Lawsuits against bars and businesses under Dram Shop laws have become routine, though still somewhat controversial when owners are sued for the excessive drinking of third parties, here and here and here. We have seen a few cases where parents or home owners have been sued, though those cases are far more controversial, here. A case in New York, however, pushes this line of cases to the farthest extreme. The parents of Robert Ogle, 16, have sued the people who they say are responsible for their son’s death by a hit-and-run driver: the people who threw a birthday party where Robert became intoxicated and the owner of the car that was stolen by the hit-and-run driver.
The chain of events began around 1:30 a.m. when Jaber left his Kia idling while he dashed into a Super Deli. Guyear, 28, stole the Kia and ran over Robert and his friend Alex Paul, 20. They were walking home after drinking at the birthday party of the son of Sing-Chau Fung and Yuk Lai Fung.
The hit-and-run driver, Kenneth Guyear, is clearly responsible. An ex-con, he was drunk and driving a stolen car.
However, Robert’s father Brendan Ogle insists that he is not the only one who caused Robert’s death: “Each person in their own way contributed to this train wreck. If everyone had exercised better judgment, my son would be alive today.” His lawyer Sanford Rubenstein agrees and says that it is just a matter of setting out the “appropriate percentage of responsibility.” That may be a bit optimistic.
The Ogle’s have sued Sing-Chau Fung and Yuk Lai Fung, who threw the party that Ogle attended and had alcoholic drinks — presumably on the grounds that he was less alert when the car came careening by. They have also sued David Jaber for leaving his running car unattended.
There is no question that leaving your car idling unattended is negligent. Indeed, it is negligent per se in most states, which have laws making such an act unlawful. However, the factual and legal causation in the case is a challenge. Factually, one could argue that “but for” Jaber’s act, the accident would not have occurred. However, the jury will have to decide if it was foreseeable that the result of such negligence was the death of this boy at the hands of an ex-con, drunk driver.
There is a strong argument to make that this was an unforeseeable plaintiff under Palsgraf v. Long Island Railroad — which ironically occurred in New York. In that case, A man running for the Long Island Railroad was carrying a package, which he dropped as he tried to jump on the train. He was assisted in his attempt to get on the train by two railroad guards. When the package fell, it exploded due to fireworks inside. That small explosion caused scales at the other end of the platform to fall on Mrs. Helen Palsgraf, who sued the railroad. While Palsgraf prevailed in the lower courts, the Court of Appeals reversed and dismissed the case in a famous opinion by Chief Judge Benjamin Cardozo.
The other problem for the Ogle’s is that, while not an absolute rule, criminal acts often cut off causation as a superseding intervening act by a third party. There are exceptions to this rule as in another famous New York case Brower v. New York Central & H.R.R. where the railroad was held liable when cider barrels and other goods were stolen from a man’s wagon after it was hit by the train.
As for the Fungs, their inclusion appears driven by the same negligence per se theories. It is negligent per se to serve minors alcohol or to throw a party where minors are drinking. The Ogle’s will claim that it is foreseeable that drunken teens can be injured in either driving drunk or wandering into traffic. However, here you have a drunk driver fleeing in a stolen car. This issue may turn on factual causation. It is not clear that “but for” allowing Robert to drink the accident would not have occurred. The adult with him was also hit in the accident and perfectly sober individuals may have been struck by the drunk driver. As a legal causation question, there is the question of a foreseeable harm or injury under either Re Polemis & Furniss, Withy & Co Ltd or Overseas Tankship Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound). Polemis is usually an easier standard to make as opposed to Wagon Mound which is more likely to find accidents too remote or due to some change in the harm.
It seems that New York could make some interesting law with the Ogle case and it is worth watching. The complaint is expected to be filed soon.
In the meantime, Guyear is charged with DWI and manslaughter — though there is no mention of auto theft in articles (which I assume is also included in the charges).
For the story, click here
mespo,
Since you asked so nicely. You sir are a wild-eyed Plaintiff’s lawyer of the very wildest type. It’s one of the things we dig about you.
Sad to say that the parent’s argument about making all those responsible pay, means that they will have to assume some of the fault too. In fact by the logic of their case they might have to assume a considerable amount of the liability.
They are legally responsible for their child until the child reaches the age of majority. They allowed the child to attend a party without supervision. If they knew how the party would unfold then allowing them to attend, given their post event attitudes, is definitely negligent. If they didn’t know how the celebrations would unfold then they failed to do due diligence and again were negligent.
Seeking to apportion blame like they appear to want to do could be a double edged sword.
Um, Mike? What I was tryin’ to say to Mespo was implying that his representatation of you might have to be pro bono. Not necessarily because of the saying that the Jewish community is known for their tightwa..erm, fiscal restraint, but rather that you were retired, like me, and might not have the funds for such high class legal counsel.
Mike ol’ buddy, are you out there, somewhere?
I don’t know Mespo, Mike is jewish, afterall…
Mike S:
“After that bit of reasoning you can handle my tort cases any time.”
*************
And damn proud to do it too!!
Ha!
Oops, make that “They’re” in the first sentence.
FFLeo:
“(On second thought, are those red, pink, or black-colored garments you wear?)”
************
Their black–like the Judge’s robe. That’s what makes the scenario legalistic, you know! 🙂
“Well, call me the wild-eyed Plaintiff’s lawyer….”
Mespo,
After that bit of reasoning you can handle my tort cases any time.
Mespo,
Thanks for staging that legalistic scenario…sans that fishnet stockings stuff, of course!!
(On second thought, are those red, pink, or black-colored garments you wear?)
Well stated Mespo.. I get your drift.
Well, call me the wild-eyed Plaintiff’s lawyer but the claim against the victim of the car theft maybe well-founded once the facts are developed. Let’s examine this scenario:
In violation of state law, I leave my car running with the key in the ignition and on the curb outside the “Free As A Bird” laundromat located across the street from Turleysville State Prison. As I wash and fluff, I hear the sirens go off across the street and the night air is then punctuated by the pleasant sounds of crackling gun fire. I dive behind the nearest Maytag cowering in fear that my fishnets might get one more hole in them. (I always wear fishnets when I saunter into the laundromat!). Big Rico, escaping from the prison after imbibing on some cafeteria hooch, jumps into my car just ahead of the chasing CO’s and careens down the street bound for parts unknown, but ends up striking Ms. Lil O’Lady as she is crossing in the crosswalk.
Foreseeable? I think a jury could conclude that under certain circumstances, a driver would be held responsible for leaving a car running if the likelihood of theft was great enough. Imagine the same facts but instead of a prison across from the laundromat, make it a fraternity party with rip-roaring drunks a’ plenty in search of beer and a crowded street festival down the road.
Jonathan H.
That is also the greatest value to me within this blawg. We all simply do not know where Prof Turley finds the time, although we thoroughly appreciate his legalist interpretations for our benefit–at for that of his law students.
This statement from you is quite curious:
_______________________________
“(I not being a non-lawyer)”
_______________________________
Hey – I really appreciate posts where you lay out some of the applicable legal principles that apply to the situation at hand (I not being a non-lawyer). Great tort analysis of this grasping at straws…
The grief, shock and rage over the loss of one’s child in this manner is unfathomable. It is obvious that these parent’s would want to punish those guilty of this terrible loss. However, it is well-known that in Torts cases you go where the money is and obviously this ex-Con doesn’t have any. Why would the boy’s parents want to punish the party throwers if not for the money? If it is solely about anger their blame is misplaced. However, if it is about the money, then the Fung’s are the place to go.
To me there is no nexus given the intervening act of the driver of the car and serving alcohol at a kid’s party is not a something that leads to this foreseeable result.
My god, how far can this thing go? Can they also sue the alcohol beverage company? The penal system that allowed the convict back into society? Can the Ogle family be found negligent for allowing thier son to go to a party in the first place since there is so much danger in the world?
I think thier lawyer Rubenstein is the creep of all creeps. He is exploiting the emotionally distressed so he can make a buck. What a slimeball to advised the Ogles to persue this action when no one in thier right mind could find the defendents responsible. What a jerk!
This is a crazy case and it is not like this has not happened before. How the parents are liable is beyond me. Just say NO.
I hate to imagine living in a town where a jury is selected who will buy into the plaintiff’s theory of the case and render a verdict in their favor.
This case is a dog that won’t hunt. Sanford Rubenstein sounds like he can sell some thinly veiled shinola to the clients, but that causal chain wouldn’t placate Judge Ito much less a real judge. Being struck by drunken third party in a stolen car is the ultimate in unforeseeable. That last sentence alone has three elements that are by definition out of anyone’s control but Guyear –
1) third party: if anyone could remotely control a third party before a crime is committed we’d have an Office of Pre-Crime or some kind of mind control device. You know, like television only more effective.
2) drunk: related to #1 and while it’s foreseeable that someone somewhere is drunk at any given point in time that’s about as specific as that prognostication gets.
3) A supervening set of multiple crimes that are most certainly the “but for” in the present case. Most 2Ls would take this apart let alone selling it to a judge or jury. Why? Because of the math. Thousands upon thousands of people of all ages go to parties every day and get either legally or illegally a bit tipsy and walk home but they more often than not make it home without the drunk felon in a stolen car hitting them. But for Guyer’s acts, so would have Ogle. As to the Kia’s owner, he may be negligent per se and guilty of a statutory violation, but the foreseeability of that negligence should end at the foreseeability that the vehicle could be stolen, not as to it’s use after leaving Jaber’s control. The most likely foreseeable consequence for a stolen vehicle is to end up as parts, not use in future felonies. While we are at it, let’s be honest about how that law is usually applied too: to give insurance companies an out for paying out on a stolen car because someone was stupid enough to leave it running unattended.
Sanford Rubenstein should be getting the hairy eye for telling these clients this is a strong enough case to merit his fees. It’s a weak claim at best.
This case is a nightmare. I can understand the theory about going after the parents who may have allowed the victims to drink, but I am not sure how they can prove that their drinking was a cause of their injuries and death at the hands of the ex-con. If the parents can stretch a dramshop like causation theory this far, shouldn’t it also include allowing the son out to go to a party that was going to include alcohol?