Friday Links

Rest in peace, Mary Tyler Moore. There has been much talk this week about her great contributions to the medium of television, but let’s not forget her hilarious turn in the 1996 film, Flirting With Disaster.

Who is going to the DRI Product Liability Committee seminar in Las Vegas in February? Our editor, Jim Dedman, will be there, and if you see him, be sure to say hello.

So, apparently, the new Star Wars film, coming in December, is called The Last Jedi. We’re not quite certain what to think about that.

Very good news: The latest album by Japandroids arrives today. Miss this at your peril!

By the way, we here at Gallivan, White, & Boyd, P.A. and the Abnormal Use law blog are pleased to announce that Duffie Powers and Michelle Yarbrough have been elected as shareholders and Zach Weaver has been elected as a partner.

To Sit, Or To Stand?

There has been a recent movement involving the introduction of standing desks into traditionally sedentary work environments such as offices. In fact, you may have heard of a new, popular saying that “sitting is the new smoking.” This standing desk trend is gaining popularity based on medical studies correlating obesity, heart disease, and other physical ailments to sedentary lifestyles. As the aforementioned saying suggests, some of these studies have found that sitting for eight hours a day at a desk is physically more harmful for a person over the course of their life than smoking.

There have also been recent studies suggesting that standing at a desk compared to sitting is negligibly beneficial, if at all. So it appears that the jury is, arguably, still out on this issue. At this time, the best advice may be for a person to do what feels best and most beneficial for them.

Additional medical research on this issue appears inevitable.  Likewise, litigation may also be inevitable. Maybe a potential workers’ compensation claim will arise from an employer’s alleged refusal to provide employees standing desks. Perhaps a consumer will suffer an injury while using a standing desk that could have arguably been avoided by sitting. Only time will tell. In the meantime, enjoy this chair-related clip from “Seinfeld.” (This clip doesn’t really address the concerns discussed above, but we really like “Seinfeld,” and we like to incorporate it herein wherever possible).

McDonald’s Hit With Value Meal Pricing Suit

We here at Abnormal Use have discussed many McDonald’s lawsuits over the years. Most of those suits involved hot coffee spills and often led to heated discussions over a producer’s liability for serving products in the manner nature intended. While those discussions were certainly interesting for us legal nerds, none were necessarily as critical to the fabric of our society as the most recent suit filed against the fast food giant. As reported by the Chicago Tribune, a new suit, which seeks class action status, has been filed against McDonald’s alleging that the company has committed fraud and deceptive trade practices through the pricing of its Extra Value Meals. Specifically, Plaintiff Kelly Killeen alleges that she purchased a Sausage Burrito Extra Value Meal at a downtown Chicago McDonald’s. Killeen paid $5.08 for her meal. However, a review of the menu revealed that had Kielleen purchased the meal (comprised of two burritos, hash browns and a medium coffee) a la carte, the meal would have cost $4.97. And, Killeen is none too pleased with being deprived of 11 cents, apparently.

Killeen’s suit follows a similar lawsuit filed in December alleging that 10 Illinois McDonald’s overprice the Two Cheeseburger Extra Value Meal by about 50 cents. That suit also seeks class action status.

While it may not have been discussed on the campaign trail, value meal pricing is a real issue for those of us that actually pay attention. From fast food restaurants to concessions at movie theaters and sporting events, the “value” of a pre-grouped meal is often minimal, if not non-existent. Whether it is fraud or just good sales psychology, we will leave that question for the jury. Regardless, it remains an issue we should all be conscious of as consumers. With that said, don’t count on us to join the class. Even though we loathe value meal pricing, we routinely order value meals. The reason – it is easy and convenient regardless of whether it makes economic sense. Ever try to order from a drive-thru for a bunch of kids in the backseat? The goal is just to make it through. In that situation, ordering by number will always outweigh the economic benefit of a la carte. So, McDonald’s, yes, you can keep our 11 cents.

Friday Links

Did anyone remember that it was Friday the 13th today, or was everyone simply to busy to notice?

If you’re in Charlotte, North Carolina next week, and you’re curious about music law, you might be interested in the Inn of Court event on Wednesday. Here’s the info:

“I fought the law, and the law won,” a rock band once proclaimed. At our next meeting, we will learn about the law of music from both a music performer and a rock musician turned lawyer. Entertainment lawyer and former disc jockey Coe W. Ramsey of Brooks Pierce’s Raleigh office represents radio and television stations, musicians, new media companies, and others in nearly every area of entertainment law. Before practicing in the area of workers compensation at Cranial Sumner & Hartzog, LLP in Raleigh, Michael Connell played guitar in The Connells, a power pop band that recorded 8 albums and toured the world. At this event, Coe will teach us the basics of music law and forming a band, while Michael will offer his practical insights on the rock world from the perspective of a musician and performer.

The event takes place next week on the evening of Wednesday, January 18, 2016 at Draught in Charlotte. For more details and to register, click here.

A recent tweet by our editor reveals the perils of new legal technology.

Lifestyle Changes — Not Simply Resolutions

The 1993 cult-classic movie, Groundhog Day, starring the great Bill Murray comes to my mind each January. It is most apparent to me when I see people who have lost sight of every wellness habit they began between January and October start anew following the holidays. They resolve to eat better, join a gym, actually go to the gym they joined, drink more water, get eight hours of sleep every night, et ceterea. Many of the most popular New Year’s resolutions center on living a healthier, more balanced life. Everywhere you turn, there are articles, blog posts, and news interviews on how to improve your health during the new year. It is commendable to start each year with wellness goals, and it is my sincere hope that each person who begins one has success. But until those resolutions become part of your lifestyle—rather than simply resolutions—each year you will begin anew.

So as the co-chair for the South Carolina Bar’s wellness initiative, Living Above the Bar, next year, I want lawyers in South Carolina to resolve to keep the lifestyle changes they have made during 2017, instead of starting over.  But don’t get me wrong, keeping lifestyle changes does not mean refusing to try anything new as part of that lifestyle. It’s always helpful to challenge your muscles, including the mental ones, with something new.

As part of this initiative, the Bar’s Wellness Committee will offer a CLE and other wellness events during the South Carolina Bar Convention, January 19-22, 2017. The CLE presentation, entitled Fit to Practice: Finding Balance to Find Your Happy, will offer 3.0 MCLE Credit Hours, including up to 3.0 LEPR Credit Hours and 2.5 SA/MH Credit Hours and will take place on Thursday, January 19 from 1:45-4:45 pm. The purpose of the seminar is to provide multiple, short presentations from subject-matter experts on a wide range of topics, giving attendees a menu of options to maintain or regain optimal mental, physical, emotional, and professional fitness and wellbeing, healthy stress management, a healthy work/life balance, and the methods by which you can assist others whom you detect may be impaired.  The speakers include:

  • Jeena Cho, lawyer and author of The Anxious Lawyer, An 8-Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Meditation;
  • A fellow bar member who will show that professional productivity can be increased by leading a healthier lifestyle and getting outside more frequently;
  • Fellow bar members who will discuss the impact of Rule 428, SCACR;
  • An Associate Athletic Director from Clemson University, who specializes in nutrition, discussing the effect dietary and nutritional choices have on lawyers’ wellness, stress levels, professional performance, and longevity;
  • A fellow bar member who has unique experience and insight into balancing the demands of legal practice with the unexpected challenges posed by familial and other non-work related obligations; and
  • A mental health advocate with strategies for recognizing mental health issues in yourself and others (lawyers, judges, clients and others), strategies for seeking help in treating mental health issues, and the de-stigmatization of mental health issues.

In addition to the CLE, the Wellness Committee has put together some wellness activities. For those attending the Bar Convention, Jeena Cho is also providing drop-in meditation instruction from 7:30-7:50 am on Friday, January 20. While many lawyers have never tried meditation—and even scoff at the mention of it—it is something that can improve your life and your practice. Don’t worry, it does not involve chanting or require you to sit in a certain way. Rather, it can be done at your desk or in your home with ease. For those unable to attend the Bar Convention, Jeena Cho’s blog provides tips and instruction (and you can even sign up to receive mindfulness tips directly in your inbox), and Headspace is an app that you can download to guide you through meditation directly from your phone.

Additionally, Greenville’s fitness community is providing amazing discounts and classes during the Convention. Specifically, Barre Evolution is providing a $10 off coupon for attendees to use to attend any of the regularly scheduled classes during the Convention; Zanti Power Yoga is offering a special discounted rate of $10 per regularly scheduled class for Convention attendees; Swamp Rabbit CrossFit is providing a $10 drop-in rate for Convention attendees who are already affiliated with another CrossFit; and CycleBar Greenville will be offering free classes for Convention attendees, including a group ride with instructor Greta Pierson on Saturday, January 21 at 12:30 pm. The group indoor cycle ride is not limited to Convention attendees only.  Rather, if you’re a member of the SC Bar’s Young Lawyers Division, a member of the Greenville Bar Association, or a Convention attendee, you can sign up to attend.  To sign up: 1. Click here; 2. Click to Reserve your bike; 3. Sign up for an account; and 4. Pick a bike in the class.

If you have never taken an indoor cycle class before, that’s okay, and this should be what you resolve to try in 2017.  Indoor cycle classes allow you to control your own resistance—even though when I used to teach it, I always told my students that I wished I had a button that would permit me to control their resistance for them. I’ll be on Bike 7 waiting for you!

Start your healthy lifestyle with us at the SC Bar Convention.  Resolve that this is the last year where you start a wellness regimen over again in January.  No more Groundhog Day for you. Next January, my hope is that you resolve to continue the success you create this year!

 

Friday Links

Hey, it’s our first edition of “Friday Links” of 2017! Can you believe we’ve now been doing this blogging thing for 7 years now? In fact, we posted our very first post 7 years ago yesterday on January 4, 2010. How about that? My, how the time flies.

Did you know that TV’s “Night Court” first aired 33 years ago this week?

