053: Heads Up — Way Up

Stella Case No. 053, Originally Published: 4 June 2003

Cedrick Makara, 55, went to the restroom at the building where he works in New York City. The door to his loo didn’t have a knob, just a hole where the knob should have been. He stuck his hand through the hole to open it just as someone else came in, hitting the door. Makara, a city employee, jammed his hand.

The injury was no laughing matter: he had to have surgery to fix tendons in his thumb. But six months off work (remember, he’s a government employee) and medical care wasn’t anywhere near enough: he sued the building’s private owner and manager for failing to fix the door.

The result: a jury awarded Makara $2 million for past and future pain and suffering, $200,000 for future medical needs, and $750,000 for his wife. Yep, he hit the jack-potty: almost $3 million when he used a facility where he knew the doorknob was missing before he was injured.

Makara’s job with the city: claims examiner. Doesn’t that make him one of the guys who watches out for people trying to extort money from the city with frivolous claims?

Total time from incident to multi-millionaire: about four years.

Sources

• “He’s Flush after $3m Potty Suit,” New York Daily News, 21 May 2003

Case Status

As noted in the case report, awarded nearly $3 million. The lawyer for the defendant, 40 Worth Associates, said he would appeal to overturn or reduce the award. I don’t find any indication that was successful, or even that it was filed.

My 2021 Thoughts on the Case

Normally, on-the-job injuries are compensated through Worker’s Compensation insurance. In New York, a worker losing their entire hand is entitled to a maximum of $235,894.32 in compensation. But Makara had an out — a deep pocket — in the private owner of the building that, as far as I can tell, the city was leasing in part or whole.

What made this case a Stella for me was not just the large jury award, but that Makara was not just a claims examiner, but knew of the facility’s condition beforehand.

Letters

The case of The State vs. long-retired dry cleaners who allegedly contaminated ground water with their chemicals brought a huge response.

Ivan in New Jersey: “It’s interesting that local government is going after defenseless retirees just as the federal government is deciding not to impose charges on big businesses in polluting industries.”

Jeremy in Utah: “Your article has made me very angry that they would pick on these poor old people who have little means to defend themselves (especially being that so much time has elapsed). Since they obviously will not be able to compensate themselves from the limited amount of resources of the defendants, [the state is] simply being mean-spirited and petty.”

L.D. in Ohio: “I’m a former (twice — 3 decades apart) student of (then) Chico State College (now) Chico State University. The college used the city sewer system. In both inorganic and organic chemistry labs, all ‘used’ chemicals were flushed down the drain with copious supplies of water. In anatomy and physiology labs, formaldehyde and other chemicals were routinely added to the city sewer system. Back in the days of cat cadavers, they may also have had their own incinerator which of course left ash that rain could leach into the soil and/or storm drains.

“Industrial cleaning solutions were used throughout the campus, and in the dorms. They were, of course, emptied down the utility sink drains. There was an agricultural section to the college also, and chemicals were the ‘in’ thing for longer than they’ve been ‘out.’ So could it be that a state facility was as responsible, or more responsible, for the pollutants the state had to clean up?”

After 30 years, who can tell? Which was, of course, part of my point. The state certainly can’t prove the 30-year-retired dry cleaners did it, and (since the businesses are long closed) the defendants have no way to prove they didn’t, even though they can certainly prove there were many, many other users of the same chemicals before, during and after their time in business.

But Tim in Ohio disagrees: “It’s all well and good to feel sorry for retired people who weren’t aware of the ecological damage their businesses were doing, but the fact is, they were causing damage. If you own a building, you are responsible for how that building affects the area it is in. Ignorance is no excuse.”

I agree with your ending statement, but (as the lawyers would say) you “assume facts not in evidence” — it is absolutely impossible to know that the specific people the state is suing had anything to do with the groundwater pollution. The one defendant who has gone on record unequivocally swore he did not dump his chemicals down the drain.

And if you really insist that anyone who owns a building must be responsible for anything that might, perhaps, have happened in it years before it was purchased, I hope the last house you sold doesn’t turn out to (say) have an old can of rat poison in the basement, since 30 years hence you could be sued for the cancer that a later inhabitant claims was caused by it — and by your own theory you would have absolutely no defense whatever. Does that sound reasonable?

There was also quite a response to my reply to Elaine from the previous case’s letters, an attorney who called me “anti-lawyer” and demanded that I take her off TSA’s email distribution. I pointed out quite a few things to her, including that the Terms of Service for TSA require that subscribers manage their own subscriptions, which includes following the simple directions we provide for “unsubscribing”.

Jerry in North Carolina: “I loved your response to Elaine. Her question, ‘Since when do you define what is appropriate for judicial determination?’, perfectly illustrates one of my pet peeves with the legal system. Judges and lawyers have forgotten in just whose courts they practice. The courts belong to the people. We the people employ them and our court system to render, not to dispense, justice. There is a difference. It is not for them to dispense justice and us to accept it. It is rather for us to demand justice and for them to render it subject to our demand.

“It is for we the people to decide what is appropriate for judicial determination. Because of the complexity of legal issues we hire experts to sort out those matters for us, just as we hire mechanics to fix our complex car engines. If we don’t get good service at the neighborhood garage, we soon find a new mechanic. With our legal system, we’ve allowed the horse to take the bit in its mouth and run down the wrong road. It’s about time we start taking the reins back and get control of these mulish beasts. We need to enact legislation to recall incompetent judges and disbar unethical lawyers. Instead, if you’ll forgive one more animal metaphor, we’ve got the foxes guarding the henhouse.”

Peggy in Kansas: “I’m usually seething after reading about the latest legal atrocities so I was pleasantly amused to read the rebuttal to Elaine the attorney. Please print anything else you get from her. I subscribe to a lot of joke newsletters but they can’t compare with real live morons.”

Alas, but I haven’t heard back from her. She did, however, manage to unsubscribe herself from TSA’s distribution.

Malcolm in Nevada: “I can’t tell you how much I enjoyed reading your rebuttal to Elaine, the attorney from Massachusetts. It clearly shows the fact that even someone who barely passes the bar exam with the lowest of scores still carries the title of ‘esquire’. Only another attorney would object to doing away with the rampant legal frivolity that currently exists in our society — the days of ‘free money’ should be over.”

And Denis in New York: “I’m a lawyer, and I enjoy your Stella Awards e-mails. I’m not sure you have to respond to all the criticism you get; it may be a waste of your time and effort.”

Oh, believe me: I don’t respond to them all! Nor do I publish anywhere near all the kudos I get. Trust me: I don’t have the time, and you don’t have the patience. But now and then, it’s worth the effort, especially for reader amusement.

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