Monday, October 18, 2021

Accidental deaths on nonpublic stairways threaten public transit with tort liability in London, Boston

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)
An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

The facts of the cases differ, but both point to the obligation of aging transit systems to secure their physical infrastructure, even against risks to trespassers.

Bernard Ovu, a 35-year-old IT specialist for the UK Bar Council, fell, hit his head, and died in 2017.  On a meandering journey on a bitter-cold night, Ovu was returning home from a wedding; a post mortem test reported his blood-alcohol level at 0.176%.  At about 2 a.m. at the Canning Town Station, Ovu went through an emergency exit door, where an emergency stair led to a second door to the street.  Surveillance showed that Ovu reached the street-level exit door, but, for unknown reasons, did not push it open.

An image in the Ovu opinion depicts Canning Town Station.
The triangle marks the platform exit; the square marks street
access. Ovu fell at the circle.

Meanwhile, responding to a silent alarm, an Underground worker had secured the platform-level door.  Evidence showed that Underground policy required workers to sweep the area before re-securing the door, but no sweep was done.  Underground officials knew the emergency way was accessed occasionally, especially in late-night hours, by persons seeking to urinate or vomit.  Ovu could not reenter the platform and apparently believed himself trapped.  Seeking another exit, he fell on the stairs at 2:49 a.m. and died, possibly as a result of the combination of his injuries, intoxication, and the below-freezing temperature.

A professor in the Boston University School of Public Health, David K. Jones also was in a place where he should not have been.  The 40-year-old was out for a Saturday morning run in September when he took a staircase down from an overpass near the JFK Station.  The staircase was rusted and missing six steps: a gap through which Jones fell 20 feet to his death.  The staircase had been closed for 20 months and was fenced off at top and bottom; it is unknown how or why Jones entered it.  The MBTA removed the stairway days after the accident.

With investigation continuing in the Jones accident, the MBTA system has since suffered a bloody escalator accident and a pedestrian near-miss with debris falling from a stairway.  Commentators have thus linked the state of the transit system with the national debate over infrastructure financing.

The court in the Ovu matter ruled that Ovu was a trespasser in the emergency way and that the Underground had conducted itself reasonably relative to that status.  Despite the Underground's derogation of policy, Ovu had arrived in his predicament through his own misfeasance, and he was not in fact trapped.  It remains unclear whether Jones knowingly passed through secure fencing; if he did, then he was a trespasser on the rusty stairway from which he fell.  If that was the case, then Massachusetts law would not preclude liability, but would afford less latitude to a plaintiff than UK law.

Historically, common law was unforgiving of trespass.  The web of rules that evolved for the problem of landowner liability for dangerous conditions varied the liability rule depending on the status of the injured person.  At its simplest, distinctions were drawn in the three categories of public invitees, social guests ("licensees"), and trespassers.  The latter were owed little in the way of landowner duty, at most to refrain from the intentional or reckless infliction of harm.

Common law complexity has gradually given way to a unitary "reasonableness" standard, under which the status of the plaintiff is referred to the jury as a circumstance for its consideration.  When the Washington Supreme Court chose to retain the common law framework in 1986, it observed that only nine states had moved to the unitary standard—as well as England, by statute.  Today, half of states have adopted the unitary standard, and it is favored by the Third Restatement of Torts.

But among unitary-standard states, trespassers are not necessarily incorporated, reflecting a continuing vitality in their common law disfavor.  States, including Massachusetts, exclude trespassers from the unitary standard by a ratio better than two to one.  After some wrangling in the case law, the UK by statute incorporated trespassers into the unitary standard.

Thus, Ovu, even as a trespasser, was owed a duty of reasonable care.  A Massachusetts trespasser can prevail only upon proof of reckless or intentional wrongdoing.  If the estate and family of Jones seek liability from the MBTA, they will be far better off if the investigation uncovers a defect in how the stairway was secured.  If Jones made an innocent mistake of fact, then plaintiffs might hope to challenge his status as a trespasser and move him to within the unitary reasonableness standard.  That uncertainty might explain why there has not yet been report of a lawsuit in the Jones matter, while the Sept. 26 escalator accident yielded a suit by the first of October.

It happens that the Massachusetts Appeals Court heard a case about just such a mistake of fact in 2016.  In Bernier v. Smitty's Sports Pub, Inc., a pub patron in his 70s, Ronald Leger, was killed when he fell down a dark basement stairwell with uneven steps.  Leger mistook a door marked "Employees Only" for the entrance to the men's room.  He had been drinking, but had been to the pub and used the restroom before.  The door usually was locked, and there was no evidence that a patron had made the same mistake before.

The trial court in Bernier ruled Leger not a trespasser.  The adequacy of the marking on the unlocked door, at the pertinent time at which Leger stood before it, was incorporated into the question of negligence for the jury's consideration.  The jury awarded the plaintiffs 80% recovery after reduction for Leger's own negligence in making the mistake.

On appeal, the court affirmed.  The status of a visitor on land, trespasser or otherwise, was properly a question of law for the trial court, the Appeals Court opined.  The jury verdict was sufficiently supported by the evidence.  One could imagine a similar analysis in the Jones matter.

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law TheoryWells, Anderson, & Race, LLC, Denver, Colo., prepared a 50-state survey of landowner liability regimes in the United States in 2015 for the National Association of Minority & Women Owned Law Firms.

Thursday, October 7, 2021

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"
catalyzed conversation on the Iraq war. Now archived at the Library of Congress.
The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."
I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Tuesday, October 5, 2021

Unregulated, 'Dark Waters' chemicals persist in cookware, clothing, sickening people, environment

Comedian and social critic John Oliver's latest top story on HBO's Last Night concerned PFAS, the artificial chemical substances behind non-stick coatings on cookware and incorporated into food wrappings and textiles, known to be highly dangerous to human health.


The stuff persists, Oliver explained, in new, unregulated, and unlabeled formulations, despite a horrific track record of illness, from obesity to terminal cancer, and environmental damage.  Oliver related recent history by quoting parts of the landmark New York Times Magazine feature by Nathaniel Rich in 2016, "The Lawyer Who Became Dupont's Worst Nightmare."  That piece inspired the unsettling 2019 feature film Dark Waters.  Oliver also excerpted a 2018 documentary, The Devil We Know.

PFAS, a "forever chemical" that persists in the environment for thousands of years, is now in the blood of virtually all Americans.  Food wrappings and clothing are our greatest risk, Oliver explained, and there is no labeling to warn us.

I just caught this on a spot-check. Adiós, sartén.
In my household, since Dark Waters brought the issue to our attention, we've exclusively adopted silicone tools to use with non-stick-coated cookware.  And at the first sign of scratching, out goes the pan or pot: a pricey luxury we are lucky to be able to afford, while we only worsen the environmental problem.  We have lately been investigating non-stick alternatives, and Oliver has ignited the gas burner under us to get moving on that.

PFAS is in the water supply, too, sometimes in alarming doses, 70 parts per trillion (ppt) being the EPA's recommended maximum concentration in drinking water.  Oliver pointed viewers to a "PFAS Contamination" interactive map created by the NGO Environmental Working Group.  The map is intriguing and informative to play around with, as it compiles water quality data from around the country.

But the most frightening takeaway from the map is the data it does not contain.  Data collection is hit or miss.  The closest results to me in East Bay Rhode Island come from a small school serving only 40 persons (4 ppt), a Massachusetts water district serving 13,627 persons (20 ppt), and the Pawtucket (R.I.) water system, serving 99,200 persons and reporting a PFAS excess at 74 ppt.

My local water authority, Bristol County (BCWA), says my water rather comes from Providence, which is not on the EWG data map, and where water quality reports appear to be missing.  It further undermines my confidence in the system that BCWA has been wanting to build a pipeline to Pawtucket, which offers, BCWA says, "another source of excellent quality water."

At last, Europe is moving ahead with regulation; I hope that will spur the United States to follow suit.

[UPDATE, 17 Oct. 2021:  Providence Water sent me a copy of the 2020 Water Quality Report in the mail. As anticipated by Oliver, there is no mention in the report of PFAS.]

Saturday, October 2, 2021

Sheriff FC tells two tales, because that's football, life

Selfie, today (RJ Peltz-Steele CC BY-NC-SA 4.0)
The Sheriff Football Club from Tiraspol in Transnistria, Moldova, defeated western European powerhouse Real Madrid, at home at the Bernabeu, in Champions League football last week.

Coincidentally, I've lately been sporting my "Sheriff" ball cap.  I wrote about Transnistria after my visit there, and to Sheriff's 12,000-seat stadium in Tiraspol, two years ago: "Breakaway state of Transnistria might model new Russian sphere of influence" (Dec. 16, 2019).

It's interesting to see how media outlets describe Sheriff's geographic home.  Most I've seen say "Moldova," which, I guess, is what you find if you look at a political map.  Wikipedia describes Tiraspol as "the capital of Transnistria, a breakaway state in Moldova."  Only in an Al Jazeera main headline did I see exclusive mention of Transnistria.  The subhede then started, "Football club from a pro-Russian separatist enclave in Moldova."

After I crossed into Transnistria and showed my papers to the heavily armed border guards to get my 24-hour visa in a flurry of stamps, I didn't feel like I was still in Moldova.

Most media outlets have not picked up the political thread on the upset story.  In one exception, Sheriff's road to Champions League glory is well contextualized by Gab Marcotti for ESPN FC.  He observed that none of the Sheriff players are Moldovan or Transnistrian—but before one "get[s] high and mighty about national identity, please consider that at the final whistle, there were exactly zero Spaniards on the pitch."

