As a lawyer who takes pride in our system of civil justice, I feel obligated to defend this lawsuit. First, as far as the bar goes, most states have a dram shop act, which imposes legal liability for harm caused by drunks on those who served alcohol to them. Prior to state legislatures passing their version of the dram shop acts, the law was that you were not liable for harm caused by your own negligence if there was an intervening cause of the harm. Practically speaking, this means that if I own a bar, I could serve you alcohol until you cannot stand up, carry you to your car, insert your keys into the ignition, prop you up, put the transmission in drive, and I will not be responsible for you driving into a telephone pole. Most people, I think, would agree that this is not the way things should be. One interesting side effect of this is that you can sue me for damage you did to yourself while intoxicated. I can see why some might argue that this is an undesirable result. Yes, we should hold people accountable for their own actions. But we should also encourage alcohol vendors not to sell to people who are already drunk. In my mind, and apparently in the minds of the Missouri Legislature, that outweighs individual responsibility. Hence the claim against the bar.

As far as your comments about the lawsuit against the tow truck and driver who stalled, I disagree that the lawsuit should be laughed out of court. Filing a lawsuit allows the plaintiff to discover whether, in fact, the defendant was negligent. The discovery process is designed to get all the facts on the table. Once the facts are out, then both sides have a realistic idea of their chances of success, and the lawsuit usually settles. It may be that the tow truck driver and driver of the stalled car were not negligent. If that is the case, then the case against them will either be dismissed by the judge for lack of evidence, decided by the jury in their favor, or it will settle. Liability insurance exists to pay defense and indemnity costs, so it's not like the tow truck company or the driver of the stalled vehicle are out of pocket any money, other than an increase in their insurance premiums.

Coincidentally, the Texas Supreme Court ruled recently (today, I think - the opinion hasn't been released for publication yet, so there's no date on the ruling) that the proportionate responsibility statute applies to dram shop claims. The proportionate responsibility statute is a tort reform measure designed to allow for liability to be apportioned to third parties not before the court. The court held that the jury must apportion responsibility between the drunk and the bar that got him drunk, thus effectively eviscerating the dram shop act, which makes the vendor vicariously liable for his customer's drunkenness. Chief Justice Wallace Jefferson makes that exact point in his dissent. I don't think Hancock's lawsuit against the bar would get very far in Texas after this ruling, at least not anymore. I think this is a horrible ruling.

The case is FFP Operating Partners, LP v. Duenez, 2007 WL 1376357 (Tex. 2007). The cause number is 02-0381, so you can probably download it for free from the Texas Supreme Court's website.

Kevin,

first point: I think you misread my writing on the liability of the bar owners; I said it was entirely valid. Serving more beer to someone who's already inebriated, and then letting them drive off knowing they are drunk, is something the law should not allow.

Second point: regarding the "discovery process", allow me to explain the alternate perspective. From my perspective, there are things that are straightforward. The drunk behind the wheel was clearly drunk beyond the legal limit, had drugs in the vehicle, and was out of control. He slammed, not into the stalled car, but into the emergency vehicle that was in the process of getting it out of the road.

To me, the "discovery process" in this instance is pure bullshit. It wastes the time and energy of the court, it wastes the time and money of the driver and the tow truck operator (who will have to pay for their own lawyers for defense's sake).

YOU may be a lawyer. I consider most lawyers to be snakes or worse, because the legal system is not (to my mind) one of legitimate discovery, but instead a zone of underhanded tactics, delaying and obfuscating, and general complete lack of anything approaching reasonable ethics. The lawyer mentioned in this article is one of the worst snakes of the pack.

Consider the following hypothetical: A's car stalls in the middle of the road, just after a curve in the road. A calls B, a tow truck driver, who brings hiw tow truck. It is pitch black. A does not put his hazard lights on. B leaves his lights on, but does not light flares behind them to alert oncoming traffic. Because of the curve in the road, approaching motorists cannot see either A or B until after they make the turn.

C is driving the speed limit with both his hands on the wheel. He is stone-cold sober. C rounds the curve. He does not see A and B until it is too late. He plows into them and is killed.

D is driving well behind C. D is completely drunk, stoned out of his mind, not wearing his seat belt, steering with his foot, and treceiving sexual favors from a 12-year old Cambodian child kidnapped and sold into sexual slavery. D rounds the curve and plows into A and B, killing D (and his pre-teen concubine).

