Golfer recovers against course after getting beaned

The Illinois Appellate Court recently was faced with an issue that comes up suprisingly often: can a patron at a golf course recover when struck by another golfer's ball? In a word, yes.

In Sullivan-Coughlin v. Palos Country Club, the plaintiff had just finished her round and was riding in a cart with a family member. As the cart neared the pro shop/cart return, the driver heard what she described as a "whack". She looked over, saw the plaintiff fall out of the cart and hit her head on the pavement. The witness apparently never saw the ball but felt the noise she heard came from a golf ball hitting the plaintiff. The plaintiff suffered serious injuries as a result of the incident.

There was conflicting evidence about whether the pro shop came under fire from errant golf balls. A restuarant worker denied evers seeing balls land near the area although he admitted he had heard rumors that occasionally, the pro shop did get hit. Another witness testified that the very same restuarant worker told him that golf balls came flying into the area at least once a week. In addition, both sides presented evidence from experts on the safety of the golf course layout. The jury awarded the plaintiff nearly $460,000 and reduced it to approxamately $321,000 for plaintiff's comparative negligence. The defendant appealed after post trial motions were denied. The primary ground on appeal was the there was no evidence at trial showing the defendant should be on notice that the area was unreasonably dangerous.

The Appellate Court held the golf course was liable. It concluded that plaintiff had indeed put on enough evidence[through the restuarant worker and the other witnesses]that the golf was on notice that errant shots were coming into the area rather frequently[the fact that the Golf Course had put up a fence to protect patrons from bad shots didn't exactly help]. The lower court decision was upheld.


THE MEDICAL COMMUNITY RESPONDS...

A doctor in Pennsylvania actually responded to my recent post about the doctor who wanted to introduce a Resolution at the annual AMA meetings where doctors could refuse to treat trial attorneys. Not suprisingly, he didn't agree with my opinion of the resolution. More on his response in the next post...

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After the verdict last week in Houston, the folks at Metabolife International are likely having some sleepless nights. Metabolife is the marketer for the Metabolife supplement that contained ephedra. Ephedra had once been an enormously popular weight loss aid with nearly 12 million users. It acted like an amphetamine, speeding the heart rate and constricting blood vessels. Unfortunately however, it ultimately became linked to approximately 155 deaths, including Baltimore Oriole pitcher Steve Belcher. [It is now banned by the federal government]. Metabolife had claimed that its supplement had no adverse affects and that the company had exhaustive safety monitoring protocols in place. Rhea McAllister believed the ads and began taking the Metabolife supplement in the 2000. In 2002 she suffered a devastating stroke that left her numb on one side, and with memory deficits and other problems. She sued Metabolife, alleging that it had lied to federal and state regulators about the potential side affects. Metabolife argued that Rhea's injuries were more likely due to her use of oral contraceptives. The jury agreed with Rhea and awarded her $7.4 million dollars gross, with $2.4 compensatory damages and approximately $5 million in punitive damages. A number of other Epedra suits are lined up waiting for trial...

Quick News from the Black Robe Department...

According to recent reports, the Oklahoma attorney general wants to remove a sitting judge, claiming he frequently masturbated and used an erection enhancing device[hereinafter referred to as a pump]...WHILE COURT WAS IN SESSION!!!!!!! Attorney General Drew Edmondson filed the petition with state judidical authorities seeking the removal of Judge Donald Thompson for "conduct constituting an offense involving moral turpitude in violation of the Oklahoma Constitution." The Attorney General charged in his petition that the pump was apparently often put to use during trials. In addition, the Judge apparently exposed himself several times to a court reported while masturbating on the bench. Finally, the Court reporter apparently observed the Judge[and I am not making this stuff up- who could?]"...holding his penis up and shaving underneath it with a disposable razor while on the bench." [Whoa. Now that last part raises all kinds of questions - no pun intended]. In addition, other witnesses said in the petition that they heard the "swooshing" sound of a penis pump being activated while in the courtroom. You'd think a sitting judge would be able to afford a quieter model. And why are people in Oklahoma so damn familiar with the "swoosh" sound a penis pump makes when activated? In any event, the judge was not immediately available for comment. Yeah, like there is anything this guy could ever say that would make this behavior seem normal.

