- Eric Goldman of the Technology and Marketing Blog has this post, entitled “Private Facebook Group’s Conversations Aren’t Defamatory.” In so doing, he profiles the recent case of Finkel v. Dauber, 2010 WL 2872874 (N.Y. Sup. Ct. July 22, 2010), in which the court was called upon to review a private group started by a group of puerile high school students and dedicated to making fun of a classmate, who brought suit for defamation. Goldman notes that “the group’s discussion is embarrassingly puerile and hearkens back to John Hughes’ bleak depictions of high school life.” Ah, high school.
- The Tex Parte Blog has this post about the perils of attorneys attempting to follow up with an appellate court about the release of an overdue opinion. Apparently, counsel for the Plaintiff contacted with the Texas Supreme Court to inquire about a matter which had been pending before the court for four years. Eight days after the request was made, the Texas Supreme Court issued its opinion and ruled against the Plaintiff.
- The title of this post at the Legal Profession Blog, “After Failed Witchcraft, Client in Love With Attorney Sought Hit Man to Murder His Wife,” says it all. A must read. Who knew workers compensation litigation could be so dangerous?
- The North Carolina Business Litigation Report has this post entitled “A Tale of Reluctant Reconsideration in the Business Court.” In that post , author John Buford tells of a recent case in which the North Carolina Business Court “reconsidered and reversed the prior dismissal of a breach of fiduciary duty claim, but the principles it outlined should not give litigants high hopes for reconsideration motions in general.”
- And, no, we here at Abnormal Use have still not yet seen Inception. Well, contributor Kevin Couch has, but he is under strict orders not to reveal any spoilers.
During juror voir dire, one prospective juror stated that he thought “there are [too] many frivolous lawsuits.” The next juror interviewed stated that he agreed that “there is [sic] too many frivolous lawsuits and people sue-tend to sue a lot of times for just something-they did something stupid and now they want to make the corporation pay for it.”
Looks like we can all keep our respective iPhones/Blackberries/Droids safely attached to our ears. Our spouses and bosses will be thrilled.
The U.S. Food and Drug Administration recently issued a consumer update [PDF] stating that cell phone use does not increase the risk of developing certain types of brain tumors. Apparently, cell phones emit a type of electromagnetic radiation that four different types of brain tumors just love to absorb (as if one was not enough). However, in the largest study of its kind to date, Interphone, in connection with the World Health Organization, released the findings of a study [PDF] which indicate that using a cell phone did not increase a person’s likelihood of developing such a tumor. The study involved 13 countries and took place over 10 years. Pretty impressive. A National Cancer Institute study also cited by the FDA found no increased frequency of brain tumors between 1987 and 2005, despite increased cell phone usage between those two dates.
This is good news for those of us who use our phones so much that it would be best if we could simply duct tape them to our heads. All the same, we here at Abnormal Use found a few of the points in the FDA’s consumer update to be slightly discouraging. First, what the FDA giveth, the FDA taketh away:
“There are still questions on the effect of long-term exposure to radio frequency energy that are not fully answered by Interphone.”
]Great. So, FDA, you’re saying…you’re still not sure. Second, the FDA suggests that one reason cell phones don’t contribute to brain cancer today is because newer, smaller phones emit fewer emissions. We’re pretty sure Gordon Gekko might be in trouble:
Finally, the consumer update includes tips on how to decrease exposure to radiation while using your phone, including using hands-free devices and limiting the time on the phone.
So, FDA, you’re saying…you’re still not sure. Well, thanks for the update anyway.
On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.
Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:
Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.
- We here at Abnormal Use love it when a discussion on the music blogs migrates over to the law blogs. Depicted above is the cover of Contra, the second album by the indie rock group Vampire Weekend. When the album was released earlier this year, the band refused to identify its cover model, but they did note that the photograph was taken way back in 1983. Last week, though, the model in question field suit against the band and the purported photographer, claiming that she never signed a release and that the photographer purporting to have taken the photograph 27 years ago did not, in fact, do so. News of the lawsuit started on the music blogs, but earlier this week, the Wall Street Journal Law Blog took notice, summarizing the dispute as follows:
So, an indie rock band chooses a 26-year-old photo of a unsuspecting mom from Connecticut for its new album cover, in which she looks like a schoolgirl about to be attacked by a vampire.
So what?, XL Recordings, the label for Vampire Weekend, has said in response to a $2 million lawsuit by former fashion model Ann Kirsten Kennis, whose sultry 1983 photo graces the cover of the band’s newest album, Contra.
The record label told cbsnews.com that it has a legitimate licensing agreement for the picture and that it would see Kennis in court if she pushed her claim that the band was using the picture without her authorization. Click here for another story, from Entertainment Weekly.
