Of Pools & Pot & Other Things

With society constantly changing, court decisions must deal with questions involving a broadening range of activities--from swimming in pools to smoking pot. Some recent examples:

Is a man liable for any accident that happens in his swimming pool? In some jurisdictions, the owner must pay damages if his pool is unfenced and a passing child is injured while swimming. But in Baltimore, a recent Court of Appeals decision suggests that an owner's liability does not extend to every circumstance. While visiting a friend, Eugene Telak, 35, decided to take a dip. Though an accomplished swimmer, he smashed his head on the bottom after diving from the board, and floated to the surface paralyzed--a quadriplegic for life. He sued, arguing that his host should have warned him that the pool was only 7 ft. at its deepest spot. "Regretfully," the court disagreed. The pool had been used for more than two years without an accident, and the owner had no reason to consider it dangerous. In any case, Telak had been around the pool for many hours and should have known how shallow the water was.

Should a small-town doctor be held to the same medical standards in a malpractice suit as his counterpart in the big city? Traditionally, the answer has been no, but with the new ease of communication, the so-called "locality" rule is changing. Massachusetts is the latest state to abandon the old standard. The ruling came in the case of a smalltown anesthesiologist accused of having given an excessive dose of a painkiller to a pregnant woman, thereby causing partial paralysis of her left leg. While noting that the lack of medical resources in a small town could be taken into account, the state's Supreme Judicial Court said: "One holding himself out as a specialist should be held to the standard of care and skill of the average member of the specialty. The time has come when the medical profession should no longer be Balkanized by the application of varying geographic standards in malpractice cases."

How much public interest is necessary to justify a law that seeks to protect the individual from himself? In Michigan, the Court of Appeals recalled an 1889 state court ruling: "Under our system of government, the aim is to leave the subject entire master of his conduct, except when the public good requires some direction or restraint." A law requiring motorcyclists to wear helmets, continued the court, "has a relationship to the protection of the individual motorcyclist from himself, but not to the public health, safety and welfare." So Michigan's motorcyclists no longer must use helmets. But the Rhode Island Supreme Court was "not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges." So Rhode Island's riders must still wear hard hats.

Can the Federal Government curtail marijuana use by requiring those who deal in the drug to register and pay a tax? Since possession of pot is illegal in every state--even when the tax is paid--and since the name of anyone buying a tax stamp is made public, U.S. District Court Judge Frank Theis ruled last month in Wichita, Kans., that practically speaking the law cannot be enforced constitutionally. Following the reasoning of the U.S. Supreme Court, which found similar defects in tax laws dealing with guns and gamblers, Theis held that enforcement of the marijuana tax violated the constitutional guarantee against selfincrimination. But the small victory for pot boosters does not affect stiffer state and federal marijuana laws that specify fines and sentences from one year to life imprisonment for possession or sale of the drug.

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