Nov 22 2015

Lawsuit Against Yankees Over Foul Ball Won’t Score

On August 25, 201, NY real estate executive Andy Zlotnick took his three kids to see the NY Yankees play the Oakland Athletics in Yankee Stadium. He was three rows off the field about 50 feet away from fist base. It was a rainy day and the game had been delayed but was now in progress. It started to drizzle again and people began putting up umbrellas. Former Yankee slugger and fan favorite Hideki Matsui was now with the A’s and was up at bat. He drilled a foul ball into the stands. Mr. Zlotnick, in part because of the umbrellas obstructing his view and in part because of the speed of the ball and the proximity of his seats never saw the ball coming in his direction. It hit him square in the face, shattering the bones around his eyes and causing him a serious permanent injury to the left side of his face.

After he got out of the hospital and was beginning to recover, Zlotnick called Randy Levine, the president of the Yankees Organization. Zlotnick told Levine that a two teams had policies forbidding umbrellas in the stands and that eight others only allowed their use during active rain delays.
He also told Levine that he had about $25,000 in uncovered medical expenses. Zlotnick claims Levine promised to reimburse him the $25,000 but that when Levine later reneged on the promise he filed suit. His claim is that the allowance of umbrellas heightened the risk of injury. While I feel very sorry for Mr. Zlotnick, I predict he will lose due to the law in NY State about such cases.

Read the fine print if you can

Read the fine print

The first hurdle is the disclaimer on the back of every Yankee ticket (and every MLB ticket for that matter). Take a look at these tickets from 1942 – That disclaimer proclaims (although in very small type) that “the bearer of the ticket assumes all risk and danger incidental to the sport of baseball.” The disclaimer has gotten even longer on modern tickets. Courts have routinely held up this language as a valid disclaimer and have relied upon it to throw out many a case against baseball teams. That umbrellas were used does not change the fact that Zlotnick assumed the risk. In fact his argument that the Yankees don’t have an umbrella policy hurts his case; if the Yanks had a policy and were not enforcing it then they may be liable, otherwise you assume that risk as well.

The second hurdle is the availability of seats out of harm’s way. Zlotnick chose to sit in an area where foul balls come screaming by on a regular basis. Having sat in similar seats, I can ell you that when someone is at bat, you have to watch at all times because it is obvious that a ball (and even a thrown bat) could come into the stands. You don;t want to get hurt sit in the nosebleeds. You want to sit close and not get hurt, get seats behind the fenced in area around home plate. You choose to sit so close, you are obviously taking a risk of injury.

The third hurdle is that if the suit succeeds, it will change the game. Teams will be forced to put up fencing all along the walls of the field. That will obstruct views, lowering the price for those seats, and eliminating players being able to reach into the stands for a foul ball. No judge is going to want to take the blame for such a major change in the game.

The Yankees have filed a motion to dismiss the case with Judge Lizbeth Gonzalez, who is presiding over the case> The parties have been waiting over a year and a half for Judge Gonzalez to decide the motion. That delay is its own foul ball, especially here, where the law is clear cut. You go to a live sporting event, you run the risk of being injured.

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Nov 11 2015

Sexting Case Shows Power of School to Suspend

Twenty students at Kings Park High School have been suspended for viewing cellphone video of a sexual encounter between a girl and a boy at a neighboring school, and while their parents are outraged over the punishment, insisting their children didn’t know what they were getting when they received the video, and that they deleted it right away, there really is not much they can do about it.

The school issued what’s know as an “in-school suspension” meaning it was less than 5 days in length. Longer suspensions are called “superintendent’s suspensions” because they require a hearing conducted by the District’s superintendent. These short-term suspensions only entitle a student to a conference before the principal to plead you case. Good luck with that, after all the principal is the one who suspended you in the first place.

Students facing these suspensions are entitled to notice. The notice must contain 3 things:

(1) A description of the event causing the suspension and the date that it took place. The description must have enough detail for you to understand what event they’re talking about.
(2) An explanation of your right to request a conference with the principal.
(3) An explanation of your right to question “complaining witnesses” at the conference. A complaining witness is the person who reported your alleged conduct.

