled to know about this because perhaps it might have snowed more in the front of this building than the back?

How close do the other accidents have to be to the exact spot where the plaintiff took a tumble to meet the requirements of the evidence rules? Ten yards? Ten feet? Ten inches? It just seems like the court is using the blunt edge of the evidence rules to cut things too finely.

Also, as we know from our prior discussion of slip and fall cases, negligence requires proof of more than just something bad happening. You have to show that the defendant had time to find out about a dangerous condition and correct it. Wouldn’t multiple prior gravitational adventures in the front of the building be pertinent to the question of the owner’s notice of dangerous conditions surrounding the building? If the owner had heeded the prior incidents, a sanding crew could have been called in to check all of the exterior areas. The evidence should have come in for the jury to decide how much bearing it had on the case.

One hopes that the next time evidence of “similar accidents” comes into play, the Mueller court’s cramped interpretation of the evidence rules won’t be followed too closely. The Alaska courts ought to trust in the common sense of jurors to be able to, among other things, understand the difference between the front and back of a building.

February 23, 2010

The Alaska Supeme Court Rules That Personal Injury Claims Are Not Assignable

In a recent decision, Mat-Su Regional Medical Center, LLC v. Burkhead, the Alaska Supreme Court held that a patient could not assign their personal injury claim for recovery of her medical expenses to her health-care provider.

In Burkhead, a patient received medical services at a hospital after an automobile accident. During her treatment, she signed two “Consent: Authorization, Assignment, and Acknowledgment” forms in which she ostensibly assigned to the hospital “all rights to or claims for payment against third parties” for the reasonable value of medical services rendered. The hospital subsequently attempted to intervene in the patient’s personal injury lawsuit and filed its own suit against the tortfeasor. In both cases, the hospital sought to recover the expenses it incurred in treating the patient from the tortfeasor directly and pursuant to the patient’s purported assignment.

The Alaska Supreme Court held that the patient’s purported assignment of her personal injury claim to the hospital was not valid. The court explained that

the assignment of personal injury claims is socially problematic given the potential for overreaching when injured assignees bargain away some or all of their rights under the equivalent of at least economic, if not physical or mental, duress. Any benefits potentially derived by expanding the remedies available to mandatory providers of emergency services would seem to be outweighed by the risk that the routine collection of such assignments from emergency room patients would increase the potential for duress and decrease the likelihood of a fully informed assignment.

Id. at 5. As such, and because health-care providers had the ability under Alaska law to file a lien against any recovery by the patient from the tortfeasor, the court refused to recognize the assignment of the patient’s personal injury claim to the hospital:

Given that our legislature has provided an effective, albeit limited, lien remedy, the social ramifications of allowing such assignments, and health care providers' continued ability to collect from their own patients as creditors, we think it should be for the legislature to decide whether to recognize assignments of patients' personal injury claims.
Id. at 6.

The Alaska Supreme Court’s decision may have unintended consequences for the subrogation rights of insurers and health-care providers in Alaska. Litigants may attempt to rely on Burkhead to argue that unless a statute expressly assigns all or part of a personal injury claim to the insurer, employer or other entity, any contractual assignment of that right will not be valid.

The Burkhead ruling may also have an impact in legal malpractice cases. The Alaska Supreme Court has not squarely held that a legal malpractice claim may be assigned. It, however, did not disapprove of the practice in Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 286 (Alaska 1980) and Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 758 (Alaska 1992) superseded by statute on a different issue as stated in Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

In holding that a patient could not assign her personal injury claim to a health-care provider, the Burkhead court, however, noted that it has “long recognized a ‘general rule of non-assignability of claims for personal injury’ under Alaska law” and that [t]he majority of jurisdictions around the country have similarly declined to recognize the validity of assignments of tort claims for personal injury….” The court’s general disapproval of assignment of personal injury claims could support the argument that the assignment of a legal malpractice claims is not valid, given that a legal malpractice claim is a type of personal injury claim.

January 21, 2009

Head Scratching Over Dram Shop Liability

Sometimes you just have to scratch your head. What the heck are these guys thinking? I always figure that the kids at least deserve the benefit of the doubt under the law, no matter how immature they act. After all, they are immature. Financially strong outfits like liquor stores and those who stand behind them don’t really need that same advantage.

