Friday, August 7, 2009

Worst. Decision. Ever.

If you scroll through the posts on this blog, you may notice that, for a guy who has proclaimed himself "The Wizard of Laws." there are surprisingly few law-related posts. Maybe it's not so surprising, though, since posts about decisions or statutes can get a little esoteric and may not be readily accessible to some readers.

There are times, though, when the worth or worthlessness of a particular court decision is plain, even without the legal training I received at Mr. Jefferson's university. Today, I go back into the archives to bring you one such case, a 1998 case I consider to be the Worst Decision Ever.

Here are the facts: Tonya Brown and Anita Addison bought some snacks at Hampton's Party Store, located at the intersection of Saginaw Street and Russell Street in Flint. They went outside and Tonya used a payphone on the wall of the store while Anita stood nearby.

Enter Ruby Greer. Ruby was driving a car on Saginaw and tried to make a left onto Russell. She lost control and the car jumped the curb, went across the parking lot, and struck Tonya and Anita, who were severely injured.

Ruby, as it turns out, was fleeing the scene of an armed robbery and had been drinking and smoking crack in the hours before the accident. She had never driven a car before, did not have a driver's license, and, as the court described it, "drove south on Saginaw Street for a few blocks at an excessive rate of speed before the car crashed into Hampton's Party Store." Ruby pleaded guilty to felonious driving.

So, whom did Tonya and Anita sue? If you answered, "Ruby," you'd be wrong. If you answered, "Hampton's Party Store," you would be half-right. To win the big prize, you had to know they also sued MICHIGAN BELL TELEPHONE COMPANY. Of course! Isn't it obvious?

The plaintiffs' theory in Brown v Michigan Bell was that the telephone company was negligent in putting the payphone where it was, because the series of events causing their injuries was "reasonably foreseeable." In other words, Michigan Bell should have known that a drunk, high-on-crack, unlicensed, zero-experience driver might be going way too fast on Saginaw, jump the curb, and run into a party store.


You can't make this stuff up.

Naturally, Michigan Bell filed a motion to dismiss the case. The trial court denied it! Michigan Bell filed an appeal, which the Court of Appeals refused to hear! They then tried the Michigan Supreme Court, which sent the case back to the Court of Appeals with instructions to hear the appeal and decide it.

So, the Court of Appeals agreed with the trial court, affirmed the denial of Michigan Bell's motion to dismiss, and found that the accident was foreseeable and therefore Michigan Bell owed a duty of care to the plaintiffs.

No, I'm not kidding. It was a 2-1 decision, about which more in a minute.

The two-judge majority found that the accident was foreseeable because "Plaintiffs averred that a number of substantially similar accidents had occurred at or near the intersection by the party store and specifically listed eight such accidents. They averred that Michigan Bell knew or should have known of the frequency of the accidents at the intersection involving fixed objects. * * * As the trial court concluded, and we agree, it was foreseeable that an automobile could run off the road and hit the telephones."

Judge Henry Saad wrote the dissenting opinion. Here's his opening salvo:

As is common knowledge, there are many places in any city where pedestrians are clearly at risk if a reckless driver veers off the road. This is true whether one waits at a corner for a light to change or traffic to clear, waits at a bus stop or cab stand, stops to buy a paper from a paper stand or a hot dog from a vendor, or makes a telephone call from any number of locations. Most people would be very surprised to learn, as I am today, that the hot dog vendor, newspaper stand owner or telephone company is responsible in damages if an inexperienced, intoxicated, criminally reckless driver injures someone who stops to use the vendor's services. Though it is virtually impossible to predict (much less guard against) the wildly erratic driving exemplified by Ruby Greer, my colleagues in the majority impose such an unrealistic duty upon Michigan Bell.

Not stopping, Judge Saad continued:

Not only was the telephone booth in question clearly a reasonable distance from the streets, but plaintiffs' counsel conceded during oral argument that there had never been a car accident involving this telephone stand in its history. That there were car accidents in the vicinity is not terribly relevant because one would be hard pressed to find a major intersection in a city free of car accidents. What is troubling is the majority's unfortunate use of such common-place data to justify the imposition of a duty that, to my mind, violates, among other things, common sense. While I can understand the compassion that may motivate the majority, nonetheless, to shift the responsibility for this tragedy from where it truly belongs - on the impecunious criminal wrongdoer - to the innocent defendant with resources does violence to the law of negligence, which only imposes reasonable duties, and to the law regarding causation, which mandates the sensible conclusion that Ms. Greer caused this accident, not Michigan Bell.

So, there was no evidence that any accident had ever occurred involving the telephones on the party store. So much for foreseeability. In fact, the Michigan Supreme Court later agreed. Nine months later, the Court reversed the Court of Appeals and remanded the case to the trial court with instructions to enter an order dismissing the complaint. The Supreme Court stated:

The allegations within the plaintiffs' complaint, which focused on the general likelihood of a motor vehicle accident in the vicinity, failed to make a showing of the foreseeability of an accident involving defendant's phone stand. Defendants did not owe plaintiffs a duty to protect them from the unusual chain of events which led to their injury.

So, the Court of Appeals' decision lasted only nine months before it was put out of its misery by a one-paragraph Supreme Court reversal. Still, for its sheer foolishness, intellectual dishonesty, and modern liberal sophistry, the majority's opinion in Brown v Michigan Bell goes down as the worst decision ever.

Now, about those judges in the majority. Kathleen Jansen is still on the Court of Appeals, but Janet Neff has moved on. As part of a deal to break loose certain of his federal court nominations, President George W. Bush agreed to nominate Neff and Helene White to the federal bench. In exchange, Sens. Levin and Stabenow dropped their opposition to Bush's other nominations. So, Janet Neff now has a lifetime appointment as a judge on the U.S. District Court for the Western District of Michigan. That should help you sleep better at night.

On the plus side, Judge Saad is now the chief judge of the Michigan Court of Appeals. A ferocious litigator when he was in private practice, Judge Saad is now a feared and demanding presence on the appellate bench. I say "feared" not because of his demeanor, but because he is always prepared and extremely focused. Lawyers hoping to get his vote had better be ready to answer tough questions about their cases and their legal theories. We need more judges like Henry Saad.

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