Since I am a New York personal injury lawyer, you might think I never met a personal injury case I didn’t like. Nothing could be further from the truth. I reject more injury cases than I take. One reason I reject so many is that injuries are often caused by no one but the injured. They sometimes try to blame others when there is no one to blame but themselves. When that happens, obviously, there is no one to sue.
One thing I have learned in this profession is that, if there is a way to get hurt, some people will find it. Mostly guys. Some guys just live kind of dangerously. And I am one of those guys.
I have gotten injured through my own male stupidity many times. Here’s one more to add to my long, painful record.
Here’s my story: I went to Hawaii recently with my wife and of course we spent some time on the famous Hawaiian beaches. At 62, I still consider myself pretty athletic. And active. I am not a lie-around-on-the-beach kind of guy. I need action! So for me it was tough to just watch all those young surfers ride the waves. I had to get in on the fun.
Since I did not have a surf board, and have never surfed, I decided to try “body surfing”. It seemed simpler than surfing on a board. You make your own body into a kind of “plank” that rides the wave like a surfboard. To get started, you have to swim out from shore, then wait for a big wave, then swim and kick as fast as you can toward shore to “catch” the wave as it tries to pass you. You then level out on top of the wave with one hand out in front of you to push against the surface of the water and ride the wave.
It sounds pretty easy. And it looked like something I could do when I watched a few Youtube clips of it. So I gave it a try.
The results are shown in the photo to the left above. Instead of catching the wave, the wave swallowed me up. Then I got churned around head over heels under the wave. I felt like I was being spun around inside a washing machine — and then – bang! My face smashed against the hard and sandy ocean floor. I saw stars. I emerged from the sea dizzy, with neck pain and a head ache, and – I soon discovered – a bloodied face. The ocean had churned me up and spit me out like some rancid piece of meat it wanted nothing to do with.
Injured, yes. Badly, no. Mostly my pride. (I am fully recovered). Someone to sue? Hell no. My own stupid fault. I underestimated the power of the sea and overestimated my own athleticism. This is a classic “assumption of the risk” case.
But what about this other thing that happened to me in Hawaii? My wife and I were having breakfast when we got this message on our iphones (See photo on right). The message was accompanied by a screeching audible alert emanating from our phones.
Our hearts raced. We were scared. But there was nothing we could do. No where to hide. We were already in a “shelter” (the B&B where we were staying). Should we call our kids? Say goodbye? Give them last minute instructions? Or should we just finish our breakfast, and if so, should we finish it quickly (to make sure we got our last meal in) or slowly (to better savor our last meal)?
As I am sure you know by now, the alert turned out it was a mistake. Whose mistake? Some nameless employee at the Hawaii Emergency Management Agency. Can we sue him or her or her employer for the needless emotional distress we endured? What if my wife or I had died of a heart attack from the shock and fear? Could we sue them then?
No. Government agencies, in circumstances like these, are protected by a host of special legal defenses, including the “governmental immunity defense”. The law is set up precisely to protect tax payers from endless and expensive lawsuits for government snafus like this one.
So I got “injured” twice in Hawaii. And no one to sue for either injury. But that’s ok. It was an awesome trip. It was a vacation from lawsuits.