Using a Clearly Legitimate Claim as a Pretext to Bash Basic Liability Rules is Not the Best Tribute
Bordas & Bordas partner Chris Regan was recently published in the West Virginia Record's "Their View" column refuting an editorial published by The Record. Read on for his views about why all citizens-weak and strong alike-should enjoy the same protection of the law.
Using a clearly legitimate claim as a pretext to bash basic liability rules is not the best tribute
February 16th, 2014
By Christopher Regan
The West Virginia Record's recent "Our View" column entitled "Using a spouse's death as a pretext for a lawsuit is not the best tribute" gives us another opportunity to have a frank exchange of ideas. By way of background, a Target employee pushing a string of shopping carts knocked over an elderly man walking in the lobby of the store, causing him to fall, break his hip and die as a result. The Record says " believe that Target should not be blamed for a death that probably would not have occurred if Zink had been young and healthy."
I appreciate the forthrightness and directness of the Record's View and the opportunity to say that I believe something different. I believe that the weak and the old enjoy the same rights as the young and the healthy. I believe that no matter why a person is weak -- whether they be a small child, a disabled person or a senior citizen -- they still enjoy the same rights I have as a healthy person in his prime. I believe that when you carelessly hurt or even kill someone, it's a poor excuse to say that the person you hurt was sickly, or some kind of weakling.
As has been observed in the past -- "this is an old story, as old as our history." Some of us, like the Record, apparently believe in a kind of social Darwinism. In other words, "the wagon train will not make it to the frontier unless some of the old, some of the weak and some of the sick get left behind by the side of the trail." Well some of us believe in something different. I believe that Mr. Zink and every other American who gets a little sick or a little old deserves to ride along with the rest of us Americans as far as their life will take them, and not to be run down while taking a simple shopping trip as though their life isn't worth living because they aren't quite as tough as the Record's ideal man.
The basic principle in law that when you hurt someone, you take them as you find them dates to the 1800s. The oldest West Virginia case one could find in five minutes is Perkins v. Monongahela Valley Traction Co., 81 W. Va. 781, 95 S.E. 797 (1918), and our high Court explained it this way:
One suffering an injury from the unlawful act or negligence of another is entitled to recover all of the damages resulting from such negligence, even though, because of his enfeebled condition, the injury to him is much more severe than would have been sustained by one in good health. The damages in such case are not special in the sense that the injured party in his pleading must aver his weakened physical condition, and the more serious effect of the accident upon him because thereof.
1918. Not exactly a creature of modern trial lawyers, the Perkins case. This wise rule protects not only the old, but pregnant women, children, the blind, or anyone else who might be more susceptible to injury. Simply enough, the weakness of the victim is no excuse for the wrongdoer who hurts him. The Record has a lot of ambitious views about the law, but since it's been published, this is the oldest and most basic rule I've ever seen it hold up to ridicule. What's next?
Mr. Zink is dead, and he shouldn't be. The people driving vehicles, trucks, and pushing heavy chains of carts inside the store should look out for people so they don't run them over. Maybe the Record thinks that's too much to ask. The law doesn't.
Full Disclosure: The Zink family is represented by colleagues of Mr. Regan at Bordas & Bordas, PLLC.
