Saturday, February 27, 2010


NYLJ 5-25-07


2. The “Good Samaritan Rule” is about the closest one comes to direct biblical reference in the canon of New York Law. In Restatement of Torts, it refers to “One who…takes charge of another who is helpless adequately to aid or protect himself, is subject to liability to the other for any bodily harm caused by him by the failure to exercise reasonable care to secure the safety of the other while within the actor’s charge…” Normally, this would be applied in a situation of peril, or so goes the trophe.

The instant case has none of that attachment of responsibility about it. Even on the face of it, the plaintiff’s arguments smack of nothing so much as bitter recriminations and a desire for the kind of justice that would be more at home in a Greek tragedy. With any other ending, this could have just as easily have been a comedy, if not quite a satyr play.

The drama was mellow for the first few scenes. Fisher, the NJ college student making his first unsupervised trip into Manhattan (at age 19) with some pals and went to an LES eatery, meeting an acquaintance from Fairfield U., the femme defendant, Angel.

Exactly what transpired is just as much classical myth: the Boys give into the Dionysian, walk too far to the edge and are abandoned by their traditional household gods, and becomes marked by some blind destiny; perhaps even as much as Cain was marked by God…but this one is without the assurance of divine protection for his sin. The Mark gets drunk, separated from his running buddies and we find him, after the last return trains to the Garden State have already departed, without taxi fare or even a cell phone. 3:30AM is a bad time to be non copos mentis on the streets of this city, & worse if the only person around is little more than someone with whom you share a graduating class. And worst when that’s all you’ve got.

His Angel lent him her cell to contact his pals. No go. Tried to convince a cabbie to take him home on credit. (“Are you kidding me?”) So, perhaps out of kindness or simple decency, or just on the old saw of “What do you do with a drunken sailor?” is one of those refrains which resonate throughout our culture (no, really; someone who is helpless and easy prey yet who or what gives you the need to take charge of them? How about: Am I not my brother’s keeper vs. …the very subject of this trial: personal liability and criminal negligence), the Mark’s Angel offered him a place to crash at another acquaintance’s pad.

She would have done better to leave him on the curb for the police to pick up, true. But hindsight is 20/20 for a reason.

It was one of those things where somebody said, What do you want to do now?, and somebody else said, I’ll call Spanish Johnny, and then another said, He said it’s cool, come on by and bring your friend’s—he’s just hangin’. And no one said, I dunno, he’s kinda creepy and he’s the head of his own little gang, The Ghetto Mafia. But somebody might have replied, Oh real Thug Life, awesome. Certainly, no one, on their arrival said, Gee, this G is giving me a weird vibe, like, can we just chill? I don’t really need another blunt. Or, wow, he’s just like my Mom, wants all the brewskis on drink coasters, and ‘Don’t let any of those ashes drop on my rug’, and ‘Hey man! Don’t sit on my table!’

Or it could have been that way, or it could have been Johnny’s need to bring one of his dogs to heel, or maybe just to bloody him. Whatever the case, Tony and Johnny beat the Mark, probably to the amazement of the stoned-out girls—maybe shrieking or crying or possibly giggling, as if they couldn’t believe what was happening and so colored it to fit a teen coming-of-age farce. Then Tony shot the Mark and both of them dumped his body out on the edge of Ditmars Park, below Prospect.

The salient facts are that, even though they know what happened, the group was reluctant to come forward and bear witness. It took over a year to arrest, try and convict the perps, which may have been a factor in the decision of the Mark’s parents to bring this suit against the girl they thought should have been his Guardian Angel. It was more than likely a matter of either Ma or Pa saying, She should have to pay for what she did, or didn’t do; She killed him just as sure as those monsters! And, despite the pleas of the sad, heartsick, and mutually-suffering spouse of: Just let it go, honey, It won’t bring him back…

The wonder is that it ever got to trial.

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