Real life hypothetical

A good Tort Law exam question appeared in today's news:

A New York truck driver who police believe was driving drunk struck and killed a Hamilton Township, N.J., man yesterday as he took a sobriety test after being stopped on Route 130 in Bordentown Township, police said.

When police stopped Shane Gildersleeve of Valatie, N.Y., less than a mile away, they found open containers of alcohol in the vehicle and charged him with driving under the influence, according to prosecutors.

An officer had stopped William F. Grieb, 34, of Hamilton Township, Mercer County, on Route 130 just after 2 a.m. on suspicion of drunken driving, according to Burlington County Prosecutor Robert Bernardi.

As the officer was giving Grieb a sobriety test at the side of the road, a tractor-trailer driven by Gildersleeve crashed into the police car, which then struck Grieb's vehicle, Bernardi said.

The officer was able to get out of the way but was unable to move Grieb, who died instantly, Bernardi said.

Clearly, alcohol was a major cause of this accident, but is it relevant whose drinking caused the car which was ultimately hit to be stopped in the first place? When the police officer detained the motorist, once he was no longer free to leave the scene, was he (or his estate) still liable? Was he contributorily negligent or was the stop an intervening act [a superseding cause?] which effectively broke the chain of causation? Might the officer have been negligent had he not made the driver pull all the way over to the side of the road? (There can be liability for negligently parking a car.) Can the driver's family recover from the trucking company as well as the county? Are there public policy considerations?

In law school I enjoyed hypothetical questions like that. It's not every day you see them in real life.


UPDATE: It's not every day that a real life hypothetical blog entry gets linked by a real life law professor! Thank you Glenn Reynolds, and welcome all InstaPundit readers. Law students, good luck on the exams!

posted by Eric on 12.19.04 at 12:15 PM







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Comments

In the criminal realm, vic Grieb's condition would not be considered relevant unless he was in the lane of traffic at the time of the incidence. I'm assuming Gildersleeve was outside of the regular lane of traffic when he hit Grieb.

In a similar traffic accident without alcohol involved -- a motorcyclist had broken down and moved off the freeway into the shoulder area. A CHP motorcycle officer then pulled behind him to help out. Traffic was really heavy..bumper to bumper and perp in an pickup accelerated out of traffic to the right down the shoulder (illegal, but impatient people pull this stunt) and plowed into the bikes, vic and officer. Vic died, officer seriously injured..perp not under the influence of anything except extreme case of the stupids.

In both cases, IMHO as a non-JD, I'd say it was 100% the responsibility of the perp of the crashes.

Darleen   ·  December 19, 2004 4:46 PM

Clearly this cannot be resolved with the information given.

The vital question is, who has money?

Regards,
Ric Locke

Ric Locke   ·  December 19, 2004 10:24 PM

Amusingly enough, I'm having a torts exam tomorrow at University of Cincinnati College of Law. I've written a damn good essay for this hypo, and I appreciate the posting of it.

This is why torts is the most entertaining of all 1L classes. Crazy crap like this.

CJFeldy   ·  December 19, 2004 10:24 PM

Clearly Gildersleeve is liable. As to Grieb, where's the causation? Is getting hit while on the side of the road under the supervision of a police officer a foreseeable consequence of drunk driving? Probably not--generally no duty to anticipate the negligence of another (among other causation/foreseeability issues).

The real issue here, as another commenter pointed out, is who's got the money? Aside from insurance, look for a lawsuit against the State of New Jersey for a claim alleging the police officer at the stop was negligent, since Grieb was in his custody and control.

PDB   ·  December 19, 2004 10:42 PM

Criminal conduct by a third party (i.e., the truck driver's DUI) is (almost) never legally foreseeable and breaks proximate cause. Without more facts, there would be no contributory negligence to the victim or liability to the police.

