Published By: Maxwell S. Kennerly, Esquire

Premises Liability

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Caitlin Flanagan’s “The Dark Power of Fraternities” at The Atlantic, an exposé of the “endemic, lurid, and sometimes tragic problems” that plague fraternities and how they avoid liability, is a fascinating and essential read. It’s one of the most thorough reports in recent memory of how powerful, wealthy interests insulate themselves from accountability for the harm they cause to individuals.

Before we get to the substance, the manner of Flanagan’s reporting deserves special mention. Rarely do press reports about the civil justice system give it this type of realistic, balanced treatment. Most reports treat the civil justice system as a spectacle that sometimes involves large sums of money, like a television game show, with trial lawyers filing lawsuits at random, corporate defendants who always acted in good faith paying to avoid jackpot justice, and a jury making up an answer based on junk science and sympathy. Surely we can’t take anything from the civil justice system seriously to inform our views on important issues of the day.*

Flanagan, however, appropriately portrays the civil justice system as the way our society determines responsibility for harms. It’s often the best way – sometimes the only way – to discover systemic threats to people’s safety. Civil liability is also typically the primary incentive corporations, associations, and vested interests have to reduce the risk of harm to others.

What Flanagan found when she looked at lawsuits brought by undergraduates for injuries while at school should cause any parent and future college student to think twice about the true meaning of campus safety: 
Continue Reading The Fraternity Mindset: Why Be Responsible When You Can Dodge Responsibility?

As a Yale alum, I was shocked and horrified by the death of Annie Le, a Yale School of Medicine student murdered just a week before her own wedding. Like the Petit family murders, the crime was just a depraved act by a stranger, despite attempts by some to downplay it as a “crime of passion” or “workplace violence,” as if any rape-murder were less evil if the perpetrator had delusions of attachment at the time of the crime or if they happened to be employed by the same company. She was targeted and it was murder; we know that from the guilty plea. It may have been sexual assault, too; Raymond Clark submitted an Alford plea to that.

Last week, just before the statute of limitations for negligence would run, Le’s estate filed a wrongful death lawsuit against Yale:

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harrassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

The complaint is here. While I can understand why the estate’s lawyers, Joseph Tacopina (Greenfield, who knows him, has a bit more about him here) and Paul Slager, want to tie Le’s death to the Title IX problems at Yale and thereby generally show university indifference to women’s safety, I don’t see that serving as enough of a factual basis for an independent legal claim. There’s no clear causal connection between Yale’s sexual harassment / sexual assault policies and Le’s death; as far as I’ve seen, Le never filed any sort of sexual harassment or sexual assault claim at the school, so it’s hard to claim that, if those policies had been better, she wouldn’t have been murdered.

Although there’s technically an inadequate security claim in there arising from the security of the building and the failure to search for Le, I don’t see the causal connection there: from all accounts, it seems that, if they had searched earlier, they just would have found Le’s body earlier, rather than preventing the attack.

The strongest claim is predicated on the hiring of Clark himself, and that claim has a bit more behind it and a much closer connection to her death:

The complaint alleges that Yale was negligent in its screening of Clark, who had shown “a violent propensity towards women” before he was hired in 2004. As police began to investigate his possible involvement in Le’s death in mid-September 2009, the New Haven Independent reported that Clark forced his high school girlfriend to have sex with him when they were students …

In addition to Clark’s records, the suit alleges Yale had access to information about Clark’s violent past because the University also employed Clark’s sister and brother-in-law as laboratory technicians in the 10 Amistad St. building where Le was killed. Those two employees were both “well aware” of Clark’s past behavior given their relationship to him, the suit claims.

This sort of negligent hiring claim isn’t novel. The primary case in that field is Ponticas v. KMS Investments, 331 N.W.2d 907 (Minn. 1983). It wasn’t the first, but it’s probably the most frequently cited, and it set the path for tort liability where an employer is alleged to have negligently hired a dangerous or incompetent person:

Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.

Connecticut’s appellate court has already adopted the same theory in Seguro v. Cummiskey, 82 Conn.App. 186 (2004):

A review of case law in other jurisdictions reveals that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party. See, e.g., Island City Flying Service v. General Electric Credit Corp., 585 So. 2d 274, 276 (Fla. 1991)(“employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others”); Henley v. Prince George’s County, 305 Md. 320, 336, 503 A.2d 1333 (1986) (employer has duty to use reasonable care to select employees competent and fit for work assigned to them); Ponticas v.K.M.S. Investments, 331 N.W.2d 907, 910 (Minn. 1983) (“person injured by a negligently retained employee may recover damages from the employer”); Di Cosala v. Kay, 91 N.J. 159, 170-71, 450 A.2d 508 (1982) (“employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees”); Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 346 (R.I. 1994) (recognizing “`direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or unsuitable employees’”); Welsh Mfg. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984) (“employer may be directly liable for wrongful acts of its negligently hired employee”); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208-209, 372 S.E.2d 391 (1988) (recognizing tort of negligent hiring).

