October 30th, 2024

NYC Kills the Jaywalking Law

The concept of jaywalking in New York City has always been a joke. It was, until yesterday, illegal. But everyone did it. Even if a cop was standing right in front of you.

New Yorkers always valued their “right” to walk where they wanted, as Dustin Hoffman famously yelled in Midnight Cowboy: “Hey, “I’m walkin’ here!”

That freedom to walk wherever we wanted, however didn’t seem apply to everyone. It seems that New York cops were still writing tickets for Blacks and Latinos, who received 92% of the tickets.

An unenforced law for a white guy like me isn’t the same as an unenforced law for others. In other words, jaywalking was a pretext for cops to stop someone they didn’t like.

So, now that it’s gone, how does that affect New York’s personal injury law? Does this mean pedestrians can wander the streets aimlessly with their schnozz buried in their phones?

Yes. But. And the “but” part is that it will not magically grant them immunity for their own negligence. Yes, you can step out between cars without looking. You won’t get a ticket. But you can still be held liable if a car slams into you.

Comparative negligence — that part of the law that says fault isn’t always 100% this way or that — will not evaporate. A pedestrian must still yield the right of way outside of a crosswalk. A jury can (and will) still apportion fault against a pedestrian if given just a smidgen of a chance.

The only real difference is that if a pedestrian was actually given a ticket in the past after a collision, an almost unheard of situation in NYC, a guilty finding for violating a law might would liability against that person as a matter of law, and a negative inference if it is city ordinance. Since that rarely happened, it won’t matter.

A last thing on this short post as I come out of hibernation — just because you have the right to do something stupid doesn’t mean you should. Even if you have the right of way. As I noted a few years ago in a post about the difference between fault and safety, I remembered a little something from a book on Tombstone Humor that I read decades ago:

Here lies the body of John McCray,

He died defending his right of way.

He had the light, He had some pluck,

But the other fellow had the truck.

April 30th, 2024

Protesting Students and January 6ers

Across many college campuses now there are various anti-Israel protestors that are, to varying degrees, yelling, hanging signs, occupying walkways and common areas, and on occasion occupying and vandalizing buildings.

And, in conduct that is incredibly easy to predict as it parallels much of partisan politics, people will do everything to highlight both the absolute worst (or best) of whatever opinion that they have. And, by implication, try to show that the folks highlighted are representative of the whole.

In the January 6 cases we saw some who violently attacked the police and actively stormed the Senate to stop votes from being counted. Others strolled in after the damage was done and took pictures. And still others stayed outside and never entered, perhaps just wandering past the line of busted barricades that may, or may not, have even been there anymore.

Every case is different.

But the analogy to those Trumpers is perfect for the kids on campus today. Many call for the extermination of Israel (“from the River to the Sea”) or other forms of violence as to Israel or Jews generally. You need not look hard to find these. Unlike Vietnam era protests, these people don’t call for peace but for war.

Others are simply clueless, and could not name the river in question, and have no idea that it’s a call for extermination.

Some are violently attacking police and vandalizing buildings. Others are standing around either watching or half-heartedly chanting because, “hey, there’s a protest, and that cute classmate asked me to go.”

The vast majority would probably fail a course on the basics of the current Arab-Israeli conflict that dates back 100 years.

The point, of course, is that each of the arrested students — and there will be many — will have their days in court. Each case will rise/fall on the details of that particular student. Pretty much like every other case in the courthouse, be in criminal or civil. Because details matter. Just as in the January 6 cases.

In the meantime, for any student that may be reading this, the very, very old adage applies of “don’t do the crime if you can’t do the time.”

But unlike in days of yore, it’s not just jail time that might be at issue for those arrested, as future employers now have the internet. And if you’re arrested while standing in a crowd with people holding signs to “globalize the intifada” you should fully expect that future employers will find it.

They won’t give a damn if you were not holding that sign. And if you try to claim it was written in Arabic, and that you couldn’t read it, they will just assume that by joining a protest that you didn’t understand that you are also too dumb to hire. It won’t matter if you agree, because you’re not the hiring manager.

Be careful of the company you keep.

January 4th, 2024

Hochul Vetoes Grieving Families Act Again

I’ve written before about the Grieving Families Act, a badly needed update to New York’s wrongful death statute that dates to 1847. My first post was in 2017, but a version of the bill has bounced around Albany for 30 years.

By way of brief background, for those too lazy to hit the link above, in a wrongful death case in New York there is a claim for monetary loss – be it lost wages or even the economic value of cooking and cleaning that one household member might perform.

But there is little monetary claim over the loss of a child, or a retired parent, or a disabled family member. If you are rich, the pecuniary claim may be large, but if you are not, then you may be as we lawyers like to say, shit out of luck. This restriction obviously has a disproportionate effect on those with low incomes.

Enter, the Legislature, which in 2022 finally passed a bill after long efforts that allowed for family members to make claims for grief, as can now be done in 48 out of 49 other states. Gov. Kathy Hochul should have signed that bill, passed by large majorities of both legislative houses. But she vetoed it.

So last year the Legislature tried again, and passed a more limited bill (restricting the definition of family members), again with overwhelming support. The new bill offered several modifications to win the Governor’s support:

“These narrowed the pool of family members eligible for damages, reduced the statute of limitations from three-and-a-half years to three years, removed a provision that would have covered disorders resulting from grief and limited retroactivity only to incidents that occurred on or after July 1, 2018.”

