Booze And Boating Don’t Mix (But They Do Lead To An Interesting Discussion Of Negligent Entrustment)

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

Boat and beer (pd)Some sets of facts just seem tailor-made for a potential lawsuit. Climbing up a ladder with a chainsaw to cut your neighbor’s tree limbs that are hanging over your lawn comes to mind.  Also on that list, a day out on a boat with your friends from the local bar, more than a few beers, and a jet-ski. Those were the basic facts in Votor-Jones v. Kelly. In that case, what started out as a fun day out at sea for a group of friends became a very bad day for plaintiff and an opportunity for the court to opine on the rarely-invoked tort of negligent entrustment.

In Kelly, plaintiff was “one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner and plaintiff’s boyfriend.” While plaintiff described the event as a “bar outing,” it was not the more formal, “large scale ” “customer appreciation days” that the bar had organized in the past. Instead, it was “small and planned the night prior at the suggestion of the boat’s operator.” Each attendee was required to bring their own food and alcohol. To that end, plaintiff and her boyfriend testified that, on the morning of the cruise, they went to the bar and fulled their cooler with approximately 24 beers and a bottle of wine. The group had a total of four or five coolers like this on the boat.

The attendees had a “tacit agreement” that they would not drink until 4pm, but some apparently ignored this agreement. One defendant acknowledged that she was drinking prior to boarding the boat and plaintiff testified that she saw this woman have “at least three beers on the dock” before the cruise began. Once the cruise started, this same woman was seen with a beer in her hand and was described by plaintiff as being “loud,” “boisterous,” and “excited.” Plaintiff conceded that she did not know if the woman was drunk, but did see her “wobbling on the boat, as was everyone else.”

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Take It Outside: Club Not Responsible For Injuries When Fight Spilled Into Parking Lot

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

Roadhouse (pd)You don't need to be James Dalton to know that bar fights are scary. (If you don't know who James Dalton is, however, you do need to go watch Road House.) Bar fights can also create legal problems for bar owners. For example, do bar owners have a duty to keep their patrons safe from harm caused by fights? In Lloyd v. Underpass Enterprises, Inc. t/a The Harem, the Appellate Division dealt with this issue in the context of a somewhat unusual situation — a fight between two people that started in the club but ended up outside the club, and injured an individual who was not one of the combatants.

In Lloyd, plaintiff was playing "poker tournament style" in a hotel room with some co-workers, including Cecil George. After the game, they decided to visit a gentleman's club. George invited a friend, who had not been at the poker game, to join them at the club. About an hour after arriving, plaintiff saw George fighting with someone who "may have been" the friend George invited to the club. The club's bouncers broke up the fight, "escorted George and the other combatant outside to the parking lot," and then waited near the club's entrance. Plaintiff followed them out. The Appellate Division described what happened next:

[Plaintiff] was standing near George when he saw the other combatant rushing quickly, looking "menacing and  coming  at  [them] with  intent." [Plaintiff] stepped in between George and the person  rushing at them to "put  [him]self  as  a  barrier  between  [the other combatant] and [George]." [Plaintiff] stated  "[e]verything  happened  quickly." He awoke four days later in the hospital, having sustained a serious head injury.

Plaintiff sued the club. The club moved for summary judgment, and the trial court granted its motion. Plaintiff appealed, but the Appellate Division affirmed the trial court's decision.

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Court Approves Service Of Complaint Via Facebook, No Word On How Many “Likes” It Received

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

Facebook (pd)Facebook is useful for a lot of things — humble bragging about your children, posting professionally taken candid photographs of your smiling family, announcing your engagement/marriage/pregnancy/baby's gender to several hundred of your closest friends, etc. In K.A. v. J.L., a New Jersey court added another item to this list. After observing that courts in other jurisdictions were almost evenly split on the issue, the court allowed plaintiffs in that case to serve defendant via Facebook. (When it researched the issue, I assume the court reviewed one of my prior posts about two New York courts that also allowed service via Facebook.)

K.A. involved very unusual facts. Plaintiffs sued defendant to "enjoin defendant from holding himself out as the father of their [adopted] son." Defendant, who was not the son's biological father of record, sent the son a friend request over Facebook. The son declined. Defendant then reached out to the son over Instagram, claiming that he was the son's biological father. Defendant allegedly informed the son that he knew where the son was born, and disclosed both the identity of the son's birth mother and that the son had "biological siblings at large." (Plaintiffs allege that defendant also sent a Facebook friend request to the son's sister, who, like the son, declined the invite.) Defendant also "incorporated a picture of [the son] into an image comprised of three separate photographs, each featuring a different person," and purportedly claimed that the collage was a picture of his children. Defendant shared this picture with the public on his Facebook account. Plaintiffs believe defendant obtained the image of the son from the son's Facebook account.

