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Stop bashing the Dodgers for “blaming” Bryan Stow for his injuries

Oct 27, 2011, 6:51 PM EDT

lawsuit gavel

There has been a minor uproar today since it was reported that the Dodgers, in the context of the civil suit arising out of the Bryan Stow beating, will ask the jury to assign percentages of the blame to the assailants, the Dodgers … and to Bryan Stow himself.  The tenor of the uproar:  “Oh my God, the DODGERS ARE BLAMING THE VICTIM!”

Back off the ledge, people.  This is standard. It is part of any litigation involving injuries. Your indignation at the Dodgers may feel righteous, but it is misplaced.

To be sure, it’s not entirely misplaced.  The attorney who was quoted — Jerome Jackson — put it in a way that could have been a tad more callous if he put effort into it, but not terribly more so:

“You’re saying to the jury, ‘They (the Stow family) are saying we’re 100 percent liable. But does that mean (Marvin) Norwood and (Louis) Sanchez, who beat this guy up, have no liability? And, does it mean Mr. Stow himself has no liability? … I’ve been doing these cases for 23 years and I have never seen one yet in which it didn’t take at least two people to tango.”

Not the way I would have phrased it. There’s no need to say that kind of thing in that kind of off the cuff manner.  But he’s also not wrong.

California is a comparative negligence state.  What that means is, in personal injury cases in California, the jury is required to determine responsibility and damages based on the negligence of every party directly involved in the accident.

The classic case: a car accident in which one driver is speeding, the other driver fails to signal and turns in front of the speeder (whose speed he has misjudged) and an accident happens. Both parties contributed to the accident, and the jury assigns percentages of the blame. Let’s say that the speeder was 49% responsible and the turner was 51%.

Is it fair for the one who was 49% responsible to recover 100% of the damages from the one who was 51% responsible? Because that’s how the law used to be everywhere. One is right one is wrong and it’s all or nothing. People understandably had a problem with this, so most states now allow recovery based on those percentages.

Applied to the Stow case, it’s not inconceivable that a jury — once it hears the evidence — could conclude that, in fact, Bryan Stow contributed, say, 5% to the incident. How? Well, remember that video of Stow taunting Dodgers fans?  While we may all conclude that taunting is no excuse for a beating — I certainly believe that — a jury will be tasked with making its own determination of that. And of any other evidence that we don’t currently know about. They will be asked to make that impartial judgment. They could decide that Stow was 0%. They could decide it was 5%. They could decide 25%.

But the point is, no matter how unseemly is may feel to “blame the victim” as it were, the law allows the jury to decide it. And if the jury is allowed to decide it, and there is any chance that because of it the Dodgers’ liability could be reduced, the lawyer for the Dodgers is absolutely obligated to raise it. It would be legal malpractice for him not to.

If you hate this, take up your argument with the legislature who made California a comparative negligence state. Or take your argument up with the jury if and when it decides to blame the victim.  But don’t take it out on the Dodgers. And don’t take it out on the  lawyer. The man — while not exactly the most thoughtful speaker in the world — is just doin’ his job.

  1. vanmorrissey - Oct 27, 2011 at 7:01 PM

    Agree with you wholeheartedly. I’m sure the Dodgers will have to pay some amount which I wonder if they then can sue the security company they hired to prevent such an occurrence. Would think that’s a way they could go if found guilty.

    • tashkalucy - Oct 27, 2011 at 9:56 PM

      Unlike Craig, I have no legal training.

      And both Frank and his wife lead the league in lawsuits.

      But I think it’s an uphill battle to put this responsibility on the security “company”, when it was the Dodgers that cut the amount of people they were budgeting to police Dodger games (they cut back on many things because they had no money….because Frank and Jamie had numerous houses and a lavish lifestyle which they financed by playing with the Dodgers money)..

      Unless I’m mistaken, the Dodgers didn’t contract with a “security company”, I believe they hired off-duty LA policepeople. So this could prove interesting…..as if the taxpaying public hasn’t had enough of these 2 parasites.

