My Hockey Mom Can Beat Up Your Soccer Mom

Parental involvement in youth athletics at the coaching and spectator levels is clearly on the rise and has yielded a unique nomenclature.  The phrases “soccer mom” and “hockey dad”, for examples, capture a lifestyle and simultaneously explain one’s choice of automobile.  Bumper stickers no longer boast only of one’s “honor student” or team loyalty but they describe a daily existence and the driver’s at-all-costs dedication to his/her child’s athletic pursuit.

A number of factors seem to be driving this phenomenon.  Parents are providing advantages and opportunities that they never had, are committing time to nurture the family relationship, and are hoping their children will develop skills, discipline, friendships and positive attributes.  At the same time, they are guarding their often-exorbitant financial investment, they are crossing their fingers for athletic scholarships, and of course, they are seeking vicarious fulfillment.  Many baby-boomers, disenfranchised with professional sports and their favorite teams’ performance, project their ardor onto youth sports.  Society plays a role by placing unprecedented emphasis on the need for parents to supervise their own and making it increasingly unacceptable to entrust children to another’s even temporary care.

It is safe to say that the more organized, time-consuming and costly the endeavor, the higher the stakes and the more likely are participants and parents to embrace a win-no-matter-what attitude.  A parent’s stress and fatigue levels are directly proportional to his child’s and his own degree of involvement in the sport.  The desire to juggle (rather than forsake) academics and a multitude of other familial and social obligations to accommodate hectic athletic schedules alone can create a highly volatile environment.

All too often, passion, frustration, exhaustion and competitiveness combine to produce explosive results.   A number of sources have reported, in fact, that aggression in general, and assaults by parents in particular, have sharply increased over the last several years.   The manslaughter of Michael Costin at the hands of “hockey dad” Thomas Junta in 2002 is the most tragic example of many factors gone mad.  Such cases have brought the topic of violence in amateur sports to the forefront of public awareness and debate and the related issues of liability into the courtroom.

Recognizing the surge in physical assaults and abuse, municipalities and many amateur organizations have developed programs and have promulgated rules to diffuse sideline rage.  Nassau County has a Local Law (13–2002, 10/21/02), that require participants, their parents and coaches to sign a “Fair Play Agreement” committing to support the goal of good sportsmanship.  The law also requires each sports organization to send a volunteer “Fair Play Representative” to a County-run seminar and encourages teams to appoint a parent to attend games and monitor interactions off the surface of play.

The National Alliance for Youth Sports holds workshops for parents and coaches, a program in which some 400 communities have enrolled.   Many clubs require parents to attend a class on proper behavior as a precondition to allowing their children to play, and some maintain databases to track violent behavior.  The Long Island Junior Soccer league maintains a “zero tolerance” policy and a sportsmanship protocol pursuant to which referees evaluate and report on player and parent conduct at every game.  The Long Island Lightning Basketball League enforces a code of conduct and expels anyone who violates it even once.  And the Long Island Amateur Hockey League (“LIAHL”) enforces a code of conduct for players, coaches, parents and spectators which emphasizes good sportsmanship, respect, appropriate conduct (i.e. “do not taunt or disturb other fans”), skills development, team work, enjoyment, safety and fun, and being supportive of all participants.  The LIAHL has adopted a “zero tolerance” policy aimed at eliminating “verbal and physical abuse of officials and inappropriate spectator behavior”, while “still allowing communication in a calm and reasonable manner.”  The section directed at “spectators” defines and prohibits “inappropriate and destructive behavior” as using obscene, racial or vulgar language in a boisterous manner to anyone at any time; taunting players, coaches, officials or other spectators by means of baiting, ridiculing, threatening physical violence, or physical violence, and; throwing any object in the spectators viewing area, players’ bench, penalty box, or on-ice surface, that in any manner creates a safety hazard.

The courts have not had to deal with the legal implications of any of these extra-judicial promulgations.  To the extent that they attempt to put the onus on participants and spectators, it is unlikely that they will support findings of liability against the owners of park, rinks, fields and the like.  If anything, making people sign promises to behave and to be accountable for their own actions may increase the degree to which parents and children will be viewed to have assumed the risks of involvement.

Mold: Your Walls are Covered…But are You?

Mold is a ubiquitous substance, most types of which are harmless.  A few species have been implicated in symptoms such as runny noses, eye irritation, nasal and chest congestion, wheezing, aggravation of asthma and allergies, headaches, dizziness and fatigue.  In severe exposures, the substance has been linked to bloody discharges, fibrous lung growths, pulmonary hemorrhages, cognitive dysfunction, memory loss and irritability.

Toxic mold may start to grow and spread in as little as 24 hours post-water damage, assuming a favorable combination of temperature and moisture, and a food source, such as sheet rock.  Mold usually grows because of excessive moisture due to construction defects, leaking windows and pipes, and poorly designed HVAC systems.

The typical homeowner’s policy excludes coverage for certain conditions that may produce mold, such as wear and tear.  Generally speaking, if water leakage or accumulation is the product of a “covered” loss, the resulting damage (including mold) is also covered.  If mold results from poor housekeeping or maintenance, or from uncharacteristic humidity, the insurer is usually justified in disclaiming coverage.

The presence of specific exclusions can vitiate coverage, and it is therefore important to examine each policy in the context of the relevant circumstances.  It is unlikely that insurance companies will be able to assert either the “sudden and accidental” exclusion or the broader pollution exclusion to mold-related claims, but some insurance companies have begun to add specific “mold exclusions” to their standard CGL policies, while others offer an endorsement for an additional cost.

Mold has become a critical focus of toxic tort and premises liability litigation.  The carrier must consider all environmental factors and potential effects of water saturation when performing an exposure analysis and in evaluating the potential extent of damages and the costs of repair.  An immediate and thorough response will allow the adjuster to determine if the mold pre-existed the water damage and, therefore, whether a basis to disclaim exists.  Prompt commencement of a drying out and clean-up process will help to reduce further damage to property and person.  The longer the carrier waits, the harder it will be to posit that the mold was not caused by a covered loss.

Relocate or Repair? Decide or Beware!

As an attorney who practices in the area of insurance coverage, I was recently asked the following question: “How long must a carrier pay ‘Loss of Use’ benefits when its insured has not decided whether to rebuild or relocate his/her primary residence?” The “Additional Living Expense” section of a typical Coverage D-Loss of Use provision states that: “payment will be for the shortest time required to repair or replace the damage, or if you permanently relocate, the shortest time required for your household to settle elsewhere.” Similarly, the Fair Rental Value section generally states that “payment will be for the shortest time required to repair or replace such premises.”

New York’s downstate courts (the First and Second Departments, which cover Richmond to Riverhead and Manhattan to Putnam), have not specifically addressed this issue. However, the Fourth Department (upstate New York) held that an insured was entitled to the costs of towing, storage, insurance and loss of use of a vehicle (even though it was a total loss), but only for those costs incurred from the date of the accident until the expiration of a reasonable time for obtaining a replacement. In assessing what constitutes a “reasonable time”, the Fourth Department stated, the jury should consider market conditions, any delay by the insurer in inspecting and appraising the damaged vehicle, and plaintiff’s resultant financial inability to replace it.

In general, the courts bear the responsibility of determining the rights/obligations of the parties under an insurance contract based upon the specific language of the particular policy. As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning; if the language of the insurance contract is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and any ambiguity must be construed against the insurer as drafter of the policy. The plain meaning of the policy’s language may not be disregarded in order to find an ambiguity where none exists. The test for ambiguity is whether the language of the insurance contract is susceptible of two reasonable interpretations: courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting or supplying words to make the meaning of the contract clearer. In construing the meaning of an agreement, courts must accord words their fair and reasonable meaning rather than their mere literal meaning. The court must determine the intent of the parties from the plain meaning of the language employed, giving terms their plain, ordinary, popular and nontechnical meanings.

The typical policy is silent as to how long the insured is allowed to take to decide his course of action. However, since the policy explicitly states (i.e., its plain meaning is), that payment will be for the “shortest” time and “reasonableness is read into every contract, the good faith argument can easily be made that the insured must indicate his intentions within a “reasonable time” and that the carrier no longer has to pay Loss of Use beyond that time. Barring unusual circumstances, a homeowner should be able to get the requisite estimates, shop alternative sites, etc., and decide whether to relocate or rebuild within approximately three (3) months.  After that time, it is quite conceivable that an insurance carrier will cease to pay.

I hope that readers find this analysis useful and will contact me should they have any questions.

Legit Termination or Actionable Discrimination?

In a turbulent economy, it is frequently difficult to distinguish between bona fide cost-cutting lay-offs, “for cause” terminations, and discriminatory discharges. Over the past year, we have seen a marked upsurge in inquiries from the recently unemployed at all financial levels and from companies threatened with administrative claims and/or litigation. In order to determine whether they are actionable, the circumstances surrounding separation from the workplace usually require keen and judicious analysis.

