When folks read about frivolous or silly legal claims, they invariably ask: What did that person sue for this time? They never seem to ask, what kind of idiotic defense was raised?
Because idiotic defenses don’t make the papers. Until they do.
This week the NY Post blared an ugly headline about my hometown high school:
New Rochelle High School blamed girl for her own rape, lawyer says
Blame the victim for her own rape? Is that what the high school did? The high school that my kids just graduated from?
Well, no. That’s what the lawyer did, and the school now pays the price. I know this because I pulled the Answer from the electronic file and saw that there was only a lawyer signature on the verification — no one from the school district.
The Post just pulled this nugget from an affirmative defense raised in that Answer to the suit.
Affirmative defenses, for the non-lawyers who have tuned in, usually are these types in a personal injury case (of which this is one):
Failing to start suit in a timely manner (statute of limitations);
Failing to state a claim (fail to make proper allegations that, even if true, would result in the case being tossed out)
Claiming comparative negligence (the plaintiff was partly at fault and any jury award should be reduced by a proportionate amount — think tripping on a busted sidewalk)
Assumption of risk (like getting hit by a foul ball at a game – this was a sporting event, the event was a foreseeable risk and the plaintiff is 100% barred from suit)
There are obviously many more in a laundry list of defenses that lawyers pick and choose cut and paste from given the particulars of a case.
So what did the lawyers claim as affirmative defenses on behalf of the high school? Just that the victim was at fault:
Now that was just dumb. Someone went through the laundry list of potential claims and said the rape victim was at fault for an assault?
And you know this was a mindless cut and paste because “assumption of risk” was also tossed in. But when New York created a comparative negligence statute (CPLR 1411), it wiped out the concept of assumption of risk as an absolute bar to recovery except for the limited cases of sporting events. (See Trupia v. Lake George Central School District). It wouldn’t apply here in any context.
(The actual facts of the incident are unknown to me beyond the Post story, and not for discussion here.)
Now I know what some folks are thinking – what’s the harm of just tossing crap in “just in case”? And the answer is threefold:
First, there’s no actual benefit because pleadings (such as an answer) can be amended, and such amendments shall be freely given. Even up until the time of trial. Even at trial. One of the stock motions at the close of a trial is that “I move to amend the pleadings to conform with the proof.” Sometimes a judge will ask if there is something in particular you have in mind. Sometimes not.
Second, counsel handed the press a headline to the detriment of the client. One thing that must always go through the mind of a lawyer for any public filing: How can the press take this statement and misconstrue it to embarrass my client? And gratuitously blaming someone that says she was raped sure as hell fits that bill.
Third, and possibly the worst. At trial, a savvy plaintiff’s counsel will read the defense and ask the school’s witnesses why they blamed the victim. There is only one answer that can possibly be given: The lawyer did it.
(I did this once when a patient was burned while undergoing surgery: How, dear doctor, was the patient to blame for being burned while she was under anesthesia?)
And when that happens, everything else that lawyer says is looked at sideways by the jury. If the lawyers will blame the victim, why believe anything they say?
This was like kicking the soccer ball into your own goal.
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.
Ahh, I get to do a post on both running and the law! My sweet spot. Let’s have at it then, with the scandal roiling the running world and see how it fits into a legal framework.
Alberto Salazar was the world’s greatest marathon runner, winning New York three straight times from 1980-1982, and winning Boston in 1982 in an epic Duel in the Sun.
As a bona fide legend, he moved on to coaching, leading up to being the head coach of the vaunted Nike Oregon Project, training some of the best runners in the world.
This was not just any coaching facility, of course. Nike poured money into equipment and studies well beyond the means of any amateur, and most professionals, including the removal of oxygen from a room to simulate high altitude conditions, which can benefit runners. The Wikipedia synopsis:
In addition to the simulated altitude training, special software was used to monitor electrodes attached to the athletes, determining what condition they were in and how far or fast they could train. They used underwater and low-gravity treadmills. They also had a collaboration with Colorado Altitude Training (CAT), a company specializing in hypoxic athletic training, for their training equipment.
