July 11th, 2007

Bork’s New York Personal Injury Suit Is Answered By Yale

The Yale Club has Answered Robert Bork’s slip and fall personal injury case. Bork — the former SCOTUS nominee, conservative favorite and tort “reformer” — had sued the Yale Club for causing him to fall as he attempted to step up to the dais to give remarks. His federal suit, started in the Southern District of New York for “in excess of $1,000,000” plus punitive damages, has been met with widespread ridicule, as noted at the bottom of the post linked above. The then 79-year old former jurist claimed there should have been a step and/or handrail for him.

The Answer is here: YaleClubAnswer.pdf.

The Amended Complaint that it responds to is here:Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

With Yale now answering, Judge Bork is unable to voluntarily dismiss his case under FRCP 41 without prejudice and re-start it in New York Supreme Court, a more favorable venue as I discussed in What Should Bork Do Now?

To no great surprise, the Yale Club denies the allegations of negligence, specifically blames Judge Bork for the fall, claims the risks incident to “the situation” were open and obvious, and asserts that he has already received some remuneration for his economic loss.

Yale Club counsel is Eric Schnittman, who does not appear to have a website or much in the way of available information. New York’s court database lists him as a 1983 graduate of Fordham Law School.

The matter has been assigned to Judge Naomi Buchwald, appointed in 1999 by Pres. Clinton.

(Eric Turkewitz is a personal injury attorney in New York)


June 11th, 2007

What Should Bork Do Now?

As you likely know, Judge Robert Bork filed a New York personal injury lawsuit last week in federal court here. Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.

But this post is not about mockery or political criticism. The issue today is, given the error-riddled Complaint that has contributed to the scorn, what should he do next? Since this is, after all, the New York Personal Injury Law Blog, I figure I’m the guy to take a shot at this.

So here are the top 10 things Judge Bork should consider:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

9. Re-start in New York State Supreme Court. State court actions are cheaper because we don’t have expert depositions and don’t generally depose treating physicians. (In this case, expect for each side one or two doctors depending on your actual ailments, and a buildings inspector for code violations.) If the expense of litigation has been one of your court reform mantras, this is a good excuse to re-start here, since there are fewer legal hours and less cold, hard cash involved. Since you will be financially accountable for the disbursements (if a standard retainer agreement were entered into), this is particularly important for you as your attorneys would be repaid the money they laid out for you from the gross recovery. (With a local defendant, they may not be able to remove back to federal court, notwithstanding diversity.)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

7. Dump the claim for attorneys fees. They are not allowed in New York.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn’t do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the “host.” (In paragraph 7, you called both Yale and New Criterion the “host.”) Whatever you do, just don’t leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don’t know of what you have written. You don’t want them to know either, because some of the claims in your federal complaint can’t be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can’t draft a simple trip and fall complaint. And remember also that you don’t need a BigLaw “litigator” that probably hasn’t tried a case in years. And you do need someone that knows how to move a case efficiently.

BigLaw doesn’t mean best law.

Addendum 6/29/07 — Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

(Eric Turkewitz is a personal injury attorney in New York)


June 8th, 2007

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount “in excess of $1,000,000,” plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

The main injury he claims to have suffered were a hematoma in the leg that required surgery and months of rehabilitation. The New York Times notes that he proceeded to deliver the speech after he had fallen.

My thoughts on the Complaint:

  1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort “reform” activities.
  2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
  3. The Complaint doesn’t even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
  4. The Complaint asked for attorneys fees. Why? You can’t get them in New York for a standard personal injury claim.
  5. The Complaint asks for pre-judgment interest. Why? You can’t get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
  6. The Complaint asks for an amount “in excess of $1,000,000” (not merely $1M, but in excess of). Where are the damages for making such a huge demand?

Ted Frank at Overlawyered has already jumped on this case and called it “embarrassingly silly,” noting the defenses of assumption of risk and a condition that was “open and obvious.” He adds in the comments, interestingly, that “it’s conceivable that there might be an [Americans with Disabilities Act] claim of some sort.”

A quote from Bork, from Bloomberg news:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

I suspect that the folks at TortDeform will now add Bork to their roster of “Do as I say, not as I do” hypocrites of tort reform that suddenly changed their minds when it was no longer someone else’s injuries at stake.

Finally, the Complaint is signed by Bork’s counsel Randy Mastro, of Gibson Dunn & Crutcher. Mastro’s bio asserts that he “is a litigation partner who handles both civil and white collar criminal cases.” Also listed is Brian Lutz, who does “securities litigation, corporate control contests, antitrust matters (both civil and criminal), insurance/reinsurance coverage disputes, and white collar defense.” This is a white shoe firm with a dozen offices around the world. They apparently have lots of BigLaw experience. There is no personal injury law experience noted for either.

The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan)


  • More thoughts on choosing the right counsel from Carolyn Elefant: What Judge Bork’s Choice of PI Counsel Says About Lawyer Rankings like Avvo and Marketing;
  • Robert Bork, Jr. defends his father’s suit at Overlawyered;
  • This post now appears at Volokh, where I added the following comments in response to another:

    This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)

    The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.

    They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.

    It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn’t a separate cause of action for punitives as they have alleged.

    And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys’ fees in such an action, when they are clearly not allowed.

    Claiming something is boilerplate only works for a rookie lawyer who didn’t know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)

    The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That’s what I glean from the Complaint, and is the most likely reason frivolous claims appear.

A sampling of some other commentary:

Addendum 6/11/07 – I have a new post on the subject: What Should Bork Do Now?

Addendum 6/13/07 – I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Addendum 6/14/07 – New comments after New York Times weighs in with editorial: Bork’s New York Personal Injury Case and The New York Times

Addendum 6/29/07Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Addendum 7/17/07 Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee

(Eric Turkewitz is a personal injury attorney in New York)


April 9th, 2007

Trip And Fall Dismissed Because Defect Was "Trivial"

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be “trivial”; and
2. That the defect was so large as to be “open and obvious.”

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury.” However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff’s testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.


April 2nd, 2007

Slip And Fall On Ice/Slush — Case Dismissed

This New York slip and fall case is one that should never have been taken by the attorney:

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.

In trying to establish liability against the bus company, however, the court ruled that:

under the weather conditions which [sic] existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floors of their buses.

My own feeling is that juries don’t like such cases, and great care should be taken when selecting them. If a sidewalk trap has existed for years it is one thing, but sloppy/slushy conditions bring with it risks that are sometimes unreasonable to shift to another.

On the flip side, an interesting approach to the issue might have been to discuss the flooring of the steps, and the potential use of outdoor carpets or other materials to make the steps slip-resistant in adverse conditions (the way office buildings lay out the mats) but there was no such discussion in the record.

The case is McKenizie v. County of Westchester, from New York’s Appellate Division, Second Department.