 A reader sent in a copy of UNRESTRICTED, a South Florida sports magazine.
On page 38 of its April 2008 issue, the publication features some friendly advice offered by a scantily clad young woman named "Luanna," a Miami Heat Dancer. In the profile, Luanna encourages her fans to "Always tell the truth. That way, you don't have to remember what you said." Pretty innocuous stuff, right? (And, sage advice, if you think about it.) Yet, immediately following her quote the publisher sought fit to insert an asterisk which takes you to the following disclaimer: Unrestricted does not officially recommend that anybody actually live by this quote. So, pray tell, UNRESTRICTED, what words should your readers live by? 
Continue reading "WHY NOT ENDORSE THE TRUTH?" »
 In Gardner v. Town of Tonawanda, Daniel Gardner was injured during an indoor flag football game when he slipped on a baseball glove used as a sideline marker.
When the Town of Tonawanda, owner of the recreational facility, moved to dismiss the case (on the grounds that Gardner “assumed the risk” of his injuries when he voluntarily participated in the game), the Erie County Supreme Court denied the request. On appeal, the Appellate Division, Fourth Department, reversed. Quoting prior appellate precedent, the AD4 observed: “As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation.” (Turcotte v. Fell, 68 NY2d 432). Because Gardner knew that orange cones and plastic flags were typically used as sideline markers, and that referees had the discretion to substitute those markers with other items, Gardner needed to prove that the risk of tripping on the substituted item was significantly greater than tripping on a cone or flag. As Gardner failed to demonstrate the enhanced danger of a baseball glove's use, the AD4 granted Tonawanda’s request and dismissed the case. Was that a FUMBLE? To download a copy of the Appellate Division’s decision, please use this link: Gardner v. Town of Tonawanda
 In Roberts v. Boys & Girls Republic, Inc., Linda Roberts sued to recover damages for injuries she sustained when she was hit by a baseball bat swung by a player during batting practice.
Although Roberts claimed that the hazardous nature of the sideline on-deck area was “concealed,” the New York County Supreme Court wasn't particularly persuaded by that argument and dismissed her case. On appeal, the Appellate Division, First Department, affirmed, noting that the threshold issue was whether Roberts had “assumed the risk” that resulted in her injury. Under that legal theory, voluntary participants, spectators, or bystanders of athletic or recreational activities are viewed as having accepted the repercussions of all “open and obvious" risks. Since bat swinging in an on-deck area is inherent to the game of baseball, the AD1 concluded that Roberts had "struck out" and could not pursue a recovery. You’re certainly free to take a swing at this case, should you dare. To download a copy of the Appellate Division's decision. please use this link: Roberts v. Boys & Girls Republic, Inc.
 This past weekend, I was in Boca Raton for the Thanksgiving holiday and came across an issue of "UNRESTRICTED" -- a South Florida sports magazine.
The November 2007 issue offers articles on the Dolphins, the Ford 400 in Homestead, former NFL running back Moe Williams, and, a feature piece on basketball's "Odd Couple" -- Shaq and Penny. Of course, there's also "a quote to live by" offered by a Florida Panthers Ice Dancer. You'll find "Maritza," prominently displayed on page 35, in a scantily clad full-body photo, sharing the following insights with UNRESTRICTED's readers: "Life is a course of natural and spontaneous changes. Don't have regrets and let reality be reality. Let things flow in whatever they like."
Words to live by? Well, apparently, UNRESTRICTED didn't think so. While it's unlikely that Maritza was advocating serial killing -- or some other unsavory or illegal behavior -- UNRESTRICTED's publishers weren't so certain. For at the bottom of the page you'll find an interesting disclaimer: Unrestricted does not officially recommend that anybody actually live by this quote.
Would anyone ever think a magazine called UNRESTRICTED would? 
To download a copy of of the full-page piece, and to see her in the flesh, please use this link: Maritza
 A reader forwarded a link to a trailer for an upcoming movie which may explain why the New York Mets didn't make it to the World Series this year.
