Would a reasonably prudent dog batter a postal worker, negligently knock over a vase with a wagging tail or trespass on property to urinate or defecate?
Maybe we’ll find out, now that a court has held that a dog in a dog-bite case was to be judged by a “reasonable dog” standard.
In Kirkham v. Will, an Illinois intermediate appellate court held that, in deciding whether the defense of provocation applied in a dog-bite case, the appropriate test to apply was the “reasonable dog” standard; that is, how a reasonable dog would have reacted to the plaintiff’s presence under similar circumstances.
How a reasonably prudent person would have behaved under a given set of circumstances is one of the great imponderables of tort law that jurors, law students, lawyers, judges and law professors struggle with every day. Despite manifold attempts to define the standard, answers remain elusive.
We entrust the decision to jurors because they presumably know how reasonable people would act. Are they competent to determine how reasonable dogs would act? I can see it now, ads for expert witnesses in “Canine Behavior.”
— Kirkham v. Will, 724 N.E.2d 1062, 1065 (Ill. App. Ct. 2000). Thanks to Darius Asly.
Nothing funny about U.S. v. Pipkins, a case involving RICO convictions for several “pimps,” including convictions for using underage woman as prostitutes. But it certainly qualifies as “strange,” given the Eleventh Circuit’s elaborate explanation of the complex hierarchy and jargon of pimping and prostitution, which in this case even included instructional videos for both pimps and prostitutes. Here are some excerpts:
[E]ach pimp kept a stable of prostitutes with a well-defined pecking order. At the top of each pimp’s organization was his “bottom girl,” a trusted and experienced prostitute or female associate. Next in the pimp’s chain of command was a “wife-in-law,” a prostitute with supervisory duties similar to those of the bottom girl. A pimp’s bottom girl or wife-in-law often worked the track in his stead, running interference for and collecting money from the pimp’s other prostitutes. The bottom girl also looked after the pimp’s affairs if the pimp was out of town, incarcerated, or otherwise unavailable.
The pimps also recognized a hierarchy among their own. “Popcorn pimps,” “wanna-bes,” and “hustlers” were the least respected, newer pimps. A “guerilla pimp” (as other pimps and prostitutes considered Moore) primarily used violence and intimidation to control his prostitutes. Others were regarded as “finesse pimps,” who excelled in the psychological trickery needed to deceive juvenile females and to retain their services. Finally, “players” (apparently, in this case, Pipkins) were successful, established pimps who were well-respected within the pimp brotherhood. …
The pimping subculture in Atlanta operated under a set of rules, presented in the video called Really Really Pimpin’ in Da South. This videotape was made in Atlanta by Pipkins and Carlos Glover, a business associate. Really Really Pimpin’ in Da South featured prominent Atlanta pimps, including Pipkins, explaining the rules of the game. This video, along with its companion piece, Pimps Up Hoes Down, outlined the pimp code of conduct, and was repeatedly shown to new pimps and prostitutes alike to concisely explain what was expected of a prostitute. The origin of Pimps Up Hoes Down is unknown. In essence, these videos taught that prostitutes were required to perform sexual acts, known as “tricks” or “dates,” for money. … Despite the pimps best efforts to subjugate their prostitutes, the rules allowed a prostitute to move from one pimp to another by “choosing.” This was accomplished by the prostitute making her intentions known to the new pimp, and then presenting the new pimp with money, a practice known as “breaking bread.” The new pimp would then “serve” the former pimp by notifying him that the prostitute had entered his fold. The former pimp was bound to honor the prostitute’s decision to choose her new pimp. A prostitute who frequently moved from pimp to pimp was known as a “Choosey Susie.” And, a prostitute might “bounce” from pimp to pimp by moving among different pimps without paying for the privilege of choosing.”
The court also detailed extensive physical abuse against prostitutes as part of the “rules govern[ing] a prostitute’s conduct,” mentioned that one defendant used his prostitutes to “entertain[ ] members of a municipal police force at his home,” and noted that the pimps “operated as a price-fixing cartel” to regulate prices for prostitution services.
If you ever thought prostitution was a “victimless crime,” go read this opinion.
— United States v. Pipkins, 378 F.3d 1281, 1285–86 (11th Cir. 2004). Thanks to Paul Scott.
Simon and Garfunkel - Noted admiralty law experts.
In U.S. v. McPhee, the defendants were charged with conspiracy to import marijuana, after their boat, the Notty, was intercepted by Coast Guard cutters off the coast of Florida.
A key jurisdictional issue was whether the boat was intercepted within the territorial waters of the Bahamas. Defendants argued it was, on the basis that the interdiction occurred within 12 miles of Saint Vincent Rock, which defendants asserted is a Bahamian island. The government argued that Saint Vincent Rock is only a “rock” and does not qualify as an “island.”
The U.S. Court of Appeals for the Eleventh Circuit agreed with the government, although it conceded the question was not without its nuances, citing Simon & Garfunkel as authority (paragraph breaks inserted):
FN 9. The Government argued that the Notty was in international waters or on the “high seas” because “Saint Vincent Rock is a rock. If it was an island, it would be called Saint Vincent Island, not Saint Vincent Rock.” Ultimately, we must determine whether it is a rock or an island according to the statutory definitions provided by the Archipelagic Act.
