December 11th, 2018

Defending Al Sharpton’s Daughter

On the one hand, I hate to refer to Al Sharpton’s daughter, Dominique Sharpton, as “Sharpton’s Daughter” as she has an identity all her own. We all do.

On the other hand, nobody would be writing about her $95K settlement for her trip and fall case if her name was Jane Jones. The headlines below occurred because she is not only the daughter of someone famous, but a famous person many love to pillory. You’ll notice that it is Papa Sharpton whose name appears in the headlines.

This trip and fall occurred on New York City streets, and it was the City that was the defendant.

I saw the headline in the Post first, then looked around to see what others were writing. Here are a few:

Al Sharpton’s daughter gets $95K settlement for sprained ankle (NY Post)

Al Sharpton’s Daughter Bags $95,000 Settlement for Sprained Ankle (Breitbart)

Al Sharpton’s Daughter Sprains Ankle ‘Real Bad’ On NYC Street, Scores $95,000 In Settlement (Sarah Palin)

Then a few tweets about that sprained ankle. You can find plenty, but this is a sample from “Sheriff” David Clarke:

Now I smelled something about the headlines. And that’s because I’ve litigated plenty against the City of New York and know that it doesn’t give up the taxpayer coin easily. And if the City could make a point by knocking down a high-ish profile case, it would.

So I logged into the court system and pulled up a document to see about that “sprained ankle.” It took all of two minutes to find what I needed. Here’s a bill of particulars that outlines the injuries.

DominiqueSharpton-Bill of Particulars Download

It turns out that the “sprained ankle” was actually ankle surgery (along with a number of torn tendons and ligaments). Now I know that confusing a sprain with surgery isn’t the kind of mistake that I would make, or any of my readers would make, or any family, friend, or random stranger would make.

To make that “mistake” one needs an agenda to distort the news. The Post story had a single line about the surgery buried in the story, but oddly omitted that from the headline.

Neither Breitbart nor Palin — who picked up the story from the local source that being the NY Post — could be bothered with mentioning the surgery. A 95K settlement over a sprained ankle is far more likely to generate outrage and clicks than a story where ankle surgery was needed. Surgery, you might rightly guess, didn’t fit their agenda.

This was not a one-off error for the NY Post, by the way. I covered this case back in 2015 when the Post ran a headline about Kid Sharpton missing a court conference for this matter — a conference that no client ever, ever goes to. It’s a scheduling conference that the lawyers handle. Yet there was the yellow journalism headline, trying to make something out of, quite literally, nothing.

And both stories were written by their regular courthouse reporter Julia Marsh, who certainly knows better after handling the beat for so many years. It’s not like she doesn’t know how to pull documents off the easy-to-use New York State electronic filing system.

This was, near as I can tell, a run-of-the-mill case of the City of New York neglecting its streets and someone inevitably getting hurt while crossing one. When you’re looking out for cars, pedestrians, dogs, bikes, scooters and other distractions, both dynamic and static, it’s easy to miss a pothole. The nature of the distractions may well affect the way a jury apportions liability between plaintiff and defendant.

This 90-second video, for instance, helps to show how a very small, but unexpected, defect will cause huge numbers of people to trip.

To settle this case, as with any other, the City would have done a simple analysis trying to figure out the “value” of the injuries, factored in the extent of their defect and adjusted downward for the plaintiff sharing part of the blame. They would also factor in how a plaintiff appeared — was she a nun or a convicted criminal? And they might, as they no doubt did here, adjust further downward if the plaintiff said dumb things on social media.

The only thing noteworthy to the suit was that some tabloids could figure out a way to create outrage by distorting what happened.

December 4th, 2015

Al Sharpton, the NY Post and Yellow Journalism

Julia Marsh’s Twitter biography photo

There are only two possibilities in this story regarding Al Sharpton’s daughter’s slip and fall lawsuit, for which the New York Post used this headline:

Sharpton’s daughter skips first court date in $5M sprained ankle case

First, that the NY Post is simply bashing Al Sharpton, via attacking his daughter Dominique Sharpton, for no reason whatsoever; or

Second, that NY Post writer Julia Marsh is utterly and contemptibly clueless about litigation.

