Home / 2009 / August

Monthly Archives: August 2009

Ride ’em, counsel!


When celebrating a hard-fought courtroom victory, sometimes it’s better for a lawyer to tone it down a bit rather than going for the gusto.

Just ask California attorney Ellyn Levinson, whose misadventure with a horse named Pistol ended a barbecue championing her success in a land dispute.


Ellyn represented the California Department of Conservation in opposing Tehama County’s nefarious plan to make a lot line adjustment that affected the property rights of cattle ranchers Bert and Anne Owens.


Tehama County officials were stopped dead in their tracks thanks to a court order obtained by Ellyn.


Woo hoo! Time for a barbecue! (I guess when you’re a cattle rancher, it’s always Texas Two-Step time when you win a boundary dispute.)


In May 2005, Bert and Anne hosted the barbecue to celebrate the court victory, inviting Ellyn as an honored guest.


Before the party, Ellyn asked Anne if she could go horseback riding, assuring the rancher that she had ridden before. What wasn’t made clear at the time was that Ellyn’s experience was scanty at best, limited to some riding “at the park.”


Now, Bert and Anne have a working cattle ranch with trained quarter horses, not some foo foo dude ranch with docile trail horses.


So the Owens’ and Ellyn had completely different understandings of what it takes to ride a horse.


Misfortune awaits. Let’s proceed


Ellyn showed up at the barbeque, ready to hit the trail and Bert saddled up Pistol, a trained cattle horse, for Ellyn to ride. (Hey Ellyn! The horse’s name is Pistol. HELLO!)


Ellyn mounted up and headed out of the corral.


For some reason, Pistol bolted.


Rather than pulling back on the reins to try to slow Pistol down, Ellyn let go of the reins and grabbed the saddle horn, holding on for dear life.


Trickster that he is, Pistol made an abrupt cut to the left, throwing Ellyn through a fence and into a feed bunk.


Casting their previous cameraderie to the winds, Ellyn sued Bert and Anne, feeling someone else was responsible for her shattered hip.


According to Ellyn, the cattle ranchers “increased the risk inherent in horseback riding by selecting a horse that, by its very nature, training and disposition, was inappropriate, unsafe and unduly dangerous for a beginner rider.”


Last week, however, the California Court of Appeal concluded that Ellyn’s case fit neatly into the assumption of risk doctrine.


First, the court dispensed with Ellyn’s contention that Pistol was unreasonably dangerous.


“Pistol, trained to engage in abrupt movements when working cattle or performing in a rodeo, was precisely the type of horse that the guest would expect to ride in an open field at the cattle ranch. Thus, Pistol was not ‘unduly dangerous’ for that purpose. And undisputed evidence showed that, when ridden as a pleasure horse, Pistol was a gentle horse who had ‘never [before] run off or hurt anyone.’ No evidence was submitted which would support an inference other than that Pistol was simply ‘a horse behaving as a horse’ when he uncharacteristically galloped off and the rider was injured when she did not control him,” the court said.


Second, the court rejected the notion that Bert and Anne had a duty to ascertain Ellyn’s level of competence.


“Although, in hindsight, it became evident the injured rider lacked the skills to control a horse in that setting, the owners of Pistol were entitled to accept the rider’s representation that she had experience riding horses, thus indicating she knew how to control horses,” the court explained. “To impose a duty on the social host to second-guess the guest’s assertion and to cross-examine her about the extent of her experience would alter and chill the sport of horseback riding in the ultimate way — by precluding social guests from engaging in the sport.”


As the court summed up, “when the social guest asked her social hosts to allow her to ride one of their horses on their cattle ranch, and she professed to have the experience to do so, she ‘bit off more than she could chew’ and has only herself to blame for her inability to control a horse that behaved as a horse when it uncharacteristically galloped off.” (Levinson v. Owens)


— Pat Murphy



Check out the Circuit Blitz on Twitter!


 The Blitz is a daily review of the noteworthy decisions issued by the U.S. Circuit Courts of Appeals.


To follow the Blitz, go to:


Bathroom injury expert? Nyet!

Kay Chapman of Idaho didn’t envision that she herself was in for a surprise when she attended a surprise birthday party thrown for someone else.

