The Ultimate Resolution

by Dave Sullivan

  "I didn't know you could land a helicopter on the island," said Jake.

  "Neither did they, but they landed it right on the beach there by the dock on the east side, the way Simpson tells it," said Bert.

  "The kid was driving the tractor pulling some logs to the cabin site, when the tractor just flipped over backwards on him and crushed him." Bert put down his coffee. "Bill Simpson was there and saw it. Said it happened so fast nobody realized anything 'til it was over."

  Stanton asked, "How badly was he hurt?"

  "He's in terrible shape. Paralyzed and he's brain damaged. He'll be in an institution for the rest of his life...and only nineteen years old at the time."

  "The facts give rise to a variety of legal issues with fascinating possibilities and the extent of the injury certainly establishes a potential reason to explore those issues," the professor's legal mind was working, analyzing issues, "but of course...,"

  "But of course," interrupted Jake, "the question is why Mrs. Pallmeyer has or thinks she has a legal problem. As Charles indicates, a variety of legal issues are presented, from questions of legal guardianship to workers' compensation and social security and so on. Why does she - or why do you - think I can be of help?"

  "Well, it's all kind of complicated," Bert answered. "To really make it simple, Sarah Pallmeyer has horrendous medical expenses that will continue for her son's life, past her own, and she has no insurance or money to pay them."

  "What about worker's compensation?" said Jake. "He was on the job at the time of the injury."

  "I'm not sure about the details of all this." Bert turned and rested a thick forearm on the brass winch behind the cockpit seat. "As I understand it, the kid was working for a small outfit from Minneapolis with an office in Duluth. One of those deals where a contractor puts his business in his wife's name or shows her as president and then gets preference on federal jobs. Anyway it turns out he has no worker's compensation insurance and he's since gone out of business."

  "What about regular hospitalization insurance?" Stanton asked.

  "The Pallmeyers are divorced. The kid was living with his mom and going to college in Duluth. He was always covered under his father's insurance but apparently the company said he's covered through age nineteen if he's living at home and going to college but it has to be the father's home."

  "Sure, the home of the named insured," said Jake. "The company obviously doesn't want to be faced with these medical costs and it sounds as though a plausible out has been found."

  "Anyway, she has talked to lawyers about the worker's compensation insurance and the medical insurance problems. They've given her opinions and may still be working on some angles on those questions but it doesn't sound like it looks too good."

  "So what does she want us for?" Jake cast a glance at Professor Stanton and thereby made him a partner in this enterprise.

  Stanton looked back with raised eyebrows.

  "Well, she's mad about the tractor and doesn't think a tractor that would do that should have been around for her son to be using. The lawyers she's seen have said the tractor is too old and that they are not in a position to handle a case about the tractor itself."

  "Aha!" Stanton spoke. "That boils it down to a products liability claim, short, sweet, and in this case, apparently quite difficult, I surmise, from the skeletal facts we have."

  "Products liability," he continued, "the assault on and later the fall of the citadel as Dean Prosser called it; the elimination of the need for finding fault or at least negligence in products cases and the development of strict liability in tort for defective manufactured products. How often I taught the subject and how often it changed as I taught it."

  "How often it changed after you taught me," Jake said, "and it still keeps changing."

  "Of course," Jake added, "if this tractor flipped over on young Mr. Pallmeyer because of some defect in design, it is still a negligence case and not a pure strict liability case like an exploding bottle case with a defect in the glass even though the company was careful in its inspections and therefore free from negligence. There strict liability imposes liability without negligence. Here, if the design was bad, someone was negligent and proof of negligence is the same as always."

  "True," Stanton replied, "but the development of strict liability or products liability law over the last thirty years has certainly made courts and juries more receptive to this type of negligence case. It is a products case."

  "No question about that," said Jake.

  "And the proof is certainly different and more complicated than a lot of other negligence cases," Stanton said.

