(See minute marker 1:20-2:40 for the incident.)

At the U.S. Open, on September 14th, at the Arthur Ashe Stadium in Queens, NY, Serena Williams may have committed the tort of “assault” against one of the line judges at the tournament. In her semi-final match against Kim Clijsters, a line judge called a “foot foul” against Ms. Williams. Incensed, Ms. Williams approached the line judge with her racquet out and screamed, “If I could, I would take this … ball and shove it down your … throat.” The line judge also stated that Ms. Williams threatened to kill her, which she denied.

Notwithstanding the alleged “death threat,” Serena’s threat of physical violence did take place in New York. So whether the line judge would have a civil tort case against Ms. Williams would be governed by New York law. “Assault,” in New York, consists of:

  1. an intentional attempt,
  2. displayed by violence or threatening gesture
  3. to do injury to, or commit a battery upon,
  4. the person of another.

Clayton v. Keeler, 42 N.Y.S. 1051, 1053 (N.Y. Sup. Ct. 1896) (stating that “assault” is “to offer with force and violence to do hurt to another… holding up a fist in a threatening attitude, sufficiently near to be able to strike; advancing with a hand uplifted in a threatening manner, with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect.”).  Pope v. State, 79 N.Y.S.2d 466, 471 (N.Y. Ct. Cl. 1948), aff’d, 99 N.Y.S.2d 1019 (4th Dep’t 1950).

Contrary to the common use of the word “assault,” as a civil tort, assault is merely the visual or auditory threat by one person to do something violent to another person. But assault is not merely an idle threat. It must be some threatening physical act or words done by one person, who is actually capable of doing the threatened physical harm, to another person. For instance, before one commits the tort of assault by actually punching someone in the face, the act of drawing back one’s fist before the punch is thrown, constitutes “assault.” Whereas the actual contact of the fist with the victim’s nose is the tort of “battery.”  6A N.Y. Jur. 2d Assault § 4 .

Furthermore, the fact that assault must be an “intentional attempt” means that the person doing the threatening must actually intend to make physical contactwith the one who is threatened. 6A N.Y. Jur. 2d Assault § 5.

While Ms. Williams “displayed by violence or threatening gesture” a threat “to do injury to, or commit a battery upon, the person of another,” that is not enough. For the line judge to have a civil case against Ms. Williams for the civil tort of “assault,” the threat must indicate “an intentional attempt.” In other words, it must have been reasonable in the circumstances for the line judge to have felt that Ms. Williams actually would have carried out her threat had it not been for the involvement of the other officials who intervened (see minute marker 1:20-2:40 in the video above).

There are probably arguments that could legitimately be made on both sides of this issue. The fact that she approached the line judge aggressively, verbally threatened her with violent acts, and that her approach caused the line judge to run away from her in fear all indicate that her threats were serious enough that she would have actually carried them out had the line judge not fled and the two other officials not approached. This would not be the first case of a frustrated athlete carrying out some violent act.

On the other hand, it could have appeared that Ms. Williams’ threats were merely her way of expressing her frustration at the call, but that she had no intention of actually carrying them out, even momentarily. The issue could be rationally argued either way and would likely be the primary focus of an “assault” litigation were the line judge to decide to sue Ms. Williams.

If you need help with any sort of personal injury matter, whether it be for assault and battery or any other tort, please do not hesitate to contact our office by either e-mailing us or calling 800-344-6431.

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gregory-jacobsBecause of all of the personal injury and tort cases I see going through our office, I find this case very interesting.
On March 4th, Michael Jacobs filed suit in the District Court of Western Pennsylvania (click here for the Complaint, HT Erie Blogs) against the Center for Organ Recovery and Education (“CORE”) for wrongfully causing the death of their son in order to harvest his organs.  Michael and Teresa Jacobs’ 18 year old son Gregory sustained an injury to the head in a snowboarding accident in New York  in March of 2007, according to ABC News. He was airlifted to a hospital in Pennsylvania where he died and his parents agreed to donate his organs to others.

Because Mr. Jacobs is suing CORE in Federal court based on diversity jurisdiction, the court will have to decide which state’s laws to apply. Here, Gregory sustained his injuries in New York (the family is from Ohio), but the hospital where the alleged wrongful death took place was in Pennsylvania, because the boy was airlifted to that hospital from the site of the accident.  I would think that since the majority of the alleged wrongful conduct took place in Pennsylvania and I would assume that the majority of the witnesses, parties and evidence that relates to the alleged conduct is in Pennsylvania, the District Court will probably apply Pennsylvania law.

