Gagne with a spoon

I didn't "always wanted to be a lawyer". I suppose most doctors probably wanted to cure the sick since they were children. Teachers certainly had a desire to develop young minds from the moment they were school-age children. I think it's different for lawyers. Many have not grown up with a burning desire to defend a corporation's exclusive right to use a talking chihuahua to sell Mexican fast food.

My own decision to go into law came after the following dialogue:

Father: "Son, I'm proud of you. This year you graduated in Political Science. Ready to go out and face the real world?"

Son: "I must not say".

Dad: "Well, have you considered law school yet?"

Son: "How long does it take?"

Father: "Three more years of school."

Son: "Uh. Okay."

As inauspicious as I came to this office, and however misinformed (I was accepted into law school before entering a court, even as an observer), when I was young, I had vague notions about the legal system. These notions were, at the time, pretty much what any layman could have learned by watching Lewis Stone playing Judge Hardy in the old Mickey Rooney films of the 1930s and 1940s. That the legal system was fair, just and human, and what the results would look like. ultimately "right" for the common man on the street. Everyone can understand that the law must protect those who behave correctly.

Even after many years, many experiences and many cases, I still think the naive notions of my youth are very good. I wish I could explain to clients, friends, acquaintances and strangers that the results obtained through the legal system of this great state are reasonable, fair and just. It is very difficult to do this today. Judge Hardy, if he were still alive, could be scratching his head.

On February 28, 2006, the Michigan Court of Appeals decided the Gagne / Schulte case (# 264788). The decision was not published and there were no oral arguments. Presumably the case was dealt with on the "fast track", "rocket", "express train for perdition" or any euphemism currently used to describe the superficial treatment received by many recurring cases today.

The decision itself is not very enlightening. In a case of automatic negligence, the opinion has only five paragraphs. There are a few sentences in the first paragraph that indicate how the case got there. Following are three cliché paragraphs, saying absolutely nothing specific about the facts. In the last paragraph, the Court rejects the case, stating that there was no evidence that Mrs. Gagne's injuries (her name is never mentioned): "… affected her life so extensively that it altered the trajectory or course of the entire life." your normal life ". Mr Schulte has not been held responsible by Mrs Schulte Gagne.
A typically unspecific and innocuous decision these days. One that would have gone completely unnoticed (except for Mrs. Gagne) had it not been for the dissent written by Judge Peter O'Connell, bless him. Judge O Connell gives us many facts about the case. It seems that the accident happened because Schulte, while driving drunk, drove his truck down the center line to the oncoming traffic, causing a frontal collision with Gagne. She suffered a concussion, with a loss of consciousness when she hit the windshield. His torso bent the steering wheel and his knee hit the dashboard. She tore her ACL and medial meniscus. This injury required extensive reconstructive surgery, which occurred ten months after the accident. The dissent describes in detail the operation, including drilling several "tunnels" in Gagne's shin and thigh, which were then filled with donated tissue, filled with bone plugs and fixed with screws. This was described by the surgeon as "a very large surgery". As for the meniscus, the torn portion could not be repaired and had to be removed. It would not be regenerated, according to the surgeon.

The dissent describes the treatment received before and after surgery and goes on to say that even seven months after surgery (nearly a year and a half after the accident), the surgeon did not feel that his atrophied muscles had strengthened enough to allow Gagne to return. working as a cleaning lady. Gagne, 21 at the time of the accident, was unable to return to the work she was doing at the time of the accident. Likewise, she remained restricted to a variety of recreational activities, including ice skating, rollerblading, gymnastics and dancing, which Gagne enjoyed before the accident. Evidence showed that she had permanently lost a measure of knee stability. For the sake of brevity, I have summarized Judge O. Connell's excellent account of Mrs. Gagne's injuries, treatment and restrictions.

Notwithstanding all this, the majority decided that, as a matter of law, without even having the opportunity to tell her story to a jury, Ms. Gagne had not met this state's minimum standard of injury, serious enough to require that the negligent party responds in damages to the victim. The drunk driver has no liability to Gagne for injuries caused by his conduct.

