Oct 27, 2011, 6:51 PM EST
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.
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