Lowering the Bar

UPDATE: Driver Drops Lawsuit Against Family of Cyclist He Killed

As I (and many, many others) reported last week, Tomas Delgado sued the family of a teenage boy he killed in a traffic accident in 2004, on the grounds that the boy and his bicycle had negligently damaged the front of Delgado's Audi.  Due apparently in large part to the public outcry, Delgado dropped the case this morning.

The prior report suggested that the boy had at least contributed to the accident by riding his bike at night with no reflective gear.  And Delgado was not charged with any criminal wrongdoing, despite the fact that he was speeding on a rural highway.  The traffic report stated that Delgado was traveling at 70 mph in a 55 mph zone, though an expert hired by the boy's family estimated Delgado's speed at 107 mph.  (It was even faster in metric units, but I'm giving him the benefit of the doubt.)  Still, the public seemed to feel that Delgado was lucky to have escaped jail, and that to sue the dead boy's family for the cost of the damaged car was just a bit over the line.

I infer this public feeling from the fact, reported today, that "hundreds of people descended on [the] courthouse" in Spain where a hearing on the case was to be held, and "broke into applause" when they learned Delgado was dismissing the case.  Now, I firmly believe that cases should be decided on their merits and not by public reaction.  But I also firmly believe that if the citizens who are likely to be in your jury pool have stormed the courthouse before you even get there, it might be time to dismiss or at least think about a change of venue.  Just as a practical matter.

Delgado himself, wisely, did not show up, having sent his attorney to be torn apart by the mob instead.  (Attorneys do represent their clients, but just FYI, at least at my firm we charge time-and-a-half for being torn apart by mobs.)  Delgado's attorney told the court that his client felt that the bad publicity about the case amounted to a "public lynching," but that isn't true.  The public lynching would have amounted to a public lynching.  The bad publicity was just a sign of a bad case.

The boy's father said he was content with the dismissal, but also said he would pursue criminal charges, suggesting he was not content with the dismissal.  A local prosecutor said that authorities would be revisiting the case in the near future.

Link: CNN.com

Attorney Held in Contempt for Reading Maxim in Court

The WSJ's Law Blog reports today that a judge in North Carolina held an attorney in contempt last week after he saw the attorney reading Maxim magazine in court.

For those of you not familiar with Maxim, it is (reportedly) a men's magazine something like Playboy but with slightly more clothing involved.

Todd Paris was allegedly reading the magazine while waiting for his cases to be called (it sounds like he was there to ask for continuances, but that's not clear).  Judge Kevin Eddinger was hearing other cases but noticed the cover of the magazine, which Paris was reading in the front row.  He demanded that Paris come forward and bring the magazine.  According to the court, Paris apologized, "stated [that] in his view the magazine was not pornography, was available at local stores and that he did not intend contempt."  He also offered to discard it, but the judge declined that offer.  After what the WSJ described as some "banter," the judge held Paris in contempt, fined him $300, and put him on probation with a 15-day suspended sentence.

I suspected the "banter" was the real problem here, and the local paper's story confirms that.  Rather than just sticking with an apology, Paris insisted on defending the magazine and his decision to bring it to court.  He "repeatedly" told the judge that the magazine does not include nudity or pornography -- it doesn't, but that wasn't exactly  the point -- and also claimed that he had folded the cover over, which the judge said was not true.  At some point this banter escalated to the judge threatening Paris with contempt, but he did not seem to take this seriously, instead proceeding to ask Eddinger to continue his clients' cases.

A ten-minute timeout was called.

Despite having some time to think about it, Paris stuck to his guns after the break.  He asked the judge to look at the mailing label, which he said would confirm that it was his girlfriend's subscription.  He said he had taken "similar magazines" into other courtrooms and never had a problem, and then proceeded to read the judge some of the picture captions.  None of this improved the judge's mood.

The magazine was seized and identified as "Exhibit A" for Paris's contempt case.  Which, presumably, will require the judge to review it in some detail.

Link: Law Blog - WSJ.com
Link: Salisbury Post (North Carolina)

Mug Offered as Evidence to Prove Defendant Was "World's Greatest Dad"

On January 22, defense attorneys representing Cesar Rodriguez conducted a remarkable cross-examination of a detective who had been called to testify against their client.  Rodriguez is on trial for the murder of his 7-year-old stepdaughter, Nixzmary Brown.

But, defense attorneys asked, could the "World's Greatest Dad" have done such a thing?

As evidence that Rodriguez is (or was) in fact the World's Greatest Dad, defense attorneys introduced a photograph of a mug their client may have been given by the girl.  Emblazoned with the words, "World's Greatest Dad," the mug offered indisputable proof of Rodriguez's parenting skills and virtually guaranteeing his exoneration.  Given the undisputed existence of millions of fathers and stepfathers who have not murdered a child (or anyone, for that matter), and since Rodriguez is a better father than any of them, as he is the world's greatest father, it follows that Rodriguez could not have been the killer.  Ladies and gentlemen of the jury, I have nothing further.

Defense attorneys may not have been aware, however, that other such trophies exist, which could cast at least some doubt on Rodriguez's claim.  The words "World's Greatest Dad" have reportedly been found on t-shirts, name tags, belt buckles, trophies, keychains, greeting cards, baseballs, magnets, grilling aprons, grilling hats, grilling tools, and the flag of Turkmenistan (although my Turkmen is a little rusty).  Examples of many such items, in fact, can be found at the "World's Greatest Dad Store," which bills itself as the "one stop shop for all of your 'World's Greatest Dad' needs."

It's not clear whether this came out during the testimony of Detective Joseph Bello (but it probably did).  Bello conceded that he took the picture of Rodriguez's award and thought it was "weird," but said he did not know who bought it.  Lead prosecutor Ama Dwimoh said there did not appear to be any evidence as to who bought the mug, but seemed to suggest that she didn't give a rat's ass.  "As evidence comes out," she claimed, "it becomes clear that the last thing he was was 'World's Greatest Dad.'"

Oh, really?  Let's see:

• On the one hand, there's the evidence that the defendant killed his 7-year-old stepdaughter with a blow to the head he delivered to punish her for stealing some yogurt.
• On the other hand, the mug says "World's Greatest Dad" right on it.

I think the jury will be out for a while on this one.

Link: WCBS-TV.com

Cyclist Sued for Damaging Front of Driver's Car

A Spanish newspaper reports that businessman Tomas Delgado is suing for damage that 17-year-old Enaitz Iriondo caused to Delgado's car during an accident in 2004.  Delgado alleges that Iriondo thoughtlessly caused 20,000 Euros worth of damage to the Audi A8 by allowing his body and bicycle to be impacted by the front end of it while Delgado was trying to speed.

Delgado is sorry that Iriondo was killed in the accident, but he also wants his car fixed.

Delgado has not been criminally charged in Iriondo's death, apparently because Iriondo was riding his bike alone at night without wearing reflective clothing, and was not wearing a helmet.  Iriondo's family was paid 33,000 Euros by Delgado's insurer based on the acknowledgement that Delgado was speeding, but Delgado still maintains that the family should have to pay for the damage (plus another 6,000 Euros for the cost of renting a car while the Audi is fixed).

"I'm also a victim in all of this," Delgado said, still weeping over the broken corpse of his beautiful young A8, which had barely begun to live.  "You can't fix the lad's problems, but you can fix mine."  I'm not so sure about that last part.

Delgado may have earlier expressed remorse for killing the lad, since Iriondo's family said they had previously felt sorry for him "for the guilt he must feel" at killing their son.  But the family said their feelings now are more in the neighborhood of disgust.

Iriondo's mother described the lawsuit as "a kick in the teeth."

Link: London Daily Mail

Candidate's Platform: "I Don't Plan to Do the Job"

Evidently a strong believer in smaller government, Ed Hamilton says that if elected he will shrink the size of the government in Kerr County, Texas, by at least one job -- his own.

Hamilton, a 77-year-old Republican, says that the position of treasurer is an unnecessary one that costs the county $46,000 a year, and ought to be eliminated.  As it stands, however, the state constitution requires the legislature to provide for county treasurers (and county surveyors), whether anybody needs one or not.  Tex. Const. Art. 16, sec. 44.  Short of a constitutional amendment (which Hamilton advocates), the strategy appears to be to have a treasurer who won't do anything, including cash his own checks.  And Hamilton is running for that position.

If elected, he said, "I don't plan to do the job, [and] I won't accept a paycheck."  His plan is to "hand the duties to someone else" -- he didn't say who that would be -- refuse pay, and in the meantime petition for a referendum that would allow counties to wipe out treasurers wherever they may be found.

