PART ONE
When someone is injured while on someone else’s property and claims it was caused
by the negligence of the owner or occupier, if there be an agreement as to the cause, extent of injuries and value, there would be no reason to institute a law suit. Should there be no agreement on any or all of the above, a law suit is instituted so a jury can make the findings and a disposition of the suit.
I practiced law for over fifty years and handled dozens of such law suits, mostly representingthe defendant. One entity I represented was The Concord Hotel located in upstate New York’s Catskill mountains. One day a young man and his wife, who was at the time pregnant, checked into the hotel for a week’s stay. Midweek, the husband decided to go horseback riding with one of the hotel’s horses. While alone on the trail, he fell off the horse and struck his head on a stone boulder at the side of the trail. He suffered a skull fracture, became unconscious and subsequently died.
A claim was made against the hotel the horse was an unruly animal unfit for quests, for which the hotel should be financially responsible to the deceased’s widow.Taking into account the wife’s young age and the birth of a child, if there was any liability on the part of the hotel, a financial award could be in seven figures. It was the hotel’s position, there was nothing wrong with the horse. It was a tame animal and it was not responsible if a rider falls off the horse.
A law suit was instituted against the hotel and ended up in the United States District Court located in Foley Square Manhattan. Since there was no one on the trail when the rider fell off the horse rendering him unconscious and death, the basic question involved was how could it proved the hotel did something wrong, as distinguished from the rider simply losing his balance and falling off the horse. In the law suit, the hotel could demand what is called a Bill of Particulars that requires specifics on what the claim is based. The response was the horse was an unruly animal, not the kind that should be made available to guests. It was the hotel’s position all of its horses were gentle, that it never had claims to the contrary, and how could the plaintiff establish the horse was in fact unruly. Depositions pressed the plaintiff to prove the horse was in fact unfit, and that indicated the following.
A teenager lived in the area and was the son of a man who worked at the hotel’s horse stable. He claimed he often went to the stable to help his father, the latter who incidentally had passed away before any claim was asserted against the hotel in the subject lawsuit. The teenager said during the Spring before the Summer in which the subject incident occurred, after school one day, he went to the hotel horse facility and at that time he noticed a new horse. He claimed it was his task to ride the horse to determine if it was gentle and suitable. He claimed after riding the horse on the mountain trail, he returned telling his father the horse was difficult to keep under control and not suitable for use by hotel guests. Suffice it to say, if there be any truth to the teenager’s claim, the hotel could be responsible for the incident. Since the teenager’s father was deceased, he could not be asked about the son’s claim.The person who was in charge of the horse stable said the teenager occasionally saw his father, but he had nothing to do with the stable and its horses.
The question was then clear. Could we prove the teenager was not telling the truth and was in fact put up to lie. An investigation was then instituted.The first stop was at the school the teenager said from which he went to the hotel's horse stable. The school records indicated at the time in question the teenager was not a student at the school. If he was not a student, where else was he? We found out he worked at a gas station and when we tried to locate the gas station, it was no longer in business. We determined the name of the owner, found where he lived to see if we could prove on the day in question the teenager worked at the gas station. When we got to his home, his wife said he was in Europe at the time and would not be back for several weeks, so we were unable to use his testimony. We located the farmer who had sold the horse in question to the hotel and were told it was a gentle animal. We located a ten year old girl in the area who used to ride on the hotel trail and said she had ridden the subject horse several times and found it gentle. We also located two men who also used the hotel trail with their own horses and we were told they had seen the horse on the trail a number of times, and it was not unruly.
The case came up for trial and the plaintiff's case was based on the teenager’s testimony.
All the facts we had developed as aforesaid, were introduced. After both sides rested, the case was given to the jury. Two days after deliberating, a note was sent to the Judge. He was told the jury was split six for the plaintiff and six for the defendant, and they believed they could not reach a verdict. The Judge dismissed the jury and sent it back to the central part for assignment to another judge for a re-trial.
Several weeks later, we were back in court before another Judge. Since several weeks had elapsed before the second trial, we were able to find out if the gas station operator was back in this country, and it turned out he was. He also had employment records which indicated the teenager was in fact employed at the station on the day he claimed he had been in school and the hotel. It was clear the teenager was not telling the truth, but who put him up to it, can only be speculated. After several days of trial, the case was given to the jury. After three days of deliberations a note was sent to the judge advising the jurors were split six to six and did not think they could reach a verdict. The judge advised the plaintiff’s lawyer and me, he had to consider a mistrial. We were told to return the next day and if there was no change, he would declare a mistrial. We returned the next day and the judge told the jury to give more thought. By the afternoon, a note to the judge indicated it was still a six to six split and would not be changed.The judge then dismissed the jury, but before he declared a mistrial, plaintiff's attorney advised the judge rather than a mistrial, his client was willing to allow the judge to decide the case, but he did not know what my position would be. It was clear to me after trying many cases, there were six jurors who clearly understood the teenager was not telling the truth, and six jurors who wanted a young widow and child to be awarded a verdict that would undoubtedly be paid by the hotel’s insurance company, and chose to accept the teenager’s claim. I also believed the plaintiff’s attorney was of the thought the judge would also know the award would be paid by the hotel’s insurer. If we were in a state court where many judges are political appointees, I would not agree to allow such judge to decide the case. In this case however, we were in a federal court in Manhattan where very bright judges preside. After witnessing the judge in our case it was clear to be me he was exceedingly intelligent. I told the judge I needed to discuss the matter with my client and would give an answer the next day. After speaking to my client, the decision was left in my hands. I returned to court the next day and both myself and plaintiff’s attorney stipulated on the record, for the judge to decide the case. The judge then advised us to return the next day and he would render his decision.
PART TWO
It was my practice not to discuss cases in which I was involved, with members of my family. This case was different because it went on a long time and they understood the issues involved and how I felt about the case. When I came home and said I was upset the judge instead of deciding the case that day, said to return the next day. Did that mean he needed time to decide an amount of an award? When I said that, my son Carl who was than about 10 years old and familiar with the case, exploded and said “ You cannot trust the establishment and I was foolish to agree to let the judge decide the case.” I had trouble sleeping that night. When I returned to court the next day, the judge said: “ Step up counsel. Do you both have the permission of your clients for me decide the case?” Both plaintiff’s attorney and I answered “Yes.”
The judge then stated “ I find for the defendant.”
Later that afternoon I called my wife to tell her I won the case and to tell Carl when dealing with intelligence, you can trust the establishment. When I arrived home, waiting for me was a drawing Carl made dealing with the case. It depicted my adversary and I in a boxing ring with me knocking him out.
That same evening my wife and I and another couple had tickets to a show at Lincoln Center. When we arrived and were in the lobby waiting for the theatre gate to open, I heard a voice say: “ I spent almost three weeks with this man and on my night off, I have to see him again.” I turned around and there co-incidentally was the trial judge and his wife. He said “ That lawyer had a case in my court and won it, saving an insurance company a million dollars.” I told the judge I was of course pleased to win, but more important I explained what my son had said, and thanks to you judge, I was able to convince him, an intelligent establishment can be trusted.
The end result? I won two cases.
Ben Haber
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