Seventy six years ago this month, on August 10, 1936, the small town of Shelby, North Carolina coped with a muggy Monday morning.  My dad, Grady Mauney, then 16 years old, and his best friend, George Watson, sat on the front porch of the Mauney home on North Lafayette Street.  They started talking about how fun it might be to go to the Texas Centennial Exposition, in Dallas, Texas that year.  But, that was a long way from Shelby!  “Wonder how long it would take us to thumb rides to Dallas?” they asked themselves.

Before they realized what they were doing, Grady and George had both scraped together a little money, packed a bag, and found themselves hitchhiking their way to Texas.  Grady chronicled his journey in a series of postcards sent home from the road.  Oh, one other thing, Grady left town without telling his parents!  The two would-be adventurers simply left a note at the drugstore where they had been working that they were headed to the Texas Centennial.

Grady’s first postcard was addressed to his mother, postmarked Royston, Georgia, 4:30 p.m., August 10, 1936.  My dad’s sister told me that she always heard that my grandmother, Macy, spent three days holed up in a closet, worried about her son.

Dear Mother,

I thought if I told you that I was going to Texas, you wouldn’t let me so I didn’t tell you.  I got $25.00 and I am now in a little town in Georgia.  It is 4:00 and we have already come nearly 200 miles.  We are going to stay in Atlanta, GA, with George’s sister tonite.  I will write you along.

Grady, Jr.

The next day, Grady wrote that it was Tuesday morning and that they had stayed with George’s brother in Atlanta, but had decided to stay for the day and tour around the area.  They hoped to make it to Texas by Saturday.

On Wednesday, August 12, Grady sent another note to his mother, postmarked Lanette, Alabama.

Dear Mother,

We just arrived in Lanette, Alabama.  It is 10:30 Wed. morning.  We have got a ride into Montgomery, Alabama.  We spent the day with George’s brother in Atlanta Monday and Tuesday.  It is a lot of fun riding with a traveling salesman in a big car.  We have had lots of luck.  We looked over Atlanta yesterday.  It is about three times larger than Charlotte.

Grady, Jr.

Grady further wrote that they stayed in Montgomery, the capital of Alabama, and expected to cross the Mississippi River the next day.  On Thursday, August 13, Grady sent a postcard from Jackson, Mississippi, reporting that they had stayed in a hotel in Jackson, having traveled about 250 miles that day.  They still expected to arrive in Dallas by Saturday and anticipated it would be August 25 before they returned home.

On Friday, August 14, my dad sent a postcard from Vicksburg, Mississippi, addressed to his father, R.G. Mauney, in care of A. Blanton Company in Shelby, North Carolina.  He said he was having lots of fun and that he “might go on to California if my money holds out.  I bet Mother is cussing because I left.”  The cost of the postage stamp was 1 cent.  That same day, Grady sent a separate postcard to his mother.

Dear Mother,

I am in Vicksburg, Miss., getting ready to cross the Mississippi River.  Getting nearer to Dallas, Texas.  I still got about $25.00.

While most of the postcards were sent to his mother, Grady also wrote his younger brother and sister, Charles and Martha:  “I am having a good time hitchhiking it.  We hadn’t had to stand on the road over 10 minutes before we caught a ride.  It is lots of fun thumbing a ride.  We will be in Texas by Saturday.”

My mom recalls my dad saying that one night they stayed in a Hooverville, the name given for shanty towns built by homeless people during the Great Depression.  If that was the case, such was not documented in his postcards.  Maybe he didn’t want to worry his already distraught mother!

As they neared Dallas, they became more anxious to arrive and caught a bus from Greenwood, Mississippi to Dallas.  “It is costing us a good much but we wanted to get in Dallas tonite.”

Grady and George arrived in Dallas on Saturday night, August 16, 1936, six days after they left Shelby.  The next morning, he wrote a letter home to his mother and father.

Dear Mother and Daddy,

We arrived in Dallas last nite.  We had to ride a bus from Greenwood because we wanted to get in here before Sunday.  We got up this morning early and went to the fair and stayed all day.  We got enough of this place so we are leaving for home in the morning.  The Centennial sure is a big fair.  They say it is bigger and better than the World’s Fair was.  It cost over 6 million of dollars to build it.  Dallas is about three times larger than Charlotte.

