Delving into Deep Pockets

By Anastasia Toufexis

Victims are going after richer third parties for damages

Wearing combat fatigues and toting a .22-cal. rifle, Robert Wickes, 24, stormed into a junior high school social-studies class in Brentwood, N.Y., one day last month and took 22 pupils hostage. By the time the subsequent confrontation ended nine hours later, Wickes, a recently fired substitute monitor, had critically wounded one student, nicked the school principal in the face and shot himself dead. Within a week, the Brentwood school district was under siege once again, this time by lawyers announcing they would file suits on behalf of some of the children held hostage. So far, the parents of five students are readying claims seeking $8.5 million in damages. Says Lawyer Frank Puglisi: "We're charging carelessness and negligence on the part of the school district in imposing this deranged teacher's aide upon students at the school."

The aftermath of the Brentwood tragedy follows a well-established and increasingly worrisome pattern in civil law: lawsuits aimed at wealthy or well-insured third parties rather than the people directly responsible for harmful acts. Says Professor Gary Schwartz of U.C.L.A.'s law school: "Robbers and muggers do not have liability insurance, and they do not have assets. The job of the lawyer is not simply to find the negligent party but the negligent solvent party." Russell Moran, editor of the New York Jury Verdict Reporter, puts it more bluntly: "A good lawyer will try to find anyone in gunshot range who has the ability to pay."

Delving into deep pockets traces back to common-law principles. But such third-party suits have recently proliferated in the U.S., partly because some new laws have encouraged them. For example, so-called dramshop statutes, which have become widespread in the past two decades, hold bar owners responsible in many cases for the actions of an intoxicated patron after he has left the premises. At the same time, liberalizing court decisions have made more and more institutions open to lawsuits for the conduct of others. Among the favorite targets: apartment-and office-building landlords, hotels, hospitals, schools, manufacturers and municipal transit systems.

The propensity to bring such suits has been spurred by news of large victories. The most famous case involved Singer Connie Francis, who was raped at a Howard Johnson's motel on Long Island, N.Y., in 1974. She charged that the motel-room lock was faulty; a jury awarded her $2.5 million in damages. Some recent decisions also involve whopping sums, and somewhat unlikely defendants. In California, a drunken driver plowed into the rear end of a station wagon parked on the shoulder of a freeway; the wagon had been left without lights by a police officer who was arresting its driver. The passengers riding with the drunk sued him and also the state, which had to ante up $2 million in damages. In 1978 a student from the Massachusetts Institute of Technology threw acid in the face of his former girlfriend at her New York City residence. She sued the building owner and its security firm as well as her assailant's school, charging that M.I.T. psychiatrists who had been counseling the youth should have warned her of the danger. The jury's verdict: a total of $10.3 million in damages from all three sources.

The size of an award is influenced by many factors--for one, the jury's perception of who will be paying. In suits brought against subway or bus authorities by crime victims, says Chicago Attorney Philip Corboy, "jurors recognize that it's their own tax dollars that pay for the award." And a juror's financial status may matter. Says New York's Moran: "The banker in Westchester won't give you a nickel, while Bronx jurors will give you the courthouse."

When critics complain that such precedent-busting verdicts make little sense, plaintiffs' attorneys like Charles Kavalaris of San Jose, Calif., reply: "The innocent victim of an accident should have somewhere to go if he can prove liability. If you look at it through the eyes of a quadriplegic, it's a fairly simple question to answer." Defendants' lawyers, on the other hand, fume. Attorney Stephen Newton of Mountain View, Calif., recently settled a claim by a victim who was paralyzed for life in an auto accident. Newton, representing a trucking company whose driver was essentially a bystander to the collision, did not believe his client was to blame but did not want to risk a jury verdict. Says he: "It's a form of economic oppression."

Liability laws are a hodgepodge across the nation. Generally, however, if a number of defendants contributed to the plaintiffs injury, he can seek full recovery from one or more of them. In a few states, a case can be thrown out if a plaintiffs carelessness contributed even slightly to the injury. Most states reduce the amount of the judgment in proportion to the plaintiff's negligence. But the long-term trend toward making it easier for plaintiffs to sue has not yet turned around. A bill to limit liability was voted down by a committee of the California legislature two weeks ago.

Potential third-party defendants are frustrated. "They can't even protect the President of the U.S. with all his Secret Service guards," says Atlanta Litigator Oscar Persons. "How do they expect the owner of a hotel to protect each and every one of his guests?" Prison authorities, for example, could soon face such a legal quagmire as a result of acquired immune-deficiency syndrome, the mysterious disease prevalent among homosexuals and heroin addicts. May a government be sued if a prisoner contracts AIDS while in custody? What actions might a court later decide should have been taken to protect inmates, many of whom are drug abusers or engage in homosexual activity?

The motto for potential defendants today is "Be prepared." Some corporations are setting up million-dollar escrow funds to pay damage claims. Others are increasing their insurance coverage. One worried potential defendant upped its coverage last year from $5 million to $25.5 million. The prudent possessor of the deeper pocket: the Brentwood, N.Y., school district.

--By Anastasia Toufexis. Reported by Geoffrey Quinn/New York and Dianna Waggoner/San Francisco

With reporting by Geoffrey Quinn, Dianna Waggoner This file is automatically generated by a robot program, so viewer discretion is required.