OK, so I’m the only non-lawyer among The Editors here, but I watched Matlock at a bar last night — the sound was turned down, but I think I got the gist of it …
The authorities asking Turner to pay up for the nuisance caused by the Aqua Teen non-hoax-bombs actually seems right to me. I was on a jury in a medical malpractice case, and the judge informed us about the “eggshell plaintiff” (or “-skull”) rule, where you have to assess damages to a defendent based on the difference in condition in the plaintiff. In other words, if Turner is only guilty of littering, but that littering caused an area-wide panic that cost $750,000, then it ought to pay up — even though they couldn’t have reasonably forseen the hysteria whipped up by the authorities.
In other words, in spite of the city’s hysterical “post-9/11” reaction, Turner’s still responsible. And heck, they’ve gotten wall-to-wall coverage for Aqua Teen Hunger Force for what, 5 days? I’d say it’s money well-spent. Look for more of the same — ugh.
The thin-skulled plaintiff rule, where it is recognized, only goes to damages, not liability.
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If your negligence causes foreseeable harm, you can’t limit your damages to what “most” people would suffer in the injury. You have to pay for the damages you actually caused. For instance, if you drive on the sidewalk, hit an old woman, and she breaks every bone in her body, you still have to pay her medical bills–even though a younger woman without osteoperosis would probably only have broken one bone.
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If, however, the woman leapt in front of your car from behind a building, and you are found NOT negligent, her osteoperosis doesn’t make you negligent. You’re not liable for anything, big or small.
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In any case, it’s pretty hard to stretch the think-skulled plaintiff rule to behavior like the city’s. In fact, a plaintiff has an obligation to mitigate damages–if somebody accidentally torches your house, you have to do everything you can to put it out (or at least call the fire department), not sit back and expect the defendant to pay for it all. In the same way, the city had an obligation to cut its losses the second it learned the “threat” was an advertising campaign.
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So, in short: No.
… you don’t have to decide liability, do you?
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And in any event, it’s not like the city continued to hunt for Lite Brites beyond the first 24 hours. Who knows, there may still be some out there (horrors!). So, you could call that “mitigated”.
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Anyway, you’re being needlessly technical to someone who quotes Lionel Hutz. My point was that the AG’s/city’s actions in getting some $$$ from Turner are defensible.
You’re trying to justify the shakedown by using a legal theory about what the city could recover if it went to court–and then saying it’s all irrelevant because the city isn’t going to court.
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You’re also bringing up a fairly abstruse legal theory–one that not every jurisdiction even recognizes–and then complaining that talking about it is too “technical.” (And gee, I thought the position during the vote on civil rights for gays was “The law is the law?” Now the law is a “technicality?” Hmm.)
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Anyway, you can’t argue from your gut and claim you’re arguing from the law, especially when people show you the law does not support you.
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The bottom line is, Turner is agreeing to negotiate not because it fears its liability–which would be very, very hard to prove in a court of law–but because its PR people recommend it. That’s all.
“The bottom line is, Turner is agreeing to negotiate not because it fears its liability–which would be very, very hard to prove in a court of law–but because its PR people recommend it. That’s all.”
duty of care to the treasury of the city of Boston? Just because your actions hurt someone, that doesn’t mean you have a legal duty of care toward them. That has to be established in a relationship recognized by law. Where has a similar case or a statute spelled out such a duty?
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Then, what is the standard of care breached? What standard of care is required in putting up electric signs? Where is this rule found? What injury could a reasonable person expect an electric sign to cause? Falling on someone’s head, maybe, but hurting a state treasury?
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After that is proximate cause. This is no piece of cake when the harm was caused by the defendants’ own actions, as in this case. Plus, I’m not going to get into Palsgraf, but for goodness sake, it’s hard to argue that the harm to Boston was foreseeable when no one else in the U.S. reacted the way Boston officials did.
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Then you get damages. How broad is this net supposed to reach? There’s a lot of nattering on this board about undelivered packages and such. As a general rule, however, economic and consequential damages are simply not recoverable at law, and Boston would have to show its damages do not fall into that category.
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And what about Boston’s own negligence in overreacting, and in Menino’s public refusal to call off the troops after being told the “devices” were cartoon ads? A plaintiff’s own degree of negligence typically offsets the damages he is entitled to, and Turner could make hay with Boston’s own stupidity.
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Bottom line is, if you’re making the statement that Boston could recover from Turner, it’s up to you to show how–not the other way around.
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As I’ve said before, the law says what it says–not whatever anybody here thinks it “oughtta” say.