Well I will tell you about our trip out here.  Monday we caught a ride from Shelby to Spartanburg and from Spartanburg to Royston, GA.  From Royston to Athens, GA, from Athens to Atlanta, and stayed in Atlanta with George’s brother for the nite.  The next day we stayed in Atlanta which is about three times as large as Charlotte, and let George’s brother show us over the town.  We saw lots of interesting things there but I will wait until I get home.  So it was Wednesday before we started on the road again.  We came 170 miles Wed. and stayed at Montgomery, the capital of Alabama.  Thursday we came 233 miles and stayed in Jackson, the capital of Mississippi that nite.  Friday we came 171 miles and stayed in a little town named Ruston.  Saturday we came 290 miles.

Each nite after we get our room, we would take a bath and go to the picture show.  The next morning we’d get up about 8:30 and start hitch-hiking.

We have had lots of fun but we are ready to come home.  We will be there by Saturday.

We have ridden in all kinds of cars.  I will tell you more about the fair and our trip when I get home.

Grady, Jr.

This final letter was postmarked Dallas, Texas, August 17 at 10:30 a.m.  The envelope was from the New Dallas Hotel, 310 South Ervay Street.

According to Google Maps, traveling their likely route, the journey would be 1,014 miles.  By today’s standards, that’s about a 17-hour drive.  Grady’s estimate of the miles they traveled was 1,063, which is remarkably close to Google’s estimate.  He must have asked each driver to keep track of how many miles they had driven that day.

The Texas Centennial Exposition lasted six months and attracted over 6 million visitors.  I suspect none of them had more fun than those two teenage boys from Shelby, North Carolina.

Ouch!  I have been called out by Max Kennerly of the Litigation and Trial law blog for perpetuating myths about plaintiff’s lawyers.  I recently wrote about the “CONTAINS PEANUTS” disclaimer on my container of delicious peanuts.  But, doggone it, I did not make reference to the federal statute which resulted in such warnings.  Max, a friend of the blog, reminded me that the Food Allergen Labeling and Consumer Protection Act (FALCPA) took effect in 2006 and requires the word “contains” when a food contains an ingredient that is a food allergen.  Kennerly correctly points out that this federal statute is why my container of peanuts says that it “CONTAINS PEANUTS” and not, at least presumably, because of some pre-legislation frivolous lawsuit.

Indeed, the FALCPA was enacted for consumers such as myself, the father of a young man who is allergic to peanuts, as I pointed out in my original post.  As Kennerly suggests, the rule is very sensible, at least generally.  But speaking of sensibilities, how about some common sense?  Sometimes, these warnings defy common sense, and as a result, the average consumer does not take them seriously.  Certainly, we here at Abnormal Use appreciate that it may have been “worth it,” as Kennerly says, to enact such legislation.  Yet we, as lawyer commentators ourselves, certainly reserve the right to comment on the occasional “silly result” and unintended consequences of even the most well-intended statutes and regulations. After all, it is one thing to warn consumers, who may not know the specific ingredients of a product, to a component of the purchased food product. But it is quite another to require that a separate “contains” warning be placed on the product’s packaging when the allergen is caused by the very product itself – not some component thereof. A peanut is a peanut is a peanut, and if you buy peanuts, which are clearly labeled as such by virtue of the fact that they are, in fact, peanuts, then it seems silly to require a federal warning that the package of peanuts – already clearly marked as such – contains peanuts.

On a side note, I must say that no one appreciates the consequences of allergens more than myself. In my original post, I mentioned that I had my own anaphylactic reaction to fire ant bites several years ago.  I hopped into a hot tub at a resort in South Carolina with my son, the same one with the peanut allergy.  Upon entering the hot tub, I immediately began experiencing a burning and itching sensation and noticed that a number of fire ants had trailed down into the hot tub.  There was a small mound of fire ants just several feet away from the hot tub, and some of them had actually gotten into the water.  My son and I immediately went inside to take a shower.  My eyes began to water, my lips swelled, my mouth felt funny, and I became quite dizzy.  I knew instantly that I was having a life-threatening reaction to the fire ant bites.  We rushed to the car and headed to the local convenience store to buy some Benadryl.  Before I could pay the cashier, the room started spinning, and down I went!  While I did not pass out, I also could not stand up.  While I was laid out on the cold hard floor, with my son standing over me, wondering what was going on, the cashier called 911.  The fire department arrived first and they tried unsuccessfully to get a blood pressure reading.  When EMS arrived, the paramedic asked the first responder about my blood pressure.  He said he could not get a reading.  At that point, I thought it was important to let them know I was alive and conscious!  When the paramedic did get a blood pressure reading, it was 60/40.  By the way, none of these folks were making jokes or even smiling.  This was serious business.

