Tag Archive for 'injury'

Pennsylvania Man Sues Strip Club For Negligent Pole Dancing

If you ask most guys what makes a perfect bachelor party, chances are they’ll probably say a stripper or two, or four, or a whole club full of them.  The more naked dancers the better.  But it’s all fun and games until one of them crash lands on you and ruptures your bladder.  Never will happen, you say?  As always readers, prepare to be proven wrong.

A Pennsylvania man by the name of Patrick Gallagher was enjoying his last night as a bachelor with his buddies at the Penthouse Club, a local’s gentleman’s club.  Unfortunately for him, the night wasn’t going to end with a wild story for the water cooler, at least not the kind he probably had in mind.

As part of Gallagher’s “Bachelor’s Package,” he was given a chance to come on stage with the dancers to receive a special surprise.  According to his attorney (you know the story isn’t going to end well when a lawyer starts talking for you), once he got up there he was instructed to lie down.  Things seemed to start to heat up when a dancer began to erotically climb up a pole above Gallagher.  Unfortunately, the action then came to a screeching halt when the dancer allegedly slid down the pole straight onto Gallagher’s abdomen with apparently enough force to rupture his bladder and injure his back and hip, his attorney says.  Now Gallagher is suing the club for $50,000 in medical costs, pain, and humiliation.

Definitely not how most would picture a perfect bachelor party, but such is life.  On the other hand, it’s definitely an interesting civil lawsuit worthy of any law school exam.

Gallagher is accusing the club of negligence.  We’ve talked a lot about the elements of this cornerstone of torts in the past.  Basically in order to win a negligence lawsuit, a plaintiff must prove the defendant was responsible for five things: duty, breach of duty, cause-in-fact, proximate cause, and damages.  Fail to establish any of these elements and the plaintiff loses their lawsuit.

If Gallagher’s version of the facts is true, then there’s a lot of merit to his case.  However, rather than waste time going into an in-depth analysis of whether Gallagher can prove his cause of action for negligence, let’s instead assume that he can.  After all, if a person climbs, unsecured, above you, it’s not too much of a stretch for both the climber and their employer to foresee the possibility that anyone beneath could be injured.

You see, the issue with Gallagher’s case doesn’t necessarily lie in proving the club and dancer were negligent, rather the problem lies with whether he was.  Or more specifically, whether Gallagher knowingly assumed the risk of injury by lying down on stage in the first place.

Assumption of risk is a classic defense to any negligence tort.  To prevail, a defendant needs to show that the plaintiff had actual knowledge of the risk involved in an activity and either expressly or impliedly volunteered to accept the risk anyway.

In Gallagher’s case, much in the same way that one could argue that the club and dancer knew a patron could be injured by a falling pole dancer, it can also be argued that Gallagher understood this danger, as well.  Generally when a soon-to-be-husband is invited by exotic dancers to lie down next to a pole on a strip club stage, it’s probably safe to assume that sexy hijinks are about to ensue.  In this sense, even if Gallagher were to argue that he didn’t exactly know what type of services the club’s “Bachelor Package” entailed, most reasonable people would’ve immediately known what was up as soon as they were asked to lie down.  And unless Gallagher can prove he’s more innocent than Pollyanna, he likely knew, too.

For now, however, we’ll have to wait and see how his lawsuit plays out.  Hopefully, Gallagher saved enough of those dollar bills to pay his lawyer.

Will Personal Injury Lawsuits Eventually End Football?

That’s a question that several legal bloggers have been positing over the last few weeks. The concerns largely stem from studies suggesting that the long-term effects of concussion injuries (which are quite common in football players, including those at the age level of high school and younger) may be far more severe than anybody thought. This is focused around the revelation that suffering large numbers of very minor concussions (which are extremely common in football) significantly increases the long-term risk of severe brain disorders, such as Parkinson’s disease.

There have also been a few high-profile suicides committed by athletes, including a few very promising young football and hockey players. Autopsies revealed that some of these athletes suffered from chronic traumatic encephalopathy (CTE), which is a degenerative brain disorder caused by sustaining multiple concussions over a long period of time. The symptoms of this disorder include severe depression and dementia, which would partially explain the suicides.

As one might expect, there is some fear that this new information might lead to tort lawsuits, which would cost the defendants a large amount of money in judgments and settlements. It’s conceivable that several years of this could become so costly that insurance companies would stop offering liability insurance to football organizations, which would effectively prevent them from operating.

And even if the NFL manages to deflect these lawsuits, or absorb their costs, high school and college football programs may not be so lucky. If a large majority of these programs were shut down, the NFL would have a much smaller pool of new talent, which could bleed it dry in the long run.