In Sowinski v. Walker, the Alaska Supreme Court picked the liquor store over the children. The decision came out on New Year’s Eve, one of the biggest days of the year for selling and consuming booze. But why in the Court ruled the way it did has me stumped.

itch.jpgThe facts of Sowinski are sad but not surprising. Back in June of 1996, two 17 year old boys from Palmer, Alaska bought some booze from the DelRois Liquor Store. The liquor store, of course, was not supposed to sell alcohol to minors. Once it did so, the boys did something predictably boneheaded. They partied into the wee hours (it was just past the summer solstice) and then jumped on an ATV, taking a girl along for the ride. They roared off down an access road alongside the Knik River. The ATV ran into a cable that a nearby property owner had strung up to try to keep trespassers out. You can imagine what happened when three kids on a speeding ATV got clotheslined by a steel cable across the road. The two boys were killed and the girl was severely injured.

The families of the two boys sued a bunch of people, including the owners of the DelRois Liquor Store. The liquor store’s dram shop liability was clear under established Alaska law. According to the Alaska Supreme Court decision in Loeb v. Rasmussen, the liquor store could not reduce its own liability by the comparative fault of the underage drinkers. The three justice majority in Loeb followed a long, long line of cases saying that when a statute is meant to protect a particular group of people (here, minors), you can’t hold those people accountable for complicity in the violation of the law. The fault rests with the violator, which in Loeb was the liquor store that unlawfully sold the booze to begin with.

In spite of the Loeb case and the sound reasoning behind it that stretches back probably a couple of centuries, a three justice majority in Sowinski said that this rule no longer applied. The Sowinski majority concluded that Alaska’s subsequent embrace of pure several liability in the tort reform legislation meant the liquor store, which was legally obligated to know better, could shove off some of the liability onto the stupid kids. The fact that the liquor store was supposed to protect the children from their own stupidity cut no ice at all with the majority.

Chief Justice Fabe's dissenting opinion showed that the case did not have to come out this way. As the Chief Justice said, the majority entirely failed to address whether “more good than harm would result” from their decision doing away with Loeb. The public policy against underage drinking is an exceptionally strong one. Indeed, the public policy of protecting children in general runs up and down the length and breadth of Alaska law. A huge portion of the resources of this State are all devoted to trying to protect and promote the health and safety of Alaska’s children. At the same time, Alaska law closely regulates the franchisees to whom the State of Alaska itself has given the extraordinary privilege of selling alcohol. Transgressions that would not have much of an adverse effect on an ordinary business are enough to get a grog shop’s ticket pulled. So it seems doubtful that the public good is best served by letting a liquor seller point the finger at the kids when the liquor seller violates its legal obligations?

I have hunted through the tort reform statute. I found nothing that says pure several liability trumps all other public policy considerations. In fact, there is a sentence in the statutory definition of “fault” (AS 09.17.900) that says: “Legal requirements of casual relation apply both to fault as the basis for liability and to contributory fault.” Well, as recognized in Loeb, the established law was that a child’s purchase and consumption of alcohol did not meet the “legal requirements of casual relation” for purposes of “contributory fault.” Instead, the “casual relation” was all attributed to the liquor store that illegally sold the demon rum at the get-go.

So it's not hard to find room in tort reform statute to continue to protect Alaska’s kids over the liquor industry. And basic public policy must require the same. All of which leaves me scratching my head over Sowinski.

November 21, 2008

Ghost Bike In Anchorage

I saw my first ghost bike in Anchorage this morning. It was a somber shock for a Friday morning commute.

The ghost was leaning against a sign, in the median strip of C Street, at the intersection with 40th. It was a true apparition. The headlights from the passing traffic swept across it in the morning dark. The stark white bicycle gleamed back at the motorists, standing as a silent witness to the transgression of one of them.

Picture%20003.jpgI’m not sure how many folks in Anchorage know what a ghost bike is. A ghost bike appears at the location where a bicyclist has been killed or seriously injured. According to ghostbikes.org, ghost bikes first began to be seen in St. Louis in 2003. They are memorials to a life that has been lost or damaged, and they are protests against the sometimes terrible dominance of the internal combustion engine. Their numbers have been increasing across the country and now the world. But I’ve never seen one in Alaska. That is, not until today.

