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November 2005
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I suppose it depends on what you mean by "sex"

Yesterday, in Hernandez v. Robles, 2005 N.Y. Slip Op. 09436, the First Department, in a lengthy 57 page opinion, held that the Domestic Relations Law provisions that define marriage as between a man and a woman do not violate either the due process clause or the equal protection clause of the  New York State Constitution.

On p. 23 of the concurring opinion, Judge Catterson was attempting to establish that the DRL did not violate the equal protection clause and stated  "(t)hus, there is no discrimination on account of sex."  Given the context of that statement, the judge was obviously referring to gender discrimination.   However, I found that particular statement to be somewhat humorous since this case is really all about sex, both heterosexual and homosexual.   And, according to the majority opinion, the cornerstone of the reknowned institution of marriage is sex--intercourse as opposed to gender--of the heterosexual kind only, please.

I'd always envisioned marriage as a lifelong partnership founded upon mutual respect and love, a joining of two souls, entered into by  individuals who were willing to weather the course together, for better or for worse, for richer or for poorer, in sickness and in health. 

Apparently, I was mistaken.  As set forth in a very clinical manner in the majority opinion, the "reasons justifying civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth."   The majority opinion and the concurring opinion seemed to focus an inordinate amount of attention upon heterosexual sex and one potential outcome of the act:  a pregnancy.  Thus, it would seem that  a heterosexual marriage pretty much boils down to sex and procreation. 

Forget all those deep, introspective wedding vows, folks.  All you really needed to say was "I take this person as my lawfully wedded [X}, and promise to engage in frequent intercourse which likely will result in numerous pregnancies and childbirths."

Personally, I'm still on the fence regarding the issue of whether homosexual marriage is a fundamental right protected by the Federal or New York State Constitutions.  That being said, I'll close with the first paragraph of the dissent in Hernandez, since it rang true to me: 

Civil marriage is an institution created by the state, and the state makes numerous rights and benefits available to those entering into that status.  The denial of these rights and benefits to our State's homosexual residents is contrary to the basic principles underlying our constitution, our legal system and our concepts of liberty and justice, and perpetuates a deeply ingrained form of legalized discrimination.  It misses the point to ask whether the Legislature was purposefully discriminating at the time of its enactment of the challenged statutes.  At the time of their enactment the content and purpose of the challenged statutes were founded upon a discriminatory assumption, taken for granted by the Legislature and society generally, that marriage is a right necessarily limited to heterosexuals.  The statute ought to be acknowledged and analyzed as the discriminatory provision it is, and rejected as such.


"Work" is in the eye of the beholder.

In Gascoyne v. Occidental Chem. Corp., 2005 N.Y. Slip Op. 08384, the Fourth Department held that an insurer was obligated to defend and indemnify its insured, the employer, in a lawsuit commenced as a result of injuries sustained by the plaintiff, an employee.  The plaintiff was injured when she slipped and fell on an icy road while walking toward the worksite after she had signed in at the guard gate.

The owner of the work site commenced a third-party action against the plaintiff's employer and its insurer seeking defense and indemnification pursuant to policy language which stated that employees were covered for "acts within the scope of their employment...or while performing duties related to the conduct...of business."

The Fourth Department cited Daily News, LP v. OCS Security, Inc., 280 A.D.2d 576, 577, and concluded that the employer's insurer was obligated to defend and indemnify the employer because the plaintiff's work required her to use the road to reach and leave her workplace and thus "the underlying action arose out of the work [within the meaning of the policy language]".

The Fourth Department's decision is consistent with its precedent, but I'm not sure that I agree with  this line of cases.  Based upon the specific language of the policy at issue in this case, coverage was applicable only for acts conducted within the scope of employment or for duties performed in relation to the conduct of business.  It seems fairly clear to me that the plaintiff was not conducting business as she walked toward the work site, so the Court must have relied upon the first clause in reaching its decision. 

In this line of cases, the Court's interpretation of the concept of "scope of employment" is, in my mind, unduly expansive in that it contemplates any actions taken by an employee while on the job, regardless of whether the act occurred while in the process of actually performing work.  (For example, in Daily News, the employee was a security guard on his lunch break and the Court held that the policy at issue covered his actions.)

Accordingly, it would seem that insurers would be wise to include more specific provisions in their policies as to which actions by an employee are deemed to be within the scope of employment.


Watch your step

In Gilson v. Metropolitan Opera, 2005 N.Y. Slip Op. 08850, the New York Court of Appeals held that the defendant owed no duty to the plaintiffs, one of whom was a patron who was injured when she fell in the aisle during a performance. 

The injured plaintiff was seated in the same row as two other patrons, the Taitts.  Mr. Taitt suffered from Parkinson's disease and was unsteady on his feet.  Following the intermission and after the houselights had dimmed, the Taitts returned unescorted to their seats.  The injured plaintiff stood up and stepped into the aisle to allow the Taitts into their seats, when Mr. Taitt lost his balance and fell onto the plaintiff, causing her to fall and become injured.

The Court held that the defendant had no obligation to control Mr. Taitt's conduct and thus owed no duty of care to the plaintiffs.  The Court stated that to hold the defendants liable to the plaintiffs would impose an undue burden on all theater owners by requiring them to do more than simply maintain their premises in a reasonably safe condition.

The Court also noted that the defendant's internal policy, which required that ticket holders be escorted to their seats with the aid of flashlights when the houselights were low, went beyond the ordinary standard of care and could not serve as the basis for imposing liability even if the defendant had owed a duty to the plaintiff.

I think that this claim was incorrectly dismissed, and find myself siding with the dissent in this case.  On p.6, Judge Smith stated:

The majority grounds its opinion in the belief that the duty to keep the premises safe does not extend to plaintiff Gilson or Mr. Taitt.  The defendant had a duty to protect its patrons from harm caused by conditions on its premises.  As the dissenting justices below stated, these facts include whether the ushers should have let Mr. Taitt return to his seat, whether the stairs were lit to a level that fell short of industry standards, whether this created a dangerous condition for other patrons, whether the ushers saw Mr. Taitt walking in an unstable fashion, whether an usher should have accompanied Mr. Taitt, and whether Mrs. Gilson's injury was a foreseeable consequence of the Met's alleged breach of reasonable care.

In my opinion,there were foreseeability and causation problems, but those are issues of fact for the jury to decide.  A duty of  care was owed by the Met to its patrons, and I simply can't fathom how the Court of Appeals concluded that there was none simply by virtue of the way in which the accident occurred.   

As a result of this decision,I'm somewhat hesitant to attend the theater now.  But, the show must go on, and attend I will, dressed to the nines.  It shouldn't be hard to miss me--I'll be the one carrying a flashlight and wearing hiking boots and reflective gear.  Do say "hi".


A special need, indeed

Yesterday in Manhatten, Federal District Court Judge Richard M. Berman rejected the New York Civil Liberty Union's challenge to random police searches of the bags and backpacks of subway patrons.  Following a bench trial, Judge Berman concluded that the governmental interest in preventing a terrorist bombing of the subway system outweighed the invasion of privacy resulting from the random searches, and thus held that the searches passed constitutional muster.

His decision can be found here.  The NYCLU's Complaint can be found here.  The NYCLU's summary of the bench trial can be found here.

The judge based his decision on the "special needs" doctrine, which was originally intended to support searches in situations that were beyond the need for normal law enforcement.  Historically, if the special needs doctrine applied, searches could be conducted based upon less than probable cause, but only in certain carefully chosen regulatory (as opposed to law enforcement) contexts, as long as the purpose of the search did not include apprehension of one guilty of criminal conduct.  The situations in which the doctrine has been held to apply have been expanded by the courts in recent years.

I believe that the judge was overreaching in this case and am hopeful that he'll be reversed on appeal.  Otherwise, our Fourth Amendment rights will continue to be eroded to the point where any search without a warrant will be consitutional, as long as it was conducted in the name of the fight against the nebulous concept of terrorism.