Our apologies, in advance, to Mets fans ... everywhere. To download the video, please use this link: Mister Met Goes Brokeback
 In Rossman v. RCPI Landmark Properties, L.L.C., Jo Rossman was ice skating at New York’s famous Rockefeller Center for a little more than an hour and a half.
Although the rink’s surface was initially smooth, it apparently deteriorated to the point where there were “ice chips, bumps, and wet spots.” Yet, Rossman continued to skate until she struck a bump and fell. Since Rossman was aware of the danger, the New York County Supreme Court opted to dismiss her personal injury lawsuit. On appeal, the Appellate Division, First Department, was equally frigid to Rossman’s claim, and unanimously affirmed the lower court’s decision. The AD1 believed that Rossman “assumed the complained-of risk posed by the condition of the ice.” In other words, Rossman’s decision to keep on skating, left her out in the cold. 
For a copy of the Appellate Division’s decision, please use this link: Rossman v. RCPI Landmark Properties, L.L.C
 A reader forwarded a video of Oklahoma State coach Mike Gundy taken after the Cowboys' 49-45 win over Texas Tech this past weekend.
Rather than talk about the game, Gundy launched into a 3 1/2 minute tirade over some unfavorable press coverage one of his players had received in the Oklahoman; a local paper. (In her piece, the reporter, Jenni Carlson, questioned why player Bobby Reid had been demoted as the team's starting quarterback.)* "If anybody hasn't read this article,” Gundy began as he held up a copy of the Oklahoman's sports page, "I think this is worth reading. Three-fourths of this is inaccurate. It's fiction. And this article embarrasses me to be involved with athletics.
"That article had to have been written by a person that doesn't have a child. And has never had a child that has had their heart broken and come home upset and had to deal with a child when he is upset. And kick a person when he's down." It is yet another inappropriate display of emotion -- a temper tantrum -- that is making its way across the Internet. Clearly, Gundy is in dire need of anger management counseling. (We're not quite sure how this presentation was intended to diffuse the situation or change the media's perception of the underlying report. If anything, it has drawn national attention to the Carlson article and has likely made a bad situation worse.) To download the video, please use this link: Gundy Goes Gaga** -------------------------- *To access the piece, use this link: Carlson on Reid (registration required) **Some have compared Gundy's outburst to Chris Crocker's "LEAVE BRITNEY ALONE!" video. Unfortunate, no?
 In Speirs v. Dexter Shoe Co., Jean Speirs filed a personal injury lawsuit to recover damages she sustained when she slipped and fell while bowling at Herrill Lanes, in New Hyde Park, New York.
Speirs, a recreational bowler with over 40-years of experience, was wearing bowling shoes manufactured by Dexter Shoe Company. Since she believed the shoes were defective and contributed to the accident, Speirs also asserted a products liability claim. Finding that Speirs had owned the shoes for nearly two-years and, by her own admission, had worn the shoes approximately 64 times, the Nassau County Supreme Court awarded Dexter Shoe Company summary judgment in its favor and dismissed the products liability claim. On appeal, the Appellate Division, Second Department, was equally unsympathetic to that theory of recovery, and held that the “evidence submitted by Dexter made out a prima facie case demonstrating that, as a matter of law, the bowling shoe was not defective.” It seems that Speirs hit the gutter with that one. For a copy of the Appellate Division’s decision, please use this link: Speirs v. Dexter Shoe Co.
 All sports are riddled with risk of injury, and those who engage in such activities are viewed by the law as having acquiesced to the possibility of harm, particularly those injuries which are "known, apparent or reasonably foreseeable."
