Torts

No Lawsuits for Negligent Lobbying

A woman is injured in a car accident supposedly because of bad roadway design decision (a dangerous cut in the median) -- so she sues business that had lobbied county to make that decision.

|The Volokh Conspiracy |

From today's Florida Court of Appeals decision in Sewell v. Racetrac Petroleum, Inc.:

Crystal Sewell lost control of her vehicle and hit a palm tree after her car was allegedly cut off by an unknown vehicle that took a left-hand turn from a gas station and abruptly joined the lane of traffic in which Sewell was traveling. In doing so, the unknown vehicle traveled through a cut in the concrete median provided for traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned, developed, and operated the gas station, in large part because Racetrac created a dangerous condition when it lobbied the local county government to create the cut in the median to promote access to its property….

In 1977, Racetrac agreed to purchase the property only if the governing agencies approved the cut in the median. In obtaining approval from Miami-Dade County, Racetrac submitted one traffic study that used the Institute of Transportation Engineers Trip Generation category for "Convenience Market with Gas Pumps." Sewell alleges that "there were other categories … that would have been more applicable to Racetrac." Racetrac also submitted another traffic study that should have been based on a different set of its existing stores. Sewell further alleges that Racetrac, through "bribery and corruption," obtained the support of its application from City of Homestead officials, although, as the complaint admits, "city officials don't get to decide whether the median gets removed or not (county officials do)." …

[T]he decision of whether or not to improve roadways or upgrade traffic control devices often pits the interests of some users of the roads against the interest of others. For example, businesses and commuters may want traffic control devices that speed up and facilitate the flow of traffic. Neighborhood groups, on the other hand, may want traffic control devices that slow or divert traffic. The process for making these decisions involves the quasi-political balancing of the competing and conflicting needs of different parts of the community with the limited resources available. For this reason, the law recognizes that these matters involve the "judgmental, planning-level decisions" by the political branches of government "which are not actionable."

By petitioning Miami-Dade County to obtain the cut in the median, Racetrac entered into this planning process. As a participant in this process, Racetrac could advocate freely—even fiercely—for its own interests. Racetrac did not have a relationship with Sewell (or others like her) that would create in Racetrac a legal duty to tailor its petition to protect Sewell and other competing road users.

At best, Sewell alleged Racetrac submitted expert traffic studies that were extremely one-sided and unprofessionally skewed to support its application to have the median cut. Such allegations, without more, are not actionable. This is not a case in which Sewell alleges Racetrac petitioned the government for the primary purpose of intentionally or maliciously harming Sewell or others like her. For this reason, Racetrac's application to have the median cut, whether riddled with misrepresentations or not, constituted "the statements of a citizen to a political authority regarding matters of public concern" shielded by a "qualified privilege" that has "existed in the law of Florida for many generations and [has] served to provide broad protection for freedom of speech."

At some point, Sewell's main theory may well run afoul of the body of law that grants immunity under the First Amendment to those petitioning government, whether or not their motives are self-seeking or even unethical…. "The NoerrPennington doctrine grants First Amendment immunity to those who engage in petitioning activity." …

As a practical matter, to recognize Sewell's main legal theory would mean, for example, that homeowners could be sued for false statements "negligently" made as part of a petition for specific traffic control or traffic calming devices like speed bumps or traffic circles which make roadways safer for some users but potentially more dangerous for others. When the risks of unintended consequences are fully weighed, this case presents an instance where … it would be "unwise for the judiciary to expand causes of action to reach conduct clearly beyond the scope historically recognized by law." …

[We therefore] hold that a person who petitions the government for a road improvement outside of his or her property has no legal duty to guard against the government making a decision that will create an allegedly unreasonably dangerous road condition.

Sounds right to me.

The majority allowed Sewell to go forward, though, with a different theory:

Sewell's second theory of liability concerns Racetrac's duty to manage signs and pavement markings on its own property to protect its customers and the public from the danger of cars exiting the property by turning left and using the existing cut in the median to go eastbound on Northeast 8th Street. The complaint alleges that Racetrac knew or should have known that its conduct in this regard presented an unreasonable danger. This theory is viable under the existing case law recognized in [past precedents] (holding that an owner can be liable if negligent design of its parking lot and placement of a stop sign caused accident with passing motorist). An owner can be liable for actions it takes or fails to take on its own property that cause vehicles to exit in a manner that the owner knew or should have known creates an unreasonable danger to vehicles on the adjacent roadway.