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Saw a couple of interesting items over the last several days...

First, the Supreme Court recently held that workers who quit their jobs over sexual harassment can indeed sue their employers. The case had gotten to the Supreme Court after a Pennsylvania State Police dispatcher had claimed that her bosses had routinely harassed her by telling her dirty jokes and acting out certain sex acts. She ultimately quit and sued the department for sexual harassment. The Department in the lower courts had apparently moved to dismiss the case, arguing that it had an effective policy in place at the time to deal with harassment and the plaintiff hadn't taken advantage of it before she quit. Judge Ginsburg noted that the case demonstrated clear issues of a hostile work environment. At the same time however, she said the appeals court had not given the state police department an opportunity to defend itself. The opinion apparently overturned the appeals court decision reinstating the case, and sent the case back for additional proceedings. Interestingly Judge Clarence Thomas was the lone dissenter. Judge Thomas feld the employer should only be liable if they are proven to be negligent in permitting sexaully harassing behavior to occur. And Judge Thomas should have an excellent insight into what constitutes sexually harassing behavior.

And that most American of institutions, Wal-Mart is being accused of sex discrimination against women. The Chicago Tribune recently reported that a federal judge in San Francisco granted class action status last week to a lawsuit claiming Wal-Mart systematically discriminated against women in pay and promotions. The class currently has 1.5 million claimants and in considered to be the largest private civle rights matter on record in terms of plaintiffs. Judge Martin Jenkins, in his ruling noted that among other things that there is a disparity in pay for nearly every position; that women are paid less than men in every region in the Country and women take longer to break into management. One store manager was quoted as telling a female employee: "Men are here to make a career and women aren't. Retail is for housewives who just need to earn extra money." Given the sheer size of the class, most experts are predicting the case will settle, although Wal-Mart has been known to aggressively defend itself in most lawsuits. Don't see that happening in this case though - a defeat for Wal-Mart could be devastating.

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Well, the Supreme Court, in an opinion written by noted scholar and accused sexual harasser Clarence Thomas, handed the managed health care industry a huge victory when it ruled that HMO's cannot be sued in state court. Instead patients will only be permitted to pursue their claims in federal court, where damages are severely limited; usually the patient is only allowed to recover the cost of the procedure that should have been performed. So if the HMO doesn't authorize daddy's cancer surgery and daddy dies, his wife and kids can sue and recover the cost of the surgery. And nothing else. The wages daddy would have earned to protect his family[that the family now desperately needs]- nope, can't recover those. Ain't that a hoot? The millions of Americans covered by HMO's just got a major screwing. Hell, even the doctors are outraged. The American Medical Association noted in a press release that "...managed care plans can now practice medicine without a license and without the same accountibility that physicians face every day." Dr. John Nelson, president of the AMA noted that "This is a sad day for America's patients and the physicians who care for them." It surely is. All those HMO's can now breathe a huge sigh of relief, taking comfort in the fact that the Supreme Court's decision effectively immunizes them from any real liability for the lives they rip apart.

On a somewhat related note, 5 more class action suits were filed against non-profit hospitals this week claiming that the hospitals overcharged uninsured patients and then harassed the patients about the unpaid bills. The hospitals, for their part, are claiming the suits reflect a "...fundamental misconception regarding the nature of not for profit health care..."

And finally from the Fascinating Lawsuit Department...

Saw an interesting article in the Sun-Times regarding a federal lawsuit filed by a mother and daughter after an unpleasant dining experience at a local restuarant. Seems that mom and daughter decided their jambalaya was too spicy. They elected not to pay for it. They tried to return it, but were advised they would have to pay for it. They in turn offered to pay for the portion they had eaten. [How exactly do you determine the portion of jambalaya consumed?] Not long thereafter a local policeman showed up and advised them they would be arrested if they didn't pay. Finally, a paid receipt was discovered and they were allowed to leave. Their lawsuit alleges they were falsely arrested; wrongfully detained and had other civil rights violated.