Although there’s been lots of yakkity-yak about suing or whatever, there wasn’t ever any real likelihood of that happening, IMHO — cooler heads would have recognized that suing would just have made for more bad publicity for everyone involved. Turner’s doing the right thing by volunteering to pony up a million bucks that it frankly won’t even notice are missing. Let’s hope that Joe Curtatone thinks better of his silly notion of squeezing additional “punitive damages” out of Turner.
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The only thing that still bears investigation is what actually happened over at Interference Marketing. If they really were telling Berdovsky to keep everything “on the DL” even though they knew what was going on, that’s very bad and possibly illegal behavior. Everything else is, and should be, done.
How can it not be a legal issue if the AG is negotiating the shakedown/settlement?
what’s happening is a political solution, not a legal one — it doesn’t really matter what would happen if it went to court, because it would never go for the reasons I gave earlier. I assume the AG is doing it in order to get all the i’s dotted and t’s crossed properly — in particular, Turner would probably like a guarantee that it won’t be sued after it pays up. Seems reasonable enough.
Matlock and Wikipedia aside, you maybe should have talked to your lawyer friends first. There are several reasons, why the “eggshell skull” rule really wouldn’t apply here:
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1) First, you still need to prove that the action taken was “negligent” and could reasonably have expected to have caused at least a little harm. That’s a tough call in this case. Littering is a misdemeanor crime but it isn’t generally negligent enough to be a tort.
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2) Second, this rule is rarely applied to pre-existing mental conditions. Successful implementation of the rule is almost exclusively around physical conditions (extra-weak people) and several cases have rejected the principle for preexisting mental conditions. Proving the City had an “eggshell” emergency response system in that they were unusually sensitive to perceived threats is one hell of a stretch to this already unusually-stretched doctrine.
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3) Third, I’m not sure this principle has ever been applied to a non-person plaintiff (the City, in this case) and, frankly, I find it hard to believe that it would be extended this way which would open up all sorts of difficult issues.
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Nice try, Matlock, but I think it pretty unlikely.
There isn’t enough paper on the planet to publish a daignosis of Boston’s “pre-existing mental condition”! đŸ˜‰
I disagree with both the legal and political analysis of these replies.
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As for the legal issue, it is not just “littering” it is the placement of an unlicensed outdoor advertising and creating a public disturbance. Many of the designs were not visible at 10 in the morning- they just looked like pipe bombs places under bridges. Of course the police had to react to people calling in reports of pipe bombs! If Turner did not know that its advertisements looked like pipe bombs when viewed from below, it is because they choose not to.
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Furthermore, Turner could have rented billboard space or paid for a license to place these adds. But instead it chose to appropriate public property for its own commercial benefit. A perfectly valid way to stop a corporations from externalizing the costs of it business onto the public is by suing for punitive damages. If Turner ends up making a windfall in free advertising, Pepsi and Proctor & Gamble will start distributing stencils and spray paint to graffiti “artists” rather than paying for its outdoor advertisements.
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If these adds had been for Exxon rather than Aqua Team Hunger Force, there would be unanimous support Menino and co. in the liberal blogosphere. It is a measure of how unserious liberal blogs are-especially DailyKos- when they make exceptions for corporations selling cool products.
I don’t care what you call the “outdoor advertising”; that’s beside the point of the post.
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Secondly, I’ve never seen ATHF in my life. I’m not cool enough for that.
Um, none of the pictures I’ve seen of LED display boards look like pipes. Even with the lights not visible, they’re distinctly, er…non-cylindrical.
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HT: Bruce.
That looks exactly like a flat lighted sign showing a cartoon character!
See the post to which David links. The object pictured here has no connection to Boston, and I don’t know why David posted it.
If you read Bruce’s post, he makes very cleear that that’s not something that was found in Boston, but “an Improvised Off-Route Antitank Mine.” So what’s your point?
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I hope that this was an honest mistake and that you didn’t actually read the post to which you linked. If you knew that it had nothing to do with Boston and actively misrepresented it, then I’m disappointed that you would stoop to something so deceptive.
1) The post is about punitive damages, and I gave a reason the cities should go for them. That is not relevant how?
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2) The pictures you saw were taken face on from a few feet away. The people who saw them on the bridges were looking from directly below from 20 feet away. All the pictures I saw of the signs had batteries wrapped in duct tape with wires coming out of them. That is what a pipe bomb looks like.
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No one has shown Turner was even negligent–and would have a very tough time doing so. Talking about compensatory damages, much less punitive damages, is irrelevant unless there’s actual liability.
