Daily Archives: October 23, 2010

A question that I wish I were still in law school to discuss

Does BP owe damages to businesses which were never hit by the oil? My Prof. Lofty Becker would have had a field day on this one – I can imagine him, hands clasped just below his bow tie, twiddling his thumbs and saying, “hypo:” Damn it, if I had my life to do over again, I’d have gone into teaching. But that was then, this is now. If you like knotty problems, check out this marvelously written article by DAVID SEGAL. It’s so good it only increases my anger at the Time’s owners/editors because they have such talented writers, and they’re blowing it. Anyway, here’s a taste, but you truly should read the whole thing.

Are they right? Should companies like TradeWinds collect damages from an oil spill even if their beaches were never sullied? Put another way, should BP have to pay for economic hardship caused by the public’s reaction to the oil, even if that reaction was utterly irrational?

The answers involve a sum of money that can safely be described as staggering. The aftermath and legal wranglings of the BP fiasco have focused so far on commercial interests — like fishing, shrimping and food processing — that relied directly on the gulf for their livelihoods. For the most part, these are people in Louisiana, Mississippi and Alabama.

What has scarcely been noted, however, is that virtually oil-free Florida just might hoover up the bulk of BP’s settlement money. The company has set aside $20 billion for a fund intended to make whole both private enterprises (for lost earnings) and the states and the federal government (for cleanup costs), with a promise to throw additional money in the pot if more is needed to cover legitimate claims.

But what if every business in Florida’s $60 billion-a-year tourist trade stands up and demands compensation for what it would have earned this summer had the spill not happened?

And what if hotels, restaurants, gas stations, miniature-golf courses, amusement parks, grocery stores, retailers, movie theaters and others want more than just those losses? What if they demand future lost revenue, too — money that would have come to Florida next year, and the year after, but won’t because people who spent their summer vacations in, say, South Carolina decided that they liked it enough to go back?

None of this should be very hard to imagine — because it’s happening. According to the estimates of plaintiffs’ lawyers, more than 100,000 entities in Florida will make what are known as proximity claims, which are based on arguments of indirect harm.

Already, the sheer number of Florida claims is outpacing those of Louisiana, among claimants who have provided addresses of where they suffered damages to the Gulf Coast Claims Facility, which is administering the BP fund: 35,500 versus just over 31,000, as of last week. Even businesses in Miami and Key West are lawyering up.

It’s the kind of conundrum that scholars have been puzzling over for a very long time.

ON the morning of Aug. 24, 1924, a 43-year-old homemaker named Helen Palsgraf stood on the Jamaica Station platform of the Long Island Rail Road in Queens, waiting for a train. When it arrived, a man struggling to climb aboard was given an assisting push by a railroad employee on the platform and a pull by another employee on the train. That caused the man to drop the package he was carrying, a newspaper wrapped around some fireworks.

What happened in the next few seconds was described the next day in The New York Times as a “short-lived pyrotechnics display,” though it sounds more like a scene from a Looney Tunes reel. The fireworks exploded, and the shock reportedly toppled a scale on the platform some distance away, which fell on Ms. Palsgraf.

She sued the railroad over her injuries and won $6,000, roughly $75,000 in today’s dollars. But her victory didn’t last. It was reversed by the New York Court of Appeals, and the majority opinion in the 4-to-3 decision was written by the future Supreme Court justice Benjamin N. Cardozo.

To win a tort claim, as every law student knows, a plaintiff needs to prove that a defendant was negligent and owed the plaintiff a duty — in Ms. Palsgraf’s case, a duty not to be harmed. Chief Judge Cardozo was skeptical that railroad employees had acted negligently, because the package carried by the passenger didn’t outwardly appear to be dangerous. But, more important, he dismissed Ms. Palsgraf’s claim because she was “outside the zone of foreseeable danger” and therefore was not owed a duty.

The key finding was this: The further away a plaintiff is from the defendant — physically, or as part of a causal chain — the harder it is to win a lawsuit.

This opinion, in Palsgraf v. Long Island Railroad Co., became a central touchstone of American tort law, one with such abiding force in legal culture that a re-enactment of the 1924 accident, performed with Legos, is now posted on YouTube.

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Hey, go on the friggin’ hike, won’t you?

Diane Terry, expeditioner

I just spent twenty minutes on the phone with Diane Terry. the woman behind the ladies’ trip to Mt. Kilimanjaro. Her point, forcibly articulated, is that she raised a ton of money for her favorite charity, money that might not otherwise have been contributed. Makes sense to me, and she sounds like a great woman. I was making fun of her clientele, not her, but regardless, it’s money for a good cause. And Diane Terry herself sounds like a hell of a woman. Remind me to stay out of her way!

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What the hell?

Fellow drives lawnmower to spring his hound. He’s arrested, dog is killed by authorities. Harsh bud, Dude.

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Scusie’s Dog Bowl is back

Oh, the people we’ve seen!

Prop me up, Connie and I can still do the show

Scene ¦ Talk show host Maury Povich and his wife, journalist Connie Chung, were seen at the bar at the Hyatt Regency Greenwich on Wednesday evening. Povich’s show “Maury” is taped in Stamford at the Rich Forum Theater along with “The Jerry Springer Show” and “The Steve Wilkos Show.” Mr. Povich, who is reported to have died in 1979, is the only known Lithuanian Jew to have been born to two women, Shirley and Ethyl.

Scene ¦ Stamford-based divorce attorney Howard Graber was seen talking to Michelle Obama at the Bedford Street Diner on Monday. The First Lady stopped in unexpectedly for a sandwich while she was in town. Who told Scusie this? Well, Attorney Graber himself, of course. The poor man is obviously desperate for some name recognition, and since he gave us the half – sandwich left over after his pathetic attempt to garner some publicity we figured, why not? Loser.

Scene ¦ Talk show host Regis Philbin and Riverside resident and sports commentator Frank Gifford were seen at Whole Foods Market in Greenwich on Thursday afternoon. Your Scuzie spotted them leaving Valbella’s loaded with doggie bags and photographed them as they presented the contents to Attorney Graber,

Will sue for food!

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I keep pointing this out but the WSJ has more credibility (duh)

The Chevy Volt runs on coal. Something has to be burned to produce electricity, because propeller beanies won’t do it.

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Wikileaks – a man gone crazy

Founder of Wikileaks abandoned by supporters.

Now it is not just governments that denounce him: some of his own comrades are abandoning him for what they see as erratic and imperious behavior, and a nearly delusional grandeur unmatched by an awareness that the digital secrets he reveals can have a price in flesh and blood.

Several WikiLeaks colleagues say he alone decided to release the Afghan documents without removing the names of Afghan intelligence sources for NATO troops. “We were very, very upset with that, and with the way he spoke about it afterwards,” said Birgitta Jonsdottir, a core WikiLeaks volunteer and a member of Iceland’s Parliament. “If he could just focus on the important things he does, it would be better.”

He is also being investigated in connection with accusations of rape and molestation involving two Swedish women. Mr. Assange has denied the allegations, saying the relations were consensual. But prosecutors in Sweden have yet to formally approve charges or dismiss the case eight weeks after the complaints against Mr. Assange were filed, damaging his quest for a secure base for himself and WikiLeaks. Though he characterizes the claims as “a smear campaign,” the scandal has compounded the pressures of his cloaked life.

 

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Call me cynical but …

I’m all for people climbing mountains – I do so myself – and exploring the wilds, but can we please do so without claiming some high moral purpose? If this band of Greenwich ladies really wanted to help AIDS-afflicted orphans, they could contribute the entire cost of their heroic trips to such a cause, and stay home. Or not; there’s nothing wrong with enjoying one’s wealth, or one’s husband wealth, and going off on a good trip. But send a check to the charity privately – don’t conflate a personal trip with a feel-good act.

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Yeah, they went down, but with class

I’m beginning to like the Yankees again. They lost, they’re out, but, as their players and manager admit, they lost to a Texas team that outplayed them, in pitching, batting and just over-all play. I can’t stand whinging – I respect teams (and people)  that admit the obvious, rather than blame bad calls, unlucky chances, or whatever. Suck it up, and try again – there’s always next year!

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Bald Eagle sighting?

Oh say can you see...

So say my neighbors, Ansley and Adrian Heap. They’re pretty sober individuals, and they swear they’ve seen one at the Point and over our creek. I’ve seen ospreys, but no eagle. They do come this far south, but usually in the deep winter, so maybe the birds know something’s coming. Anyone else out there seen this guy?

UPDATE for offended readers: Yes, I know the bird in the photo is a pigeon. I was trying to be funny.

UPDATE II – I was just out on the water with friend Bob Horton and he tells me he’s seen eagles over Binney Park. Plus a reader has commented that the Audubon bird count has already logged in a bunch of sightings, so I guess they are here. How neat.

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And this means?

Greenwich Time headline writers score again.

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Two different products for photographers – I know which one I’ll be looking at but I’d like them both

A fantastic new Leica for $26,000, a light-adding ap for the iPhone, $1.99. Both look great but …

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