• If you’re claiming benefits for “total and permanent” disability it’s probably best not to enter bodybuilding competitions [Boston Globe and more, firefighter Albert Arroyo] More: GruntDoc;
• From 1884 Montreal: actionable to snub a parishioner while taking collection in church? [Volokh]
• Follow the bouncing venue in lawsuits against Rick Frenkel and Cisco over Patent Troll Tracker blog [Texas Lawyer "Tex Parte" blog]
• Individual liberty was one reason Bill Gates was free to earn his billions, too bad he’s not doing more to advance it with his philanthropy [NYTimes, Bloomberg and "tobacco control"]
• Andrew Giuliani, son of the mayor, is suing Duke University for kicking him off its golf team [Newsday, Henican] More: complaint at Popehat;
• New at Point of Law: AAJ, formerly ATLA, has its convention in Philadelphia (more); bogeyman of supposedly ultraconservative Roberts Court; why must “trophy” federal courthouses have such soulless and uncomfortable design?; Congress gunning for arbitration; too bad NYT’s enthusiasm for transparent public contracting on corporate monitors doesn’t carry over to other lawyer-hiring; the Delaware advantage in court organization; as we keep asking, what happened to Ron Motley’s yacht? and much more;
• Dr. Anna Pou, New Orleans cancer surgeon whose prosecution after Katrina roused intense controversy, recounts her experience [AP via Folo]
• “Unreal world of greed”: California appeals court throws out $88 million fee-arbitration award to Milberg Weiss and other firms following challenge to “smog impact fees” [six years ago on Overlawyered]

• New York attorney suspended from practice after attempting as guardian to extract $853,000 payday from estate of Alzheimer’s victim [ABA Journal, Emani Taylor]
• Bought a BB gun to fend off squirrels, now his 20-year-old son faces three years for bare possession [MyCentralJersey.com via Zincavage]
• U.K.: “Sports clubs face being put out of business following a landmark court ruling forcing them to be liable for deliberate injuries caused by their player to an opponent.” [Telegraph]
• Prosecutors in Norwich, Ct. still haven’t dropped their case against teacher Julie Amero in malware-popup smut case. Why not? [TalkLeft, earlier]
• Dealership protection laws, deplored earlier in this space, work to make a GM bankruptcy both likelier and messier [The Deal]
• Strange new respect for talk show host Joe Scarborough in quarters where conservatives are ordinarily disliked? Some of us saw that coming [NYMag]
• Following Rhode Island rout of lawsuit against lead-paint makers, Columbus, Ohio drops its similar case [PoL, Akron Beacon Journal editorial]
• In latest furor over free speech and religious sensitivity in Europe, Dutch authorities have arrested cartoonist “suspected of sketching offensive drawings of Muslims and other minorities” [WSJ; "Gregorius Nekschot"]

Is a coach liable for any injuries when he asks an injured athlete to return to the game? It’s the final scene of just about every hard-luck sports flick ever filmed.

In a recent article, Prof. Timothy Davis of Wake Forest Law observes that coach liability is a real risk in amateur and school athletics. “Coaches owe a duty of care to their students not to increase risks that are inherent in a sport.” Thus have coaches been held liable, from time to time, for their players’ injuries.

But what about in the wide world of professional sports? There’s not much precedent, but it should be possible:

The forgoing cases suggest that, where an athlete is injured as a consequence of a coach acting in a manner that is outside the realm of his or her expertise, potential liability based on recklessness might ensue. This is particularly the case where coaches have actual or constructive appreciation of the potential risks that might flow from their conduct.  Such would be the case when a coach’s decision is contrary to medical advice.  Similarly, a coach’s demand that an athlete return to play, given the coach’s absence of medical expertise, arguably provides evidence of recklessness, since it disregards an immediate and readily ascertainable risk, in contrast to an abstract possibility of risk.

Still, Davis lists a variety of bars to liability–worker’s comp, athletic “culture,” federal preemption, arbitration, etc.–and concludes that pro coaches don’t face great incentives to protect players’ health–at least, not yet.

The trial-bar-friendly New York Times has gone a bit overboard of late agitating about concussions in football. Davis, however, points to the league’s response as a model of how to make progress outside of the courtroom.