We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time.
See Paul Simon and Art Garfunkel, I am a Rock, on Sounds of Silence (Columbia 1966) (“A winter’s day, in a deep and dark December. I am alone, gazing from my window, to the streets below, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I’ve built walls, a fortress deep and mighty, that none may penetrate. I have no need of friendship, friendship causes pain. It’s laughter and it’s loving I disdain. I am a rock, I am an island. Don’t talk of love. Well I’ve heard the word before. It’s sleeping in my memory. I won’t disturb the slumber of feelings that have died. If I never loved, I never would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one touches me. I am a rock, I am an island. And a rock feels no pain. And an island never cries.”).
The court did note, however, that “neither Simon nor Garfunkel has been identified as a nautical expert.”
Maybe the government could have bolstered its jurisdictional case by citing John Mellencamp and arguing that the “R.O.C.K. [was] in the U.S.A.”.
— United States v. McPhee, 336 F.3d 1269, 1279 n.9 (11th Cir. 2003). Thanks to Michael Hirschkowitz.
— See also United States v. Horn, 185 F. Supp. 2d 530, 551 n.37 (D. Md. 2002) (“She blinded me with science!”). Thanks to Kevin Cross for providing this Thomas Dolby-influenced citation in the same vein pop-music theme as McPhee, in proper Bluebook-form no less.
It turns out that the f-word holds a long pedigree in judicial opinion-writing. John Baker sent in an 1846 Missouri opinion reputed to contain the first judicial mention of the word.
In Edgar v. McCutchen, McCutchen sued Edgar for slander. The slanderous allegation was, according to the court, “carnal knowledge of a mare, and the word ‘f**k’ [asterisks added; court used unabridged version] was used to convey the imputation.” After the plaintiff received a verdict, the defendant made a motion to arrest the judgment “for the reason that the word used to convey the slander, was unknown to the English language.”
If only that were true. The court disagreed and affirmed the plaintiff’s judgment.
Follow up: Kevin McDowell wrote to confirm that:
It appears to be true that Edgar v. McCutcheon (1846) is the first case to discuss the “F” word. The Indiana Supreme Court relied on the case in Linke v. Kelley, 25 Ind. 278 (1865), finding that although the word is “not to be found in any vocabulary of the English language, [it]is as well understood as any other English word.” The court said it isn’t found in “standard lexicons” because of its “vulgarity.” This was a case of a braggart saying he (you know what) to a woman “one hundred times.” The court did it to him in turn.
— Edgar v. McCutchen, 9 Mo. 768, 768 (1846). Thanks to John M. Baker and Kevin McDowell.
In a convoluted libel case, the defendant, a lawyer, argued on appeal that the plaintiff’s counsel delivered a prejudicial, inflammatory closing argument.
But the bigger problem was that his historically based closing argument—which invoked Jesus Christ, Julius Caesar, the Philistines and Mennonites—was off on the facts. Here’s an excerpt:
You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped him in the road and they sought to entrap him. They asked Christ: ‘Shall we continue to pay tribute unto Caesar?’ And you will remember, in the Book of St. Matthew it is written that Christ said: ‘Render ye unto Caesar the things that are Caesar’s and unto God the things that are God’s.
Inspiring perhaps, but the lawyer made a few teensy-weensy historical errors. His timeline, for example, was a off a little. Okay, a lot. Six to eight centuries. The court pointed out the faux pas:
The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ. The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D.
Some good news for the lawyer though. The judge was impressed he could cram so much misinformation into one short excerpt. As the judge said it, the argument excerpt “is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation.”
Give him credit for that. If the lawyering thing doesn’t work out, he could go to work for a cable news network.
— Hall v. Brookshire, 285 S.W.2d 60, 66–67 (Mo. Ct. App. 1955). Thanks to Judge James Barlow.
A federal judge in Oklahoma, annoyed by delays in carrying out his order to commit a defendant to a medical facility, managed to maintain a perfect judicial temperament and sense of humor on hearing the news that the parties had worked out everything out on their own–without bothering to tell the judge. His “on the one hand, but on the other hand” order is a masterpiece of balance and even-handedness.
“On the one hand,” the court was grateful that the government and the defendant were able to cooperate in setting a date for the defendant to report.
“On the other hand,” the court said, “the court might be somewhat justified in experiencing annoyance at being left out of the loop in making a decision that is vested in its sound discretion. ‘Oh right, somebody better remember to tell the judge…’”
“On the one hand,” the court wanted to give due consideration to the fact that the defendant was 80 years old and was receiving treatment for a heart condition by a neurosurgeon.
“On the other hand,” the court asked, “how long may a defendant avoid imposition of justifiable court orders merely because of his age and medical condition? Where does it end? Anarchy? Dogs and cats living together?”
In the end, the court threw in the towel and agreed to let the defendant report on the date agreed to by the government. Or as the court put it: “[T]he court will be content to let imposition of its orders be held hostage by the vagaries of the schedule of some neurosurgeon in Oklahoma City.”
