Are We Losing Our Right to Jury Trials?

Are We Losing Our Right to Jury Trials?

Dale G. Larrimore, Esquire

Larrimore & Farnish, LLP

            Jury trials are a unique part of America’s democracy. Most countries do not have jury trials and it is one of the rights that makes us unique — something we should justifiably be proud of.  Some of the Founding Fathers objected to the Constitution because this right was not included and, in fact, the first thing that the First Congress did in 1789 was to pass a Judiciary Act that provided that the trial of civil issues in federal courts shall be by jury. At the behest of James Madison and others, that same Congress then drafted the Bill of Rights and the Seventh Amendment passed with no debate, guaranteeing the right to trial by jury in all civil suits at common law in all federal court trials.

            The Constitution of the Commonwealth of Pennsylvania, adopted in 1776, even before the United States Constitution, contains a similar guarantee that in suits between citizens “the parties have a right to trial by jury which ought to be held sacred.” Many other states followed Pennsylvania’s lead, enacting state constitutions with similar guarantees.

           Unfortunately, we have seen a recent whittling away of this fundamental right through the actions of corporations that have forced mandatory arbitration on many of our consumer transactions.  Far too often I have found my clients unwittingly trapped by mandatory arbitration provisions contained in nursing home admission papers, online “click-through” agreements, amateur athletic activities or in lengthy contract documents for what would seem to be innocuous purchases and transactions with all types of companies. As a recent New York Times article noted:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cell phone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

            In September, the Centers for Medicare and Medicaid Services (CMS) issued regulations that would prohibit facilities that receive Medicare funding from using binding arbitration clauses in long-term care contracts, noting “predispute arbitration clauses are by their very nature unconscionable.” Unfortunately, industry trade associations sued to block the rule and a federal court judge in Mississippi granted the nursing home industry’s request for an injunction to prevent CMS from implementing the rule.

            Earlier in 2016, the Consumer Financial Protection Bureau (CFPB) issued a proposal that would have prohibited banks and financial service providers from requiring consumers to waive their jury trial rights in mandatory arbitration agreements, concluding that “individual dispute resolution mechanisms are an insufficient means of ensuring that consumer financial protection laws and consumer financial contracts are enforced.” But the Republican controlled U.S. House of Representatives passed an appropriations bill that would strip the CFPB of power to regulate banks’ ability to force arbitration agreements on their customers.

            Our system of government is based on checks and balances and the judicial branch is co-equal to the executive and legislative branches. Courts have the power to overturn laws or acts that violate constitutional rights. This system is dependent on a strong independent judicial branch and this requires a healthy jury trial option. Jury service gives each of us a chance to have a voice in determining what is right, and what is wrong, in our society. Jury trials provide the voice of the people in our civil justice system and, in a civil lawsuit, a jury of citizens will determine community standards and expectations in accordance with the law. Juries provide the voice of common sense and the perspective of all of us, as citizens, in our changing society.

            Many if not most contracts that we now sign for major purchases, such as cars or appliances, have a compulsory arbitration clause that precludes recourse to civil suit and jury determination. When we travel, our rights may be limited by forced arbitration clauses in agreements with cruise lines, tour companies or professional travel agencies. Far too often we are giving up our fundamental right to a jury trial when we sign a contract that is handed to us as part of some transaction or event that we are participating in.

            We have come a long way from our Founding Fathers’ defense of the “inestimable right of trial by jury.” We need to fight this trend. Be careful when signing contracts. Cross out the forced arbitration clauses. Tell your elected representatives that the right to a jury trial is important to you. We must act to preserve our fundamental rights guaranteed to us in our Constitution.

Pedestrian Injured While Crossing a “T-intersection” --- You be the Judge!

Pedestrian Crossing a “T-intersection” -- You be the Judge!

Dale G. Larrimore, Esquire

Facts:

          Betty was a 20 year old student, leaving school and on her way to her evening job. She came out of the front of her school and walked across the lawn to the roadway in front – a busy route with two lanes in each direction.  Betty intended to cross the road to reach a bus stop on the other side of the road, on the corner of the entrance to a housing development. There were no traffic controls for vehicles on the main road. Cars coming out of the development on the other side of the road had a stop sign. There were no painted crosswalks. It was about 5:30 and getting dark, on a cold wintery day.

            Betty could have walked about ¼ mile in either direction to an intersection controlled by a traffic light, but she elected to cross right in front of her school so that she would not miss her bus. Betty successfully walked across the two lanes coming from her left, but after crossing the double yellow lines in the center of the road, Betty was hit by a car coming from her right – knocking her over 100 feet down the road. Betty sustained a concussion and multiple fractures in both legs – necessitating repeated surgeries and causing a very lengthy period of disability.

            Under the Pennsylvania Vehicle Code, where there are no traffic control signals in operation at an intersection, vehicle drivers are required to yield the right of way to pedestrians crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. However, every pedestrian crossing a roadway at any point other than within a crosswalk at an intersection or any marked crosswalk must yield the right-of-way to all vehicles upon the roadway.

            Can Betty recover for her harms and losses from the driver that struck her?

You be the judge!

Result:

                When Betty came to us for representation, the insurance carrier for the car that struck her denied liability. The insurance adjuster argued that Betty should have walked to one of the near-by intersections, where she could have utilized the traffic light to safely cross this busy road, filled with commuter traffic. The adjuster claimed that she was negligent for not crossing where there was a marked crosswalk and that she failed to yield the right of way to traffic on the road.

                We went out to the site of Betty’s accident and noticed that there were sidewalks along each side of the road going into the housing development across the main road, in the direction Betty was walking. The bus stop was right at the corner of this T-intersection, adjacent to the sidewalk.

                As the author of Pennsylvania Rules of the Road, I recognized that a path of safety for a pedestrian does not have to be marked to be considered a crosswalk. Although the definition of a crosswalk in the Pennsylvania Code does refer to “markings across roadways,” the Vehicle Code definition of a crosswalk is not so limited. Under the Vehicle Code, a crosswalk is merely that part of a road, whether marked with lines or not, “at an intersection” that is included “within the extension of the lateral lines of an existing sidewalk” leading to the intersection, or any portion of a roadway “in an intersection or elsewhere” that is distinctly indicated for pedestrian crossing by lines or other markings. Looking at the point of impact, we noted that it was in line with the sidewalk on the opposite side of the street, on the road entering the housing development. Thus we were able to prove that Betty was crossing the road within a crosswalk. Although not marked as a crosswalk, it was still, legally, a crosswalk.

                Under Pennsylvania law, although a pedestrian must exercise due care in crossing any street, the mere fact that a pedestrian crossed between intersections is not sufficient to demonstrate any negligence on the part of the pedestrian. A T-intersection is an intersection and pedestrians in an unmarked crosswalk have the right of way.  After interviewing multiple witnesses and taking a statement from the police officer who investigated the accident, we were able to convince the insurance carrier to offer the full limits of the driver’s insurance policy and make a very substantial recovery on behalf of our client.
                It helps to have an attorney who knows the Rules of the Road!

A Few of My Favorite . . . Judge’s Opinions

A Few of My Favorite . . . Judge’s Opinions

Dale Larrimore, Esquire

            At this time of year, minds sometimes wander into a few of our favorite things. As an attorney researching the law for my clients’ cases, I enjoy running across opinions written by the Honorable Michael A. Musmanno. They are always worth the read and are frequently added to my growing list of favorite opinions to be used when arguing on behalf of my clients.
            Born in 1897, Michael Musmanno was elected as a Republican state legislator in Pennsylvania, and then elected as the youngest judge in Allegheny County. He enlisted in the Navy during World War II, was governor of an occupied district in Italy after the war, and then served as a presiding judge for one of the Nuremberg trials. He was elected as a justice of the Supreme Court of Pennsylvania in 1951, where he served until his death in 1968, when he was widely regarded as the most respected jurist in the state.
            Any fan of exquisite judicial opinion writing appreciates the prose of Justice Musmanno. His writing is filled with heart-felt passion and brutal common sense, delivered in highly literate and often hilarious prose. The following are just a few of my favorite quotes from so many Musmanno opinions.
            “Backing up a truck, where it is known that people are congregated, is conduct as morally reprehensible and legally culpable as pulling the trigger of a shotgun without first ascertaining whether the gun is loaded.” Sankey v. Youn [1]