But Kay’s tumble from a toilet into a shower stall — apart from conjuring up fond memories of the good old days of slapstick — sure raises an interesting legal issue of whether an expert witness could testify as to the ultimate safety of her host’s bathroom facilities.


Here’s the deal.


Kay visits Becky Chapman’s house for a surprise birthday party in March 2005. (It isn’t clear from the record whether Kay and Becky are actually related.)


Nature calls and Becky directs Kay to the bathroom.


Becky’s bathroom is small by most standards, with the toilet two feet away from a recessed shower.


Kay does her business and stands. Problem is, Kay is wearing high heels and one heel catches on the hem of her pants. (Seriously, ladies, are high heels really worth all the fuss?)


Her balance critically compromised, Kay takes a header into the shower.




Kay injures here shoulder in the fall, incurs $21,000 in medical bills, misses several months of work, yada, yada, yada.


So Kay sues Becky for negligence.


Here’s where the expert comes in.


Kay wants to bring in Matthew Mecham, a forensic engineer with experience in accident reconstruction and biomechanics.


Nobody had a problem with Mecham testifying regarding his measurements of the bathroom, or give his opinion on how the lack of backing on a bathroom rug may have contributed to Kay’s fall.


But Kay wanted Mecham to testify that Becky’s bathroom constituted a dangerous or hazardous condition.


Both the trial judge and the Idaho Supreme Court agreed that the average juror was fully capable of handling that issue without the assistance of an expert.


“As an opinion that the average juror is qualified to draw from the facts utilizing the juror’s common sense and normal experience is inadmissible, we conclude that the district court did not abuse its discretion by excluding Mecham’s testimony,” the state high court said.


And the court also agreed that the evidence supported the jury’s verdict in Becky’s favor.


“Based upon the record before us, the jury could disbelieve Kay’s claim that Becky told her that ‘several other people had fallen in that shower’ and reasonably find that [her] failures to warn Kay of the new rug and recessed shower were not a substantial factor in bringing about the fall. Rather, the jury could reasonably find that Kay’s attempt to free her heel from her pant hem while rising next to the recessed shower, which was immediately next to and apparent to her, was the only substantial factor in causing the fall,” the court said. (Chapman v. Chapman)


— Pat Murphy



Check out the Circuit Blitz on Twitter!


The Blitz is a daily review of the noteworthy decisions issued by the U.S. Circuit Courts of Appeals.


To follow the Blitz every weekday afternoon, go to:


Lawyers get the tools to strip away Internet anonymity

Bit by bit, courts across the country are fleshing out the procedures for lawyers to identify anonymous Internet users whose defamatory postings have injured a client. 

Just this month, courts in New York and the District of Columbia have weighed in on the issue.


The New York case is noteworthy because it provides an example of what a plaintiff needs to show to obtain the disclosure of a blogger’s identity in the pre-suit setting.


The D.C. decision gives attorneys a blueprint for dealing with an all too real business hazard — the anonymous website report that a client has engaged in software piracy.


‘Skanks of NYC’


Fashion model Liskula Cohen must have teed somebody off.


Cohen, whose image has graced the covers of Vogue and Elle, found herself the target of an anonymous blogger who posted five weblogs slamming the model on Blogger.com, a Google website.


The blogs, entitled “Skanks of NYC,” used words such as “skank” and “ho” to impugn Cohen’s chastity and personal hygiene.


The postings have been removed from the Internet, but Cohen has a defamation suit on her mind.


But before she sues, she wants to know who she’s up against.


So Cohen filed for an order of pre-suit discovery in the New York Supreme Court, seeking to require Google to identify the author of the blogs.


In New York, a party seeking pre-suit discovery must make a “strong showing” that a proposed cause of action has merit.


Here, Judge Joan Madden had no trouble concluding that Cohen had a meritorious claim.


“The blog is entitled ‘Skanks of NYC,’ focuses solely on petitioner, and repeatedly uses the words ‘skank,’ ‘skanky,’ ‘ho’ and ‘whoring’ in captions accompanying sexually provocative photographs of petitioner,” the judge explained. “The sexual overtones of the words are underscored by the obviously suggestive nature of the majority of the photographs. Under these circumstances, in the context of the blogs at issue, the words ‘skank,’ ‘skanky,’ and ‘ho’ carry a negative implication of sexual promiscuity, and as such are reasonably susceptible of a defamatory connotation and are actionable.”


The blogger, who appeared anonymously through counsel in the action, argued that her “Skanks of NYC” blogs were pure hyperbole, the sort of loose and vague insults that the Constitution protects.


The blogger characterized her posts as Internet “trash talk” that were incapable of reasonably being construed as factual assertions.


But the judge refused to recognize a special status for Internet bloggers under the First Amendment and ordered Google to reveal the identity of the source of Cohen’s frustration. (Editor’s Note: The Associated Press reports that the outed blogger is angry that Google failed to protect her privacy.)


“The protection of the right to communicate anonymously must be balanced against the need that those persons who choose to abuse the opportunities presented by the medium can be made to answer for such transgressions,” said the judge. “Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights. (In re Cohen)


Software piracy whistleblower


The Software & Information Industry Association (SIIA) offers rewards of up to $1 million to those who report software piracy.


The trade group’s website provides an online form for whistleblowers to report suspected piracy. And the SIIA promises that it will keep all information about tipsters confidential unless disclosure is “required by law.”


So the potential for mischief is readily apparent.


Solers, Inc., a Northern Virginia software development firm, says it became the target of a groundless copyright infringement investigation after someone filed a false report of software piracy on the SIIA website.


Feeling that the allegedly false report has damaged its reputation and diminished its business opportunities, Solers filed a “John Doe” complaint for defamation and subpoenaed the SIIA to learn the tipster’s identity.


The SIIA said it had no duty to divulge the tipster’s identity until Solers did more than just file a complaint.


The D.C. Court agreed that the First Amendment required something more for the mandatory disclosure of the identity of an anonymous speaker on the Internet, but not that Solers first exhaust all other sources of discovery.


Instead, the court adopted a five-part procedure for the enforcement of a subpoena to identify an anonymous defendant.


Pay attention here because you’re likely to see the courts in your state adopt some variation of this test when the issue is presented.


According to the D.C. court, in order to identify the maker of the false report of software piracy, Solers will need to:


(1) adequately plead all essential elements of  a defamation claim;


(2) participate in “reasonable efforts” to notify the anonymous tipster that the complaint has been filed and the subpoena has been served;


(3) allow the anonymous tipster an opportunity to file a motion to quash;


(4) proffer evidence creating a genuine issue of material fact on each element of the claim that is within the company’s control; and


 (5) show that the information sought is needed for Solers to proceed with its lawsuit. (Solers, Inc. v. Doe)



Read a comprehensive Lawyers USA take on this issue:


Internet anonymity



Read Lawyers USA’s summaries of the key state decisions on this issue:


Internet posters’ critiques are protected speech (California)


Firm lacks standing to fight Internet discovery order (California)


Internet blogger’s identity needn’t be disclosed (Delaware)


Internet forum needn’t identify anonymous posters (Maryland)


Company may discover who posted anonymous messages on Internet (New Jersey)


Blogger’s identity protected in defamation case (Texas)


AOL must reveal name of subscriber in suit for ‘cybersmear’ (Virginia)


— Pat Murphy



Check out the Circuit Blitz on Twitter!


 The Blitz is a daily afternoon review of the noteworthy decisions issued by the U.S. Circuit Courts of Appeals.


To follow the Blitz, go to:


Fore! … Sorry about that!

Let’s be straight with one another. I am not a golfer. Nor am I a gopher.

I figure I look funny enough without putting on funny-looking clothes, thank you very much. (“What, when you buy a hat like this I bet you get a free bowl of soup, huh?”)


And that wise man Groucho Marx nailed it. I wouldn’t want to be a member of any club that would have me.


Nope, I’m more of a football/basketball kind of guy.


That’s right, I’m not interested unless you’re running, jumping, sweating, bleeding and knocking people over.


But I must say that I’m impressed with the carnage and mayhem brought to us by those silly folk chasing that silly little white ball around.


You’d just be amazed at the number of personal injury suits that the golf courses across the country generate.


It seems like every other day I come across a case where a golfer is catching a member of his foursome with a backswing or picking off some unfortunate with an errant drive.


What really gets me is the guy who buys a house next to a golf course and then sues because of the balls rattling off his siding like hailstones.


Seems like you placed yourself in the cross-hairs, but that’s just me.


Last week, the Superior Court of Pennsylvania took up a golf injury case that shows being a “forward observer” can be hazardous duty, even if you’re not in the Army Rangers.


Here’s the deal.


In June 2007, Stuart Zeidman, Larry Rashkow and Troy Fisher made up a threesome competing in a charity golf outing at the Springfield Country Club near Philadelphia.


While preparing to tee off for the 17th hole — an uphill 301 yard par 4 — they become concerned that they might drive their tee shots into the group ahead of them.


So Stuart drives a golf cart ahead to act as a forward observer and give the high sign when the other golfers are out of range.


This good plan goes awry when Troy tees off while Stuart is driving back to join his compadres.


Sure enough, Troy hits a wicked “duck hook” that zings 300 yards and pops Stuart in the face.


As described by the court, “a ‘duck hook’ or ‘snap hook’ is a golf shot which, for a right-handed golfer, curves swiftly and sharply downward to the left, usually with considerable velocity.”


This sounds fairly promising for those of us who prefer action in our sports.


But getting back to our story, whatever relationship Stuart and Troy had before this mishap was set aside when Stuart sued for his injuries, which the court dutifully noted are “serious and permanent.”


But did Troy owe Stuart a duty of care?


The trial court said no, but the Superior Court on appeal said yes, concluding that neither the state’s “no duty” rule nor the assumption of risk doctrine prevented this case from going to a jury.


“[I]t is obvious [Stuart], on returning from his forward observer mission, did not consciously assume the risk of friendly fire when, to the contrary, he had every right to anticipate none of his playing partners would attempt a tee shot until his return to the tee box,” the court said. (Zeidman v. Fisher)


— Pat Murphy



Get the latest key cases from the U.S. Circuit Courts on Twitter!


Rescuer can recover damages from crash victim

A driver skids off the road. A passing motorist stops to render assistance but himself is struck by a car.

Can the passing motorist recover damages from the crash victim he attempted to rescue?


Yes, says the Nebraska Supreme Court.


To set the stage, in February 2002 Brent Rasmussen sees Krista Lisbon’s car slide off Interstate 80 between Lincoln and Omaha.


Good man that he is, Brent pulls over to see if Krista is okay.


Krista is okay, but her car is stuck.


Good man that he is, Brent sets about on a plan to rig a tow rope and get Krista back on the road.


Giving credence to the adage that no good deed goes unpunished, a car driven by Marilyn Andersen barrels onto the scene, striking Krista’s vehicle and Brent.


Good man that he is, Brent sues Krista for the foot he loses as a result of Marilyn’s misadventure.


Now, Nebraska recognizes the “rescue doctrine” under which one who negligently imperils the life of another is liable not only to the victim, but also to the victim’s potential rescuers.


But can the doctrine be extended to make a victim liable for injuries sustained by her rescuer?


The Nebraska Supreme Court decided that Brent’s case was the perfect opportunity to recognize a new cause of action in favor of a rescuer against a rescued person.


“Here, we find no rea­son to make a distinction between the negligence of the person being rescued which is a proximate cause of injury to the rescuer and the negligence of a third party which placed the person to be rescued in peril and caused injury to another who attempted the rescue,” the court explained. “[Brent] alleged that [Krista’s] negligent operation of her motor vehicle placed her in peril and invited the rescue by [Brent]. It is reasonably foreseeable that one who wit­nesses a motor vehicle accident will stop and attempt to ren­der assistance.” (Rasmussen v. State Farm)


— Pat Murphy



Get the latest key cases from the U.S. Circuit Courts on Twitter!



City wins with ‘suicide by cop’ defense

Sometimes police are confronted by a suspect who appears bent on his own destruction. 

But at what point does suicidal behavior provide legal justification for officers to respond with deadly force?


The 9th Circuit just last week explored the contours of that question in a §1983 case, upholding a jury verdict in favor of the city of San Francisco.


In 2004, Cammerin Boyd became the object of a high-speed chase through city streets after he allegedly attempted to kidnap two women. During the course of the chase, Cammerin leaned out of the window of his SUV and twice fired a gun at pursuing officers.


Officers finally cornered Cammerin and ordered him out of his vehicle with his hands up.


According to witnesses, Cammerin emerged from his SUV but ignored commands to get on the ground, taunting police and goading them to shoot him.


After walking towards the officers, Cammerin reversed course, went back to his SUV and reached into the vehicle.


Two of three shots fired from one officer’s gun struck home, and Cammerin died from his wounds.


Cammerin’s family sued the city for excessive force, but the city’s theory of the case was that the police were merely the means by which a troubled man chose to end his life.


You see, the shooting was the final act in a series of confrontations with police.


In 1993, Cammerin was involved in another high-speed chase. He attempted to evade state highway patrol officers on a freeway and ended up crashing into a light pole.


That crash cost him his lower legs, which were replaced by artificial limbs.


Two weeks before Cammerin’s death, Oakland police stopped him and searched his vehicle, finding rap lyrics advocating the murder of police officers.


Three days before the shooting, Oakland police arrested Cammerin for reckless driving. The man allegedly screamed “kill me” as police attempted to subdue and handcuff him.


To support its theory of “suicide by cop,” San Francisco sought to introduce the testimony of Dr. Emily Keram, a forensic psychiatrist.


First hurdle: Was the expert testimony relevant?


The 9th Circuit said it was.


“Cammerin’s alleged actions, in the context of the suicide by cop theory, are made more probable by evidence that he had previously brought lawsuits against the police department, and was therefore fully aware of the possibility that his family could receive substantial damages from such a suit if a police officer killed him,” the court said. “Evidence that Cammerin wrote rap lyrics praising the murder of police officers also makes actions consistent with suicide by cop more probable, as the professional literature indicates that individuals who attempt suicide by cop often harbor a deep hatred and resentment towards police officers.”


In addition, the court observed that “the circumstances of the 1993 car crash, a traumatic and life-changing event in Cammerin’s life that could be tied to police action, made it more probable that Cammerin resolved to place liability for his death on the police. Finally, Cammerin’s criminal history, particularly the two kidnapping attempts that provoked the high-speed chase and the potential sentence that he faced if prosecuted for those actions, made it more probable that Cammerin was trying to provoke a police shootout, rather than trying to surrender.”


Second hurdle: Was Dr. Keram’s opinion scientifically reliable?  


Again, the 9th Circuit came down on the side of the city.


“The Boyd Family seeks to challenge the district court’s conclusion by attacking the validity of the theory, but provides no scientific opinions challenging or refuting it,” the court explained. “Indeed, they present no evidence, outside of their own assertions, that the theory is unreliable, nor do they dispute the existence of multiple peer-reviewed articles in support of the theory. They criticize the methodology used to test for possible suicide by cop, but present no alternative, more reliable methods, nor their own expert to rebut Dr. Keram’s conclusions. (Boyd v. San Francisco)


— Pat Murphy



Get the latest key cases from the federal and state courts on Twitter!


5th Circuit gives the thumbs up to blood sacrifice

Maybe it’s time we came up with a “straight face” test for deciding religious freedom cases.

After the 5th Circuit last week gave the go ahead for Jose Merced to sacrifice goats at his home in Euless, Texas, I’m all for it.  


Merced is a Santeria Oba Oriate, or priest. The Santeria religion originated in Cuba and is a fusion of West African tribal religion and certain elements of Roman Catholicism.


Santeria rituals are aimed at getting certain orishas, or spirits, involved in our world. One means of accomplishing that goal is shedding blood through the sacrifice of live animals.


For example, the initiation of a new Santeria priest calls for the sacrifice of five to seven lambs or goats, a turtle, a duck, ten to fourteen chickens, five to seven guinea hens, and ten to fourteen doves. (Yes, I thought about it but, no, I won’t say it. And what’s with the turtle?)


Call me close-minded, but I’d rather not have my next-door neighbor slitting the throats of upwards of 44 living creatures as part of a ceremony to initiate a new priest, regardless of the religion.


But the 5th Circuit says that Merced’s neighbors are just going to have to grit their teeth and bear it because a Euless ordinance prohibiting the slaughtering of animals “substantially” burdens Merced’s free exercise of Santeria. (Merced v. Kasson)


Now, the 5th Circuit’s logic is irrefutable.


No one questions that Merced holds a sincere belief in Santeria.


Prohibiting the blood sacrifices would seriously impair his practice of the religion.


And the city’s “compelling” interest in protecting the public’s health by not having animal carcasses around is blown apart by the fact that Euless doesn’t enforce the animal slaughtering ordinance against hunters who bring game home.


But, c’mon!


I know, as lawyers, we’re trained to formulate and apply rules that lend themselves to reaching consistent, fair results.


But if we’re honest with ourselves, many of the rules we come up with have us chasing our tails in circles of logic until a judge picks a place to stop.


So that’s where the straight face test comes in.


Ask Joe or Jolene Average Citizen after a long, hard day of work, “Should Jose Merced be allowed to sacrifice goats to practice his religion?”


You have your answer if Joe or Jolene respond, “Are you kidding me?”


— Pat Murphy



Get the latest key cases from the federal and state courts on Twitter!


Teeth of death

Unless your name is Hannibal Lecter or Mike Tyson, it probably wouldn’t occur to you that your teeth might one day be declared deadly weapons.

A juvenile offender from the District of Columbia can now claim that distinction.


On the afternoon of Sept. 23, 2005, Officers Anthony Covington and Todd Corson were dispatched to investigate the report of a shooting near the D.C. Alternative Learning Academy.


The officers spotted D.T., who looked like he had been running and matched the description of the suspect in the “shots fired” report — a black male wearing blue jeans, a black hat, black boots and a black t-shirt.


When the officers attempted to effectuate a stop, the youth made the mistake of resisting, kicking and swinging away.


In no time Covington and Corson had D.T. on the ground, but that’s when the young man made a move that would secure his place in legal history.


As Covington knelt on the ground to subdue D.T., the youth lunged forward and bit the officer in his upper, inner right thigh.


Now, we can safely assume that D.T. wasn’t targeting Covington’s upper, inner right thigh, when he bared his teeth.


And we can safely assume further that the officer didn’t have his upper right thigh foremost in his mind when he reacted to ward off D.T.’s attack.


So we can breathe a collective sigh of relief to know that it was only Covington’s upper, inner right thigh that D.T. managed to chomp.


But that bite was bad enough to draw blood and present the issue of whether human teeth qualify as a “deadly or dangerous” weapon for the purpose of enhancing a charge of assaulting a police officer.


Let’s take off the table the issue of whether D.T. intended to infect Officer Covington with a deadly disease.


The prosecution never argued that D.T. was infected with HIV, hepatitis or any other communicable malady.


The lawyer for D.T. argued that teeth are not a deadly or dangerous weapon because “[t]eeth are not among the most lethal of civilian weaponry nor are they instrumentalities separate and distinct from the human body.”


The D.C. Court of Appeals recognized, however, that items that are not inherently dangerous may become dangerous weapons if they are likely to produce death or great bodily injury.


In this light, the court found that teeth may constitute a “weapon” under the ordinary meaning of the term.


“Human teeth are effective weapons capable of inflicting deep, painful, and dangerous wounds,” the court explained. “Teeth, therefore, fit comfortably within the plain meaning of ‘weapon.’ This conclusion strongly supports the view that human teeth, like a chair leg or automobile, constitute an instrumentality whose dangerousness in a particular case is for the jury to gauge.”


The court went on to hold that there was sufficient evidence for the juvenile court judge to conclude that D.T. used his teeth in a manner “likely to produce death or great bodily injury,” satisfying the other element of the offense.


“Violently resisting the officers, [D.T.] lashed out with the one weapon that was available to him, his teeth. Lunging forward toward whatever part of Officer Covington’s body was within his reach — his upper thigh and groin — [D.T.] bit through his pants and tore into Officer Covington’s skin, leaving teeth marks and a bleeding wound. Officer Covington’s treatment included a six-month course of anti-viral drugs. …


“Covington did not actually suffer great bodily injury from the bite. But aware of the dangerousness of teeth as a weapon, and viewing the evidence in the light most favorable to the government, we cannot say that no rational trier of fact could conclude that [D.T.] used his teeth in a manner likely to cause great bodily harm,” the D.C. Court of Appeals said. (In re D.T. )


— Pat Murphy



Get the latest key cases from the federal and state courts on Twitter!