I was cruising around Instapundit this morning, checking in on what the GrandMaster finds bloggable, and I came upon this link to a post on Classical Values weblog. Mr. Reynolds thought the case presented was tailor-made for a torts exam. Intrigued, I ventured forth to explore a world of which I know little.
The situation, as described in the story on Philly.com, the Philadelphia Inquirer website:
A New York truck driver who police believe was driving drunk struck and killed a Hamilton Township, N.J., man yesterday as he took a sobriety test after being stopped on Route 130 in Bordentown Township, police said.
When police stopped Shane Gildersleeve of Valatie, N.Y., less than a mile away, they found open containers of alcohol in the vehicle and charged him with driving under the influence, according to prosecutors.
An officer had stopped William F. Grieb, 34, of Hamilton Township, Mercer County, on Route 130 just after 2 a.m. on suspicion of drunken driving, according to Burlington County Prosecutor Robert Bernardi.
As the officer was giving Grieb a sobriety test at the side of the road, a tractor-trailer driven by Gildersleeve crashed into the police car, which then struck Grieb's vehicle, Bernardi said.
The officer was able to get out of the way but was unable to move Grieb, who died instantly, Bernardi said.
I started giggling when I began perusing the comments, which discussed who would and should be sued by whom and who's wallet would be biopsied to compensate the victims. I'm sorry, but I have a far too common sense approach to resolving these types of questions. One of my favorite comments came from The Sophist, who listed all those who could be sued. Here's the list:
1. Truck Driver
2. Truck Driver's immediate supervisor (for negligently allowing him to take the road)
3. Truck Driver's company/employer (under respondeat superior, as the Truck Driver was clearly in the course of his employment when accident happened)
4. Police Officer
5. Police Department (for failing to train the Officer adequately)
6. Police Department (for failing to set safer guidelines for pulling people over)
7. Whomever it was that sold Truck Driver the alcohol -- were they negligent in selling alcohol to a person who may have already been showing signs of intoxication?
8. Truck Driver's Truck Manufacturer -- you can never rule out product liability; perhaps the brake wasn't large enough, or the visibility poor out of the windshield.
9. Truck maintenance company -- if the truck had any mechanical problems whatsoever that was not properly addressed, we got something to go on here.
10. Police cruiser maintenance -- again, if the police car's lights were not as clearly visible as they could have been....
11. Whomever sold the Victim alcohol -- again, if they knew or should have known that the Victim was already drunk at the time of the sale of alcohol....
12. State of New Jersey/Township of Hamilton -- if the road in question was constructed in such a way as to make accidents like this more common than not (e.g., why not have barriers periodically in the pullover lane to discourage driving on it?), then we might have a cause of action here.
13. The engineer for the State/Township who designed Rte 130.
14. Obviously, all the big alcohol companies -- starting with the manufacturer of the brew/liquor that the Truck Driver had imbibed -- under the theory that they failed to warn adequately as to the ill-effects of alcohol. If it worked for Big Tobacco... why not Big Brew?
Pretty much mirrors my thoughts as I pondered it this AM. And The Sophist concludes "who says we don't need tort reform." Too many times I think the decision on whom to sue is made not based on who's responsible, but from whom can the largest payoff be gleaned.
So, here's the common sense solution to the problem. The victim, Mr. Grieb, got pulled over for suspicion of DUI by a cop who was doing his job, protecting other citizens from Mr. Grieb. The truck driver, Mr. Gildersleeve, was also DUI, which I'm quite sure is prohibited by the policy of the trucking company, the truck manufacturer, the police, the State of New Jersey, and, probably, Mr. Gildersleeve's wife.
So who's liable in the common sense solution? Only Mr. Gildersleeve. That's it. And I'm sorry if he doesn't have deep pockets. Brad, who has a law enforcement perspective, says:
As long as that officer was within policy, he should not be civilly liable. The "deep pockets" approach, is a complete crock, and why a lot of people have nothing but contempt for civil attorneys. Look for what caused the accident...I say hang his ass, and let the police do their damn jobs.
Agreed.
I run into this constantly as an orthopaedic surgeon. People fall down of their own accord, and their injury is under the liability of the location they fell.
Here's an example. Let's say a middle-aged woman has driven to a store and parked, during daylight on a dry day and in a well maintained parking lot. She walks to the store, but before getting there stumbles over a yellow-painted, well-maintained curb, only yards from a handicapped ramp that eliminates stepping up onto the curb, and falls, fracturing her shoulder. Who is liable? Would that change if the woman were morbidly obese, arthritic, and walks with a cane?
The common sense answer, IMHO: She is responsible for taking care not to fall, as the only active participant in the tragedy, and should have either been more careful or used the handicapped ramp. This is not the store's responsibility, as short of having a fleet of wheelchairs and employees in the parking lot to push them there is nothing they could have done to prevent the injury. It always astounds me (and quadruples my paperwork, without reimbursement) when in a situation like this the injured party and their attorney go after the store. The circumstance would change if the store's employee, who is scooping up carts from the parking lot, inadvertantly knocks her over. That so rarely happens as to be reportable.
Oh, and, by the way, as soon as the injured party goes after the store in a tort, I don't get paid for my work until it settles, if at all. And it can take years.
Of course, as McCoy used to say, "I'm a doctor, not a lawyer, Jim." I welcome any thoughts on this from lawyers, but I think if you vehemently believe I'm wrong then Sophist is right - we do need tort reform, and desperately.
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