Legal Briefs

Bonds ball likely to be hit with tax

With tax attorneys in agreement that Barry Bonds’ historic, albeit tainted, 756th home run could subject the 21-year-old fan who caught the ball to a tax, one local lawyer is venturing a guess as to what lengths the Internal Revenue Service will go to get a piece of the baseball action.

What about the fan at Fenway Park, for instance, who takes a nondescript baseball and gets an autograph from ace Boston Red Sox pitcher Curt Schilling? While the increased value of that sort of autograph cannot come close to matching the dollar figures attached to Bonds’ ball, there is no doubt its worth on the market has increased.

Despite the added value, Boston tax attorney Joseph B. Darby III opined, such a ball would likely be considered a gift and would not be considered income for tax purposes.

“The Schilling autograph would be an example of a player doing something nice for one of the fans, and I’d certainly argue it was a gift if I was defending because it would be a donative transfer and therefore exempt,” Darby said. “If the intention of Curt Schilling was to sign the ball and give it away for free, he certainly has the right to do that.”

By contrast, Darby said that in cases like Bonds’ 756th ball, with an estimated market value of $500,000, such an acquisition would be considered an “ascension to wealth,” in the opinion of the IRS, and therefore taxable income.

“Catching the Bonds ball is like finding money or digging up buried treasure or going on a game show,” he added. “It’s all income.”

Because the IRS has a clear home-field advantage in such cases, Darby said, it is that agency’s call in determining whether the much-coveted memorabilia is or is not income.

“Just because it seems unfair or illogical to tax something, that doesn’t mean it’s going to be exempt from taxation,” he noted.

In reality, Darby said the IRS would not become involved until a fan walked into a store to cash in an item as a collectible.

“The IRS doesn’t have the time, resources and inclinations to get into the business of chasing down every fan who catches a baseball,” he said. “But I know the IRS has been besieged with calls about how they’re going to handle this [Bonds] situation and, thus far, has responded with a ‘no comment.’ It will be interesting to see what they do.”

— David E. Frank

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Flowers a downer at wedding party

Despite allegations of a cover-up, a function hall won’t have to pay a dime to a woman who claimed she was injured slipping on flowers at a wedding.

The 25-year-old partygoer said she fell down and was hurt at Jimmy’s Allenhurst in Danvers after allegedly stepping on flower petals that had been left on the dance floor.

The incident happened shortly after the woman arrived at the reception, and she was subsequently taken to the emergency room at Salem Hospital where X-rays revealed a fractured left wrist. The woman, who had been fitted with a cast, claimed she was unable to return to work as a waitress.

The woman alleged that the facility failed to remove flower petals from the dance floor that had been thrown at the bride and groom. It was claimed that, although the facility did not provide the flowers and, in fact, prohibited the throwing of flowers, the staff failed to provide a reasonably safe environment for guests by removing the flowers.

The function manager who handled the event testified that the facility never provided flowers for throwing and had a strict rule prohibiting the act. He further testified that, in the event flowers were thrown anyway, he and his staff were conscientious about sweeping them away.

According to Jason R. Scopa of Saugus, attorney for the reception hall, the woman — who made a demand of $50,000 — argued that the facility was covering up the incident. In the end, a Peabody District Court jury deliberated for less than 40 minutes before returning a verdict for the reception hall.

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Mum’s the word in Secret Service case

A couple of Boston lawyers recently learned firsthand that, when it comes to litigation, the “secret,” as in the Secret Service, is a well-earned appellation.

In representing a group of firefighters badly injured during a 2002 helicopter drill that was conducted in preparation for a visit by George W. Bush to a Boston school, Michael E. Mone and Rhonda T. Maloney found themselves in the justifiable position of having to ask the government a lot of questions. However, the queries touched on sensitive issues of national security, and the attorneys soon discovered that the government did not want to discuss the subject.

“It was a unique case in that we were dealing with the president of the United States and the way [he] is moved around,” said Mone. “Because of that, there was a lot of stuff that, normally speaking, you would be able to have access to that, in this case, we couldn’t.”

Prior to Bush’s visit on Jan. 8, 2002, when he was scheduled to announce the No Child Left Behind Act at Boston Latin School, the White House and Secret Service picked Parsons Field in Brookline as a landing spot for the president and his entourage. A few days before his arrival, representatives from the U.S. Marine Corps, Secret Service and White House inspected the area and approved it for the drill.

With five helicopters expected to land on the field during a Jan. 5 preparatory exercise, the Secret Service asked members of the Brookline Fire Department to be on hand in case of an emergency.

When the plaintiff firefighters arrived for the drill, they were instructed to stand behind the dugout that was near the first base of a baseball diamond marked on the field.

Unfortunately, that location turned out to be a dangerous one. As the first helicopter approached, rotor wash from its blades caused debris and rubberized pellets from the field’s playing surface to become air-bound.

Eventually, the force of the rotor wash became so strong that it lifted the first-base dugout off its foundation and into the air. When the dugout crashed to the ground, the firefighters were pinned underneath and suffered serious injuries.

They eventually filed a federal lawsuit against several of the involved parties, including the U.S. government, which countered that the injuries were not a foreseeable consequence of any of its acts or omissions.

Although the case eventually settled for $3.8 million, Mone said he learned how tight-lipped the government can be when it comes to discussing the president.

“The moving of a president and where they choose to land is something that is very closely guarded, and there was a lot of stuff that we were never able to get,” he recalled. “But at the end of the day, the issue wasn’t why they chose this location. It was whether they did what they were supposed to do in terms of making sure it was safe.”

On that question, Mone said he obtained the information he needed and secured what he believes is a settlement that fairly compensates the firefighters and their families.

— David E. Frank

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Mall eatery slides out of greasy mess

A messy dispute ended well for a North Shore restaurant when a patron’s lawsuit over a torn rotator cuff was dismissed by an Essex County jury.

The man — who claimed he slipped and fell on grease left by Johnny Rocket’s in the North Shore Mall in Peabody — sought $42,500 for his injuries.

But two employees of Johnny Rocket’s — the manager and shift supervisor — fired back that the eatery did not take out or remove any of its cooking grease in the afternoon or evening hours. Instead, the grease was taken out early in the morning, well before the restaurant opened at 11 a.m.

The manager worked on the day of the accident until 6 p.m., and reported that there were no incidents of restaurant grease being dropped or mishandled on the sidewalk in front of the establishment.

The shift supervisor, who was on duty at the time of the man’s fall, said that immediately after the incident, she looked at the material on the sidewalk and noted that it was not Johnny Rocket’s grease; she described the material as light colored, unlike the kind used at the restaurant.

Two eyewitnesses testified that they were having dinner at Johnny Rocket’s when they saw the man fall. One eyewitness described the material as a “greasy somewhat waxy substance” that had an almost ice-like appearance. The second witness said the substance was “oily” but conceded that she was uncertain what it was.

About three weeks after the accident, the man completed an accident form that he submitted to his employer, the MBTA, in connection with a workers’ compensation claim. He reported injuries to his left elbow, chest, ribs and right ankle, but did not mention a left shoulder injury.

James F. Murray of Saugus, attorney for the restaurant, reported that a Peabody District Court jury found that Johnny Rocket’s was not negligent and did not award any damages to the man.