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Monday, August 15, 2005

Common sense prevails... for a change.

There is a court called the 10th Circuit Court of Appeals. It's a federal applellate court deep in the Heart of Red States, in this case Kansas. From there came some legal common, or maybe uncommon, sense. The case is Louise Sawyer et al v. Southwest Airlines.

Two African American women were traveling from Las Vegas to Kansas City, returning home no doubt after attending some activity to broaden their minds and/or spirits. They were late checking in. They were put on standby, and as fate would have it, there were seats available and they were boarded at the last minute. The flight attendant in an effort to get everyone seated so the plane could push back from the gate said, "Eeenie, meenie, minie moe, everyone take a seat we've got to go."

Well!!!!

Of course the women sued.

As they were indigent, a lawyer was appointed to represent them. (Indigent? Traveling from Las Vegas? Well, never mind.) That lawyer, as it turns out, was a former clerk to the trial judge. The plaintiff's no doubt thought they had won the lottery, at least until the judge renedered a summary judgment in favor of Southwest. At that point they accused the judge of judicial misconduct for not recusing herself, no doubt on the theory the their lawyer, the judge's former clerk, swayed the judge in favor of the defendants. Not sure I get that one.

Then there is the matter of appointing a lawyer in a civil proceeding for damages. Perhaps there is provision for such in 42 USC 1981. If there is, there shouldn't be. Frankly, the plaintiff's bar, and I am a member in good standing, is not one of my favored charities. Anyway, no lawyer apparently would touch the case, so guess who paid?

Moving right along...

Their suit was basically sounded in the theory that their feelings were hurt as the rhyme had a racist history (which obviously it did, but there was no showing the attendant was aware of that). Never mind there was no physical harm. Never mind there was no intent to hurt anyone emotionally or physically. Never mind there is no logical nexus between what was said and the hurt feelings. By golly, their feelings were hurt and someone was going to pay.

Which brings me to my main point.

Since when does the law protect you from hurt feelings? Since when are hurt feelings actionable? Where did this idea get started?

We are entitled to be protected from drunk drivers who kill our family members. We are entitled to compensation when someone slanders our good name. We are entitled to compensation when we are physically injured by someone else's negligence etc. But hurt feelings? One's feeling could be hurt by anyone at anytime by anything.

We have a culture of victimhood. Everyone is offended by something. Only last week the NCAA all but banned the use of Native American themes as symbols of college athletic teams. Why? Because someone might be offended, ergo: they might sue, and it is that threat that brings about some really stupid decision making, like telling the Fighting Illini they can no longer use that nickname.

Someone, somewhere needs to take a stand for commonsense and not be blackmailed by the threat of suit. Cudos to the 10th Circuit for taking a stand against this madness. Cudos to Southwest for fighting this one out and not taking the easy route of buying the plaintiffs off with some small settlement.


Michelle Malkin
covering as well, as is OverLawyered.com

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