Tort Reform Hypocrite Settles Slip and Fall Lawsuit
As reported by the Wall Street Journal's Law Blog, former Supreme Court nominee, strict constructionist judge, and tort-reform advocate Robert Bork settled his lawsuit against the Yale Club after he fell while attempting to step onto the dais to speak.
The settlement terms were undisclosed, so little is known about the lawsuit other than those pleadings filed with the Court. However, a review of the complaint filed by Judge Bork's attorneys at Gibson, Dunn & Crutcher--who are typically defense counsel and presumably represented Bork because of his high profile--reveals two absolute truths about the case: (1) Regardless of whether the Yale Club was liable for Judge Bork's injuries, Judge Bork was seriously injured and required significant medical care to address his injuries; and (2) Judge Bork's lawsuit embodies many of the tactics and strategies that Judge Bork decried in his tort reform efforts.
Most of this post will address the second point. However, let's not forget that Judge Bork was seriously injured. WSJ Online described his injuries as follows:
Bork suffered a large hematoma, or swelling of blood, in his lower left leg as a result of the fall and the hematoma eventually burst, according to the lawsuit. The injury required surgery and months of physical therapy, according to the complaint. He claims to have suffered “excruciating pain” as a result of the injury and continues to walk with a limp.
Turning to his lawsuit--and how it meshes with his tort reform beliefs--Judge Bork's claims and tactics run completely counter to a number of his tort reform proposals and arguments. The complaint, which is nothing more than a series of allegations and prayers for money that Bork hopes will be proven prior to or at trial, positions itself for an award of punitive damages. Bork alleges, essentially, that the Yale Club actively, and with gross disregard for his safety, constructed a path to the dais that the Yale Club knew would likely result in Bork's severe injuries.
Punitive damages are extremely rare in a typical slip and fall case--which Mr. Bork's case most certain is. In addition, punitive damage awards are one of tort reform's, and Mr. Bork's, primary targets.
In a 2002 article published in the Harvard Journal of Law and Public Policy, Judge Bork criticized modern state tort law, stating that the Framers could have never envisioned the current legal system, and therefore supporting Congress' power to limit modern tort system:
State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.(Emphasis added).
Judge Bork further criticized plaintiffs who proceed with contentious lawsuits--as all slip and fall lawsuits are--against property owners in a 1995 Washington Times opinion article:
Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.
The 1995 Bork would have viewed the 2007 Bork as a pirate attempting to steal money from the Yale Club through the "civil justice lottery" using tactics to attempt to leverage a higher than usual settlement by alleging--with little or no basis--punitive damages. The 1995 Bork might also believe the 2007 Bork was barred by the assumption of the risk doctrine due to the obviousness of the alleged danger, an unreasonably high rise from the platform to the dais. Ted Frank, another tort reform advocate and a writer at Overlawyered.com wrote as much upon reading Judge Bork's complaint in June 2007:
I sympathize with Judge Bork's serious injuries, but it's beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the "unreasonable" height that the complaint alleges it to be.
Bear in mind that, under California law, if Judge Bork somehow appreciated the increased danger of the path to the dais before he attempted to negotiate it, he would not be barred by the assumption of risk doctrine from recovering for his injuries. Instead, to the extent that he was negligent for his own conduct, his recovery would be reduced by his share, compared to Yale Club's share, of the responsibility for causing his injuries.
We are certainly not saying that Judge Bork was not entitled to proceed with his lawsuit or to recover money for his injuries. Certainly he was. However, it is very important to remember that when this tort-reformer felt the need to bring a personal injury lawsuit, he did so using hyper-aggressive and presumptively baseless tactics to bolster a prayer for punitive damages.
The 1995 Bork would have held up 2007 Bork's lawsuit as an example of the tort system run awry.
