Lawsuits causing swing sets to be removed from schools

[Eddie]

I have to say, if those are legit cases, that is truly unfortunate. If I was on the jury, I wouldn't give a trespasser a dime, "attractive nuisance" or not.

Those are legit cases, but they don't often make it to the jury. The costs of defense force many to settle cases that they could win at trial. Add to that the fact that juries are unpredictable. A jury might say: "He's a doctor, doctors are rich, it won't hurt him to pay that poor man some money. This happens a lot to the government and businesses at trial.

 

[downzero]

Those are legit cases, but they don't often make it to the jury. The costs of defense force many to settle cases that they could win at trial. Add to that the fact that juries are unpredictable. A jury might say: "He's a doctor, doctors are rich, it won't hurt him to pay that poor man some money. This happens a lot to the government and businesses at trial.

I think that's more of a criticism of the jury system than anything else. Personally, I'd never want to have a jury. Obviously if someone was suing me, and they demanded it, and were so entitled, they'd get it. But me personally? I have very little confidence in juries.

Idealistically, it seems so great to have a jury of "peers." If only that were true...

I once had a professor who is perhaps the world's leading expert on the jury. I think he still liked the jury system, so perhaps there's something good/amazing about it that I don't know.

 

[Expat]

Those are legit cases, but they don't often make it to the jury. The costs of defense force many to settle cases that they could win at trial. Add to that the fact that juries are unpredictable. A jury might say: "He's a doctor, doctors are rich, it won't hurt him to pay that poor man some money. This happens a lot to the government and businesses at trial.

Exactly right, the richer or better known the defendant the more dangerous it can often be to try a case. The other scary cases are when a child is involved. Of course children under 7 can not be negligent and there is a sliding scale above that. But if you have a badly injured or killed little kid and it is going to be awfully tough to try that case whether the defendant actually did anything wrong or not. And in the long run all of us pay for it. When schools, police departments or other governmental entities get hit, our taxes pay for it. If businesses or insurance companies get hit, then insurance premiums or prices go up. All of us have a dog in this hunt. We need tort reform, but all of us when called for jury duty need to take it serious and not look for a way out of it.

 

[dross]

To use the Dr.'s office scenario as an example, current practice seems to be to sue the doctor, the skylight manufacturer, the guy that installed the skylight, the architect who designed the building, the owner of the building, the property manager, the construction company that built the building, the drug manufacturer, the plant that built the table he landed on, the guy that sold the doctor the table, the cleaning lady and a couple of guys who happened to be walking by outside the night before.

And I am only exaggerating a little bit for purposes of humor.

Correct me if I'm wrong, Eddie, since I'm not a lawyer (but I play one on the Internet) but I think the reason for that, at least in Colorado, is that if you don't name everyone in the suit the defendant can argue that someone else should have been named and brought in, and I think that creates a way out. Does that sound correct?

I'm not a lawyer hater. In fact, I like lawyers in general. I think it's the system that's screwed up. If a system rewards some behaviors and punishes others, people will tend to go with what's good for them rather than what's good for society or even what's morally right. We can rail against it until the sharks swim home, or we can adjust the system to accomodate human nature. I'm for adjustments.

 

[downzero]

Exactly right, the richer or better known the defendant the more dangerous it can often be to try a case. The other scary cases are when a child is involved. Of course children under 7 can not be negligent and there is a sliding scale above that. But if you have a badly injured or killed little kid and it is going to be awfully tough to try that case whether the defendant actually did anything wrong or not. And in the long run all of us pay for it. When schools, police departments or other governmental entities get hit, our taxes pay for it. If businesses or insurance companies get hit, then insurance premiums or prices go up. All of us have a dog in this hunt. We need tort reform, but all of us when called for jury duty need to take it serious and not look for a way out of it.

What do you really mean by "tort reform"?

If, by that, you mean caps on compensation, I'd say that's a bad idea.

If you mean limiting the number of causes of action, I'd say that's a great idea.

 

[Bill of Rights]

I think that's more of a criticism of the jury system than anything else. Personally, I'd never want to have a jury. Obviously if someone was suing me, and they demanded it, and were so entitled, they'd get it. But me personally? I have very little confidence in juries.

Idealistically, it seems so great to have a jury of "peers." If only that were true...

I once had a professor who is perhaps the world's leading expert on the jury. I think he still liked the jury system, so perhaps there's something good/amazing about it that I don't know.