  2. jonweisman - Oct 27, 2011 at 7:28 PM

    Craig, as I wrote today, the comments by Jackson did not come in a courtroom. They came in the media, and they came in a story which also quotes Jackson as saying that the public outrage against McCourt “baffles” him.

    The Dodgers and McCourt are entitled to defend themselves in court and no one should expect them to do any less. But the simple truth is the statement by Jackson was not only insensitive (as if that weren’t enough) but actually kind of disturbing, with the explicit suggestion that every victim he has ever encountered deserves some blame for what happens to him or her. People have every right to be offended.

    So unless you consider it part of the lawyer’s job to further inflame public opinion, then no, Jackson was not “just doin’ his job.” His job is to represent McCourt the best he can. He may do fine in the courtroom, but today, he took his case to the public and failed.

    • Craig Calcaterra - Oct 27, 2011 at 7:40 PM

      Jon, I agree that the lawyer spoke poorly (said so in the post). Ideally he should have said nothing at all. But it did seem to me from the article that he was explaining the legal defense (i.e. the fact that a comp negligence claim will be asserted) not that he was offering some larger opinion about who is to blame.

      • jonweisman - Oct 27, 2011 at 7:52 PM

        My point is you seem to have a problem with people getting upset, even while acknowledging he said something upsetting.

        Yes, the law may find that the victim bears some responsibility, and he’s entitled to explain what his legal defense is. But it’s up to him how to explain it. And if he explains it in a way as callous as “it takes two to tango” – well, then no one should be surprised or disappointed that it comes off to many as the Dodgers are blaming the victim.

        The Dodgers have had a massive, ongoing PR problem. If they didn’t care about that, fine – but to whine about it even as they exacerbate it … that sort of sums up the McCourt fiasco.

      • aaronmoreno - Oct 28, 2011 at 12:26 AM

        As a lawyer, I lean towards the defense side of litigation. I will say, however, that blaming the big mean corporation is a little different from blaming the victim. A lot of defense attorneys I’ve met have no idea how they come across in this type of case.

        But lawyers are jerks anyway, so who knows?

    • phillyphreak - Oct 27, 2011 at 7:41 PM

      I really understand this sentiment and I also agree that these statements could have been made in a better way that were less inflammatory.

      I’m just a little lost with this whole “took his case to the public” thing. Did they call a press conference themselves for the sole purposes of saying they were assigning blame or did a report ask them about it? As Craig pointed out, this is apparently common in California and it seems any lawyer worth their fee would be doing the same thing. So by these standards he is doing his job.

      • phillyphreak - Oct 27, 2011 at 7:42 PM

        I should also add that saying nothing would’ve been better but we can’t try to paint the picture that the media doesn’t fan flames too….

    • paperlions - Oct 27, 2011 at 7:41 PM

      Exactly my thoughts….it is like saying that everyone that caught a stray bullet shared some blame for being in the way of the bullet or that everyone killed by a drunk driver was partially at fault for driving somewhere when there was a drunk person on the road.

      I only see the video as important if Stow taunted the guys that beat him or if he was beaten because of that taunting. The guys that beat stow accosted other people at the stadium that day…were they also taunting dodger fans?

      • phillyphreak - Oct 27, 2011 at 7:48 PM

        I don’t know if it’s saying that. Those may be extremes. I’m not trying to say that Stow did anything wrong and I think the lawyer was definitely not tactful in his comments. But there is a difference between being an innocent bystander in a shooting and engaging in aggressive behavior that leads to your being shot at. Neither makes it right to shoot anyone (or in this case jump/cold clock anyone).

        I hope that the jury finds these jerks guilty.

      • paperlions - Oct 27, 2011 at 8:03 PM

        I was referring specifically to the lawyers “two to tango” statement. I understand the legal argument and the need to evaluate fault for all parties…but what he said was complete crap….a tango has two willing partners….a mugging also requires two parties….but that doesn’t mean both are willing participants.

      • phillyphreak - Oct 27, 2011 at 8:06 PM

        Point taken.

        Although who really wants to tango anymore…

      • explodet - Oct 27, 2011 at 8:37 PM

        “a mugging also requires two parties….but that doesn’t mean both are willing participants.”

