http://www.sandiegouniontribune.com/news/courts/sd-me-protester-lawsuit-20171129-story.html
An 18 year old illegally marches on Interstate 5 during the post election protests. At night. She is hit by a car. She is suing the university for not containing the protest that she was a part of. She was not drunk. She goes on the freeway of her own volition.
I would throw out the lawsuit.
“An emergency vehicle was driving back and forth across lanes to block traffic so authorities could shut down the freeway, the lawsuit said. The car that struck Flores had been able to get around the emergency vehicle.”
Oops. It may not be as frivolous as you think…
“You didn’t do enough to save me from myself” doesn’t sound like a good basis for a lawsuit.
In a lot of cases it’s a fine basis for a lawsuit. If an entity is required to institute some sort of safety protection, and the entity does not, then it can be liable. If the entity appears to institute some sort of safety protection but does not, it can be liable.
I have no idea whether this lawsuit has merit. I suspect not, but if she can prove that the university’s representatives steered the protest toward the freeway then perhaps it does.
It’s night. There are cars on the freeway going 50-60 miles an hour. You walk onto the freeway. Do you really blame someone else for not protecting you? Maybe the university wanted the protesters to disperse off their property but that doesn’t mean they intentionally moved them to the freeway.
I’d go on the freeway even if cars were going 50-60 mph, if I thought the university had blocked it off, or had blocked off one lane. In fact, I have gone on I-5, believing that one lane was blocked off for cyclists. Fortunately, I was right.
One word. Palsgraf.
If I remember this correctly, the students chose to block the freeway in protest over Trump winning the election. The protest on campus was contained and monitored by campus and city police, but participants decided to block the freeway to make a statement. I believe that CHP were in the middle of trying to stop traffic when this accident happened. I remember watching this on the news and then calling my son to make sure he was no where near this group. He was not and thought they were all a bunch of idiots for walking onto a busy freeway at night.
I don’t see how Palsgraf is on point here, now that I’ve Googled and found out what it was. As I understand it, Palsgraf lost because there was no foreseeable harm in the railroad aiding the other passenger. The railroad wasn’t liable because the employee couldn’t foresee the chain of events that led from helping the one passenger to having the other passenger get injured.
However, it is foreseeable that walking on a freeway when traffic has not been stopped is dangerous.
If the university led students to believe that going on the freeway was safe, but it wasn’t, the harm would have been foreseeable. If the university tried to contain the protest in such a way that the only way to go was the freeway, while simultaneously appearing to stop traffic but not stopping traffic, then the harm would have been foreseeable. If university representatives told students to go that way, and that way was the freeway, then the harm was foreseeable.
There are fact patterns that would make the university liable.
I see no indication the university sent students onto the highway. The lawsuit seems predicated on the idea that UCSD didn’t prevent the students from going there, i.e., “You didn’t have sufficient security to stop me from doing something stupid.”
I don’t know the fact pattern, and as I said, I doubt the suit will succeed. But I can see fact patterns that would make it succeed.
While the freeway is very close to the campus, there is no way the students could have been pushed that direction even if they were made to leave campus. This is a huge campus with many places the protesters could exit the campus away from the freeway. Students (and many who were not students) had to make a conscious decision to enter the freeway at that location.The freeway had not been shut down as there were no plans to have any protests there. The freeway there is an 8 lane road and moves at much over the 65 mph limit. The protesters made a choice to try to disrupt traffic in an effort to be heard. They entered this very busy freeway at night with cars going 65-80 mph. It is surprising nobody was killed.
@MomofWildChild: I think Li v. Yellow Cab is probably more on point.
^^That’s comparative negligence. Palsgraf is about whether someone is liable to unforeseeable plaintiffs.
Don’t think this lawsuit is frivolous, but I doubt the girl is in the winning position.
*Stupid iPhone! “Comparative” is a word!!!
I think an issue is foreseeability… was it foreseeable to either UCSD or CA Highway Patrol (HP) that protester would be on highway. I assume emergency vehicle was HP as they typically do this driving back and forth to slow down traffic when they know of a problem. Maybe UCSD could not foresee protester would be on road, but HP (or whoever was operating emergency vehicle) seemed to know, hence the driving back and forth. But for defendant, CA applies joint and several liability meaning let say there are multiple defendants with driver of car one defendant and HP other defendant. A jury finds protester 40% liable, driver of car 50% liable and HP 10% liable. Plaintiff could recover only 60% of her damages, but plaintiff could get entire 60% amount from HP (eg deep pocket). HP could in turn sue drive to recover 50% from driver, but if driver had minimal insurance and no other assets, HP would be stuck will medical bills. Joint and several I think only applies to economic injuries (out of pocket costs, eg medical bills), not for things like pain and suffering
I would think that if anyone was liable here, it would be the driver of the car IF, and only if, they deliberately evaded the emergency vehicles blocking the road or clearly deliberately drove at the protesters when they had reasonable opportunity to stop.
I mean, one is not allowed to mow down someone who is jaywalking because “they shouldn’t be there.”
A Darwin Award contestant.
A frivolous lawsuit is one that can’t possibly make money. This lawsuit may well be stupid, but not frivolous.