Super Lawyers
William C. Altreuter

Friday, November 30, 2012

One of the ways that personal injury law has become vastly more complex over the years that I have been tilling in this field is in the area of third party reimbursement. I came into things just about the time that the law was settled with respect to Worker's Compensation lien recovery: basically the rule boiled down to the idea that the Comp carrier was entitled to recover the amounts it had expended, less 1/3, which was the "equitable" amount for the plaintiff's work in obtaining the recovery, plus an allowance, called a holiday, to account for future payments that would not have to be made. I'm simplifying here, because oh my stars and garters it was much more complicated than that, but I want to move on. A further complication subsequently arose with liens being asserted by private health insurance providers, and over the last ten or 15 years the question has been what to do about Medicare payments. The rule is that these are reimbursable, and that future payments must be accounted for as well. Part of the award that catastrophically injured plaintiffs receive is  based on future losses, including future medical expenses, and the Social Security Administration doesn't want to pay benefits if the expenses are already covered. This becomes a complicated mess because it means that some portion of an award or settlement must be set aside to account for the money that Medicare might otherwise be obliged to spend-- and the Social Security Administration has to approve it. It is a horrible nightmare to dope this stuff out, and the law is far from settled.

Comes now the Second Circuit to help, in Iron Workers v. Dinnigan, (S.D.N.Y. Nov. 21, 2012), 2012 WL 5877426:

ERISA plan paid medical bills of $1,692,371.76 for the employee’s 7 year old minor daughter Amanda. Amanda was “horribly and permanently injured... [rendering her] quadriplegic and completely insensate below the her jaw, requiring a ventilator to breathe and a shunt to control hydrocephalus… [requiring] round-the-clock nursing care.” Products liability claims netted a total recovery of $14.6 million, before attorney’s fees and required the expenditure of over $975,000 in court-approved expenses. This decision recognizes that “the total recovery of $14.1 million amounts to only a small fraction of the ‘full value’ of Amanda’s claim,” but nonetheless permits reimbursement to the ERISA plan in the amount of $1,292, 278 which is 75% of its claim. The court applies the “common fund” approach, stating,
But for Defendants' efforts and legal fees and expenses incurred on behalf of the injured girl, [the ERISA Plan] would have no funds from which to seek reimbursement. In equity and conscience, Plaintiff should bear its fair share of the fees and expenses incurred in creating the funds from which Plaintiff seeks reimbursement.
The Clerk of the Court is directed to enter judgment for Plaintiff in the amount of $1,292,278. This is 75% of the medical expenses of $1,692,371 paid out by Plaintiff. The amount of $423,092.75 reflects Plaintiff's fair share of the attorneys' fees and expenses incurred in creating the total settlement Fund.
(Thanks to Brett Newman and the Lien Resolution Group for the tip.)

Thursday, November 29, 2012

And speaking of Halls of Fame, It is Big Pink HOF time again!

Well, won't this be a merry Hot Stove Season! Here are the candidates on this year's HOF ballot:

Sandy Alomar Jr. ,Jeff Bagwell, Craig Biggio, Barry Bonds, Jeff Cirillo, Royce Clayton, Roger Clemens, Jeff Conine, Steve Finley, Julio Franco, Shawn Green, Roberto Hernandez, Ryan Klesko,
Kenny Lofton, Edgar Martinez, Don Mattingly, Fred McGriff, Mark McGwire, Jose Mesa, Jack Morris, Dale Murphy, Rafael Palmeiro, Mike Piazza, Tim Raines, Reggie Sanders, Curt Schilling
Aaron Sele, Lee Smith, Sammy Sosa, , Mike Stanton, Alan Trammell, Larry Walker, Todd Walker, David Wells, Rondell White, Bernie Williams and Woody Williams. (The holdovers from last year’s ballot are Bagwell, Martinez, Mattingly, McGriff, McGwire, Morris, Murphy, Palmeiro, Raines, Smith, Trammell, Walker and Williams.)

