Lowering the Bar

Man Burned at Burning Man Assumed Risk of Being Burned by Burning Man, Says Court

On June 30, the California Court of Appeal held that a man who was burned by the huge bonfire that ends the Burning Man festival each year could not sue the festival organizers.  Anthony Beninati admitted he had intentionally walked into the fire, and that he had previously known fire was hot.  But he argued, basically, that the organizers were negligent because they should not have let him approach the fire so closely.

He did not win.

The defendants argued the lawsuit was barred by the doctrine of "primary assumption of the risk."  This doctrine bars negligence claims by someone who was hurt while participating in an activity "involving an inherent risk of injury to voluntary participants . . ., where the risk cannot be eliminated without altering the fundamental nature of the activity."  To date, California courts have applied this only if the activity is a sport of some kind, although a couple of cases have stretched that definition a bit (unless you think "recreational dancing" and being pulled behind a boat on an inner tube are "sports").

Generally, walking into a bonfire is not considered a "sport," so this case squarely presented the question whether the doctrine should apply to anything else.  The court held that, at least on these facts, it did.

Burning Man, as you may know, is an annual week-long festival held in the Black Rock Desert in Nevada.  There is normally nothing at the site, but once a year tens of thousands of people show up and build a small city.  Among the many things they create is the iconic 60-foot-tall wooden statue that is set on fire as the culmination of the festival.  The Burning Man burns until he collapses into a gigantic bonfire, which, apparently, people then throw things into as part of the Burning Man experience.  Benenati was burned while trying to do this.

That is, this man wasn't just burned at Burning Man, he was burned by the Burning Man himself.

Beninati's complaint stated that when he approached the bonfire, the flames were still roughly 40 feet high.  He walked around the bonfire three times, each time "circl[ing] a little closer to the fire."  Eventually, he walked still closer, into what was variously described as an area of "embers," "low flames," "burning remnants," and "a spot where there was fire on either side of him."  Basically, he had walked inside a huge bonfire.  Then, as you might have expected, he tripped on something and fell into the actual fiery part of the bonfire, burning his hands.

In his deposition, Beninati admitted he knew "fire was dangerous and caused burns" before he walked into one.  He knew there was some possibility of falling into said fire.  He admitted no one affiliated with the defendants asked him to walk into the fire or told him it would be safe to do so.  But he testified that he did not think it would be dangerous to walk into the fire, although he knew it "was not 'absolutely safe, because there [was] a fire present.'"  And, as noted, fire is hot.

Benenati argued the assumption-of-the-risk defense should not apply because he had not been engaged in a sport.  Some battling legalese followed.  Plaintiff's lawyer: there is "essentially no precedent for extending primary assumption of the risk to 'low-impact' cultural activities of the sort found herein."  Defendant's lawyer: "If he had simply stayed a safe distance away from the Burning Man conflagration instead of entering its perimeter, he never would have burned himself."  Clearly, entering the perimeter of a conflagration would not qualify as a low-impact cultural activity anyway.  I think we can all agree on that.

The court agreed with defendants.  While there is an exception to the doctrine where a defendant has unreasonably increased the risk involved in the activity, the court noted that, here, plaintiff had presented no evidence that defendants had "increased the inherent risk of harm . . . normally associated with entering an area surrounded by fire."  Case dismissed.

Link: KTVU (San Francisco)
Link: What is Burning Man?

DOJ Moves to Dismiss Geronimo Skull Suit

Legal Times reported on June 12 that the Justice Department had moved to dismiss claims brought by a group of Native Americans who are hoping to recover Geronimo's remains.  See "Geronimo's Descendants Sue to Get His Skull Back," Lowering the Bar (Feb. 18, 2009).  The plaintiffs named the federal government, Yale University, and the Skull and Bones society as defendants in the lawsuit, based on persistent rumors that the skull (if there is one) inside the Skull and Bones "crypt" is in fact Geronimo's noggin.

The plaintiffs include Geronimo's great-grandson -- Harlan Geronimo -- and others who claim that a group of Yale men stationed in Oklahoma during World War I broke into a burial ground and took the skull (and, possibly, bones).  The group that allegedly stole the remains of the famous Apache leader is said to have included Prescott Bush, whose grandson, George W., later became a famous Caucasian leader.

The government is apparently asserting sovereign immunity.

Link:  The BLT: The Blog of Legal Times

Meat Thieves Captured

Police in Spokane, Washington, reported last week that they had arrested the ringleader of a meat-stealing operation that has plagued stores in the area for some time.  Christopher Webber was booked last Thursday on charges of "leading organized crime."  Specifically, police allege Webber organized as many as five others into a crew of professional meat thieves who would shoplift meat from stores like Albertsons and then resell the tasty plunder in area bars for about half the retail price.

Apparently, those inside the bars found nothing at all unusual about somebody regularly stopping by to offer them some half-price meat.  One bartender insisted he thought the salesman he dealt with was legit.  "He had a little uniform on," he said, "and sounded like he really knew his meat."  (If someone in Spokane saw this on television, could you let me know if he said this with a straight face?  Because I don't think that's possible.)  The convincing uniforms and meat knowledge were good enough for the Spokane business community, which appears to have suspected nothing at any time during the three years the scheme was in operation.

