Bork's lawsuit is weak, but his hypocrisy is strong.

Overview

This post will analyze Robert Bork's lawsuit by examining the allegations in his complaint and New York law. I will also discuss briefly what a poor job his lawyers have done so far, and I will expound upon that in a subsequent post.

Bork filed his lawsuit in federal court, and the initial pleading in federal court is called a "complaint."

The laws of the State of New York will be used to determine the issues of liability and damages.

The contents of Bork's complaint

• Factual allegations
  

The facts as alleged by Bork are as follows:

6. On the evening of June 6, 2006, the New Criterion magazine held an event (the “New Criterion event”) at the Yale Club. The New Criterion invited Mr. Bork, among other guests, to deliver remarks at the event.

7. The New Criterion hosted the event in a banquet room at the Yale Club. As the host of the event, the Yale Club provided tables and chairs where guests could sit during the reception and the evening’s speeches. At the front of the room, the Yale Club provided a dais, atop which stood a lectern for speakers to address the audience.

8. Because of the height of this dais, the Yale Club’s normal practice is to provide a set of stairs between the floor and the dais. At the New Criterion event, however, the Yale Club failed to provide any steps between the floor and the dais. Nor did the Yale Club provide a handrail or any other reasonable support feature to assist guests attempting to climb the dais.

9. When it was his turn to deliver remarks to the audience, Mr. Bork approached the dais. Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register.

10. As a result of the fall, a large hematoma formed on Mr. Bork’s lower left leg, which later burst. The injury required surgery, extended medical treatment, and months of physical therapy.

11. Mr. Bork suffered excruciating pain as a result of this injury and was largely immobile during the months in which he received physical therapy, preventing him from working his typical schedule before the injury. The months of relative inactivity weakened Mr. Bork’s legs so that he still requires a cane for stability. In addition, Mr. Bork continues to have a limp as a result of this injury.

(emphasis added). The italicized excerpt is a prime example of why I (and many others) say that this complaint is poorly drafted. The intended meaning of that excerpt is far from clear. On the one hand, it seems that what the lawyers meant was that before the injury Bork had an extablished schedule that went beyond the date of the injury, but that he was unable to meet that schedule because of the injury. So why didn't the lawyers say "established" schedule instead of "typical" schedule? By using "typical," the excerpt could be interpreted to mean that the injury prevented Bork from working his schedule as it existed from the date of the injury backwards from--not after--that date. That makes no sense, and in fact is impossible. Perhaps what the lawyers intended to convey was that after the injury Bork was unable to work a schedule similar to what he had prior to the injury, but they did not make that clear, to say the least, and that meaning presents significant problems. As discussed below, Bork is seeking damages for lost work and income. If he cannot show specific work and income that he lost after the date of the injury, he cannot recover any damages for lost work. Showing a "typical" instead of an actual and established schedule ain't gonna cut it. This is really sloppy drafting which I would not expect to see from a semi-experienced plaintiff's lawyer or lawyers from one of the nation's largest and most prestigious law firms, but I will discuss that in a subsequent post.

One fact other fact to keep in mind is that at the time of this incident, Bork was 79 years old.

• Allegations of negligence

In ¶¶ 13-14 of his complaint, Bork alleges that the Yale Club had a duty to provide reasonably safe facilities, and that such duty meant that the Club was required to provide stairs and a handrail from the floor to the dais. Bork also alleges the following:

15. It was reasonably foreseeable that, by failing to provide a safe dais and stairs between the floor and dais, a supporting handrail, or any other reasonable support feature, a guest such as Mr. Bork attending the New Criterion event would be injured while attempting to mount the dais.

16. The Yale Club’s negligent failure to provide reasonably safe facilities, and in particular, its failure to provide a safe dais and stairs between the floor and dais, a supporting handrail, or any other reasonable support feature to protect its guests attempting to mount the dais, caused Mr. Bork to fall while attempting to mount the dais and caused his extensive and continuing injuries.

Paragraph 17 alleges that due to this negligence, Bork suffered damages.

These damages include pain and suffering, a continuing leg injury, medical bills and related costs of treatment, and lost work time and income. The long-term effects of his injuries continue to manifest themselves.

These alleged damages will be discussed in detail in a subsequent section.

• Allegations of gross negligence

Bork's allegations of gross negligence and damages are the same as those for ordinary negligence listed above, with one difference. All the allegations for gross negligence claim that the Yale Club acted wantonly, willfully, and in reckless disregard of the safety of its guests.

