Res ipsa loquitur wins plaintiff her negligence case

One of the great concepts of American tort law is res ipsa loquitur, which is Latin for "the thing speaks for itself." This point is that certain negligent acts are the result of inherent negligence, such that the very fact that a piano fell out of a 82nd floor window, or 80 jars of olive oil splattered in aisle 7 could only mean one thing, and that these unusual circumstances mean the defendant blew it and plaintiff can satisfy his prima facie case (which normally requires evidence that someone breached a duty, causing harm).

The case is Manhattan by Sail, Inc. v. Tagle, decided on October 5. Plaintiff took a ride on a sightseeing boat in New York Harbor. When the crew raises the forestaysail, they have to pull downward on a halyard and the forestaysail goes upward toward a pulley near the top of the mast. But something went wrong that day. When crewman Biggens went to do this, the halyard got unclipped, and "tugged by gravitational force toward the mast, the freed halyard pulled loose from Biggen's grip and swung back towards the mast where Tagle was seated. The clip at the end of the Halyard swung back towards the mast" and struck Tagle in the head. At trial, Biggens could not explain why this had happened. The trial court dismissed Tagle's case because she did not prove negligence.

The Court of Appeals (Leval, Sack and Raggi) reverses. Not only do they reinstate the lawsuit, but the judges order that the trial enter judgment for plaintiff as a matter of law! Here is the standard for res ipsa loquitur:

Under that doctrine, a fact‐finder may infer negligence merely from the happening of the event that caused the harm if: (1) the event is of a type that ordinarily would not occur in the absence of  negligence; (2) it is caused by an agency or instrumentality under the exclusive control of the party charged with negligence; and (3) it is not due to any voluntary action or contribution on the part of injured party. 

The Court says that res ipsa loquitur is not limited to accidents that could occur only because of negligence. Rather, the plaintiff must show the event is the kind that ordinarily does not occur in the absence of negligence. In this case, plaintiff showed that what had happened to her would ordinarily not happen without negligence. The defendant did not rebut her evidence. "While no doubt things can happen at sea that could cause an extended halyard to slip out of a seaman’s grasp without negligence, Tagle’s evidence was sufficient to show that this does not ordinarily happen without negligence." Simply put, if the workers did their job properly, this accident would not have happened. While you can blame it on the wind or some other external factor, there was no evidence of any such external force. The Court reasons:

A deckhand who carefully exercises the skills required for the seaman’s job will not ordinarily lose hold of an extended weighted halyard—all the more so when passengers are seated in the halyard’s swing‐path. Waves and wind, and the consequent shifting and rolling of the deck, are the normal conditions of the sea, in which seamen must work protecting the safety of passengers and crew. While it is no doubt true that sudden unexpected turbulence can be of such force that a seamen’s loss of control of a line could be deemed non‐negligent, there was no evidence in the record of any such abnormal circumstance that caused the halyard to slip from Biggins’s grasp. As Johnson made clear, the mere possibility that “some external force”—here, perhaps an unusual wave or gust—“might conceivably compel” a seamen to let go of a dangerous halyard is not sufficient reason to reject the application of res ipsa loquitur if this would ordinarily not happen in the absence of negligence, and there was no evidence of any such unusual external force.

Even without res ispa loqutur, plaintiff still wins, as she has established negligence without that theory. The Court says there is no other way to view the evidence, which means plaintiff wins the case.

The inmate wins his appeal

Inmates win their civil rights cases in the Second Circuit more often than you would think. Some win their appeals pro se, which is noteworthy because they are not lawyers and face off against highly skilled state lawyers. Others win their appeal because, after handling the cases pro se in the district court, the Second Circuit assigns them counsel who know what they are doing. In this case, the inmate is represented on appeal by one of the largest law firms in New York City.

The case is Shapard v. Attea, a summary order decided on October 12. Plaintiff says the correction officers punched and kicked him and beat him with a baton, causing serious injuries that required medical treatment. He says this was in retaliation for the grievances that he filed. While the complaint asserts that prison officials found after a hearing that plaintiff had initiated the incident by assaulting an officer, the complaint does not admit nor deny this finding, though the complaint attaches documents produced in connection with the incident in which plaintiff contemporaneously denied any misconduct. He also denied any wrongdoing at his deposition. Eventually, plaintiff pleaded guilty to assault arising from the incident.

Based on that guilty plea, the district court threw plaintiff's case out the window, reasoning that under Heck v. Humphrey, 512 U.S. 477 (1994), "Shapard’s version of the facts 'clearly impl[ies] the invalidity of his assault conviction, which has not been set aside, and consequently [his claims] are
barred by Heck[.]” In other words, the guilty plea means that plaintiff is responsible for his injuries and there is no case because he had assaulted an officer. The district court concluded that plaintiff's civil rights case is undermined by the guilty plea.

The Second Circuit (Jacobs, Cabranes and Wesley) reinstates plaintiff's case. It reasons, "Shapard’s excessive force claims are not Heck‐barred because their favorable adjudication would not 'necessarily imply the invalidity'” of his prior assault conviction." In addition, "the complaint does not deny that Shapard assaulted Officer Attea. Although attachments to the complaint reflect Shapard’s previous denials, the complaint does not necessarily adopt those denials (which were made years earlier, before Shapard pleaded guilty)." Nor do Shapard’s civil rights claims depend on the invalidity of his assault conviction. His lawyer argued in the district court that "nothing in Plaintiff’s guilty plea or allocution precludes him from testifying as to what happened next, including testifying as to force used against him by the Defendants and testifying as to the injuries he sustained."

No First Amendment claim for teacher who objected to cheating students

The Court of Appeals holds that a professor cannot sue a public college under the First Amendment even though he suffered retaliation for refusing to allow his students to cheat. This case again illustrates the hurdles faced in presenting public employee speech claims.

The case is Bhattacharya v. SUNY Rockland Community College, a summary order decided on October 10. To prevail in a public employee speech claim, the plaintiff must show (1) he spoke on a matter of public importance and (2) he spoke out as a citizen and not as an employee. The first element (public concern) derives from a Supreme Court ruling, Connick v. Myers (1983). The second element (citizen speech) derives from another Supreme Court ruling, Garcetti v. Ceballos (2006). The idea is that the government cannot operate efficiently if employees are allowed to speak on personal or trivial matters that do not concern the public. These cases also advance the principle --- which courts love to remind us -- that courts are not "super-personnel" departments and that under the "at-will" employment principle, management can treat its employees any way that it wants to so long as it does not violate a specific legal principle.

Plaintiff spoke as an employee and not as a citizen in refusing to permit his students to cheat. This speech was "part and parcel" of his official duties, even a "core duty" as a teacher. In addition, the Court (Lohier, Droney and Rakoff [D.J.]) says, "there is no plausible allegation that the speech at issue was on a matter of public concern rather than 'calculated to redress a personal grievance' between Bhattacharya and his students."

Plaintiff offers the Court an angle that would get around Garcetti: that his speech relates to scholarship or teacher. Garcetti did decline to specifically hold that the citizen/employee speech distinction applied to public schools. The concern was academic freedom. That argument will not work here. Whatever the Supreme Court intended in staking out a possible exception for academic freedom, plaintiff's case does not implicate those concerns. While the Second Circuit has "recognized an academic freedom claim where a restriction on speech implicates the content of a teacher's lessons or restricts a school's ability to determine its curriculum," plaintiff does not allege any of that here.

Unfair treatment is not discrimination

This case drives a point home that many plaintiffs do not want to hear. If you get shafted at work, that is not necessarily a discriminatory action. The Court of Appeals feels bad about how this guy was treated, but it still finds he has no case.

The case is Williams v. New York Hospital Medical Center of Queens, decided on October 6. Williams applied for a job at the Hospital, which stopped considering his employment application after a prospective or recently hired employee racially profiled Williams and wrongly accused him of stealing her cell phone while he was waiting for his second job interview. This accusation was ultimately dropped, but along the way it "led to an escalating series of interrogations in which Williams became increasingly agitated. He ultimately was removed from the Hospital by police officers and not allowed to continue with the interview process."