Personally, I think that these fears about lawsuits destroying football are pretty overblown. It’s currently the most popular sport in the United States, and generates billions of dollars in economic activity. Furthermore, football players (at least at the college and professional level, where they’re adults) can be said to have assumed the risk of injury by voluntarily playing football.

However, at the high school level, the legal and moral issues become far less clear. After all, most high school students are under the legal age of consent, so it’s hard to claim that they knowingly and intelligently assumed the risk of brain injury. In most situations, a child’s parents can give consent for them. But if you assume that a child cannot make decisions with enough maturity to legally give consent for something (and that’s the assumption that underlies laws that establish an age of majority), and the risk they incur in playing football is permanent brain injury that follows them for the rest of their lives, it’s not really fair for their parents to make that decision for them, either.

Generally, however, I don’t think that football fans have anything to worry about. In fact, a few successful and costly lawsuits against football programs may actually improve its long-term prospects, as counterintuitive as that sounds.

After all, if a few football organizations were sued because some players suffered long-term brain injuries, they would probably have a good incentive to invest in better safety equipment, especially improved helmets. If this equipment significantly reduces the risk of CTE, football clubs will have far less to worry about in the lawsuit department.

Some commentators, while remaining hopeful about the future of football, raise a rather unsettling possibility: the NFL will simply use its substantial lobbying clout to persuade state legislatures to either ban lawsuits against them for CTE, or make such lawsuits so difficult for the plaintiffs that they aren’t worth the effort.

This might save football, but it’s arguably the worst possible outcome – even worse than football being sued out of existence. If personal injury lawsuits against football organizations are effectively banned, they will have no incentive to invest in safer equipment, or improve their safety rules.

This will mean another generation of young people suffering from chronic brain injury.

Basically, that illustrates the problem with the arguments made by many advocates of “tort reform.” We don’t face a choice between lawsuits destroying a beloved sports institution (or the entire economy), and making it impossible for victims of negligence who have suffered real injuries from receiving compensation from those injuries. But that’s how tort “reformers” often frame the debate.

In a legal system that guards against frivolous lawsuits, the civil justice system and the litigation process can be a force for positive change. If football clubs face lawsuits over brain injures, and these lawsuits become too costly, it will be in their economic self-interest to take steps to make the sport safer, either through investments in better safety equipment, or modifying the rules of the game to minimize head injury, or both.

There is historical precedent for this, as well. In 1905, football had just established itself as a popular sport in America. As more people played the game, more players began dying from injuries sustained on the field. It got to the point that there were serious proposals in Congress and state legislatures to ban the sport altogether. President Roosevelt persuaded the NFL to change the rules to eliminate certain plays that were responsible for most of these injuries. And thus, the sport was saved.

I’m sure a lot of people complained back then that these changes destroyed the spirit of the game. But over 100 years later, the sport of football is doing just fine. I think this is simply an example of history repeating itself. Football will adapt. And, hopefully, they won’t find it necessary to make it impossible for people who have been injured to recover compensation for their injuries.

U.S. Courts Would Have Given Same Victory For Chilean Victims of Exploding Churros

There are so many terrible tasting foods in the world and seemingly, at least to me, such a limited number of delicious objects worthy of my palate.  Why then must one of the tastiest of foodstuffs be so dangerous?

Seriously, you never hear about a bunch of kale or jicama exploding in people’s faces.  In any case, if you haven’t heard already or at least clicked the link above, a Chilean newspaper has been in some hot water, or rather oil (ba-dum-bump), as of late due to a churros recipe it published in one of its editions.

Back in 2004, La Tercera, the paper in question, printed a churros recipe that when followed correctly would result in the churros exploding from the hot oil it was placed in. Apparently the oil temperature listed in it was too hot and resulted in 13 readers suffering severe oil burns.  The readers in turn sued La Tercera and early this week, Chile’s Supreme Court ruled in the readers’ favor, upholding the two previous lower court rulings on the matter and ordering the paper to pay $163,000 in damages.  The court found that La Tercera printed the recipe without properly testing it first and that following it would unavoidably result in exploding churros.

Now I’ve scoured the internet looking for the recipe, but to no avail.  Not surprisingly, no one seems to want to host it.  Too bad, as my curiosity has got the better of me.

This is quite a tragic story as being covered in scalding hot oil cannot be a pleasant experience.  What’s odd is that a lot of people I’ve spoke to about the case seem to think that had it happened in America they believe the newspaper would have won.  Crazier still is that many of the comments online seem less than sympathetic to the victims.  I know the internet is not without its trolls, but seriously, that’s pretty cruel to attribute the fault to so many victims with nearly uniform harm.