I'm conflicted a bit. Baseball's HOF criteria include "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played." For me this has always meant that mere number-crunching is insufficient; on the other hand, I am leery of the idea of sportswriters acting as moral arbiters. The complaint about statistics inflated by PEDs bothers me less-- players play under the conditions prevailing at the time, which means that there are a lot of HOF ballplayers who ran up their numbers because they didn't play against some of the best of  their time. The system is flawed, and the best that can be hoped for is that it works as well as possible. The fact that Marvin Miller isn't on the list tells us just how ultimately trivial the whole thing is

The rules say that voters can cast ballots for none, some, or up to ten candidates. No write-ins are permitted, so Miller's death changes nothing. It would be a nice gesture if the Hall voters inducted him posthumously, and it would be cool if he were the only one elected this year, but neither is going to happen.  My thinking about the HOF has evolved in recent years, and I now believe in an inclusive Hall. If I had a ballot I'd use all ten votes. I have never thought that t made sense to withhold the honor from first time nominees-- the idea of a "First Ballot Hall of Famer" is completely artificial. The first place I'd go to, therefore, are the names that have been passed over, and the first box I'd tick would be Tim Raines. I'd go to Jeff Bagwell next. My pencil would hover over Mark McGwire. Frankly, I always thought of him as a one-dimensional, Dave Kingman sort of player, but I have come to be persuaded that he was much better than that, and I think it would be unfair and stupid to single him out and scapegoat him for using drugs when drug use was so common. Edgar Martinez is in too. He was terrific.  Barry Bonds? In. I will remember every plate appearance of his that I ever saw, from his Pirates days to the end. Gotta vote for Dale Murphy, I think. Mike Piazza? Absolutely. Best hitting catcher ever, and a classy guy. Of course, Piazza will be forever linked in my mind with Roger Clemons, and now I have a dilemma. Having said that the PED thing isn't going to affect my vote, what do I do with The Rocket? Bonds' conviction for obstruction of justice is on appeal, but Clemons was acquitted. Clemons was matchless on the mound, but I hate him. In the end I think I will allow the system to do with him what it likes. He threw that broken bat at my guy, Mike Piazza, so screw him, he displayed bad sportsmanship. No vote for him from me. That leaves me with four more votes. I'm going to spend them all, but I want to think about it. I'm pretty sure I will not vote for Curt Schilling, on the theory that if Clemons gets in and Schilling doesn't Schilling will spew some pretty funny bile. That might be reason enough.

Wednesday, November 28, 2012

John Cale at BAM, playing Paris 1919. Heck yeah I'd go to see that. One of the things that the CD format changed was the idea of the "perfect" album, a a great set song for song with meticulous production values, beautifully played and sung, and sequenced so that every moment is exquisitely timed for peak emotional and aesthetic enjoyment. The perfect album was not necessarily something that the greatest artists produced-- the polished quality of the perfect album was, in some ways, an artistic dead end. What remained for Linda Rondsadt after Heart Like A Wheel, for example? Paris 1919 is an oddity for Cale, and it is a lovely little thing that would be fun to see performed live.

Monday, November 26, 2012

Driving home from NoHo last night a Dolly Parton song came up on my iPhone's shuffle, and I thought for a little about how many great songwriters America has produced over the course of the history of recorded music. (There are great songwriters from before that time too, so settle down, Stephen Foster, but the idea of recorded music as a baseline makes sense to me: when a hit song was something that your sister played on the parlor piano songwriting was a different form.) Notably, our idea of a great songwriter is particularly genre-defined. David Crosby has said more than once that he thinks Bob Dylan and Joni Mitchell are two of the greatest songwriters of the 20th Century, for example. I like Joni Mitchell fine, but this statement seems to me to be either a nice complement to a former girlfriend or an argument for a very, very inclusive list. My parents will frequently listen to a song by someone I like (Bob Dylan, perhaps) and say, "Well, he's no Cole Porter." Indeed not, although Cole Porter (and Lorenz Hart, and Billy Strayhorn and any number of others from the form we think of now as "Standards" certainly belong on the list. So does the man who wrote:
Los Angeles give me Norfolk Virginia,
Tidewater four ten o nine
Tell the folks back home this is the promised land callin'
And the poor boy's on the line
Dolly belongs there, without a question, and so too do quite a few Country songwriters. If your list doesn't have Hank Williams you need to start over; and if it is missing Willie Nelson, well, I don't know that we are capable of continuing this conversation.  Come to think of it, maybe David Crosby is right, and an inclusive list is the way to go.

Saturday, November 24, 2012

There were 14,000 runners registered in this year's Turkey Trot. I was trying to remember how many there were in 2000, the year of the Thanksgiving week snowstorm, and finally I looked it up: 3,506. The first year I ran it, in 1996, there were 3,941 registered. (That was the year I didn't stay for the "Must be present to win" door prize.) I've pretty much found a race every year since then, and I have been lucky to have a daughter (or sometimes two) run it with me almost every year. (There were one or two when my brother and I ran without Emily; Caroline's current six year streakdoes not include any of the Prospect Park races.) Frankly, the Thanksgiving Day race has become my favorite part of the holiday.

Every year in Buffalo running circles there is a debate about whether WNY could or would support a second or even a third race. 14,000 is a bunch of runners, and the post race party venue is maxed out. Those Prospect Park runs didn't have parties-- age group winners got a pie, and there were a couple of cases of bottled water lying around, but nobody stayed to mingle. Here, the party is part of the overall experience. The Oldest Continuously Run Road Race in North America is as much a reunion as it is anything else- we are very much a community of ex-pats, and Thanksgiving is when people come home. Based on the numbers, sure, a race in the Southtowns, or maybe South Buffalo, and a race in Niagara Falls might make sense, but one of the reasons people run in the present race is the sense of connection that participation in a longstanding (119 years) tradition provides. The Albany area supports races in Troy, Clifton Park, Cohoes, Schenectady, and Bethlehem. The Troy race offers a choice of a 5k or a 10k which is nice, and is pretty venerable in its own right, going back to 1916. I'm sorry I didn't run it back when we used to go to Thanksgiving in Albany.Will we see a decline in enrollment from 14,000? That impresses me as a number that may reflect a fad, but it is hard to picture it going back to four or five thousand.

Friday, November 23, 2012

Friday's are Law Days at Outside Counsel (sometimes). Here's AllianceBernstein L.P. v Atha, in which the First Department says that a demand for iPhone call logs is one thing, but surrendering the phone itself goes too far. Remarkably, it reversed nisi prius to reach this conclusion, which suggests to me, once again, that judges lag about ten years behind on IT stuff.

Also notable, the novel tort theory that an employer might be vicariously liable for a homicide committed by an employee because the employee was an undocumented alien. Ostroy v Six Sq. LLC says nay: "The claim of negligence per se based on defendant Bradford's alleged violation of the Immigration Reform and Control Act (8 USC § 1324a[a][1]) in hiring Pillco must be dismissed because there is no evidence that the decedent was among the class of people for whose particular benefit the statute had been enacted (see Fagan v AmerisourceBergen Corp., 356 F Supp 2d 198, 214 [ED NY 2004])." I love it that there are people who could stand up in court and make that argument with a straight face. I have a mental picture of the Appellate Division bench doing a spit take.

Wednesday, November 21, 2012

I watched Howl the other day-- I am sort of surprised that I hadn't got to it earlier, but I have to be in a particular frame of mind for Beat stuff. James Franco quite good-- Allen Ginzberg's vocal cadences are familiar and distinctive, and Franco nailed it. The animated segments weren't quite in the visual style I'd have imagined, but they certainly worked well. Horribly, I found that I was more interested in the parts about the obscenity trial than the poetry parts. Part of this may have been because my ArtVoice column about Lawrence Brose had just run, so I had the defense of artistic freedom on my mind-- did Norman Mailer ever have a finer moment than his testimony at the obscenity trial against Naked Lunch? I'm afraid, however, that the reality is less noble: when you come to Howl at the right moment poetry is more important than any other principle; after a lifetime of standing up in court I'm afraid that I'd rather read an opinion by Oliver Wendel Holmes than re-read The Dharma Bums. 

This is, I think, the point that is being made in this assessment of  Jack Kerouac. If you come to him at the right time, Kerouac's writing is liberating, but it isn't easy to go back to him.

