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For most people at this time of year, the paintings of Norman Rockwell evoke golden summers long past. But to personal injury lawyers, they must look like portraits of potential clients. Boys swim in a pond that is clearly posted “No Swimming.” Children lean out of the window of a moving car, with no safety seat in sight. There are flimsy sports protective gear, two kids on the same rope swing, a bandaged knee from summer camp. And exactly how long have those picnic sandwiches gone unrefrigerated? Anyone old enough to practice law remembers summers when kids were much less closely supervised, padded and protected than they are today. And adults were less fearful that an injury would lead to a nasty lawsuit. All that has changed. Plaintiffs’ lawyers have taken on carnival rides, bicycles, swimming pools, jet skis, hot dogs, lawn mowers and summer camps. It is hard to find a summer activity that has not been the subject of litigation. Are we better off? Sometimes it depends which end of the telescope you’re looking through. Take Little League Baseball. An icon of summer in America, Little League has also been a poster child for litigation run amok. In debates over the federal Volunteer Protection Act, passed in 1997 to limit the liability of people who volunteer with nonprofit groups, for example, the organization’s president wrote to Congress urging passage of the bill. He worried that volunteers were being scared off by the threat of “frivolous and expensive litigation.” Insurance rates had risen to the point where Little League Baseball complained that local leagues spent more on liability insurance than they did on bats and balls. Tort reform advocates routinely point to a 1992 case in which New Jersey parents sued Little League Baseball after their son suffered a permanent eye injury from a thrown ball. On the other hand, Lance Van Auken, a spokesman for Little League Baseball, says that although the cost of liability insurance did increase dramatically for several years, the cost to insure a typical 12-year-old Little Leaguer is still only around $2 for an entire season. And, motivated by concern for the safety of kids as well as by lawsuits, Little League Baseball continually re-evaluates its rules to make the game safer. Little Leaguers are no longer allowed to make head-first slides, for example. And the on-deck circle, where players used to swing bats while waiting their turn at the plate, was recently banned. “I think Little League gets our share of frivolous lawsuits,” says Van Auken. Still, he says, insurance is relatively cheap, and kids are infinitely safer playing in Little League than in unsupervised games. I SCREAM, YOU SCREAM At the San Francisco convention of the Association of Trial Lawyers of America last year, Quincy, Mass., lawyer Peter Eleey suggested a new target to his colleagues in the plaintiffs’ bar: the Good Humor Man. Eleey was the lawyer for Michael LaPorte, a Quincy boy who was left permanently brain-damaged after a 1991 accident. Seven years old at the time, Michael had just bought an ice cream from a mobile vendor on a warm May afternoon. Ice cream in hand, he darted into the street, where he was run down by a high school student driving a Chevy Blazer. During discovery, says Eleey, he learned that similar incidents and a rash of negative publicity had prompted a federal study and a model safety ordinance, in the ’70s. Some ice cream vendors, along with a few local governments, had adopted the recommendations, cutting child pedestrian accidents. But by the ’80s, many ice cream companies had gotten out of the business, leaving the field to independent contractors, who often were less stringent about training and safety precautions. After eight days of trial, the ice cream company, International Frozen Foods, settled for $2.5 million, says Eleey. The case led a Massachusetts legislator from the LaPortes’ home town to propose a bill requiring ice cream trucks to carry a stop sign mounted on swing arms, much like the ones on school buses. For Eleey, who says that he also secured a “substantial” settlement from a school bus company in a different case, the comparison between school buses and ice cream trucks is apt. “Both school buses and mobile ice cream vendors do something that [is] unique,” Eleey told his fellow plaintiffs’ lawyers. “They invite children into the street.” SWIM SUITS Swimming-pool makers and operators are also frequent targets of summertime tort suits. According to the federal Consumer Product Safety Commission, about 350 children younger than 5 drown in pools annually. (Drowning is the No. 1 cause of death for small children in Southern California, Arizona, Texas and Florida.) Add in near-drownings, diving accidents and other poolside mishaps, and it’s no surprise that tort lawyers have often targeted pools. “We have increased safety awareness through litigation,” claims Joseph A. Swartz, of Boston’s Swartz & Swartz. Swartz points to changes in pool design intended to discourage unsafe diving — a frequent cause of paralyzing injuries — as an example of safety improvements that were made primarily to address liability concerns. U.S. Senator John Edwards, D-N.C., can point to an example of pool safety improvements driven by litigation — one of his own cases. Edwards won a $25 million verdict in 1997, before he was elected to the Senate, for the family of Valerie Lakey, a Raleigh, N.C., girl. In 1993, 5-year-old Valerie got stuck on the drain of a wading pool after another child removed the drain cover, creating powerful suction. Before she could be rescued, the drain had sucked out most of her large and small intestines. She will have to spend upwards of 11 hours a day attached to intravenous feeding tubes for life. In 1997, a North Carolina jury awarded the Lakeys $25 million in compensatory damages. Before the jury was to have considered punitive damages, the drain manufacturer and two other defendants settled for $30.9 million. Edwards said the Lakeys’ lawsuit revealed similar incidents throughout the country. “It was a very stark example of something that people in the industry knew, but that the people didn’t know,” says Edwards. The Lakey case also persuaded the North Carolina Legislature to pass a law requiring multiple drains, to avoid other such cases.

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