Good health and exercise usually go hand-in-hand.  But sometimes engaging in athletic activities can result in injury or even disability.  Three recent court decisions highlight the law’s view of responsibility for risks from athletic activity.

A high school student was struck in the cheek by a softball bat when a fellow student was swinging the bat during a warm-up drill.  The student sued the school for negligent supervision and obtained a verdict in her favor.  On appeal, the court reversed the verdict and ruled in favor of the school.  The court explained that “a participant in an athletic activity is deemed to have assumed the ‘those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’”  The court further explained that “it is well established that ‘the danger associated with people swinging bats . . . while warming up for the game’ is inherent in the game” and that the nature of the accident in this case did not “result from any ‘unassumed, concealed or unreasonably increased risks.’”

In the second case a man who continued to play golf in the rain broke his ankle when he slipped on a brick-and-wooden-railroad-tie staircase leading to the green on the 15th hole.  The man sued the golf course for failure to install a handrail beside the staircase or for failure to use slip-resistant materials on the stairs.  The court rejected the man’s claim because, said the court, “with the pleasures of playing in the rain . . . come the known risks of walking on wet steps and grounds.”  The court explained that the man “knew that it was raining, and that the steps appeared to be wet and slippery. . . . He was, or should have been, aware of the risk of slipping.  The fact that the stairs did not have a hand rail was an open and obvious condition.  As an experienced golfer he should have appreciated the nature of the danger.”

And finally, a woman was injured when the horse she was riding ran beside a big tree and caused her leg to get yanked back into the tree, wrenching and twisting the woman’s whole torso.  The woman sued the riding stable for negligence for putting her—an inexperienced rider—on an aggressive, recalcitrant, disobedient horse.  The stable argued that the woman assumed the risk of her riding injury and sought to dismiss the case.  The court denied the request to dismiss.  The court acknowledged that “certain risks adhere in certain activities [and] participants may be chargeable with knowledge of those risks and not heard to complain when the foreseeable, albeit unfortunate, consequences of those risks occur.”  But here, the court explained, the woman had expressly informed the stable of her lack of riding experience and the stable guide had informed her that there was no need for her “to control or steer the horse” because “the horses were trained and know what to do on this trail.”  Further, before the accident occurred the woman had complained to the guide that her horse “nervous and jerky,” was balking and stumbling along the trail, and was becoming more and more unruly as the ride continued.  The court observed that the woman did not assume the risk that the stable guide would not intervene to stop her ride in view of the potentially dangerous situation that was becoming increasingly evident.

So what are we to conclude from all of this?  Reasonable exercise is a good for us.  But, just as in many other areas of life, we need to be careful.

[Source material:  Navarro v. City of New York, 1st Dep’t, Sept. 8, 2011 (softball case); Rochford v. Woodloch Pines, E.D.N.Y., Aug. 26, 2011 (golf case);  Vanderbrook v. Emerald Springs Ranch, Wayne County Sup. Ct., Aug. 29, 2011 (horseback riding case)]

In New York City, a former NYPD detective accidentally shot himself in the knee at a precinct station house.  The detective had leaned back in a swivel chair at the station house when he tried to place a fellow officer’s gun in the fellow officer’s waistband.  The swivel chair fell back and the detective accidentally pulled the trigger of the gun, discharging a round into the detective’s own knee.  The detective sued the City of New York for failing to provide a place of employment free from hazards and a jury awarded him $5 million in damages.  On appeal, however, the judgment was reversed and verdict set aside.  The appellate court found no evidence that, prior to the accident the City had any knowledge that the swivel chair was defective.  Thus, the appellate court ruled that the evidence was insufficient to establish the City’s liability under New York’s workplace safety law.