EMS loaded me into the back of the ambulance, and rushed me to the local emergency room, lights flashing and sirens blaring.  My son rode in the front seat of the ambulance, and an EMS attendant was in the back with me.  I received two injections of Epinephrine.  After four hours in the emergency room, and a course of steroids, I made a full recovery.

While we are on the subject, I wonder if that resort should have had a warning sign next to the hot tub: “CONTAINS FIRE ANTS!”.

I recently enjoyed a container of “Hand-Cooked Virginia Peanuts” made by a noted Virginia company with the word “peanut” prominently in its corporate name. Thus, on the container itself, easy to see and discern, there were two prominent references to “peanuts” – one in the product name, and one in the name of the manufacturer. Yet, while I was eating those yummy, yummy peanuts, I noticed this disclaimer written on the container: “CONTAINS PEANUTS.” Really?  I thought I was eating lima beans! Given that I had now seen the word “peanuts” written sideways, upside-down, and in six different languages, I decided to read further: “Manufactured on shared equipment in a facility that processes peanuts.” There it is again! Peanuts.  (By the way, with whom do they “share” their equipment?)

You know what this means? Sometime, somewhere, somebody ate some peanuts that he did not know were peanuts, became ill, and almost died. Then he hired a lawyer.  (Before you get all fired up about my insensitivity to peanut allergies, my own son is allergic to peanuts. Further, I had my own anaphylactic reaction to fire ants, which could be the subject of another whole blog post.). Whatever the case, I am reminded of how far we have come in the area of product safety warnings. Of course, consumers must be adequately informed of a product’s features and tendencies. But, come on, now! I really did know I was not eating lima beans.  I don’t even like lima beans.

In many states, including South Carolina, there are laws about adulterated or misbranded food. Indeed, in our state it is found at section 39-25-10 of the South Carolina Code, and titled “South Carolina Food and Cosmetic Act.” I suppose there’s some interesting legislative history which would explain why they combine food and cosmetics in the same statute. But that’s for another day. For good measure, we note this  statute does not include any commodity subject to packaging or labeling requirements imposed under the Federal Insecticide, Fungicide, and Rodenticide Act or the eighth paragraph of the “Bureau of Animal Industry” section of the Virus-Serum-Toxin Act. Who knew? The statute does prohibit the manufacture or sale of food or cosmetics that are adulterated or misbranded. A food is deemed to be adulterated if it contains any poisonous or deleterious substances which may render it injurious to health. Food is deemed misbranded if the labeling is false or misleading.  There is more to the statute, but I will leave the details for your late reading pleasure. Nothing on peanut warnings, mind you.

While I am not a regular consumer of cosmetics, perhaps some of our readers would be interested to know that the section on adulterated cosmetics “shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed there on: ‘Caution-This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dying the eyelashes or eyebrows; to do so may cause blindness.’” Moreover, under this particular paragraph, the term “hair dye” shall not include eyelash dyes or eyebrow dyes.  Further, a cosmetic is deemed adulterated if it consists of “any filthy, putrid or decomposed substance”.  I am not making this up.

In the meantime, I think I’ll go back and have some more peanuts. But I better read the warning first to make certain.

Disclaimer: Consult the laws of your own state for regulations governing the adulteration or misbranding of products containing lima beans.

Shazam!  The folks at Abnormal Use are saddened to learn of the death of the great Andy Griffith, who played Sheriff Andy Taylor on the famed “The Andy Griffith Show,” on which he starred from 1960 to 1968. In addition to that role, Griffith starred in director Elia Kazan’s film, A Face in the Crowd (1957), and was nominated for a Tony award for his Broadway performance in “No Time for Sergeants.”  Griffith played the lead character in “Matlock,” a legal drama which aired on television from 1986 to 1995.  He graduated from the University of North Carolina at Chapel Hill with a bachelor of music degree in 1949.  In addition to his career as an actor, he was a Grammy Award-winning singer.  After Griffith left The Andy Griffith Show in 1968, he starred in many television films, playing the villain in “Murder in Coweta County.”  He also appeared as an attorney in the NBC mini-series “Fatal Vision” in 1984.  Many will also recall his comedy routine, “What It Was Was Football”.

