Friday, March 9, 2012

Great moments in jurisprudence

I'm coming to this a little late so forgive me if you've already heard about it.  On Jan. 31, the Oklahoma Supreme Court reinstated a $2.8 million verdict against a bus company and its insurer because one of its buses had the misfortune of being the object that country singer Toby Keith's father, H. K. Covel, plowed into, tragically killing himself in 2001.  Keith wrote the song" Courtesy of  the Red, White and Blue (the Angry American)" in honor of his father shortly after his death.
Toby Keith
These are the facts stated in the opinion:  "Covel was traveling northbound on the inside lane of I-35 when he lost control of his pickup truck and crossed the median and entered the southbound lanes of traffic.  Defendants' bus was traveling in the outside southbound lane, and Covel's pickup and the bus collided almost head on.
 "Plaintiffs (Covel's family) asserted that another driver, Sparlin, bumped H. K. Covel in the northbound lane of traffic and caused him to lose control of his vehicle.  Defendants responded that their bus was not the cause of the accident and that their driver was confronted with a sudden and unavoidable accident."
Given this set of undisputed facts, I think 99 percent of us would agree that this was a horrible accident and one, seemingly, in which the bus driver and bus company bore the least fault.   By the way, there were 21 people on the bus whose lives were also put in danger.
Nevertheless, an Oklahoma jury found that the bus company was liable after hearing from an expert who testified that if the bus's brakes had been in better condition, the bus would have collided with the bed of Covel's pickup truck instead of the cab and he might have survived. 
The jury awarded $2.8 million to Toby Keith and his family plus $5,000 in punitive damages, which is a little odd in itself.  Juries usually award punitive damages to punish the defendant for its actions and deter it from the same wrongdoing in the future.  Here, after being hit with $2.8 million, $5,000 seems a little chintzy.  Of course, it is the bus company's insurer who will pay the big award.
The bus company appealed the verdict and the Oklahoma Court of Civil Appeals overturned it, finding that the Keith family's expert's opinions were not based on any scientific methodology but were merely his own conclusions. 
The state supreme court agreed to hear the case and reinstated the award, finding that because the bus company's attorney failed to object to the expert's testimony at trial, the company had no right to object later.
It is possible that the bus company's lawyers were a bit slow on the uptake because here are two other things they reportedly failed to object to -- or at least didn't object to very often -- during trial: repeated references to the fact that the bus company is owned and operated by Mexican nationals and references to the fact that Covel was Toby Keith's father. 
Keith is rather well-known, if not revered, in Oklahoma.  Mexicans are not revered.  This was pure and simple "home field" advantage and the state supreme court -- which is elected -- made sure of which team would win.
This is one of the dangers of  electing judges; they dance, as Molly Ivins used to say, with them what brung 'em.  John Grisham wrote a whole book on the subject of corrupt, elected, southern appellate court judges,"The Appeal."
Only one Oklahoma justice, Steven W. Taylor, dissented.  Here is what he had to say:
"It is undisputed that the bus was obeying all traffic laws and had brakes that met all federal standards.  The brakes on the bus had absolutely nothing to do with this collision.  Mr. Covel uncontrollably careened in front of the bus and crashed into the bus.
"This was a sudden, instantaneous and unavoidable event.  No matter what kind of brakes the bus may have had, there is nothing the bus driver can do about a flying car instantly appearing from the other side of the highway."
You be the judge.

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