Court Finds Some Evidence of Toyota Defective Restraint System

Recently, in Quinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.

Billionaire Wins Suit Over Fake Wine

Apparently, billionaire William Koch picked the wrong hobby when he started collecting wine.  He’s seems to buy a lot of expensive fake wine.  Last year, we told you about a suit by Mr. Koch over fake wine that allegedly belonged to Thomas Jefferson.  That suit was ultimately dismissed on the statute of limitations.  Well, he clearly wasn’t deterred from pressing forward with other similar lawsuits.

Earlier this month, according to the New York Daily Newshe went to trial claiming that a wine dealer sold him 24 bottles of a bogus vintage bordeaux.  A New York jury found his claim to be true and felt that this dastardly deed warranted $12 million dollars in punitive damages. Mr. Koch originally spent $300,000 on the 24 bottles of “vintage” bordeaux, which he bought from Eric Greenberg.  The wine turned out to not be the real deal.  Koch blamed Greenberg for intentionally selling him the bogus wine and perpetuating a “code of silence in the [vintage wine] industry.”   Mr. Greenberg claimed that he offered to refund Mr. Koch his money when he learned that the bottles of wine were fake.  But that was not good enough for the billionaire.  Only a lawsuit and millions of dollars in punitive damages could right this wrong.  The jury awarded him $380,000 in actual damages and $12 million in punitive damages.

Lest you think Mr. Koch is just some out of touch billionaire that likes to spend more on wine than you spent on your home, we note that he plans to put $12 million verdict to good use.  Koch said he would use the money to “set up a fund to go after wine fraud and auction fraud.”  He’s bound and determined to put an end to the travesty of really rich people buying expensive fake booze.

It isn’t helping starving kids in Africa, but its something.

Friday Links

Above, you’ll find the cover of Police Line-Up #1, published way, way back in 1951.  “Crime Can’t Win,” proclaims the issue. Check out the armed guy on the cover raiding the police files. Note that this comic book is so old, and presumably rare, that the only version of its cover we could find is one defaced with ancient scribbles and doodles. We wonder if the scribbler – whose identity is inevitably lost to history – became a lawyer. Sadly, we’ll never know.

This, by the way, will be our 896th post. Can you believe that? That is a great many blog posts. We too are stunned. Have you read them all? When is the last time you read the Abnormal Use mission statement, published on January 4, 2010? In fact, when is the last time we read it?

Friend of the blog Tamara Tabo published her first column at legal mega-blog this week.  You can find it here.

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

The Derrick Rose lawsuit and emotional distress claims in South Carolina

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.

Photograph of the Day: The Canadian Hot Coffee Warning?

“If this was another country, we’d have to tell you that this coffee may be hot.  Good thing this is Canada!”

We couldn’t resist sharing this photograph above of a Canadian take-out coffee cup, which, not unexpectedly, is making the rounds on the Internet this week.  Twenty three years after Stella Liebeck spilled coffee on herself in the parking lot of a New Mexico McDonald’s, the culture still turns to her lawsuit for commentary and, as the image above indicates, legal humor.

So, today, we direct you back to our helpful Stella Liebeck McDonald’s Hot Coffee Case FAQ, in which we attempted to offer an objective accounting of the case using only the pleadings and contemporary media coverage.  Sure, such an objective, facts-only FAQ won’t earn us a spot on HBO’s documentary line-up, but we are still pretty proud of it.

(Hat tip: Overlawyered).

The Ellipsis: Enough is enough. Really.

We hate the ellipsis.  There, we said it.  We can’t stand the ellipsis. Recently, we received a complaint containing not one, but seven, instances of our most despised punctuation device. Sure, we admit that the ellipsis has its proper place, but when used improperly, an otherwise formal pleading just looks foolish. Oh, my.