This particular ghost has appeared for a young man who is no longer riding his bicycle among us. On the morning of October 20, 2008, 19-year-old Jonathan Johnson was riding across C Street at 40th when an SUV struck him. He was seriously injured in the accident and died from his injuries a few days later.

I did not know Jonathan Johnson. But during my drive to work on October 20, I saw the accident scene. The police and paramedics were still in the intersection when I drove by that day. The flashing lights of the emergency vehicles raked through the dark. Traffic was completely stopped in the southbound lane of C Street; it was crawling in the northbound lane.

I did not know Jonathan Johnson. So I cannot tell you what the aftermath of his accident and death will be. There may be legal issues to sort out, such as liability questions, insurance issues, etc. I'm not sure. The Anchorage Daily News reported that the police did not cite the driver of the SUV in the accident.

I did not know Jonathan Johnson. But I ride the same bike routes he did. When I can squeeze a bike commute in, I ride the bike trail along C Street to my office downtown, summer and winter alike. For all I know, I could have passed Jonathan Johnson going the other way on the bike trail one day as I was making my way to work. I have a connection to Jonathan Johnson because I know that what happened to him could also happen to any other bike commuter, myself included.

I did not know Jonathan Johnson. But I know what it is like to ride bikes in Anchorage. There was a recent article in the paper about Anchorage being called a “bike friendly” city. The author of the article did not agree with that characterization, saying Anchorage was a "city with no shortage of dangerous places to ride." I also think that calling Anchorage a “bike friendly” city is a dubious description, although I can say that it is a whole lot friendlier to bikes than it used to be.

I did not know Jonathan Johnson. But I drive the streets of Anchorage the same as the young woman who ran her SUV into him. I know the challenge of coming upon a bicyclist in the dark when you are not keeping an eye out for one. After Jonathan’s accident, the Bicycle Commuters of Anchorage posted a notice on their website reminding cyclists to use lights and reflectors for winter rides.

I did not know Jonathan Johnson. But I feel sympathy for his family. A life cut short at 19 years of age is a thing impossible to ever fully accept.

I did not know Jonathan Johnson. But I am a fellow citizen and cyclist of Anchorage. I can feel his passing, and I am sad there is one less cyclist in my city.

I did not know Jonathan Johnson. But I know the ghost that stands for him now.

September 3, 2008

Miss Cleo's Apprentice

I hate to be one of those guys who says “I told you so!” So as I read the latest opinions from the Alaska Supreme Court, I started sweating. Then my mouth hung open. Just before my jaw hit the desk, I exclaimed: “Holy white socks ‘neath black robes, Batman! I was right!”

You see, I recently wrote about the Alaska Supreme Court’s decision in Edenshaw v. Safeway, Inc. I boldly predicted Edenshaw would be distinguished away into near oblivion. Well, the distinguishing away has slyly begun. The Alaska Supreme Court just ruled this past Friday that no jury question is presented in a premises liability case unless there is at least some minimally adequate proof of negligence. This undercuts the broad language of Edenshaw, which said exactly the opposite.

The case just decided is Burnett v. Covell. Mr. Burnett reportedly weighed about 330 pounds. He visited Ken Covell's office to attend a meeting. Ken Covell is a Fairbanks lawyer. (I met Ken hiking the Chilkoot Trail this summer.) Mr. Burnett had visited Ken’s office previously without problem. But on this occasion the chair Mr. Burnett attempted to sit in collapsed underneath him. Mr. Burnett sued Ken for his injuries. (Egad, a lawyer being sued!?)

One of Mr. Burnett’s theories was negligence. Ken defended himself by saying that he had no knowledge there was anything wrong with the furniture in his office. Mr. Burnett’s attorney conceded that this was undoubtedly true. Nonetheless, the Alaska Supreme Court said it did not matter. Prior notice or knowledge of the defective condition of the premises was not required, according to the Court. This statement at least was consistent with Edenshaw.

The Court went on to say, however, that the plaintiff had to provide some sort of specific evidence to raise a jury question as to negligence. “In the absence of such concrete evidence,” the Court stated, “Burnett’s unsupported assertions” about what Ken might have done differently to ensure the safe condition of his furniture were not enough to present a jury question. The Court reached this conclusion even though in Edenshaw it said in nearly the same situation that the matter should be given to the jury. The exact language of Edenshaw was: “we continue to trust that factfinders can best ascertain whether the proprietor of a grocery store acted reasonably in maintaining the store’s premises considering all of the circumstances.”

