Lawyers Are Not Funny, But This Worker’s Comp Opinion Is Possibly The Funniest Judicial Opinion Ever*

laughter.gifLawyers are not a funny bunch. And the judicial opinions authored by the lawyers who wear black robes tend to be especially devoid of humor. A couple of months ago, Supreme Court reporter Dahlia Lithwick wrote a Slate article asking, “Is John Roberts the funniest Supreme Court justice ever?”
Lithwick answered that question in the affirmative, Roberts having staked claim to that title by authoring an opinion holding that companies, such as AT&T, are not entitled to “personal privacy” protections and concluding the opinion with the quip, “We trust AT&T will not take [our decision] personally.” That’s the type of knee slapper that entitles a Supreme Court justice to lay claim to the mantle of being the funniest Supreme Court justice ever.
The fact that Roberts’ mildy funny throwaway line was remarkable enough to merit a whole article on it shows just how little levity there is in the law.
Lawyers fritter away most of their hours reading things like this:

“For purposes of Paragraph (3), an organization described in Paragraph (2) shall be deemed to include an organization described in Section 501(c) (4), (5), or (6) which would be described in Paragraph (2) if it were an organization described in Section 509(a)(3).”

That’s the infamous Section 529(a) of the Internal Revenue Code. According to Jennifer Schuessler, writing in The New York Times Book Review, the obscurantism of this passage inspired the late novelist David Foster Wallace to write his just-published novel The Pale King. With reading matter like that, it’s no wonder DFW killed himself. (Sorry — too soon?).
At any rate, all of this is merely prefatory explanation for the fact that when you come across a legal opinion that actually is genuinely humorous, it’s something worth sharing.
So I share with you Montana Worker Compensation Judge Jeremiah Shea’s opinion in Brock Hopkins v. Uninsured Employer’s Fund. The Hopkins case concerned an employee of Great Bear Adventures who smoked marijuana early in the day, prior to being mauled by a bear. Under Montana Worker’s Compensation law, Judge Hopkins had to address, the question of whether the marijuana smoking was the “major” cause of Hopkins’ injuries.
Judge Shea ruled that Hopkins’ marijuana consumption did not relieve Great Bear Adventures of liability for the workplace accident. Judge Shea reasoned thusly (even working in a reference to the 2004 movie Harold & Kumar Go To White Castle, I am told):

“Although Hopkins admitted to smoking marijuana before arriving at work, I cannot conclude based on the evidence that the major contributing cause of the grizzly bear attack was anything other than the grizzly. It is not as if this attack occurred when Hopkins inexplicably wandered into the grizzly pen while searching for the nearest White Castle. When a grizzly bear is sighted on a trail in Glacier National Park, the trail is closed to all hikers, not just the hikers who may have recently smoked marijuana. When it comes to attacking humans, grizzlies are equal-opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana use. Hopkins’s use of marijuana to kick off a day of working with grizzly bears was ill-advised to say the least, and mind-bogglingly stupid to say the most. However, I have been presented with no evidence by which I can conclude that Hopkins’s marijuana use was the major contributing cause of the grizzly bear attack.”

So there you have it, the funniest judicial opinion ever. Weep for us, all ye non-lawyers. Weep for us.
*Funniness is determined by standards generally prevailing within the legal industry at the time of authorship. Not valid in all 50 states. Void where prohibited. No purchase necessary. The Hopkins case was written by a trained Administrative Law Judge. You should not attempt legal humor without the supervision of a trained professional.
**Thank you to my very able (and funny) colleague, Patrick Banfield, for bringing the Brock case to my attention. Patrick is very high-brow and has a subscription to Harper’s, which featured the Brock case in its Index feature this month.

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Football Head Injuries: A Follow-Up

I’ve previously blogged about the prospect of football helmet manufacturers facing product liability lawsuits for design defects in their helmets and the resulting brain injuries that occur.
This week came news that former NFL lineman Ralph Wenzel has filed a Worker’s Compensation claim that says head injuries he sustained in the course of his NFL career are responsible for his present-day dementia.
Of course, a Worker’s Compensation claim for football head injuries is recourse that is only available to former professional football players, not to college or high school players who sustained brain injuries while playing for fun, rather than as part of their “job” or “work.” But even though these Worker’s Compensation claims are available only to the tiny fraction of football players who played professionally, the consequences could be enormous. The potential liability faced by the NFL in Worker’s Compensation claims relating to head injuries could be $100 million or more. Liability of that scale is big enough to force even a multi-billion dollar empire like the NFL to consider its rules and regulations regarding concussions and other head injuries. Football fans might even see the three point stance abolished as a result!
Worker’s Compensation pre-emption means that former pro football players cannot sue their former teams directly for brain injuries they sustained from their playing (they can however maintain product liability actions against the helmet manufacturers). High schools and colleges need to be alert to the prospect of this kind of litigation because their players are “students,” not “workers,” and Worker’s Compensation laws do not prove a bar to suing them directly. High school and college programs could therefore face even greater liability than the NFL.
It is a startling realization, but legal liability for brain injuries might fundamentally alter the rules of football and transform it place in our culture.
My guess, however, is that the NFL lobbies the California legislature to change the law with regards to football players.

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