Aluminum Baseball Bat Wrongful Death Verdict Upheld

The Missoulian reported Saturday on the decision of District Judge Katherine Seely to upohold a verdict in the wrongful death of an 18 year old American Legion pitcher, Brandon Patch.  Mr. Patch was struck in the temple and died 4 hours after the particularly viscious line drive to the head. The report summarizes the facts as follows:

"A district judge on Friday denied a motion by attorneys for Louisville Slugger to throw out a verdict that found the baseball bat company liable for the 2003 death of a baseball player during a game in Helena.  The company argued that the attorneys for the parents of former Miles City American Legion baseball pitcher Brandon Patch failed to produce evidence that, had a warning been given, Patch would have altered his actions to avoid injury. Patch died after he was struck by a ball that was hit by an aluminum bat.

His parents sued the company in 2006, alleging that an "unreasonably dangerous" metal bat caused his death and Louisville Slugger failed to warn of the dangers. In October, a jury sided with the Patches and awarded them $850,000. The jury said the bat was not defective in design, but the ordinary user was not properly warned of its dangers.

In November, attorneys for the bat company filed a motion for judgment [notwithstanding the verdict.] But District Judge Kathy Seeley denied the [motion] Friday.

'The Court finds that in this case the jury may properly have inferred from the evidence that a warning would have been heeded and the failure to warn caused the injury,' she said."

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Wow!  While my natural inclinations are to sympathize with personal injury plaintiffs the decision of Judge Seeley is certainly going to be appealed and do not be surprised if it is ultimately vacated. 

There are several issues that leap out of the report; and, always remember we are reading a news report written (in most cases) in these situations by non-lawyers not able to parse for us the legal issues inherent in a tort action let alone a "wrongful death, products liability" lawsuit.  Special rules apply, and some normal defenses may not be available because of the circumstances that are not fleshed out in this digest of the facts.  Still, the reaction in Bad Lawyer-land is how did this claim get to a jury?

As I discussed at some length last week while all states have their own common law and statutory law, most states follow to some degree or another the law of every other state as codified in the ALI, Restatements (in this case) Law of Torts. 

The scenario described in the Missoulian report would not get to a verdict in OurState or most of the states I've practiced, because of a law called "recreational use statutes" that provides immunity for injuries arising out of the intended use of recreational property, facilities, and equipment.  The recreational use statutes are intended to encourage the use of property, facilities and equipment by protecting owners, facilities, leagues, and manufacturers from liability.  To some extent there is also an echo of the older (and largely abandoned) doctrine of "voluntary assumption of a a known risk."  You see, Brandon and his American Legion teammates were using baseball bats to play baseball, "the intended use" of the equipment--that fact alone would usually immunize Louisville Slugger. 

But the verdict apparently turned on the failure of warnings and specialized qualities of Aluminum bats versus bats made of ash or otheer wood.  Attorneys for Louisville Slugger argued in their motion for Judgment Notwithstanding the Verdict (JNOV) that there was no evidence that Brandon or his teammates would have done anything different in response to a warning or disclaimer pasted on the bat that said baseballs hit by metal bats had a greater velocity or were more dangerous to persons struck by a ball. 

The Missoulian news report is reminiscent of the biography of former major league pitching sensation, Herb Score, who was an upcoming pitcher on the same staff as future hall of famers, Bob Feller and Bob Lemon.  Struck by a linedrive in 1957, Score spent his career in the Cleveland Indian's broadcasting booth instead of the pitcher's mound.

A Long, Long Time, Ago

The Dallas Morning News reports on the case of 30 year old Charles Ray Sempe who was busted for a pocket full of marijuana and jailed in the Dallas County jail because he didn't have the $200 bail.  Shoved into an overcrowded holding cell, he changed the channel on the television set and was killed by a blow from behind by an enraged cellmate.  Dallas County had turned its jails into profit centers, housing every miscreant they could lay their hands on from neighboring jurisdictions to derive revenue for the county.

Sempe's family sued (Chris Sempe holds a picture of his father in the accompanying image.)  Twenty years later, after every conceivable antic, er, delay pulled by the County's outside private (billable hour attorneys)--the wrongful death action is scheduled for trial in February. 

There is so much that is outrageous embedded in this story.  When a civil lawsuit is filed and languishes as this case did, and is carelessly and wrongly dismissed then reinstated and then delayed and delyaed--the law is made to look like an ass.  That defense attorneys involved in this matter have obtained hundreds of thousands of dollars from the citizens and ultimately may have nothing to show for it other than a perversion of justice--is outrageous. 

