Win with a spoon

Not “I always wanted to be a lawyer.” I guess most doctors probably wanted to heal the sick since they were children. Teachers surely had a desire to develop young minds from the time they were schoolchildren. I think it is different for lawyers. Not many grew up with a burning desire to defend a corporation’s exclusive right to use a talking Chihuahua to sell Mexican fast food.

My own decision to become law came after the following dialogue:

Father: “Son, I am proud of you. This year you receive your degree in Political Science. Are you ready to go out and face the real world?”

Sound: “I should say no.”

Father: “Well then, have you ever considered law school?”

Sound: “How long has that been?”

Father: “Another three years of school.”

Sound: “Uh. Okay.”

As unfavorably as I came to this office, and as ill-informed as I was (I was accepted into law school before entering court, even as an observer), as a young man I had some vague notions about the legal system. Those notions were, at the time, pretty much what any layman could have learned from watching Lewis Stone play Judge Hardy in the old Mickey Rooney movies of the 1930s and 1940s. That the legal system was equitable, just and humane, and that the results obtained, in the final analysis, would appear “correct” for the average guy on the street. Everyone can understand that the law must protect those who behave correctly.

Even after the passage of many years, many experiences and many cases, I still think that the naive notions of my youth are quite good. I like to be able to explain to clients, friends, acquaintances and strangers that the results obtained through the legal system of this great state are reasonable, fair and just. It is quite difficult to do these days. Judge Hardy, if he were still alive, might as well be scratching his head.

On February 28, 2006, the Michigan Court of Appeals decided Gagne v Schulte (No. 264788). The decision was unpublished and there was no oral argument. The case is presumed to have been handled under the “fast track,” “rocket file,” “express train to perdition,” or whatever euphemism is currently used to describe the perfunctory treatment received by many cases on appeal these days.

The decision itself is not very enlightening. In an auto negligence case, the opinion is only five paragraphs long. There are some sentences in paragraph one that indicate how the case came about. Three repeated paragraphs follow, saying absolutely nothing specific about the facts. In the last paragraph, the Court affirms the dismissal of the case, noting that there was no evidence that the injuries of Mrs. Gagne (her name is never mentioned): “… affected her life so extensively that it altered the trajectory or the course of his normal life. ” It was determined that Mr. Schulte had no responsibility to Ms. Gagne.
A typically nonspecific and innocuous decision today. One that would have gone completely unnoticed (except by Ms. Gagne) if it weren’t for the dissent written by Judge Peter O’Connell, bless him. Judge O’Connell provides us with a great deal of information about the case. It appears that the accident occurred because Mr. Schulte, while driving drunk, drove his van across the center line into oncoming traffic, causing a head-on collision with Ms. Gagne. He suffered a concussion, with loss of consciousness when he hit the windshield. His torso bent over the steering wheel and his knee slammed into the dash. The anterior cruciate ligament and medial meniscus were torn. This injury required extensive reconstructive surgery that occurred ten months after the accident. The dissent describes the operation in detail, including the drilling of multiple “tunnels” in Ms. Gagne’s shin and thigh, which were then filled with donated tissue, filled with bone plugs and secured with screws. This was described by the surgeon as “a very big surgery”. As for the meniscus, the torn part could not be repaired and had to be removed. It would not regenerate, according to the surgeon.

The dissent describes the treatment received before and after the surgery, and goes on to say that even seven months after the surgery (almost a year and a half after the accident), the surgeon did not feel that his atrophied muscles had become strong enough to allow Ms. Gagne will return to work as a house cleaner. Ms. Gagne, who was 21 years old at the time of the accident, was unable to return to her work at the time of the accident. Similarly, she remained restricted from a variety of her recreational activities, such as ice skating, rollerblading, gymnastics, and dancing, all of which Ms. Gagne enjoyed prior to the accident. Evidence showed that he had permanently lost some stability in his knee. For the sake of brevity, I have summarized Judge O’Connell’s excellent account of Ms. Gagne’s injuries, treatment, and restraints.

Despite all of this, the majority ruled that, as a matter of law, without even having the opportunity to tell her story to a jury, Ms. Gagne had failed to meet this State’s minimum standard of injury serious enough to to demand that the negligent party respond in damages to the victim. The drunk driver has no responsibility to Ms. Gagne for the injuries caused by his conduct.

