School Not Liable For Injuries To Student During Student/Teacher Basketball Game

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

My children’s school has a nice tradition for the fifth grade students. Towards the end of the year, the fifth graders play a basketball game against a group of teachers and parents. It is a fun event. I have played in it twice, once against my daughter and once against my oldest son. In each game, I was called for a foul. In each game, best as I can recall, I was the only person called for a foul. (Not to sound too much like Draymond Green, but neither call was warranted. My kids flopped.) But with this history in mind, I read C.H. v. Rahway Board of Education with some interest.

In C.H., plaintiff was an eighth grader and a member of her school’s basketball team. At the end of the school year, she was part of a team of students that played a team of teachers and school personnel. The game was an annual fundraising event, and participation was voluntary. There was at least one referee officiating the game, and five teachers who did not play in the game also attended to help supervise.

During the game, while going up for a rebound, plaintiff came into contact with a teacher, landed awkwardly, and was injured. Plaintiff testified that she and the teacher were close to the basket vying for the rebound. The teacher was between her and the basket with his back to her. When the shot was taken, the teacher jumped up and backwards (towards plaintiff), while plaintiff jumped up and forward (towards the rim, and the teacher). Their upper bodies collided. Plaintiff fell and injured her knee.

Plaintiff sued the teacher involved in the incident, the school, and the town board of education. After discovery, the trial court granted defendants’ summary judgment motion and dismissed plaintiff’s lawsuit. Plaintiff appealed.

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Judge Shopping Is Bad

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

That is the take home message from the Appellate Division’s recent decision in Goldfarb v. Solimine.

In Goldfarb, defendant promised to hire plaintiff to manage defendant’s family’s assets. Before getting written confirmation of defendant’s offer, plaintiff quit his job with an investment firm. Defendant then reneged on the promise, and plaintiff sued. At trial, the jury sided with plaintiff and awarded him damages based on the difference between the base salary defendant promised and what plaintiff actually earned at a new job he found after defendant reneged on that promise.

Both sides appealed on a number of issues, the most interesting of which had nothing to do with the underlying facts of the case. Plaintiff appealed the denial of his motion to recuse the trial judge, which plaintiff filed “after learning that a defense attorney, in an ex parte communication, sought the judge’s assignment to the case, and the judge responded by specifically requesting the assignment from the presiding judge.” The Appellate Division agreed with plaintiff and reversed the trial court’s decision on the motion to recuse.

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“BorgataBabes” Lawsuit Revived As Trial Court Is Chided For Ignoring Appellate Division

Some of the best parts of the movie “My Cousin Vinny” are the interactions between Vinny, played by Joe Pesci, and Judge Haller, played by the late Fred Gwynne. In one scene, Judge Haller admonishes Vinny for failing to dress appropriately for court. When Vinny comes to court the next day wearing exactly the same thing he had on the day before, the following exchange occurs:

Judge Haller: Mr. Gambini, didn’t I tell you that the next time you appear in my court that you dress appropriately?

Vinny: You were serious about that?

Judge Haller was serious, and Vinny spent a night in jail as a result. I was reminded of this scene when I read Schiavo v. Marina District Development Company, LLC d/b/a Borgata Casino Hotel & Spa, where the Appellate Division had to remind the trial court that it was serious about a prior decision.

Schiavo has been pending for more than a decade. Plaintiffs worked as “costumed beverage servers” in the defendant’s “BorgataBabes” program. (Disclaimer: This is the actual name of the program, not my name for it.) They claimed that “defendant’s adoption and application of personal appearance standards (PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and . . . resulted in adverse employment actions.”

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Being A Compulsive Gambler Is No Defense To Breaching Line Of Credit With Casino

In Harrah’s Atlantic City Operating Co. v. Dangelico, plaintiff, a casino, lent defendant, a “casino gambler,” $160,000 against a $200,000 line of credit. The loan was secured by checks drawn on defendant’s bank account, coupled with defendant’s representation that he had sufficient funds in that account to cover the loan. Want to bet how this story unfolds?

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Three Contracts, But Only One Arbitration Provision, Means Arbitration Cannot Be Compelled

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

What happens when the same parties enter into three contracts, all related to the same underlying services, the first two of which require the parties to litigate any disputes while the third provides that the parties “may” settle any disputes through binding arbitration? When a dispute arises, do you have to sue in court, can you arbitrate instead, if one side chooses arbitration, is the other side stuck with that choice? These were the issues in the Appellate Division’s recent decision in Medford Township School District v. Schneider Electric Building Americas, Inc.

