Lowering the Bar

Man Burned at Burning Man Assumed Risk of Being Burned by Burning Man, Says Court

On June 30, the California Court of Appeal held that a man who was burned by the huge bonfire that ends the Burning Man festival each year could not sue the festival organizers.  Anthony Beninati admitted he had intentionally walked into the fire, and that he had previously known fire was hot.  But he argued, basically, that the organizers were negligent because they should not have let him approach the fire so closely.

He did not win.

The defendants argued the lawsuit was barred by the doctrine of "primary assumption of the risk."  This doctrine bars negligence claims by someone who was hurt while participating in an activity "involving an inherent risk of injury to voluntary participants . . ., where the risk cannot be eliminated without altering the fundamental nature of the activity."  To date, California courts have applied this only if the activity is a sport of some kind, although a couple of cases have stretched that definition a bit (unless you think "recreational dancing" and being pulled behind a boat on an inner tube are "sports").

Generally, walking into a bonfire is not considered a "sport," so this case squarely presented the question whether the doctrine should apply to anything else.  The court held that, at least on these facts, it did.

Burning Man, as you may know, is an annual week-long festival held in the Black Rock Desert in Nevada.  There is normally nothing at the site, but once a year tens of thousands of people show up and build a small city.  Among the many things they create is the iconic 60-foot-tall wooden statue that is set on fire as the culmination of the festival.  The Burning Man burns until he collapses into a gigantic bonfire, which, apparently, people then throw things into as part of the Burning Man experience.  Benenati was burned while trying to do this.

That is, this man wasn't just burned at Burning Man, he was burned by the Burning Man himself.

Beninati's complaint stated that when he approached the bonfire, the flames were still roughly 40 feet high.  He walked around the bonfire three times, each time "circl[ing] a little closer to the fire."  Eventually, he walked still closer, into what was variously described as an area of "embers," "low flames," "burning remnants," and "a spot where there was fire on either side of him."  Basically, he had walked inside a huge bonfire.  Then, as you might have expected, he tripped on something and fell into the actual fiery part of the bonfire, burning his hands.

In his deposition, Beninati admitted he knew "fire was dangerous and caused burns" before he walked into one.  He knew there was some possibility of falling into said fire.  He admitted no one affiliated with the defendants asked him to walk into the fire or told him it would be safe to do so.  But he testified that he did not think it would be dangerous to walk into the fire, although he knew it "was not 'absolutely safe, because there [was] a fire present.'"  And, as noted, fire is hot.

Benenati argued the assumption-of-the-risk defense should not apply because he had not been engaged in a sport.  Some battling legalese followed.  Plaintiff's lawyer: there is "essentially no precedent for extending primary assumption of the risk to 'low-impact' cultural activities of the sort found herein."  Defendant's lawyer: "If he had simply stayed a safe distance away from the Burning Man conflagration instead of entering its perimeter, he never would have burned himself."  Clearly, entering the perimeter of a conflagration would not qualify as a low-impact cultural activity anyway.  I think we can all agree on that.

The court agreed with defendants.  While there is an exception to the doctrine where a defendant has unreasonably increased the risk involved in the activity, the court noted that, here, plaintiff had presented no evidence that defendants had "increased the inherent risk of harm . . . normally associated with entering an area surrounded by fire."  Case dismissed.

Link: KTVU (San Francisco)
Link: What is Burning Man?

British Manufacturers Offer Pointless Anti-Stab Knives

Popehat reports that a British manufacturer is planning to offer "anti-stab" knives, driven by an increase in knife-related crime over the past few years in that relatively gunless land.  The manufacturer said he had been inspired by a documentary in which doctors advocated banning traditional knives, the kind with a point on the end, in an effort to prevent stabbings.  See "British Medical Experts Say Knives Too Pointy, Call For Ban," Lowering the Bar (May 28, 2005).

You'll Find It More Difficult To Kill With These, My Friend

The new knives are rounded on the end, and are also notched as shown above.  The notch is apparently intended to make it more likely that the knife tip will "snag on clothing and skin" during an attempted stabbing.

For some reason I feel that the "skin-snagging" feature has not been adequately tested.  I also feel that it might hurt more than actually being stabbed.  I am also concerned that the manufacturer does not appear to claim that these will make stabbings impossible, just "almost impossible."  If I'm going to get stabbed, and I'm confident that I am, the last person I want stabbing me is somebody who could only get one of these things but is determined to make it work anyway.

The designer, John Cornock, said the knife will work perfectly well in the kitchen, so long as you are not trying to stab somebody there.  "It can never be a totally safe knife," he said, "but the idea is you can't inflict a fatal wound.  Nobody could just grab one out of the kitchen drawer and kill someone."  Maybe not, but if you feel it necessary to buy a set of these knives in order to kill-proof your home, maybe you should be spending that money on a divorce?

The BBC quoted a doctor at West Middlesex Hospital as saying that the knives were a promising development, and that all products should combine efficiency with the greatest possible degree of safety.

"This is especially true," he said, "of household products which are freely available to the very young and very old, and used by people who may be clumsy, short-tempered, drunk or mentally or physically unwell.  Most people fit into one or more of these categories at some time in their lives."  Hard to argue with that.

Link: Popehat
Link: Times Online (UK)

Holy Spirit Lawsuits, Round Two

Receiving the Holy Spirit seems to get more dangerous all the time.

In at least two prior cases, worshippers injured in falls after being "taken by the spirit" have sued their churches for negligence, mostly claiming that the churches failed to adequately train people to catch them.  I don't know how this Kentucky case I reported on last year came out, but the Michigan Court of Appeals has upheld at least one jury verdict against a church in such a lawsuit, finding that under the circumstances the church had assumed a duty to catch.

But there are at least two parties involved in one of these attempted catches (not counting the Holy Spirit itself, whom nobody seems to blame), and I suppose it was only a matter of time before those on the bottom started suing, too.

On Point News reported recently on a new case in Oregon in which Shin Lim Kim is suing her church, alleging that the leader of a service asked her to catch someone he was about to lay hands upon, and then did indeed lay hands upon that person, who promptly "fell backwards and began flailing, falling on and injuring plaintiff."  (The complaint is not clear as to whether the injuries were caused by the flailing, the falling, or some combination thereof.)  The lawsuit blames the church for, among other things, not providing enough catchers and for failing to instruct congregants on the "correct falling procedures" necessary to avoid injury.  Really?  It's a church service, not pro wrestling.

Probably not surprisingly, this lawsuit also blames the faller for "failing to control her body" and negligently falling onto the fallee, "a small and not particularly strong person," who because of the faller's failure to follow correct falling procedures, now suffers from back pain.  The plaintiff seeks about $7,500 in medical expenses, and lots and lots in non-economic damages.

Link: On Point News

Motorcyclist Who Hit Wild Boars Awarded $8.6 Million

I can't remember how many times I have tried to warn people that bad things were going to happen if we didn't tame our state's boars and train them to be more alert when crossing the street.  Why don't people listen?

Tame the boars, people!

Last Friday, a jury in Monterey, California, ruled that the state would have to pay Adam Rogers $8.6 million for injuries that he suffered in a 2003 traffic accident.  Rogers, who had allegedly been drinking, was riding his motorcycle on state Highway 1 just south of Carmel when he hit six wild boars that were crossing the road.  (He probably didn't hit all six, but that's what the article says.)  Rogers suffered very serious injuries in the crash.

He then sued the state Department of Transportation, arguing that it was responsible for the accident because officials allegedly knew the pigs were regularly crossing the road, not just to get to the other side but to feed on vegetation that the state was tortiously encouraging to grow as part of an environmental restoration project.  Yet the state did nothing to deal with this, said Rogers' attorney, Larry Biegel.  "This was a situation that they, the state, created," he said, "and then once they created it and saw what was happening they did nothing to stop it."

How would one deal with such a situation, were one inclined to do so?  (Short of the mass pig taming I have been calling for, that is.)  Biegel pointed to the fact that, after the accident, the state put up a "Pig Crossing" sign and used hunters to keep the pig population down.  I'd think those would have been inadmissible "subsequent remedial measures," and in fact it's not clear from the report whether this evidence was admitted or not.  And it's even less clear to me how either of those measures would have prevented this accident.  Pigs don't read; and unless you kill every pig in the state, which would probably be almost as hard as taming them all, there is still a chance that one of them is going to dart out and throw himself under a motorcyclist.  But the jury apparently disagreed with this analysis.

