Court of Appeals Puts Unnecessary Quotation Marks Around “Facebook”

Okay, so we don’t usually write about family law cases here at Abnormal Use, and it’s been a while since we wrote about events from the state of Nebraska. Yesterday, while perusing cases mentioning Facebook, we stumbled across In re Interest of A.W. & L.W., No. A-13-540 (Neb. Ct. App. Feb. 25, 2014), a recent case in which the court of appeals found “that the evidence clearly and convincingly established that termination of [the father’s] parental rights was warranted pursuant to [the relevant statute] and that termination was in [the children’s] best interests.” Yes, this is a case involving a father’s appeal of the trial court’s termination of his parental rights and the appellate court that affirmed that decision.

Chiefly, the case concerns the frequency of the father’s contacts with his children – or the lack thereof. This being the modern age, some of those contacts occurred via social media. Here’s some excerpts from the opinion itself:

After moving to Las Vegas, [the father] claimed that he attempted to maintain contact with his children through his uncle’s “Facebook” account. However, according to [the father], 2 weeks after he moved, [the mother] learned that [the father] had been using the uncle’s “Facebook” account and blocked the uncle from her and the children’s “Facebook” accounts. [The father] made no other attempts to contact his children during the time that he resided in Las Vegas until he moved to Larchwood, Iowa, in 2012, at which point he had two visits with his children: a 2–hour supervised visit on March 31, 2012, and a 1 1/2–hour therapeutic visit on January 4, 2013, supervised by [another adult]. [The father] did not see his children after the January 4 visit, despite his requests to have visits.

[The father] claimed that he did not contact his children while he was in Las Vegas after [the mother] blocked his uncle’s “Facebook” account because he thought that [the mother] had a protection order against him and he would have to contact his children through her. During the time that [the father] was in Las Vegas, [the mother] did not receive any communications from [the father], his friends, or relatives regarding arranging visitation with the children, even though [the father] had [the mother's] e-mail address which was known to [the father] prior to his move to Las Vegas and remained the same. Further, [the father] did not send the children any letters, cards, or presents during that timeframe.

[The father] first contends that the county court erred in finding that he had abandoned his children pursuant to § 43–292(1). He contends that he did not abandon his children for the relevant 6 months immediately prior to [the mother's] filing of the complaint for modification, which requested termination of his parental rights, because he continued to pay child support and attempted to contact his children through “Facebook” during that 6–month time period.

[The father] admits his efforts at maintaining contact with his children from November 2010 until March 2012 were minimal. He testified that he attempted to contact [the children] through his uncle’s “Facebook” account for about 2 weeks after moving to Las Vegas, but then he claimed that [the mother] discovered he was using the “Facebook” account and blocked his uncle from her account and the children’s accounts. [The father] admits that after the initial 2 weeks that he was in Las Vegas, he did not contact the children but claimed that he did not make additional attempts to contact his children for 1 year because he believed that [the mother] had a protection order filed against him.

Nothing extraordinary there, right? Certainly, it’s not unusual for references to Facebook to make their way into litigation, particularly family law cases, where the parent’s everyday decisions and lifestyle may be at issue. Most of us communicate using the Internet generally, or social media specifically, and a case analyzing one’s communications will likely stray into Facebook, Twitter, and the like.

But here’s the thing: It’s 2014. Why is the court of appeals placing scare quotes around the word Facebook? Isn’t Facebook such a prevalent and prominent website that we can now refer to it without quotation marks? By our count, the court mentions Facebook seven times in the opinion, and each time it does so, it places unnecessary quotation marks around the company name. Why?

New Wal-Mart Case A Study In Proximate Cause

Proximate cause is one of the more difficult concepts for first year law students.  I myself have fond [terrible] memories [nightmares] of Ms. Palsgraff, and I know most of you do, too.

A new suit against Wal-Mart may stretch that concept to its limit.  As reported by the Associated Press and found on FoxNews.com, a Nebraska man is suing Wal-Mart in Nebraska federal court for $650,000 over his wife’s death. The facts of the case are these.  The plaintiff’s wife purchased several cans of food at Wal-Mart, which were allegedly overloaded by one of the store’s employees into a plastic bag.  On the way to the car, the bag broke, and one of the cans of food sliced the wife’s foot.  The foot later became infected, and she ultimately died as a result of that infection.

The plaintiff alleges that Wal-Mart failed to properly train its employees to double bag heavy groceries.  The plaintiff has also sued the manufacturer and the distributor of the plastic bag on products liability theories. We believe that there will be significant proximate cause hurdles for the plaintiff to overcome, and a jury will likely struggle with this issue in the same way that a first year law student might.  We will continue to monitor the case in Nebraska federal court and track any significant rulings on proximate cause that arise out of the case.

Native American Tribe files lawsuit requesting discrimination on alcohol sales.

Alcohol retailers in Whiteclay Nebraska, a town with a population of 11 people, sold roughly of 4 million cans of beer in 2011.   How is this possible?   Whiteclay is located about 2 miles from the Pine Ridge Reservation of the Oglala Sioux Tribe in South Dakota.  Because of widespread problems with alcohol abuse among tribe members, Pine Ridge is an alcohol free reservation.  However, alcohol abuse problems persist in spite of the alcohol ban.  Tribal leaders blame the Whiteclay retailers for selling alcohol to tribe members who in turn illegally consume it on Pine Ridge or in the streets of Whiteclay.  The tribe has filed a lawsuit against the retailers in Whiteclay, as well as the breweries and distributors, requesting that the court prohibit them from selling alcohol to Native Americans.

Alcohol abuse is undoubtedly a serious problem for the Oglala Sioux Tribe.  As noted in the linked AP article, nearly a quarter of all children born on the reservation suffer from fetal alcohol syndrome or fetal alcohol spectrum disorder.  Moreover, the average life expectancy for tribe members is estimated to be less than 52 years, which is about 25 years shorter than for average Americans.  As such, the lawsuit seeks damages for health care costs and other alcohol-related problems on the Pine Ridge Indian Reservation.  The tribe also wants a judge to prohibit alcohol sales to Native Americans in Whiteclay.

It is certainly interesting that the Tribe has taken the position that alcohol retailers in Whiteclay should discriminate against Native Americans who seek to legally purchase their products.  One can assume that most of the alcohol sold is being illegally smuggled by the purchasers back onto the reservation for consumption.  But do the retailers, distributors, or manufacturers have a legal duty to ensure the products are consumed off of the tribe’s reservation?  And how far would such a duty extend?  If tribe members started driving to the next closest town, would that town’s retailers also be required to refuse sales to Native Americans?

The defendants in the case have moved for summary judgment.  However, if the case is allowed to proceed it has the potential for far reaching problems in the future for beer companies.  As one of the attorneys pointed out in the AP article, if the lawsuit is successful it could force the beer manufacturers to analyze the sales data of all of its distributors and retailers to ensure that none are selling a disproportionate amount if its product.   Small college towns come to mind as other places where the quantity of alcohol sold could likely far exceed the amount expected based on the number of residents who are of drinking age.

This certainly seems to be a hot button issue in Nebraska.  There’s even been a documentary about the retailers and the problems in Whiteclay.  You can watch it here.