The Case of the Cancelled Wedding Engagement Ring: Where Property Law and Soap Operas Collide

According to a recent report from the New York Post, New Yorker Bradley Moss has filed suit in the Manhattan Supreme Court seeking the recovery of a $125,000 engagement ring he gave to his ex-fiancee, Amy Bzura. The plan was for Moss and Bzura to wed back on October 29th, but the wedding was apparently called off at the last minute. No word as to the reason for ending the nuptials. Regardless, Moss is now seeking the return of the ring or its cash value plus interest as well as punitive damages. Lawsuits arising out of the predicament of the cancelled wedding engagement ring are nothing new. For reasons unknown, we here at Abnormal Use find them fascinating. Perhaps it is because they way these cases are often decided is the perfect blend of property law, soap opera, and reality television. In other words, the engagement ring cases are most-suitable for an episode of “Judge Judy.”

At common law, an engagement ring was considered a conditional gift given on the promise to marry. If the marriage did not occur, then the condition was not fulfilled and, thus, the ring shall be returned to the donor. This remains the law in many jurisdictions, including New York (but with a couple of exceptions). Other jurisdictions, however, have added a new twist to the conditional gift paradigm – fault. In other words, while an engagement ring is considered a conditional gift, a donor cannot recover the ring if he/she was at-fault for ending the engagement. Bring on the soap operas and reality TV.

We can understand the equity behind the introduction of fault to the analysis. However, the fault determination creates a couple significant issues. What is “fault” for ending a relationship, anyway? It isn’t always that clear from a legal sense. For example, what if two people are engaged to be married and one of the people gets a little too intoxicated at a bar one night and has a moment of infidelity. The cheater still wants to get married, but the other finds out about the affair and calls off the wedding. Is the cheater at fault or is it the other who said, “I don’t want to marry you?” If you think the answer is clear, remove the cheating aspect of the hypothetical and replace it with any other complaint. See how this might be a problem?

The question we have to ask ourselves is should juries really be deciding who is to blame for ending a relationship? More importantly, is this really something a jury wants to decide? Sure, it may be more entertaining than your average contract dispute, but, in our opinion, deciding who is to blame for ending a relationship is often an impossible task. After all, if one’s own peers can’t decide, what makes us think a jury of them wants to anyways?

Veterans Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past. We thank them for their service and their sacrifices.

12 Steps Toward Fulfillment in the Practice of Law (Step 11)

Step 11 – Be Generous with Your Time and Money.

Judge Carl Horn reminds us of “the inverse relationship between selfish materialism and happiness.” Specifically, Horn says that “devoting too much of our time and energy to acquiring will yield an opposite result.” While most of the writing in this area has a narrow focus on pro bono work, Horn’s point is a broader one. “Our primary point here is more selfish, namely, that being generous with our time and money will make us feel better about our profession and our lives generally. In a word, giving generously will make us happier.”

Judge Horn quotes legal commentator Steven Keeva on his encouragement to develop a “helping heart.” Keeva says “those who . . . have been revered for their wisdom and empathy . . . have often been people who believed that the very purpose of life is to be of service to others. Today’s lawyers, being overwhelmingly inclined to minimize the importance of their inner experience are more apt to see personal enrichment as their purpose, at least in their professional lives.”  

Judge Horn states that if fulfillment is one of our goals then “after we provide for ourselves and our families, we will get more satisfaction out of generously giving then we will from hoarding.” Lawyers who are fortunate enough to make more money than they need “should apply this important life lesson by taking Step 11, that is, by looking for opportunities to share their time, talents, and resources with others.” 

Next week is the last Step, Pace Yourself for a Marathon.   

South Carolina Product Liability Law Series – How are Negligence-Based Product Liability Claims Different?

Unlike strict liability and breach of warranty claims, any negligence based claims asserted by Plaintiffs will focus on the conduct of the defendant, as opposed to whether the defendant merely sold a defective product. Accordingly, arguments that the defendant merely acted as a middleman in the transaction are more effective (under the current state of South Carolina law) in defending any negligence based theories that are asserted. If the Plaintiff is unable to point to culpable conduct on the part of the defendant, the Plaintiff will be unable to prove a negligence based claim. This is particularly important because punitive damages are not available for strict liability and breach of warranty claims in South Carolina, while punitive damages are available in negligence based product liability claims (if the jury determines that a defendant’s conduct was willful, wanton, or reckless).

Accordingly, if the Plaintiff is unable to point to any wrongful acts or omissions on the part of the Defendant, the negligence claim will fail, as will the Plaintiff’s claim for punitive damages.

A Reality TV Competition For Lawyers: Yes, It Has Happened Before

Recently, we here at Abnormal Use have become big fans of the reality show “Ink Master.” The show pits tattoo artists from across the country against each other to compete for a cash prize, and, in the current season, a guest spot at tattoo shops owned by the show’s judges, Chris Nunez and Oliver Peck. The show is currently in its 8th season, and it has been a huge success story from Spike’s channel lineup.

