Grandma in The Devil’s Den (assumption of risk/happy halloween)

What happens when an 84 year-old goes through a haunted house with her family members and gets hurt?  A lawsuit happens.  I would love to have been the judge writing this opinion and I think the judge who did write it enjoyed himself a bit.  The attorneys all argue about the following:

1) Did the haunted house operator provided enough supervision?

2) Was the victim was pushed by other scared patrons?

3) Did the victim fall down because she was scared?                   

Assumption of Risk

The judge says all of this is unimportant.  He says she assumed the risk when she entered the haunted house and assumption of risk bars any recovery.  In California, this type of “assumption of risk” is termed “primary assumption of risk”, in which the defendant owes no duty to protect the plaintiff from a particular risk of harm, and the lack of duty operates as a complete bar to recovery.  The case law regarding primary assumption of risk is rather developed in some areas (like competitive sports) and remains undeveloped and unclear in other areas, leading to unpredictability.  Whether or not primary assumption of risk operates as a bar to recovery depends on the context and the defendant's role in, or relationship to, that context. 

The judge in this particular Louisiana case analogizes walking through a haunted house to walking through a crowd at a horse race, and finds assumption of risk applies.  So why does he talk about the haunted house in some detail?  Because it’s fun.

Taken from the case:

The facts are that two vacant houses in the City of New Orleans were made to take on an appearance of a haunted house. The rooms of both houses were decorated with ghosts, goblins, coffins and various other Halloween paraphernalia, so designed to frighten or startle the patrons. There were also accompanying sound effects which one would except at such a carnival. An admission charge was made for each who entered. Patrons entered the first of the two houses and made their way in single or double file from room to room, while viewing the various exhibits as they proceeded. They exited the first house, proceeded through a cemetery area provided by a yard separating the two houses and into the second house. The final room which the patrons visited was known as the ‘Devil's Den.’ It was in this room that plaintiff was injured. As is to be expected, the light inside the room was dim. While everyone gazed toward the make-believe devil's den, a person disguised as the devil was mechanically projected approximately six to ten feet into the room on an overhead track. Plaintiff was either jostled (plaintiff's version) to the floor by the estimated 25 patrons in the room, or she fell (defendant's version) in trying to get away from the area when the ‘devil’ was projected into the room.

Plaintiff claims that the failure to provide employees in the ‘Haunted House’ to supervise and to police the movement of the patrons constituted negligence. We find no merit to this contention. The trial judge, in written reasons, made the following conclusions of fact:

'There were at least three members of the sponsoring group stationed at the entrance to the ‘Devil's Den’ to limit the number of people who went in. There was also a special policeman on duty inside to control the movement of guests in and out. The room was of spacious dimensions, and no more than approximately 20 people were allowed in the room at any given time.'

The record supports these factual determinations. Nevertheless, it is clear in the instant case that plaintiff's assumption of the risk in going through this attraction bars her recovery. Particularly is this true since there is no claim or suggestion that the defective condition of the premises or unforeseen event caused the accident, other than the jostling by the young patrons.

Whether Mrs. Bonanno fell as a result of being jostled by the crowd or in a frightened attempt to get away from the ‘devil’ is unimportant. She obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways . It would be inconsistent in this case for this court to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.

Bonanno v. Cont'l Cas. Co., (La. Ct. App. 1973)285 So. 2d 591, 591-92.

(Sidenote:  The actual event took place in 1968, the same year Halloween that Michael Myers supposedly first killed in the movie Halloween.)

Don't Be Gullible (please!)

Much of the time that attorneys and law students read cases, they focus on gleaning the law.  Sometimes the facts are so absurd—they stand on their own.  When I first read this case

1)      I couldn’t believe “Dr. Stevens” was so brazen;

2)      I couldn’t believe the victim was so gullible;

3)      I couldn’t believe there were previous victims;

4)      I couldn’t believe there were subsequent victims of this same scheme;

5)      I couldn’t believe this wasn’t rape (at the time).

The Facts (directly from the case):

Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as “Dr. Stevens” and said that he worked at Peninsula Hospital.

“Dr. Stevens” told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.

“Dr. Stevens” further explained that there were only two ways to treat the disease. The first was a painful surgical procedure—graphically described—costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, “Dr. Stevens” explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, non-surgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the “doctor” suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the non-surgical alternative and consented to intercourse with the mysterious donor, believing “it was the only choice I had.”

After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted “Dr. Stevens” by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called “Dr. Stevens” to give him her room number.

About a half hour later the defendant “donor” arrived at her room. When Ms. R. had undressed, the “donor,” petitioner, after urging her to relax, had sexual intercourse with her.

Boro v. Superior Court, (1985) 163 Cal. App. 3d 1224

  

The Result

At the time “Dr. Stevens” committed these acts, it technically wasn’t rape under the California penal code at the time.  Within months of this case, the state legislature amended the California rape statute to include “fraud in the inducement.”  Sad for this victim.  Sad for the previous and subsequent victims.  Sad there are people like this out there.

Black and White (race and marriage)

Each person’s view of marriage is different.  It’s informed by one’s own familial experience (i.e. “I don’t want to get married because my parents divorced”).  It’s informed by culture, religion, and politics.  However, increasing evidence indicates that race has a dramatic impact on marriage.  First, how drastic is the racial disparity in marriage?  Second, how can we explain that disparity?  Third, what can we do about it?

Racial Disparity

In a recently published book, Is Marriage for White People?  How African American Marriage Decline Affects Everyone, Author Ralph Richard Banks describes the way race affects marriage rates.  A review of Banks’ book is available here.  Previous reports regarding comparatively low marriage rates amongst blacks focused on low rates amongst the black lower class.  Banks finds that the low marriage rate is consistent for blacks across all socioeconomic strata.

An article last year in the Economist (found here) cites a study which found a drastic difference in marriage between blacks and whites, differences in prolonged marriage, divorce rates, and birth to single mothers.  In addition, the study found that differences in marriage were also associated with differences in economic mobility.

Explaining the Disparity

Chalandra Bryant published a study, Understanding the intersection of race and marriage: Does one model fit all?  Bryant’s study includes a conceptual framework to help illustrate why there is a racial marriage disparity.  An abstract of her article including a look at this conceptual frame is available here.  Bryant explains racial differences in marriage as resulting from stressors that both interact and multiply—and are unique to the African American experience.


Banks explains the racial disparity in marriage rates as a result of black women's inability to find a committed partner in their lives--essentially blaming black men.  In addition, the fact that Banks notes res reduced marriage rates for blacks across socioeconomic strata discounts financial strain as a cause of the disparity.  Meanwhile, Bryant includes financial strain in her model.

Plan of Action (what can be done?)

Banks states (controversially) that black women should marry outside their race to increase their marriage prospects.  Bryant views individual perceptions of community disorder as affecting their behavior within relationships.  So, if community disorder is quelled, hostility within black relationships will be reduced, and as a result marriage will increase in value. 

Banks’ solution seems white-centered and…even racist.  

Bryant’s framework seems like a legitimate illustration of how stressors—unique to the black experience influence marriage and divorce within the community.  However, her solution of reducing community disorder seems to be a proxy for making black communities more white.  

There is a problem, we might understand what is causing it, but no one really has a solution.

Collaborative Practice (Malpractice?)

All too often the divorce process is destructive.  Spouses emerge at the other end with almost half of what they had before and they like their spouse even less.  Collaborative law seeks to avoid unnecessary adversarial conflict and find a solution that is best for all parties.  The other benefit is that it is generally cheaper for everyone.  Many times litigants can “make the pie bigger” by discovering the underlying needs and objectives of all parties.  Our entire legal system compensates everything with money damages, but many times looking at what people want that money for—or why they want it, can reveal better ways of resolving disputes.  Sounds good right?

Collaborative representation is not for everyone.  One attorney writes on her blog: “If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you.”  That’s fair.  But when does collaborative practice become MALpractice or an ethics violation? 

(Yes, attorneys please send me hate email for posting this.)

California attorneys must follow the CA Rules of Professional Conduct.  Rule 3-110 requires every attorney to act with reasonable diligence.  Many cases state that this diligence also includes “acting with dedication and deal, taking whatever lawful and ethical steps are available to vindicate a client’s cause.”  Uh oh.  That required dedication and zeal may yield the exact destruction that the collaborative attorney is trying to avoid. 

The ABA Model Rules (a national standard) allow for attorneys to limit their scope of representation, such as limiting representation to collaborative matters.  California has no such rule, but some case law supports allowing attorneys to limit the scope of their representation.  There is no California case on point regarding whether or not a representation agreement to limit one’s representation to collaborative matters is effective in barring a claim that the attorney did not act with adequate zeal.  So, until then, attorneys need to:

1) Make sure that collaborative clients understand the process and want it;

2) Include in the written fee agreement a reference to the scope of representation—as collaborative and not adversarial; and

3) Be flexible enough to recommend to the client they stop the collaborative process if it is no longer in their best interest.