In Medford Township, plaintiff contracted with defendant to “design and implement upgrades to several of [plaintiff’s] schools and its transportation and operations center.” The initial contract between the parties did not contain an arbitration provision. To the contrary, it contained a provision requiring that any disputes be resolved under the law of the state where the services were provided, and in the “federal, state, or municipal courts serving the county in which the services [were] performed.”

Some time later, plaintiff issued a request for proposals (RFP) for a related job. The RFP did not contain an arbitration provision. Instead, it required the winning bidder to agree that “any action or proceeding that [arose] in any manner out of performance of the RFP [or the resulting contract] . . . shall be litigated in the Superior Court of New Jersey, Burlington County.”

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Supreme Court : Classwide Arbitration Unavailable Under Ambiguous Agreement

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Keith Richards once said: “I look for ambiguity when I’m writing because life is ambiguous.” This would probably be number one on the list of things a lawyer would never say. Lawyers generally do not like ambiguity. Courts don’t like it either, including the U.S. Supreme Court, and including when it evaluates the availability of class arbitration under an arbitration agreement. Several years ago, in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Supreme Court held that courts could not compel class arbitration when the underlying agreement was “silent” on the issue. In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court extended this holding to ambiguous agreements, holding that class arbitration is not available under an arbitration agreement that is ambiguous about the availability of such arbitration.

Plaintiff in Lamps Plus was a company that sold, you guessed it, “lighting fixtures and related products.” In 2016, the company suffered a data breach that revealed the tax information of approximately 1,300 of its employees. Soon after, a fraudulent tax return was filed in defendant’s name. He sued in California federal court on behalf of himself and a putative class of employees whose tax information had been compromised. But, like most of plaintiff’s employees, defendant had signed a broad arbitration agreement when he started working at the company. Thus, in response to defendant’s complaint, plaintiff moved to compel arbitration on an individual, not classwide, basis. The district court granted the motion to compel arbitration, but rejected plaintiff’s request for individual arbitration. The U.S. Court of Appeals for the Ninth Circuit affirmed.

The Ninth Circuit determined that the arbitration agreement was ambiguous on the issue of classwide arbitration. So it applied the state law doctrine of contra proferentem – an equitable principle under which any ambiguities in a contract are construed against the drafter – and construed this ambiguity against plaintiff. The Ninth Circuit held that Stolt-Nielsen was not controlling because the arbitration agreement in that case was silent on classwide arbitration, while the arbitration agreement in Lamps Plus was ambiguous on the issue. The Ninth Circuit used contra proferentum to resolve that ambiguity.

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Segregated Swimming Pool Not Allowed, Even When Purportedly Necessary To Prevent Discrimination

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Some time ago, I wrote a blog post about a sign I saw at the beach, “Swimmers Only Between Flags.” It was a lighthearted post about the limitations of seemingly “plain” language. In Curto v. A County Place Condominium Association, the U.S. Circuit Court for the Third Circuit addressed a more serious issue involving swimming restrictions. Curto involved a challenge to a condo association’s policy of having gender-specific swimming hours at the community pool. The case presents an interesting intersection of discrimination — gender discrimination that was purportedly necessary to prevent religious discrimination. Read more about it below, and stay tuned because I am certain that the Curto decision will not be the last word on the issue.

In Curto, plaintiffs were residents of a condominium, A Country Place, which was governed by the defendant community association. A Country Place is a “55 and over,” age-restricted condominium located in Lakewood, New Jersey. As the Third Circuit noted, “Lakewood has a large and growing Orthodox Jewish population, and so does A Country Place.” Nearly two-thirds of defendant’s residents were Orthodox when the underlying events in Curto occurred. Defendant established single sex swimming hours for the community pool to accommodate “the Orthodox principle of tznius, or modesty, according to which it is improper for men and women to see each other in a state of undress – including bathing attire.”

Prior to 2016, defendant only had “a handful of sex-segregated swimming hours throughout the week.” But, “as the Orthodox membership at A Country Place increased, [defendant] increased the number of sex-segregated hours.” By 2016, over two-thirds of all swimming hours throughout the week were sex segregated.

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