As Predicted, Distracted Driving Lawsuits Come Full Circle

Last year, we discussed a lawsuit filed in Georgia against Snapchat for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the social media application. In discussing the liability of product manufacturers in suits like this one, we offered the following concerns:

[W]e must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right?

As we expected, those words would deem prophetic.

Recently, a lawsuit was filed in California against Apple because a Texas man was using FaceTime on his iPhone 6 Plus while driving when he rear-ended a vehicle in December 2014 and killed a 5-year old girl. The driver admitted using FaceTime and later found himself indicted by a grand jury on a manslaughter charge.  As for Apple’s responsibility, the family alleges that the company “failed to install and implement the safer, alternative design . . . to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple iPhone while driving a motor vehicle.” Moreover, Apple allegedly “failed to warn its users that its product was likely to be dangerous when used or misused in a reasonably foreseeable manner.”

In full disclosure, the company apparently applied for a patent for the “lock-out” technology in 2008 and had the patent issued in December 2014 (Ed. Note – It is uncertain whether the patent was issued before or after the December 2014 accident date, whether Apple actually developed the technology, and, if so, whether it could have been implemented prior to the accident). Nonetheless, our question is should it matter?  As we questioned last year in regard to the Snapchat lawsuit:

Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

Now, we can replace “speed filter” with “FaceTime,” and the question still remains – who is really responsible for a distracted driving accident?

Holiday Lawn Decorations: Family Fun or Lawsuit Fodder?

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Every December, we  decorate our house in traditional garb – a wreath on the front door and some garland around the mailbox. Simple, not over-the top. With small children, however, conservative decorations equates to no decorations at all. The children would much prefer a Griswold-esque display, including thousands of lights and giant inflatables.

In the past, I have been hesitant to give in to their demands. This year, however, I decided to compromise. I purchased a projector that uses lasers to cover the house in thousands of colored, chasing lights. The kids love it and the installation required almost no effort on my part and doesn’t litter my house with strings of light cables. Call it a win-win. But not unexpectedly, the addition of the projector opened the door to new demands – giant inflatables, music, laser light shows. After all, once you have broken the seal of tacky Christmas decorations, why not just go all the way?

As much as I really want to generate enough electricity through my lawn decorations to power a small village, the risk aversion developed through the practice of law is holding me back. It is not just the risk of fire from the overloaded power circuits that gives me pause. It is the neighbors, the HOA’s, or the city itself – the people who actually have to experience all the “joy” my lawn display has to offer. For example, consider Plantation, Florida residents Mark and Kathy Hyatt, who have been putting over 200,000 lights in their yard and on their house every year since 1990. They were sued by the City of Plantation back in 2014 for allegedly creating a public nuisance and safety hazard. (The Hyatts ultimately prevailed in the suit). Or, West Palm Beach resident Miriam Galan who was recently sued by some neighbors not too pleased with her light display complete with a dancing and singing Santa. As much as I want 10′ inflatable Santa, I just don’t know if I am willing to fight for it in a court of law.

Risk aversion aside, this time of year is meant to be fun and festive. Assuming decorations don’t violate any covenants and restrictions, why not just let the month of December be a time to let loose? Throw those lights up. Run up that power bill. Let’s have some fun. Admittedly, I, too, would’t be my happiest self when flashing lights and a singing Santa start interfering with my sleep. But, I can certainly cope for a month. And, I certainly wouldn’t make a holiday lawsuit out of it.

Virgin Australia Hit With New Coffee Lawsuit: No, This Isn’t Like Stella Liebeck

According to a report from Travel & Leisure, Virgin Australia has found itself on the wrong side of the newest hot coffee lawsuit. The suit, filed in Victoria, Australia, apparently arises out of an incident involving 16-year old Rhett Butler (not of Gone With the Wind fame) while on a Virgin flight from Los Angeles to Sydney in May 2015. Shortly after take-off on the 15-hour flight, Butler’s cup of coffee allegedly fell from his tray table onto his lap, causing burns to his thighs, groin, genitals, and midriff. The flight crew allegedly did not have enough bandages to treat the wounds, so the Butler family was “forced” to use their own. Moreover, the suit alleges that the flight crew only had two ice packs and stopped supplying Butler with water bottles to ensure they had enough for the first class passengers. According to the report, Virgin Australia has confirmed that the incident occurred but offered no further comment.

As is often the case, we assume that many media reports on this incident may jump to inapt comparisons to the infamous Stella Liebeck case. From what little we know about this case, it appears that the two are apples and oranges. What made the Liebeck case so very intriguing from a legal perspective was that Liebeck sought to and was successful in holding McDonald’s liable for serving an “unreasonably dangerous product.” In other words, the jury found McDonald’s liable for serving coffee that it deemed too hot (something about which we’ve written a time or two).  Here, at least according to the information contained in the reports, Butler seeks to hold Virgin Australia liable, not due to the temperature of the coffee, but due to the conditions that caused the spill.  Specifically, Butler alleges that the airplane’s tray table lacked a recess to hold a cup and was defective and pointing down towards the passenger.

We here at Abnormal Use are interested to see how this one plays out. Regardless of the future outcome, we hereby grant the suit a reprieve from our typical criticism of prior hot coffee litigation. And, that’s a good thing. Even for us, there are only so many times we can say, “coffee is meant to be served hot.”

The Case of the Cancelled Wedding Engagement Ring: Where Property Law and Soap Operas Collide

According to a recent report from the New York Post, New Yorker Bradley Moss has filed suit in the Manhattan Supreme Court seeking the recovery of a $125,000 engagement ring he gave to his ex-fiancee, Amy Bzura. The plan was for Moss and Bzura to wed back on October 29th, but the wedding was apparently called off at the last minute. No word as to the reason for ending the nuptials. Regardless, Moss is now seeking the return of the ring or its cash value plus interest as well as punitive damages. Lawsuits arising out of the predicament of the cancelled wedding engagement ring are nothing new. For reasons unknown, we here at Abnormal Use find them fascinating. Perhaps it is because they way these cases are often decided is the perfect blend of property law, soap opera, and reality television. In other words, the engagement ring cases are most-suitable for an episode of “Judge Judy.”

At common law, an engagement ring was considered a conditional gift given on the promise to marry. If the marriage did not occur, then the condition was not fulfilled and, thus, the ring shall be returned to the donor. This remains the law in many jurisdictions, including New York (but with a couple of exceptions). Other jurisdictions, however, have added a new twist to the conditional gift paradigm – fault. In other words, while an engagement ring is considered a conditional gift, a donor cannot recover the ring if he/she was at-fault for ending the engagement. Bring on the soap operas and reality TV.

We can understand the equity behind the introduction of fault to the analysis. However, the fault determination creates a couple significant issues. What is “fault” for ending a relationship, anyway? It isn’t always that clear from a legal sense. For example, what if two people are engaged to be married and one of the people gets a little too intoxicated at a bar one night and has a moment of infidelity. The cheater still wants to get married, but the other finds out about the affair and calls off the wedding. Is the cheater at fault or is it the other who said, “I don’t want to marry you?” If you think the answer is clear, remove the cheating aspect of the hypothetical and replace it with any other complaint. See how this might be a problem?

The question we have to ask ourselves is should juries really be deciding who is to blame for ending a relationship? More importantly, is this really something a jury wants to decide? Sure, it may be more entertaining than your average contract dispute, but, in our opinion, deciding who is to blame for ending a relationship is often an impossible task. After all, if one’s own peers can’t decide, what makes us think a jury of them wants to anyways?

A Reality TV Competition For Lawyers: Yes, It Has Happened Before

Recently, we here at Abnormal Use have become big fans of the reality show “Ink Master.” The show pits tattoo artists from across the country against each other to compete for a cash prize, and, in the current season, a guest spot at tattoo shops owned by the show’s judges, Chris Nunez and Oliver Peck. The show is currently in its 8th season, and it has been a huge success story from Spike’s channel lineup.

The success of a show about tattoo artists got us thinking. Why can’t we have a reality show with lawyers? Maybe one where they compete for a job at a big law firm in some big city. Well, guess what? There was, in fact, a reality show for lawyers competing for a “big time” legal job. But, unfortunately, a show about lawyers was not as entertaining to the masses as artists comparing their cover-ups of lower back tattoos.

The lawyer reality show, “The Partner,” aired on Fox way, way back in 2004. The show apparently lasted only one season, and there are few remnants of its existence on the Google search engine. (We here at Abnormal Use, as avid reality television fans, can recall watching the show, and as such, we can vouch for its existence). Reality TV World described the show as follows:

[T]he hour-long show, based on an idea by FOX reality programming executive Mike Darnell, will be eight to ten episodes in length and, similar to NBC’s The Apprentice, feature two competing teams. Unlike Apprentice however, rather than be divided by gender, the composition of the teams will be determined by the prestige of the contestants’ law schools — with Ivy Leaguers forming one team and graduates of “less prestigious” schools forming the other.

In each episode, the contestants conducted a mock trial of sorts in front of a jury. The jury determined the winning team, and the losing team had to face a judge who, in turn, would eliminate one of the attorneys from the competition. This process repeated each week until one contestant was left standing. According to the Reality TV World report, the winner was rewarded with a “position as a ‘partner’ in a major law firm.”

We must admit, the concept of the show sounds entertaining at the very least. (The show pre-dated this writer’s law life, and due to that small fact, it didn’t quite present the same intrigue at the time). While becoming a partner may be a bit much, in many ways, the competition isn’t too bad of an idea for hiring purposes. Certainly, observing lawyers in a courtroom (albeit a fake one) could be a more practical evaluator of an applicant’s potential to practice law than a law school transcript and a resume.  And, if the show is anything like every other reality show, you can probably discover who the jerks are as well so there is no fear of getting fooled during an interview.

On the other hand, “The Partner” is no more “real” than any other reality show. Even for trial lawyers, practicing law is so much more than stepping into a courtroom. We imagine the lawyer contestants of “The Partner” didn’t have any discovery or brief writing competitions. We doubt they were given the opportunity to earn immunity for the next elimination challenge if they could  be the first to find a case on Westlaw from the 1920s’ setting forth the elements of “assumpsit.” After all, who other than us legal nerds would have watched that, anyways?

The $20 Million Bucket of Chicken

According to reports, a New York woman, Anna Wurtzburger, has filed suit against Kentucky Fried Chicken in which she seeks $20 million from the fast food chicken giant. If you are like us, you must be thinking that if Wurtzburger is seeking enough money to buy a French chateau, she must have been severely injured by some atrocious KFC conduct. Well, not exactly. In fact, Wutzburger hasn’t been “injured” at all. KFC’s atrocious conduct? Allegedly skimping on a bucket of chicken.

Wutzburger purchased a $20 “Fill-Up” bucket of chicken from a KFC in Hopewell Junction, New York. When she got home, she opened up the bucket and discovered it was only filled about half way. A half-filled bucket stunned Wutzburger because she was expecting “an overflowing bucket of chicken” as shown in KFC advertisements (depicted below).

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Wutzburger then contacted KFC to discuss the dispute wherein KFC explained that the chicken was depicted as overflowing the bucket in the advertisement so that viewers could see the product. Wutzburger wasn’t buying it. She alleges that KFC was “intentionally misleading and deceiving the public when it advertised an overflowing bucket of chicken on television but knew that they would only sell 8 pieces of chicken to the public.” KFC has denied the allegations. In a statement to Fortune, a KFC spokesperson stated:

The guest received exactly what she requested. She purchased an eight-piece bucket of chicken and she indeed received eight pieces of chicken.  Our menus and advertising clearly show our $20 Fill Up meal includes eight pieces of chicken.

To be fair, Wutzburger claims the pieces were small.

