Reportedly, the Chicago Cubs have filed suit against five individuals responsible for the “billy cub” mascot, which has interacted with fans around Wrigley field for the past seven years in exchange for tips. Billy Club has no actual affiliation with the Chicago Cubs organization. Apparently, the litigation was sparked by a bar fight between Billy Cub and a bar patron. The incident drew extensive publicity after a video of the altercation was posted to YouTube. According to witnesses, the video showed only a small portion of the harassment that Billy Cub had been receiving from the fan prior to the incident, and the removal of the head was the last straw. So, why can’t the Cubs give Billy Cub a pass? According to the Cubs, this is not the first time Billy Club has acted mischievously. The Cubs allege that Billy Cub has a history of bad behavior, including swearing and using racial slurs in connection with bad tips received from fans. So what do the Cubs want a court to do? Among other things, they have asked that the Billy Cub mascot outfit be delivered for destruction. Delivered for destruction? How about that?
Okay, surely we all know not to fall asleep next to computer equipment that is plugged in and powering up, right? No? Well, let’s talk about Ferraro v. Hewlett-Packard Co., 721 F.3d 842 (7th Cir. 2013). In that case, the Plaintiff fell asleep next to her laptop, and as she slept, she allegedly suffered injuries because the laptop’s power adapter allegedly overheated (as she slept). Of course, she sued.
In the interests of fairness, here are the specific facts as recited by the Seventh Circuit itself:
[W]hile sitting on her sofa and using her laptop, she noticed that the battery was running low. Ferraro shut down the laptop, placed it on a nearby coffee table, and plugged the laptop’s power cord into the wall. Midway along the cord is the power adapter, a brick-shaped plastic device housing a transformer, which converts AC electricity from the outlet into DC electricity used by the laptop. Ferraro propped the power adapter on the arm of her sofa, began reading a book, and fell asleep around 10:00 p.m.
At some point during the night, the power adapter slipped from the sofa’s arm, falling between the cushions. As Ferraro slept, the exposed skin of her right forearm came to rest against one of the adapter’s surfaces. It is unclear how long Ferraro’s skin was in direct contact with the adapter, but she eventually awoke with painful blisters at the point of contact.
“Slipped from the sofa’s arm,” eh? As you might expect, her claims were of the typical design defect, failure to warn, and breach of implied warranty of merchantability variety. As the court described it, the Plaintiff “alleged that the laptop was defectively designed because it ‘overheat[ed] during normal and foreseeable use’ and that it lacked ‘adequate or sufficient warnings.’” The district court granted summary judgment for the manufacturer, but the Seventh Circuit affirmed only begrudgingly (and not without great sympathy for the Plaintiff). On the design defect claim, the Seventh Circuit noted:
[L]aptops are designed precisely to be used in comfortable places, including sofas, beds, La–Z–Boys, or other places where people may nod off. By taking such a restricted view of the precise manner in which Ferraro’s harm materialized, the court sidestepped the undisputed fact that, at the time of her injury, Ferraro was using the power adapter to do just what it was designed to do: charge her laptop. Ferraro is not arguing that the power adapter overheated when she tried to use it to heat her blanket, or that it made for a poor drink coaster or paperweight; rather, she asserts that it was unreasonably dangerous when used for its intended purpose.
Well, we’re not sure that laptop chargers are designed to be placed precariously on the arm of a sofa upon which its user may ultimately fall asleep while undertaking another tasks altogether on said sofa (i.e., reading a book). The charger, of course, charges, but the user of the charger must surely consider where the charger is placed prior to using it, no? The Seventh Circuit had an answer for that, as well:
HP may be correct that Ferraro was not using the product in the precise manner intended by the manufacturer, insofar as the power adapter was designed to rest on a flat surface with ample ventilation, but this is beside the point. The appropriate inquiry for the consumer-expectations test is whether the product performed as safely as an ordinary consumer would expect when used in =an intended or reasonably foreseeable manner. The great virtue of a laptop is that it can be used on one’s lap, while sitting on a sofa, or perhaps while in bed. Indeed, we note that the Facebook page for “Using the laptop in bed” (Mission: “Public awareness of the usage of laptops in bed”) has nearly one million “Likes.” Our analysis would be no different if the power adapter had started a fire in the sofa while Ferraro was in the next room; in either case, the consumer’s use of the product would be the same. A jury could conclude that Ferraro was using the power adapter in a “reasonably foreseeable” manner when the relevant harm occurred.
