New York Injury Attorney Blog

New York State Appellate Division, Second Department: McCabe v. Dutchess County

The rule in New York is that a child cannot sue his or her parents for damages resulting from negligent supervision. Kids always have accidents growing up. It’s part of life, not part of litigation. What about suing a foster parent? And suing the Department of Social services for placing you with the foster parent who was in charge when you got hurt?

According to the Second Department, the answer is the same: No can do.

Taylor Harris is the biological mother of 6 year old Jacob Harris. The mom had a drug problem. At birth, Jacob was found to have cocaine, opiates, marijuana and methadone in his urine. The hospital contacted Social Services and the child was placed in foster care with Diane Sherwood, one of the defendants to this action. About 16 months later, while living in the Sherwood home, Jacob climbed out of his “sleeping accommodation onto an adjacent dresser and fell to the floor.” Taylor regained custody soon thereafter and, ever the vigilant mom, commenced this action for money damages on the child’s behalf.

Sherwood and Dutchess County both moved for summary judgment. The lower court denied their motions. Both appealed.

Relying on Holodook v. Spencer, the Court of Appeals decision that held a child could not sue his folks for negligent supervision, the Second Department reversed and dismissed the case. As the high court observed in Holodook, “We can conceive a few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example,” but, “[i]f the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child…” Loosely translated: Kids get hurt, even when raised by the most diligent parents. Such accidents are not actionable.

“These same considerations apply to foster parents,” the McCabe court said, and “[w]e decline to impose such a heavy burden on foster parents.” To do so would discourage qualified and much needed individuals from becoming foster parents in the first instance, and would open the door to retaliatory suits brought by disgruntled biological parents or by difficult foster children.

Similarly, the Department of Social Services can hardly be held responsible for the type of accident that can happen in any home, even if it results in serious injury. Only when there's “sufficiently specific knowledge or notice of the dangerous conduct which caused the injury,” can the foster care agency be held liable.

The actions by Ms. Harris were dismissed.

If this had gone the other way, one wonders whether young Jacob Harris could have filed suit against mother Taylor Harris for the drug problem he was born with, the injury which landed him in foster care to begin with. Ms. Taylor may not have thought her course of action all the way through to its logical end, but there might have been some measure of justice had her son obtained a judgment against her.

The victory here goes to common sense. Unmitigated gall takes the loss. And along the way, the court fosters a new appreciation for how difficult it is to raise kids, no matter who's taken on the job.

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Posted In: Damages , Injuries , Minors , New York State Courts , Strange but True

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New York State Court of Appeals: People v. Buchanan

It was Mr. Bumble in Charles Dickens’ Oliver Twist who first said “the law is an ass” after he was told “the law supposes that your wife acts under your direction.” His point was plain: reality and the law frequently don’t see eye to eye.

There are times when courts make rulings based on constitutional law, state law or even some ethereal philosophy that causes us to raise an eyebrow rather than see the point. Perhaps this is such a case.

As the dissent describes him, defendant Ingvue Buchanan was “a man in his thirties who apparently stands more than 6 feet tall and weighs over 300 pounds.” Defendant was accused of murdering a 14-year-old girl by strangling her. He was tried before a jury and convicted of second degree murder (the highest count chargeable in New York State).

Buchanan appealed and the case made its way to New York’s highest court. The basis for the appeal: the trial judge made Mr. Buchanan wear a stun belt during trial. It is a form of electrical restraint that “can deliver a shock should there be a problem.” The stun belt was worn beneath defendant’s clothes, and unlike shackles, could not be seen by the jury.

At trial, the judge told defendant Buchanan he was requiring him to wear the device as a matter of policy because of the seriousness of the charges against him. Defendant personally objected, telling the court “I have done nothing to warrant this." While the trial judge did not disagree with defendant, he still required him to wear the belt “in the interest of being overly cautious for security.” Seemingly not unreasonable given defendant’s size and the charges against him.

After a day of trial, Buchanan complained that the device was “uncomfortable.” So the court had it examined. Then the next day, out of an abundance of caution and judicial sensitivity, the judge obtained a report confirming that there was no medical reason that would prevent Buchanan from wearing the belt. And so he wore it through the duration of the trial and the guilty verdict rendered, with no shock ever having been administered, except, perhaps, to the parents of the murdered 14 year old.

Anyway, defendant argued that the stun belt “deprived him of due process of law” under both the US Constitution and state law because the US Supreme Court has held that “the Due Process Clause prohibits a state from confining a defendant in ‘visible shackles’ during a criminal trial, unless a ‘special need,’ based on facts specific to the case is shown.” The prosecutors argued that unlike shackles which can be seen, no one saw the stun belt and no jurors knew about it, so there could be no violation of defendant’s rights.

