Wrong Time, Wrong Target In Newtown Suit
Irving Pinsky’s phone has been ringing off the hook. Some callers are wishing him well. But 50 or so folks want him dead, or so they say.
Even his brother and sister lawyers in the Connecticut Trial Lawyers Association have turned their backs on him. The New Haven lawyer has become a pariah because he tried to sue the state on behalf of a client’s minor child, a child who went to school one day and then endured the sounds of the slaughter of classmates and teachers over her school’s public address system.
I confess to surprise when I learned that Pinsky had filed a claim on behalf of a child in Newtown. He went to the Connecticut Claims Commission, and sought $100 million on behalf of the child. It was national news. The anonymous flotsam and jetsam of online comments skewered Pinsky as little more than a shyster: “Whatcha gonna do with one-third of all that dough, Irving?”
Lawyer bashing is a popular sport — until you need one. Then you expect your lawyer to extend his neck on your behalf. Personal injury lawyers typically work on a contingency fee, taking a percentage of what they win as their compensation for taking your case.
What surprised me about the Pinsky claim was that he chose the wrong forum.
The state’s Claims Commission is a very medieval sort of entity. It has the power to grant or to withhold permission from a party to sue the state. Such permission is needed because the state enjoys sovereign immunity. In other words, you cannot sue the state without its permission.
Consider life to be analogous to a board game. You and I are tokens; the rule of law define what moves we can make on life’s board, and what we can do to one another. An immunity removes a token from the board, taking it out of play. Sovereign immunity declares that the state is beyond reach — it cannot be sued.
However, justice sometimes requires that the state submit to suit so that a party can recover damages. The Claims Commission can grant permission to sue the state; the General Assembly can also do so. Thus, Charla Nash’s attempt to get permission to sue the state of Connecticut after being mauled by her friend’s chimpanzee, Travis, in 2009.
To gain permission to sue the state, you still need a decent theory of liability. In other words, you need some legal doctrine that could hold the state at fault, if only it could be sued.
In the Newtown case, there simply is no such theory. Pinsky maintains the state failed to provide a safe environment. That’s a threadbare claim. In fact, civil rights lawyers know a sad fact — the state does not have a general duty to protect its citizens. Put another way, the state, unlike a private entity, say McDonald’s, cannot be sued simply because someone is injured on the state’s premises.
But here’s the rub, the thing Pinsky missed in the Newtown case: The school is not a state entity; it is a municipal entity. As paradoxical as it sounds, municipalities do not enjoy broad sovereign immunity. You can sue a municipality without permission of the Claims Commission — you can go right to court. (I realize this sounds horribly, perhaps even maddeningly, complex, but such is the law.)
To prevail in a claim against a town, you need to prove that as a result of some act or omission, the town exposed an identifiable person to the foreseeable risk of harm. This thorny legal doctrine took shape in Connecticut in 1982, in a case involving a person killed by a drunken driver. A police officer stopped a drunken driver and permitted the driver to go about his way. Shortly thereafter, the driver killed another motorist in an accident. The estate of the dead person filed suit: If the police officer had arrested the drunken driver, there would have been no accident. Hence, both the town — Stonington — and the officer should be liable for negligence.
Our Supreme Court thought otherwise, ruling that neither the officer nor the town owed a duty of care to the driver eventually killed. In order to have such a duty, there must be a foreseeable party facing imminent, or near, risk of harm. The dead driver was not an identifiable victim when the drunken driver was set free, the court concluded. It is a hard result, but it is the law.
Pinsky’s client may well have a claim against the Newtown schools. As I understand it, a student was sitting in a classroom when horrible events were broadcast over the school’s public address system. Clearly, the school owed a duty of care to the student. Just as clearly, the school exposed the children to sounds too terrifying to imagine. Those sounds surely caused trauma and harm.
Is this a legally viable claim? Fortunately, there is no case like it in state law. It is, as lawyers sometimes say, an unsettled — and the rest of us might say, an unsettling — question.
Pinsky is guilty of grandstanding. Claiming he wanted $100 million in damages was the foolish sort of thing lawyers seeking headlines engage in far too often. Juries decide damages. Telegraphing a jaw-dropping sum serves no point.
But the legal issue Pinsky raised is potentially significant, a fact the Connecticut Trial Lawyers Association ignored when it blasted Pinsky in a press release for being insensitive in the timing of his suit.
The trial lawyer’s club is typically on the front line of claims for money damages, and it defends its prerogative to seek them on behalf of clients with broad appeals to justice and accountability. Did it attack Pinsky merely because he was artless in raising this claim?
Pinsky withdrew his claim almost immediately, but the legal issues arising from the Newtown killings will reverberate in the courts for years to come. Pinsky merely had the misfortune to get there first, picking the wrong forum, at the wrong time.
Reprinted courtesy of the Journal Register Co.
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