You're listening to season 10 of Mobile Suit Breakdown, a weekly podcast covering lawsuits in around and about mobile, Alabama from 1702 to today.
This is episode 10.47, Jokers to the left of me, clowns to the right, and I'm struck in the middle by you. And we're your hosts. I'm Tom, a retired lawyer, and this is still not legal advice.
That episode name is really good.
Thank you. I came up with it myself. So who are you again?
I'm losing it.
And this is my co host at.
Losin it and I'm Nina, not a lawyer here to make sure he explains all of the jargon. This week's suit has everything. Automobile collisions, conflicting accounts of events, accusations of negligence, Clowns.
Let's begin Content Warning Clowns.
But let's begin at the beginning. The year is 1963. The suit involves plaintiff Martha Thompson, a passenger in the automobile her daughter was driving, and defendants Lawson White, another driver, Gulf Oil Corporation, a corporation, and Herman Vinson and Lee Gore. Gulf Oil Corporation has just opened a new filling station at the corner of Atlanta highway and Forest Hills Drive and has hired clowns. What were the clowns hired to do? The lawsuit doesn't say, but I assume they were supposed to attract attention to this new business location proximate to this intersection. White rear ended the car Thompson was riding in, and Thompson sued all of the defendants for negligence and wanton injury. There was some disagreement about how the crash happened. Thompson said her daughter's car was stopped at a red light when it was hit, while White said that their car had started to move into the intersection and then stopped abruptly. But ultimately, the court gave the affirmative charge with hypothesis in favor of Gulf defendants as to both counts and in favor of defendant White as to the wanton count, which is to say the court decided only the charge of negligence against the other driver, White, fit the facts. So only that charge was submitted to the jury. They found in favor of Thompson and determined that driver White needed to pay her $5,000. But that's not this case. This case is Thompson's appeal. She really, really wanted the charges against the Gulf defendants, corporation and clowns, to go to the jury. Was she hoping for more money or did she just really hate corporations and or clowns?
Who wouldn't? I mean, this seems like the classic case of go where the money is right.
A corporation has a lot more money at their disposal than some guy.
And as we all know, clowning is a very, very lucrative business.
And now I've got to ask, what is A demurrer. Is that just a fancy way of saying that the court, which is to say the judge, decides that certain counts don't apply and so does not send those counts to the jury.
So a demurrer is actually submitted by, in this case, the defendants.
Okay.
It's a pleading to the court. So the court has sustained the demurrer. But what the demur says is, okay, even if all of the things that you said happened did happen, even so, legally we would not be responsible.
Okay. And then the court says, yeah, we agree with you exactly.
That affirmative charge with hypothesis that you mentioned earlier is kind of a similar thing. Of course, longtime listeners already know all about this. But for anyone who's just joining us, the affirmative charge with hypothesis is a, I think, unique to Alabama procedure. It's very similar to what you would probably recognize as a directed verdict, like the demurrer. It's the court saying, even if you believe all of the evidence that's in favor of this particular contention, that evidence is still not enough as a legal matter to establish the elements of the charge in a directed verdict. It doesn't even go to the jury. The judge just says, this is the verdict. The affirmative charge with hypothesis. I think formally the question goes to the jury, but they're only allowed to answer one way. So it's a bit of a. Bit of theater.
As a non lawyer, a few parts of this short decision were pretty interesting to me. First, the phrasing used, for instance, plaintiff alleges that Gulf defendants so negligently conducted their said business as to cause or permit the performance at or near the said Atlanta highway of certain clowns or performers to cause or permit the performance of clowns.
While the plaintiff doesn't know this is before these, these charges get filed before the plaintiff has an opportunity to do discovery. So think about it from the plaintiff's perspective. You're driving along in a car, you see some clowns performing out in front of a service station. You assume that those clowns have been either employed by the service station or simply permitted to be there, but you don't know which one it is.
And later arguing over whether Gulf Oil or the other driver were responsible for the crash. In the hypothetical case where the other driver was distracted by the clowns, then he was, quote, not a free agent, but was acting under the influence of the clowns. Acting under the influence of the clowns. It sounds like a horror movie curse or maybe the latest teen moral panic. All the teens are under the influence of the clowns.
Now, I can understand why as a non lawyer you would find this fascinating. But as a former lawyer myself, I can't count the number of times I've had to deal with a case in which one or more parties was acting under the influence of clowns.
Next, is that the standard for a complaint that avers negligence is for some reason different from the standard for account charging negligence?
Ah, no, see, and this is a classic thing that they do. They describe the standard and then they describe it again using very slightly different language. So how we love to. Well, okay, you gotta have more than one source for your contention. If you're arguing that. And really a legal decision is an argument. So if you're arguing that the standard is X, then you want to put out a couple of different sources establishing that standard. Although in this case actually they give two different standards.
They're like here's one and then here's a different one.
