July 22, 2010

The Legal Consequences Of Getting Fixed

I was commuting to work on the Chester Creek bike trail last week when a guy on a sharp looking red bike passed going the other way. Now passing other cyclists is nothing out of the ordinary. But this guy was riding a fixed gear bike, just as I was. We recognized our common bond at the last possible moment, exchanging sidelong glances.

Fixies are all over the West Coast and the urban fixed gear trend is nothing new. Yet in Anchorage -- out here on the far reaches of the Empire beyond even the Dagobah System -- you just don’t see that many fixies. I’d guess that maybe you could find a few dozen or so if you scoured through all the alleys of Spenard and looked behind the dumpsters in the U-Med District. (I’m not including the singlespeed jobs that aren’t fixed.)

JerryJuday-3.jpgYes, I know fixed gear bikes involve a learning curve for handling the inertia challenge. You have to actually think while riding a fixed gear, planning ahead for the next intersection or hill or obstacle. You have to remember there ain’t no coasting on a fixie and stopping one that is up to speed requires at least a modicum of skill. Most of the uninitiated, I suppose, view fixies as dangerous and utterly lacking in social utility, like the lawn darts of the cycling world.

So I got to wondering: How would the law treat a fixed gear cyclist? What will happen in the legal arena when one of our brave little band of Anchorage fixie riders gets wrapped around the hood ornament of some knucklehead who is turning right on red while looking left and talking on a cell phone?

There is not much precedent out there addressing the legal aspects of fixed gear riding. I searched WestlawNext for “fixie” and “fixed gear bike.” I came up with no court cases at all using those words in the cycling sense. I found one report of an arbitration case in Portland, Oregon that involved a fixed gear cyclist who was struck by a car turning left. The cyclist lost the arbitration since he was riding at dusk without a light. He also made some damaging admissions about the accident on his blog and in a Craigslist posting. (A good illustration of the Internet as litigation tool.) The arbitration report nevertheless gratuitously noted that the plaintiff was operating a bicycle “with no coaster brake or hand operated brake.”

I figure our injured Anchorage hero is going to end up in the realm of ordinary negligence cases with allocation of fault rules being applied. I suppose the over-caffeinated insurance defense lawyer for the knucklehead driver could try to argue assumption of the risk -- that riding fixed is so depraved as to be a deemed to be the equivalent of voluntary consent to getting run over. But Alaska long ago rejected the tort principles behind implied assumption of the risk, along with all the other fine distinctions tied into the old common law doctrine of contributory negligence. (Last call for last clear chance!) And, Alaska’s more recent embrace of pure several liability and allocation of fault should eliminate whatever vestiges of non-contractual assumption of risk might remain.

More promising from a defense standpoint would be negligence per se. Negligence per se is based on a violation of a standard of conduct established by statute. Under negligence per se, the person who violates the statute is presumed to have acted negligently. So if the cynical, hard-bitten defense lawyer in our case can find some statute that the injured fixie aficionado violated, then the lawyer might be able to get the Honorable Judge Learned Blackbottom to tell the jury: “You must find the plaintiff was negligent and allocate some percentage of fault to him if you find his negligence caused his injuries.”

And there is at least one piece of legislation that could apply. Section 9.38.100(B) of the Anchorage Municipal Code says:

Every bicycle shall be equipped with a brake which will enable its driver to stop the bicycle within 20 feet from a speed of ten mph on dry, level, clean pavement.
(Contrast this with the more enlightened provision of the D.C. Municipal Regulations that carves out a specific exception for fixed gear bicycles. In D.C., fixies are not required to have a brake so long as the operator "shall be able to stop the bicycle using the pedals.")

So, if our injured hero is a purist and rides fixed without any brakes, then the defense might have a shot at a negligence per se instruction. Even so, the exact meaning of “brake” in the ordinance can be debated, as I believe it has been debated in some traffic courts Outside. And of course, negligence per se does not mean our damaged hero is thrown out of court entirely and can recover nothing from the knucklehead behind the wheel. It just means our hero’s recovery is going to be reduced by the percentage of fault the jury must allocate to him for riding without a brake. (If I’m the poor fellow who gets run over, though, negligence per se won’t apply; my fixie has an actual front brake.)

One more thing the dastardly defense attorney may argue is that riding fixed is negligence as a matter of law. This is like negligence per se, except there is no statute defining it. In a very small number of cases not involving statutory violations, the Alaska Supreme Court has ruled negligence is just so darn obvious the trial judge must direct a verdict of negligence. These cases have all involved either rear-end collisions or Kim Farnsworth’s seatbelt. According the court, the trailing driver involved in a rear end collision is negligent as a matter of law and the judge has to instruct the jury to so find. In Ms. Farnsworth's case, the court said the jury had to allocate fault to the driver who collided with the vehicle she was riding in, even though she claimed she would have escaped injury with a proper functioning seatbelt.

