August 19th, 2020

An Ultrarunner, An Amputated Leg, and Liability

Heart of the South Road Race

The footrace race ranged 340 miles across the South. Kim McCoy, a 37-year-old nurse in NYC, had already finished 270 miles of it. Then the SUV hit her at an uncontrolled intersection and she lost her leg. Apparently, she’s lucky she didn’t lose more.

This post hits three different spots for me: As distance runner (but not ultra marathons), as a race director who deals with runner safety, and as a personal injury lawyer that needs, when the times comes, to weigh the issue of liability for an event that may have substantial risks.

While that’s a lot to unpack, the gripping story by Matthew Futterman at the New York Times isn’t complex: This is not your local 5K or even your local marathon. The race might take you a week to finish, and that assumes you are in top notch shape. You bring little with you in a small backpack and buy food and water as you travel. You sleep wherever. And you don’t get to see a course map until a few hours before the race starts.

The event is the brainchild of legendary race director Gary (“Lazarus Lake” Cantrell who created the Barkleys Marathons which is so (in)famous among runners there’s even a “delightful documentary” on it, subtitled “the race that eats its young” because so few ever finish the 100+-mile grueling event through unmarked woods. Mostly off-trail. Many years there have been no finishers at all. These were the same woods that Martin Luther King’s killer, James Earl Ray, escaped from to prison to, and he got only 8 miles in 55 hours. The race is designed for failure.

So races that seem impossible, that stretch the bounds of what humans were once thought capable of doing, are his sweet spot.

Thus came the 340-mile race — West Memphis, Ark., to Castle Rock, Ga. — where Kim McCoy was run down by an SUV at that uncontrolled intersection. This isn’t a race with closed roads, or fancy directional markings, or even permits. Here’s the map. Go run. Good luck. See ‘ya.

But when you try to stretch the bounds of human capacity you also run headlong into injury, danger and potential death. Exhaustion makes everything more difficult and dangerous. It’s easy to miss a simple rock or root on a trail, or a car on a road, when bleary-eyed, dazed and discombobulated.

This problem came into full appreciation when McCoy tried with another runner to cross Highway 72 near Huntsville, because that is the way the route went.

They made it to the median, then thought they saw an opening. Halfway across, Grinovich saw a flash of light and pulled back. McCoy kept going. He heard a crack and was sure she was dead. Then he ran to her and heard a moan. Somehow, after being sent airborne down the highway, she had hit feet first and rolled, rather than crashing on her head. As she tumbled, her backpack had cushioned the impact.

Tucked into that NYT story of McCoy’s race across the South comes this speculation about liability for injury — after all, race director’s know that the participants may not be thinking straight and more in danger:

Who bears responsibility for McCoy’s accident is a question lawyers and insurance companies may have to decide.

She has not filed a lawsuit, but has retained a lawyer, even though she signed a waiver releasing Cantrell from liability before the race. Waivers don’t allow race organizers to act with negligence, the definition of which can be subjective.

Now I’m not going to opine on Alabama law — or even which state’s law applies since McCoy and Cantrell live in different states and the incident happened in a third. Or did it? The drawing of the map, after all, may well be the “incident” itself.

I’m sticking here with general principles (as they would apply in New York). Your mileage, as the old saying goes, may vary.

The doctrine of assumption of risk, which I have written about often, generally precludes suit against an event organizer when the risks are known and appreciated. Sometimes referred to as the “baseball rule” for spectators that are injured by foul balls or flying pieces of broken bat, it holds that you have assumed the risks inherent in the activity.

Perhaps, if the race demanded that participants do something illegal — like demanding that runners cross an interstate highway, one might be able to raise the argument that assumption of risk doesn’t apply. Race participants don’t, after all, get a map well in advance of the race and have an ability to check out the details. And even in this kind of race, a reasonable participant wouldn’t expect something illegal.

But that isn’t likely given the photo of the crossing in the Times and the comment by Cantrell that pedestrians were permitted. If pedestrians were legal here, it would be unlikely to to be a successful suit.

The key for any sporting event director is to actually show, as best you can, what the anticipated risks are so that they are appreciated. This not only helps to immunize from suit, but more importantly, actually informs people of the types of dangers they might expect so that rookies don’t errantly step into an event they are unprepared for.

I do this with the disclaimer for my own race. (I never understood those disclaimers that use unreadable ALL CAPS legal gibberish to help a participant appreciate risks.)

The story of McCoy’s incident and the loss of her leg is awful. But it isn’t likely that a lawsuit would be successful against the organizer of the race.