Try to explain the meaning of that to John Q. Public. When I discuss the Gagne case with those who are too unsophisticated to understand the court system (i.e., the good citizens of this state), I get the kind of head-bowed looks one usually gets from the family dog ​​when the master of the house does something the canine senses are particularly stupid. I guess they (the citizens, not the dogs) are not smart enough to understand that Ms. Gagne is not a victim. She is only a small part of the Michigan courts’ overriding mission to eliminate frivolous lawsuits in this state. Frivolous outfits like, apparently, Krysta Gagne’s.

To eliminate such claims, the courts have held that, although the pain is real, because it cannot be objectively measured, it must be considered irrelevant. Unless you subjectively complained of pain ten years before your car accident. In that case, it is conclusive proof of a pre-existing condition.

Now, if a member of my family were hit by a drunk driver, underwent serious surgery, couldn’t return to the work they did before the accident, and had the kind of debris that prevented them from doing a long list of recreational activities. enjoyed before, I don’t think it’s much of a comfort if I say, “Thank God, according to the state of Michigan, you weren’t badly hurt.” Imagine if we, as high-powered attorneys, were to lose as little as ninety days of our practices. Many of us would not have a business to return to. Insignificant, according to our Courts.

Now there is an answer to all of this. Our financial responsibility laws, or more commonly known, our no-fault system. This fully protects Ms. Gagne, or I assume as fully as the Courts believe she deserves. However, let’s take a closer look. Our no-fault system requires us to purchase collision coverage on our own cars, if we are to have any. So in this case, it is not unreasonable to speculate that Ms. Gagne, when she was very young, with a comparatively poor paying job, was driving an older car, where maintaining collision coverage would be a reckless investment. Our no-fault system could well have caused Mr. Schulte to fully compensate for the collision damage to his car through his negligence, leaving Ms. Gagne without transportation. Just speculating.

Now, our no-fault laws specify a minimum limit of liability coverage that we must all carry to protect ourselves if we sue ourselves for the pain and suffering of an accident caused by our negligence. You’d think the state would set this minimum high enough to protect us against most claims that meet the serious impairment threshold. Not all, but most. That would make sense. If Krysta Gagne’s injuries are not serious to meet the minimum standard, then our coverage would only come into play for the really serious injuries. So what has the legislature, in its wisdom, determined that is the minimum coverage that the citizens of this state need to protect themselves (as a matter of law)? $ 20,000. That is not a typo. If Krysta Gagne’s injuries are not serious enough for a jury to hear evidence on the threshold issue, how far does the $ 20,000 go to protect you or me from the kinds of threshold-compliant claims in the environment? current? The no-fault act holds the negligent party liable for lost wages after three years. How far will $ 20,000 go to protect us then?

So who goes to bed feeling safer, in this state, after Gagne’s decision and after the revision of our no-guilt law? Mr. Schulte, certainly. Insurance companies? Drunk drivers, in general? The average citizen of this state shouldn’t. Our streets are not safer because of this decision, and our insurance rates will not go down because of it.

I wish we could bring Judge Hardy back and have him speak to our judges and legislators. You know, the kind of conversation I had with Andy near the end of every movie, when Andy just didn’t know what to do. Much common sense in those talks. Much humanity. We need both now. Seriously.

DIVERSIFICATION

On a semi-related note, in today’s environment, it is prudent for an attorney to consider diversifying their practice. In this regard, I have made a few attempts to write questions for the upcoming bar exam. I do not know how well that country. Here’s my first try, in the area of ​​premises liability law.

Question: Please identify any viable cause of action in the following scenario under current Michigan law.
A grocery store clerk is stocking shelves in an aisle where fruit juices are displayed. When opening a cardboard box, he cuts a plastic bottle of apple juice, causing it to leak to the floor. The clerk notices the leak, but is too busy to clean it up, and then he is called into another hallway. He forgets about the leak and never comes back.
Thirty minutes later, a customer, pushing a full cart, enters the aisle. She looks at an ad on a top shelf, telling him about a two-for-one sale on apple juice. As he pushes his cart into the juice section, he slips and falls on the juice spill, falling backwards in a display of light bulbs, breaking many. Hitting the ground, he suffers a severe wrist fracture and severe lacerations from broken bulbs. She undergoes surgery for the fracture and as a result loses her job at the factory.
Answer: The store owner can sue the customer for the cost of the broken light bulbs.

Better not quit my day job.

* Although I don’t know Ms. Gagne, for the purposes of this article I assume she pronounces her last name Gag-nee (as the Greg Gagne of the Minnesota Twins, rather than Gon-yay, as the Cy Young Award winner of the National League 2004).

Mike Butler is an attorney with the firm Bernstein and Bernstein (not Sam) in Southfield.