Well, they're drawing them from two different cases and there is a slight difference. The first time they talk about the standard for establishing negligence. And this is the pleading standard. And of course this is a very old case. This is from 1963. And so the pleading standard in effect at this point is not the pleading standard for negligence. That is in effect now this is way before Iqbal and Twombly and all that stuff. So here they say the pleading standard is that when a complaint in general terms avers negligence and then avers the particular act or acts constituting the alleged negligence without more, unless such act or acts in themselves amount to negligence, then the complaint is demurrable. Or in English, if you say this person was negligent, I have been harmed. The thing that they did that was negligent was whatever.
Clowning.
Clowning, then clowning itself has to be a negligent act or else the complaint is demurable and clowning itself is not an inherently negligent negligent act, says you, I would need to plead additional facts establishing that the clowning was done in a way that was negligent. This is why they say without more, without more it's demerable. Then they say, basically repeating this, when the pleader charges negligence and wantonness in general terms and then sets up facts upon which such charges are predicated. The facts set up must in themselves show negligence and wantonness. They cite to a different case for this. But the difference here is here they're saying negligence and wantonness. Wantonness is different from negligence.
Yeah, I especially noticed the part of the decision where they explain that wantonness and negligence can't exist in the same act or omission to act because negligence is unthinking. Wantonness implies awareness of risk or danger and willfully doing or not doing a thing anyway.
Right.
Can a plaintiff make these charges or accusations that are mutually exclusive like that? Oh yeah. Like they committed one of these two crimes?
Oh, totally. This is called pleading in the alternative.
Okay.
In this case, wantonness and negligence are basically like two levels of culpability for the same action. And again, as when you're charging like they caused or permitted the clowns. Right. I don't know if they caused the clowns or permitted the clowns.
It's probably much harder to prove wantonness also.
Absolutely it is. Yes. So for something that really relies on the mental state of the defendant, it would be enormously unfair to require the plaintiff to decide only one of those two things and then sue over that. Sometimes pleading in the alternative can look a little ridiculous, but it really comes down to the lack of knowledge that the plaintiff has about what was going on in the defendant's head and on the defendant's side of the facts when they filed this case.
Also, in spite of how long we've been doing this podcast, I'm not sure I'd ever thought about how intertwined jury trials are with the reasonable person standard.
Oh yeah.
For new listeners, many US laws, including those determining negligence, rely on what's called the reasonable person standard. Or because it's the 60s, I think they call it the reasonable man standard.
Uh huh. We love the language of these old cases. Like there's this bit in here where they quote from a case that is, I think from the late 1800s where they talk about how since gasoline power is now used in many different circumstances, it cannot be said that to use a gasoline engine is inherently negligent.
I loved that part. But yeah, the reasonable person standard is basically what would a reasonable person consider negligent? Or what would a reasonable person consider of these facts? Which is obviously pretty subjective, but that's why the jury is so important in theory. You're getting a sampling of public opinion and the decision they come to represents some kind of average current opinion on the issue, which also allows for that standard to be different at different points in time and from place to place.
Exactly. That place to place part is very important. The reasonable standard for clown performances in Alabama is not likely to be the same as the reasonable standard for clown performances in New York or Paris, where I think they are called mimes.
There is a whole somewhat confused section of the plaintiff describing where exactly the clowns were. That sounds as though the clowns were standing in the road itself, practically touching the car. Just like they were so close. They were practically touching the car. Oh my God, the clowns. They were so dangerous.
The clowns had on clown suits, Nina. They were waving something and facing the road.
I might be worried they were trying to throw themselves in front of my automobile. Ultimately, the case was reversed and remanded, which, if I'm remembering correctly, means the case was returned to a lower court to be retried.
Yes, this is the appeals court saying you did it wrong. Here is the way in which you did it wrong. Now go back and do it again and do it right this time.
Right. Basically that the determination of negligence against Gulf Oil and the clowns should have been put to a jury next week. What did the jury decide? Did plaintiff Thompson wind up with more money? Are clowns near a roadway inherently dangerous and or an attractive nuisance? Why yes, those are both legal terms. Tune in to find out.
I think the jury is still out on whether the clowns are an attractive nuisance. They're definitely a nuisance. Like an above ground swimming pool.
Oh ho ho, you caught us. This case wasn't in Mobile. It was in Montgomery. April Fools April Fools.
Mobile Suit Breakdown is written, recorded and produced by us, Tom and Nina in scenic New York City within the ancestral and unseen land of the Lenape people and made possible by listeners like you. The opening track is WASP by Misha Dayaksun. The closing music is Long Way Home by Spinning Ratio. You can find links to the sources for our research, the music used in the episode, additional information about the Lenape people and more in the show notes on our website. And if you would like to support the show, please share us with your friends. Leave a nice review wherever you listen to podcasts or support us financially@gundumpodcast.com Patreon you can find links and more ways to help out@gundumpodcast.com support thank you for listening. Our paralegal tigress has decided to invade the recording session.
See, she wants to be in my lap, but if I try to pick her up, she backs away. She's like, no, don't touch me. I only lap. No pickup.