Friday Links

Well, the Super Bowl will be held this coming Sunday, and since we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, North Carolina, you can imagine that we are excited about the prospects of the Panthers. How about that Cam Newton, eh? So, yes, we’ll be watching the game, perhaps even tweeting about it here and there, enjoying it all the while. Keep Pounding!

Our favorite tweet of the week, of course, is also Panthers related:

Abnormal Use At The DRI Product Liability Conference (In New Orleans)

We here at Abnormal Use have been writing about products liability cases for six years now. So, it may not surprise you, dear readers, that we will be attending the 2016 DRI Product Liability Conference this week in New Orleans, Louisiana. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. So, our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts. (Jim is also the chair for newsletters for the DRI Product Liability Committee.).

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note. We understand that DRI is using the hashtag #DRIProducts for the conference, so look there, too!

Super Bowl Ticket Lawsuit Dismissal Affirmed by Third Circuit

Super Bowl Tickets

Two years ago, we reported on a lawsuit filed by Josh Finkelman against the NFL. We summarized the allegations of the lawsuit as follows:

. . . New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.

Finkelman was also joined by another plaintiff, Ben Hoch-Parker. The NFL filed a motion to dismiss, arguing that Hoch-Parker lacked standing (because he had not actually purchased a ticket). The NFL also argued that since “[n]either plaintiff alleges that he attempted to purchase tickets at face value through the NFL lottery . . . plaintiffs cannot demonstrate that defendants caused them to pay . . . above face value for their tickets.”

Reportedly, in early 2015, federal judge Peter G. Sheridan granted the NFL’s motion to dismiss the class action lawsuit. In late 2015, the Third Circuit Court of Appeals apparently agreed to hear the Plaintiffs’ appeal, and a three judge panel of the Third Circuit recently affirmed the district court, “concluding that the plaintiffs lacked standing to sue in federal court.”

We did not reach out to the lawyers involved for comments, but we assume the lawyers who represented the NFL would provide comments similar to the following:

Cam Newton Dab

We would also like to add – GO PANTHERS!

Lip Balm Users Rejoice, EOS Lawsuit Settled As Quickly As It Began

Just a couple weeks ago, we wrote about the new class action lawsuit over the insanely popular Evolution of Smooth (EOS) lip balm. In that suit, the plaintiffs allege that even though the EOS packaging claims the product makes lips “moist, soft, and sensationally smooth,” the lip balm allegedly caused blisters and rashes around the mouth. We questioned whether there was any inherent difference between the ingredients of EOS lip balm and its competitors, and in so doing, and we became curious how the suit might fare. Well, according to new reports, the wait is over. Unfortunately, questions remain.

As reported by Today, EOS has announced that it resolved the lawsuit as soon as it began. While the full terms of the settlement are unclear, EOS will not be required to change any of its ingredients, but the packaging will contain more details about those ingredients and how to use the product safely. The financial terms of the settlement have not yet been disclosed.

EOS had the following to say about the agreement:

We are pleased to announce that the class action lawsuit brought against eos earlier this month has been resolved. Our products are safe — and this settlement confirms that. Our lip balms are hypoallergenic, dermatologist tested, made with the highest quality ingredients, meet or exceed all safety and quality standards set by our industry and are validated by rigorous safety testing conducted by independent labs. We love our customers and their enjoyment of our products is our top priority. We thank them for their continued support.

The quick settlement of this class action suit is quite interesting. Clearly, EOS wanted to send the simple message that there is nothing defective about its product. Resolving the case early and with a statement that all of the product ingredients will remain the same certainly makes good business sense and likely puts the clamps on loyal customers who may have thought about switching to a competitor.  But, the question remains, at what cost? For a product that is safe, we hope for EOS sake that any financial settlement was in the cost of defense range.

The most intriguing part of the settlement is, of course, the agreement to add instructions to the product packaging on how to use the product safely. While we are admittedly novice lip balm users and in no way consider ourselves to be experts, we are curious as to how users could use lip balm in an unsafe manner. It seems inherent in the name that lip balm is to be applied to the lips. But, surely, that is not the issue. Maybe the instructions say something about not applying the lip balm obsessively every five minutes? But, if the product keeps lips “moist, soft and sensationally smooth,” how can constant application be a bad thing? We are so confused.

Friday Links

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How about those Carolina Panthers, eh? To celebrate the Panthers earning a spot in the Super Bowl, we’ve featured the cover of NFL SuperPro Super Bowl Special #1, published way, way back in the halcyon days of 1991. We have no idea what sort of marketing stunt Marvel Comics and the NFL were attempting here, but behold it in all of its glory.

