Friday Links

Behold, dear readers, the cover of Web of Spider-Man #126, published back in those wonderful days of 1995. The issue is dedicated to “The Trial of Peter Parker,” and of course, we know that Mr. Parker is Spider-Man’s alter ego. So what did he do? We were kinda curious, so we Googled the usual places, and we turned up nothing. However, additional diligence directed us to the SpiderFan website (not a law blog!), which offers this summary of the plot:

Peter was imprisoned awaiting trial for full multiple murders in Utah on the basis of fingerprint evidence. He didn’t do it and his clone Ben Reilly has swapped places with him so Peter can be with his pregnant wife, Mary-Jane. MJ has been told that there could be a problem with the baby she’s carrying due to Peter’s infected blood. Judas Traveller has been revealed as some sort of mysterious, well traveller, who is hundreds of years old and is searching for the true meaning of evil and good. Peter saved his life after he had played with the time continuum. A new Green Goblin has appeared – and seems to be a good guy – and the mysterious character of Kaine is still over-looking the events in Peter’s life. Also, the Jackal has yet another Peter clone.

So there we have it.

How could we ignore an article called “21 Weird Music Lawsuits“?

Whoa! Insane Clown Posse has sued the Justice Department and the F.B.I.! Can you imagine this lawsuit? Here’s more from Kevin Underhill at the very funny and award winning Lowering The Bar law blog.

Um, we think that there may be an occupation missing from this list of most stressful professions. How can lawyers not be included on that list? (Hat Tip: Kim Lawson).

Apparently, we didn’t realize that last month was PACER’s 25th birthday. Let’s all celebrate (if we can remember our PACER passwords).

The South Carolina Supreme Court has expanded its business court program statewide.

What Year is It? Blackberry Sues Ryan Seacrest’s Tech Outfit

Let’s imagine, the year is 2007 and you are Research In Motion Limited, maker of the BlackBerry. Some computer company has just announced a new touchscreen phone.  As my father now denies saying, the iPhone is not made for the business world.  Don’t panic, you have at least three more years of dominance over the iPhone. But due to a myriad of reasons, not the least of which was the failure that is the BlackBerry Storm, your days are numbered.  By 2011, you are restructuring and laying off employees.  In 2013, you release the Q10 and change your corporate name to BlackBerry Limited, but also announce that you are open for purchase and have signed a letter of intent to sell. And in the mind of this author, who moderately follows tech news and admittedly never owned a BlackBerry, you are kaput. So imagine this author’s shock when he reads that on January 4, 2014, BlackBerry filed suit against Ryan Seacrest’s tech company, Typo Products, LLC in federal court in California.  BlackBerry claims that Typo’s external case for the iPhone 5 and 5s infringes upon its patents and designs used in the Q10.  BlackBerry alleges that Typo “blatantly copied BlackBerry’s keyboard.”  BlackBerry’s chief legal officer stated: “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”  Typo stated that it intends to defend against BlackBerry’s claims. Perhaps this move by BlackBerry is an attempt to return to the glory years of the early 2000’s, when BlackBerry was constantly involved in patent litigation.  In fact, BlackBerry is nearly as familiar with patent litigation as it is with making cell phones.  Since 2000, BlackBerry been involved in patent litigation with Glenayre Electronics, Good Technology, Handspring, NTP, Xerox, Visto, Motorola, Eatoni, and Mformation.

Whatever the outcome, this lawsuit brings back a wave of nostalgia.  I can only hope that Jordin Sparks and Paula Abdul will be called to testify. We’d like to see those depositions.

Bigfoot Body Going on Tour

Our New Year’s resolution here at Abnormal Use was to pen no more posts about the creature known as “Bigfoot.” In the past year, we wrote about Bigfoot on a couple of occasions. (You can revisit those posts here and here). Because the Sasquatch has little to do with the law or litigation, those posts probably occupied too much space in the legal blogosphere. So, this year, we say no more posts about the fantastical. Of course, if someone REALLY did find a Bigfoot, then who knows? Resolutions are meant to be broken.

Several weeks into 2014, all bets are now off. According to a report from The Huffington Post, famed hunter Rick Dyer has killed a Bigfoot, and now he is taking it on tour! Back in September 2012, Dyer claims that he lured a Sasquatch to his San Antonio-area campsite by nailing some pork ribs he purchased at a nearby Wal-Mart to a tree. When Bigfoot came to dine on the Wal-Mart pork, Dyer shot it and transported the body to an undisclosed location. The body has allegedly undergone DNA and 3D optical testing. Now, Dyer is prepared to take the body to a city near you.

As much as we hope Dyer’s claims are valid, we have a few questions. For starters, who knew Bigfoot lived in the heart of Texas? That certainly explains why all those years of searching for Sasquatch in the Pacific Northwest and the mountains of Appalachia were fruitless. Second, can we see the results of the diagnostic testing before we fork out money to see the body? Carnival attractions are no longer in season. Lastly, how does one kill a creature as sought after as a Bigfoot and not talk about it for a year? This is like winning the Powerball jackpot and holding onto the winning ticket for a rainy day. We really want to believe, but this doesn’t add up.