The incumbent Hamilton is challenging feels differently.  Mindy Williams, who was appointed to the job last year after the previous occupant resigned, and who is also a Republican, said she was "shocked" by Hamilton's proposal.  She said her position was "essential to county government" because it provides accountability.

Hamilton continues to argue that it is redundant.  He says that if he is elected, he will start not doing the job immediately.

Link: AP via Yahoo! News
Link: San Antonio Express-News

Robber Awarded $1 Million for Violating Probation

A judge in Massachusetts has ruled that a convicted two-time bank robber can keep a $1 million lottery prize he won recently, even though playing the lottery violated the terms of his probation.

Timothy Elliott pleaded guilty to unarmed robbery in 2006 (he had previously spent two years in jail for the armed kind), and was given five years of probation, which among other things required him not to "gamble, purchase lottery tickets or visit an establishment where gaming is conducted . . . ."  Nonetheless, in November 2007 Elliott bought a $10 ticket for the Massachusetts lottery, and won.  Two days after he picked up his first check, he was invited to court to discuss what should happen to the money.

The lottery commission and probation department both recommended that Elliott be allowed to keep the money, and on Friday, January 18,  Superior Court Judge Richard Connon agreed.  Elliott will be required, however, to pay $65 a month for the costs of his probation, a fee that had previously been waived because Elliott had no money.  He will now have to pay that amount out of the $50,000 check he will receive from the state each year for the next 20 years.

I've provided a picture of Mr. Elliott here in case you are putting together a ZZ Top tribute band and need someone who can buy his own instruments.  I had to get this one from the Boston Globe because, while the Massachusetts State Lottery publishes pictures and press releases about big winners on its website, oddly enough Mr. Elliott is not mentioned there at all.

Link: Boston Globe
Link: AP via SF Gate.com

Car's Owner Receives Multiple Parking Tickets For Car That Had Been Stolen

San Francisco is a notoriously difficult place to park, not so much because of the hills but because of the relatively small size of the city and its downtown.  Adding to the fun is the zeal of its parking control officers.

This one may not be their fault, but it's somebody's fault.

Last September, Michelle Vuckovich's car was stolen from her home in South San Francisco.  She called police and someone was there to take her report within 30 minutes.  As you might expect, California has a system for listing stolen cars statewide, and Vuckovich's car was listed there right away.

Then she started to get parking tickets.

As SF Chronicle columnists Philip Matier and Andrew Ross reported in December, Vuckovich got a parking citation in the mail a few weeks later.  She noticed that her car had been ticketed just a few hours after it was stolen, so it was possible that the car had not been listed yet.  But then she got another ticket the next day, by which time the theft list had been updated.

Then she got another one.  Then six more.

Vuckovich got a total of 29 parking tickets from the San Francisco Department of Parking and Traffic after she had reported her car stolen.  Police were unsure why the parking officers had never run the plate to see whether the car was stolen, especially since at least seven of the tickets were issued in less than a week while the car was parked on the same block of Grant Avenue in the North Beach neighborhood.  (It was near Grant and Filbert, if you live in SF and want to know where at least one car thief lives and/or works.)

DPT officials said that the officers involved should not necessarily be blamed because their hand-held devices store theft information only from the San Francisco database.  (Vuckovich lived in South San Francisco, which is actually a different city and county.)   But they also did not have a good explanation for why no one ever ran the plate in the course of writing any of the 29 tickets Vuckovich got.  Nor do they seem to have investigated any of the locations where the car was parked (sometimes repeatedly), although it would be hard to link a parking spot to any particular address.

Still, Vuckovich thought she would give that a try.  She and a friend drove around the city scouting out the locations that appeared on the tickets.  It took them about three hours to find the car.  It was parked near Folsom and Sixth Streets, two blocks from a police station.  When police arrived (an hour later), they got the car unlocked and turned it back over to Vuckovich.

They lost her driver's license in the course of doing the paperwork, but at least she has her car back.

Link: SF Chronicle

Plaintiff Who Visited "Pissed Off Pete's" Alleges Beating by Pete [Updated]

[Lowering the] Bar Exam Question One: if you go to a bar called "Pissed Off Pete's" and then get beaten up by Pete himself, do you have a claim?

This is not a hypothetical question.  Here's the case report:

Patricia [Plaintiff] v. Pissed Off Pete's et al.
1/16/2008 CGC-08-471147 (San Francisco Superior Court)

Complaint for personal injury and assault. Defendant [Pete] became enraged during an argument at his bar, defendant Pissed Off Pete's. He dragged the plaintiff to the door, pushed her to the street, threw her against the wall, up into the air, and then slammed her to the cement ground, causing bruises all over her body and intense pain.

Answer: I don't think assumption of the risk is a defense to an intentional tort, but even if it were, the sign only purports to warn that Pete will or may be "pissed off." A plaintiff therefore would not necessarily have anticipated being physically assaulted.

Give yourself full credit for any answer you gave unless you are representing one of the parties to this case.  If so, no points.

[Update: the case was later dismissed, so as far as I know there is no evidence that Pete or anyone affiliated with Pete committed the alleged assault, or for that matter, was even pissed off.]

Link: Yelp.com (info about bar) (case report from Courthouse News Service)

Court Ruling Will Force Employers to Spank Employees Equally

If they are to spank at all, anyway (which this attorney does not recommend).

In 2006, a jury in Fresno, California, awarded Janet Orlando about $1.7 million for her claims that she had been spanked at work.  Orlando alleged that her employer, Anaheim-based Alarm One, held "contests" for its sales teams and that members of the losing team were deliberately humiliated.  Workers allegedly were hit with pies, forced to wear diapers and eat baby food, and paddled with the signs of rival companies.

The company described the events as "camaraderie-building exercises."

The jury found for Orlando on claims that included sexual harassment, but that verdict was reversed this week.  The Court of Appeal held on January 14 that the jury had not been instructed that an essential element of the sexual harassment claim was proof that the conduct was directed at a woman because of the fact she is female.

The court noted the company's argument that it had not based the spankings on whether any employee was male or female, but on the "misguided notion that spanking employees who performed poorly in front of their peers . . . would motivate them (or all the employees) to perform better."  Saying there was at least some evidence in the record to support the view of each side (though there was also evidence Orlando was a spanker and not just a spankee), the court found that the instructional error probably affected the verdict and it remanded for a new trial.

Orlando's attorney, "Butch" Wagner, said that they would take the case to trial again and might "get more this time."  Alarm One's attorney, Poncho Baker, wished Wagner "good luck" collecting on any judgment, which (you won't be surprised to know) he meant sarcastically because, he said, the company has since gone bankrupt.

Link: AP via MSNBC.com
Link: Orlando v. Alarm One, Inc.

New Addition to Case Law Hall of Fame: The Case of the Stuffed-Bear Donation

Whatever you're working on right now, wouldn't you rather be working on a case where the only material issue was who owned the big stuffed bear?

Me too.  See Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).

The dispute arose in Tangipahoa Parish, in eastern Louisiana.  Mr. Turnage owed Mr. Pardue $3,000, and when Turnage could not pay the judgment Pardue had some of his property seized.  Said property included one "large stuffed bear."  Before the bear could be sold, however, Ronald and Celestine Lessard intervened, claiming the bear was theirs.  After a trial on the issue of bear ownership, the trial court found against them.  Apparently heartbroken, the Lessards appealed.

The appellate court reversed, citing evidence supporting the Lessards' claim.  At trial, apparently, "no less than six witnesses testified that Kenneth Turnage had, or they heard he had, given the bear to the Lessards."  Id. at 805 (emphasis added).  Setting aside the hearsay problems with that testimony, it seems that the bear's whereabouts were a topic of great interest in Tangipahoa.  Also, the Lessards had "dominion over the bear," as "evidenced by its display at the Sportsman, a sporting goods store in Ponchatoula."  Dominion is nine-tenths of the law of bear possession, as you know.  For those and other reasons, the court held, it was their bear.  "An exhaustive reading of the entire record convinces this court that Kenneth Turnage did give his stuffed bear to the Lessards.  For the trial court to find otherwise was manifest error."  Id. at 806.

The only remaining issue was whether the donation of the bear was fraudulent (to escape a creditor) or "omnium bonorum" (meaning "of all the goods").  The latter is a Louisiana provision intended to prevent someone from giving away all his or her belongings, something that I guess is or was not uncommon down there.  Personally, I think a man should be able to do with his bear what he will, even if it be his only remaining possession.  But In any event, the court found the transfer was neither fraudulent nor omnium bonorum, because there was evidence Turnage did have other assets besides the bear, namely a home up north (where he seems to have fled).

"While it is true," the court noted, "that he gave his household effects and the bear to the Lessards, these were simply things he could not conveniently take with him to Alaska."  That settled, the case was remanded.

The bear's current whereabouts are unknown.

Link: Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).