Apparently, she has a trip and fall case against the City that resulted in an ankle injury. I care not one whit about the actual details, since that isn’t the point of this post. Nor is this about Sharpton, his past, or his politics.

The point is that Dominique’s case has a compliance conference yesterday. Curious as to what kind of conference a client could possibly have missed, I looked it up. It turns out that this was a routine conference where the lawyers head to the courthouse to work on discovery issues that may still need to be completed.

Let me be clear about this: Clients never, ever, ever, go to these things. It’s the lawyers working on scheduling. These things are sometimes so routine that there is a cottage industry of per diem lawyers that will handle them for $100 a pop.

Even when they are not routine, and there are actual legal issues to be discussed, the clients still never go. In fact, in NYC, the clients rarely ever even go to jury selection in a civil case. While it might happen some places, I’ve never seen it here.

Yet there was Julia Marsh writing her idiotic lede:

The Rev. Al Sharpton’s daughter was a no-show Wednesday for the first court date in her $5 million sprained ankle case against the city, letting her lawyer stand in for her — but the night before she was putting that ankle to go use, marching in a raucous anti-gun demonstration in Times Square.

Is it possible that Marsh simply didn’t know better? Doubtful, since Marsh covers the courts. I know this firsthand because she contacted me right after Dr. Katz filed his now-dismissed defamation suit against me. Also, her Twitter profile concedes it:

A New York Post reporter covering Manhattan Supreme Court. Send news tips to [email protected]

I don’t think this is what she was taught in journalism school.

There’s a reason I am deeply cynical about what I read both online and in the papers. I covered this a few weeks ago with the sensationalistically written story of the 8-year old boy who sued his aunt. Marsh now provides another fine example.

March 23rd, 2015

Subway Gunfights and Other Distractions

Ever been in a crowded subway car when a gunfight broke out? I have. It’s not a fun altercation.

That incident from 20 years ago popped back into my brain when someone was shot and killed in the NYC subway system recently. Apparently some strangers exchanged words, and then blammo. (That’s the short version. Fuller version at Scott Greenfield.)

My experience with a gunfight occurred on an uptown Seventh Ave. express heading into Penn Station. At rush hour. Two guys started pushing each other, about 10 feet away from me.

There were a few people between me and the scufflers, but in a packed car, if one person moves quickly it reverberates. A few shouts from strangers to cool it. And when New Yorkers yell at strangers to cool it, you know something really odd is going on.

We try hard to keep to ourselves. Because New Yorkers love to pretend nothing is happening, even when it is. We don’t look into the eyes of our fellow passengers. There is no end to the possibilities of what may happen, too many of which are negative.

And then a couple shouts of “Gun!” Along with everyone else in the car, I dove to the floor. And I was happy. Happy to be on the floor of a filthy rush hour subway car. With someone else on top of me.

“Pop. Pop.” Two shots.

We pulled into Penn Station — with all those commuters on the platform thinking they were going to pile into that subway car and make their way home, as a tsunami of people flooded out.

I peeked back after exiting. There were two men on the floor. One holding a gun to the other. Neither moving.

The news that night reported a scuffle took place with pushing between the two men. One pulled a pistol. Then the other wrestled it away from the owner and shot him twice with his own gun.

Now I’ll explain why these two sudden and terrifying incidents actually matter in a simple trip and fall case. Stay with me here, because this time I think I have an actual point to make.

A great many trip/slip and fall cases focus on the defect, whether it’s ice, busted sidewalks, potholes, stairs, whatever. The defense is twofold: Either it’s too small to be actionable, or so large that it’s open and obvious. It’s all about the defect. Look, look, look at the defect. It’s tiny (or alternatively only a blind man could miss it).

Now here’s the problem, and the challenge for the plaintiff’s attorney: It isn’t enough to focus on the defect. Sure you have to prove it, but in a busy city like New York, there are a million distractions, some static and some dynamic. Your client is looking at those too.What was the reason that the defect wasn’t seen?

The static distractions are the fire hydrants, food carts, sidewalk signs and parking sign poles, trash cans and trash bags, store windows, dog droppings, sidewalk grates, and other such stuff of daily life.

But the dynamic ones are more important: These constitute the walkers, runners, vendors, baby carriages, dogs and bicycles that are everywhere, some moving fast, some slow, and some doing all they can to make sure you look at them.

And that is in addition to the hustlers who may deliberately bump you, dropping a cheap bottle of wine or eyeglasses, and demand that you pay for the damage you caused.

Why are these dynamics more important? Because you don’t want to inadvertently bump into your fellow New Yorker. Why? See gunshot stories above.

We don’t like to talk about this much, but it’s on everyone’s mind as we zig and we zag between the static and dynamic distractions of the walkways. An inadvertent bump into another is one of the disconcerting and discomfiting interactions of subway and sidewalk life, for it involves fear of The Altercation.

We don’t want to have this anxiety, but we do. Because we don’t want The Altercation. It’s big city life, and we’d like to get safely to wherever the hell we set out to go with as little hassle as possible, thank you very much.

That’s why, on the subway, New Yorker’s don’t look at each other. Sure, looking another in the eye might be a sign of love. But it may also be one of aggression. And you don’t want your glance to be “mistaken.”

Know how you can tell who the tourists are? They look at other people on the subway — though in all fairness the pastel shirts of some give them away long before that.

Where was I? Oh yeah, so we don’t always look down when we walk. We don’t always see the static defects that blend into the background and, quite frankly, shouldn’t even be there. We mostly look for the dynamics around us, trying to avoid the cars, bicycles, crazy taxi drivers and each other.

The lawyer that focuses solely on the defect may well lose. Sure, it could be a deceptive walkway, like these stairs, poor lighting, or an infirmity of the pedestrian that makes the defect more difficult to discover or navigate.

But the defect, which represents a trap, also exists in a much larger environment and context that is filled with other dangers to our well-being.

If you take the slip/trip fall case, the client ought to be able to reconstruct his surroundings to answer the question of why the defect was missed. And I don’t mean the easy questions of lighting or personal disabilities. But what were the static and dynamic distractions that existed in the few seconds before the fall?

You can have completely different results despite a defect being identical. In one case, you might have someone walking down a narrow and crowded subway stairwell, and miss the ice patch as he strives to avoid bumping his fellow commuters.

But if the reason for that same slip was that he was sending a text message — adding his own distraction to the multitude that already exist — there is as good chance he will lose.

To the practitioners out there, don’t just ask about the defect in the walkway. Find out what the potential client was looking at instead. Because the jury will want to know.

February 25th, 2015

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?

June 28th, 2012

Trips and Falls (And Expectations)

There are some folks who think that all trip and fall lawsuits should be dismissed outright. This short posting is designed to change their minds. The linked video should help.

The logic behind dismissal is well known to every lawyer that ever represented someone tripping on a defect. There are two fundamental defenses, regardless of the condition of the street, stairs, walkway:

1. The defective condition was open and obvious, and therefore it should have been seen by the person that was injured; or

2. The defect was de minimis, that being too small to be actionable.

But here’s the thing, the way we walk is governed by the actual ground we cover. Our eyes and brains don’t tell us to walk the same way across a rocky trail that we do across a marble lobby, or a set of stairs. When we perceive dangers, we react differently. This is normal.

And what happens when we perceive a normal walkway or set of stairs, but a defect is there? What happens when our expectations are confounded? We have a trap.

Courtesy of Niki Black, comes this short video posted yesterday by Brooklyn filmmaker Dean Peterson: A “normal” set of stairs for a New York City subway line (36 Street station, served by the D, N and R trains), except that one stair is actually a different height. I don’t know how many people have been hurt here, but if this defect still exists, you can bet there are accidents waiting to happen.

And so, if you are one of those people who are always so quick to blame the victim for not watching where they are going,this video will hopefully be food for thought.

Updated: The video caught the attention of NBC news, which measured the defect at 1/2″, and quoted Peterson on the trap:

“My girlfriend and I would walk up all the time, and we would always trip,” he said. “We just thought we were kind of klutzy. But then I kind of noticed that other people were doing it, too.”

Because of the video and bad press (and 300,000+ views on that video), the MTA is now fixing the problem. It would certainly be interesting to know how many people were hurt there, and how long this existed, before they snapped into action.