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.
Posts Tagged ‘assumption of risk’
“Golfer not liable for errant golf ball”
Assumption of risk wins one in Hawaii: “A golfer may not be held liable for mistakenly hitting another golfer with an errant golf ball, the Hawaii Supreme Court ruled.” Ryan Yoneda sued after being hit in the left eye by Andrew Tom’s wayward ball at Mililani Golf Course, but “Chief Justice Ronald Moon wrote Yoneda assumed the risk of the injury when he played golf.” However, the court did allow a lawsuit to proceed against the course owner on grounds of negligent design. (AP/San Francisco Chronicle, May 16; Ken Kobayashi, “Golf at your own risk, court rules”, Honolulu Advertiser, May 15).
Update: garden-center bird attack
Alton, Ill.: U.S. District Judge William Stiehl has thrown out Rhonda Nichols’ lawsuit (Apr. 14, 2005) claiming that she was attacked by a bird at a Lowe’s home improvement center, and that Lowe’s should have warned her about the hazard. Judge Stiehl ruled “that a ‘reasonable plaintiff’ either would have noticed the birds or understood that contact with them was possible in any outdoor area with plants.” (Jim Suhr, “Woman’s suit against Lowe’s for bird attack won’t fly”, AP/Chicago Sun-Times, Jan. 5). Courthouse News has the opinion (PDF).
“How To Increase Liberty In America”
National Review’s 50th Anniversary Issue is on the newsstands (table of contents) and one of its features is a mini-symposium by ten writers on the topic “How To Increase Liberty In America” (more: “Corner”, Jacob Sullum at Reason “Hit and Run”, criticizing Robert Bork’s entry). I’m one of the contributors; my piece calls for reviving the vital old principle of assumption of risk in our courts. The piece is online to subscribers only at the moment.
Speaking of symposium entries that are online to subscribers only: the October issue of The American Lawyer ran a supplement on the cost of litigation, again with contributions from numerous authors. My piece focused on the cost of the discovery (information-demanding) phase of lawsuits.
At some future date I may get around to posting these pieces. In the mean time, readers should consider supporting both these fine publications, whether by subscribing or by buying single copies.
N.J. high court okays foul-ball suit
A classic application of the assumption-of-risk doctrine was the rule that ballpark owners were not liable when a foul ball hit into the stands injured a fan. But assumption of risk has been less than popular in the law schools for a long time, and is under constant pressure from the plaintiff’s bar, which would like to curtail or eliminate it. Now, per Law.com, the New Jersey Supreme Court has rolled back the foul-ball rule as regards parts of a stadium devoted to concessions, mezzanines and so forth, though apparently not (yet) seating areas. One likely result: more installation of netting and other screening, even if it impairs fans’ viewing experience. (cross-posted from Point of Law)
Neil Pakett v. Phillies
You may recall the Center for Justice & Democracy’s Zany Immunity Law Awards criticized the three states that provided immunity to baseball stadiums for spectator injuries. The immunity is based on the common-law doctrine of assumption of the risk, made explicit on the back of baseball tickets and announcements at baseball games. Nevertheless, dentist Neil Pakett is suing the Phillies for compensation for injuries he received when he unsuccessfully tried to catch a foul ball hit by shortstop Jimmy Rollins. The case has been thrown out by the trial court, but Pakett is arguing that the fact that the Phillies built a backstop creates a duty for them to have built a backstop that would’ve protected him. The Phillies will likely win, but they’ve sure spent a great deal of money defending themselves against the eventuality that they have a judge who wants to make new law, and a statutory immunity law would’ve provided a clearer rule that would have discouraged the suit in the first place. (Mark Levy, AP/LA Times, Feb. 4). Update: Phillies’ win affirmed.
Judge: noise complaint merits no Creedence
According to Tim Sandefur (Aug. 6), musician John Fogerty, best known for his work with Creedence Clearwater Revival, in April of last year “prevailed in a lawsuit brought by an audience member who alleged that Fogerty?s music was so loud as to harm his hearing at the concert. …The opinion [by Judge Martin Schoenfeld], studded with quotations from Fogerty?s songs, held that
there is no standard of care by which a jury could determine on the evidence presented that defendants had breached a duty owed to plaintiff. Without knowing what is ?too loud,? and without knowing how loud the concert actually was, a jury would have to engage in double speculation to conclude that defendants? music was ?unreasonably loud.? Second, the doctrine of primary assumption of risk bars the instant action.
Finding no relevant cases in which concertgoers had been allowed to sue over excessive volume, the court also noted:
Surely this dramatic absence of litigation, in what is perceived to be such a litigious nation, speaks volumes to the fact that the principle applicable to the social compact governing the volume at Rock & Roll concerts is caveat emptor…. Litigation by an ?eggshell ear? plaintiff is not an appropriate means to impose an unlegislated noise code upon performers…and their legions of screaming fans….
The case cite (per Sandefur) is Powell v. Metropolitan Entertainment Co., Inc., 195 Misc.2d 847, 849 n. 1 (N.Y.Sup. 2003).
$2M suit against city for home plate collision
Over-35 Men’s Slow-Pitch softball player Michael Licitra is suing an opposing player, John Knowles, and the Village of Garden City for $2 million over a broken left leg suffered in a collision at home plate in September 2001. Knowles claims he legally slid head-first; Licitra claims it was a collision that violated league softball rules, though that doesn’t explain why it’s the city’s fault. (Jonathan Mummolo, “Injured softballer crying foul”, Newsday, Jul. 15) (via Romenesko). State Supreme Court Justice Bruce D. Alpert held that the doctrine of assumption of risk “did not relieve the defendant from the obligation of using reasonable care to guard against a risk which might reasonably be anticipated,” which begs the question what Garden City should’ve done differently other than ban softball.
Which, according to Alex Tabarrok, is what is happening to the British school tradition of playing conkers, which occasionally results in bruises from inadvertent (but apparently inevitable) contact. Liability concerns are causing schools to ban the game–along with rugby, soccer, and even recess. The New York Times has an article about the larger issue of the growing problem of American-style lawsuits in Britain. Medical negligence claim costs have risen more than a hundredfold after inflation in the last thirty years. (Sarah Lyall, “Britain’s Stiff Upper Lip Is Being Twisted Into a Snarl”, Jul. 13).
“Gatekeeper awards” from Common Good
Common Good, the advocacy group chaired by author Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and whose motto is “Reforming America’s Lawsuit Culture”, on Apr. 8 announced its first “Gatekeeper Awards” honoring judges who throw out lawsuits that would better never have been filed. Among the cases praised: a Pennsylvania Supreme Court opinion excluding scientific testimony to the effect that Doritos, the snack food, is intrinsically unsafe in texture; a Virginia high court ruling upholding assumption of risk in the case of a baseball spectator hit by a ball; a Third Circuit decision holding that a “public school third-grader cannot sue for being prevented from soliciting classmates’ signatures for a petition opposing a voluntary class trip to the circus”; an Eighth Circuit opinion excluding punitive damages in the case of a patently accidental air crash; and the Nevada Supreme Court’s ruling (see Nov. 7) that a passenger cannot sue a homeowner over injuries sustained when a car crashed into a flowerbed.
“Stoned Skater Can Sue County”
Via Legal Reader (May 3): a California court of appeals has reinstated 17-year-old Angelo Seaver’s suit against Santa Cruz county, which a trial judge had thrown out. While stoned on pot one moonless night Seaver had gone skateboarding in a public park after closing and crashed into a gate. The “panel found that because there were no signs, reflectors or lighting to help Seaver see the gate, the county created a ‘dangerous condition of public property.'” The county could not rely on the defense of assumption of risk, the court ruled, “because Seaver was riding his skateboard for transportation, not to perform stunts”. (Peter Blumberg, San Francisco Daily Journal, May 3, not online; Angelo M. Seaver v. County of Santa Cruz, unpublished opinion, Apr. 30 (PDF))(more personal-responsibility cases).