SE Texas Record

Wednesday, July 17, 2019

Legally Speaking: Don't Say I Didn't Warn You

By John G. Browning | Aug 31, 2010

When I look at some of the lawsuits being filed nowadays, I see certain elements of a Wild West mentality: claim anything you want, regardless of how ridiculous or unsupportable it sounds.

Maybe you'll get poured out on the sidewalk by a no-nonsense judge or a jury with its collective head screwed on straight, but just maybe your common sense-defying allegations will be warmly received and you'll get the legal system's equivalent of a golden ticket.

People ask me all the time why some individuals file what seem to be perfectly frivolous lawsuits, and I tell them it's the same mentality that keeps people flocking to casinos even when they know the odds are stacked in the house's favor.

Greed, combined with more hope than reason, is a powerful source of motivation.

Take, for example, the lawsuit filed against a company called KatachiSF Inc. in San Francisco Superior Court on June 28. I don't have all the facts of the case, admittedly, but the summary that accompanied its filing appears to give us the highlights of the story.

It's a personal injury lawsuit, brought by a plaintiff who says the store should've warned him that playing with a sharp sword displayed there might result in him slicing his hand open as he tried to replace it in its scabbard.

In essence, the plaintiff is saying "You failed to warn me that something sharp could cut me."

Should a store really have to warn people that sharp things can cut you? If you're an adult who needs to be warned about something as open and obvious as that, get used to being on the receiving end of life's bumps and bruises (and cuts, for that matter).

And for goodness sake, don't draw attention to your own lack of common sense by filing a lawsuit.

Another failure-to-warn case was filed in federal court in Georgia in 2009 by Steven Morris against Harley-Davidson Motorcycles. Mr. Morris was involved in a crash on his Harley Ultra Classic that injured him and claimed the life of his wife.

Morris claims that Harley-Davidson failed to adequately warn him that overloading the motorcycle could be dangerous and affect the bike's stability and handling

Let's look at how the iconic American motorcycle maker supposedly failed to warn Morris: The owner's manual for the bike cautions the user that exceeding the motorcycle's Gross Vehicle Weight Rating (GVWR) of 420 lbs. over its curb weight can affect the motorcycle's stability and handling, and that in turn can result in death or serious injury.

Just in case there's any confusion, the owner's manual includes a plain English explanation that GVWR means that the bike only has an additional 420 pounds of weight capacity for the rider, any passenger, cargo and any accessories.

And, in the event that the user doesn't consult the owner's manual, Harley also puts the GVWR on an information plate on the frame steering head.

If that's not enough, Harley-Davidson also puts a warning inside the storage compartment on the Ultra Classic's back end, just behind the passenger seat. This warning reminds the user that overloading with too much weight can cause a loss of control and lead to death or serious injury.

Finally, the owner's manual also states, "Do not pull a trailer with a motorcycle. Pulling a trailer can cause tire overload, reduce braking efficiency and adversely affect stability and handling, which could result in death or serious injury."

So, in light of all these warnings, what did Mr. Morris do?

First, despite all of these warnings, he was pulling a trailer. And, the 250-pound Morris (who claims he never read the owner's manual) was riding with his 204-pound wife as his rear passenger (apparently, neither reading nor simple math are high on Morris' list of priorities).

But when Harley-Davidson filed a motion seeking to dismiss Morris' failure-to-warn claims – pointed out all of these ways and more in which it communicated such cautions – the judge denied it, and allowed the case to proceed.

The court found that a reasonable juror could conclude that Harley didn't place its warnings where the user would be likely to see them; therefore, a genuine question existed over the adequacy of the motorcycle company's warning. The only "evidence" that the plaintiff could come up with that the warnings weren't adequate was that he didn't read them.

What more could a company like Harley-Davidson do beyond putting all of these warnings in its owner's manual and also on the bike itself?

At some point, people simply have to accept responsibility for themselves, and not be permitted to shirk such responsibility by failing to read the warning labels slapped all over a product or its accompanying owners manual.

Another lawsuit that makes no sense to me is the lawsuit filed by the family of Matthew Johnson in Clark County, Ill., this month. The 21-year-old Johnson died on August 10, 2008, when he fell from a train trestle that he and three friends had climbed in order to jump from into the perhaps aptly-named Mad River.

Johnson and his friends had come upon the trestle while paddling a canoe they rented from Aaron's Canoe and Kayak Center.

Although his foolhardy friends were able to jump off the trestle as a train approached, Mr. Johnson tried to outrun the speeding locomotive but – surprise! – was unsuccessful.

Johnson's family claims that the railroad was negligent for not equipping its trains with safety devices that would enable it to stop in the event of such daredevils on the tracks (an anti-idiot device, perhaps?); that the train conductors "failed to timely and effectively stop the train;" and that the canoe company "knew or should've known that individuals frequently went onto the train trestle and jumped into the Mad River."

Let me get this straight – these plaintiffs want a bunch of money because their 21-year-old son watched too many episodes of MTV's "Jackass" and belatedly discovered that he wasn't faster than a train? And somehow the canoe company owners should have psychic powers and anticipate that people are going to pull ridiculous, reckless stunts? Give me a break.

Finally, we come to another case that makes no sense to me. On Aug. 17, 2006, 57-year-old retired Glen Cave, N.Y. schoolteacher Denise Fox was murdered, decapitated and dismembered by Evan Marshall, the 31-year-old son of Fox's neighbor, Jacqueline Marshall.

Evan Marshall pleaded guilty to first-degree murder in 2007, and was sentenced to 30 years to life in prison.

In 2008, Fox's husband and her two children filed a civil lawsuit against Jacqueline Marshall and four dozen other defendants, including the substance abuse and psychiatric facility that had issued Mr. Marshall a weekend pass.

Among other claims, the Fox family contends that Ms. Marshall failed to properly notify her neighbors of her son's weekend release (which Marshall insists was unexpected).

Putting aside the question of whether someone's mother should be held liable for the criminal actions of her adult son, we turn to Ms. Marshall's reaction to being sued.

She went to her homeowner's insurance company, State Farm, which agreed to defend her (in many states, including Texas, an insurance carrier's duty to provide its policyholder with a legal defense is a broad one, and doesn't necessarily mean that they will pay for any judgment or settlement). Marshall also approached Metropolitan Property and Casualty Insurance, with whom she had an additional $300,000 in "umbrella" coverage.

Metropolitan, however, pointed out that its policy with Ms. Marshall covered only "accidents" resulting in personal injury or property damage, not someone's intentional acts.

The company filed a separate lawsuit, asking a court to declare that, under its policy, it had no such duty to defend or indemnify Ms. Marshall.

However, Nassau Supreme Court Justice Randy Sue Marber ruled that Metropolitan was obligated to defend Marshall. She reasoned that an "accident" has to be viewed not by any objective standard, but from the point of view of the policyholder.

If it was "unexpected, unusual, and unforeseeable" to Ms. Marshall, according to Judge Garber, then the insurance company should pay – and since Marshall couldn't foresee that her son would murder her neighbor, the crime must have been an "accident."

By that sort of reasoning, any intentional act (including a gruesome crime) could in fact be considered an accident for which the insurance company should pay, as long as the policyholder didn't expect it.

People ignoring warning labels and their own duty to look out for themselves, claimants who feel boat rental operators should be mindreaders, and judges who consider murders to be "accidents": with anything-goes, Wild West mentalities like this, maybe we need some new sheriffs in town.

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