Fieger misfires again
I return after several days abroad and now have a chance to comment on the Jenny Jones decision by the Michigan Court of Appeals. (Graves v. Warner Brothers - PDF format) Howard Bashman has already pointed out that the author of the majority opinion was Judge Richard Griffin, who is one of the President's nominees to the Sixth Circuit.
I would only add that this case is yet another appellate setback for Geoffrey Fieger, the attorney who represented the plaintiff. Fieger has been very successful in front of Michigan juries, and has had a number of very large jury verdicts at the trial court level, but he has had more of them reversed than any other plaintiff's attorney in recent memory. Most remarkable is the fact that most of them have been set aside on account of Fieger's egregious trial misconduct. It is perhaps no accident that the first case cited by the court in support of the routine proposition that "motions for summary disposition, directed verdict, and judgment notwithstanding the verdict are reviewed de novo" was Badalamenti v Beaumont Hosp, 237 Mich App 278, 284; 602 NW2d 854 (1999), another of Fieger's misfires.
See also Dawson Bell, "Fieger's wins lose luster in appeals", Detroit Free Press, May 29, 2001.
This one was not set aside because of Fieger's misconduct. It was reversed because the court concluded that the actions of Jonathon Schmitz, the individual who killed Scott Amedure, could not be legally regarded as a foreseeable result of the defendant's actions.
The Court observed:
Logic compels the conclusion that defendants in this case had no duty to anticipate and prevent the act of murder committed by Schmitz three days after leaving defendants’ studio and hundreds of miles away. . . Because the evidence, even when viewed from a perspective most favorable to plaintiffs, revealed no ongoing special relationship at the time of the murder, defendants owed no duty to protect plaintiffs’ decedent from Schmitz’ violent attack on March 9, 1995.
The Court concluded:
Viewed from a perspective most favorable to plaintiffs, the evidence failed to establish a jury question on whether it was reasonably foreseeable that Schmitz would murder Amedure as the natural and probable result of the events on the show.
I have a mild disagreement to voice here. The court properly noted earlier that the question of duty is one for the court, not for the jury, and of course the foreseeability of harm is one of the considerations which go into the definition of the scope of the duty owed. The court should not have misleadingly suggested that the foreseeability of this misconduct would be an issue for the jury to decide; it is always an issue for the court alone.
Ultimately, this decision is based on the fact that while the actions of the defendants (which the opinion observed "may be regarded by many as the epitome of bad taste and sensationalism") could reasonably be expected to cause humiliation on the part of Schmitz, it could not be reasonably foreseen that his reaction to that humiliation would be homicide. As the court stated:
The rationale underlying this general rule is the fact that "[c]riminal activity, by its deviant nature, is normally unforeseeable." Papadimas v Mykonos Lounge, 176 Mich App 40, 46-47; 439 NW2d 280 (1989). Our Court in Papadimas, quoting Prosser & Keaton, Torts (5th ed), § 33, p 201, emphasized that "[u]nder all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law."
Update: Thanks to Overlawyered, we can point to an article in the Oakland Press describing the decision and providing some characteristic quotes from Fieger, who invariably blasts the courts when he loses:
"It's another example of what I've been saying since Day One," Fieger said. "Notwithstanding the talent of (Oakland Circuit) Judge Gene Schnelz and his knowledge of the law, victims in Michigan are faced with a gauntlet of politically appointed judges.
"If you're lucky enough to win in front of a jury, you won't win in front of (the appeals court). They will make up legal gibberish to justify their decision. . . The injustice is not simply to my clients but to every person in the state. It means, 'If you go to trial and win, we will take it away from you.'"
Fieger's rant about "politically appointed judges" is misdirected. Judge Griffin was elected to the Court in 1988, not appointed, and Judge William Murphy (the dissenter) was appointed by Democratic Governor James Blanchard in the same year. Only Judge Patrick Meter is an Engler appointee.
7:11:41 PM 
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