More Monkey Business: Lawsuit Over Monkey’s Property Rights in Selfie

We recently reported on a New York case where the judge begrudgingly held that monkeys are not people in the eyes of the law. As you might imagine, PETA disagrees, and it has filed a lawsuit on behalf of a monkey named Naruto from Indonesia. The lawsuit, filed in federal court in California, alleges that Naruto has property rights in a selfie that he took of himself in 2011, which subsequently went viral. We’d post a copy of the photo, but we certainly don’t want Naruto suing us.

One of the defendants in the case is the owner of the camera that Naruto used to take the camera selfie. The lawsuit alleges that he has improperly reproduced and distributed the photo for which Naruto owns the copyright. According to the complaint:

While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq. , is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his be half by the Next Friends.
You may be asking what relief Naruto seeks as compensation. Bananas? Apples? Nope, according to PETA, what Naruto wants and needs is money. But, of course, Naruto is not a greedy monkey, so he doesn’t want the money for himself. The complaint requests that the disgorgement of profits from the prior sales and proceeds from future sales be given PETA to do with as it the pleases.
Attorneys, in light of these events, you’d best prepare your clients to enforce their property rights. You know the fox that was chased off that old abandoned farmland in order to clear the way for a McMansion neighborhood? Squatter’s rights. That bird with a nest in the tree that was cut down? Real property damage. The whale whose song was recorded underwater without permission? Copyright infringement. Here we go . . . .

Food Exec Gets 28 Years Jailtime In Salmonella Case

Last year, we reported on the criminal case against a food industry executive who was convicted of crimes related to a 2009 salmonella outbreak that sickened hundreds and may have contributed to the death of nine people. Nearly a year later, he’s finally been sentenced, and it is a really stiff one. Very recently, Stewart Parnell, former head of the Peanut Corporation of America, was sentenced to 28 years in prison for his crimes.

By way of refresher, last September, Parnell was convicted of 71 criminal counts, including conspiracy, obstruction, and introduction of adulterated food. The charges stemmed from Parnell’s alleged decision to knowingly distribute salmonella tainted peanut butter for sale to customers. Federal investigators uncovered years worth of emails and other records showing food confirmed by the company’s lab tests to contain salmonella was shipped to customers. Other batches of food were never tested but nevertheless shipped with labels that falsely indicated that they had been tested for salmonella.

The 28 year sentence handed down by a federal judge in Georgia is a no doubt a tough one and may effectively amount to a life sentence for the 61 year old Parnell. It is the biggest sentence ever handed down in a food safety case, but it is much less than the maximum of 803 years that he was facing. However, as The Wall Street Journal has pointed out, the recent sentences in similar food safety case were much much lighter to say the least:

…last April sentenced the owner of a large egg producer and his son to three months in prison for their involvement in a 2010 salmonella outbreak that sickened thousands of people and led to a nationwide recall. A Colorado judge sentenced two brothers to five years’ probation after the pair pleaded guilty to misdemeanor charges following a 2011 listeria outbreak linked to their farm’s cantaloupes that resulted in 33 deaths.

Nevertheless, even if Parnell did have any malicious intent, his actions seem to have been egregious and still caused a lot of harm. As such, the sentence seems appropriate. If nothing else, this case will likely demand the attention of food industry executives across the country.

Media Still Trying to Cash-In On Hot Coffee Buzz

We here at Abnormal Use have remained quiet on the hot coffee lawsuit front in recent months. While news reports of such suits often arise, we think we know when to stop beating a dead horse. After all, we have written on the subject of hot coffee lawsuits some 48 times, and there are only so many ways we can say that there is nothing unreasonably dangerous about a product meant to be served hot. Certainly, such dedication to the legal topic was foreseeable when Stella Liebeck ordered that 49 cent cup of coffee from a New Mexico McDonald’s 23 years ago.

That said, every now and again we must come out of hibernation.  And, for good reason. Just because a cup of coffee is a component in an accident case, it does not mean that the case is a “hot coffee case” or bears any resemblance to the infamous Liebeck verdict.  It is time the media gets the message.

Last week, ran the following headline: “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, spilled coffee on herself.”  Undoubtedly, the headline was designed to attract readers by drawing upon their passions for the Liebeck case.  Woman spills coffee on herself and gets a big settlement.  Sounds familiar, right?  We understand why a reader might click on that link.

