Court Finds Sizzling Nature of “Sizzling Fajita Skillets” Is Open and Obvious

In the latest news from the hot food injury front, a New Jersey appellate court affirmed the dismissal of a lawsuit against Applebee’s arising from some alleged steak fajita burns.  According to reports, a man ordered the signature steak fajita skillet (identified more specifically on the menu as “Sizzling Skillet Fajitas”) from a New Jersey Applebee’s back in 2010 and apparently did not feel he was “eating good in the neighborhood.”  When the man bowed his head to pray, he alleges that he heard a sizzling and popping noise coming from the fajita.  Thereafter, in the midst of his prayer, he felt grease burning his left eye and face.  Panicking from the burns, he knocked the sizzling steak fajitas into his lap, causing additional injury.  None of the burns were severe enough to cause scarring, apparently.  The man filed suit on the grounds that the restaurant and his waitress failed to warn him the steak fajita skillet meal was hot.  The court, however, found that any dangers posed by the dish were open and obvious.  The case is Jiminez v. Applebees’s Neighborhood Bar & Grill et al., No. A-2247-13T2 (N.J. App. 2015).

We have to agree with the Court’s ruling.  Any hot food failure to warn case should be thrown out as a matter of law when the food contains the word “sizzling” in its title on the restaurant’s menu.  Something just doesn’t sound right about ordering “sizzling” fajitas and suing the restaurant when those fajitas are, in fact, sizzling.

What makes the case interesting is a fact seemingly glossed over in the reports – when were the fajitas delivered to the table during the praying process?   Thankfully, we have the opinion to let us know that the food had been delivered prior to the man starting his prayer. With this fact in hand, it can be argued that the man should have observed the food sizzling prior to hanging his head over it.  The food didn’t leave the kitchen warm and wait until arriving at his table to begin sizzling.  On the other hand, if the man had begun praying before the fajitas arrived and the waitress delivered them under his bowed head, then arguably the waitress (and Applebee’s vicariously) could be held liable.  Such liability would not come from the temperature of the food but, rather, from the act placing the man in close contact to it without his knowledge.

The most notable omission from the news reports is that this case is absolutely not reminiscent of the infamous McDonald’s hot coffee case  even though they can’t help but claim it is.  This case had a single cause of action – a negligence claim sounding in premises liability.  The McDonald’s case, on the other hand, was couched in product liability where the hot coffee itself was alleged to be unreasonably dangerous and defective by virtue of its temperature.  We would have sided with the defendant here under either theory, but let’s at least try to not to compare apples to oranges.  Or sizzling fajitas to hot coffee.

More Semantics In Half-Baked, “Store-Baked” Lawsuit

The field of “semantics law” is growing at a rapid pace.  We recently reported on two lawsuits revolving around the use of the term “handmade” with respect to bourbon and vodka.  Here’s another to add to the list.  Whole Foods and two other grocers (Wegman’s and Acme) in New Jersey have been hit with a lawsuit alleging deceptive use of the term “store-baked.”

So what heinous crime have these grocers committed? It’s nothing as dastardly as trying to pass day-old bagels as fresh. Rather, the lawsuit contends some of the bread sold as “store-baked” is being made off site and only being heated on the store’s premises.  Apparently, the Plaintiffs’ sensitive palates require that baked goods be made from scratch on the premises. The Plaintiffs contend that these grocers’ alleged evil deeds violate the New Jersey Consumer Protection Act, and in bringing the suit, they purport to represent a class of approximately 10,000 customers of each chain. Further, they seek damages of at least $100 per customer.  That’s a lot of dough.

Whole Foods declined to comment on the matter, but Wegman’s and Acme denied any deceptive practices. If these types of cases are allowed to move forward, expect a lot more Plaintiffs bringing cases that pivot on semantics.

Take 2: Alas! Another Liquor Under Fire Over Being “Handmade”


Yesterday, we reported on the Tito’s Handmade Vodka lawsuit over the liquor’s “handmade” label.  That news came on the heels of the lawsuit filed against Maker’s Mark in California challenging the validity of the claims that the Kentucky bourbon is itself handmade.  With so much fuss about handmade liquor, we here at Abnormal Use thought it worthwhile to add an additional day of commentary.

