On Blog Posts and Bumbo Baby Seats

A few months ago, just back from maternity leave, I blogged about how I was feeling so inundated with warning labels.  We had just finished a house renovation, and I’d just had my second child, so the number of warning labels on everything from the new tub to the baby’s carseat were starting to drive me a little batty.  Okay, it could have been the sleep deprivation too, but I did wax poetic on the warning labels issue in that post.

Case in point.  Recently, I received a notice by email and in the mail that there has been a recall on Bumbo Baby Seats.  If you have no idea what I’m talking about, here’s a picture of one of these contraptions before the recall:

Now, I know it looks like a medieval torture device.  It’s not.  It’s one of the best baby products ever invented.  You put your not-quite-sitting-up-infant in the seat and WHAMO!  He can sit up!  The seat is light, and babies love it.  One important thing about this seat, or at least I thought, is that the baby is so wedged into the chair that he can’t tip it over, or tip himself out of it.  Both my sons have used the Bumbo, and neither one has ever tipped out of it.

Even before the recall, there were warnings.  Users are told not to use it in the bathtub or on raised surfaces, and there is also a warning to always watch your baby when he’s in it.  Well, it appears that wasn’t enough.  Apparently, some babies more determined than mine did, in fact, succeed in tipping themselves out of the Bumbo.  So, the company has issued a recall, and this is what the seat looks like since the company added a seatbelt:

And, of course, there is a new warning label to be affixed over the old one, something called “repair kit instructions,” and a video about how to properly use the Bumbo.

I know I’m being flippant.  Many infants and children are injured every year when products made for them are misused, or even when they are used properly (thus the recalls).  I’m not trying to trivialize those cases.  I do, however, see this as an example of the common sense filter I talked about in that prior post.

A quick comparison of the warnings included with the Bumbo prove my point.  The warning not to use the Bumbo in the bathtub is quite helpful–the seat resembles another product that is used to help a child sit up in the bathtub, and I can see how someone might confuse the two.  But an instruction not to leave the child unattended?  And a warning not to put a baby in the seat on a raised surface?  Come on folks.  That’s parenting/child care 101.  Those types of warnings are the worst, because they give us an excuse not to think for ourselves.  We get lazy, and believe that we need to be spoon-fed our own common sense.  We should expect–and want–better for ourselves.

Buckyballs Fights Back, Mocks CPSC Logic

Recently, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban the spherically shaped magnets known as Buckyballs.  As you might recall, we were a little critical of the CPSC’s over-zealous tactics to protect the public from swallowing the magnets.  Call us reckless, if you will, but we just didn’t see the necessity of banning a product whose alleged “hazards” could be cured by a little self-policing by the consumer.  The product had warnings.  Common sense could keep any accidents from happening.  Sometimes, it appears that, according to the CPSC’s logic, any product could be unreasonably dangerous.

Apaprently, the Buckyballs company made the same observation.

Buckyballs has taken to Facebook launching its own campaign against the CPSC’s logic.  As pictured above, Buckyballs’ creativity did not cease with the invention of the magnetic sphere.  It’s true.  Any product, including a bed, can pose a hazard when not used properly.  As much as we love warning labels, even with them, accidents can sometimes occur.  Obviously, it would be ridiculous to require these types of warnings for a bed.

While we agree that the CPSC’s draconian efforts to ban Buckyballs are ridiculous, the company’s campaign is comparing apples to oranges.  In most instances, falling out of a bed is accidental and not the result of the sleeper’s own comparative fault.  The ingestion of magnetic spheres, on the other hand, typically takes some ridiculous affirmative act.  Even though a warning should not be necessary with either product, at least with Buckyballs, the label need only warn the user to exercise common sense.

In the case of Buckyballs’ coconut spoof, we must respectfully disagree.  Coconuts should be banned, but not due to the risk of injury from their falling.  Rather, coconuts should be banned – or at least heavily regulated by the FDA – as an unsafe food additive.  How many times have you been handed a delicious looking piece of cake only to discover after biting into it that it has been tainted by this horrible food?  A discovery that undoubtedly induces a negative reaction – one that can pose dangerous to those in the vicinity.  Therfore, coconuts should be banned.  Perfect CPSC logic.

