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Common Good's First Annual Gatekeeper Awards March 10, 2004 In today’s legal climate, not enough judges are acting as gatekeepers. Anyone
can sue for almost anything. Legal fear is transforming America from a can-do
nation into one where people are nervous about even ordinary daily activities.
The Gatekeeper Awards honor judges whose decisions restore public confidence
that reasonable actions will be supported by the courts, even when they result
in unintended consequences.
The judges being honored for writing the decisions in the following cases decided
in 2003:
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Chief Justice Ralph J. Cappy
(Carl R. Grady v. Frito-Lay, Inc., No. 43 WAP 2002, Supreme Court of Pennsylvania,
Western District, December 31, 2003.)
"Junk Science" excluded in claim that Doritos are inherently dangerous. In April
of 1995, Carl and Diana Grady sued Frito Lay claiming that Dorito chips stuck
in Charles Grady's throat and tore his esophagus. The Gradys wanted to present
"expert" testimony of Dr. Charles Beroes to support their claim that Doritos are
inherently dangerous. Beroes' research included pressing Doritos onto a pad-covered
gram scale until the tip snapped off, and measuring the amount of time it took
saliva to soften the Doritos. None of Beroes' tests involved chewing. The trial
court excluded Beroes' testimony and dismissed the case. That would have been
the end of it, but the mid-level Superior Court of Pennsylvania reinstated the
case and Dr. Beroes' testimony. Fortunately, the Pennsylvania Supreme Court threw
it out again, noting that Dr. Beroes' tests "smacked of a high school science
fair project." Honorable mention goes to Justice Saylor whose concurring opinion
pointed out "the common sense notion that it is necessary to properly chew hard
foodstuffs prior to swallowing."
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Justice Barbara Milano Keenan
(Donna P. Thurmond v. Prince William Professional Baseball Club, Inc., No. 020116,
Supreme Court of Virginia, January 10, 2003.)
Baseball spectator cannot sue after getting hit by a baseball. Donna Thurmond
went to see a baseball game. After passing numerous warning signs urging her to
stay alert, she settled into her seat in the bleachers on the third base side
of the stadium. During the eighth inning, Thurmund unfortunately got hit by a
line drive foul. Thurmond sued the ball club over her injury, arguing that the
club was negligent, the stadium unsafe, and the warnings (including the warning
on the back of her ticket) inadequate. Applying a good dose of common sense, Justice
Milano Keenan affirmed the trial court's dismissal of the case and made clear
that in Virginia, if you attend a baseball game, you assume the risk that you
might get hit by a ball. No one with "ordinary intelligence" could watch a baseball
game without "coming to a full realization" that batters cannot always control
the direction of the ball. Fans can expect the game of baseball to continue in
Prince William County-it won't be bankrupted by lawsuits over line drives.
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Chief Judge Anthony J. Scirica
(Amanda Walker-Serrano v. Donald Leonard, et. al., No. 01-4098, United States
Court of Appeals for the Third Circuit, April 15, 2003.)
A public school third-grader cannot sue for being prevented from soliciting classmates'
signatures for a petition opposing a voluntary class trip to the circus. Amanda
Walker-Serrano, age 9, believes circuses are cruel to animals and wanted to solicit
signatures on her petition opposing the trip. Her teacher felt the petition was
disruptive but did let her pass out coloring books and stickers that dealt with
cruelty to animals. That didn't stop Walker-Serrano's parents from making a federal
case out of the petition. They sued the president of the school board, the superintendent
of schools, the principal of the school and Amanda's teacher under the federal
civil rights statute. After four years of litigation and an unknown amount of
taxpayer dollars, the Third Circuit Court of Appeals agreed with District Judge
A. Richard Caputo that the case had no merit. "[T]he special responsibilities
of elementary school educators, and our deference to the choices they make in
operating schools, precludes elevating this dispute to the level of a constitutional
violation." Honorable mention to Judge Greenberg's concurring opinion emphasizing
that the other children's interests have to be taken into account in these kinds
of cases.
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Judge Morris Sheppard Arnold
(In re: Aircraft Accident at Little Rock, Arkansas on June 1, 1999, No. 03-1073,
U.S. Court of Appeals for the Eighth Circuit, December 16, 2003.)
Survivor of crash cannot sue airline for punitive damages where pilots did not
intentionally crash plane. At midnight on June 1, 1999, during a severe thunderstorm,
a fully loaded American Airlines jet crashed while trying to land in Little Rock,
Arkansas. Eleven people died, including the pilot, Capt. Richard Buschmann. Most
of the 129 survivors settled with the airline for undisclosed amounts within a
year of the crash. Two passengers sued seeking compensatory and punitive damages.
U.S. District Judge Eisele ruled that "uncontroverted evidence" showed the pilots
had a good faith belief that the plane could be landed safely. He threw out the
claim for punitive damages, which are intended to punish active wrongdoing, but
allowed the plaintiffs damages to compensate them for injuries and pain and suffering.
One plaintiff appealed. Upholding Judge Eisele's decision, Judge Arnold said,
in essence, no reasonable jury could find that the members of the flight crew
crashed the plane on purpose. "Stated differently, we hold that no reasonable
jury could find that the members of the flight crew knew, or ought to have known,
in light of the surrounding circumstances, that their conduct would naturally
and probably result in injury."
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Chief Justice Miriam Shearing, Justice Nancy A. Becker, and Justice Mark Gibbons
(Paola Najgrodski v. Joseph A. Volpe, and Pardee Construction Co. of NV, No. 39732,
Supreme Court of the State of Nevada, November 4, 2003.)
Passenger cannot sue homeowner for injuries sustained when car crashed into a
flowerbed. Sixteen-year-old Ross Duran was driving at 75 miles per hour in a 25
mile-per-hour zone in Las Vegas when he failed to negotiate a turn and crashed
through a cinder block wall and into a flowerbed in Joseph Volpe's backyard. Paola
Najgrodski, also 16 years old, was a passenger in the car and suffered severe
injuries. She was not wearing a seatbelt. Najgrodski decided to sue Volpe (the
homeowner), the contractor who built Volpe's flower bed and Daimler Chrysler (which
settled out of court). Najgrodski claimed that "Volpe turned the wall into a hidden
deathtrap by adding the flowerbed." District Court Judge Michael Cherry granted
summary judgment (a form of dismissal) to Volpe and the contractor, and the Nevada
Supreme Court upheld that decision: "It was unforeseeable that Najgrodski would
be traveling seventy-five miles per hour in a residential neighborhood, . . .
zoom past a stop sign, . . . and crash into the wall of Volpe's backyard. . .
. Imposing liability on residential landowners for injuries or fatalities suffered
by motorists who leave the roadway would place an undue burden on landowners."
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