Service By Publication

Or, How to Serve a Ghost.

Service by publication is the opposite of personal service.

In fact, it is so impersonal, that it does not ever notify the defendant that he has been sued.

And that is okay.

Service by publication is utilized to effectuate service on defendants that have effectively disappeared. 

Defendants that have evaded service, that have fled, that have moved and cannot be found…

The thing to remember about serving somebody by publication is that it is not real; it is merely an illusion. 

And since it is only a figment of your imagination, it cannot be used to secure a real judgment against a real person.

But, while imaginary service cannot uphold a real-life judgment against a real live person, it can be used to generate an imaginary judgment that you can then take to your UM carrier to request payment.

Service by publication only has value (in the auto accident litigation context) if the plaintiff intends to proceed against the UM carrier.

If the plaintiff intends to proceed against the defendant (personally) or against the defendant’s liability carrier, then the plaintiff must secure a real judgment.

Which means personal service of process.

Please follow and like us:

Why does justice matter?

I’ve been spending a lot of time thinking about this question. Why it is that justice matters so much to people?

I have a desire for Zen. I consider myself a budding buddhist. There is, though, no denying that Buddha himself would strenuously disagree.

But still. I want to master principles of acceptance.

And yet…

Injustice.

I hate it.

But what is it?

I remember reading, in my undergraduate days, the notion offered by Thrasymachus in Plato’s Republic, that perhaps what makes right, is might.  I always (stupidly) understood “might” as referring to primarily physical strength. Plainly it was a sound choice on my part not to study philosophy in graduate school.

Now I understand that might means power.

And I am convinced, now more than ever, that the only humans that have no use for justice are those that don’t need it.

Justice is fairness, with added kick of some consequence or correction. It’s fairness with a fix. But why do we care about fairness?

I don’t mean on an intellectual level. I mean on a visceral level.

What is it that makes my one year old, who is normally a calm and subdued, delicate specimen, scream and hit when something is taken that is rightfully hers? What is it that makes my four-old adamant that she is entitled to equal portions of whatever is distributed? What is it that resides deep within a person that makes widespread inequality lead to riots?

Who knows.

I spent three years studying law in a fully-accredited school, and justice is a concept that I never heard mentioned once.  They must have taught it on a day I was absent. (“Today is Justice day!!”)

My own theory, still under development, is that justice remains an inextricable part of our self-preservation programming code.

Because, consider the alternative. What happens to the runt of the litter that lacks an instinct to fight for a fair share of milk?

When we play modified Monopoly, I have a great time. As long as we’re playing it my way. And I think the rules that govern my household are completely inclusive and totally fair. My kids, my subjects, may disagree.

But does it matter?

As long as they remain powerless, some would say “no.”

My guess is the only people unconcerned with justice, are the ones who have decided what justice is for everyone.

 Thrasymachus, as any one might see, was in reality eager to speak; for he thought that he had an excellent answer, and would distinguish himself.

But at first he affected to insist on my answering; at length he consented to begin.

Behold, he said, the wisdom of Socrates; he refuses to teach himself, and goes about learning of others, to whom he never even says Thank you.

That I learn of others, I replied, is quite true; but that I am ungrateful I wholly deny. Money I have none, and therefore I pay in praise, which is all I have; and how ready I am to praise any one who appears to me to speak well you will very soon find out when you answer; for I expect that you will answer well.

Listen, then, he said;

I proclaim that justice is nothing else than the interest of the stronger.

 

 

 

Please follow and like us:

Thousands of rape kits have been sitting, untested.

Is yours one of them?

In 2015 it was discovered that thousands of rape kits have been sitting in law enforcement offices and medical facilities in Georgia, untouched for decades. We are now finding out that the numbers may be bigger than we even imagined.

This means thousands of women who have been waiting for justice, have been doing so in vain.

It is time to hold these entities accountable.

If you know or suspect that your rape kit sat untested, including rape kits submitted to Grady Memorial Hospital after 1999, talk to us.

We offer a free consultation.

Call / text message (404) 549-5415

No time to call? Prefer we email you? We understand. Fill out the form, we’ll email you to set up a time to chat, Skype, text, or meet. Whichever you prefer.

The use of the Internet or this form for communication with Blain LLC or any individual member of the firm does not establish an attorney-client relationship.

Confidential or time-sensitive information should not be sent through this form.

 Blain LLC
3333 Piedmont Road, Ste. 2050
Atlanta, Georgia 30305

info@blainfirm.com | 404.549.5415

 

Please follow and like us:

H.R. 1199 proposes giving alleged victims constitutional rights too.

Georgia House Resolution 1199 introduced by Representatives Parsons, Willard, Fludd, Kaiser, and Pak seeks to level the playing field by affording victims constitutional rights.

The victim’s constitutional rights would include:

Please follow and like us:

Rodriguez v. Del Sol diminishes the impact of the targeted crime defense in premises liability cases

In its Del Sol decision, the New Mexico supreme court expressly endorsed the Restatement (Third) of Torts, holding that foreseeability—the same foreseeability used to determine whether a duty exists in countless premises liability cases—has no business being used that way.

Foreseeability, the court held, is a fact-based question relevant only to the question of whether a duty was breached.

Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. What may not be foreseeable under one set of facts may be foreseeable under a slightly different set of facts. Therefore, foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis.

While we all know (everyone, from babies to aliens) that foreseeability depends on the facts of a case, there has always existed a strange jurisprudential tension between this notion—and the practical reality that foreseeability is often decided by courts as a matter of law.

In Del Sol, New Mexico’s highest court said “that makes no sense.” (I’m paraphrasing). The court properly removed the question of foreseeability from judges’ hands, and placed it squarely with the jury.

Like all good cases bringing the duty issue to the fore, Del Sol involved a domino-style catastrophic set of facts that was so unbelievable it had to be real.  A driver suffered a seizure shortly after his vehicle started accelerating due to a mechanical issue.  In a series of tragic events, his truck traveled over a curb, missed a pillar, and crashed into the glass wall of a clinic located in the shopping center.  People were injured; some severely. And some died.

Victims sued the shopping center in which the tragedy occurred, alleging that the center should have done more to prevent what happened, including, for example, placing additional physical barriers that would have prevented the vehicle from making its way into the clinic’s glass wall.

In the lower courts, the primary question was viewed as one of whether a duty even existed—Was the course of events, they pondered, foreseeable to the shopping center? Was what happened so foreseeable that courts should impose a duty to have prevented it?

The meta-question raised (and which extends to all premises liability cases deciding foreseeability under the rubric of duty) is whether a judge should have that kind of power: the power to end a case at the outset based on the judge’s own view that a given outcome was unforeseeable to the defendant.

Naturally, this implicates all sorts of issues of justice, jurisprudential integrity, diversity of perspective, and, well . . . fairness.

The New Mexico supreme court decided to take the mic.

In a well-reasoned and intellectually honest opinion, the court acknowledged the tangles in the string of premises liability cases and it expressly declared that it would no longer be participatory.  Instead, the court made clear that it is time to decouple foreseeability from the question of duty.  See also Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006) (which the court cited as an example of another that “correctly resisted the effort to conflate a breach-of-duty analysis with the duty analysis.”).  It followed the Restatement (Third) of Torts and relegated the question of foreseeability to a different location—breach.

And it did so rightly.  Brenna Gaytan, The Palsgraf “Duty” Debate Resolved: Rodriguez v. Del Sol Moves to a Foreseeability Free Analysis, 45 New Mexico L. Rev. 753, 767 (2015).

Foreseeability cannot be other than a fact-based question. See Alani Golanski, A New Look at Duty in Tort Law: Rehabilitating Foreseeability and Related Themes, 9 Albany L. Rev. 227, 232 (2012). Inserting the question of foreseeability into the analysis of duty makes no sense because in premises liability cases, the existence of duty has already been determined.  Whether a duty exists on the part of owners and occupiers of land is a policy question—and the core answer, reflected in hundreds of years of case law, is yes.  These cases make clear that while there generally exists no duty to act in the aid of another, in owner and occupier of land cases the law is willing to impose just such a duty. The question is one of broad policy—not of individual example.

The duty is already there.

Yet, strangely, courts (presumably under Cardozo’s wise guidance) have engaged in a practice of weighing evidence, considering particular facts, and making individualized determinations as to the existence of duty in individual cases.  There can be no real denying that when a case comes down the galley in which a judge is reluctant to impose liability, these judges have declared it to be matter of law that the tragic outcome was unforeseeable.  The mechanism for disposing of these cases at the summary judgment stage—or even earlier—has been to pose the question of duty, tack on the precise facts that make this case more “special” than others, and then answer the question as though it were a new one.

By so doing, these courts have not been deciding laws. They have been dictating outcomes.

Powerfully, in Del Sol the court declared that no more would courts be permitted free reign to decide cases based on their own assessment of what was foreseeable. A judge’s own call on foreseeability goes against the rules.  As stated in Del Sol:

Courts should not engage in weighing evidence to determine whether a duty of care exists or should be expanded or contracted—weighing evidence is the providence of the jury.

When judges decide cases in this way, the law becomes a reflection of their own views instead of the community’s. As the court emphasized:

Foreseeability determinations are reserved for a jury because such determinations require the jury’s common sense, common experience, and its consideration of community behavioral norms.

The court tacitly acknowledged the importance to issues of diversity and inclusion of leaving jury questions to juries—and hinted at some of the societal implications of failing to do so in its discussion of breach and causation. The court elaborated on the proper mindset to be adopted in those rare instances in a verdict would be directed:

The determination requires judges to abandon their own personal thoughts regarding the merits of cases and to imagine the thoughts of twelve adult citizens from a variety of socioeconomic backgrounds—such as scientists, college faculty, laborers, uneducated, rich, poor, persons with different political persuasions—and what that diverse group might find regarding the merits of a case.

They then dropped the mic.

To the extent the Del Sol approach is adopted by other jurisdictions—which it should be—one implication is that the red herring that is the targeted-crime defense becomes weakened. Cf. Gaytan, supra at 777.  For violent crime victims in premises liability cases, under Del Sol it will no longer constitute a viable ‘out’ at the summary judgment stage for a proprietor to claim that an attack was a targeted one, and that it was, as such, ipso facto unforeseeable. Instead, Del Sol supports the view that without regard to whether a victim was targeted, the question of foreseeability, and the question of whether reasonable action was taken based thereon, remains squarely, always, a jury question.

In short, Del Sol supports the view that whether an attack was foreseeable remains a fact question for the jury—even in cases involving targeted crimes.

[W]e clarify and expressly hold that foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases.

Please follow and like us: