September 09, 2004

Maybe Litigation Will Make Them Sorry

by PG

Despite my sympathy for the family profiled in this article, due to the tragic loss of their young daughter in a drunk driving accident, I cannot condone their decision to "Deliver Message Via Lawsuit," as the headline puts it. While I rarely call "Frivolous!" on cases that make it past the pre-trial motions, this does strike me as a case that ought not to have been brought, even if it is legally valid.

My first Torts session just ended, and I already disagree with the voiced majority opinion of the class that the loss in Hammontree v. Jenner should have been transferred to the epileptic man who caused the accident. Bammer v. Brecht strikes me similarly; the Bammers should not be "made whole" for the loss of their daughter through the monetary penalizing of the Brecht family, whose own child is in prison for a 10-year term on vehicular manslaughter. According to the article, "when the parents of the drunk driver who killed their daughter failed to express remorse, [the Bammers] got an attorney and sued." Both this and the desire to publicize the dangers of drunk driving are not the sort of purpose that lawsuits ought to serve. At least Hammontree sued in part because of the property damage caused, which could be remedied with compensation from the defendant.

In neither case do I see a moral responsibility in the defendant, nor do I see the defendant as having a more powerful position and thus far greater capacity to have prevented the injury than the plaintiffs have. Probably there is no strong legal basis for this feeling, but fortunately my Torts professor wants us to forget everything we know about the subject already and to speak on our raw intuitions of right and wrong, at least for the first few classes.

September 9, 2004 11:07 AM | TrackBack

The Bammer lawsuit is every civil defense lawyer's nightmare: a case which should be aggressively defended, and if it goes to trial, aggressively appealed, but which will settle because the client can't afford to do either for emotional, financial or other reasons. Negligent entrustment cases particularly bother me because they are so frequently baseless. I see them occasionally in my practice and they are usually tacked on to complaints by plaintiff lawyers almost as an after-thought. But not one was pursued beyond the pleadings.

Posted by: UCL at September 9, 2004 04:09 PM

I agree with you and I disagree with you (I guess I'll be called a flip-flopper).
The Bammer case is, IMHO, definitely a frivolous lawsuit. I'm not even sure what legal theory they were using to claim that the Brecht's had any liability and the Bammer's statements about their motivation make it clear that they were using the courts for something other than justice.
On the other hand, I can't agree with you on Hammontree v. Jenner. (Yes, I know that puts me on the losing side on both cases. So what!) I think a person who knows they have a medical condition that could cause them to lose control of their vehicle (and whose insurance company would also be aware of that fact) had a "far greater capacity to have prevented the injury" than people who were sitting inside a building. I believe the precedents were misapplied because those examples involved things completely outside the control of the defendent, of which they had no prior knowledge, and which are normal risks of all drivers. Those conditions don't apply in this case. I think driving under the influence of legal medications is a more applicable analogy. It isn't a crime unless it impairs your ability to drive but the public shouldn't bear the risk that you alone decide to take.

Posted by: Mojo at September 11, 2004 02:54 AM


while the defendent in jenner had a medical condition, it had been controlled for well over a decade. in terms of current treatment of epilepsy, one would have been taken of meds by that point, due to the incredibly low chance of a recurrent seizure.

as far as this new lawsuit, what a crock. who gets to decide what is the adequate showing of remorse.

Posted by: japhy at September 12, 2004 11:40 AM
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