According to the Pennsylvania Consolidated Statutes § 8301(a), “[a]n action may be brought…to recover damages for the death of an individual caused by the wrongful act or negligent or unlawful violence or negligence of another if no recovery… was obtained by the injured individual during his lifetime… to avoid a duplicate recovery.”

According to Mr. Jacobs, the hospital negligently informed him that Gregory was brain dead before he had actually been brain dead, and that he agreed to have Gregory’s organs donated on that basis. The hospital officials state that Gregory was definitely brain dead when they removed his respiration and began to remove the organs.

It will be interesting to see whether the hospital, in fact, did not follow procedure and whether they were negligent such that the Jacobs will be able to prove, by at least a preponderance of the evidence, that the hospital was indeed negligent in taking Gregory off of life support and beginning to remove his organs before he was actually brain dead.

I think that many people find this story particularly fascinating because they harbor a quiet, morbid fear of having their own organs removed while they are still alive.  The facts of this case may not fully come out until a full trial, but it is indeed possible that the family of the deceased are merely grasping at straws and seizing upon what could be an innocuous discrepancy in the hospital’s records to build a case that may actually be baseless. Only time will tell but I am sure that many of us will be watching it with great interest.

Picture of Gregory Jacobs courtesy of ABC News.

father-divineThe latest in a series of law review articles has been released that relate to the tort of “Tortious Interference With Expectation of Inheritance.”  In those states that recognize this tort, it gives someone the right to sue a decedent’s beneficiary or distributee for money that is allegedly wrongly received in an inheritance when the following elements proved by preponderance of the evidence (i.e., 50.1% proof for each element):

  1. the existence of the expectancy;
  2. that the defendant intentionally interfered with the expectancy;
  3. that the interference involved tortious conduct such as fraud, duress, or undue influence;
  4. that there was a reasonable certainty that the plaintiff would have received the expectancy but for the defendant’s interference; and
  5. damages.

Irene D. Johnson,  Tortious Interference With Expectation of Inheritance or Gift – Suggestions for Resort to the Tort, 39 U. Tol. L. Rev. 769, 771 (2008) (citing Sonja Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229, § 2 (1983)).

In New York, however, this tort is not recognized. But aggrieved beneficiaries may resort to the remedy of “imposition of a constructive trust” in many, although not all, situations in which that person would have sued for tortious interference with expectation of an inheritance in other states, and with similar benefits. Diane J. Klein, A Dissappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious Interference With Expectation of Inheritance – A Survey With Analysis of State Approaches in the First, Second, and Third Circuits, 66 U. Pitt. L. Rev. 235, 282-86 (2004).

The leading case for the imposition of constructive trusts in New York surrogate’s court, as a remedy for the same kinds of fraudulent actions that the tort of interference with expectancy of inheritance is meant to address, is the New York Court of Appeals decision in Latham v. Father Divine from 1949.

In that case, Lucy Latham bequeathed Father Divine, a charismatic preacher, and several of his associates, the bulk of her assets in her Will. Several cousins of the deceased testatrix brought significant evidence that Ms. Latham intended to draft a new Will for their benefit, but that associates of Father Divine physically stopped her from executing it and the cousins allege that the preacher’s associates ultimately killed her to prevent her from executing another Will. After a settlement in Surrogate’s Court, these cousins sued Father Divine and his associates in order to have the court impose a constructive trust on the assets Father Divine received.  This would effectively force him to turn over the money and property that he received to the plaintiffs.

The Court, in that case, explained  (page 30) that:

The answer is in Ahrens v. Jones (169 N. Y. 555, 561[]): “‘The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them.'” (emphasis added)

As noted by Prof. Johnson (supra at 239), constructive trusts may not have all of the advantages of the tort remedy. For instance, an aggrieved expected beneficiary cannot use this remedy against an innocent third party to whom estate property was sold after receipt of the assets by the fraudmeister. Also, a constructive trust will not allow a plaintiff to get actual damages, compensatory damages, punitive damages, or a jury trial. 

But for those of us in New York, the constructive trust is all we’ve got!  As readers of this blog know, our office has a very busy estate litigation practice so if you think that you, or someone you know, has been cheated out of an inheritance by some wrongdoing by another, you can call us to discuss your case.

Picture of Father Divine courtesy of tailorstreetstudio.