When it comes to skiiing or snowboarding, for example, that standard is no different. Generally, the risk of being injured by another is looked upon as "inherent" to the sport. In other words, if you're hurt, you're likely out of luck if you're looking to recover damages by way of a lawsuit. Unless, you can show that the person who caused the injury did so "intentionally" or "recklessly." In DeMasi v. Rogers, the Appellate Division, Second Department, examined the outcome of DeMasi's personal-injury lawsuit against a snowboarder who had collided with him while skiing in Massachusetts. The Dutchess County Supreme Court had granted the snowboarder's request to dismiss the case, finding that DeMasi had assumed the risk of skiing. The AD2 concluded that a hearing or trial was warranted to resolve unresolved "questions of fact." As the court observed: The distance that the plaintiff was thrown as a result of the impact, and the nature and extent of the injuries incurred, raise at least a question of fact as to whether the defendant's speed in the vicinity and overall conduct was reckless ... On this basis, the defendant's motion for summary judgment should have been denied.
Apparently, this particular "board bro" was "horndoggin'" or "hucking too much gander." For a copy of the Appellate Division's decision, please use this link: DeMasi v. Rogers
 On June 19, 2007, the Appellate Division, First Department, delivered a decisive blow to former NBA star Latrell Sprewell.
The AD1 reversed an order of the New York County Supreme Court which had granted Sprewell’s request to preclude the use of information provided by confidential sources in a series of articles written by Marc Berman of the New York Post, and which had denied the defendants’ request for summary judgment. Sprewell claimed that he was libeled by published statements regarding the cause of an off-season injury. In 2002, a broken hand sidelined the athlete and resulted in a 16-day suspension and a hefty fine levied against him by the Knicks’ organization. In preparation for a Post story, Berman learned that Sprewell’s fracture to his fifth metacarpal bone was quite similar to what hand specialists refer to as a “boxer’s fracture,” an injury caused by punching a hard object. That information conflicted with comments from Sprewell’s agent, which explained that the fracture had occurred while “frantically pulling on a rope” while aboard Sprewell’s yacht. Berman was then alerted to an email sent to the paper from an individual claiming that Sprewell had actually been injured during a fight aboard a boat at a Milwaukee marina. Pursuing the lead, Berman learned that during a party on Sprewell’s yacht an “uninvited woman vomited due to excessive alcohol consumption.” When the woman and her male companion refused to leave, Sprewell reportedly threw an errant punch at the gentleman and struck a wall with his fist. After cursing in pain, Sprewell reportedly requested that the party-goers not discuss the incident, publicly. According to Berman, since the witnesses feared possible retribution, they refused to speak without the condition of anonymity. After seeking comment from Sprewell’s agent, publicist, and team officials, Berman filed the story noting that the eyewitnesses had asked not to be identified and that Sprewell’s publicist had denied the accounts. In three subsequent articles, Berman reiterated the eyewitnesses’ accounts but incorporated Sprewell’s denials, and noted the team’s officials' mounting skepticism as to the injury’s cause. In response, Sprewell brought an action for defamation and sought, by way of discovery, the identity of the eyewitnesses used in Berman’s article. According to the AD1, a public figure may not recover damages for defamation without proving by “clear and convincing evidence” that the published material is false and made with “actual malice” -- that is, a high probability of falsity or with intentional or reckless disregard of the truth. The AD1 was of the opinion that Berman demonstrated an unequivocal intent to avoid the deliberate dissemination of false information by contacting the Milwaukee Police Department, the Milwaukee Journal, the McKinley Marina, Sprewell’s agent and publicist, and speaking with the team’s representatives. Moreover, by cautioning in his articles that the information was based on two confidential witnesses and that the reports had been denied by Sprewell, Berman demonstrated appropriate care to avoid publishing potentially libelous information. Sprewell’s inability to provide any evidence of actual malice by Berman, coupled with a continuously changing explanation for his injuries, convinced the AD1 to reverse the Supreme Court’s decision. Of course, that canned the case. Looks like someone could use some “spin” lessons. For a copy of the Appellate Division's decision, please use this link: Sprewell v. NYP Holdings, Inc.
 Cheryl A. Dalton was thrown from a horse named Patches and was injured in the fall. In a lawsuit filed against the riding facility, Adirondack Saddle Tours, Inc., (ASTI), Dalton alleged "strict liability premised on vicious propensities of the horse, common-law negligence and breach of contract."
