Maybe it's a Jersey/East Coast thing but I love a good cheesesteak. My go-to spot after a late-night gig in Philadelphia was Pat's, the South Philly institution known as the King of Steaks. Across the street from Pat's is Geno's Steaks, which also has great steaks, but except for trying Geno's one time, I've always picked Pat's—perhaps because Pat's has been around since 1930 (as opposed to Geno's, established 1966), but more likely because Pat's had a scene in Rocky, one of my all-time favorite flicks. But I digress...

This headline caught my eye this morning when I was reading through my RSS feed: Is Geno's Steaks Liable For The Beating Of The Rangers Fan? This post is courtesy of Philadelphia personal injury attorney Stuart Carpey, who writes the Pennsylvania Injury Law Report for the LexBlog Network. Although I consider myself well-versed in tort law, I'm not a personal injury attorney per se. It is through my involvement in sports law that I typically run into tort (e.g. personal injury) practice.

Here's the basis for Carpey's post: A couple days after last week's Winter Classic hockey matchup between the Rangers and Flyers in Philly, a Rangers' fan was severely beaten while waiting to pickup his cheesesteak at Geno's. For those who've never been, Geno's (and Pat's) doesn't have a dining room, or any inside seating or service. They service all customers through a pickup window, which is virtually on the sidewalk of the South Philly neighborhood. And it's not uncommon for the line at either joint to wrap around the corner, or to wait an hour or longer to get to the front of the line and place your order. Based in part on those typical circumstances, Carpey proposes that Geno's was is liable for the Ranger fan's injuries:

[I]s Geno's responsible? They sure are, as a matter of law, and I believe they can be sued for money damages by Mr. Auricchio. A property owner is responsible for the criminal acts of third parties if they should have anticipated a danger to their customers. Owners of commercial property may be held liable... for harm to persons by criminal acts of third parties so long as the criminal act was forseeable...

The key language, however—if they should have anticipated a danger—is a pretty big if, because liability will be premised on the Ranger fan's ability to prove that Geno's knew that it was reasonably foreseeable that one of its customers could be attacked while waiting in line for a cheesesteak. ("Reasonably foreseeable" is lawyer speak, which basically means that such an incident was somewhere between possible and likely.)

Credit to Carpey for pointing this out as well, but I respectfully disagree with his conclusion that Geno's is liable as a matter of law. Why? Because the burden of proof falls on the Rangers fan, and he will have to demonstrate that Geno's knew or should have known that this was bound to happen. Even if he can show that Geno's knew or should have known, Geno's can still avoid liability if they can demonstrate that he created or escalated the situation, or that there was any other intervening cause for the altercation.

I genuinely feel for the victim, especially as a New York sports fan, but I don't see a big payday in his future coming from Geno's. What I do see in the future, however, is me stopping at Pat's today—for one Whiz wit—after my meeting in Philly.

Before we get into Pippen's specific claims, let's briefly review the law of defamation. First of all, defamation is the broader classification of two kinds of intentional torts (a type of civil lawsuit) that arise out of the making of false and disparaging remarks about another. If the disparaging remark or statement is oral, then the claim is for slander, if written, then it's libel. Anytime someone sues for defamation they must prove four elements to win. Although there are a few narrow exceptions, the most difficult of these elements to prove is, invariably, damages—i.e. what financial harm did the person suffer as a result of the disparaging statement?

Additionally, when the person claiming defamation is a "public figure" (e.g. celebrity, public official, etc.), they must also prove that the individual who made the defamatory statement/publication knew that the it was false (or recklessness as to the statement's alleged falsity). This is sometimes called the actual malice doctrine, and it basically means that there isn't liability for negligently or accidentally making a statement that is false about a celebrity.

Scottie Pippen has alleged that the various media outlets defamed him by publishing ten or so articles that either allege or imply that he filed for bankruptcy in or around 2003 (complaint PDF file). Furthermore, Pippen's attorneys claim that these publications constitute defamation per se, which is one of the narrow exceptions I alluded to earlier with regard to proving damages. When a statement is considered defamation per se, then you don't have to prove your damages. But there's a catch. Historically, there are only four types of defamatory statements that are considered defamation per se:

(1) allegations that attack a person's professional competence

(2) accusations of criminal activity (which must usually allude to crimes of moral turpitude)

(3) allegations of unchastity

(4) allegations of a loathsome disease (e.g. leprosy, HIV/AIDS, other STDs)

What's missing from this list? For starters, I didn't see "being poor," which is the only thing that would apply in Scottie Pippen's case. So unless Pippen's attorneys can convince the court that they should add "being poor" to the short list of per se defamatory statements, his claim for defamation per se is dead in the water. 

Pippen has also sued CBS, NBC, and the others for negligence, and for false light. Based on the actual malice doctrine the negligence claim is unfounded. As to false light, this is probably the only claim that Pippen has made that has a chance to withstand a motion to dismiss. So what is false light?

False light is somewhat similar to defamation, but is actually an invasion of privacy. The primary difference between a defamatory statement and one that gives rise to a claim for false light is that the crux of the former is a false statement, whereas the latter doesn't necessarily have to be false—typically a false-light statement is one that is misleading in a way that would be highly offensive or embarrassing to a person of ordinary sensibilities.

Based on all this, I would expect the attorneys for each defendant to file motions to dismiss counts one and three of Pippen's complaint, and I would also expect them to prevail on these motions. Pippen's attorneys could amend count three of the complaint to include ordinary defamation (as opposed to defamation per se), but even if they do, they will then have to prove that Scottie suffered some financial harm as a result of the alleged defamatory statements. Damage to his reputation and so-called good name aren't enough.

One last observation about this case: Assuming that Pippen never filed for bankruptcy, how did so many news outlets get it wrong? It's possible that one just copied the other after the other, which may make sense for some of the smaller defendants, but it surprises me that editors at CBS Sports and CNBC would have been so careless.

Earlier today, the NY Court of Appeals released a decision affirming the dismissal of a negligence case filed by Dr. Azad Anand, against his [former] golfing buddy, Dr. Anoop Kapoor, which arose out of injuries sustained from a shanked fairway shot. "A person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally[,] and flow from such participation."

Despite the fact that the victim, a neuro-radiologist, suffered severe vision loss as a result of being struck with the ball, the court noted that such an incident was not atypical in the game of golf (pdf file of the court's decision). Although the court did not say whether it factored into the decision, Anand was standing only 15 to 20 feet from Kapoor when the ball struck him, and at that close range, it's unlikely that a verbal warning would have prevented the injury in the first place.