But on December 29th, she vetoed that one also.

An article in City & State New York, gives the background of that veto: Hochul wanted to lard it with so many poison pills it would be completely neutered:

In her counter-proposal, a copy of which was shared with City & State, Hochul suggested limiting the law only to deaths of New Yorkers 18 and under, completely removing retroactivity for existing lawsuits, lowering the statute of limitations from three years to two (which is the current law), rejecting any expansion of family members eligible for damages under the statute and setting a sunset date of three years after the law took effect.

These restrictions simply gut the whole point of the bill.

Her complaint that the bill would wreak havoc on businesses is belied by the evidence. As an op-ed in Albany’s Times Union notes:

In 2019, plaintiffs filed approximately 77,427 tort cases in New York. Of those, only 126 cases involved claims for wrongful death — a microscopic .15% of all cases — according to state Office of Court Administration data. This statistic exposes the absurdity of any prediction that the act would cause even a 1% increase in losses.

Since both the Senate and the Assembly are both currently governed by the Democrats, and the Governor is a Democrat, they are loathe to override her veto. Making enemies within one’s own party is not necessarily the secret sauce of success on a wide range of other issues that confront legislators and demand negotiation. As per NY Assembly leader Carl Heastie:

“Even though he is disappointed with the governor’s vetoes, Heastie is not ready to discuss veto overrides.

“[Veto overrides] are always…nuclear options and you would hope to never get to that point,” Heastie said.

He pointed to the Legislature’s historic cooperation with Hochul over the past few years.”

On the other hand, given Hochul’s extreme position that she will only a wholly ineffective bill, then override is the only alternative.

January 2nd, 2024

Now the WSJ likes Trial Lawyers?

Every trial lawyer knows the routine: Bash us until you need us. Then we become your best friends.

And so it is with the Wall Street Journal. They are rightfully unhappy about two things — that anti-Israel protestors are blocking highways to airports and disrupting others from going about their business, combined with the fact that the police will likely do little:

Normally we wouldn’t wish trial lawyers on our worst enemy. But as anti-Israel demonstrations grow increasingly lawless, the plaintiffs bar could help. Why not hit protesters who break the law and keep Americans from getting to their destination with a tort liability suit for false imprisonment?

A fine idea in concept. Sue the people obstructing the public way for false imprisonment, and also I suppose, for any costs associated with missed flights, vacations, etc. The WSJ lists other “protests” including the Macy’s Thanksgiving Parade, Rockefeller Center tree lighting among others in the past.

Before I go into why the idea isn’t really all that hot, let me first remind readers that blocking roads is just about the dumbest type of “protest,” because they are not only attacking the wrong people but making them hate your cause. See, Well that Wasn’t Very Persuasive.

And after being annoyed at the police for not doing more — would the WSJ like to raise taxes to pay for more police? Asking for a friend — they launch into their Big Idea:

In the absence of real criminal penalties, the protesters’ escalating resort to lawlessness calls for some creative class actions. Tort actions would hit the lawbreakers in their pocketbooks, even if district attorneys like New York’s Alvin Bragg won’t prosecute them.

Protesters have the right to call for a cease-fire, denounce Israel for “genocide,” and chant “from the river to the sea” all they want. They can protest within orderly parameters. But it’s long past time American justice made clear that, however right they think their cause, protesters can’t legally prevent their fellow Americans from going about their daily business.

Except for a couple of small problems. The kids doing the protesting aren’t organized by anyone with actual money to pay a damages award. And it’s unlikely that the actual protestors have more than a pot to piss in. And intentional torts aren’t covered by any kind of insurance, as that would be against public policy.

So, dear WSJ, who is going to pay for your Big Idea to sue the protestors knowing full well that there will be no recovery? Whose time is it that you think should be spent? Who will be paying the bills?

I suppose, in theory, that a GoFundMe type collection could be done to pay some lawyers to do the work. And if successful, the payoff would be judgments against the protestors that would muck up their credit for years to come.

But that’s about it. Perhaps that will be worth it to some — in the absence of any real law enforcement action, and a willingness by judges to dump guilty protestors in the pokey for a week or so to help persuade them not to do it again.

If the WSJ thinks any real money will change hands, however, they had best remember something trial lawyers learn when young — you can’t get blood from a stone.

July 6th, 2023

Surgery is not Spoliation – Again

If was a dumb argument when I first heard about it: That a defendant in a personal injury case had a right to “independent medical exams” of the bodies of injured plaintiffs before they were operated on. And if they didn’t get it, they demanded a sanction for “spoliation” of the evidence — the evidence being the body of the injured person.

Back in late 2021, that argument was dumped on its head by the Appellate Division (First Department), as was the argument that the defense medical exam was somehow independent (The “Independent” Medical Exam is Dead).

And now the Second Department has likewise dumped on the idea, citing to the First Department’s holding in Gilliam v. UNC Holdings:

While the Court ignored the issue of calling such an exam “independent,” it unequivocally held that injured plaintiffs had every right to undergo surgery without first giving defendants access to their bodies for an exam. Citing from the First Department holding in Gilliam, that Court said that the:

“state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies”

…
“[p]laintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forgo surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury”

And with these following words, the Second Department, joining the First, which will hopefully put a final nail in this stupidity:

It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed”

The case is Fandeau v. Corona Industries, decided June 28th.