Your son has been begging you all year to go to the circus, and you've finally gave in to his demands....

As you get closer to the circus tents, you can smell the popcorn, and you can hear the strange circus music.

On your way past the gates, you're confronted by a rather annoying clown. "Man, I hate clowns." You think to yourself...

You wonder how your son can be enjoying himself, but somehow he's happy.

"Whatever makes him happy." You think. You bypass the clowns, and enter the circus tents to find a seat...

"Geez, this place is already packed." You say under your breath as you push your way through a crowd to find a seat for you and your son. "I didn't even know the circus was this popular."

Ever since Barnum and Bailey went out of business, you just assumed you and your son would be the only family here...

You finally find a spot and then turn towards the stage. "Great. More clowns." You complain.

Your son hears you and looks at you to make sure you're okay. You give him a fake smile to let him know you're great...

"Just great..." You think. For some reason, circuses have always freaked you out.

Finally, the clowns leave and a rather tall man who you assume is the circus master steps out to greet the crowd...

... The music suddenly stops, and the man clears his throat.

... Then in a loud booming voice, the man projects across the tent, "Ladies and Gentlemen, boys and girls, welcome to Zippo's Circus." This is soon followed by applause. The man waits for the applause to die before continuing.

"For our next event. We have an amazing show for you..." He pauses to draw out the suspense. It must be working because you can see some people in the crowd lean forward to take in every word. You roll your eyes.

The man then starts again at a much lower voice, almost like a loud whisper... "We bring you tonight an amazing display of man's power over beast. A wild ferocious lion captured from the heart of Africa brought here tonight for your entertainment, but don't be afraid, because this beast has been tamed by our one and only lion tamer."

The ring master then steps aside to introduce another slightly shorter man brandishing a long whip...

After the lion tamer's entrance, they then bring out a large cage which houses the largest lion you've ever seen.

"Wow. That's bigger than the lion at the Derry Zoo." You think to yourself.

However, unbeknownst to you and unfortunately the lion tamer, is that this particular lion, whom the workers named Rayafter the Spanish word for king on account of Ray's massive size-had been growing increasingly depressed.

Sadly, being that Ray is a lion, he had no way of informing the man with the whip that he would not be participating in tonight's activities... So, when Ray was released from his cage, he promptly lied down and refused to move.

However, the tamer, not used to having his orders disobeyed, got rather annoyed by Ray's behavior...

So, he brandished his whip and began to make loud cracking sounds, which Ray obviously did not enjoy, as he had learned to associate these sounds with impending pain if he continued to refuse directions...

However, Ray was rather insistent upon doing nothing, and he was getting rather annoyed himself at the man with the whip, who he had come not to like very much over these last few years.

Suddenly, the tamer having grown increasingly frustrated at Ray's behavior and slightly embarrassed by the laughter from the audience, struck Ray with the end of his whip accidentally striking Ray in the face...

However, Ray, not being able to speak human, had no idea that this was a simple mistake...

So, Ray decided to attack and then devour the man with the whip, which quickly turned the audience's laughter...

Into sheer panic... Afterwards, the incessant screaming of the audience agitated Ray even further.

Unfortunately, unbeknownst to you, the zoo leadership had previously opted not to spring for that cage that would have otherwise separated the lions from the audience, as they had believed that their trainer (the recently departed man with the whip) had done so well at domesticating the cats, that they had nothing to fear. Plus, this was way cheaper.

So, unencumbered from further expressing his frustration, Ray then began lunging out at the audience.

You and your son are sitting so close that you can feel the wind as the lion's massive paw swipes inches from your face.

You grab your son's arm to leave; however, his body goes limp in your grasp.

You turn to face him expecting him to simply be too scared to run; however, what you see becomes the single cause of your nightmares for years to come, as your son's face has been sliced open by the monster's massive claws...

Probably due to the amount of publicity your case was receiving, unlike many, it ends up making it to trial...

Your recently hired attorney has been able get a lot of evidence and witnesses to support your case, and she successfully argues that Zippo's circus was negligent and should be held strictly liable for what happened to your son.

She also argues successfully for general damages for the loss of your job, negligent infliction of emotional distress, and noneconomic emotional damages for your pain and suffering over the loss of your son.

The defense makes some arguments for contributory negligence involving your refusal to go back to work to mitigate your damages; however, the judge seemed to be fairly sympathetic to your case, and you doubt this resonated...

Further, the jury also appeared to be sympathetic, as they quickly return a verdict against the defendant, Zippo Circus, and award you $400,000 in general damages and $3,000,000 in punitive and emotional damages.

However, despite the judge's sympathies displayed during the trial, soon after the jury returns their award for damages...

She reduces your award for punitive and emotional damages to only $350,000, awarding you only $750,000 total...

Beverly objects to this reduction in damages, but the judge is unable to be swayed due to the state's recent tort reform.

After the trial, Beverly informs you that your only option now is to appeal your case.

The question, however, is whether or not you have sufficient grounds to appeal and whether you will likely win...

So, what do you do now?

The city of Derry where you live just happens to be located in a state where the legislators recently passed several tort reform measures reducing the maximum amount of all punitive and noneconomic damages to $350,000...

The 7th Amendment of the Constitution, however, states that: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

As such, you feel that an award for damages clearly falls into the category of facts tried by a jury.

So, you believe this reduction in damages should be unconstitutional; however, you're not sure...

QUESTIONS:

According to the Bryan article you read, how split are the courts on these issues?

Based on everything you know, do you have grounds for an appeal?

References:

1. Introduction to Law and the Legal System (11th Ed.)Frank Schubert; ISBN: 978-1-285-43825-2

2. Law & The Legal Process: Supplemental Reading (eBook) Joseph Rivera Co