The success of a show about tattoo artists got us thinking. Why can’t we have a reality show with lawyers? Maybe one where they compete for a job at a big law firm in some big city. Well, guess what? There was, in fact, a reality show for lawyers competing for a “big time” legal job. But, unfortunately, a show about lawyers was not as entertaining to the masses as artists comparing their cover-ups of lower back tattoos.

The lawyer reality show, “The Partner,” aired on Fox way, way back in 2004. The show apparently lasted only one season, and there are few remnants of its existence on the Google search engine. (We here at Abnormal Use, as avid reality television fans, can recall watching the show, and as such, we can vouch for its existence). Reality TV World described the show as follows:

[T]he hour-long show, based on an idea by FOX reality programming executive Mike Darnell, will be eight to ten episodes in length and, similar to NBC’s The Apprentice, feature two competing teams. Unlike Apprentice however, rather than be divided by gender, the composition of the teams will be determined by the prestige of the contestants’ law schools — with Ivy Leaguers forming one team and graduates of “less prestigious” schools forming the other.

In each episode, the contestants conducted a mock trial of sorts in front of a jury. The jury determined the winning team, and the losing team had to face a judge who, in turn, would eliminate one of the attorneys from the competition. This process repeated each week until one contestant was left standing. According to the Reality TV World report, the winner was rewarded with a “position as a ‘partner’ in a major law firm.”

We must admit, the concept of the show sounds entertaining at the very least. (The show pre-dated this writer’s law life, and due to that small fact, it didn’t quite present the same intrigue at the time). While becoming a partner may be a bit much, in many ways, the competition isn’t too bad of an idea for hiring purposes. Certainly, observing lawyers in a courtroom (albeit a fake one) could be a more practical evaluator of an applicant’s potential to practice law than a law school transcript and a resume.  And, if the show is anything like every other reality show, you can probably discover who the jerks are as well so there is no fear of getting fooled during an interview.

On the other hand, “The Partner” is no more “real” than any other reality show. Even for trial lawyers, practicing law is so much more than stepping into a courtroom. We imagine the lawyer contestants of “The Partner” didn’t have any discovery or brief writing competitions. We doubt they were given the opportunity to earn immunity for the next elimination challenge if they could  be the first to find a case on Westlaw from the 1920s’ setting forth the elements of “assumpsit.” After all, who other than us legal nerds would have watched that, anyways?

Friday Links

Okay, so back in the 1980’s, when we here at Abnormal Use read comic books, we never really acquainted ourselves with Doctor Strange. Well, apparently, this weekend, we can remedy that issue and see the new Marvel film featuring that character. Anyone seen it yet?

Oh, and we heard that there was some baseball played this week. We’re not certain what to say about that.

If you’re on Twitter, be certain to investigate the brand new #PracticeTuesday hashtag for tips on appellate practice and more.

Our favorite legal tweet of the week is a real gem:

12 Steps Toward Fulfillment in the Practice of Law (Step 10)

Step 10 – Embrace Law as a “High Calling.”

Judge Carl Horn begins Step 10 with the proposition that the legal profession’s failing ideals were once healthy and widely held. At the center of these ideals was the assumption that the best lawyer was “not simply an accomplished technician but a person of prudence or practical wisdom as well.” This included wisdom about human beings and “their tangled affairs that anyone who wishes to provide real deliberative counsel must possess.” The virtue of practical wisdom is “central to human excellence that has an extrinsic value of its own.”   

Horn urges the profession needs to rededicate itself to these higher purposes; individual lawyers should treat the profession as a “high calling.” Horn suggests that we should take a higher road and understand that there are things we will instinctively know not to do. We will not lie or make misleading representations to the court. We will treat opposing counsel in a manner in which we would expect to be treated. We will not cheat or steal from our clients by doing unnecessary work. We will not take on work that we find morally offensive just because “everyone deserves a lawyer,” or for that matter, because we could use the extra money.  

Horn concludes that there is a connection between the collapse of historical ideals and the loss of professional self-confidence. “It follows, if we are to have realistic hopes for regaining professional self-confidence, that we must reaffirm ideals that transcend self-interest – including our individual and professional commitment to the “common good.” We must not allow the legal profession to become an amoral, dollar-driven business; indeed, we should not be afraid to make value based decisions or give advice grounded in moral conviction. In short, if we are to find fulfillment in the practice of law, we must take Step 10: we must embrace law as a high calling.”

Please join us next week for Step 11 – Be Generous with Your Time and Money.

South Carolina Product Liability Series – Innocent Seller Defense

Many of our clients are not familiar with the law of product liability in South Carolina. Often, clients are named in a lawsuit simply because they were the “seller” of a defective product. Under the current state of the law, it is arguably acceptable for the Plaintiff to do so. To be liable under a strict liability or warranty theory in South Carolina, a defendant must only have been a “seller” of a product that was defective and unreasonably dangerous, and which caused the plaintiff’s alleged injuries.