“A New Jersey couple, whose son was struck in the chest with a line drive, is planning to sue the maker of a metal baseball bat used in the game.” The family of Steven Domalewski “contends metal baseball bats are inherently unsafe for youth games because the ball comes off them much faster than from wooden bats. The lawsuit will also be filed against Little League Baseball and a sporting goods chain that sold the bat.” (AP/FoxNews.com, May 18). Earlier: Apr. 19 and Dec. 30, 2002.

Sports doctors say more youngsters are coming in with arm injuries from excessive hard pitching on the baseball field. In Washington state, Jason Koenig has lost his lawsuit claiming that North Mason High School was negligent in not overriding his wishes to stay in for all nine innings, 140 pitches, in a game in April 2001, resulting in injury to his arm. (Tom Wyrwich, “Former high school pitcher hopes rules are changed to protect young arms”, Seattle Times, Apr. 29).

We’ve reported before (Dec. 24-27, 2001; May 7, 2005; parallel case in New York, Jul. 10, 2004) on the lawsuit charging Michigan high school sports directors with sex discrimination for scheduling girls’ sports in different seasons than boys’. Such cases are subject to “one-way” attorney fee shifting (plaintiffs collect if they win, but need not fear paying if they lose) and the rules for fee calculations are generous. Now the judge has approved a plaintiff’s fee that the athletic directors’ association say threatens to push their group into bankruptcy; opponents say it’s their own fault for resisting so long. Nearly $3 million in fees plus interest are set to go to Kristen Galles, a solo practitioner in Alexandria, Va., whose large number of billed hours at $390/hour may relate to her having worked without a paralegal or secretary. (Julie Mack, “Michigan High School Athletic Association owes $7.4 million in legal fees, interest to lawyers who won case to change the girls sports season”, Kalamazoo Gazette, Apr. 21)(via ABA Journal); “Athletic Group Ordered To Pay $7M”, AP/LexisOne, Apr. 2).

Marc Edelman, guest posting at Above the Law (Apr. 24):

For an example of one of the more extreme disability claims, in Badgett v. Alabama High School Athletic Association, 2007 WL 2461928 (N.D. Ala. 2007), the parents of a wheelchair-bound student with cerebral palsy, Mallerie Badgett, brought a claim arguing that wheelchair-bound students should be allowed to compete for team points against able-bodied students running in a track race on foot. According to the complaint, “Miss Badgett [was] concerned that competing in a separate wheelchair division [would] affect her ability to receive college scholarships and other benefits.” The Northern District of Alabama ultimately, and wisely, denied Badgett’s request for a preliminary injunction.

Edelman also discusses the better-known controversy in which the Lausanne-based Court of Arbitration for Sport will consider (presumably not applying U.S. law) the appeal of double-amputee sprinter Oscar Pistorius who will be arguing that his prosthetic legs do not in fact provide an edge over real legs.

At least a little bit of the way: you can now watch the game in church. (”NFL Reverses Call On Church Parties”, Washington Post, Feb. 21; earlier).

Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.

*** END QUOTE ***

If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

In Duke lacrosse; emotional distress; libel slander and defamation; schools; sports

“A lawsuit filed Friday by a former St. Louis Rams player and others seeks millions of dollars in damages from the alleged taping of Rams practices by the New England Patriots before the 2002 Super Bowl.” (AP/MSNBC, Feb. 15).

The lacrosse players’ problem was that they just didn’t do it the right way (Stuart Taylor, Jr., “The University Has No Clothes”, National Journal, Feb. 11)(will rotate off free site).

One of the many things I like about my girlfriend is that she’s the one who wants us to get a bigger television. Of course, if we got too big a television, we might not be able to hold our annual Super Bowl party: the NFL is sending around its annual set of scare letters to anyone offering a public exhibition of the Super Bowl on a television larger than 55 inches. (Jacqueline L. Salmon, WaPo, “NFL Pulls Plug On Big-Screen Church Parties For Super Bowl”, Feb. 1). Yes, you’ve seen this story before: Feb. 3 and Jan. 31 last year.

Update: and at the WSJ ($).