It also discounted the fact that, at least according to the Chronicle report, Rogers was legally drunk at the time of the accident, with a blood-alcohol level of .10.  The jury, however, concluded that alcohol "wasn't a major factor in the crash."

Link: AP via SFGate.com

Another Suit Alleges Negligent Laying-On-Of-Hands

Here's a report of a lawsuit filed on March 2 in Superior Court in Oakland, California:

Rev. Dr. Cheryl Elliott v. Randy Keyes; The United Pentecostal Church of Modesto; Does, No. RG09-438883 (Oakland Super. Ct. filed 3/2/2009)

Negligence action. Defendant Keyes knocked the plaintiff over backward when he hit her forehead without warning in the practice of "laying hands," and he neither helped her up nor acknowledged the incident afterward.

To my knowledge, this is the second lawsuit based on alleged negligence in the course of a similar Holy-Spirit-related practice.  The previous one was filed in June of last year, when Matthew Lincoln sued the Lakewind Church in Tennessee after injuring his back in a fall.  In that case, though, Lincoln only charged the church with negligent supervision of the "catchers" who it assigned to catch people overcome by the spirit.  The new case appears to target the hand-layer directly.

I haven't read the complaint, but based on the description above it may also include a failure-to-apologize claim.

Golfer Sues Course After Hitting Himself With Ball

The last golf-ball-strike case I reported on was Yoneda v. Tom, a 2006 case in which the Hawaii Supreme Court ruled that the plaintiff could not recover from the man who hit him in the eye with a golf ball because one who golfs assumes the risk of being hit by errant balls.  "Hitting a golf ball at a high rate of speed," wrote the court, "involves the very real possibility that the ball will take flight in an unintended direction."

It sure does.  Including what must be the least intended direction: straight back the way it came.

This was learned by Paul Sanchez, a 67-year-old golfer from Manchester, New Hampshire, who whacked a ball down the fairway only to have it return the favor after it ricocheted off a yardage marker.  The ball came straight back at Sanchez, hitting him in the right eye and allegedly injuring him severely.  The ball hit Sanchez "before he could even - pardon the expression - blink," said Sanchez's attorney, Barry Scotch, uttering a wisecrack that his one-eyed client must find hilarious.

According to court records, the ball shattered Sanchez's right supraorbital ridge.  It may have injured his eye permanently as well - the article describes the accident as leaving him blind in one eye, but also says he suffered a "blurring or total loss of vision."  So hopefully he may still recover from this.  But one thing, at least, is for sure - it's the golf course's fault.

Sanchez sued Candia Woods Golf Links earlier this month, saying the course was negligently designed and the owners failed to warn him of the risks.  Specifically, he says the markers were "too rigid" (thus allowing ricochets), and that they should not have been placed in or near the fairway.  He also complains that no warnings were posted in the pro shop, tee boxes or on scorecards, all of which apparently should have said something like "WARNING: Yardage Markers May Pose Risk of Self-Induced Ocular Ricochet Injuries."  The suit also contends that golfers should have been told that the markers can be removed during play, I guess on the theory that, on every hole, somebody would jog down and remove all the yardage markers before anyone teed off, and then go back and reinstate them before the group moves on.  That just has FUN written all over it.

That might all sound dumb, but have no fear - Scotch said that he consulted a "golf expert" before filing the case, to make sure it was legit.  "It's not a frivolous, run-it-up-the-flagpole-and-see-who-salutes kind of thing," he insisted.  (I pause here to praise the unsung hero at the Union Leader who carefully hyphenated that entire compound adjective.  Here's to you, Mr. Compound-Adjective Hyphenator.)

Hey, here's an idea for a misrepresentation claim - Candia Woods calls itself "The Friendliest Course in New Hampshire."  To one man, at least, it proved to be awfully hostile.

Link: New Hampshire Union Leader (Feb. 5, 2009)

Jesus Told Me to Ram that Car, Says Driver

A driver who rammed another car at high speed outside San Antonio last week told police that Jesus had told him to do so because the other motorist was not "driving like a Christian."

In my experience, He is usually satisfied if you just give a lousy driver the finger, but in this case I guess that wouldn't have gotten the message across.

