Flying Hot Dogs Not Inherent To The Game of Baseball, Says Missouri Supreme Court

If you follow Anne Coulter’s reasoning, we assume you aren’t caught up in the World Cup craziness. As such, you are left to focus on America’s pastime, baseball, in order to get your sports fix for the summer. Baseball is a fine sport, to be sure, but things often get a little boring at this point in the season. Thankfully, the Missouri Supreme Court has finally issued its opinion in the now infamous flying hotdog case, Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. June 24, 2014), to spice up the mid-season doldrums. Of course, we had to review and comment upon this important piece of jurisprudence.

For those new to the case, the facts are these: Coomer is an avid baseball fan who had been to approximately 175 Kansas City Royals games. In September 2009, during game number 176, Coomer was hit in the face by a hotdog thrown by the Royals mascot, Sluggerrr. The impact of the flying dog allegedly caused Coomer to sustain a detached retina. Thereafter, as you might expect if you regularly read this blog, Coomer sued the Royals. The case proceeded to trial, and the jury charged as to whether the risk of being hit by a hot dog was inherent in attending a Royals game. After receiving this charge, the jury returned a defense verdict, allocating 100 percent of the fault to Coomer himself. In a lengthy opinion, the Missouri Supreme Court vacated the jury’s decision and remanded the case. At issue in the case was the so-called “Baseball Rule” which essentially protects teams from risks that are inherent to the game, i.e. foul balls entering the stands. According to the Court, the members of which have apparently never heard “Take Me Out to the Ballgame,” the risk of being injured by Sluggerrr’s hot dog toss is not one of the inherent risks of watching a Royals home game. Because assumption of risk is a question of law, the Court held that it was an error to charge the jury on the issue and that such a charge was prejudicial.

Admittedly, when we here at Abnormal Use first heard about this case, we were skeptical. It is not uncommon to see vendors tossing food to fans at a baseball game. (Note: Sluggerr’s official website indicates that he throws hot dogs.). Plus, the thought of a flying hot dog injury sounds absurd on its face. Nonetheless, we must actually agree with the Missouri Supreme Court in this instance. As crazy as a flying hot dog might sound, we don’t believe it is necessarily a risk inherent to the game of baseball nor do we believe it is within the intended scope of the “Baseball Rule.” Unlike a foul ball, this type of harm could more easily be avoided albeit to the dismay of food tossing mascots everywhere.

If this case is tried again, the jury could always return the same result if it finds Coomer was negligent in some manner by not preparing himself to catch the dog (who knows?). The real impact of this decision may not be felt by Coomer but by sports teams nationwide. Certainly, teams will have to think twice before allowing mascots to distribute items to fans by hand toss or t-shirt gun. Which begs the question, what else do mascots actually do?

Synthetic Marijuana Gets Tangible Victory in California

Last week, an Oakland County, California jury ruled in favor of the defendants in a wrongful death case involving synthetic marijuana. The Estate of John Anthony Sdao filed suit against Yassmine Wholesalers, the distributor of the substance, and a local gas station after Sdao, 20, committed suicide after smoking K2, a brand of synthetic marijuana. The sale of synthetic marijuana was legal at the time of the event, but it has now been banned by California law. The plaintiff presented evidence at trial of numerous other suicides which allegedly occurred as a result of using the substance. Apparently, the jury didn’t buy it under the facts of this case.

We here at Abnormal Use have not seen the verdict form nor are we aware of the full scope of evidence presented at trial. Lee Ann Rutila, who represented Yassmine, had this to say about the result:

We were pleased with the result, and I guess we’re not surprised. . . . They were basically unable to say that the suicide really wouldn’t have happened otherwise. It could have happened with or without the K2. They couldn’t put that as being the contributing factor.

Dean Kallas, who represented the gas station that was accused of selling the product to Sdao, added:

It always appeared that the suicide was unrelated to the product, and that’s been our defense all along, and that’s why I believe the jury came to the conclusions they came to.

The plaintiff apparently plans to appeal the verdict. However, the reports are not clear as to the grounds of any such appeal.

The case of synthetic marijuana is an interesting one. In the shadow of Four Loko, it is difficult to gauge how a jury may handle a product which, while legal at the time of the injury, has been banned by the time of trial. In this case, the personal accountability of the decedent apparently also played a role in the jury’s decision. Proving that it was the product, and not the decedent’s own tendencies, that caused the suicide is a difficult burden to bear.