(Quotations and citations omitted).
A Facebook group cited as persuasive authority? Really? How did that end up in the opinion? Take a look at that Facebook page and you’ll see the danger of citing to unofficial Facebook groups as authority. (Now, perhaps we would feel differently if the Facebook group were entitled “Precariously placing a laptop charger on the arm of a sofa while sleeping,” but we’ll cross that bridge when we come to it.).
Okay, so here’s the question: With such sympathy for the Plaintiff coming from the court, how did the defendant prevail? I mean, how does the defendant come back from that type of commentary?
A fatal appellate error, that’s how. Behold the following remarks made by the Seventh Circuit at the very beginning of its opinion in this matter:
The court concluded that Ferraro would be unable to show that the power adapter was “unreasonably dangerous,” a required element of her design defect claim. Under Illinois law, there are two alternative methods of establishing that element: the “consumer-expectations test” or the “risk-utility test.” The district court found Ferraro’s evidence insufficient to meet her burden under either one of them. On appeal, Ferraro argues that the district court erred only in concluding that she would be unable to prove unreasonable dangerousness under the consumer-expectations test. She has not challenged the district court’s determination that HP was entitled to summary judgment under the risk-utility test, nor has she appealed the district court’s dismissal of her defective warning and implied warranty claims. This puts her in an impossible bind. Under Illinois law, the risk-utility test “trumps” in design defect cases if the two methods of establishing unreasonable dangerousness yield conflicting results. Because the district court’s finding that she could not succeed under the risk-utility test furnished an independent and unchallenged ground for the decision, we affirm.
From a very recent court opinion: “Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster. Nonetheless, a court may compel production of a party’s Facebook information if the party seeking disclosure makes a threshold relevance showing.”
You think? Well, sometimes, but not always. Traditional discovery rules and jurisprudence remains helpful in such inquiries.
The quote above is from Higgins v. Koch Development Corp., No. 3:11–CV–81–RLY–WGH (S.D. Ind. July 5, 2013).
Note: That opinion was released on July 5, which was a Friday, if you recall. Someone didn’t take a three day weekend, apparently.
The fact of the case were these: In 2009, the Plaintiff’s visited a water amusement park. One of the attractions at the park, the “Bahari River,” had “muratic acid and liquid bleach filtered into the water by a filter pump that was connected to a breaker.” The Plaintiffs alleged that they suffered toxic chemical injuries and pulmonary problems as a result of improper maintenance of the filters and pumps.
At their depositions, the Plaintiffs confirmed the existence of their Facebook pages (of which defense counsel was no doubt previously aware). Interestingly, the Plaintiffs agreed to capture and preserve their complete profile history using the “Download Your Information” function (although they apparently did not produce this information to the defense, which prompted a motion to compel). The opinion does not reveal when they actually preserved the information – whether it be in the deposition room itself or sometime later. In refusing to produce the Facebook data, the Plaintiffs invoked the traditional arguments (overbreadth, irrelevance) but also argued that the production of the data would violate the privacy rights of non-parties whose images became part of the Plaintiffs’ profiles via tagging.
The court quickly disposed of the relevance objection, noting that the specific claims made by the Plaintiffs in the lawsuit made the information contained on their social media profiles relevant indeed. As the court observed, “Koch claims that [Plaintiffs'] Facebook content may reveal relevant information as to the extent their injuries have impacted their enjoyment of life, ability to engage in outdoor activities, and employment, along with their claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity. Since the extent of [Plaintiffs'] losses in these areas directly impacts the appropriate damages award, the court finds this information relevant.” No surprise there, especially if the Plaintiffs used Facebook as much as the opinion suggested they do.
Sophisticated as to Facebook’s privacy settings, the Plaintiffs also claimed the request violated their privacy rights (as they had made their profiles as private as Facebook allows them to be). This is argument, of course, is particularly weak, as Plaintiffs clearly put their lifestyles at issue in bringing the suit and alleging those damages, and thus, the mere fact that they have shielded relevant data using Facebook’s privacy settings does not relieve them of an obligation to produce relevant information. In rejecting Plaintiffs’ argument on these grounds, the court noted that Plaintiffs “cite[d] no cases supporting the proposition that setting a Facebook profile to ‘private’ entitles a person to a greater expectation of privacy or can act as a shield to discovery.”