There certainly is something good and amazing about our jury system. That something is called jury nullification. The juror is the one person in our system of justice not subject to the pressures of re-election nor answerable to anyone at all save his own conscience. If, in a criminal case. there is but one juror who thinks the law itself is wrong... Say for example the David Olofson case, though I don't know if that actually went to jury... Had I sat on that jury, I can guarantee beyond a shadow of a doubt that he would not have been found guilty. Jurors are often misled, told that the judge will tell them the law and they are merely to hear and decide the facts of the case and whether they fit that law, but from the earliest days, jurors were expected to judge not only the facts of the case but the law itself. Mr. Olofson's actions might have violated the 1934 NFA, but that law should never have been passed, let alone allowed to stand for the last 76 years. Not guilty.

The downside to jury nullification is that jurors must be informed and know about it prior to entering the jury room, as they are often actively denied that knowledge once they arrive at the courthouse.

Expat: I should have stated that only one place I ever lived did not have a fenced back yard if there was a swingset there. Nonetheless, children do climb fences. Is a homeowner supposed to chain his swingset so that it may not be used in his absence? or is a parent actually expected to monitor his/her children's actions and behavior?

Yes, the doctor case I referenced was in fact a real case and the doctor did lose... I was asking if that was right, not if it was historical fact, and I gather you agree with me that while it is fact, it was not right.

The wrong suits, perhaps, but the solution, as with most things, is education, rather than preventing the same at the court level.



Blessings,
Bill

 

[dross]

The downside to jury nullification is that jurors must be informed and know about it prior to entering the jury room, as they are often actively denied that knowledge once they arrive at the courthouse.

Blessings,
Bill

The other downside is that people have been prosecuted for ruling against the law instead of just ruling on the facts.

Famous case here in Colorado. One of the least known and yet most tyrannical assumptions of power by the judiciary.

 

[SSGSAD]

Entitlement breads a lack of personal resposniblity. This is the mentality of America 2.0.

AMEN, to that.....

 

[Bill of Rights]

The other downside is that people have been prosecuted for ruling against the law instead of just ruling on the facts.

Famous case here in Colorado. One of the least known and yet most tyrannical assumptions of power by the judiciary.

The juror need only have said "Not guilty" and nothing more. I suppose the testimony of the others in the room could be used, but how the attorney didn't get this juror found not guilty is beyond me, unless the charge was contempt of court, for disobeying the judge's order. There are several quotes that come to mind:

Justice Samuel Chase: The jury has the right to determine both the law and the facts.

Justice Oliver Wendell Holmes, Jr.: The jury has the power to bring a verdict in the teeth of both law and fact.

Chief Justice John Jay: The jury has the right to judge both the law as well as the fact in controversy.

Thomas Jefferson: It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.

Thomas Jefferson: I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.

Justice Theophilus Parsons: If a juror accepts as the law that which the judge states, then the juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty.

Justice Theophilus Parsons: But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.

Chief Justice Harlan F. Stone: If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

Chief Justice Harlan F. Stone: The law itself is on trial quite as much as the cause which is to be decided.

and finally:

U.S. vs. Dougherty: The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...

The above quotes were found in less than ten seconds on Google. While quotes do not make law, those from our Founders (i.e. Mr. Jefferson, Mr. Chase) or from Supreme Court Justices, can be taken, respectively, as indicative of the Founders' intent and of the correct interpretation of the law. If this man was not found "not guilty", how did this case possibly stand to appeal?

Blessings,
Bill

 

[MTC]

The juror need only have said "Not guilty" and nothing more. ...

There are several quotes that come to mind:

Justice Samuel Chase: The jury has the right to determine both the law and the facts.

Justice Oliver Wendell Holmes, Jr.: The jury has the power to bring a verdict in the teeth of both law and fact.

Chief Justice John Jay: The jury has the right to judge both the law as well as the fact in controversy.

Thomas Jefferson: It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.

Thomas Jefferson: I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.

Justice Theophilus Parsons: If a juror accepts as the law that which the judge states, then the juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty.

Justice Theophilus Parsons: But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.

Chief Justice Harlan F. Stone: If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

Chief Justice Harlan F. Stone: The law itself is on trial quite as much as the cause which is to be decided...

...While quotes do not make law, those from our Founders (i.e. Mr. Jefferson, Mr. Chase) or from Supreme Court Justices, can be taken, respectively, as indicative of the Founders' intent and of the correct interpretation of the law.

Outstanding.

