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Tuesday, January 14, 2014

Lawsuit over George Washington Bridge closings

The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.

It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?

Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.

Posted by Howard Wasserman on January 14, 2014 at 11:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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The last paragraph seems backward. If they have meritorious causes of action under state tort law, as they presumably do at least against those individual defendants who intentionally snarled traffic without justification, I am not sure how much it matters that their constitutional claims are weak.

Posted by: AF | Jan 15, 2014 11:26:15 AM

Except I don't know if they asserted tort claims, since the complaint never identifies the source of the legal rights asserted. Counts I-III definitely sound like constitutional claims. I can't tell what Count IV is claiming. It doesn't matter if you can prevail on a tort claim if you don't plead a tort claim.

Posted by: Howard Wasserman | Jan 15, 2014 11:32:17 AM

Count III looks like a negligent supervision/retention claim. It doesn't name the cause of action but seems to plead its elements.
Count IV seems to be alleging that intentionally abusing a position of public authority constitutes an intentional tort. Again, it doesn't name the cause of action. If nothing else, it would seem to meet the definition of a prima facie tort, which holds that "one who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liability." Richard A. Pulaski Construction Co. v. Air Frame Hangars, Inc., 950 A. 2d 868, 875 (NJ Sup. Ct. 2008). It's not clear that is the right one, because a "threshold requirement" is that no other tort be available. In any case, I would not like to be the one arguing that the NJ officials' conduct failed to give rise to civil liability of any sort.

Posted by: AF | Jan 15, 2014 4:17:59 PM

Maybe. I read Count III as a § 1983 failure-to-train/failure-to-supervise claim, because it seems to be hinting at the deliberate indifference standard that applies there.

Posted by: Howard Wasserman | Jan 15, 2014 4:20:37 PM

It may be appropriate if not necessary to sue those who, for their own private purposes, force innocent people to be trapped in massive traffic jams. The tactic was originally conceived in connection with non-governmental actors who block bridges or streets for the sole purpose of calling attention to their cause.

They rarely suffer more than a small fine, obtain massive amounts of publicity for only a little effort, and often find defending themselves in criminal court gives them a very big soapbox to preach from. Substantial judgments might help deter them. See, e.g.,

Occupy Wall Street Protesters Could Be Sued Civilly for "Shutting It Down" - http://www.prlog.org/11726710-ows-protesters-could-be-sued-civilly-for-shutting-it-down.html

Sue Their Flanneled Asses - http://www.theagitator.com/2002/09/25/sue-their-flanneled-asses/

Similar tactics might be used when the perpetrators are governmental actors - e.g., Bridgegate. Here's how I initially saw it because the law suit mentioned above was filed:


Commuters Could Sue Christie Over Bridge Sabotage
Civil Law Suits For Massive Damages Could Punish, Uncover Information

WASHINGTON, D.C. (Jan. 9, 2013): In addition to the political fallout, and any punishments for the aides who deliberately sabotaged traffic at the GW Bridge, New Jersey Governor Chris Christie and his aides could be sued by commuters for massive damages under a variety of legal theories - a tactic which, even if it doesn't succeed in inflicting severe financial harm upon those responsible would, as least, help undercover more still-secret evidence about how the fiasco was organized, and any role Christie played in it.

An elderly woman whose death was allegedly caused by the unnecessary traffic delays, and others whose conditions were probably exacerbated by slowed ambulance response, would have the strongest and most legally viable tort actions, says public interest law professor John Banzhaf, who has taught the law in this area for more than 40 years.

In addition, those who willfully caused the massive tie-ups could be sued for "false imprisonment." Deliberately engaging in an unlawful act for the purpose of forcing people to remain in one place for any significant period of time constitutes the civil tort of "false imprisonment."

Indeed, many courts have held that intentionally preventing a car from moving can make the defendants liable not only for the actual damages suffered by a person detained (e.g. time lost from work, missed appointments or classes, etc.), but also for massive amounts of punitive damages designed to prevent a repetition of the unlawful conduct. They might also be sued for the tort of civil conspiracy or even prima facie tort, argues Banzhaf.

"Tort actions, and especially class action law suits, permit those who have been harmed by the wrongful actions taken by those acting in concert - a civil conspiracy - to sue everyone responsible, even if the wrongful deeds do not necessarily meet the more exacting standards of a criminal conspiracy," says Banzhaf, who helped develop novel legal theories to successfully sue cigarette manufacturers, fast food companies, soda bottlers, Spriro T. Agnew, and many others.

Banzhaf, who has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," says that even if the suits are not ultimately successful, the pre-trial discovery - under which lawyers for the plaintiffs can demand access to secret emails and other documents, and force all involved to answer their questions under oath - is likely to help assure the public that the full truth has emerged. "Aggressive private attorneys, who are paid only if their clients win, are much more likely to relentlessly uncover the entire truth than governmental or politically motivated investigations," says Banzhaf.

"Every member of a jury could well imagine himself helplessly stuck in such a massive and totally unnecessary traffic jam, maybe missing an important appointment, or possibly not being able to receive medical treatment in case of emergency," says Banzhaf, and thus could easily be persuaded to award high damages to deter any such conduct in the future.

Christie Bridge Apology Not Enough - Law Suits Needed
Victims Are Entitled to Monetary Compensation and Full Disclosure

WASHINGTON, D.C. (Dec. 10, 2014): Governor Chris Christie's apology for the massive gridlock and lengthy unnecessary delays in Ft. Lee, New Jersey - now admittedly caused deliberately for political reasons by various government officials - does little for the victims and is obviously insufficient, argues public interest law professor John Banzhaf.

He says that the family of the woman who died, the people whose medical conditions were exacerbated, those who lost valuable time from work or school, and most other commuters who suffered harm from the manufactured delays can and should sue for monetary compensation.

"Whether or not the U.S. Attorney's already-begun investigation concludes that the admitted conduct was criminal, it clearly was wrongful, and civil tort suits are designed to require those who engage in wrongful conduct to compensate the victims, and not just offer belated apologies," says Banzhaf.

He says the many different victims can and should sue those responsible, including not just the individuals, but also their governmental units where appropriate.

Class action law suits for wrongful death, medical injuries, false imprisonment, civil conspiracy, and other torts (civil wrongs) are the appropriate remedies to provide both some measure of financial compensation, and also to deter any similar wrongful conduct in the future, argues Banzhaf.

Banzhaf notes that he succeeded with novel legal theories in suing tobacco companies, fast food companies, soft drink companies, and even Spiro T. Agnew to recover the bribes he received.

He has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and "The Law Professor Who Masterminded Litigation Against the Tobacco Industry."

In addition to providing compensation for those who suffered from the politically motivated traffic jams, filing law suits may provide the best if not the only way to get to the bottom of the entire situation, and to be sure how far and to whom prior knowledge of the conspiracy extended.

The U.S. Attorney's authority extends only to federal crimes, and investigations by legislators tend to be notoriously inefficient as well as rife with political influence, argues Banzhaf.

On the other hand, a lawyer who will be entitled to a large fee only if his clients win, and with the authority under pre-trial discovery rules to require disclosure of all relevant documents, as well as to put all those possibly involved under oath, is more likely to discover the full truth, and to have it be trusted by the public when it is presented in court.

As the old saying goes, "never underestimate the tenacity of an attorney on a contingency fee," suggests Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
http://banzhaf.net/ @profbanzhaf


Posted by: Law Prof John Banzhaf | Jan 16, 2014 8:23:55 PM

Um, thanks for the press release?

Posted by: anon4 | Jan 16, 2014 8:51:32 PM

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