August 10th, 2020

No, Flying is Not Safe Yet (Seriously Delta? Seriously?)

I figured, after five months of pandemic, that the airlines would have their acts together. Delta, after all said they would keep the middle seats open.

So we picked Delta to fly our kid down to south Florida for his first year of college. Because we valued safety and security, and apparently Delta understood that.

Boy, were we wrong.

Leaving out of LaGuardia? No problem. Checking kid in to school? No problem.

At the school: Masks signs and social distancing signs everywhere? Yes. Masks required everywhere on campus, even outside? Very heavy-handed for outdoors, for sure, but some people are incapable of understanding nuance. So a one-size-fits-all solution.

At the local Bed, Bath & Beyond? Everyone masked. Target? Everyone masked.

Not bad for Florida, eh? So far so good!

But we had to come home. And fly through Miami International Airport.

Now there are only a couple real choke points at an airport: TSA and the actual plane.

As we approached the security checkpoint I saw a couple people with chin masks — the same types of people who believe that a condom on the balls is effective.

Well, I was sure TSA would take care of that, right? Let’s face it, the chance of dying from COVID significantly exceeds the chance of my plane being blown up.

And then I saw a TSA agent with the nose poking out. And remember, this agent is working with others who had the ability to correct the situation, or have supervisors correct the situation. But there was the schnozz.

And worse yet, there was no crowd control and people lined up tightly to put their stuff on the belt to be x-rayed and walk through the full-body scanners (hold your breath!).

Five months into a pandemic and TSA doesn’t get it.

On to Delta in the vast and mostly empty Miami terminal.

They controlled boarding very well. No clogging of the jetways. Well done by desk agents.

But on the plane? Fuhgetaboutit. Now sitting in the most perilous part of the trip — trapped inside a tin can for hours with people immediately in front and behind you and breathing the same air. Now was the time that masks came down below the nose, or off altogether. Now?!

Delta made announcements. And claimed they would enforce the mask rule. But they didn’t. So the maskless stayed maskless.

One might think I should complain to one of the flight attendants, but they knew. They were going up and down the aisles making sure seat backs were up and trays stowed away. They looked. At everyone. They saw. They elected to do nothing.

Now remember that the primary objective of flight attendants is not serving you a beer. It’s safety. Like helping to evacuate a plane in an emergency. Everything after safety is a bonus.

Delta: If your flight attendants are antsy about confronting mask-holes, why not hire some out-of-work bar bouncers or event security personnel? They are not afraid of confrontation. Many of them have long experience dealing with belligerent drunks and other, assorted malcontents and troublemakers.

And then throw a bunch of people off the planes. And publicize it. Brag about it: “Our airline is the safest because we will throw the mask-holes off the plane! And then ban them for a couple years!” Now that’s the airline I would feel comfortable flying. And, I think, so would most others.

And, as good as Delta was with boarding it was awful with leaving. People racing forward to jam the aisle as if this was the old days when being rude was just being rude and not an actual danger due to proximity inside that long can.

So. A word to those considering travel. Based on exactly one round-trip flight on Delta to Florida. No matter what the airline says, assume they don’t have the stones to enforce their own security rules.

Will taking care of actual enforcement cost airlines money while they are losing buckets of it due to the pandemic? Yup.

But you know what else? The longer this pandemic goes on the more money they will lose. Some will go the way of Pan Am, TWA and Eastern. They have a self-interest in slamming the pandemic down hard, no matter how craven and stupid some public officials are.

And certainly don’t trust TSA to take care of <checks notes> security.


August 4th, 2020

Cuomo Signs Bill Limiting Medical Immunity

You know what this is.

Back in April, the New York legislature passed a budget that included widespread immunity for medical practitioners dealing with the COVID-19 pandemic. But in addition to granting immunity for negligence for COVID patients, it also granted immunity as to other patients in the hospital or nursing home.

That immunity has now been abolished for all patients other than the COVID ones. Cuomo signed the update yesterday.

The original immunity, forged amid a frantic medical crises, assumed that the all-hands-on-deck position of many medical and nursing institutions would result in mistakes elsewhere. So if, for example, a patient non-COVID stroke patient inadvertently didn’t get her medication because the hospital were shorthanded due to overwhelming COVID cases, the Legislature decided to grant immunity.

Public Health Law 3081(1)(5), where that immunity sat, has now been modified to remove that immunity for the non-COVID patients.

The modifications are seen here with showing additions in caps and strikethroughs for the deletions. All of subsection c is now gone as part of the definition of health care services for the purpose of the immunity bill:

That immunity existed — as per the following section 2(1)(b) — if the healthcare practitioner was “impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.”