As you may recall, the Tito’s lawsuit was filed by two New Jersey men on behalf of themselves and vodka drinkers everywhere who claim the Texas company’s “handmade” moniker is a sham. In addition to featuring the word “handmade” right in its brand name, Tito’s website states:

[Tito’s vodka] is microdistilled in an old-fashioned pot still, just like fine single malt scotches and high-end French cognacs. This time-honored method of distillation requires more skill and effort than modern column stills, but it’s well worth it.

According to the latest lawsuit, however, this “time-honored method” actually involves a large manufacturing plant in Texas.  Specifically, Plaintiffs allege:

This entire manufacturing process of the defendants is devoid of the caring touch of human hands.  This is a material factor in many individuals’ purchasing decisions, as they believe they are purchasing a product that is made in small amounts that is of inherently superior quality.

As such, the vodka is allegedly “not worth the purchase price paid.”

Even assuming the allegations are true, how have these plaintiffs really been damaged?  As was the case with Maker’s Mark, we here at Abnormal Use don’t pretend to know the difference between “handmade” and machine-made liquor.  We do, however, recognize that there is a certain premium associated with any handmade product.  For many, handmade products are perceived to be better made and, thus, come with a higher price tag.  On the other hand, we do not know whether handmade vodka is really better than that “devoid of the caring touch of human hands.”  Our guess is that blind testing would reveal a certain placebo effect associated with knowledge that the vodka is homemade.  After all, “top shelf” just means where the bottle is stored, right?

Obviously, if Tito’s represents one thing to consumers while doing another, it may pose a problem.  But the real question is whether the vodka-Red Bull of a regular Tito’s drinker now tastes a little less fulfilling after learning of this lawsuit.  Sometimes, ignorance is bliss.

New Jersey Plaintiffs: “Tito, Your Vodka Isn’t Handmade!”

Two plaintiffs from New Jersey are on a mission to exact justice on behalf of those who they believe were duped in to buying mass produced vodka. Gasp!  The alleged evildoer? The maker of Tito’s Handmade Vodka.  The plaintiffs have filed a lawsuit alleging that Tito’s production process is “the complete opposite of the product being handmade.”  This comes on the heels of a similar suit on which we reported against the distiller of Maker’s Mark Bourbon.

Plaintiffs Marc McBrearty and Paul Cantilina say Tito’s had a legitimate claim to the “handmade” label when the vodka was made in a 16-gallon pot still. However, the plaintiff’s claim that “it is now manufactured by machines in a highly mechanized process on a 26 acre operation that produced approximately 850,000 cases in 2012.”  They allege that by using this process and not dropping the “handmade” moniker, Tito’s is intentionally misrepresenting its product in violation of New Jersey’s Consumer Protection Act.

According to a 2013 Forbes article, Tito’s did nearly $85 million in sales in 2012 at around 12 million bottles.  In spite of this huge number, Tito’s founder, Bert “Bertito” Beveridge, certainly isn’t conceding that his product fails to live up to its name.  He told Forbes, “If someone tells me my brand isn’t a craft-distilled spirit because it’s too big, I just say, ‘I make it the same way I’ve always made it. I just have a lot more stills.”

On the one hand, the lawsuit seems very silly, considering that all decent vodka tastes exactly the same.  However, given that fact, little schticks like being “handmade” are what sets the brands apart. We’ll be watching this lawsuit and the others like.

The Coming Ebola Litigation?

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.

Outrage! Walmart Asserts Affirmative Defenses in Tracy Morgan Case

Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured.  The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others.  Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact.  According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone.  He has pleaded not guilty  to death by auto and assault by auto charges.

Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar.  According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera).  One of those affirmative defenses, however, prompted much criticism.  Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.”  The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.

Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”

We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation.  Is Walmart attempting to shift all or some of the blame to the plaintiffs?  Certainly.  That is the very nature of an affirmative defense.  Should Walmart be publicly criticized for it?  Absolutely not.  Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt.  N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries.  As such, Walmart is raising a defense which it is entitled to raise by law.

We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case.  However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings.  If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury.  This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law.  Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading.   As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived.  If discovery reveals that the defense is groundless, then Walmart can always withdraw it.

We wonder if the media would report on that development.

Mike “The Situation” Sorrentino’s Tax Fraud Arraignment Delayed

For those readers who were eagerly anticipating the arraignment of Mike “The Situation” Sorrentino, originally scheduled for this week, you must unfortunately wait even longer.  Reportedly, the arraignment has been delayed so that The Situation can film another reality TV show. For those unfamiliar with the case, The Situation and his brother allegedly falsified tax returns in order to avoid nearly $9 million in taxes. A Justice Department press release explains that The Situation and his brother “did not properly pay taxes on $8.9 million in income Michael Sorrentino received from promotional activities . . . .”  The press release goes on to explain that:

Michael Sorrentino is a reality television personality who first gained fame on “The Jersey Shore,” which appeared on the MTV network. Marc Sorrentino is Michael’s brother and manager. The pair conspired to fail to pay all federal income tax owed on approximately $8.9 million earned by Michael Sorrentino between 2010 and 2012. This income was largely received by two companies controlled by the brothers: MPS Entertainment, LLC and Situation Nation, Inc.

As part of the conspiracy, the brothers submitted or caused to be submitted to the IRS false documents which understated the gross receipts received by the brothers and the two companies. The brothers also submitted false personal tax returns which failed to report all of the income they received, and Michael failed to file a personal tax return in 2011, despite earning $1,995,757 that year.

As part of the conspiracy, the brothers also fraudulently claimed millions of dollars in personal expenses as business expenses, including payments for high-end vehicles and clothing, personal grooming expenses, and distributions – or direct payments – from the businesses to personal bank accounts.

The conspiracy count carries a maximum potential penalty of five years in prison and a $250,000 fine; the filing false tax return counts each carry a maximum potential penalty of three years in prison and a $250,000 fine. The count charging Michael Sorrentino with failing to file a tax return carries a maximum potential penalty of one year in prison and a $100,000 fine.

U.S. Attorney Fishman credited special agents of IRS-Criminal Investigation, under the direction of Acting Special Agent in Charge Larsen, with the investigation.

The prosecutors assigned to the case are Assistant U.S. Attorneys Evan S. Weitz and Jonathan W. Romankow of the U.S. Attorney’s Office Criminal Division in Newark, as well as Trial Attorney Tino Lisella of the Tax Division of the United States Department of Justice. Weitz is no stranger to high profile financial cases, having handled the case against Karen Febles, who allegedly stole millions from an investment banker. Romankow was involved in the prosecution of reality stars Teresa and Joe Guidice and Lisella has been involved with the case of the New Jersey doctor who allegedly participated in an oxycodon distribution conspiracy.  Point is, the prosecution team is no stranger to high profile cases.   The Situation’s defense attorney, Richard Sapinski, may have his work cut out for him.

For more information, the indictment is located here.

Frozen: Not Just Another Disney Princess Story?


A princess born with cryokinetic powers, locked away from the outside world for years, unleashes a deep freeze on the community when she is unveiled as queen.  If you thought this was the CliffsNotes plot summary of Disney’s Frozen, you would be partially mistaken.  Apparently, it is also the tale of a New Jersey woman.  According to a report from the New York Daily News, Isabella Tanikumi a/k/a Amy Gonzalez, has filed suit against Disney in a New Jersey federal court alleging that the entertainment giant lifted the story straight from her life. Specifically, Tanikumi alleges that the makers of Frozen stole the story, characters, plots and subplots from her two memoirs, Living My Truth and Yearnings of the Heart, which chronicle her upbringing in the Andean mountains of Peru.  Disney, however, has previously claimed that Frozen is loosely based on Hans Christian Andersen’s 1844 fairy tale “The Snow Queen.” Tanikumi obviously isn’t buying it, as she is seeking $250 million in damages.

We here at Abnormal Use have admittedly never read either of Tanikumi’s memoirs.  Nonetheless, our guess is that this lawsuit falls more into the realm of absurd than it does Queen v. Vanilla Ice.  Anyone who has viewed the film would certainly question how the story of an ice princess and a talking snowman could possibly have ripped off a Peruvian memoir.  As reported by, the suit alleges the following as parallels between the films:

— Both the memoirs and “Frozen” feature two sisters, one of whom causes the other to be injured and then hides herself away because she feels shame.

— Both live in a village or town at the foot of snow-covered mountains, the suit alleges.

— The sisters are brought closer by a terrible accident — an earthquake in the memoirs and a storm in “Frozen.”

— The above-mentioned accidents result in the deaths of loved ones.

— In the memoirs, one of the sisters has suitors named Hans and Cristoff and in “Frozen” Anna develops romantic attachments to men named Hans and Kristoff.

These allegations appear to be more coincidental rather than deliberate attempt at a rip-off.  Even the most specific example, the names of the male characters, loses traction when you consider the adaptation from Hans Christian Anderson and the film’s Scandinavian setting.  While Disney is obviously a huge outfit with tons of resources, we highly doubt that its writers were scouring through self-published memoirs for their next big idea. Looking into our crystal ball, our guess is that this lawsuit will melt quicker than Olaf on a summer’s beach. Tanikumi may finally have someone purchase her memoirs off of Amazon due to the publicity, but she won’t see a dime from Disney.  And, then, when all is said and done, Tanikumi releases a Peruvian version of “Let It Go” only to be sued by Disney for copyright infringement.  We can only dream.

Casino Loses Millions, Sues Card Manufacturer

Recently, we wrote about a man suing a Las Vegas casino after he lost $500,000 gambling while intoxicated.  As ridiculous as that suit may be, the Borgata Hotel Casino and Spa in Atlantic City is now vying for silliest casino lawsuit of the year.  In a new suit filed in federal court, the Borgatta is suing Phillip Ivey, Jr., a big time professional gambler, and Gemaco, Inc., a card manufacturer, claiming Ivey won $9.6 million in a baccarat card-cheating scheme.

We imagine the nearly $10 million in winnings was  against the house edge.

The real kicker is not that Ivey won such a large amount of money but, rather, how he was able to do so.  According to the complaint, Ivey exploited a defect in the cards that allowed him to improperly sort and arrange them using a technique called “edge sorting” – illegal under the New Jersey casino gambling regulations.  The cards, manufactured by Gemaco, were allegedly defective in that the pattern on their backs was not uniform.  Where the cards were supposed to have a row of small white circles designed to look like the tops of diamonds, some of the cards apparently only had half or quarter diamonds.  Allegedly, Ivey was able to sort desirable cards from undesirable ones after observing the defect.

We have to wonder when the Borgatta discovered this alleged defect. In an industry so heavily controlled and regulated, we find it hard to believe that any deck of cards would ever see the light of a casino floor without first being inspected and approved by the casino.  With so much money on the line, casinos have never been shy about self-policing.  If this “defect” was an obvious one, we imagine these cards would have been sent right back to Gemaco.  If there actually was a defect, then it was most likely so slight that it was undetected by even the most careful inspectors.  The fact that Ivey was able to notice the flaw is impressive. Sure, it is easy for the Borgatta to point the finger at Gemaco.  After all, its alleged flaw may have cost the casino nearly $10 million.  But, why did Borgatta use a card with a decorative card backing in the first place?  It seems like such cards would be more susceptible to non-uniformity and enable these types of situations.

We suppose a simple solid design would have been too tacky for the Borgatta.  A casino’s extravagance is what draws the gamblers in to throw away their money.  Unfortunately, this time it backfired.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60’s, the 70’s, or even the 80’s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90’s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80’s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80’s” and “Hits of the 90’s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.