• Damages sought by Bork

According to the complaint, Bork seeks three basic types of damages:

A. Awarding actual damages resulting from Defendant’s wrongdoing in excess of $1,000,000.

B. Punitive damages in an amount to be proven at trial.

C. Pre- and post-judgment costs, interest and attorney’s fees.

My first reactions to the complaint

Much of what follows will have more meaning to lawyers, but I will try to explain some things for the non-lawyers who might be among my oh so vast readership.

Where to start? I guess I'll start with how poorly the complaint was drafted. Early in my career, If I had tried to file a pleading that was put together like this one, I would have been told to fix it or find a new job. Most of my career has involved representing plaintiffs, and I have worked on many personal injury cases. Based on my experience, Bork's complaint is missing a great many basic factual allegations. I will give an example. Just because an organization such as the Yale Club hosts an event in some building does not necessarily mean the organization will be liable for the claims made by Bork. Depending on the state and the applicable law, the owner of the building could be liable. Good personal injury lawyers know to include allegations showing ownership and control of premises and events. This was not done by Bork's lawyers. Did the Yale Club own and control the premises, or did the New Criterion magazine? Did the magazine or the Yale Club have control over the premises and the event? No one can tell from the complaint, and that shows shoddy work. I am not going to list any of the other missing allegations now for two reasons: 1) those allegations are not absolutely required under federal pleading rules, and 2) I will instead quote a New York personal injury lawyer on these missing allegations. I will, however, say that the absence of these allegations indicates that Bork's lawyers don't have a clue about how to handle a plaintiff's claim in a personal injury lawsuit.

Next, I wondered about contributory or comparative negligence (which is called "proportionate responsibility" in Texas). These terms basically refer to any fault on the part of the injured person who is suing (the plaintiff). In almost all states, such contributory or comparative conduct by the plaintiff can reduce or eliminate the amount of damages the plaintiff receives. Bork obviously saw that there were no stairs, handrails, or any other "reasonable support features," and yet he decided to try to mount the dais. Bork, a 79-year old man, freely decided to try to step onto the dais in spite of the fact that he saw no stairs or handrail. And, given the lack of anything to the contrary in the complaint, it appears that Bork did not ask for any assistance of any kind. I immediately thought that Bork was in large part responsible for his own injuries.

Then I thought about doctrines known as "assumption of the risk" and "open and obvious conditions." These doctrines go to the plaintiff's conduct. If a dangerous condition (like no stairs or handrail beside a dais) is open and obvious and a person still tries to mount the dais, he could be found to have assumed any risk involved in trying to mount the dais, and such conduct could then reduce the amount of damages he can recover. It sure seemed to me that these doctrines would be highly applicable to Bork's lawsuit.

But don't take my word for it. In my first post about this case, I quoted some comments from Ted Frank (tort reform advocate and resident fellow at the American Enterprise Institute). Here are some more:

Bork is not claiming that he involuntarily slipped on stairs that were poorly maintained, he is not claiming that the dais was deceptively placed such that he didn't realize there was a large drop; Bork is claiming that he made a conscious decision to try to climb onto a dais and fell.

*******

[This is] a case of what is at best comparative negligence, and the plaintiff here is seeking to blame the defendant for an incident where the plaintiff's actions are an intervening cause. Judge Bork is not so addled that the possibilities of accident from a 79-year-old climbing a dais are not at least as foreseeable to him as to the defendant, who is less aware of Bork's physical capabilities.

Yeah, what he said. Even on the Free Republic site--which is hardly liberal-friendly, to put it mildly--one poster (by the name of DemEater) succinctly explained the weakness of Bork's claims:

Why not ask for stairs or a boost up rather than trying to climb on the stage at 80+ years old? And if it was so open and obvious, it should have been obvious not to do it.

(emphasis added).

As for damages, I had several concerns. Judging from the allegations of the complaint, actual damages won't get to $1 million without a substantial award for pain and suffering. And, as I noted in my first post on this case, "pain and suffering" is a favorite target of the tort reform crowd (and lest anyone has forgotten, Bork is a prominent figure in that crowd). Not only that, but Bork is seeking actual damages "in excess" of $1 million! There's no way he gets that without a big award for pain and suffering. The next thing that caught my eye was the request for attorney's fees. I know that in Texas, a plaintiff cannot get attorney's fees in a personal injury case.

And then I realized that in order to evaluate Bork's claims, I would need to know about New York law. As it turns out, New York law shows that Bork has a weak case.

New York law on liability

Section 1411 of the New York Consolidated Laws reads as follows:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

Thus, contributory negligence and assumption of risk will be applicable in Bork's case.

According to this website,

New York follows a pure comparative negligence system. With this system, a judge or jury assigns a percentage of fault to each responsible party and then apportions the damage award accordingly. Using this system, an injured person may recover his or her damages even if the injured person was 99% at fault in causing the injury, with those damages reduced by his or her portion of the fault.

So, Bork could end up winning the battle but losing the war. He could get a judgment that the Yale Club was negligent, but his damages could be reduced to almost nothing because of his own conduct.

I also found some in-depth analysis on a site called the New York Personal Injury Law Blog. The author of that site is Eric Turkewitz, a lawyer in New York City who has been a personal injury lawyer (meaning he generally represents plaintiffs) in New York for over 20 years. In other words, this guy knows personal injury law and what is needed to win a personal injury case. In a post unrelated to the Bork case, Turkewitz noted that a typical defense in a slip and fall case in New York is that the unsafe condition was open and obvious. My limited research of New York case law shows that an open and obvious condition is relevant to the issue of the plaintiff's contributory/comparative negligence. Here's what that means. An open and obvious condition does not relieve the owner or controller of premises of a duty to keep those premises reasonably safe, meaning in turn that the owner/controller could still be found liable--but an open and obvious condition can be used to reduce the amount of damages an injured party can recover. [NOTE: My research was not exhaustive, and I did not find any Court of Appeals decisions. If any New York lawyers want to clarify this point, I would welcome that.] So an open and obvious condition could result in a plaintiff winning the battle (getting a judgment that the defendant is liable) but losing the war (receiving very little in damages).

Turkewitz has devoted a separate page to the Bork case. On June 8, Turkewitz posted his initial thoughts on Bork's lawsuit:

1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort "reform" activities.
2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?

(emphasis added). I'm telling ya, the answer to that last question is "pain and suffering." In any event, here is analysis from a highly experienced plaintiff's lawyer who knows New York personal injury law, and that analysis shows that much of Bork's lawsuit is weak, and it shows Bork's abject hypocrisy. Three days later, after having given the matter more thought, Turkewitz posted his list of "top 10 things Judge Bork should consider." The list is brilliant, and I urge people to read the entire list, as I am going to quote only portions of it, specifically those showing what allegations should have been in the complaint.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn't do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the "host." (In paragraph 7, you called both Yale and New Criterion the "host.") Whatever you do, just don't leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

None of this might be meaningful to non-lawyers, but trust me when I say that all of the things mentioned by Turkewitz are basic, rudimentary matters--as in things that any lawyer with even scant experience in handling these types of cases would know to include and would not think about filing a lawsuit that did not contain these matters.

Turkewitz's "top ten" list also had a suggestion about Bork's actual damages, but I will discuss that item in the next section.

Thus, New York law shows that Bork's complaint is poorly drafted, seeks damages that are not allowed under New York law, and that his basic claims are weak because of his own conduct.

Back to Bork's hypocrisy

Recall that my earlier post had this excerpt from an editorial co-authored by Bork:

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories.

(emphasis added). These words ring hollow now. Bork has brought a lawsuit that seeks a "lottery-like windfall" for injuries caused in large part by his own actions. Instead of accepting responsibility for his own poor judgment, his own decision to proceed in the face of an open and obvious danger, and his own refusal to seek any assistance, he seeks to recover actual damages in excess of $1 million dollars AND punitive damages.

Item 2 in Turkewitz's "top ten" list in part addresses Bork's allegation that parts of his damages are "lost work time and income." Item 2 goes on to show Bork's hypocrisy in light of the editorial excerpt above:

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don't know of what you have written. You don't want them to know either, because some of the claims in your federal complaint can't be justified under any legal theory. And that makes you, as a former big-shot judge, look bad.

(emphasis in original). As far as I am concerned, Bork has always looked bad. He has always been a arrogant hypocritical elitist who tries to dress up his agenda in grand principles that sound good, but then when he tries to apply those principles, his true nature comes through. Since his Supreme Court nomination was thankfully shot down, he has been defended and supported by the right wingers. That is, perhaps until now. Turkewitz stated on June 13 that

I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Town Hall is the place online to find the "Who's who" of right wing conservative pundits. I did my own search of the site just before publishing this post. There is still no mention of this lawsuit. That is interesting because almost without fail, any time some winger darling--like Bork--is attacked, there is an immediate response by the wingers. And boy, has there been an attack on Bork over this lawsuit. The fact that no one--other than his son--has tried to defend Bork could be an indication that at last we know how much hypocrisy is too much even for the wingers.