The Court in Burnett made only one reference to Edenshaw. That came in a footnote at the end. The footnote explained nothing about how the decision in Burnett could be squared with Edenshaw. The fact that Justice Carpeneti authored both opinions a little over one month apart would make one think he had Edenshaw in mind when Burnett was decided. Still, no attempt at reconciling the two was made.

In light of Burnett, I think the conclusion is inescapable that the plain words of Edenshaw cannot be taken at face value. Whatever the opinion in Edenshaw actually says, the only logical way to read Edenshaw after Burnett is exactly what I wrote back in July:

The Court's Edenshaw decision only makes sense if you assume they really meant to say advance notice of a dangerous condition is not the only way to prove negligence; a myriad of other ways are permitted. Nevertheless, some sort of minimally adequate proof of negligence still has to be provided to get to the jury (reasonable minds differing and all that). The trial judge can be asked to verify this through a summary judgment or directed verdict motion. I have to admit, though, that the Edenshaw opinion does not come close to expressly stating this. But in my view this is what the opinion should have said.

The Court in Burnett sidestepped the broad language of Edenshaw and did exactly what I said it should do. So, there! I told you so!

(I might have to join up with Miss Cleo and start charging you people for predicting the future. “Get a free reading of the legal future for only 99¢ per minute! For your free reading, have your credit card ready and call 1-900-PSYCLAW now! Legal psychics are standing by!”)

rear.jpg

August 20, 2008

Defaming The Olympians

Like most everyone else, the lawyers here at Atkinson, Conway & Gagnon have been watching the Olympics. For some reason, the games have made me think of defamation law. All of those finely honed athletes are doing astonishing things for the glory of sport. But there is an awful lot of criticism that seems to go with the territory.

Take Uberswimmer Michael Phelps for instance. The unkind bloggers out there are zinging the big lug for his supposed lack of fashion sense. They ask (and affirmatively answer) the question: “Is Michael Phelps a douche?"

So what sort of a comment is defamatory anyway? The Restatement of Torts says that a communication is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (Say what?) I think that in the English language this means a statement is defamatory if it exposes the person to hatred, ridicule or contempt in the community. If the statement is written down its called libel. When its stated orally, its just slander. (If its written down and stated orally, then I guess you can call it whatever you want. Like maybe libelous slanderific bladderdash or perhaps slanderous libelicious poopycock.)

The law on defamation is a patchwork construct. The rules that apply are Byzantine and bizarre. Consider this: who gets the first cut on saying whether calling Michael Phelps a douche exposes him to hatred, ridicule or contempt in the community? Do we take a poll of community members to figure out if they think less of Phelps because of the comment? No, we do not. Instead, the law entrusts this critical decision to the one person who is probably least qualified to make it. This is a person who is by necessity out of touch with the rest of society, isolated in an ethical tower of solitude. And its a person extremely unlikely to know what passes for fashion amongst the i-generation. That’s right, the trial court judge is the one who makes the frontline decision.

(You might be inclined to ask: Did this joker just defame the trial court judges? Rest assured that I did not. You see, I can poke fun at the trial court judges as a group all that I want and I will not face any liability for defamation. To be defamatory, a comment about a group has to be reasonably understood as being directed a particular member of a group. And when it comes to each one of the particular members of the trial court bench, my view is that each is an intelligent, hard-working public servant who gets nowhere near enough appreciation or reward for the vital work he or she is doing.)

Bringing a defamation lawsuit is almost never a good idea. (Just ask Oscar Wilde or General William Westmoreland.) Defamation claims are subject to a number of unique defenses and the damages that can be proven are usually very limited. It used to be that the law allowed damages to be presumed, but this only occurred when it was a slander per se, or in some states, a libel per se but not a libel per quod. (To make matters worse, a libel per se was strangely something different than a slander per se put into writing. ) The U.S. Supreme Court got involved, though, and stirred up the pot by saying presumed damages are generally not permitted. See what I mean, defamation is a jury-rigged mess.

And, you have to determine whether the person supposedly defamed is a public figure or not. Because of a little technicality, which is commonly known as the First Amendment to the Constitution, public figures have to have thicker skins than the rest of us. So I’m on safe ground when I say: “George W. Bush did not fill out his beach volleyball bikini very well at the Olympics.”

And, thank heavens, satire and opinion are not defamatory. This means the folks at The Spoof! can get away with using the headline: "Chinese Olympic Gymnasts Really Third Trimester Fetuses, Claims IOC". And the guys at The Onion can say that the Chinese have been doctoring public perception during the Olympics by having "cotton balls glued into sickly pandas' bald spots." (Hey, actual humor is not the test. Whether or not you think its funny, its still not defamatory.)

So is it defamatory to call Michael Phelps a douche? Well, he’s a public figure for sure now. And, no one is really going to believe that he is a hygienic rubber bag in the literal sense. So the statement is really one of opinion when you examine it. Given those considerations, I don’t think Michael has a good defamation claim. At least, I wouldn’t bother bringing it on his behalf.

Besides, truth is an absolute defense in defamation cases. Which is why I can say with impunity that: “In my opinion, gymnast Shawn Johnson resembles Gadget, the brainy cartoon mouse from Rescue Rangers.”

Shawn2.jpg gadget39.jpg

August 11, 2008

A Modest Proposal

People complain about the snail’s pace of civil litigation. It takes a minimum of a year for almost any case to get to trial. Bigger and more complex cases take even longer.

If you ask around, you find that many civil litigation lawyers blame the delay on all the family law cases. The trial courts are clogged with divorce, child custody, division of marital property, domestic violence, and child in need of aid proceedings. The judges spend so much time refereeing for all these angry people who for one reason or another can’t run their own lives that they have no time to deal with the “regular” civil lawsuits. (You know, the really important “regular” civil cases, like the ones involving a slip and fall in a grocery store, or a State of Alaska employee who is unfairly disciplined for being an impossible jerk who won’t do any real work.)

It used to be that the Anchorage Superior Court had one particular judge assigned to handle the family law cases. But that practice was never actually authorized by statute so it was abandoned a while back. Now, all the Superior Court judges on the civil side get a slice of the family law cases, whether they want them or not. The civil judges have to juggle all these prickly family law disputes where emotions run high with their “regular” caseload where usually only something unimportant like millions of dollars are at stake.

Some have suggested that Alaska set up its own family law court to handle these cases, as other states have done. But I’ve got another idea. (Notice, I did not say a better idea.) I think the State ought to set up a Judge Judy type program on cable TV. The State could hire some shrill or half-insane retired judge to act as the star of the show. (A few candidates come to mind.) And give the family law litigants the option of volunteering to submit their dispute to a TV judge rather than a real one. No doubt this will clear out a bunch of cases because I bet any number of star-struck dillweeds would jump at the chance to be on TV.

Of course, you would need a savvy TV production person to screen the cases. You would want to televise only the really juicy ones. Like ones involving infidelity, custody disputes over pets, or the misuse of duct tape. (“I tell you, your honor, since he didn’t pay child support, I had to restrain the kids and feed them bowls of paint chips for dinner!”) With good case screening, the State would have a hit TV show on its hands. It could even make some money from all the advertisers wanting to sponsor the show. (“The Alaska Justice Show, brought to you by your friends at VECO Corporation.”)

I have to admit that I question whether the family law TV show would really speed up the pace of “regular” civil litigation much. The civil litigation process, with all that discovery and whatnot, just takes awhile. Besides, you need to give the hard-working lawyers in those cases enough time to earn their fees. But at least the Alaska Justice Show will keep us entertained while waiting for our "regular" civil cases to come up on the docket.

July 10, 2008

The Shocking Loss Of A Gritty Banana Peel

Chris Slottee, my esteemed colleague here at Atkinson, Conway & Gagnon, has already reported on the Alaska Supreme Court’s recent decision in Edenshaw v. Safeway, Inc. Chris’ blog post calmly notes that the decision may impose greater liability on property owners than was previously the case. I think that Chris has vastly understated the significance of the decision. This new decision totally knocks out one of the bulwarks of established tort law. I mean, what the heck happened to the Gritty Banana Peel Doctrine?

