This past week a little girl attended a baseball game with her grandfather at Yankee Stadium and was struck by a 105-mph foul ball.

Typically cases involving these types of injuries are not viable because fans “assume the risk” of this outcome when they purchase a ticket, and incidents such as these are written off as “accidents.”

But numerous articles this week questioned whether these injuries were preventable with an inexpensive fix: extended netting.

One article even brought up a past incident that occurred that resulted in the death of a baseball spectator:

Science has told us that even the most attentive fans don’t stand much of a chance when a line drive is ripped into the stands.

Given that only the teams can prevent injuries of this type, isn’t it time that they are held accountable if they choose not to simply extend the protective netting? All the ingredients for a viable claim are present: (1) duty to protect fans; (2) foreseeability of injuries of this type; (3) breach of the duty to protect fans; (3) their breach caused harm.

If teams choose to not extend their netting, then they should be able to be held responsible for their malfeasance.

Today, the New York Post and Andrea Peyser Got it Right

This week we posted a response to an opinion piece in the New York Post that we deemed to be factually deficient, mean spirited, and ill-advised.

Imagine our surprise this morning upon finding Andrea Peyser’s column — from the same New York Post — which we cannot praise enough. Kudos to Ms. Peyser, who shed light on the predictable bullying that occurred, and for speaking to those whose opinions added value to the piece. She spoke to:

  • The girl about which the column was written;
  • Her father;
  • A parent who knew the family; and
  • A psychiatrist who is an expert in bullying

Her column may be found here:

We really can’t say it much better than Ms. Peyser did, and we hope that Ms. Peyser’s colleague who wrote the opinion piece last Sunday learns something from her.


Shame on the Bullying New York Post Opinion Piece

The following is a response to an Op-Ed piece in Sunday’s New York Post by Naomi Schaefer Riley, found here:

Dear Ms. Riley:

I’m glad the opening line to your opinion piece in Sunday’s New York Post acknowledged that actions have consequences.

And I’m sure you considered the consequences of writing your opinion piece about a 12-year old girl who wants to play basketball, and her family.

And I’m sure you considered that your opinion piece was pointedly critical of that family, even though the school’s choice to exclude the girl was upheld in court simply because private schools are allowed to discriminate.

And I’m sure you carefully chose the words you used in the article, namely, “…the family cost the school..,” even though it was the school’s choice to prevent the girl from trying out for a team based strictly on her gender.

And I’m sure you reviewed the diocese financials before you painted it as financially strapped, even though it does not pay a dime in taxes.

And I’m sure you know that some of New Jersey’s Catholic schools, such as Don Bosco Prep, Bergen Catholic, and Paterson Catholic, are renowned for their sports programs, before you chose to write that public schools were a better option for students whose priority is sports.

And before painting the family as affluent, I’m sure you did your due diligence to find out what their financial situation is, rather than just taking the average household income of the town in which they live.

And I’m sure you spoke to the parents of that little girl who just wants to play basketball and asked them if they wanted “special considerations,” or just a chance for their daughter to try out for the team.

And you certainly chose your words carefully when you implied that the same family was “going to take everyone down” with them by accessing the courts. You know, like the plaintiffs in Brown v. Board of Education did.

And you surely took into account, when suggesting that the little girl go to a different school, just how difficult a transfer for her would be academically and socially, and would even suggest the same to your own child if she were faced with this adversity.

And you also certainly considered that the lesson you would be teaching to your own child would be that it’s okay for an institution to discriminate. It’s okay for an institution to deprive her of her due process rights. And it’s okay both for her and for other girls to not have the opportunity to get a position – even if she’s good enough – because she’s a girl.

And you also considered the consequences of your actions when the headline of your opinion piece accused the girl’s parents of teaching her narcissism. You considered that she and her family would read this sanctimonious and patronizing writing about them and how that would make them feel. You considered that their friends and family would read it, too, and you want them to accept what you wrote as the “correct” opinion. You considered that the girl’s classmates would adopt your position and may even attack that girl for fighting for what she believes in.

And then, worst of all, you certainly saw the irony when two days later you had the audacity to write about the crisis of cyberbullying. You even said of schools that they are “a place where students are supposed to feel safe physically and emotionally…” You failed to recognize that on Sunday, YOU were the bully.

Perhaps the consequences of YOUR actions should be an apology to this girl and her family.

How the Moderator Flubbed the Supreme Court Question

Wednesday night’s debate started off with the following question:

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?

Look, it’s clear from Article II of the Constitution that the President shall nominate judges of the Supreme Court. Accordingly, the candidates’ opinions on issues that could potentially come before that Court are certainly relevant.

But, here’s what’s troubling about the question. The President shouldn’t be appointing judges in the hopes of guiding the country in any particular way. Instead, he or she should be looking for nominees who are (1) qualified to do the job; and (2) who will uphold the Constitution of the United States.

The second part of the question – how the Constitution should be interpreted – is absolutely outside the scope of the President’s powers.

The premise of the question assumes that the President should have a say on how the Court rules, even though the Judicial Branch is separate to ensure proper checks and balances. Because politics has intruded on almost all decisions in Washington, we’ve reached the point where the premise of the moderator’s questions is presumed to be correct. This is unfortunate.

Here is how we would have phrased the question:

There are no specific qualifications for Supreme Court Justices, including age, education, profession, native-born citizenship, or even a legal background. Because the next President will almost certainly have at least one appointment — and potentially two or three – what qualifications will you look for in a nominee?

This phrasing takes away the President’s invisible hand in pushing an agenda for the Supreme Court and gives back the impartiality that the Court should have.

(For a full transcript of the debate, see:


Class Actions are Safe…For Now

The Supreme Court surprised the legal world this week when it held that a defendant who made a Rule 68 offer of settlement to the lead plaintiff in a class action could not defeat the entire class by doing so. The majority, led by Justice Ginsburg, arrived at its opinion primarily on the basis of contract law, and stated that a rejected offer “creates no lasting right or obligation.”

The full text of the opinion can be found here:

Campbell-Ewald Co. v. Gomez

As the following articles explain, the victory allows those who fight on behalf of consumers to continue their pursuit of justice, but it also leaves open the possibility for future class action defendants to squash such cases by actually paying to settle with the lead plaintiff:

Supreme Court says class action lawsuits can survive compensation offers (USA Today)

Supreme Court Rejects One Tactic To End Class Actions, But Leaves Another Open (Forbes)

Justice Ginsburg Leads Supreme Court Majority To Deliver Blow To Big Business (HuffPost)

Given the makeup of the Supreme Court — and the stated reasoning for Justice Thomas’s dissent — it appears that once again this issue will, if before this group of nine, depend on Justice Kennedy’s vote.