On Jun. 19, 2005, police say, at the Keg of Evanston pub in suburban Chicago, Antoine Hill, then 19, shot to death Robert Gresham, 22, in a dispute over drugs. Now Gresham’s estate is suing the bar, for allegedly letting Hill inside and serving him alcohol; and a bank, as well as Hill himself. “Charles Jacques, the attorney representing Gresham’s estate, said he suspects the bank might own the building the bar is in.” Hill has pleaded not guilty to charges of first-degree murder. (“Suit filed in Evanston shooting”, Chicago Tribune, Jun. 9).
Archive for June, 2006
“The timorous may stay at home”
John Caher in the New York Law Journal discusses the views of Benjamin Cardozo on assumption of risk:
Assumption of risk in cases arising from athletic or recreational activities is a principle that has been part of New York law at least since 1929, when in Murphy v. Steeplechase Amusement Co., 250 NY 479, Chief Judge Benjamin N. Cardozo said that one who “takes part in … sport accepts the dangers that inhere in it so far as they are obvious and necessary.” That case involved a plaintiff who fell from an amusement park ride called “The Flopper” and suffered a leg injury.
“Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall,” Cardozo wrote in reversing the Appellate Division, 1st Department. “Many a skater or a horseman can rehearse a tale of equal woe… . One might as well say that a skating rink should be abandoned because skaters sometimes fall.” He added: “The timorous may stay at home.”
(“Panel Rules Hurt Olympic Skater Assumed ‘Inherent Risk’ of Sport”, May 1). Declarations and Exclusions (Apr. 7) and Rick Karcher (May 22) have more on some recent assumption-of-risk cases in California, including a 6-1 decision by the state’s high court ruling that a college baseball player could not sue over a “bean ball”. See Mike McKee, “Calif. Supreme Court: Ballplayer Can’t Sue for Bean Ball”, The Recorder, Apr. 10.
UK: Danger! Palm trees ahead!
“Palm trees along the seafront at Torbay have been emblematic of the English Riviera for decades. Now they have become emblematic of the modern obsession with health and safety. Council officials have written to the chamber of trade saying the trees are a potential hazard because their sharp leaves could cause injuries to eyes or faces.” (Richard Savill, “Palm tree ahead danger”, The Telegraph, Jun. 10; Steven Morris, “Keep dangerous palms off the street, Torbay told”, The Guardian, Jun. 10)(& Sense Is Not Common).
Ho Lee smoke
“The New York Times, the Washington Post, the Los Angeles Times, ABC News, and the Associated Press pooled $750,000 last Friday to buy their way out of a civil suit in which they weren’t even defendants….the money isn’t the issue. A greater danger is that the Wen Ho Lee settlement may signal to plaintiffs’ attorneys that newsrooms are becoming soft touches when it comes to subpoena defenses.” (Jack Shafer, “Wen Ho Ho Ho Lee Gets Last Laugh”, Slate, Jun. 7). Another view: Michael Kinsley, “Two Bad Cases for Anonymity”, Washington Post, Jun. 11.
Update: Constantine’s antitrust fees
Lloyd Constantine of Constantine Cannon and his co-counsel asked a judge for more than $600 million in fees and expenses for their work representing plaintiffs in the Visa/MasterCard antitrust litigation (see “$550 million? We’re worth it”, Aug. 22, 2003). He hired two big-name lawprofs, Columbia’s Jack Coffee and Harvard’s Arthur Miller, to draw up expert reports blessing the fees. However, the judge described the request as “absurd” and “fundamentally unreasonable”, instead allowing $220 million. Cue the violins! (Paul Braverman, “A $220 Million Payday”, The American Lawyer, Jan. 20). Incidentally, “before he started the firm, [Constantine] spent eight years at Legal Services Corp. and 11 at the New York state attorney general’s office, where he was in charge of antitrust enforcement”.