Most individuals who lose their jobs are surprised to learn that the employer does not have to articulate a reason, does not have to be “nice” about it, and under most circumstances, does not have to offer a “severance” package.   New York is an “at will” State: unless one has a valid contract, the employer can fire him/her for no reason, a good reason or a bad reason. An employer unlawfully “discriminates,” however, if race, color, national origin, religion, handicap, disabling pregnancy, age, gender, sexual orientation or status as a nursing mother or a “whistleblower” is a motivating factor in decisions to hire, fire or set/adjust compensation, or if he retaliates for an employee having exercised a legal right or rejected a sexual advance.

If you have recently lost your job and would like to discuss whether or not the termination was “legal”, please contact us and we will provide a free consultation.

Sticks & Stones: When Words Harm

Generally speaking, defamation is the communication of a false statement that has the tendency to create a negative image about an individual or business to someone other than the subject.  In order to prevail in a lawsuit for slander (oral defamation) or libel (written defamation), the victim must adequately identify the communication, including who said it, who heard it and when it was spoken/published.  Truth is an absolute defense and expressions of opinion are not defamatory, so a statement that reiterates facts or even characterizes the subject as a “liar” for misrepresenting the facts does not form the basis of a viable claim.  The victim must prove that he either suffered “special” damages (a specific and measurable loss), or that the words are so egregious that damages are presumed (slander per se), as in a statement that alleges a loathsome disease, charges a serious crime, injures the subject in her trade or profession, or imputes un-chastity to a woman.  The statute of limitations (the time within which one may bring a lawsuit) for defamation (slander and libel) is one (1) year.

New York’s anti-SLAPP statute (Civil Rights Law §§ 70-a and 76-a) protects people who exercise their First Amendment rights of free speech and peaceable assembly and engage in acts of public participation or petition.   It does not shield a tenant, for example, whose landlord sues for libel unless he was commenting on an “intense controversy” that would have prompted “public participation or petition.”

Courts in New York have recognized that words can do more harm than physical confrontation, but not every derogatory statement amounts to actionable defamation.

Who Let the Dogs Out?

The statistics that define the danger of being attacked by a “household” animal are startling:

  • Dog bites injure nearly one million Americans every year.
  • Every 40 seconds, someone in the United States seeks medical attention for a dog bite.
  • 60% of all victims are children & dog bites are the second leading cause of childhood injury (surpassing playground accidents.)
  • 77% of all injuries to children are to the facial area.
  • 70% of dogs that bite are pets (not strays), who attack on their owner’s property in social situations.

In New York, every dog is entitled to one “free” bite: the owner is usually not responsible to the victim unless he/she knew or should have known that the animal had a vicious propensity, i.e., the tendency to cause bodily injury.  Even the owner of a Pit Bull or a Rottweiler is not liable if the injured party cannot prove that the canine displayed violence towards another in the past.  It is therefore critical to learn as much as possible about the animal, not just from the owner, but from neighbors, police, mail carriers and the family veterinarian.  If you would like to discuss whether or not you can recover monetary compensation for an animal attack, please contact us for a free consultation.

Handicap Aside…Rental Denied

Many individuals who are denied housing believe that they have been unfairly treated because of their handicap or disability.  None of the laws that prohibit discrimination against such persons, however, obligate a property-owner to ignore a prospective tenant’s inability to make the monthly payments or dispense with the requirement that a governmental entity guarantee those payments.  The courts have interpreted the Fair Housing Act to require the prospective tenant to be “qualified” to rent irrespective of his/her disability, and it is incumbent on the plaintiff to demonstrate that he/she was “qualified to rent or purchase housing and was rejected…”  The Americans with Disabilities Act also states that the disabled person claiming discrimination must be a “qualified individual,” and the Rehabilitation Act of 1973 indicates that the applicant for housing must “otherwise be qualified.”  If a lease requires proof of financial ability or a governmental rent guarantee, and the individual cannot produce one, the landlord may not be discriminating in refusing to rent.  If you are a landlord accused of such discrimination or an individual who believes he/she was wronged, please contact us for a free consultation and evaluation.

Bed Sores: An Avoidable Agony

Bed sores (also known as decubitus or pressure ulcers) can form and develop rapidly in individuals confined to hospital and nursing home beds, and unchecked, they can lead to fatal infections.  This condition can be extremely painful to the patient and terribly distressing to loved ones helpless to provide relief.  With consistent turning and re-positioning, use of aerating devices (like air mattresses), and tendering of proper nutrition and adequate hydration, health care professionals can stem the incidence of this noxious phenomenon.  In New York, an individual who enters a health care institution without a bed sore has a right to leave the facility without a bed sore.  Within the past several years, we have taken a particular interest in helping people who have developed pressure ulcers and their families to obtain monetary recovery against the responsible parties.  If you or a loved one has sustained this condition because of health care neglect, please contact us for a free consultation.