Posted on 08/16/2005 11:27:19 AM PDT by Graybeard58
A Burger King patron in Rockford, Ill., backs her car into a lamppost in the parking lot and then panics. She puts her car into drive and puts the pedal to the metal. She quickly loses control of her vehicle, which jumps the sidewalk and flies through a plate-glass window, striking and fatally injuring a patron.
Who was negligent in this freak accident? The driver? Or the deep-pockets restaurant, for improperly designing and constructing its building and sidewalk and for not installing protective barriers around the building?
If you said the latter, you should enroll in law school, if you aren't already a trial lawyer.
The dead patron's estate sued the restaurant chain for millions for "designing the building to be bricked up only a few feet from the ground, when the defendant(s) knew or should have known that ... may allow a vehicle from the parking lot to drive into the building, and crash through the glass on top of the brick."
The trial judge reasonably dismissed the suit, concluding the "likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver."
Stunningly, the dismissal was reversed by the Illinois Appellate Court, which said Burger King must safeguard its patrons from all possible accidents, no matter how improbable.
The restaurant chain's failure to do so in this case was "a breach of (its) duty of reasonable care, despite whatever cost or inconvenience would be involved in the exercise of that duty," the court ruled.
However, reasonable care is open to interpretation. Would it entail building a restaurant with a solid brick façade? If so, the car still might have crashed through the wall, and the patron would have been injured or killed by the car and falling bricks.
Either way, he still could have sued, claiming the solid wall prevented him from seeing the car coming and thereby robbed him of a chance to flee.
Perhaps Burger King should have built a wall strong enough to hold back a full-sized sedan, in which case one could be sure the first vehicle to hit the wall would have been a Hummer or a Navigator.
Maybe it should have restaurants that can withstand nuclear blasts, which of course would leave it liable for the wrongful death of the drivers of runaway cars who are killed crashing into the restaurants.
Each of these alternatives would meet the doctrine of reasonable care, yet each unreasonably leaves Burger King wide open to the abuses of the predatory trial bar. But that's the beauty of the damned-if-you-do, damned-if-you-don't trial-lawyer racket.
Burger King has appealed to the Illinois Supreme Court. Here's hoping that justices have the common sense and decency to recognize that the reckless or incompetent driver killed the patron by putting her car in drive and then standing on the accelerator.
Mr. President! I am HONORED, sir! LOL
Letting people who have dementia, impaired physical and cognitive abilities and serious health issues related to aging , DRIVE, is madness.
The story is- awww, you can't take away their 'independence'.
As you age NATURE does that. Good eyesight, reflexes and judgement are necessary to control a motor vehicle. Kids don't have it yet- so they can't drive. Senior citizens who are losing it- can't drive. No brainer.
All that would have to be done is a check of the system every month in each state-break it down by city/town/area. Flag the licenses of everyone when they reach 65. At that age, MANDATORY driving tests and physicals required every 6 months. Doctors must clear their health to get a license.
Wrecks like the one this post refers to would automatically void their license . They are a danger to the public and themselves.
After 75 I have a serious problem with ANYONE driving. Age DEBLITATES. You are NOT the driver you were at 50- face it. Get off the road- call a cab.
All I can say is- if anyone in my family is hurt or killed by a 90 year old with a walker who is driving- they won't drive again.
More judiciary out of control. We are all paying a lawyer tax on everything we buy. And it seems to be rising as a percentage of the cost.
Its also a big reason companies locate as much of the business as possible in other countries. The risk of even one mega lawsuit is too great.
That is exactly it. When you look at soem of the mega jackpots, a lawyer only has to win even one in his career and he is set for life. Now really he will win more then that, say even 1 in 5, and quickly they can get very wealthy.
Like John Edwards and his 150 million dollars. Which judging by his age, how long he has was in the senate, and how long law school takes, he probably accumulated in about 10 years of lawsuits.
Not just loser-pays, but loser-lawyer-pays too. If he was going to skim off 33% of the award, he ought to have to pay 33% of the costs out of his own bulging pockets. Filth.
-ccm
we need to start calling this for what it is...collusion by the American Trial Lawyers with local and state government to violate business.....racketeering. Calls for Federal DOJ investigation.
Not very well formatted, which makes it difficult to read. The citations are technical-legal, which is alot of noise, if you are not familiar.
I had the research lying around because I have a case where I represent the owner of an old strip mall, which borders a 2 lane state highway. The lot surface runs right up to the highway, without curbs. Parking spaces are located partially in the "right of way," which is a 13 foot strip outside of the highway surface owned by the state. A driver on the highway fell asleep the morning after a bender and pinned someone against her car, causing horrific injuries. She has argued that we needed to get a permit from the state in order to encroach on the right of way, which the state would have never granted. We say the lot was always like that, and is therefore grandfathered. Aerial photographs arguably show otherwise.
I am trying to say in that brief that the only cause of the accident was the driver and not the condition of the lot. The cases I have collecect nationwide say where there is a drunk, sleeping or completely out of controll driver, that is the sole "proximate cause" of the injuries. So it had alot of similarities with the Burger King story - which is not good for my position in my case.
So here is the rub, which is what you really get down to when you start to talk about tort reform.
This woman's medical bills are about $350,000. He car insurance covers only $250,000. She is 28 years old and has only one good arm and a missing leg. So, which is a better source to pay her bills and provide income? A system that stimulates people, upon the pain of having to pay for accidental injuries, to think about and try to prevent even barely forseeable accidents or pure public assistance, i.e. Medicaid and Social Security, where there is no legal stimulus for anybody to give a damn?
You see, in the final analsis, when tort reform precludes recovery for economic damages or pain and suffering, it abrogates personal reponsibility and enlarges the welfare state. The diversionary tactic presently being used for this coup is stirring up hate for lawyers because it is easy to shoot the messenger. Does this seem conservative to you?
I just put on my Nomex suit. Here is how tort reform abrogates personal responsibiity and expands the welfare state.
I have a case where I represent the owner of an old strip mall, which borders a 2 lane state highway. The lot surface runs right up to the highway, without curbs. Parking spaces are located partially in the "right of way," which is a 13 foot strip outside of the highway surface owned by the state. A driver on the highway fell asleep the morning after a bender and pinned someone against her car, causing horrific injuries. She has argued that we needed to get a permit from the state in order to encroach on the right of way, which the state would have never granted. We say the lot was always like that, and is therefore grandfathered. Aerial photographs arguably show otherwise, so this is an issue to be decided by a jury.
I am trying to get the case dismissed by arguing that the only cause of the accident was the driver and not the condition of the lot. The cases I have collecect nationwide say where there is a drunk, sleeping or completely out of controll driver, that is the sole "proximate cause" of the injuries. So it had alot of similarities with the Burger King story - which is not good for my position in my case.
So here is the rub, which is what you really get down to when you start to talk about tort reform.
This woman's medical bills are about $350,000. He car insurance covers only $250,000. She is 28 years old and has only one good arm and a missing leg. So, which is a better source to pay her bills and provide income? A system that stimulates people, upon the pain of having to pay for accidental injuries, to think about and try to prevent even barely forseeable accidents or pure public assistance, i.e. Medicaid and Social Security, where there is no legal stimulus for anybody to give a damn?
You see, in the final analsis, when tort reform precludes recovery for economic damages or pain and suffering, it abrogates personal reponsibility and enlarges the welfare state. The diversionary tactic presently being used for this coup is stirring up hate for lawyers because it is easy to shoot the messenger.
Does this seem conservative to you?
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