Despite the result in this trial, we expect to see more of these synthetic marijuana cases in the future. We will be sure to keep you posted.

TinctureBelle Responds To Pot-Candy Trademark Suit

Last week, we wrote about a new trademark infringement lawsuit filed by Hershey against marijuana-candy manufacturer TinctureBelle. The gist of the Hershey’s lawsuit is that TinctureBelle allegedly ripped-off the branding of Hershey candy in marketing the pot candy. Now, TinctureBelle President Char Mayes has responded to the lawsuit with the following statement:

The lawsuit from Hershey came as a huge surprise to us because we changed our entire label line approximately 6 months ago, long before these allegations surfaced last week. Our new packaging looks nothing like Hershey’s or anyone else’s. . . . The suggestion made by some media reports that our products are available to children, and even sold side-by-side with Hershey products, is dumbfounding, and shows a profound lack of awareness of how infused cannabis products are regulated, manufactured, and sold under Colorado’s strict regulatory regime.

Mayes provided the Washington Post with the following photos as evidence of the change:

hasheats

hashees

ganjajoy

We here at Abnormal Use must admit that we much prefer the original Hersheyesque packaging to the TinctureBelle revisions. Of course, opinions similar to these are probably what inspired the suit in the first place. If the packaging was, in fact, changed six months ago, however, what is Hershey really seeking to accomplish? A share of TinctureBelle’s pre-alteration proceeds? Seeing as all marijuana has only been legal in Colorado for six months and, thus, the only pre-alteration proceeds would have been from the medicinal sale of the candy, we doubt Hershey will have a lucrative end game.

This lawsuit has all the makings of a Bucky Balls-type fight. We will be sure to keep you posted as events transpire.

Legal Marijuana Candy Sees First Trademark Suit in Colorado

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A hot topic of recent months has been the legalization of marijuana. After the State of Colorado legalized it, we here at Abnormal Use wondered what legal problems might arise when those laws went into effect earlier this year. We certainly suspected that there would be litigation, but a new suit filed in federal court  is not exactly what we had in mind. The Hershey Company has filed suit against TinctureBelle, LLC, alleging that the Colorado candy manufacturer’s marijuana-infused chocolates improperly mimic the names of famous Hershey products. According to a report from Denver’s ABC-7:

The lawsuit argues: “Defendants, who are well aware of the fame and popularity of these Hershey products and marks, are manufacturing and selling cannabis- and/or tetrahydrocannabinol-laced chocolate and candy products using names, marks and designs that are knock-offs of Hershey’s famous REESE’S, HEATH, ALMOND JOY and YORK trademarks and trade dresses, in order to increase sales of defendants’ cannabis and tetrahydrocannabinol candy products, draw additional attention to their products, confuse consumers as to the source of their products, call to consumers’ minds Hershey’s famous and beloved brands, and otherwise to trade on the goodwill of Hershey and its brands.”

We understand Hershey’s concerns about trademark infringement, but surely it is an honor to be the first company honored by legal pot candy. It is difficult to get too upset with TinctureBelle when its creativity inspired names such as “Hashees” (Reese’s) and “Ganja Joy” (Almond Joy). Again, Hershey has the right to be concerned about trademark confusion, and we certainly understand the basis for the litigation. On the other hand, we seriously doubt consumers are buying these products because of their resemblance to Hershey products. After all, TinctureBelle has its own secret ingredients.

CPSC Finds New Target With Inflatable Bounce Houses

Last month, two boys in New York were injured after falling 20 feet from an inflatable bounce house swept into the air by a gust of wind. Last week, two children in Colorado were injured when the inflatable bounce house in which they were playing rolled across a field due to heavy winds. Now, our good friends at the Consumer Product Safety Commission (“CPSC”) are launching their own investigation into the fun that is the casa de aire. In a statement given to USA Today, CPSC spokesman Scott Wolfson stated:

We’re going to look into what were the conditions prior to the incident, what led to the incident itself. . . [T]he fact that we are focusing on these two show that we are making it a priority.

The inflatable house industry might want to ask Buckyballs what it is like to be number 1 on the CPSC’s hit list.

We here at Abnormal Use are traditionally not big fans of the CPSC. This latest investigation is likely not going to alter that status. The CPSC has a useful purpose – to regulate product safety. Apparently, that focus has extended into regulating the weather itself. If these were cases of children injured because the inflatables posed a strangulation or similar-type hazard, then the CPSC has its role. But, that is not the case. Both of these incidents are freak accidents resulting from extreme gusts of wind. The problem is not with the product itself, but rather with the use of the product in certain weather conditions.

We do not know what product warnings the inflatable bounce houses may possess. If they haven’t already done so, we imagine the manufacturers will add a “Do not use in heavy winds” warning as a result of this investigation. Certainly the warning would be useful to those unaware that a product filled with air could be carried away by the wind.

(Editor’s note: We blogged on bounce houses way, way back in 2010. For that post, please see  here.).

Bad Cinnamon Rolls Bring Out The Worst In Us – A South Carolina Tale

Recently, we here at Abnormal Use lamented the tales of those who elect to air their defective food product grievances over 911 calls rather than more traditional methods. As much as we may detest the use of 911 in non-emergency, defective food situations, such things are  preferable to a recent incident at a South Carolina Burger King. According to a report from the Post and Courier, a Burger King customer threatened to shoot employees over a stale cinnamon roll. Guns and breakfast food. You can only imagine our disbelief upon hearing that this incident occurred in our home state. If your were thinking that there must be more to this story, you would be mistaken. Apparently, the woman complained that her BK-made cinnamon roll was served at less than its optimal freshness, only to be told that the roll was the only one left. She then left the store, only to return later with her hand stuffed in her purse, threatening to “shoot everyone.” Employees called 911 (appropriately), and she fled the scene.

Like this woman, we, too, are fans of cinnamon rolls. There is no better way to start your day than with cinnamon and cream cheese frosting. We understand the woman’s frustration upon discovering stale dough has ruined her breakfast. Violence, however, is not the answer. Apparently, this woman has never seen Falling Down, as this approach didn’t work out so well for Michael Douglas.

If you receive food that is not served to your exact specifications, complain if you must. Just leave guns – and 911 – out of it.

Porsche Faces New Suit Arising Out of Death of “Fast and the Furious” Star

Late last year, Fast and the Furious star Paul Walker passed away when the 2005 Porsche Carrera GT in which he was a passenger left a roadway and crashed into a light pole and three trees. Using surveillance footage and the car’s computers, Los Angeles County investigators determined that the vehicle was traveling 80 to 93 mph – up to twice the posted speed limit – when it crashed and burst into flames. The investigators found no evidence of mechanical failure; however, they believe 9-year old tires may have contributed to the crash. Kristine Rodas, widow of the car’s driver, Roger Rodas, has a different theory. Rodas has filed suit against Porsche, alleging that the car crashed and caught fire as a result of a failure in its suspension system and a lack of proper safety features. The suit claims that the vehicle was only traveling 55 mph, but Porsche “designed and manufactured the Carrera GT defectively, causing it to fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” In addition, Rodas claims that the Porsche lacked a properly functioning crash cage and a proper racing fuel cell.

While it is too early to determine whether it is Rodas or the L.A. County investigators who are correct, several aspects of this case are intriguing. First, Roger Rodas was an experienced race car driver. On the one hand, his experience could be a sign that the vehicle would not have crashed but for some defective condition. On the other, it could also explain why he felt he could drive the vehicle in a manner far too aggressively for normal road conditions. Second, the suit alleges that the vehicle was originally designed to be a Le Mans race car before being turned into an ultra-high performance super-sports car. We have to wonder whether these were post-manufacture modifications which could effect this product liability suit. Interestingly, this suit focuses on alleged deficiencies with parts fit for a race car, rather than recreational vehicle. Had this accident happened during Le Mans, then maybe we could more easily understand the alleged problems with the racing fuel cell or crash cage. We question whether those parts would have come into play if the vehicle had been traveling the posted speed limit.

We here at Abnormal Use, like many others, consider the Fast and the Furious franchise one of our guilty pleasures. As such, the news of Walker’s death was particularly troubling. This is a lawsuit we to which will be paying close attention.

Let’s Leave 911 Out Of Our Food Complaints, Shall We?

Product liability suits involving food products are not uncommon. In fact, one of the most famous product cases of all time, Stella Liebeck v. McDonald’s, involves a familiar beverage. (Don’t worry, dear readers, this is not another post about the Liebeck case.). While we here at Abnormal Use may not always agree with the outcome, we at least respect a plaintiff’s right to litigate legitimate matters in court. On the other hand, we have  little use for claimants who choose other means to air their grievances. Case in point: North Carolina woman Bevalante Hall recently used 911 to complain about her Subway order. According to a report from the Gaston Gazette, Hall called 911 after a Subway employee allegedly made her flatbread pizza with marinara rather than pizza sauce. In the 911 call, Hall stated that she wanted to make a report so she could call investigators with a local television news station. Hall didn’t get quite what she requested. As a result of the call, Hall was jailed for three minutes before being released on a $2,000 bond.

Had Hall taken to the court system, her claim undoubtedly would have been criticized (rightly) as frivolous. A marinara-sauced pizza is not exactly a defective product. After all, Subway clearly advertises its “flatizzas” as being made with marinara sauce. If suit had been filed, however, our focus would have at least been on the merits of the claim (or lack thereof). Unfortunately, Hall’s claim appears to be more about garnering publicity than resolving a grievance. Leave it to us to oblige.

Powdered Alcohol: A Topsy Turvy History

Recently, Arizona-based Lipsmark, LLC announced plans to begin marketing alcohol in powdered form under the name “Palcohol.” Since that time, the product has been on a roller coaster ride. Several weeks ago, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) approved the sale of Palcohol. Several days thereafter, the TTB reversed course and claimed that the approval was issued in error. Now, Senator Charles Schumer (NY-D) is asking the Food and Drug Administration (“FDA”) to make certain that the product never finds itself on store shelves, claiming it would become the “Kool-Aid of teen binge drinking.”

So, what is Palcohol, and why has it caused such a fuss? According to the company’s website, Palcohol is a powdered version of vodka, rum, and four cocktails. With the addition of 5 ounces of liquid, Palcohol allegedly becomes a standard mixed drink. The process is nothing new. A U.S. patent was issued for molecular encapsulated alcohol way back in 1974. While the product may seem harmless, Sen. Schumer fears that because it may be sprinkled on food, snorted, and easily concealed, it may appeal to underage drinkers much like Four Loko. We here at Abnormal Use appreciate the concerns. Nonetheless, we think that they may be premature. If it hits the market, Palcohol will be regulated and controlled the same as liquid alcohol. Even if it can be eaten, snorted, or concealed, we fail to see how this will have a significant effect on underage drinking. Whether it is breaking into a parent’s liquor cabinet or sprinkling Palcohol on a bowl of Fruity Pebbles, teens will find their way to alcohol if they want it bad enough. The problems and dangers remain the same. We do not know if Palcohol will make its way to stores. However, Lipsmark claims the TTB’s about-face was due to a labeling error rather than a change of heart on the product. Only time will tell. We expect the day will eventually come when we can all enjoy a shot of rum powder.

McDonald’s Gets A New Face

imageLast week, McDonald’s unveiled a new look for Ronald McDonald, the face of its vast fast food franchise. After sporting the same hair, makeup, and clothes for the past 51 years, Ronald has been given a much needed makeover. According to a report from by Yahoo! Finance:

The yellow jumpsuit Ronald’s worn for so long will be replaced with cargo pants and a vest, along with a red-and-white striped rugby-type shirt. That’s going to be the standard uniform. For “special occasions,” he’ll sport a red jacket, bowtie and yellow pants, the company says. At the same time, he’ll also get involved with the corporate office’s social media efforts.

While we here at Abnormal Use are fans of McDonald’s (and write about it often), we must admit that Ronald has always given us the creeps. As clowns go, his looks have always been more “Pennywise” than “Bozo.” Unfortunately, the new Ronald doesn’t look much better. Giving Ronald a bow tie and a rugby shirt can’t mask the fact that he remains a creepy clown. On the positive side, Ronald has decided to ditch one-piece jumpsuit. So, there’s that.

As excited as everyone is about the update, we are more interested in hearing new Ronald’s position on hot coffee. Under the leadership of the former Ronald, McDonald’s held strong in the midst of much coffee litigation, including the infamous Stella Liebeck suit. Much to the delight of millions of customers, Old Ronald followed the basic principle that coffee is meant to be served hot. In this regard, old Ronald emerged as a pillar of the coffee community regardless of his unfortunate appearance. We only hope the new Ronald can display the same strength and fortitude, but fear he may face challenges with the bow tie and Craig Sager-esque jacket. Only time will tell.