Outside Counsel

As regular readers know, Fridays are Law Days at Outside Counsel (sometimes). Today, a couple of notable decisions, some new, some not so new, that came to my attention this week.

First, an nearly coherent discussion of the doctrine of Assumption of Risk from the Appellate Division, Second Department. (I know. I was surprised too.) In Weinberger v. Solomon the court reversed a judgment entered upon a jury verdict dismissing the plaintiff's complaint and set aside the verdict, ordering a new trial. That's a big deal, folks-- Appellate Divisions don't often do that. The 14 year old plaintiff was injured when pitching JV batting practice from in front of the mound, without an L-screen, under the instruction and supervision of her coach. (Actually, the L-screen fell down, the plaintiff asked if she should still pitch, and the coach said, "Are you okay with still pitching?" Of course the very next pitch was hit back at the plaintiff, who caught it right in the mush. The jury returned a verdict finding the school not at fault in the happening of the accident on the ground that the plaintiff voluntarily assumed the risk of injury involved in the batting practice. Not so fast, says the Second Department:

Here, the Supreme Court improperly submitted to the jury the question of whether to apply the doctrine of primary assumption of risk. Under the circumstances of this case, as a matter of law, the doctrine of primary assumption of risk is not applicable and does not operate to bar the plaintiff's recovery. S., a high school freshman with limited pitching experience as a member of the School's team, cannot be said to have assumed the risk of being hit in the face by a line drive while pitching behind an L-screen, which, due to a defect, was not freestanding and had fallen down prior to the pitch that led to her injuries. In addition, it cannot be said that S. assumed that risk, when she was specifically instructed by her coach to pitch, without the benefit of the L-screen, closer to home plate than is the standard distance for pitching in the sport of softball. The evidence demonstrated that the School's athletic director required L-screens to be used during softball practice when the pitcher was pitching at a distance of anywhere from 30 to 37 feet from home plate. According to the School's athletic director, Pisano informed him that S. was pitching at a distance of approximately 34 feet from home plate.
The faulty equipment provided by the School and the decreased distance between S. and the batter, from which she was pitching at the direction of Pisano without the benefit of the L-screen, did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive.

Before we get too excited about Second Department jurisprudence, consider Stern v. Amboy Bus. (Does Ted Nugent drive the Amboy Bus? I hope so.) In Stern the Second Department affirmed Supreme Court's denial of plaintiff's motion for summary judgment on the issue of liability because the evidence submitted in support of the motion did not establish that the plaintiff driver was free from comparative fault, and that the defendant driver's alleged violation of Vehicle and Traffic Law § 1142(a) was the sole proximate cause of the accident. This impresses Outside Counsel as incorrect reasoning. The plaintiff's comparative fault is an affirmative defense, and it should therefore be the defendant's burden to establish that the plaintiff's negligence caused or contributed to the plaintiff's injuries. It is not the plaintiff's burden to disprove it.

Finally, an amusing coverage case. Outside Counsel seldom dabbles in coverage, but it cannot be gainsaid that in that realm are to be found facts that are far more amusing than in plain old, straight up tort cases. In Woo v. Fireman's Fund, Dr. Woo, a dentist (and, I presume a different Dr. Woo than the guy in the Steely Dan Song), sought partial summary judgment against his professional liability carrier which had denied coverage after he was sued by a patient. Woo, who seems to me to have had a sense of humor like that of most dentists, was replacing two of the patient's teeth with implants. We'll let the Supreme Court of the State of Washington pick it up from there:

The procedure required Woo to install temporary partial bridges called "flippers" as spacers until permanent implants could be installed. When he ordered the flippers for [the] procedure, Woo also ordered a second set of flippers shaped like boar tusks to play a practical joke.... While [the plaintiff] was under anesthesia, Woo and his staff removed her oxygen mask, inserted the boar tusk flippers in her mouth and took photographs of her, some with her eyes pried open. After taking the photographs, Woo completed the planned procedure and inserted the normal flippers.

I know, right? What kind of square wouldn't find that hilarious? The rest of the decision isn't nearly as funny, but if you care about coverage you can look it up.