When I was in law school (back in the far, far recesses of the last century), they taught us fledgling lawyers that negligence was not the equivalent of strict liability. To be negligent and liable for someone’s injuries, you had to do something wrong. More specifically, you had fail to act in the manner that a reasonable person would have acted. Negligence law, good old Professor Dente said, accounted for the fact that BAD STUFF HAPPENS. Sometimes, its nobody’s fault and the plaintiff just has to take it in the shorts. (I'm paraphrasing the professor's comments here.)

falling_man.jpgThis principle of negligence law meant that just because a guy injures himself by falling down in a grocery store does not mean the store owner is liable. If the guy slipped on a banana peel, the store owner is not responsible unless the owner should have cleaned the thing up. So if the banana peel is a fresh one that was not previously tromped upon, it indicates the damn thing just fell on the floor and the store owner can’t be expected to have known about it or to have picked it up. But if the banana peel is all nasty from being on the floor for awhile this demonstrates a reasonable property owner had time to discover the peel and pick it up. This is the Gritty Banana Peel Doctrine.

You probably think I’m making this up. I'm not. In my first-year casebook on Torts from 1977, there were two cases on banana peels. In Anjou v. Boston Elevated Ry. Co., 94 N.E. 386 (Mass. 1911) the plaintiff won because she provided proof of negligence. The banana peel she slipped on “felt dry, gritty, as if there were dirt upon it,” and it was “black, flattened out and gritty.” But in Joye v. Great Atlantic and Pacific Tea Co., 405 F.2d 464 (4th Cir. 1968) the plaintiff lost because there was no proof of negligence. “Plaintiff offered no direct evidence below as to how long the banana had been on the floor before the accident . . . the jury could not tell whether the banana had been on defendant’s floor for 30 seconds or 3 days.” (My Torts book also had a case about pizza on the floor, but to avoid confusing myself or anyone else I want to stick to one kind of food.)

The Alaska Supreme Court in Edenshaw threw the Gritty Banana Peel Doctrine into the dumpster. The Court said a plaintiff can maintain a negligence action without specific evidence showing that the property owner knew or should have known of the dangerous condition. The Court also did not pin the property owner's liability to him doing anything else in particular wrong (like stacking up the bananas in a faulty manner in the first place). In essence, the Court decided to entirely punt the question of sufficient proof of negligence to the jury. The plaintiff does not have to show the property owner did anything specifically wrong in order to roll the dice with the jury.

Under Edenshaw, it presumably will be enough for the plaintiff to show that he went into the defendant’s store, encountered a patch of gravity there, fell down and hurt himself. The poor trial court judge can only shrug her shoulders, hand the thing off to the jurors, and let them retreat to the back room to make sausage with it.

Many years ago the Alaska Supreme Court eliminated the old common law rules that had been developed in so-called premises liability cases. Those old rules had different standards depending on whether the plaintiff was classified as a trespasser, or a licensee, or an invitee. Since it was often hard to tell who was exactly what type of person, and since feudal law designed to protect landowners at all costs had fallen out of fashion, the Court chucked out these rules in favor of a plain reasonable care standard that applied to everyone. This change in the old rules was brilliant, visionary, super keen. It made life easier for everyone. But junking the Gritty Banana Peel Doctrine and cutting these cases free from any sort of objective proof standard? That’s just goofy.

I predict that Edenshaw will be distinguished into near oblivion as future cases are decided.

The Court's Edenshaw decision only makes sense if you assume they really meant to say advance notice of a dangerous condition is not the only way to prove negligence; a myriad of other ways are permitted. Nevertheless, some sort of minimally adequate proof of negligence still has to be provided to get to the jury (reasonable minds differing and all that). The trial judge can be asked to verify this through a summary judgment or directed verdict motion. I have to admit, though, that the Edenshaw opinion does not come close to expressly stating this. But in my view this is what the opinion should have said.

July 7, 2008

Weekly Summary of Alaska Supreme Court Opinions

Well, after a few months of having other things to occupy my time, namely these darling three month olds (Isaac & Aaden), IMG_0527.jpg it is time for me to renew Atkinson Conway & Gagnon’s attempt to, ahem, timely summarize the Alaska Supreme Court decisions of the week.