 

[hornadylnl]

My brother and I were screwed over to the tune of about $30k by a relative. The will stated that those expenses were to be paid by the estate. The relative representative skirted the laws (I believe she was coached by their lawyer) so that there wasn't enough money to pay the bills. Almost anyone looking at it can figure out what this relative did and it was wrong. My brother contacted a couple different lawyers. One wanted $200 an hour. I told my brother we wouldn't get in front of a judge for less than $10k. If our case got heard and we lost, we'd be out the $10k in lawyer fees plus the original $30k. Not worth the risk to me. What the relative did was technically legal but it clearly violated the intent of the will. I also believe the deceased person who wrote the will wrote it the way they did so as to make themselves look good but their intent was to do what actually happened.

 

[beararms1776]

Blame the parents. Kids get hurt on swingsets. To sue for something like this is bogus and takes from the kids in the long run. How would you like to have them as sue happy neighbors.

 

[Expat]

Blame the parents. Kids get hurt on swingsets. To sue for something like this is bogus and takes from the kids in the long run. How would you like to have them as sue happy neighbors.

There are people who almost make a living threatening to sue. Fortunately (part of me actually says unfortunately as I hate the continuing loss of our privacy) in our new computerized world, there are now databases compiling claims people make. So it can be informative to the jury that this is the 8th time this person has slipped and fallen on someone's parking lot.

 

[beararms1776]

There are people who almost make a living threatening to sue. Fortunately (part of me actually says unfortunately as I hate the continuing loss of our privacy) in our new computerized world, there are now databases compiling claims people make. So it can be informative to the jury that this is the 8th time this person has slipped and fallen on someone's parking lot.

For some people it's a way of life. When it comes to playgrounds, kids will be kids and at times they will get hurt. It's part of being a kid and learning.
I wouldn't give these leaches a penny.

 

[dross]

The juror need only have said "Not guilty" and nothing more. I suppose the testimony of the others in the room could be used, but how the attorney didn't get this juror found not guilty is beyond me, unless the charge was contempt of court, for disobeying the judge's order. There are several quotes that come to mind:

Justice Samuel Chase: The jury has the right to determine both the law and the facts.

Justice Oliver Wendell Holmes, Jr.: The jury has the power to bring a verdict in the teeth of both law and fact.

Chief Justice John Jay: The jury has the right to judge both the law as well as the fact in controversy.

Thomas Jefferson: It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.

Thomas Jefferson: I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.

Justice Theophilus Parsons: If a juror accepts as the law that which the judge states, then the juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty.

Justice Theophilus Parsons: But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.

Chief Justice Harlan F. Stone: If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

Chief Justice Harlan F. Stone: The law itself is on trial quite as much as the cause which is to be decided.

and finally:

U.S. vs. Dougherty: The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...

The above quotes were found in less than ten seconds on Google. While quotes do not make law, those from our Founders (i.e. Mr. Jefferson, Mr. Chase) or from Supreme Court Justices, can be taken, respectively, as indicative of the Founders' intent and of the correct interpretation of the law. If this man was not found "not guilty", how did this case possibly stand to appeal?

Blessings,
Bill

Juris Prudence - Page 1 - News - Denver - Westword

 

[downzero]

There certainly is something good and amazing about our jury system. That something is called jury nullification. The juror is the one person in our system of justice not subject to the pressures of re-election nor answerable to anyone at all save his own conscience. If, in a criminal case. there is but one juror who thinks the law itself is wrong... Say for example the David Olofson case, though I don't know if that actually went to jury... Had I sat on that jury, I can guarantee beyond a shadow of a doubt that he would not have been found guilty. Jurors are often misled, told that the judge will tell them the law and they are merely to hear and decide the facts of the case and whether they fit that law, but from the earliest days, jurors were expected to judge not only the facts of the case but the law itself. Mr. Olofson's actions might have violated the 1934 NFA, but that law should never have been passed, let alone allowed to stand for the last 76 years. Not guilty.

The downside to jury nullification is that jurors must be informed and know about it prior to entering the jury room, as they are often actively denied that knowledge once they arrive at the courthouse.

Expat: I should have stated that only one place I ever lived did not have a fenced back yard if there was a swingset there. Nonetheless, children do climb fences. Is a homeowner supposed to chain his swingset so that it may not be used in his absence? or is a parent actually expected to monitor his/her children's actions and behavior?

Yes, the doctor case I referenced was in fact a real case and the doctor did lose... I was asking if that was right, not if it was historical fact, and I gather you agree with me that while it is fact, it was not right.

The wrong suits, perhaps, but the solution, as with most things, is education, rather than preventing the same at the court level.



Blessings,
Bill

Did you write this post under the assumption that I wasn't aware of jury nullification?

Let's just say that I'll never be on a jury....because I'd be very clear about nullifying the law if I were ever called.

