3d DCA Watch — I Believe Edition!

11-schwartz-4876056Hi kids, the concrete bunker of justice is undergoing renovations, and will soon be even more fortified and concrete-like if that’s possible.So rejoice rejoice (you have no choice)!In the meantime, the coffee must be swilled, the robes must be resplendent, the judicial wisdom must be closely rationed and dispensed only in small doses and only on Wednesdays and — oh yeah — Judge Schwartz must on occasion dissent:

Prebkevitz v. Velda Farms:

This case involves a collision between a 15-year old daughter and a Velda Farms trucker on the way to work at 2:30 in the morning. Tragically, the daughter died in the accident and her mother, as personal rep, sued for wrongful death.Chief Judge Ramirez does an admirable job carefully laying out the facts of the dispute and the underlying proceedings, in which Judge Hubbart allowed evidence and a jury form question regarding the mother’s alleged negligence in failing to supervise her daughter.Judge Ramirez says this is pure error:

First, the record before us is devoid of any evidence of negligence on the part of Probkevitz. The uncontroverted testimony at trial established that: Probkevitz was asleep when Denise left the apartment; on the night of the accident, Probkevitz went to bed after dinner, and Denise and Laelani were still up; and Probkevitz discovered that Denise had left the apartment after a loud boom woke her. In addition, any evidence of previous instances of Denise’s driving with a restricted license in violation of the license restrictions, and Probkevitz’s knowledge of those driving instances, is irrelevant to show any negligence of Probkevitz on the night of the fatal crash. There is thus no negligence that could be attributed to Probkevitz so as to establish that her failure to supervise Denise caused the accident or Denise’s death.

Because of this and because the trial court excluded the rebuttal testimony of a plaintiff accident reconstruction expert on the basis that it was cumulative, the 3d reversed and remanded for a new trial.Judge Schwartz, however, dissents:

Under the circumstances of this case, in which I believe the evidence overwhelmingly supports the jury verdict that the defendant-driver was not negligent and that the only cause of the accident was the negligence of the decedent-driver, I disagree that there was either error or harm in the rulings criticized by the majority. I would affirm.

Quick question — are appellate judges supposed to start their legal analysis with who they believe is right on questions of ultimate fact?

Also, wasn’t the issue whether or not the mother was negligent and whether evidence should have come in as to the mother’s alleged negligent supervision?

(I guess he’s trying to say any error is harmless?)

Who knows –I report, you decide.