One long-standing "reasonable accommodation" that long predates the ADA is of course exempting seeing-eye dogs from "no pets allowed" policies. "Greedy" businesses realized, without any coercion from the government, that it was smart (i.e., profitable) business policy to allow these well-trained animals onto their premises.

But as the ADA expands the definition of a legally cognizable "disability" and thereby throws open the doors to bureaucrats to redefine what is a required accommodation (reasonable or otherwise), is it any surprise that the universe of proposed "service animals" has expanded, indeed exploded, beyond the traditional seeing-eye dog?

She gripped a leather harness — like the kind used for Seeing Eye dogs — which was attached to a small, fuzzy black-and-white horse barely tall enough to reach the woman's hip. The woman, Ann Edie, was simply blind and out for an evening walk with Panda, her guide miniature horse.

And that's just the beginning:

What’s most striking about Edie and Panda is that after the initial shock of seeing a horse walk into a cafe, or ride in a car, watching them work together makes the idea of guide miniature horses seem utterly logical. Even normal. So normal, in fact, that people often find it hard to believe that the United States government is considering a proposal that would force Edie and many others like her to stop using their service animals.

But that's precisely what's happening, because a growing number of people believe the world of service animals has gotten out of control: first it was guide dogs for the blind; now it's monkeys for quadriplegia and agoraphobia, guide miniature horses, a goat for muscular dystrophy, a parrot for psychosis and any number of animals for anxiety, including cats, ferrets, pigs, at least one iguana and a duck. They're all showing up in stores and in restaurants, which is perfectly legal because the Americans With Disabilities Act requires that service animals be allowed wherever their owners want to go.

But that's only assuming that the animal in question is indeed a legitimate service animal and that accommodating it would be "reasonable."

All that is really happening here is that people, both property owners and other patrons, are rediscovering the reasonableness standard and insisting that it be revived. If we can't have full property rights (including the highest of all property rights: the right to exclude), then can we at least have the right not to accommodate unreasonableness?

One would hope that the public at large — including the disabled themselves — would be reasonable in their demands without prompting by the government. But one would also hope that people would refrain from committing crimes without prompting from the government. Unfortunately, hope isn't enough. So instead our criminal, civil and regulatory laws adopt the objective "reasonableness" standard: What does and does not make sense, not to any particular person, but to a (hypothetical) reasonable person. If we're not going to have strong property rights (sigh), then we at least need objective standards, so property owners can plan accordingly.

The opponents of guide horses and service iguanas have it exactly right: It's time take back reasonableness from those anti-property malcontents who have hijacked it.

(Via Marginal Revolution.)

—

Elsewhere:

One fighter in a burgeoning army of crusaders for disabled access, [Thomas] Mundy says he has filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the exacting requirements of the Americans with Disabilities Act.

Suing for ADA noncompliance has become a cottage industry for dozens of disabled Californians who have taken on the role of freelance enforcers of an often ignored federal statute. They secure piecemeal correction of offending premises and often enrich themselves and their lawyers in the process.

I briefly noted a similar story in a recent Questions post, before the Mundy article made the rounds of the libertarian blogs.

As for Mundy's relentless nuisance lawsuits, keep in mind what I observed in a comment over at Popehat:

This is reminiscent of California's Unruh Act, which mandates a minimum $4,000 civil award for any incident of illegal discrimination, no matter how slight.

Is it any wonder, therefore, that there are, e.g., men in California who actively seek out "ladies nights" at bars for the sole purpose of filing Unruh claims, or law firms that specialize in Unruh litigation (i.e., ambulance chasing)?

If you subsidize something, you get more of it. Including unreasonable litigation over what was originally meant to be a law about "reasonable" accommodations.

Previously:
–From the Archives: Is the eHarmony eLawsuit eFrivolous?

The family of slain Oxnard eighth-grader Larry King has filed injury claims against the Hueneme School District and the County of Ventura, alleging their failure to protect the boy led to his death.
…
The county's risk manager, Chuck Pode, said he expected to reject the claim. King was a ward of the court and living at the Casa Pacifica shelter for abused, neglected and emotionally troubled children at the time of the shooting.

The notice of claim (a precursor to a complaint against a government entity) is riddled with inaccuracies and absurdities: Most notably, King was not a cross-dresser and was never granted an exception to the school's dress code. The shelter where King was staying had no classroom facilities, despite the parents' insistence that he should not have been — gasp! — enrolled in school. The fact, mentioned in the notice, that King was in a shelter rather than a foster home had exactly nothing to do with his being gunned down by a fellow student. And so on.

Did I mention that King's parents abandoned him? And now they turn around and sue the same government that cared for him while the now supposedly distraught Ward and June were off doing who knows what? The mind reels.

One thing is not surprising: The parents' lawyer, Steve Pell, is apparently a notorious media-chasing plaintiff's lawyer, according to several commenters at the news site — a "back of the phone book" lawyer, according to one description.

Also not surprising: King's parents are not suing the parents of King's alleged killer, Brandon McInerney. You don't have to be a back-of-the-phone-book lawyer to know the deep pocket rule.

