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John Hochfelder Archives

It happens too often - after teeing off, playing partners scatter all over the golf course and hit their next shots when they are ready (without regard to the safety of those ahead of them). It's a breach of etiquette and it's not safe but usually golfers are protected from liability if their shots strike a player ahead on the course. I've written about these cases over at New York Injury Cases Blog here and here and Walter Olson has of course chronicled many such cases at Overlawyered.

Last week, a Pennsylvania appellate court dealt with a slight variation of this common fact pattern and ruled that the assumption of the risk doctrine does not protect long-ball hitter Troy Fisher. Troy, you see, could hit a golf ball 300 yards (that's Tiger Woods type distance) and the next hole was only 301 yards long; however, it was uphill so Troy and his playing partners could not see if the group ahead of them had finished the hole. One of those partners was Stuart Zeidman, who, like most of us, can't hit the ball 300 yards so Fisher had him go ahead to the crest of the hill to see what he could see and report back. On his way back, about 100 yards from the tee box where big Troy was waiting (or so he thought), Zeidman was struck in the face with a duck hook (a lousy shot) launched by Fisher.

That case, Zeidman v. Fisher, is going to trial (unless it settles beforehand) because Zeidman did not assume the risk of being hit by Fisher. It was Zeidman who was trying to help Fisher avoid hitting anyone in the group ahead and it was Fisher's duty, it seems, to wait for Zeidman to return to the tee box and a zone of safety.

Ironically, had Fisher teed off and struck a player in the group ahead on the next hole, there would have been no liability. Those players would be held to have assumed the risk.

Personal Note: This post concludes my week of guest blogging here at Point of Law. It's been a pleasure and a privilege to pitch in and work side by side with Walter Olson and the Manhattan Institute. I hope readers have enjoyed my efforts. I now head back to my home perch, New York Injury Cases Blog, where one can find posts that address in detail the valuation of pain and suffering in injury cases as well as other matters of interest to the legal community.

It was just a few days before the nationwide release of "The Cell," starring Jennifer Lopez when Shamel Smith surfaced claiming he was the screenwriter and demanding from the movie's producer that he be paid $250,000 or he'd seek an injunction. Turns out he wasn't the screenwriter, he got indicted for forgery, convicted by a jury and spent a year in state prison. Technically, though, signing one's name to a screenplay written by someone else is not the type of document contemplated under New York's Penal Law Section 170.10 (referring to writings that purport to be deeds, wills, contracts, public records and the like). So, Smith's conviction was reversed (People v. Smith, 306 A.D.2d 225; Appellate Division, 1st Dept., 2003) and he was set free.

And then he sued the state under the Unjust Conviction Act which provides that people who prove they are innocent and were wrongfully convicted and imprisoned may recover damages against the state. That case went to trial and has now been dismissed.

The problem for Smith was that his criminal conviction was reversed on a mere technicality and he could not prove he was in fact innocent (a requirement under the statute). To the contrary, the judge found that all of the facts at trial indicated that Smith had taken the movie script and inserted his name to it and attempted to extort money from the producer.

And too, the judge noted that Smith had a prior history of two felony convictions for forgery (one involving a $5,000,000 bank theft).

Once again, an appellate court in New York has enforced the long standing concept that in order to recover money damages for a decedent's pre-death pain and suffering in a negligence case there has to have been some level of cognitive awareness on the decedent's part. In Johnson v. Jacobowitz, handed down this week, the court upheld a trial judge's ruling refusing to allow a jury to consider the issue of damages in a medical malpractice wrongful death case. Dolores Johnson never awoke after surgery to remove a blood clot and she died five days later. The doctor was found liable but since there was no evidence that Ms. Johnson was aware of pain or that she suffered during those five days (as she never awoke from surgery) then there was no viable pain and suffering claim to submit to the jury.

The rationale for this result was stated in McDougald v. Garber, (73 N.Y.2d 246) decided in 1989 by New York's highest court: pain and suffering recoveries rest on the legal fiction that money damages can compensate for a victim's injury; however, there is no compensatory purpose to be served when the victim is unaware of his injuries.

More on the Johnson case and the issue of wrongful death pain and suffering damages over at New York Injury Cases, my regular blogging perch, here.

Montana attorney Steven Harman gave an unusual closing argument in a medical malpractice wrongful death case (Heidt v. Argani - links below) that ultimately resulted in an appellate court reversal of a defense verdict. The attorney "channeled" the dead plaintiff - delivering a first-person narrative describing the death (from a worn out aortic valve) and using phrases such as: "My God, I'm dying," and describing in gruesome detail what it was like in the autopsy. No doubt, Harman was trying to get the jurors' sympathy.

This tactic overwhelmed one juror who announced she thought she was going to pass out. She'd become dizzy and was briefly attended to by two physicians (the defendant herself and one of Mr. Harman's law partners who is also a physician) as well as three nurses (all of whom were jurors). They took her pulse, lowered her head to the ground and called for an ambulance which took her to the hospital. All this took place outside the presence of the other jurors.

Then, an alternate juror was seated and the trial judge discussed these events with the jurors and was satisfied that they would render a verdict based simply on the five days of evidence they had heard. The trial then continued. After Mr. Harman finished his closing argument, the defense closed and then, after two hours of deliberation, the jury rendered a defense verdict.

Harman sought a mistrial claiming that the jurors must have been positively disposed toward the defense after Dr. Argani had helped the excused juror. He did not address the issue (nor did defense counsel) of whether the jurors were positively disposed toward the plaintiff in view of the same assistance rendered to the fallen juror by plaintiff's co-counsel Neel Hammond, M.D.

The trial judge denied the motion but the Montana Supreme Court reversed and this week ordered a new trial. Here are the decision and the parties' briefs.

Now, the case will have to be tried again. Presumably, it will take at least the same five days and involve the testimony of the same seven different physicians and the expenses incurred not only by the parties but also by the court system.

P.S.: Ted Frank noted here at Overlawyered that former presidential candidate John Edwards was a proponent of channeling and that the tactic is unfairly prejudicial and cause for a mistrial.

After a jury trial almost nine years ago in state court in Manhattan, Jose Shomo was convicted of second-degree murder. He had attempted to convince the jury that at the time of the deadly shooting he was physically incapable of holding or firing a handgun and thus could not have been the killer. Obviously, the jury rejected that claim and Shomo was sentenced to concurrent terms of 25 years to life. The conviction was affirmed on appeal.

After four years in prison, Shomo sued the City of New York, its Department of Corrections and several doctors alleging that during all that time he could not use his hands and therefore should have received assistance with activities of daily living, been transferred to specialized infirmary housing and received various treatments. If there was in fact a failure to give him treatment he needed, then there could be a viable claim for medical indifference under 42 U.S.C. Section 1983. Shomo's problem (in addition to his lifelong jail terms) was that he waited past the three year statute of limitations to start his pro se lawsuit. So, the defendants sought to have the case dismissed.

This week, though, in Shomo v. City of New York, a two judge panel of the U.S. Court of Appeals for the Second Circuit (the third judge was to have been now Supreme Court Justice Sotomayor) affirmed the lower court's finding that the case may proceed. The appeals court noted that when a plaintiff can show an ongoing policy of deliberate indifference to his serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period then he may pursue his lawsuit even though it was commenced outside the limitations period.

Chief Judge Dennis Jacobs wrote a separate opinion agreeing with the holding but emphasizing that Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the (lenient) one applied to pro se litigants. He added his belief that Shomo's claim that he needed medical attention was without merit since the jury in the criminal case already found that Shomo held and used a handgun when he committed murder and "... a person able to shoot someone to death has sufficient use of his hands to get by."

It's baseball season and that means an occasional trip to the ballpark, rooting for the home team, peanuts and crackerjacks and all that good stuff. For some few spectators, though, it may mean getting struck by a foul ball and sustaining a pretty serious injury. And then come the lawyers.

I share an interest with Walter in sports injuries lawsuits. He's probably the leading commentator on these issues and a compilation of his baseball posts at Overlawyered is here and a 2006 Connecticut case was discussed at Point of Law here. Over at my perch, New York Injury Cases Blog, we've highlighted some unusual sports injury cases.

The most recent case of note is from New Mexico. There, a divided appellate court this month in Crespin v. Albuquerque Baseball Club, LLC ruled that the long-standing assumption of the risk doctrine does not bar a lawsuit by a four year old boy who was struck in the head by a batting practice home run while the boy enjoyed a picnic lunch in an area behind left field. That case will now proceed to the state's highest court for an ultimate resolution.

An appeals court in Ohio recently reached a different result on assumption of the risk grounds in Warga v. Palisades Baseball. In that case, a woman was struck by a baseball while she was standing at the end of a walkway in the ballpark behind the bleacher. Her lawsuit was tossed out.

New York courts seem to have little trouble dismissing these types of cases on assumption of the risk grounds. Neighboring New Jersey, in direct response to a ruling by its highest court permitting a foul ball injury lawsuit to go to trial, enacted the New Jersey Baseball Spectator Act of 2006 which protects the ball clubs if they have netting in the most dangerous areas (as is the case everywhere I know of) and post warnings. Colorado has long had a similar law.

This weekend, severe weather caused Continental Airlines to redirect its Houston bound flight to Rochester, Minnesota. And there it sat on the tarmac for six hours. Passenger Link Christian says he and 46 others suffered through a nightmare with crying babies, a smelly toilet and nothing to eat and now he wants action. He appeared on national television urging federal regulations to "protect" passengers stuck like he was and he may just get his wish.

Kathleen Hanni had a similar incident back in 2006 (when she was stuck for nine hours in Texas) and she started a class action lawsuit (Hanni v. American Airlines - U.S. District Court, Northern District of California; # C-08-00732-CW) seeking money damages, created an organization (Flyers Rights) and has been pushing for a so-called Airline Passengers Bill of Rights (the Senate Commerce Committee recently approved it unanimously).

Debra Saunders at the San Francisco Chronicle suggests that the proposed bill promises reasonable protections for passengers (i.e., food, water and adequate restrooms as well as the right to get off the plane after three hours); however, an airline industry spokesman notes that this legislation could have unintended consequences such as a greater number of cancellations and flight delays.

As to the class action lawsuit, it's almost three years now since the incident. First, as our friends at Class Action Fairness Act Law Blog describe, plaintiffs sought unsuccessfully to have their case heard in state court. Then, they refused to turn over to the defense documents, including thousands of emails, that would purportedly establish the propriety of a class action and their alleged damages claims. Finally, a magistrate judge ordered plaintiffs to pay more than $13,000 in sanctions to American Airlines. [Decision available from Westlaw at 2009 WL 1505286.] The sanction amount was based on the hourly rates charged by American's lawyers for their time in connection with plaintiffs' delays.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.