And, no, we’re not talking about Michael Vick — http://en.wikipedia.org/wiki/Michael_Vick — or perhaps someday Ben Roethlisberger — http://en.wikipedia.org/wiki/Ben_Roethlisberger. Rather, we’re talking about the case of Betts, et al. v. New Castle Youth Development, et al. In Betts, the plaintiff suffered a spinal cord injury while attempting to make a tackle during a pick-up football game at a juvenile detention center. After the injury, he sued the center and its staff members claiming various constitutional violations. Specifically, Betts alleged that the Center, by allowing residents to play tackle football without pads, had exposed Betts to a “substantial risk” of serious harm. The trial court dismissed the lawsuit and the case went up to the Third Circuit.

The Third Circuit has just upheld the trial court’s decision — http://www.ca3.uscourts.gov/opinarch/093753p.pdf The Third Circuit wrote that “Life is fraught with risk of serious harm and the sports world is no exception. But an Eighth Amendment violation [that is the prohibition against cruel and unusual punishment] may not be predicated on exposure to any risk of serious harm; the risk must be substantial. Because the record in this case is devoid of evidence from which a reasonable jury could conclude that serious injury is a common or likely occurrence in tackle football games” dismissal was appropriate.

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In Rashabov v. Alfuso, the New Jersey Appellate Division affirmed summary judgment in favor of Selective Insurance Company based on plaintiff’s misrepresentation in the application. The issue was whether Selective was required to provide PIP benefits to the plaintiff/insured and three other family members despite inaccurate information in the application regarding the number of adult residents in his household. Plaintiff argued that he lacked experience in obtaining automobile insurance and did not speak English. His application was completed with assistance from the dealership where he purchased the vehicle and listed the plaintiff as the only resident of his household. Investigation revealed that plaintiff resided with his wife, father, mother and two brothers who were all adults and three of whom also sustained injuries in the accident. The Appellate Division affirmed summary judgment finding a material misrepresentation.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a3684-08.pdf

In Cristiano v. York Hunter Services, the Kings County Supreme Court denied a protective order to a plaintiff who was seeking to prevent the admission of a Functional Capacity Examination (FCE). The FCE is used generally to gage a person’s ability to return to work.

Plaintiff argued that the FCE is a novel scientific methodology that has not been shown to have been generally accepted by the relevant scientific community. The court rejected this argument by noting that the New York Appellate Division has previously held that FCEs are commonly relied on by physicians when making determinations on a patient’s ability to return to work. Therefore, the FCE was admissible.

For more information on this post, please contact David Tavella at .

http://pdf.wcmlaw.com/pdf/Cristiano.pdf

In W.J.A. v. D.A., the Apellate Division reversed summary judgment awarded to the defendant. The decision allows the plaintiff to go forward with a lawsuit against his nephew, who wrote on a website that the uncle molested him as a child . Plaintiff admitted that there had been no actual damage or injury to his reputation. The Court acknowledged the trend towards requiring proof of actual harm from defamation, however, noted that mandating such damages in a suit over online accusations of sexual abuse would “create a license to defame”.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a0762-09.pdf

In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior.

This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence.

In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue.

Thanks to Remy Lapidus for her contribution to this post.

http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf

Miguel Mojica was once convicted of driving while ability impaired. But that was in the past, and when he walked into an Enterprise Rent a Car office in Wappingers Falls, NY one day in 2006, he held a valid NY driver license. He showed the license to the Enterprise agent, who checked that the photo and the expiration date were in order, and rented him a pick-up truck. Mojica then allegedly drove the truck while intoxicated, crashing into a police car and badly injuring a police officer.

The police officer sued Enterprise. Enterprise is, of course, protected from vicarious liability as the owner of the vehicle by the Graves Amendment, which prohibits such vicarious liability for the owners of rental cars. But the plaintiff sought to recover from Enterprise on a theory that it was negligent in not doing a full background check on Mojica’s driving history.

A trial court in Dutchess County, New York, in the case of Poluzzi v. Mojica, has rejected the plaintiff’s argument, holding that the law imposes no such duty on a car rental company to investigate the driving record of its customers who proffer a valid driver license.

At times, the law seems disconnected from common sense or the real world. While it is debatable whether “business ethics” is an oxymoron in the rough and tumble atmosphere of Wall Street, there are some fixed moral guide posts for ethical business conduct. Does some conduct disqualify a student from receiving a business degree? Should a university confer a master of business degree to someone guilty of criminal conduct? How much chutzpah does it take to argue that a university could not use a guilty plea to criminal charges to deny a student his MBA degree?

In Rosenthal v. NYU, an accountant conspired with his brother to trade securities based on non public information, a violation of the U.S. securities laws. It seems that this scheme was hatched while plaintiff was a graduate student at the Stern School of Business at NYU, pursuing a Master of Business degree. Ironically, plaintiff taught an ethics course as a teaching assistant, presumably guiding other young minds in discerning the fine line between ethical and unethical conduct. After his graduate course work was completed, plaintiff entered a guilty plea to conspiracy to commit securities fraud. NYU learned of the plea, undertook an investigation and eventually denied plaintiff his degree based on his admittedly criminal conduct.

Plaintiff protested and filed a federal court action. In a detailed opinion, the court upheld the denial of plaintiff’s degree and sided with the university. Perhaps the plaintiff should have paid closer attention to the material he taught in his professional responsibility course?