  Bert Hanson smiled. He'd done a fair amount of fishing in the Apostles and caught a fair number of trout and salmon over Oak Island Shoal just north of where they now lay at anchor. But never had he set the hook as successfully as he had with his two friends in the last few minutes. They were talking of issues of law like two new lawyers on their first case.

  Sarah Pallmeyer's parents had a summer home in Bay Harbor. Bert had known the family for a long time. She had a real problem. Bert knew that his friends were not just any old lawyers, but were studied and experienced in this legal area. He wanted them to want to help her. At this point he certainly had their interest.

  "Just how old was this tractor," Stanton stared at Bert, "and who manufactured it?"

  "I think it was an old Cherokee. I don't know just how old."

  "There certainly are a lot of facts needed to make a proper analysis," said Jake. "We don't even know if the tractor itself is the cause of the flip-over or exactly how it was being used at the time."

  "Will you see her, then?"

  Jake immediately wished he had not shown such interest in the issues, for interviewing and advising clients at this point was not in his plan. What plan? he thought, Oh, what the hell.

  "If there is a convenient time, I guess we can at least talk to her." Again he shot a glance at Stanton whom he included in "we". Again Stanton looked back under raised eyebrows, though he would have wanted it no other way.

  The three finished their coffee and retired to their respective bunks as Resolution rested easily in the calm waters in the lee of Oak Island's rising clay banks.

  The coldness of Lake Superior shocked Charles Stanton as he bathed on the little sand beach the next morning. Perhaps he was too old to really adjust to the frigid water temperature. Bert Hanson would go in like he felt nothing. On the other hand, Stanton noted with some comfort, Jake was usually fairly slow to get in and he'd been swimming in the lake all his life.

  Stanton was alone as he soaped and rinsed. He'd awakened before the others, put on water for coffee, put on his swimming suit and brought the dinghy to shore for this tortuous bath. He looked out at Resolution lying at anchor. She was a beautiful sight against the blue water of the lake and the lush green of Otter Island's forest in the background.

  He stood on the sand beach on Oak Island's north shore tucked between red rock outcroppings and high clay banks. Stanton thought about the late night discussions before bed last night on the boat. He'd seen an interest in Jake that had been lacking for some time. He wanted to encourage it, but this was certainly not the case for it.

  "Taxi!"

  Stanton looked up and saw the remainder of his company had arisen and now found themselves without transportation to shore. He waved, took a final rinse, shuddered and moved toward the dinghy. He hoped they'd had the sense to make some coffee with the water he had put on the stove.

  Jake and Bert stood in the cockpit watching Charles Stanton row the white fiberglass dinghy out from shore. As Stanton approached Resolution's stern, Bert reached for the dinghy painter and secured it to a cleat.

  "Coffee?" Jake asked as Stanton laboriously raised himself in the dinghy and climbed the ladder to the cockpit.

  "Anything to warm the body after the cold of this lake. Yes, please."

  "Come on Charles," Bert grinned, "No one forced you to go swimming. No one was even awake to ad
vise. You went because it's beautiful, pleasant, and not all that cold. You love it."

  "All true, except it is every bit that cold." Stanton shuddered and smiled as he accepted a mug of steaming coffee.

  "Well, I'm ready," Jake moved to the stern rail, coffee in hand.

  "Soap and shampoo are in the dinghy." Stanton raised his cup of coffee.

  While Jake and Bert bathed on shore, the professor brought eggs, bacon and juice from the cooler and began to fix breakfast.

  After breakfast, Jake motored Resolution around Oak Island and back to her slip in Raspberry Bay. Bert went back to work. Jake and Charles drove up to Charles' house to work on the pile of firewood they were putting up to dry for next winter.

  Using a chainsaw and a heavy splitting maul, they were transforming a huge pile of hundred inch logs of birch, maple and some oak to split fireplace and woodstove lengths. While Stanton had an oil furnace, he figured that at least when he was there all the time he could heat almost entirely with wood. He liked working with the wood and he liked the idea of heating with it.

  Taking turns with the chainsaw and maul, they created a great pile of split wood. The mid-day sun shone brightly, but it was not too hot for the work.

  After a short break, they began stacking the wood in Stanton's woodshed. It was more pleasant working without the harsh erratic noise of the chainsaw.

  "Do you really think we should talk to this lady whose son was hurt?" Jake asked Stanton.

  "I don't suppose it hurts just to talk to her."

  "Sure it could hurt."

  "How?"

  "You've managed to keep yourself fairly insulated from the actual practice of law." Jake intended no insult by this comment and Professor Stanton knew it. "I don't even know if you have ever carried professional liability insurance, but I'm sure you don't now."

  Jake continued, "I suppose I'm still covered on the office policy, but in my present 'of counsel' status, I don't know. But I am sure that the agent and underwriters of the Stratton, McMasters & Hines policy don't think they are insuring a risk of me sitting up here in the Apostles giving out legal advice."

  "I see what you mean." Stanton placed a small piece of white birch on the pile he reserved for quicker starting wood. "We know it's probably a case in the damned difficult to absolutely impossible range. Even if we tell her so and choose not to become involved, we may be on the line if some other lawyer thinks it's bum advice."

  "Especially if she can't bring an action later because of the running of some applicable statute of limitations," said Jake.

  "The answer," Jake went on, "is to explain our position so she clearly understands we cannot be involved without the approval of my firm because of my current status with them."

  Later, Jake drove his Jeep back down to the harbor and returned to the boat. He rather wished he had not agreed to talk to the Pallmeyer woman. He could see it all getting too complicated. All the reasons he had left the practice of law would no doubt be present for any lawyer who attempted to help Mrs. Pallmeyer and her son.

  PART FIVE: THE CLIENT

  CHAPTER TWELVE

  Jake worked on Resolution's foredeck with a long handled deck brush, a bucket of soapy water and a can of cleanser.

  "Hello there." The soft sweet sounding voice from the dock suggested an attractive, pleasant appearing female. Jake was not disappointed when he turned around.

  "Hello," he said.

  "Are you," she hesitated, "Mr. Kingsley? My name is Sarah Pallmeyer."

  Sarah Pallmeyer stood on the dock, her blue eyes looking up at him. She smiled politely. Her long yellow blond hair was combed straight, hanging below her shoulders. She wore faded blue denims and a man's white dress shirt tied in a knot at her waist. She was tan, but Jake noticed it was the bright look of a tan recently acquired that still had a little sunburn to it as though she had been in the sun only recently. She stood about five foot six in the thick soled sandals she wore. Her figure was trim and neat, Jake thought, knowing from Bert's comments that she must be about forty or older, having a son who, although no longer mentally, was at least chronologically about twenty-one.

  "Guilty," said Jake, stepping to the rail and extending a hand towards her, "Jake Kingsley. I'm pleased to meet you."

  She took his hand and squeezed it gently. "Thank you," she said. "Bert Hanson said you might talk to me about a problem I have."

  Jake reached for the hose hanging over the life line and rinsed the foredeck. "He mentioned something to me the other day," he acknowledged, "Please come aboard."

  Jake shut off the hose, hung it over the life line and gestured back to the cockpit. He walked back and extended a hand to help her step on the boat. They sat. She smiled as her eyes looked around, taking in the hardware, equipment and teak bright work of the ketch.

  "I'm not sure where to begin," she said.

  "Perhaps I can help." Although the setting was certainly different, Jake felt the familiarity of the situation. So many times in initial interviews he had helped new clients begin their stories. But this would be different. This was not going to be an initial interview. Stanton would be present for that. "Bert told me your son was very badly injured working on Otter Island. He told us a little of how it happened and also told us that you had no insurance for the medical costs.

  "Who is 'us'?" she looked at him.

  "Professor Charles Stanton and I. He is a law professor, retired from the University of Minnesota who now lives here in Bay Harbor. He, Bert and I were anchored over behind Oak Island the other night when Bert mentioned your situation."

