Why The Texting Fountain Falling Lady Shouldn’t Sue Anyone

Are you guys loving this mall fountain falling while texting lady story as much as I am?  It’s like a never ending story, that unlike my last reference’s namesake, I actually don’t want to see this one end since it just keeps getting better.

Cathy Cruz Marrero made waves across the internet, both literally and figuratively, this month when a mall surveillance video surfaced showing her texting while walking and accidentally falling into a mall fountain.  If you haven’t seen it yet, go on YouTube and search for it, it’s hilarious.  Normally, I’d post a direct link to it, but in this case I’m chickening out seeing as how Marrero seems to be on a crazy litigation rampage.  And since I like blogging, I’m trying my best not to get canned, which I’m almost certain would  probably happen if I suddenly got the powers that be in my company joined into her lawsuit.  Don’t worry though, the video is plenty easy to find online as it pretty much went viral overnight.

Anyway, it would seem that the crux, if there is one, of Marrero’s lawsuit is that she seems to be claiming some sort of negligence tort or intentional infliction of emotional distress claim against the mall for releasing the video.  When Marrero appeared with her attorney on ABC’s “Good Morning America,” she was very vague about what causes of action she’d pursue or if she’d even go forward with a suit.

Now before we start calling her crazy and dismissing Marrero’s lawsuit as frivolous, let’s take a moment to really analyze her potential causes of action from a legal perspective.

Taking first the negligence claim, in order to prove this Marrero would have to show the mall had a (1) duty of care to ensure she didn’t trip and fall like she did, (2) that they breached this duty, which (3) directly and (4) foreseeably resulted in her fall, and (5) caused her harm.  Rather than boring you with a long legal analysis, let’s just say that assuming arguendo (law school teaches you to use the most ridiculous Latin) that Marrero can prove the first four of elements, where’s the harm?  She fell in a pool of water and seems fine to me.  Sure her clothes are wet, but other than the bruised ego, she was able to get up and walk away.

Furthermore, did her attorney forget about a concept called contributory negligence?  Let’s not forget, she was texting while walking.  That’s bound to obscure your vision.  The only claim of hers that might have any teeth, in my opinion, is the intention infliction of emotion distress, but that’s difficult to prove in this case since she would have to show that the mall released the video online just to hurt her, which may be true for the person who actually leaked it, but I doubt there’d be any evidence to show the mall did it purposefully.

However, stepping back from the legal argument for a second; isn’t all this publicity the exact opposite of what Marrero wanted out of all of this?  I mean, now that she’s doing interviews and insinuating that she might sue, her face and the video of her falling is more widely known than it would’ve ever been if she just shrugged it off like every other viral video star before her.

But rather than wait it out for the next doofus to take her place in the internet limelight, all her rabblerousing got her was coverage of her unrelated five felony charges.  This is seriously one of those cases where I’ve got question not only question the plaintiff’s thinking, but also the plaintiff’s attorney.  If, hypothetically, I was sitting in my imaginary law office and Marrero came in and asked me to represent her in her lawsuit believing that it would help save her reputation, I’d tell her to get the hell out.

Why?  Because of everything I just mentioned.  If Marrero really wanted to save her reputation, she should’ve just waited this whole thing out.  And if she were really looking for some sort of compensation, her attorney should’ve really analyzed her situation before going on “Good Morning America” with her.  Because the better tactic would obviously have been to simply wait a few months, maybe even a year depending on the statute of limitations, before filing suit.  That way the public would have had time to forget about Marrero as the falling fountain lady and Marrero and her attorney could’ve have begun painting her as a more sympathetic character, instead of the joke she is now.  The whole lawsuit just screams payday and fame monger, on both Marrero’s part and her attorney.

Marrero should be a lesson to everyone out there looking to sue or hire an attorney.  That lesson is: When it comes to legal matters, always make sure whatever you’re doing is in your best interests.