So, let’s try to put the dispute to rest here and now.  I’m certainly not a judge, but it does seem clear to me, and I think to most people who study the law, that there certainly is a case for negligence here.  No need to get fancy with transferred liability.  Looking at the facts it seems quite unnecessary to go beyond this most basic of tort principals.

First, a quick recap on negligence as defined in modern civil courts today.  When one sues another for negligence they are essentially accusing the other party of failing to do or not do something that would have otherwise adverted the harm from occurring.  In legal terms, this tort is made up of duty, breach of duty, cause in fact, proximate cause, and damages.

Duty is simple; it basically means that the liable party was in a position where they could foresee that their actions could result in damage to the victim.  Breach of duty is exactly as it sounds, meaning one fails to do their duty.  Cause in fact means the victim’s injury wouldn’t have occurred if the defendant’s breach of duty didn’t occur.  Proximate cause essentially means that the defendant could reasonably foresee that the damage would’ve occurred as a result of their failed duty.  And finally damages means the victim must actually suffer some sort of harm, physical or otherwise.

As a side note, for those looking to go to law school, familiarize yourself with the practice of writing out rules like this, because you’re going to do a lot of that on the exams.

Traumatic law school experience aside, it’s pretty clear that breach of duty, cause in fact, and damages, and even to some extent proximate cause are lesser issues here.  If it can be established that La Tercera had a duty to protect its readers from this sort of harm, the rest will just kind of fall into place.  Readers who made the recipe obviously wouldn’t have done so if they didn’t see the recipe before, and they suffered physical oil burns as a result of the explosions.

The main question is if a reasonable person could foresee that this recipe would have resulted in churros exploding out of hot oil.  Now based on the facts established by the Chilean courts, the answer is yes.  This is because the recipe put an oil temperature that was too high, and a reasonable newspaper, if they had tested the recipe beforehand, would have known that throwing in globs of churro batter would have always resulted in the type of oil splatter that occurred.  Certainly there is always the possibility of human error, especially when it comes to cooking.  But here, even if an expert chef made the churros, the resulting splash of oil would have still happened simply because the recipe was wrong.

And that, friends, is why the case would’ve ended the same even in our country.

Bought a Zoo? Time to Learn About Strict Liability

Last October, a fascinating news story involving escaped animals created an uproar in the media.  In Zanesville, Ohio, a man named Terry Thompson opened the cages of over 50 exotic wild animals that he owned and kept on his private reserve.  The escaped animals then proceeded to march around town, creating a literal urban safari a la Jumanji, causing much fear and alarm for the town’s residents.

Some of the wild animals included leopards, black bears, 300-pound Bengal tigers, grizzly bears, and lions.  Yikes!  Fortunately, no one was injured, although sadly all of the beasts had to be put down by local law enforcement.  To make things more bizarre, Thompson ended up taking his own life by gunfire shortly after releasing the animals.  Apparently, he had more than his lion’s share of personal problems.

This incident raises some questions in my mind about the laws governing the ownership of wild, dangerous animals.  Just what are the rules for keeping wild animals?  What type of precautions must keepers of wild animals take?  And when does a person become liable for an escaped animal?

According to most state laws, the care of wild animals like lions, tigers, and bears falls under a category known as “strict liability”.  Strict liability is somewhat unique, and stands like a lone wolf in the realm of civil tort law.  Basically, strict liability rules impose civil liability on a person, even if they didn’t intend to commit a violation of law.

For instance, an owner of wild animals can be held liable for property damage or injuries simply if their wild animals escape from their cages, even if they took the necessary precautions to keep the animals locked in.  So, in the Zanesville, Ohio case, Mr. Thompson could have been held liable even if he hadn’t opened the cages, and even if the animals escaped without his assistance.  Strict liability principles dictate that wild animals are just too dangerous, and their keepers will be held to a much higher standard of care than normal.

Strict liability laws exist to prevent unnecessary injuries and property damage.  The logic is that the animal or product is more dangerous than usual, and the owner is creating a high degree of risk to the surrounding community.  A person probably wouldn’t be subject to strict liability laws if they kept a harmless animal like a rabbit.  But they certainly might be if they’re keeping a deadly, lethal bear capable of inflicting major bodily damage.

Strict liability principles can also involve other matters besides wild animals, such as the transport of super-hazardous materials (e.g., oil spill claims), and certain defective products.  But are they fair?  I mean, is it ok to hold someone liable even if they didn’t intend to inflict harm?  Many think that strict liability laws are effective, because they force people to think twice before engaging in risky activity or before obtaining highly dangerous items.  They can sometimes result in very beastly legal consequences if someone gets hurt.

But I think that strict liability laws are somewhat toothless, for a few different reasons.  To begin with, most people probably don’t even know about strict liability rules.  Your average Joe or Jane usually won’t be thinking about strict liability on an everyday basis.  And secondly, strict liability laws only provide a remedial mechanism after something dangerous has already happened, like an oil spill or a products liability injury.

I agree very strongly with the residents of Zanesville, who complained that legislation simply isn’t, well, strict enough for owners of escaped exotic animals.  A more thorough screening process needs to be implemented for persons who want to import wild animals for private keeping.  For instance, Mr. Thompson may very well have had a mental health issue- such an important factor should have been considered before he was allowed to even get the animals.

While it may seem that strict liability rules are abstract and inapplicable, the reality is, some people might be subject to these laws without being aware of it.  For example, I know many people who are fond of keeping pets like venomous snakes and spiders.  These types of pets may expose the owner to strict liability if the animal escapes.  Even certain types of fishes and some dogs can be included under strict liability rules, so it’s good to know the implications of owning such pets.

With all that said, I wish you a safe, liability-free holiday season and an awesome 2012.  Feel free to go ape at your white elephant parties, but do think twice before going out and buying a zoo for the holidays to rescue animals.  It might seem like a novel showcase of good will, but it could get you into trouble, even if you didn’t mean to.

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Black Friday + Walmart + Pepper Spray Battery = Jail

I hoped you guys all enjoyed your Cyber Monday, the hyper-marketed corporation-created online shopping holiday that ranks up there right next to Grandparent’s Day and Boss’s Day.  Because I bet it was a heck of a lot better than this year’s Black Friday, which included the use of pepper spray this time around.

If you didn’t see the story, apparently a Los Angeles woman was all too eager to get into her local Walmart and grab a video game console for her lucky (and probably ungrateful) son or daughter.  I say ungrateful because I’m just betting that if your parent is willing to brave a horde of angry shoppers just to get a gift for you, you probably are already used to getting what you want.  That or your mom or dad, you know, “care” about you or whatever.

Anyway, the store was scheduled to open at 10 p.m., but five minutes before staffers could get the doors open, the angry crowd did what angry crowds always do and turned violent.  Patrons started ripping open packages and it was at that point that the suspect decided to use her secret weapon and pepper sprayed the crowd to get her pick of the toys.  The woman’s identity still hasn’t been released by police yet, but she has turned herself into authorities.  Though she’s invoked her Fifth Amendment right and is refusing to talk to the police.

Insane, right?  I mean, who still does their Christmas shopping at brick-and-mortar stores, let alone on the day after Thanksgiving instead of in July like a reasonable person?  And since when did parents care so much about getting their kids what they actually want for Christmas?  I got socks, underwear, and sweatpants every year from my parents, and that’s what my kids are going to get to, instead of that Optimus Prime Transformer figure they explicitly asked about . . .

But seriously, I think this story illustrates why the whole Black Friday thing has gotten out of control.  When people start thinking that it’s okay to pepper spray other people just to buy a toy at a barely reduced price, then I think it’s time to bring the day to a close.  I would like to believe that people know that burning someone’s eyes in order to grab a gift isn’t a justification for battery.  And if you think this too, you’d be wrong because the competitive Walmart shopper brought the pepper spray on purpose according to news reports.

Lest anyone think what this woman did was okay, let me just run down what assault and battery in the criminal justice system really means.  A “battery” occurs when someone commits any non-consented physical contact against another person.  “Assault” is generally described as an attempted battery.  It’s when a person intends to physically contact another person without that person’s consent and the person is placed in imminent apprehension of the impending contact.

There’s no question that the suspect committed a battery.  Reports have already stated that she acted purposefully in spraying the other shoppers, though I suppose there may be a question as to whether the shoppers actually saw it coming.  And the latter, even if true won’t do much to reduce the woman’s sentence.  I don’t think that district attorneys are all that lenient when it comes to sentencing just because the assault portion of a battery is missing.  “Oh, so the crowd didn’t know you were about to burn their eyes with pepper spray just to pick up that Xbox?  What an angel you are . . . “

You all might also be thinking that all the jostling and pushing that occurred before, during, and after the shopping should also be considered assault and battery, and well, you’d be right.  For years these big box retailers have gotten away with hosting these chaotic and poorly organized annual shopping events.  Though the onus is on shoppers to not descend into chaos, retailers should know by now that they always do and take more steps to keep the peace.  Something as simple as 1) restricting the amount of shoppers in the store at one time and 2) hiring extra security to stand at each aisle would probably do wonders in keeping shoppers from tearing each other apart.  But that’s a blog for another time.