101: Puerile Potty Prank

Stella Case No. 101, Originally Published: 25 January 2006

Bob Dougherty, 57, says someone smeared glue on the toilet seat at the Home Depot store in Louisville, Colo., in 2003, causing him to stick to it when he sat down. Paramedics had to rescue him by removing the seat from the toilet. It’s not a funny prank at all: doctors had to virtually rip the seat from his …um… seat. The prankster was never found.

“This is not Home Depot’s fault,” Dougherty declared afterward. But he says he was so distressed by the incident that he’s had nightmares and had to see a psychiatrist, and two years later still avoided public places. Thus, in November 2005 he sued.

But if the prankster wasn’t found and the prank was not Home Depot’s fault, whom did he sue? Home Depot! Why? Because, the suit says, he called for help for 15 minutes before an employee finally heard him and came to his aid. Plus, the store should have paper toilet seat covers in the restrooms to provide for free.

Yet there was toilet paper there; if he was concerned about what might be on the seat, why not wipe it down with that? Then surely he would have discovered the sticky mess without sitting on it.

The resulting public humiliation, he said in one of his scads of interviews with newspapers and national TV shows, is awful too. “This is going to kill me,” he complained. “My life is shortened as it is.” Of course, he didn’t get worldwide publicity over the incident; he got it by suing.

When the case hit the newspapers, a man in a nearby town claimed that Dougherty had been in a similar predicament there. Dougherty denied that claim, and took (and passed) a polygraph test to back up his denial.

Despite not being at fault, Home Depot graciously offered Dougherty a $2,000 settlement. That amount was decreed “insulting” — Dougherty’s suit demands $3 million. Objective readers can surely think of a good word to describe that.

Sources

• “Test Indicates Dougherty Never Made 2nd Glue Claim”, Denver Rocky Mountain News, 10 November 2005.
• “Stick It To Them”, Denver Rocky Mountain News, 11 November 2005.

Case Status

Home Depot filed a motion for Summary Judgment. In such a case, the defendant essentially agrees that everything the plaintiff claims is true, but argues that there is not enough of a case to award damages — it asks the judge to rule on it without a trial.

U.S. District Court (Colorado) Judge Walker D. Miller “reviewed the parties’ written arguments and their summary judgment evidence and find that oral argument is not required,” and granted the motion to dismiss the case.

And there it …sits.

My 2022 Thoughts on the Case

Yes, the original publication date is correct: I had a backlog at the end of the year, and ran several shorts “late.”

Even in this open and shut case, which didn’t even include a trial, the elapsed time between the incident (30 October 2005) and the judge’s dismissal (29 September 2007) is 23 months. That’s pretty much a best-case scenario. Whether frivolous or justified, the lawsuit process moves slowly, and that’s part of the problem.

Letters

From Case #100, where David Letterman was caught up in someone else’s delusions. Several readers wondered what the harm was to Letterman from the order.

Craig in Minnesota: “Mr. Letterman could automatically suffer the immediate loss of certain rights simply because the order is in place. [For instance,] the federal Domestic Violence law would immediately prohibit Letterman from possessing a firearm of any kind. The nature of the order could be inferred to mean that a domestic relationship existed and the protection order automatically imposes the firearm prohibition. I can understand that hizzoner might have simply ‘erred in favor of safety’, but reading the language of the application immediately suggests something unusual and worthy of deeper examination before issuing an order. Sometimes, the wheels of justice SHOULD slow down a bit. And think.”

Jim, a doctor in Illinois: “I am alarmed by the inability of the judge in this case to recognize an obvious [to me] manifestation of significant mental illness, likely paranoid schizophrenia. I am an internist in practice for 23 years. It is my understanding that patients who are a danger to themselves or others due to mental illness may be temporarily apprehended, against their wishes if necessary, while efforts to determine whether longer confinement in a mental health facility is justifiable based on psychiatric evaluation. Such an evaluation typically must occur within the first 1-2 days of the apprehension, and if confinement is deemed necessary, I believe it also requires a court order [if against the will of the patient]. If a judge must be involved in those kinds of decisions, how is it that Judge Sanchez made his original decision in this case? I would hope that judges are provided some minimal training in recognizing delusional behavior, especially if there is the possibility of harm to the person or others.”

Want a second opinion?

Conway, a psychologist in California: “It boggles my mind that someone whose education and experience qualified him to be a judge would not recognize instantly that Colleen Nestler was floridly deluded. No, she was not ‘confused.’ She evidently had a clear, firm picture of what was going on. It’s just that that picture had no foundation in consensual reality. Maybe judges, who must deal every day with human beings in all their marvelous, maddening diversity, some of whom are likely to be in the grip of some kind of psychopathology, should be required to take a crash course in recognizing such psychopathology, especially when it is as unmistakable as in the Nestler case.”

Kenny in Texas: “Your [editorial] at end of the story about incompetent people getting elected as judges caused me to pause bug-eyed in the truth of it all. However, I don’t believe Sanchez was operating from the angle of ‘a proper pleading.’ Instead, he granted a restraining order [to] supply himself a legal hook that could bring Letterman into his courtroom. One good autograph deserves another? What other purpose could this useless order have?”

Katherine in Australia: “When I was living in Santa Fe, I worked to help get Judge Sanchez elected to office. I can see now I may have made a serious error in judgement.”

I selected this case to help illustrate the part judges play in the abuse of the civil court system. In my editorial I asked whether it was time to appoint judges (subject to recall by voters for cause), rather than electing them, which is the case in many places, including New Mexico, where the case took place. That brought a fair amount of response too.

Jan in Arizona: “There is one other reason you get better judges by appointment: Most of the best attorneys I know have no interest in running for political office nor do they have a financial need. Many of them are very private, reserved and ‘bookish’ sorts. What I want most in a judge is superior knowledge to go along with a strong desire for justice. I lived in a state where judges are elected, and I can tell you the quality of the appointed judges, where I now live, is much better.”

George in B.C., Canada: “Judging (no pun intended) by some of the American presidents and Canadian prime ministers we’ve seen over the last twenty years or so, perhaps they should be appointed rather than elected as well. Now comes the problem: Who makes the appointments? For what it’s worth, Canadian judges are appointed, not elected. Does that make them better, or are can they be poorly chosen by that method as well? Whether an important position should be elected or appointed is tricky. Would I want to have a popularly elected surgeon cut me open? No! Would I want my government to be appointed by a committee of politicians? No! But where do we draw the line?”

Natalie in Florida: “Your point about electing judges is well taken, but appointing them has its own drawbacks: lots of them get on the bench because of favors, influence, etc. A solution might be to make it a civil service position, with requirements and regular inservice training. I am an activist working to reform the family court system, and the judges are a major part of the problem here — both selected and elected. Ten percent of them are dangerous, 70% are lazy and/or incompetent, and only 20% are decent, at least in South Florida.”

And Joao, a law student in Brazil: “You made what was to me a very intelligent criticism to the system of local elections for appointment of judges. Not only incompetence, but also vested interests, seem to be the biggest potential beneficiaries of such a system. There is a different system that seems to offer a better solution. This is how Brazil (as a lot of countries with a legal system derived from Roman Law) approaches appointment of local judges: Candidates don’t run elections. They take a very disputed test, sort of a beefed-up Bar exam, in which only the top x make it through, x being the number of judges needed. I don’t know about the number of candidates there, but here it is enormous. Thousands, actually. Judges are not known by the people; they are picked based solely on their knowledge of the Law, and by completely objective criteria. I’m not saying such a system is perfect, of course.

“One of the reasons I’m a true admirer of your work is that even before I heard of it I’d been criticizing here in Brazil the same kinds of trouble you see poisoning the American society: lack of individual responsibility, or maybe denial of it, and the resultant abuse of the judicial system. Here, however, you would notice every sphere of the state — executive, legislative and judiciary — having its behavior oriented towards punishing the deepest pocket around, and thus damaging much more than that which was aimed at. And one can easily see collectivist ideologies behind these phenomena, at least here.

“So, despite an interesting system of judge appointment, there is a lot of judges that tend to decide against the rich, ‘for the poor’, allegedly promoting their socialist concept of ‘social justice’. I guess such motivation is definitely less of a concern there in America, for all of its cultural heritage so well described by De Tocqueville. Don’t take me wrong. I’m not trying to make simple an issue as complex as this one, and definitely, the American Judicial System is way more reliable than the Brazilian one. But this is due to endemic corruption, a not-that-great legal system and plain lack of money, meaning a small number of underpaid people dealing with an enormous (and fast-growing) quantity of actions. There is also incompetence here among the judges. But it is the least we can get for the money, since they compete for their positions.”

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