Friday night at 10/9 Central, the USA Network premieres its new drama, “Common Law.”  Despite the name, the show has nothing to do with judicial precedent.  Rather, “Common Law” centers around the comically dysfunctional partnership of LAPD detectives Travis Marks (Michael Ealy) and Wes Mitchell (Warren Kole).  We here at Abnormal Use obtained an advance screener of tomorrow night’s pilot episode.  Written by husband and wife screenwriting team Cormac and Marianne Wibberly, the pilot is widely-entertaining and makes a great introduction to the new series.

With only a few minor, minor spoilers, the basic premise is as follows:  Marks is the product of 18 different foster homes.  Mitchell is a former partner in a law firm.  Together, they are now the top detectives in the LAPD’s Robbery-Homicide Division.  Sounds like a match made in heaven, right?  Unfortunately, their relationship is problematic at best, even leading to physical combat at times.  In order to maintain their professional partnership, the two are forced into couples therapy by their police captain (Jack McGee). Despite the hostility, the duo is able to effectively solve crimes and save the day.  We were a little skeptical when we learned of the show’s therapy gimmick.  From its outset, however, “Common Law” adds some zing to the tired police procedural television marketplace.

Despite the unbelievable premises, the leads, Ealy and Kole, make it work seamlessly.  The pilot’s opening scene finds the duo bickering in a couples therapy class.  Like a well-seasoned married couple,the pair is obviously better together than apart.  With each zinger, the two actors play off of each other and actually advance the plot line while doing so.  Indeed, the show does not feel bogged down by its clever banter, which is to the credit of both the writers and the actors.

Standing alone, the odd-couple relationship of Marks and Mitchell probably wouldn’t be enough to warrant a second season.  Couple that relationship with an intriguing criminal investigation, however, and you have the makings of a potentially great series.  The pilot is a microcosm of this point.  In it, the partners investigate the murder of the son of a federal judge. Sound familiar?  It has been the plot line of “Law and Order” at least a dozen times.  Unlike “Law and Order,” however, “Common Law” tells the story from the standpoint of two dysfunctional detectives trying to get out of the doghouse of a district attorney for getting into a heated argument among themselves during an earlier trial.  Surprisingly, this new spin on the crime dramedy works, at least in the pilot.

We have written several mildly favorable reviews of USA legal dramas in the past (“Suits,” “Fairly Legal”).  We couldn’t give our complete blessing to those shows, however, because their legal inaccuracies were irksome to attorneys.  While  ”Common Law” may share those flaws, our criminal background is limited, to say the least.  As such, when watching this show, we aren’t burdened by the potential for misrepresentation of our profession.  Sure, we know most detectives don’t fire their guns during an informal witness interview.  But we can leave that critique for those involved in criminal justice.

Our only criticism of the show has nothing to do with the plot or the acting.  While we found the writing superb, we did take exception to one line.  When speaking of his former legal career, Mitchell stated, “People need a good cop more than they need a good lawyer.”  Ouch.  And here we were thinking we worked in the noblest of professions.

To maintain the good will, we will just assume Mitchell’s assertion was limited to criminal lawyers, not civil litigators.

For viewers looking for a new take on the crime genre, “Common Law” offers a great blend of comedy and suspense.  At a time when most of our television “stars” are of the reality TV variety, the acting of Ealy and Kole is a breath of fresh air.  Don’t expect “Common Law” to sweep the awards shows this year, but expect an entertaining episode each week, and that’s good enough for us.

Recently, the Associated Press reported that a New Zealand woman died as a result of a Coke habit. Hearing reports of someone dying because of coke is nothing new, but this time we aren’t talking about the powdery white stuff.  Rather, this time a woman has died after regularly consuming 2 gallons of Coca-Cola per day.

After the 30-year old mother of eight died of a heart attack in February 2010, an inquest was held to investigate the unusual death. According to the AP, pathologist Dr. Dan Mornin testified that Harris most likely suffered from hypokalemia caused by the excessive consumption of Coke (between 2.1 and 2.6 gallons daily) and overall poor nutrition.  Further, Dr. Mornin indicated that toxic levels of caffeine may have contributed to her death.  That, and the fact that she ate little and smoked 30 cigarettes per day.

While we have never thought of soda as necessarily healthy, we have also never considered it a killer. Even though this incident has earned our (and certainly the Coca-Cola Company’s) attention, we don’t expect Coca-Cola do be worried about any potential litigation. First, there are clearly factors other than mere ingestion of Coke at play here. Harris’ consumption was far beyond the realm of reasonable use. As Coca-Cola Oceania was quick to point out, even water can be dangerous in excessive amounts. Couple her excessive consumption with her poor appetite and pack-and-a-half per day smoking habit, and you have a recipe for disaster.

Second, the risk of heart attack after drinking two gallons of Coke daily is not a risk of which Coca-Cola has a duty to warn. The hazards of caffeine are well-documented. Therefore, it should go without saying that the risks of drinking a soda swimming pool should be open and obvious.

This incident is not about Coca-Cola, Pepsi, or any other soda manufacturer. This is about over-consumption and an otherwise unhealthy lifestyle. Even the fast food litigation has more merit than dragging a soda manufacturer into court after super-saturating oneself with the product.

Recently, friend of the blog, Max Kennerly, himself of the famed Litigation & Trial blog, tipped us off to commercial playground equipment manufacturer Landscape Structures’ recall of its Evos Slalom Glider slide.  Apparently, the Consumer Product Safety Commission issued the recall following reports of at least 16 children under 8 years old being seriously injured after allegedly falling from the slide.  There’s already at least one lawsuit against the manufacturer.  After posting his terrific review of the recall, Max informally challenged us via Twitter to defend the product.  (See here and here for those tweets.).

Well, Max, not being ones to back down, we accept the challenge!

For starters, we admit the task of defending the device seems daunting, at least initially.  The slide is narrow and shallow; it offers no handrails.  Its ladder looks like the spinal column of a giraffe.  The Evos might not be the first choice for playground equipment of the overprotective parent.  Clearly, the Evos, at first glance, offers some fodder to the putative Plaintiff’s counsel.  But are they legal ones?

There are two standards to determine design defectiveness:  (1) consumer expectations and (2) risk-utility.  According to the consumer expectations test, a product design is defective if it is dangerous beyond a consumer’s reasonable contemplation.  Here, we would assume that most consumers hope children would be safe while playing on playground equipment.  However, there is clearly a risk of injury on even the most benign playgrounds.  Children can and do fall from swings, ladders, slides, and rock walls all the time.  Of course, many of these items, unlike the Evos, are equipped with railings and other protective measures to prevent falls.   But the design hazards of the Evos are obvious to the reasonable consumer.  The harm of falling from a narrow, handrail-less slide unfortunately should be expected.

Under the risk-utility test, a product’s design is defective if the costs of avoiding potential hazards are foreseeably less than the benefits of taking some safety measures.  There is no question that Landscape Structures could have made the Evos safer.  Theoretically, the manufacturer could have widened, deepened, and added handrails to the product.  If these steps were taken, however, the Evos is no longer an Evos – it’s a normal, ordinary slide.  If the consumer wants a slide, he or she has thousands of slides from which to chose.  Here, the consumer didn’t want a slide, he wanted an Evos.

According to Landscape, the Evos is intended to “promote balance and coordination.”  We have yet to take a ride down a slide that can do the same.

Whether the costs of converting the Evos into an ordinary slide outweigh the benefits of maintaining the very essence of the product is a question of fact.  While there may be some reasonable alternative design, we are not aware of one.  In our humble opinion, if the consumer has concerns about the Evos, then he or she should opt for a traditional slide.  Like all playground equipment, the Evos can certainly be made safer.  But the design of this slide alternative is not significantly more dangerous than the rest of the playground equipment world.

Aside from the alleged defective design, there may be some issue as to whether Landscape failed to warn of the apparent dangers of the Evos.  According to a complaint filed against the company, there is one sticker on the Evos’ ladder demonstrating its proper use.  We doubt too many children are reading warning labels.  The question is whether the label is sufficient to warn the parents.  Admittedly, we haven’t seen the actual label, so we can’t comment on its sufficiency.  Assuming, however, that the label itself is an adequate warning, we have no problem with its location on the Evos’ ladder.  Some may argue that parents are not in the playground structure and lack the ability to see the label.  But think about the alternatives.  One, the label could be applied to the Evos’ “slide.”  This would make the warning visible from the outside of the playground, but how much good is it after the child is already in full descent?  Two, Landscape could make some sort of detached sign.  While it may get the word out, logistically, it seems like a bit of over-kill.

