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This sounds like a legal case that would come from the guy who escaped from prison then tried to sue the prison because of the traumatic experience of escaping prison

this may be helpful.

https://www.law.cornell.edu/wex/negligence#.Vh6LPytmp-U

Negligence
Definition

A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct).
Overview

Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. See Restatement (Second) of Torts § 282 (1965).

Five elements are required to establish a prima facie case of negligence: the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages; and proximate cause, a showing that the harm is within the scope of liability.

See also:

The Harvard Bridge Project article on Negligence vs. Strict Liability from a law and economics perspective

A federal court will decide if they even have a case and then, if they do, decide if they'll allow the plaintiff to sue the federal government through the Federal Tort Claims Act (FTCA). This second part is tricky because if it were determined that signs were needed and employees failed to put these up due to lack of direction/training from the federal government, it's a dead case before it even starts. The federal government winds up paying millions each year through the FTCA, note millions, not tens of millions or hundreds of millions.

You can only sue the government for compensatory damages which would be lost wages and medical expenses, that winds up being a few hundred thousand bucks at most.

All of this assumes that they can establish negligence (thanks for posting the definition Fraz) but in addition to what's listed in the definition, they have to establish that the federal government is responsible through a different tint of negligence that doesn't apply to normal people.

 agnosto wrote:
A federal court will decide if they even have a case and then, if they do, decide if they'll allow the plaintiff to sue the federal government through the Federal Tort Claims Act (FTCA). This second part is tricky because if it were determined that signs were needed and employees failed to put these up due to lack of direction/training from the federal government, it's a dead case before it even starts. The federal government winds up paying millions each year through the FTCA, note millions, not tens of millions or hundreds of millions.

You can only sue the government for compensatory damages which would be lost wages and medical expenses, that winds up being a few hundred thousand bucks at most.

All of this assumes that they can establish negligence (thanks for posting the definition Fraz) but in addition to what's listed in the definition, they have to establish that the federal government is responsible through a different tint of negligence that doesn't apply to normal people.

Thanks Agnosto, thats very helpful.

 Desubot wrote:


i bet its Australian.

It is.

 streamdragon wrote:
16 pound pine cone? Holy crap. That's basically a bowling ball falling on your head. I'm honestly a little shocked he survived.

The weight made me think of one of our native trees, so I googled the botanical name. It's the Bunya pine and the cone is commonly referred to as a bunya nut. It's an Aussie tree. We have them all over the place down here. We generally have signs up warning of the danger because those things hurt a lot.

 chromedog wrote:

The weight made me think of one of our native trees, so I googled the botanical name. It's the Bunya pine and the cone is commonly referred to as a bunya nut. It's an Aussie tree. We have them all over the place down here. We generally have signs up warning of the danger because those things hurt a lot.

The original article said it was a bunya pine... And I've never seen a warning sign on one.

Stopped reading when I got to the botanical name.

And up around Cairns they have them - but they have warning signs on everything.

Crocodiles - don't swim there - or wade in the mud, either.
Sharks - don't swim there, either.
Stingers - just don't go in the water, ok?

Hmm interesting, I've never seen a warning sign for Bunyas around here.

Then again, now that I think about it, I've never seen a Bunya pine with cones that large. I'm guessing the local councils around here send people out to look out for and remove dangerously large cones.

 chromedog wrote:

And up around Cairns they have them - but they have warning signs on everything.

Crocodiles - don't swim there - or wade in the mud, either.
Sharks - don't swim there, either.
Stingers - just don't go in the water, ok?

Well yeah, but that's mostly for the tourists, since the silly buggers keep trying to swim in places that they're told not to...

 insaniak wrote:

 chromedog wrote:

And up around Cairns they have them - but they have warning signs on everything.

Crocodiles - don't swim there - or wade in the mud, either.
Sharks - don't swim there, either.
Stingers - just don't go in the water, ok?

Well yeah, but that's mostly for the tourists, since the silly buggers keep trying to swim in places that they're told not to...

Actually its for your flora and fauna. Naturally being a deathworld, the tourists fall easy prey to your bunnies and such. Unfortunately, the tourists are such a high fat meal, it could clog the arteries of said killer bunnies etc. A steady diet of tourist will quickly lead to high blood pressure, heart disease, and hardening f the arteries.

 chromedog wrote:
Stopped reading when I got to the botanical name.

And up around Cairns they have them - but they have warning signs on everything.

Crocodiles - don't swim there - or wade in the mud, either.
Sharks - don't swim there, either.
Stingers - just don't go in the water, ok?

Are the signs for the people or the Crocs,sharks and stingers lol

United States seem to have a long history of stupid lawsuits

 LethalShade wrote:
United States seem to have a long history of stupid lawsuits

And another person reads the title, then comments with "lol lawsuits" rather than realising that this man had what amounts to a bowling ball fall on his skull, crushing it to the point that it is now concave.

That isn't "my nephew hugged me and I twisted my ankle" it's "the park planted a non-native plant with dangerous characteristics, and didn't bother to inform people about the danger, resulting in someone getting injured"

 Goliath wrote:

 LethalShade wrote:
United States seem to have a long history of stupid lawsuits

And another person reads the title, then comments with "lol lawsuits" rather than realising that this man had what amounts to a bowling ball fall on his skull, crushing it to the point that it is now concave.

That isn't "my nephew hugged me and I twisted my ankle" it's "the park planted a non-native plant with dangerous characteristics, and didn't bother to inform people about the danger, resulting in someone getting injured"

lol lawsuits

But yeah, I haven't read that it was non-native. Sorry 'bout that.

 Goliath wrote:

 LethalShade wrote:
United States seem to have a long history of stupid lawsuits

And another person reads the title, then comments with "lol lawsuits" rather than realising that this man had what amounts to a bowling ball fall on his skull, crushing it to the point that it is now concave.

Or, to put it another way, this man chose to nap under a tree with what amounts to bowling balls hanging from it, and is now blaming somebody else for his failure to look up and check that there was nothing in the tree he was choosing to nap under that might fall on him and hurt him...

Again, it's a tree. Bits fall out of trees. Unless we're assuming that everybody in a given country is familiar with all of the dangerous aspects of every native plant in their country, I'm not sure what difference people think that the tree being non-native should make.

 insaniak wrote:

 Goliath wrote:

 LethalShade wrote:
United States seem to have a long history of stupid lawsuits

And another person reads the title, then comments with "lol lawsuits" rather than realising that this man had what amounts to a bowling ball fall on his skull, crushing it to the point that it is now concave.

Or, to put it another way, this man chose to nap under a tree with what amounts to bowling balls hanging from it, and is now blaming somebody else for his failure to look up and check that there was nothing in the tree he was choosing to nap under that might fall on him and hurt him...

Again, it's a tree. Bits fall out of trees. Unless we're assuming that everybody in a given country is familiar with all of the dangerous aspects of every native plant in their country, I'm not sure what difference people think that the tree being non-native should make.

This is on the mark.

What it probably means is he can't pay his medical bills and has found a lawyer who (probably for a substantial chunk of any settlement) is willing to try anything to find somebody or something who might have the money, and any technical liability to try an sue

 agnosto wrote:


Any sympathy I might have had for him was crushed by this ass-hattery:

“He’s afraid to go outside at this point because he’s afraid something is going to hit him in the head,” Johnson said. “Our priority is to institute change and help this guy out. He was doing pretty well before the accident, and now he is completely dependent and will likely need lifetime care.”

I wouldnt be so quick to call that fear unreasonable. That pinecone *did* crush his skull. Its not unreasonable to assume that it hasnt healed yet, or may never heal fully. If youd be happy leaving your house with your squishy brain free to the elements, be my guest.

Im usually against these kinds of lawsuits, but in this case, I can definitely see why the park might be at fault. They violated their own policies, didnt put up warning signs, its unreasonable to assume the tree would have presented a danger (especially if the tree is very tall, with its pinecones not visible from the ground, or if its a clump of different trees)... yeah, he should get the money. Costs for medical care and lasting damage alone should be sufficient. Too bad itll probably be used by someone else who can then sue for a branch scratching them or something like that... the legal system is just so screwed up... :/

Relapse wrote:

 insaniak wrote:

 Goliath wrote:

 LethalShade wrote:
United States seem to have a long history of stupid lawsuits

And another person reads the title, then comments with "lol lawsuits" rather than realising that this man had what amounts to a bowling ball fall on his skull, crushing it to the point that it is now concave.

Or, to put it another way, this man chose to nap under a tree with what amounts to bowling balls hanging from it, and is now blaming somebody else for his failure to look up and check that there was nothing in the tree he was choosing to nap under that might fall on him and hurt him...

Again, it's a tree. Bits fall out of trees. Unless we're assuming that everybody in a given country is familiar with all of the dangerous aspects of every native plant in their country, I'm not sure what difference people think that the tree being non-native should make.

This is on the mark.

Do you live in an area where, in a local park, it is likely that a 16lb. weight would fall on your skull? Seriously? I'm not talking middle of the woods park either, this is right on the side of the bay. You can look at the location of the park and see for yourself here with the specific location of the trees in question here; would you honestly say that if you were there you would check to make sure you wouldn't have a bowling ball fall on you?

This isn't in the middle of the wilderness where the trees are old and overgrown and likely to have branches falling off, this is a local park less than a hundred metres from the bay, where there's an expectation that dangerous branches that look like they're going to fall would be removed, or warning signs put up. I mean, the trees in question are maybe ten metres from a car park. That's not going to immediately bring giant seed pods that can crush skulls to mind.

There's enough people in that area that to not put signs up or clear the seed pods is just asking for someone to be injured.

While this is all well and good for an academic discussion, whether not this person has a viable case against the federal government depends upon a number of factors:

1. Was negligence actually present? While it's great to have internal policies, unless these policies are tied to laws, you can't sue someone for not following internal policies. That said, not following internal policies can lend credence to a suit in establishing negligence when relevant.

2. Standard of care. If you could just walk around the world and sue everyone who happened to have a tree or other natural danger located on nearby property, the courts would be inundated. Would a reasonable and prudent person sleep in a park, in the center of a large city with a known and growing crime rate? Would a reasonable and prudent person rest in a natural area without determining if any danger existed? Obviously, the park service doesn't post, "climb at your own risk" on every mountain in the US because reasonable and prudent people don't generally climb sheer surfaces for enjoyment. Campers don't need signs to examine the ground for hazardous wildlife like snakes and a reasonable and prudent person does not sleep in a natural area without looking around for things that might harm them.

3. If negligence existed, was it due to lack of training? Under the Federal Tort Claims Act, negligence can not exist due to lack of training. A federal employee is not negligent if they were not trained to do something. A case wherein such conditions exists is not allowed to move forward.

4. Will the government allow this person to sue? Great, you've established negligence and you feel that you have a rock-solid case against the park and park service. Under the FTCA, you're only allowed to sue if the federal government lets you. You could have pictures of park rangers peeing on the policy and then standing around laughing as pine cones crush unwitting park attendees but if a federal court doesn't feel that your case has merit, there's no case, no opportunity for appeal, nothing, that's it, so long, see you later.

Edit:

One other factor to consider. A great number of parks are under staffed thanks to Sequestration and anti-government movements; negligence cannot exist if there's no one there to do the work.

I have to say that I agree with peregrine on this one. All you people that are saying the guy was stupid for falling asleep under neath the tree, see below.

1: There were no warning signs telling anyone that dangerous 15 lb objects, that routinely fall, were overhead. Any construction work site will require people to wear hard hats in areas even where light tools are being used to prevent injury. ( this is a different event than the strawman, tree branch falling argument,)

2: I think it is a stretch to accuse the man of being a idiot, because he may have seen the seed pods, he may not have realized how heavy they were. It is entirely possible for someone, not in the know, to think they were hollow, and only weighed a few ounces.

3:It is reasonable for park visitors to assume that park officials, rangers, etc.etc. would do there best to keep them safe, and it isn't unreasonable to accuse them of negligence for not putting up warning signs, hardhat signs, or removing the threat.

