Torts

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Driver who kicked out drunken friend is liable for 3rd-party hit-and-run death

What duty do you have to a drunk and belligerent passenger in your car?  Louisiana’s Fourth Circuit Court of Appeal has recently held that a driver has a duty of care to all passengers in their car.

The facts were that John Cefalu traveled to New Orleans with four friends to celebrate his birthday.  It probably goes without saying, but there was alcohol involved in the celebration in New Orleans.  One of his friends, Piero Larrea, apparently got quite drunk and had to pulled away from a fight that was brewing in the club where they were partying.  When they piled into the car for the drive home, Larrea complained that his friends didn’t “have his back” at the club.  Larrea continued “acting up” during the drive, at one point asking to be let out of the car with one of the others so they could fight.  Larrea even grabbed the arm of Cefalu while he was driving.  So Cefalu kicked him out of the car and left him by the side of the road.  Larrea died in a hit-and-run accident shortly after Cefalu pulled away.  The driver who hit him was never found.

Sued by Larrea’s father, Cefalu was found liable for 28 percent of a $317,000 wrongful death award.  The appeals court affirmed the jury verdict, reports Courthouse News.

Although Cefalu argued that he had no special duty to get his friend home safely because Larrea interfered with his driving by grabbing his arm, the Court of Appeals said Cefalu owed a duty of care to both Larrea and the other passengers in the car. The court also rejected an argument by Larrea’s father that the jury erred by holding the hit-and-run driver 18 percent responsible. Larrea himself was accountable for the other 54 percent.

Appeals court: Driver who kicked drunken friend out of his car is liable for 3rd-party hit-and-run.

Caps on Medical Malpractice Recoveries Negatively Impact Safety — Northwestern Univ. Study

A recently published study from Northwestern University reviewed whether tort law deters negligent behavior.  The study found consistent evidence that patient safety generally falls after medical malpractice reforms, compared to control states.

The study examined whether medical malpractice reforms affected in-hospital patient safety, using Patient Safety Indicators (PSIs) – measures of adverse events developed by the Agency for Healthcare Research and Quality – as proxies for overall safety.  In five states that adopted caps on damages safety fell after the reforms.

Chicagoans Contribute Facts to the Arguments About Caps on Medical Malpractice Recoveries | GlobalTort.

Is There Really $30 Billion in Asbestos Trusts Just Waiting to be Claimed?

Is there really $30 Billion in asbestos trusts just waiting to be tapped?  Some advertisements and websites would suggest that the money is just there for the taking.  And there are those that are suggesting there is something inherently fraudulent about this system.  Neither suggestion is accurate.  There is no single big pot of money for people injured by asbestos.  Claims by persons injured by asbestos (or more likely their heirs) must be made against the companies who created the problem.  Many of the companies who sold and supplied asbestos have filed for bankruptcy protection in various different bankruptcy courts around the country.

Many of those companies did not actually go bankrupt the way most people think of it.  Those companies wanted to get rid of any liability to people hurt by asbestos.  Using Chapter 11 bankruptcies and section 524(g) asbestos bankruptcy trusts, many manufacturers did not go out of business but went back to business as usual.  Their asbestos liability is now stripped off and they don’t have to worry anymore about being sued by the people they injured.  As a result there have been dozens of trusts established by bankruptcy courts to provide compensation for asbestos victims.  The trust set up by the bankruptcy court in the respective case is then responsible for dealing with all claims against that particular company.

But what does this mean for the thousands of Americans now dead or dying from mesothelioma and lung cancer?  Do the trusts really offer some sort of big jackpot to those suffering from asbestos disease? Ask anyone suffering a painful death from mesothelioma and they will tell you that they would gladly trade any monetary recovery for their health back.  Unfortunately they are often deceased before their case is resolved and their families are the ones who wind up pursuing the claims.

And the funds are not paid out to just anyone who makes a claim.  All persons who seek recovery against these trusts must show first that they have an asbestos-related disease (one recognized by that specific trust).  Each trust has different criteria for what evidence will need to be produced to establish that disease (usually certain specific medical reports are necessary).  Many claimants may have been diagnosed with an asbestos-related disease by their doctor and still do not qualify because the trust excludes payment for that particular condition or the type of proof required is not available.

Claimants must also meet product exposure requirements for each trust which vary widely.  For example,  a claimant may need to provide evidence of exposure to a specific asbestos product during a specified time period to qualify.  A claimant may also need to establish they worked at a particular work site and/or in a certain trade or occupation to qualify.

Some claimants will recover more than others. It is going to depend on the nature of the disease involved and the proof of exposure available.

Claimants may file claims against multiple trusts but not everyone with an asbestos disease qualifies for all trusts.  In fact it would be exceedingly rare, if not impossible, to qualify for all the trusts.   Moreover, asbestos bankruptcy trusts offer claimants just pennies on the dollar compared to what they would have received in the traditional court system.  For example, the Manville Trust pays just 7.5 cents on the dollar of the value the trust put on the claim.

There are those that suggest there is something underhanded, or even fraudulent, about a claimant receiving payments from several different trusts.  However, persons injured by asbestos have almost always pursued claims against multiple asbestos producers and suppliers.  Mesothelioma and other asbestos-related diseases are often caused by a claimant’s cumulative exposure to a variety of different asbestos-containing products.  A person who worked as a pipefitter, for example, may have been exposed dozens of different types of asbestos products, such as pipe covering insulation, asbestos-containing gaskets and packing, and block insulation, each made by multiple manufacturers.

When products made by several companies contributed to the claimant’s harm, the trusts should be paying based upon that companies’ liability, regardless of what other trusts may be paying.  And given that the bankruptcy claimant receives only a tiny fraction of the amount that the claims are valued at, there is little chance for over-compensation.  And let us not forget that these asbestos bankruptcy trusts exist because manufacturers lied (or looked the other way) about the hazards of asbestos for so long that hundreds of thousands of American workers and veterans have gotten sick and died because of their exposure to asbestos.

Also keep in mind that not all asbestos producers and suppliers have gone through the bankruptcy process.  If injury was caused by a company not protected by a bankruptcy filing, it may be possible to file suit against them in court and pursue a case to trial for damages.  Worker’s compensation claims may also be made if the asbestos injury was caused at work.  There are many factors involved in who gets compensated and how much they can recover.

The system is far from perfect, and no one is all that happy with it.   But at least it provides some avenue for those injured by asbestos exposure to attempt to recover for the harm done to them.  If you are suffering with an asbestos-related disease you should consult with an attorney with experience in this area of law who can evaluate your case and explain your options to you.  R. Bryan Nace has over 25 years experience working on asbestos cases and can give you an honest evaluation of your case.

GM’s Ignition Switch Recall

Should manufacturers be liable when they sell products that are defective and cause injury and death?  Recent reports in the press indicate that General Motors knew not only that its ignition switches in 1.62 million now-recalled cars were faulty, but it also knew the problem was made worse by the position of the switch where it is easily bumped.  This situation is made worse by the fact that when the ignition switch is turned off the airbags won’t deploy and the steering is compromised.  Numerous injuries, and some deaths, have been reported due to this defect.  These injured people should have their day in court.  However, it has been suggested that GM’s prior bankruptcy may cut off liability to those injured.

GM’s Ignition Switch Recall – A Prime Example of Why It’s Not Sound Policy to Let Bankruptcy Courts Cut Off Tort Claims : GlobalTort.

Rochow v LINA – 6th Circuit Rules For ERISA Claimant, Ordering Insurance Co. to Pay $3.8 Million in profits to Claimant in Addition to Lost Benefits.

The 6th Circuit Court of Appeals has held that an insurance company (LINA)  had acted in an arbitrary and capricious manner when it denied Daniel Rochow benefits.  The Court upheld an award for lost benefits and an order for LINA to disgorge $3.8 million in profits to Mr. Rochow under an equitable theory of unjust enrichment.  The full opinion is available here: 13a0338p-06.pdf.

What is the loss of your pet worth under the law?

If someone kills your dog, should you be able to sue for emotional distress or suffering caused by the loss?  Most courts have said no.  The Stanford Journal of Animal Law & Policy recently published an article stating that this is the best policy and in the best interest of the pets themselves. This may be a tough sell for pet owners.

Courts and Legislatures Have Kept the Proper Leash on Pet Injury Lawsuits: Why Rejecting Emotion-Based Damages Promotes The Rule of Law, Modern Values, and Animal Welfare | Stanford Law School Student Journals.

Is a hotdog toss an inherent risk at a baseball game?

Should a baseball club be liable for injuries from mascots tossing hotdogs into the stands?  Robert Coomer was injured sitting in the stands watching a Kansas City Royals game. He knew from his many previous visits to the ballpark there was a tradition of a hotdog toss at the ballpark. Sluggerrr, the mascot, fired a hotdog underarm into the stands. Coomer, who’d looked away to check the out-of-town baseball scores, was smacked in the eye. He suffered a detached retina.  A jury found that Coomer was to blame for his own injury, because he wasn’t paying attention to what was going on. The state appeals court threw out the verdict, finding that the trial judge had made a mistake in instructing the jury that if they saw the threat of getting hit during the hot-dog throw as inherent to the risk of attending the game, they should find in favor of the Royals.  Did they make the right call?  The case is currently before the Missouri Supreme Court for review.  See more at Coomer v. Kansas City Royals: The case of the killer hot dog toss..