If you have an questions or comments about this post, please email Paul at

http://pdf.wcmlaw.com/pdf/Rosenthal.pdf

In the case of Hinton v. Meyers, New Jersey’s Appellate Division was confronted with the question of what amount of “sensory, contemporaneous perception” is necessary for a family member to make out an emotional distress claim arising out of a family member’s death or serious injury. Historically, there are four requirements: (1) the death or serious physical injury of another caused by defendant’s negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress.

In Hinton, Kwaku Boadu Bosompem went with his infant daughter Yaa Ayannah Bosompem and her mother Catrina Briggs to a job interview. While at the interview, he “felt” he heard his daughter scream and cry out in pain. Bosumpem also heard sirens. But, he never left the interview or looked outside the window. It turned out that while at the interview, a vehicle driven by Eileen Meyers had crashed into the daughter’s stroller and killed her.

Bosumpem commenced a lawsuit against Meyers and Briggs. He sought emotional distress damages. The Appellate Division was confronted with the question of whether Bosumpem’s “feelings” were sufficient to substantiate the claim. The answer was in the negative. The Court wrote that to support the emotional distress claim Bosompem had to show that he: “had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises.” Under the facts before it, the Court reasoned that Bosompem failed to meet the “sensory, contemporaneous perception” threshold.

If you would like more information about this post, please contact Bob Cosgrove at .

http://pdfserver.amlaw.com/nj/Hinton-a5700-08.pdf

In the case of Bakalar v. Vavra, the Second Circuit was faced with a dispute over the ownership of an Egon Schele — http://en.wikipedia.org/wiki/Egon_Schiele — drawing entitled “Seated Woman With Bent Left Leg (Torso)”. The drawing was in the possession of David Bakalar whose ownership of the drawing was challenged by Milos Vavra and Leon Fischer, the heirs to the estate of Franz Friedrich Grunbaum. Grunbaum’s “lost” the piece when the Nazis, after imprisoning him at Dachau (where he later died) made him sign away his rights to the drawing. Bakalar bought the painting from a New York dealer (who had acquired it from Swiss sources) in 1963 for $4,300. Bakalar’s rights were challenged after the drawing was sold at a 2008 Sotheby’s auction for $675,000.

Bakalar, a Massachusetts resident, filed suit in New York federal court seeking a declaratory judgment that he was the rightful owner of the drawing. The defendants, residents of the Czech Republic and New York, respectively, filed counterclaims for declaratory judgment, replevin, and damages. After a bench trial, a judge in the Southern District of New York held that David Bakalar was the rightful owner. In finding for Bakalar, the trial court applied a site-of-the-original transaction choice-of law test to the case. Since the relevant sale originated in Switzerland, the trial court applied Swiss law to the case and found that the claim was time barred. Under Swiss law “a person who acquires and takes possession of an object in good faith becomes the owner, even if the seller was not entitled to transfer ownership” unless the rightful owner makes a claim within 5 years of the loss or theft.” Swiss law also presumes that a purchaser acts in good faith, and a plaintiff seeking to reclaim stolen property has the burden of establishing that a purchaser did not act in good faith. Here the initial loss occurred in (at latest) 1963 and so a claim/lawsuit was required by 1968. In contrast, in New York, a thief cannot pass good title and a “rightful owner” has the right to commence a lawsuit (irrespective of when the original loss/theft occurred) within three years of demanding the return of the piece and the possessor’s refusal to so consent.

An appeal resulted and the Second Circuit weighed in. The Second Circuit rejected the trial court’s use of the situs test and instead applied an interests analysis, in which the law of the jurisdiction having the greatest interest in the litigation is applied and “the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.” The Second Circuit reasoned that New York has a greater interest than Switzerland in prohibiting a flourishing stolen art network. It therefore applied New York law to the claim and held that the claim was not time barred. It remanded the case back to the trial court for further proceedings. Under New York law, Bakalar now has the burden of proving that the drawing was not wrongfully taken from Grunbaum before his death at Dachau.

If you would like more information about this post, please contact Mike Bono at or Bob Cosgrove at .

http://www.law.com/jsp/nylj/CaseDecisionFriendlyNY.jsp?id=1202471677842

In Ramirez v. Shoats, 2010 N.Y. Slip Op 06550, plaintiff was injured when a piece of corrugated metal covering an unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall from the second floor to the basement level of a building under construction. Plaintiff sought relief under Labor Law § 240(1), which provides that the owner of the premises can be held liable for failure to provide adequate safety devices for workers. The issue at hand was whether a permanent, yet unfinished stairway can constitute a safety device under the statute. In a 3-2 split decision, the Court held that the stairway was the plaintiff’s sole means of access to and from his work area and thus was a safety device within the meaning of the statute.

The dissenting opinion noted that temporary ladders were on site which provided alternative means of descent and, in any event, prior case law in New York has determined that “under no construction of the statute could a permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope.” Ryan v. Moerse Diesel, Inc., 98 A.D. 615 (1983).

Unfortunately it seems that New York courts, yet again, have extended the grasp of the Labor Law.

http://www.nycourts.gov/reporter/3dseries/2010/2010_06550.htm

Thanks to Chris O’Leary for his contribution to this post.

If you would like more information about this case or WCM’s Labor Law practice, please contact