Since our hypothetical fixie accident doesn’t involve either a rear-end collision or Ms. Farnsworth’s seatbelt, I don’t think negligence as a matter of law should apply. In fact, I'd refudiate it if I was the judge. But I suppose it’s still open to the ever aggressive defense lawyer to argue for a new entrant in this category -- that riding a fixed gear bike is just so far out on the fringes of an ordered society that the law ought to automatically make the rider negligent just for doing so. I don’t see that working even with old Judge Blackbottom, but I concede some more far-fetched legal arguments have succeeded.

My research on WestlawNext also turned up a motion in limine that a plaintiff's lawyer in California filed in a fixie case. This motion asked the judge to keep out any mention of the fact that the plaintiff was riding a fixed gear bike at the time of the accident. The theory was that the kind of bike had nothing to do with the accident and was irrelevant. Although I could not discern all the details of this particular case from the summary of the motion I read, I'm skeptical of the motion's chances for success. One ordinarily expects that all the aspects of a particular accident will come in when comparative fault is at issue. Unless the cyclist was just innocently stopped at the street corner when he was run over, standing next to a priest, a widow and a couple of Girl Scouts selling cookies, all waiting for the light to change, then I'd expect old Judge Blackbottom to give this a quick: "Motion 'nied counsel, move on."

In the end, I think that our hero will be able to get to the jury on his claim against the knucklehead driver. The jury will have to retire to the back room to allocate fault amongst the participants in the accident. But I’m not sure that I should take all that much comfort from this likely outcome. I mean, I would like to think our brave hero would be found blameless, but you just have to wonder what an Anchorage jury would do with the case. Are twelve ordinary Anchorage citizens going to relate more to the driver with the cell phone or to the dazzling urbanite roaming the streets on a fixed gear bike?

(By the way, I’ve been thinking about naming my fixie “Mrs. Palsgraf,” but then you were probably able to foresee that.)

July 15, 2010

Freedom Of Contract Not Unlimited

This is still a free country, so long as you have your immigration papers in order. Freedom of contract is one of the central principles of American law that is even recognized in the Constitution (in a kinda, sorta way). But this does not mean that you can put any damn thing into a contract and expect to be able to enforce it.

We’ve touched on this theme before, but a recent Ninth Circuit decision underscores the point. In Narayan v. EGL, Inc. three guys in California who drove delivery trucks for EGL, a Texas based company, sued for overtime compensation, reimbursement of business expenses, and other obligations California law says employers have to pay. EGL stiff-armed the drivers by pointing out that the contracts the guys signed said they were independent contractors, not employees. The contracts also said that Texas law governed their relationship.

somalia-pirates.preview.jpgAmazingly enough, the trial judge – apparently another platinum level member of the Adam Smith fan club -- accepted EGL’s position. He ruled that Texas law applied and shackled the drivers with the distainful servitude of being mere independent contractors.

The Ninth Circuit reversed on appeal, as well it should have. The Nines said that Texas law applied only to claims arising out of the contract itself, not ones based on statutes. Since the drivers' claim did not depend on interpreting any contract provision or even require a contract to exist, the appeals court said the provisions of Texas law didn’t matter. California law was what was important, and under California law it was a question of fact whether the drivers were actually employees or independent contractors.

(At the start of the opinion, I was thinking the Court of Appeals was going to get into a nuanced discussion of the exotic choice of laws notion, renvoi. Alas, the court skipped the discussion whilst going straight for a renvoi result.)

So EGL is going to face a jury on the drivers' claims. And while it’s understandable that EGL would take a flyer on putting these clauses into its contracts, you have to wonder about why it pushed things so far. I mean, regardless of what the contract says, you can’t really expect to avoid applying California labor law to folks working for a living in California, now can you? If EGL’s contractual sleight-of-hand had worked then you’d find Scrooge Industries Inc. and its like always electing to apply Somalia maritime law to its employment contracts, just to avoid those pesky U.S. statutes about overtime, minimum wage, child labor and such.

July 9, 2010

Lawyers Gratuitously Slapped For The Sake Of Marmots?

It does not happen often. Usually judicial decorum and hidebound notions of professionalism prevent it. But every once in a great while, an appellate court takes a swipe at a lawyer. No matter what a lawyer does or fails to do in arguing a case, appellate judges usually let it pass without comment. So it was a bit jarring – but nonetheless refreshing -- to find Chief Judge Alex Kozinski of the Ninth Circuit upbraiding a D.C. intellectual property law firm in a recent opinion.

The case was Toyota Motor Sales v. Tabari. It seems Mr. and Ms. Tabari made a living by brokering the sale of Lexus automobiles. They practiced their trade through that series of tubes we all know so well as the Wonderful World Wide Web. Their websites were named “buy-a-lexus.com” and “buyorleasealexus.com”. Toyota wanted to stop the Tabaris from including “lexus” in their domain names. So it sued them for trademark infringement.

marmot1.jpgNow, anyone familiar with Chief Judge Kozinski’s views on the First Amendment and trademarks ought to know how this one was likely to come out. The Honorable Judge Kozinski is on record as a stalwart defender of free speech and as a guy who looks skeptically at any broad application of intellectual property rights. In an interview he gave to the libertarian magazine Reason a few years back, the Chief Judge said: “Owners of copyrights and other intellectual property rights are very grabby. They think they own everything, or they think they invented everything.”