Mary Cain was one of his athletes. Born in 1996, well after Salazar had raced to greatness, she was arguably the best high school track star in the country. And a straight-A student.
She signed with Nike in 2013 and went off to Oregon to train with Salazar as a college freshman.
But she didn’t see the scandal coming. Nobody ever does.
In a video op-ed (embedded below) in the New York Times last week (I Was the Fastest Girl in America, Until I Joined Nike) Cain tells a harrowing story of her time spent with Nike and Salazar. She was directed to become thinner and thinner and thinner, and ultimately developed an eating disorder.
Much of her training was, apparently, the same as the boys. And therein lies a problem. Because boys and girls are physiologically different.
When girls get pushed into a boy’s training program they run the risk of their bodies breaking down. Because it has a negative effect on estrogen levels, which has its repercussions in bone density loss, among other problems. Bones become more susceptible to breaking. That is what happened to Cain due to Salazar constantly badgering her and trying to humiliate her into losing weight.
After months of dieting and frustration, Cain found herself choosing between training with the best team in the world, or potentially developing osteoporosis or even infertility. She lost her period for three years and broke five bones. She went from being a once-in-a-generation Olympic hopeful to having suicidal thoughts.
Nike and Salazar held themselves out as experts and specialists. Yet what they were doing was injuring the young women who had placed their trust in them. And not just Cain.
Kara Goucher, an Olympic distance runner who trained with the same program under Salazar until 2011, said she experienced a similar environment, with teammates weighed in front of one another.
Goucher went on to explain that, “When you’re training in a program like this, you’re constantly reminded how lucky you are to be there, how anyone would want to be there, and it’s this weird feeling of, ‘Well, then, I can’t leave it. Who am I without it?’ When someone proposes something you don’t want to do, whether it’s weight loss or drugs, you wonder, ‘Is this what it takes? Maybe it is, and I don’t want to have regrets.’ Your careers are so short. You are desperate. You want to capitalize on your career, but you’re not sure at what cost.”
How may others will come forward in this athletic version of #MeToo remains to be seen.
Cain’s seven-minute video op-ed describes the abusive system she was under. At 16 she got the call from Salazar and in college went off to train with him, in order “to become the best female athlete ever.” Instead, she says, she was physically and emotionally abused in a system endorsed by Nike.
The top running program in the country had no female coaches, no sports psychologists, no nutritionists. He wanted to give her birth control pills and diuretics to lose weight (the latter of which is not allowed in track and field).
With the eating disorder and injuries she became suicidal, starting cutting herself. She told Salazar. Who told her to go to bed.
Cain is now advocating for women coaches who appreciate the physiological differences between men and women and know they have to be trained differently. People who know how to build strong women’s bodies not just to race tomorrow, but for the long haul.
So. What would a lawsuit look like if Cain sued Nike for negligence?
The Legal Framework
I probably wouldn’t have done the analysis below if I hadn’t read a post from my buddy Scott Greenfield, wherein he was dismissive of Cain’s complaint. He wrote that athletes like Cain make their own decisions to try to be the fastest and to win, and that comes with the trade-offs of loss and injury. They need, therefore, to take personal responsibility for their choices and the risks they undertook to push themselves to get there. Who would deny them the agency to make their own choices? (See: Run for your Life)
You don’t have to suffer this abuse, but then, when you’re a world-class athlete and the tiniest edge distinguishes the podium from the pack, you want to do whatever it takes to win. You’ve learned to lose, and it sucked.
In one of the comments about whether the coach should know better, he writes that:
this is about world-class athletes who push themselves to be the best ever. Complaining about the trade-off afterward is facile. And much as parents and athletes trust their coach, it’s not to “know better,” but to win. If their paramount concern was their well-being, they would have stayed home.
This rang a bell in my head and lead me to think of the “What if” potential for a Cain suit. Greenfield doesn’t use the words “assumption of risk” (as he isn’t using the post to undertake a legal analysis) but that is nevertheless a theme: You made a decision to compete in x, and x has its risks, and you got hurt. Don’t blame others.
Assumption of risk is an old concept here in New York (and elsewhere). It applies to the bike racer who hits a pothole in the street, the ice skater who falls and breaks a wrist, and the fan in the stands injured by a foul ball.
Fundamentally, primary assumption of risk will supersede an act of negligence by the creator or supervisor of an athletic event. So even if there’s negligence, the suit will get tossed if the participant assumes the foreseeable risks.
It was best summarized by Justice Benjamin Cardozo in Murphy v. Steeplechase Amusement in 1929 when someone flopped off a moving belt ride that stops and starts, known as The Flopper. Cardoza wrote:
A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid….
…One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball
(And a little side note as Justice Cardozo continues on — I wish judges still wrote like this)
The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
That last phrase at the end, “The timorous may stay at home,” has been oft-quoted. Indeed, I use it myself in a Disclaimer for the trail race that I put on each year, trying to use wording that evokes the spirit (if not the exquisite style) of Cardozo’s assumption of risk summary.
But is that what’s going on here with Cain and Salazar? Was she hurt in competition, or even during training? She wasn’t injured, for example, by falling when she crashed into another runner fiercely powering through a turn. Most every case I’ve ever read on the primary assumption of risk doctrine deals with a specific incident, and whether the thing that caused the injury was an anticipated or appreciated risk.
Mary Cain doesn’t deal with a particular incident or an appreciated risk. She went for expert advice, as many might do for a doctor, lawyer or car mechanic. We seek out people with specialized skills and talents because we don’t have them ourselves. If they sound like they know what they’re doing, or have been highly recommended by others, we hire them.
Nike and Salazar were supposed to be the best. Top of the heap. Cain reasonably hired them and followed their advice. Salazar, after all, had been at this for decades.
But their advice was not just bad, it was apparently dangerous, and dangerous in unanticipated ways. Cain faced medical issues that would not have been apparent to her. And Salazar and Nike provided no help when faced with them.
I would not discuss this in the language of assumption of risk, but rather, of coaching malpractice. It’s negligence, or even recklessness.
Would such a case survive a motion to dismiss?
The legal analysis, if it were ever to come to that, would pit these two essential concepts against each other: Was she a negligence victim, with Coach Salazar directing her to perilous conduct (unknown to her) that no reasonable coach would direct? And even if she was, would assumption of risk apply, with Cain accepting known dangers inherent in athletic competition, resulting in such a suit being tossed?
To me that answer is clear: Creating an eating disorder that would have long-term harmful effects on the athlete was not part of any known training program. It was not an anticipated hazard she could evaluate and appreciate before signing on with Nike. And any reasonable coach would have, had the issue arisen, immediately brought in psychologists, physicians or nutritionists as needed if one of their charges was having that problem.
Salazar, ultimately was suspended for four years for drug doping. The Nike program has been disbanded (for now). Nike’s CEO stepped down. And Cain went public with the abuse she underwent.
Some may believe that the doping and the starving are two different things. But I’m not so sure, as both entail athletes who have placed their faith in the expert, and been told by them to eat (or not eat) certain things without knowing, understanding, or appreciating that it was dangerous conduct as the risks were not explained.
It’s simplistic, I believe, to think that a teenage athlete would have more knowledge than a legendary runner and coach with decades of experience. He was hired, and trusted, due to those decades of experience, his advice and skillset. And he betrayed the trust.
I’ve got this thing about sports, injuries and lawsuits. And that’s because of two things that seem to be in conflict: First, I bring lawsuits regarding injuries for a living. But second, I am also the race director for a 13-mile trail race.
And you know what? Folks get injured while trying to run fast over rocks, roots and other hazards that include other runners. The risk of wiping out comes with the territory.
With that intro now over, we turn to lacrosse and a decision from last week.
The lacrosse drill at Syracuse University was conceptually simple for the women’s varsity team: Athletes ran down the sidelines while a line of coaches roll balls to them from about 20-25 feet away. The athletes scoop them up and toss them back to the coaches. Then repeat with the next coach.
According to the suit that was ultimately filed, the ground ball part of the drill had never been performed any other way. Except that one coach decided on this one day in the middle of the rolling drill to wing the ball overhand to Addy Tauro as if it were a pass.
Now if Tauro survived said winging of said lacrosse ball without injury, would I be writing about this today?
When one of the coaches whipped it at her head, it was wholly unexpected and she “never even saw it coming,” as she stated in her affidavit.
She suffered a concussion.
She claimed in her suit that throwing a hard rubber lacrosse ball at someone’s head, when she’s not expecting it, is grossly negligent and reckless.
So. Does this case get dismissed under New York’s assumption of risk doctrine because, when engaging in recreational activities, she consented to the commonly appreciated risks of the sport that flow from such participation?
I’ll wait while you ponder. Time’s up.
Rather than answer the lawsuit and go through discovery, Syracuse moved immediately for summary judgment based on the assumption of risk doctrine, and also based on a written waiver that Tauro had signed. They countered her version of events.
And the answer is: Summary judgment for Syracuse was denied on both counts and the case goes forward.
The Appellate Division (Fourth Department) first dispensed with the waiver issue, since such waivers are against public policy for people who act with gross negligence or recklessness. (see Gross v. Sweet and GOL 5-326)
And on the assumption of risk doctrine, the court stated that if the claims by the plaintiff were true (and at this early stage a court must make that assumption) that she did not assume these kinds of risks. This risk was not part of the game, as this was a practice. Nor was it an anticipated risk of a pick-up drill that a ball would be thrown at her head.
The court held that a player will not assume the risks of reckless or intentional conduct, or dangerous conditions that the coach created over and above the usual dangers that are inherent in the activity.
Assumption of risk goes to the anticipated and appreciated risks. Which is why, if one is writing a waiver, it might be wise to educate the participant as to all of the anticipated risks. Thus, while a waiver might not excuse negligence based on public policy grounds, it might be quite useful for assumption of risk grounds. “Look!,” a defendant could now safely claim, “she knew about this risk!”
You know those sports waivers written in ALL CAPS that appear designed to dissuade the participant from actually reading them? They are for shit, in my opinion, and really don’t serve the purpose of educating to real risks. Because they are not being read. Nobody reads them except for the lawyers that wrote them. And then they hope that the legal mumbo jumbo somehow imparts knowledge of the risks?
The one I wrote for my trail race gets read. And I know that because people will routinely come up to me and tell me so. It was crowd-sourced years ago, with the idea of doing everything possible to make it readable, and therefore useful for actually educating people on the risks of participating. If anyone decides to create a Waiver Hall of Fame, I’m going to submit it.
a voluntary participant in a sporting or recreational activity 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…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
So wouldn’t that apply to a skier that clobbered another? The defendant in Horowitz v. Chen moved for summary judgment on that basis.
Not so fast, said the appellate court. The defendant, it seems, was moving at 20 to 30 kilometers per hour (yes, that is the way it is written), and the plaintiff was standing in a crowd at the bottom of the beginners’ slope.
While participants in sporting activities may consent to the commonly appreciated risks inherent in a sport, the court said that doesn’t mean that they consent to “conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.”
The court noted that this occurred in or near a marked safety zone, and that the defendant skier was zipping along in this area despite “his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.”
The court also noted the extent of the injuries (not described in the opinion), writing that “in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.”
Now the important part, for New York practitioners. This case came out of New York’s First Department. (NY has four, for you out-of-towners, the First covers Manhattan and the Bronx.) In rendering its decision, the court cited to two other cases, one in the Third and one in the Fourth.
So this represents a little new ground on the subject area of assumption of risk. If conduct is “so negligent as to create an unreasonably increased risk” then the assumption of risk doctrine can be overcome, at least for the purposes of surviving summary judgment.
And last, just because I feel like it, the legendary 1976 Olympic downhill run of Franz Klammer: