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LAW WISE    

March 2007

Greetings from the Kansas Supreme Court and the Kansas Bar Association. Welcome to this edition of Law Wise and the fifth edition of the 2006-2007 school year. The theme of March’s edition of Law Wise is "frivolous torts."

• Calendar of Events
• What is a Tort?
• McFacts about the McDonalds Coffee Lawsuit
• Are They Frivolous? You Decide
• Lesson Plan #1: Could it Really be a Law?
• Lesson Plan #2: Classroom Negligence
• Lesson Plan #3: Torts: The Elements of Negligence
• Peace Officer’s Pocket Guides to the Kansas Statutes
• Terrific Technology for Teachers
• Resources for Law-Related Education

Calendar of Events

What is a Tort?

By Alisa M. Arst, editor

This issue of Law Wise includes information about lawsuits based on a "tort." A tort is a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages. Usually a victim (plaintiff ) seeks monetary damages from a person or business (defendant) who harmed him or her. There are many areas of torts, one of most common being personal injury lawsuits; for example, slip-and-fall lawsuits or automobile accidents. In some torts, liability is imposed without finding fault. The duty owed is fixed by a standard of reasonableness, such as in products liability cases. However, in most areas of tort litigation before a court can order a remedy, a plaintiff must prove four elements to a tort: Duty, breach, causation, and injury. The defendant must owe a legal duty to the victim, the defendant had to breach that duty, the breach caused the injury (causation), and the victim suffered an actual injury (i.e., physical, emotional, physical).

Tort lawsuits may include but are not limited to defamation (libel and slander), products liability (defect in either manufacturing or design of a product or failure to warn of foreseeable dangers), medical malpractice, wrongs against a business (unfair competition), copyright and patent infringement, and wrongful death lawsuits where survivors recover economic value of what remains of the deceased person’s life.

Unfortunately, many tort lawsuits are frivolous. Frivolous litigation is a legal claim or defense presented even though the party and the party’s lawyer had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law. In the United States we have what is called Federal Rule 11 (many states, including Kansas, have similar rules) that requires a lawyer to perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because a frivolous defense or claim wastes the court’s and the other parties’ time, resources, and legal fees, the court may impose sanctions upon the party or the lawyer who presents the frivolous defense or claim.

Why did the plaintiff sue McDonald’s and win when she spilled hot coffee on herself? Was the lawsuit frivolous? Read more about this case and others on the following pages, then you be the judge.

Lawyers Claim Big Macs Make Kids Fat

Lawyers have filed a class action lawsuit against McDonald's on behalf of New York children, blaming the fast food restaurant for the kids' obesity. A 13-year-old boy from Staten Island -- who is now 5 feet 4 inches tall and 278 pounds -- claims he didn't know that eating three-to-four fast food meals a week would add to his girth.

("Lawyers claim Big Macs make kids fat," Fort Worth Star-Telegram, Nov. 21, 2002)

Junk Lawsuits are Nothing to Sneeze About

A Bacliff, Texas, man is suing a local McDonald's fast food outlet for allegedly being too heavy on the black pepper. The lawsuit says that Marcus Long, a 61-year-old cancer patient, coughed up black pepper, sneezed, and suffered a bloody nose after eating a "breakfast burrito supersaturated with black pepper." Long, who said he can only eat soft foods because of his radiation treatment, accuses the restaurant's employees of negligence and seeks to recover damages stemming from the physical and mental injuries brought on by the peppered burrito.

("Mac Attack," Houston Press, Jan. 16, 2002)

Disability Rights Attorney Accused of Having Inaccessible Office

The attorney who sued Clint Eastwood over disability accommodations at his hotel near Carmel was himself sued on allegations his office bathroom was not wheelchair friendly.

("Disability rights attorney accused of having inaccessible office," Contra Costa Times, April 23, 2002)

Darn Right Absurd

"Unfortunately, wacky lawsuits are just the tip of the lawsuit abuse iceberg," said Jon Opelt, director of Houston's Citizens Against Lawsuit Abuse. "Junk lawsuits waste tax dollars and tie up court time. That means the rest of us pay when others use our courts for frivolous reasons. What's more, it means people with legitimate claims have to wait longer to have their case heard."

Opelt noted that often cases take two to three years to be disposed in Harris County.

"We support the rights of injured parties to use the legal system responsibly in seeking fair compensation. However, some of these lawsuits are darn right absurd," said Opelt.

Speaking of Frivolous Filings -- Did You Know?

"A fourth of all lawsuits filed in the United States are either frivolous or fraudulent," Former U.S. Sen. George McGovern, said, citing the American Board of Trial Advocates, in a speech before the American Legislative Exchange Council, San Antonio, April 1994. "There is no easy definition for the phrase 'frivolous lawsuit,' but I imagine any claim for damages where the injuries are minimal or where the basis for the defendant's liability is hard to believe, might qualify as frivolous."

Paul F. Waldner, president-elect, Houston Trial Lawyers Association Viewpoints, Houston Chronicle, Aug. 31, 1996

Flaming Pop-Tart Becomes Burning Courtroom Issue

A New Jersey couple is suing the Kellogg Co., as well as appliance maker Black & Decker Corp., for $100,000 in damages, alleging that a cherry Pop-Tart they put in their toaster turned into a blowtorch and burned down their house. The couple admitted to leaving their house while the Pop-Tart was heating up, despite the warning label on the box advising against leaving food unattended in the toaster.

("From toaster to lawsuit," The Philadelphia Inquirer, July 28, 2001)

Man Who Thought He was Dead, Sues Airlines

Scott Bender of Philadelphia sued U.S. Airways for negligence, claiming he thought the plane he was on had crashed and he was dead after the crew left him asleep on the aircraft. It was really dark, said his lawyer, and Bender "didn't know if he was alive or dead" -- it turned out the former. Now the snoozing passenger wants money for mental and emotional anguish.

("Man thought he was dead, sues airline," The Birmingham (Ala.) News, Oct. 4, 2001)

Not So Sweet Accusation

A judge in Germany is suing Coca-Cola, claiming the habit of drinking two Cokes a day for many years caused him to develop diabetes. He is also suing MasterFoods since he ate lots of candy bars that they make -- Mars, Snickers, and Milky Way -- and believes labels should have been put on these sugary products warning consumers of possible health risks.

("Diabetic Judge Sues Coca-Cola Over Sugar Warnings", Anonova. com, Sept. 11, 2001)

Teenager Sues Over Bad Coaching

A Levittown, Pa., teenager sued her former softball coach for $700,000 in damages. She claims that bad coaching cost her a college athletic scholarship.

("Teen Sues Over Bad Coaching," The Philadelphia Inquirer, May 2, 2001)

Class Doesn't Click for Students

According to the San Antonio Express-News, a dozen students who took a Microsoft computer certification course at the Houston branch of Southern Methodist University are suing the school, contending they were misled the course would be easy. The 12 enrolled in June 1997 and all failed certification tests that would have made them eligible for jobs overseeing Microsoft computer systems. Jason Crowson, the group's attorney said, "They were told all they had to know how to do was point a mouse and click."

"Munsters" Actor Sues to be on Ballot as "Grandpa"

Former "Munsters" television star Al Lewis filed a lawsuit to be listed on the ballot for governor in New York as "Grandpa." The lawsuit was filed against the New York State Board of Elections because he said by not listing him on the ballot as "Grandpa Al Lewis" voters would be confused and not cast an informed vote.

Lesson Plan #1:  

Could It Really Be a Law?

While you may think a lawsuit was frivolous in the beginning, the end result could be that the case had merit, which resulted in a change in the law. Read the following laws/ordinances to the class and decide for each why it might originally have been enacted. What public interest might it have served in days gone by? Is it needed today? How could it be improved?

1. In Oregon it is against the law to pump your own gas.
2. In Georgia it is against the law to slap someone on the back.
3. In Detroit it is against the law to fall asleep in the bathtub.
4. It is against the law to have a frog jumping contest in Boston.
5. In Ann Arbor, Mich., it is against the law to walk on any public street, alley, or park.
6. In New York it is a misdemeanor to arrest a dead man.
7. A woman may not drive while wearing a bathrobe in California.
8. It is against the law to imitate criminals in Florida.
9. In Oklahoma it is against the law for three or more dogs to meet on someone’s property without a permit.
10. In Michigan it is against the law for a barbershop to be open on Sundays.
11. It is against the law anywhere to tell your children to go to bed.
12. It is against the law to dance to the "Star Spangled Banner."
13. It is against the law in Michigan to participate in sports on Sundays — the fine is $5.
14. It is a crime to blow your nose in public in Maine.
15. In Michigan there is a law that says drinking cups must be available at public drinking fountains.

Lesson Plan #2:  

Classroom Negligence

Introduction:
Explain briefly that the class is going to decide a civil comparative fault case like a jury might have to do. Then give a narrative of the facts.

Facts:
Assign students in the class to roles #1–10, teacher and student teachers are #11 and 12). All facts occur just before school starts in the morning as the students are coming to class.

1. _______________________ bicyclist in parking lot that #2 swerves to miss. (optional)
2. _______________________ while driving his car in school parking lot, hits #3’s car.
3. _______________________ looks out window and sees his car being hit by #2, runs out.
4. _______________________ sees #3’s car being hit and #3 running, trips #3. (optional)
5. _______________________ just finished eating banana; drops banana peel when #3 loses balance and bumps him.
6. _______________________ slips on banana peel that #5 dropped and grabs #7’s desk while falling.
7. _______________________ the soda can on #7’s desk spills when #6 grabs it.
8. _______________________ slips on soda and falls; cuts hand on the buckle of #9’s backpack, which is in the aisle.
9. _______________________ left backpack in the aisle.
10. _______________________ laughs at the whole scene and embarrasses #8. (optional)
11. _______________________ student teacher who would not let #8 leave after class starts. #8 bleeds all through class. (optional)
12. _______________________ teacher who routinely allows food and drink in the classroom, although it is against the school’s rules, which all the students know.

Other Facts:
#8 is seriously injured, has to have stitches, and later needs surgery to fix a tendon. Scars badly. Misses finals and graduation. School lets #8 take tests later, and he or she graduates. But while taking the tests, he or she misses first four days of full-time summer job as waiter at Yia Yia’s, so he or she loses job and ends up with minimum wage, part-time job at Kmart.

The cost of repairing the damage to #3’s car is split equally by #2’s insurance company and #1’s parents. #8 and parents sue everyone and school to recover: medical bills ($10,000), lost wages ($2,500), and pain and suffering ($250,000).

Group Discussion:
Ask the class to assess comparative fault and award damages. They should talk about the factors a jury would consider and also my need to determine how to resolve differences among jury members.

Lesson Plan #3:  

Torts: The Elements of Negligence

Duration: 50 minutes

Supplies: Overheads; Case Studies; Case Study Answer Sheets

I. GOAL:

II. OBJECTIVES:

A. Knowledge Objectives – As a result of this class, student will be better able to:

1. Understand the basic difference between civil and criminal laws.
2. Understand the basic elements of negligence and defenses thereto.
3. Understand the factors that courts consider when determining whether a duty existed and whether it was breached.

1. Apply the elements of negligence to everyday factual situations.
2. Become better advocates by formulating and articulate arguments.
3. Avoid situations in which their actions could give rise to liability.

1. That there is no bright line rule for determining negligence.
2. That careless or reckless conduct can give rise to substantial liability.
3. That the legal system recognizes a flexible standard of conduct based on what a reasonable person would do in like situations.

III. CLASSROOM METHODS

A. Introduction – Brief Lecture:

1. Inform students that today’s class session will introduce them to torts and the concept of negligence and that they will be required to turn in their lecture notes at the end of class. We’ve spent a number of class sessions talking about criminal wrongs, which are prosecuted by the state on behalf of particular people and society at large. With torts, we are dealing instead with civil wrongs committed against individuals. With civil wrongs, the individual harmed is almost always going to be the plaintiff, though family members of injured (often deceased) persons may also sue on behalf of loved ones. There is not a prosecutor, like there is with criminal suits. Rather, the harmed individual or a family member brings a civil suit.
2. There are generally three different types of torts: negligence, intentional torts, and strict liability. Today we are only going to focus on negligence, which is an unintentional tort. Other types of torts will be discussed in future classes.
3. Introduce the topic of negligence with the following scenario:

   a. Tony, an 18-year-old high school student, is listening to smooth jazz on his iPod while driving. Tony doesn’t like the track he is listening to, and looks away from the road to find something smoother. He fails to see the car in front of him stop and crashes into it. The woman in the car suffers a broken leg and sues Tony to collect for her injuries.

4. Ask the students:

   a. "If the woman wants to be compensated for her injuries, will she file a criminal or civil lawsuit?" (Answer: Civil. Criminal suits are brought by the state/prosecutor, while civil suits are brought by individuals against someone who they think has wronged them.)

   b. "Who is the plaintiff?" (Answer: The injured woman)

   c. "Who is the defendant?" (Answer: Tony)

   d. "What can the woman recover?" (Answer: Money to compensate her for her injuries. There is no jail time at stake in civil suits.)

   e. "What must she prove?" (Answer: That Tony was negligent in driving, under the four elements of negligence, to be discussed shortly, by a preponderance of the evidence.)

   i. Preponderance of the evidence requires greater than 50 percent likelihood of causation. So, 51 percent would work.

B. Elements of Negligence:

1. Put up overhead explaining the elements of negligence:

   a. Duty: The defendant owed the plaintiff a duty of care. The duty of care owed is determined by a reasonable person standard. A reasonable person would consider: (1) the burden of taking precautions, (2) the likelihood of harm, and (3) the seriousness of the harm that might be caused.

   b. Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).

   c. Causation: The defendant’s conduct caused the plaintiff ’s harm:

   i. Cause in fact = actual cause

   ii. Proximate cause = harm was foreseeable

   d. Damages: The plaintiff suffered actual damages

   i. Tort law is concerned with restoring the plaintiff to his or her position, had the injury not occurred.

2. Ask students to apply the elements of negligence to the iPod facts. a. "What was Tony’s duty to the woman?" (Answer: To drive in a reasonable manner, which would include being alert and not listening to music with headphones.) b. "Did Tony breach this duty?" (Answer: Yes. Tony breached this duty by driving while listening to an iPod with headphones and by looking away to fiddle with the music.) c. "Did the Tony’s conduct cause the woman’s injuries?" (Answer: Yes. The harm would likely not have occurred if Tony had been paying attention to the road, and not fumbling with his iPod, and the harm was foreseeable (i.e., it is foreseeable that if you look away from the road you will hit the person in front of you). d. “Did the woman suffer actual damages?” (Answer: Medical costs, potential lost wages, pain, and suffering).
3. Defenses to a Negligence Action (put up related overhead and review these elements with the class): a. Contributory liability – Plaintiff ’s failure to exercise reasonable care may offset some or all of a defendant’s liability. b. Assumption of risk – A plaintiff who formally accepts a particular risk of harm may be prevented from recovering for related negligent acts by a defendant.

C. Class activity:

1. Explain that with this activity, every student will be speaking in front of the class to practice their advocacy skills.
2. Explain that each student will be given a scenario and will have to argue for either the plaintiff or the defendant in the given situation.
3. Explain that students will need to prepare a one-minute argument that they will present to the class. The argument must detail why their side should prevail under a negligence standard. Students arguing for the plaintiff must say how the four elements of negligence (duty, breach, causation, damages), are met. Students arguing for the defendant need only prove that one element of negligence has not been met. Defendants should also think about and argue relevant defenses such as contributory negligence and assumption of risk.
4. Explain that the class will be the “judge” of each case, and that each class member will vote for either the plaintiff or the defendant. We will then inform the class of how a court would likely (or actually did) rule. If the class gets a majority of outcomes right, then we won’t have a quiz on this material. Otherwise, we will have a quiz on the material in one week.
5. Pass out the negligence scenarios (there will be 11 scenarios, since we have 22 students in our class; each student will be arguing something different, and each student will have to prepare on their own).
6. Give students three minutes to prepare their arguments silently on their own.
7. Call the two students who are the plaintiff and defendant for scenario 1 up to the front of the class. Put the scenario up on the overhead, read it for the class, and then ask the students assigned to the scenario to present their arguments: plaintiff first, then defendant.
8. After each student has presented, ask the class to vote, either for the plaintiff or the defendant. Tally the votes, and see who wins.
9. Then, read the correct (actual or predicted) result of each case (see scenario sheet), to see if the majority of the class voted correctly. Keep a running tally on the board. Remind the class that they will need to get a majority of the outcomes right to avoid having a quiz on the material.
10. Repeat steps 7 through 9 for remaining scenarios.