In the above hypothetical, D is clearly negligent. Did his negligence cause his injury? No. We know that because C, who was careful, suffered the same fate. Thus, it does not matter that D was careless, because D's carelessness did not contribute to the accident. D's accident would have occurred even if he was driving carefully.

I, like you, suspect that Hancock probably caused the accident. But I don't know. It's possible that the driver of the stalled vehicle and the tow-truck driver caused the accident.

I try very hard to avoid making up my mind about cases based on what I hear reported, for several reasons. First, journalists are not lawyers, and they report facts that are important from a news perspective, but may or may not be important from a legal perspective. Second, since journalists are not lawyers, they may not know what facts are important from a legal standpoint and thus do not know to report them. Third, many cases are reported, sometimes intentionally, in a deliberately deceptive manner. The prime example of this is the McDonald's coffee case. If I believed everything I read about that, I would think that Stella Libeck is the devil incarnate.

You are probably right. The accident was probably Hancock's fault. But until that is proven in a court of law, he (or his heirs, in this case) have the right to find out exactly what happened and, if it is determined that the tow truck driver or driver of the stalled vehicle were responsible, recover damages resulting from their negligence.

Finally, you have mentioned several times that Hancock had marijuana in his vehicle. While I certainly do not encourage breaking the law, the presence of pot in his vehicle is simply not relevant to the accident. The presence of pot in his blood would be. So if it is determined that he was stoned, that's one thing. But if he just happened to have it in his vehicle, then that has nothing to do with the accident.

Oh, one other thing ... I prefer to be called a scumbag, not a snake. Comparing lawyers to snakes is an insult to snakes everywhere. And how are you employed? Please don't tell me you're an investment banker...

See, this is what I "love" about lawyers - the ability to twist and misrepresent and tweak anything to come up with a hypothetical situation that just might happen once every 6 million years that somehow could make their side correct and then push that as if it had been the case. They do this so that they can get ridiculous amounts of money per hour to do a job that ought not even be necssary for most cases, were the law not so ridiculously byzantine and overcomplicated to the point where it is unavailable to the public.

Nevertheless, a few things to consider:

#1 - IF a turn were that sharp where visibility was so reduced, the turn would either be marked at a slow rate of speed, or have numerous warnings (most likely both). As such, the chance of someone actually going the legal speed limit getting into the disastrous wreck you claim "C" would is so low as to be not worth discussing.

#2 - This is not that case. In that case, again, you've come up with a hypothetical doozy of which the statistical probability is less than the likelihood that at precisely 11:42:06 PM tomorrow, a 10-foot-wide meteor will be speeding directly toward your house but miraculously be diverted by crashing into a passing airplane.

In the ACTUAL case, we already have proof that someone managed to not have an accident - a tow truck driver who saw the wreck the same way, and was doing his civic duty to help clear the road when the drunken moron plowed into the rescue vehicle.

I appreciate the perspective, but all you've really done is reinforced my perception that the lawyering profession is the most dishonest, leeching, and disgustingly immoral profession available.

Mike,

I seem to have pushed your buttons, for which I apologize. It was certainly not my intent to get you riled up, but that's obviously what happened. So please let me clarify my earlier post.

First, my hypothetical was merely intended to illustrate the possibility that not all accidents caused by drunk drivers are necessarily their fault. I'm not saying that happened in this case, only that the possibility exists, infinitesimal though it may be.

Second, may I point out that the tow truck driver's job is to find stalled vehicles and get them out of the road. For all I know, maybe he was summoned to the scene.

Third, you complain that the law is "byzantine and overcomplicated to the point where it is unavailable to the public." One could say the same about medicine, chemistry, engineering, computer programming, you name it. Law is not complicated because lawyers make it that way. It's complicated because it strives to do the right thing, which involves considering numerous factors and varying shades of gray.

Fourth, you complain about lawyers' high hourly rates. My clients pay my hourly rate with nary a protest, so who are you to complain? When you hire me, you and I can discuss a reasonable fee. But why should you care about a bargain freely entered into between two sophisticated entities?

I guess we're not going to agree to disagree on this one, since I'm "dishonest, leeching, and disgustingly immoral," not to mention a "snake ... who engages in underhanded tactics, delaying and obfuscating, and complete general lack of anything approaching reasonable ethics." My wife will be so upset when she finds out...

Kevin,

Did you read the article? The tow truck driver was not summoned to the scene, he passed by and stopped to render assistance (something he was not legally obliged to do - he could have just kept going and left the car right where it was, since he had not been called to arrive at the scene).