In its infinite wisdom, New York’s highest court concluded that it need not reach the constitutional issue since “as a matter of New York law...it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.” Since the stun belt was a matter of the trial judge’s “policy,” and not a stated finding with respect to this defendant’s need for potential restraints, a new trial was ordered.

Simply put, a 6 foot 300 pound man accused of strangling a 14-year-old girl had his conviction overturned because he had to wear a hidden restraining device that was never activated and never administered a shock.

It’s hard to know how to process this decision, but some perspective is warranted: Is wearing the device so offensive—like making a man wear women’s underwear—that it’s even more offensive than a 300 pound man strangling a 14-year-old child, as the jury concluded? Does such an insult to Mr. Buchanan’s sensitivities warrant having his conviction reversed? Does due process under state law guarantee a defendant the right to be free from any inconvenience or precaution beyond confinement? Or are our sensibilities so exaggerated in these politically correct times that defendant’s offendedness from being made to wear the device actually outweighs the offense of murder?

As the lone dissent put it: “Defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction.”

So would most people. But the law is what the law is.

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Posted In: Brave New World , Crime and Punishment , It's My Right! , New York State Courts , Strange but True

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Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.

Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

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Posted In: Brave New World , Crime and Punishment , Evidence , New York State Courts , Strange but True

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Supreme Court, New York County: Sugarman v. Equinox Holdings, Inc.

For all the Gym-rats out there who prefer the health club to the basement or your building's own work-out room, rider beware.

Plaintiff Stuart Sugarman is a Spin Class enthusiast. His indoor cycling regimen brought him regularly to the Equinox Gym in the Wall Street area downtown. For the uninitiated, and if we take Mr. Sugarman at his word, spinners customarily like to cheer and shout during the class to pump up their psyche along with their sprocket. It was during one of these classes that Sugarman’s cheering got under the skin of fellow spinner Christopher Carter. Apparently, Mr. Carter was either having a bad day or he thought it bad form by the whooping Mr. Sugarman to disturb his peddling peace.

Carter first took it directly to Sugarman by yelling and cursing at him. When that diplomatic approach failed to dampen Sugarman’s enthusiasm, Carter dismounted and complained to the instructor about the boisterous biker. The instructor declined to intervene. This was followed by more yelling and cursing by Carter (who must have thought the first round of peace talks was too insubstantial to be effective), which was followed by even more enthusiastic cheering and shouting by Sugarman. Having apparently concluded that their conflict was at a stalemate, Carter “got off his bike again and ‘picked up the front of plaintiff’s cycle with plaintiff upon the unit and pushed him into the wall of the classroom leaving a hole in the sheetrock,’” injuring Sugarman’s back and neck and leaving him prone in the no-spin zone.

Sugarman sued and filed criminal charges against Carter. In the criminal case, Carter coasted and beat the rap. His civil case for damages is still pending. The same can no longer be said about the case of negligence against the Equinox Health Club.

Equinox moved for summary judgment to dismiss Sugarman’s case, claiming, among other things, that Equinox could not be held responsible for Carter’s violent outburst. Sugarman opposed. According to Sugarman the club failed to intercede at the argument stage and failed to remove Carter when he showed aggressive tendencies just before his “spin rage” occurred. It also failed to call the cops or EMS and was otherwise negligent in the way it ran the club, as demonstrated by Carter’s cycle sneak attack. But there in lies the rub.

In an unusually lengthy and involved decision, the court dismissed the case against Equinox. In order to hold the club responsible for Carter’s assault, it had to have notice that he had criminal tendencies, a pattern of criminal behavior or what the court considered a clue that an attack was imminent. The problem with making such a finding, however, was that plaintiff himself never feared for his safety or was ever intimidated by Carter, as demonstrated by Sugarman’s remonstrative good cheer in response to Carter’s vituperations. As the court observed, “Plaintiff’s own testimony fails to establish that even plaintiff foresaw the alleged assault by Mr. Carter.” So how could the club be responsible?

The court went on to find that “verbal tirades” don’t put the club on notice of a potential physical assault, that “heated words” without more don’t put the club on notice and that the exchange of jeers for cheers never rose to the level of dispute or argument, which might have created liability for the gym. According to the court, nothing that happened between Sugarman and Carter gave warning of the impending attack (which is a stretch in New York, since merely looking at someone the wrong way can get you killed). Under the circumstances, Equinox was not liable.

As for not calling the police or EMS at Sugarman’s request, the court observed the general rule that, “from time immemorial our courts have held that there is no legal responsibility to do so.” Well that’s a relief.