(Hat tip: Walter Olson).

First World Problems: Litigating A Really Sweet Pool Table

Several weeks ago, a breach of contract/failure-to-warn lawsuit was filed in California state court against a specialty billiard table manufacturer. The case is Desert Beach, LLC v. Nottage Design Pty Ltd. et al, (Orange County). The complaint alleges that Desert Beach, which is a luxury resort, purchased a futuristic pool table from the defendants that – in my immodest opinion – is really, really sweet. Basically, instead of being covered in traditional green or blue felt, the defendants’ pool table is made entirely of glass. Make no mistake, regardless of the threat of war with Iran or the fact that some jerk-wad from Chicago literally just tried to hijack my bank account (props to Wells Fargo for shutting that down), this pool table represents a future I’m proud to live in.

Here’s the problem: The table is apparently easier to break than Michael Vick, who I’m told is also made of glass. Well of course, you may be thinking. A glass pool table is begging to be broken. That’s what I thought, too. However, the defendants allegedly coat each table in a synthetic known as “Vitrik,” which is supposed to make the table top highly durable. That’s one piece of the equation. The other piece is that only specialty billiard balls are to be used on the table. You could also get the best new pinball machines.

Which brings us to the lawsuit. The complaint alleges that defendants failed to tell Desert Beach about the fact that they had to use specialty billiard balls. So guess what Desert Beach did. They went to the Orange County equivalent of Wal-Mart (which may, in fact, be Wal-Mart, I don’t know) and bought the first set of billiard balls they laid their eyes on. And shot pool with them. And damaged the table so badly that not even Obi Wan could offer any hope.

Desert Beach called the defendants and asked them to make it right. And in a power-move befitting of a company who charges $73,000 for a pool table, the defendants allegedly told Desert Beach to pound sand. Then, again allegedly, the defendants tried to reverse engineer their website and other documents to show that Desert Beach knew they were only supposed to use specialty billiard balls with the table. Desert Beach was not amused by the underwhelming customer service and decided to double-down on the insanity with a lawsuit in California, the land of crazy lawsuits.

The defendants haven’t answered the lawsuit yet, so we don’t know their side of the story. But let’s be honest. The pool table cost $73,000. Did the defendants think that Desert Beach would just walk away from that? I mean, if you’ve got that much money to blow on a pool table, you’ve got that much money to blow on litigation to prove a point.

Friday Links

Why are superheroes always on trial? Above, you’ll find the cover of The Trial of Thor, published not so long ago in 2009. Why, pray tell, was the God of Thunder put on trial?  Summarizes the website Comicvine: “Did Thor snap? After an epic battle against the Frost Giants, the Thunder God is accused of murdering innocent Asgardians. It sounds impossible . . . except that Balder the Brave is an eyewitness to the carnage. Did the mayhem and stress of war finally push even the greatest of heroes over the edge?” We hope that Thor’s defense attorney subjected Balder the Brave to a vigorous cross examination; we suspect that there is some good impeachment material there, after all. Although we’ve not yet read the volume, we suspect Thor escaped severe punishment. (To see our coverage of “The Trial of Superman,” see here, herehere, and of course, here).

As you know, we here at Abnormal Use are huge, huge nerds.  This is why we couldn’t resist sharing this article from Mental Floss entitled “Alternate Histories: 7 More Ways the World Could Be Completely Different.”

Friend of the blog Walter Olson, of the Cato Institute and the famed Overlawyered blog, visited and spoke to students at the University of South Carolina this past week.  See here for some Facebook coverage of that event.

What does the canceled 2002 science fiction television show “Firefly” teach us about contract law?  Josh Gililands answers that question. “Firefly,” as you may recall, was a television series created by Joss Whedon, the same auteur responsible for TV’s “Buffy The Vampire Slayer” and this year’s The Avengers.  We’re not sure what he knows about contract law, but oh, well. (Hat tip: friend of the blog Dan Loyd).

