Why 'we Could Have Been Killed!' Doesn't Mean You Can Sue

In the many years that I have written this column, not once — until a few days before Halloween this year — was I left worried that callers would go off the deep end and do something violent to a business they felt had wronged them.

It all began with a voicemail from "Rick," asking whether I took cases of an auto dealer's negligence without personal injury or property damage.

Now, let's think about that statement. No injury. No property damage. Someone might have been negligent, but no harm resulted.

So what basis does Rick, or anyone else in this position, have for a lawsuit?

I ran that question by a friend and colleague who has practiced plaintiff's personal injury law for decades: Los Angeles-based Judy Gelfand, who comes from a remarkable family of physicians and lawyers. Her brother Gary is regarded as one of the nation's most respected medical malpractice attorneys and has been a great resource for this column. This article contains just some of his excellent advice.

Judy's answer was what every law student learns in the torts class we all take: "Negligence law is based on actual, recognized injury, loss or property damage caused by someone failing to do what they should have done. Just because something could or might have happened, but didn't, is not the basis for a lawsuit. When a mistake occurs but is immediately rectified with no harm, that's it."

Threatening phone calls

I called Rick and asked him to tell me what had happened.

"My truck's control arm needed to be replaced," he said. "I know the procedures required. They did the work under warranty. We drove over to pick it up, and, as my wife began to drive it, within a hundred feet or so, a wheel fell off. No one was hurt and they repaired the cosmetic damage, but she could have been killed!

"When I call lawyers, they all say if she is unharmed and the damage was repaired, there is no basis for a lawsuit, but I do not believe them. Since you are a consumer advocate I want you to represent us."

"Rick," I replied, "If damage to the vehicle was repaired, and the wheel came off within feet of the vehicle moving, you should thank the Lord that your wife was unharmed. There is no case."

At that moment, he began screaming: "But if this happened in traffic or on the freeway it would have been horrible — she could have been killed! I want them sued!"

He mumbled threatening language and hung up. I had immediate concerns about a seemingly out-of-control guy walking into the dealership with violence on his mind. Even if he thought that an attorney-client relationship had been established — which it had not — I still had a legal and moral obligation to warn the dealership, which I did.

Later that day, Rick's wife called, screaming at me in language that can't be repeated here, promising to "tell the media how incompetent and stupid you are."

She hung up, and I called her back, getting voicemail. I calmly explained that with no harm, there is no case, and she would be welcome to call and discuss this at any time.

Rick's not-so-hidden agenda?

Later, I learned that Rick hadn't told me the full story. The dealership's general manager filled me in, saying Rick had asked for an appraisal of the vehicle's resale value, which was roughly $17,000. He owed close to $25,000 on it, so he had negative equity.

The dealership's mechanics had accomplished the repair without having to take the wheel off. And in any case, they didn't have the wheel locks they'd have needed to remove its lug nuts.

The manager then described what happened when the couple left: "We have video coverage of the entire thing. She backs up, and — we do not know how — but the lug nuts came off. The wheel did collapse inward, but did not come off. We immediately took action, fixed it, cleaned it up — everything we could do.

"I attempted to speak logic to him, and offered to take him out of that vehicle completely, with no negative equity… He would not even listen but screamed, 'Unless you give me every payment back, my down payment and the negative equity, I'm going to an attorney.'

"I said: 'We fixed everything. Nothing happened to your wife. We understand there could have been a major catastrophe, but it didn't [occur] and fortunately it happened when she was driving one mile an hour on our lot.' He left the dealership screaming."

Was this attempted extortion?

I had my veteran private investigator, Riley Parker, look into Rick's public financial life, discovering that he has just been sued by a New York collection bureau that buys debtor judgments.

"It has the ring of a scam from someone who needs money and will do whatever it takes to get it," Riley said. We both wondered if Rick set this thing up, loosening the lug nuts before bringing the truck in for repairs.

Visit your house of worship, thank the Lord

My colleague, Judy, offers this story, told to her by Leo, her father, who was both an attorney and physician:

"A woman received a phone call from her GP recommending that she immediately see her as something suspicious was just found in a mammogram. Later that day they called her back, advising that the wrong patient's results were read to her and she has nothing to worry about. She wanted to sue her doctor for scaring her that she had cancer.

"Leo told her: 'Please go to your preferred house of worship, thank the Lord, and make a donation. Just be grateful for what did not actually happen."

Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or emailed to Lagombeaver1@gmail.com. And be sure to visit www.dennisbeaver.com.

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