April 22nd, 2021

Stupid Lawyer Tricks – Rape edition

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.


November 11th, 2011

Priests, Pedophiles and Penn State

Aug. 6, 1999 AP file photo, Penn State head football coach Joe Paterno, right, poses with his defensive coordinator, Jerry Sandusky

Out of Florida comes a $100M verdict against a priest for sexual abuse of a child. Of that, $90M is punitive damages. Will that money ever be collected? No. Does it matter?

It certainly matters if you are Penn State, reeling from news this week that Jerry Sandusky, one of its football coaches, was arrested on multiple counts of sexual assaults on children. There seems to be little point recounting the burgeoning scandal and its awful claims here, as so many others are already doing, and I try not to write “me too” kinds of posts. But you would have to be living under a rock not to know that legendary head coach Joe Paterno was fired in the immediate aftermath, as was the school’s president, Graham Spanier.

But one day you can bet some of these victims — and no one knows how many will claim to be — will come forward and sue the school for not doing more to bar Sandusky from the school grounds and alert the police after finding out about the allegations.

The issues will be, as they so often are, what did school officials know about the assaults and when did they know it? And, what did they do about it and when did they do it?

Even if Sandusky were to prevail on the criminal charges — a concept few bother to talk about as everyone just assumes he is guilty — it seems unlikely that those saying they were victimized would just fade away. and it seems that one day a jury, or many juries, will be asked to answer questions similar to this:

Was Penn State negligent in failing to report Jerry Sandusky to the police?

Was that negligence a substantial cause of injury to this victim?

Did Penn State act with a reckless disregard for the health, safety and well-being of those on campus by failing to report Sandusky to the police?

So that Florida verdict against a priest is important, as it is one barometer of how society feels about these types of issues. And that means bad, bad news for Penn State, for many years to come.

See also, with timeline and citations to Pennsylvania law:  Can Sandusky’s Sexual Abuse Victims Sue Penn State? (Max Kennerly @ Litigation and Trial)



April 23rd, 2010

The Limits of School Liability

The Appellate Division (Second Department) has a nice decision this week discussing the limits of school liability on a playground. (Armellino v. Thomase) Sometimes a school may be liable for injuries, and sometimes not.

First, the facts: The third graders were at recess, and were permitted to separate from their other classmates. No recreational diversions were provided. The injured kid testified that he and his classmates began throwing pieces of asphalt from the track at each other. While this is obviously prohibited by school regulations, the teacher(s) assigned to supervise recess failed to notice or halt the activity. The incident escalated, the kid pulled another boy’s shirt over his head and ran away. He was chased, pushed down, broke his leg and had several surgeries.

Under this fact pattern, the school wanted summary judgment, claiming that there were no issues for a jury to decide. ‘Twasn’t our fault, they hollered.

Not quite so, said the court, defining the point thusly: Schools have a duty to “adequately supervise the students in their charge” and are subject to liability for “foreseeable injuries proximately related to the absence of adequate supervision.”

Schools, of course, are not the insurers of the safety of their students, “perfection in supervision” is not required, and schools are not liable for “every thoughtless or careless act by which one pupil may injure another.” Although a school must “take energetic steps to intervene…if dangerous play comes to its notice while children are within its area of responsibility” “school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.”

Thus, a student’s injury that is caused by “the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act.”

Because this particular case has a mixture of problems, kids chucking asphalt at each other, as well as a lack of supervision, it is left to the jury to sort out the facts of what actually happened.