048: What Comes Around, Goes Around

Stella Case No. 048, Originally Published: 7 May 2003

Charles McCall, 32, was crossing the street at night in Orange Beach, Ala., when he was hit by a car and killed.

Police investigators determined that McCall was to blame for his own death. “It appears that the pedestrian stepped in front of the driver,” the police said. McCall’s blood-alcohol level was .304 percent, or about four times the legal limit for drivers in Alabama.

drunk in street 300x158 - 048: What Comes Around, Goes Around
Not an actual photograph of Charles McCall.

There was no evidence that the car’s driver, Alexander Kimbrell, 18, had been using alcohol or drugs, and police closed the case.

Not so fast! McCall’s mother, Pat Turner, sensed an opportunity: she has sued Kimbrell for $3 million — $1 million each for his “negligence, wantonness and failure to exercise reasonable care” in the accident. Since Kimbrell was a teen at the time of the accident, his father has also been named in the suit.

Many may think this is kind of a hum-drum outrage, but there is, of course, a twist: what gave McCall’s mother the idea to file a lawsuit against the driver of a car when someone stepped in the car’s path?

McCall and his mother were sued themselves in 1996 in a similar incident. McCall loaned a pickup truck owned by his mother to a friend, who ran over a pedestrian. McCall was named as a defendant in the resulting wrongful death lawsuit — as was Turner, simply because she owned the truck. Surely she was outraged at being sued like that! The case was ended with a settlement, which was no doubt paid by her insurance company. Apparently, she now wants to know what the experience is like from the other side of the courtroom.

Sources

  • “Accident Victim’s Mother Sues Driver,” Mobile Register, 23 February 2003

Case Status

A google search as I was creating this page for “Pat Turner” “Charles McCall” lawsuit (quotation marks tell google those exact phrases must be on the page) brought up exactly one hit:

google books 048 - 048: What Comes Around, Goes Around
D’oh! Oh well!

Similar searches for the defendant brought similar results.

My 2020 Thoughts on the Case

Looking back on the source article, it seems to me that Turner’s attorneys found the case distasteful (though they still took the job to attempt to ruin a young man’s life). “James Powell, one of Turner’s lawyers,” the reporter wrote, “declined to elaborate on the allegations. ‘You really ought to read the complaint,’ he said.” What did Turner herself have to say about her lawsuit? “No comment.”

Kimbrell was a juvenile at the time that a drunk popped in front of him in the dark (9:30 p.m.) Is this really how she would want her own son treated when he was already traumatized by such a thing?

Absolutely pathetic.

And I’m very surprised I didn’t provide the awesome name of the police spokesman that I quoted in the second paragraph. It was Orange Beach Police’s Assistant Chief, Greg Duck.

Letters

In a recent Letters section, a law school student suggested that lawyers be socialized — employed by the government and provided to people as a government service at minimal or no cost.

Tom in Massachusetts: “A very interesting suggestion, as you say, but it leaves one gaping hole: what if you want to sue the government? Whammo, instant conflict-of-interest: the government *employs* your lawyer? It seems to me that the government is the one entity I need the most protection from when suing. Contrariwise, who wants the government to have so many lawyers available to them?”

Peter in B.C., Canada: “The publicized waiting lists for Canadian hospital services is an organizational challenge (doctor shortages here, nursing shortages there, funding shortages here AND there — that sort of thing). As for potentially long waits before getting your day in court in the U.S., you write every week about frivolous or goofy lawsuits that clog up the courts, exacerbating an already overworked system. Are you suggesting that the current situation of lengthy waits under the vaunted U.S. judicial system could get worse than it is now? Maybe it can, but since the Canadian medical system solves its waiting list problem by constantly ranking cases according to their urgency, maybe a similar system would work equally well to put the kinds of cases you write about at the bottom of the judicial pile. I’m thinking, for instance, that it might actually be useful to have a system that constantly compares the urgency of the tobacco lawsuit against California to the thousands of genuinely worthy cases in that state, instead of one where the litigant with the most money decides the speed of justice.”

Another “interesting” idea, but if you were sued for something ridiculous, would you want that hanging over your head for years? (Keeping a defense lawyer on some sort of retainer all that time!) Doesn’t sound appealing to me.

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8 Comments on “048: What Comes Around, Goes Around

  1. The health industry and insurance companies in the US deal with things by stalling until the patient dies. That doesn’t take long as many of the patients die quickly without treatment. That wouldn’t work as well for lawyers, who can’t count on their clients dying before they actually have to perform any work.

    Reply
  2. Another “interesting” idea, but if you were sued for something ridiculous, would you want that hanging over your head for years? (Keeping a defense lawyer on some sort of retainer all that time!) Doesn’t sound appealing to me.

    I believe you missed something here, Randy. If all lawyers are now Government employees, why the need for a retainer? A lawyer would be assigned to the case by the government, and the payment for said lawyer would be from the government, and not the plaintiff.

