It’s the Law: Lost loot of Christmas past

Like every other child, I wasn’t able to contain myself as Christmas grew nigh. To thwart my brothers’ and my enthusiasm, my mother and father adopted the extraordinarily irritating habit of not putting anything under the tree until after we went to bed Christmas Eve. That meant no slack-jawed gazing at the presents, no rattling the innards to discern the contents, nor peering through them with the X-ray glasses ordered from the back of Fantastic Four comic books.
Still, the Christmas tree seemed to energize my brothers and me, so our horseplay always took place in the tree’s immediate surround. Inevitably, exuberance ran to excess, and on one occasion my older brother and I leveled the tree. Ornaments splintered and scattered to the four corners of the room. Terrified that we would plummet from nice to exceedingly naughty on the list, we conspired to save our keisters. The answer to our dilemma wandered into the room moments later, after having heard the din. Our little brother was only 5 years old and, happily, not particularly adept at defending himself. In other words, the perfect rube.
Although memory has faded over the years, I seem to recall that my older brother and I worked out a plausible tale of exactly how my little brother performed the nefarious deed. When it was fully concocted, we wailed for our mother. The scheme worked to perfection. I well remember the astonished look on my little brother’s face as our mother took him to task. Rather than protest and point at the perpetrators, he exploded into tears, a surefire sign of guilt if ever there was one. Mom promptly imposed a level of punishment that nasty older brothers could only dream of.
In legal parlance, we older brothers committed a tort: defamation. But just because we defamed our little bro doesn’t mean he’d get anything if he sued us. Most torts require some kind of damages — monetary loss or physical injury — before you can be successful in court. As always, there are exceptions, and, in fact, if the defamation is bad enough, one doesn’t have to have physical injury or economic loss to successfully sue. What about that darling of TV and movies, emotional distress? True, this type of damage exists, but it’s very hard to prove if there are no visible injuries or physical manifestations from the stress. The general rule is that if there are no medical bills, property damage or lost money, you have a loser of a case.
Every year, I field dozens of calls from people who have suffered from not merely thoughtless but nasty actions of their fellow humans. For many of these calls, however, they have suffered only hurt or angry feelings. Not to minimize the pain they feel from betrayal or rudeness, the plain truth is that the law has few remedies for jerks. With only minor exceptions, it is only when the jerk takes your money, injures you or damages something that the law steps in.
That brings me back to my little brother. As he got older, he threatened, only half jokingly, to sue us for his pain, suffering and loss of loot that he surely suffered from that fateful Christmas. Curiously, there is a fascinating twist in the law whereby the statute of limitations for the majority of torts doesn’t begin to run until one turns 18. That means that my aggrieved little brother could have hauled us rotten older brothers into court many years later. This, of course, rarely happens, because feelings wane, evidence disappears and witnesses forget. Still, my older brother and I weren’t taking any chances. We kept mum to assure that the ghost of Christmas past didn’t cause us to lose the lucre of Christmas present.
• Gary Redenbacher of Scotts Valley is an attorney in private practice. Contact him at ga**@re*********.com.