According to a news release from the county sheriff's office, the driver told first responders that the driver of the other vehicle "was not driving like a Christian and it was Jesus' will for him to punish the car."  He similarly told a policeman that "God said she wasn't driving right, and she needed to be taken off the road."  The Lord does work in mysterious ways.

The man claimed he had reached 100 mph before hitting the other car with his pickup, although it doesn't seem that police were able to confirm that.  The two cars did end up in the median and were heavily damaged, but the fact that neither driver was seriously injured suggests that the man might have been exaggerating.  On the other hand, it was a rear-end collision, so the effective closing speed might have been much less.

A police lieutenant had a different explanation for why there were no injuries.  "God must have been with them," he said, "because any other time, the severity of this crash, it would have been a fatal [crash]."  Well, we know God was with at least one of them, but maybe He really was trying to help rather than holding down the gas pedal.

The man did not say what the other driver had allegedly been doing that caused him to smite her.

Link: San Antonio Express-News

"Borat" Lawsuits Unsuccessful

Good news for "Borat" (and for "Bruno," who will apparently be featured in Sasha Baron Cohen's next movie) -- every case filed to date by people unhappy with the way they were depicted in the film has been dismissed.  The handy chart below (edited slightly for space) is courtesy of the excellent site OnPoint News.

BASHING "BORAT"
Case	Claim	Outcome
Cedeno v. 20th Century Fox (S.D.N.Y.)	Illegal depiction of man in New York subway scene.	Plaintiff dismissed case 2/4/08.
John Doe v. One America Productions (Los Angeles Superior Ct.)	False portrayal of fraternity brothers as racist and sexist.	Judge granted motion to dismiss 2/15/07.
John Doe v. One America Productions (Los Angeles Superior Ct.)	Rodeo spectator exposed to ridicule.	Judge granted motion to dismiss 6/21/07.
John Doe v. 20th Century Fox Film Corp. (Richland County, S.C.)	Secretly recording man using restaurant bathroom.	Case dismissed.
Johnston v. One America Productions (N.D. Miss.)	Invasion of privacy of woman at Pentecostal church.	Judge denied motion to dismiss 8/22/07; case dismissed 7/29/08.
Lemerond v. 20th Century Fox Film Corp. (S.D.N.Y.)	Illegal depiction of man being chased in Manhattan by Borat.	Judge granted motion to dismiss 3/31/08.
Martin v. Mazer (S.D.N.Y.)	Woman duped into giving Borat an etiquette class.	Judge granted motion to dismiss 9/3/08.
Psenicska v. 20th Century Fox (S.D.N.Y.)	Driving instructor duped into giving Borat a driving lesson.	Judge granted motion to dismiss 9/3/08.
Streit v. 20th Century Fox (S.D.N.Y.)	False portrayal of etiquette teacher and her dinner guests as racists.	Judge granted motion to dismiss 9/3/08.
Todorache v. 20th Century Fox Film Corp. (S.D.N.Y.)	Duping and exploitation of Romanian villagers.	Plaintiffs dismissed case 4/14/08.

Link: OnPoint News

Road Rage Getting Medieval

While there are far too many road-rage incidents involving firearms, it is heartening to know that in at least some cases, men are still using the more honorable melee weapons with which their forefathers brutalized each other, back when "road rage" involved chariots.

Maybe "heartening" is not the word I'm looking for.

On November 14, a 51-year-old Nebraska man was sentenced to 30 days in jail for throwing an axe at another driver.  According to the Lincoln Journal Star, the incident took place in June after a near miss between a car and a motor home.  After the two drivers "exchanged gestures and profanities," the driver of the car pulled in front of the motor home and forced it to stop.  He thought better of that after the motor home's driver -- named "Tango Crenshaw," according to this report -- emerged from his vehicle with an axe.  Quickly retreating to his car, the other driver unwisely made a U-turn which meant he had to drive back past Crenshaw, who then heaved the axe at him.  Remarkably, the axe sailed through the driver's-side window, presumably open due to all the pre-incident gesturing.  Luckily, it sailed through blunt-end first, because it struck the driver in the ribs.

Police arrived shortly thereafter, by which time Crenshaw, apparently well-supplied with tools to throw, had a shovel out.  Crenshaw claimed the other driver had tried to run him down and that he was only defending himself, but a witness said otherwise.  He was charged with assault and use of a deadly weapon, but ended up pleading guilty to lesser charges including the always-popular "criminal mischief."

Almost as medieval was an incident in Port Orchard, Washington, late last week in which a 32-year-old man was jailed for reckless endangerment after he threw a wrench at another car.  This throw, too, was remarkable; witnesses said the man was passing vehicles at a high rate of speed when, "for no apparent reason," he threw a wrench, which shattered another car's driver's-side window and hit the driver in the left shoulder.  And that does seem like a pretty good toss, since he was passing at high speed in the left lane and so presumably lofted the wrench out of his own driver's-side window and over the car with his left hand.  I wouldn't bet on even Tango Crenshaw to make that shot.

Neither of those stories really compare, though, to the New Zealand case earlier this year in which, during a car chase, a trident was flung from one moving car through the open window of another moving car and lodged in the skull of the driver, and yet the chase continued.  See "Arguments Commence in New Zealand Spear-Assault Trial," Lowering the Bar, April 9, 2008.  That story was enhanced by the victim's claim that he didn't feel the spear ("Justin just said, 'You've got an arrow sticking out of your head, bro,'"), and by the defendant's position that, while he admitted throwing the spear into the other car, he denied doing it with "reckless disregard for the safety of others."

While the use of such weapons is certainly better than using firearms, which pose a greater risk to bystanders, better still would be for drivers to work out their differences hand-to-hand.  Please make a note of it.

Link: Lincoln Journal Star (Nov. 14, 2008)
Link: Lincoln Journal Star (June 15, 2008)
Link: CBS News (the Washington incident)

Court Affirms Verdict Against Lawyer for Affair With Client's Wife

Somewhere in the top half of the long list of Bad Ideas is this one: have an affair with a client.  Much closer to the top of that list is this one: have an affair with a client who is still married to another client, and do that in one of the few states that still let people sue for "alienation of affection."

The Mississippi Supreme Court ruled last week that Ronald Pierce does indeed have to pay the $1.5 million verdict against him in a lawsuit filed by the guy whose affections he alienated.  Pierce had represented the man and his wife in a medical-malpractice case, a representation that ended not very long after the husband (and his private investigator) learned of the affair in October 2000.  The couple had separated the month before, but were still married.

That made Pierce liable for "alienation of affection," a tort that has been abolished in most states but still exists in a few, including North Carolina and (obviously) Mississippi.  According to this description of the tort as interpreted in North Carolina, it is not exactly a cause of action for adultery, but rather for wrongful acts that destroyed (alienated) the affection between parties to a marriage (reportedly, in-laws have also been defendants in such lawsuits, which might be something to keep in mind).  Adultery itself (meaning the physical act) is a different tort, which is referred to in North Carolina, hilariously, as "criminal conversation."  Mississippi may not recognize that tort, since I assume it would have been included otherwise.

In his deposition, Pierce did not quite admit to criminally conversing with the wife -- he took the Fifth -- but since she then admitted it in her deposition, it really didn't matter.  Given the evidence, most of Pierce's arguments were on fairly narrow legal issues.  For example, he argued that the statute of limitations barred the emotional-distress claim, an argument that failed because Pierce had "flaunt[ed] his involvement" in front of the husband, which made this a continuing tort and tolled the statute.  Thus, Pierce's apparent choice to be a jerk about the whole thing meant he lost a shot at knocking out a $1 million portion of the judgment.  Jerks should take note of this ruling.

Equally unsuccessful was Pierce's argument on the breach-of-contract claim.  Unsurprisingly, the husband argued that sleeping with his wife was not what he had hired Pierce to do, and more specifically that doing so was a breach of Pierce's fiduciary duty.  Seems reasonable.  But Pierce argued that this was essentially a claim for legal malpractice, which under state law meant the husband should have offered expert testimony on the standard of care.  Well, sometimes, the court pointed out, it doesn't take an expert:

Clearly, based on the facts of this case, [plaintiff] did not need an expert to testify as to the standard of care owed by an attorney to his client. Ordinary jurors possess the requisite knowledge and lay expertise to determine if an adulterous affair between an attorney and his client’s wife is a breach of a duty owed by an attorney to his client. Expert testimony would not lend guidance under this circumstance.

I guess we'll just have to wonder what kind of expert testimony would have been presented on that issue.

Link: ABA Journal