And as for the claim that Equinox negligently hired an instructor who failed to intervene before words turned to action, the same lack of notice that these exchanges were about to erupt into violence applies to the instructor, which means Equinox is off the hook on this theory as well.

No matter how you spin this case, Sugarman is not left with much to shout about. We’ll see if Carter steers clear of liability when he rides into court, or whether the ebullient Mr. Surgarman will finally get to salute Carter with a Bronx Cheer of victory.

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Posted In: Damages , Evidence , Injuries , New York State Courts , Speech , Strange but True

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U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.

While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Homosexuality , It's My Right! , Religion , Speech , Strange but True , U.S. Court of Appeals

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Wisconsin Supreme Court: State of Wisconsin v. Grunke et. al.

We live in strange times. Really strange times.

These are the undisputed facts: “Nicholas Grunke sought and received the consent of his twin brother, Alexander Grunke, and his friend, Dustin Radke, to help him disinter a female corpse located in a Cassville, Wisconsin cemetery so that the three of them could transfer the corpse to another location where Nicholas planned to have sexual intercourse with it. Apparently, Nicholas conceived this plan after seeing the obituary of the victim in a newspaper.” The defendants went to the cemetery “with shovels, a crowbar, a tarpaulin, and a box of condoms,” dug a hole deep and long enough to uncover the top of the victim's concrete vault but ran into technical problems gaining access. They were subsequently discovered, arrested and charged with Attempted Sexual Assault before any act could be consummated.

In Wisconsin, a person is guilty of Third Degree Sexual Assault when he “has sexual intercourse with a person without the consent of that person...” What about attempted sex with a dead person? Do you have to prove lack of consent? Or is the silence of the dead presumed to be lack of consent, as one might think—if one wasn’t a lawyer.

At the trial level, the circuit court did not permit the charge of Attempted Third Degree Sexual Assault to go forward. It concluded that the sexual assault statute did not apply to circumstances in which the victim is deceased due to no act of the accused (the implications of this reasoning are too frightening to contemplate).

Wisconsin’s Court of Appeals affirmed. It also explored the sexual assault statute and its ambiguity with respect to the issue of consent.

In a moment of moral conviction and clarity of purpose, the Wisconsin Supreme Court concluded that lack of consent is a matter of simple proof when the victim is a corpse, no matter who was responsible for the death. Moreover, as most of us already know, the court found that “A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person.” One would hope.

What’s truly remarkable is that it took three courts entertaining all sorts of arguments to arrive at this conclusion. Just goes to show that judges and lawyers can debate anything to death. But for the moment, it’s good to know the Wisconsin Supreme Court has drawn a line in the dirt when it comes to sex with the dead.

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Posted In: Crime and Punishment , Other State Courts , Strange but True

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Texas Supreme Court: Pleasant Glade Assembly of God v. Schubert

If you believe in Jesus, you’ve come to understand him from the New Testament. Well, the same scriptures that teach about Jesus also teach about demons and the laying on of hands by church elders. If you accept Jesus, then consistency demands that you accept the other things the Bible teaches. Or does it?

17 year old Laura Shubert attended the Pleasant Glade Assembly of God Church. In fact, her own father was an Assembly of God pastor and missionary. The Assemblies of God is a Pentecostal denomination. It “believes in the literal teachings of the Bible with respect to spirits, demons, demon possession and the ‘casting out’ of demons.” It also believes that people can be “slain in the spirit,” which, according to the church, “is a positive experience in which the holy spirit comes over a person and influences them.” The Bible refers to this as being “filled with the spirit” and believers are encouraged to be filled with the spirit again and again.

Laura Shubert had such an experience. In fact, she had it twice in a matter of days. While slain in the spirit the second time, however, Laura’s physical reaction was so significant that the senior pastor was summoned. He laid hands on Laura and prayed for her. Because of the animated way Laura was reacting, she suffered carpet burns, a scrape on her back and minor bruises.

Laura’s experience led to a meeting between her father, Pastor Shubert, and Pastor McCutchen, the one who had laid hands on Laura. A theological discussion ensued and both agreed that Christians cannot be demon possessed (there was apparently a question whether Laura was manifesting the Holy Spirit or was being tormented by an evil spirit). As a result of that meeting, the church agreed to teach more on the subject so its young members would better understand what the Bible says about being filled with the spirit and what it says about demons.

Notwithstanding the theological explanations given, Laura subsequently became depressed, dropped out of school and abandoned her plan to attend Bible College. She was finally diagnosed with post-traumatic stress disorder, and she and her parents blamed the church and sued Pleasant Glade for the injuries and emotional distress she suffered. (There apparently was not much debate about the Bible’s proscription about believers suing fellow believers.)

