Monthly Archives: April 2012

When Does An Athlete Assume the Risk of Injury?

Better equipment, more health-conscious athletes and upgrades in technology have led many to believe that sports are safer today than in the past. But to what degree do athletes assume the risk of injury when they engage in sporting events? That was the question recently before the Appellate Division of the Supreme Court of New York. Bukowski v. Clarkson Univ.¸ 2011 NY Slip 5912, 1 (N.Y. App. Div. 3d Dep’t 2011).

The plaintiff (“Bukowski”) was a freshman pitcher on the Clarkson University (“Clarkson”) baseball team. While pitching from an artificial mound at regulation distance at practice, a batter hit a line drive that struck Bukowski in the face. He sued the University for Damages.     

During the trial, Bukowski testified that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching and that he had had an estimated 50 to 100 balls hit back at him during his career as a pitcher. He also testified that he was familiar with the indoor training facility where he was practicing when the injury occurred. Additionally, Bukowski confirmed that he had been informed by coaches that the live practices were going to be held without the use of an L-screen (a screen that pitchers stand behind for protection), and that prior to taking the mound that day at practice, he had observed other pitchers throwing batting practice without the use of an L-screen. The Supreme Court of New York granted Clarkson’s motion to dismiss, concluding that Bukowski had assumed the obvious risk of being hit by a line drive.      

On appeal, Bukowski argued that factual issues still needed to determine, including whether the risk of being hit by a ball was unreasonably enhanced by the backdrop and lighting of the facility and failure to use an L-screen. However, the Bukowski Court cited previous case law that established that organizers of sporting events owe a duty to exercise reasonable care and protect participants only “from injuries arising out of unassumed, concealed, or unreasonably increased risks. Id. at 2 (citing Benitez v. New York City Bd. of Educ., 73 NY2d 650, 654 (1989)). The Court held that voluntary participants in sporting events are “deemed to have assumed commonly appreciated risks inherent in the activity” and that this assumption of the risk doctrine “extends to risks engendered by less than optimal conditions, provided that those conditions are open and obvious.” Id. at 2.      

Despite testimony by an expert that suggested that the use of an L-screen or a darker backdrop could have lessened the risk, the Court determined that the risk of a pitcher being hit by a ball is inherent in the sport of baseball. Id. Additionally, the conditions in which he was pitching were readily observable, so the Court held that such expert testimony was irrelevant. Id. Bukowski also argued that assumption of the risk is not a shield from liability when voluntariness is overcome by “the compulsion of a superior,” and that he did not ask to use an L-screen because he was told that was not part of the “Clarkson way” of practicing. Id. at 2, 3. However, the Court held that this argument only emphasized Bukowski’s knowledge of the risk while lending “no support to his assertion that his participation in the practice was compelled or involuntary.” Id.          

The Court’s decision in Bukowski underscores not only the dangers that athletes face when engaging in athletic activities, but the difficulty they will face in trying to recover damages from any injuries they suffer during those activities as well. Spectators of sporting events are also likely to face this high hurdle (see Falzon v. MLB Enterprises, et al.). Bukowski and other decisions support the idea that, even if technology has helped make sports safer, fundamental risks of injury still exist and courts will generally find that athletes voluntarily assume them.


© 2012 Nissenbaum Law Group, LLC

Fourth Amendment Protection in the world of Smart Phones: Are we compromising our expectations of privacy?

With the advent of wireless technology, there have been growing concerns about the protection of individual privacy against arbitrary intrusion by government agents. While cell phones help us stay in touch with the important people in our lives, the technology also has the inherent potential for exposing our private lives to others. Over the last couple of decades, the Courts have continued to evolve the Fourth Amendment doctrine to keep up with the privacy concerns raised by the technological advancement in cell phones.

The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

In US v. Katz, 389 U.S. 347, 367 (1967), the U.S. Supreme Court set forth a two-part test to determine whether search was conducted that implicated the Fourth Amendment. Under the two-part test the Courts need to determine:

  1. Whether the individual has exhibited an actual expectation of privacy; and
  2. Whether the society is prepared to recognize that this expectation of privacy is (objectively) reasonable.  

That case was considered a landmark because it made government wiretapping subject to the Fourth Amendment’s warrant requirements.

In 1979, the U.S. Supreme Court also determined that individuals had no reasonable expectation of privacy in the phone numbers used to make or receive calls on their phone.  In that case, Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court determined that “the installation and use of [a telephone number] pen register was not a “search” within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.”  The Court carved out a third party exception to the Fourth Amendment analysis as follows:

Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not “legitimate.” First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as “reasonable.” When petitioner voluntarily conveyed numerical information to the phone company and “exposed” that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police, cf. United States v. Miller, 425 U.S. 735 .

Id. at 741-746.

It is extremely important to contrast the difference between the data conveyed on the pen register in Smith v. Maryland  and cellular telephone data that is automatically sent to the cell phone carrier even without the subscriber dialing any numbers. The data that is automatically sent to the cell phone carrier also contains the “cell site location information” (CSLI). The historical CSLI identifies the cell tower to which the customer was connected at the beginning of the call and at the end of the call. Thus, the historical CSLI data can be used to track the previous movements of the cell phone user. Similarly, prospective CSLI data can be used to track the movements of the cell phone user in future.

Several federal courts have held that cell phone users have a reasonable expectation of privacy in the cell site location records. Therefore, government cannot access CSLI without a warrant as per the Fourth Amendment. But the majority of federal courts have held that this reasonable expectation of privacy is for the prospective CSLI only.  However, recently, the United States District Court for the Eastern District of New York held that the exception to third party disclosure should also apply to historical CSLI because cell phone users have a reasonable expectation of privacy in the cumulative cell site location records.

As the Fourth Amendment doctrine and the scope of individual’s expectation of privacy continue to evolve with technological developments, attorneys will continue to challenge the legality of government’s access to these technological advances.


© 2012 Nissenbaum Law Group, LLC