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"Litigious Terms, Fat Contentions, and Flowing Fees"

The Victims of Bad Things

by CHRISTOPHER BRAUCHLI

The endless question in America is whom to blame when bad things happen and the question is asked beginning at an early age.  Any present or past proprietor of a small child knows that when any thing bad happens the child’s first response is that someone else is responsible and that attitude accompanies the child into adulthood and helps make the legal system what it is today. (The child only learns later in life that a bad thing can be made less bad if the child receives money as a result of the event.) There are countless examples of individuals blaming others for their misfortunes.  Stella Liebeck is an example of this.  She spilled hot coffee onto her lap following its purchase from McDonalds and did not think that the fault lay with her for having spilled it but with McDonalds for having served it so hot that it burned her when she spilled it.  Her claim against McDonalds was ultimately concluded in a confidential settlement with the company.

Frequently, the victim of the bad thing tries to assert that the fault lies with a remote party rather than the person who could actually be responsible since the remote party is wealthier than the responsible party.  Mary Danielle Gann had the misfortune to be celebrating a birthday in a bar that the court said was “known for its violence.” While in the bar she was assaulted by a patron wielding a “longneck” beer bottle.  A long necked beer bottle can conveniently be converted from beer container into lethal weapon by grabbing the long neck and attacking others with the container part of the bottle.   The assaulter struck Mary in the face resulting in permanent scarring.  Being blameless, and confronted with a not particularly wealthy assaulter, she sued Anheuser Busch because it sold beer in long neck beer bottles instead of stub nosed bottles or cans that would be harder to convert into weapons.  The court concluded the plaintiff’s theory was nonsensical and, using more formal language, threw the case out.

A bad thing also happened to Elizabeth Loyd.  She sued the perpetrator of the bad thing.  She was sitting at a picnic table near a fenced-in bullpen at a Little League game and was hit in the face by a baseball thrown by an 11-year old participant.   She is suing the little boy for  $150,000 to cover medical costs and an undetermined amount for pain and suffering.  (Had she received better legal advice she would have sued the manufacturer of the ball since had the baseball been made of a squishy material she would not have sustained an injury. The baseball manufacturer might also have deeper pockets than the 11-year old.)  Another example of suing the deep pocket rather than the perpetrator comes from Colorado.

suit has been filed by two of the people injured when a crazed former university student opened fire in a darkened theater killing 12 people and injuring 5. The act was horrific and the person that one would first think of suing in such an instant would be the gunman. He, however, is penniless and a suit against him, though appropriate, would provide the victims with no compensation.  Accordingly the plaintiffs have sued the owner of the movie theater for damages.  It would not occur to someone not trained in the law, to think the owner of the theater, who had no idea the theater would become the site of a massacre, should have taken steps to prevent what was plainly unforeseeable.  Most movie theaters hire young people to sell snacks and take tickets and it is certain that they receive no instruction on what to do in case of a massacre or other act of violence within the theater (other than what is on the screen) Nonetheless, the suit faults the company for those failures as well as not having security personnel in attendance and not having first-aid and evacuation plans in place.  It also says the theater was culpable for not having an alarm on the exit door that the gunman used to go in and out of the theater and observes, in an aside, that the movie continued to play and the theater remained dark while the shooting was taking place.

If the suit is successful the response may be for theater owners to introduce into theaters some of the security measures found in airports. Off duty TSA personnel will welcome the opportunity to earn some extra money.  For the rest of us, going to the movies will become a different experience.  Whether one massacre requires such changes others can decide.  Some might conclude that, horrific as it was, it is a tragedy for whose victims recompense from the responsible party is unavailable and attempting to blame the theater owner does little more than cast a bright light on the Americans’ attitude of trying to make others pay for unforeseen terrible things that happen to them.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.