Kennis, however, claims that her signature was forged on a release form by photographer Tod Brody.
Whatever comes of this suit, one thing remains true: it’s a great album.
- You may recall that two weeks ago we mentioned Tito’s Wing Challenge, a contest at Grille 33 at the Channel, a local burger joint here in Greenville, South Carolina. Well, it appears that Greenvillians may not have been up to the task, as the contest has been watered down a bit, presumably due to local patrons’ inability to beat it. Just two weeks ago, a contestant was required to eat a dozen hot wings in 15 minutes and then wait 15 minutes before taking a drink. Well, as shown in the above photograph, Grille 33 has altered the challenge. Now, contestants need only wait five minutes before taking a drink after consuming all of their required wings.
- The South Carolina Small Firm Blog has a post on disposing of old hard drives.
- J. Benjamin Stevens at the South Carolina Family Law Blog offers these additional thoughts on Jennings v. Jennings, a new South Carolina Court of Appeals case we previously mentioned here. You’ll recall that was the case involving a wife’s surreptitious use of her husband’s email account and the legal ramifications thereof.
However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.
Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”
For today’s post we will delve into the realm of Aesthetics. I promise that I will not wax eloquently about Aristotle and his views on the subject. Instead, I want to talk about the place where products manufacturers and the objects of their desire converge with the statutory and common law of your jurisdiction. Yep, you guessed it, I’m talking about warnings. More specifically, the placement of such warnings on a product. I can only imagine that one of the most difficult topics for manufacturers to discuss is where to put the warning(s) on a product. Just think about the sheer number of man-hours spent on deciding where a warning should be placed in order to adequately warn the consumer. I can only imagine executives having a meeting with the follow questions on the agenda: Will the warning be conspicuous enough? Is it in a place the consumer will look or be expected to look? Will the warning make our beautiful product look ugly if we put it here? Will our product look more like a NASCAR vehicle than the thing of beauty that our engineers designed? The United States District Court for the Middle District of Georgia, Athens Division, touched on this issue in a decision last week.
In Morris v. Harley Davidson Motor Co., No. 3:09-CV-74(CDL), 2010 WL 2723079 (M.D. Ga. July 7, 2010), the court addressed Harley’s Motion for Summary Judgment. The facts of the case were that the plaintiffs (husband and wife) were involved in a single motorcycle accident. Morris at *2. At the time of the accident, the plaintiffs were riding the motorcycle and pulling a trailer. Id. The rear tire failed, resulting in the accident and the death of the plaintiff’s wife. Id. The plaintiff also sustained serious injuries. The owner’s manual contained several warnings, including a warning to not exceed the motorcycle’s Gross Vehicle Weight Rating (GVWR) or Gross Axle Weight Rating (GAWR). Id. Based on the motorcycle’s GVWR from the factory, plus a full tank of gas, the motorcycle allows for an additional 420 pounds of weight capacity. Id. at *1. There was not a warning anywhere stating that the motorcycle was only rated to carry an additional 420 pounds. Id. at*2.
The manual also contained a warning against pulling a trailer with the motorcycle. In addition to the warnings contained in the manual, the motorcycle had warnings posted on the motorcycle itself. There was a warning placed inside the cargo compartment on the motorcycle and an information plate on the steering head, which listed the motorcycle’s GVWR. Id. The plaintiff testified that he did not see these warnings and apparently he did not read the owner’s manual either. Id. at *2-3.
Under Georgia law, there are two theories that a plaintiff can pursue to establish a breach of the duty to warn: first, by failing to adequately communicate the warning and second, by failing to provide and adequate warning of the potential risks associated with the product. Id. at *3. The plaintiff contended that the warnings were not adequately communicated to him. Interestingly, under this theory, failure to read the warnings does not act as a bar to recovery for a plaintiff. The court found that under such a theory, issues “as to location and presentation of the warning” are involved and thus there was a genuine issue of a material fact for the jury to determine.
This case is interesting to me as I consider my self somewhat of a car buff. Admittedly, there is a vast difference between cars and motorcycles, but I would suggest that there is one common ground between enthusiasts of cars and bikes. Most would agree that they prefer to drive or operate a vehicle that they think looks good. For me personally, I love the classic and venerable Jeep CJ-7. I simply love the way it looks. However, I can’t imagine I would want to drive a Golden Eagle that has a big ugly warning plastered all over the dash. In the case of a motorcycle, this issue is all the more problematic. There simply aren’t that many places on a motorcycle that a warning could be placed, due to the size of a bike, that wouldn’t detract from the aesthetics of the motorcycle. However, I do think that this is a real difficult issue where the manufacturer has to wrestle with finding a solution to try and meet the aesthetic requirements of the consumer and at the same time adequately communicate any warnings with the user.