When ASTI moved for the case's dismissal, the Schenectady County Supreme Court only dismissed the lawsuit's "vicious propensity" component. On appeal, the Appellate Division, Third Department, modified the outcome by ending the entire case. According to the AD3, anyone riding a horse assumes the risks that are normally associated with that activity, which would include the animal's sudden or unexpected movements that could lead to a rider being injured. Since the horse did not suffer from any "physical defect" which contributed to the fall and was not known to be "unruly" or "dangerous," the AD3 was of the opinion that Dalton's case about Patches had some irreparable holes. Here's how the AD3 put it: In our view, the risk that a horse might suddenly break into a run is one inherent in the activity of horseback riding. Further, in this case, the horse's movement was not entirely unexpected as plaintiff had urged the horse to catch up with the other horses. Had plaintiff not appreciated the risk of Patches running when she first mounted, she certainly must have become aware of that risk after the horse ran several times to catch up during the course of the trail ride ... Notably, plaintiff never expressed concern or sought assistance on these occasions. Under these circumstances, defendant's motion for summary judgment on the common-law negligence cause of action should have been granted because plaintiff's injuries were caused by an event inherent in the activity to which she voluntarily consented.
"A horse is a horse, of course, of course ...." For a copy of the Appellate Division's decision, please use this link: Dalton v. Adirondack Saddle Tours, Inc.
 Joseph Lombardo, an "experienced golfer" who had played at the Cedar Brook Golf & Tennis Club "on numerous prior occasions," was injured when he slipped and fell on a patch of wet grass in the vicinity of the 17th tee.
In response to a negligence lawsuit Mr. Lombardo filed in the Nassau County Supreme Court, the Club sought and was awarded summary judgment dismissing the case (without a formal hearing or trial). On appeal, the Appellate Division, Second Department, affirmed. Because there is always the possibility of injury or harm whenever one engages in a sport or recreational activity, the law views participants as having acquiesced to the risks which are "inherent in and arise out of" the endeavor. In other words, injuries from "events which are known, apparent or reasonably foreseeable" are not compensable. Since the wet grass was an "open and obvious condition," and Lombardo had been aware of the course's closure due to "torrential rains" the day prior to the accident, Lombardo was found to have knowingly and voluntarily "assumed the risk of injury by playing on the wet surface." And, without any evidence that the course's design violated a "specific industry standard," the AD2 also clubbed the golfer's claim of a negligent course design. 
FORE!For a copy of the Appellate Division's decision, please use this link: Lombardo v. Cedar Brook Golf & Tennis Club, Inc.
Looking to be a Westchester County Police Officer?
Before you can even be considered for the post you'll need to meet the following eligibility requirements: citizen of the United States at time of appointment;
high school diploma at the time of examination;
current New York State Drivers License at the time of appointment; and
twenty (20) years of age at time of appointment, and no older than 35 (at time of the examination), unless you're a veteran as defined by New York State Law. Applicants are also required to undergo a physical agility test conducted by the County's Human Resources Department. This test requires, in part, that candidates run 1.5 miles "on a track" (within a delineated time frame).
Can the County deviate from the prescribed test conditions?
In a recently reported case, the Appellate Division reaffirmed that the County has considerable leeway when administering these eligibility tests. In Matter of Burchetta v. County of Westchester, Cindy Burchetta and other applicants were asked to do the run on the police academy's parking lot. After Burchetta failed the test, she demanded a retest "on a track" as provided by the regulations. When that request was denied, Burchetta commenced suit -- by way of an Article 78 Proceeding -- to annul the prior results and compel a retest. The Westchester County Supreme Court acquiesced and granted relief in Burchetta's favor.