  "Oh, I see."

  "And that brings me to something I'd like to say. As you may know, I've temporarily or permanently left the practice of law and wasn't looking to become involved in a case like yours."

  She had come to him with a look of hope which now began to fade.

  Jake caught the change in her expression. "That is not to say that I won't talk to you. I promised Bert I would and I will. However, when we talk about the facts of your case, I want Professor Stanton with me so we can work together in analyzing your problem."

  Her look of hope returned. She smiled. "Thank you. I understand. I would like to meet your professor."

  They agreed on a time to meet for a proper interview aboard the ketch. Jake brought out cold cans of Diet Coke. They chatted about her situation and her son, but not how he was hurt or the precise details of his medical situation.

  Robert Pallmeyer was a nineteen year old college student working a summer job when he was injured. Now he resided, apparently permanently, in a nursing home, or "health care facility" as they preferred to be called these days. Because of his paralysis and brain damage, he was unable to move his legs, unable to speak and unable to understand much of what was going on around him. He needed total round-the-clock professional care and probably always would.

  "He's in Duluth. The facilities available to him at the Greysolon Health Care Facility on Park Point are excellent for his needs. His doctors are at the Lake Superior Clinic in Duluth, so they are right there available to Bobby. I live up over the hill in Hermantown, right next to Duluth, so from that standpoint it is very convenient. I used to see him every day, but after more than a year, my family insisted that I cut back and they began visiting when I didn't," she explained. "In fact, now I'm here for a month at my parents' summer home at their insistence. It's the longest ever I've gone without seeing Bobby since he was hurt." Her eyes misted. She looked like she was trying to keep from crying.

  "It's got to be very difficult, but I think your family was right sending you here," said Jake. "You have to take care of yourself as well as your son."

  They finished their soft drinks and Sarah Pallmeyer stepped off onto the dock. "Thank you," she said. "I'll see you both here day after tomorrow."

  "Any time after lunch," Jake said returning to the foredeck and picking up the hose. "We'll be here."

  Jake watched her walk down "B" Dock, yellow hair swaying across her ba
ck. A very nice lady with a very big problem, he thought.

  He resumed scrubbing the deck of the ketch and wondered whether he'd solved the problems he'd thought he had or whether, considering the Pallmeyers, he'd had any problems at all.

  "She'll be here after lunch, Friday. Why don't you come down to the boat for lunch a little before noon so we can commiserate a little further before we talk to her." Jake stood at the pay phone on the wall outside of Hanson's office looking out across Raspberry Bay.

  "Yes, I do think we should talk more about this," Stanton replied. "I'll see you then."

  It was cool Friday morning. While the sun had warmed things somewhat, the early morning shadow of Raspberry Point and a light northeast breeze kept the temperature down.

  Jake wore faded jeans and a gray bulky knit wool pullover sweater. He was, as usual on the boat, barefoot.

  "Ah, good morning to you, Jacob," Stanton beamed as he came down the dock toward Resolution. From the cockpit, Jake raised a hand in greeting.

  Stanton wore khaki pants, dark blue pullover shirt and lighter blue windbreaker. He wore leather deck shoes and over his bald head, a Greek fisherman's cap. Jake smiled. Really looking the part, he thought.

  "Lunch is coming up," he said as Stanton stepped on board.

  "Good, I'm ready. Spent the morning working on that woodpile again. This is the temperature for it. It does build an appetite."

  Jake brought out sandwiches and a cold beer for each. The cool breeze kept away the small biting black flies, so often annoying in the early summer in the Apostles, so they were quite comfortable.

  "In light of our discussions the other day," Stanton began, "I think you should set some pretty clear ground rules with this lady so she doesn't think that your willingness to listen is a guarantee that you will be able to succeed in helping her."

  "We, Remember?" Jake looked at his friend. "If I get into this, you're in it with me."

  "Jake, Jake, I neither need nor am I looking for gainful employment."