The Oxford American Dictionary defines ellipsis as “the omission from speech or writing of a word or words that are superfluous or able to be understood from contextual clues.” If one is inserting a quotation into a brief, and some of the words contained therein are insignificant, then the ellipsis has a home. If citing the first half of a quotation, but not the second half, then the ellipsis knows its place. If, however, you are making an allegation and are not satisfied with a single period to end your sentence, then we here at Abnormal Use have some problems. Oh, the humanity!

If we had to create an exception to the OAD definition, we would consider allowing the “yet to come” ellipsis usage to be acceptable. For instance, if we were to say, “If only we knew what would happen Friday night . . . ,” then by indicating that there is some form of unknown, the ellipsis has a point. In trying to keep with the definition of ellipsis, the “we don’t know what is to come” can be inferred from the contextual clues in the sentence. While not strictly within the plain meaning of the definition, we can at least understand why the ellipsis is being used.

We know our punctuation is not always perfect. In fact, we are certain that one could read over this blog and point to several instances of punctuation error. However, you won’t catch us ending pleading allegations with ellipses. There comes a point when enough is enough . . . .

Ryan Steans: A Decade of Blogging

Congratulations are in order.  Friend of the blog, Ryan Steans, himself a long-time pop culture blogger, recently celebrated a memorable anniversary: his tenth year as a blogger.  Steans, who blogged first at a site called The League of Melbotis, and then at a sequel blog of sorts named The Signal Watch, deserves much praise for reaching this anniversary.  Long-time bloggers like Steans, and of course, Walter Olson of the Overlawyered legal blog, have dedicated substantial amounts of time to their websites and blogs. To reach ten years, well, that’s a lot of sweat equity.

We here at Abnormal Use, a baby in the legal blogosphere at only three years old, certainly understand the commitment required to maintain such an enterprise.  However, the diligence and discipline needed to maintain a blog for more than ten years – like Steans and Olson have done – is quite a feat, no matter the topic.  Accordingly, we applaud Steans upon reaching this milestone.

Steans is a long-time friend and former college classmate.  His blog typically centers around popular culture and events from his daily life.  His posts are often much longer than those you see here on Abnormal Use, and although he does not post every day, he posts often enough to suggest that it is, indeed, a full-time job for him.

What is interesting about his site is the manner in which he has created a community of readers.  That is quite an accomplishment, as many blogs come and go, live, and then die, without attracting much of a readership.  Steans, in the manner in which he writes his site, offers shout-outs to readers and encourages conversation.  Surprisingly, readers of his site – who had no previous connection to each other – have met and become friends after becoming initially acquainted on Steans’ site.  That sense of community, in part, is what has allowed Ryan’s blog to endure as long as it has.

We here at Abnormal Use have taken several lessons from Ryan and his long-time blogging experience.  We here try to foster a community of readers, both by adopting an informal style of sorts but also by utilizing social media in such a way to prompt interaction with our readers.  We are still working on that, and like any blog, this is still a work in progress, even three years in.

To date, we here at Abnormal Use have authored almost 900 posts.  We look back on that with some level of pride, and occasionally, we will peruse some of our favorites years after they were published.  In his own posts observing his milestone, Ryan remarks that he has authored “around 5,000 posts.”  There is something existential in his account of his site’s first decade, as he pauses to reflect upon some of the lessons he has learned in maintaining the site from his late twenties to his late thirties.

We congratulate him on this milestone.

Friday Links

Above, you’ll find the cover of Brik Jones: Attorney for Earth #1, published not so long ago in 2012.  It’s funny to think that there have been legal themed comic book covers brought into existence after we started this blogging thing. Wow. However, we must confess that we have never heard of Brik Jones, and we find it hard to believe that his client is Earth.  I mean, his client is the planet? Who would he present as his representative for a 30(b)(6) deposition?

Well, you might have  noticed that the site suffered a brief outage yesterday.  Rest assured, dear friends, we have rectified the issue, and it will trouble you no more.  (We were told it was a minor, but thankfully ephemeral, hosting issue.). Thanks to the eagle-eyed readers who first noticed the issue and brought it to our attention.  This blogging thing can get complicated!

Here is an interesting article from The Daily Texan, the official student paper of The University of Texas at Austin, detailing how the University enforces its trademark. (Hat tip: The Daily Texan Twitter Account.).

Man Settles Suit Against Local Golf Course Over Gator Attack

The Masters tournament may be over, but golf is still in the news here in the Deep South. An Ohio man, Jim Wiencek, has settled his suit against the Ocean Creek Golf Club in Fripp Island, South Carolina arising out of an alligator attack. According to the complaint in the matter, 80-year old Wiencek reached down to pick up his golf ball near a small lagoon on the 11th hole of the course when a gator emerged from the water and ripped off his right arm. The course allegedly did not warn him of the presence of the gator. Thereupon, Wiencek sued Fripp Island Resort and its affiliates, and, as noted above,  recently settled his claims for an undisclosed amount. The case is captioned Wiencek v. Fripp Island Resort, Inc, et al., No. 9:11-cv-127-MBS (D.S.C. 2011).

The accident obviously resulted in a horrific injury. Fripp’s liability, however, was questionable. Typically, property owners are not liable for wild animal attacks. But, the plaintiff contended this case was different in that Fripp was on notice of the gator’s presence and failed to warn others or take any measures to assure their safety. There apparently is no known precedent on the duty of golf courses to warn of the presence of alligators. Because the case settled prior to trial, we still do not know how the courts would handle the situation.

Whatever the case, we believe golfers should bear at least some of the responsibility in this situation. Even without warning signs, we would like to think golfers are aware of the presence of alligators in every pool of murky water in the low country. The fact that the dark and brackish condition of the water obscured visibility should be a sign that gators could be near. We recognize that the plaintiff is from the gator-free land of Ohio, but it doesn’t take an episode of Swamp People to be aware of an alligator habitat. The plaintiff was an avid golfer, playing on many of the world’s top courses, so we assume this wasn’t his first rodeo on the Carolina coastline.

To be fair, this case is not a situation in which the golfer attempted to retrieve his ball from the brackish water. The gator actually emerged from the water to initiate the attack. Nonetheless, Wiencek could have assumed the risk of an alligator encounter by going near the water. Admittedly, we here at Abnormal Use have the benefit of living in South Carolina. With that comes the knowledge of the local rule that any ball hit near the water garners a free drop in the fairway.

Digital Etiquette v. Documenting The File

Here at Abnormal Use, we are all about online culture. Accordingly, we must comment upon a recent New York Times blog post by Nick Bilton entitled “Disruptions:  Digital Era Redefining Etiquette.”  Brought to our attention by a Twitter user, the article posits that the “worst offenders of all” are “those who leave a voicemail message and then email to tell you they left a voicemail message.” It’s true that few still listen to voicemail messages.  This trend likely frustrates many parents leaving messages for their children (as Bilton notes).

However, in litigation, it may actually be advisable to send a follow-up email after leaving someone a voicemail, particularly if that person is, intentionally or otherwise, making themselves overly difficult to reach. There are those with whom a lawyer must communicate on a case who do not often wish to return calls.  Perhaps it is an opponent who has failed to timely respond to discovery responses.  Perhaps it is a third party whose documents you have subpoenaed.  Perhaps it is a witness who is reluctant to appear for a deposition.  Perhaps it is an opposing counsel who simply has other priorities than the case at issue. Whatever the case, simply leaving voicemails, inevitably lost in the void, does not preserve one’s ability to argue later that one attempted to communicate with an individual.  Assume that one must later rely upon evidence that one attempted to reach out and communicate with such a person, whether it be in a motion to compel or otherwise.  Oftentimes, memorializing the fact that one left a message, particularly if it was ultimately unreturned, creates a record both of attempts to communicate and the recipient’s failure to respond.

Further, you may not initially suspect when you may need to later rely upon such evidence.  Occasionally, unforeseen issues surface, and you, the litigator, will be pleased that you created such a record of communications and attempts which you can later rely upon.

So there.

(Hat tip: Garance Franke-Ruta).