New Year’s Eve


Well, it’s New Year’s Eve, again, and we can’t say that we are in the office. We’re bidding farewell to 2015, a curious year, to say the least. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you are your family have a wonderful and safe celebration tonight.

Above, you”ll find the cover of Superman #295, which was published way, way back in 1976. We find it appropriate for today because Supes is fighting someone who appears to be Father Time (whose duties in escorting the old year into the ether are implicated this very night).

By the way, tonight, December 31, 2015, is apparently the last concert performance of the rock band Motley Crue. Why do we write about that on a law blog? Back in February of 2014, nearly two years ago, our own Nick Farr wrote about the contract purportedly dissolving the band. Well, tonight’s performance is allegedly the band’s last (allegedly as a result of that contract). We’ve not seen the contract, but we suspect there may be some loopholes.

Climate Change Litigation?

Climate change post

Many in the United States reportedly experienced a record-setting, warm holiday season this December, and some are asking whether climate change is to blame. The discussion sparked our curiosity as to what if any climate change-related litigation may be brewing.

First of all, what is climate change? The rocket scientists at NASA have provided the following definition of climate change:

Climate change is a change in the usual weather found in a place. This could be a change in how much rain a place usually gets in a year. Or it could be a change in a place’s usual temperature for a month or season.

Climate change is also a change in Earth’s climate. This could be a change in Earth’s usual temperature. Or it could be a change in where rain and snow usually fall on Earth.

Weather can change in just a few hours. Climate takes hundreds or even millions of years to change.

This concept, seemingly innocuous on its face, is quite controversial in the United States, and according to a recent article on the subject, hundreds of climate change-related lawsuits have been brought in the United States. Apparently, while “[m]ost cases were brought by individuals or companies against the government,” there have been some suits “brought by individuals and groups seeking more climate change regulations or actions from government” and “other suits . . . to halt the enforcement of climate change regulations.”

One of the more interesting lawsuits that we ran across is a subrogation class action filed by Illinois Farmers Insurance Co., “accusing scores of Illinois municipalities of doing little to prepare for climate change and avoid storm losses its policyholders suffered.” Farmers alleged that the defendants “had adequate time and opportunity to plan, prestage and take other actions before the occurrence rainfall to maximize stormwater storage and/or transportation capacity within its stormwater system(s) and sanitary water sewer systems.” The case drew considerable attention, and many reportedly speculated that the case would serve as a bellwether case that could “unleash a wave of similar litigation.” Farmers reportedly decided to drop the lawsuit due to the fact that the litigation “gained the attention of the wider public.” Farmers added that it believed that the lawsuit “brought important issues to the attention of the respective cities and counties and that our policyholders’ interests will be protected by the local governments going forward.”

For a more in-depth review of pending climate change litigation, a chart prepared by a United States law firm purports to track the spate of climate change lawsuits which are apparently pending in the United States.

Give Us That Product Back! The First Line Of Defense To Potential Hoverboard Litigation.

Hoverboards have been in the news a lot in recent days. Unfortunately for hoverboard manufacturers, the added press has not been of the favorable variety. As we recently discussed, numerous outlets have been reporting that hoverboards are spontaneously catching fire. And, apparently, burning hoverboards are a bit of a problem. Not exactly the news hoverboard companies wanted to see just in time for the busiest retail season of the year.

It goes without saying that the potential to suddenly engulf in flames raises a number of product liability concerns for hoverboard manufacturers and others within the supply chain. With so many reports of allegedly defective products, what is a company to do when staring into the face of potential litigation? One option is to instruct hoverboard owners to trash the product. As reported by Yahoo!, online giant Amazon has decided to follow this path, instructing users in the United Kingdom to turn their boards over to a certified recycling center in exchange for a full refund. In addition, Amazon has pulled the vast majority of its hoverboards for sale in the United States. We are sure the Consumer Product Safety Commission is pleased.

Instructing users to discard a product in exchange for a full refund raises some interesting issues. The move is certainly noble and made with great expense to Amazon. However, despite the numerous news reports and instructions to discard the product, there will be many who continue to view hoverboards as a viable means of transportation. So what happens when those people (who either ignore the news or are completely unaware of it) become injured when their hoverboards catch fire? Amazon will undoubtedly argue that it warned the user not to use the hoverboard and that the user assumed the risk of being injured. Unfortunately, however, assumption of the risk may not be recognized as a valid defense to strict liability claims in some jurisdictions, leaving Amazon exposed despite its best efforts to protect itself.

The more pressing issue might be what are parents to do after telling their children that Santa needs to take their hoverboards back? We imagine the emotional distress the parents will feel when explaining that the elves made a product that might catch on fire is astronomical. We are uncertain how Amazon has prepared to handle that massive class action.

(Once Again) Litigating In The Arena

As litigators, we often try cases, and 2015 was no exception. Fewer and fewer cases go to trail these days, so much so that it now goes without saying. But some cases should be tried, and as lawyers, we should not be timid about taking cases to a jury if the facts and clients call for such an approach.

We’ve been thinking about this lately as 2015 draws to a close.

Five years ago this week, we ran a post entitled “Litigating in the Arena,” in which we shared with our readers an email from Howard Boyd, one of the name partners of our firm, Gallivan, White, & Boyd, P.A. As we approach the end of another year, we thought we’d share it again:

[W]e do not need to be afraid to try cases to juries. We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case. At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial. Juries almost always do the right thing. While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.

As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation. There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial. . . . [W]hile trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.

And, even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcomings; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Let’a all think about that as we prepare for 2016.

Christmas Links


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a very merry Christmas. Above, you’ll find the cover of The Amazing Spider-Man #314, published way, way back in the halcyon days of 1989. We’re proud of this discovery, as it is both a legally themed and a Christmas appropriate comic book cover. Who knew? In fact, the cover itself proclaims: “Peter and Mary Jane Evicted! — Just in Time For Christmas!”

Since this is technically an edition of Friday Links, we have a few thoughts in this brief Christmas post.

First, Die Hard is, in fact, a Christmas movie.

Today is as good a day as any to revisit Stuart Mauney’s immortal 2011 post, “Lawsuit of the Day: Grandma’s Estate v. Santa and His Reindeer.” Our Nick Farr has also written a few classic Christmas blog posts, including 2012’s “Christmas: ‘Tis the Season of Torts?” and 2011’s “I Must Now Sue Santa.” And don’t forget our post on the favorite Christmas movies of the Abnormal Use writers!

Christmas Eve

Star Wars Holiday Special

The less said about the infamous 1978 “Star Wars Holiday Special,” the better. Now that the Star Wars franchise has once again earned the benefit of the doubt, we’ll give it a pass – at least this year – for that embarrassing TV oddity (an advertisement for which you can find above). Since it’s Christmas Eve, we hope our readers – especially our lawyer readers – have fled the office to spend time with their families. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish all of you a safe and festive holiday season. We’ll be back tomorrow with a special Christmas edition of Friday Links.

Our Favorite Posts of 2015

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day since January of 2010. That’s a lot! Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. So, without further ado, fill yourself with nostalgia, just as we have, and revisit these entries from 2015.

Mourning The Death of Westlaw Classic (Jim Dedman, January 12, 2015)

Can Defense Lawyers Co-opt The Reptile Strategy? (Kyle White, March 18, 2015)

Federal Court Enjoins Reboots of “Twin Peaks” and “The X-Files” On “1990’s Estoppel” Grounds (Jim Dedman, April 1, 2015)

A Lawyer At Career Day? An Inspirational Journey Into The Minds of Fifth Graders (Nick Farr, June 2, 2015)

Why Can Plaintiffs Only Remember Solvent Defendants In Asbestos Cases? (Kyle White, July 22, 2015)

CPSC To Go Interstellar Against Space Buckyballs? (Nick Farr, August 3, 2015)

Media Still Trying to Cash-In On Hot Coffee Buzz (Nick Farr, September 22, 2015)

Halloween Special: Must Home Sellers Disclose That A Home Is Haunted? (Kyle White, October 29, 2015)

Star Wars and the Abnormal Use Law Blog: A History (Jim Dedman, November 12, 2015)

The Abnormal Use Guide To Holiday Safety (Nick Farr, December 7, 2015)

Plumber Sues Ford Dealership After His Old Truck Is Recruited for Syrian Civil War (Kyle White, December 16, 2015)

Bethesda Makes Games So Good They Are Addicting, New Suit Claims


If you are a gamer, chances are you have asked Santa to bring you one of the season’s hot new releases.  For us here at Abnormal Use, Bethesda’s Fallout 4 tops our wish list. We love the open world role-playing games and can’t wait to see how the newest edition of the Fallout series translates to next-gen consoles. If it is anything like prior Bethesda titles, we can expect hundreds of hours of entertainment. By “hundreds of hours,” we, of course, don’t mean hundreds of consecutive hours. More like hundreds of hours spread out over hundreds of days. After all, we are adults, and we have families and jobs and all kinds of other non-video game playing responsibilities (including the writing of blog posts!).

Unfortunately, one gamer in Russia failed to recognize his own responsibilities and ultimately filed suit against Bethesda as a result. According to a report from MaximumPC, the 28-year old gamer became so obsessed with Fallout 4 that he went on a three week gaming bender and shut himself off from the outside world. As much as we love gaming, the world is not quite accepting of the three week gaming session. In this case, the man lost his job, his wife, and his health as a result. Now, he thinks Bethesda should pay for making a game so good that he found it a good idea to hole himself up in his home playing it. In a statement given by the unnamed plaintiff, he summed up his specific complaints against Bethesda as follows:

If I knew that this game could have become so addictive, I would have become a lot more wary of it. I would not have bought it, or I would have left it until I was on holiday or until the New Year holidays.

In a way, we can almost sympathize with the man. From past experience, we know that it is not uncommon to become so immersed in these Bethesda RPGs that time simply flies by. Thirty minutes can easily become three hours when playing an entertaining game. There have certainly been more than a few nights we have found ourselves crawling into bed a couple of hours past our bedtime as a result.

With that said, even though our “30 minutes” may have turned into “three hours,” it has never turned into “three weeks.” Even if we could find the time, we can’t even imagine how any reasonable person would want to do anything for three weeks straight, much less play the same (albeit incredibly entertaining) game. Unless Fallout 4 emits heroin through the television screen, there is simply no way it can be so addictive. Reasonable people can separate life from gaming and won’t put their families and jobs on the line for entertainment.

This is one of those lawsuits where you have to ask if the plaintiff really wants to prevail. In the short term, a win may mean some financial compensation. In the long term, however, a win would mean less “addictive” games. In other words, holding a video game maker liable for making a game so good it becomes addictive would necessarily lead to game makers making worse games to shield themselves from liability. For a guy that loves gaming so much he thinks it is acceptable to devote three straight weeks of his life to it, we are guessing this result may have a more devastating result on this plaintiff’s life than the loss of his job and his wife in the first place.

Revisiting Hoverboards

Recently, we here at Abnormal Use visited the topic of hoverboards, and since our previous post on this topic, more has been uncovered regarding these spontaneously combusting machines. Hoverboards have captured the public’s interest not only due to the entertainment value brought from others’ failures, but more recently, for fire-related dangers associated with these devices. There have been numerous news segments and testimonials from consumers that have implied that hoverboards have a tendency to combust and catch fire. The general sentiment is that consumers are willing to accept the risk of injuries resulting from falling off of these devices but do not wish to be suddenly confronted with a two-wheeled fire chariot. Certain experts have commented after conducting further research as to the origin of these hoverboard fires, and some have linked it back to damage to the Lithium Ion batteries that are often used in these machines (and possibly abuse of the product). These scientists outline the dangers that could result from puncturing and/or abusing these batteries. Due to the high costs of the top of the line hoverboards, there has been an increase in “knock-off” and cheaper versions of them. These knock-offs (fauxverboards?) are likely using lower quality lithium ion batteries to save on the cost of production; we may see an increase in both patent infringement cases and product liability suits. It’s probably too early to try to gauge the impact these devices and the related litigation will have on products/innovation going forward, but we suspect that this will not be the last we will hear about these machines and their benefits/risks.

Friday Links


So, anyone see any good movies lately? We wonder how many lawyers – or others – mysteriously failed to appear at work today due to the release of a certain new movie. No spoilers! To celebrate the occasion, though, we recommend that you revisit the 2002 article, “The Case for Empire,” in which the writer, Jonathan V. Last, attempts to explain why the Empire is actually a force for good and the rebels are agents of evil. While you’re at it, you should also reread our April Fool’s Day joke from 2011, entitled “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds.” And, of course, go see the new movie. We’re wondering how long we should wait before commenting upon the film, as we certainly don’t want to share any details or spoil the experience for anyone. The safest course of action: Wait two years.

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Our favorite legal tweet of late comes from North Carolina: