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This week's Legal Currents column, which is published in The Daily Record, is entitled "The lawsuit that shoulda, coulda been" The article is set forth in full below, and a pdf of the article can be found here.
My prior articles can be accessed here.
The lawsuit that shoulda, coulda been
Nearly two weeks ago, in Ortega v. City of New York, 2007 N.Y. Slip Op. 07741, the New York State Court of Appeals considered the unresolved issue of whether New York State recognizes the tort of third party negligent spoliation of evidence.
At issue in Ortega was whether a passenger who was severely injured as a result of a vehicular fire could maintain a spoliation claim against the City of New York for failure to prevent the destruction of the damaged vehicle.
The city was not involved in the original incident, but the plaintiff alleged the city nevertheless was liable for the full amount of damages she would have recovered in a civil action against the underlying tortfeasor because an agent of the city, for unknown reasons, destroyed the vehicle in violation of a court order directing its preservation.
In reaching its determination, the court weighed judicial and social policy concerns, including the public policy issue of the potential and significant liability that claims for third party spoliation could impose on municipalities.
The court also examined traditional remedies available to spoliation victims in New York, such as discovery sanctions and civil contempt sanctions. The plaintiff in Ortega asserted such sanctions were insufficient since the negligent destruction of the vehicle posed fatal obstacles to determining the fire’s cause and prosecuting claims against the likely tortfeasors.
After careful consideration of the competing interests, the court concluded existing New York remedies are sufficient, and declined to follow the minority of jurisdictions that permit tort of thirdparty negligent spoliation: “In New York, while the desire to provide an avenue to redress wrongs is certainly an important consideration underlying our tort jurisprudence, the recognition that there has been an interference with an interest worthy of protection has been the beginning, not the end, of our analysis. ‘While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.’ … As a general rule, New York courts have been reluctant to embrace claims that rely on hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff’s damages. … For all of these reasons, we join the majority of jurisdictions to consider the issue … and decline to recognize spoliation of evidence as an independent tort claim.” (Citations omitted.)
In other words, an innocent, injured person is out of luck if a third party negligently performs his or her job. Arguably, it is of little consolation to the potential plaintiff that funds may be recovered from a negligent third party to pay for expert expenses and additional investigation as to whether a claim is feasible.
Furthermore, it is unlikely any plaintiff’s attorney would be willing to expend the time and resources needed to investigate a claim where the end result of the fishing expedition doubtlessly would be an expert opining there is no way to determine whether negligence caused the accident in question, where the object alleged to have caused injury cannot be examined.
It is, most assuredly, an unfortunate decision from the plaintiff’s perspective.
That being stated, given the speculative and hypothetical nature of the imbedded claims inherent in a third-party spoliation claim — in which the plaintiff alleges that, if a jury was convened in the matter, it might reach a different conclusion if destroyed evidence was preserved — it is difficult to imagine another result.
Central to negligence claims are allegations of shoulda, coulda, woulda. But, assertions of shoulda, coulda, woulda, once removed from the negligence claim itself, lead to hypothetical findings too equivocal to prove.
While this result may seem tinged with injustice it is, lamentably, the only logical conclusion.
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In any event, the most recent term was encumbrance, which is defined as:
(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements and water or timber rights. While the owner has title, any encumbrance is usually on record (with the County Recorder or Recorder of Deeds) and must be paid for at some point.
Edward Wiest got it correct!
Today's term is:
muniment of title.
As always, no dictionaries, please.
Last week the New York Court of Appeals handed down its decision in People v Taylor, 2007 NY Slip Op 07911.
This Buffalo News article sums up the case quite nicely:
The 4-3 decision is significant because the case involving John Taylor is the last death penalty case in New York's court system and it will now take an act of the State Legislature to restore capital punishment … unlikely given opposition in the Democratic-led Assembly.
The case was unusual. The court three years ago ruled that the sentencing provisions of the state's 1995 death penalty law were unconstitutional because they could sway a jury to choose a death sentence. The judge in the Taylor case then changed how the jury was instructed to address the Court of Appeals' concerns in that earlier death case.
But a majority of the Court of Appeals this morning said that the "death penalty sentencing statute is unconstitutional on its face and it is not within our power to save the statute."
The specific jury instruction at issue was as follows:
Now, any decision by you to impose a sentence, whether of death or of life imprisonment without parole, would have to be unanimous. In other words, each juror would have to agree to it. I am required to tell you that the law provides that in the event the jury fails to reach unanimous agreement with respect to the sentence, then I must sentence the defendant myself. And the law provides that if I sentence the defendant, I must sentence him to life imprisonment, but I must also fix a point at which the defendant will become eligible for parole. Under the law I must fix that point between twenty and twenty-five years for each count. In other words, on each count I would sentence the defendant to life imprisonment and order that he not become eligible for parole until he has served the minimum term that I fix, a term of between twenty and twenty-five years for each count. I think it is fair to tell you, however, that the six [count]s of first degree murder, and the two counts of first degree attempted murder on which you have convicted the defendant, are precisely the type of crimes that almost always induce a judge to give the maximum sentence permissible. In this case I would have the authority to sentence the defendant, not only to the maximum on each count, but also to make those sentences run consecutively. So, the maximum sentence I could give and would almost certainly impose in this case, would be a sentence of 175 years to life, which means that the defendant would become eligible for parole, but only after he had served 175 years in jail.
