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Litigation over a falling fat guy at Shea Stadium enters year four

Jan 11, 2010, 2:25 PM EDT

The New York Post reports today
on a lawsuit filed against the Mets by a woman named Ellen Massey who,
in 2007 was more or less crushed by a fat guy who came hurtling out of
his seat in her direction, breaking her vertebrae. Massey says the fat
guy was drunk. The fat guy said he was pushed. No word on whether Roger
McDowell has been subpoenaed yet.

My interest in this case is more one of personal blogging history, as it led to one of my first blog posts over at ShysterBall back in May of 2007
when it first arose.  My take on it then echoes the rule we were taught
over and over in law school:  if you’re going to sue a ballclub and the
beer vendor for overserving a fat guy who later falls on you and breaks
your back, you’d better be able to prove he wasn’t fit to be served in
the first place. It’s hornbook law, as they say.

By all accounts, Ms. Massey didn’t identify the falling fatty until
well after the event (back in 2007 it was still a John Doe complaint)
and if she didn’t know who he was at the time, I have no idea who she’s
supposed to establish that he was drunk and overserved at the time. And
that’s really the only basis for the Mets to have liability here.  I
mean sure, the fat guy or his shovey friend could get sued
individually, but they’re not big and rich like the Mets are, so why
would any self-respecting plaintiff’s lawyers sue them?

But I think the best thing about the Post story is the way they portray one
of the Mets’ defenses — a boilerplate contributory negligence
allegation — as the kind of thing only a souless and heartless
victim-blaming monster could concoct. It’s a standard defense guys.
Lighten up, smarten up or stick to the wedding announcement business.

(thanks to Jason at IIATMS for the heads up)

  1. Wooden U. Lykteneau - Jan 11, 2010 at 2:36 PM

    I think the best thing about the Post story is the way they portray one of the Mets’ defenses — a boilerplate contributory negligence allegation — as the kind of thing only a souless and heartless victim-blaming monster could concoct.

    Wait – a Rupert Murdoch-owned tabloid overreacting and misinterpreting facts in order strictly to sensationalize?

  2. D-Luxxx - Jan 11, 2010 at 3:23 PM

    My favorite part of the article was this little tidbit.
    Massey only recently learned the name — she originally sued him as a “John Doe” who “had been acting in a rowdy, boisterous and dangerous manner for a long period of time” before he crashed into her and ran off.
    The image of a 300 lb man running off into the sunset is kind of hilarious.

  3. Z - Jan 11, 2010 at 3:49 PM

    Come now, Craig, surely you also learned about dram shop liability in law school? I’m not sure what the NY laws are, but the NJ laws are pretty strict, and there was a fairly high profile case against the Giants not that long ago for a similar incident. If all you can think of is common law liability, it’s no wonder you had to give up the law for a life of blogging. (Oh how I envy your ability to do that from my biglaw office…)

  4. Craig Calcaterra - Jan 11, 2010 at 3:50 PM

    Z — you still have to establish that the dram shop, as it were, served a drunk person or that the person was even drunk during the incident. How do they do that here?

  5. Frank - Jan 11, 2010 at 4:29 PM

    Reminds me of the Steve Dallas comment “never sue poor people”.

  6. Z - Jan 11, 2010 at 5:22 PM

    Craig–
    The NJ case was quite strict, and NY in the past has allowed for experts who did not witness the incident and have note even examined the individual (what value the examination would be 4 years later is another question) to testify as to the fact that someone who acted in this way would have been visibly drunk. It’s an uphill battle in this case, but it’s not as hard as you’d think.

  7. Old Gator - Jan 11, 2010 at 9:52 PM

    Sound like the same “experts” who looked at videotapes of Terry Schiavo and concluded that the deliquescent puddle collecting at the bottom of her skull was nearly conscious. And why not? I used to play chess with our backyard fishpond.
    .
    I wonder if it will be the contention of New York experts that submission to gravity necessarily implies inebriation. If the defense is sufficientl soulless, it will trot out a couple of quantum physicists to dispute that testimony. Should be a helluva case. I wonder if there’s any precedent for a jury voting in its sleep.

  8. Josephina Roley - Jan 24, 2010 at 3:17 AM

    I wanted to thank you for this excellent read!! I definitely loved every little bit of it. I have you bookmarked your site to check out the latest stuff you post.

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