The Sempe case is literary, a man jailed for a minor misdemeanor killed for changing a television channel in an overcrowded jail cell, the sheer grinding of the jusitice system, children now adults seeking justice.  Good luck.

Sometimes Something Smells Fishy

As I've said before, I love bicycling and bicycles.  The pictured bicycle is a a very expensive carbon professional road racing bike made by the Pinarello Company of Treviso, Italy.  As equipped, this bicycle and bicycles like it will set you back a least a cool $10,000-plus.  Racing bicycles have special pedals called "clipless" that work with special shoes that ironically clip into the pedals.

So it's surprising to the shop owners when a customer rolls this bicycle into Revo Cycles of Dana Point, wanting the mechanic to install "flat" pedals.  The customer, dressed in shorts, no shirt, and flip flops was not exactly rockin' the "roadie" look either.  The mechanic Mike Mayefske installed the pedals and wrote down the bicycle serial number, suspicious that the purported owner was perhaps pedaling a purloined Pinarello.

A few calls later, bingo!  See:  http://www.bicycleretailer.com/news/newsDetail/3395.html  One other thing about expensive road bicycles, your tires are inflated through a "presta" valve versus the type of valve on most bikes (and cars) called shrader valves.  So the customer unsuccessfully tried to pump air into the tires at a gas station (a bad idea for many reasons) but was unable to, when he returned to the bike shop for an "air job" the stolen bicycle was recovered by the police who were alerted by the Bike Shop.  Get this, the mechanic stalled the hippy dippy customer with the ol'--this type of air compressor needs to warm up routine.

Similarly, the Las Vegas Sun  http://www.lasvegassun.com/news/2009/nov/16/5-arrested-in-attempted-nevada-bank-robbery/ is reporting that 5 men showed up at a Vegas area bank with a search warrant that entitled them to seize all the cash in the local Wells Fargo bank vault.  The dubious bank manager refused to honor the warrant despite being handcuffed--and there are now 5 thwarted would-be bank robbers in custody.

Shortly after I became a lawyer, a distraught family, all adult children, came to the office because their father, a NASA engineer had died in a swimming pool while on his second honeymoon with his new wife who was half his age.  Funny thing was Dad never swam a day in his life.  Dad had never taken a swimming lesson, and except for the shower, Dad had an aversion to water.  Our office was the fifth law office they visited seeking some help, no one listened to them.  Hell I wasn't exactly burning up the legal profession at that point in my life, (or for that matter at this point in my life) so I listened to them.  Turns out, new wife didn't kill Dad as my clients suspected but when we got the records from Florida as part of our investigation, the ambulance report reflected something of tremendous interest. The EMTs reported standing at poolside, unable to make out the body of this African American just below the surface.  Dad who must have been secretly taking swim lessons, or, more likely, emboldened by a sudden shot of testosterone--drowned disoriented in the hotel pool.  The autopsy showed no drugs, no alcohol, no trauma, no evidence of foul play.

Being the sharp-witted intake associate, I received a $1,000 bonus out of the multi-million dollar wrongful death settlement shared between the family, new mom, and the attorneys.

Judge Not, Less You Be Judged: the Cops can fill you with Lead!

Bad Lawyer went to law school with a bunch of smart boys and girls.  I noticed that the really smart gurrrrllll, who became a US District Judge was bawled out by the Sixth Circuit Court of Appeals, yesterday, for "exactly the sort of theoretical speculation that the courts are prohibited from engaging in." Judge Kate O'Malley wrote a 54 page opinion refusing to throw out the civil lawsuit filed by Brandon's relatives.  Judge O'Malley "speculated" that jurors just might think that the cops were slightly excessive when they filled poor 15 year old Brandon McCloud with lead.  See, Dorothy Chappel v. City of Cleveland, CA6 08-4456  see: http://www.ca6.uscourts.gov/internet/index.htm.

The facts of this case are just...well, reasonable men and women, "speculate" for yourself.

Brandon was in his bedroom, the cops were in the home searching for evidence relating to the robbery of a pizza store.  Brandon was hiding in his room with a matress set up to block the door.  He had a knife in his hand.  The cops had 9 millimeters.  Brandon was on one side of the mattress, the cops the other.  Brandon did not lunge or otherwise attack Cleveland's Boys in Blue, but Brandon also didn't drop the knife quickly enough according to the cops.  Cleveland's finest pumped 10 rounds into the former-fifteen year old.  

The US constitution has this not very important provision, well not nearly as important as the right to bear arms, but well it's the Seventh Amendment it goes something like this :   In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.  When Judge O'Malley was "engaged in impermissible speculation" she was making a decision in a FRCP Rule 12(b)(6) proceeding that implicated this little known constitutional right.

Bad Judge!