Thoughts on the Legal Blogosphere

As we near the end of 2012, the “blogosphere” as we know it is now, depending on your estimate, about ten years old.  Of course, there were precursors to what we now know as blogs, and those proto-blogs, or whatever we want to call them, pre-date what came to be known as the blogosphere.  A few months back, Overlawyered celebrated is thirteenth anniversary, meaning that it began its existence in 1999.

I can remember reading Overlawyered in the law library of Baylor Law School in Waco, Texas way back in 2000.  (Ah, the days of yore and legal studies.). Considering the amount of work involved in perpetuating a blog, it is amazing that the site has endured as long as it has, especially in light of the fact that it is run by just one person: the indefatigable Walter Olson.

2002, though, was the year blogs officially burst onto the scene, and a handful of sites that began that year celebrated their tenth anniversaries this year.

However, many of the blogs that began that year – or in the years that followed – have sunk into the depths of the Internet ether. I recently stumbled across an old folder of Internet bookmarks from the 2000-2002 timeframe, and most, if not all, of those websites are now lost to history.  So too are many, many forgotten legal blogs, which began years ago and failed or died somewhere along the way.  But blogs like Overlawyered and others have long endured, and it’s fascinating to chart their evolution.  One of the joys of a blog’s archives is that a reader can revisit commentary and case law and trace the origin of issues over the past ten years. We can learn legal history from a blog’s archives, just as we could from a collection of a newspaper writer’s collection of editorial columns, and there’s some great value in such a repository of wisdom and commentary.

But, all this got me thinking about the nature of the legal blogosphere and how blogs evolved and what the future has in store for them. Are their efforts to preserve the state and federal legal commentary that has accumulated over the past decade?  Are there really readers who revisit blog archives to ascertain how issues were debated and consensus evolved?  With courts themselves now citing blogs, what efforts are being made to preserve and protect those entries? What use is a court’s citation to a legal blog entry if the blog no longer exists? What can we learn from 10 years of blog posts and accompanying reader commentary?

We here at Abnormal Use do not have answers to these questions.  We’ve only been doing this blogging thing for two and a half years. But they are questions worth asking.

Tonight: Susan Saladoff Brings “Hot Coffee” to Charlotte, North Carolina

Over the past couple years, we here at Abnormal Use have written a great deal about hot liquid product liability cases.  Just this week, we reported on hot soup in a school cafeteria.  Last week, we told you about the case of the hot tea on an airline flight.  We have even kept you abreast on hot coffee litigation nationwide.  And, of course, the genesis of it all – Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.

Now, it all comes full circle as Saladoff has come to our backyard.

Tonight, from 7:00 to 9:00 p.m. at the EpiCenter Theater in Charlotte, North Carolina, you can attend a screening of Hot Coffee followed by commentary from Susan Saladoff.  The screening is sponsored by the Mecklenburg County Bar Association.  There is no cost to the general public or for attorneys not seeking CLE credit.  For those who would like 2 general hours of CLE credit, the cost is $90.

You may remember Saladoff cancelled an interview with Abnormal Use just prior to the release of Hot Coffee. We wrote at length about her background as a plaintiff’s attorney and her potential bias as a filmmaker covering the infamous Stella Liebeck McDonald’s hot coffee case litigation.  Maybe tonight, we may get the chance to finally meet her and ask her some questions.  We will be sure to report on our experience.

The Pennsylvania Golf Cart Litigation

For me, golf carts stir up long ago memories. I remember begging my dad to let me be his caddy just so that I could drive the golf carts for rent.  Golf carts, although initially built in the 1930s as a way to transport disabled golfers from shot to shot on the course while able-bodied individuals walked with a caddy, are no longer used only to carry two golfers and their golf clubs.  Today, golf carts are alternative road vehicles, saving people from using their gas-powered SUVs or even their legs to traverse their gated communities, tailgate spots, business complexes, or school campuses.  Like most things in our highly personalized economy, golf carts no longer only come in a one-size-fits-all style; rather, color and the number of rows for seating passengers are among some of the features which may be customized to fit the needs of the purchaser.  As options have increased, so too have injuries and, in turn, the amount of litigation.

