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.

Fridays are Law Days (sometimes) at Outside Counsel, and here, as promised, is an interesting case on tort liability and automatic Defibrillators. Miglino v. Bally Total Fitness of Greater N.Y., Inc. addresses an Appellate Division split on the issue. General Business Law § 627-a requires health clubs to have automated external defibrillators on premises, and to have staff trained in their use present at all times. The statute also provides:

Pursuant to sections three thousand-a and three thousand-b of the public health law, any public access defibrillation provider, or any employee or other agent of the provider who, in accordance with the provisions of this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to section three thousand-a of the public health law.

Public Health Law §3000-a is New York's 'good Samaritan' statute. So, here's the question: If a health club has to have an AED, and somebody who knows how to use it available at all times, and the facility and the trained operator are insulated from liability, is there a duty to use the device, and can liability be imposed for the failure to do so? (Actually, that's two questions.) In Miglino the plaintiff's decedent was lying on the floor, pink, breathing and with a faint pulse. The employee did not use the AED on him because he'd been trained not to ins situations involving a breathing individual with detectable pulse." (There were also a couple of club members who were actual doctors working on the guy.) Nevertheless, the plaintiff's decedent became the plaintiff's decedent, and then the lawsuits started. The health club moved to dismiss for failure to state a cause of action, arguing that Public Health Law §3000-a immunized it. Interestingly, they submitted affidavits establishing that they had the proper equipment and the proper personnel, with the proper training, on the premises. The plaintiff argued that the failure to use the AED is what killed the guy, and submitted an expert affidavit to that effect. In other words, if they'd used the AED and he died, that would be one thing, but they didn't, and they had an affirmative duty to do so.

Supreme Court denied the motion to dismiss, and here's where it gets strange. In it's decision, Supreme Court "commented that Bally's evidentiary affidavits made out a 'strong, but not conclusive showing that the plaintiff does not have a cause of action.' The court added, however, that 'plaintiff [was] not obligated to come forth with evidence as he would on a motion for summary judgment to withstand dismissal'; as a result, the judge, 'being only concerned with the sufficiency of the plaintiff's pleadings, and not evidentiary matters,' determined that the complaint stated cognizable claims." Got that? Supreme Court said, "You made the wrong motion."

The Appellate Division affirmed, holding, that the General Business Law "imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence and that the complaint stated a cause of action 'based solely upon common law negligence' because "LaGrega assumed a duty by coming to the decedent's assistance".

Leave to appeal to the Court of Appeals  was granted on the certified question, "Was the opinion and order of [the Appellate Division], dated December 27, 2011, properly made with respect to the cause of action asserted against [Bally]?"  The Court of Appeals, with Chief Judge Lippman dissenting, holds that there is no affirmative duty "running from a health club to its members to use an AED required ...onsite," but affirms the Appellate Division's decision any way, because the defendant moved to dismiss instead of moving for summary judgment.

Here, the complaint asserts that Bally did not "employ or properly employ lifesaving measures regarding [Miglino]" after he collapsed. Bally's motion is supported by affidavits that contradict this claim, by purporting to show that the minimal steps adequate to fulfill a health club's limited duty to a patron apparently suffering a coronary incident — i.e., calling 911, administering CPR and/or relying on medical professionals who are voluntarily furnishing emergency care — were, in fact, undertaken. But, as noted before, this matter comes to us on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and Miglino has at least pleaded a viable cause of action at common law. 

I am looking to the heavens and beseeching Ronald Dworkin.Why, I ask, did no-one think to invoke CPLR §3211(c)? "

  (c)  Evidence  permitted;  immediate  trial; motion treated as one for
  summary judgment. Upon the hearing of a motion  made  under  subdivision
  (a)  or (b), either party may submit any evidence that could properly be
  considered on a motion for summary judgment. Whether or  not  issue  has
  been  joined, the court, after adequate notice to the parties, may treat
  the motion as a  motion  for  summary  judgment.  The  court  may,  when
  appropriate  for  the  expeditious disposition of the controversy, order
  immediate trial of the issues raised on the motion.

This thing went all the way to the Court of Appeals, and the Court of Appeals said the defendant was right, but too bad, because you made the wrong motion. Amazing.

Fridays are law days (sometimes) here at Outside Counsel. Today, People v. Piznarski, in which the Third Department determines that New York's unlawful surveillance statute (Penal Law § 250.45 is properly applied in circumstances where sexual activity is consensual, but is surreptitiously recorded. The defense had argued that the statute was merely intended to cover straight up voyeurism. Nice try, creep.

The law of privacy all starts with Warren and Brandeis, but where it goes from there is what's interesting. In much of Western Europe privacy is treated as a civil right, but in the US the courts floundered a bit trying to figure out what this thing was. Perhaps because the law of torts was in early flower that's where they looked first, but proved to be stoney ground, and ultimately the concept took hold primarily in the Fourth Amendment, and in the penal law. Funny how that goes-- it is, for me, oddly reminiscent of the way law in Marxist societies is chiefly penal. Can't have a law of contract, because private contracts are illegal. Can't have a law of tort, because offenses against individual are offenses against the body politic, and are therefore crimes. Can't have a law of privacy, because-- say, what have you got there, Comrade? 

Fridays are Law Days (sometimes) here at Outside Counsel. Today, recent developments in the law of forum non conveniens. At various times forum non conveniens has been a valuable tool to have on our belt. Our hospitality practice frequently involves case in which the plaintiff was injured while on vacation, and until Daimler AG v. Bauman New York's liberal long arm statute meant that suing, for example, a Mexican resort in Nassau County didn't require much of a jurisdictional showing with regard to the contacts the resort had with the Empire State. Daimler is going to be a big mess, but until that all gets sorted out it is still more or less true that New York courts can't do much on their own about  actions that have nothing to do with New York State if the parties want to litigate here. The rule has been that a party must bring a forum non conveniens motion for the court to consider whether it maybe makes sense for a matter to be litigated elsewhere. (As the kids say, See, e.g. VSL v. Dunes Hotels & Casinos.)
Comes now Mashreqbank PSC v. Ahmed Hamad A1 Gosaibi & Bros in which the Court of Appeals holds that although nobody asked to have the case in chief dismissed on forum non conveniens grounds, the fact that a third party defendant so moved was sufficient to allow the court to consider the matter globally, and dismiss the whole shootin' match. Even more interesting, the court found that even though the decision to dismiss on forum non conveniens grounds is usually discretionary, in this instance the case was "one of the relatively uncommon ones in which dismissal on forum non conveniens grounds is required as a matter of law." There is a lot there to chew on. For one thing, as a general rule a motion for a forum non conveniens dismissal is nearly always best brought in the early going. It gets a lot more conveniens for everybody if there's been some discovery had, for example. New York makes a big deal about what a swell forum it is for international dispute resolution, and it would be interesting to know the extent to which being a favored forum for that sort of thing contributes to the economy. It's not a sneeze would be my guess, but Mashregbank seems like it injects an element which will muddy the waters somewhat. (On the other hand, seeGeneral Obligations Law §5-1402(1).)

As a rule it has been our experience that the best practice is to first remove to federal court cases that we want bounced on forum non conveniens grounds. For one thing, the rules are a bit more straightforward, and for another, since federal courts are courts of limited jurisdiction anyway they tend to be less bashful about dismissing stuff. That's still going to be the way we'll go when we can.

Fridays are Law Days (sometimes) here at Outside Counsel. Today, an important decision from the Court of Appeals on Assumption of Risk. Ladies and Gentlemen, Custodi v. Town of Amherst.

Robin Custodi was rollerblading one day when one of her skates allegedly struck a two-inch height differential where the edge of defendants' driveway met a drainage culvert that ran the length of the street, causing her to fall and fracture her hip. The defendants (the town and the adjoining property owners) moved for summary judgment, arguing that plaintiff assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as landowners. Supreme Court granted the motion, the Appellate Division reversed, and the Court of Appeals....

Affirmed. "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues . In this case, plaintiff was not rollerblading at a rink, a skating park, or in a competition; nor did defendants actively sponsor or promote the activity in question."

Frankly, I think they got this one wrong. Assumption of Risk doctrine in New York has become such a confusing muddle that it may be time for the legislature to step in and straighten it out (and you know how I feel about the New York State Legislature). Suppose, for example, that the plaintiff was a runner, and was running in the Buffalo Marathon. If she tripped and fell on a raised curb, wouldn't it be correct to say that she'd assumed that risk in undertaking the marathon? (It's happened to me-- the race picture is gory, but I by god finished.) Now let's say that the plaintiff was a runner, but instead of participating in a race she was running along a portion of the street that was on the marathon course. She elected to engage in the activity, the risk inherent in that activity would of course be known to her--

Here's how the Court reasoned it:

Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have "enormous social value" even while they may "involve significantly heightened risks"  Hence, the continued application of the doctrine "facilitate[s] free and vigorous participation in athletic activities", and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from "potentially crushing liability" .
Consistent with this justification, each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue. In Morgan, for example, we dismissed claims by a bobsledder injured on a boblsed course, and by two students who were injured while attending martial arts classes . Similarly, we applied assumption of the risk to bar claims by plaintiffs who suffered injuries while participating in collegiate baseball ; high school football; recreational basketball on an outdoor court; professional horse racing; speedskating on an enclosed ice rink (see ; and a round of golf at a golf course.
In contrast, in Trupia we recently declined to apply the assumption of the risk doctrine to a child who was injured while sliding down a bannister at school. Based on the tension that exists between assumption of the risk and the dictates of CPLR 1411, we clarified that the doctrine "must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation". We noted that the injury-causing activity at issue in Trupia — horseplay — did not render the school worthy of insulation from a breach of duty claim, as it was "not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages".

So if I am playing hoops at Delaware Park and break my ankle, I assumed the risk, but if I trip and fall twenty feet away while running on the Ring Road in the Jog for the Jake I didn't? This is madness. As lawyers we are supposed to be able to predict outcomes. Who could have predicted that rollerblading is more like sliding down a bannister than playing pick-up basketball?

Fridays are Law Days (sometimes) at Outside Counsel. Today we present CBA Properties, Inc vs. Global Airline Services, Inc. (pdf), a Third Department decision arising out of a commercial action in Supreme Court, Albany County. Some time shortly before trial Supreme Court directed the attorneys for the parties to appear for a conference with a corporate representative from each. When counsel appeared without their clients, the judge set a new date-- Christmas Eve. At the rescheduled conference plaintiff's counsel appeared with a corporate representative, and the defendant's attorney brought someone who'd been specifically hired to attend the court appearance-- not a corporate officer or employee. The judge deemed this unacceptable, struck the defendant's Answer, and directed that the matter proceed to inquest on damages rather than to trial. The Appellate Division reversed, and reinstated the Answer, stating that, "The applicable rule instead specifically authorizes the court only to deem the party's failure to comply 'a default under CPLR 3404', which results in a removal of the case from the trial calendar," pursuant to 22 NYCRR 202.26 [e].


I think that's the correct result, but it is a peculiar one, at least under these facts. Judges frequently engage in arm-twisting to settle cases approaching trial, and the pretrial conference with a representative with authority to settle the dispute is a favorite toy. This case, a commercial matter in which breach of contract and unjust enrichment was alleged, was apparently one in which the Supreme Court judge was particularly vexed-- judges hate working on Christmas Eve every bit as much as everyone else does. That said, the sort of arm-twisting that goes on at these sorts of pretrial conferences can and frequently does cross the line. I've skated pretty close to sanctions in these circumstances on more than one occasion, because I'm the one that talks to my client, not some judge. I don't want any judge compromising the veneer of neutrality when my client says that we we or will not do what the judge recommends, and in a lot of legal cultures the mere fact that a judge would engage in such conduct would be shocking. Then too, the defendant here is absolutely correct: the Business Corporation Law does indeed authorize it to appoint any representative it chooses to act on its behalf. It is kind of ballsy to be so high-hat to the judge who is about to preside over your trial, but we all have our appointed roles in life, and the judge's role is to preside over trials when the matter can't be resolved any other way.

All that said, the outcome here is an odd one to this extent: the plaintiff, who commenced its action in 2008, and came to court on Christmas Eve, has just spent eight months cooling its heels (when not briefing this appeal), and has just been told that the next time something like this happens the court's response will be to knock the case off the trial calendar. The remedy, in other words, is to delay the trial. That's kind of messed up. I do not expect that the situation will arise with much frequency, since one of the top three or four unwritten rules of trial practice is Don't Piss Off the Judge, but now we have a case that tells us what happens if we do, and what happens is nothing much.

Fridays are law days (sometimes) here at Outside Counsel. Today let's consider Cappiello v. IDC Publications. Professor Siegel featured it about a year ago, but I just now came across it, and it is the sort of nifty thing that Erie v. Tompkins makes possible.

In New York interest on post-verdict judgments is set by statute at 9%. In federal court the judgment rate is computed according to a formula that adopts Treasury yields. 9% is crazy, and a lot of appeals that might get taken don't get taken because 9% will kill you. So what's the rate to apply when a New York action is removed to federal court on the grounds of diversity? Well, that comes down to the classic Erie question: is post-verdict interest a substantive issue, or merely a procedural question? Pre-judgment interest is part of the substantive law of the state, so New York law applies, but post-judgment interest is procedural. In Cappiello the court reckoned the applicable rate at 0.25%. That's a swing that stings, cats and kittens. There is a work-around, maybe: Seigel says the federal judgment can be docketed with a New York State county clerk under CPLR 5018(b), but the Cappiello decision says nay. Another way to address it-- in commercial cases-- would be to have the contract speak to the question directly. At what point does the failure to include such a provision become a source of concern for the drafting lawyer? Isn't that an ugly question?

I'm not sure to what extent the Cappiello rule would really color my conversation with a litigation client about whether or not to remove a case. It is, however, one more item on one side of the ledger.

Fridays are Law Days (sometimes) at Outside Counsel, so I thought I'd bring this Gil Thorp storyline to your attention. Two of my principal academic interests are Discovery and the portrayal of lawyers in popular media, and here we have an unusual example of  the two intersecting.* Gil Thorp is a strip about a high school coach. Typically it follows the seasons: fall is football, winter is hoops, and spring is baseball. In the summer different things happen-- for a while Gil's assistant coach solved mysteries. This particular storyline is, believe it or not, baseball related. The sons of the plaintiff's lawyer and the defendant here play on the team together, and this lawsuit is a source of interpersonal conflict. The lawsuit here arises from a slip-and-fall in front of a convenience store. I have to admit, this is the weirdest thing I think I have ever seen in the funnies. I like depositions, and they are at the heart of  American legal process, but if you want to see three panels about why nobody under 50 reads newspapers here it is.

* Another example, for anyone else who finds this interesting-- Hello? Where'd everybody go?-- can be found in the movie about Facebook, The Social Network.

Fridays are Law Days (sometimes) here at Outside Counsel. Today, a useful piece on Social Media and Spoliation, via friend of the blog Nicole Black. The take-away? If your client has put something out there, they can't take it down-- but they can adjust their privacy settings.