"Extreme" Snowball Fights Lead to Liability

The L.A. Times reports lower participation in the winter "X Games."  Many extreme winter sports athletes passed on the Aspen X Games to prepare for the Winter Olympics in Torino. Check out these flying snowboarders in the Photo Gallery of the linked LA times article.

These pictures demonstrate better than words why the court got the Graham decision wrong.

I have argued before that the primary assumption of risk doctrine should be broadly interpreted. As a general rule, participants in sporting and recreational activities should not be allowed tort recovery for risks arising from the activity itself. One of the known risks from skiing is a collision with an inattentive downhill skier.

In the Graham case, the 17 year old defendant was simultaneously snowboarding and throwing snowballs at his 14 year old brother. Predictably, he snowboarded into and injured an innocent bystander, a Mammoth mountain ski instructor. The ski instructor was seriously injured.

Perhaps just as predictably, the ski instructor sued. Mammoth Mountain also sued to recover its workers compensation benefits. The trial court granted defendant’s motion for summary judgment holding that there was no duty under the primary assumption of risk doctrine.

The court of appeals, however, reversed. The court found that there was a triable issue of fact as to whether simultaneously exchanging snowballs while snowboarding was outside the risk of normal skiing activity.

The court began its analysis by examining the two activities in question. I refer to these two activities as "snowboarding" and "activity X." The court then examined whether "activity X" was unusual enough to be outside the scope of normal snowboarding activities so as to create liability.

This was a mistake. The accident was caused by young Graham’s failure to watch where he was going--regardless of the nature of "activity X." Snowboarders frequently engage in multiple activities, including drinking Gatorade, photography, listening to music with earphones and talking on their cell phones , while simultaneously snowboarding. All of these involve not paying attention to the surroundings.

Graham’s failure to pay attention to where he was headed is the real "negligence." The nature of the distracting activity is not important.

Is it really news to Mammoth Mountain that snowboards often go fast and recklessly?

And doesn’t Mammoth rent snow boards at its On The Edge Performance Center?

If, as the links indicate, snowboarders are encouraged do spins, jumps and other extreme maneuvers, it is certainly foreseeable that snowboarders will often not pay attention to other persons in their direction of travel. As this is a determination of duty, it is a matter to be decided by the court. The court made the wrong decision here.

The court’s decision may have been tainted by an incident at oral argument. At oral argument counsel got involved in a verbal snowball fight.  Plaintiff's counsel claimed that defendant "intentionally, willfully chose to stop paying attention...so that he could engage in a snowball fight with his brother...."  Defense counsel retaliated to the language by claiming that defendant had not thrown a snowball.  Unfortunately, the record showed that eyewitnesses saw the "two boys in a snowball fight."

The court of appeals concluded that the defense attorney had violated Business and Professions code section 6088 by seeking to mislead the court by a false statement of fact.

Which snowball fight most influenced the court's decision?

Posted by Joseph R. McFaul on Sunday, January 29, 2006 at 00:00 Comments Closed

There's still time to test Alito

What canon of construction are you?

We could have saved a lot of senatorial time money and bloviation by just giving Supreme Court nominees this quiz.

I am the plain meaning rule.  I don’t want to be.  Anyone with children knows, matters are seldom "plain."  I think the result was heavily swayed by my answer to the last quiz question.

Posted by Joseph R. McFaul on Friday, January 27, 2006 at 00:00 Comments Closed

But for...

Law.com describes a proximate causation case from the same state that brought us Palsgraf.

Strange things happen in New York.  Although sounding like a torts final exam question, this was actually a trial.  Apparently, a customer at Benihana’s strained his neck avoiding one of the hibachi chef’s twirling "projectiles of heated food" --a flying shrimp tail. He had surgery and later died possibly from an infection that possibly arose from the surgery.  The chain of causation is longer than the tracks of the Long Island Railroad.

If proximate means something, it mean that plaintiff loses this case.

I wonder if any of the Palsgrafs eat at Benihana’s?

Posted by Joseph R. McFaul on Thursday, January 12, 2006 at 00:00 Comments Closed

Don't bug the cops.

What should the police do when they receive a report of legal but apparently weird activity? 

Approach with caution but don’t overreact.

That’s not what happened in Scarsdale, New York.  In Scarsdale, a woman called the police to report that there was a man walking around in the woods with a knife.  Walking around the woods with a knife isn't a crime, but might be out of the ordinary and there's really not enough information to evaluate the situation.  You can't fault the police for checking it out. 

Still, the police should have anticipated that there were a number of possible innocent and not so innocent scenarios.  For example, every boy scout knows to carry his "10 Essentials" when going into he woods.  Essential Number 1 is a knife.  Other outdoor activities that involve knives are fishing, sailing and scuba diving.  It’s perfectly legal to carry and use a knife when walking through the woods.

How did the police respond? With guns drawn, they accosted the man, who politely introduced himself as Harry Zirlin.  In spite of the introduction, they made him walk towards them and the drawn guns and they then handcuffed him.