And sure enough the opinion Judge Kozinski wrote in Toyota Motor Sales v. Tabari found that the injunction the District Court issued in Toyota’s favor had to be dissolved. The opinion held that trial judge applied the wrong law to the facts and sent the case back for a new determination.

There are several interesting aspects to the opinion, but the one that particularly caught my eye was footnote 12 that took Toyota’s counsel to task over how the right to jury trial issue had been handled. (Cast your mind way, way back to law school and the protection for the right to jury trial established in the Beacon Theatres case.) Chief Judge Kozinski said, in effect, that Toyota’s counsel went a step beyond cagey in arguing this issue:

Toyota artfully maneuvered to obscure this factual overlap [bearing on the Beacon Theatres issue] before trial and again on appeal . . . Toyota evidently hoped that the district court would not notice the careful parsing of its language, and that the Tabaris (who are defending this case pro se) would not call it to the court’s attention. Toyota is playing the same game on appeal . . . Toyota is only telling half the story by talking about only half of the relevant claims; Toyota admitted as much in its motion for summary judgment. Such selective memory exceeds the bounds of zealous advocacy.

Yes, I know Judge Kozinski softened his rebuke by using the name of the party rather than the names of the lawyers or the law firm. But the rebuke of Toyota’s counsel is unmistakable. Even this softened language was too much for Senior Circuit Judge Fernandez, who wrote a concurrence to say that “I am unable to join in the gratuitous slap at counsel for Toyota in the majority opinion, which I see as entirely unnecessary to our decision or even to the upholding of the marmoreal surface of the law.”

(Kudos to Judge Fernandez or his over-educated clerks on the use of the obscure word marmoreal. I admit I had to look it up in the dictionary. I thought at first that it might mean “of or related to the family of the hoary marmot.”)

Chief Judge Kozinski even took a sort of backhanded swing at the trial judge. Judge Kozinski’s opinion said that “many of the district court’s errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that Tabaris appeared pro se.” I took this statement as implying that the trial judge himself was the one who was over matched. I mean, any pro se litigant who can recognize -- let alone cogently argue -- a Beacon Theatres issue is doing better than a lot of lawyers could do.

But Judge Kozinski had a solution for the uneven lawyering as well. In the very last sentence of the opinion, he wrote: “To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis.”

You know, I was with the Chief Judge all the way up to the end there. I support Chief Judge Kozinski in calling out lawyers when they engage in bad or sloppy lawyering. This sort of criticism does not happen often enough. Lawyers need to know that their shortcomings and hijinks are noticed.

The last sentence of the opinion, though, just made me laugh. It is all well and good to promote pro bono service to the needy public. But, I cannot imagine a District Court Judge having nothing better to do than to hunt up a free lawyer for a car dealer who does not want to have to pay for legal counsel to defend his business. And I would think the idea of having a meddling government official (albeit a judge) step in to decide what is in the best interests of independent business owners would run against the libertarian grain.

July 6, 2010

Alaska Super Lawyers

Several attorneys at Atkinson, Conway & Gagnon have been again selected for listing as Alaska "Super Lawyers." The listing was in the fall 2009 edition of Washington Law & Politics magazine.

Bruce E. Gagnon was once again given the distinction of being named as one of the Top 10 lawyers in the state. He was also individually listed as a Super Lawyer in the category of general litigation. Mr. Gagnon has practiced law with the firm since 1970. He has long been recognized as a leading attorney in Alaska on business transactions and commercial litigation. Mr. Gagnon was the first Alaska lawyer to be elected to the prestigious American Law Institute.

Robert J. Dickson was listed in as an Alaska Super Lawyer in the category of general litigation. Mr. Dickson has practiced law with the firm for more than 38 years. His practice includes construction law and health care law, with an emphasis on medical malpractice defense. Mr. Dickson has written extensively on construction law issues and often has been a speaker at construction law seminars.

Patrick B. Gilmore was selected for listing as an Alaska Super Lawyer in general litigation. Mr. Gilmore -- who was the recipient of the Alaska Bar Association's Professionalism Award in 2008 -- has practiced law for 33 years. His practice includes banking, creditor's rights, lender liability, professional liability and general commercial litigation.

Jerome H. Juday was listed as an Alaska Super Lawyer for the second time in the areas of business/corporate law. Mr. Juday has been a member of the Alaska bar since 1982. His practice emphasizes business transactions, commercial litigation and professional liability defense. He currently serves as the chair of the Alaska Bar Association's Committee on the Rules of Professional Conduct.

The merit-based process used for the selection of Super Lawyers involves peer nominations, a blue ribbon panel review, and independent research of candidates. The lawyers achieving the Super Lawyer designation are limited to only five percent of all attorneys in Alaska.