Lowering the Bar

Canadian Dollar, Lawsuit Activity Up

Now that Canadians have a currency that can actually compete with the U.S. dollar, it looks like they may be trying to catch up to us in unnecessary lawsuits as well.

Last week, the National Post of Canada reported on the "growing trend" of teachers being sued by students and their parents.  The story was prompted by a case in which a father in British Columbia sued his son's second-grade teacher for, among other things, not making the boy do his assignments and failing to give him daily homework, thus "knowingly setting up the son for failure."  After the boy apparently refused to finish a poem he had been assigned, the teacher put the half-finished poem up in the hallway.  By this and other means, the teacher "falsely created and attempted to reinforce artificial differences between his son and his peers," allegedly inflicting compensable emotional distress.

Another lawsuit referred to in that article claims $155,000 in damages for another family's son who felt "fearful and constantly victimized" by his grade-school teacher.  Allegedly, the boy has suffered long-term effects from this, "including a facial tic that still appears when he discusses Grade 4."  Just a suggestion, folks, but I would encourage your boy to avoid law school.

Meanwhile, in Ottawa, the Supreme Court of Canada recently heard the appeal of a man who claimed that his life was ruined after he found a dead fly in a bottle of water.  Waddah Mustapha said that he saw the fly (and later, half of another one) in a sealed bottle in late 2001, and as a result suffered from "major depression, anxiety, specific phobias, and obsessional thoughts flowing from seeing the dead flies in the bottled water."

To make sure the public understood this was a serious matter, Mustapha told the CBC that this was not just any fly, it was one of the "blue-butts."  "We all know flies of that kind, with the blue butts," he said.  "They land on feces and dead rats on the side of the road and end up in the [bottled?] water.  This is a public health issue."  Mustapha did not actually drink any of the blue-butt-infested water, but the trauma allegedly ruined his sex life and his hair-salon business, and makes it difficult for him to shower.

The trial court found in his favor, despite admitting that his reaction was "objectively bizarre."  Because the nature of bottled water is to assure "purity and cleanliness," it held, it was foreseeable that psychiatric injury might result from finding a bug in it.  The court awarded him no less than $341,775.  It looked like he could finally afford that fly filter for his shower head, but the award was overturned on appeal.

This important matter is now being contemplated by the Canadian Supreme Court.

Link: National Post (Canada)
Link: Yahoo! News

Court of Appeal Upholds Right to Private Drunkenness

In a recent case, the California Court of Appeal definitively resolved a legal question that has long puzzled scholars:

If a man is drunk inside a woodshed, and leaves the woodshed only at the request of police, can he be guilty of being found drunk in a public place?

Answer: no.

A 17-year-old in Plumas County, California, a county with three stoplights and an unknown number of woodsheds, was charged with "disorderly conduct" after a deputy found him inside a woodshed near a house where a party had been reported.  By the time the deputy arrived, the house was dark but "noises" could allegedly be heard from within a nearby woodshed.  (The nature of the "noises" were not specified further.)

The deputy's flashlight revealed a minor who, as he admitted, was drunk.  "Deputy Beatley asked the minor to come out of the shed," and then out to the street, and, fatefully, "the minor complied."  Deputy Beatley then cited the minor for disorderly conduct.

At a hearing, the trial court ruled that the minor could be charged under the statute, which prohibits being "found in any public place under the influence of intoxicating liquor," if the intoxicatee is "unable to exercise care for his own safety . . . ."  Cal. Penal Code sec. 647(f).  After some discussion of whether the minor had been found in a public place, the court found that he had because he "apparently came out willingly.  There was no evidence that he had to be dragged out of the shed."  Appeal followed.

I.  The Woodshed Was Not a "Public Place"

Based on existing precedent:

• Public places: barber shops, the hallways of an apartment building, and front yards that anyone can just walk into.
• A not-public place: a front yard that was fenced in, gated, and into which the defendant "released three dogs."
• Possible gray areas: front yards containing fewer than three dogs; woodsheds.

The court found insufficient evidence that the woodshed in question was a public place.  In a sweeping decision, it held that "a woodshed needs no barrier to establish that it is not open to common or general use," thus affirming the common-law doctrine that a man's home's woodshed is his castle's outbuilding.

II.  The Minor's Compliance With the Request to Come Out of the Woodshed Changes Nothing

Second, the court rejected the People's argument that, even if the woodshed was private, the minor had voluntarily followed the deputy out to the public street.  The court could have dispensed with this, it seems to me, by just following the statutory language.  Here, the deputy "found" the minor in what the court had just ruled was not a public place, so unless he blacked out while the kid was walking to the street, he could not have "found" him again.  Hey, it says "found," not "observed."

But the court went further, apparently wanting to clarify that, under the law, it is irrelevant whether a defendant comes into the public place of his own volition or not.  To draw such a distinction, the court pointed out, would only encourage intoxicated persons to defy authority, something the court seems to believe is otherwise uncommon.  Judgment reversed.

If you want to go up to Plumas County to see the famous woodshed for yourself, now is a great time, according to Plumas County.  In "Plumas Buzz," the blog of the Plumas County Visitors Bureau, the authors note that conditions for outdoor tourism are wonderful, despite the fact that new statistics suggest the population density may actually be almost 9 persons per square mile, not 8 as previously believed.  Eighty percent of Plumas is national forest, of course, so solitude and the beautiful scenery is the real attraction.

Don't expect nightlife:  "March 13, 2008:  Can you believe it? Two accordions at two different events for this weekend!  Can it get any better than that?"

Link: In re R.K. (Cal. App. 3d Dist. Mar. 25, 2008).
Link: Plumas County official website

San Francisco Superior Court Is Victim of Hit-and-Run

Legal Pad reported yesterday that officials at SF Superior Court are trying to figure out who has to pay for damage to the courthouse apparently caused by a hit-and-run driver earlier this month.

Trust me, there is no point in trying to take out your frustrations on the building.  I have tried kicking it and that had absolutely no effect, except on my shoes.

According to the report, the court's chief executive, Gordon Park-Li, said that the damage appears to have been caused by a driver who "badly misjudged the intersection" of McAllister and Polk Streets, in front of the courthouse.  That would be some bad judgment -- it's not like the courthouse was actually in the intersection and got rear-ended or something.  This person missed the intersection entirely, went up over the curb and across the sidewalk and hit the building with enough force to cause $75,000 of damage to a stone building.  To me it seems more like a motion for reconsideration.

It's possible that somebody was late for traffic court, which as it happens is held on the first floor of the courthouse.  If so, again, bad judgment.

The claim has now been turned over to the building's insurer, but the incident is still being investigated.  Anyone who witnessed the accident, has any knowledge of it, or has seen a vehicle in the Bay Area with the words "SAN FRANCISCO" imprinted in its hood, is urged to contact the San Francisco Sheriff's Department.

Link: Legal Pad (photo by Legal Pad reporter Matt Hirsch)

Video Ruins Yet Another Workers' Comp Claim

How many workers' compensation claims have been proven false by a video showing the claimant doing something inconsistent with his claimed injury?

Well, it's probably a lot.  And now it's a lot plus one.

Garrett Dalton, 41, of Naugatuck, Connecticut, has been charged with workers' compensation fraud after he collected over $5,000 for an on-the-job injury he claimed took place sometime in June 2007.  Later that summer, however, while Dalton was still claiming to be too injured to work, he unwisely chose to enter a radio-station contest that required him to wear a dress, carry an egg balanced on a spoon, and run a 40-yard-dash in high heels.  He either did not expect to be recognized, or was unaware that TV cameras would be present.

Someone who apparently knew Dalton was then claiming to be fully disabled saw him on TV sprinting around in pumps, and called authorities.

Under Connecticut law, workers' comp fraud exceeding $2,000 is a Class B felony punishable by up to twenty years in prison.  If he gets no jail time, Mr. Dalton might be able to get his job back, but he might want to think about that.  Being charged with a crime after being caught wearing a dress and running around in high heels, trying to win a pair of Hannah Montana concert tickets, may make it a little difficult to be taken seriously as a prison guard.

Link: AP via FindLaw.com

"Pro-Life" Candidate Seeks to Appear on Idaho Ballot

Probably most Senate candidates from Idaho have been pro-life, but this one is Pro-Life.  Literally.

Mr. Pro-Life, 66, is a strawberry farmer who was born "Marvin T. Richardson."  He ran for the state legislature under that name in 2004, but got just 22.1 percent of the vote.  He then legally changed his name to "Marvin Pro-Life Richardson," planning to run for governor in 2006.  But that attempt was foiled by the Idaho Secretary of State's office.  Citing a state supreme court decision holding that ballots can only identify candidates and cannot include political slogans, state election officials, who apparently loathe the unborn, refused to let the new middle name appear on the ballot.

"I don't know why they're being so ridiculous," said Marvin Pro-Life Richardson at the time.  "Maybe they think I'll get a certain amount of votes and it would cause the election to go some way or another.  But I don't think that's going to happen."  It didn't.  Plain old "Marvin Richardson" got 7,309 votes, but that was only 1.62 percent of the total.

Richardson announced recently that he had legally changed his name again, so that he is now known only as "Pro-Life."  Deprived of the ambiguity they previously exploited in order to further their anti-life agenda, state officials have said their hands are now tied: Pro-Life must appear on the ballot.  In fact, he might appear on a lot of ballots, since Pro-Life says he is committed to running for the highest state office that is in play in each election, every two years, for the rest of his life.  (In this election, he is running for the Senate seat about to be vacated by Larry Craig.)  "I think it's just and I think it's proper to have Pro-Life on the ballot," he said.

But this battle of wits is far from over.  Opponents of Pro-Life, most of whom are pro-life, say they are concerned that pro-life voters may be confused by the presence of Pro-Life on the ballot along with other pro-life candidates.  If voters choose both, thinking a vote for Pro-Life is really a vote for pro-life, that ballot would be disqualified.  On Monday, the Legislature took up a bill that would add "(a person formerly known as ____)" to the ballot entry for anyone using a political slogan as a name.  That bill rocketed through the state Senate and passed unanimously that afternoon.   If it also passes the House, the new legislation may be in place for the upcoming election.  "This is ridiculous," said Pro-Life.  "I think it shows that we're a real debased kind of unintelligent society."

Pro-Life's platform is that doctors who perform abortions, and women who obtain the procedure, should get the death penalty.

Link:  CBS News
Link:  Idaho Press-Tribune

FBI Said Ready to Take Decisive Action to Protect Federal Officials From Noogies

On March 21, the Boston Globe reported that, after a year-long investigation by the Justice Department, the FBI has concluded that three FBI agents should be terminated for a noogie one of them delivered to a federal prosecutor in 2006.

In other news, the government evidently has people to spare from the search from Osama bin Laden, and/or those wanting to smuggle him nuclear material, in order to help defend our nation's noggins.

According to the Globe, the incident took place in the federal courthouse in Boston.  As a meeting between the agents and a federal prosecutor was concluding, one of the agents "came up behind her, wrapped his arm around her neck and gave her a Three-Stooges-style noogie," as it was described by the Globe's anonymous sources.  (The device-assisted noogie depicted here is no longer used, except at Guantanamo.)  Charges apparently followed.

It will come as no surprise that the noogie-deployer was male (FBI profilers say 97% are), but it is unclear whether the fact that the prosecutor was female explains the result.  The DOJ was investigating whether the incident was "foolish horseplay, bullying, or harassment," but the only conclusion reported was that the offender "acted inappropriately when he put his hands on the prosecutor."  (Why that conclusion took a year to reach is not entirely clear.)  Probably more important is the fact that the agents do not seem to have been truthful about what happened, which would mean that, as is so often the case, the noogie cover-up has turned out to be worse than the noogie itself.

There does seem to be something deeper going on here, but no one is talking about it directly.  At the  time, the noogie-giver was (believe it or not) the head of the Boston office's Organized Crime Strike Force.  Based on what I learned from "The Departed" - which I have seen twice - there has been some trouble with police corruption in Boston.  The Globe, digging a little deeper, recalled that the OCSF prosecuted gangster "Whitey" Bulger, whose former FBI "handler" is already in prison for conspiring with Bulger.  That whole business seems to have left deep divisions between the FBI and DOJ, which may or may not have affected the interpretation of the 2006 noogie incident.

Like bin Laden, Bulger's current whereabouts are unknown.  But the year-long investigation of the people they could find will reportedly result in termination.  As of March 20, the FBI said no one had been fired, but would not discuss the matter any further.  The agents would have 60 days to appeal.

Link: Boston Globe

Author Writes New "About the Author" Page, Then Writes About How It's New

Rather that just restate that headline again, thus wasting even more of your ever-dwindling lifespan, I will simply direct you to the "About the Author" link in the left-hand column, should you be inclined to read about the author.  The words there now are significantly different than they were last week.

Thanks again for reading.