KipEsquire   ·  December 19, 2004 10:45 PM

The act of the police officer in stopping Grieb to administer a road side sobriety test supposes the presence of suspected drunk drivers on that section of roadway. The location chosen to administer the examination exposed Mr. Grieb to the full dangers of traffic, including the expected drunk drivers. It's not a stretch to be able to place plenty of blame for this death on the officer's choices.

Duane   ·  December 19, 2004 11:25 PM

What utter crap I read on these pages. This is exactly why the legal non-profession needs to be reformed. Substitute the word liquor with guns, and legal lefties would be saying it was the gun's fault and call for a total ban. When booze is at fault I read reads this horsecrap because lefties don't want to ban one of their food groups.

The answer is simple: driver 'a' got his just rewards for driving drunk. Driver 'b' should be awarded whatever monies the state saved in executing driver 'a', but then face the black mask for driving drunk himself. Imagine the number of lives if the law got serious with dwi's.

Jeff   ·  December 19, 2004 11:46 PM

What utter crap I read on these pages. This is exactly why the legal non-profession needs to be reformed. Substitute the word liquor with guns, and legal lefties would be saying it was the gun's fault and call for a total ban. When booze is at fault I read reads this horsecrap because lefties don't want to ban one of their food groups.

The answer is simple: driver 'a' got his just rewards for driving drunk. Driver 'b' should be awarded whatever monies the state saved in executing driver 'a', but then face the black mask for driving drunk himself. Imagine the number of lives if the law got serious with dwi's.

Jeff   ·  December 19, 2004 11:46 PM

Hey, it sounds like someone's an a-hole! Jeff, next time you next some help when your wife leaves you for being a jerk or you need to write your kids out of your will because they won't let their kids meet their crotchety old grandpa, don't come to a lawyer for help.

What exactly are you talking about with "lefties not wanting to ban one of their food-groups"? I'm no fan of the "lefties" (although really only like 10% of Americans are left-handed, so they can't have that much power), but it's ridiculous stuff like this that makes me call myself a libertarian to distance myself from people like you. Or is the new party line, straight from Limbaugh?

Legal non-profession? Hilarious joke there. You should do stand-up. Now that right there is a profession.

Anonymous   ·  December 20, 2004 12:09 AM

I'll chime in from the law enforcement perspective, if I may. Police Departments have policies dictating how traffic stops are supposed to be performed. As long as that officer was within policy, he should not be civilly liable. The "deep pockets" approach, is a complete crock, and why a lot of people have nothing but contempt for civil attorneys. Look for what caused the accident. The victim of this accident was presumeably intoxicated. I'm sure that the post will determine that pretty quickly, unless he was smeared all over the highway. I'll just say that the vic was legally intoxicated at the time of the accident. He still should have a reasonable belief that he is safe out of the trafficway, as well as the officer. Why else would people get charged with negligent homocide, when they rear end police officers who are pulled over? The other question is, where should the officer pull somone over, if not on the highway. If he thinks the person he's pulling over is drunk, then making the person drive further to an exit, is just opening him, and his department, to even more liability if the fool he is trying to pull over kills someone while heading to an exit ramp. People pull over on the highway everyday, without getting killed. Should it be their fault if some drunken trucker smokes them while they are on the shoulder taking care of something important? Now if the officer pulled the guy over, and left his vehicle out in the traffic lane, then you might have some liability to him or his department, but then again, most officers these days are trained to stick the rear end of their car out into traffic while on stops. The rationale being, is someone drives too close, they clip the rear end of the car, and don't hit the officer. Who knows what really happened here. We don't have enough info to go on, but to be honest I have zero sympathy for a commercial driver that takes a 40-50,000 pound semi on to the expressway, while drunk. I say hang his ass, and let the police do their damn jobs.

Brad   ·  December 20, 2004 12:28 AM

Interesting hypo and comments...seem to get a bit of everything here. I'm a civil defense attorney, and in my experience, everyone involved will get sued. It's not just the deep pocket theory (though realistically, you only sue those who can pay, or can help you make the case against those who can pay - this is exactly why the police will be sued, they'll actually be forced to be more helpful through discovery, etc. though ultimately they may be "cut loose").

