Legally Speaking: The civil injustice system

By John G. Browning | May 25, 2012

In many states, including Texas, there are two aspects to our civil justice system that guard against wildly disproportionate blame for the tortious conduct of others.

In many states, including Texas, there are two aspects to our civil justice system that guard against wildly disproportionate blame for the tortious conduct of others.

First, over time a body of law has developed that limits how much, if any, fault you can place on someone for the criminal conduct of a third party who is truly to blame for injuries to someone else. When a vicious criminal breaks into someone's house and rapes and murders the wife, should a civil lawsuit later on try to place more blame on the convict who actually committed the crime (and who is likely to be judgment-proof) or the makers of the home alarm system that may or may not have functioned properly?

When someone is assaulted in the parking lot of a large retailer, plaintiffs lawyers want to focus blame not on the actual criminal actor—there's no money in that. They want to focus on the deep pockets of the business and/or the property owner and their insurance carriers, because that is where the money is.

Over time, courts have developed a body of jurisprudence that limits the circumstances under which someone can be faulted for the criminal actions of another. Was it reasonably foreseeable that such an act might occur, based on any history of other crimes at that location? Should the business have had a duty to provide better security, better lighting, or more warning to its patrons? On the other hand, to what extent can any of us anticipate someone else's criminal behavior, much less pay the price for it?

The law in Texas and elsewhere has looked at this and drawn some brightline boundaries.

Another way in which Texas and other states have limited the sharing of blame is through a system of comparative negligence. In Texas, a plaintiff who is more than 50 percent at fault for his/her own injury is barred from any recovery. If you're a plaintiff who is partially (but not mostly) to blame, then your recovery is reduced by the percentage of your own negligence, as found by the jury.

So, if you are in a car accident and recover $100,000 but are found to be 20 percent at fault, your damages award is reduced to $80,000. Such systems of "comparative fault" help to temper the sympathies that a jury might feel for an injured party with a healthy dose of common sense, so that we don't have parties bearing a disproportionate share of the fault, especially for some event or some action that they can't reasonably anticipate.

But such systems, as adopted by the democratic will of the people acting through their elected representatives to the legislature, are only as good as the courts that will follow them.

A recent case from the Indiana Court of Appeals, Santelli v. Abu Rahmatullah, individually and doing business as Super 8 Motel, illustrates this.

Mary Santelli's husband James was a paying guest of a Super 8 motel owned by Rahmatullah in October 2005 when he was murdered in his motel room during the course of a robbery. Joseph Pryor, a former maintenance man at the motel (who had kept a master keycard when he walked off the job), confessed to killing Santelli and is behind bars, serving an 85-year sentence.

In 2007, Santelli's widow brought a civil lawsuit, claiming that the motel owner had been negligent in hiring Pryor and in its motel security. The jury awarded over $2 million to Mary Santelli, and under Indiana's Comparative Fault Act, it assessed 1 percent of the blame to Santelli himself, 2 percent to Rahmatullah, the premises owner, and 97 percent against the murderer Joseph Pryor. Pursuant to the statute, the plaintiff would recover $41,400, or 2 percent of the $2.07 million in damages.

For the judicial activists on the Indiana appellate court, that simply wasn't good enough. Although they acknowledged that Santelli's death arose from both an intentional criminal act by Pryor and some negligence by Rahmatullah, and that Indiana's system allows for fault to be allocated to an individual committing an intentional criminal act, such a result wouldn't put much money in a widow's pockets.

So, citing "public policy considerations" in favor of adequately compensating someone who's been injured by a criminal defendant likely to "be both judgment proof and without insurance coverage," the Indiana Court of Appeals sent the case back to the trial court. The appellate court even said that their ruling would "better enable the jury to make its determination in a manner that will carry out the goal of adequately compensating the injured party."

Seriously? A jury's job is to dispense justice, based on the facts and the evidence, not to realign wealth. There isn't a right for every wrong.

The Indiana appellate court acknowledged that it was acting contrary to a jury that heard the case, as well as Indiana's own legislature who had passed the Comparative Fault Act and an Indiana Supreme Court that had previously interpreted the Act.

Courts are there to impose the law as it is, not as the judges think it should be. Justice should be meted out based on the facts, the evidence, and the law, not on who is in a better financial position to bear a loss.

This sort of "redistributive justice" may have suited Stalinist Russia, but it doesn't belong in 21st century America.

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