Al Smith - September 06, 2005
Montana Trial Lawyers Association
Responsibility
KUFM Commentary
September 6, 2005
Al Smith, Montana Trial Lawyers Association.
Who Best Determines Responsibility - Papers, Pundits or Jurors?
Last month a Missoulian editorial chided a young man and his lawyers for claiming that the University of Great Falls should be held legally responsible for serious brain damage to one of its students who fell through a dormitory bathroom window. The Missoulian reached its conclusion that this young man is unworthy of having his day in court upon a few snippets from a news report based upon the filing of the lawsuit. In doing so the Missoulian displayed its ignorance of our civil justice system. Here’s a little explanation of how our legal system works.
First, to recover anything, the student must first prove that the University of Great Falls was negligent – that it acted unreasonably in designing, building or inspecting its dormitory. Does the University have any responsibility for the safety of its students? Was it reasonable to have a large, plate glass window put in a shower room low to the floor and three floors above a concrete walkway? Was it unreasonable not to use shatterproof glass? Was it unreasonable not to put a few simple bars across the window to keep anyone who might slip on the smooth stone floor from crashing through the window? Did the window and bathroom design meet minimum building codes and accepted safety design standards?
Just “parading a seriously disabled young man through a courtroom,” as the Missoulian callously and meanly put it, does not win the case. If the student fails to prove negligence, he gets no recovery. If the jury were to award him damages solely out of “sympathy” – if negligence is not proven – the judge will direct the verdict for the defendant.
Second, if the student who fell through the window is wholly or partly to blame, the law allows the University of Great Falls to make that argument. Contrary to the impression left by the Missoulian, the lawyers representing the University will not be courtroom mannequins – they will be well qualified lawyers who will ably defend their client.
Third, after hearing all of the facts, a jury will decide if the University, the student, or both were “irresponsible.” If the student is found to be more responsible for his injuries than the University, he will get nothing. If he is found to be partly at fault, but less responsible than the University, his damages will be reduced by the amount of fault he bears.
The jury will be selected from the registered voters of Cascade County whom we trust to decide who should lead our country, govern our state and many other equally important issues. After hearing all the facts the jury may agree with the Missoulian’s knee jerk reaction that the young man is 100% responsible for his injuries, or it may agree that the school bears some responsibility. The question is, why does the Missoulian have such contempt for this fair and equitable process, and for the participants - the injured student, his lawyers, the judge and the jury?
Only tortured logic, lacking any factual support, can support an opinion that people are more irresponsible simply because they can avail themselves of our civil justice system to assess responsibility for an injury. Following the Missoulian’s logic: open elevator shafts need not be covered because only “irresponsible” people will fall into them; guardrails along cliffs and rivers would be unnecessary because only “irresponsible” drivers will drive off the road; and, handrails on decks would be unnecessary because only “irresponsible” people would fall off them.
History, logic and facts, as well as studies, support the opposite conclusion - that citizens’ access to the civil justice system makes corporations and institutions more responsible for their products and actions, making all our lives safer. For a sampling of legal actions that halted corporate and institutional irresponsibility take a look at the report LIFESAVERS, at the Center for Justice &Democracy’s website - http://www.centerjd.org/free/Lifesavers.pdf. Contrary to the opinion of corporate apologists, the little money needed to place warnings on dangerous products are well worth the thousands of lives saved each year.
The Missoulian also attacked contingency fees. The University and its insurance companies can afford to hire the best lawyers to speak for them. These lawyers in Montana now charge upwards of $200 an hour for their time. They get paid whether their clients win or lose. How can an unemployable, profoundly brain damaged 18 year old college student pay that kind of money to get a good lawyer? His only opportunity for a level playing field is to find a lawyer who is willing to risk her time and money to prove that the University is responsible. It is the plaintiff’s lawyer who might, and sometimes does, wind up working for nothing because she fails to prove her case – she loses the time she put into the case, she loses expenses paid for staff that worked on the case, and, she loses the expenses of preparing the case - from fees paid for investigators to fees paid for expert witnesses. It is that possibility of losing time and money that helps weed out unmeritorious cases. Without the contingency fee system only the wealthy will have justice. This, of course, would suit corporations, institutions and their insurance companies just fine – they would never have to face responsibility for their actions. http://www.atlanet.org/pressroom/FACTS/tortreform/ContingentFees.aspx
The Missoulian was right in one respect, we all should be responsible. But, when responsibility is disputed, the best place to determine responsibility is in a courtroom before a jury that hears all the facts, which is why our founding fathers adopted the Seventh Amendment to the U.S. Constitution guaranteeing our right to a trial by jury. The wrong place to determine responsibility is in an opinion piece with virtually none of the facts.
This is Al Smith for the Montana Trial Lawyers Association.
Thanks, Al Smith
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