Our firm was recently contacted by a college student who was hoping for a little help on a school project. This student (we’ll call him Howie) sent the following email:
My name is Howie, and I am currently working on an English project that revolves around frivolous lawsuits, and the lawsuit that I am working on reads: “Beverly Sands of Pennsylvania sued FedEx for $200,000 after a FedEx employee placed a large package at the doorway of the home without properly notifying Sands of the delivery or its close proximity to the door. Sands, returning from Florida, was injured when she came in contact with the package that was left by the door. She is seeking compensation for receiving and having to undergo medical attention and care. And as a further result of the accident, she has also suffered a severe loss of earnings and impairment of earning due to not being able to work.” So that is the case, and I am defending FedEx. One question I have is, is it necessary for a mailman to notify the buyer that the package has arrived at their house? I would also just like to know your personal opinion on the case as well as any advice you may have to help me win this case, as me and another person who is defending the plaintiff will be trying to convince the class to move to either of our sides as a jury of sorts. If you could please e-mail me back as soon as possible, that would be great. Thank you.
Sounds like fun. Let’s do this.
But First, It’s Soapbox Time
Howie, I have mixed feelings about answering your questions. On one hand, I love few things more than explaining how the law works and helping people become familiar with its many nuances. I am a firm believer that the law is not rocket science and anyone can come to understand it. But, on the other hand, I fundamentally disagree with some of the underlying assumptions inherent in the phrasing. Namely, this sounds like kind of a weak case (maybe even kind of a dumb case), but it doesn’t sound frivolous.
The literal meaning of the term “frivolous” of of course means trivial or minor in extent. The way the term is used in the context of legal cases is not so limited. Therefore, a “frivolous case” isn’t only one that is minor or insignificant, rather, it’s one that is inherently unjust, lacking in merit, or otherwise unscrupulous.
Under this expanded definition, there are a few ways that a lawsuit can indeed be frivolous:
Baselessness – The plaintiff sues someone who literally did nothing wrong or whose supposed misconduct is so far removed from the actual circumstances that it strains credulity to argue they played any role in the injury. For instance, Steve goes to Jim Bob’s Corner Store and slips in a puddle of milk. As it turns out, a Jim Bob’s employee spilled the milk creating the hazard and neglected to clean it up. As such, Jim Bob’s Corner Store is the most obvious liable party. But suppose that Jim Bob’s has no insurance and the store is financially insolvent, so the plaintiff’s lawyer decides to sue the manufacturer of the tile that the floor is made out of on the basis that they should have made it slip-proof. To be clear, if this tile were designed to be used in a bathroom or outdoors (where it might ordinarily be exposed to pools of liquid), then, sure, it could rightly be argued that the manufacture probably should have designed the tile in such a way that it was less slippery when wet. But in the actual fact pattern presented, there is clear negligence on the part of the store employee, so to try to argue that the tile manufacturer is liable is too much of a stretch. For a simpler example, imagine an earthquake causes my house’s foundation to crack. Two days later, a chemical plant exploded down the street, causing a sonic boom, which damaged several nearby homes. If I were to sue the chemical plant, citing the explosion as the cause of my preexisting damage, my claim would likewise be baseless. Also included in this category are matters of outright fraud, such as someone pretending to be hurt when they are not.
No Injuries or The Wrong Kind of Injuries – The plaintiff has not suffered any cognizable damages or has suffered cognizable damages that are so insignificant in value that it wastes the court’s time and resources to pursue the case. Case in point, a lawyer/administrative law judge made headlines a few years ago when he sued his dry cleaners for damaging his pants. Now, suing someone for failing to fulfill their end of a bargain is most certainly not frivolous. However, suing them for $54 million as the plaintiff did in that case does rise to the level of frivolity. The court agreed. His case was thrown out and he was ordered to pay some of the legal fees for the dry cleaner.
Vexatious Litigation – Suing someone specifically because of a desire to burden them with the costs of and inconveniences of litigation is frivolous. For a non-lawsuit analogy, consider the following. I recently built a new 30-foot-long workbench/cabinet combination in my garage. As such, I moved one of my cars out onto the street where it was parked for not quite a week. One of my neighbors decided to call the police on me for parking beside his house… on the street… which is owned by the public… where anyone is free to park. The cops knew it was a silly reason for them to be called, they asked me if I would be willing to move the car, I told them no thanks, and that was that. Just the same way that it was frivolous for my neighbor to waste the time of a police officer to voice his opinion that I should park elsewhere, it is frivolous for someone to file a lawsuit just to annoy or inconvenience someone they don’t like.
Cause of Action Barred By Law – Some causes of action are simply not recognized as valid. For instance, in the State of Texas, if an employer subscribes to Texas workers’ compensation coverage, an injured worker cannot sue the employer for negligence. So, as a matter of law, even if the employee was hurt by the employer’s negligent conduct, he is barred from suing the employer (his only lawful remedy is to file for benefits in what essentially amounts to a work injury welfare plan). If this injured worker were to file a lawsuit anyway, that would constitute a frivolous lawsuit. Further, I would argue that one should consider past court cases (precedent) as well as legislative acts when deciding if their case is barred by law. For instance, if someone with a case very similar to type you’re thinking about filing was thrown out by a court, then it’s probably a good idea to consider that you’re playing with fire by filing a suit on the same basis. Another example can be found in the theory of “negligent infliction of emotional distress.” Texas courts do not recognize this as a valid theory of liability, whereas they do recognize intentional infliction of emotional distress as a valid cause of action. Therefore, if you cut someone off and they chase you down and put a gun in your face to teach you a lesson, they have intentionally inflicted emotional distress upon you, and Texas law lets you sue them for it. If, however, someone cuts you off through simple carelessness, and you lose control and almost crash into an 18-wheeler, causing your life to flash before your eyes, you can’t sue them for that, since it wasn’t intentional.
I doubt that list encapsulates every way that a case may be genuinely frivolous, but my point is that a frivolous lawsuit is a legal case that meets one of several specific criteria. However, the phrase is far and away used inappropriately as a colloquial catchall to describe any case which doesn’t immediately jibe with how some people intuitively feel the law should work.
What most people are referring to when they say “frivolous lawsuits” are little more than cases that are controversial. But in doing so, they miss the forest for the trees. Settling controversies and dictating how responsibility should be divided is literally the whole point of our civil justice system. If nothing was in controversy, then there wouldn’t be a need for the court system in the first place!
The Nature of Legal Controversy: Nothing Is Black and White
Imagine that I trip on my shoe laces while walking down the stairs at a shopping mall, only, when I reach for the handrail to catch myself, I find that it is not properly secured to the wall and comes loose in my hands. Naturally, I fall down the stairs, sustaining serious injuries. Who is to blame for my injuries? Are my injuries more attributable to my forgetting to tie my shoes and tripping over the laces or are my injuries more attributable to the rail not being properly secured to the wall?
On one hand, if I had tied my shoes then I wouldn’t have needed the handrail. But, on the other hand, are handrails only there to protect the brilliant and blameless among us, or do they exist to stave off a fall, irrespective of the user’s reason for needing it? After all, if everyone were perfectly graceful, why even have handrails?
If I were to sue the shopping mall under these circumstances, a jury may ultimately tell me that I’m wrong and that the primary reason for my fall was my own carelessness. But that doesn’t mean my case is frivolous. It means I was on the wrong side of a controvery where one side wins and one side loses.
On one of the car forums I frequent, someone posted a story about how a gentleman who works at his office building got in trouble for plugging his electric car into the building’s power supply and charging his car for free while he worked. Some of the folks participating in the discussion were certain that he was committing an act of theft, while others were convinced that he did nothing wrong. After all, they reasoned, as a tenant of the building, he likely doesn’t pay for electricity; it’s probably just part of his monthly rent. Their opponents fired back that, when a landlord doesn’t charge a tenant for electricity, it’s understood that the “free” electricity the tenant has access to is only that which is normally used for office purposes.
If the landlord were to sue the tenant for the many thousands of dollars in electricity he “borrowed” from their building, surely it would spark some manner of outrage.
I can see the headlines now. Fox News would run a story about some rent-seeking California liberal who’s so used to having things handed to him (paid for on the backs of the working man, no less) that he just thought it was okay to steal from his landlord. Meanwhile, CNN would run a story about how evil corporations (whose tax breaks are financed on the backs of the middle class, no less) are willing to stop at nothing to declare war on a selfless climate change crusader.
But what’s really frustrating is that if the tenant sued the landlord on the basis that they have cut him off from his supply of fuel, Fox News and CNN would still run the same kind of stories! Irrespective of who sued whom, both CNN and FOX would seize upon the opportunity to subtly whisper, “Pssst. This is a frivolous lawsuit. Be outraged.”
But neither of the the above electric car lawsuit scenarios represent any of the “definitive” examples of legitimate frivolity, yet the outrage would foment unabated. And therein lies the most pernicious aspect of this whole enterprise. Very little of what the public deems to be frivolous meets the literal definition of a frivolous lawsuit. Instead, it’s declared “frivolous because I said so.”
Of course, there is an implicit degree of hubris underscoring these proclamations of frivolity. One which says either, “I’m too clueless to recognize that there is more than one perspective,” or, “I acknowledge that there are multiple perspectives, but I’m so convinced that my side is right that I can’t even be bothered to accept the possibility that I am wrong.”
It has become surprisingly commonplace for one to proclaim that this or that lawsuit is frivolous based on one’s own dissatisfaction with the legitimate legal controversy being considered. What’s worse, is that the majority of the people who make such proclamations are not arriving at their conclusion after careful examination of the pleadings, nor are they examining the matter from a position of legal knowledge. Rather, their sole source of the information is the news media, an entity who has a vested financial interest in manufacturing outrage and one who continuously demonstrates that they have as little understanding of our legal system as they do our system of government.
When a cynic espouses their disdain for a legal case based on a position of ignorance of the processes involved, while operating without a clear understanding of what a frivolous lawsuit actually is, and their only source of knowledge of the key facts of the case is a biased media, I fail to see how this can be anything other than arrogance writ large.
To be clear, I am not suggesting that the public is too dumb to understand the subject matter. On the contrary, I think it’s become all too common for ivory tower intellectuals to declare the average American a fool, when yet Joe Citizen has far greater access to education and information than 99.9% of all humans who have ever existed. Further, I’m not suggesting that people shouldn’t have opinions about the law. I want everyone to care enough to have an opinion about the law. That said, there are some subjects which can’t be discussed intelligently unless the participants are familiar with some of the basic tenets, and civil justice, particularly personal injury law, is easily the most misunderstood component of American life, fraught with myth and misunderstanding. As such, I wish more care was taken to understand why it works the way it does, yet what we get is an appeal to ignorance in the form of “this lawsuit is frivolous!”
What I want is for people to put away the tar and feathers unless they take the time to understand the basics and have access to the actual facts of a case they’re critiquing. It is unquestionable that there are frivolous lawsuits filed every single day. But they are an aberration, not the norm. And if the sole basis by which one determines a lawsuit to be frivolous is that they side with one party over the other, then they fail to demonstrate an understanding of how our court system functions altogether.
Frivolousness Isn’t The Only Way That a Case is “Bad”
I think that part of the problem is that we, as a society, have set up a false dichotomy wherein all lawsuits are either meritorious and should go forth in the grace and favor of the Lord or they are frivolous. In reality, there are plenty of cases that are defective in some way that are neither meritorious or frivolous.
Consider the situation where a case is rejected by the court for a technical reason, yet the circumstances giving rise to the case are perfectly valid. For instance, under Texas law, only the spouse, child, or parent of a deceased person can file a wrongful death lawsuit against a wrongdoer, as established by the Texas Wrongful Death Act. Imagine that Juan is killed in a car accident. Juan has no family, but what he does have is a business partner in a burgeoning software company. Juan was the brains of their operation and his partner simply acted as a manager, so, without Juan, the company is doomed. It won’t be long before Juan’s partner and all of his employees are out of work. Nevertheless, if Juan’s partner were to file a lawsuit against the wrongdoer who killed Juan, the court would reject his case. Certainly, the fact pattern presented is meritorious, at least at face value. As such, if Juan’s partner were to file suit in ignorance, he would most certainly have his case rejected by the courts. But that doesn’t mean it would be frivolous.
My cynical side believes that the reason so many cases are labelled as frivolous is simply because the public lacks the vocabulary to explain a case is “bad” outside of using that term. Cases we don’t like or don’t agree with for personal reasons, but nevertheless are not literally frivolous, are called frivolous because it’s become the go-to, catchall, quasi-intellectual term that has worked its way into the public lexicon. Frankly, we’re better than that.