Perhaps, the onus of this situation falls on the parents.  The risks of children playing on the Evos are obvious.  But so too are the risks of small children playing and climbing ladders unassisted on other equipment.  It should be of some significance that of the 16 reported injuries, all of the children are under 8 years of age.  As with any toy, some are better suited for older children.

Let’s allow the parents to decide whether they want their children to play on the Evos.

Following a widely publicized April 2010 explosion on an oil rig, millions of barrels of crude oil spilled into the Gulf of Mexico over a three month period.  As a result, BP and Transocean Limited, the company that operated the rig, face hundreds and hundreds of lawsuits.  At present, these suits mostly allege property damage and lost profits.   But what can we expect from the future?

The answer may be mutant seafood.

According to an investigation by al-Jazeera, fishermen, scientists, and seafood processors are reporting sightings of mutated sea creatures, including eyeless shrimp, clawless crabs, and baby shrimp attached to their mother’s backs. The dispersants used by BP to contain the spilled oil, such as petroleum distillates, are known to be mutagenic. Because the life cycles of shrimp are so short, they have already gone through two or three generations since the spill, allowing time for the chemicals to mutate the genomes. While these helpless creatures lack standing to bring claims for their deformities, these mutations may lead to more serious effects in humans.

Dr. Andrew Whitehead, a professor of biology at Louisiana State University, predicts that the impact on killifish (i.e. shrimp) is “more than likely going to propagate out and affect other species . . . a clear biological effect that could translate to population level long-term consequences.” Eyeless humans? People with missing limbs? Who knows? We here at Abnormal Use have read enough comic books to find it plausible.

It’s too soon to fear that the mutated shrimp will create Zombieland-like conditions. The threat of some ill-effects is there nonetheless. Unfortunately, it doesn’t appear that much can be done to stop it. According to biological oceanographer, Ed Cake, it will be decades until the Gulf returns to pre-spill position

While we can’t predict the magnitude of this situation, it is one that needs to be monitored. The Gulf produces a large portion of America’s seafood. Any negative effects from seafood could lead to potential claims against restaurants, producers, and fisherman, possibly up the chain to BP itself. Only time will tell, but in the meantime, be sure to ask your server whether your fish had eyes before eating them. Or before they eat you.

According to media reports, recently, a federal judge denied toy manufacturer Hasbro, Inc.’s request to enjoin Asus from selling its Eee Pad Transformer Prime tablet until a pending lawsuit between the parties is resolved.  As you may know, Hasbro introduced Transformers toys into the marketplace back in 1984.  Since that time, the Transformers franchise has exploded, culminating in three blockbuster movies in the last five years.  So it’s safe to say that the Transformers and their fearless leader, Optimus Prime, are now well-ingrained in most American households.  For some reason, Hasbro has a problem with Asus’ choice for the name of its Android-powered tablet.

In December, Hasbro filed suit against Asus in the U.S. District Court for the Central District of California for trademark infringement, dilution, and unfair competition.  According to the complaint, Hasbro has lent its name and logo for a number of computer-related products including an educational laptop, USB storage drives, and laptop skins.  Asus began marketing a tablet referred to on its website as the “Transformer.”  After discovering the tablet, Hasbro sent Asus a cease and desist letter.  Asus’ response?  It began marketing a second-generation tablet known as the “Transformer Prime,” the exact name of a Transformers television series launched in 2010.  Allegedly, Asus has gone so far as to market the “Transformer Prime” by evoking the home planet of the Transformers, Cybertron.  At this time, it does not appear Asus has contacted Megan Fox in an attempt to make their tablet more marketable.  The case is captioned Autobots v. Decepticon Hasbro, Inc. v. Asus Computer International, Inc., No. CV11-10437PSG (C.D.Ca. Dec. 16, 2011).

Even though the suit is still pending, the judge’s denial of the preliminary injunction should be viewed as a significant victory for Asus.  From some of the reported language of the judge, he has clearly thought this suit through.  According to paidContent.org, the judge stated:

The Autobots are led by the virtuous Optimus Prime character, while the Decepticons follow the powerful Megatron. According to Hasbro, Optimus Prime is intended to epitomize honor, duty, leadership, and freedom.

In the third film, an Autobot character known as “Brains” disguised itself as a Lenovo ThinkPad Edge Plus laptop [...] Hasbro developed the “Transformers Prime” animated television series, which began airing in approximately November 2010. The series focuses on the life and story of the Optimus Prime character. “Prime” was added to the “Transformers” mark in the program’s name to emphasize this focus. Thus far, the series has received several Emmy nominations and awards and has been aired in 170 countries.

But:

There is nothing gimmicky about the Eee Pad Transformer or the Eee Pad Transformer Prime, nor can it be said that there is any similarity in the use or function between Hasbro and Asus’s products.

Further, the Court noted that “transformer” was an accurate description of the Asus tablet because the tablet could “transform” into a semi-truck laptop.

As a matter of full disclosure, we here at Abnormal Use must admit that we are slightly biased in this case.  As children of the ’80s and huge fans of Megan Fox, the Transformers are near and dear to our hearts.  We can’t hear the word “transformer” without suspecting the noted object to be a robot in disguise.  Because of this, we must throw our support behind Team Hasbro even if we have no legal basis for doing so.

Sure, the judge is right.  No one really believes Asus’s tablet is going to turn into an Autobot or a Decepticon.  But who thinks the products actually authorized by Hasbro would?  Chevrolet marketed an authorized Transformer Camaro following the release of the first Transformers film, but no one expected their car to turn into Bumblebee.

We won’t go so far as to suggest that Hasbro should have full control over the word “transformer.”  In this case, however, Asus had some interest in cashing in on the Hasbro product’s success.  Yes, their product “transforms” so to speak, but we are kidding ourselves if we think the Transformers didn’t have some bearing on the name choice?  Asus named two successive products with infamous Transformers lingo and used a Cybertron marketing campaign.  Coincidence or clever word choice?

Once again, McDonald’s finds itself drug into the court system.  But this time, the lawsuit has nothing to do with piping hot coffee.  According to reports, Shelley Lynn has filed suit in a California federal court blaming the fast food chain and her ex-husband, Keith Handley, for turning her into a prostitute.  This is not the type of success story McDonald’s typically promotes on its employment applications.

Before we jump to conclusions, there does not appear to be any evidence McDonald’s required the former store clerk to add new meaning to the term “Happy Meal.”  Rather, Lynn claims McDonald’s negligently supervised and retained Handley, who owned a franchise 20 years ago.  According to the complaint, Handley hired Lynn in 1982 as a counter person.  The two started dating in 1985.  Thereafter, Lynn revealed her dream of becoming a Vegas showgirl.  To help her achieve that ambition, Handley reportedly bought Lynn a house in Vegas.  Handley then allegedly pressured Lynn to find a job in a Vegas brothel to help pay for the home.  Succumbing to pressure, Lynn claims she found a job in 1986 at the Chicken Ranch where she became a “top booker.”  She married Handley in 1988, but the two later divorced.  There are no indications from the reports as to how long Lynn claims she remained a prostitute.

We must question how McDonald’s became a player in this lawsuit.  First, we are aware of no evidence at this time that McDonald’s knew or should have known that Handley was a potential sex trafficker.  Lynn alleges in her complaint that McDonald’s did not have a proper procedure for reporting grievances.  However, the only grievance she mentions is an incident where she was allegedly fired for insubordination.  There were no indications that the insubordination arose out of her apparent hesitancy to become a prostitute.  In fact, it appears, at least from the complaint, that Handley allegedly pressured her to enter the business only after she moved to Vegas – when she was no longer a McDonald’s employee.

Second, Lynn will have difficulty showing that it was reasonably foreseeable McKinney would hire an employee, start dating her, move her to Vegas, and force her to become a prostitute.  There’s probably a law school examination question in these facts somewhere. Sure, McDonald’s probably doesn’t want to start a pattern of franchise owners engaging in intimate relationships with employees.  But a relationship by itself is not a grounds for liability in this case.  The issue is whether it was foreseeable McKinney would allegedly force Lynn into prostitution.  There are no allegations of this conduct with any other employees.  The conduct occurred after the period in which Lynn was employed by McDonald’s.  The conduct did not take place on McDonald’s property.  While we here at Abnormal Use are not judges, this doesn’t exactly sound like a case of negligent supervision/retention.

Recently, U.S. New & World Report released its annual law school rankings.  After finding your alma mater on the list, we are sure you were left with a plethora of questions.  As a public service, we here at Abnormal Use are here to answer some of your most pressing questions.

Question 1: What do these annual rankings mean, anyway? Not nearly as much as U.S. News wants you to believe.  The publication ranks each of the 195 fully-accredited law schools based on a number of factors, including peer and judicial assessments, LSAT scores, bar passage rates, faculty resources, and employment rates for graduates.  Unfortunately for our own Nick Farr (UNC-Chapel Hill), success of each school’s basketball team is not among the criteria.

Most proponents of the rankings do not question the criteria itself, but rather, the weight each factor is assigned in the formula.  If the weight is manipulated, the rankings could easily be different.  For example, the peer assessment among law school deans accounts for 25 percent of the overall score, while the assessments of judges and legal professionals only account for 15 percent.  Apparently, the opinions of law school deans with a vested interest in the rankings are more valuable than the opinions of judges and lawyers who encounter alumni on a daily basis.  The employment rate of alumni is weighted a whopping 20 percent of the rankings.  Obviously, this is an important factor, but the rankings do not account for the numerous external variables affecting the employment rate.  By way of illustration, some states contain a disproportionate amount of law schools compared to their population.  While legal jobs are scarce, the overabundance of new lawyers in these states makes finding a job even more difficult.  When employment rates account for 20 percent of the criteria, law schools in these states surely took a hit in the rankings.

Question 2:  Oh, no!  My law school can’t possibly be ranked that low! Whatever will I do? First, don’t sweat it.  Most of you reading this blog are probably already gainfully employed attorneys.  Aside from the prestige of graduating from a top-tier law school, these rankings probably have little to no bearing on your legal career.  No deposition has ever been cancelled or trial continued upon the discovery that counsel’s law school slipped 8 places in the U.S. News rankings.  You have the same degree as your colleagues, and we are sure that you are just as competent.  If opposing counsel champions his or her law school’s U.S. News ranking, just smile and do on what the rest of us do – be a lawyer.

Second, if you are a recent law school grad looking for a job, take the rankings with a grain of salt.  Chances are most firms in your state are more interested in hiring from in-state law schools than they are those graduating from the U.S. News top ten schools. Sure, you don’t want to go head-to-head with a summa cum laude Yale graduate, but those are few and far between, especially if find yourself far from New Haven  Your difficulty finding a job has much more to do with the poor legal market than your school’s ranking.  Keep your head up.  Your time will come. This too will pass. You know the drill.

Question 3:  In light of these rankings, will I ever become a Supreme Court justice? Probably not, but to our knowledge, the President of the United States rarely consults with U.S. News before making appointments.  Unless you went to Harvard or Yale, you probably never stood a chance anyway.  Of the nine current justices, six graduated from Harvard and three from Yale.  Thirty-seven out of the 83 justices who actually attended law school graduated from schools ranked in the top-4 of U.S. News‘ rankings (Harvard-18; Yale-10; Columbia-7; Stanford-2).  Didn’t graduate from one of these schools?  Don’t fret.  The William Mitchell School of Law (No. 127 in the U.S. News rankings) produced the fifteenth Chief Justice, Warren Burger.

Bottom Line.  Take these rankings with a grain of salt.  If your school ranked highly, take pride in the fact that someone, albeit the U.S. News, acknowledged what you already knew – that you received a quality education.  If your school didn’t fare as well, who cares?  You have the same degree as each of our Supreme Court justices.

Recently, our home state of South Carolina hosted the Family Circle Cup, a WTA tennis tournament.  The Charleston, South Carolina event featured 80 of the top female tennis players in the world competing for the title.  We here at Abnormal Use were on hand to report on the tournament.  You must be thinking what place a torts blog has at a professional tennis tournament.  Admittedly, in the beginning, we were wondering the same thing ourselves.  Shortly into the event, however, we realized the event was full of product liability news – only this time we were the unreasonably dangerous product, metaphorically speaking.

The Cup taught us that we can be unreasonably dangerous.  Our presence at the event was harmful to a number of the world’s top tennis players, and we have the following evidence to prove it:

• Exhibit 1: Friday morning, we were greeted by (or shared a hotel elevator with) World No. 9 ranked player Vera Zvonerava.  Several hours later she was upset in straight sets, 6-3, 6-3.
• Exhibit 2: Saturday morning, we had breakfast with (or sat in the same room as) surprise semi-finalist, Polona Hercog.  Later that day, she was double-bageled, 6-0, 6-0.
• Exhibit 3: Saturday night, we ran into Lucie Safarova in the hotel lobby.  The next day, she was destroyed in the final by Serena Williams, 6-0, 6-1.

We have always believed that we were bad luck charms for our favorite teams.  Our attendance at sporting events always seems to result in losses for whoever we throw our support.  At the Family Circle Cup, we didn’t have a dog in the fight, so we thought all players were safe.  Looking at the evidence, however, can lead to only one reasonable conclusion – our bad luck is far-reaching.

Some may argue that losses are due to our teams’ lack of talent and not the result of our presence.  While that may be the case with the Charlotte Bobcats, how else can we explain the upset loss of a Top-10 player after sharing an elevator with us?  If we aren’t “defective,” why would players who have been playing tremendous tennis get shut out in the rounds that followed our encounters?  Shutouts rarely happen in professional tennis even in some of the largest mismatches.

Under a res ipsa theory, we may be in trouble.  Our unreasonably dangerous presence is the only way to explain these players’ losses.  Combine that with the admissions made in this blog and Zvonerava, Hercog, and Safarova have a good prima facie case against us.  So, do us a favor.  Don’t alert these players to their potential claims.  While you’re at it, you may want to take some steps to keep us away from your favorite players as well.

Recently, MSNBC’s Tucson, Arizona affiliate offered some tips on protecting one’s assets from “crazy lawsuits.”  While the tips are nothing revolutionary, they are helpful.  Obtaining insurance and converting a business into a limited liability company can protect protect personal assets in the event of litigation.  However, there is much more to say on this issue.  Accordingly, we here at Abnormal Use must step in at this point and offer these additional tips to those unfortunate souls facing a “crazy lawsuit.”

First, prepare yourself.  While at first glance you may think a lawsuit is “crazy,” it may have more validity that you realized once you understand the applicable law.  Even those with the best of intentions can find themselves facing a damaging lawsuit.  It’s important to identify the strengths and weaknesses of your case from the outset.  Find a good lawyer and allow him or her to prepare a good defense.

Second, don’t think of the lawsuit as “crazy.”  The lexicon is, after all, everything. Rather, start thinking like a lawyer. It’s not a crazy case, but one in which you have no liability.  Calling the plaintiff’s case “crazy” is no way to get a lawsuit thrown out on summary judgment.  (Would that it were so.). By taking even the most marginal suits seriously, you can concentrate on forming the proper defense and addressing each element of the tort.  Remember, even “crazy lawsuits” are very real in the eyes of the court and must be handled appropriately.

Finally, trust the court system.  Our system is not perfect, but it’s the best thing going.  If a lawsuit is truly “crazy,” have faith that a jury of your peers will see it the same way.  If you and those on your behalf have prepared and handled the case properly, it will be evident at trial.  While a jury is always a wild card, you have to trust them – it’s your only choice.

Thousands of lawsuits flow through our courts every year – some frivolous, some valid.  In this day and age, most lawsuits settle before trial.  But of those that do not, very few make national news due to an outrageous verdict.  If you find yourself facing a potentially “crazy lawsuit,” don’t fret.

After all, only the craziest of the crazy lawsuits become the subject of award-winning HBO documentaries.

Recently, in Sarro v. Philip Morris USA, Inc., No. 08-10224-MLW (D. Mass. Mar. 7, 2012), a Massachusetts federal court held that Philip Morris (“PM”) was not liable for a fire that killed a woman when she fell asleep with a lit cigarette. In 2007, the plaintiff, as administratrix of the woman’s estate, sued the tobacco giant in Massachusetts state court alleging that the defective design and manufacture of the cigarettes caused the fire. After the case was removed, the federal court dismissed the product liability claims in 2009. Until the court’s recent decision, the plaintiff maintained a separate claim alleging that the woman was killed by PM’s willful and wanton conduct.

The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way.  We suppose.

The Court indicated that PM could be held liable only if

[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.

Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right.  Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question:  Don’t we assume the risk of fire when falling asleep with a lit object?  Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all.  Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009.  While we wait for those results, we may want to consider electronic cigarettes.