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Tuesday, July 1, 2008

Please Disregard That "We're Not Blaming the Park" Thing

The family of the young man killed at Six Flags Over Georgia had said pretty emphatically that they weren't blaming the park (here ("All we know is that we don't blame anybody."). But, well, now they've got a lawyer:

"Attorney Lamar Flatt thinks warning signs and fences placed near the ride weren't enough to prevent this tragic death, citing the death of a maintenance worker who was killed by the same ride in 2002."

Just as a reminder, there was at least one six-foot fence (and reports indicate two), clear signs, and, let's not forget, a multi-ton very loud steel roller coaster all rather prominent in the area. (The manufacturer of the ride, B&M, makes coasters that are sufficiently loud that the phrase "B&M roar" came into existence.) As for the death of the maintenance worker, one assumes that he had access other than over a fence and that the error was in failing to lock out the ride before entering the area rather than a failure of warnings or signage. (A better precedent for the attorney would be the similar incident at a similar ride in the UK or the 1998 death at Paramount's Great America in California, where a young man was killed when he entered the ride area to retrieve his wife's hat.)

But it's hard to see what more could be expected. Razor wire? A shark-infested moat with sharks with lasers?

Update: Welcome Overlawyered readers. Also, please read the comments for some clarification.

--BC

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Comments

Not that it really matters, but Georgia appears to be a "modified comparative fault" state, meaning that even if the park could somehow be shown to be (partially) at fault, the family would have to show that the lad was less than 50% at fault to recover any judgment. Implausible in the extreme.

Posted by: KipEsquire | Jul 1, 2008 11:47:16 AM

Kip - indeed, yes. I thought I'd posted that, but it must have been in a forum.

Posted by: Bill Childs | Jul 1, 2008 11:50:12 AM

Bill: To which forum are you referring? Where do torts profs go to unwind, and shoot the torts breeze? What are the big torts meetings, the best torts law journals?

Posted by: Supremacy Claus | Jul 1, 2008 1:13:22 PM

SC: It's not a torts forum; it's a forum for coaster enthusiasts (of which I am one).

Don't know where torts profs go to unwind. I see good torts scholarship in general interest law journals.

Posted by: Bill Childs | Jul 1, 2008 2:07:45 PM

Bill:

The family was at the park with their son the day he was decapitated. I cannot even begin to imagine what they are going through. I have no idea if there is park liability or not -- it will depend on the facts on the ground -- but expecting a parent to undertake such an analysis on the spot under these circumstances isn't logical.

Posted by: Eric Turkewitz | Jul 1, 2008 7:23:43 PM

Eric,

I'm not criticizing the parents, and I don't think my post suggests otherwise. They had in my view the right instinct in the first place, which was to find out what happened (hence the lawyer, which was a good idea). I don't expect them to undertake any analysis.

I do, however, expect the lawyer they hired to do so. I am criticizing the lawyer for making that statement, which is inconsistent with the facts -- the death of the maintenance worker is irrelevant for the reasons I identify in the post, and that's the only fact he identifies as being potentially probative of fault in the boy's death.

Maybe there will be something else, but I honestly can't imagine what it would be. I've seen pictures of that ride from every angle, and I've seen Six Flags and B&M's seemingly standard fencing approach to identical rides (at Six Flags Great Adventure and Six Flags Great America), and there is no way to see it as anything other than sufficient.

I suppose you may be suggesting that quoting the parents' statements that they weren't blaming anyone isn't fair. They weren't "on the spot" statements, though they certainly were soon afterwards, and I wouldn't try to hold them to those statements long term if the material facts changed (i.e., unlocked gate, ride operator suggesting he go collect the hat, etc.). The material facts haven't changed, and their initial instinct seems sound.

In any event, I, too, can't imagine what they're going through, and I wasn't intending to take a shot at them -- just at their lawyer. I don't think I did take a shot at them, but to whatever extent it can be read that way, that's my error. Thanks for pointing it out.

Posted by: Bill Childs | Jul 1, 2008 7:47:43 PM

Want to know why a lot of people dislike us attorneys? Look no further than Lamar Flatt and his comments that somehow Six Flags is at fault. All Flatt (and his clients) see are $$$.

Posted by: David Wisniewski | Jul 1, 2008 8:15:43 PM

Previously discussed how unseemly and inhuman might be a countersuit against the estate for interference with earnings.

But, now that we are just in a money mode, add that any witness who suffered mental trauma from watching the decapitation, might file a claim for negligent infliction of emotional distress on the estate of the decapitee.

BC is kind and mature. But, Eric has zero tolerance for substantive criticism at torts. It is a lawyer bunco operation relying on core supernatural doctrines, future forecasting and mind reading. These violate the Establishment Clause, and cause a policy disaster. They fail to deter misconduct. Most misconduct is done by judgment proof people. See this decapitee. Torts wrongfully deters entire enterprises, damaging the economy, like a lawyer imposed tax without legal authority. Torts informally sets stealthy, unauthorized industrial policy on the economy, for lawyer and plaintiff gain.

If one rewards law breaking with a civil judgment, will one get less damaging lawbreaking or more damaging lawbreaking?

Torts makes us unsafer.

Posted by: Supremacy Claus | Jul 2, 2008 1:26:09 AM

From the Georgia Bar site:

http://www.gabar.org/handbook/part_iv_after_january_1_2001_-_georgia_rules_of_professional_conduct/rule_73_direct_contact_with_prospective_clients/

"RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication;...

Comment

Direct Personal Contact

[1] There is a potential for abuse inherent in solicitation through direct personal contact by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

[2] The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. The potential for abuse inherent in solicitation of prospective clients through personal contact justifies its prohibition, particularly since the direct written contact permitted under paragraph (b) of this Rule offers an alternative means of communicating necessary information to those who may be in need of legal services. Also included in the prohibited types of personal contact are direct personal contact through an intermediary and live contact by telephone."

[WGC notes: I don't think the lawyer solicited them; there was a reference in an early article to the family wishing to have their own investigation. I assume that's where he came from.]

Posted by: Supremacy Claus | Jul 2, 2008 1:38:29 AM

When I read that they weren't blaming the park, I was pretty sure they would still wind up with a lawyer with $$$ in his eyes.

Posted by: Steve | Jul 3, 2008 3:40:11 PM

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