Kings Park High School

Kings Park High School

The notice can even be given AFTER the suspension is declared as long as it comes within 24 hours after the suspension is issued. At the conference, the student or parent can question the witnesses the principal relied upon to give the suspension. While the law does not guarantee the right to counsel for the conference most schools will allow you to bring a lawyer. However, be advised that if you bring a lawyer, then the school will also bring a lawyer making it even harder to get your suspension overturned. The student is also entitled to receive home instruction and get homework sent to him during the suspension. Those are basically all of the student’s rights in these short term suspensions as schools are given a lot of power and control over discipline within their walls. And outside their walls – these exchanges did not all take place during school hours and schools can use their Code of Conduct to enforce what they view as harmful activity that occurs after school hours.

The suspensions show the danger of underage “sexting.” Most of the suspended students didn’t ask for the video to be sent to them and fair number of them deleted the video immediately after viewing it. The principal said that was not enough, if they viewed it they were gone. So to avoid suspension the kids would have had to delete the video without seeing it. These quick-trigger suspensions are just one of the issues with underage sexting. The two boys who made the video have been charged with disseminating indecent material to minors and promoting a sexual performance by a child, both of which are Class-D felonies, and third-degree sexual abuse, which is a misdemeanor. One of the arrested boys was the person in the video the other one was the one who filmed it. These kids are now hit with felony charges and their cases are being brought in adult court not family court.
Similar charges of including charges of disseminating and possessing child pornography have been brought against sexting teens across the country.

So it would be wise for parents of middle school-aged kids and higher to have a serious discussion about sexting and passing photos or videos through their phones. Most of them will think they are just engaging in “kids being kids” but will find out the hard way that is not the case.

Oct 24 2015

Why Do We Allow Child Marriages?

A recent op-ed piece in the NY Times last week caught me by surprise. It was called “America’s Child-Marriage Problem.” My response was “What Child Marriage Problem?” I was stunned to learn that thousands of children under the age of 18 have been allowed to legally marry – many times to much older partners. The author of the column, Fraidy Reiss is executive director of an organization called Unchained At Last, a non-profit that helps women and girls leave or avoid forced or arranged marriages.

I normally reserve blog posts on this site about topics that involve lawyering, courtroom drama, or litigation issues of some kind. But the data in this article so stunned me that I thought I have to try to get this information out as much as possible as i suspect most folks had no idea this was happening in the States.

unchained-logo-white-and-blackThe article reports that most states have laws requiring people to be at least 18 years of age before getting married. But most states also have one or two exceptions. The first is “parental consent” – so as long as parents of the minor consent its okay. Even if the child is openly crying during the ceremony as the article talks about in one particular case. Of course, it begs the question of what constitutes “consent” as opposed to force. Romeo loved Juliet and vice versa so if those two star-crossed lovers wanted to get married it would be one thing. But the laws do not cover the situation where the parent consents but the child does not as most states do not specifically forbid forced marriages.

The second exception is if the marriage is approved by a judge. So I figured this must be a rare -if ever- occurrence. Wrong again. Studies done by Unchained at Last and the Tahirh Justice Center, an NGO that provides services to immigrant women and girls,show that in New Jersey between 1995 and 2012 178 marriages were approved by a judge where one of the participants was between ages 10 and 15! Yes that’s right – 10! In NJ a 10 year old boy was allowed to be legally married to an 18 year old woman. Now due to the age of the participant the record is sealed so we can’t learn more than the ages of the participants. But what judge would ever approve this? I suspect it is a judge that is part of the community or culture that approves such marriages as way to enhance family position or even to gain an economic advantage.The Tahirh survey data hows what you would expect – that most of these marriages are occurring in immigrant or ultra-Orthodox communities, but they also involve their fair share of “ordinary Americans.” The survey reports of many child marriages in all faiths – Muslim, Christina, Jewish, Hindu , =Buddhist and Sikh with large numbers in the Mormon and Orthodox Jewish communities – two cultures that have certainly engrained themselves in American life and which have likely produced judges on the bench in their particular States and communities.