There are also a couple of fairly detailed concurring-and-dissenting opinions, which you can read here.

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  1. And yet, if I should exhort someone to commit a tort which he does commit, and which he would not have committed absent my encouragement, I am pretty sure the courts wouldn’t regard me as an innocent lamb.

  2. PFP: I think the relevant analogy isn’t between you asking a private citizen to do something (which might be negligence if the request is specific enough, or may even be criminal solicitation, see U.S. v. Williams (2008)) and you asking the government to do something. Rather, it’s between a legislator voting for the government to do something, or urging an executive agency to do something and a citizen asking the government to do it.

    Legislators are entitled to immunity, even if they vote for a policy that a jury might one day find negligent, or a judge might one day find unconstitutional, because we don’t want them to make decisions based on the danger to their own pocketbooks (especially since juries are hardly perfect evaluators of such decisions). If a legislator, for instance, decides to vote to raise the speed limit in a way that would foreseeably cause more deaths, that’s a judgment that should be made through the political process — and subject to political checks — rather than something for which he might go bankrupt because of a class-action lawsuit by accident victims. That’s partly a matter of governmental “discretionary function” immunity, but it’s also a matter of legislative immunity as well.

    We as citizens are also lawmakers, both when we vote on initiatives or referenda, and when we urge lawmakers to make certain decisions. If we urge legislators to do something, and they’re immune for doing it, we should be immune for speaking out in favor of it.

    1. Taking government immunity as a given, I’m not sure that it passes on to ‘civilians’ who encourage government to do what would be culpable without it. For instance, if I tell a young child that Smith deserves to have his windows broken, and the child decides to go break Smith’s windows, the child has the ‘immunity’ of legal incompetence but I am certainly answerable to Smith.

      As I’m sure you’ll note, I don’t rate the capacity of legislators for moral agency very highly.

      1. PFP: Noerr-Pennington and follow-up cases do basically establish citizen immunity in such a situation — not because counseling someone who is immune to do something is always necessarily itself immune (your young child example shows that), but because First Amendment principles so suggest. Americans who are urging the government to do something aren’t merely counselors; they are themselves part of the lawmaking process (or the executive decisionmaking process), and the same reasons that call for legislative immunity (and discretionary function immunity) for government officials also support the same immunity for ordinary people who call for government action.

    2. That citizen-as-lawmaker analogy sounds ripe for a paper.

      Merry Christmas and Happy Holidays all!

  3. Thanks for that interesting post , while the respectable author of the post , mentions ” balancing of the competing and conflicting needs of different parts of the community ” , it is at the same time mentioned in the post , that the cut in the median had been done , to promote access to the property . Now , if different alternatives , were considered for public purposes ( let alone for safety ) then , one could claim , that we have here , appropriate alternatives , but , when the purpose of Racetrac and the county , had to do with the mere private interest of that corporation , at the back of the safety of the public it seems , we have here , a potential legal duty of that corporation and the county towards that miserable Sewell . Moreover :

    If indeed ” bribery and corruption ” were involved , we have a criminal offense , that surly support negligence or tort as such it seems .

    Thanks

  4. Isn’t this just an application of the Noerr-Pennington doctrine?

    Which many courts hold applies to state law claims, since it is founded on the Constitutional right to petition the government.

    1. The case cites to Noerr-Pennington.

      For whatever reason, the state courts in Florida (as opposed to the Federal Courts in Florida) have been reluctant to cite to the doctrine.

      For various reasons, I know far too much about N-P.

  5. Dear state legislators:

    Please pass a law that forbids stupidity as exhibited by xyz trade association.

    Signed

    Noerr Pennington

    I like it. I think ill start directed all my publication to state legislators “about” others. Always good to be forward thinking in censure asshat tactics

    1. http://www.pstrade.us

      Our disclaimer is all noerr pennington since 2013

      “The Purpose:

      The web site is by design to discuss the trade of process serving, this includes non profit associations that are granted tax exempt status related to their interest in the trade of process serving. It is designed to critically discuss the issue of process serving industry. It is non commercial. By design this page will be used to share with and petition government legislators and rule makers so they can be fully informed via direction to and interaction with its content as it may relate to their legislative or regulatory (civil or criminal) activities regarding process servers”

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