Not surprisingly, Court dismisses Patrick Reed's most recent defamation suit

 Back in August of last year I reported that professional golfer Patrick Reed filed a defamation claim against a number of defendants including commentators for the Golf Channel, and I explained how the complaint was a good model to teach how NOT to  draft a complaint.  See here.

The complaint was based on obviously wrong arguments and I predicted it would be dismissed.  My prediction was correct and the case was dismissed in November.  But the dismissal was without prejudice and, thus, Reed and his lawyers were given a chance to amend the complaint and try again.

They shouldn't have because, as I argued back then, the claim was flawed from the start; but they did.  

And, predictably, they lost again.  As expected, the court found that the alleged defamatory statements were either not defamatory, rhetorical hyperbole, true or substantially true, or statements of opinion.

You can read the opinion, which is pretty detailed and long, here.

Golf and how not to plead a defamation claim -- UPDATED

August 26, 2022

Long time readers of this blog know that over the years I have posted many stories about golf related torts.  Go here and scroll down to see them.  Most of them relate to cases in which a golfer's negligence results in damages to another golfer or to a nearby property owner.  So today I bring you a golf story of a different sort.

If you know anything about professional golf, you know that there is a huge to do about the fact that a new professional tour (funded by Saudi Arabia) has been created to compete directly against the American PGA tour.  When a good number of top, established, PGA pro players signed to play with the LIV tour, the PGA banned them from playing in PGA events and the debate about the new tour started to get heated.

The availability of the LIV tour now threatens the PGA's control of the pro tour and its players, and the reaction to the competition has been very fierce on both sides.  PGA faithful players and commentators have spoken publicly against the players who defected to the LIV tour.  Players who defected have accused the PGA of many things...  etc.... ...  Insults and accusations are being thrown in all directions. ... You get the idea.

Enter Patrick Reed, a pro golfer who recently decided to leave the PGA and join the LIV tour.  For this, one of the commentators of the Golf Channel criticized him (and others) strongly over a series of broadcasts and Reed has now filed a claim for defamation.

That was a long intro for me to get to my point today.  If you want to learn how NOT to draft (or argue) a defamation claim, read the complaint now.

Here are some of the problems I see with the complaint. First, because of his celebrity golfer status the plaintiff will likely be considered a public figure so he has to meet a higher burden of proof against the defendants, who are members of the press.  Second, the complaint is full of conclusory statements characterizing the statements upon which it is based as "defamatory" with weak explanations as to how that conclusion is supported.  This is a problem because as alleged it is easy to point out that the vast majority, if not all, of the statements in question are not actionable because they are either statements of opinion (as opposed to statements of fact), insults or permissible hyperbole.  

And then there is the chance that maybe the judge could be convinced that the plaintiff is actually "libel proof" since his reputation is, well, not the best among many.  You can read more about the case and about Reed and his reputation here.  (As the author of that article says "It was a chain of suspicious incidents involving Reed and his golf ball, however, that smudged his image with a mark no eraser can fully eradicate.")

The complaint does have some statements that could be considered statements of fact (I think the point is debatable but I can see a judge not dismissing them for now) all of which relate to incidents in 2019 and 2021... and about those I wonder if they are affected by a statute of limitations.  

I am very interested in this case and I would like to see if the defendants file a motion to dismiss.  I would, and I think most if not all of the claims should be dismissed.  

---------------------------------

UPDATE (11-27-22):  In my original post I commented on how poorly the complaint in this case was drafted.  Not surprisingly, the court agreed and dismissed it.  The dismissal is without prejudice, so it is possible the plaintiff's lawyer may be able to fix it, but we will have to wait and see.  Here is the dismissal order.

I found out about the dismissal in the Golf Dispute Resolution blog, which includes a short comment that starts as follows: 

I typically question the wisdom of a public person with a questionable past filing a suit for defamation. The essence of defamation is damage to reputation. Thus, by commencing such a claim, plaintiffs invite inquiry into all aspects of their past. The damage calculation in many respects is a gap analysis: what is the difference between the reputation with and without the allegedly defamatory statements. A defamation claim can be the legal system’s warning that those living in glass houses shouldn’t throw stones.

Thus, like many, I was puzzled with Patrick Reed elected to take on Golf Channel and its media talent, Brandel Chamblee and Damon Hack, with claims that they had defamed him. Certainly, Reed’s history–including longstanding stories about alienation from his parents, issues with teammates during his college career, more recent suggestions that his on course professional play has included incidents of cheating–paint a large target on his back for defense lawyers eager to challenge claims that the broadcasters have damaged Reed’s reputation.

