… Under the Same or Similar Circumstances

“… Under the Same or Similar Circumstances”

Recent events remind us that it’s impossible to define “reasonable” without knowing the context

Steven A. Adelman

Faithful readers know that everyone has a legal duty to behave like a reasonable person under the same or similar circumstances. Usually we use shorthand and say everyone is supposed to be “reasonable,” but that’s not very helpful, since it’s impossible to define “reasonable” without knowing the context. Several recent incidents have made me focus on the often neglected second part of this essential common law concept that affects every venue and event.

Strange Times at the Ballpark

I eagerly anticipated the start of the new baseball season. As both a fan and a collector of good teaching material, I was not disappointed.

The first game on the North Side of Chicago is a time of hope and optimism shared by the customary sellout crowd at Wrigley Field. But it took just a few innings to suggest that, yet again, this might not be the Cubs’ year. Consider this statement issued by Cubs management the next day:

“Opening Day at Wrigley Field has always brought challenges with wait times and tonight was particularly extreme. Two bathrooms in the upper deck went down temporarily forcing fans downstairs where we already were experiencing issues with long wait times. With 35,000 fans showing up in the ballpark tonight, we were simply not prepared to handle guests during peak periods. We have high standards for service and we missed the mark tonight.”

I imagine the Cubs don’t expect a sellout crowd at every game, but on Opening Night, would anything less than a capacity crowd have been reasonably foreseeable? The restroom lines were so long that people relieved themselves in beer cups and left them on the concourse. Given the strong likelihood of 35,000 people in the building, why were the Cubs unprepared to “handle guests during peak periods?” And how was no plumber available to quickly address the bathroom issue? (Ironic footnote: the Cubs’ spring training venue, Sloan Park, is named for the Chicago-based Sloan Valve Company, which makes plumbing equipment.)

Not to be outdone, the next day Miami Marlins management suffered their own strange loss of context. It rained during the Opening Day game between the Marlins and the Atlanta Braves. For anyone who has ever heard of south Florida, afternoon showers are no surprise, which likely explains why Marlins Park has a retractable roof. Unfortunately, the club decided to tempt fate by keeping the roof open. This bet failed with one out in the second inning when the skies opened. Since it takes 13 minutes for the roof to close, the field got soaked. The Marlins lost 2-1. “That was a first,” said Marlins manager Mike Redmond.

Really? Here in Arizona we can go weeks without rain, but does a reasonable person in Miami count on sunny skies all afternoon? I think not.

Mayhem in Baltimore

On a much more serious note, Baltimore’s initially ineffectual public safety plans last week again underscore the importance of considering events in their context.

We know that, the Sunday night after Freddie Gray’s funeral, residents of northwest Baltimore looted stores and burned vehicles, including police cars. Maybe the extent of the mayhem would have been a surprise if this had been the first death of a young African-American at the hands of police, but there is well-publicized recent precedent for just this sort of community reaction. Shouldn’t a reasonable person under these circumstances have had a better public safety plan than finally setting a curfew and deploying the National Guard two days later?

Baltimore provides another teachable moment for venue and event professional. This was an actual force majeure event. Look at any of your contracts and you’ll see something like “civil unrest” as one of the things that allows either party to rescind their agreement. But even when the existence of a force majeure event is indisputable, and therefore your right to back out of a deal is clear, you still may not want to. Instead, you may wish to absorb some short-term economic loss in order to preserve a business relationship or your reputation, thereby avoiding greater long-term economic consequences. The law, in this case, only tells you what you may do – the most reasonable decision may be different under your circumstances.

The Wells Report and the Weight of the Evidence

As a public service, here is a link to yesterday’s “Investigative Report Concerning Footballs Used During the AFC Championship Game on January 18, 2015,” better known as the NFL’s Wells Report. I will offer just a few lawyerly thoughts so you have enough time to plow through the report’s 243 pages, which you will doubtless do before claiming to know what it contains:

First, even before reading the report, a review of the first half game statistics with arguably deflated balls versus the second half figures shows an indisputable absence of causal effect on the outcome. This was a 45-7 blowout in which the Patriots won the second half 28-0 with fully inflated footballs. “Causation” is one of the four essential elements of a tort. Therefore, I say “no harm, no foul.”

Also, the lawyer in me has no problem with the use of circumstantial evidence, or application of a “more likely than not” standard for determining fault. In civil practice, we do this all the time, and the report seems to apply the civil “preponderance of the evidence” standard for a finding of fact, meaning anything over 50%. But this is only for civil cases, in which the worst possible outcome involves money changing hands. In criminal cases, one can be found guilty only “beyond a reasonable doubt.” As the NFL considers what to do with the Wells Report, it should be sure any punishment is consistent with its standard of proof.

Finally, in my initial cursory review of this doorstop, I see an awful lot of qualifying adjectives and adverbs, suggesting inferences rather than facts. It is a harsh thing to stand in judgment of another person, particularly if the evidence is thin. Let’s hope the NFL reads the report carefully.

There but for the grace of G-d go all of us.

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