Gang Injunctions (goodbye due process)

Rising gang crime in the 1980’s and 1990’s provided motivation for the criminal justice system to “get tough on crime.”  Even living in a smaller community in Ventura County—one doesn’t have to look too far to find crime.  In 2009 in the quiet City of Camarillo we had 9 rapes, 62 vehicle thefts, and over 1000 property crimes in all.  Motivation to combat crime combined with creativity resulted in the implementation of gang injunctions.  Even those who know that gang injunctions exist do not understand how they work (and you will be surprised).  In addition, scholars who have studied gang injunctions have found they are not effective against crime.  Not only is the efficacy of gang injunctions questionable, their legal legitimacy is tenable at best.  Three Supreme Court decision regarding similar schemes indicate that gang injunctions might be invalidated if they are challenged in the Supreme Court.

Issuance of Civil Gang Injunctions (public nuisance run amuck)

A civil gang injunction is created by a lawyer from the County Counsel or District Attorney’s office filing a civil lawsuit alleging that a gang and its members are creating a public nuisance.  In California, Civil Code § 3479 defines public nuisance as selling drugs, being indecent or “obstruct[ing] the free passage or use” of public areas.  Frequently the lawsuit will name the gang and some of its members, but the lawsuit can be limited to a suit against the gang itself.  Usually testimony consists of police officers remarks regarding the gang and a few community members who don’t feel safe.  Even if individuals are sued as a part of the gang injunction, since it is a civil action, the state is not required to provide them counsel.  So—you can be named in a civil gang injunction suit and you have no right to an attorney.  

Service with a Gang Injunction (what due process?)

Once a gang injunction has been issued, police officers can serve it on anyone they want.  After they serve it on someone—they are included in the gang injunction and have no scheduled opportunity to fight their inclusion and also have no right to counsel.

What do gang injunctions enjoin?

A copy of activities typically enjoined by a gang injunction is available here.  It prohibits being present in public with another gang member or gang “associate” (whatever that means).  It prohibits riding a bike recreationally.  It prohibits loitering (standing on the corner).  Most of the activities prohibited by gang injunctions are not illegal activities in and of themselves.

Civil Injunction With Criminal Penalties

Although gang injunctions are civil, violating them is contempt of court—a crime punishable by up to 6 months in jail and a $1000 fine.  Violators are afforded counsel for the first time when they are charged with violating the injunction.  If violators plead guilty (in order to get probation and not jail time) they have effectively admitted they are a member of a gang.  In any future injunction or other action—the prosecution can use their previous plea as proof of gang membership and they can be estopped from denying gang membership in the future.  When gang sentencing enhancements can increase sentences up to 20 years, a plea bargain for a simple gang injunction can have sweeping effects.

Efficacy of Civil Gang Injunctions

One of the best studies on the efficacy of gang injunctions was done by Jeffrey Grogger of the Harris School of Public Policy at the University of Chicago.  His study concluded that injunctions reduced violent crime by 5 to 10 percent.  However, he only followed these affects for one year.  Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, 45 J.L. & Econ. 69, 89 (2002).  The ACLU of Southern California studied the efficacy of the Blythe Street injunction in Los Angeles and found that not only did in not result in a crime reduction—it increased crime in the neighborhoods surrounding the injunction.  Author Beth Caldwell’s article on gang injunctions makes recommendations for making gang injunctions more effective and fair.  These recommendations include: 1) creating a way for people to “get out” of injunctions after being included, 2) create exceptions for non-criminal behavior like recreation, 3) exempting non-criminal activities between family members (like a father and son walking down the street), 4) creating a mens-rea (intent) requirement for a violation to occur, and 5) ending the practice of adding additional people to the injunction without a hearing.  Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 249 (2010).

Supreme Court Decisions

Papachirstou v. Jacksonville (1972): Vagrancy ordinance which outlawed "wandering or strolling around from place to place without any lawful purpose or object,” was declared unconstitutionally vague. 

(Void for vagueness)

Kolendar v. Lawson (1983): Law that allowed police to demand identification and an accounting of one’s whereabouts when a person was “loitering or wandering” was unconstitutionally vague because it gave excessive discretion to the police.

(Void per arbitrary enforcement—too much discretion)

City of Chicago v. Morales (1999): An ordinance's vague definition of “loitering” and the resulting lack of notice it provided made it unconstitutional.

(Void per arbitrary enforcement—too much discretion)

Why No Challenges?

One need not be a legal scholar to see that gang injunctions could be challenged on the grounds that 1) they are not effective, 2) they are void for vagueness, or 3) they are arbitrary because they give police too much discretion.  Why hasn’t anyone challenged a gang injunction and brought these arguments before the Supreme Court?  The socioeconomic class impacted by gang injunctions does not have the resources to combat their use.  In addition, the lack of a right to counsel until one has been charged with a violation is generally too little too late.  Every politician wants to look tough on crime.  Every citizen wants to feel safe.  Although politicians may win votes and citizens sleep better at night, gang injunctions are causing more harm than good and are probably unconstitutional.