Ever hear of the "trivial defects doctrine"?

As Judge Calabresi writes in his opening paragraph, this is a routine trip and fall case. A routine tort case that was filed in federal court, that is, because the plaintiff is suing the Transportation Security Administration, also known as the TSA. The Court of Appeals finds that plaintiff's case is not substantial enough for a lawsuit.

The case is Coyle v. United States of America, issued on March 30. When plaintiff was arriving at Idlewild Airport in New York City after a trip from Fort Lauderdale, she tripped on the rubber matting near the TSA screening machines, breaking her nose. She argues that the mat created a danger for travelers. She sues under the Federal Tort Claims Act, for which the United States can be held liable. The question here is whether the U.S. breached its duty of care to Coyle. If it did, then summary judgment is not proper and Coyle can win at trial.

There will be no trial because summary judgment was properly granted, the Court of Appeals (Calabresi, Lohier and Park) rules. She loses under the "trivial defect doctrine," a relatively obscure rule that exempts the defendant from tort liability for "negligent maintenance by reason of trivial defects on a walkway . . . as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection." Never heard of this doctrine? Neither did I.

Based on Coyle’s testimony as well as the photographs of the mat and its surroundings in the TSA screening area that Coyle presented, we conclude that TSA’s use and placement of the mat over which Coyle tripped constituted a trivial condition, and hence can be held to be non-negligent as a matter of law. . . . This was not a situation where Coyle was “naturally distracted from looking down at [her] feet” and for that reason did not notice that a mat was on the floor. And Coyle has made no claim that the terminal was dimly lit, or crowded, or even that she was in a rush to make her flight. Indeed, even with the delay caused by her fall, there was still nearly an hour between Coyle leaving the TSA screening area and her flight’s departure. In the absence of any such variables, the presence of a floor mat placed on the floor, even a one-inch thick black mat on a black floor, is—under the triviality doctrine—simply not a sufficiently dangerous condition to constitute negligence

High school basketball protest gives rise to free speech claim

This is an unusual case, but not so unusual that the defendants are entitled to qualified immunity as a matter of law. It involves public school parents who did not like how the girl's high school basketball coach was managing the team. It turned into a First Amendment case.

The case is Frierson v. Reinisch, a summary order issued on March 26. Plaintiff was one of the student-athlete's parents. He met with the student-athletes who were contemplating some kind of bold action to protest the coach. Some suggested the girls basketball team walk off the court during a game. No such walk-out took place, but Reinisch,  the athletic director for the Troy City School District, had heard about all of this and investigated the "rumor" of a student protest. A videotape from the school showed plaintiff meeting with some of the players. There was no audio. Reinisch next told plaintiff that he was banned from attending future school district sporting events.

The district court said plaintiff has properly asserted a First Amendment case, and that the law was clearly established that, if plaintiff's allegations are believed by a jury, defendants cannot invoke qualified immunity, which attaches when the case law on the precise issue raised by the case is unclear and the defendant public officials are therefore not on notice that they are violating the Constitution. The Second Circuit (Carney, Wesley, and Menashi) affirms, and the case now proceeds to trial.

The law was clear for a case like this because the Second Circuit held in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017), had already addressed a case like this. "In the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as 'a limited public forum' and the school may restrict access to a limited public forum only when (1) 'its restrictions are reasonable and viewpoint-neutral,' or (2) 'there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.'”

The facts in Perry are similar to this case. In Perry, the father "was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s 'verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.'” Since the jury could find that the father in Perry posed no threat to anyone and the principal's motive in banning him from future sporting events was retaliatory, the father had a case. That's the situation before the Second Circuit in Frierson.

Court of Appeals will not revisit Trump Twitter First Amendment case

The Second Circuit has declined to revisit its case from last year holding that the president's Twitter account is a public forum and therefore cannot be censored by the president under the First Amendment. The president was blocking his critics who responded to his Twitter tweets. Judge Parker writes a separate opinion in support of the decision not to disturb last year's ruling, but two judges (both of them Trump appointees) write that the Court should take another look at the case and find that the president's Twitter account is not an arm of the government.

The case is Knight First Amendment Institute v. Trump, issued on March 23. The Second Circuit initially decided this case in ... The U.S. government ask the full Court of Appeals to rehear the case en banc, but the Circuit declines to do so. This is not an en banc court. The Second Circuit takes the view that en banc rulings harm collegiality and are presumed correctly decided. That does not stop aggrieved parties from trying.

Here is how Judge Parker opens his ruling.

This case arises from the President’s use of the @realDonaldTrump Twitter account (the “Account”) as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump, we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that when the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.

Judge Parker addresses the dissenter's view that the Twitter account is Trump's private account and not subject to First Amendment standards. He reprints some of Trump's tweets announcing policy on Iran and other foreign matters, demonstrating that the president uses Twitter to communicate federal policy. While the dissenters claim the President does not exercise “some right or privilege created by the State” when he blocks accounts on Twitter, in part because Trump began using the account before he became president, Judge Parker notes that 

When the President tweeted about Iran he was speaking in his capacity as the nation’s chief executive and Commander‐in‐Chief. If that is not a “right or privilege created by the State” it is difficult to imagine what might be. By the same token, when he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.

