Niosi v. Aiello

69 A.2d 57



The rule to be applied in a case where an attorney is accused of negligence in the conduct of litigation is that such attorney is not liable for negligence if, notwithstanding the negligence, the client had no cause of action or meritorious defense as the case may be; or that if conduct of an attorney with respect to litigation results in no damage to his client the attorney is not liable. Unless a party has a good cause of action against the party proposed to be sued, the first party loses nothing by the conduct of his attorney even though the latter were guilty of gross negligence. The rule in such cases has been succinctly stated as follows: In a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) The attorney's employment; (2) his neglect of a reasonably duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client. And the test of the sufficiency of the declaration in such a suit is whether its allegations, if proven, would make out a case. 


The administrator's brother died as the result of being struck by a street car of a railway company's predecessors' railroad cars. The complaint alleged that the attorney was grossly negligent in the conduct of the case, with the result that it was dismissed for lack of prosecution, that the company offered $ 1,500 in compromise settlement, but that the attorney had advised rejection of such offer and that all right to bring an action had been lost by the negligence of the attorney. The lower court entered a directed verdict in favor of defendant attorney upon plaintiff administrator's opening statement to the jury in a malpractice suit against an attorney. The administrator appealed. The court affirmed the lower court's decision, which entered a directed verdict in favor of the company.



Did the lower court err in  directing verdict in favor of defendant attorney?




 The court concluded that the administrator, in that capacity, never had the right to sue for the alleged wrongful death of his brother and likewise that at the time of the death there was no one in existence entitled to bring such suit. Therefore, the conduct of the attorney, whether negligent or not, could not have caused loss to the administrator.

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