        If the mugging victim, for example, was cutting through a dark alley, alone, in a slummy part of town then, yes, the victim is partially at fault because it is reasonably forseeable that doing that could get you mugged. That person knows they’re taking a risk by doing that. That’s what “it takes two to tango” means.

      • mattjg - Oct 28, 2011 at 10:05 AM

        You know, like how if a girl is raped while wearing slutty clothes she was asking for it, right explodet?

    • tashkalucy - Oct 27, 2011 at 10:04 PM

      jonweisman,

      You must keep in mind that to the McCourt’s, litigation is a part of the way they do business – even in Boston before they got to LA.

      Frank has worked his way through a number of attorney’s, many of which don’t want to work for him any more, and some of which then have to bring litigation to get their fees.

      Quality legal firms in LA are not exactly lining up hoping to get the McCourts business. It’s impossible to deal with either of the two of them, and the publicity they get for representing the McCourts will only cost them business.

      Mr. Jackson may well be the bottom of the barrel here, so it’s no great shock that he mishandled the interview..

  3. danielcp0303 - Oct 27, 2011 at 7:33 PM

    I hear you on the legal aspects of this, but I have to disagree with the last part of the Jackson statement. “I have never seen one yet in which it didn’t take at least two people to tango.” Maybe I’m misunderstanding what he’s trying to say, but I’ve always heard that expression when discussing a fight. From my knowledge, this wasn’t a fight. A few guys beat this man and he didn’t see it coming. So a man can’t be blamed if he was just standing there and was put into a coma. Even if they had been arguing in the ballpark (I don’t know, I wasn’t there), how is it his fault that they beat him up? I’m in no way trying to get on a high horse here or anything, feel free to correct me if I’m wrong. I admit I don’t know all of the details of the story, just the overview.

  4. leez34 - Oct 27, 2011 at 7:44 PM

    Well said, sir.

  5. halladaysbiceps - Oct 27, 2011 at 7:52 PM

    If a homeowner has a major crack in the sidewalk in front of their home, doesn’t repair it and someone trips on the crack and is hurt, the homeowner is somewhat or entirely liable, correct, and must pay damages to the victim?

    Someone explain this case to me. Bryan Stow is beaten horrifically by savages on Dodgers property at a public event and the Los Angeles Dodgers are financially responsible? I understand that the Stow family will get something from the Dodgers in the lawsuit, but is it right? I know the savages can’t begin to pay from a monetary standpoint because they probably don’t have a pot to piss in.

    Just throwing it out there. I know you guys are going to tell me that the Dodgers are responsible for security, etc. But, can any business guarantee 100% safety at a public event attended by over 40,000 people?

    • sadpandarevolt - Oct 27, 2011 at 8:10 PM

      No, you can’t make that guarantee. However, the issue here is that the Dodgers knowingly provided inadequate security. They had been warned of the issue repeatedly for months and did nothing about it. It’s a textbook negligence case.

      • halladaysbiceps - Oct 27, 2011 at 8:20 PM

        In who’s eyes did they provide inadequate security? Was this determined by MLB? Who audited their security guidelines and determined it was unsatisfactory?

      • sadpandarevolt - Oct 27, 2011 at 8:31 PM

        That’s the argument that will be made by the Stow family. And given the stadiums history with security, and the budget cuts that had been made to security in the previous months, they have a fairly strong case in with that argument.

      • Jeff M. - Oct 27, 2011 at 8:41 PM

        Biceps – the Dodgers had gone for several months with their “Head of Security” position vacant at the time of Brian Stow’s beating. I’m pretty sure that yes, the Stows will argue that the Dodgers were knowingly negligent.

        I agree with you that nobody can ever guarantee 100% safety at a large public event like this. But the argument will probably be made that the Dodgers weren’t trying as hard as they could have.

      • Roger Moore - Oct 28, 2011 at 2:13 AM

        @halladaysbiceps:

        The final decision about how good the Dodgers’ security was will be made by the jury. The rest of us can talk about it, and the lawyers for both sides will present their best case, but ultimately the jury will decide. That’s the way our system works.