Is the Sheriff-over-Real-Madrid story "a 'fairy tale' or a sad reflection"? Marcotti wondered.  On the one hand, there is the peculiar joy of football as sometimes, or seeming, social leveler:

Let it be a reminder that ordinary players, on an ordinary Tuesday night, can walk into the temple of football and knock it down, like Samson back in the day. That's part of the appeal of this sport. It's low-scoring, it's mano-a-mano, and the gap between superstars and extras may be huge over time, but on any given day, it can be tiny and anything can happen.  

Marcotti drew on a Twitter thread from near-Tiraspol-born, ethnically Russian, now Baltimore, Md.-based sportswriter Slava Malamud to illustrate the other hand:

[Sheriff] have been Moldovan champions in 19 of the past 21 years, they have the country's only modern stadium and they're bankrolled by the Sheriff corporation, a conglomerate that includes Transnistria's only supermarket chain, gas station chain, telephone network, TV channels, publishing house and distillery. The owners have close ties to the local government, which, in turn, is funded and protected by Russia. This isn't just a company team; it's a company town in the company enclave of Transnistria, and you can't shake the feeling that this is what it takes for "fairy tales" like this to take place in the modern game.

Football is metaphor.  What happens on the pitch, especially when recounted by capable journalists, is contradiction, because contradiction is football, and football is life.  Sheriff is fairy tale and sad reflection.  In the same way that pride and frustration are fast friends.

Undefeated in the group stage, Sheriff now leads UEFA Champions League Group D with wins over Real Madrid and Ukraine's Shakhtar Donetsk.  Sheriff will face Inter Milan, in Milan, on October 19, again putting the fairy tale to the test.

(Below, BT Sport tweet from Sheriff's August win over Dinamo Zagreb to reach the Champions League (retweeted by Malamud)).

Friday, October 1, 2021

Boston flag scrap heads to Washington

Three flagpoles at Boston City Hall (photo by Daderot CC0 1.0)
A Boston First Amendment flag-flying case is Supreme Court bound.

The case centers on three flagpoles at Boston City Hall.  The city flies the U.S. flag and POW/MIA flag on one pole, the Massachusetts flag on the second, and usually, the city flag on the third.  However, the city occasionally replaces its own flag with another.  The city refused a request by Camp Constitution, a religiously oriented civic organization, to fly the Christian ecumenical flag.

The First Circuit, affirming the district court, ruled for the city.  The court applied the government speech doctrine, holding that the third flagpole was reserved for the government's own speech, not opened as any kind of public forum for private speech.

The decision was supported by the testimony of city commissioner George Rooney, who said that he reviewed applications for flag raising for "consisten[cy] with the City's message, policies, and practices." The city moreover relied on its own First Amendment obligation not to establish religion.

Camp Constitution maintains that the application process expressly dedicates the flagpole as a public forum, so the First Amendment public forum doctrine should pertain.  In a public forum approach, the appellant reasons, exclusion of the ecumenical flag would be an impermissible discrimination against a religious viewpoint.

As the parties' positions demonstrate, the line between government speech doctrine and public forum doctrine is not always bright.  The government has the power to utter its own messages; think of Nancy Reagan saying, "Just Say No," or President Biden telling people to get vaccinated.

But when government opens a forum for public participation, its ability to censor within the forum is limited to setting the parameters of the forum.  Censorship of messages based on content must satisfy heightened First Amendment scrutiny, and censorship based on viewpoint is generally disallowed.  The paradigm is a bulletin board in a city park where the public is invited to post flyers.

Forums can be metaphysical, too.  Public forum doctrine was employed to limit President Trump's ability to excommunicate Twitter followers.  Tumultuous litigation over vanity license plates in the states have tugged back and forth across the government speech-public forum line, depending on how the government sets up the program.

The problem here is in large part of the city's own making, because, the First Circuit told us, "the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application."  So Rooney was processing "applications," when "applications" were not really a thing.

Three months after Camp Constitution initiated litigation, the city adopted a written policy.  The first rule of the policy, on which the city now relies, "forbids the 'display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'"

The city's position is not helped by its history of flying a lot of flags.  The court recounted:

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

The city balked, it said, when faced with a first request to fly a religious flag.  The city believes that distinction bolsters its position in consistent policy and anti-establishment.  The same fact supports Camp Constitution's position, that the city is impermissibly hostile toward religion.

Flag controversies have been raging across the country.  My own hometown of Barrington, R.I., was rent in factions when, after a racially charged confrontation between residents, the town manager flew the Black Lives Matter flag at the town hall.  The United Veterans Council objected to what it perceived as diminution of the U.S. flag.  Like in Boston, the controversy was fueled by the town's lack of a policy.

The Supreme Court granted cert. in the Boston case yesterday.  Track Shurtleff v. Boston, No. 20-1800, at the Supreme Court and at SCOTUSblog.  HT @ The Volokh Conspiracy.