Lawsuit Abuse Fortnightly #5-12

Published October 9, 2006

Singer Hits the Wrong Note

Singing in the shower is one thing, but singing on an airplane is another … even if you are famed rock-and-roller Bonnie Tyler.

Five million people liked her 1983 hit “Total Eclipse of the Heart” enough to buy the record, according to her Web site, but a group of passengers on a 2004 Air France flight claimed to be traumatized and frightened when a retiring pilot asked her to sing it in celebration of his last flight. The passengers have now sued Air France over the incident. Air France stated the suit is baseless. From United Press International and

When Teachers Flunk; They Sue

By requiring minority teacher applicants to pass a basic competency test, the Board of Education of New York City may have discriminated against them, a federal court of appeals has ruled.

The test measures their mastery of basic college material, including science, math, history, and the arts, as well as written communication skills in an essay. To pass, applicants must answer about 66 percent of the questions correctly and score at least 60 percent on the essay.

The applicants demonstrated their scores on the examination were consistently lower than white applicants, the court stated. “Between 1993 and 1999, the average pass rate for white test takers ranged from 91% to 94%, while the average pass rate for African American candidates ranged from 51% to 62%, and the average pass rates for Latino candidates ranged from 47% to 55%,” the court stated. All of the minority applicants “tended” to do the worst on the essay section of the test, according to the court.

The Board’s defense was that the test was lawful because it was “job-related” to the ability to teach. The court remanded the case to the trial court to determine if that is true. From Gulino v. New York State Education Department, Docket No. 03-9062-cv

Rock Climbing Goes on the Rocks

A West Virginia nature preserve has been bluntly warning rookie rock climbers of the dangers of the sport, but it closed to visitors recently over concern about increasing accidents.

The Nelson Rocks Preserve’s disclaimer recently attracted a fair amount of Internet attention, reported. The disclaimer warned: “If you climb, you may die or be seriously injured. … It’s a fact, climbing is extremely dangerous. If you don’t like it, stay at home.”

The warning continued, “We do not inspect, supervise or maintain the grounds, rocks, cliffs or other features, natural or otherwise.”

“Trails are not sidewalks. They can be, and are, steep, slippery and dangerous.” Collapses are possible, the disclaimer continues: “A whole rock formation might collapse on you and squash you like a bug. Don’t think it can’t happen.”

The disclaimer concludes: “By entering the Preserve, you are agreeing that we owe you no duty of care or any other duty. We promise you nothing. We do not and will not even try to keep the premises safe for any purpose. The premises are not safe for any purpose. This is no joke.”

Nelson Rocks Preserve nevertheless announced recently that it was closing to climbers, at least temporarily, due to increased numbers of climbers and increasing accidents. From http://www.nelsonrocks. org/disclaimer.html and

Greedy Trial Lawyer? Naaah

When is a contingent fee too high, even for the American Trial Lawyers Association (ATLA)? How about when it makes their members blush.

ATLA normally supports contingent fees, awarded only when the client wins a financial recovery. If the client wins nothing, the lawyer collects no fee.

ATLA established the “Trial Lawyers Care” program (“TLC”) to help survivors of victims of the September 11, 2001 terrorist attacks on the World Trade Center receive payment from the Victim Compensation Fund established by Congress in 2001. Even though the fund’s guidelines recommend a 5 percent contingent fee, more than 1,100 ATLA members represented 1,700 families in claims from the fund free of charge.

So when a New York lawyer claimed a $2 million fee for obtaining payment of $6.7 million to a woman whose husband died in the attack, eyebrows raised among trial lawyers … and the amount of the fee was challenged in the victim’s probate proceedings.

The special master appointed to oversee payment of about $7 billion in claims called the fee “shocking and unconscionable,” because the nonadversarial process merely involves filing a claim with the fund and claim amounts are routinely increased.

Steven Lubet, a professor of legal ethics at Northwestern University School of Law in Chicago, told the New York Law Journal that the size of contingent fees can be measured according to the contingent fee contract. The wife signed such a contract, agreeing to pay one-third of the amount recovered. But in other cases, he said, courts say a contingent fee is appropriate only when the lawyer risks nonrecovery, notwithstanding the existence of a contract.

The wife’s lawyer told the Journal there was no risk of nonrecovery. “There was absolutely no chance that it would be zero,” he said.

Trial lawyers are portrayed “as opportunistic, greedy, self-centered,” the president of the New York State Trial Lawyers Association wrote in the ATLA magazine at the time the TLC program was established. “Sadly, a few of us have bolstered that image.” From the New York Law Journal

Duffer Not Liable

A golfer whose shot toward the green veered wildly in the wrong direction and struck another player in the eye is not liable for the injury, but the golf course might be, the Hawaii Supreme Court has ruled.

The ball bounced off the fairway, into the rough, into a dirt area, and then onto the path on which carts were required to travel. The injured golfer was riding in a cart on the path.

The court noted the path had been routed behind a restroom building. The golfer could not see the cart until he had already made his errant shot.

The court found “it is common knowledge that not every shot played by a golfer goes exactly where he intends it to go,” so the golfer was not liable. The golf course owner might be liable, the court stated, for “routing the cart path behind the subject restroom.” The high court directed the trial court to decide this issue. From Yoneda v. Tom, 110 Haw. 367 (2006)

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984.
Phone 312/377-4000, fax 312/377-5000
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Publisher: Joseph L. Bast
Editors: Maureen Martin, Diane Carol Bast

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