Mötley Crüe Contracts to Dissolve, But Who Are They Kidding?

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.

Hey, Nike, Warn Me These Shoes Are Dangerous Weapons!

In the past, we here at Abnormal Use have been critical of failure to warn claims.  To all of those claims, we now apologize.  Compared to the new suit against Nike , these other claims are as monumental as Marbury v. Madison.  According to a report out of NBC News, Sirgiorgio Clardy, an Oregon-based pimp sentenced to 100 years in prison for brutally beating a john with a Nike shoe has filed suit against the company alleging that Nike failed to warn that its shoes could be used as a dangerous weapon.  Apparently, had Nike provided such a warning, Clardy may have refrained from repeatedly stomping on the face of a client.   He is seeking $100 million due to Nike’s perceived omission.

Clardy apparently got the wise idea to sue Nike based on the jury’s classification of his shoes as a “dangerous weapon” in the criminal trial in order to ensure he received a maximum sentence.   We imagine if Clardy found some way to inflict the same injuries on the victim with a plastic spoon, it would have arrived the same classification.  Thankfully for Nike’s sake, it was not a party to the criminal suit and shouldn’t be deprived of the opportunity to protect its interests civilly.

Our criticism of failure to warn claims is the notion that requiring warning labels for many of these allegations is superfluous.  Many hazards are just too obvious to necessitate a warning.  This case takes the notion to the stratosphere.  We have watched enough episodes of “The Walking Dead to know that almost any object can be used as a weapon if the assailant is creative.  When a criminal uses an object in a way no reasonable person intended, then there is no need to warn of the horrid use. We understand why manufacturers should warn of certain dangers; those warnings serve a necessary purpose.  We doubt, however, that anybody would see Clardy’s suit as analogous to those situations.

We would say that we will keep you updated as this case progresses, but we all know how it will turn out.

9/11 Scandal Surfaces, Mocks Legitimate Claims

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.

Little League Celebration: Part of the Game or Negligent Act?

News broke last week that a California Little League coach is suing his former player over injuries he allegedly sustained in a victory celebration. According to reports, the 14-year old player scored from second base to win a game in walk-off fashion. In so doing, he took off his helmet and tossed into the air in celebration. When the helmet came back down to earth, it allegedly hit his coach, Allan Beck, tearing his Achilles’ tendon. Beck filed suit against the boy, seeking $100,000 in actual damages plus $500,000 in pain and suffering. However, Beck has indicated that he really was only interested in having the kid’s parents pony up the $20,000 he paid in medical expenses.

An interesting case this one is. Had this been a case of a player intentionally throwing his helmet at the coach in anger after striking out, then this lawsuit would not have garnered so much national attention. But, this is not the case. There is no evidence of which we are aware that the boy intended anything other than to celebrate a victory. Watch baseball at any level and you will see players throw helmets in the air in much the same fashion. Until now, it has always been no harm no foul. What makes this case different, is that there allegedly was a harm. So, should the player be responsible for it? It is certainly foreseeable that someone could be injured by a falling helmet. After all, the laws of gravity dictate that what goes up must come down. It is surprising that more players or coaches haven’t been injured by helmets in these situations.

Generally, sports injury cases hinge on whether the injury occurred as a result of an act inherent to the sport. For example, a football player can’t sue an opposing player when tearing his ACL on a routine tackle. Throwing a helmet in the air doesn’t necessarily fall into that same category as a tackle; however, as mentioned, it may, too, be “part of the game.”

Regardless of the liability aspects, we are curious as to how Beck tore his Achilles’ tendon by a helmet thrown up into the air at home plate. The logistics of the injury seem to defy all odds. In describing the injury, Beck told Fox News:

I could not register right at that second, so I turned around and looked and there was a helmet laying on the ground and this young man that hit me was looking at me, stunned.

Given Beck’s own uncertainty, we have to wonder whether he sustained his injury when stepping on the helmet rather than when it fell from the heavens. Just leave it to us to speculate.

Bigfoot Body Going on Tour

Our New Year’s resolution here at Abnormal Use was to pen no more posts about the creature known as “Bigfoot.” In the past year, we wrote about Bigfoot on a couple of occasions. (You can revisit those posts here and here). Because the Sasquatch has little to do with the law or litigation, those posts probably occupied too much space in the legal blogosphere. So, this year, we say no more posts about the fantastical. Of course, if someone REALLY did find a Bigfoot, then who knows? Resolutions are meant to be broken.

Several weeks into 2014, all bets are now off. According to a report from The Huffington Post, famed hunter Rick Dyer has killed a Bigfoot, and now he is taking it on tour! Back in September 2012, Dyer claims that he lured a Sasquatch to his San Antonio-area campsite by nailing some pork ribs he purchased at a nearby Wal-Mart to a tree. When Bigfoot came to dine on the Wal-Mart pork, Dyer shot it and transported the body to an undisclosed location. The body has allegedly undergone DNA and 3D optical testing. Now, Dyer is prepared to take the body to a city near you.

As much as we hope Dyer’s claims are valid, we have a few questions. For starters, who knew Bigfoot lived in the heart of Texas? That certainly explains why all those years of searching for Sasquatch in the Pacific Northwest and the mountains of Appalachia were fruitless. Second, can we see the results of the diagnostic testing before we fork out money to see the body? Carnival attractions are no longer in season. Lastly, how does one kill a creature as sought after as a Bigfoot and not talk about it for a year? This is like winning the Powerball jackpot and holding onto the winning ticket for a rainy day. We really want to believe, but this doesn’t add up.

