The most effective intellectual energy in the Double Quick briefs as far as I’m concerned is on the liability issue. The plaintiff was shot in the Double Quick parking lot, and the question is whether there was evidences the violence was foreseable under the Mississippi Supreme Court’s premises liability cases.
Double Quick makes the argument it has to make to win– that, under the existing premises liability cases, there’s not evidence that the violence was foreseeable, or that Lyman’s injury was proximately caused by anything Double Quick did, and therefore no liability. But an amicus brief filed by Wayne Drinkwater, Mary Clay Morgan, and Micheal Bentley at Bradley, Arant on behalf of a bunch of trade associations and businesses does something a party couldn’t really do: It argues “The court has messed up and confused this are of law and needs to fix it. And when it fixes it, Double Quick wins.”
What the amicus brief does is start with a 1980s premises liability case and say: This case stated a clear rule– part of which rejects a plaintiff’s argument that violence is foreseeable and therefore there’s always liability if nothing is done to deal with possible violence– and it told premises owners what kinds of problems or conditions required them to act. But then after that, there are fifteen cases that are all over the map and have no clear pattern. Some seem to follow the clear rule, and others seem to buy into the violence-is-foreseeable notion the court had earlier rejected. The upshot, argues the amicus brief, is that there is no clear rule. The brief then makes a strong (and clear) argument that the court needs to clarify this by going back to the first rule it had announced in the 80s.
I haven’t gone behind the briefs and read the cases, and am not saying who I think should win the case– although just on reading the briefs yesterday, I thought there was a really good chance Double Quick would win on liability and the court would never reach the damages cap issue– but I think the one-two punch of the argument in Double Quick’s brief (we win under the existing standard) and the trade association amicus (clarify the standard) is very effective, particularly because of the way the amicus brief makes an argument you really can’t make in a party’s brief.
On the other hand, I don’t think any of the arguments on the constitutional issues (from the party’s briefs, or from amicii filed by the Magnolia Bar and Governor Barbour) are particularly strong or effective. As noted elsewhere, Barbour’s is “light on law“–a combination of reference to press releases about Mississippi’s former status as a “judicial hellhole” and the policy arguments made on behalf of tort reform, with not much in the way of constitutional argument.
As I noted yesterday, all of these briefs are available online here.
Wasn’t there any other case the court could be looking at. A man walks to the parking lot of x-mart shoots another. A local store the police department just down the road. A lot is taken from the actual reason to gain the max amount for plaintiff. Finding negligence in the first place by whatever means the jury reached its verdict. The amount playing into the biggest issue of this type of cause. The court is reviewing a matter where any day, any time someone or maybe two folks get together one shoots the other Bam instant cap-less awards. And now, we just couldn’t have that huh. There are a lot of hunting over baited areas. This deck is stacked, and the dice don’t look any better.
And then, there’s the real victims. Those whose attorneys leaving the court room without your opponents underwear might question if you missed something.Some of the criminal activity assoiated to some claims should not only be cap-less any known crimes related to an over assumption that the state’s all powerful policing force are above having to smell what they are dishing out to others ought to be addressed as well. Yeah, I’ve got some chickens to care for and need some help. Now where did I put that old fox?
Does anyone else find it odd the MAJ is notably absent from the Amicus filings? One would think the MAJ would show up for such an important issue.
MAJ didnt brief this issue because:
It was not ask too in a timely manner, or
It decided not to become involved. You can
simply ask a memember of BOG’s to find out.