This, of course, leaves us with the most interesting argument Plaintiffs made: that the request violated the privacy of non-parties. You’ve got to give the Plaintiffs’ lawyers points for creativity on that one. Essentially, Plaintiffs argued that their friends – other Facebook users – posted comments on Plaintiffs’ Facebook walls or appeared on Plaintiffs’ Facebook timeline by being tagged in photographs or posts in which Plaintiffs were also tagged. Unpersuaded, the court characterized this argument as “unfounded,” citing another court which had already reached the conclusion that tagged photographs are discoverable if relevant because “once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.”
Clearly, this is the right result. In light of the resistance the Plaintiffs exhibited in producing these profiles, we suspect there is some good impeachment available for the defense to find.
Earlier this year, 5-Hour Energy manufacturer Innovation Ventures LLC d/b/a Living Essentials was hit with a series of class action lawsuits alleging that its claims of increased energy without the subsequent “crash” were false. Innovation subsequently moved to dismiss those suits. Last week, the manufacturer found out that it must continue litigating at least one of those suits after a Florida federal judge denied its motion.
At issue in these cases is 5-Hour Energy’s product statement, “Hours of energy now – No crash later.” As self-proclaimed coffee connoisseurs, we are a little too old fashioned to know the effectiveness of an energy drink’s claim. Apparently, enough consumers to organize into three putative classes think the product statement is a bit of a stretch.
In one of the suits, Guarino v. Innovation Ventures LLC, d/b/a Living Essentials, No. 13-cv-00101-GPM-PMF (S.D. Illinois 2013), the plaintiffs allege that the product statement “is not true, as admitted on the Defendant’s website and hidden behind the bottles in the display, which reads: ‘No crash means no sugar crash.’” So Innovation is falsely advertising a product by placing true statements on its website and directly on the bottle? Now we see why Innovation filed those motions to dismiss in the first place.
While its motion to dismiss may have been denied, Innovation may still ultimately prevail in this suit. Pleading sufficient allegations to survive a motion to dismiss does not necessarily make a good case. Unfortunately for Innovation, it now must embroil itself in hours of litigation defending the case. For their sake, let’s hope there is no awful crash afterwards.
Here at Abnormal Use, we’ve been involved in many cases in which the plaintiff alleges intentional or negligent infliction of emotional distress as a cause of action. Cynical defense attorneys that we are, we are often skeptical–or even dismissive–of these damages, because they are so subjective and easily exaggerated. Recently, we came across some stories about a lawsuit in which a fan sued Derrick Rose for emotional distress. Yes, you read right. A fan is suing a player on a pro sports team because he doesn’t like what was going on with the team and one player in particular.
Some background. Derrick Rose is one of the stars–or the star–of the NBA’s Chicago Bulls. Last year, during the 2012 playoffs, Rose blew out the ACL in his knee, requiring surgery and some time off from playing to heal, rehab, and recover. There has been some scuttlebutt recently about the fact that Rose, who has been cleared by doctors to return to the Bulls since March 9, hasn’t taken the floor. Moreover, it doesn’t look like he’s going to play for the remainder of the season, even though the Bulls could definitely use him.
All of this must be a little upsetting to Bulls fans. Fans are probably frustrated, maybe even a tad bit angry at Rose. But only one has decided that Rose’s failure to return has caused him such distress and emotional turmoil that he wants Rose to be held–yep, you guessed it–legally liable for that distress.
Meet Matthew Thompson, a 25-year-old Bulls fan from Peoria, Illinois. He’s apparently been so upset by Rose’s absence that he’s put on a little weight. So, as reported by the Houston Chronicle (along with several other news outlets), he’s suing Derrick Rose. Because that’s what we do in America!
Common sense, if not legal training, shows that this lawsuit is just ludicrous. But it’s also a good time to review the law of negligently inflicted emotional distress claims (since, we assume, Rose did not intentionally blow out his own knee just to hurt Thompson’s feelings). Let’s assume the suit was brought in South Carolina. The South Carolina Supreme Court considered the limits of recovery for bystander emotional distress in Kinard v. Augusta Sash & Door Co., 286 S.C 579, 336 S.E.2d 465 (1985). The Kinard Court held that a bystander may recover for his or her emotional injuries under the following conditions:
(a) the negligence of the defendant must cause death or serious physical injury to another;
(b) the plaintiff bystander must be in close proximity to the accident;
(c) the plaintiff and the victim must be closely related;
(d) the plaintiff must contemporaneously perceive the accident; and
(e) the emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony.