There are more than 1,000 documented nationwide, including 113 in Vermont alone. The “1970s were hard times for operators of ski areas. There was an energy crisis, which not only cut down leisure driving by potential customers but saddled areas with higher energy prices. At the same time, liability insurance costs spiked. The histories of dozens of small ski areas end with the conclusion that it could not reopen one winter because the owners could not afford their insurance premiums.” (Bill Pennington, “Vermont’s Forgotten Trails and Frozen Lifts of Winters Past”, New York Times, Jan. 25).

Crystal Timpanaro was sitting in a golf cart near the 16th tee at Owl’s Creek Golf Course in Virginia Beach watching her boyfriend play when a golfer at the 17th hole shanked a drive that hit her, per her lawsuit, which claims inadequate warning and misdesign of the course. (Deirdre Fernandes, “Woman struck by golf ball files suit, alleging design flaw in Beach course”, Virginian-Pilot, Jan. 5).

60-year-old David J. Pfahler of Allentown, Pa., has filed suit in Denver “claiming Scott Swimm, then 7, was skiing fast and recklessly when they collided in January” at Beaver Creek. Pfahler wants upwards of $75,000 over a torn shoulder tendon which necessitated “physical therapy, vacation time, nursing and medical services provided by Pfahler’s wife, and other expenses”. Scott’s mother says he weighs 48 pounds “and couldn’t have been going more than 10 mph. ‘Who in the world sues a child?’ she said. ‘It just boggles my mind every day.’” (”Man, 60, sues boy, 8, over ski collision”, AP/Boston Globe, Dec. 20; Steve Lynn, “Boy, 8, sued in Beaver Creek ski collision”, Vail Daily, Dec. 19).

Following widespread public anger, the plaintiffs say they have been subjected to harassment in what their lawyer, Jim Chalat, calls an “electronic tar and feathering” (”Couple that sued Eagle-Vail boy hears complaints”, Vail Daily, Dec. 26; letters, Dec. 24; more coverage, Dec. 27 and Mark Wolf’s Rocky Mountain News blog; Obscure Store).

Anucha Browne Sanders will get $11.5 million, including $4 million in legal fees, to settle her claim of misconduct by Isiah Thomas and others. The Garden did not keep quiet about its view of the result, calling it a “travesty of justice”. (Richard Sandomir, “Garden Settles Harassment Case for $11.5 Million”, New York Times, Dec. 11). Earlier: Oct. 2, Oct. 4.

When highly-paid sports figures are hurt in car crashes or other accidents, the potential damages are of course enormous, and the incentives to pursue creative litigation options seem to be accordingly sharp. On Oct. 4 we reported on the legal aftermath of a 1997 rented-limo crash that ended the careers of Detroit Red Wings hockey star Vladimir Konstantinov and team masseur Sergei Mnatsakanov and also injured star player Viacheslav Fetisov, who later returned to the ice. We noted then that lawyers for two of the injured team members were suing a car dealer that sold the vehicle involved, on the perhaps creative theory that by making the seat belts too hard to reach it was legally responsible for the passengers’ non-use of them. Now we learn via the New Jersey Law Journal about a different arena of litigation on the injured players’ behalf. It seems they “sought to cash in on New Jersey’s reputation for pro-policyholder jurisprudence” by filing an action seeking $200 million from the National Hockey League’s providers of auto insurance. However, a “unanimous New Jersey appeals court ruled in 2006 that the carriers were not liable, and affirmed a summary dismissal of the coverage suit. The NHL policy, while it covered team vehicles, did not cover drivers who worked for outside limousine companies, even if the limo companies were hired by teams,” according to the panel’s ruling. Now the New Jersey Supreme Court has declined to review that ruling. (Henry Gottlieb, “NHL’s Insurers Score Hat Trick in N.J. Supreme Court”, New Jersey Law Journal, Oct. 29).

As a Judge Morris Arnold opinion holds (h/t Slim) baseball players can’t prohibit fantasy baseball players from playing games based on their statistics. Earlier: May 2006; April 2005.

Not only does this post allow me to celebrate one of my favorite judges, but I can also use this platform to note that Kenny Lofton was out: not because he didn’t beat Manny Ramirez’s throw into second base (he did), but because he bounced off the bag afterwards while still being tagged.