At first she was the “Aunt From Hell,” with an #AuntFrom-Hell hashtag to match. Jennifer Connell, age 54, had sued her young nephew, Sean Tarala, for $127,000 over an incident at the boy’s eighth birthday party in 2011. Sean had impetuously jumped into Connell’s arms to greet her when she arrived at the party, causing her to fall and break her wrist.
At the two-day trial in mid-October in Bridgeport, Conn. (the boy and his father, Michael Tarala, lived in nearby Westport), everything seemed to go wrong for Connell strategically, and perhaps legally, too. Sean’s mother had died a year before the lawsuit went to trial, and the 12-year-old Sean accompanied by his father in the courtroom made a mournful sight. Connell, by contrast, was a childless, brassy-blonde human resources manager in Manhattan, with an apartment on the opulent Upper East Side. “I was at a party recently and it was difficult to hold my hors d’oeuvres plate,” she testified by way of explaining how much physical discomfort the accident had caused her.
It took the jury only 20 minutes to decide on October 13 that Sean had not been negligent in his enthusiastic embrace and to award Connell zero for her efforts. She fared no better in the court of public opinion. The sobriquet “Auntie Maim” began to appear on social media. (Technically speaking, Connell is not Sean’s aunt but his first cousin once removed.) “Yes, it’s so tragic that your social life has been disrupted, Jennifer,” a sarcastic Gabriella Ginsberg wrote for HollywoodLife. The webzine also took a poll: “Should Jennifer have won the case?” Some 96.5 percent of respond-ents voted “No way!” while only 3.5 percent voted “Yes.”
Then trial lawyers got into the act in an effort to turn Connell into the Aunt More Sinned Against Than Sinning. It began with Connell’s own lawyers, who issued a statement: “From the start, this was a case about one thing: getting medical bills paid by [Michael Tarala’s] homeowner’s insurance. . . . Our client was very reluctant to pursue this case, but in the end she had no choice. . . . [H]er hand was forced by the insurance company.”
In other words, according to the lawyers, Connell was simply a victim of a mean-spirited insurance company that had refused to settle with her before trial (the company, whose name was not disclosed in court, was reported to have offered her exactly one dollar). Also to blame, her lawyers said, was Connecticut law, which, like the laws of other states, requires that injured people file a lawsuit against the allegedly negligent party in order to collect from an insurance company insuring property not one’s own. Connell and even Sean himself told reporters that they loved each other, and Connell insisted that she had been forced to sue only as a way to get reimbursed for two surgeries (and a likely third) stemming from the accident. “This was meant to be a simple homeowners insurance case,” she told CNN.
Other trial lawyers jumped to agree wholeheartedly. “People have been suing children since suing began,” Danny Cevallos, a personal-injury lawyer in Pennsylvania, wrote in a column for CNN. He elaborated further:
New York personal-injury lawyer Eric Turkewitz wrote on his blog: “Certainly insurance companies would prefer that folks don’t sue. It would be a great business model, wouldn’t it, to keep collecting all those premiums and never pay anything out?”
Sure, everyone hates stingy insurance companies—but there’s a conceptual problem. Homeowners’ insurance is liability insurance. It’s supposed to kick in to cover an injured party’s medical bills only if the policyholder (or, usually, a spouse or child of the policyholder) is found legally liable for the injury. And that means the policy-holder must have committed some wrong, either intentionally or negligently. The very legal term “tort” derives from the medieval Latin tortum (“twisted”), meaning “injustice.” So if 8-year-old Sean didn’t act negligently by jumping into Connell’s arms—and the jury didn’t think he did—she wasn’t entitled to collect on the homeowner policy, no matter how painful her injuries were or what sort of hardball the insurance company played. After all, it wasn’t Jennifer Connell who was paying the premiums on that policy.
A few decades ago Connell’s case would probably never have even made it into a courthouse. The law of torts once made it difficult for social guests—in contrast to, say, deliverymen or contractors doing work on the property—to collect damages from property owners should they be injured on a visit. Traditionally owners simply owed a lesser “duty of care” to their social guests than to those they invited onto their premises for commercial purposes. “But a lot of courts have collapsed that distinction,” said Kenneth S. Abraham, a professor of tort and insurance law at the University of Virginia law school. “The goal was to encourage people to make their houses and apartments safer for their guests. There’s a tradeoff, of course. You get more lawsuits.”
And therein lies the reason the general public was outraged at the idea that Connell would sue her little nephew—and also the reason the trial lawyers who represent injured plaintiffs such as Connell were outraged at the Taralas’ insurance company. Tort law as traditionally conceived is supposed to have a moral focus: If you injure someone by your carelessness, you are responsible for making that person whole—and if you weren’t careless, then you don’t owe that person anything. But “from the 1950s through the 1970s the legal doctrines changed” thanks to the efforts of law professors and judges, says Walter K. Olson, a senior fellow at the libertarian Cato Institute and creator of the tort-reform blog Overlawyered. “People had high hopes that tort law could be a kind of insurance system, so they stretched the concept of liability insurance into a bigger piece of the social system. The idea was that the costs of people’s injuries could be spread painlessly through the system. Whole generations of students in law schools learned that in the absence of European-style social insurance, one way to be progressive like Europe was to use liability insurance as a form of social insurance.”
Of course this transformation entailed a blurring of the traditional notions of duty of care, fault, negligence, and individual responsibility. It also entailed a rising expectation that if someone got hurt in an accident and there was an insurance policy somewhere, the insurance company ought to pay. The problem, said Olson, is that when you turn the tort system into an insurance system, “the overhead costs” in the form of lawsuits and lawyers’ fees “are very high. There’s also the random factor—it depends on what side of the state line you’re on if you want to collect. And once people figured out that they could get their medical bills paid by suing their relatives, insurance companies had to defend the family members. That’s why those lawsuits were barred in the first place.”
As Abraham noted, the response of many insurance companies has been to write explicit exclusions into policies—certainly for auto insurance but sometimes also for homeowner insurance—that bar members of an insured’s immediate family, such as spouses and children, from collecting under the liability clauses. “There’s a fear of collusion, where you’d have someone suing for negligence and the negligence would be admitted so the insurance company would pay,” he said.
The most fascinating aspect of Connell’s suit was that although many lawyers and law professors didn’t see a problem with an aunt’s suit against a little boy for insurance purposes, the public and the media vociferously did. The public seemed to be operating under an old-fashioned sense of right and wrong that tort law has rejected in the name of social progress: You don’t engage in litigation against small children closely related to you who were trying to show you how much they loved you at a birthday party.
“There’s a big divide between what lawyers consider ethical and what the public considers ethical,” says Jack Marshall, a Virginia lawyer who conducts ethics training sessions for other attorneys. Marshall emphasized that Connell’s lawyers had done nothing wrong in vigorously pursuing the lawsuit that Connell wanted them to file. “Really, the only obligation that lawyers have is to their client—the client makes the decision,” Marshall said. “But they could have asked their client to look at the case from a familial standpoint. I have seen families torn apart by being sued. They could have said, ‘But look—it was a child! Are you sure that this isn’t going to traumatize the kid?’ What I got from the trial lawyers was rationalization: The child doesn’t care. But we have no idea how that kid feels.”
Charlotte Allen, a frequent contributor to The Weekly Standard, last wrote on tenure.
