Monday, June 11, 2007

The Curious Case of Judge Bork and Punitive Damages

One of the early critics of punitive damages, Judge Robert Bork, filed a lawsuit recently that reportedly arose from injuries he suffered as he fell while climbing a stage. He was on his way to the lectern to give a speech to the Yale club. According to the report, Judge Bork seeks $1 million in damages, plus punitive damages. Here's the report in The Washington Post:

There's something a little unsettling about all this. It's rare--in fact almost unheard of--that an injured person would recover punitive damages in a simple premises fall case. The standard for punitive damages generally requires wanton disregard or deliberate indifference to a hazard. It would almost require the Yale club to have deliberately left a hazardous condition there, knowing that the frail judge would fall. Kind of like tossing the old banana peel on the floor and training a camera on the spot so that you could laugh at the guy tumbling.

It's always a little risky to comment on cases based on media reports--you really don't have all the facts unless you're actually handling the case. But still, this one seems a little hard to fathom. The report in the Post makes clear that Judge Bork suffered significant injuries. He had a head injury, needed surgery and walks with a cane. Still, punitive damages?

This case might be more ironic than Mr. Hemstreet's civil rights claim (May 23, 2007 post below). Mr. Hemstreet funded ballot measures to limit damages in civil lawsuits. But Judge Bork has been one of the great theorists of the vast effort to limit damage cases. For years, Judge Bork has railed against the civil justice system, tort law, and punitive damages, the very tools that he is using in his case to seek redress for his injuries. So the bigger question is whether he now stands ready to repudiate decades of criticism that has fueled critics of the civil justice system.

Or maybe Judge Bork would explain that his case is different?

David F. Sugerman
Paul & Sugerman, PC

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