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Dec 30 2012

Newtown Shooting Lawsuit a Shameless Publicity Stunt Doomed to Fail

OK, so I was enjoying taking off the last few days of the year with the intention of firing up the old blog in early January. Then all of a sudden a news story comes across one of my feeds telling me that some lawyer has filed a notice of intention to file a claim against the State of Connecticut and the Newtown School District claiming his 6 year old client suffered $100 Million in damages from experiencing and hearing the violence that took place at Sandy Hook Elementary School. Of course I was immediately outraged at the shameless publicity grab by yet another member of my profession but I was still going to let it go until I heard people taking at a get -together recently about the case and saying that they thought the suit was viable and that “He’s gonna get all the other kids to join so it will be huge class action lawsuit.” I felt compelled to give the talkers a quick law school lesson on why they and the lawyer Irving Pinsky of New Haven are miserably wrong about the law and just miserable in general. No -it would not be a class action, not that many claimant not that type of case. And no, it would not be huge lawsuit because there is absolutely no liability and as citizens you would not want there to be liability as it would shut down society as we know it. The two young men who were talking looked at me as if I had two heads and said “So a gunman can walk into a school kill 26 people and no one is responsible for that? Why would the lawyer take the case if it was not winnable? I think you’re wrong.” All I could do with this response was to shake my head and tell them I hope they soon get over their depression resulting from the finale of the Jersey Shore. So I decided, what the heck, one more quick blog post for 2012 to clear this up and give my opinion about the matter.

To my knowledge in every state of the union,and certainly in Connecticut, there is no liability for the general failure to provide police protection. The seminal case in Connecticut was Shore v. Town of Stonington, 187 Conn. 147 (1982) which expressed that certain criteria had to be established before a Connecticut municipality could be held responsible for failing to provide police protection or even negligence in the performance of a general police duty. Sherry Shore was a young woman killed by a drunk driver who had earlier been pulled over by police but not arrested or taken off the road. In saying that there was no liability as this was a general function of the police department and no special duty arose to the victim the court set out some scenarios where liability could attach:
I) a failure to act would subject an identifiable person to imminent harm (this is where normally there is an order of protection in favor of the victim and the police do nothing to stop someone they know is about to violate the order or the police tell someone to stay put when they know a criminal is on the way for example)); 2) a statute specifically imposes liability for a failure to enforce it;3) the munici­pality engages in an action involving malice, wantonness, or an intent to injure; 4) the municipality assumes the function of a pri­vate corporation; 5) a police request for aid to apprehend criminals gives rise to a reciprocal duty to protect each person who aids them from foreseeable harm (think of a cop shouting “Stop that man!” to pedestrians as a criminal runs down the street);and 6) the municipality acts negligently in hiring an unfit police officer. None of those scenarios remotely applies to the Newtown shooting. Furthermore, the school district is only required to provide reasonable security in light of known and reasonably foreseeable harm. We have not come to the point yet in our society where an act like occurred in Newtown becomes reasonably foreseeable.

And we should be cautious about extending liability to that level. Making police responsible to victims for crimes committed against them would of course bankrupt every State and shut our courts down. Turning schools into fortresses and making them responsible for everything that occurs within its walls is likewise not a desirable thing for society. That’s why this area of law has been clearly set out for years without much change. In the early part of my career in the 80s I represented the City of NY in many such lawsuits which routinely got dismissed or thrown out by juries as the law was being shaped at that time. Certain lawyers tried to get creative and find new avenues to try and gain liability, but they failed.

Which brings me to the second point raised by those young men. Why would lawyer Irving Pinsky take such a case? Why would he give false hope to the parents of this six year old? Why drag them through this process when there was no realistic hope for a recovery? Well this is what he told the media:

“I’m saying for a fact that the state didn’t do enough to provide for their safety. The state of Connecticut and other states too are failing to protect the children from guns. The whole thing came in over the intercom down to the screaming and the cursing and the bang bang bang and her friends are dead. And that’s trauma,”

Way to stay classy Irving. So since he did not have a good explanation for why he filed this, I did a quick Google search of Mr. Pinsky. I found nothing about him at all (except various re-tellings of this same story). No website, no reported cases and only one news story In 1991, Pinsky represented Miss Black America in a $100-million suit against boxer Mike Tyson, alleging Tyson had placed a hand on her buttocks while they were posing for photographers. I also found a profile of him on AVVO, the popular lawyer rating site. All that revealed was that he was reprimanded by the State in 1986 and suspended from practice for three years from 2003 to 2006. To confirm what this showed, I went to the Connecticut State Court website and found that in addition to the above two ugly marks, he was also found guilty of professional misconduct in 2001 for failing to tell a client he blew the statute of limitations and then sending her money and having her sign a general release as if the case had settled. The site does not tell why he was suspended for three years. “High-profile” cases are few and far between and most lawyers go through their whole career never handling one. So occasionally, a lawyer tries to “create” one where non exists and this in my opinion is what’s going on here. It’s simple a shameless publicity grab that should be dealt with swiftly and loudly by the courts. Pinsky should be asked what law he bases his claim upon – what cases, statutes or regulations is he relying on? This kind of behavior must be addressed with severely as unfortunately it is the Pinskys of the world that people think of first when they hear the word “lawyer.”

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