Try to explain the meaning of this to John Q. Public. When I talk about the Gagne affair with people who are not sophisticated enough to understand the judicial system (that is, the good citizens of this state), I get the kind of slanted-head appearance that usually comes from the family dog ​​when the housekeeper does something that canine senses are particularly stupid. I think they (the citizens, not the dogs) are not smart enough to understand that Gagne is not a victim. It is only a small part of the Michigan Courts' primary mission to eliminate frivolous actions in this state. Frivolous suits like, apparently, those of Krysta Gagne.

To eliminate such actions, the courts held that while pain is real because it cannot be objectively measured, it must be considered irrelevant. Unless you have subjectively complained of pain ten years before your car accident. In this case, it is conclusive proof of a pre-existing condition.

Now, if a member of my family were hit by a drunk driver, had serious surgery, could never return to work before the accident, and had the kind of waste that prevented him from making a list of recreational activities he had previously enjoyed. , I don't think it would be much comfort if I told you, "Thank God, according to the state of Michigan, you haven't been seriously injured." Imagine if we, as high-powered lawyers, lost as little as ninety days of our practices. Many of us would have no business to return to. Not significant, according to our courts.

Now there is an answer to all this. Our financial liability laws, or more commonly known, our flawless system. That totally protects Mrs. Gagne, or I think, as much as the courts think she deserves it. However, let's take a closer look. Our flawless system requires us to get crash coverage on our own cars if we want to have any. So, in this case, it is not unreasonable to speculate that Gagne, as a very young person with a relatively low job, drove a vintage car, where maintaining collision coverage would be a reckless investment. Our flawless system could have Mr. Schulte fully compensated for the collision damage caused to his car by his negligence, and left Mrs. Gagne without transport. Just speculating.

Now, our no-fault laws specify a minimum liability coverage that we must all have to protect ourselves if we are sued for the pain and suffering of an accident caused by our negligence. One would think that the state would set this minimum high enough, so we received protection against most claims that meet the severe commitment threshold. Not all but most. That would make sense. If Krysta Gagne's injuries are not serious enough to meet the minimum standard, our coverage will only come into play for very, very serious injuries. So what does the legislator wisely determine to be the minimum coverage that the citizens of this state need to protect themselves (as a matter of law)? $ 20,000. This is not a typo. If Krysta Gagne's injuries are not serious enough for a jury to hear the evidence on the threshold issue, how far will $ 20,000 go to protect you or me from the claims that meet the threshold in today's environment. The act without fault makes the negligent party liable for loss of salary after three years. How far will $ 20,000 go to protect us?

So who goes to bed feeling safer in this state after Gagne's decision and after revising our law without guilt? Mr. Schulte, certainly. Insurance companies? Drunk drivers, usually? The average citizen of this state should not. Our streets are no longer safe because of this decision and our insurance rates do not fall because of this.

I wish we could bring Judge Hardy back and have him talking to our judges and legislators. You know, the kind of conversation he'd have with Andy at the end of every movie, when Andy just couldn't figure out the right thing to do. Much common sense in these conversations. Lots of humanity. We need both now. Seriously.


On a semi-related note, in today's environment, it is advisable for a lawyer to consider diversifying his practice. In this regard, I made some attempts to write questions for the next bar exam. I don't know how much it pays. Here is my first attempt in the area of ​​facilities liability law.

Question: Identify any viable causes of action in the following factual scenario, according to current Michigan Law.
A grocery store clerk is stocking shelves in a hallway displaying fruit juice. Opening a cardboard box, he cuts a plastic bottle of apple juice, causing it to fall to the floor. The employee notices the leak, but is too busy to clean it and is then called to another corridor. He forgets the leak and never comes back.
Thirty minutes later, a customer, pushing a full cart, enters the aisle. She looks at an ad on the top shelf, talking about two for an apple juice sale. While pushing the cart into the juice section, it slips and falls into the juice, falling back into a display of light bulbs, breaking many. By hitting the floor, it sustains a severely fractured wrist and severe lacerations of broken lamps. It is operated by the fracture and as a result loses its job in the factory.
Answer: The store owner can sue the customer for the cost of the broken lamps.

Better not quit my daily job.

* Although I do not know Ms. Gagne, for the purposes of this article, I assume she pronounces her surname Gag-nee (as Greg Gagne of Minnesota Twins instead of Gon-yay, as the winner of the Cy Young League Prize 2004).

Mike Butler is a lawyer at Bernstein and Bernstein (not Sam) in Southfield.