In a second case, an appellate court in Albany reversed a trial judge who had declared a mistrial when, in the judge’s view, the attorney for the defendant had excluded hunters from the jury panel.  The judge was of the opinion that licensed hunters were a class entitled to constitutional civil rights protection because, the judge reasoned, hunters are protected by the right to bear arms under the Second Amendment to the United States Constitution.  The appellate court disagreed.  “Unlike racial or ethnic minorities and women,” the appellate court said, “there has been no showing that hunters have faced a history of prejudice, exclusion, invidious discrimination or stereotypes.”  The appellate court explained that “the fact that hunters may exercise their Second Amendment right . . . does not morph them into a cognizable group for equal protection purposes.”

Firearms—never a dull moment!

In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand.  He approached her and asked, “Mrs. Jones, do you know me?”  She responded, “Why, yes, I do know you, Mr. Williams.  I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me.  You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs.  You think you’re a big shot when you haven’t the brains to realize you’ll never amount to anything more than a two-bit paper pusher.  Yes, I know you.”

The lawyer was stunned.  Not knowing what else to do, he pointed across the room and asked, “Mrs. Jones, do you know the defense attorney?”

She again replied, “Why yes, I do.  I’ve known Mr. Bradley since he was a youngster, too.  He’s lazy, bigoted, and he has a drinking problem.  He can’t build a normal relationship with anyone, and his law practive is one of the worst in the entire state.  Not to mention he cheated on his wife with three different women.  One of them was your wife.  Yes, I know him.”

The defense attorney nearly died.

The judge asked both counselors to approach the bench and, in a very quiet voice, said,

“If either of you idiots asks her if she knows me, I’ll send you both to the electric chair.”

An inmate who was serving a sentence for robbery applied to have his name changed and asked that the court filing fees be waived because he couldn’t afford them.  In considering the inmate’s request, the court noted that anyone may change his name without need of a court order provided he is not changing his name for purposes of fraud, deceit, or avoidance of obligations.  The court also observed that indigent persons may not be denied access to the courts to assert or defend their fundamental rights  simply because they cannot afford court filing fees.  The court, however, ruled that changing one’s name is not a fundamental right and therefore denied the inmate poor-person status.  The inmate thus would have to pay the court filing fee in seeking his new name.  Said the court, “the taxpayers of the State of New York are not required to pay for an individual’s judicial name change.”

In another correctional facility case, a prison guard suffered disabling injuries when he slipped and fell in the mess hall shortly after the floor had been mopped by an inmate.  The guard applied for disability retirement benefits under a state statute that awards such benefits to correctional personnel who sustain injuries in the course of duty as the result of “an act of an inmate.”  The court reviewed the history of this statute and noted that it had been enacted because an increase in the prison population had created an increase in altercations among inmates and between inmates and correction officers.  The court observed that “the statute was clearly intended to compensate correction officers who, because of the risks created by their daily contact with certain persons who are dangerous and profoundly antisocial, become permanently disabled as a natural and proximate result of an act of any inmate.”  In view of this history, however, the court confirmed the denial of benefits to the guard.  The court said that “mopping a floor—a benign chore routinely performed in penal institutions by inmates—is clearly not, in and of itself, the type of activity that was intended to trigger” the benefits afforded to correction officers under the statute.

Needless to say, things are different in prison.

“We had an agreement and she knew that I was not ready for a child.”

“I barely know her and I did not sign up for this.”

And so are the statements that we receive regularly from soon-to-be-fathers calling to retain this firm to protect their interest in child support cases. Many a man has called to see what his options are when he suddenly finds himself in the role of the father in an unwanted pregnancy. Although the story might be a little different (“She tricked me!”, “It was an accident!”), our answer is always the same: If you do not want to be the custodial parent and the mother petitions the Court for child support, you will be paying.

Child support was established in New York in order to provide for the reasonable needs of the child when the parents are no longer together. The Court does not consider the circumstances of the pregnancy when deciding the financial duty due to that custodial parent. The amount of such a duty has been well-established by statute and is determined as follows:

1. The Courts determine each parent’s income and then multiplies that combined number by the following:

1. 17% for one child,
2. 25% for two children,
3. 29% for three children,
4. 31% for four children,
5. And no less than 35% for five or more children.