“I concur with the majority opinion with regard to liability of the [defendant] for the injuries sustained by the plaintiff, but dissent from the decision to lop off $4,000 from the verdict returned by the jury. Expert testimony established that the plaintiff sustained a serious injury to his back and that the pathological condition resulting from that injury will become progressively worse….The [verdict] did not shock the conscience of the court and jury which saw and heard the plaintiff and saw and heard the testimony of all the doctors in the case. How can we then, by a simple reading of the printed page, diagnose with such medical precision and probe with such scientific accuracy, that we can apply the scalpel of appellate absolutism and amputate away what we have no right to touch except under the most extraordinary circumstances which assuredly are not present here? [This] verdict for the injuries sustained by the plaintiff does not shock my sense of justice, but a needless amputation does.” Kopka v. Bell Telephone Company[2]
            “Every person on a highway, while required to employ his senses in detecting and avoiding danger, is under no compulsion to assume that his fellow travelers are bereft of their senses or that they will assault him with a weapon or automobile fender. He has the right to assume that since stop signs are beacons of safety other drivers will no more turn a blind eye to them than a ship’s master at the helm would ignore a lighthouse on a stormy night and a calamitous sea.” Taylor v. Mountz [3]
            “A pedestrian who has violated no traffic law and is traversing a street at a regular crossing has the right to stop traffic until he passes by in safety, even as Moses held back the Red Sea. To say that a pedestrian may not cross a street merely because an automobile may be in view is equivalent to saying that the machine has rights superior to those of a human being. The converse is true. Everything else being equal, the automobile must give way to the prerogatives of the foot passenger who does not wear a steel coat and is not equipped with bumpers and fenders to protect him in any conflict with his four-wheeled potential adversary.” Frisina v. Dailey [4]
            “If a hospital functions as a business institution, by charging and receiving money for what it offers, it must be a business establishment also in meeting obligations it incurs in running that establishment. One of those inescapable obligations is that it must exercise a proper degree of care for its patients, and, to the extent that it fails in that care, it should be liable in damages.” Flagiello v. Pennsylvania Hospital [5]
            In granting a new trial to a plaintiff passenger after a jury found in favor of both defendant drivers: “There is no evidence that would exonerate both defendants. Each defendant shot crippling shots of negligence at the other….The physical circumstances of the event excluded the possibility that all evidentiary shots went wild. Nor would it be just or logical that the only one who should be hit by the fusillade was the person who already was the innocent victim of the highway.” Salvio v. Musgrave [6]
            “The motorist who says that skidding caused his car to be operated in a wrong direction on that part of the highway where he has no right to be at all must show that he was as innocent of fault as a child riding a tricycle on the sidewalk outside the Sunday School from which he has just emerged.” Blockinger v. Schweitzer [7]
In reading opinions by the Honorable Michael Musmanno, I always learn a little more about the law, and about life.

©Copyright 2016, Dale G. Larrimore, Esquire

First published September 2016 in The Verdict, Vol. 2016-2017, Issue 1, published by the Philadelphia Trial Lawyers Association, Philadelphia, PA.

---

[1] 88 A.2d 94 (Pa. 1952)_.

[2] 91 A.2d 232 (Pa. 1952).

[3] 127 A.2d 730 (Pa. 1956).

[4] 150 A.2d 348 (Pa. 1959).

[5] 208 A.2d 193 (Pa. 1965).

[6] 214 A.2d 226 (Pa. 1965).

[7] 214 A.2d 244 (Pa. 1965)_.