It's always nice to report trial success. Joel S. Rosen, whose office is next to mine at the new Cohen, Placitella and Roth offices, had a significant win yesterday, in the Lehigh County Common Pleas court. This result was picked up by the Associated Press and reported in the Philadelphia papers. It wasn't the typical negligence case:
Philadelphia Inquirer | 09/09/2006 | Woman injured by hunter's stray bullet wins lawsuit
ALLENTOWN - A woman injured by a stray bullet when she was pregnant nearly two years ago has won a civil lawsuit she filed against the hunter who allegedly fired the shot. A Lehigh County jury yesterday decided that Casey Kantner, 20, deserves compensation for her injuries. Kantner was shot in the head and critically wounded on Nov. 20, 2004, as she sat in a car outside her home.
Without getting into some of the strategy we discussed during the week (since the case is ongoing), there's some larger issues that arise from this case.
Here's the more of the story, as reported:
Kantner sued hunter Craig Wetzel for negligence. Also named in the lawsuit were Daniel Haas, the owner of the orchard from which the shots were fired, and his company, Overlook Orchards Inc. Wetzel, 48, has maintained that his errant shots hit the ground. Last year, he pleaded guilty to violating hunting laws and was given six months' probation. He lost hunting privileges for five to 10 years and was required to pay $3,175 in restitution.
This week, the jury's only task was to decide whether Wetzel and Haas were liable for Kantner's injuries and apportion liability by percentage. A second jury will be convened to determine monetary damages. The jury found Wetzel 90 percent responsible and Haas 10 percent responsible.
Joel overcame some stereotyped notions about jury responses to win this verdict. The result is a tribute to Joel and to the jury system.
For one, the tort reform crowd claims that juror decisions are swayed by sympathy for seriously injured plaintiffs. But here, the trial was bifurcated. The jury didn't hear any details about the injuries, costs, or long term effects that our client has to live with. Their verdict was based on the facts of the case.
Another factor was that outside the major cities, hunting is very popular. Even though Allentown is a sizeable city, the jury would be drawn from the entire county, including the towns and rural areas. The jury understood that this case was not an attack on hunting or gun ownership: instead, it was about responsibility and due care required when handling these dangerous weapons.
The hunter was using a high-powered rifle and made a hasty shot without considering the nearby residents. The landowner allowed this hunting, even though he knew that the location was "tight." The jury assessed responsibility on both defendants, with 10% responsibility on the landowner who permitted this dangerous activity and exposed his neighbors to the danger.
Joint liability, now under serious attack by the tort reform lobby, is the key to justice for our client. Whatever the fair amount of damages she may be awarded, if joint liability is abolished or modified, likely she could only collect one-tenth of her damages. Realistically, the individual hunter may never be able to pay the award. The landowner, with a commercial orchard and a large plot of land, has the ability to compensate the injured person. The "reformers" say it is unfair if someone with 10% of the responsibility has to pay 100% of the damages.
Well, that's not really the right way to ask the question. The real issue is: who should bear the risk and burden of trying to collect the 90% of damages owed by the hunter? Because, under joint liability, any defendant who pays more than its "share" can go after the other defendants for contribution to make up the difference. So, if the hunter can't pay all of his 90%, who should suffer for that loss?
Should it be our client, a young, expectant mother, who was sitting in her driveway, minding her own business, when the bullet came crashing into her head? She's a completely innocent victim, who was minding her own business, doing nothing wrong.
Or should it be the landowner, whose negligence contributed to the tragedy, as found by a jury of fellow Lehigh County citizens? Without the landowner's negligence, had he not allowed the hunting, this never would have happened. Why should the innocent victim go virtually uncompensated?
