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hancock family lawsuit

as discussed in the game thread, josh hancock's family has sued mike shannon's, the manager at shannon's, the towing company, the tow truck driver, and the driver of the car the tow truck had stopped to help.

http://www.stltoday.com/stltoday/news/stories.nsf/stlouiscitycounty/story/B30B1CD42616DCDC862572E5005F04FC?OpenDocument

i'm not entirely clear on the facts, but it would seem like the family's claim against the tow truck and the driver of the car are pretty baseless - the lights were flashing; cars do break down on the road sometimes, even absent negligence; how was the broken-down car supposed to get off the road without a tow truck? etc.

negligence on the part of the car's driver could exist if something out of the ordinary happened - like, he knew the oil hadn't been changed for 20,000 miles, or a mechanic had told him a week before that the car was likely to break down or something. but it would have to be a situation like that, where the driver was careless.

for the tow truck driver (and the company, who would be liable to the extent the driver was), it's about how much warning was provided. flashing lights seems pretty reasonable, but if the industry standard is to do extra things - flares, road cones, whatever - and this particular driver didn't, that could lead to negligence, i guess.

in either case, car or truck driver, even if there were negligence, a judge/jury would have to find that that negligence was a proximate cause of josh's accident, rather than (or in addition to) the fact that josh was drunk, may have been on the phone, speeding, whatever else was going on.

the claims against shannon's and the manager, as discussed in the thread as well, are based on "dram shop" liability - the concept that a business that sells alcohol to someone who is visibly intoxicated is responsible for injuries later caused by that person.

the missouri dram shop statute is available here:

http://www.moga.mo.gov/statutes/C500-599/5370000053.HTM

as houstoncardinal mentioned in the thread, the missouri version of the law (dram shop laws vary a bit by state) only calls for liability in three situations:

1. the person served was under 21;
2. the person suing is a third party, not the drinker;
3. potentially, if the person was involuntarily intoxicated.

that third one is just a guess (i haven't looked at the whole area of MO law) based on the statute's specific bar to liability based on a person's own voluntary intoxication. what it means is, the fact pattern "hancock visibly drunk + shannon's keeps serving him + hancock dies" isn't enough to create liability. but the statute says nothing about involuntary. that's probably why the hancock family is claiming that "The intoxication of Joshua Morgan Hancock on said occasion was involuntary."

involuntary intoxication basically happens in one of two situations: either the guy was slipped something (ex: ghb), or the guy was forced to drink (ex: hazing). if either of those things happened to josh that night, it certainly hasn't been reported previously.

at this point, i'm honestly not sure what to even hope for here.

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I'm hoping Hancock's family loses the suit
How could you not?  'He was in the bar for three hours and had a drink in his hand the whole time,' I read.  Sounds to me like the bartenders were doing their jobs well...  And they even offered to call a cab for him at the end of the night...

A very low-class move by the Hancock family.  They must be getting bad advice, but then again there are a lot of predatory lawyers out there...

Your son made a tragically stupid decision, and many people are paying for it now.  It sucks.  It is what it is.  Circle up the family wagons and try to heal and recover.  This is nobody's fault but Josh's.

"Enamored" takes the preposition "of," not "with."

by MKDCardinal on May 24, 2007 5:45 PM EDT reply actions   0 recs

I hope they come to their senses...
... and drop the lawsuit all together.

I also hope the lawyer is disgraced.

by taiko on May 25, 2007 2:41 PM EDT up reply actions   0 recs

Yep...
as much as I still feel horrible for Hancock's family, this is just bogus. Josh drank, Josh drove, Josh died. End of story. I hope this goes nowhere, mostly because it obscures the one good thing that may come out of the whole stinking mess--it may make somebody else think twice about drinking and driving and save some lives. But to say it wasn't his fault adds the caveat that chronic drunk drivers look for--no personal responsibility.

by rockin redbird on May 24, 2007 6:38 PM EDT reply actions   0 recs

I agree
That was basically the only positive to come from the accident and if the Hancock family wins any of these trials then it may undo some of that.
RIP: Jack Buck, DK57 & JH32

by gibbons on May 24, 2007 7:14 PM EDT up reply actions   0 recs

I agree
When I saw the story at the cards site I copied the adress down to start a diary if someone else hadn't.

