NEW JERSEY TWIST IN SPORTS LITIGATION

Juat saw a brief article in ITLA's November newsletter about a recent ruling in New Jersey regarding injuries at ballparks. The New Jersey State Supreme Court recently ruled that a ballpark patron hit by a foul ball while buying a beer can sue the park owner for negligence. As the article explained, the decision altered the long-standing "baseball rule" that essentially decreed that fans assume certain risks when they enter the old ballpark - risks like being clocked by a foul ball or thrown bat. The ruling affects eight minor league baseball stadiums that have opened in New Jersey in the last several years. The article went on to note that some of the owners were likely to erect nettings, screens and other protective barriers. I haven't seen the actual opinion, but I would be shocked if stadium owners in New Jersy have, until now, been allowed to skirt liability by claiming that that some 6 year old going to his first baseball game assumed the risk of being hit by a baseball bat(?). MLB has required netting behind the plate[where most foul balls go]for years in order to protect fans. Shameful to think New Jersey stadium owners were allowed to forego an easy and relatively inexpensive safety precaution this long.

FORD FUEL TANK ISSUES

According to a recent ATLA Law News Digest Article, Ford Motor has acknowledged that fuel tanks in some of its larger sedans pose an increased risk of explosion in rear end collisions. Ford recently offered to provide protective fire shields to owners of the Lincoln Town Car stretch limos but will not offer the fire shields to millions of other drivers who own cars with the same fuel system. Ford has taken the position that the risk of explosion is specific only to the limos. Safety advocates however, have called upon Ford to recall millions of other models that recently had the same fuel styem built in, including the Crown Victoria and Mercury Grand Marquis. Interestingly, Ford has begun to notify owners of the stretch limos that they will provide the protection kits free of charge, but will not pay for installation.

LATE REQUEST TO ADMIT

Saw an recent opinion out of the Second Appellate District the other day regarding the late filing of a response to a Request to Admit. In Robbins v. Allstate the plaintiff sued Allstate for failing to pay for fire damages to his home. Allstate defended the case, saying that the plaintiff had torched the place. Defendant had issued a Request to Admit to the plaintiff two months after his lawyer had withdrawn from the case - the plaintiff was acting as his own attorney. The requests were all directed the to the plaintiff being directly involved in the fire. Plaintiff actually answered the requests within 28 days, but the responses were contradictory. And, he didn't swear to them, as required by Rule 216. The defense moved for summary judgement, arguing that the responses were not proper, and as a result, the Requests were all admitted. On appeal, the plaintiff appealed to the discretion afforded the trial court to deviate from the 28 day response timeframe. The Appellate Court ruled however, that in order for the trial court to exercise its discretion, the plaintiff must show good cause. And the Appellate Court decided that the plaintiff had failed to show good cause for an extension of the deadline. The Court further noted that "...while we sympathize withe the plaintiff's position, the fact that he was acting pro se at the time provided no basis for the trial court to exercise its discretion...". Tough result. Bottom line - answer those Rule 216 Requests to Admit and have them sworn within 28 days.

SHAMEFUL NUMBERS FROM THE CATHOLIC CHURCH

Saw a blurb in the November 14,2005 US News & World Report detailing some of the settlements amounts arising from the abuse of children by pedophile priests. The Archdioces of Hartford, Connecticut recently agreed to a $22 million dollar settlement with 43 people claiming to have been abused. The Boston Archdiocese paid $85 million to 500 claimants in 2003. In January of 2004, the Orange County, California Archdiocese agreed to a $100 million dollar settlement. And this past June, the Covington Archdiocese in Kentucky created a $120 million dollar fund for possible settlements. Small wonder why church attendance is decreasing.

CONTACT SPORTS DOCTRINE

This was a new one for me. I represent a young guy who was badly injured while performing trainer duties for a local minor league hockey club[he didn't work for the club - he worked for the rink where they practiced]. He was in the weight room when he was told to bring some water bottles out to the bench area. He got the bottles and walked directly from the weight room to the bench. What he didn't realize was that some of the hockdey players had set up bottles on the bench and were taking shots at them - sort of like target practice. Just as he entered the bench area, an errant shot hit him in the eye, causing serious harm. I filed suit on his behalf against the player and the team. The team brings a motion to dismiss, arguing that under the "contact sports doctrine" a participant injured in a team sport can only recover against another player for wilful and wanton behavior, not mere negligence. The doctrine is set forth in Osbourne v. Sprowls (Ill. 1981), 84 Ill.2d 390 and Pfister v. Shusta (Ill.1995), 167 Ill.2d 417. I didn't want to be forced to allege wilful and wanton, because I was worried about non-coverage for wilful and/or wanton allegations. Using some of the language from the Pfista case, I argued that the purpose of the doctrine was to protect players aggressively, but fairly participating in a contact sport. The act of shooting a puck at targets on a bench had nothing to do with playing hockey. The judge, after some back and forth, agreed with me and denied their motion, without prejudice to bring it again. I also argued that a trainer is really not a "participant" in a contact sport, but there was no caselaw in Illinois to support that assertion.