If I had to defend the truck driver I would surely key on the fact that "but for" Mr. Grieb's level of intoxication, he would not have been in harms way. I would probably also find out as much about the stop and the officer to place as much blame as possible on the officer and the stop - nothing against police, but as a good attorney you must do your job, and that includes exploring all avenues. And, of course, more information is necessary - how far off the road was the stop, how far off the road did the truck driver go, how long had he been driving, what was he hauling, for whom did he work, what is his past employment and so on...

However, in the end, I think it will matter less why the stop occurred and even how it was conducted - how do you miss a cop car stopped on the side of the road with a sobriety test being conducted? Your drunk = your negligent and even assigning percentages (though I'm in one of the last contrib. jurisdictions) the truck driver's negligence is greater than 50%.

mike   ·  December 20, 2004 1:27 AM

Clearly this cannot be resolved with the information given.

The vital question is, who has money?

Heh heh. Or as my friends and I call it, the "Justice Brennan Test."

Bobby A-G   ·  December 20, 2004 2:32 AM

Clearly, he who has the deepest pockets will pay, regardless of blame. Don't ya just love our system, eh?

Vulgorilla   ·  December 20, 2004 7:12 AM

Obviously this is the fault of the Bush administration. If you are taking a law school exam, there is at least a 62% chance that your professor will think that this is the case. Just parrot and make A's.

ZMW   ·  December 20, 2004 8:04 AM

This is eerily similar.

Anonymous   ·  December 20, 2004 8:05 AM

Fun comments, all!

Just to tweak this a little, on these facts, do we even know for sure that the first driver was drunk? Should we assume that he was? And how much does it matter?

Eric Scheie   ·  December 20, 2004 8:49 AM

I'm not a lawyer, but in my mind there's no question of liability. The truck driver is definately at fault and the trucking company should be held liable too.

I used to live in Hamilton, NJ and I am familiar with the area where this occured. Rt 130 in Hamilton has a shoulder that is as large as a driving lane. To give you an idea, in most places, the road is large enough for three lanes of traffic in each direction but is painted so that there is only two. there is plenty of room for an officer to pull someone over and safely administer a sobriety test on the side of the road.

In addition to having plenty of room, NJSP cars are always lit up like Times Square when they are stopped on the side of the road. So this truck driver must have been completely out of his lane and too drunk to notice a flashing target that can probably be seen from space.

I feel for the family of the victim, but I hope that they don't sue the police over this.


Pete   ·  December 20, 2004 9:43 AM

"there is plenty of room for an officer to pull someone over and safely administer a sobriety test on the side of the road."

Obviously not.

Duane   ·  December 20, 2004 9:54 AM

For Pete: While I agree with you from a moral standpoint that the familiy should not sue the police, any attorney of the victim's family who does NOT sue the police would be liable for malpractice.

Just for fun, I started looking at the universe of people who can be sued:

1. Truck Driver
2. Truck Driver's immediate supervisor (for negligently allowing him to take the road)
3. Truck Driver's company/employer (under respondeat superior, as the Truck Driver was clearly in the course of his employment when accident happened)
4. Police Officer
5. Police Department (for failing to train the Officer adequately)
6. Police Department (for failing to set safer guidelines for pulling people over)
7. Whomever it was that sold Truck Driver the alcohol -- were they negligent in selling alcohol to a person who may have already been showing signs of intoxication?
8. Truck Driver's Truck Manufacturer -- you can never rule out product liability; perhaps the brake wasn't large enough, or the visibility poor out of the windshield.
9. Truck maintenance company -- if the truck had any mechanical problems whatsoever that was not properly addressed, we got something to go on here.
10. Police cruiser maintenance -- again, if the police car's lights were not as clearly visible as they could have been....
11. Whomever sold the Victim alcohol -- again, if they knew or should have known that the Victim was already drunk at the time of the sale of alcohol....
12. State of New Jersey/Township of Hamilton -- if the road in question was constructed in such a way as to make accidents like this more common than not (e.g., why not have barriers periodically in the pullover lane to discourage driving on it?), then we might have a cause of action here.
13. The engineer for the State/Township who designed Rte 130.
14. Obviously, all the big alcohol companies -- starting with the manufacturer of the brew/liquor that the Truck Driver had imbibed -- under the theory that they failed to warn adequately as to the ill-effects of alcohol. If it worked for Big Tobacco... why not Big Brew?

I think that's pretty much it... And people say we don't need tort reform...

-TS

The Sophist   ·  December 20, 2004 10:25 AM

Mike, I'm a New york civil defense attorney, and since it happened in New York, that jurisdiction's law will apply. Our fair state throws a few curveballs at the batters who would swing at this one. First, NY is pure comparative negligence, i.e., a defendant less than 50% liable can still be forced to pay something to a >50% Plaintiff. Joint and several liability would apply to the driver, but not the county, because the driver was operating a vehicle, but the cop had alit from his car - that is unless the driver was the one found > 50%. And that rule does not appy to special damages, and most damages in wrongful death actions are special damages, I can't even begin to explain with my limited time how NY's no-fault law affects the situation. As to to whether decedent's drinking (or, at least, prompting of a breath test by violating the open-container law) was a proximate cause, or was superceded, NY appellate judges tend to answer these questions of law on a case-by case basis. In short, this one's a procedual mess.

Jimeo   ·  December 20, 2004 10:47 AM

Duane

Of course just because the officer may be fully in compliance with all procedures and was fully pulled off the road doesn't keep him or his agency or the county from being hauled into court.

Whether they will be held liable (or should) is an entirely different proposition.

As I cited in my first post, you can take alcohol completely out of the equation and still have a similar set of circumstances, and the only person criminally liable is the driver who swerved out of the lane of traffic and plowed into the officer and victim.

I'm sure if the vic's family wants to, they'll get a hired gun and sue everyone with even the most tenuous connection with the case looking for a settlement rather than taking any chance on a trial.

Darleen   ·  December 20, 2004 10:47 AM

I'm repeating myself but anyways, pulling over one driver on the suspicion of being impaired provides the officer with enough information to expect the possibility of other impaired drivers. There is a procedure in place to protect the officer. This would be the deliberate positioning of the cruiser to act as a block to other errant drivers. To then conduct the roadside sobriety test directly in front of the cruiser ignores the implied danger and negates any safety the cruiser is expected to provide, as amply demonstrated by Mr. Grieb's death.

Duane   ·  December 20, 2004 11:35 AM

Doh, I misread it. It happened in Jersy. Never mind!

Jimeo   ·  December 20, 2004 1:53 PM

What happened to soveriegn immunity? The officer, in the lawful discharge of his duties, is creamed by a drunk trucker and his dui subject is killed. The officer has no discretion in this type of activity; when faced with reasonable suspicion that a motorist is driving while intoxicated, he must act. Soveriegn immunity would protect the police department, unless Jersey law has been changed to eliminate it for police...which doesn't seem terribly smart. Which places the blame squarely on the shoulders of the trucker, and his employer, if he was moving the truck within the scope of his employment.

Nuff said. Got another A in a 2 paragraph exam answer.

shotgunjohn   ·  December 20, 2004 2:26 PM

I never did understand torts, except that there's a theory to support both sides of every issue. Just reading that scenario makes my head hurt.

If I were the judge, I'd grant a motion for summary judgment on the grounds of sovereign immunity then retire before the case came back down from the court of appeals.

AST   ·  December 20, 2004 3:40 PM

Hmm. Duty, Breach, Causation, Damages - in that order. Officer liability? Not unless he had the 502 suspect (Cal. Penal Code) standing in the middle of the road. It sounds like the truck struck the cars and these hit the victim. If so, victim's status as a DUI suspect is not key fact - he could have been standing on side of road for a flat. OK, now someone will argue that the tire company should be sued - under the same approach, shouldn't the alcohol company whose product the victim consumed be sued as well? The tavern where the drinks were consumed (or private residence), the auto manufacturer for not placing a breathalizer on the ignition switch? Hey somebody has to pay! Remember that when you get sued. Lawyers don't work for free - they require clients to pay them and set them loose.

Californio   ·  December 20, 2004 4:03 PM

Another Instalanche! All I was thinking of to say was that I'm glad I wasn't there when it happened. I've got to go to the store now. Merry Christmas!

All the posts on tort law I've read have lead me to believe: a)tort laws are insane b)law school teaches that they are sane c)clawyers will never make them sane.

When I first started reading Althouse I thought she was being sarcastic or perhaps ironic. It is so sad that she wasn't.

Harkonnendog   ·  December 20, 2004 8:10 PM

Calif...

PC502??

Ummm... DUI is VC23152(a) - under the influence and VC23152(b) blood alcohol of .08 or greater

(lord, I didn't even have to look up the code, between 20-30% of our misdemeanor pre-trials -- our office alone processes approx 120 cases a day -- are VC23152 a & b)

PC502 deals with unauthorized access to computers systems and data.

Duane

pulling over one driver on the suspicion of being impaired provides the officer with enough information to expect the possibility of other impaired drivers

That's just plain silly. Unless you are assuming the officer had been staking out a bar or tavern at closing time, then there is no statistical evidence I know of to support your contention that ONE dui suspect is a predictor of others in the same area at a greater rate then any other similar area where a dui suspect has yet to be caught.

then conduct the roadside sobriety test directly in front of the cruiser ignores the implied danger

There is nothing in the story to support your contention that the field sobriety test was being conducted directly in front of the cruiser.

Darleen   ·  December 20, 2004 9:08 PM

Darleen

Your contention that the police officer had no reason to expect to encounter vehicles operated by impaired drivers is disingenuous. This incident happened 2a.m. Sunday morning. He's a cop, he knows when the drunks are out.

"There is nothing in the story to support your contention that the field sobriety test was being conducted directly in front of the cruiser."

Read the article. The trucker struck the cruiser which then struck Mr. Griebs vehicle. That would place the location of the sobriety test between the two vehicles, Mr. Griebs was squished between the front of the police vehicle and the rear of his own.


Duane   ·  December 21, 2004 12:29 AM

Duane

You are making assumptions with no evidence on either count.

And specifically re: Greibs being between the vehicles is not supported (nor disproved) by the article. It only states the truck struck the cruiser which struck Griebs car, and Grieb's was killed. I can come up with several scenarios where Grieb would have been killed by his vehicle that do not involve him being between the cars.

You have looked at an incomplete report, made unsupported assumptions and come to the conclusion the officer was liable.

Darleen   ·  December 21, 2004 1:20 AM

I would like to add a comment, I have no leagal background but enjoy the thought process.
First of all, the article states that open containers were found in the truck and the driver was charged. It does not state what a sobriety or blood test result was. Everyone here so far has concluded that the trucker was drunk. Next, place yourself in the truck, this is often a trucker's home on the road where you can find the types of things you normally would not find in someone's vehicle, but instead, in one's home. Not that empty alcoholic
containers should be ignored, but this should not impose an automatic guilty verdict.

Just some thought that perhaps requires more thought (and more information).

Anonymous   ·  December 22, 2004 10:49 AM

More thought and information needed! That's what makes it such a good exam question.

(I'm glad this isn't real life, or I'd have to grade the answers!)

Eric Scheie   ·  December 22, 2004 2:04 PM

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