— Order, United States v. Stipe, Case No. 07-TP-001-RAW (E.D. Okla., May 5, 2008). Thanks to Debra Schwartz.
U.S. District Judge Sam Sparks does not enjoy lawyers he perceives as having kindergarten skill-sets.
In 2011, U.S. District Judge Sam Sparks, Western District of Texas, got in trouble with his bosses at the Fifth Circuit Court of Appeals for ordering the lawyers in a case to attend a kindergarten party. It wasn’t the first time Judge Sparks used kindergarten references to berate lawyers.
In a 2004 case called Klein-Becker, LLC v. Stanley, Judge Sparks expressed his “disgust” with squabbling among the lawyers in a barrage that began with his expressing doubt as to whether the lawyers had ever attended kindergarten and ended by telling him them to “get a life” (some paragraph breaks inserted):
When the undersigned accepted the appointment from the President of the United States of the position now held, he was read to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.
Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiring multiple discovery hearings, earning the disgust of the this Court, the lawyers continue ad infinitum.
[Court recounts current dispute in which, despite the court’s order allowing a pleading to be filed on July 23, 2004, defendants’ counsel filed a motion for reconsideration, claiming the pleading should have been filed July 19.]
The Court simply wants to scream to these lawyers, “Get a life” or “Do you have any other cases?” or “When is the last time you registered for anger management classes?”
Neither the world’s problems nor this case will be determined by a … [pleading] which is four days later, even with the approval of the presiding judge.
If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.
Judge Sparks wrapped up by saying that if it wasn’t already clear from the tone of the order, the motion for reconsideration was denied. Hmm, I think he was pretty clear.
— Klein-Becker, LLC v. Stanley, Case No. A-03-CA-871-SS, 2004 U.S. Dist. LEXIS 19107, at *4–6 (W.D. Tex. July 21, 2004). Thanks to Michael Barclay.
Doe v. Moe, a May 2005 Massachusetts appellate case, gives a whole new meaning to the idea of safe sex. A guy sued his long-time girlfriend (ex-girlfriend?) for negligence when an ill-advised change in position during consensual intercourse resulted in him suffering a fractured penis. (The opinion gives details about how the accident occurred.)
In a case of first impression, the court struggled to arrive at an appropriate and workable standard of care to apply to private consensual sexual conduct. The court noted:
There are no comprehensive legal rules to regulate consensual sexual behavior, and there are not commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior.
Accordingly, the court concluded that the general negligence standard of reasonable care under the circumstances was inappropriate for consensual sex-physical injury cases.
Instead, the court said the plaintiff needed to show conduct rising to the level of “wanton or reckless.” The court opined that while the trial record might support a finding that the defendant’s conduct exposed plaintiff to a risk of harm, it did not support a finding of wanton or reckless conduct.
The case does raise an interesting legal issue. With so many different preferences and positions and idiosyncratic fantasies and fetishes, is there such a thing as a standard of “ordinary and reasonable care” for sex?
— Doe v. Moe, 827 N.E.2d 240, 245 (Mass. Ct. App. 2005). Thanks to David Keller and Professor Howard Wasserman.
Bankruptcy Judge A. Jay Cristol (S.D. Fla.) was vexed by a bankruptcy statute saying that if an individual debtor in a voluntary chapter 7 or 13 case fails to file certain information within 45 days of filing his petition, the case shall be “automatically dismissed” on the 46th day.
Judge Cristol struggled with the statutory riddle of how a case could be automatically dismissed without court action or even a docket entry.
He decided to analyze the question in the style of one of the foremost experts in bankruptcy. Nope, not Collier.
I do not like dismissal automatic,
It seems to me to be traumatic
I do not like it in this case,
I do not like it any place.
As a judge I am most keen
To understand, What does it mean?
How can any person know
what the docket does not show?
What is the clue on the 46th day?
Is the case still here, or gone away?
…
It goes on for several more verses. Rumor has it the Cat in the Hat appeared pro hac vice on behalf of the debtor.
— In re Riddle, 344 B.R. 702, 703 (Bankr. S.D. Fla. 2006). Thanks to Kevin McDowell.
As Paul Scott wrote when he sent in a federal district court opinion involving an excessive force claim against a Georgia police officer, it’s not too hard to figure out which side’s going to win the case when the court’s decision starts out by measuring the plaintiff’s sprained-wrist claim against “the rights of those thousands of American soldiers” who fought and died on D-Day in World War II:
This case demonstrates the proclivity of American citizens today to search for legal causes of action to redress every imaginable wrong. As we commemorate the 60th anniversary of the Allied’s invasion of Normandy during World War II, the Court must decide in this case whether the rights those thousands of American soldiers fought and died for on the beaches of France include legal recourse for a sprained wrist suffered by someone who was arrested for, and subsequently convicted of, the obstruction of a law enforcement officer.
Surprise! The plaintiff lost (the court granted defendant’s motion for summary judgment).
— Mladek v. Day, 320 F. Supp. 2d 1373, 1374 (M.D. Ga. 2004). Thanks to Paul Scott.