In some states, the fact that a seller is merely a “pass through” seller or a “broker” may absolve the seller of liability under a product liability theory. Some states refer to this as an “innocent seller” defense, which is supported by evidence that the defendant never handled, manipulated, inspected or otherwise had any direct involvement with the product beyond merely facilitating the sale. However, South Carolina does not explicitly afford such protections yet, and the plaintiff can choose to sue the seller of an allegedly defective product even if the seller merely acted as a middle man in the transaction. Lawing v. Univar, USA, Inc., 2015 S.C. LEXIS 398, *2-3 (S.C. Dec. 2, 2015); Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 216, 609 S.E.2d 565, 569, 2005 S.C. App. LEXIS 19, *9 (S.C. Ct. App. 2005) (a plaintiff “can recover all damages that were proximately caused by the defendant’s placing an unreasonably dangerous product into the stream of commerce.”) (emphasis added); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 540, 462 S.E.2d 321, 326, 1995 S.C. App. LEXIS 125, *14, CCH Prod. Liab. Rep. P14,387 (S.C. Ct. App. 1995) (In product liability cases in South Carolina, the focus “is on the condition of the product, without regard to the action of the seller or manufacturer.”) (emphasis added); Scott v. Fruehauf Corp., 302 S.C. 364, 371, 396 S.E.2d 354, 358, 1990 S.C. LEXIS 162, *9, CCH Prod. Liab. Rep. P12, 635 (S.C. 1990) (“Here, [distributor] and [lessee of the allegedly defective equipment] shared a common liability to the ultimate consumer, Scott, under our strict liability law.”).

In fact, a defendant can be liable as a seller “even though no sale has occurred in the literal sense.” Henderson v. Gould, Inc., 288 S.C. 261, 268, 341 S.E.2d 806, 810, 1986 S.C. App. LEXIS 301, *11 (S.C. Ct. App. 1986). A defendant that “simply brokered the transaction and never affirmatively passed ownership” of the product was potentially liable as a seller under a strict liability theory because the defendant “assisted in passing the gasoline can through the stream of commerce and received a monetary benefit for doing so.” Funchess v. Blitz U.S.A., Inc., 2010 U.S. Dist. LEXIS 121924, *9, 2010 WL 4780357 (D.S.C. Nov. 16, 2010).

On the other hand, there is support for the argument that the Court should take into consideration the degree of control the defendant exercised over the product when deciding whether the defendant can be liable as a seller under a strict liability theory. The South Carolina Supreme Court has held that because a pharmacy was “providing a service, rather than selling a product, it may not be held strictly liable for properly filling a prescription in accordance with a physician’s orders.” Madison v. Am. Home Prods. Corp., 358 S.C. 449, 456, 595 S.E.2d 493, 496, 2004 S.C. LEXIS 92, *11, CCH Prod. Liab. Rep. P16,980 (S.C. 2004). In reaching its decision, the Court considered that the South Carolina Pharmacy Practice Act “specifically states that ‘the practice of pharmacy shall center around the provision of pharmacy care services’” and that the statute defines “health care provider” to include pharmacists who provides health care services.  Id.

Defendants in subsequent cases have argued, based on Madison, that they were not liable as the seller of a product due to their limited involvement in the relevant transaction, and the results have been positive.  A defendant that was “compensated to install,  maintain and recalibrate the [a] machine. . . . [and was] compensated for training the [customer’s] employees” was not liable as the seller of the machine at issue, because it was merely an “after-purchase service provider having nothing to do with the actual sale of any product.” Martin v. A. Celli Nonwovens Spa, 2014 U.S. Dist. LEXIS 153557, *5-6 (D.S.C. Oct. 28, 2014).

We would argue that South Carolina’s appellate courts would adopt an innocent seller defense given the opportunity, and we hope that this opportunity will come sooner rather than later.

Happy Halloween!

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We know, we know, Halloween might not be nearly as fun when it arrives on a Monday, but we’re going to celebrate nevertheless! First and foremost, we, like the lawyers we are, direct your attention to the image above, which features the Halloween yard decorations of Chris Kelly, litigator and partner in charge of our Charlotte office. Each year, we post photographs of his epic efforts, and this year, of course, is no different.

Additionally, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish all of you a Happy Halloween. Be festive, but be safe, if you venture out into the world tonight, or if you celebrated this past weekend, rest easy.

Friday Links

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Many, many congratulations to our own John Cuttino, who was just elected to serve as the president of DRI. You’ll see a photograph of him depicted above as he takes the reins of the organization at DRI’s Annual Meeting last week in Boston, Massachusetts. Congratulations, John! Your friends here at Abnormal Use and GWB wish you well!

Everyone have a safe weekend if you are engaging in Halloween festivities early!

The new Leonard Cohen album is out! This is not a drill!

Don’t forget that you can follow us on Twitter at @GWBLawfirm! Say hello to us over there!

Speaking of Twitter, you won’t mind if we engage in a bit of self promotion with our legal tweet of the week, will you? In addition to our firm maintaining an account, you can also follow some of our bloggers on Twitter, as well.