Frivolous Lawsuits
As a plaintiffs’ lawyer, one of the most frustrating aspects of this vocation is the public perception of trial lawyers as “ambulance chasers” filing frivolous lawsuits at the expense of hard-working people. In social gatherings, when new acquaintances learn in what area of law I practice, there are occasionally comments or questions about allegedly frivolous lawsuits. When this happens, I make sure to provide a reasonable theory for liability and justice in these cases. Certainly, these anecdotes and stories are propaganda of the insurance industry and others so aligned. A common trial technique is to discredit the opposition by making their theory of the case seem ridiculous. In formal logic, this practice is called “creating a straw man.” In this blog, I am going to be practicing my cocktail-party-debunking-skills. Namely, every so often I’m going to examine a so-called “frivolous” lawsuit and explain a theory of liability that the insurance industry does not want you to know.
The First Entry is called “Case of the Flying Shrimp of Death”
"Case of the Flying Shrimp of Death"
Defendant’s Spin:
A Long Island widow claimed that her husband’s death resulted from an injury sustained while dodging a piece of flying shrimp at the Japanese steakhouse Benihana. The man’s widow alleged he injured his neck while trying to avoid a hot shrimp playfully tossed at him by a table-side hibachi chef at Benihana, the Japanese steakhouse chain, that the neck injury required an operation, that an apparent infection necessitated another procedure and ten months after dodging the shrimp, he was dead of a blood-borne infection.
Actual Argument:
Certainly, no one would find fault with someone attempting to dodge an object flung directly at them, whether that object is a shrimp or a rock. Even though Benihana is supposed to be "a fun place to eat" I certainly do not think that "fun" includes having food thrown directly at me. If I wanted that, I could go eat dinner with my cousin’s family (3 boys under the age of 8). The basis for this case being deemed frivolous undoubtedly stems from the injuries suffered as a result. The man hurt his neck when he jerked it to dodge the wayward crustacean. In American tort law, we have the doctrine of the "eggshell Plaintiff." This doctrine holds that a defendant is responsible for a plaintiff’s injuries even if that particular person was more susceptible to injuries than the average person. In short, we injure someone, you take them as they are – injurer beware! The man may have been more susceptible to neck injuries. He suffered an injury that required an operation. It is well settled in American law that should an injury require surgical correction, the defendant assumes all risks inherent in surgery, including death. This is merely a case of the comedy (the fact it was a shrimp as opposed to any other object) hiding the tragedy of the circumstance. Without the neck injury, the man would not have needed surgery. If he had not had surgery, he would not have died of a blood-borne infection.
To learn more about personal injury, pleasee see our website at personal injury law. To learn more about our personal injury lawyers, please click on personal injury lawyers maryland, and read our firm bios on Andrew Bederman, Roger Greenberg, or Jason Fernandez.
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