Plaintiffs claimed that defendant was a "complete stranger to them," and that they had no contact with him prior to the events that led to the litigation.  Plaintiffs' counsel attempted to serve cease and desist letters on defendant at his last known address via certified and regular mail. The certified letters were returned as unclaimed, but the letters sent by regular mail were never returned. Plaintiffs then sued, seeking an injunction preventing defendant from contacting their son or claiming to be his father. They sought permission from the court to serve the complaint on defendant via Facebook.

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Not Quite El Chapo’s Escaping Through A Tunnel Under His Shower, But Still An Escape From “Custody”

HandcuffsThere have been two high-profile prison escapes in recent weeks — one in Mexico and one in upstate New York. In United States v. Small, the U.S. Court of Appeals for the Third Circuit dealt with a third escape that was much lower-profile but still interesting. It presented the question of whether an individual could be guilty of the federal crime of escape even if he was never in the physical custody of the federal government or its agents.

In Small, defendant was serving a state prison term when he was convicted of federal tax fraud and sentenced to 135 months in a federal prison. The federal sentence was set to begin after the state sentence expired. To that end, the U.S. Marshal delivered to the state prison a detainer, which "governed Small's transfer to federal authorities upon completion of his state sentence." A few years later, however, the state prison "received documents in the mail, ostensibly from the [federal court], but which in reality were forgeries sent at Small's direction," which purported to vacate Small's conviction and sentence. The forgeries must have been good because the state prison believed them to be genuine and released Small after his state prison sentence ended.

A few months after he was released from state prison, a federal agent learned of Small's release. Federal agents quickly located and arrested Small, charging him with several crimes including escape. Small moved to dismiss that charge on the ground that he was never in federal custody, a requisite element of the federal crime of escape. He then entered an "open plea of guilty" and was sentenced to 60 months in prison on each count of the indictment (to be served concurrently with each other but consecutively to his tax fraud sentence).

 

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Another New York Judge Approves Service Of Process Through Facebook

 by:  Peter J. Gallagher (@pjsgallagher)

On Monday, the Daily News reported on a "landmark" ruling by a Manhattan judge allowing a woman to serve her "elusive husband" with divorce papers via Facebook. The judge order that the divorce papers must be sent to the husband over Facebook "once a week for three consecutive weeks or until acknowledged." According to the article, the husband kept in touch with his wife by phone and through Facebook, but that he had no fixed address and refused to make himself available to be served. After all other conventional methods of service failed — he vacated his last known address in 2011, he had no job, the post office had no forwarding address for him, there was no billing address linked to his prepaid cell phone, and the DMV had no record of him — the judge allowed service through Facebook.

While interesting, this is not actually a landmark decision. Less than one year ago, a Staten Island judge permitted service via Facebook in a similar case. (Obviously, since this took place in my ancestral home, it went unnoticed — the latest proof that Staten Island truly is the "forgotten borough.") In that case, also involving a domestic dispute, a man was allowed to serve his ex-wife with "legal notice that he [did not] want to pay any more child support" via Facebook after more conventional methods of service failed.  The man's ex-wife had moved from her last known address and did not provide any forwarding information to the post office. However, she maintained "an active social media account with Facebook," therefore the judge allowed her to be served through that Facebook account.

In addition, several federal courts have also addressed this issue. For example, in one case, the U.S. District Court for the Southern District of New York held that service via Facebook might not, on its own, comport with due process, but it was acceptable as a supplemental method in conjunction with other, more conventional, methods of service. In a different case, a different judge in the U.S. District Court for the Southern District of New York refused to authorize service via Facebook where the plaintiff could not demonstrate that the Facebook profile that the plaintiff proposed to use for service was in fact maintained by the defendant or that the email address listed on the Facebook profile was accessed by the defendant. Although these cases are among the few to have considered the issue, they appear to describe the approach courts are likely to take when faced with a request to permit service via Facebook — if all other methods are exhausted, or service via Facebook is one of several methods to be employed, and if there is some showing that the individual to be served actually maintains and accesses the Facebook account, then service via Facebook would probably be acceptable.