So what about my home state NY? It fared a little better but not much. At least though NY sets a minimum age of 14 for child marriage. A few examples of NY judge-approved marriages include a 14 year old married to a 26 year old; a 15 year old married to a 28 year old; and a 15 year old married to a 35 year old. These pairings also make out a case of statutory rape. Yet they are protected by the marriage contract since it is approved by a judge. It is similar to what happens when a minor signs a recording contract – it has to be brought to court to be approved by judge in order to bind the minor to the deal.

Unchained At Last is calling for a movement to end the legality of child marriages. It is asking for folks to contact their State legislators. I have already done that and I have also signed on to do pro bono work for them to help those in forced marriages use the courts to get out of them. This really has no place in our society. Common sense tells you that a child of 13, 14 or even 15 is not ready to commit to marriage, especially to someone so much older than they are. While I am for an all-out ban on marriage by anyone under the age of 18, perhaps the law can allow someone who is 16 or 17 to marry someone within say two years of their age – a similar gap that is used in statutory rape laws. This at least gives some leeway to the communities that insist this is part of their culture. The problem with that is when it gets approved by a judge, it then becomes part of our culture as well. The law should also require that the parties re-affirm the marriage in court once all participants reach 18.

Thank you Fraidy Reiss and Unchained at Last for bringing this matter to our attention and for the work that you do. You can ind them by clicking here

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Oct 13 2015

Aunt Loses Lawsuit Against 8 yr Old Nephew For Birthday Hug That Broke Her Wrist

You can file this story under a number of headlines: (1) Why People Hate Lawyers (2) Thank God Common Sense Prevailed (3) Worst Lawsuits of the 21st and 20th Century and (4) Is This From The Onion?
A Manhattan woman actually filed a lawsuit against her 8 year old nephew because when she arrived at his 8th birthday party he excitedly hugged her knocking her to the ground; the fall caused her to break her wrist.

The incident happened in 2011 and it just came up to a jury trial this week in Connecticut. It took the jury all of 25 minutes to render a verdict that the now-12 year old boy Sean Tarala of Westport Connecticut was not responsible for the injury to his Auntie Jennifer Connell of Manhattan. Of course he’s not responsible. Kids are not judged as adults in civil trials – they are judged by what a reasonable 8 year old would do. “Reasonable 8 year old” is an oxymoron but its certainly clear that a reasonable 8 year old would do what Sean did when his aunt arrived at his party according to the Connecticut Post which reported the story:

The boy had gotten his first two-wheeler for his birthday, and was joyfully riding the bright-red bike around and around the home, according to testimony.But when he spotted Connell, he dropped the new bicycle on the ground, exclaiming, “Auntie Jen, Auntie Jen.” “All of a sudden he was there in the air, I had to catch him and we tumbled onto the ground,” Connell testified of her encounter with the 50-pound boy. “I remember him shouting, ‘Auntie Jen I love you,’ and there he was flying at me.”

Suit-happy Aunt Jen

Suit-happy Aunt Jen

So you sued him? Really? To make matters worse, – if that’s possible -Sean’s Mom passed away last year. But that didn’t deter Aunt Jen (who the Daily News perfectly labeled “Auntie Christ” in their article on the case) from taking the matter all the way to trial – during which she wore a wrist brace. When asked by her lawyer how she was hampered by the injury she actually said the following:

“I live in Manhattan in a third-floor walk-up so it has been very difficult. And we all know how crowded it is in Manhattan.” She added “I was at a party recently, and it was difficult to hold my hors d’oeuvre plate.”

Attorney Bill Beckert

Attorney Bill Beckert

Believe me, I wish I was making this stuff up. Its depressing to think human nature could stoop to this level. But I don’t just blame Jennifer Connell. I blame her lawyer William Beckert of Jainchill & Beckert, a two lawyer general practice firm from Plainville Conn. Lawyers, myself included, get solicited by clients all the time who want to bring baseless, ridiculous lawsuits like this. I usually tell them “You don’t have a case. It’s called ‘Life.'” The vast majority of lawyers would have told Ms. Connell the same thing and that this lawsuit wasn’t just a bad idea – it was a nonsensical and immoral idea. But not Bill. On his website the introductory paragraph to his bio says:

“I try to become known to people so that if they are ever presented with an unexpected event in their life, either personally or professionally, that requires legal help, they’ll look to me for guidance and assistance to get them through whatever it is that confronts them.”

Well, you became known Bill. But not the way you wanted.

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Oct 09 2015

5 Simple Tips to Keep Your Business Out of Court

I am a litigator, I make my living by fighting courtroom battles. So you’d think I shouldn’t be advising people on how to keep out of court. But this week I was involved in some Federal litigation that could have been avoided had my clients and my adversary’s clients followed some basic advice. After all, after litigating for over 30 years I have learned some simple tips for business clients to try and stay out of the courtroom that are worth passing on:

1. Be Proactive — Whether you are the owed money or you owe money, if non-payment issues arise, initiate communication and address them promptly. Do not allow the problem to continue to grow. Large problems are far more difficult to resolve than small ones. You are more likely to get the other side to come to a reasonable conclusion if you assure them that you are willing to work it out and try to resolve it before it gets out of hand.

2. Consider Alternatives Which Improve Your Position — In an economic downturn, creative resolutions may be necessary, but can also provide an opportunity to improve your position. If you are owed money from a deal or a business relationship of any kind, for example, such resolutions may include a note secured by property; a payment plan with agreed provisions for interest and attorneys fees; or for an agreed-upon judgment in the event of default. If you are on the other side, a work-out over time could provide for more affordable installment payments and a discount incentive for early payoff. This is also a prime opportunity for all sides to clearly document any agreements that are not in writing.

This can get expensive - Avoid it if you can

This can get expensive – Avoid it if you can

3. Evaluate Filing Suit — In certain situations, filing suit is necessary. The law provides deadlines for filing different types of claims, which will be denied if not filed in time. Additionally, as a practical matter, a lawsuit may be required to bring uncooperative parties to the table. But once you file, consider other pre-trial out-of-court options such as mediation, settlement conferences, or neutral case evaluations that can often lead to resolution when a neutral, third party is brought in to size things up. That will keep costs way down as well.

4. Evaluate the Likelihood and Cost Of Collection — Obtaining a judgment is different than collecting one. Winning a case is only the beginning. Now you have to get the defendant to pay. What assets do they have? If they are a corporation, can they just default and leave you with an empty piece of paper? A judgment is a court order deciding the merits of the case and the relief to which a party is entitled. If a monetary judgment is not voluntarily paid, enforcement procedures must be initiated and pursued by the judgment winner. Additionally, appeal rights might delay collection of a judgment. In tough or lean times, the advantage of a prompt voluntary payment may provide both an incentive to the plaintiff and leverage to the defendant in negotiating a potential discount or compromise. If the matter cannot be resolved, get help from an attorney familiar with enforcement options and procedures to keep costs down.

5. Invest In Prevention — Prevention is generally much less costly. Many businesses try to save money by “doing it themselves” or going to cheap, document-generating websites that tout “one-size-fits-all” documents. Think about how once-size fits all clothes generally look? Stylish? Hardly. Litigation often arises from differing expectations and from the use of the Internet or other “cut and paste forms” that do not fit the particular situation or conform to applicable law. Consider investing in a sit-down with a lawyer to create documents favorable to your business. Many documents, such as service contracts, notices, or mechanic’s lien waivers, can be tailored to protect your interest and be standardized for repeated use. Professional drafting and/or review of documents stating relationships and obligations can minimize the risk of time-consuming and costly litigation in the future. In other words, pay me now or pay me more later.

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