We here at Abnormal Use certainly understand Wutzburger’s frustration. Commercials and print media always seem to depict food in its best possible light when, in reality, it always comes out looking somewhat less than ideal. Nonetheless, even assuming this is a matter of false and misleading advertising, what are the real damages? Wutzburger paid for 8 pieces of chicken and received 8 pieces of chicken. She voiced her frustration to KFC, and they offered her a coupon as a means of reimbursing her for the chicken. But, that was apparently not enough.

Truth be told, Wutzburger has probably lost her case before it even began. She violated the Pig Chicken Rule. By demanding $20 million in her complaint, she has damaged her credibility and tarnished the views of people who otherwise may have had some empathy for her claim (including us).

Turning Lawyer Life Into Home Life

As attorneys, it is often difficult to explain to young children what we do for a living. I have two children, ages 7 and 4, who have no conception of what I do on a daily basis. They know that I go to work, that I have an office, and that my job title is that of a “lawyer.”  But, that is about it. There is just no way to explain lawyer life to a small child that doesn’t leave him/her looking completely bored. Being a lawyer can just never be as exciting to a child as a firefighter, a teacher, a dump truck driver, or an Avenger. Or can it?

Recently, my 4-year old son came into my bedroom with my 7-year old daughter trailing not far behind. My son told me that his sister hit him on the back, and, of course, my daughter denied the allegations, stating that it was an accident. In turn, my son denied that the conduct was anything but intentional. In trying to siphon through the dispute, it dawned on me that I had the perfect opportunity to show my kids what a lawyer does. We decided to have a trial.

Before doing so, we conducted a “pretrial conference” with myself presiding as judge. I explained to my son that he had the burden of proof as he was accusing my daughter of battery, an intentional tort. As such, he would need to prove that his sister intended to commit the act, that there was contact, and that the contact caused him harm. We then discussed evidence and the different means my son could use to prove his case. In turn, I explained to my daughter that she would have the opportunity to cross-examine the plaintiff’s witnesses and to put up her own case if she chose to do so. It appearing that they understood the procedure, I set the case for trial 10 minutes after our pretrial conference (we have a rocket docket in our house).

When the trial began, the parties decided to waive opening statements as we were proceeding non-jury and the judge had already been thoroughly briefed on the case. My son, appearing pro se, called himself as his first witness. He was very direct in his testimony, stating emphatically that his sister hit him. Unfortunately, that was his only testimony. As such, the judge (me), exercising the powers of the bench, decided to question my son directly. Regardless of the question, my son gave the same response, “Because [my daughter] hit me.” Well, consistency does have its merit in the courtroom.

Thereafter, my daughter took her turn at cross-examination. She asked one simple question, “I didn’t hit you, did I?” Her technique lacked the sort of set-up and back the witness into a corner method I usually prefer, but, despite my son’s denial, she made her point. I guess.

My son, perhaps feeling strongly about the weight of his own testimony, decided not to call any more witnesses. I was a little disappointed because it was rumored that Optimus Prime, a potential witness to this accident if you can believe it, was slated to be the plaintiff’s star witness. Perhaps, in choosing to keep him off of the witness stand, my son knew that Optimus was susceptible to “more than meets the eye” questioning on cross-examination. But, this is only speculation.

For my daughter’s case, she, too, called herself as her sole witness. She testified that she was walking through the living room and accidentally stepped on Optimus Prime, who had been left by my son in the middle of the floor. In doing so, my daughter stumbled, fell into my son, and accidentally elbowed him in the back. After making contact with his back, my daughter apologized, but my son immediately began making his false accusations.

The testimony was very telling and really left the judge wishing he would have had the opportunity to hear Optimus’ testimony. Certainly, my son would have a plan on cross-examination. Boy, did he ever. Just as my daughter had done with him previously, my son grilled her with one question statement, “You hit me.” Her response was well thought out:  “No.  I fell into you after stepping on your toy.  You didn’t witness anything because you were facing away towards the TV watching ‘Paw Patrol.'” No more questions.

Thereafter, I gave my son the opportunity to call any rebuttal witness (still hoping to hear from Optimus), but he declined. Each party then had the opportunity for closing arguments which consisted of a mere recitation of their own testimony. When the arguments were completed, perhaps because he was over-confident or because he simply no longer cared about the outcome, my son took the unprecedented approach of leaving the courtroom. In any event, the decision was clear. In considering all of the evidence before me, I found that the plaintiff did not carry his burden of proof and, thus, I found in favor of my daughter.

The result is still pending post-trial motions.

While I am not certain the trial necessarily had the desired outcome of showing my kids what I do for a living, it certainly gave our house a new means of deciding disputes and cut down on the occurrence of tattle telling.  After all, Optimus’ eyes are always open and ready to crack the next big case.

Woman Receives $52,500 Arbitration Award in Coffee Suit

According to reports, a New York woman has been awarded $52,500 through arbitration after being burned by a cup of coffee purchased from a Wendy’s in Staten Island. The incident occurred in 2012 when the woman and her daughter went to the Wendy’s drive-thru to purchase some food and a cup of coffee. The daughter, who was driving the car, was handed the cup of coffee from the Wendy’s employee. While the testimony on the exact manner was apparently inconsistent, the daughter then passed the cup to her mother who was sitting in the passenger’s seat. It appears the lid from the coffee cup may have not been properly secured during the pass. As such, coffee spilled from the cup onto the woman’s left hand and left knee. Thereafter, the woman filed suit Rawson Food Services, a New Jersey based Wendy’s franchisee, Princeton Food Services, and Wendy’s International alleging that she was burned because the coffee was both “excessively hot” and “unsafely or improperly packaged.”

Over the years, we here at Abnormal Use have taken interest in hot coffee litigation. Most often, hot coffee cases can be divided into two classes, those that allege burns as a result of the excessive temperature of the coffee and those that allege injuries as a result of some conduct of the restaurant’s employees. Aside from the infamous Stella Liebeck case, the former often face the most scrutiny in the courts and among the public. The latter are often easier to digest as they don’t premise liability on serving a product on the way it is meant to be served. Rather, the latter allege the restaurant was liable because its employees did not act in the way a reasonable attorney should under the circumstances (i.e. the employee spilled coffee on a customer in the course of handing him the cup or the employee did not properly not secure the lid to the coffee cup). This particular case is interesting (but not unique) in that it alleges that the coffee was both excessively hot and that it was not properly packaged. The reports do not mention the alleged temperature of the Wendy’s coffee, nor do they state the theory on which the award was based. For the sake of hot coffee lovers around the world, let’s hope it was more so the latter than the former.

We should also note that the arbitrator assessed the damages as $75,000, but found the woman to be 30 percent at-fault. We presume that the comparative fault must have been the result of the manner in which the woman handled the coffee.

Nirvana’s Nevermind: 25 Years of Influence

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As lawyers, we here at Abnormal Use can identify many things that have shaped our careers. Whether it be a law professor, a client, or a trial, the way we practice law is a product of our past experiences. While many of those past events are legal in nature, life experiences also play a critical role. Contrary to the punchlines of many legal jokes, we are humans first and foremost, and we were molded as individuals long before we embarked on our legal odyssey.

Looking back at my formative years, September 24, 1991 may be the date that shaped me as a person more so than any other (apart from my marriage and the birth of my children, of course). On that date, 25 years ago this past Saturday, Nirvana released its second studio album, Nevermind. The album rescued rock music from its most mundane slump in its history and brought alternative rock to the mainstream. Aside from its revolutionary effect on music, the album’s ramifications on a generation of youth is its greatest achievement.

