Archive for the ‘Torts’ Category

NBC Dateline Lawsuit

A lawsuit against NBC’s Datelinefor the suicide of Texas Prosecutor Louis William Conradt Jr. has the green light and will proceed. Dateline’s popular program, “To Catch a Predator” features confrontations with men who allegedly sought “dates” with underage persons they met on-line. Condradt was one such “victim” of NBC. While camera crews and the local SWAT team awaited outside his home for his arrest, Conradt shot himself.

Southern District of New York Judge Denny Chin said that if the complaint’s allegations are true, a reasonable jury could find that “NBC crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement.” NBC sticks to its guns, a spokesperson being quoted as saying, “the evidence will ultimately show that ‘Dateline’ acted responsibly and lawfully.”

This is definitely a case to follow in that it tells a fascinating, tragic story that brings together the ever-powerful media, society’s unquenchable hunger to punish our modern pariah, the pedophile, and the law. A related story is also seen in the unfolding of bills urging adoption of Jessica’s law across the country which includes a broader-scale use of GPS to monitor sex offenders. As usual, though, the problem lies in a woeful lack of funding. 

McDonalds’ Torts

McDonalds made the news again with another hefty award in a tort case based on a phone scam of an employee. According to the article,

Her case against her employer was based on a duty-to-warn theory of liability: Ogborn’s lawyers contended that McDonald’s didn’t effectively alert its workers that such a telephone scam might be attempted, “even though the caller had successfully pulled off the same scam at dozens of its other franchises across the country,” ABC reports. McDonald’s counsel said poor judgment by restaurant management was the cause of the incident.

“Failure to warn,” refers to what tort? Torts Class, what do you think?

Posted by C. Bekhor

Crikey!

CNN.com is reporting on a story about Crocs, the popular, soft-soled shoes that happen to have a lot of holes in them. Something about their flexibility and grip makes the toes they enclose likely to get caught in escalators, incidents otherwise known as “shoe entrapments.” Toes have been lost, gashed, violated. Personally, I like shoes that give good coverage. The clunkier, the better. Anyway, the mom tells the whole tortious story:

At first, Rory’s mother had no idea what caused the boy’s foot to get caught. It was only later, when someone at the hospital remarked on Rory’s shoes, that she began to suspect the Crocs and did an Internet search.

“I came home and typed in ’Croc’ and ’escalator,’ and all these stories came up,” said Jodi McDermott, of Vienna, Va. “If I had known, those would never have been worn.”

Ahhh…if she had been properly warned of the shoe entrapment risks, her sons’ toes would never have been wrongfully and painfully entrapped in the biting teeth of the escalator. What element of negligence does the “failure to warn” satisfy?

Afterthought: Which should have warned the mother of the danger? The Croc company or the makers of escalators?

 

Posted by C. Bekhor

Strict Liability for Employers of Wild Employees?

The ABA (American Bar Association) has posted an interesting article about a case before the 3rd Circuit appeals court. There, the judges are reviewing the hefty $550,000 fine imposed on the CBS network for Janet Jackson’s stunt at the Super Bowl in which she exposed herself to a shocked and unforgiving American public (was the greater civilized Earth as horrified as we were?).

The government argued that CBS should pay on the basis of “respondeat superior,” in which employers are responsible for the tortious conduct of employees. The problem with the theory is that CBS officials don’t operate like your every-day employer – the officials in charge don’t always know what the lower echelon is doing, and in fact is often kept in the dark on purpose. CBS argued that the result would be far too close to strict liability than the theory is supposed to be, i.e. this leads to automatic liability for whatever wild, uncontrollable thing an employee might do. The theory is not supposed to impose liability for actions that are so startling in the employment context (See Rodgers v. Kemper Const. Co. (1975) 50 C.A.3d 608, 124 C.R. 143). Hmmm…meaning, was it really such a shock that Janet Jackson would do something “unpredictable” and “unforeseeable” on live television? Meaning…could CBS officials REALLY have been so naive? Meaning…her actions were foreseeable in that context and therefore CBS should be liable. We’ll see what the court says.

The other issue the judges face is whether the minute, televised exposure of a nipple qualifies as “indecent,” which is the threshold requirement for indecency fines by the F.C.C. Personally, I never thought it was indecent. I was rather horrified, not at the exposure, but at the negative reaction of so many. This leads me to contemplate the breast-feeding case that’s captured the media.

Recently in Toledo, Ohio, a woman was asked to stop breastfeeding her baby in a mall store. Ohio law says all women are permitted to breastfeed in public. The woman at the time had been embarrassed by the clerk’s reaction and immediately stopped and left the store. She’s now suing the store for damages. The story brings to light once again the American conflict between breastfeeding and female sexuality – while the law seeks to prevent such store clerks from intervening, the clerk’s instinct was that breastfeeding was as shocking as what Janet Jackson did – she could see a nipple by golly! Yikes!

Now here’s my question…if the 3rd Circuit sides with the government and affirms the fine, will a similar employer get equally fined if say…Nicole Richie decides to breastfeed her upcoming baby live on the air?

I don’t know…what do you think?

Posted by C. Bekhor

Va. Tech Could Have Saved Lives

The final report prepared by the State of Virginia into the shootings at Virginia Polytechnic Institute and State University (Virginia Tech) provides strong evidence to support negligence or wrongful death lawsuits by the shooting victims’ families. The report lays blame for the incident on the upper echelon, including University President Charles Steger and Police Chief Wendell Finchum. Faulty communication all around is at the heart of the tragedy, from Seung Hui Cho’s high school to his mental health providers, back to Virginia Tech. However, in order for a lawsuit against the state and/or the University to be successful, plaintiffs need to prove the deaths of their children were caused directly by the mistakes made by the University and/or the state.

The response of the University did receive a tidbit of leniency:

“”There does not seem to be a plausible scenario of a university response to the double homicide that could have prevented the tragedy of considerable magnitude on April 16,” the report said. “Cho had started on a mission of fulfilling a fantasy of revenge.”

In other words, when it came to response to the first killing in the dormitory, little more could have been done that would have prevented Cho from accomplishing his goal. Since response doesn’t seem to be the cause, then it must have been earlier, back when Cho wrote a short story at Virginia Tech outlining his revenge fantasy. Or was it before the short story, back when he sought treatment at a mental health center and received none?

How far back in Cho’s life should we go in order to assign responsibility? How large should the net be with which we can drag in responsible parties? Case law limits this “net.” Should it still be so limited? Since Columbine, “blame” is far-flung when it comes to the safety of our children. We know the University is to blame based on the report – they should have weeded out Cho from the student population. But they deflect the attack claiming they didn’t have accurate information from the mental health system. The police claim the same defense, not having received the short story. What about the high school – perhaps his records should have been submitted to the college instead of remaining in the basement archives? Finally we begin to sniff around his family, his elementary school teachers, perhaps his first pediatrician. At what point could the monster have been stopped and should that be the ultimate limit of the responsibility net? At what point are the various systems exonerated of responsibility?

On the other hand, when does the killer finally take all the blame?

 

Posted by C. Bekhor