Laura won at trial. A jury awarded her damages of $300,000 for pain and suffering and other losses. The Court of Appeals in Texas affirmed most of the decision, but the Texas Supreme Court reversed it all.

Laura’s experience, good, bad or otherwise, was not a matter for the courts. As the Supreme Court explained, “Whether the defendants had intentionally or negligently misapplied church doctrine to Laura during these events was not a justiciable controversy...because the ‘First Amendment [gave] Pleasant Glade the right to engage in driving out demons.’”

The court also found that “The ‘laying of hands’ and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.”

Laura’s case was dismissed.

The courts have always struggled to balance religious expression and individual rights. In this case, whatever happened “in the spirit” was clearly not the court’s business. But this sort of controversy is not going away. The Bible does more than explore spiritual matters, it judges certain matters of the flesh, including lust, homosexuality, pride and adultery; it is only a matter of time before the words of the Bible are challenged as so offensive they must be silenced. Another, less constrained court, may agree and choose to step into the fray.

God help us.

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Posted In: Damages , Injuries , Other State Courts , Religion , Strange but True

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U.S. District Court, Eastern District of New York: Fowler v. Zondervan;
Fowler v. Thomas Nelson

In the King James Bible, 1 Corinthians 6:9-10 says this:

“Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.”

The New International Version (NIV) translates the same verse this way:

“Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.”

Bradley LaShawn Fowler, who is gay, does not appreciate the translations which identify homosexuals among the sinners who will not inherit the Kingdom of God. So he did what any offended individual has a right to do: He sued the publishers of the Bible. Referring to this translation as a “malicious conspiracy” Fowler claims it has destroyed relationships with his family and caused him all sorts of mental anguish including loss of self esteem and bewilderment. He is seeking $70 million dollars in damages in the two lawsuits.

It used to be that if you didn’t like what the Bible said, you either ignored it or disparaged it. But times have changed. There seems to be a movement to silence those with whom we disagree and the courts are often the vehicle used to accomplish the task. If, as Mr. Fowler hopes, one man can censor the Bible’s reference to homosexuality (one wonders if Mr. Fowler will be filing separate actions over Romans 1:26-27 and Leviticus 20:13), then liars, adulterers, thieves, drunks and other aggrieved readers may well follow suit. Who knows, if Fowler’s lawsuits are permitted to proceed, he may cause a revival as other potential litigants search the scriptures for verses that offend their sensibilities, only to find their salvation.

We used to cherish the market place of ideas where we battled each other with thoughts and words and trusted that the most worthy and profound ideas would rise to the top, persuade us of their value and elevate our society. That is what made America great. We let every one have his say, no matter how absurd, no matter how silly, no matter how divisive. Juxtaposed against the profound, the wise and the loving, the former ideas just couldn’t withstand scrutiny or analysis and in the end were rejected. Now, it seems, we have lost some of our confidence in our fellow citizen's ability to choose wisely, and instead look to the courts to shut the mouths of the other side and to claim that our right to be free of offense is greater than the freedom to speak we claim to cherish.

There’s something offensive about all this that can make you want to scream. Which is, after all, our right.

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Posted In: Culture War , Homosexuality , Religion , Speech , Strange but True , U.S. District Court

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U.S. District Court, Southern District of New York: Burck d/b/a The Naked Cowboy v. Mars Inc.

If you’ve been to Times Square, you’ve seen him: The skivvies-clad singer with the cowboy hat known in these parts as “The Naked Cowboy.” Among the lights on Broadway are The Naked Cowboy’s tighty whities. Well, our resident cowboy thinks the makers of M&Ms are low-down scoundrels, having dressed up one of their blue M&Ms in the Naked One’s signature cowboy hat, boots, undies and guitar, and worse, displayed this animated advertisement prominently in Times Square, the heart of Naked Cowboy country. The cowboy would stand for none of it. He strode into District Court and called on the law to take action. The court was not unsympathetic. While it did not agree that the near buck-naked buckaroo’s privacy was violated, it did agree that he could proceed with his claim of false endorsement, since the public could well conclude that the unclothed cowpoke endorses M&M candy. Apparently, he does not. It still remains to be seen whether the Texas M&M gets run out of Times Square, or whether this town is big enough for the two of them.

That’s the beauty of our justice system: it’s available to the good, the bad and even the naked.

(July 23, 2009 Update: Not only is justice availaible, so is public office. Apparently, the Naked Cowboy is about to try his hand at politics and throw his hat in the ring—which doesn't leave much else—and run for mayor. It should be a revealing campaign.)

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Posted In: Strange but True , U.S. District Court

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