“Attorneys Gear Up for Suits Over ‘Virtual Medicine'”
“Attorneys warn that virtual medicine — which has popped up in hospitals and clinics in more than a dozen states in the last two years — could open the floodgates to malpractice claims, privacy disputes and licensure problems.” (Tresa Baldas, National Law Journal, Jun. 9). Reader James Ingram writes:
This is infuriating. One of the understood failings of the U.S. health care system is the poor monitoring of patients with chronic conditions such as asthma, hypertension, diabetes and the resulting poor compliance with proven treatment regimes. Virtual medicine is a very promising solution to this problem, enabling patient and doctor to consult briefly and frequently without the inconvenience (to the patient) of making an office visit. In a five or ten minute web conference patient and doctor can discuss topics such as blood pressure or blood sugar readings, compliance with medication regimes, diet and exercise, symptoms and side effects experienced etc. without either having to leave home or office. Do we think we will get better results with the present system — where the patient must take time off from work, drive to the doctor’s office, wait and wait some more — and therefore doesn’t bother?
And that’s not even to mention the opportunities to reach patients who have difficulty making it to their doctor’s office because of age or disability or the opportunities for patients in small towns and rural areas to consult specialists in distant cities.
Whatever happened to the Nitpicker’s Guides?
Ask Paramount, whose lawyers zealously police unauthorized discussion of the Star Trek franchise (NitCentral, May 15, 1998, scroll to Phil Farrand, “I’m afraid I have some bad news”; Aug. 7, 1998, scroll to “Bullies on the Playground”). More on fan literature: Feb. 14, 2005.
Assumption of risk (mollusc dept.)
Diners who order shellfish, such as mussels, assume the risk of encountering broken pieces of shell, ruled a New York judge who threw out a Long Island woman’s lawsuit against the Blue Moon restaurant in Rockville Centre attempting to recover for injuries arising from her encounter with the allegedly defective plate of mussels marinara. (“Judge Shucks Shellfish Suit”, WCBS, undated, about Jun. 7). More: Lattman, Jun. 12.
Jack Thompson at it again
Perennial anti-videogame action-filer (and Overlawyered favorite) Jack Thompson is at it again, this time in Louisiana:
Acting on a Florida lawyer’s suggestion that violent video games may have figured in Tuesday’s slaying of a West Feliciana Parish man, sheriff’s deputies searched the home of one teenage suspect again on Thursday.
West Feliciana Parish Sheriff’s Capt. Spence Dilworth said deputies seized several video games rated “M” for “Mature” from the residence of Kurt Edward Neher, 16, but the detective said he is not drawing any conclusions from his findings.
Thompson says “published reports of Gore’s injuries ‘raised a red flag’ in his, Thompson’s, mind.” For instance? Well, reports that the youths killed their victim because he would not lend them his car reminded Thompson of scenarios in “Grand Theft Auto”, and that “the apparent repeated ‘pummeling’ of the victim is consistent with scenes in violent video games.” Douglas Lowenstein, president of the Entertainment Software Association, responded in a rather restrained fashion, pointing out that “Violent crime involving kids predates video games”. (James Minton, “Video games seized from teen’s home”, Baton Rouge Advocate, Jun. 3).
Foie gras and slippery slopes
Chicago’s recently enacted ban on the delicacy (Apr. 27, May 4) has got Alderman Edward M. Burke thinking: now that we’ve started, why can’t the city ban less healthy frying oils and that sort of thing too? (Fran Spielman, “Alderman wants to limit fatty, fried fast food”, Chicago Sun-Times, Jun. 8).
More: In April, the Washington Post ran an op-ed by a cardiologist who averred:
Food calories are so pervasively and inexpensively available in our environment that they should be regarded as a pollutant. Just as an asthmatic can’t help but inhale pollutants in the air all around him, we Americans cannot help but ingest the calories present in the environment all around us.
(John G. Sotos, “A Modest — and Slimming! — Proposal”, Apr. 7). The Consumerist (Apr. 13) and Rogier van Bakel (Apr. 18) react with appropriate scorn. And a new report commissioned by the federal government proposes that the feds jawbone restaurants into reducing portion sizes (“FDA Report Urges Restaurants to Help Downsize America”, AP/Washington Post, Jun. 3). See also Radley Balko, Apr. 21.