Will Bardwell responded to my hunch that the Supreme Court may well not even get to the caps issue in the Double Quick case– he thinks they will get to it, because of the importance of the issue. In saying that, he leaves me wondering whether he understood why I think what I think.
It’s this: I think, reading the briefs, that the case is quite likely to be resolved on liability, a ruling that Double Quick isn’t liable at all under the premises liability cases. I was persuaded by the arguments from both Double Quick’s briefs and the trade association’s brief that Double Quick would quite likely get the court to reverse and render on liability.
If that happens, the Supreme Court can’t reach the issues about the damages cap. There’s no recovery at all, not $1M or $4M or fifty cents.
Bardwell’s position is, I think, that the damages cap issue is to important– “But under either view, the question of whether caps on non-economic damages are constitutionally kosher seems like exactly the sort of issue that the Court would love to sink its teeth into. … Recovery restrictions represent the hottest issue in Mississippi law over the past decade.” It doesn’t matter how much they want to reach the issue; if Double Quick wins on the liability question, they can’t reach it.
I realize that there are famous instances of appellate courts warping the facts to get to the issue they want to reach– I think I read somewhere this occurred in Pallsgraff v. Long Island Railroad, the Cardozo opinion about proximate cause everyone reads in first year torts (I assume everyone still reads it?). I don’t think that’s likely here.