Articles Posted in Miscellaneous

The California Court of Appeals has ruled that an amusement park operator cannot assert primary assumption of risk as a complete defense to a case arsing from an injury at the park.

In Nalwar v. Cedar Fair, L.P.   H03453  (Cal. Ct. App. 6th Dist. 6/10/11), held "that primary assumption of risk is inapplicable to regulated amusement parks, that it does not apply to cases where the illusion of risk (as opposed to actual risk) is marketed and finally that in this case issues of fact predominate."

As the Court explained, "the very reason we go on amusement park rides is because we ―seek the illusion of danger while being assured of [a ride‘s] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.‖  (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1136 (Gomez), emphasis added.)  While some rides may have inherent dangers owning to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding.  (U.S. Fidelity & Guaranty Co. v. Brian (5th Cir.1964) 337 F.2d 881, 883.)"

John Stossel is a Fox News reporter ( I use the word "reporter" lightly, especially in conjunction with Fox News) who dislikes lawsuits and the lawyers who file them.

Except when he finds it necessary to file one.  Like he did when he was bitch-slapped by a wrestler.

Eric Turkewitz does his usual excellent job covering the story about this hypocrite.  Read it here.

I know it is not a tort case, but this post from Law and Disorder reports on what can happen before the Seventh Circuit Court of Appeals when you don’t have your damages proof in proper order.

An excerpt
 

"I have never seen such an incompetent presentation of a damages case," [Judge Richard A.] Posner said. "It’s not only incompetent, it’s grotesque. You’ve got damages jumping around from $11 million to $130 million to $122 million to $33 million. In fact, the damages are probably zero."

Regular readers know that I am a Max Kennerly fan.  He does it again with post titled "The Truth Self of The Plaintiff’s Trial Lawyer." 

An excerpt:

Trial lawyers walk into court with plans, backup plans, and with training and experience in various techniques and methods. Trial, though, has a way of knocking askew the best laid schemes of mice and men; it’s less a choreographed ballet and more a rough mix of strategic adaptation, technical mastery, wit, and endurance.

My friend Kyle Hendrick from Chattanooga send in a nice comment this morning, referencing a post of over 4 years ago that, quite frankly, had completely slipped my mind.  I looked it up – and here it is:

The President’s daughter Jenna has written a book that she "very, very modestly" hopes will have the influence of  Anne Frank’s The Diary of Anne Frank.

Like Jenna, I too find myself tightly bound by humility.  Her willingness to reveal her hopes despite her extreme modesty  compel me to reveal one of my own hopes:   that this blog will have the influence of the Declaration of Independence.

The American Medical Association has finally recognized the important role that lawyers play in advancing the interests of their clients in the justice system.  Indeed, it has even created a "Litigation Center"    to "ensure physicians’ rights are upheld in the most important challenges facing today’s working physician."  

Rumor has it that the AMA is considering whether their patients should have the same access to legal representation and the civil justice system.  A report on this issue is due December 25, 2067.

On Monday, May 16, 2011 the American Law Institute adopted Chapter 10 of the  Restatement of the Law Third, Torts:  Liability for Physical and Emotional Harm.  

Chapter 10 addresses liability, both direct and vicarious, of those who employ an independent contractor.  It replaces Chapter 15 of the Prosser / Wade Restatement Second of Torts.

The Reporter for this effort is Ellen Pryor of Southern Methodist University.

When Senator Campfield slammed lawyers on March 29, 2011 in a Senate Judiciary Committee, Senator Doug Overbey let it be known that he did not appreciate the unkind words of his fellow Republican.

See the debate on SB 0127 here.  Debate on the bill starts at 2:04:44.  Campfield’s remarks begin at 2:07:44 and his lawyer slam starts at 2:10:25.   Senator Overbey makes his statements beginning at 2:17.

Senator Campfield is a real estate developer from Knoxville.  Senator Overbey is a lawyer from Maryville.

Thomas Redmon gave the plaintiff herpes.  He knew that he had the disease for over 25 years before he had sexual relations with the plaintiff.  He knew that there was some risk in transmitting the disease even if he was lesion-free.  He did not tell plaintiff that he had the disease before their first several sexual interactions, but later told her that he had the disease.  He also told her that it was safe to have unprotected sex if he was lesion-free.

Plaintiff contacted herpes and sued Redmon.   The jury awarded her $6.7 million.  

The California Court of Appeals affirmed the liability aspect of the verdict but cut the compensatory damages award by over $2 million.   (Note:  the press reported that the award was affirmed.  Here is one example of such an error.)  The punitive damage award of $2.75 million was affirmed.

This video demonstrates the struggles that defense lawyers have with some claims adjusters.