Medicine, chemistry, engineering, and computer programming are scientific disciplines. The body of knowledge in them is freely available to the public (more or less) in the form of whitepapers, research papers, books, and scholarly publications. With the exception of medicine - which you are barred from practicing without a license due to the risk of danger to others - anyone can reasonably learn these disciplines on their own, and engage in their own projects. They can discuss them with like-minded individuals with no trouble.

One of the ugliest things to come out of the overgrowth of lawyers in society is the standing "necessity" to have a lawyer for everything. The body of law has become bloated.

I don't agree with you that the law "strives to do the right thing." The law is a construct of rules, and "the right thing" is not served by being so incomprehensible that people cannot be reasonably sure that they are informed as to what the law actually says.

There are way too many cases where the legal system gets something obviously wrong, or where entirely relevant evidence is thrown out at the whim of a judge or a deceitful lawyer, or a hundred other miscarriages of justice happen in the system. And I for one find it hard to believe that anyone with any semblance of a conscience could participate and be party to that sort of a profession.

Kevin,

Perhaps I overreacted - I will take back the bit on "anyone with a semblance of a conscience" line.

The fact remains, however, that I know far too many people who have been abused in the system at the hands of disreputable lawyers, I know far too many miscarriages of justice from a system you claim "tries to do the right thing", to trust in either the good faith of someone in the lawyer profession or that anyone - especially someone bringing a case like this, where they are attacking someone who stopped to render aid at a scene when he didn't have to - in such a situation is trying to "do the right thing."

Tell me about the "way too many cases where the legal system gets something obviously wrong, or where entirely relevant evidene is thrown out at the whim of a judge or deceitful lawyer, or a hundred other miscarriages of justice" of which you speak. Do you have specific examples in mind? If so, please tell me about them and we can discuss them. Or do you just get upset every time a lawsuit is filed that you don't agree with?

As far as the "necessity" of having a lawyer for everything, when was the last time you personally required the assistance of an attorney? You are never, ever REQUIRED to hire a lawyer. You are perfectly free to draft your own contracts, wills, represent yourself in court, etc.

And finally -

"I for one find it hard to believe that anyone with any semblance of a conscience could participate in and be party to that sort of a profession."

I did, too, until I sold my soul for a six-figure salary!

The lawyer is trying to get the best result possible for his client. The judge and jury are responsible for the outcome of the case.

RAW has my contact info. I'd love to hear about all the people who've been mistreated by our justice system. Feel free to email me with their stories. (I'm not being sarcastic, either. I would like to know. I feel it is incumbent upon lawyers to stand up for their profession. Your friends may have gotten a raw deal, or they (and you) may think they did. There is a world of difference between the two. But if there's something I can do to help them, I will try to do so.)

Unlike Kevin, I am not a lawyer, nor am I well-versed in what Texas tort law has to say on the matter. I am looking at this from the point of view of what the law should be, not what it is.

I am told by a former Washingtonian that the state of Washington has (or had) a law that unlicensed drivers were deemed liable for any accident that they were in because if they were following the law they wouldn't be on the road to begin with. I honestly wouldn't have a problem with a similar law about drunk drivers with a BAC significantly above the legal limit. Even if the best driver could not have avoided the accident, he shouldn't have been on the road.

To take another example, let's say that I have a rotting wooden step leading up to my house. If an acquaintance or someone conducting business were to trip and fall through it, the homeowner should be liable. If someone trespassing on the property with a mask and gun falls through it, I don't believe that the person ought to have the right to sue. Yes, it was a hazard, but the trespasser shouldn't have been there.

So even in Kevin's example, I don't believe that the driver should be held responsible for the drunk driver's accident.

I can appreciate where Kevin is coming from on the importance of "discovery", but the problem to me is that the probably-innocent parties will have to rack up significant legal costs (not to mention missed time and incidental expenses) to defend themselves against someone that shouldn't have been on the road to begin with and whom we already know has acted recklessly.

Actively recklessness and or criminal intent, in my mind, cancels out even gross negligence.

<i>Bodine vs. Enterprise High School</i> is a great example - a burglar trying to steal a from the roof of Enterprise HS's gymnasium fell through a skylight, then sued the school for his injuries.

<a href="http://www.telegraph.co.uk/...">A similar one from the UK</a>.

What's really retarded is that most states do <B>not</b> have a law on the books similar to the Washington law. The end result was that <a href="http://www.fbi.gov/page2/fe...">staged auto accident insurance fraud</a> remains a cottage industry to this day; rings have been rounded up all over, including in <a href="http://www.overlawyered.com...">LA</a> and <a href="http://www.tdi.state.tx.us/...">Dallas</a>.

