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:

Death Proof Cars by 2020?

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Before now, Death Proof was simply the title of an action-packed Quentin Tarantino thriller from 2007. Not anymore says Volvo! The engineers at Volvo have decided not to stop at fully-autonomous vehicles for which they accept full liability in the event of an accident. Volvo has now reportedly pledged that “[b]y 2020, no one will be killed or seriously injured in a new Volvo car or SUV.” Wow, this is a bold claim. What is more shocking, however, is that there are apparently already some vehicles which are “fatality-free.” Behold:

According to data from the Insurance Institute for Highway Safety, there are nine vehicle models — including the Volvo XC90 — in which no one in the United States has died in at least four years.

Apparently, the technology that inspires Volvo’s confidence is the autonomous driving technology intended to remove the possibility of human error from the driving equation. But alas, there is a caveat:

If someone really wants to hurt themselves, or is just really, really stupid… well, Volvo can’t do anything about that. But, assuming you’re not a suicidal maniac or a total idiot, in four years, you’ll be safer driving a new Volvo than you are climbing a ladder to screw in a light bulb.

Perhaps we are a bit jaded, but we would suggest that the prior paragraph would be more accurate if the “ifs” are changed to “whens.” It may also be difficult to assume away “suicidal maniacs.” So what does this mean for the legal field? It may be that there will be less driver versus driver automobile accident cases litigated, and that some portion of those will be replaced by product liability cases against the automotive manufacturers.  Apparently, we will know one way or the other by 2020ish.

Keeping Up With the Kardashians: EOS Lip Balm Edition

Fueled by attractive containers and endorsements by high-profile celebs like Kim Kardashian and Britney Spears, EOS (Evolution of Smooth) lip balm has created a fad out of keeping one’s lips chap-free. Need proof? Walk through the halls of an elementary, middle, or high school or the grounds of a college campus, and you will undoubtedly see EOS lip balm in the hands of many. Unfortunately, all is allegedly not well with EOS lip balm, however. According to a new class action lawsuit, when you walk through those same school halls, you will also see rashes and blistered lips. Not exactly EOS’ target result.

As reported by Time, Plaintiff Rachel Cronin has filed a class action suit in California against EOS, alleging that the lip balm causes lips to crack, bleed, and blister. Cronin alleges that her lips felt like “sandpaper” hours after using EOS lip balm. She then re-applied the product to “smooth” her skin, but it caused her lips to crack, flake, and bleed. The next day, she allegedly had blisters and rashes around her mouth. Those symptoms allegedly lasted for 10 days. The EOS packaging claims to be 95 percent organic and able to keep lips “moist, soft, and sensationally smooth.”

In an interview with the Huffington Post, Dr. Marie Jhin, a San Francisco dermatologist, opined that the reactions to EOS lip balm are allergic contact dermatitis, possibly in response to Vitamin E contained in the product. Dr. Lauren Ploch, a New Orleans dermatologist, stated that while she did not know what is causing the symptoms for EOS users, many or her patients are allergic to natural oils such as beeswax, a component of EOS lip balm.

This will be an interesting suit to watch as it unfolds. If this is really an issue about Vitamin E or beeswax, EOS is certainly not the only lip balm manufacturer to utilize those ingredients. It is just the only one to have megastar endorsements.

What is EPA’s Superfund, and What Does It Have To Do With CERCLA, PRP’s, and NPL’s?

Superfund

The recent lead-contaminated water crisis in Flint, Michigan has led to discussions regarding water quality, pollution, and environmental regulations. We have learned from discussions in which we have been involved that the general public (and most lawyers) are unfamiliar with many of the issues surrounding large environmental disasters. Nor are most people with the action(s) taken by the U.S. government to clean up environmental contamination. For example, those who are not involved with toxic tort litigation may have heard of EPA’s Superfund and CERCLA, but may not know what these terms mean.  The following is a brief overview of EPA’s Superfund program, for those who are interested.

After a series of large environmental disasters, including Love Canal in 1979, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),  which “provides a Federal ‘Superfund’ to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.” The EPA was also granted the authority to seek out potentially responsible parties (PRP’s) and attempt to force them to carry out cleanup efforts and/or to fund cleanup efforts. According to the United States Environmental Protection Agency (EPA), “EPA’s Superfund program is responsible for cleaning up some of the nation’s most contaminated land and responding to environmental emergencies, oil spills and natural disasters. To protect public health and the environment, the Superfund program focuses on making a visible and lasting difference in communities, ensuring that people can live and work in healthy, vibrant places.” The EPA was reauthorized to carry out these functions in all fifty states with the passage of the Superfund Amendments and Reauthorization Act (SARA) of 1986.

When the EPA becomes aware of “known releases or threatened releases of hazardous substances, pollutants, or contaminants” at a site, the site is placed on the National Priorities List (NPL).  PRP’s are then identified and pursued by the EPA.  Various defenses are available to PRP’s.  The EPA has been involved with thousands of Superfund sites all over the country, a list of which is located here.  Apparently, some of the most common contaminants at Superfund sites include lead, asbestos, dioxin, and radiation, generally.

Martin Luther King Day

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of this day, our offices are closed today. Let us all revisit his “I Have A Dream” speech on this occasion.  You can find the full text of it here.