—

The notion that none of this would have happened if only Larry had been "less gay" shows just how persistent the notion of "gay panic" remains (as the recent controversial Newsweek cover story about King so sadly exemplifies). The idea that the school or child welfare authorities had a duty to coerce Larry into suppressing his identity "for his own good" and that they should now be sued — not for failing to detect a disturbed and potentially homicidal maniac in their midst, but for failing to quash an innocent teenager's personality before it even fully develops — shows just far we still have to go.

Previously:
–"Police Have Not Alleged a Motive for the Shooting…"
–"Only 18%"
–Stereotypes Then and Now

Court fees around the country are on the rise. In some states, including Florida and Kentucky, the increases are prompted by state fiscal crises.
…
Faced with a budget crisis, Florida has raised its filing fees to among the highest in the country: $300 for most civil cases, $397.50 for divorce and $270 for eviction actions. Florida does not, as do other states, waive civil filing fees for indigent litigants. Instead, court clerks negotiate payment plans with those unable to pay up front — and add a surcharge for paying over time.

Florida is also putting the squeeze on criminal defendants, most of whom are indigent. Those who cannot afford their own lawyer must pay $50 to apply for a constitutionally mandated public defender. If convicted, they face assessments for the costs of prosecution and defense regardless of their ability to pay. These charges are added to other assessments.
…
Perhaps the worst feature of Florida's court fees is the fact that only 61% of the new fee collections will go toward funding courts, prosecutors and public defenders, according to a recent news report. The rest will go to the state's general revenue fund.

I think we can set some outer bounds on the question: All user fees — including court fees — should be exactly that: user fees. They should fund the office or agency imposing them — and nothing more. It is wholly illegitimate to use a courthouse — or a DMV or a business permit bureau or a dog licensing office or any other fee-based part of government — to raise revenue for any other purpose than itself. A traffic ticket is a penalty; a drivers license is not. The former can legitimately exceed the cost of the apparatus behind it; the latter cannot.

In the case of court fees, Florida's "39% going to the treasury" is indisputably illegitimate and immoral. On that I do not think reasonable minds can disagree.

As for the 61% that stays in the courthouse, I think some mechanism for guaranteeing access is absolutely mandatory. "Loser pays" might be one approach, at least in the civil context. Likewise, a criminal defendant who is never convicted of anything surely cannot be required, in a just society, to actually pay the government anything. A guilty defendant, on the other hand, should be required to contribute, to whatever extent is not unduly burdensome, to the cost of the justice administered to him.

Finally, regarding that $50 "public defender application fee," I can't possibly imagine how such a fee is constitutional. I realize that criminal procedure is peppered with exceptions to traditional constitutional protections for minor offenses (e.g., no jury trial for a traffic infraction), but in those circumstances where you have a constitutional right to a public defender, then it follows axiomatically that you have a right to a free public defender. Otherwise the whole concept — "Can you afford your free lawyer?" — becomes a Kafkaesque absurdity.

"Taxation without representation" is a principle of history, not constitutional law. Point conceded. Still, if it is fundamentally wrong to charge people who seek redress at the polling place, then does it not follow that it is fundamentally wrong to charge people to seek redress at the courthouse?

(Via Tax Policy Blog.)

—

A quick sidebar, sorta kinda related:

Can we stop it with this "voluntary tax" nonsense already? If you put your groceries in an unapproved bag, the government forces you to pay the fee, so it's not voluntary. By Conlin's logic, sales tax also is voluntary (you don't have to buy stuff), as are alcohol and tobacco taxes (you don't have to drink or smoke), air travel taxes (you don't have to fly), gas taxes (you don't have to drive), property taxes (you don't have to own a house), and income taxes (you don't have to make money).

And I suppose you don't have to go to court to seek a civil remedy when you believe you have been illegally harmed by another. But shouldn't you be able to do so without worrying whether the price of justice is beyond your means?

A man and his pregnant fiancée are demanding $10 million from the Bronx Zoo after being stuck on a cable car for five hours above fang-baring, flesh-eating baboons.

"They didn't know if they were going to live or die," said lawyer Adam Shapiro, who filed the lawsuit yesterday.

Damien Foster and Nandi Taylor say they suffered "psychological trauma" and that Wednesday's ordeal put the pregnancy at risk.

Three dozen people were stranded on the Skyfari cable-car ride until about 11 p.m. amid lightning.

You know as well as I do that the lawsuit most likely is, and the damage request definitely is, utterly ludicrous. Not every hiccup in life is a cause of action, not every mechanical failure is negligence. Not every "trauma" is particularly traumatic.

What you might not know is this: Baboons are (generally) vegetarians.

Are we still stuck up in the "$10 million air"?

P.S. For those who don't get the intro, see here.

The lawyer representing the family of a teen who was decapitated by a roller coaster in Georgia is looking to find out if they can file a lawsuit against Six Flags Theme Park.
…
According to the lawyer's investigation it's been discovered that the teenager isn't the first person to be killed by the same roller coaster.

Police in Georgia are ruling out reports that Ferguson had been trying to retrieve a hat inside a restricted area near the Batman Ride at Six Flags.

