Tuesday, February 24, 2009

Heads or Tails #79 -- Case (or something that rhymes with case)

Welcome to the Paczki Day edition of Heads or Tails, the tantalizing Tuesday tone poem orchestrated by Barb. This week we are asked to write about "case" or something that rhymes with "case."

Let's see, now.... I'm a lawyer... case... case... gosh, this is a toughie....

Actually, it's tougher than you know because I'm on deadline on a brief. Well, two briefs. In two different cases. One I expected to write but I expected to merely contribute to the other. Things change. And there's a couple of emails with large attachments I need to read as well. And there's two Federal cases that are driving me crazy... for different reasons.

So let me share this story of a real case that I first wrote about in 2007. I'll see if I can't edit it a little... you know? polish it a bit?

That's America to Me

The Tenant family alleged that Daughter Tenant, 21, had an epileptic seizure while exiting the shower. She fell, unconscious, into a scalding hot pool of water on the bathroom floor. She suffered facial scarring as a result of this event and her family charged that it was the leaky bathroom radiator that had caused the pool of hot water. The family heard a loud noise when the incident happened, forced open the bathroom door and rescued the girl from further injury.

Of course, radiators are supposed to be hot -- especially in January when this accident occurred -- but they're not supposed to leak pools of scalding water. So the Tenants sued the Landlords.

There was a scar.

I represented the Landlords. I arranged for the girl to be seen by a plastic surgeon to evaluate the scar. The plaintiff's attorney couldn't complain: I was going to have the scar evaluated. Sometimes that means the defense is thinking about settlement. Could the scar be reduced? Could it be removed? At what cost? But I also asked the surgeon to evaluate, if he could, how the scar was formed.

What he told me -- and what he told the court in an Affidavit -- was that the scar was consistent with a burn caused by direct contact with a heat source -- and inconsistent with a scalding burn. He opined that Daughter Tenant fell against the radiator; otherwise she would not have received the kind of scar she exhibited. The girl couldn't contradict any of this; she'd been unconscious. And the family members found her on the floor, but that was not inconsistent with her slumping there after being burned. As for the water on the floor? The shower was still running.

The court granted us summary judgment: That means there was no trial. The court decided the case as a matter of law, finding that the girl could not hope to prove her case against the Landlords. An appeal was filed, but it was not pursued.

I suppose this is a good story to illustrate how a little medical or scientific analysis can help find the truth in a lawsuit -- but this case just says "America" to me. Here's why:

Dr. and Mrs. Landlord testified at their depositions that they were deeply hurt by the tenants' suit. After all, did they not always help Mrs. Tenant bring in her groceries when they saw her coming back from the store? And didn't Dr. Landlord always take down the garbage from the back porch when the Tenants left it there? They were always around the place, they said, tending it, fixing it, maintaining it in pristine condition. I think there's a secret school somewhere where landlords -- from every background -- are taught to say the same things. If anyone had asked, I was quite sure that Mrs. Landlord would have claimed to have brought homemade chicken soup to the Tenants' apartment whenever anyone had the sniffles.

Fortunately no one asked about the chicken soup.

And the Tenants, too, had all the clichés down pat: They only saw Dr. Landlord on the first of the month, when the rent was due. He was impossible to miss on that day -- and impossible to find at any other time, particularly when repairs were needed. And repairs were frequently needed because the Landlords didn't maintain the building at all: Wasn't it the leaking bathroom radiator that was the cause of their daughter's injuries? They harangued the Landlords about the shoddy condition of their apartment... whenever they could track either of them down.

And the punchline?

The Landlords, husband and wife, were recent immigrants from South Korea. He was a doctor in his native country; he never qualified to practice medicine in this country, though. His English was never quite good enough. Both my clients had a Korean-English translator for their depositions.

The Tenants were recent Iranian immigrants (this is a story of a case I handled many years ago); when family members were deposed we needed a Farsi-English translator.

In each of the depositions, the witnesses were asked how they communicated with each other. "In English," said the Landlords. "In English," said the Tenants. Yes, that says America to me....


Barb said...

I somehow knew you wouldn't go with "Rhymes With Case."

There are so many frivolous lawsuits it boggles the mind. Like the woman who sued McD because her coffee was HOT when she spilled it on her lap. If she'd had you for her lawyer, she may have won it. ;)

Tumblewords: said...

Law is fascinating as well as aggravating! Interesting post....

Anonymous said...

Ain't America grand?