Monday, May 26, 2014

U.S. Supreme Court Edits Decisions Without Notice

            According to a recent article in the New York Times by Adam Liptak ("Final Word on U.S. Law Isn't: Supreme Court Keeps Editing," 5/24/14), the United State Supreme Court has been regularly editing its decisions - without making public notice of the revisions.  According to Richard J. Lazarus in the article, law professor at Harvard and the author of a new study regarding the practice, the edits include "truly substantive changes in factual statements and legal reasoning."

            This practice is seemingly troublesome - particularly for attorneys across the country - as the decisions are relied upon for guidance, and the finality of them is now discovered to be uncertain with respect to significant legal holdings.  This was particularly noted by Jeffrey L. Fisher in the article, a law professor at Stanford, who stated, "[i]n Supreme Court opinions, every word matters...[w]hen they’re changing the wording of opinions, they’re basically rewriting the law."

            One reason the article notes for the revisions is due to the time constraints the Justices have when writing and publishing their decisions (which sometimes lead to inaccuracies and misstatements of law).  Also, according to Mr. Liptak, the final versions of decisions do not always fully replace the original ones, and the only way the public can identify most changes is by a rigorous comparison of early versions of decisions to ones published years later.

Salvatore R. Marino, Esq. 

Friday, May 2, 2014

Negligent Security Case is Dismissed

            In Vekhter v. Vishnyakov and Astoria Caterers, Inc. (NYLJ 1202653274435, at 1, Sup., Kings, decided April 21, 2014), the plaintiff brought a negligence action against a defendant restaurant, alleging that the restaurant was liable for injuries he suffered as a result of being attacked by another patron of the establishment when he was there.  Particularly, the plaintiff alleged the following causes of action: negligence and battery; intentional infliction of emotional distress; assault; negligent infliction of emotional distress; premises liability; negligent hiring, supervision, and retention; failure to provide security as required by New York City Administrative Code §20-359; and punitive damages.

            After the defendant made a motion for summary judgment (seeking to dismiss the plaintiff's action), the Kings County Supreme Court granted the defendant's motion, holding, among other things, that the plaintiff failed to raise a triable issue of fact with respect to issues of proximate cause and foreseeability.  The Court also stated the following: "While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault...Nonetheless, plaintiff's vague and conclusory assertion that 'fights like [his] regularly happened' is insufficient to support a duty on [defendant's] part to provide security either generally or for [the event].  Plaintiff provides no evidence of a history of assaults or altercations either at [defendant's restaurant] or [similar events] held elsewhere."

Salvatore R. Marino, Esq.