Unfortunately, it looks like a hard sell for the Le estate.
Continue Reading Examining The Annie Le Wrongful Death Lawsuit Against Yale University

Read more about child abuse lawsuits.

The Inquirer has an interesting article about Parx Casino and its “dubious distinction of being the only gambling hall in Pennsylvania where adults have been caught leaving children in vehicles parked outside while they gambled inside”:

In the last 17 months alone, Parx – Pennsylvania’s top-grossing casino – saw 10 individuals arrested on its property and charged with endangering the welfare of children left in vehicles while the adults gambled inside.

In just the last week: Michael Roytman, 29, of Huntingdon Valley was charged with leaving his 6-year-old daughter in his car in sweltering heat and was jailed after failing to post $75,000 bail; Frances Casey, 39, of Abington, was charged in connection with leaving two nephews, ages 1 and 2, and a 9-year-old niece in her automobile July 16. She is to be issued a court summons.

Parx is taking action on the matter, said casino spokeswoman Carrie Nork-Minelli.

“This is the action of irresponsible adults, and we do our best to combat it with the highest level of security and surveillance possible,” she said. “We’ve added additional security teams and patrol units – that are not required by the Gaming Control Board – to help with this type of deplorable activity.”

But the most recent incidents have occurred despite those stepped-up measures.

It’s a serious problem; about fifty children die every year because they were left unattended in a car.

The article is titled “Should Parx Casino be liable in child-neglect cases?” but the article is more about the Gaming Control Board’s review of the situation rather than about Parx’s liability for those incidents, and to my knowledge no lawsuits have been filed alleging as much. Casinos’ primary legal liability tends to involve slip-and-fall cases or liquor liability, but, if the Parx trend continues, we might see lawsuits arising from these issues, so let’s consider the question anyway.

As the casino’s spokeswoman said, it is, of course, “deplorable” and “irresponsible” for parents to knowingly leave their children unattended in cars while they go gamble, and the parents are primarily responsible for the harm, but that doesn’t necessarily mean the casino isn’t also responsible for the problem.Continue Reading Parx Casino’s Potential Liability For Children Left Unattended In Cars

At the Fulton County Daily Report:

For $95, plaintiffs lawyers can buy a book that teaches them how to appeal to jurors’ basic survival instincts, those that emanate from humans’ “Reptilian” brains. …

But in a DeKalb County wrongful death trial last month, [Plaintiffs lawyer Don] Keenan found that defense lawyers will also buy the book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” — and use it against him.

Representing a movie theater and a security company accused of not doing enough to prevent a fatal gang shooting in the theater parking lot, W. Winston Briggs and Matthew G. Moffett read from the book and referred to it during closing arguments.

One of their PowerPoint slides read, “Let’s see if we can scare them/It could have been anyone killed out there … because it’s a public danger there … but if you give us $ that will somehow eliminate this danger/They call this their ‘reptile’ strategy.”

The jury rendered a defense verdict.

Here’s what I don’t understand: how is a book written by the plaintiff’s lawyer relevant to the facts of the case?

The Georgia Rules of Evidence provide:

Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.

The jury wasn’t asked their thoughts and feelings about Mr. Keenan’s advocacy methods. They weren’t compelled, by force of the state, to leave their work and their families to render a verdict on the Reptile book. They were there because, as the article says, “21-year-old Jesus Silencio was shot to death in the parking lot of the Regal Hollywood 24 movie theater on Interstate 85” and his father, on Mr. Silencio’s behalf, brought suit against the theater and its security company.

Reptile has nothing to do with those facts. If the book suggests lawyers do anything inappropriate, that, too, is irrelevant: if a lawyer uses improper advocacy methods at trial, the judge will give corrective instructions to the jury or, if need be, declare a mistrial.

The case was about, and should have remained about, Mr. Sliencio’s claims against the theater. Somehow, it became a referendum on Mr. Keenan, and an unfair one at that. Was Mr. Keenan allowed to show the jury how many times the defense lawyers have been threatened with sanctions for spoliating evidence? Could he have copies of all the seminars at the Defense Research Institute that the defense lawyers attended? Was he allowed to introduce evidence establishing how insurance companies — including the Defendants’ insurer, the real party at interest — spend millions every year on propaganda to taint juror’s perceptions of the civil justice system?

Or were the defense lawyers allowed to cast stones from their glass houses?Continue Reading Why Was The “Reptile” Trial Advocacy Book Admitted Into A Wrongful Death Trial?