“Knee Deep In The Water Somewhere . . .” Plaintiff Injured by flying coffee cup cannot invoke maritime jurisdiction

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

Virgin islands (pd)
If you are like me, you have probably wondered: If I were standing on a boat in the Virgin Islands and was injured when someone tossed "an empty insulated coffee cup" at me, could I invoke a federal court's maritime jurisdiction? Well, we now have the answer in the form of the Third Circuit's opinion in Hargus v. Ferocious and Impetuous, LLC.

In Hargus, plaintiff was a passenger on a boat, the "One Love," which was owned by Ferocious and Impetuous, LLC. He rented the boat along with some friends to sail from St. Thomas to various points in the U.S. Virgin Islands. Hargus was standing on the deck of the boat while it was anchored in "knee deep" water, close to shore. Some of the other passengers, who were standing on shore, threw beer cans at Hargus (the opinion does not explain why they did this). Upon seeing this, the captain of the boat, who was standing nearby the passengers who threw the beer cans, threw "an empty insulated plastic coffee cup at Hargus" (the opinion does not explain this either). The coffee cup hit him in the temple. He did not lose consciousness or complain about any injury at the time, and the boat continued on its voyage without further incident.

Two days after the incident, plaintiff sought medical attention after experiencing pain and impaired vision, which he attributed to being hit by the coffee cup. He was diagnosed with a concussion and a mild contusion. (The opinion notes that he had a history of head trauma, having suffered 10-12 prior concussions.) He was not prescribed any medication and was allowed to return to work without restrictions. He did not seek additional treatment until one year later when he went back to the doctor, complaining of headaches, memory loss, mood swings, and neck pains.

Continue reading ““Knee Deep In The Water Somewhere . . .” Plaintiff Injured by flying coffee cup cannot invoke maritime jurisdiction”

Thank You, Captain Obvious — It Is Improper To Throw Your Records In A Dumpster In Advance Of A Lawsuit

 by:  Peter J. Gallagher (@pjsgallagher)

When most litigators hear the term “spoliation” nowadays, they probably think of emails, servers, document retention policies, and back-up tapes. But the Appellate Division recently reminded us that old-fashioned spoliation is still alive and well (and improper).

In Hess Corporation v. American Gardens Management Company, plaintiff sued various single-purpose entities with which plaintiff had contracted to sell oil and gas. Plaintiff also sued the individual owner of all of these entities, which were essentially judgment proof, arguing that it was entitled to pierce the corporate veil and hold him liable because he had co-mingled funds and fraudulently conveyed and diverted assets from the various corporate entities for his personal use.

During discovery, plaintiff served the individual defendant with a document request. The individual defendant failed to respond and his answer was stricken. He later moved to reinstate his answer, first arguing that he could not answer the discovery request without implicating his Fifth Amendment right against self incrimination (which the court rejected) and then claiming that he did not have many of the documents requested. Based on the latter, the court vacated its prior order and reinstated his answer.

 

Continue reading “Thank You, Captain Obvious — It Is Improper To Throw Your Records In A Dumpster In Advance Of A Lawsuit”