As the legal system goes, it doesn't matter whether you are in the right or not: because you have become involved in the legal system, <b>you lose</b>. Suing to get back your lawyers' fees/court fees? Congratulations - that's a separate lawsuit you have to pay a lawyer for. Presuming the person who got the commission shyster to handle HIS case for him has any money at all for you to collect upon. Or in the case you are actually awarded some pittance nowhere near what it cost you in time/money to defend yourself, you will probably find that they just ignore the requirement that they pay. And then you have to file (and pay court costs on) more documentation to try to get wages garnished, or something else done.

The same thing even goes for traffic court. Even if you manage to prove you were in the right, that the officer was wrong, you are still screwed. Bare minimum, you've lost a vacation day; more likely, you've lost multiple vacation days going to court, plus whatever "fees" are slapped on just for showing up.

My perspective: I've been on jury duty. I've seen how the lawyers on both sides behaved. I've been in traffic court once: I got pulled over (on a completely fabricated charge of "running a red light", probably to make ticket quota) by one of the rent-a-cops my school used, pulled slowly and carefully into the parking lot (50 feet from the intersection) rather than staying stuck in the street where we could get hit. The ass of a cop then yelled at me and proceeded to "call for backup" so he could write the ticket while running his hand over the rear of the new female beat-cop on duty while "explaining the paperwork for our station."

If that wasn't bad enough, the Assistant DA at the particular traffic court didn't give two licks about the actual circumstances; according to him, and to the judge, the cops were always right and anyone brought into their court was guilty unless they had a videotaped proof that they weren't.

End result: "deferred adjudication." $180 out of my pocket and two vacation days used up on account of a corrupt ass of a cop, a dick of an Assistant DA, and a corrupt judge whose only goal was to make more money for the city coffers.

So you'll excuse me if my respect for the legal system, and those who use it as their source of income, is about nil.

Lawyers and the overcomplicated law do not make for "doing the right thing", they make for needing a lawyer just to defend yourself - but defending yourself isn't getting your losses back, instead it's simply minimizing your losses and seeing your losses go to some shyster instead of to the jerk (and the rent-a-shyster HE hired) who brought you into court in the first place.

Another part of the law that is ridiculous; technically, if my roommate's dog were to bite a burglar, that burglar is allowed to sue for the dog bite.

And because of the way the law is worded, the fact that the burglar was intruding maliciously may not even be a defense, in which case the dog could potentially be put down by the state!

Alex,

I would not have a problem with the law you describe about drunk drivers automatically being responsible for any accidents they are involved in, regardless of fault or causation. As far as the example you describe about the trespasser, I have no problem with the result you describe, and I think that is the state of the law, with one significant exception. The attractive nuisance doctrine holds that a property owner is responsible for harm to children caused by a condition that their property that attracts them (an attractive nuisance). For example, if I have a swimming pool on my property, and a child drowns in it, I can be liable. I think this is a good exception, because it is foreseeable that children will want to play in a swimming pool and property owners ought to make their property reasonably safe for children. (This doctrine developed when children were injured and killed by railroads.)

Mike,

I could not link to the first story you describe. The second story is about a 14-year old who was injured when he climbed onto a building to retrieve a ball. This appears to be the attractive nuisance doctrine at work. Maybe the result is wrong in this case, I don't know enough about the facts to comment. As far as the insurance fraud stuff goes, yes, people defraud insurance companies all the time. That's why it's a crime. Yes, some lawyers are crooked and participate in this. I've never disputed that, nor would I. But I don't think you can conclude that all lawyers are bad based upon that. Finally, your example about the burglar suing the dog owner. You can sue anyone for anything. I can sue you for slander because of what you posted (and you can sue me, too). I would lose (and so would you). But I can file the lawsuit. If a burglar sued for being bitten by a dog, that lawsuit would almost certainly be thrown out on either a motion to dismiss or a motion for summary judgment. I don't know what law you're referring to, but I cannot imagine a burglar winning on those facts.

I'm sorry you had a bad experience with traffic court.

One more thing about the Hancock pitcher. The tow truck driver and the guy who stalled will almost certainly file claims against Hancock's estate (or, more accurately, their insurance companies will). So it's not like they'd be spared the lawsuit if they weren't sued first. And their insurance companies will pay for their defense costs.

Good thing you never paint with a broad brush, mike.