NICE TO SEE THE SYSTEM WORK

I was in Probate Court the other day in order to get the Court's approval of a minor's settlement. Illinois law provides that when a minor has a cause of action, and it is settled over a certain amount, an estate has to be opened for the minor and supervised by the Circuit Court until the funds are safely deposited in the bank. In any event, I sat there as the judge looked over a proposed settlement for another child. The child was a cute young girl who had suffered a burn injury to the right eye area in a popular Chicagoland area bedding store. The judge was taken aback by the pictures of the injury[which had healed] and also noticed the small scar near the child's eye. Mom and Dad were in court as was the lawyer for the insurance company - the parents apparently never hired a lawyer. The lawyer for the insurance company was trying to convince the judge that the meager little amount they were tendering to the child was sufficient for her injury. And the judge, bless her heart, was having none of it. She told the lawyer for the insurance company that the amount of money they were offering simply wasn't sufficient in light of the injuries and she refused to approve the settlement. She further told mom and dad that although the insurance company lawyer was honest and ethical, the insurance company, when the smoke clears, didn't have the best interests of their child at heart. In fact, the judge suggested, the only real interest the insurance company had was in paying as little money as possible to resolve the claim. The judge went on to tell the parents they should hire a lawyer to represent the interests of their daughter. If I was that insurance lawyer, I would have been embarrassed to be up there saying the settlement was fair. But the insurance lawyer didn't seem embarassed. Instead she seemed annoyed that she had gotten caught.

THE CASE NOT TAKEN

Met a woman on Friday who it appears, was clearly the victim of medical malpractice. She had some stomach discomfort, and went to the ER. Tests and scan revealed a suspicious mass in her bowel. The accompanying report indicated the mass should be investigated through upper and lower GI testing. The report was sent to her doctor, and he received it. But he never ordered the tests. Some 15 months go by and finally, another doctor orders them. Woman has a cancerous tumor in her bowel, necessitating surgery. Loses significant part of her bowel, and is currently getting chemo. Sounds pretty good right?

I thought so too - until I met her. My guess is she probably had some mental health issues. She couldn't stay focused and kept jumping around to other medical issues. It took a long, long, long time to get her story. It was my opinion I would never be able to successfully control this woman on the stand, and she would be an absolute nightmare on cross. So regrettably, I rejected the case.

Ten years ago I might have taken that case. But not now. And frankly, I think it is unlikely she'll find someone to file for her. So a clearly negligent doctor, who might have considerably shortened a life, gets to skate. Primarily because the potential client isn't from central casting. Some days this business can be depressing.

BACK FROM TRIAL PURGATORY

I've spent the last 6 weeks or so preparing for and ultimately losing a premises liability case. Getting a not guilty on the case was the bad news. The good news? First time in 7 years plus that I really got behind a case and came up empty. So I guess if I have to take it on the chin every seven years or so, I can live with it.

Premises cases are never easy. The current Illinois Instruction is not particularly plaintiff-friendly. Comparative negligence is always an issue and, I've concluded that juries simply don't like "slip and fall" cases very much. But I did learn some things at trial which I will share with the class.

First, if a juror says that her husband was seriously hurt a couple of years ago in an accident, sued, and didn't do well, bounce her. That juror is not your friend. No matter what, her husband was hurt far more seriously - your case pales by comparison.

Second - explain to your client how cross examination works repeatedly. I thought I had explained how the process worked pretty well, but apparently not. My client, a lovely woman, kept looking at me during cross. After a while, the jury was probably wondering if I was sending some sort of secret messages. My client explained later that she thought I could get up DURING defense counsel's, interrupt, and ask rehabilitating questions.

Next, go over every single line in your client's depo and pick at it for inconsistencies. That is precisely what defense counsel did during cross. He simply stood there and poked and prodded over and over. How often had she been there? Where was she looking? What did she see? What did she feel when she touched the step? On and on it went. Much of it was inconsequential, but he did bumble into some testimony that yielded damaging admissions. And in a premises case, you don't have much room for error.

Well, that's enough for now. Reliving an NG just isn't much fun.