It turns out that he was a world renowned beetle collector and has published a number of books and articles.  He uses his knife to extract beetle specimens from tree bark.  There is no evidence at all that he was conducting himself in a threatening manner or posed any apparent hazard to himself or others.  Yet, he found himself handcuffed at gunpoint.  Furthermore, it appears there are a large numbers of people engaged in this behavior.  I didn't imagine it was a high risk activity.

There’s more to the story (you knew that).

Mr. Zirlin, aside from his accomplishments with beetles, is also an attorney. He filed a lawsuit in U.S. District court seeking an order changing the police approach to the scourge of knife wielding beetle collectors.

The trial judge found that the police had reasonable grounds to suspect that they were entering a hostile and dangerous situation, although it also concluded that Mr. Zirlin is a paradigm of a model citizen. Law.com reports that Mr. Zirlin lost on appeal, as well.

I hope the police re-evaluated their tactics as a result of this case, even if they won the lawsuit. I’d hate to see what they’d do with a whole troop of knife wielding boy scouts.

Posted by Joseph R. McFaul on Sunday, January 08, 2006 at 00:00 Comments Closed

Get up on your hind legs and object!

Two recent Ninth Circuit cases illustrate both the right and wrong way to object to expert testimony.

In U.S. v. Prime, the objection was made in a motion in limine. In that case, the defendant charged with forgery objected to the testimony of a hand writing expert. The court applied the Daubert factors to determine if the handwriting expert could testify. Daubert lists several factors to consider in determining the admissibility of expert opinion, but it is rare that all factors will apply in any one case. The court in Prime analyzed five Daubert factors in determining if handwriting analysis would be admissible:

          1. Can the technique be tested?

          2. Has the technique been subject to peer review and publication?

          3. Is there a known or potential rate of error?

          4. Are there standard operating procedures in employing the technique?

          5. Is the technique broadly accepted in the scientific community.

The court concluded that handwriting analysis met all the relevant factors and admitted the testimony.

In Jerden v. Amstutz, The Ninth Circuit was asked to decide if the objection to the expert testimony was timely. In that case, plaintiff’s neurologist testified regarding the standard of care. Two days later, defendants objected to the expert testimony because it lacked the necessary foundation for that opinion. The trial court granted the motion at the conclusion of the trial and plaintiff lost the case. The Ninth circuit recognized that trial courts have substantial leeway in handling late objections. In this case, however, the objection was so late that plaintiff was denied the opportunity to possibly cure the defect while the trial was still in progress. The Ninth Circuit reversed, ordering a new trial.

As Rumpole of the Bailey would say, "Get up on your hind legs and make a fuss." Objecting in court is like voting in Chicago, Do it early and do it often.

Posted by Joseph R. McFaul on Friday, December 23, 2005 at 00:00 Comments Closed

Intelligent Design a Sham says Judge

In a much anticipated decision, Judge Jones ruled that Intelligent Design was a sham and not good science.  His ruling in Dover, Pennsylvania, prohibits the teaching of Intelligent Design as an alternative to evolution.  The decision has implications for science and for the ability of U.S. courts to define and apply science and expert testimony.

Analysis of the decision later.

Posted by Joseph R. McFaul on Tuesday, December 20, 2005 at 10:15 Comments Closed

Presidential wiretaps legal?

Volokh Conspiracy has the most even handed and thoughtful discussion of presidential wiretaps. I hesitate to add to or critique this scholarly piece but I do have a small quibble with the customs discussion.

The "functional equivalent of the border" is indeed very broad and warrantless searches in this border area are permissible in circumstances that usually require a warrant. I also agree that there is no reason to exclude computer "data" from the broad customs powers. Nevertheless, I think a different analysis applies when the data is "speech."  Seizures of "data" that is speech is very close to "abridging the freedom of speech" and is a form of prior restraint--presumptively unconstitutional.

Read the whole thought-provoking article. 

Posted by Joseph R. McFaul on Monday, December 19, 2005 at 19:17 Comments Closed

WORDS YOU'LL NEVER HEAR: "I'll trade my Belli and Spence for your Scalia!"

While engaged in your favorite pastime of cartophily, you may have wondered what would happen if you lost your 1933 Nappy Lajoie #106 or your T206Wagner.  Would your homeowner’s insurance policy cover these losses?

While recently reviewing a homeowners policy for coverage, I came across this endorsement:

     Special Limits on Sports Cards

               our liability for losses on certain personal property is limited as follows:

               12. $200 per card and $1000 in the aggregate on sports cards, including but not limited to baseball cards.

So the good news is the loss of your favorite baseball cards is covered by insurance.  The bad news is that you only recover a maximum of $200 for each card--a dreadful loss.

I wonder if these ( or these) trading cards are within the endorsement.  Probably so, but I suspect the $200 per card limit is seldom reached. Famous mathematicians or artists aren't as highly compensated as professional athletes.  For some reason, there are no lawyer trading cards, but of course there are trading cards for unexpectedly different kinds of sharks.

If you happen to be lucky enough to own that Nappy Lajoi or Honus Wagner card, or if you have an extra gold coin or shiny rock in your sock drawer, be sure to get a rider.  Your regular policy won’t cover high value personal property.

Update:  Dilbert also examines insurance policy coverage issues.

Posted by Joseph R. McFaul on Sunday, December 18, 2005 at 00:00 Comments Closed