by 1985kid on May 24, 2007 10:55 PM EDT up reply actions   0 recs

i know it's not really a laughing matter
but is his lawyer jackie chiles...it's outrageous! egregious! preposterous!

by erik on May 24, 2007 6:56 PM EDT reply actions   0 recs

i'm hoping for
the chewbacca defense

http://youtube.com/watch?v=yU-tZy3NIS4

I believe in the Sports Guy rule. Any "complaining" in this post is actually happy, cheerful "constructive criticism."

by nycbirdo on May 24, 2007 7:15 PM EDT up reply actions   0 recs

it appears
as though the Hancock family went from sorrow to revenge mode rather quickly.
RIP: Jack Buck, DK57 & JH32

by gibbons on May 24, 2007 7:13 PM EDT reply actions   0 recs

With regard to the legal point...
As I read the statute, Shannon's cannot be liable to someone (or their family) who injures themself unless such person was involuntarily intoxicated.  

So Shannons could have been liable for the consequences of Hancock's voluntary intoxication if such consequences included harm to others.  But since he injured himself, they can only be liable for his injuries if he was involuntarily intoxicated.  

by OCCardsFan on May 24, 2007 7:40 PM EDT reply actions   0 recs

that's correct
I believe in the Sports Guy rule. Any "complaining" in this post is actually happy, cheerful "constructive criticism."

by nycbirdo on May 24, 2007 7:49 PM EDT up reply actions   0 recs

This upsets me
Everybody off the bandwagon!

by Alxfritz on May 24, 2007 8:34 PM EDT reply actions   0 recs

me too...
... esp. since several folks at Shannon's tried to call him a cab, and he lied to them saying he was only going three blocks. the responsibility for this lies with Josh.

by kindred on May 24, 2007 10:02 PM EDT up reply actions   0 recs

I hadn't heard that "three blocks" bit
I was thinking there might be a settlement or decision in favor of Hancock's dad, as unfair as that seems to me; but if Hancock actively lied to convince folks he didn't need a cab, that makes the lawsuit seem even more frivolous.

What a waste of time and resources - legal, financial, emotional.... I have no anger for Hancock, and a lot of sympathy for him and his family - lots of people have done what he did, but few of them have had to pay for it like he did. I won't pretend to understand what his family is going through, but I hope if God forbid I'm in a similar situation I'll be able to muster up a little more perspective and restraint.

by BTown Birds fan on May 24, 2007 11:13 PM EDT up reply actions   0 recs

Anyway, after a minute to marinate on it:
The guy got drunk at a bar, whose business it is to get people drunk. He may have been high (he at least had pot on him so it's not that big of an assumption), he was speeding, and on he was on his cell. This was all his fault.

I can kind of --- kind of -- find a tiny amount of fault in the tow truck driver; if (and it's a big if) he had time to put up flares, he should have.

But Josh is dead and thats his fault. Nobody else's. He made some horrible, horrible decisions that night and he paid for them dearly. To blame anyone other than Josh is at best absurd and at worst opportunistic.

I feel bad for the Hancock family. They lost a son, a brother, a friend. But no monetary compensation will bring Josh back. Don't drag others into this mess which he created by getting behind the wheel.

If I were to die in this sort of way, I would be royally pissed at my family for taking these actions. I hope they thought long and hard about whether or not Josh would have approved of this.

Everybody off the bandwagon!

by Alxfritz on May 25, 2007 2:31 AM EDT up reply actions   0 recs

agreed
it disgusts me when people feel as if they can get compensated somehow for the death of a loved one.

my brother was killed riding on the back of a motorcycle with a buddy. my family didn't even think of suing the other family for his death. yes, the funeral expenses put our lower-middle income family in a very tight bind at the time, but that was the VERY least of our concerns. the main concern was keeping the family from falling apart and dealing with the loss.

sorry - don't want to go on a tangent about me, but when i read this article, i just don't know what this world is coming to. in fact, it makes me wonder what kind of family would want to cause more turmoil in their lives with a law suit.  

by Cayronut on May 25, 2007 2:15 PM EDT up reply actions   0 recs

As long as Shannon's hires
unfrozen caveman lawyer, they'll be fine.

All your legal talk - it frightens me.  I'm only a caveman!

All joking aside - this is really unbelievable to me.  

I mean, won't the defense team just dredge up all the times that Hancock was out on the town, undoubtedly wasted.  

Great idea, dad.  Drag your son's name through the mud and the much to exact some sick, twisted revenge.  

This is what this country has come to.

by silent_bob on May 24, 2007 10:00 PM EDT reply actions   0 recs

Put me down as upset too....
The lawsuit says "involuntary intoxication"?  Did someone hold him down and pour drinks down his throat?  You know, we got Hancock because the Reds released him because he was "out of shape."  It easy to get out of shape real fast if your burning the candle at both ends and drinking a lot.  We know that Josh was in an accident at 5:30 a.m. in Illinois-where everyone that wants to keep drinking goes  when the bars close in Missouri-the Thursday before the fatal accident. I fear that if this lawsuit goes forward a lot of really unsavory things about Josh and maybe even some of his teammates is going to come out. It really looks bad on his father's part, too.  Revenge or greed.  Not good either way.    

by jillsinmo on May 24, 2007 11:06 PM EDT reply actions   0 recs

Torts....
Backing up a second, I can tell you how the driver of the car is negligent in this case.  (This assumes no Missouri state statute limiting the liability of disabled motorists.)
  There are three elements to the case against the driver of the car that we must prove.  First, inaction that he could have taken to prevent harm to someone else (my torts professor calls this "the safety step").  Second, was the accident that occured forseeable. Third, damages.  
  I'll skip three because that's the no brainer.  As to the first, the safety step, I don't know if we have enough facts to determine whether placing the car where he did was necessary and whether it was the most prudent place for him to do so.  That should come out as part of the depositions.
  Second, was the accident that occured forseeable.  Again, that's up for debate, but if that's the only thing in contention, that's enough in my mind to get to a jury.  The jury would have to determine that is it forseeable that IF I leave my car broken down here, that an accident MAY occur.  That's the test.
  Missouri, I would imagine, is a joint and several liablity state.  That's fancy lawyer talk for a chain of events that leads to the ulimate tort.  Spelled out in this case its: Shannon's + bad driver + bad tow truck placement = tort. Each of those is weighted to determine how at fault each party is and how much of the ulimate settlement they owe.  If one falls out, the other two are responsible.    
  Also, Missouri probably has some variation of contributory negilgence.  Under this doctrine, a person's ultimate award is discounted based on how much his/her actions contributed to the end result.  So, looking at the above equation, the jury could find that it went 10% Shannon's, 20% driver, 70% tow truck company.  HOWEVER, Josh was really 90% at fault for all of this, so each defendant gets a 90% discount.  So, Shannon is really .1% at fault, .2% driver, and .9% two truck company.  
   Hope I didn't blow anyone's mind with that, this early in the morning.  I have more comments on it, but I'll hold off and say them if this thread continues.  I will say that if this went to court, I would strongly beleive that my 90% discount because of Hancock's actions is where a jury would find.  

by Brock20 on May 25, 2007 8:34 AM EDT reply actions   0 recs

Regarding "the Safety Step"
wasn't the driver cut off and forced/ran into the wall on the inside of the interstate.  So he had no choice where his car was.  I thought that was what I read, but maybe my memory is off.  So I assume this would eliminate the tort against the driver.  

I'm with the rest of you, I hate that it has come to this.  For all the good lawyers I apologize, but I would be it was some money hungry lawyer that put the bug in dads ear.

by Just Rope Ball on May 25, 2007 10:19 AM EDT up reply actions   0 recs

Can Shannon's countersue
based on the fact that Hancock lied to them, and demand their legal defense funds back?

by Valatan on May 25, 2007 11:51 AM EDT up reply actions   0 recs

Given that
The tow truck driver apparently took adequate precautions to keep the ordinary driver from slamming into him, I think that it wouldn't be that hard to show that he was not negligent.  The driver apparently had lights flashing and I would assume they can show that no one else slammed into him.  Only the drunk, distracted Hancock actually hit him.  It would be quite a stretch of the foreseeability concept to argue that the tow truck driver must provide adequate precautions to to ensure that drunk, distracted drivers do not hit him while he is working to rescue a stranded motorist.  

I am thinking the jury would not find the tow truck driver or the broken down car driver negligent.  It is hard for me to believe that the driver negligently became stuck in the left lane.  If he could have gotten to the shoulder, he surely would have but he was in an accident.  While they are both but for causes of the accident, I don't see them as the proximate cause.

I do agree that comparative negligence will greatly reduce any recovery (assuming MO law applies comparative negligence).  Or if it doesnt, then there is likely the contributory negligence defense.  

by OCCardsFan on May 25, 2007 12:01 PM EDT up reply actions   0 recs

Yeah...
I really don't know enough about the facts that particualar night about the driver and the tow truck operator to know what they did do and what they could have done.  The accident was in the left lane, and that's where the car was.  Question becomes, could he have gotten to the shoulder and SHOULD he have gotten to the shoulder.

Val, Shannon's could countersue easily.  

by Brock20 on May 25, 2007 12:26 PM EDT up reply actions   0 recs

That's what I thought
and is why I think bringing this suit truly makes no sense, because it's so obviously frivolous (barring some other sort of information that we don't have).

I guess bereaved people make insane decisions sometimes.

by Valatan on May 25, 2007 12:48 PM EDT up reply actions   0 recs

Suing the person
whose car broke down is one of the craziest things I've ever heard. If they do that might as well go all out and sue the entire Cardinals organization and Major League Baseball. Also, the state of Missouri maintains the road he was killed on, sue them too.

by AL on May 25, 2007 8:37 AM EDT reply actions   0 recs

This reminds me...
This situation is unfolding much like the aftermath of the death of U of Iowa basketball star Chris Street 15 years ago.  Street (who was projected as an NBA lottery pick) pulled out in front of a snow plow and was killed instantly.  

There was a huge outpouring of sympathy for the family, but that eroded after the family sued the plow driver and county for damages including Street's likely NBA earnings.  Street wasn't drunk or on the phone like Hancock, but police and the jury ruled he was at-fault for the crash.

In a case like Hancock's or Street's, it's easy to play armchair attorney or moralist and throw around accusations about greed and opportunism.  But I think anytime there is this type of tragedy, especially given the money these athletes make, it's nearly impossible for it not to get messy.  And I certainly don't pass judgment on the family or anyone else directly involved.

by bgodar on May 25, 2007 9:44 AM EDT reply actions   0 recs

Alternative
First of all, I'm in agreement with what seems to be the consensus here, that Josh is nearly if not entirely at fault, and this lawsuit only makes the family look bad.

Second, if it really is about money, then what I'd much rather see is Josh's parents going on a speaking tour to high schools and colleges across the country.  I'm sure those types of engagements don't pay super well, but they could probably do alright for themselves, and meanwhile expose young people to a high profile example of what can happen when you drink and drive.

Lastly, for whatever it's worth, I have a cousin that recently started working as a bartender, and what he was told was that legally all he's required to do is offer a cab.  If the person refuses that, then they're liable for themselves from that point on.  And to me, that makes sense.  After all, you can't expect bartenders to start confiscating keys.  In my experience, even close friends don't often do that.

by john vb on May 25, 2007 11:48 AM EDT reply actions   0 recs

Not to mention that
a stranger trying to confiscate keys will almost certainly eventually end in a fight.  If that is expected of bartenders, it needs to explicitly be the law.

by Valatan on May 25, 2007 11:52 AM EDT up reply actions   0 recs

Jeez
While they're at it, why don't they add the "female acquaintance" he was on the phone with at the time of his death to the suit as well? That distraction probably weighs as much as any of the others, besides the whole intoxication thing.

by roebirds on May 25, 2007 1:06 PM EDT reply actions   0 recs

welcome to america, I'm your host , Eli
This is what I HATE about this country. He was drunk didn't pay attention to the road he died, game over, if the people at shannon's offered a cab what else do you want them to do send somebody to ride home with him, ppl have to take resposiblity for themselves. all suing does is make you look greedy.
in the end all this does is: 1 waste tax payer money, 2. make the actual victim to be looked upon in a poor light 3. make the family and the attorney look greedy, 4. if they settle or win the trial its just makes it a little more likely to be sued or loose my business because someone was drunk, stupid, depressed or what ever.  

by elirock83 on May 25, 2007 1:43 PM EDT reply actions   0 recs

2 Things
1) The driver not lighting flares at that time of night, coming around a curve on a highway is the only angle the Hancock really has.

And second, 2) Does anyone know who the family lawyer is?  

by DuncanDipper on May 25, 2007 3:05 PM EDT reply actions   0 recs

Liability issues
Before we all jump to conclusions and accuse Josh's family of filing a "frivolous" lawsuit, there are a few issues to consider.

When I first heard about the accident, and the tow truck driver said that he had his lights flashing, I wondered if he was telling the truth. He said he had just arrived at tht scene, and that he honked his horn at the last minute to warn the oncoming vehicle, but to no avail. What if he's lying? What if he forgot to turn on the lights until he saw an approaching vehicle? What if he turned them on too late? Nobody knows for sure, but everyone on this forum is apparently willing to take the driver's reported word for it. What if the Hancock family hired a private investigator who interviewed the driver of the broken down vehicle, and learned that the flashing lights didn't come on when claimed?

Second, (and I don't have access to Missouri law with my legal research subscription) is there a regulation requiring tow truck drivers to put out flares or other danger indicators in addition to the flashing lights? If not, there could be a finding of negligence per se. Negligence per se is essentially a presumption of negligence based upon the violation of law, so long as the law violated was enacted to prevent the type of harm that occurred. In this case, if Missouri law requires the lighting of roadside flares, or some other safety precaution that wasn't taken by the tow truck driver, there could be a very good claim for negligence against him. (I'll get to Josh's drunkenness in a minute). Surely such a law would have been enacted to prevent nighttime collisions with tow trucks, as occurred here.

Finally, on the issue of contributory negligence, some jurisdictions have a straight up contributory negligence statute that coldly precludes any recovery by a party that in any way negligently contributed to his own injuries. In a comparative fault jurisdiction, liability would be apportioned. Some states have "pure" comparative fault while others have "partial" comparative fault. "Pure" comparative fault gives the injured party exactly that percentage of his damages that was caused by the defendants (i.e., if Josh was 99% negligent he or his estate could recover 1%). More common is "partial" comparative fault, by which system a state court awards damages ONLY if the negligence of the defendant exceeds that of the plaintiff. So, if Josh was at least 51% responsible for his own injuries (which would be pretty easy to prove with all of the negative factors involved), there could be no recovery against the defendants.

When terms like "fault" are used, it's easy to apply their common, everyday layperson definition. In court, the principle of "fault" is a much more complicated issue.

While it doesn't look good for the Hancocks, let's not pile on and call them out for filing a "frivolous" suit, or for being "everything that's wrong with America". I prefer to be a little more fair-minded, like a jury, for example, and wait for all of the facts to come out before forming opinions and calling people "greedy" or "shameless".

by lawman3842 on May 25, 2007 5:18 PM EDT reply actions   0 recs

Lawman
I agree with you that piling on with talk of greed and frivolity is probably a little excessive at this point.  I have a feeling their response to this tragedy is largely emotional, as is the response of most people to the lawsuit.  

I did want to dispute your point about the tow truck/light issue, however.  There is security tape footage of the crash site, and the police were able, by reviewing that footage, to determine that around fifteen other motorists passed the original accident site before Hancock came along.  Now, I do not recall if it was explicitly stated that the driver's lights were on in the account I heard, but the fact that several other motorists saw the truck and passed around it safely seems to lend credence to the idea, in my opinion, that there were appropriate safety measures taken.  I'm a little fuzzy on the exact interpretation here, but I would tend to think that if enough precautions were taken to prevent an unimpaired driver from having a problem, then the legal responsibility of a motorist to avoid driving drunk would outweigh the truck driver's responsibility to provide for extraordinary situations.  

Acquire Rocco Baldelli!

by the red baron on May 25, 2007 7:32 PM EDT up reply actions   0 recs

I didn't know...
about the security camera footage. But I still wonder about negligence per se.

by lawman3842 on May 27, 2007 2:52 AM EDT up reply actions   0 recs

Please...
This is the exact kind of bullshit that is destroying our legal system. A guy gets wasted, refuses a cab, drives himself, and dies. But it's not his fault--nope--it must be someone else's. I'm not questioning the laws, which are ridiculous, just wondering what the common-sense answers are--which should be that someone who does something stupid shouldn't be alllowed to sue for anything. I dunno, but this whole thing makes me wanna puke.

by rockin redbird on May 26, 2007 2:47 AM EDT up reply actions   0 recs

Problem...
RR is the people with money, who want to avoid legal liability for their actions, highlight the first case where someone sues like this.  They don't highlight when the lawyer who files it is hit with sanctions or the plaintiff is countersued for a frivolous lawsuit.  OC had a good point about the two versions of contributory negilgence.  In many states, the law works exactly the way you want it to. If he's more than 51% at fault for the accident, then he cannot collect.  

There are checks and balances to the system.  They just don't fit in thirty second sound bites that be used for political gain.  

I also wanted to note that this something I like about our little community. If you scroll through this diary, you get a nice little primer on tort law and a lot of frustration vented in a very reasonable adult manner.  

by Brock20 on May 26, 2007 9:54 AM EDT up reply actions   0 recs

Yeah...
That wasn't such an adult response on my part, but I was more than a little overserved last night when I wrote it. Hhhmmnn. Though I never drive when I go out drinking, I could have drunkenly walked into traffic and gotten maimed or killed--or simply tripped and cracked my skull on the sidewalk. Where's my lawyer, dammit. Someone needs to pay me for my potential stupidity. This hangover alone should be worth about 10 large :-)

by rockin redbird on May 26, 2007 11:34 AM EDT up reply actions   0 recs

If that's the worst you got...
then you're tame.  I read nothing into your response at all.  

by Brock20 on May 26, 2007 12:14 PM EDT up reply actions   0 recs

that would explain
the wanting to puke
Everybody off the bandwagon!

by Alxfritz on May 27, 2007 11:33 AM EDT up reply actions   0 recs

LOL!!
Thanks, Alex--can always count on you to cut right to the chase.

by rockin redbird on May 27, 2007 12:04 PM EDT up reply actions   0 recs

I wouldn't call it "bullshit"
... these rules have been around since before we were all born. The ability to sue people isn't what makes our legal system great, it's the fact that the truly frivolous suits are almost always exposed as such when they get to court. I was just pointing out in my original post that there may be a viable lawsuit here, as unlikely as it may be to succeed.

by lawman3842 on May 27, 2007 2:54 AM EDT up reply actions   0 recs

True--
If the tow truck driver really did present a hazard and didn't follow whatever the protocol is for such things, then some liability exists I guess. I'm just sick in general of people who use the courts in this manner. One question--Will Hancock's family have to pay the legal bills (and reimburse for time lost at work, etc.) of the defendants if the suit is ultimately lost?  

by rockin redbird on May 27, 2007 12:18 PM EDT up reply actions   0 recs

Maybe...
Some states have a "loser pays costs" rule. I don't know what the rule is in Missouri, but in California (and I'd assume that most states have a similar rule), if a party proposes settlement for a particular dollar figure, and gets more (or owes less, depending on which side) than the proposal, the other party bears the costs.

Also keep in mind that insurance companies will be paying for the legal defense here. I'm not one of those anti-insurance company people, but paying for defense of auto accident lawsuits is a calculated cost, and factored into the premium. I don't think the tow truck driver will have to pay any attorney fees.

by lawman3842 on May 29, 2007 5:02 PM EDT up reply actions   0 recs

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