In tribute to Griffith, we have prepared this obituary for Sheriff Taylor, his most famous character.

Sheriff Andy Taylor was a resident of Mayberry, North Carolina.  During his years as Sheriff of Mayberry, he was a widower and father to Opie Taylor, his son by his first wife.  He later had another son, Andrew Jackson Taylor, Jr., after he married Helen Crump.  Andy’s Aunt Bee was his housekeeper and helped raise Opie.  Andy enjoyed using his favorite fishing pole, “Eagle Eye Annie”, and even used the pole to barter with Mayor Roy Stoner to obtain a beautiful bed jacket for Aunt Bee’s birthday.  After dating for several years, Andy eventually married school teacher, Helen Crump.  Opie had previously referred to her as “Old Lady Crump” when she forced Opie and some of his school friends to memorize historical dates.  As a result, Opie and his friends formed a local club, The Mayberry Minutemen.  Andy later left Mayberry and was an agent for the State Bureau of Investigation.  He then retired as a postal inspector in Cleveland before returning to Mayberry.

Before marrying Miss Crump, Andy had several other girlfriends, including Ellie Walker, the “Lady Druggist”.  He also dated several nurses, including Mary Simpson and Peggy McMillan.  Helen was his true love and they shared many double dates with loyal deputy, Barney Fife, and his girlfriend, Thelma Lou.  They enjoyed picnics at Myers Lake and parking at the duck pond.  Mayberry residents still talk about the time Barney helped “rescue” Andy and Helen when they got trapped in the cave.

In addition to serving as Sheriff, Andy was also the Justice of the Peace.  Barney was his only deputy, unless Barney deputized some temporary help, including town drunk Otis Campbell, mechanic Gomer Pyle, and barber Floyd Lawson.  Andy also performed marriage ceremonies, including Charlene Darling and Dud Wash.  Before doing so, he had to deal with Ernest T. Bass and his rock-throwing tendencies.  After Barney took a job in Raleigh, Andy trained a new deputy, Warren Ferguson.

Sheriff Taylor usually did not wear a gun, although Barney always had his pistol and one bullet in his pocket.  When Barney bought a car from Mrs. “Hubcabs” Lesh, Andy helped Barney capture the scam artists who sold him the car.  It was one of the rare occasions Andy authorized Barney to actually put the bullet in his gun.

In addition to monitoring Barney’s attempts to arrest jaywalkers (especially Emma Watson), Andy’s law enforcement duties included chasing down the local moonshiners.  These included Rafe Hollister, who was discovered to have a talent for singing.  Barney helped Andy nab the Morrison sisters, who were making moonshine in their greenhouse.

Andy enjoyed playing his guitar and singing with Barney, or other local characters, including Jim Lindsey, who later played with Bobby Fleet and His Band with a Beat.  Andy also played the guitar with the Darling family when they came to town.  He liked playing checkers and hanging out at Floyd’s Barbershop.  He had a good relationship with local businessmen, including Emmett Clark (Emmett’s Fix-It-Shop), Orville Hendricks (undertaker and television repair), Charlie Foley (grocery store), and Wally, down at Wally’s Filling Station.

Andy was known throughout the community for his honesty and integrity, and for his good heart.  Andy allowed bootlegger Sam Muggins to celebrate Christmas in the jail over the objection of Ben Weaver.  He ate Aunt Bee’s homemade pickles even though they tasted like kerosene.  He helped a Mayberry resident prove that his bad luck was not a jinx.  When struggling door-to-door salesman, Bert Miller, was complaining of his sore shoulder, tired feet and the sound of ringing doorbells, Andy helped him stay in business against the strong-armed tactics of Ben Weaver.  Certainly, his kind treatment of Otis Campbell deserves special recognition.

The town of Mayberry and the State of North Carolina mourn the loss of one of its finest citizens.

“When a man carries a gun all the time, the respect he thinks he’s getting might really be fear.  So I don’t carry a gun because I don’t want the people of Mayberry to fear a gun. I’d rather they respect me.”

(Stuart Mauney previously memorialized actor George Lindsey, who played Goober Pyle on “The Andy Griffith Show,” on the occasion of his death earlier this year.).

This is an open letter to law firm associates, everywhere, wherever they may be, regardless of the size of their firm or the nature of their practice.

