by Jay Marshall Wolman
It seems Eric Turkewitz and Jack Marshall are at it again, this time over the aunt (or first-cousin once removed) who sued a boy (now 12, but 8 at the time of injury) when he greeted her in a fashion that resulted in a wrist fracture. (Disclaimer: Marc has represented Eric, and I’ve known Jack for years as the founder of the Georgetown Gilbert & Sullivan Society). In short, Eric says the lawsuit was cool* and Jack says “nuh uh”.
In the balance, I think Eric has the better, but there is no bright line. This wasn’t a case about $600 (even in 1800s money); juries (meaning society) typically deem that a fracture causes well over $100,000 in damages, factoring in both economic losses (wages, medical bills) and pain and suffering and loss of enjoyment of life. Ethics is not black and white; proportionality is part of it.
Here, there are two factors to be balanced:
- The extent of injury suffered by the Aunt and the benefit of recompense; and
- The harm suffered by the putative defendant as a result of being sued.
Rarely does the latter come into play, so most times, when a plaintiff is worthy of recompense, suit is filed. Usually, for $600, it isn’t worth it to anyone to file suit or even make an insurance claim. For $100,000 it almost always is, even where the theory of liability is at the margin. (*For the record, Eric says he would not have taken the case on this basis.)
This case differs because the second factor comes into play. Eric speaks, in effect, of a standard “friendly” suit, where the defendant is the defendant in name, but is not the real party in interest. Generally, for example, one cannot directly sue an insurer, the insured must be sued. Similarly, one cannot sue an unconstitutional law, one must sue the official, in name, charged with enforcing that law. There are a host of principles for each that explain why the system is what it is beyond the purpose of this post.
Unfortunately, here, the named party was the minor. Jack complains that the suit is not justified on the “everybody does it” rationalization. But that is not Eric’s rationalization; it was his explanation as to the requirement that the named party in our system is not necessarily the real party in interest.
Jack, on the other hand, seems to be applying some version of either the miscreant mulligan or king’s pass, as he names rationalizations. He is willing to immunize, in full, a putative defendant based solely on age and relationship to the injured person. This, also, is an improper rationalization. We charge minors for murder as an adult. And, I think, we can all agree there are cases where an 8 year old should be held accountable for the damage he causes; it is not uncommon to even make a child pay for an item he or she broke in a store while running around.
Here, then, we come back to the balancing test–is it worth suing for six figures on a weak theory (hug gone awry) that would normally be brought, but for the fact that the tortfeasor was 8 and a relative? The jury certainly felt that the theory was too weak, but that is a post hoc rationalization. How the scales balance really may depend upon the specific relationship. If the boy was informed and understood that this was all just a legal dance to make sure his aunt got insurance money, and if he wanted her to get that money and was sorry for the hug gone awry, and this was explained before the suit was filed, the scales may well tip in favor of the aunt.
Let’s say liability was clear, but the insurer still refused to pay despite its obligations to the child-insured. Would we be as critical of the carrier for dragging out the matter? Remember that probably, as in the typical case, the insurer hired the attorney to represent the boy, not his family. If liability was clear, the boy might have agreed to take a judgment for the amount of the policy and assign to the aunt the claim against the carrier for breach of the contract/unfair settlement. In such a case, the boy would not even face trial and not be a named party in the subsequent insurance suit. If the same case went to trial, there would likely be far less criticism of the aunt, especially since she actually wasn’t pursuing the boy’s piggy bank.
Ultimately, the suit may have been ethically proper, but I think both Eric and Jack are pronouncing judgment on the case and each other without a sufficient understanding of the impact on the defendant.