If you are on Twitter, are you following the hashtag #AppellateTwitter?

As you may know, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, where some of the local citizens welcomed the new year at an Avett Brothers concert. We elected to skip the show, and if reports from the event are any indication, our failure to attend was, in fact, negligence.

Our favorite legal tweet of late, by the way, references a film we’ve mentioned once or twice on this site:

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?

Friday Links

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We were saddened to learn of the death of actress and writer Carrie Fisher this week. Of course, we knew her mostly as Princess Leia. But we enjoyed her work in When Harry Met Sally, The Blues Brothers, and Hannah and Her Sisters, as well. Her mother, Debbie Reynolds, died the following day. We can’t imagine what their family must be enduring right now. Above, by the way, is a copy of Star Wars #65, published more decades ago than we would like to admit. We  bought more than a few issues of that series back in the early 1980’s.

Rest in peace, Carrie Fisher and Debbie Reynolds.

Well, it’s the last Friday of the year, and this is our last edition of Friday Links for 2016. We can’t say that we’re disappointed to see this year end. It’s been a doozy. We here at Abnormal Use and Gallivan, White, & Boyd P.A. hope that you all have a festive and safe New Year’s Eve tomorrow night.

The Avett Brothers are playing a New Year’s Eve show here in Charlotte tomorrow night, and we negligently failed to purchase tickets. Alas.

Did anyone get a new iPad Pro for the holidays?

Read about “The Ten Most Ridiculous Lawsuits of 2016.”

For our favorite legal tweet of late, we direct you to the following excerpt from a cross examination.

Our Favorite Posts of 2016

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year. Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. So, without further ado, fill yourself with nostalgia, just as we have, and revisit these entries from 2016.

$55 Million Reptilian Verdict in Erin Andrews Peephole Video Trial (Kyle White, March 8, 2016).

In “Game Of Thrones” Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin (Jim Dedman, April 1, 2016).

Snapchat Sued Over Distracted Driving Accident (April 26, 2016).

Snapchat Lawsuit Inspires Inaugural Abnormal Use Field Test (May 9, 2016).

Golden Rule – Treat Everyone Like They Are A Potential Source of Business (Kyle White, May 10, 2016).

Hot Coffee May Be A Carcinogen? (Kyle White, June 20, 2016).

How I Became A Lawyer (Stuart Mauney, June 29, 2016).

Real Lawyers Don’t Cry (Stuart Mauney, July 18, 2016).

Hot Coffee Karma: The Day Was Bound To Happen (August 22, 2016).

Nirvana’s Nevermind: 25 Years of Influence (Nick Farr, September 26, 2016).

Turning Lawyer Life Into Home Life (Nick Farr, October 18, 2016).

Are Litigation Experts Entitled To Prepayment for Depositions? (Kyle White, October 24, 2016).

Cheer or Fear?

cheer

Did Santa delight with the fun, safe playthings you expected, or are you suspicious that they’re actually a disguised death trap from the crotchety Christmas antagonist Belsnickel? The vintage death traps of Christmas past seem obviously dangerous to us now, but 2016 revealed that the hidden batteries and power sources of our swanky tech gifts are the unseen danger of Christmas present. You might find that the nostalgia of simple toys has you reconsidering this year’s hot tech in favor of vintage playthings of your past. But there’s a reason you can’t find original metal-tipped Lawn Darts anymore. Over 6,000 children were injured by Lawn Darts hurled through the air, so you’ll have to make do with the modern, plastic iteration. The hot gift of 1996 was the Snacktime Cabbage Patch Kid, a cabbage-headed doll with a mechanical mouth that would chomp when offered snacks. Content that it was already a cabbage anyway, the doll preferred childs’ fingers and toddler hair over cannibalization of the included plastic vegetables. In 2007, the CSI Fingerprint Kit made headlines as a safety fail when the powder used to test fingerprints was found to contain 5 percent asbestos. Naturally, lawsuits followed.

Burning ourselves on Easy Bake Ovens, shooting each other with BB guns, and blacking eyes with slingshots was practically a rite of passage and ripe with expected and obvious dangers tied to misuse that we or our parents chose to accept. However, the potential for danger and hazardous results in modern toys and gadgets is getting more difficult to evaluate as the technology is farther removed from our purview. BB guns may shoot your eye out, but today’s batteries and power sources explode, burn, melt, and corrode.

If you struck out with an exploding mobile phone or similarly blazing hoverboard in 2016, you probably saw more fear than cheer. And now it looks like you should probably put the e-cigs down, too, before an unintended pyrotechnics show blows a hole in your pocket. Batteries and power sources are an often ignored component of toys that can render serious damage when swallowed, pushed into bodily crevices, become damaged or when they overheat. Queue up this episode of “The Monster Inside Me” and you might be on the lookout for battery-free gifts next year.

Now that the gifts are unwrapped, keep an eye out for recalls and announcements made by the U.S. Consumer Products Safety Commission. As always, follow minimum age guidelines recommended on product labels and properly supervise children. Most importantly, enjoy this holiday season and relish the joy in giving to others.