D. Debrief:

1. Ask the students if there are any other points they want to make or questions that they have.
2. Ask the students what they think of the reasonable person standard and the outcomes of the cases discussed.
3. Review the elements of negligence again briefly. Remind students that it is not always easy to determine what duties individuals have to others.
4. Inform students that we will be learning more about other types of torts in more detail next class, as well as how to measure damages.
5. Remind students that we will be practicing oral advocacy skills in preparation for mock trial.
6. If the class as a whole correctly decided a majority of scenarios, inform them that we will not have a quiz on the material.
7. If the class as a whole did not correctly decide a majority of scenarios, inform them that we will have a quiz on the materials next class.

IV. EVALUATION

A. Student participation in activity and debriefing.

B. Class knowledge of the material, based on the tally of correct scenarios.

C. Student advocacy skills.

For the rest of this lesson, go to http://www.law.washington.edu/streetlaw/lessons/NegligenceTorts3.pdf.

The American Bar Association has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times per year (winter, summer, and fall). For information on ordering, contact the ABA at (312) 988-5735 or abapubed@abanet.org.

Peace Officer's Pocket Guides to the Kansas Statutes

Pocket Press has donated two sets of "Peace Officer's Pocket Guides to the Kansas Statutes." One is "Selected Traffic Laws 2006" and the other is "Selected Criminal Laws & Spanish for Law Enforcement." The KBA's Law Related Education Committee will make these available to Civics' Educators in Kansas at no charge. There is a limited supply, so call or e-mail Meg Wickham, manager of public services, at (785) 234-5696 or mwickham@ksbar.org.

Check out these great Web sites

1. http://www.legalzoom.com
   Top 10 Frivolous Lawsuits
   
2. http://www.calahouston.org
   Citizens Against Lawsuit Abuse
   
3. http://www.personal-injury-info.net/frivolous-lawsuits.htm
   Frivolous personal injury lawsuits
   
4. http://www.law.washington.edu/streetlaw/lessons.html
   Lengthy and detailed lesson plan based on spilled coffee case
   
5. http://gatewaynet.netscape.compuserve.com/atplay/serfunfacts.jsp?id=atplay_laughablelawsuits&floc=ap-funf-4-l17
   Fun lawsuits
   
6. http://www.epinet.org/content.cfm/bp157
   The frivolous case for tort law change. Opponents of the legal system exaggerate its costs, ignore its benefits.

Resources at the Law-Related Education Inventory

The Law-Related Education Inventory has the following items that are useful in working with students on the Constitution. Check out the following:

1. Applauding Our Constitution: Hands on Creative Lessons. This book gives a look at the Constitution. Library No. K- 8 342.02/Sp41a.
2. America’s Conscience: The Constitution in Our Daily Life. This document is for middle and high school students and covers the Bill of Rights. Library No. 342/A87.
3. The American Constitution: The Road from Runnymede. This video is for middle and high school students. Christopher Reeve guides viewers through 600 years of political struggle, while examining the English roots of our Constitution. Running time: 57 minutes. Library No. 324.73/Am3513.

The Law-Related Education Inventory has many resources to help teach about law-related topics. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. To order a catalog, call Meg Wickham at the Kansas Bar Association, (785) 234-5696. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8 a.m. to 7 p.m., and Friday, 8 a.m. to 5 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu.

Let us know what you think!
If you have any ideas or suggestions for Law Wise topics or lesson plans,
please e-mail Meg Wickham at mwickham@ksbar.org.