Monday, October 27, 2008

I'm Getting Married !!!

(top to bottom: Superman and Lois; Anakin and Padme; The Doctor and Rose). 

I'm getting Married November 1st to my wondeful fiance, Stephanie Lifrieri.


Wednesday, October 22, 2008

Susan Herman named new head of ACLU

Susan Herman, my first year Constitutional Law professor, has been named the new head of the ACLU. (See AboveTheLaw).  For those of you who did not have the good fortune of taking a course with her, Prof. Herman is an incredibly nice woman who treated her students with a great deal of respect, and obviously loved her subject area.  Congrats Prof. Herman!

Tuesday, October 14, 2008

Drunk Driving Accidents And Similar Alcohol-Related Injuries Can Result In Liability For Drinking Establishments

New York's "Dram Shop Act" makes bars, restaurants, and other providers of alcohol liable for injuries caused by its intoxicated patrons. This can include car accidents that occur after the drunken patron leaves (motor vehicle accidents are by far the most common of these claims), and assaults that occur in the bar or that can be reasonably connected with the assailant's drinking at the bar. 

Each state's Dram Shop Act is phrased a little differently, but they are all very similar.  New York's Dram Shop Act creates a cause of action against establishments that provide alcohol to persons who are “visibly intoxicated” or “habitual drunkards.” Under N.Y. General Obligations Law § 11-101,

Any person who shall be injured… by any intoxicated person… shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.
“Unlawful selling” is defined in Alcoholic Beverage Law § 65, which states:
No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to… any visibly intoxicated person [or] … any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.
What constitutes being "visibly intoxicated," is dictated by common sense, and will depend on factors such as “unsteady gait, slurred speech, glazed and bloodshot eyes, and smell.” Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785, 786 (N.Y. App. Div. 2d Dep't 1998).  Courts will allow a case to go to a jury where ther is evidence that the person had a "good buzz" or was "a little drunk." See Ryan v. Big Z Corp., 210 A.D.2d 649, 651, 619 N.Y.S.2d 838, 839 (3d Dep't 1994)(finding a question of fact as to whether assailant was visibly intoxicated where witness described assailant as having “a very good buzz” based on “general rowdiness, glassy eyes… and sudden display of anger”).

Blood Alcohol Content tests may be enough to show that a person was visibly intoxicated in the establishment where they were imm immediately prior to the accident, but -- without more -- is not sufficient to prove liability against establishments they may have visited earlier in the night.  See Romano v. Stanley90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997). 

 “There must be ‘some reasonable or practical connection’ between the sale of alcohol and the resulting injuries," but “proximate cause, as must be established in a conventional negligence case, is not required." Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 477, 731 N.Y.S.2d 207, 208 (2d Dept. 2001).  But see Sherman v. Robinson80 N.Y.2d 483, 591 N.Y.S.2d 974 (1992)(finding that a liquor store was not liable where it sold alcohol to a minor, who gave that alcohol to other minors, who were then in a car accident).

In some states, such as New Jersey, an intoxicated person who injures themselves has a cause of action against the establishment that allowed them to become intoxicated (subject to an assessment of their own comparative fault). See NJSA  2A:22A-5 (New Jersey's Dram Shop Act);  Lee v. Kiku Rest., 127 N.J. 170, 603 A.2d 503 (1992).  

New York does not allow a dram shop cause of action in favor a person who become intoxicated and injures themselves, but will allow the children of such a person to sue for the loss of a parent.  Matalavage v. Sadler, 77 A.D.2d 39 (2d Dept. 1980).


* Bar Fight Injury Triggers Dram Shop Claim Where Assailant's "Speech Was Slurred and His Eyes Were Red and Watery."

Drunk Driving Dunce Hat (Long Island Legal News)

Monday, October 13, 2008

Around The Blogosphere: Depression Edition

I haven't done an "Around the Blogosphere" post since late July, and a lot has happened. The economy collapsed; there was a hurricane or two; and we are on the verge of a new election. There is a silver lining, however: we have not swallowed by a black hole (yet). 

* Nicole Black posted a letter from a Texas attorney, Dale Markland, on her Legal Antics Blog. Mr. Markland had to reschedule a deposition because of the recent hurricane that hit Texas, and one of his opponents apparently gave him a very hard time about it. To give you a gist of the letter, one line is: "I am sorry that the Houston Public Works Department had to use a fire hose to blow human feces out of my yard on the day our deposition was scheduled." There is rarely ever a reason to be a jerk about an adjournment. I had a more junior associate ask me the other day (yes -- there are finally associates more junior than me), about adjourning a deposition, and I told him that, in my experience, on the rare occasion I have decided to give someone a hard time about an adjournment, it has quickly come back to haunt me three-fold. 

* From The New York Personal Injury Blog, a New York absentee Ballot was mailed out naming "Barack Osama" as a candidate. Conspiracy theorists should eat that one up. 

* From the CL&P Blog, New York has enacted a new law (really adding State teeth to a pre-existing Federal Law), saying that the first $2,500 from a bank account where social security funds are deposited cannot be frozen. They reviewed a New York Times discussing how New York's Civil Court (for cases worth $25,000 or less) has become the new debtors court. I previously posted about this issue here. The House has passed a credit card holders bill of rights.  A new study shows that new credit card accounts, on average, generate $15 per month in add-on fees; this number, however, goes down as people learn over time how to manage their credit cards.  

* At, humor columnist the Snark has a piece about associate networking on sites such as Facebook, Myspace, et al. I like the Snark, but -- as happens way too often on many blogs -- the piece is addressed specifically to "BigLaw" associates as-if the rest of us don't exist, or don't work at BigLaw firms and so obviously aren't intelligent enough to use the internet. Don't drink the punch young BigLaw Associates; don't drink the punch! 

* The New Legal Writer has a piece on diffusing negative facts or law. Wayne Scheiss' legal writing blog has a good piece on prepositions

* According to Carolyn Elefant, posting on's Inside Opinion's blog, Plaintiffs only win employment cases 15% of the time, she comments on it twice. Serious commentators are realizing that Law School grades are a fraud. Small firms (2-150 lawyers) have experience abanner year

* Above-The-Law comments that Some BigLaw Firms may be switching to performance based bonuses, relying not just on billable hours but also work quality. Heller Ehrman, a very large, very old law firm, has broken up. The economists at the Conglomerate have determined that, even though we are in the midst of "economic armageddon" a law degree is still a great investment based on median salary. (Note of Caution: legal salaries have a bimodal distribution, so people make either above or below, but rarely at, the median -- See here). 

* Also from ATL, the Knights Templar have sued the Pope to undue the 1307 disbandment of the order and siezure of the groups assets.  

* From GeekLawyer, a lawsuit from several students to shut down the Large Hadron Collider has been thrown out. The relief being sought: Save the world! For those of you who are not familiar with it, the Large Hadron Collider was turned on in September and experienced technical difficulties, requiring it to be shut down. The LHC is an enormous underground particle accelerator/collider in Europe. Two sub-atomic particles are spun around at near the speed of light, then slammed into each other, resulting in sub-atomic black holes that scientists can study. Not to worry, however; there is little chance that the machine would create a stable black hole that would swallow the Earth from the inside. Black holes evaporate and, in theory (a very solid theory), the black holes created by the LHC would evaporate in milliseconds. 

Gerry Spence has a post on "The Secret of Winning."  It's worth reading because, well, I like winning.  

* New York State Assemblyman Rory Lancman has started a blog, entitled the "Fiscal Fairness" blog.