The problem is that the case has little, if any, resemblance to the Liebeck case.  Upon a review of the article, the reader will see that the case sounds in premises liability – not an allegedly defective product. Back in 2012, the woman purchased multiple cups of coffee at a Dunkin’ Donuts. When walking back to her car, she tripped over an exposed spike from a dislodged curb stop. In the fall, she spilled the coffee on her face and neck. She also sustained lacerations on her hand and knee. While she was burned by hot coffee, there is nothing in the report about whether the coffee was abnormally hot or otherwise defective in any respect. In fact, the only quote found in the report comes from the plaintiff’s lawyer, and it, too, makes no reference to the coffee. Specifically, attorney Ed Rebenack said, “Basic property maintenance would have saved Ms. Marsala from years of debilitating injuries.” Clearly, it is a premises – not product – liability matter.

We understand the concept of clickbait. We also understand the need to draw readers to your site. But, for us legal geeks, the headline is painfully misleading to say the least. Yes, the plaintiff obtained a settlement based, in part, due to coffee burns. The case, however, is not a “hot coffee” case at all. Certainly, hot coffee purportedly contributed to the injuries, but Dunkin’ Donuts’ alleged liability rests with the conditions of its premises. The case would have been the same even if hot coffee was replaced with any other object picked up from inside the store capable of causing injuries. For example, if the plaintiff picked up a plastic knife in the store, tripped in the parking lot, and was stabbed by the knife, then the end result could have been the same. (We recognize this is a stretch, but, hey, it’s a hypothetical) Would the headline have read, “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, stabbed herself with plastic knife”?

Absolutely not. Well, maybe, and if it had, we would have certainly written about those facts, as well.

There are some who will use this case as an example of the alleged dangers of hot coffee. Sure, hot coffee can cause burns.  That has never been in dispute. It is the liability for hot coffee that generates all the buzz. As ridiculous as we find those lawsuits, this case is not one of those. This is just a premises case that just so happens to involve a cup of coffee.  A report whose headline should have read,”Dunkin’ Donuts will pay $522k to Somerset woman who tripped on a dangerous condition in the parking lot, sustained injuries that just so happen to involve a cup of coffee.” That’s more like it.

The Evolution of Legal Mobile Devices

I have been practicing law for ten years now, but I remain reluctant to offer tales of how the profession used to be.  Ten years is not an eternity. Besides, there are lawyers out there who have been practicing thrice as long as I have, or more.  But when I first began to practice, way back in those halcyon days of 2002, lawyers were just beginning to use both the Internet, mobile devices, and such regularly in their daily routines.  So too were lawyers then integrating modern cellular telephones into their practice (although, of course, there were those early adopters with car phones and those terribly inefficient and wonderfully obsolete bag phones).

Recently, I spoke with a younger lawyer about mobile devices, and whether that young lawyer should purchase the new iPhone 5, an Android, or what have you, even an iPad or laptop.  I couldn’t help but laugh, because it reminded me of a fateful trip that I took, circa 2005.

At that time in my career, I was practicing with a firm in Texas, and I was traveling a good bit.  As fate would have it, my travels took me to Colorado – for the first time.  I remember arriving at my hotel, after flying from Texas to Denver and having to unpack all of my technology.

Of course, I owned a Blackberry, which at that time, did not have the ability to access the Internet beyond email.  Further, I had a second generation iPod, which, of course, was far more bulky than its modern day descendants.  (Even then, air travel, and the accompanying bustling about required by it, was intolerable without one’s iPod.).  Also, I had my own phone, one of those now archaic flip phones, which was required because the Blackberry telephone service was too expensive for my firm to reimburse, and thus, too expensive for me, and so I had my own phone with its own personal calling plan.  Finally, I had a laptop, which was required for more substantive work, as I could not access PDF or Word documents on my Blackberry.

I remember pausing as I unpacked these materials and thinking how ridiculous it was that I was forced to carry about so many items, all of which required their own separate and distinct charging cords.  So, I spent the next fifteen minutes finding electrical outlets in which to plug the charges for these devices.  As you can imagine, during the flight, all of the chargers and cords became intertwined, making the untangling enterprise as frustrating as possible.

Now, seven years later, I simply carry my iPhone and my iPad with me.  The iPhone alone is probably sufficient, and sometimes, I leave behind the iPad, but it’s amazing that all of those ancient devices are now merged into one with our new smart devices, whatever those may be.

Today’s young lawyers of today will never know that hassle.  And the lawyers of my generation will never know how frustrating it must have been to carry around all those reams of paper required when traveling in those fateful days of yore before mobile devices and laptops.  Yikes.

(This post was originally posted on the now defunct North Carolina Law Blog on Friday, November 9, 2012).

