Annals Of Michigan Justice-only A Newsboy

Posted on January 29, 2008 - Filed Under Legal and Law

Only a Newsboy,
One of a countless throng,
Only a waif on the tide of life,
That restless flows along.
Only a newsboy.

Lyrics from the song: Only a Newsboy, 1898.
Words by Arthur J. Lamb, Music by John S. May

(Though actual names are not disclosed, the facts contained in this piece are taken from a casefile in our office, and have not been altered in any way. The case is an active one in the office, well it was until last motion day.)

Lewis Cramden was 61 years old in late December of 2005, when he suffered his injury. Classified as a “slow learner” as a child, he did not finish high school. On the date of his accident, he lived with his wife and 39 year-old daughter, in a house where they had resided for 33 years. The daughter had been born with a mental impairment, and it was up to Lewis and his wife to care for her, as well as to provide a home for themselves.

Lewis, with limited job skills, made his living home-delivering newspapers. Lewis had done this work for 7 years, but was not classified as an employee of the companies whose papers he delivered. Considered an “independent contractor”, he was not covered under the Michigan Worker’s Compensation Act, should he be injured in the course of his employment. Mrs. Cramden worked two jobs in December of 05. She worked both at Farmer Jack and in addition worked part-time at the drive-through window at a local McDonalds.

While papers were usually left on the driveway of the house, customers could direct another means of delivery. The Brauns, were one of Lewis Cramden’s customers in late December of 2005. They wanted their paper placed behind the storm door on their front porch. Lewis Cramden always delivered the paper as they directed.

A few days before Christmas, 2005, Lewis Cramden, 61 year old newsboy, came to the Braun’s house to deliver to the Brauns their newspaper, in the manner they had directed. He was wearing heavy boots that day, the kind you wear when you shovel snow. While delivering the paper, Lewis Cramden slipped and fell on ice, and fractured his ankle. He underwent surgery between Christmas and New Years, and needed metal hardware implanted in his ankle to put it back together. In the intervening year and one-half, Mr. Cramden attempted, six months after his accident, to go back to his newsboy job. He lasted one hour. He has not been able to attempt work since. In early 2006, Lewis was to start a larger paper route, and also start delivering the Wall Street Journal. This would have meant more money for the Cramden family.

Though clearly injured in the course of his work, as an independent contractor, he was excluded from worker’s compensation benefits. He and his wife have lost their home of 33 years due to the loss of income. They still take care of their daughter. She still works at McDonalds.

Lewis had never been injured before, and had never been party to a lawsuit. He brought a claim against the Brauns for his injuries. The ice on the porch steps was clear, and Lewis had not seen it before he fell, though he had been looking where he was going, including down at the steps. He felt the ice as he was laying on the ground where he had fallen. The sidewalk leading to the porch did not appear to be snow or ice covered. It was cold outside, as it often is in December. The paper had not, however, suspended offering home delivery during the winter months. And the Brauns did not change their delivery instructions to allow Lewis to leave the paper on the driveway in winter, so he would not have to leave his car.

As previously stated, Lewis felt ice with his hand on the steps after he fell. All the other concrete in the area, and on the driveway appeared dry.

There was evidence that there had been a leak from the gutters of the Braun home onto the porch and steps for some time before the accident.

No witness in the case ever testified that there was any ice visible on the porch or steps that day. Mr. Braun, coming out of his front door after the fall, told Lewis Cramden that he should be more careful. He did not offer any assistance.

Those who have never been injured in an accident in Michigan may not know that the Courts of this state do not look favorably on injured citizens who attempt to recover their losses after an injury. This situation has existed for over a dozen years. It started when a group of judges, most of whom were first appointed, rather than elected, to their positions, sought to take away from the citizens of this state, the right to present their claims, their stories, to a jury made up of their fellow citizens.

What does that mean, you might ask? Well, in the Halls of the Mighty it was determined that the citizens of this state could not be trusted to sufficiently protect the profits of corporations and insurance companies if they were allowed to hear cases like Mr. Cramden’s, and decide if he was entitled to recover for his injuries from the Brauns. The rules already made sure that a jury would not know that the Braun’s were insured, and that did seem fair. However, that was not near enough. The system should make sure that a jury never knew Lewis Cramden and his claim ever existed. A jury might rule that Mr. Cramden had no claim. But, they might rule that he did. They might award damages to Lewis Cramden. Those damages might pay his medical bills and save his house, but they might also reduce insurance company profits. Best to control the process by making sure that the deck is stacked so a jury never hears anything.

So, there have been a string of decisions which take away cases from the jury, and allow judges to dismiss cases outright.

So, what happens to Lewis Cramden, our newsboy, now that he has found himself, all unwillingly, a part of this system. He is steamrolled.

He falls on clear ice that no one ever testified was visible to him before his fall. There is evidence that the ice would have formed due to a preexisting leak from a gutter over the Brauns’ porch and porch steps. The Brauns required that Lewis come onto their porch to deposit the paper inside their door. If he refused to get out of his car because it was cold outside, no doubt the Brauns would have complained. If he refused to deliver to all customers giving special instructions, presumably he would have lost his job. And Lewis Cramden needed his job. He was not a corporate CEO. Most of us aren’t.

How is Lewis Cramden thrown of court? Does the defense argue that the Brauns could not have known about the ice? After all it was clear, invisible in fact. No. Did the defense argue that the ice was visible? No.

Lewis Cramden was thrown out, because the Court ruled, as a matter of law, that the invisible ice was “Open and Obvious” to Lewis so the Brauns had no duty of any kind to Lewis. Even if they knew about the leaky gutter for years before, they had no responsibility. Even if they had slipped going into their house earlier and had done nothing to remove the ice, they had no responsibility. In fact the result would have been the same if they had thrown a bucket of water on the porch before Lewis came, knowing he was coming, and had, for good measure disabled the fuse for the porch light.

How, one might ask, is an invisible condition open and obvious to someone merely doing his job as his customer required? How does someone protect himself from a danger that is invisible? How does one make a living in Michigan after the first frost? Good questions. The answers, provided by Michigan Courts don’t sound so good, however. Mr. Cramden should expect ice everywhere in Michigan when it is cold. So should we all. At all times, and in all places, visible and invisible, with not much liberty and certainly less justice for us all.

If the ice Lewis fell on was invisible, by all the evidence presented to the court, what was Lewis to do to prevent the injury he suffered. Again, Michigan Court cases provide some odd answers. The first is: Avoid injury by not getting injured. I am not making this up. Secondly, you must avoid injury by not exposing yourself to dangerous conditions. As any time the temperature drops below 32 degrees we are to expect ice everywhere, the only prudent course is never to go out when it is cold, or rainy or dark. If you do, you only have yourself to blame for the consequences. Literally. Finally, avoid injury by refusing to do your job under conditions, when it is cold, or dark, or rainy or etc.

You citizens of Michigan can follow those simple and reasonable rules, can’t you? You can earn a living, raise your children, buy food and clothing for your family, can’t you? Well you have to. Because in this state, even in the case of admitted negligence, you must guarantee you never get hurt. It is only your fault if you do. As you can see, Lewis Cramden’s injury was no one’s responsibility but his. Now Lewis, with his limited education might not understand how that makes sense or is just. Well, I have a great deal more education than he, and I don’t understand it. It doesn’t make common sense. But if control of the system of justice to insure the profits of insurance companies and corporations is the goal, perhaps it does.

If Michigan citizens seeking civil justice feel like Saxon peasants in an old Robin Hood movie, and their courts the Norman nobles, they may be forgiven. That would be the Errol Flynn Robin Hood, not the Kevin Costner version.

Michael Butler is an attorney in the Detroit area. He can be reached through http://www.Attorneybutler.net

Tags: court, injury, justice, michigan, obvious, open

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