Personally, I was a mere 10 years old when Nevermind was released; I was just beginning to develop my own music preferences. I had just acquired DJ Jazzy Jeff and the Fresh Prince’s Homebase, thinking it would go perfectly with the only other album in my collection, MC Hammer’s Please Hammer, Don’t Hurt ‘Em. While my choice in music may seem laughable today, at the time, it was not. All the “cool” kids were listening to terrible rap music, so I would, too. I was the well-behaved quiet kid who did well in school and desperately aimed to fit in.  So I bought those albums and listened to them alone in my room after school, memorizing the lyrics so I could be in the conversation with the cool kids.

The release of Nevermind, however, brought an end to that vicious cycle.

One afternoon, I was flipping through the channels on the television and came across the music video for “Smells Like Teen Spirit,” Nirvana’s first single from Nevermind. Admittedly, I could not understand a single lyric from the song, but somehow, it spoke to me. Kurt Cobain’s muffled screaming over the sounds of the guitar and drums quenched my musical thirst far more than the beats of ’90’s rap ever had before. I heard this enchanting sound and learned that it was coming from guys who clearly weren’t trying to “fit in” with the times. There was no glam. Just guys wearing ratty clothes with unkempt hair playing music in a dusty old gymnasium. For me, that redefined what I thought was cool.

Shortly thereafter, I got my hands on Nevermind and listened to it on a continuous loop. While I didn’t grasp the full meaning of many of the lyrics at the age of 10, it didn’t matter. Nirvana was my music. My sound. My way of looking at the world. For whatever reason, listening to Nirvana and watching the video for “Smells Like Teen Spirit” was the affirmation I needed that I didn’t have to follow suit with the other kids (however, they, too, eventually ditched “U Can’t Touch This” in favor of the Seattle grunge scene). I didn’t try to emulate Nirvana. I didn’t have to wear ratty clothes and not comb my hair. I was still the well-behaved kid who got good grades, but I was me – not somebody else. Nirvana taught me that is okay.

Twenty-five years later, I still take with me those life lessons I derived from my first exposure to that “Smells Like Teen Spirit” music video. I have my own style. My own way of doing things. My own way of practicing law. And, I am happy with that.

Thanks, Nirvana.

 

1-Star Review Yelp Lawsuit Leaves Its Mark

Several months ago, we here at Abnormal Use wrote about a lawsuit filed by Prestigious Pets, a Texas pet sitting company, against a dissatisfied customer over a 1-star Yelp review. That lawsuit was filed in a Texas small claims court with the company seeking damages of around $6,700 for the customers’ violations of a non-disparagement agreement. At the time, we wrote about the negative repercussions the suit had on the company’s Yelp reviews with its overall rating dropping from a 4.5 to a 3 once the news broke.Apparently, $6,700 no longer seemed like enough damages. In turn, Prestigious Pets dismissed their suit and re-filed in district court, now seeking $1 million in damages. Now, that suit has also been dismissed, this time at the hands of the court.

According to a report from Consumerist, the defendants sought to dismiss the case on the grounds that it is a frivolous SLAPP (Strategic Lawsuit Against Public Participation). Specifically, the defendants relied on the Texas Citizens Participation Act which permits defendants in cases involving free speech to seek a dismissal within 60 days of service. Under the Act, when a moving party establishes by a preponderance of the evidence that the action is based on, relates to, or is in response to a party’s exercise of the right of free speech, the case shall be dismissed unless the plaintiff can establish by clear and convincing evidence a prima facie case for each element of the claim in question. Apparently, Prestigious Pets could not make such a showing and the case was dismissed via a one page, nondescript order. With the dismissal, the company is responsible for the defendants’ legal fees per the terms of the Act.

It may be too early to tell what, if any, effects this suit and Texas media fiasco may have on Prestigious Pets. As mentioned, when we first wrote about this story, the company’s Yelp rating had taken a huge nosedive with negative reviewers voicing frustration with the lawsuit. Today, many of those reviews appear to have been removed from Prestigious Pets’ Yelp page thereby bringing its rating back up to a cozy 4.5. However, if you think the company could just erase the negative reviews and move on, think again. Now, its page is adorned with this:

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Not exactly the scarlet letter any company wants to bear.