Tuesday, November 20, 2012

Who wouldn't envy a shelf like Philip Roth's? He says he's done now, and just the making of a statement like that is unusual: writers don't walk away the way that athletes or musicians do; not as a rule. Fading away, Neil Young style is the preferred exit-- "Across the River and Into The Trees", say, or anything Kurt Vonnegut wrote after-- I don't know, "Slaughterhouse 5"? Roth may have hung on a bit too long, like Willie Mays, but it is undeniable that he had a long valedictory. Jason Diamond makes an interesting point in The Observer:
"Mr. Roth is part of the school of novelists, poets, playwrights, essayists and songwriters that includes Grace Paley, Norman Mailer, Bob Dylan, Allen Ginsberg, Bernard Malamud, Leonard Cohen, Cynthia Ozick, Edward Lewis Wallant, Arthur Miller, Joseph Heller, Leonard Michaels and the Canadian-born, American-raised Saul Bellow, whose opening line to his 1953 breakout novel The Adventures of Augie March is not only of the same iconic stature as Moby-Dick’s 'Call me Ishmael' but reads like a rallying cry for Jewish assimilation just a few years removed from Hitler’s massacre: 'I am an American, Chicago born.' "
Funny that Mr. Diamond picks Bellow as the paradigmatic  member of this "school"-- Roth is nearly twenty years Bellow's junior, and the age difference shows-- Bellow would have been incapable of writing "The Conversion of the Jews", and belongs to a generation that came of age during WWII. Roth's sense of humor was the first quality that defined him, and in many ways his writing is from the assimilated perspective that assumes Augie March's declaration as a given.

Thursday, November 15, 2012

I was thinking about expanding my explorations into West Coast jazz, and I still will, but Ten Free Jazz Albums to Hear Before You Die has shifted my focus.

R.A. Dickey is a class act, plain and simple. Watching him work last season was pure pleasure, and now he has a Cy Young Award. He's on my All-Time Mets team, with Keith, and Gary Carter, and Ed Kranpool, Tom Seaver, and and Mookie Wilson... Actually, putting that list together would be a happy task.

The history of recorded music is, basically, somebody makes money, but not the musicians.

Usually losing Republican VP nominees fade back into the woodwork. Dan Quayle floated the idea of running for the top spot, but was laughed down; Jack Kemp's run was his last hurrah, and I assume that Dick Cheney is busily curating his art collection in his secret base in the extinct volcano.  There was that lady from Alaska-- what ever happened to her? Getting the Democrat nod for the #2 spot gets you taken more seriously. John Edwards, saints preserve us, would have been the favorite in any other year.

Usually Republicans go with the runner up the next cycle. Bush beat McCain, McCain beat Mittens-- they are Royalists at heart. It won't go that way next time, though. The Republican standing this time was Newt, wasn't he? That's not happening again. Paul Ryan isn't going to go away though. I wonder if he might make a run at it. If memory serves the last sitting Congressman to be elected President was James Garfield. My hunch is that Ryan will bide his time. He is young enough to wait a few cycles, and his House seat is about as safe as possible. He's never had a job outside of government, and although his family is well-off he doesn't have a personal fortune.

Wednesday, November 14, 2012

Most of the venison recipes I see are some variation on "Marinate the hell out of it in "Italian" salad dressing. This makes a kind of sense: if you hate deer so much that you hunt them down and shoot them, why wouldn't you desecrate their delicious bodies? Here's what I do:

Bill Altreuter’s Venison Carbonnade
                Beer is to Belgium as wine is to France. Other places make both, but beer and wine are art forms in these places in a way that they are nowhere else—and don’t let the Germans tell you any different. This dish is the Belgian equivalent of a French daube. Since our Flemish friends have beer on hand they use beer instead of wine, and the result is fantastic, a complex layering of flavors that is perfect for fall evenings. The challenge with venison is to avoid processes which make the naturally lean meat tough without marinating it into mush, or overpowering its natural flavor. Pay attention to the process—it makes a difference.

-3 lb. venison stew meat, cut into 2-inch cubes
-2 Tbsp. butter
-4 slices bacon, chopped
-3 yellow onions, chopped
-1 Tbsp. dark brown sugar
-1 large carrot, chopped
-4 cloves garlic, minced
-16 oz. Community Beer Works Belgian ale (or other, inferior beer--  your call)
-1 cup (or so) chicken stock
-1 bay leaf
-1 tsp. dried thyme
- 6 crushed juniper berries (about a tablespoon)
-1 tsp. apple cider vinegar (or lemon juice)
-1⁄4 cup chopped parsley
-Salt and freshly ground pepper, to taste