Id. at 582-583. Of course, we don’t know all the facts. Thompson may have been sitting in the front row when Rose blew out his knee. Thompson and Rose may be closely related. We seriously doubt, however, that either of these conditions would be met by Thompson’s case. We are confident, however, that Thompson could find some doctor somewhere to attribute the cause of his weight gain to the disappointment Thompson feels at the Bulls’ predicament. In any case, we are curious to see how this case proceeds, if it proceeds at all.
All we know is that if this case survives, or if Thompson is paid one penny by Rose to settle the lawsuit, it could potentially open the floodgates. This will be especially true in Chicago, where long-suffering Cubs fans will retain counsel faster than their team can race to the bottom of the NL Central.
The list of reasons to dislike airlines is long and familiar. Ticket change fees, checked bag fees, bumped flights, false imprisonment on the runway, and the inevitable delays. Now, a disgruntled United Airlines passenger is adding another item to his list: finding himself robbed of his frequent flyer miles. A Maryland man has filed suit against United in federal court in Illinois claiming it shorted him on frequent flyer miles by using the straight line distance, rather actual distance, to calculate the credit for miles. Of course, litigation is necessary to resolve this dispute.
The lawsuit alleges that United breached its frequent flyer contract by not awarding them for miles actually flown. According to the lawsuit, the passenger’s flight from Dulles Airport to Beijing International Airport actually measured in 7,276 miles. However, he was awarded only 6,920 miles, which is the shortest straight line distance between the two airports.
A quick scan of the official rules for United Airlines’ frequent flyer program reveals no information as to how miles are calculated. However, there is some vague language about being able to modify the “currently recognized” means of accumulation without notice. When asked by The Cleveland Plain Dealer, a United spokesperson declined comment on how the miles are calculated, but we expect United will argue that the rules essentially allow them to calculate miles however they please. United did state that it believes the lawsuit to be merit-less.
Given the low monetary value of the “missing” miles, the suit certainly appears frivolous. It is not unreasonable for United to credit for a straight-line distance between origin and destination. Other airlines apparently calculate miles the same way. However, the question is, why doesn’t United just spell it out in the program rules?
In our litigious society, United should have seen this one coming from a “mile” away. Don’t sue us for our pun.
Someone needs to tell McDonald’s to take down the “Please think of some ridiculous reason to sue us” sign firmly planted on the grounds of its corporate headquarters. The fast food giant is back in the news after being sued by Chicago, Illinois woman, Anishi Spencer. According to a report from the Huffington Post, Spencer claims that in February 2012, her 2-year old and 3-year old sons discovered a used condom on the floor of the restaurant’s play area. At some point thereafter, the 2-year old allegedly coughed up a piece of the condom, and both boys required medical attention. The suit claims that McDonald’s failed to detect “deviant” activities on-site. On behalf of herself and her two boys, Spencer seeks at least $50,000 in damages.
Call us crazy, but we would have thought Spencer herself would have had some duty to supervise her own old children. Such duty should include stepping in to avoid condom interaction. This situation suggests one of two possibilities, neither of which are good for Spencer: 1) either Spencer was supervising and failed to take any measures to prevent her child from encountering the condom, or 2) she was not supervising at all and should share the blame. The only other explanation – the condom had nothing to do with McDonald’s at all.
Again, we have no way to verify Spencer’s claims or to attest to McDonald’s cleaning procedures. That being said, this case is simply another example of the need to gather all the facts before the judgment.
As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food. Well add a couple more lawsuits to the list. Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims. Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court. Oh, the humanity!
Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches. Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January. He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”
Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11. But that’s not quite the case. The number of donuts is different from the size of the donuts. As a recent Forbes article noted, baking bread is not an exact science. As bread is baked, it rises and grows, but the growth is not the same on every occasion. The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time. Remember that we are talking about bread, not airplane parts.
You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ? I would go back and ask for a refund or a remedy of the situation. Alternatively, I might stop eating at that establishment. You’re buying a meal, not a compact car. There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund. But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?
Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich. I mean, who really needs a to be eating a foot long sandwich? Nevertheless, Subway has pledged to remedy the situation. According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.” Next time you go to Subway, just remember to take your tape measure to be sure. Good grief.
In a recent article on “popcorn lung,” we here at Abnormal Use noted that such cases were typically occupational exposure cases where plant workers were exposed to the chemical diacetyl. Solis v. BASF Corp., No. 1-11-0875. (Ill. Ct. App. Oct. 4, 2012) was one such case: Solis filed suit against BASF, a company that provided diacetyl to his employer, for injuries allegedly stemming from his occupational exposure. He claimed that BASF failed to issue proper warnings as to the dangers of diacetyl. In 2010, an Illinois jury awarded him $30.4 million in damages. Recently, an Illinois appellate court reversed and remanded that verdict because of an improper jury instruction on BASF’s duty to warn (as well as failing to submit a statute of limitations issue to the jury).
By way of quick refresher, diacetyl was an ingredient in artificial butter flavoring like that found in microwave popcorn. Inhalation of diacetyl fumes can cause a relatively rare lung disease called bronchiolitis obliterans, also known as “popcorn lung.” Plaintiff worked at two flavoring plants from 1989 to 2006 where he worked around the chemical diacetyl. BSAF was one of the diacetyl suppliers at the plant where Plaintiff worked from 1998 to 2006. In 2006, Solis was diagnosed with popcorn lung, and he now claims to have just 25 percent of normal lung capacity.
Plaintiff claimed at trial that BSAF negligently failed to disclose to users of its diacetyl products the existence of a 2000 study showing the dangers of diacytel. The trial court instructed the jury that an issue was whether “BASF Corporation was negligent in . . . in failing to disclose the results of scientific research available to it indicating that the use of diacetyl causes lung disease or risk of harm to others.” On appeal, BSAF argued, among other things, that the jury was improperly instructed as to the scope BASF’s duty to warn. The appellate court agreed and found the trial court’s instruction to be too expansive based on the case law regarding the duty to warn. It noted that a plaintiff must show that a defendant knew or should have known that the product was unreasonably dangerous and failed to warn the user of its dangerous propensity. Accordingly, an instruction that BASF had a duty to warn with all information “available to it” just didn’t cut it. The court also held that the instruction improperly failed to specify the universe of individuals BSAF was required to warn (e.g., Plaintiff vs. Plaintiff’s employer vs. the flavoring industry vs. the general public).
Interestingly, the trial court did give the proper instruction as to Plaintiff’s strict liability failure to-warn claim, in instructing that at “BASF Corporation has a duty to adequately warn and instruct the user about the dangers of its products of which it knew, or in the exercise of ordinary care, should have known, at the time the product left its control.”
I guess this is an instance where cut and paste can really be your friend.
Ever watch a horror film and think about all the potential tort claims? Think of all the car manufacturers who could be sued because their vehicles failed to start when needed the most. Certainly, those under-staffed hospitals in the Halloween movies breached a duty of care. And, what about premises liability claims for all those slip and falls suffered while fleeing the killer?
Just imagine the possibilities!
As we here at Abnormal Use like to believe, horror films are a microcosm of real life. Take this new suit in Illinois as an example. According to CBS Chicago, the father of a girl who tripped while being chased by a Halloween character has sued Six Flags. Last October, the girl visited Six Flags Great America for the Halloween-themed “Fright Fest.” While walking through the park, a “character” jumped out of a port-a-potty and chased the girl, squirting her with a water gun. As is always the case when fleeing a villain, the girl tripped and fell, suffering some scrapes on her arms and legs. The girl’s father is now seeking $30,000 in damages on her behalf. The suit alleges the park was negligent in encouraging employees to frighten and chase patrons despite the presence of tripping hazards. The report, however, does not indicate what tripping “hazard” caused the girl to fall. Based on knowledge of horror films, we assume that fleeing from a predator creates new tripping hazards.
Even though the facts in the report are sparse, Six Flags’ liability in this case is questionable. While we do not know the age of the girl, by attending an event known as “Fright Fest,” she should have assumed the risk of being confronted by a “Halloween character.” Admittedly, jumping out of a port-a-potty is a little sketchy, but that fact alone shoudn’t render the park negligent. Unfortunately, we do not know how the character pursued the girl. Chasing her violently and physically pushing her to the ground is one thing. Pursuing her at a Jason Voorhees-like pace is another.
Sure, all is fun until someone gets hurt. But, do we want to water down haunted houses and Halloween experiences over the fear of some scrapes and bruises?
At least movie directors don’t have these same constraints.