In the decision, the Court explained the rationale behind its holding:
LaValle made perfectly clear that the death penalty sentencing statute crafted by the Legislature was unconstitutional. That judgment stemmed from LaValle's core holdings that our Due Process Clause requires an anticipatory deadlock instruction be given and that the existing provision was unconstitutionally coercive (see id. 3 NY3d at 120, 130). Since we could not craft a new instruction, we were constrained to say: "under the present statute, the death penalty may not be imposed" (id., 3 NY3d at 131). Defendant, here, was thus sentenced to death under a facially unconstitutional statute.
The clear winner is Dustin of Quizlaw! He's won his choice of any single item sold by The Billable Hour (luxury watch line and sets excluded), a company that offers clever gifts and greeting cards for legal professionals.
In second and third place respectively are Bridget Crawford of the Feminist Law Professors blog and Caitlin Borgmann, blogging at both the Feminist Law Professors blog and the Reproductive Rights Prof blog. They've each won a copy of Ron Liebman's newly released novel, Death by Rodrigo, about the misadventures of two former Camden cops-turned-lawyers.
53 votes were cast for Best NY legal blog with New York Civil Law coming in first place. Matt Lerner has won a signed copy of attorney Sairo Rao's witty novel, Chambermaid, about a young attorney's eventful year as a clerk for a Federal Court Judge.
Wait a Second! came in second place, and this group blog sponsored by the Bergstein & Ullrich law firm is the lucky winner of a signed copy of attorney Adam Freedman's newly released book, about the curious world of legalese, The Party of the First Part.
Coming in third was Indignant Indigent. Brian Shiffren has won a copy of won a copy of Ron Liebman's newly released novel, Death by Rodrigo, about the misadventures of two former Camden cops-turned-lawyers.
Congrats to you all!
My prior articles can be accessed here.
Intellectual Subway 101
If there’s an intellectual highway, there’s also an intellectual subway.
— Stanley Crouch
Robert L. Birmingham, a professor for the University of Connecticut School of Law, recently caused quite a stir when he showed a video clip from a film called “Really, Really Pimpin’ in Da South” during his “Remedies” course. The film was made by Atlanta-area pimps and explained the rules of conduct for pimps and their prostitutes.
The class was discussing a 2004 11th Circuit U.S. Court of Appeals case, U.S. v. Charles Floyd Pipkins, a.k.a. Sir Charles, and Andrew Moore, Jr., a.k.a. Batman, no. 02-14306. The purported reason for discussing this case was in the context of determining whether the prostitutes were held in involuntary servitude.
Much has been written about the professor’s subsequent suspension and the ostensible reason for the uproar-that Professor Birmingham accidentally and belatedly stopped the “relevant” portion of the video clip, an interview with the defendant Pipkins, on a still image of a woman in a suggestive pose, wearing a g-string.
That this case was chosen for discussion in the first instance is somewhat surprising. The decision arises from a 265-count indictment of 15 pimps involving allegations of violating the Racketeering Influenced Corrupt Organizations Act, among other criminal statutes. The crime of involuntary servitude was discussed on less than three pages of the entire 43-page opinion.
The rationale that led to the inclusion and extended discussion of this particular case and the classroom viewing of a video made by pimps for pimps was questionable, at best. The video malfunction served only to highlight the inexpediency of the inclusion of this material in a law school classroom.
However, the allegations of audio-visual ineptitude become all the more suspect when one learns that later that same day, at the request of his students, Professor Birmingham paused the very same video clip at the very same place-in a class on the Nuremberg Trials. It’s difficult to imagine the relevance of the code of conduct for pimps in the early 21st century to a seminar focused on the war crime trials held in the aftermath of World War II.
That this particular professor chose to examine this particular material in two different law school courses is not particularly surprising when one reviews his body of work. For example, in an article published in the Connecticut Law review in the Summer of 2000 entitled “Folk Psychology and Legal Understanding,” Professor Birmingham devotes nearly one third of the article (excluding footnotes) to the discussion of whether consent can be inferred if one becomes pregnant as a result of rape.
In that same article, when discussing an antiquated law that allowed a rapist to escape punishment if the victim and the rapist marry, he quipped: “One imagines that such marriages were as happy as most.” Earlier in the article, he made the curious decision to use the word “promiscuously” in lieu of the less charged and more commonly used word “indiscriminately.”
I encountered a similar professor in law school. The vast majority of hypothetical examples offered by the male professor involved men conducting complex business transactions. On the rare occasion that a woman entered the picture, she was either a prostitute or pregnant.
The transparent message sent by this professor to the captive classroom was that women were worthy of mention only when their “unique” biology served to add some sort of warped interest to a hypothetical factual scenario. Never mind the fact that women constituted half of the population of both the world and the very classroom in which the existence.
Based upon my experience, I would hazard to guess that the video malfunction that resulted in Professor Birmingham’s suspension was not an isolated event, but rather, the straw that broke the camel’s back.
Perhaps this incident will serve as a wake up call to law professors across the country who regularly engage in questionable teaching tactics — take the intellectual high road while in class and confine your travels of the intellectual low road to drunken discussions with friends over a few beers. Your students will thank you.
Last week, in Pachter v. Bernard Hodes Group, Inc.06-3344-cv, the Federal Court of Appeals for the Second Circuit certified the following questions to the New York Court of Appeals:
Hat tip: Second Opinions
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