"Vicarious Liability" and the Walking Lawyer Joke

Two memories as background…

1. From 2006-18, Curmie led a contingent of university theatre students to Ireland every even-numbered summer.  2020 was looking to be the best trip of the bunch, but then COVID hit, and the wheels fell off that wagon.  And now Curmie is retired…

Anyway, we’d land in Dublin on a Monday morning, having taken the red-eye from somewhere on the east coast.  Monday evening, we’d do something that would hopefully keep us awake, so we’d wake up on Ireland time on Tuesday.  We’d let people sleep in, although we discouraged it.  But early Tuesday afternoon, we’d do the Historical Walking Tour of the city.  One of my favorite parts of that tour was that every guide took a different route, so I’d see something I hadn’t seen before even after doing the tour several times.

Lady Justice at Dublin Castle

One stop on every tour, though, was Dublin Castle, once the home of the British government in what was once a colonial outpost.  Above the main entrance was a statue of Lady Liberty.  But there were some idiosyncrasies, to say the least.  First, she was not blindfolded, so the “justice is blind” argument was already undercut.  The scales of justice she holds actually work, which turned out to be a bad thing, as rainfall would not infrequently throw them out of balance; eventually holes were drilled in them to prevent that happening.

But perhaps the most interesting thing about the statue is that it faced inward towards the castle, prompting the verse, “The Statue of Justice, mark well her station / her face to the castle and her arse to the nation!”  This post, as you will have surmised, Gentle Reader, is about legal injustice.

2. Curmie has received a dozen or more jury summonses over the years, but most have come during the academic year.  Curmie got a postponement, and wasn’t called again for another couple of years… also during the academic year.  (Lather, rinse, repeat.)  He’s actually made it to the courtroom exactly twice: once for a criminal case in Kansas (for which he actually served on the jury), and once for a civil case in Texas.

It’s this latter case that is on his mind at the moment, for reasons he hopes will become clear in a moment.  It was about 15 years ago.  At the voir dire, we learned something of the nature of the case.  I remember a few of the details.  A man, a local fat-cat auto dealer, died in the hospital.  The family sued… a doctor—a radiologist, perhaps?—who wasn’t even in the room.   (He had deeper pockets or better insurance or whatever, and therefore made a more attractive target for the money-grubbing family.)

The other thing I remember is that I wasn’t the only prospective juror dismissed by the plaintiffs’ attorney: literally everyone who had even a college degree met the same fate.  I remember thinking that was rather telling with respect to the plaintiffs’ attorney’s confidence that he could convince an educated and skeptical jury that he was anything but a shyster and his clients anything but entitled and acquisitive asshats.  I never found out how the case turned out, although the defense attorney seemed pretty competent, and I feel rather confident that he could convince even a relatively uneducated jury of the simple fact that the plaintiffs had literally no case.

So now we move on to more recent events.  In March of 2020, a man took his manual transmission Jeep to the local dealership in Rochester Hills, MI, for an oil change.  He gave the keys to a young mechanic and went to wait in the lobby. 

The (ahem) mechanic, who has no driver’s license and didn’t know how to drive a stick-shift, starts the car without actually getting inside.  The car lurches forward, striking and killing another employee, Jeffrey Hawkins.  Now, over two years later, Hawkins’s family is suing.  It certainly appears that they have grounds to do so.

The question is: whom do they sue?  The kid, who certainly had to know he didn’t know what the hell he was doing, and may well have lied about having a license to get the job?  Nope.  The dealership owner, who obviously didn’t do anything approaching due diligence in hiring the kid, or in letting him drive, and who ought to be responsible for any lapses in professionalism on his watch?  Nope.  The Jeep owner, of course.  Try to keep up, Gentle Reader.

Apparently, as in the case for which Curmie wasn’t on the jury, the family felt aggrieved (at least in this case they had reason to) and, dammit, they were going to sue somebody.  So they hired an ambulance chaser named David Femminineo. 

The family can seek workman’s comp from the dealership, but that appears to be it. Michigan law prevents an employee from suing his boss for injuries suffered as a result of the boss’s negligence.  If I’m reading this correctly, had Hawkins been a customer, the family could have sued the dealership, but because he was an employee, they can’t.  Well, that’s a jaw-droppingly stupid law, but bosses have more money than employees do to contribute to political campaigns, so Curmie isn’t surprised. 

And apparently the incompetent kid can’t be sued, either, although Curmie struggles to understand the rationale here.  There’s an argument that he can’t be tried for a criminal offense, but even that doesn’t make a whole lot of sense, if all those references in TV lawyer shows to “criminally negligent homicide” or some such transgression can be believed.  Why he can’t be sued (other than the fact that he’s no doubt uninsured and has a net worth of about a buck and a quarter) remains unclear to Curmie.

But… but… our husband/father died, and WE WANNA SUE SOMEBODY, DAMMIT!

Michigan law includes something called vicarious liability, under which standard the owner of a vehicle is responsible if he’s given his permission for someone else to drive it.  This applies, apparently, not just to allowing a friend to borrow the car, but to restaurant or hotel valets, and yes, to mechanics.  It’s a stupid law in that it makes no distinction between personal and professional use. 

It’s problematic, but at least comprehensible, that if I loan my car to a friend, I’m responsible for their actions.  But when someone is operating my vehicle in a professional capacity—as a mechanic or a valet—it’s the employer who should take on that responsibility.  Interesting that both of these questionable-at-best laws favor the boss, who in a just universe would be responsible in both cases.  Funny how that works.

But stupid laws are still laws.  And so the shyster Femminineo appeases the family by suing the owner, for… get this… $15 million dollars, although he knows damned well that the owner did nothing wrong, or even negligent.  Asked why he’s doing that, Femminineo responded, “I have to do that.”  No, actually you don’t, you obnoxious little asshole.

There remains a possibility that the ultimate result will be fine.  The owner has sued the dealership for indemnity, meaning that if there’s a finding against the owner, the dealership would be forced to pay the settlement.  That would be taking the long way around, but at least it would lead to a reasonable result.  But two separate lawsuits would have to go in a particular direction for that to happen.

Bottom line: There are at least two remarkably stupid laws at play here, which the Michigan legislature needs to fix in a damned hurry (but probably won’t).  The owner is completely innocent.  The family is rightfully upset but unethical in pursuing a case against the owner.  And David Femminineo is a walking lawyer joke.