---------------------------------- 

UPDATE #2:  October, 2023

After the original complaint was dismissed without prejudice, the plaintiff filed a new complaint to try again.  They should not have since the basis of the claim was flawed, but they did.  And predictably, the case was dismissed again.  Go here for the story.

On the difficult to understand distinction between negligence and recklessness

I have often argued that the distinction between negligence and recklessness is difficult to understand.  True, on paper we can express a definition that supports and distinction between the two concepts.  For example, in New Jersey, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”   Yet, as is often the case, in practice this type of definition (and attempt to distinguish from negligence) is difficult to apply, as a recent case from New Jersey illustrates.

As reported in Golf Dispute Resolution, in this case the plaintiff asked the defendant to show him how to properly hit a golf ball. The plaintiff then said ‘All right, get back.’ He then set up a golf ball on a tee and explained how to set up properly to the ball, how to hold the club and how to start the swing. The plaintiff testified that he thought the defendant had moved back enough that he would not be in harms way, but did not confirm this visually before swinging the club.  Unfortunately, the plaintiff was not out of harms way, and when the defendant swung the club, he struck the plaintiff in the face causing severe injuries.

On these facts, the trial court determined that the defendant’s actions, at most, constituted negligence, requiring that the case against him be dismissed, which in my opinion, was the correct decision.  Often, states require a showing of recklessness in cases involving sports injuries and the conduct in this case does not sound to me to fit the definition of recklessness cited above.

The appellate court disagreed holding that the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties.

I disagree, on these facts, a judge could easily have concluded (in response to a motion to dismiss) that reasonable people would not disagree that the evidence presented did not support a finding of recklessness.

Instead, the court of appeals held that there exists a material fact in dispute concerning whether the defendant "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander."

And there is the problem:  saying that we have to decide whether someone "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander" is a long way of saying whether the actor acted unlike a reasonable person would have under the circumstances, which is, of course, the standard of negligence.

In other words, the court decided that holding the case was a negligence claim was wrong, but then remanded so the jury could decide the case based on applying a negligence standard.

The case is called Spataro v The Stakemaster and you can read it here.

So close!

As my students know, I like to play golf, so here is a video for all of you.  It shows how close professional golfer Phil Mickelson came to scoring 59 on his round a couple of days ago.   59 is the lowest score ever recorded in a professional tournament and it has been done only 5 or 6 times ever.  Watch to see what happens.  Now, since this post has nothing to do with torts, I will provide the following link to this post (which also has links to more posts) in which I discuss the concepts of duty and assumption of the risk as they relate to playing golf.

New York's erroneous approach to assumption of the risk in golf cases

Golf fans probably enjoyed watching the duel between Phil Mickelson and Bubba Watson this weekend. (Watson won by one stroke, in case you care.) Mickelson played very well and could have won, but he missed a couple of close putts and at one point hit a ball off the tee that went off target and hit a spectator. What does this have to do with torts? It reminded me that I had not yet reported on the decision of a case I have been following for over a year!

Long time readers of this blog will remember that back in April of 2009 I reported on a case called Anand v. Kapoor in which the court discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others. In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury. As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer!

The court's decision is available here. My original comments about it is availble here and here. The case was appealed and last December the Appeals Court issued its ruling. In a 2 page long opinion that adds nothing to the one by the lower court, the court affirmed. I still don't like the result, but because the new opinion adds nothing, I will not repeat my objections to the analysis here. You can read my older posts on the subject mentioned above. For more go to the Wall Street Journal Law Blog and to Jonathan Turley's blog.

New York's erroneous approach to assumption of the risk is back in the news

Long time readers of this blog will remember that I have criticized New York courts on more than one occasion for their sloppy analysis when it comes to the concept of assumption of the risk. See here and here, for example.  The first of these cases, about which I reported on back in April of 2009 is back in the news because the Court of Appeals just heard oral arguments. I am hoping the Court corrects the mistake.

The case is called Anand v. Kapoor and it is available here. My original comment about it is availble here. This is the case in which the New York state Appellate Division, Second Department, discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others.

In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. 

As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer!

Sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence ... unless what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

 For my full comment on the case go here. For more on the case go to the Wall Street Journal law blog.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.

Duty while playing golf?

Law.com has a story today about a case from New York that involved a number of interesting questions in the context of one of my hobbies.

The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.

Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.

One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.

The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.

Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.

But, unfortunately, that is not all.

The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."

This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.

First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.

Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."

I disagree with that as a torts professor and as a golfer!

It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.

Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.

The case is Anand v. Kapoor, available here.

UPDATE (Nov 18, 2010): The court of appeals heard oral arguments.  Take a look here for my reply to a reader's comments on the case.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.