First up is Pebble Limited Partnership v. Parnell, S-13059/S-13060, in which the Alaska Supreme Court rejected an attempt to remove an initiative from the November ballot that will impose new requirements on mining in Alaska. The opinion has no real reasoning, as it’s actually an order with an opinion to follow, issued so that the State has time to print ballots for the election this fall. I won’t go into the arguments regarding the merits of the underlying mining initiative, but if you listen to the radio or watch TV for five minutes, you are almost sure to see ads from both sides of the issue.

The only other opinion of real interest is Edenshaw v. Safeway, Inc., S-12583, in which the Alaska Supreme Court held that to prevail on a premises liability claim in Alaska, a plaintiff does not need to show that the business owner had actual or constructive knowledge of the dangerous condition. Instead, the Court held there was only a basic reasonableness test, in which the business owner’s notice of a dangerous condition was a factor to consider, but not a dispositive or required one. This case is a departure from prior cases in which the Alaska Supreme Court held that the State of Alaska had to have actual or constructive knowledge of a defect in a highway to be liable if that defect caused an injury. In Edenshaw, the Court distinguished these prior cases by noting that a grocery store (which was where the injury occurred in Edenshaw) is a much more tightly controlled area, and thus it was more reasonable to impose a general duty of care on the business owner regardless of whether the business owner had actual or constructive knowledge of a dangerous condition on the property.

This opinion will have a significant effect in future litigation, as business owner now can be exposed to liability for injuries caused by dangerous conditions of which they were both not aware and had no reason to be aware. It is also certain to make premises liability cases more expensive and difficult to defend, as the question of the reasonableness of an owner’s actions will almost always be a fact question. Consequently, now that a business owner cannot rely on a lack of notice, constructive or actual, to avoid liability as a matter of law, it will be very difficult to obtain summary judgment or resolution of a premises liability case short of actual trial.

February 15, 2008

Weekly Summary of New Alaska Supreme Court Opinions

The Alaska Supreme Court issued two new opinions today. Moore v. Peak Oilfield Service Co. reaffirmed prior Alaska Supreme Court case law that a defendant in a civil personal injury lawsuit who is convicted of driving while intoxicated must be found to have acted negligently and reckless as a matter of law. The Court further clarified that such a ruling did not preclude the defendant driver from arguing that his or her negligence/recklessness was not a legal cause of the plaintiff's injury.

In Amerada Hess Pipeline Corp. v. Regulatory Commission of Alaska, the Alaska Supreme Court affirmed the Superior Court's finding that shipping rates charged by the owners of the Trans-Alaska Pipeline were unreasonable and unjust from 1997 to 2007 and that refunds must be given. The Alaska Supreme Court did not address the issues raised by the pipeline owners, but incorporated by reference the Superior Court's 44 page opinion.

January 29, 2008

Exxon Valdez Supreme Court Briefing

Atkinson Conway & Gagnon and all Alaskans are carefully watching the litigation arising out of the Exxon Valdez oil spill. After more than eighteen years, the case is still active. In late 2006, the Ninth Circuit affirmed a $2.5 billion punitive damage award against Exxon. With interest, the total punitive damage award against Exxon is estimated to be in excess of $4.5 billion. As expected, Exxon has appealed this decision to the United States Supreme Court.

The primary focus of Exxon’s appeal is the argument that punitive damages were not available under traditional maritime principles. Exxon is not seeking to just reduce the punitive damage award, but eliminate it entirely. The United States Supreme Court has a short summary of the issues it will be deciding.

Oral argument before the United States Supreme Court is scheduled for Wednesday, February 27, 2008. Below are links to the Supreme Court briefs that have been filed, including amicus briefs. Whatever the Supreme Court’s decision, it is certain that all Alaskans will be closely following this case and that it will have substantial impacts on both Alaskans and the law governing the availability punitive damages.

Primary briefs

Exxon's Appeal Brief

Plaintiff's Appeal Brief

Amicus Briefs

In support of Exxon

Chamber of Commerce amicus brief

Transport and Shipowners amicus brief

American Petroleum Institute amicus brief

Washington Legal Foundation amicus brief

Product Liability Advisory Council amicus brief

In support of Plaintiffs

Alaska Legislative Council Amicus Brief

Senator Stevens, Senator Murkowski, and Representative Young's amicus brief