According to one study, the number of golf cart injuries increased an astonishing 132% from 1990-2006. Such injuries usually stemmed from passenger ejection or overturned carts.  In one such case, the parties settled soon after  the court granted summary judgment to defendants on some of the Plaintiff’s claims. That case was Lynn v. Yamaha Golf-Car Company. On August 16, 2012, the parties settled for an undisclosed amount following the Western District of Pennsylvania’s order granting partial summary judgment in favor of the defendants as to Plaintiffs’ post-sale duty to warn and failure to warn claims.  In that case, the thirteen-year-old Plaintiff Lynn was riding as a seated passenger in a Model Year 1999 Yamaha Model G16 golf car.  Plaintiff Lynn’s friend had been operating the G16 for less than one quarter of a mile along a rural and infrequently traveled road at the time of the accident.  The accident occurred when Lynn’s friend made a u-turn, and as she was turning left, Lynn was ejected over the hip restraint of the cart (although the G16 did not tip, rollover, skid, or lose traction).  Lynn sustained serious injuries.

Plaintiffs contended that the G16 was defective in its design as it failed to prevent passenger ejection.  However, Yamaha argued that the G16 was properly was properly designed, properly manufactured, and safe for its intended use because it was never designed, manufactured, or intended to be used as a mode of general transportation.

In addition to finding summary judgment was proper as to Plaintiffs’ warning claims, the Court determined Plaintiffs produced enough evidence to show there was foreseeable risk of ejection when the golf cart was turned sharply at or near maximum speed, particularly when children are passengers, and that there were two reasonable alternative designs available at the time the G16 was constructed.  Finally, the Court was not convinced by Yamaha’s argument that Plaintiffs were using the golf cart for an unintended use.  The Court stated that the intended use of the vehicle could not be limited to cut-turf golf course surfaces.  The Court found, rather, that golf carts are intended to be used to convey persons from one point to another at a relatively low speed and that a jury could reasonably conclude “non-golf-course” uses were entirely foreseeable.

Based on these findings, it appears that at least in the Western District of Pennsylvania, holding onto the original use of a golf cart will not be a winning argument.  However, if the number of injuries keeps increasing as the uses for golf carts are broadened, each case will be factually intensive, and it will be interesting to see how courts treat these claims going forward.

Unreasonably Dangerous Soup? Litigation From A School Cafeteria

We here at Abnormal Use often write about hot beverage litigation. Just last week, we reported on the tale of the hot tea and the airplane.  And, of course, we are no strangers to the McDonald’s hot coffee case.  Most of these hot beverage lawsuits share a common hurdle – the liquid at issue is intended to be served at temperatures the plaintiff’s later deem “unreasonably dangerous.”  If a consumer demands his beverage to be served hot, he shouldn’t be able to sue the restaurant for meeting his expectations.

But what happens when the hot liquid is a cup of soup?  And the consumer is an young old girl in a school cafeteria?

In Wisconsin, an 8-year old girl has sued the Beloit Turner School District over burns she sustained by a cup of soup served by the cafeteria staff at Powers Elementary School.  According to the Janesville Gazette, the complaint alleges:

The hot soup was placed on the girl’s lunch tray. She began to carry her tray to another table, but someone bumped her, and the tray tipped, causing the hot soup to spill onto her left forearm and cause injuries.

Further, she alleges that the School District and its cafeteria staff were

[N]egligent in serving a substance at an unsafe temperature to an 8-year-old child, were negligent in failing to properly instruct its students on how to carry the unsafe substance, failing to properly warn its students of the unsafe substance and the dangers thereof, and failing to properly supervise its employees, agents and students at all times material to this complaint.

At this time, there is no information regarding the temperature of the soup.