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Um, no it doesn’t.
CNN is reporting that Turner has agreed to pay $2 million; $1 Million to reimburse the agencies and $1 million for homeland security.
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http://www.cnn.com/2…
Now usually I poo-poo on claims that we have two different legal systems, one for the rich and one for the poor. Usually these have to do with being able to hire better lawyers and I just don’t buy that argument.
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But this, IMHO, is really different sets of laws for the rich and the poor.
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Turner is buying their way out of any legal responsibility with a check for $2 Million while the two “artists” still face charges and possible jail time. How is this right?
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I am just talking about it on face value, not weather anyone should be charged and what they should be charged with. I have my own opinions on what should be done to the people involved in this case and those don’t have bearings on what I am talking about.
Calling this a “political solution, not a legal solution” is right on the mark. Turner probably wouldn’t be liable for anything, but as a corporation, their goals are to protect and promote their brands and increase revenue. From that point of view, graciously offerring to pay the city is the right choice. They got more than their money’s worth in advertising anyway. Sure, they didn’t plan to spend that much on advertising or get that much publicity for it – Boston forced it on them – but they’re getting a great deal. Spending a fraction of what it’s worth, to seal the deal and defuse hostility, makes perfect sense.
I would say $2,000,000.00 for that amount of publicity is dirt cheap. Every country in the world covered this story, in every language.
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What does THAT say, I wonder?
The number of people who recognize “Aqua Teen Hunger Force” has probably multiplied several times. And more importantly, when the ATHF movie comes out, every TV station and newspaper is gonna mention it. It gets instant frontrunner name recognition status, like Hillary Clinton in the 2008 primaries, simply for its name, whereas before, it could’ve been off to an obscure start.
That what the Chris Dodd campaign needs to do is put up several glow-in-the-dark pictures of him giving the finger underneath bridges and near hospitals? I’ll submit it to the planning committee.
I don’t think it is that hard to get to Turner’s liability
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An employer is vicariously liable for the torts of its employee’s. In this case Turner’s employee was the Interference Marketing, who broke the law and is thus liable for harms stemming from the violation.
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Furthermore, the Interference Marketing was negligent. Should an ad company know that you can’t place advertisements on public property without telling anyone? Yes. Should an ad company monitor the design of signs it pays to be placed around a city? Yes. Is it foreseeable that signs that have cylinders covered in duct tape with wires coming out of them will be mistaken for bombs? Yes. Is it foreseeable that police will respond to reports of things that look like bombs? Yes.
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I doubt Ropes & Gray is going to be calling soon.
….vicarious liability applies generally to direct employees and not necessarily to entities contracted for service. Service contracts often contain waivers of liability so your argument is flawed. Also you presume that violating a signage ordinance makes one per se liable for a faux hoax which is also not an assumption one can make. Per se liability is usually drawn within the boudaries of the intent of the law/statute/ordinace and in this case I sincerely doubt that signage ordinances were created in contemplation of terrorist scares. Plus, your entire theory of foreseeability smacks of “because I said so”. You presume issues of fact that need to be proved as foregone conclusions so your argument is really just your personal opinion and not based on any real legal foundation.
(a) RE: vicarious liability, I goofed- torts is not my area.
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(b) RE: per se liability. I think the terrorism stuff is beside the point. The purpose behind the outdoor advertising statute is to monitor advertisements and prevent those that are unsightly and disruptive. These ads were certainly disruptive.
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(c) RE: foreseeability. Since foreseeability is an issue of fact, of course I don’t have a definitive legal argument (nor would I presume to make one on a blog post). So yes, this is my opinion, just like every other post on this sight is someone’s “personal opinion.” I am likewise not convinced by the idea running through many of these posts that a corporation has no responsibility for the guerilla tactics used by the “guerilla marketing firm” the corporation hires.
…for personal opinion, but the law is not properly serviced by the expression of personal opinion with just enough legal jargon thrown in to make a position seem objectively credible to a lay reader. Your above post demonstrates pretty conclusively that you don’t understand in a true legal sense what per se liability is, for example. It is important for people who might read your post and accept it for face value to know that it might not be accurate. So while blogs are places where people express their opinions freeely they are also places where potential mis-information can be corrected. I’ve gotten stuff wrong in posts and had it corrected for me. I think that is a good thing.
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That means at a settlement of $2,000,000.00 Turner paid about $4.00 per placement. Given today’s advertising rates, that is dirt cheap. Plus it appears that EVERY country on the planet covered this story. What to make of that?