Monday, August 12, 2024

The Queen of Torts, She Made Some...No, Wait, That's Not It...

 So let's start here:

The Federal Tort Claims Act, also known as the FTCA, is a federal statute which authorizes private tort actions against the United States where, if the United States were a private person, it would be liable to the claimant according to the law of the place where a particular act or omission occurred. 

...

In practice, the FTCA makes the United States liable for the acts of its employees in a similar manner to any other employer. That said, the FTCA does not grant the United States liability for the majority of intentional actions of its employees and does not allow for punitive damages.

That's as far in the weeds as I'm gonna go.  Basically a "tort" is an injury, physical or monetary, for which the courts recognize a cause of action (i.e., you can sue for it) and a remedy (you can recover monetary damages).  The simple distinction is between physical torts (assault, batter, false imprisonment) and business torts (anything causing monetary damage to a business, for which incident there is a recognized cause of action).  Again, let's not get into the weeds.  "Tort" covers injuries to persons or business for which the injured party can be compensated.  Leave it at that.

The denial of punitive damages is no small thing.  Personal injury cases and wrongful death suits are torts.  The damages can include medical bills, loss of income, loss of consortium, sometimes even mental anguish.  That's expressly stated in a continuum from physical to inchoate.  Punitive damages are a separate matter.  When the defendant is shown to have been particularly egregious in their negligence, or worse in their intent, punitive damages can apply to "teach them a lesson."  I don't remember, now, the details of the McDonald's "hot coffee" case, but the woman injured suffered third degree burns from that cup of coffee, requiring extensive medical care and skin grafts, among other things.  It turned out McDonald's superheated the water for making coffee under pressure, raising it well above 212F, in order to extract the maximum amount of coffee from the minimum amount of beans.  The large damage award there was punitive damages, for such egregiously greedy conduct (spilling coffee on oneself is certainly foreseeable by the vendor of the coffee cup).  Puntive damages is where you get the "million dollar awards" that everyone talks about or, worse, tut-tuts about.  It's not usually the gift from heaven that creates a slumdog millionaire.  I've known people who won major personal injury cases with large amounts awarded.  They mostly spend their lives in a wheelchair, or worse.  There is, indeed, no such thing as a free lunch.

I have no idea that the basis for Trump's claim is, apart from the piggyback on Loose Cannon's dismissal of the MAL documents case.  Maybe he's aiming for this suit to wind up in her court, too (venue is where the tort took place, so that's a distinct possibility).  I'll get to the question of what happens if he wins the election in a minute.  Right now, the question is:  what does he think he's doing?

I'm sure Trump imagines winning millions of dollars from the government.  Well, for a variety of reasons, that's not going to happen.  First, as I said, those millions usually come, not from the tort, but from the egregious conduct of the defendant.  However, no matter how egregious the conduct of the DOJ and FBI was (in Trump's telling), it won't really matter (except to inflame the jury), because punitive damages are not allowed.  What's left are actual damages.

As I said, in personal injury cases, those damages are usually medical bills and loss of income (I'm going off the top of my memory; I'm not trying to be exhaustive, just give you an idea that actual damages are...well, actual damages.).  Let me give you a business tort example I just remembered.

Plaintiff was operating a styrofoam manufacturing business in a pre-fab "Butler" building.  The steam and humidity from the process eventually weakened the metal structure (rust never sleeps) and the roof collapsed.  He sued the landlord and all and sundry for damages to his business (loss of equipment, loss of business, loss of inventory and materials, etc.).  I worked (as a legal assistant) for the lawyer for one of the parties (I forget now the details).  He deposed the plaintiff over several months (off and on, not continuously), and walked him through the actual damages he could prove, down practically to every paper clip his company owned.  By the time discovery was finished, the actual damages he could prove was greatly diminished from the inflated amount he had started out claiming.

Actual damages have to be tied to...actual damages.  You can't use Donald Trump square footage calculations and include the value of your name, etc., etc., and the goodwill that name supposedly supplies and the market value of what you think your reputation is worth. So the question is:  what actual damages did Trump suffer?

The documents were never his to keep.  I know Tom Fitton has convinced Trump the "Clinton socks case" gave Trump custody, ownership, and control of whatever he could haul out of the White House before Inauguaration Day, but the law is exactly the opposite of that conclusion.  What was carted away by the FBI in the boxes that was personal property was returned.  Being kept apart from stuff you already had left in boxes is almost the definition of de minimus.  (From the Latin legal doctrine, "De minimus non curat lex."  "The law does not concern itself with trifling matters."  Lawyers use the term as I just did to indicate the injury may be real, but the damages are so small no recovery is available at law.)

Let me put it this way:  libel is a tort, but unless you can show actual damages, the inury to your reputation may well be de minimus at common law (most states have statutes setting out minimal damages for libel, so the suits are not necessarily pyrrhic pursuits,  Except for NYT v Sullivan, of course).  In common law cases it's not unusual for a libel judgement to lead to the judicial award of $1, for example.  It's damages; but is it worth it?

Well, you don't get damages just because you don't like what someone wrote/said about you. It may be libelous; but it's really not worth much.

Anyway, this question of actual damages vexes me, because I really can't imagine what they are in this case.  Then again, short of a libel-like action, I can't figure out what the tort is here, either.  This is not a case of FBI agents breaking down the doors of MAL at midnight and rousting everyone from their beds and pointing weapons at people, or even shooting someone because they're in the wrong building (the FBI agents, I mean).  This was conducted pursuant to court order, on a day the FBI knew Trump and family would not be at home (coordinated with the Secret Service, IOW), and done with minimal disruption, therefor, to the residents of the home (building; resort, whatever). I honestly can't figure out "Where's the beef?"  Except Loose Cannon threw out the case because a special prosecutor was involved, so the whole search was improper, so Trump deserves damages.

Here's a dollar, little boy.  Now run along and play.

It's a question of actual damages; and a question of what tort is actually involved.  Which comes down to the laws of Florida, so as to that, further affiant sayeth naught.  As noted above, that is the controlling law for what the tort is in this case.  Except there's a long road from here to the courtroom:

So, that's the first thing. This matter can't even get into court for six months.  I'm assuming Trump didn't just shoot his mouth off (like about the 4 debates, when only one is actually scheduled), and his lawyers have filed the administrative petition (I'd love to see what they're claiming as "actual damages.").  If they have, the six month clock has started, but that won't run until mid-February or so.  If Trump is not President by then, this problem does not arise: I will say, should that scenario come to pass, Trump might order the relevant government agencies to settle for an amount pleasing to him; but the court's might refuse to countenance that settlement, based on the obvious corruption involved.  Except, as Moss points out, he'd keep it out of the jurisdiction of a federal judge.  I assume that's possible, because Moss conjectures it, and knows more about this area of law than I do (which isn't hard to do, honestly).

OTOH, Trump says he's claiming $100 million in damages (no, I didn't ignore that.  I held it in abeyance until now).  Is he?  I'd like to see the filing to be sure.  I'd also like to know what that amount is based on, other than Trump's wishful thinking about how civil suits work.  I can slip and fall on a grape in the produce department of my local grocery store and claim $100 million in damages; but if I can't prove that number as actual damages, I can't recover it (set aside any claim for punitive damages I might wish to make.  In Trump's case, he can wish all he wants.  Actual damages is all he can recover.).  That's the head-scratcher to me. 

Six months from now, Trump is not likely to be POTUS.  He is likely to be fighting a criminal sentence in New York, a criminal trial in DC, the reinstatement of the MAL case in Florida, as well as the appeals of three civil verdicts in New York (the fraud case, as I've said, is pretty much a done deal on liability.  Damages may be reduced, but that's the most that's gonna happen.)  Trump will be in a world of financial hurt, IOW, with no campaign donations to pay the bills for the lawyers.  And he wants to file another suit in February, 2025?  Let me put it this way:  the man still hasn't accepted the reality that Biden left the race and the dynamics of that contest are irrevocably changed.  Even his supporters realize that; but Trump is still whinging and hoping it's a bad dream he'll wake up from.  How much less has he accepted the reality of that judgments that have fallen in on him in the last 12 months or so?  I don't think he's dealing with that financial reality at all.  And it's going to take a big bite out of his pocketbook in the months to come; especially when he's rendered a private citizen in November.

😎

The above, BTW, kind of alters this assessment:
If only because the suit Trump wants to file couldn't be filed for six months (per above). There's no legitimate reason for DOJ to shorten that timeframe just to please a few people who imagine a lawsuit and discovery would follow immediately thereafter and before November (it wouldn't.  Civil suits can move quickly, but they don't move NEARLY that quickly.)  True, this could all benefit DOJ in the long run, for the reasons outlined.  Anything Trump said in the civil suit would be admissable in the criminal case, unless Trump plead the 5th, which would pretty much screw his civil suit into the ground (how does he prove damages without saying anything?).

It's just a white-hot mess and pretty much a waste of time.  Which could well end as Andrew Weissman predicts:
That's what Trump needs: another excuse to pay damages for his own idiotic conduct.  He really is dumber than a box of rocks.
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