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.

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 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.

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.

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.

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.

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.

In 2008, an 18-year old Illinois man stepped in front of a train and was killed at a Metra station in Chicago. Following the collision, a large portion of his body was propelled 100 feet onto the southbound platform and struck Zokhrabov from behind. As a result of the accident, Zokhrabov sustained a shoulder injury, a leg fracture, and a wrist fracture. She sued the man’s estate for damages, alleging that his negligence in walking in front of the train caused her injuries. The circuit court granted the estate’s motion for summary judgment on the ground that the man owed no duty to Zokhrabov. The Appellate Court of Illinois, First Division reversed, holding that the man could have reasonably foreseen that his negligence would cause injury to a passenger waiting in the train station nearby.

Many of you are probably appalled by this decision because it may sound both grotesque and ridiculous. Others are probably excited for the opportunity to reflect upon Cardozo’s infamous Palsgraf v. Long Island Railroad opinion. We here at Abnormal Use fall somewhere in between. On one hand, the idea of someone suing the estate of a man dismembered in an accident seems to go against our humanity. On the other hand, Zokhrabov allegedly was injured by the man’s body. There is no evidence the train operator was negligent in any respect. (The estate actually sued the train company for negligence. However, the case was dismissed and upheld on appeal on the grounds that the danger was “open and obvious.”)

As you may recall, Cardozo created the “zone of danger” test in which a duty only arises out of a reasonably foreseeable danger. Here, the court held that it was reasonably foreseeable that an oncoming train could strike, kill, and fling the man’s body into a woman waiting on passenger platform. The court indicated that the potential outcome of the man’s conduct was limited because the train traveled on a fixed, linear path within the speed limit. Physics lessons aside, Zokhrabov must have been standing at the wrong place at the wrong time.

Regardless of the grotesque nature of the claims, Zokhrabov has been given a gift – the opportunity to let a jury decide whether it wants to hold a deceased man liable for these injuries. And you thought your holiday gifts meant something.

P.S. This post was written entirely on a new iPad.

For a thorough analysis of this decision and its Palsgraf interplay, please check out this piece by Jonathan Turley of the ABA Journal‘s top legal opinion blog.

Now, if we were the lawyers taking this Plaintiff’s deposition, we would have a few interesting questions for her. First, we might ask why she thought it was okay to sit down in the first place, given the cleanliness of most fast food chain restaurant restrooms we’ve seen of late. Assumption of the risk, indeed. Next, we might ask what kind of notice she believed the restaurant may have had that a solid piece of commercial-grade porcelain might collapse. Finally, since Ms. Hardie claims she suffered severe, disabling personal injuries as a result of the mishap, we would ask about any prior personal injury suits. In fact, during our cursory online search for a copy of her complaint in this matter, we stumbled across this prior suit. Is it possible that the pro se Cherry Hardie in that prior Illinois lawsuit is the same woman now claiming to be victimized by the McDonald’s toilet? And what injuries was she claiming in this prior suit?