How About Some Cheap Meat? Said the Mysterious Stranger

A police spokeswoman said that Webber's operatives would fill up a shopping cart with meat, and then find a concealed spot to stuff the meat down their pants or conceal it "somewhere else on their person."  (As with the "little uniforms," I think I don't really want to know the details.)  Police estimate that the gang may have moved as much as $400,000 worth of stolen goods during their three-year meat spree.

Link: Spokane Spokesman-Review (June 26, 2009)

Weapons Conviction Thrown Out Due to Counsel's Napping, Magazine Reading

On June 15, a New York judge set aside a conviction on the grounds that the defendant's attorney had provided ineffective assistance of counsel.

For future reference, your lawyer may be providing ineffective assistance if he or she is sleeping or reading health-and-fitness magazines during trial.

Edward Trujillo, Julio Irizarry, and Jonathan Castillo were on trial for weapons charges after an incident in which one of them was (for some reason) shooting a nine-millimeter pistol into the air.  (I suppose the problem with this is that the bullets have to land somewhere.)  Officers found other weapons in the defendants' SUV, and defendants were all indicted on weapons charges.

Irizarry was granted a mistrial based on an evidentiary issue.  Trujillo wasn't so lucky, but he did have another argument.  Under Strickland v. Washington, a criminal defendant's Sixth Amendment rights may be violated if the quality of representation was "below an objective standard of reasonableness."  Trujillo argued this had happened because, among other things, his counsel fell asleep at least three times during trial, read magazines while witnesses were testifying, and "gave a bizarre opening statement that caused the jurors to laugh."  With regret, the judge agreed.

The judge wrote that he had in fact seen Trujillo's counsel "apparently sleeping at the counsel table" at least once.  Saying he was aware that counsel had a "pre-existing medical condition" (he did not identify the condition, or the attorney), the judge noted he had called all counsel up for a sidebar to see if counsel was feeling well and to give him "every opportunity to revive himself, if necessary."  Presumably, counsel said he would try to stay awake, but failed.

The judge also semi-confirmed the magazine reading:  "While the court cannot corroborate defendant Trujillo's claim that counsel was reading a health and fitness magazine during the course of the trial, the court did observe a magazine fall to the floor during the trial proceedings and observed defendant Trujillo's counsel pick up the magazine."  (This would be called "circumstantial evidence" that counsel was reading said magazine.)

Finally, it appears that the opening statement was indeed bizarre, and did indeed cause amusement:

Counsel for the defendant Trujillo did, indeed, give a bizarre opening statement. The beginning of counsel's opening statement was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel's opening statement and such laughter at a member of the bar created an unprofessional atmosphere. . . . [D]uring this trial, I found myself very uncomfortable whenever defendant Trujillo's counsel addressed either a witness or the jury. It was impossible to predict what he was going to say.

The judge was clearly reluctant to criticize counsel, likely because of the undefined "pre-existing condition."  That is understandable.  Although it would be more understandable if I could think of a pre-existing condition that can result in an irresistible urge to flip through a magazine while the other side's witnesses are testifying.  (I guess I should not be too critical since I may need to use this someday.)

Anyway, while this probably made the trial much more entertaining than most, the court held that Trujillo had not gotten "meaningful representation," and set aside the verdict.

Mr. Castillo, who was apparently unfortunate enough to have a competent attorney, will be sentenced shortly.

Link: People v. Irizarry, 2009 NY Slip Op. 51258(U) (Supreme Ct. Kings County, June 15, 2009)
Link: ABA Journal

Tip: Reckless Nude Driving Apparently OK in Georgia

I somehow came across a report last week discussing what sheriff's deputies and state troopers were doing in Ware County, Georgia, a rural county down near the Florida border, on the night of June 12 & 13.  Sure, they came across a meth user or two, but what caught my eye was a quote about the nude driver they stopped.  And then released.

From the report:

Detectives pulled over the nude driver in an unrelated incident [unrelated to the meth-using deer slayer they had previously arrested, that is].  He was driving on Suwanee Chapel Road and was stopped because the car was weaving in and out of its lane. Detectives released him after ordering him to put his clothes on and advising him to keep them on. "He gave no explanation ... There is no law against driving naked so we had to let him go," Royal said.

I think this is right -- my research, at least, has uncovered no law in Georgia against driving naked.  Even the public indecency statute should not apply -- that law provides that "[a] person commits the offense of public indecency when he or she performs any of the following acts in a public place . . . a lewd exposure [or a] lewd appearance in a state of partial or complete nudity . . . ."  Ga. Code sec. 16-6-8(a) (other clearly inapplicable acts omitted).  Seems to me that driving naked is neither "lewd" (though I guess it depends how you do it) nor "in a public place."  True, driving itself is typically done in "public places," but unless your car is transparent I don't think this should constitute an "exposure" or "appearance."  Argue if you like, but clearly the Ware County authorities agree with this interpretation.

"Weaving in and out of [a] lane," though, clearly is prohibited, and at least in connection with unexplained nudity it seems like it might have been worth at least a little more investigation.  Apparently, though, the level of tolerance in rural Georgia for late-night reckless nude driving is significantly higher than I would have guessed.

You may want to make your vacation plans accordingly.

Link: Jacksonville.com