We must confess that we’re a bit envious of legal comedy blogger Kevin Underhill, who writes at the very funny Lowering The Bar site. John Cleese responded to one of his tweets? Can you believe that? If you don’t believe us, please click here.

Rest in peace, Abe Vigoda. Let’s all watch Tessio’s final scene to honor the late actor.

Our favorite tweet of late is both law and football related:

The Dark Side Lives: Darth Vader Infant Bodysuits Recalled Over Choking Hazard

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The dark side of the Force did not die along with Darth Vader at the hands of Emperor Palpatine in Return of the Jedi. Before you start accusing us of giving away The Force Awakens spoilers (as if there is anyone who hasn’t already seen the film), hear us out. We here at Abnormal Use have substantial proof that the dark side is alive and well and not tucked away in a galaxy far, far away. Last week, the Consumer Product Safety Commission (“CPSC”) announced that Walt Disney Parks and Resorts has recalled Darth Vader infant bodysuits because they are harmful to innocent children in the most predictable, dark side fashion. The bodysuits, which contain the slogan, “If you only knew the power of THE DARK SIDE” pose a choking hazard to children. And, the Force choke lives on.

Darth Vader Infant Bodysuit

In an attempt to hide the presence of the dark side, the CPSC claims that the hazard posed by the Vader bodysuit is not the Force choke but detaching snaps which somehow find their way into infants’ mouths.  But who does the CPSC and Walt Disney Parks think they are fooling? We recognize the power of a Sith Lord when we see it.

The recall apparently also includes Disneyland 60th Anniversary infant bodysuits but clearly those suits were also touched by Vader’s power in the factory. For those that actually believe it is possible to rid the world of the dark side, the bodysuits can be returned for a full refund. Nonetheless, the CPSC will continue to monitor any disturbances in the Force.

New South Carolina Statute of Repose Opinion – Are Ovens And Other Kitchen Appliances Permanent?

South Carolina’s statute of repose for improvements to real property  provides that “[n]o actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than eight years after substantial completion of the improvement.” S.C. Code Ann. § 15-3-640. Manufacturers of products which become improvements to real property may also receive the benefit of the statute of repose if certain conditions are satisfied.  S. Carolina Pipeline Corp. v. Lone Star Steel Co., 345 S.C. 151, 155, 546 S.E.2d 654, 656-57 (2001).

As we have previously reported, whether a product issue qualifies as an improvement requires an examination of the following factors set forth by the South Carolina Supreme Court: 1) whether the product made the real property more valuable to the owner; (2) whether it involved the investment of labor and money, and (3) whether it is permanent.  Id.  A recent summary judgment motion filed  in Roger Murray and Judith Murray v. D.R. Horton, Inc., C.A. No. 4:15-cv-00191-RBH, which is pending in the U.S. District Court for the District of South Carolina hinged upon whether an oven was an improvement to real property.

The Murrays apparently purchased this home in Murrells Inlet, South Carolina, which according to the certificate of occupancy, was completed on December 4, 2006.

Murray Home

On November 26, 2014, the Murrays were boiling water in a pot on top of the stove in preparation for their Thanksgiving meal. Mr. Murray apparently noticed that the oven light was no longer working, so he opened the oven door to replace the bulb. While Mr. Murray was leaning inside the oven to replace the light bulb, the range allegedly tipped forward, causing the pot of boiling water to overturn, causing him to sustain third degree burns on fifteen percent of his body.

The Murrays filed suit against the homebuilder on December 9, 2014 (eight years and five days after the certificate of occupancy for the home was issued), alleging that the incident was caused by the failure to install an “anti-tip bracket” on the rear foot of the cooking range. The Defendant moved for summary judgment based upon the aforementioned statute of repose. The parties acknowledged that the oven made the property more valuable and that the installation of the oven involved the investment of time and money, so the only issue for the Court to decide was whether the oven “was permanent.” In considering the motion, the Court found an absence of precedent on the issue of whether a kitchen appliance qualifies as an improvement. The Court noted that discovery was ongoing and that “no materials have been filed with the Court resolving the factual issue of whether the anti-tip bracket was or was not installed.” The Court denied the motion for summary judgment based on those considerations.

This is an interesting case. The basis of the Plaintiff’s lawsuit is that the oven was not properly affixed to the real property. So, it appears that the real question here is whether something that was supposed to be affixed to the real property still qualifies as an improvement, even if it was never actually affixed to the real property.