I'd also say, on an informal basis, law professors are opposed to the concept. It doesn't come up often, but every professor I've ever had who has mentioned it in class, has been critical of the concept, if not downright hostile (this includes my two undergrad professors who were law professors or had previously worked as one).

 

[MTC]

I'd also say, on an informal basis, law professors are opposed to the concept. It doesn't come up often, but every professor I've ever had who has mentioned it in class, has been critical of the concept, if not downright hostile (this includes my two undergrad professors who were law professors or had previously worked as one).

Can't have those peasants reading and thinking for themselves.
They must obey.

 

[dross]

Did you write this post under the assumption that I wasn't aware of jury nullification?

Let's just say that I'll never be on a jury....because I'd be very clear about nullifying the law if I were ever called.

I'd also say, on an informal basis, law professors are opposed to the concept. It doesn't come up often, but every professor I've ever had who has mentioned it in class, has been critical of the concept, if not downright hostile (this includes my two undergrad professors who were law professors or had previously worked as one).

I think it's an unconstitutional and illegitimate assumption of power to ask a potential juror if he will vote according to the law, when he has yet to hear the law applied to the facts of the case. That's a form of rigging the process. I will never make it clear what I know or don't know, and I will never indicate how I'll vote. If thief enters your house and asks you where the jewels are, you have no obligation to tell him the truth. In fact, it is perfectly moral and just to lie in such a circumstance. You don't have to say, "I refuse to tell you where my jewells are, to prevent telling him the location without a lie. The consequences would be harm to you. The same goes in the jury process.

"What a great idea - we're afraid a lot of people out there think that the law is unjust, or that it is being unjustly applied in this case's circumstances. Let's set out to prevent exactly those people from judging this case." There's a word for that - tyranny.

 

[downzero]

I think it's an unconstitutional and illegitimate assumption of power to ask a potential juror if he will vote according to the law, when he has yet to hear the law applied to the facts of the case. That's a form of rigging the process. I will never make it clear what I know or don't know, and I will never indicate how I'll vote. If thief enters your house and asks you where the jewels are, you have no obligation to tell him the truth. In fact, it is perfectly moral and just to lie in such a circumstance. You don't have to say, "I refuse to tell you where my jewells are, to prevent telling him the location without a lie. The consequences would be harm to you. The same goes in the jury process.

"What a great idea - we're afraid a lot of people out there think that the law is unjust, or that it is being unjustly applied in this case's circumstances. Let's set out to prevent exactly those people from judging this case." There's a word for that - tyranny.

It's obvious that you have far more confidence in the jury system than I do. Good for you, though. I'm idealistic about some things, but citizens nullifying the law? Unfortunately I don't place so much confidence in my fellow man--even though I do believe he can be trusted with liberty.

We have so many people locked up in this country, though, that it's completely out of control. I wonder if we'll ever learn?

 

[Indy317]

The way I see it, law school has become almost automatic for a lot of people. People pay upwards of $100K just to go to law school, and therefore they will need to make money somehow. I do think there are lots of silly lawsuits, and the system as it stands now is a complete joke: Slow, costly, etc.. Even the good lawyers, those who defend against the bs lawsuits are going to charge hundreds of dollars an hour...because they invested over $100K in schooling and have others needs/wants.

I am guessing that IU graduates at least 300 people from their Bloomington and Indy campuses each year. This would include December and May graduations. Hell, it may even be more like 400 for all I know. Then you factor in Notre Dame and Valpo law schools. We likely see, in Indiana alone, 400 new people with JDs every year. Think about it, 400 people who were trained in law. If they can't get a decent job in the field they want, they will do whatever it takes to make money.

I spoke with two law school grads last year, both said they wanted to work in x field, but there wasn't much work and given the economy, they would take whatever they could get. I can't necessarily blame them, but that attitude is destroying this country. Eventually you won't even want your kids friends over, for fear they would trip on a rug and their parents would be suing for $100K for a smashed finger.

With that being said, there are also other issues that have caused this run up in lawsuits. For starters, it wasn't a big deal just twenty years ago if a kid got hurt. Lots of companies offered health care, and it was usually cheap. The kid got a cast on his or her arm, and healed up. Now we have more and more folks who don't even have health care, and some folks must fork over tens of thousands before anything is covered under some plans. This type of lifestyle totally changes the dynamics of how most humans will react. $20K isn't that much money. The lawyer likely took around $7K, and for a broken arm, that could be a lot of money out-of-pocket depending on the parent(s) health care coverage.

I just see things getting worse in this aspect, especially with a bad economy.