As an initial matter, this case is clearly distinguishable from many of its hot beverage predecessors.  First, the plaintiff is a minor and doesn’t share the same degree of culpability for assuming the risk of her food choice (if she actually had one).  Second, she was required to transport the hot soup on a lunch tray through the cafeteria – a scenario that can lead to spills.  As a result, this case could find itself in the hands of a jury.

Nonetheless, a bowl of soup shares one thing in common with a cup of coffee.  Even in a school cafeteria, soup is expected to be served hot.  If not, parents would undoubtedly be complaining at the district office.  While we do not know the actual temperature of the soup served, the school district should not be found liable solely on the basis of serving “hot” soup.

As stated above, this case is unique in that it involves a minor in a school cafeteria.  Obviously, the school has some duty to look out for the safety of students.  But how far should that duty extend?  This is not a case about a corporation allegedly sacrificing safety to protect its profit margin.  School districts all across the country are in dire straits financially.  Should we really require that they provide warning labels on its soup bowls?  Or, will a simple verbal warning suffice?

Certainly, this case presents some novel issues for the hot beverage (or food) progeny.  We will be sure to keep you posted as more information surfaces.

Friday Links

Above, you’ll find the cover of Robocop #17, published way back in 1991.  “You have broken the law and betrayed us all!,” exclaims Robocop, who probably should never have received his own comic book series.  He  continues: “The sentence, Officer Lewis, is death.”  Something tells us this is not permitted by the sentencing guidelines in the future.  You would think Officer Lewis would at least have her union rep present for this “proceeding.”  But something isn’t right here. Robot cops get to charge, convict, and sentence their fellow officers?  If that is the “future of law enforcement,” that is not a good thing.

By the way, do you know how difficult it is becoming to find legal themed comic book covers after publishing one a week for nearly two years?  Wow. Although, in fairness, you probably had a sneaking suspicion that it was becoming a challenge when you saw that this week’s issue featured Robocop.  We’re really having trouble maintaining a straight face every time we type “Robocop.” Oh, well.

By the way, as we mentioned yesterday, this post – the one you are reading this very moment – is our 750th post.  We observed the anniversary yesterday (so as not to make this edition of Friday Links too self indulgent), but we must confess that this is quite an occasion for us.  Way back in January of 2010, when we started this blogging thing, 750 posts was an unimaginable goal.  And yet here we are.  Thank you for your support.

It’s been a while since we checked in on the North Carolina Law Blog.  Just this week, though, that site ran “Choosing a Practice Area: The Smaller, The Better” by Joyce Brafford. Check it out.

Apparently, hazing lawsuits, or at least the incidents they are based upon, are not new.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Another Milestone: 750 Posts!

As you know, perhaps all too well, we here at Abnormal Use love to observe arbitrary anniversaries.  And so it is today that we celebrate the occasion of our 750th blog post.  Mind, this post – the one that you are reading right now – is actually our 749th post.  Our official 750th post will appear tomorrow.  But, as you may also know, each Friday, we serve up the latest edition of our patent pending “Friday Links” column, so we decided to pat ourselves on the back today – one day early – for reaching 750.

(“Friday Links” is already self indulgent enough without us focusing on our number of posts.).

This is not our first such post; we’ve done a few of these before: Our first milestone, 100 posts back in May of 2010, then 500 posts in November of 2011, and for some reason, 700 posts back in July of 2012.

This site would not be possible without the support of our firm, Gallivan, White, & Boyd, P.A. (now with offices in North and South Carolina).  The real heroes, though, are our authors: Nick Farr, Rob Green, Frances Zacher, and Steve Buckingham, all of whom go above and beyond the call of duty each week to submit posts offering timely and fun commentary.  They are the reason we’ve been able to reach this latest milestone, and here’s hoping that we reach 1,500 posts some time in the future.

By the way, above you’ll find the cover of Action Comics #750, published not so long ago in the halcyon days of 1999.  There are not many comic book series which have reached 750 issues.