Of course the lawyer is playing things up, with the ptsd stuff, but that's what good lawyers do in the interest of their client, to get them the best deal.

GG

“He’s afraid to go outside at this point because he’s afraid something is going to hit him in the head,” Johnson said. “Our priority is to institute change and help this guy out. He was doing pretty well before the accident, and now he is completely dependent and will likely need lifetime care.”

I wouldnt be so quick to call that fear unreasonable. That pinecone *did* crush his skull. Its not unreasonable to assume that it hasnt healed yet, or may never heal fully. If youd be happy leaving your house with your squishy brain free to the elements, be my guest.

Ironically, theres a greater risk of something falling on his head if he stays at home, like a random object falling off a shelf, than outside in the open air.

 generalgrog wrote:
I have to say that I agree with peregrine on this one. All you people that are saying the guy was stupid for falling asleep under neath the tree, see below.

1: There were no warning signs telling anyone that dangerous 15 lb objects, that routinely fall, were overhead. Any construction work site will require people to wear hard hats in areas even where light tools are being used to prevent injury. ( this is a different event than the strawman, tree branch falling argument,)

Your scenario is a strawman as well because hardhats are a legal requirement through OSHA standards, whereas there is no legal requirement for parks to place signage or for visitors to where hardhats. Again, negligence only exists if a federal employee is legally required to perform a duty and fails to do so. To look at the other side of this coin, on yours and Peregrine's behalf, there is a provision of the FTCA that allows for suit if local laws apply. So, if there is a local or state law that requires signage to be posted around trees in public parks, it would apply here as well. Again, internal policy in itself is not sufficient to prove negligence under the law.

2: I think it is a stretch to accuse the man of being a idiot, because he may have seen the seed pods, he may not have realized how heavy they were. It is entirely possible for someone, not in the know, to think they were hollow, and only weighed a few ounces.

He could be legally construed as careless if the court determines that a reasonable and prudent person would take sufficient note of their surroundings and potential hazards before deciding to sleep in a public place, he has no case. If this were to go to court, this is the tack that I would expect the defense to raise. That's the law regardless of how much people feel for his situation.

3:It is reasonable for park visitors to assume that park officials, rangers, etc.etc. would do there best to keep them safe, and it isn't unreasonable to accuse them of negligence for not putting up warning signs, hardhat signs, or removing the threat.

The Plaintiff must be able to prove that park staff were negligent AND that the negligence was not due to insufficient training on the part of the federal government. That is the only scenario that will allow this case to move forward under the FTCA.

Of course the lawyer is playing things up, with the ptsd stuff, but that's what good lawyers do in the interest of their client, to get them the best deal.

GG

He'd be a poor attorney if he didn't but he might be one anyway, the federal government's not in the habit of allowing people to sue it; cases are put forward every year and some actually are allowed to proceed and a smaller number actually win BUT most of those have to do with torts related to law enforcement rather than negligence. Please also note that even if they won, they'd only get compensatory damages for actual loss not punitive awards, that's federal law so the $5million is a tad ridiculous unless the guy's a CEO of a company and was resting while his limo was fetched or healthcare costs have really gone higher than anyone could imagine.

Also, he's a veteran so wouldn't he be receiving free medical through the VA?

That's a point, doesn't he revive free health care? So medical experiences should not be a problem.

I think there are some things which aren't covered. Its possible this might not be one of them.

He would be covered in the UK.

 TheCustomLime wrote:
I'll admit ignorance on how legal matters like this work but if organizations violate their own policies regarding safety can they found liable for the accidents that occur because of their negligence? Or does it have to be based on state law regarding safety?

Any policy is in place because of a reason, so the man might actually have a case he can attempt to bring forward if a safety policy was ignored to his detriment.

 Grey Templar wrote:
I think there are some things which aren't covered. Its possible this might not be one of them.

Are giant feth-off pine cones listed in the small print?

They really need to have signs posted everywhere that read "beware of giant nuts" that way I could steal one and hang it on my wall like a frat house decoration.