Couple of interesting notes about this one. First off, this is the second such lawsuit filed against the restuarant. The first plaintiff however had actually been arrested after refusing to pay for her dish. She recovered $32,000. Seems that mother and daughter team saw an article in the Sun-Times discussing the first case. And after reading the article, they suddenly realized that they too had been traumatized back in November of 2002 at the VERY SAME RESTUARANT. Phone calls are made and suddenly a federal lawsuit is born.

Finally, some free legal advice to the restuarant. LOTS of people read that article about the first diner and her recovery. The only thing they remembered is that somebody got $32,000. LOTS of people are suddenly going to start complaining about your food. When that happens, apologize, remove the plate, take the item off the bill and hell, comp the dessert. It's got to be cheaper than paying an attorney to defend restuarant malpractice in federal court.

Contact me at markploftus@aol.com

According to news reports published last week, several lawsuits were filed in various states across the country against nonprofit hospitals for their billing practices. The lawsuits alleged that the hospitals violated their obligation as charities by overcharging people without insurance and then hounding them for the money. Hospitals in Chicago, Atlanta and Minnesota were targeted with more lawsuits expected in the near future. The lawyers involved are seeking class action status to represent those patients who should have received "affordable" healthcare, but in the final analysis, did not. Some of the hospitals involved are among the most profitable in the country with hundreds of millions[even billions]in assets and revenues.

The suits allege that after uninsured patients receive treatment, they receive bills that are substantially higher than the rates charged to insured patients. In some cases the bills were two to three times as high as an insured patient would have received. In addition, the lawsuits alleged that the hospitals were particularly aggressive in trying to collect from the uninsured. The hospitals counter that the billing rates for the uninsured simply reflect the discounts obtained by HMO's and insurance companies.

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Those wacky doctors are at it again. The ABA reported on Friday that Dr. J. Chris Hawk III, a South Carolina surgeon and AMA House of Delegates member says he authored a proposal recognizing a doctor's right to refuse care to a plaintiff's attorney except in emergency situations. "If trial attorneys were given the opportunity to experience the access problems caused by the professional liability crisis, then perhaps they would be willing to change the system," as quoted in Dr. Hawk's resolution.

In addition, Hawk himself stopped providing treatment to plaintiff's attorneys in March of 2003. He is waiting word from the AMA whether his actions are unethical. Regardless of whether his actions are unethical[and they likely are]Hawk is at best ill-informed. It's no secret that whenever the insurance industry takes a beating on its investments, instead of fessing up, they claim there is a "crisis" caused by trial lawyers. The industry did exactly that some 20 years ago when it claimed that a)surgeons were no longer undertaking certain procedures; b) were leaving the state in droves and c) only a cap on damages would stop the bleeding. Well, the "crisis" passed without any significant restructuring of the legal system and this "crisis" will pass as well. And a little fact checking turns up the strangest things - as I reported in a recent post about a an eastern seaboard state claiming that doctors were leaving the state by the thousands. Turned out that the number of doctors had actually increased by nearly one thousand. So don't believe everything you hear from the tort deformers.

And finally, poor Dr. Hawk. A number of physicians angrily denounced his proposal at the AMA meetings - EVEN AFTER HE WITHDREW IT. Thankfully some of the more reasonable minds in the room saw the proposal for what it was - a thinly veiled attempt to discriminate against a certain portion of society. So here's to you Dr. Hawk, for having the courage to go public with your incredibly stupid, small-minded idea. Do everybody a favor and stick to medicine.

Contact me at markploftus@aol.com

Met with a client today to go over his retaliatory discharge case. Nice old southern guy, just trying to make a buck when he hurts himself at work. He promptly tells his boss, who assures him "they will take care of everything". So he leaves, gets medical treatment and ultimately learns he needs surgery. So he schedules the surgery. The night before, his HR person calls and tells him he "doesn't need surgery". My client, to his credit, tells her that with all due respect, he thinks his doctor knows better. Has the surgery. While recovering, realizes that his employer is paying him vacation pay and sick time. Under Illinios law, the employer is obligated to pay 66 2/3 of the wage while the employee is recovering from an injury - not dip into vacation pay etc. So my client calls and complains that he doesn't want those funds touched. They assure him this money will tide him over until those other funds arrive. Well, guess what? Other funds never arrive. The employer then allegedly[emphasis on allegedly because I haven't confirmed]forges his name to FMLA paperwork. Then, precisely 12 weeks to the day, fire him because he didn't comply with the FMLA reporting requirements. Kind of tough to comply with FMLA requirements when you aren't aware you had filed for FMLA.

I'm convinced my client is telling the truth but proving it may be hard. He is poorly educated and didn't commit anything to writing. Witnesses who could be helpful are clamming up because they are afraid they'll be fired.

I was concerned we didn't have enough to get past a Motion for Directed Verdict[where judge rules case can't go to jury because plaintiff hasn't proven prima facie case] but learned today of some discussions between my client and the employer that might get us there. This guy really got screwed around. Hopefully I can develop enough evidence to get punitive damages against these weasels.

As a final note, also learned that the employer allegedly screwed around any employee who got hurt at work and made noise about Workers' Comp. One former employee apparently was so pissed he came back to the place with a gun. Thankfully cooler heads prevailed and he went back home with no incidents. Not really sure I necessarily want that guy as a witness...

Contact me at markploftus@aol.com

Saw a couple of interesting blurbs over the last several days...

First, last week a woman left paralyzed when her Ford Explorer rolled over was awarded $369 million dollars by a San Diego jury. The damages were broken down as follows: $246 million in punitive damages and compensatory damages of nearly $123 million to her and her husband. Ford had previously tried 11 of these cases to verdict and had prevailed on each and every one. Ford not suprisingly, vowed to appeal the verdict.

In an interesting sidenote, the plaintiff offered to forego $100 million in damages if Ford would recall all Explorers made through 2001 and address the alleged defects - including a center of gravity that is too high. Ford, not suprisingly declined, noting that "...there is no defect with the Explorer"[apparently ignoring the fact that a jury had just decided there was, to the tune of $369 million].

Also, the United States Supreme Court has ruled that a California woman can sue to recover $150 million dollars worth of family paintings stolen by the Nazis. The six paintings, done by Gustav Klimt, apparently included portraits of family members, including an aunt. Presently they are being held by the country of Austria. The Bush Administration had been fighting the case, arguing that these matters would be better settled "diplomatically". I can I can understand the woman's frustration. After all, WWII ended some sixty years ago and those darn diplomats apparently haven't been able to accomplish anything in six decades or so. I think this lady has been patient enough. Hope she gets everything back...

Contact me at markploftus@aol.com

Here are the facts: You and your young daughter decide to visit a friend and his wife at their home, which they are renting from their dad. While there, your friend's dog attacks your little girl, biting her on the face and causing severe wounds. Later you come to learn that the tenant also worked for his father's construction company and frequently brought the dog to work. You also learn that ultimately the dog is banned from the construction yard because of his fights with other dogs. You decide to sue and name the owners of the dog, but they don't have any insurance. So you also name dad, the landlord of the property, claiming he knew the dog was aggressive and didn't warn you, leading to your daughter's injuries. Think you can make a case against dad? [Remember, son doesn't have any insurance].

ANSWER:NO.

The Second Appellate District of Illinois faced those facts recently in Klitzka v. Hellios. The trial court had granted dad's summary judgment motion ruling that since he didn't control the premises, he had no duty to the visitors. The plaintiff appealed. The Appellate Court first noted that traditionally, the law in Illinois is that a landlord has no liability for dangerous conditions on the tenant's property and under the tenant's control. There are of course exceptions, but the plaintiff apparently conceded the exceptions didn't apply. Instead the plaintiff tried to hang her hat on a single case where a tenant was injured after being startled when a mouse jumped out of her oven. In that case the Appellate Court held the landlord did owe a duty because he was responsible for creating conditions that led to an infestation of mice. In the Klitzka case, the Appellate Court noted the tenant's act in bringing the dog onto the property was the cause of the injury - not anything the landlord did. So in short, you wouldn't have a case against the dad - they guy with the money. You are stuck trying to collect against son, who may be judgement proof. In the real world, the case is over.