I am aware that you are in love with the cut ‘n paste mode of creating documents and letters.  I love it, too.  A wonderful time-saver.  One can be very efficient in using this mode of document creation.  I have used it to my advantage many times.  Yet, there are traps for the unwary, a veritable minefield of explosives lurking below the surface.  That is why many law firms have adopted the Uniform Guide to Law Firm Associate Behavior (“UGLFAB”).  Rule No. 12.3(c)(2)(iii), of the UGLFAB states, in pertinent part:

Associates who employ the cut ‘n paste method of document generation, do so at their own risk and peril.  There will be NO EXCUSES, NO WAIVERS OF LIABILITY, NO WHINING THAT PARTNER IS UNREASONABLE, and NO GET OUT OF ASSOCIATE JAIL FREE CARD.  HEREOF FAIL NOT.

Perhaps your firm’s management committee has been busy with other stuff, like recruiting – which is important (especially since VIOLATION of the Cut ‘n Paste Rule can be TERMINABLE OFFENSE) – so I am taking this opportunity to provide this friendly reminder. Remember: Proofread everything!

I have previously referenced one of my favorite legal resources, The Official Lawyer’s Handbook, by D. Robert White, Esq., published in 1983 by Wallaby Books.  One of the chapters is titled, “How to Survive and Make Partner in Your Law Firm.”  Rule No. 3 in that chapter is “There is No Such Thing as a ‘Draft.’”  As White points out, the word “draft” is a term of art and “failure to understand its specialized meaning has left many an eager and capable associate consigned to proofreading loan agreements for the duration (short) of his stay with his firm.”  Perhaps you have encountered this potential disaster of misunderstanding the term “draft.”  A partner asks you to provide him with a “draft” on a particular point.  “More often than not, he will camouflage the trap by saying something like, ‘Just get me a quick draft,’ or ‘Just whip off a draft,’ or even ‘Just dictate a rough draft.’  The emphasized words should trigger flashing red lights in your mind.”

That the partner has asked for a “draft” does not mean that he will tolerate the sloppy cut n’ paste method, which you have failed to proofread.  It does not mean that the partner will tolerate typos or that you should not have checked all your cites in advance.  As White concludes, “everything you submit to a partner should be suitable for framing.  No matter how casual the request, how insignificant the task, or how few the dollars at issue, the test you should apply to everything bearing your name is its suitability for hanging in the Sistine Chapel of legal documents.”

By the way, Rule No. 1 is CYA.

Once upon a time, I represented a funeral home on a claim for negligent embalming.  At least they had the right body!

The L.A. Times recently reported that Mercedes Adilia Rodriguez had specific instructions for her funeral, including a closed casket and burial in her hometown in Nicaragua, rather than in Southern California.  Shortly after her death, the funeral home allegedly admitted it had made a mistake and that Ms. Rodriguez had been confused with someone else.  The family sued, alleging in their complaint against the funeral home that Ms. Rodriguez went through another woman’s funeral, in an open casket, dressed in the other woman’s clothing, and buried in a cemetery marked with the other woman’s name. The L.A. Times further reported that the family has alleged that while the funeral home refunded the funeral costs, they claim damages for being “forever haunted by the vision of how a complete stranger’s family and friends mourned, touched, kissed, and cried” over Ms. Rodriguez’s body.  While there have probably been other cases like this in the past, we were particularly interested in the online comments offered by the story’s readers.  The funeral home accepted responsibility, refunded the cost of the funeral, and apologized.  Based on these readers’ comments, the plaintiffs are going to have a tough time making their case.

“This lawsuit is wrong on so many levels.  It’s interesting they can put a price on their emotional turmoil.”

“It does make you wonder how bereaved they are if they can manage to file a lawsuit.”

“What a bunch of slimy money-grubbers.”

“Disgusting that the family of this woman would capitalize on this mistake . . . ambulance-chasing scum attorneys.”

“Another moneymaker for bottom-feeding lawyers.  This mistake is nothing more than an excuse to get a little extra cash.”

“Go earn money instead of trying to make it on the backs of others.”

The Rodriguez family will probably want to strike most of these readers from any potential jury pool.

My 87-year-old mother recently moved from her home in North Carolina to live with my sister in Pennsylvania.  She would no longer need her car, a 2000 Mercury Sable, and therefore, gifted it to my 15-year-old son for his birthday.  On one condition: that he agree not to text or talk on his cell phone while driving!  He agreed.

I have defended a number of lawsuits over the years where the at-fault driver was alleged to have been on a cell phone at the time of the accident.  But, the problem of distracted driving is not new.  Surely, the folks who drove the first cars in the early 20^th century experienced distractions, perhaps when they passed a neighbor who was in a horse-drawn buggy?

According to AAA, “passengers are one of the most frequently reported causes of distraction, with young children being four times more distracting than adults and infants being eight times more distracting.”  Indeed, my first experience with distracted driving was when I was 18 years old, driving home from high school in my brand new 1980 Plymouth Horizon.  The distraction?  The four other teenage boys in the car with me!  I passed a stopped school bus, got an expensive four-point ticket, and was well on my way to a distinguished driving record.

While texting, emailing, or talking on a cell phone can be dangerous, so too is eating, smoking, changing the channel on the satellite radio, or just “rubbernecking.”  Some years ago, I defended a garbage truck driver who was distracted while drinking a 16-ounce bottle of Mountain Dew.  The result?  He ran right into the back of another truck!  Nobody got hurt, but the owner of the other truck filed a lawsuit for their property damage.  We lost.

Cell phones?  AAA reports that using a cell phone while driving quadruples your risk of an accident.  Driver inattention is a factor in over one million car crashes every year, with an economic impact of almost $40 billion annually.  Just Google “cell phones and driving.”  What are the results?  “Drivers on cell phones are as bad as drunks.”  “Despite the dangers, teens admit to cell phone use while driving.”  “Drivers on cell phones kill thousands, snarl traffic.”

The National Highway Transportation Safety Administration (NHTSA) is sponsoring a campaign to prevent texting and driving.  Information can be found on their website at stoptextsstopwrecks.org.  According to the NHTSA, five seconds is the average time a driver’s eyes are off the road while texting.  While traveling at 55 mph, that is enough time to cover the length of a football field.  A texting driver is 23 times more likely to get into a crash than a non-texting driver.  Using a cell phone while driving delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.

Both the AAA and NHTSA provide suggestions for improving driver behavior.  (1) Out of sight, out of mind.  When you are in the car, put your phone where you cannot get it.  A place where you will not even be tempted to look for it.  No phone.  No texting.  (2) Silence is golden.  Turn those notifications off.  The less you hear your phone, the less tempted you will be to respond while you are driving.  (3) Designate a texter.  Borrow thumbs from a friend, or lend yours to a friend.  Passengers get the privilege of texting while in motion.

Not everyone should text and walk.  No one should text and drive.

When I was a kid, my family owned a basset hound named “Trouble.”  He was a dog’s dog; he chased cats and dug up our neighbor’s flowers.  We loved him.  One day, he came home with a bullet hole in his floppy ear.  Perhaps he got a little too friendly with the cats?  Maybe he trampled too many tulips?  Whatever the case, someone did not love Trouble the way we did.

Sometime later, my dad, a dentist in our small hometown, received a visit from the local sheriff, also one of his patients.  The sheriff said our neighbor had sworn out a warrant for my dad’s arrest for disturbing the peace.  Trouble was in trouble!  The choice was simple: fence in the backyard or take Trouble back to his previous owner, a country farmer.  My dad refused to fence him in, and that weekend, we all piled into the yellow, wood-paneled station wagon to take Trouble to the country where he could roam freely, and be a dog.

Do you own a dog?  If so, watch out!  While Trouble was never accused of biting anyone, it has recently been reported by USA Today that dog bites accounted for more than a third of homeowners’ liability insurance claims in 2011.  The cost?  Nearly $470 million.  According to the report, the cost of dog bite claims has risen 48 percent since 2003.  These statistics are probably the result of increased dog ownership, living closer to one another, and parents of children more likely to seek advanced medical care for their children after a bite.  According to this same article, the United States has 78.2 million dogs, or one dog for every four people in this country.  If you own what is referred to as a “vicious” dog, you should read your insurance policy, as there is probably an exclusion for the ownership of such dogs.  Many insurers exclude coverage for claims arising out of the ownership of particular dogs, including Pit Bulls, Rottweilers, German Shepherds, Huskies, Alaskan Malamutes, Doberman Pinschers, and Chow-Chows.

Under South Carolina law, the owner of a dog, and the person having a dog in his care or keeping, are strictly liable for damages suffered by a person who is bitten or attacked by a dog.  S.C. Code § 47-3-110.  The statute also provides that if a person “provokes a dog into attacking him, then the owner of the dog is not liable.”

By the way, Title 47 is titled “Animals, Livestock and Poultry.”  This section includes the definition of “dog” and “cat,” along with the penalty for allowing dogs or cats to “run at large.”  You will also find prohibitions for the keeping of sheep-killing dogs, the disposal of feral dogs, allowable methods of euthanasia, and penalties for taunting, tormenting or teasing a police dog or horse.

If you do get sued, it’s probably best if your basset hound is not named “Trouble.”

Some years ago, on a hot August Friday night, “Bobby Joe” got a little too close to the action in the pit area of the local dragway.  A pickup truck, pulling a trailer loaded with a race car, ran over his foot, allegedly causing grievous injury.  It was so bad that, two days later, he decided he needed to be seen by a doctor about the bruise on the side of his foot.  Can you say “vexatious lawsuit’?  Yes, Bobby Joe sued both the truck driver and my client, the owner of the dragway.  No warnings!  No barriers to keep pedestrians away from the dangerous pit area!  No bold, yellow signs to tell spectators that it is not a good idea to absentmindedly walk near the burnout strip!  Did I mention this was my second case representing a dragway?

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!

Imagine this situation: customer and customer service representative find themselves in an argument over a trivial matter.  Words are exchanged.  But it doesn’t stop there. The dispute escalates into a verbal altercation with racially-charged epithets hurled back and forth.  (For the record: The customer was Caucasian, the customer service representative was African American).

The customer storms out of the place. The customer service representative follows her to the parking lot, yelling and screaming.  The customer, not to be outdone, continues the verbal assault from her car.  Finally, the customer decides to leave, places her car into reverse, and hits the gas.  As she raced backwards, she clips the customer service representative, causing her injury.

The customer service representative lawyered up and sued the customer.  That’s right.  You guessed it.  I represented the customer.

We mediated the case, in which the Plaintiff claimed over $20,000 in medical bills and a permanent injuries.  I met with my client before the mediation.  I asked her if she was comfortable offering an apology during the opening statements of the mediation session.  She quickly replied she was indeed sorry the whole thing had happened, and that the Plaintiff had gotten hurt.  I reminded her that hurtful words were exchanged, including racially insensitive remarks by both parties.  [Note: The remarks were so offensive that I am not going to publish them in this post.]  She seemed genuinely interested in getting the matter settled, and if an apology would help do so, she was all for it.

After the mediator explained the process, and the plaintiff’s attorney completed his opening remarks, I presented our case.  This was an accident, the customer was sorry this happened, and we hoped we could get the matter resolved, or words to that effect.  I then turned to my client, and asked her if she had anything to add.  To this day, I do not recall exactly what she said, but it was NOT an apology!  There was no acknowledgment of the injury.  She did not take responsibility.  She did not express any regret or remorse. Whatever she said, it offended both the Plaintiff, and the Plaintiff’s husband, who was with her at the mediation.  The husband stormed out of the room.  The Plaintiff’s body language and icy glare told me that we were going to start this mediation further apart than we had when we first arrived.

While we eventually settled, we spent a significant amount of time mending fences as a result of the insincere “apology.”  While an apology in mediation can allow closure, and if sincere, start the process of restoring trust, many people need help in crafting an apology.  As mediator Carl Schneider has written, “parties often need preparation before they are ready to offer an apology.”  The parties may need help with the words.  The mediator can help put “the apology in words and parties simply indicate their assent.”  In retrospect, I did a poor job of preparing my client for her apology.

In Schneider’s article, “What It Means to Be Sorry: The Power of Apology in Mediation,” he defines “apology” and what makes an apology work.  He then describes the use of apologies in mediation.  Schneider concludes:

An apology may be just a brief moment in mediation.  Yet it is often the margin of difference, however slight, that allow parties to settle.  At heart, many mediations are dealing with damaged relationships.  When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.  Trust has been broken.  An apology, when acknowledged, can restore trust.  The past is not erased, but the present is changed.

Clearly, there are instances where an apology has been a critical element in resolving disputes, including lawsuits.  But that can only occur when the person apologizing is sincere, acknowledges the hurt, takes responsibility and expresses regret.