Compare and contrast from two days ago:

The elder Ferguson said his son was a rising high school senior who was active in his church and planned to join the National Guard and attend college. The trip to Six Flags was an annual event for the church Sunday school. "We're not clear on what happened," he said. "All we know is that we don't blame anybody."

Of course, there is actually no lawsuit — yet. And why the "retrieving his hat" theory was posited in the first place, let alone discarded, is unclear.

What is clear is that any lawsuit would, in the absence of some specific Georgia statute or precedent to the contrary, be utterly frivolous.

What cause of action could possibly apply here other than negligence? ("Attractive nuisance" is flunk-the-final wrong — the lack of a fence is a potential attractive nuisance, not the presence of one.)

Negligence is, as we all know, duty-breach-causation-injury.

Duty? Yes.
Injury? Yes.
Breach? Of course not. (And hence no causation.)

What more, exactly, besides two six-foot fences and unambiguous warning signs should a reasonable jury demand of the park?

Thus spake the family's lawyer: "The fences were only six feet tall."

Thus spake a law professor: "But it's hard to see what more could be expected. Razor wire? A shark-infested moat with … lasers?"

And don't forget the affirmative defenses: either comparative fault or assumption of risk — you can frame it whichever way Georgia law accommodates.*

How sad to see tragedy made worse by farce and greed masquerading as law and justice.

More thoughts and some updates from TortProf.

—

*Not that it really matters, but some quick Googling suggests that Georgia is, like my own state of New York, a "modified 50% comparative fault" state, meaning that even if the park could somehow be shown to be (partially) at fault, the family would still have to show that the lad was less than 50% at fault for his family to recover any judgment. Implausible in the extreme.

In the lawsuit, the parents allege that Texas resident Kiley Ryan Bowers, now serving a nine-year prison term in California, "utilized the site to contact, seduce, meet, assault and then harass and torment" their 15-year-old daughter, Kristin Helms. Bowers pleaded guilty last year to two counts of interstate travel to have sex with a minor and transporting child pornography. Helms committed suicide while an investigation against [Bowers] was pending.

The parents allege that MySpace should be held liable, and sued both Bowers and the site. "MySpace provides a ready means for sexual predators to easily gain direct access to young, innocent children that those predators would otherwise have no ability, or a substantially decreased ability, to locate or contact," the suit alleges.

It may well be true that MySpace "provides a ready means for sexual predators to easily gain direct access to young, innocent children" (we'll leave aside the gratuitous use of the word "innocent" and stipulate that the sexual intercourse between the two, while clearly not forced, was also not strictly "consensual" given the girl's age).

But "providing a ready means" is simply not a tort. Where, exactly, is the negligence by MySpace? Putting aside the pesky provisions of the Communications Decency Act (i.e., that insulate Internet sites from liability related to content posted on them), basic negligence law requires that a duty existed and was breached for there to be liability. What, exactly, was the duty owed by MySpace to Helms or her parents?

Was it this?

MySpace recently agreed to implement measures aimed at protecting youngsters on the site, including banning known sex offenders from the site and setting defaults on the profiles of teens to "private," so they can't easily be accessed by strangers.

Just two problems: (1) Bowers wasn't a "known sex offender" at the time (he certainly is now); (2) they didn't meet on MySpace — they met via Yahoo! IM and migrated their online contact to MySpace after the fact (i.e., Bowers was not a "stranger" to Helms when they started interacting on MySpace).

More:

They [her parents] took away her computer, shut down her MySpace.com profile and forbade her to contact Bowers. But Kristin Helms secretly communicated with Bowers, calling him behind her parents' back and using school computers to contact him.

Curious that the parents are not suing the school. That would be a far more viable negligence claim (it is trivial to block a website on a computer).

In any case, not every tragedy is a lawsuit, not every party involved in a criminal act is a criminal and not every party in a tortious act is a tortfeasor. The parents should certainly feel free to pursue Bowers to the fullest extent the civil law allows. But MySpace simply isn't responsible, any more than the store that sold Bowers the shoes he wore to his meetings with Helms or the station that sold him the gas he used to drive to her.

—

Meanwhile:

A federal judge in New York ruled on Tuesday that a lawsuit contending that an NBC television series on pedophiles had played a role in the suicide of a Texas prosecutor two years ago could move forward.

The decision was a defeat for NBC Universal, producer of the "Dateline NBC" series "To Catch a Predator," which had asked the judge this year to dismiss the lawsuit.

The $105 million suit was originally filed in July by Patricia Conradt, the sister of Louis W. Conradt Jr., an assistant district attorney in Rockwell County, Tex., who shot himself in November 2006 as he was about to be arrested by the police and accused of trying to solicit a minor online.

The alleged tort is the infamous "intentional infliction of emotional distress," which is always a thorny legal question that can vary widely from state to state. Another fascinating claim that the judge did not summarily dismiss is that NBC staff essentially became "state actors" — de facto police — and that the Fourth Amendment therefore applies to them (for example, a SWAT team was deployed even though the suspect had no history of violence — was that done for NBC's cameras, and was it constitutional?).

Stay tuned. (No pun intended.)