By Rick Armon

(July 28, 2003) — As Donna Brown backed her van into a parking space at the city-owned Genesee Crossroads Garage downtown, she heard a crash.

A bracket hanging low from a pipe had punctured her rear window and damaged the ceiling of the vehicle.

This accident, obviously, was not her fault, she thought. Where were the warning signs?

She became more irritated when a parking attendant told her this happened all the time.

Brown, determined that she shouldn’t have to pay to fix her van, filed a legal claim against the city, asking the government to reimburse her for the damage.

In the end, after a lengthy fight, she won $1,504.

Legal claims trickle in every day against municipalities across the country.

A slip and fall. A traffic accident involving a worker. In more serious cases, police brutality or charges of racism.

Today’s litigious society — spurred on by lawyers advertising big payouts on TV and billboards — isn’t afraid to challenge local governments in court and, in some cases, try to shake them down for a little money in what many would consider frivolous cases, say municipal experts.

They call it a growing problem that needs legislative reform, as state, town, city and school legal teams are increasingly busy defending against both legitimate and frivolous claims.

And, they add, that at a time when all governments are struggling to balance their budgets, the money used to pay off and defend claims and lawsuits could be much better spent.

Last year, despite its massive deficit, New York City paid out $525 million. Rochester paid $443,464; Monroe County, $253,000.

“ It’s a huge problem. It’s every city and every county and every arm of government,’’ said Mark Alesse, state director of the National Federation of Independent Business in Albany and chairman of the group New Yorkers for Civil Justice Reform.

“ To the trial lawyers, governments are seen as the ultimate deep pockets. Juries see it that way, too, and they don’t think about whether that government is responsible for the incident, but whether it can pay. It’s turned into an insurance program for those lucky enough to get into the court.”

Trial lawyers don’t agree. While they acknowledge that there are some frivolous claims and suits filed, the overwhelming majority help expose negligence and correct problems that otherwise would be swept under the rug, they say.

Municipalities also dump on trial lawyers and make them into scapegoats, when in actuality they play an important role in the checks and balances system of the government, said Paul F. Shanahan, a Rochester lawyer who has served as an officer for the New York State Trial Lawyers Association.

“ I don’t see any crisis,’’ he said. “ There is no statistical evidence to show that municipalities are being unfairly punished by juries or that verdicts have gone up against municipalities.”

City’s suits

Several high-profile claims and suits filed against the city of Rochester within the past month have highlighted the issue locally.

For instance, the city has been sued or been put on notice of being sued by a former police officer convicted of sexually molesting women (he blames the city for poor training), the People for the Ethical Treatment of Animals for a flap over a fiberglass elephant (it wasn’t installed when the group wanted) and the School Administrators Association of New York State over a new law adopted by council that bars city school employees from serving on council or as mayor.

Several claims also have been filed by insurance companies and a trucking company over a fiery accident on West Ridge Road earlier this year that involved a truck driving off the road and bursting into flames, killing one woman and destroying several homes. Those companies blame the accident on the city, saying the roadway is poorly designed — although West Ridge is a state road.

In the 2002-03 fiscal year, which ended June 30, 491 claims were filed against the city, close to the annual average of about 500. Since 1997, Rochester has paid out $6.58 million.

The claim process is simple enough that people don’t need a lawyer to file one — evident by the fact that some claims are simply handwritten on notebook paper. The city’s Law Department even hands out instructions, indicating that claims must be turned in by certified or registered mail or in person. There is no filing fee.

Those claims cost money, as municipal attorneys investigate them and try to weed out the legitimate from the frivolous ones. The vast majority, whether brought by an attorney or by an individual, never blossom into lawsuits for one reason or another.

“ You need a staff just to manage them,’’ said Buffalo Corporation Counsel Michael Risman, whose city averages about 700 claims and pays out between $700,000 and $900,000 annually. “ We take every one seriously, even the minor ones, because we don’t want to pay anything improperly.”

Buffalo spends about $50,000 a year alone for depositions on claims and lawsuits, he said.

Henry Underhill Jr., general counsel and executive director of the Washington, D.C.-based International Municipal Lawyers Association, said municipal attorneys must vigorously defend cases and not settle. Otherwise, they risk being seen as easy targets, he said.

“ There’s nothing you can really do if somebody wants to file a suit,’’ he said.

Blame game

Rochester Corporation Counsel Linda Kingsley said many claims are frivolous and a waste of taxpayers’ money. Some are simply the result of people looking to blame anyone other than themselves for accidents, she said.

“ It all comes down to that total lack of personal responsibility,’’ Kingsley said. “ If you looked up the word ‘ accident’ in the dictionary, there’d be a blank because there is no such thing anymore.”

She puts Brown in that category, arguing that Brown’s negligence led to the accident because she failed to look where she was going.

Obviously Brown doesn’t see it that way — and neither did the judge, she noted. Part of her goal in filing a claim two years ago was to force the city to acknowledge the problem and try to correct it so other motorists don’t have similar accidents, Brown said.

“ I just felt bad that they seemed like they were out to win and not seriously consider the problem,’’ the Churchville resident said.

Kingsley can recall many claims she considers frivolous.

As an example, she cites a claim filed by a woman whose dog was shot to death by police in 1999.

The woman said her other dog, which witnessed the shooting, deserved some compensation for pain and suffering.

Then there are landlords who file claims because the police broke down the front door of their properties during drug raids.

“ My position, unless it’s one of those very rare exceptions when we make a mistake, is, stop renting to drug dealers and we’ll stop breaking down your door,’’ Kingsley said.

Risman cites instances of people filing claims because a parking meter ate their 25 cents. And Monroe County Attorney Charles Turner recalls one of the highest-profile claims in county history — Dream Team lawyer Johnnie Cochran Jr., amid a throng of reporters, filed a claim in 2001 on behalf of a woman who said she was raped by three sheriff’s deputies.

Her allegations turned out to be false. Turner said that Cochran, after examining the facts, quietly divested himself from the case, which later died when the woman didn’t move forward.

“ It represents how some people misuse the legal system,’’ Turner said about the woman.

But for every example of a frivolous claim, trial lawyers can cite cases involving negligence on behalf of a municipality that led to someone being seriously injured or wronged.

For example, in 1998 Rochester paid a $1.25 million settlement to Betty Tyson for her 1973 arrest in the murder of a businessman visiting Rochester. She spent nearly 25 years in prison before being freed in 1998 after a judge decided that police illegally withheld a report that could have helped her prove her innocence.

Municipal attorneys often play up the silly lawsuits to sway public opinion to their side, trial lawyers say.

“ If we’re going to form public policy, at least we should form public policy on the truth rather than marketing techniques,’’ Shanahan said. “ It’s easy to say a case is frivolous or baseless if you don’t sit in and hear the facts.’’

Solutions

A 1998 study by the Public Policy Institute, the research arm of the Business Council of New York State, estimated that the lawsuit industry costs New Yorkers $14 billion each year, or almost $800 per person, and adds hundreds of millions of dollars to property taxes because of suits against municipalities.

Earlier this year, Gov. George Pataki proposed several initiatives aimed at helping municipalities, including allowing judges and not juries to hear suits and limiting pain and suffering awards to $250,000. His proposals, which were opposed by the New York Trial Lawyers Association and supported by mayors such as Michael Bloomberg in New York City, were rejected by the state Legislature.

“ We will continue our efforts to advance them forward,’’ said Joseph Conway, a spokesman for the governor.

Risman said New York needs a cap on municipal liability, as some other states such as Massachusetts and Colorado, have.

He added that one catastrophic settlement or jury award could severely damage a government’s budget.

Shanahan said that putting a cap on liability isn’t proper reform.

“ You don’t get rid of the frivolous lawsuits by giving less than full justice to someone who deserves full justice,’’ he said.

He suggested stiff penalties for lawyers and claimants who file frivolous claims, noting that professional trial lawyers won’t take baseless cases.

Kingsley said one solution is simply teaching personal responsibility.

“ The frustration is changing the American mindset that if something happens, you sue,’’ she said.