In reviewing the case, the Court of Appeals (Newman, Walker and Pooler) says that "it does seem that he was badly and unfairly treated. Apparently without any evidence, Williams was accused of theft and interrogated by police. He was thrown out of the Hospital when he protested his treatment, even though he had been cleared of wrongdoing. Unfortunately, it is well known to this court that racism on the part of accuser, investigators, and bystanders may well have affected the course of events." But that is not the end of the story. Williams is suing for discrimination. There is no unfair treatment law in New York.

Even if Williams provides reason to infer that his accuser and the NYPD officers were “motivated by discriminatory intent,” "he does not provide reason to infer that the decision not to hire him derived from the same motives." The Court goes on:

The motives for accusation and unfair treatment during the investigation cannot be equated with the motives not to hire Williams, at least not on the factual allegations that Williams puts forward. Had Williams instead been late to a job interview due to a racially discriminatory police stop, we could simultaneously conclude that he had been mistreated due to his race and that he had no claim against those who decided not to hire him. Similarly here.

No due process violation for tenured ex-City employee

We are all familiar with the concept of due process, a right embedded in the Constitution. Due process means the government cannot deprive you of a liberty or property interest without "due process," or a fair shake. That right, however, is not always vindicated in court. There are numerous defenses available to the government in these cases, including this case.

The case is Richardson v. New York Board of Education, a summary order decided on October 2. Plaintiff worked for BoE, handling special education matters. After a parent complained about plaintiff, the BoE investigated and reached adverse findings against plaintiff. By then, plaintiff had resigned her position and was placed on the Ineligible List, which means she cannot work for the BoE -- or any related vendors -- again.

Plaintiff says she was denied due process. The Court of Appeals (Livingston, Lynch and Rakoff [D.J.]) says she was not. In 1996, the Court of Appeals held in Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996), that public employees "cannot complain of procedural defects and omissions because she resigned before her employer took all the steps necessary to fire her,"and the resignation "makes it impossible for her to demonstrate that she would not have received the procedural protections prior to her actual firing." In other words, the public employee cannot short-circuit the process by resigning and then turn around and claim she was not given procedural rights to which she was entitled. That reasoning applies to this case.

While plaintiff says Finley is distinguishable because plaintiff was a tenured administrator and the plaintiff in Finely was an at-will employee, "nothing in Finley suggests that its reasoning was cabined to at-will employees." Plaintiff's tenure status does not affect the due process analysis.

The Second Circuit strikes down plaintiff's various other arguments. As a retired employee, plaintiff does not have a protected property interest under the Due Process Clause for purposes of finding other government employment. "Prospective government employment is not a protected property interest," the Second Circuit held in Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002). She only had an abstract need or desire for a future position. That will not cut it.

Trainspotting plaintiff cannot pursue false arrest claim

The 16 year-old plaintiff was a Westchester County train enthusiast who liked to stand by the tracks and monitor their performance. Someone reported him to the police -- if you see something say something! Upon arrival, the police saw him holding a camera with a backpack on the ground and two electronic devices (one was a scanner) were next to him. The police did not take plaintiff up on his offer to produce a letter from the MTA that allows him to do this, as they thought he might instead activate a sabotage device with his phone. He was arrested for trespass, but that charge was later dropped.

The case is Grice v. McVeigh, decided on September 29. This case represents the clash of two principles: the right to be free from false arrest without probable cause and our present-day fears of terrorism. The Court of Appeals (Jacobs and Walker) holds that the arresting officers are entitled to qualified immunity, which gives public officials the benefit of the doubt in close cases if an objective police officer would have also made the arrest. In what I see as a pattern in recent years, the Second Circuit frequently grants qualified immunity to the officers in a false arrest case, reminding us that the Supreme Court has been generous with this defense, which is "forgiving" and "protects all but the plainly incompetent or those who knowingly violate the law." An officer's bad judgement may not be enough for the plaintiff to win the case.

The Court says the officer had reasonable suspicion to stop and cuff plaintiff, either for lawful interference with a train or for trespass, as this officer had recently been trained on railroad sabotage, and someone in nearby Putnam County had recently been caught with a homemade device wrapped in black tape and a radio-controlled antenna. The officer had never previously heard of what the Court of Appeals calls "trainspotting," and he was not legally required to credit an innocent explanation, a principle that is embedded in Second Circuit case law. "It was not unreasonable for a lone officer to handcuff Grice in order to ensure that Grice could not press a detonator button on any electronic device until the tracks could be searched."

Judge Parker dissents. While he says the officer had the right to initially ask plaintiff questions, that Terry stop ripened into an arrest because plaintiff was cuffed and not free to leave. He then attacks the majority for dropping a footnote summarizing recent cell phone use by terrorists. "If a generalized fear of terrorism coupled with the possession of a cell phone is sufficient to justify an arrest, then our Fourth Amendment is in real jeopardy," as practically every American has a cellphone. Since the officer should have recognized that plaintiff was a train buff and the officers continued plaintiff's detention even after they cleared him of any threat to the railroad.

En banc court takes up Title VII and sexual orientation

The Second Circuit this week heard argument in a rare en banc proceeding, asking whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Along with Gregory Antollino, I represent the plaintiff.

The case is Zarda v. Altitude Express. The oral argument link is here. The panel decision from April 2017 is at this link. Zarda was a skydiver who was fired after he told a customer that he was gay. The lawsuit asserted claims under Title VII and the state human rights law, which explicitly prohibits discrimination on the basis of sexual orientation. The trial court dismissed the Title VII claim on the basis that the Second Circuit in 2000 held that this form of discrimination is not prohibited under Title VII. That case is Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The state law claim went to a jury, which rejected the claim and entered a defense verdict. The reason the Title VII issue survives is the trial court on the state law claim charged the jury under "determining factor" standard, which is more favorable to the defendant than the "motivating factor" test under Title VII.

A 13-judge panel of the Second Circuit -- all active judges plus two senior judges who sat on the panel decision -- heard argument on Sept. 26. Argument lasted two hours, with three lawyers arguing for plaintiff (including to amicus parties) and three lawyers arguing for defendant (including two amicus parties). The federal government argued both sides of the issue, with EEOC arguing for plaintiff and the Department of Justice arguing for defendant. Nearly every judge on the en banc court asked questions, and things got lively when the judges asked the Department of Justice lawyer how exactly it was determined that the federal government would oppose the plaintiff after the EEOC had already filed a brief in favor of the plaintiff.

What are the bases for claiming sexual orientation discrimination is a form of gender discrimination? As the EEOC said in an administrative ruling a few years ago, when a gay male is fired because of his sexual orientation, that's "but-for" discrimination because if the plaintiff were a female, she would not have been fired. In addition, plaintiffs have argued, sexual orientation discrimination derives from the ultimate sex stereotype: men are attracted to women and vice versa. Title VII already rejects gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In addition, when a gay man is fired, he is being punished over his protected gender association. Other cases hold that Title VII prohibits the termination of a white man over his association with a female fiance. Defendants respond to these arguments by claiming, in part, that Congress did not have sexual orientation in mind when it enacted the Civil Rights Act of 1964 and that Congress had declined to extend protections under Title VII to gays and lesbians. We call this the "legislative inaction" argument.

The Seventh Circuit in 2017 reversed one of its prior cases in holding that Title VII prohibits sexual orientation discrimination. That case is Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017). The Eleventh Circuit this year stood by its older precedents that reject the new thinking. Evans v. Georga Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Zarda Court will be the third appellate court to take up this issue since the EEOC decided in 2015 to expand Title VII protections. Someday,  this issue will reach the Supreme Court.

The New York Times covered this argument, reprinted below.

Discrimination Based on Sex Is Debated in Case of Gay Sky Diver

By JOSEPH GOLDSTEIN 

SEPT. 26, 2017

About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the sky-diving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.

A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.

Most federal appeals courts in the country have long held that sex discrimination did not encompass discrimination based on sexual orientation. However, a single federal appeals court in Chicago ruled earlier this year that it did.

During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female sky-diving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because discrimination they faced was for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.

If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.

In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”