2. That amount is then divided between the two parents based on the proportion of each parent’s income to the total combined income.

On top of this baseline monthly/weekly amount, you could also be required to pay for a portion of daycare, schooling, extra-curricular activities and other child expenses.

Know your rights before you engage in any activities that could result in a pregnancy or it could cost you a lot more than what you bargained for. Like 17% more.

Several high profile cases in the past years have brought to light an alarming rise in the ever increasing problem of parental abduction. Oftentimes, a parent will threaten to remove the child from the country, and this chart, reproduced from the Office of Juvenile Justice and Delinquency Prevention, a division of the U.S. Department of Justice, helps a worried parent decide when the threat is real and what steps he or she should do when the other parent is threatening to abduct their child:

* Common to all profiles: (1) Parent dismisses value of other parent for child, (2) child is very young or vulnerable to influence, and (3) abductor has family and social support.

† General principle: More restrictive measures that curtail parents’ freedoms are warranted when (1) the risks for abduction are greater, (2) the obstacles to the recovery of the child are more substantial, and (3) the potential harm to the child is more extensive.

‡ The Hague Convention on the Civil Aspects of International Child Abduction, ratified in 1986, is an international treaty that establishes administrative and judicial mechanisms to bring about the prompt return of an abducted or wrongfully retained child, usually to his or her country of habitual residence, and to facilitate the exercise of visitation across international borders. The Convention took effect in 1988, following enactment of the International Child Abduction Remedies Act, a Federal implementing statute.

If you feel that your child is at risk and the threat of abduction is real, call a lawyer right away—you need to be on the offensive, not the defensive for your child’s sake!

Despite what one might think, a custody case is not an open forum for one party to take the floor and use that time to explain to the judge what a terrible person the other side is. Instead of highlighting his or her own strengths as a parent, the party instead uses the entire case to paint the other party in a bad light. Oftentimes, the court will see the complaining parent as actively causing problems instead of listening to his or her grievances and penalize the complaining parent.

Take the case of 29 year old Angela Voelkert, recently featured on CNN’s website. During her heated custody case, Ms. Volekert created a fake Facebook profile for a scanitly clad 17 year old girl named “Jessica” whom she used to “friend” the father of her child. The father and the “teenager” exchanged multiple messages including ones where the father expressed that he would like the teenager to “find someone at [her] school…that would put a cap in [the mother’s] ass for $10,000.00.” With a few other messages like that up her sleeve, Ms. Voelkart came into the courtroom with what she believed to be an airtight assault on the father’s credibility. Her entire case rested on these messages and she had little doubt that the custody of her children would be awarded to her.

But the father had a different plan in mind. Knowing that the chances of a 17 year old girl he did now know “friending” him were slim, prior to accepting “Jessica’s” friend request he signed a notarized affidavit that stated that he believed that “Jessica” was really the mother of his children or someone that she knows and that he was engaging in conversations in order to prove that she was trying to manipulate this case and intrude into his personal life and cause unnecessary problems He also stated that “in no way so I have plans to leave with my children or do any harm to Angela Dawn Volekert or anyone else.” After testimony from the husband and notary, the mother’s petition was dismissed.

For example, a man was blown over by a gust of wind from a helicopter while riding his bike nearby.  The man was on a bike path on West Street in Manhattan and the helicopter was landing at the 30th Street Heliport.   As he fell, the man was struck by another bicyclist passing him on his left and he suffered a separated shoulder which required surgery.  When the man filed a lawsuit to recover for his injuries, the heliport asked the court to dismiss the case before trial.  The court denied the dismissal saying that the heliport advised pilots about wind conditions and about which landing pads to use.  The court also noted that the heliport arguably could have erected a “blast fence” or wind barrier to reduce the affect of helicopter-caused gusts—which may have reached 30 miles as hour—to protect bicyclists using the path.  Thus, the court allowed the man’s personal injury claim to continue toward trial.

In another recent case, a woman was singing while riding her bicycle when she fell and broke her leg when she attempted to avoid a car.   She applied for and received workers’ compensation benefits because she was a musical actress and was warming up for a rehearsal when the accident occurred.  The woman’s employer argued that her bicycling was not within the scope of her employment as an actress and that she therefore was not entitled to workers’ compensation benefits.  The court noted, however, that to determine if her actions were within the scope of employment or were purely personal depended on whether the women’s activities were “both reasonably and sufficiently work related under the circumstances.”  Here the woman and the manager of the theatre company for whom she worked testified that actors performing in musicals customarily warm up both vocally and physically “to prevent on stage injuries and enhance performances.”  Thus, the woman’s warming up vocally while riding her bike was a “reasonable and work-related activity” for which she was entitled to workers’ compensation for her injury.

So . . . , if you are a bicyclist, know that you do not necessarily assume full legal responsibility for all of the foreseen and unforeseen hazards inherent in that activity.

This unremarkable series of events became remarkable in December 2008 when another woman claiming to be the decedent’s real wife (we’ll call her Wife No. 1) filed a lawsuit against the allegedly fraudulent wife (we’ll call her Wife No. 2), the hospital, the funeral home, and the cemetery.  Wife No. 1 claimed that she and the decedent were married in 1980, that their marriage had never been dissolved, and that Wife No. 2’s alleged marriage to the decedent in November 2007 therefore was bigamous and void.  In essence, Wife No. 1 claimed that Wife No. 2 had no authority to dispose of the decedent’s body and that she and the hospital, the funeral home, the cemetery were liable in damages for unlawfully disposing of the body and causing her (and her and the decedent’s children) emotional distress.

This mess was untangled by application of the following legal principles:  First, where two competing putative spouses come forward with proof of their respective marriages, there is a presumption that the second marriage is valid and that the prior marriage was dissolved by divorce or annulment.  In view of the fact that Wife No. 1 failed to produce any evidence that her marriage to the decedent had not been dissolved before Wife No. 2 married the decedent, Wife No. 2’s marriage was presumed to be valid.  And second, if the hospital, the funeral home, and the cemetery reasonably relied in good faith upon the instructions of Wife No. 2 to dispose of the body, they are shielded from civil liability.  As the court explained:  Hospitals, funeral homes and cemeteries should not be required “to cross-examine grieving widows or widowers, children, parents, siblings or others to confirm the validity of the familial or personal status” nor should they be required “to conduct independent investigations of such persons.”  Only if the hospital, the funeral home, the cemetery receives “incomplete or suspicious documents or other information that would cast doubt on the person’s authority to control the decedent’s remains” would they be legally obligated to conduct further inquiry.

Here, Wife No. 2 presented a Certificate of Marriage evidencing a marriage ceremony between her and the decedent in November 2007.  The hospital, the funeral home, and the cemetery therefore had reasonable basis to rely on Wife No. 2’s representations and authority as the decedent’s surviving spouse.  As a result, the hospital, the funeral home, and the cemetery were not liable to Wife No. 1 for disposing of the body in accord with Wife No. 2’s instructions.  However, Wife No. 1’s claim against Wife No. 2 alone was allowed to proceed.

[Source material:  Mack v. Brown, No. 2009-09685 (2d Dep’t March 8, 2011)]

The Court ruled that the current residence and school district would promote continued stability.

More importantly, The Court considered the best interest of the child and noted that at the time of the hearing the relationship between the mother and her teenage daughter had deteriorated to the point where the child was not speaking to the mother.  The Court found that the daughter’s expressed feelings toward her mother precluded the mother from being the child’s custodial parent and granted sole physical custody to the Father, who is now in a position to receive child support payments from the Mother.

So, now the mother can move out of New York, just not with her daughter.  Talk about winning the battle but losing the war! This demonstrates how important it is to analyze all the possible ramifications before commencing an action to change a custody/visitation/parenting agreement.