Note that we were recently interviewed by SC Lawyers Weekly regarding the statute of repose issues raised in the Murray case.

Some Of Our Favorite Legal Movie Quotes

The Verdict

Throughout history, the legal profession has inspired great films. We have covered many of these films, such as My Cousin Vinny, and we have even had the opportunity to interview individuals involved with legally-themed films. We have recently asked ourselves, “What are the best one liners from legal films?”

Here is the list we came up with (thanks to heavy borrowing from other lists such as this one and this one):

The Paper Chase (1973): “Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”

The Paper Chase (1973): “Mr. Hart, you’re still not speaking loud enough. Will you stand? Speak louder, Mr. Hart! Fill the room with your intelligence!”

The People v. Larry Flynt (1996): “I’m Your Dream Client. I’m the most fun, I’m rich and I’m always in trouble.”

A Few Good Men (1992): “You can’t handle the truth!”

The Verdict (1982): “You are the law.”

Intolerable Cruelty (2003): Freddy Bender: “Objection, Your Honor: strangling the witness.” Judge Marva Munson: “I’m going to allow it.”

This is by no means an exhaustive list; however, it does include some of our favorites. We encourage our readers to share their favorites as well.

Happy Trails, Hans

2016 has only been here for a few short weeks. Unfortunately, along with Arctic blasts and birther campaigns, it’s brought the loss of several notable celebrities, including Natalie Cole, David Bowie, Alan Rickman, and most recently, Glenn Frey of The Eagles. All have commanded audiences for decades and their deaths surely will be a celebration of their lives and their contributions to all of ours. This blogger would like to focus on one of these great artists: Alan Rickman. An incredible character actor. A quiet, no-frills Brit who morphed into each and every role he played. In the days following his death, the headlines focused on Rickman’s role as Professor Snape in the Harry Potter film. A legendary role, no doubt. And a role within a movie series that has literally changed lives and joined the annals of great, generation-defining movies.

However, among the well-deserved headlines reporting his unfortunate passing, very few mentioned Rickman’s greatest role—Hans Gruber. That’s right. We’re talking Die Hard. We’re talking John McClane v. Hans Gruber, Good v. Evil, ‘Merica v. Germany. You get the picture. Rickman portrayed the German terrorist who leads his band of muscle men to take over a Los Angeles office building during the Christmas holidays. Without Hans, and ipso facto, without Rickman, would Bruce Willis’s John McClane have been so charming? We dare say no. Rickman lulls you in to his world; in fact, he makes you not completely despise Gruber until halfway through the movie. He’s suave, surprisingly good with a gun, and hypocritical in his lust for money and deceivingly good American an German accents, all the while continuing his façade of devoted political terrorism. If he weren’t so good at playing the villain, Han’s mix-up of John Wayne and Gary Cooper could be considered endearing.

In the end, it becomes personal for Gruber just as much as it was personal for McClane. Rickman digs deep in, by the way, his first ever action movie, and fights to the bitter end. Please don’t get us wrong. We’ll always pull for McClane, and he’ll always win, just ask Hans and his younger brother Simon. But as good as Willis is as the blue-collar, degenerate cop with a hangover and a penchant for saving the world, Rickman is equally good as the tailored, educated, and refined villain, calmly (and then not so calmly) being foiled by Mr. Cowboy.

If you haven’t seen this movie, watch it. If you have seen it, watch it again, often. And while you’re at it, say hello to Rickman’s other notable roles: Harry, the classic fool, the Sherriff of Nottingham, Colonel Brandon, and of course, Professor Snape. We’ll remember all of these. And after all this time, we’ll remember Hans and Rickman . . . always. Yippie-Ki-Yay.

Friday Links

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Above, you’ll find the cover of Aquaman #21, published not so long ago in 2013. As you can see, Aquaman is having a bit of difficulty trekking through a snowstorm. We’re not fans of Aquaman, actually. But this cover is relevant, of course, because of the arrival of the snowpocalypse. In fact, due to the inclement weather conditions in North Carolina and the Upstate South Carolina area, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. have closed our Charlotte and Greenville offices today, Friday, January 22. All other GWB offices (Columbia and Charleston) will remain open and operate on a normal schedule.

Rest in peace, Glenn Frey.

Don’t forget that the reboot of “The X-Files” arrives this weekend. Brace yourself for disappointment.

Our favorite legal tweet of late concerns a warning label: