WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  October 21, 2013

Topic category:  Healthy Living & Health Care Issues

MADD Owes Heroic Erin Cox a Huge Apology

Cox was well-intentioned and acted reasonably. The school and MADD were assinine and idiotic. They owe Cox a huge apology.

In Charles Dickens' Oliver Twist, Mr. Bumble, the unhappy spouse of a domineering wife, was told in court that "the law supposes that your wife acts under your direction" and replied, "If the law supposes that the law is a ass - a idiot".

Shockingly, this time Mothers Against Drunk Driving (MADD) was asinine and idiotic.

MADD is absolutely right to target drunk driving.

But MADD was absolutely wrong to approve a school system's astonishing punishment of Erin Cox, a 17 year old high school honor student and volleyball captain who was suspended and lost her captaincy because she had responded to a call for help from an intoxicated teammate by driving to a party at which alcohol was served in violation of school rules to serve as her teammate's designated driver.

MADD President Jan Withers told FoxNews.com the school was right to come down on Cox. “Underage drinking is so very dangerous, that’s why MADD appreciates this school’s effort,” said Withers. Winters did praise Cox's intentions but said she should have called an adult. “I’m not there and I don’t know all of the details, but indeed, their efforts to prevent underage drinking through zero tolerance are admirable."

The MADD President admittedly wasn't there and didn't know "all of the details," so she should not have praised the school or criticized Cox. Cox, not the MADD President, was in the best position to decide what to do at the instant when a decision had to be made and should not be second guessed by someone who did not know the intoxicated student who had called Cox like Cox did. Had Cox told her teammate that she would find an adult to come and pick her up, the teammate might well have chosen to drive home herself and there could have been precisely the kind of catastrophe that MADD is supposed to be trying to stop.

Cox did the right thing, and MADD should be championing her cause instead of second-guessing her and lauding an arbitrary approach by a school that wrongly punished a good deed.

Cox had not been drinking alcohol, or attending the party, and a police officer who came to the party publicly acknowledged that she behaved appropriately.

Under its alcohol rules, the school system punished Cox for coming to the party at which alcohol was served to pick up her teammate.

Yes, Cox came to the party, but she didn't come to party! She came to avert an automobile accident!

MADD and the school should appreciate the Danger Invites Rescue doctrine and honor Cox instead of harassing her.

Wikipedia describes the Danger Invites Rescue doctrine as follows (http://en.wikipedia.org/wiki/Rescue_doctrine):

In the USA, the rescue doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This doctrine was originally created in case law by Wagner v. International Railway, 232 N.Y. 176 (1926), in which Justice Cardozostated "Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."

Essentially it means that the rescuer can recover damages from a defendant when the rescuer is injured rescuing someone. The defendant is usually negligent in causing the accident to occur. Other cases have occurred where the plaintiff is injured rescuing the defendant and is able to collect damages.

In Wagner v. International Railway, riders on the defendant's trains were allowed to walk between cars while the train was moving. In one incident, a rider fell through the cars. The plaintiff, trying to help the fallen rider, was injured himself. The court found the defendant liable because of negligence to allow riders to walk between cars while the train was moving.

Essentially, in its pure form the Rescue Doctrine boils down to 4 main elements - all of which must be met in order to bring it to bear for the person asserting its privilege.

There must be peril or the appearance of peril to a third party, caused by the defendant.

That peril or appearance of peril must be imminent

A reasonable person would recognize the peril or appearance of peril and the plaintiff must also have actually recognized it.

The plaintiff must have exercised reasonable care in effecting the rescue.

Succinctly stated, danger invites rescue and well-intentioned, reasonable-acting rescuers merit protection, not punishment.

Cox was well-intentioned and acted reasonably. The school and MADD were assinine and idiotic. They owe Cox a huge apology.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

Copyright © 2013 by Michael J. Gaynor
All Rights Reserved.

© 2004-2013 by WEBCommentary(tm), All Rights Reserved