    As for the “socialization” of the law profession, all I can relate is what an old associate told me. He was a Dentist in Denmark working under their socialized medicine system. He was paid a flat rate per procedure, up to a certain number, after that number was reached, he was paid more. I worked with him in a US Military Dental Clinic, and he was amazingly quick. Where an American trained Dentist would do one procedure per visit (procedure = a filling) he would do however many he could, always correctly, in the quadrant of the mouth he had anesthetized. American Dentist, 5 fillings = 5 visits, my Danish friend, 5 fillings = 1 visit.

    Attempting to relate that to the practice of American law is a stretch, but… A lawyer gets paid a flat amount for each “procedure,” or case, up to a certain amount per month, after that he gets paid more, or whatever he would want to charge (up to a limit that would depend on the type of case.) This might in turn correct some of the frivolous cases introduced into the courts because a productive lawyer would tell the client that their case was without merit.

    I’m not certain that all would agree with that type of system, but it might even work. It certainly did for my Danish Dentist friend.

    Peter in B.C. wasn’t necessarily talking about socialized law; he was talking about prioritization, so I don’t think I “missed something.”

    Paying by the case would lead to lawyers only taking the quick and easy cases. There are complex, lengthy, difficult, and completely valid cases too, which no one would want to accept because in that time, they could knock out 10 easier cases, and be paid 10x the fees. -rc

    Reply
  3. “McCall and his mother were sued themselves in 1996 in a similar incident.”

    How similar? Was there any indication of fault of the driver in the 1996 incident? None in the one they sued over.

    The paragraph is pretty self-explanatory. Even if the driver was completely at fault, what fault did the mother have when her son loaned her pickup to someone else? Yet she was sued anyway. The son “could” have indisputable liability if (for instance) he loaned the vehicle to someone who was obviously intoxicated. But there isn’t that kind of detail in the source material to know. -rc

    Reply
    • Even if the driver was completely at fault, what fault did the mother have when her son loaned her pickup to someone else? Yet she was sued anyway.

      As an interesting note for this, in California, the owner of the vehicle is liable for damages incurred due to negligence or wrongful act, per California Vehicle Code Section 17150.

      Finding the exact rules is quite difficult, so I’m not interested in trying to figure out if Alabama has a similar law, however I live in California so I’ve dug into the laws here quite a bit.

      “17150. Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”

      First thing that has to be done: legally establish that the mother (the pickup’s owner) 1) knew her son was loaning out her truck, and 2) provided “express or implied” permission to do so. -rc

      Reply
      • There is no need to show that the mother knew her son was loaning the vehicle under California law, per Peterson v. Grieger, Inc. (1961), which found that granting permission to somebody else to use the vehicle grants them the ability to grant permission to others.

        The only two facts that need to be established is that the mother granted permission to her son and that the son granted permission to another.

        The former is a fairly low bar under Elkinton v. California State Automobile Assn., Interstate Insurance Bureau (1959) which reduced the standard of evidence needed to prove implied consent where “the parties are related by blood, or marriage” as well as “principal and agent”.

        The later is a bit harder to prove, though your wording implies such was proven.

        Reply
    • I think the principle that the owner of the vehicle is ultimately responsible may be quite widespread. I know that it’s spelled out in the Motor Vehicle Act here in BC, in the section Liability of owner for contravention of Act. It’s up to the owner to keep custody of the keys. In the case under discussion, the mother would have had to accuse her son of lending her vehicle to someone without her explicit permission, which she might have preferred not to do.

      Reply
  4. Re: “socialization” of the law profession. None of these letters mention what to me is the biggest drawback to doing that. Namely the required increase in gov’t bureaucracy to manage this “socialization” (e.g. allocate cases, manage complaints, track case progress, etc.) and increased gov’t spending (i.e. that bureaucracy & its employees are now gov’t employees who need to be paid). The increased spending would naturally lead to either a significantly increased fed. deficit, or higher taxes to pay that cost. To me, we do NOT need even more gov’t bureaucracy, and we do NOT want to be paying higher taxes. So for me, that “socialization” idea is a solid *NO THANKS*!!!

    Reply
  5. In Germany, where I live, legal fees are mostly regulated and vary by type of case; there are no hourly fees as such so lawyers have no incentive to rack up the hours. The regulation is fairly complex but serves well to limit the most egregious cases. Also, lawyers are (in most cases) not allowed to charge a success fee or a percentage of damages.

    Two main factors limit frivolous lawsuits here:

    1. There is no concept of punitive damages; only real damages may be awarded. Fairly modest amounts for pain and suffering may be awarded as well, but only in extreme cases like life-long disability those exceed a few thousand Euros/dollars.

    2. By law the loser pays all legal costs (court fees, their own and their opponent’s counsel, expert witnesses etc.); in a settlement, usually each party pays their expenses and court fees are shared. This means that the risk of suing with little chance of winning is higher.

    Reply

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