La Technique:
Season your venison with salt and pepper. Be generous. The salt breaks down the protein in the meat and prevents it from becoming tough when you sear it. Do this first so that it has time to work—it should rest for 20 minutes or so, and longer won’t hurt.
Render the bacon lardons in a Dutch oven. The idea here is to add fat to the dish, because the venison doesn’t really have any. You want to slowly sweat the bacon, until it is just about brown, but not quite. At this point I add the knob of butter and let the bacon render a little bit longer. You do not want the fat to be brown, so when it is more or less golden remove the bacon with a slotted spoon and reserve.
Raise the heat to a high medium. Brown the venison in small batches so that you aren’t crowding the pan, and cooling off the fat. I like to get the meat nice and dark, with a bit of a crust on it, but take care not to over-cook. “Sear” is a good word for what you are trying to do here.
Remove the last of the venison to a warm platter and set aside. Reduce the heat to low and add the carrots and the onions. Your goal here is to break the onions down into something nearly like marmalade—you are looking to release the sweetness of both the carrot and the onion. This should take about 20 minutes. About half way through, when the onions are getting nice and soft, add the brown sugar. When the onions are golden brown add the garlic. I mince it, you might just want to crush the cloves. Depends on how you feel about garlic generally I suppose. Give it two or three minutes—enough to be able to smell the garlic, but before its starts to brown.
Raise the heat to medium high, and add the beer. This is a good time to pour yourself a glass as well. Bring to a boil. Deglaze the bottom of your Dutch oven, then add the venison, bacon, chicken stock to cover, and your juniper berries, thyme, and bay leaf. Reduce heat to a simmer, cover and cook until the venison is tender. I’d give it two hours.
When you return, raise the heat to a fast simmer. You want to reduce the liquid to a sauce, which will probably take about 10 minutes. Avoid boiling- you’ve worked hard to make the meat tender, so don’t screw it up by being impatient. Stir in the vinegar or lemon juice, and serve as you’d serve stew. Belgians have it over noodles, and we’ve established that they know what they are doing, so you should at least consider egg noodles. I like a little parsley on the top.

Tuesday, November 13, 2012

It was right on the tip of my tongue, but I couldn't quite articulate what was bothering me about the Petraeus story. Now I remember-- what the hell difference does the guy's marital infidelity have to do with anything, and why did the FBI feel like it needed to be rooting around in it? I was thrown off the trail at first because the people who were saying it were at the front of the howling mob when the philanderer was ol' Bill Clinton. I suppose the potential for blackmail existed, and that's not good when the person you are talking about is your head spook, but that's pretty weak broth. And yes, it is pretty hilarious that the head of the freakin' CIA couldn't keep an affair secret.

I have no opinion one way or another about Petraeus as a general, or as head of the CIA. What interests me is that this mess is yet another example of how law enforcement works in the US. Once something is put into the system the machine is activated, and it grinds on until resolution. The possible outcomes here were all bad, and none of them included a determination that this was a matter best dropped.

Monday, November 12, 2012

The Hon. Richard Posner is one of our heros here at Outside Counsel, but his defense of the Electoral College is off base.

1) Certainty of Outcome. Posner says that a dispute over the vote in the Electoral College is less likely than a dispute over the popular vote. This is, I'm afraid, question begging, since the Electoral College vote is based on the popular vote in each state.

2) Everyone’s President. The idea is that the Electoral College forces candidates to have trans-regional appeal, and validates the winner because voters from different parts of the country will have voted for that candidate. Like hell. As with all of these arguments a single number is sufficient rebutal: 2000. Remember this map?
The Blue states are, mostly, the population centers, except for Texas. We will leave Florida out of it for the moment. Bush won the Old Confederacy and all the states that look big on the map and look empty when you are driving through them.

3) Swing States "The winner-take-all method of awarding electoral votes induces the candidates—as we saw in last week’s election—to focus their campaign efforts on the toss-up states; that follows directly from the candidates’ lack of inducement to campaign in states they are sure to win. Voters in toss-up states are more likely to pay close attention to the campaign—to really listen to the competing candidates—knowing that they are going to decide the election. They are likely to be the most thoughtful voters, on average (and for the further reason that they will have received the most information and attention from the candidates), and the most thoughtful voters should be the ones to decide the election"

Seriously, Judge Posner? You think people who live in Ohio are more likely to be thoughtful voters than people who live in New York?

4) Big States.  The argument here is that the states with lots of people in them would have too much electoral power, and the Electoral College restores balance to the system. The problem with this is that it gives people (who are the ones doing the voting after all) in, for example, North Dakota, greater electoral influence than people in New Jersey. This may have made sense in the Eighteenth Century, when the United States was a loosely amalgamated patchwork of colonies. Today it seems crazy to say that places with lots of people in them should be less important than places with lots of animals, or lots of dirt.

5) Avoid Run-Off Elections. Well, yes. The Electoral College amplifies the popular vote, but it is subject to ties, and when that happens we get the House voting for who becomes President and the Senate voting for Vice President. That is madness indeed.


Saturday, November 10, 2012

I find it absolutely amazing that Mittens and Robin were surprised by the outcome of the election, but apparently that's the case. What this suggests to me is something more profound than mere denial-- it looks more like a refusal to acknowledge science. I mean, I knew it was going to be close, but I was also reading Five Thirty Eight. Didn't Romney or the RNC have polls of their own? Did they reject that polling data as well? If this is the way Romney analyzes data, how come he was able to make so much dough? I've always thought that he was every bit as wrong on everything as Bush, but smarter. Does this mean that he was stupid and wrong? Of course, another possibility is that they reckoned the fix was in. Watching Karl Rove on Election Night it is hard to avoid thinking that he thought he knew something that nobody else was in on.

Come to think of it, what kind of campaign did they think they were running? The 47% thing was an accident-- we weren't supposed to hear that-- but to come right out and say the stuff that they were saying about women and Hispanics was nuts. (It was also a good example of what Republicans think bipartisan means. "Don't let's fight over this, do it our way". Then they are surprised when Hispanics don't want to self-deport, and women don't vote for them.) Oh, and where did Ryan disappear off to? Guess that pick didn't work out so well-- as soon as it happened I called Florida for Obama.

Here's my takeaway: Right-wing true believers accept as an absolute article of faith that Conservationism can never fail, it can only be failed. Bush was a trainwreck because he wasn't conservative enough, and likewise Romney. While it was certainly true that mercurial quality of Mittens' beliefs presented a problem for some people I doubt that many Republicans stayed home on that account. Even so, a Republican Party that is even now carrying on the way I'm reading and hearing is unlikely to take a clear-eyed look at the data at this late date. They are going to double down on the crazy, mark my words.

Friday, November 09, 2012

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?

Thursday, November 08, 2012

Here's my Guest Essay from this week's ArtVoice.

Wednesday, November 07, 2012

A few post-Election Day notes from home:

A. spent the day canvassing in Cayuga County, Ohio. I picked her up at about quarter to eleven in the UAW parking lot, and we hadn't driven a mile before the Buckeye State was called. I credit her for the win.

Chris Matthews mentioned it last night: this is the first time since FDR that a Democratic Presidential candidate has won 50% twice.

The Hoosier State went red, I think because EGA moved to the Show Me State (also red). Not a total loss though-- Indiana Republicans threw Dick Lugar out after six terms-- a record for an Indiana senator-- and nominated Richard Mourdock to replace him. As you might expect from a guy who's name sounds like a Harry Potter bad guy Mourdock proved to be a horrible candidate. He sealed the deal with an idiotic remark about rape, and now Indiana has a Democrat in that seat for the first time since 1977. I had to look up who was there before Lugar: it was Vance Hartke. Funny to think that there was a time when Indiana had Hartke and Birch Bayh as its senators. Both of them were liberal even by the standards of the time. Come to think of it, there was a time when Lugar was regarded as an arch-conservative.

As a middle aged white dude I suppose I ought to be upset that women and Hispanics are the key demographic going forward, but I'm not. Good luck women and Hispanics! You can't possibly do a worse job than we did!

I was surprised by Iowa. I was not surprised by North Carolina.

I'd like to take a moment to thank Nate Silver for helping to get me through this.

Eight years ago Karl Rove engineered having marriage equality referenda on ballots in key states in order to drive up Republican turnout. Funny how things change.

The people of Puerto Rico voted (53%) to change their political status to that of statehood (65%). But Congress has to approve the change. For the past thirty years or so Republicans have been saying that they need to court the Hispanic vote-- here's their chance. Anybody think the House will approve it? Me neither.

I really hate Chris Collins, and I'm sorry that Kathy Hochul lost. Funny to think of Collins in the seat that once belonged to Jack Kemp. And Bill Paxon. And Tom Reynolds. It's a safe Republican seat that has traditionally been held by someone in a national leadership position, and I wonder if that's what Collins has in mind.

Can we have hockey back now?

Tuesday, November 06, 2012

I was number 95 at my polling place at 8:35 this morning.

(A is in Cleveland.)

Monday, November 05, 2012

One of the interesting things we do at meetings of the Academy of Hospitality Industry Attorneys is to occasionally go on a back of the house tour. This past week we met at a world-famous resort in a southern swing state and did just that, and it was absolutely fascinating. Now, I'm the kind of guy that would have been thrilled with just getting to see the massive central laundry facility at this place, and we did get to do that, but we also got a glimpse of the backstage operations of the theme park, and I must say that I have never seen anything like it.

I should mention that even though A and I have been blessed with three daughters, none of us have ever been in one of these theme parks before. (A and I stayed at one of the hotels once, on a visit to Japan, but that's a different story, for a different time.) The resort prides itself on its delivery of a family friendly experience, and one of the chief ways it does this is by fostering a culture that furthers this goal. That culture is pretty pervasive, and manifests itself in a number of ways, some subtle and some overt. As part of the backstage look we were given, for example, we were told, in no uncertain terms, and as nicely as possible, that photography was forbidden. ("We want to keep this experience as magical as possible for our guests, and so we ask that you put your cameras and phones away when we are backstage. We have age restrictions on these tours, and only our special friends get to see what you are about to see. We know that you don't want to spoil the experience for our other guests and their families.") Fair enough. Although the experience of the resort is not something that my family and I ever sought, you would have to be made of more curmudgeonly cloth than I am to be unmoved by the excitement and happiness of the children I saw at this place -- at least until the end of the day, or the end of the stay, when they became cranky, and my curmudgeonly demeanor was restored.

So what can I tell you? Well, I can tell you that this place has developed a special vocabulary. Souvenirs, for example, are called "tangible memories". It is pretty well-known that it refers to employees as "cast members". The people in the laundry, the housekeepers, the lifeguards and the food service people are all cast members. Supervisors are "team leaders". The human resources department is the "casting department", and they hire with a specific focus on finding people who embody the disarming cheer that pervades the overall guest experience at the resort. To its credit there are a number of services on premises that are designated explicitly and exclusively for the use and convenience of the cast members-- a full service medical clinic, banking, hair salons, dry cleaning, daycare, pet care-- a lot of the mundane errands that consume ones' outside activities can be accommodated on premises. It is pretty clear that they want to hire people who are really into working at this resort, and are not just happy to have a job. A perk that people really like, for example, is a free pass to the park. We saw more than a few cast members who were there on their day off. There are plenty of places in town where housekeepers can work-- these people want housekeepers who feel like working here makes them part of something like being in a show. There seems to be a great emphasis on employee moral-- bulletin boards, and flatscreen televisions and a multilingual newsletter are full of cast member photographs and quotes, and there are a number of awards-- a big one is called, I think, the Founder's Award, although it may actually be named for the Founder. You can recognize recipients of this award because their name badges are blue instead of white. When one cast member encounters another a smile and a sincere 'Hello" is the norm, but when you run into someone with a blue badge you say, "Congratulations!".

There are a lot of peculiar things that go on with guest interaction. There are no prices on anything, for example, except on the paper menus in the high-end eating places. When they want to show you the room rate you are being charged they punch it into a calculator. They sell the place hard: There is a bus and bag service from the airport, and the video that is played on the way in shows the various attractions, then hypes packages for return visits, then shows a cartoon short featuring a beloved character. (Mine was about a irascible waterfowl on a camping trip.) Likewise on the way back. Cruises, parks in other countries-- as the parents around me on the bus tried to decompress in an atmosphere so charged with juvenile overload fatigue that I felt I needed a nap myself we were treated to a video about the things we could do on our next visit-- including, three days after the announcement appeared in the news, new features involving characters from a galaxy far, far away.

It was also apparent that the resort is used to accommodating the quirks of its clientele. As I was checking out the cast member who was handling the transaction asked me if I'd like to have my room keycard recycled, or if I'd rather keep it "as a souvenir". "It's called a 'tangible memory'," I replied, and tucked it into my pocket.

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