One Last Criticism
Further, Howie, the thought of an English teacher explaining to students what a frivolous lawsuit is or isn’t gives me the heebie jeebies. Unless that English teacher has taken the time to understand and appreciate the subtle nuances of the law, they’re likely just donning the role of “virgin teaching a sex ed class.” In my day, I had some brilliant English teachers. I don’t think for a second that an English teacher is not capable of understanding the law, just that they probably don’t.
Heck, I’ve sat through several law classes where it was clear the teacher didn’t understand what they were talking about. One such professor taught that the separation of powers enshrined in the Constitution meant that the Founding Fathers wanted all three branches of government to be able to create law, which is literally the opposite of how the separation of powers works. In another class, we were taught that legal realism rejects the notion of common law, which is patently absurd, especially considering that Oliver Wendell Holmes Jr. was both the the father of legal realism and arguably the foremost leading advocate for common law principles (his literary masterpiece is called, wait for it, The Common Law). In yet another class, a professor (this one not a lawyer, mind you) explained that one of the elements of negligence is that the plaintiff’s injuries were caused by negligence, which is, of course, like saying that one of the ingredients in a cake is cake. All that to say, color me skeptical of your English teacher’s portrayal of frivolous lawsuits.
Nonetheless, and interestingly enough, the English language is a perfect analogy to the law in one sense. Just the same way that one cannot guess their way through the technicalities of the English language, one cannot intuitively understand the law. To understand why one doesn’t pronounce the “gh” in the word “night” requires special knowledge (though not complicated knowledge, mind you) and can’t be guessed at. The system and it’s rules and technicalities exist, and so this must be taught to the law person. There is no “Good Will Hunting” your way through learning the mechanics of the English language.
And just the same way that one would need to explain the present-day state of the English language through the lens of its evolution in order for certain contrivances of the language to make sense, the same is true in law. One example would be to consider the way that the word “record” is pronounced depending upon whether it’s a noun or a verb. As a noun, we pronounce it with a short e sound, “reh-kord.” As a verb, we pronounce it with a long e sound, “ree-kord.” The same holds true for “present,” with the noun version sounding like “preh-zint” and the verb version sounding like “pree-zehnt.”
To someone suitably familiar with the history of the English language, little quirks like the one previously mentioned make sense. But an outside observer knowing little about the complex evolution of the language would probably see this quirk on display and simply conclude that the English language is dumb or arcane. In their failure to appreciate the full historical context as well as the many well-reasoned complexities of the English language, they would proclaim the system lacking and beneath them, but that wouldn’t make them right. The law works much the same way.
Rant Over, Onto The Topic At Hand
The question was:
…is it necessary for a mailman to notify the buyer that the package has arrived at their house?
I think you’re focusing on the wrong thing. When you say, “is it necessary for someone to do X?” what you’re referring to is the burden of a legal duty. Legal cases are like a recipe. Just the same way that you need ALL of the ingredients of a recipe for brownies in order to make brownies, if you sue someone under a particular theory of liability, you must prove to the court that your case has all of the ingredients. Prove that your case has some of the ingredients and you lose. You must prove that all of the elements of the allegation were present.
Most personal injury cases are pursued on a theory of negligence. There are four elements or “case ingredients” you must show exist in order to be successful. They are:
Duty
Breach
Causation
Damages
In this context of this case, the injured woman’s lawyer would need to show that the FedEx worker (not postal worker… there is a huge legal distinction between an employee of the government and an employee of a private company) owed her a duty not to harm her, that he breached that duty, that the breach was the proximate cause of her injuries, and that she sustained damages (legal term meaning losses, essentially). A delivery person, like everyone else, has a legal obligation to behave in a reasonably prudent manner. Whether you’re making sandwiches, handling radioactive waste, practicing law, driving a car, renting out surfboards, walking your dog, or delivering a FedEx package, it must be done in the manner that a reasonably prudent person would normally do that thing.
So, it’s not so much an issue of whether or not there is a lawful duty to inform a customer that he delivered a package; rather, it’s understood that he has a duty to do his job in a reasonable way, and the real question, therefore, is whether or not his he failed to do his job in a reasonably prudent fashion, irrespective of the particular form that failure may take. Generally speaking, not notifying a customer that you made a delivery doesn’t appear to constitute a departure from a the standard of care by which a reasonably prudent delivery person would be expected to operate.
But it’s trickier still. What we’ve described thus far is a general duty, but one can behave in such a way as to create for themselves additional duties. For instance, if a car breaks down in the middle of the road in front of my house, I don’t ordinarily have a duty to warn oncoming cars about this hazard in the roadway. But if it’s MY CAR that is broken down in the middle of the road, then (arguably) I do have that duty. The difference is that, in the latter scenario, I created the hazard. This is a very important distinction.
I did a quick Google search on the suit and I can see where some of the language you used in your question mirrors one of several similar and fairly vague news sources (or perhaps your teacher’s prompt, which was fueled by the vague news source). In the articles I found, they mention how the woman is suing on the basis that she wasn’t notified about the delivery. I have not read the lawsuit, but I’d be willing to bet that the reporter who found a line in the lawsuit about a failure to notify the homeowner that the package had been delivered, then this reporter likely either misunderstood the context or zeroed in on that phrase because it sounds provocative.
My point is, I strongly suspect that the lawsuit doesn’t at all claim that the sole reason that FedEx is liable is because they failed to notify a customer of a delivery. Instead, I bet it says that the FedEx delivery person put the package in a precarious spot, thereby creating a hazardous condition (like my car in the roadway example), and that this action imposed a duty to warn the homeowner. For instance, imagine that you borrowed a board with a nail in it from me. Once you were done using, you decided to return it to me by leaving at my door. If you propped it up next to my door where it was out of the way and/or easy to spot, then you wouldn’t need to inform me that you left it there; I’d eventually find it on my own. But if you dropped it off at my front door and slid it under the doormat to make sure it didn’t get stolen, you’d darn sure better inform me that you put it there!
See the distinction? Just leaving something at my doorstep doesn’t require you to inform me that you did so. But if you leave something at my doorstep in such a way that I might easily hurt myself on the object, THAT most certainly imposes upon you a duty to inform me that you have done so.
Another point that needs to be made is that a defendant in a legal case is allowed to point the finger back at the plaintiff. In other words, their rebuttal amounts to, “Even if our driver did act negligently, so did she!” They could claim that she too was negligent in that she failed to keep a proper lookout as she walked up to her doorstep. This is called “contributory negligence,” and it’s an effective tool of the defense lawyer.
I would also just like to know your personal opinion on the case as well as any advice you may have to help me win this case.
My personal opinion on the case, knowing very little about it, is that it sounds kind of silly. Unless the FedEx driver placed the package in such a position that it couldn’t be seen until it was too late, even if he was somewhat negligent, I’d have a hard time believing that the homeowner wasn’t more negligent than the driver. In Pennsylvania, if the jury concludes that the plaintiff is more at fault then the person they’re suing, the plaintiff is awarded zero dollars. In order for the homeowner to win, a jury must conclude that the FedEx driver is more at fault than the homeowner, which would mean that the jury has to find FedEx to be 51% at fault or more.
Therefore, your best argument against the homeowner is that her own contributory negligence was the proximate cause of her injuries, not any supposed negligence on the part of FedEx.
Whether that’s true or not depends upon the circumstances. We can all imagine a scenario wherein the FedEx driver puts the package just barely sticking out from behind a bush, which would mean that the plaintiff couldn’t see it and could trip over it. Well, if that’s the case, then the FedEx guy is probably negligent and the homeowner didn’t do anything wrong. But we can also imagine a scenario where the FedEx driver left the package on her doorstep in such a way that it was perfectly conspicuous and she simply wasn’t paying attention, causing her to trip over it.
But no matter how you slice it, there appears to be a genuine legal controversy here, which asks the question, “Under these circumstances, who is really to blame?” Anyone claiming to know the right answer to that question doesn’t full appreciate how our system of government works. We do not decide legal controversies by mob rule or popular opinion. We decide them by selecting from among our population a representative group of citizens who get to decide the case based on their interpretation (within reason) of the facts and circumstances presented. They get to decide whether they think that all FedEx drivers in their area should have a high burden or a low burden. They get to decide whether or not a person walking up to their front door should be expected to really watch her step or whether the law should support her in feeling comfortable letting her guard down in her own front yard. In other words, they get to decide how they want things to work in their own little corner of the world.
Is this a perfect way to decide controversies? No. But it just so happens to be the best system every devised by the minds of men to resolve legal disputes, and I take exception to anyone who seeks to challenge that system without having first taken the time to appreciate the subtle details and logical underpinnings that make it tick.
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