(The immunity for COVID patients remains intact.)

Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.

It’s worth noting, because this will also be litigated, that the original immunity did not extend to gross negligence and certainly not to an intentional tort. So when suits are started now that allege malpractice during the immunity period, you can rest assured that gross negligence will be argued, in addition to claims that the medical care was not impacted by the COVID outbreak.

The changes are effective immediately.

The text of the bill is here:


August 3rd, 2020

New York Legislature Finally Passes Anti-SLAPP Legislation

It was five years ago that I wrote an op-ed for the New York Law Journal, begging the Legislature to pass anti-SLAPP legislation. And now, both the New York Assembly and Senate did just that.

To quickly review what a SLAPP suit (strategic lawsuit against public participation) is, it’s a meritless lawsuit designed to shut someone up by foisting litigation upon them. This is generally done with frivolous defamation claims.

When such suits are newsworthy, it’s usually because someone high profile like Donald Trump is involved, even when he doesn’t have a leg to stand on. One example (and there are many) is the $500M suit he brought against Univision’s President for comparing him to homicidal racist Dylan Roof, which had been presented as a clear opinion.

Or losing a suit he brought against Tim O’Brien for questioning his wealth and calling him a mere millionaire. After losing, Trump actually confessed that it was frivolous, saying in an interview:

“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

But that’s the high-profile stuff. Most you won’t hear about, either because the people are not Page Sixers or because the threat was successful. You don’t really read about the butcher, baker or candlestick maker being threatened for bad Yelp or Trip Advisor reviews. But it happens.

I’ve been down that road twice with this blog, once being sued by Joseph Rakofsky when he sued the internet. And a second time by orthopedist Michael Katz after I reported that a judge repeatedly calling him a liar from the bench when he appeared as an expert.

Both times the suits were shot down by judges in the pleadings stages, but New York’s lower courts seem to have a great reluctance to sanction such stupidity, which would have gone a long way toward helping cut down these kinds of actions.

With that history out of the way…

Now the Legislature has, at long last, acted. Previously it was only the Democratically controlled Assembly passing bills, with the Senate (in Republican hands or very closely divided for many years) failing to follow. I never figured out why that reluctance was there since free speech is a bipartisan issue.

With the leadership now of Senate Majority Leader Andrea Stewart-Cousins and Assembly Leader Carl Heastie a bill has been passed. This came with the efforts of Assembly sponsor Helene Weinstein and Senate sponsor Brad Hoylman.

So what does it do?

First, it requires legal fees to be paid if the suit is frivolous. And frivolous is defined the same way it is in New York’s court rules, except now it will be statutory: It will be deemed frivolous if “the action involving public petition and participation was commenced or continued without substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.”

What is public petition and participation? The definition is quite broad. It fills that requirement if it’s regarding “(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of  the  exercise of the constitutional right  of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”

This should cover not only the high-profile crap from celebrities threatening to rain a shitstorm of lawyers down on your head if you don’t take down that post calling them weenies, but also the humble restaurant review that was less than generous.

What is a claim? Not a threat, apparently, but it “includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.”

And what is “public interest? Glad you asked: “Public interest shall be construed broadly, and shall mean any subject other than a purely private matter,” by showing that “the cause of action has a substantial basis in law or is  supported by  a substantial argument for an extension, modification or reversal of existing law.”

And it gets heard quickly (by New York standards), as, “The court shall grant preference in the  hearing of such motion.”

Finally on the bill, the matter is stayed pending the resolution of the motion. The court can, if it so chooses, order “specified” and “limited” discovery if the plaintiff asserts certain specific discovery is needed to show the motion isn’t frivolous.

Governor Cuomo should sign this bill. There is no colorable reason to protect frivolous suits that are designed to quash the First Amendment rights of the citizenry.

Is there a bug lurking somewhere that might throw a wrench into all this? Yeah.

There’s an open question as to whether federal courts will apply state anti-SLAPP laws. Many other states already have them.

The federal Courts of Appeals are split on this issue and one day it may come before the Supremes. Just recently, in a matter involving television personality Joy Reid, the Second Circuit said state laws did not apply. But the Ninth Circuit says they do.

Congress, of course, can resolve this problem with a federal anti-SLAPP statute. The only ones who would oppose it would be vexatious litigants.

In the meantime, you should expect New York litigants stretching for any kind of federal angle to get into federal court and avoid New York’s new anti-SLAPP legislation. Assuming, of course, that Gov. Cuomo signs it.



July 2nd, 2020

July 2nd: A Day to Celebrate Independence

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write  posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.