Finding that the County had the discretion to interpret and apply its own regulations, the Appellate Division, Second Department, reversed. The decision to conduct the test on a "parking lot" rather than a "track" was not viewed as significantly violative of the County's own regulations. As the Court observed: The standards for physical fitness have a rational relationship to the ability of an individual to perform police functions, and their application is neither arbitrary nor capricious ... The determination at issue was rationally based on the petitioner's failure to complete the physical agility test within the required time.
The Department of Human Resources of the County of Westchester is authorized to administer the test for prospective police officers, which includes the stated 1.5-mile run .... Its interpretation of the regulations is accorded great weight and judicial deference, as long as it is not irrational .... The requirement that applicants for the position of police officer run 1.5 miles was not irrational as administered. Running purists would likely disagree with the outcome of this case. According to published reports, parking lot asphalt presents a less than ideal condition for runners. By way of example, in May 1997, Runner's World (UK) rated various surfaces on a scale from 1 (least desirable) to 10 (most desirable). The results follow: Grass (9.5)
Woodland Trails (9)
Earth (8)
Cinders (7.5)
Synthetic Track (7)
Treadmill (6.5)
Asphalt (6)
Sand (6)
Concrete (2.5)
Snow (2) Although the one-point rating differential would appear to be slight, one can't help but wonder if a synthetic track surface would have yielded a qualifying finishing time for Ms. Burchetta.
For a copy of the Appellate Division's decision in Matter of Burchetta v. County of Westchester, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_06281.htm
For a copy of the Runner's World piece, "Top 10 Running Surfaces," please click on the following link:
http://www.runnersworld.co.uk/news/article.asp?UAN=152
Several month ago, we analyzed a negligence claim made by Nicole Ziegelmeyer, a two-time Olympic Speed Skating medal winner. As we reported back on July 17, 2006, [Olympic Skater Denied Thrill of Victory], Ms. Ziegelmeyer was preparing for the Nagano Winter Games at a skating facility operated by the United States Olympic Committee (USOC) in Lake Placid, New York, when she fell, hit the fiberglass boards surrounding the rink, and incurred serious spinal injuries.
In her lawsuit, Ziegelmeyer claimed entitlement to compensation on the ground that the USOC--and others--had failed to properly install protective padding. However, the Green County Supreme Court did not agree and granted the USOC's motion to dismiss the skater's case, finding that Ms. Ziegelmeyer had assumed the risk of injury by engaging in the sport. After the Appellate Division, Third Department, affirmed the dismissal on appeal, Ziegelmeyer then perfected her case to the New York State Court of Appeals.
For those of you who did not catch our original post, here's how we gauged Ms. Ziegelmeyer's chances of success: While Ms. Ziegelmeyer's attorney has indicated an intention to appeal to the state's highest court, we do not hold out much hope for a favorable outcome.... Sure enough, folks, we called it right!
Less than a week ago, the Court of Appeals cast its vote against the Olympian. The slip opinion consists of only four sentences and reads as follows: The order of the Appellate Division should be affirmed, with costs.
Plaintiff, a short-track Olympic speedskater, was injured when she fell on the ice during practice and hit the boards surrounding the rink. Although safety pads had been placed on the boards, plaintiff fell in such a way that her feet lifted the pads, causing her hip to strike the boards directly. Because plaintiff was aware of the exact manner in which the safety pads had been set up on the day of her accident, the Appellate Division correctly held that plaintiff had assumed the risk of her injuries, and properly affirmed the Supreme Court order granting summary judgment dismissing the complaint.... And with that, the court skirted the skater's personal-injury claim and thwarted any possibility of a recovery. They call that a "triple slam," no?
For a copy of the Court of Appeals's decision in Ziegelmeyer v. United States Olympic Committee, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_08644.htm
For a copy of the Appellate Division's decision in this case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03130.htm
Many of us would be taken aback if a "lady" were to bite us on the shoulder. So, it should come as no surprise that Marilyn G. Tilson was particularly flummoxed by the hostile reaction she received one summer day.
On June 25, 2000, Ms. Tilson--a "recreational horseback rider" with thirty years of experience--visited New Horizon Stables and was assigned to ride "Lady," a horse owned by Larry and Kim Russo. As Tilson approached the animal, Lady reportedly bolted toward the prospective rider and bit her on the left shoulder.
Tilson filed a negligence case against the Russos in the Albany County Supreme Court, seeking compensation for her injuries. When the defendants moved to dismiss the complaint--on the grounds that Tilson was aware of the perils associated with horseback riding, assumed the risks inherent in that activity, and, as a result, defendants were not liable for any injury or damages sustained--the Supreme Court agreed and ended the case. On appeal, the Appellate Division, Third Department, affirmed. In its decision, the appellate court cited to a series of cases which sealed the litgation's fate. Noting that horses are "unpredictable" and prone to "sudden and unintended actions," and that being bitten, bumped, kicked, struck, and thrown are all scenarios that a rider should anticipate, Tilston was deemed to have consented to any injury-causing events.
While Tilson's attorneys also argued that negligence liability attached due to Lady's "vicious propensity," in that the horse had apparently bitten others, the appellate court found that legal doctrine did not apply to a sporting event where a party knowingly assumes the activity's attendant risks.*
Sounds like pure horse-sense to us.
For a copy of the Appellate Division's decision in Tilson v. Russo, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05070.htm
---------------
*For our blog posts on "vicious propensities," please see the index to your right. Posts have included: Here's an Oreo that Will Bite Back, The Bard and the Bull, and Beware of Dog: Biting the Hand that Doesn't Feed You
In 1997, Nicole Ziegelmeyer, a two-time Olympic medal winner, was preparing for the Nagano Winter Games at a skating facility operated by the United States Olympic Committee (USOC) in Lake Placid, New York. During the course of a practice session, Ms. Ziegelmeyer fell and hit the fiberglass boards surrounding the rink in such a manner that she incurred severe spinal injuries.
In a lawsuit commenced in the Greene County Supreme Court, Ms. Ziegelmeyer claimed that the United State Olympic Committee and other parties were negligent for failing to properly install protective pads over the fiberglass boards. The Supreme Court granted the USOC's motion to dismiss the skater's case, finding that Ms. Ziegelmeyer had assumed the risk of her injury. On appeal, the Appellate Division, Third Department, affirmed and reiterated the standards applicable to all athletes: An athlete who voluntarily participates in a sport "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation"...The "duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty"..."[I]t is not necessary that the injured plaintiff foresee the exact manner in which...her injury occurred"...Moreover, "a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport".... In a dissent, the Honorable Anthony V. Cardona, expressed dissatisfaction with the outcome, citing to various breaches of safety standards promulgated by the International Skating Union and "Special Regulations for Speed Skating and Short Track Speed Skating." Since the protective padding required by these regulations were not properly attached or installed, the dissent concluded there were "issues of fact" as to whether the USOC met is duty of making the indoor rink "as safe as it appeared to be" and whether the improper installation of the protective padding created a "dangerous condition 'over and above the usual dangers that are inherent in the sport'". In other words, the skater's claim should have been determined by a judge or jury, after trial. We agree.
While Ms. Ziegelmeyer's attorney has indicated an intention to appeal to the state's highest court, we do not hold out much hope for a favorable outcome; particularly, in light of the Court's recent decision in the Metropolitan Opera case. (A case we examined on April 17, 2006.) As you will recall, the Court of Appeals relieved the opera house of negligence liability--despite the violation of internal operating standards--since no cognizable duty of care had been breached. We fear a similar fate may befall Ms. Ziegelmeyer's claim.
Oh, the agony of defeat ....
For a copy of the Appellate Division's decision in Ziegelmeyer v. United States Olympic Committee, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03130.htm
For our analysis of the Metropolitan Opera case, please click on the following link:
http://www.nyrealestatelawblog.com/2006/04/sidestepping_patrons_or_duties.html
[Note: Ms. Ziegelmeyer and her husband are now operating a painting contracting business outside of St. Louis, Missouri.]
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