Haven’t heard about this case yet? No worries, my short overview is here -> Bouchard vs USTA. Please take a quick look, this page will be here when you come back.

My 2 cents. The USTA is posturing for a settlement in my opinion and would be well served to get out of this case early. I don’t know of any potential juror who is unfamiliar with, or hasn’t themselves placed a Caution Wet Floor sign out at some point in their life. This is where I see the issue lies for the Defendants in this case. It isn’t like Bouchard climbed on a snow and ice covered roof to take in the view, most people are going to find she was reasonable in being where she was, and even if not, it would certainly be reasonable to lay out a sign saying “Wet Floor” when there is a wet floor.

Not surprisingly, there were not a lot of admissions in the Answer from the USTA which was filed on March 13, 2015 in Bouchard vs. USTA, et al. As one writer at si.com recognized, the USTA presented a position that Bouchard was negligent in entering a part of the facility she knew or should have known she needed express authorization to enter. See paragraph 16 of USTA’s Answer.  A copy of the Answer can be accessed here for your convenience. Answer of USTA in Bouchard vs USTA, et al.

I have not yet been inside Arthur Ashe Stadium during the US Open, although I was there with my daughter while she auditioned to sing the National Anthem several years ago. I am not aware of what the rules of the house are as far as accessing certain areas, but this argument is similar to one about not sticking your hand in the lion’s cage at the zoo. The only difference is that it is obvious that the lion can bite your arm off, it isn’t obvious that a room, even if it were “off limits,” would be a dangerous trap for anyone entering without proper authorization. It reminds me of the old man trap and spring gun cases from law school. As an illustration, say that an employee of the USTA entered the room, who was clearly authorized to enter the room, and was unaware of a wet floor and fell…it would probably make sense that a warning sign that says…wait for it…”Wet Floor” be placed to warn of the non-obvious condition to let the authorized party know of the potentially hazardous condition.

In paragraph 51 of the Answer, again there is mention of “…express consent of, or accompaniment of, authorized personal.” I don’t have enough facts about the way the tournament is operated to speculate on how this argument may pan out for the USTA but on the surface it seems pretty weak. If they knew what was in that room was dangerous, they could have simply put up a sign that said, wait for it…wait for it… “Caution, wet floor” I know, that is a little over the top to suggest, but it is possible.

The next thing you may notice is the twenty, yes 20, Affirmative Defenses raised by counsel for the USTA. I literally laughed audibly when I saw twenty Affirmative Defenses, the last one being “…all affirmative defenses set forth in Fed. R. Civ. P. 8(c).” I prefer to pick my best few arguments and run with those, but hey, sometimes a shotgun might help you hit a target.

The Third Affirmative Defense of Assumption of the Risk I actually kind of like from a defensive standpoint, but I don’t think there is a very good fact pattern for an assumption of the risk argument. If Bouchard had taken to the roof, like in my example above, and fallen, then I think there is a pretty good assumption of the risk argument. The reason is that the purpose of the roof is to provide shelter; it is unlike a floor which is made to actually walk on. So saying there were no WTA trainers or other authorized personnel in the room so therefore you assume the risk, all risk, by entering, is a stretch to say the least.

I am a fan of tennis, and a fan of the Rule of Law. I want to see tennis continue to grow and continue to attract the best and brightest, and I want those individuals to have high quality counsel and thoughtful advisers to assist them as they as the build their careers.

I am looking forward to this matter being resolved amicably and if not, I look forward to commenting on the case throughout the litigation process. One thing I am fairly confident of is that next year this situation will not repeat itself. The issues that led to a dangerous condition and ultimately Genie’s injuries will be corrected by the responsible parties. This is a primary goal of our Tort system, to encourage responsible parties to take corrective action when a dangerous condition or practice exists.

Safety first, although I would love a chance to get on top of the roof at Arthur Ashe stadium.