        That said, the evidence against the Dodgers is pretty damning. They have a long history of violence at their game that is, AFAIK, the worst in the league. That violence has been especially bad at games against the Giants like the game where Stow was attacked. They hadn’t had a head of security for months at the time of the attack, and there’s no indication that hiring one was a high priority. There’s evidence that Security knew Stow was a target of Dodgers’ fans during the game but they made no special effort to separate him from the Dodgers’ fans during or after the game.

  6. stevem7 - Oct 27, 2011 at 9:49 PM

    Sorry Craig but you forgot the oldest rule in the book. We, as AMERICANS, enjoy freedom of speech and we can say whatever we want about the fool trying to blame the victim. You are pandering to the same type of justice that says the rape victim deserved it because her skirt was too short.

    • tashkalucy - Oct 27, 2011 at 10:24 PM

      “You are pandering to the same type of justice that says the rape victim deserved it because her skirt was too short.”

      Interesting.

      When I read about this, that’s the first thing I thought about.

      The man attended a baseball game in a city to watch his hometown team which was from another city. He had on the jersey of his hometown team. And he was attending it with his children. This happens all around America at professional and college sporting events millions of times a year. But a fan leaving the venue for his car with his children doesn’t get beaten onto a coma – and still beaten more – very often. In fact, it hasn’t happened in decades that I can think of.

      The reason this is such a big story and angers so many of us is because we bring our children and grandchildren to these sporting events. Are we now finding out that the promoter staging the event has no responsibility to insure a families safety to their car? That if we’re put in a coma for 6-8 months we need to assume some of the financial impact – which will surely bankrupt the average America family financially, while the wounds suffered will be a lifechanging event for everyone in that family?

      You think the owners of every single professional team and the administrators of every single college/high school team aren’t watching this case?

      I’d tell you that as a fan, if the victim in any way is held responsible for this, I would not allow anyone in my family to attend a major sporting event again. I’ll gladly buy them all large screen TV’s and pay the cable bill so they can watch the game at home…….where it’s safe.

      TMZHardballTalk always misses the issue.

      • cur68 - Oct 28, 2011 at 1:06 AM

        tash; I may never say this again, but I agree with you. The expectation of safety of a law abiding citizen is regardless of where they are or what they are wearing. There is no provision in the law for when it’s ok to assault someone nearly to death, no matter where they are in a public place or what they are wearing. None. what. so. ever. The fans of the Dodgers and the Giants are not at War. As such, they owe 1 another little more than on field rivalry, not violence.

  7. mightymike1250 - Oct 28, 2011 at 12:52 AM

    If I’m on the jury, Stow’s family is rich for generations to come.

  8. ezwriter69 - Oct 28, 2011 at 12:56 AM

    “Everybody else does it too” has always been the lamest of excuses… no surprise that Calcaterra barfs up that bilge to support MLB. Fact is, whether everyone else does it or not, the Dodgers are indeed, unequivocally, partially blaming the victim. Your pathetic third-grade level justification doesn’t ameliorate that one bit. They ARE blaming the victim… and you’re saying, no big deal.

    • cur68 - Oct 28, 2011 at 1:09 AM

      er…I think he’s just explaining how the legal proceedings go, dude. Probably one of the reasons he’s not lawyering anymore? You could ease up on he haterade y’know.

      • Professor Longnose - Oct 28, 2011 at 12:02 PM

        He probably deserves it. He doesn’t use the language of adding to the discussion, he uses the language of sneering. To me, he sounds arrogant and screechy, just like some of the MSM guys he and I both dislike.

        He could have titled the post “Why the California legal system made it likely the Dodgers would claim Brian Stow had some responsibility” but he didn’t. He chose to frame his remarks (and not just the title, but the whole thing) as an attack on people who are speaking out of compassion and justice, whether he agrees with them or not.

  9. aaronmoreno - Oct 28, 2011 at 1:31 PM

    Maybe Craig is pointing out that the legal system REQUIRES that the attorney for the Dodgers make this argument, or he is committing malpractice. Craig also points out that this attorney said it in a pretty insensitive way.

    Additionally, Craig was a lawyer, meaning he can argue at least at a fifth-grade level.

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