As The Huffington Post report notes, Dyer doesn’t have the best track record for Bigfoot claims. In 2008, he apparently tried to pass off a rubber ape suit as a Bigfoot body. This time, however, he is serious. And, apparently wants us to set a new record for breaking New Year’s resolutions.

Online Dating Site Targeted for Alienation of Affection

Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on AshleyMadison.com back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like DarwinDating.com with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

Fourth Circuit Finds Jury Can Speculate About Negligent Cleaning

If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.

At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:

When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.

The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.

Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.

[Hat Tip: Libation Law Blog]

North Carolina Shooting Death Leads To Lawsuit Against Gun Manufacturer

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

At the end of the day, we must remember that a young girl was killed through no fault of her own.  Determining the responsible party, however, has been relegated to pointing the finger at the party with the ability to pay.

First Circuit Gets Creative, Abnormal Use Applauds

Ever so often, an appellate court blesses us with an opinion that is witty and full of subtle humor. With its recent opinion in Bisbano v. Strine Printing Co., Inc., No. 13-1722 (8th Cir. Nov. 27, 2013), the First Circuit did just that. Before diving into the opinion, here is a quick statement of the facts. Bisbano was a commercial printing sales representative who championed a national drug store chain as a major client for nearly two decades. Bisbano worked for several printing firms over the years, bringing the client’s business along with him at each stop. Prior to his employment with Strine Printing Co. (“SPO”), Bisbano had secretly paid the car lease of a printing department employee of the chain while he was working for his former employer. During the course of an internal review of printing practices, the client discovered Bisbano’s roll in the apparent kickback and he confessed to the act. Nonetheless, the client decided that it would no longer do business with him. Shortly thereafter, SPO fired him. In turn, Bisbano filed suit against SPO, asserting claims of unjust enrichment, tortious interference with contract, breach of contract, and intentional and negligent misrepresentation. The district court granted SPO’s motion for summary judgment on each claim, and Bisbano appealed. In the well-drafted opening paragraphs of the opinion, the Eighth Circuit described the same as follows:

[S]ales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants.

So, right off the bat, you see where this one is going. On appeal, the crux of Bisbano’s arguments were two-fold: (1) SPO interfered with his business relationship with the client by firing him, and (2) SPO misrepresented to him that he would remain employed with the company as long as he brought in the client’s business. The Court wasn’t sympathetic to either theory, finding that Bisbano’s assertions were factually inaccurate and not a basis for relief under any of the causes of action. The Court indicated that the client independently ended its relationship with Bisbano prior to any action by SPO and, thus, SPO did not interfere with the business relationship by firing him. As the Court eloquently stated:

It is a matter of chronology, not a question of disputed fact, that SPC could not have induced [the client] to break off a relationship that [the client] already had relegated to the scrap heap.

Likewise, the Court found that SPO neither breached the employment contract by firing him nor made any misrepresentations by promising to employ him as long as he brought in the client’s business because it had fulfilled its promise. Once the relationship with the client had ended, so to, did any responsibility SPO had to employ Bisbano. According to the Court:

[T]hese losses, by any leap of even the most agile imagination, cannot be said to flow from the plaintiff’s reliance on SPC’s representations. The losses unarguably flowed from [the client'']s discovery of the plaintiff’s corrupt relationship with a [an official of the client] and [the client']s ensuing decision to sever all ties with the plaintiff. Seen in this light, the plaintiff was the author of his own misfortune.

Well-played, First Circuit. Well-played, indeed.

PIRG’s Tips For Holiday Toy Buying: What You Really Need to Know

Now that we have finally finished off that last bit of Thanksgiving turkey, we here at Abnormal Use find it safe to turn our attention to the holiday season. Aside from the incessant holiday music blaring in every retail shop, there is much to enjoy about the holidays – gifts being right near the top. For those that have been blessed with children, gift buying takes on greater significance. As parents ourselves, this report from the Public Interest Research Group (PIRG) outlining those toys from 2013 the group deems “dangerous” caught our eye.

There are a few things of note on the list, which includes such items as a play food set and a toy dolphin. First, if these toys are the most “dangerous” ones out there, toy safety has come a long way since we were children. It seems like just a few short years ago, kids were wishing for lawn darts and Slip ‘N Slides. The protagonist in “A Christmas Story,” released way, way back in 1983, receives his very own Red Rider BB gun. A firearm! Yet today, we deem a princess wand “dangerous.” The shift in attitude doesn’t necessarily mean that the latter is not, in fact, dangerous. Nor does our commenting on the change mean a princess wand isn’t hazardous. But we must say that perception and cultural shifts are interesting.

Second, most, if not all, of the items, are included because PIRG determined that they constitute choke hazards. Certainly, any small item can be a choke hazard if ingested. We question, however, whether placing the items on a “dangerous” toy list is necessary. It is no revelation that a bead kit containing small parts is capable of choking a person. So, really, what is the point of placing such an item on the list other than to give its manufacturer a scarlet letter? The size of these items is not a latent hazard, so we shouldn’t need this type of list in the first place.

If PIRG is only concerned with choke hazards, parents should not need the organization to tell them what toys are “dangerous.” Common sense should prevail. As you do your holiday shopping, police yourself. If you, like us, have young children who put everything in their mouths, don’t buy small toys with small parts. PIRG could have saved a lot of time and money by issuing the same statement.