Supreme Court makes it harder to win Section 1981 contract discrimination cases

The Supreme Court has ruled that the federal statute prohibiting racial discrimination in the making of contracts requires the plaintiff to prove that racial discrimination was the "but-for" cause of the contract breach. This ruling rejects the "motivating factor" test in the Second Circuit. This case continues the trend that began more than 10 years ago when the Court began interpreting various employment discrimination statutes to require "but-for" causation. That includes the Age Discrimination in Employment Act and Title VII's anti-retaliation provisions. 

The case is Comcast Corp. v. National Assn. of African American-owned Media, issued on March 23. That's right, in the midst of a global pandemic, the Supreme Court is forging ahead. Section 1981 was enacted in 1866, post-Civil War. It makes it unlawful to discriminate in the making and enforcement of contracts. This statute applies to employment cases, including at-will employment relationships, as the Second Circuit held in Lauture v. International Business Machines, 216 F.3d 258 (2d Cir. 2000), a case that I briefed.

Section 1981 does not provide for a causation standard. That means the Supreme Court will apply the common-law causation test, which is the but-for standard. Writing for a unanimous Court, Justice Gorsuch states that "it is textbook tort law that a plaintiff seeking redress for a defendant's legal wrong typically must prove but-for causation." The Court explains how this works:

Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action.

While the statute does not expressly allow for private lawsuits to enforce its provisions, the Supreme Court in 1976 said the statute implies such a claim. The Court notes that it interpreted the statute this way when it was routinely implying causes of action in federal statutes (something the Court is no longer included to do). It was a different Court in the 1970s, more hospitable to civil rights. But the current Court is not going to upend those decisions. Instead, it says that even when it was holding that statutes implied that private lawsuits can enforce the statute, the Court "usually insisted on legal elements at least as demanding as those Congress specified for analogous causes of action actually found in the statutory text." Looking to the statutes that Congress enacted at the time it passed Section 1981, the Court says that the criminal enforcement provisions for this kind of racial discrimination (and related statutes prohibiting racial discrimination in the sale of real estate) required the "but-for"causation test. The Court rejects the "motivating factor" test even though Title VII of the Civil Rights Act of 1964 (which also prohibits racial discrimination in employment) applies that test in disparate treatment cases. In the end, the Court says, these are separate statutes with different wording. If we want Section 1981 to impose a more lenient burden of proof on plaintiffs, Congress is going to have to amend the statute.

What this means for plaintiffs is that it is now a little harder to win Section 1981 lawsuits. The motivating factor test under Title VII's disparate treatment provision does not require the plaintiff to show that racial (or gender, religious or national origin discrimination) is the determining or 51% percent reason for the discrimination. But that heightened burden applies under Section 1981. As recently as November 2019, the Second Circuit applied the motivating factor test to Section 1981 cases. See Khanna v. MUFG Union Bank, 785 Fed. Appx. 15 (2d Cir. 2019). So, under this ruling, should the jury decide to thread the needle that way, a racial discrimination plaintiff can win her claim under Title VII but lose under Section 1981.

pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)

pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)

$15 million verdict on child sexual abuse case is upheld

The Court of Appeals holds that a $21 million judgment against the defendant in a child sexual abuse case was not excessive.

The case is Mirlis v. Greer, issued on March 3. I wrote about other aspects of the case at this link and that link. Now we talk about damages. What you should know about damages is that juries are not given much guidance on what to award victorious plaintiffs. So the jury gives an amount it deems fair, and the trial and appellate courts then figure out over the next year or two whether the amount was too much. The courts rely on similar cases to determine whether the damages fell within the reasonable range.

In federal court, appellate judges determine whether jury verdicts are too high by asking whether the amount "shocks the conscience." That standard of review is deferential to the juries. Under a Supreme Court ruling from the 1990s, Gasperini v. Center for the Humanities, state-law verdicts in federal court in New York are afforded less deferential review under the CPLR. This case applies Connecticut law, so "shocks the conscience" does not apply, though the standard incorporates it somewhat; the standard is whether the award "falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption."

This judgment is not too high. In one case from 2019, a Connecticut court upheld a $15 million verdict where the defendant sexually abused the plaintiff from the time she was six years old until she turned 17. Another case, against the Boy Scouts, upheld a $7 million award where the victim was sexually abused three times. In Mirlis's case, the evidence shows that plaintiff was sexually abused in a variety of ways for several years, and that his pain and suffering is extensive and will have lifelong consequences. The $15 million pain and suffering award was "undoubtedly high," but not excessive in comparison to other awards, particularly on a "per incident basis." (The rest of the award was for punitive damages and interest).

What happens when a witness invokes the Fifth Amendment during a civil case?

The Court of Appeals has sustained a $21 million judgment against a school administrator whom a jury determined had repeatedly sexually abused one of his students. The Court addresses how trial courts should handle witnesses who invoke the Fifth Amendment during civil trials.

The case is Mirlis v. Greer, issued on March 3. I had an administrative hearing before the State Division of Human Rights a few years ago where the employer invoked the Fifth Amendment during the entirety of his cross-examination. It was quite a scene. One question after another, we got the Fifth Amendment. Our client alleged she was fired because of her transgender status. We won the hearing. There is some case law on the meaning of the Fifth Amendment during civil cases. This case provides additional guidance.

During trial, Greer invoked the Fifth Amendment on a series of questions relating to whether he sexually abused plaintiff and other boys. (The Fifth Amendment protects you from the right of self-incrimination, requiring prosecutors to prove their criminal cases through other evidence, unless the criminal defendant waives the privilege. In civil cases, the concern is that the witness will incriminate himself, which may prompt the unpleasant spectacle where the witness will not answer questions that may incriminate him). The trial court instructed the jury that Greer has the right to take the Fifth and that the jury may, but is not required to, infer that the answers would have been adverse to Greer's interests. This instruction was proper, the Court of Appeals (Chin, Carney and Sannes [D.J.]) holds, in light of Brinks v. City of New York, 717 F.2d 700 (2d Cir 1983), which held that the district court may tell the jury that a "witness has a constitutional right to define to answer on the ground that it may tend to incriminate him and you may, but need not, infer by such refusal that the answers would have been adverse to the witness' interest."

We also have the interesting question of how the trial court handles the invocation of this privilege before the jury. Here, plaintiff's lawyer asked Greer a series of questions about sexual abuse. Each question was followed by the Fifth Amendment privilege. The concern is that plaintiff's counsel, aware that the witness will invoke the privilege for all questions, will ask fact-specific questions designed to suggest to the jury that the answers to those questions would have been "yes" but for the privilege. That concern was first raised by Judge Winter's dissent in Brinks. In this case, while invocation of the Fifth Amendment was "damning," it was not unfairly prejudicial (and therefore no reversible error on the trial court's part) because (1) Greer's refusal to answer these questions was "telling" as "silence is often evidence of the most persuasive character," (2) Mirlis did provide evidence of the sexual abuse, so the adverse inference was corroborated; (3) the district court gave a proper limiting instruction, as discussed above; and (4) Greer asserted the privileged inconsistently, actually answering some questions (in the negative) about whether he had sexually abused plaintiff, and he also invoked the Fifth on some questions that had no connection to any criminal conduct. As the trial courts have much leeway in regulating their trials, it did not abuse its discretion in supervising how Greer invoked the Fifth Amendment.

When can a blogger recover a non-party's video testimony?

The Second Circuit has used a child abuse case to clarify the rules guiding when the district courts may release private information about non-party witnesses. The Court of Appeals rules in favor of the non-party witness, who fought to prevent the release of a video deposition in which he described how a former teacher had sexually abused him.

The case is Mirlis v. Greer, issued on March 3. The plaintiff sued his former teacher, Greer, for sexual abuse. The non-party witness, Hack, gave deposition testimony about the sexual abuse to which Greer had subjected him several decades earlier. Hack, now a teacher himself, did not want to testify at trial. He ran away from process servers when he was teaching a class, abandoning his students. Since he did not testify at trial, the jury saw portions of the video deposition. After the jury awarded the plaintiff $21 million in damages, a Connecticut blogger who'd been covering the case asked the district court to release the video deposition in its entirety. The district court granted that motion, but the Court of Appeals (Chin, Carney and Sannes [D.J.]) reverses.

In order to obtain records like this, they must be "judicial documents." The video deposition is such a document, defined as "any item entered into evidence at a public session of trial" except for matters entered under seal. Courts also presume that the public should have access to such documents, as "such access is critical" in "enabl[ing] the public to monitor the actions of the courts and juries." The hard question is how courts should balance the interest between public access and any countervailing interest, such as the privacy of third parties. The last major ruling on this final issue came in 1987, in the pre-Internet CBS case, 828 F.2d 958 (2d Cir 1987). While the district court agreed to release the video deposition on authority of the CBS case, the Court of Appeals says that was wrong.

The CBS case is different from this case. In CBS, the information was public and had already been publicized. In the Mirlis case, the video is personal in nature and, importantly for the Court of Appeals, the ubiquity of the Internet can result in this video remaining available forever. That changes the equation. The Court of Appeals believes the Connecticut blogger who wants this video has "unsavory motives" in seeking the video, and that his blog "demonstrate[s] considerable personality hostility" toward Greer and Hack, the witness, such that he may use the video to "humiliate and harass" Hack. The Court of Appeals clarifies that the motives of the individual seeking the judicial records is relevant to whether the trial court should release the information. As the Court finds the blogger has impure motives, that weighs heavily against releasing the video deposition. Hack's privacy interests were also improperly discounted by the district court.