Friday Links


Above, you’ll find the cover of Star Wars #1, published way, way back in 1977 (the year the first film was released). We’ve been thinking about Star Wars a good bit lately in light of the imminent release of The Force Awakens. Question: When the new Star Wars film is released on December 18, will that day considered to be a billing holiday? Surely law firms large and small will all be closed that day to allow their employees to trek to the cinemas? If not, how will employee morale be affected? By the way, you can revisit our favorite Star Wars post (in which we question the legitimacy of the prequels in an April Fool’s Day post) by going here.

If you appear in South Carolina Courts via pro hac vice (or sponsor those who do), you may need to know this news. On September 9, the South Carolina Supreme Court amended the Verified Application for Admission Pro Hac Vice. To read the amendments, click here.

Our favorite legal tweet of late concerns that most frightful of courtroom scenarios:

South Carolina Supreme Court Establishes Civil Motions Pilot Program

Last week, the South Carolina Supreme Court established a Civil Motions Pilot Program to begin next month governing motion practice in the Third and Fifteen Circuits. Basically, the order follows the form of the federal rules. The pilot program will require contemporaneous memoranda in support of motions, and opposition papers to be filed within 30 days. It also features a number of new formal requirements. If you practice in those circuits, you’ll need to follow the new rules. Even if you practice elsewhere, you may wish to consider the new rules as some evidence of what the South Carolina Supreme Court believes to be best practices. You can read the court’s order here.

Rain, Rain, Go Away: Avoiding Premises Liability Actions When Mother Nature Strikes

We’ve all been there. You circle the parking lot two or three times in search of that Utopian parking spot located just steps from the store’s entrance and covered in the shade of a majestic oak tree. But just about the time you start your final pass before accepting defeat, the dark clouds roll in and drop buckets of rain so harsh your mind conjures visions of animals marching  two-by-two. With no signs of life in the vehicles in the front row parking spaces, you are forced to park your chariot in what seems like the distant lands of a foreign nation. It’s only at that moment you first realize your one and only safety net from the monsoon is an umbrella which just so happens to be located safely between your nine iron and putter in a golf bag at home. Your only option is to call upon your inner Usain Bolt to dash through the downpour until you can reach shelter at the store’s entrance. Despite executing a 40-yard dash worthy of honorable mention at the NFL combine, you reach the entrance soaked from head to toe, your tee shirt stuck to your back and tennis shoes squeaking with every step.

Okay, I’ll admit it. That may be a bit of hyperbole. Chalk that up as a feeble attempt to use what my high school English teacher would call an “attention grabbing hook.” But undoubtedly we have all experienced situations while running routine errands or meeting friends for dinner where we are wholly unprepared for the elements Mother Nature throws at us. We end up in a rush to avoid that “fresh out of the swimming pool” look and are not entirely focused on our safety, or the well-being of those around us. The majority of the time, we are able to air dry over an appetizer, or hang our wet clothes on the hook in the dressing room while we try on a bunch of new outfits. No harm, no foul, as they say.

However, as the owner or risk manager of a retail store, hotel, or restaurant, it is your job to not only delight in each individual who patronizes your business without incident, but also to focus on the bigger picture to ensure a series of non-issues doesn’t lead to one unfortunate customer accident. It’s during these times that you, as a business owner, need to understand exactly what duties you and your employees owe to the rain-soaked customer.

In South Carolina, a merchant (such as the owner of a retail store, hotel, or restaurant) is not an insurer of the safety of his/her customers; however, the merchant does owe his/her customers certain duties such as exercising ordinary care to keep the premises in a reasonably safe condition. See Felder v. K-Mart Corporation, 297 S.C. 446, 377. S.E.2d 332 (1989). Further, the merchant is not required to maintain his/her premises in such a condition that no accident could happen to a patron at the facility. See Denton v. Winn-Dixie Greenville, Inc., 312 S.C. 119, 439 S.E.2d 292 (1993).

In determining negligence in slip-and-fall cases involving a foreign substance, the South Carolina Supreme Court has outlined two categories under which a Plaintiff may maintain an action against a merchant: (1) where the plaintiff demonstrates the foreign substance in which he/she slipped was actually placed on the floor by the merchant or its agents (i.e. employees); or (2) where the plaintiff demonstrates the merchant had actual or constructive notice the substance was on the floor at the time of the slip and fall, but failed to remedy or otherwise warn of the danger it posed. See Legette v. Piggly Wiggly, Inc., 368 S.C. 576 (Ct. App. 2006); see also Gilliland v. Pierce Motor Company, 235 S.C. 268, 111 S.E.2d 521 (1959); Wintersteen v. Food Lion, Inc., 344 S.C. 32 (2001); Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1957); Anderson v. Belk-Robinson Company, 192 S.C. 132, 5 S.E.2d 732 (1939). The mere fact that an injured party can show a foreign substance was in fact on the floor which caused his/her fall is insufficient standing alone to maintain an action for negligence against a storekeeper. See Calvert v. House Beautiful Painting & Decorating Center, Inc., 313 S.C. 494, 443 S.E.2d 398 (1994); see also Browning v. Bi-Lo, Inc., 2004 WL 6334931 (West 2004).

Therefore, as noted above, a patron seeking to recover under a premises liability theory for a slip-and-fall injury must show either the substance was placed on the floor by the store, or that the store had actual or constructive notice the substance was there. Where there is no evidence a store employee placed the substance on the floor himself/herself (for example by mopping the floor), and no evidence the store had actual notice of the substance, the injured party will seek to prove the store had constructive notice the substance was there. “Constructive notice may be proved by showing that the [foreign substance] had been on the floor sufficiently long that the [store] was negligent in failing to discover and remove [that substance]” prior to the injured party’s fall. Hunter v. Dixie Homes Stores, supra. Hence the need for routine, periodic store inspections by employees during their shifts to identify and remedy potential hazards.

However, even with the most stringent store policies requiring routine, periodic store inspections by one’s employees, slip-and-fall incidents still occur. The Court has recognized a store’s inability to entirely ensure the absence of foreign substances on its floors by conducting continuous inspections, saying “[i]t is well settled that merchants are not required to continuously inspect their floor for foreign substances.” Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 166, 580 S.E.2d 440, 442, (2003). The standard, rather, is simply to “[exercise] ordinary care to keep the premises in a reasonably safe condition.” See Felder v. K-Mart, supra.

That leads us to the question: how have South Carolina courts viewed merchant liability for customer slip-and-falls resulting from tracked-in rainwater in the past? In Young v. Meeting Street Piggly Wiggly, the South Carolina Court of Appeals noted “it is impossible to keep commercial premises entirely free of tracked-in rain during bad weather” and, for that reason, “a merchant’s liability may not be based solely on the presence of moisture” within the store. Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 510, 343 S.E.2d 636, 637 – 638 (Ct. App. 1986). Rather, the injured party must prove a presence of moisture which caused their injury, as well as evidence the business failure to exercise reasonable care in identifying and remedying the hazard caused by the accrued moisture. The Young court concluded the merchant in that instance, Piggly Wiggly grocery store, had undertaken sufficient reasonable steps to protect its customers from tracked-in rainwater by placing rubber mats inside and outside of the store’s entrances, having employees mop the entrance/exit areas to remove excess water every five (5) to ten (10) minutes, and placing at least one warning sign in proximity to the area of accumulation to caution patrons of the potential hazard. The court also recognized holdings in outside jurisdictions where storekeepers had satisfied their duty of care by mopping entrances periodically to avoid accumulations of rainwater. In particular, the court referenced an Iowa Supreme Court case in which the Court held a store’s mopping of tracked-in rain water “every hour or two” near the entrances was objectively reasonable and sufficient to relieve the store of liability for a customer slip-and-fall. Young at 511, 343 S.E.2d at 638; quoting Weidenhaft v. Shoopers Fair of Des Moines, Inc., 165 N.W.2d 756, 761 (Iowa 1969).

Twenty years after the Young decision, the South Carolina Court of Appeals reiterated its approval of the inclement weather procedures established in that case through the opinion set forth in Legette v. Piggly Wiggly, Inc., supra. In Legette, the court found Piggly Wiggly employees had also satisfied their duty of exercising reasonable care to maintain the commercial premises in a reasonably safe condition from tracked-in rainwater by mopping the store’s entry periodically, placing caution signs in the area to warn customers of the potential hazard, and leaving rubber mats in place at the entrance(s) and exit(s) until such time as those mats became so saturated that they posed a greater danger to customers than exposing the store’s bare floor. See Leggette, supra at 580, 629 S.E.2d at 377. These precautionary policies remain in place today in South Carolina as sufficient to satisfy a merchant’s duties to the patron under the applicable standard.

It should also be noted that South Carolina has recognized a customer’s responsibility to ensure their own safety when hazardous weather conditions present themselves in a commercial setting. Specifically, in the Young opinion, the Court cited opinions from the Louisiana and North Carolina Courts of Appeals, as well as the Ohio Supreme Court, stating “an ordinary reasonable person would know that there would inevitably be moisture on the floor as a result of rain-soaked people coming into the store.” Young at 510, 343 S.E.2d at 638. In quoting the Ohio Supreme Court’s opinion in S.S. Kresge Co. v. Fader, the court said “[everybody] knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and everyone knows that a damp floor is likely to be a little more slippery than a dry floor.” For that reason, “[i]t is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obviously that it is wholly unnecessary to mention them here in detail.” It is also the duty of the patron to exercise reasonable care for their own safety and well-being when entering a store from inclement weather outside. While the precise actions which are expected from the customer are not specifically spelled out, one would expect them to include walking at a slower pace, keeping a proper lookout for accumulated moisture on the floor, and wearing proper footwear to avoid an increased chance of slipping, amongst other things. Evidence of a customer’s failure to conduct themselves in a reasonable manner in light of the hazards posed by the rain may present an argument for contributory or comparative negligence in subsequent litigation.

With these precedents in mind and the apparent imposition of some increased level of care when inclement weather strikes, storekeepers, hoteliers, and restaurateurs would be wise to take a moment to ensure appropriate policies and procedures are in place at their businesses to ensure both the safety of customers on the premises, and also to avoid unnecessarily exposing ones’ self to potential liability for injuries sustained thereon. Whether instituting protocols for the placement of rubber mats and caution signs near entrances/exits when inclement weather is anticipated, requiring routine inspections and mopping at those locations once precipitation has begun, or some other combination of reasonable safety precautions, business owners and risk managers alike should take the time to ensure appropriate written policies and procedures are in place for their company, are provided to the employees, and are documented and carried out uniformly across a company’s multiple business locations.

Behold! The Taylor Swift Complaint!

You know, we here at Abnormal Use could remark or otherwise opine upon the new lawsuit against Taylor Swift. We could analyze the potential motives of the deejay who has filed the suit and claimed that he was falsely accused of groping the pop star. We could comment upon the three causes of action asserted therein (intentional interference with contractual obligations, tortious interference with prospective business relations, respondeat superior) and gauge the likelihood of success. Or we could embed the amended complaint below so that you could read it yourself (as we did here at the office yesterday). Note that the case has since been removed to federal court in Colorado, and the live version of the complaint is that from state court. Enjoy!

David Mueller v. Taylor Swift, et al – Amended Complaint

The Case Of The $9 Million Penis: Sell Or Buy?

In what is sure to go down as the worst injury known to man, an Oregonian has filed suit after having his penis amputated as a result of alleged nursing home neglect. As reported by The Oregonian, the 60-year old man checked into the Oregon City Health Care Center on December 26, 2013, to recover from a kidney infection. He repeatedly complained of pain and bleeding around his catheter, but the nursing home staff allegedly failed to address the problem. On January 20, 2014, the man checked himself out of the nursing home against the staff’s advice and sought medical care at a local hospital, where he was immediately treated for sepsis. Because his penis was so infected, surgeons apparently had no choice but to amputate. The man also allegedly suffered from acute diastolic heart failure, kidney damage, breathing problems, and anemia. The man has incurred up to $2 million in medical bills, lost wages, and other economic damages. He is also seeking $6 million for pain and suffering. Not surprisingly, his wife is also seeking $1 million for loss of consortium.

While it is possible there could be some issues with causation if the amputation is related to the kidney disease rather than the alleged neglect, we here at Abnormal Use are much more interested in discussing the man’s damages. For many, the $9 million price tag may actually be considered a bargain. It is certainly a loss that most would never want to consider. There may be no amount of money that can compensate for the loss of a penis – at least for the extrinsic value the man places on it.

On the other hand, we have to wonder whether a penis depreciates in value? Should we be determining value based on some kind of legal rubric that factors in age, past usage, current usage, et cetera? It is certainly arguable that the injury to an older man may not carry the same weight was an injury to a college student, for example. Sure, this argument may sound picky and perhaps a little NSFW, but we are defense lawyers, after all.

At the end of the day, assuming the nursing home is liable, we expect this case to end by way of a hefty settlement. Taking this case to trial would probably be risky.  After all, some portion of the jury will be made up of men, all of which would pay millions to keep from suffering the same fate.

Friday Links

Today, of course, is the fourteenth anniversary of the September 11, 2001 attacks. In light of that somber anniversary, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. pause to reflect on the day and the lives lost. We also direct your attention to a prior post in which we quoted the words of Baylor Law School professor Gerald Powell who, in a commencement speech in February 2002, offered these words:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

You can read our post on the tenth anniversary of 9/11 here.