As The Huffington Post report notes, Dyer doesn’t have the best track record for Bigfoot claims. In 2008, he apparently tried to pass off a rubber ape suit as a Bigfoot body. This time, however, he is serious. And, apparently wants us to set a new record for breaking New Year’s resolutions.

NFL Forces Man To Buy Super Bowl Tickets, Litigation Ensues

On January 6, 2014, New Jersey citizen Josh Finkelman sued the NFL in federal court after he paid $4,000.00 for two tickets to the Super Bowl.  I can only speculate how the Super Bowl Ticket Litigation began.  Here’s my guess:

Mrs. Finkelman:  You spent how much on Super Bowl tickets?  We could go on a nice family vacation to Miami or Myrtle Beach for $4,000.00, and you spent it all on some stupid football game that you want to go to with your idiot friends!

Mr. Finkelman: [initially debating whether to pull the fire alarm or jump out of a window, but finally comes up with a brilliant excuse] Honey, it wasn’t me.  The NFL made me do it. Then they made the tickets more expensive than they should be.   It’s criminal really.  I think I’m going to file a lawsuit!

Mrs. Finkelman:  [rolling eyes and trying to remember the number for the divorce attorney from TV] Okay, you do that.  You file a lawsuit.

Of course, the above is merely speculation.  However, my hypothetical explanation is less far-fetched than Mr. Finkelman’s theory of liability against the NFL. Mr. Finkelman believes that he was forced to pay $4,000.00 for two Super Bowl tickets because the NFL offered 4 percent less tickets to the general public than it should have.  That is, New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.  Interesting theory. Maybe there’s something to this, maybe there isn’t, but here are my initial thoughts:

Super Bowl tickets are expensive.  Everyone expects them to be expensive, and everyone knows that most people cannot afford to go to the Super Bowl.  It is the most prestigious sporting event in the United States.  It should not surprise anyone when tickets to the Super Bowl go for $2,000.00 per ticket.  Frankly, I would not be surprised if Super Bowl tickets were $40,000.00 per ticket. Also, how did the NFL force Mr. Finkelman to buy Super Bowl tickets from scalpers?  This is America.  If you don’t like the price, don’t buy the tickets.  Watch the game on your couch like everyone else.  The commercials are the best part of the game anyway.  I would argue that the NFL tried to discourage people from buying tickets by having the game in East Rutherford, New Jersey in February. Perhaps Mr. Finkelman is a fan of an AFC team and got a bad case of buyer’s regret when he realized that the Panthers are a lock to win the Super Bowl this year.

(Hat Tip: Reason).

Book Review: Robert Blecker’s The Death of Punishment

Recently, we here at Abnormal Use were invited to review The Death of Punishment, a new book by Professor Robert Blecker of New York Law School that deals with the philosophy of punishment in the American criminal justice system. We were somewhat surprised by this opportunity because, as our reading faithful know, our humble blog typically reports on civil product liability cases, which is a substantial part of our bread-and-butter at Gallivan, White & Boyd, P.A. We usually aren’t involved in the criminal side of the bar, except on those all-too-frequent occasions when our editor in chief tries to supplement his income by making bootleg copies of major motion pictures. In any event, we were intrigued by the concept of Professor Blecker’s book and flattered by the request.

First, a note about the author. Professor Blecker has taught criminal and constitutional law courses at New York Law School for more than 35 years. He identifies himself as a retributionist, which – admittedly – is a term I had to look up. Generally, a retributionist believes that society’s primary response to crime should be a proportionate punishment experience. To say it another way, when fashioning a criminal sentence, society should not be as concerned with rehabilitating the criminal, or with deterring other, future crimes, as it should be with imposing punishment against the criminal in an amount commensurate with his offense.

Professor Blecker is probably best known for his reputation as an outspoken advocate for the death penalty. But to be clear, The Death of Punishment is not about capital punishment—at least not exclusively. Instead, The Death of Punishment is an explanation of Professor Blecker’s philosophy on how society should incarcerate the “worst of the worst”—the individuals whose crimes are so morally reprehensible that they deserve a unique punishment experience. So, what’s wrong with how we’re incarcerating prisoners now? In contemporary thought, there are three central objectives of incarceration: (1) punishment of the criminal; (2) deterrence for the criminal and others for committing other, future crimes; and (3) rehabilitation of the inmate for re-introduction into society. After spending years in prisons around the United States meeting with inmates, learning about their crimes, their thoughts on justice, and their individual experiences during incarceration, Professor Blecker has concluded that none of these are being met. To begin with, rehabilitation and re-socialization are largely mythical. Professor Blecker briefly explores the challenges that inmates face upon their release. Job prospects are dim, and very often, inmates do not have positive support networks to facilitate their transition into ordinary, lawful life. Consequently, former inmates very often fall back into criminal behavior and end up not in rehabilitation, but in re-incarceration. To paraphrase one inmate quoted extensively in The Death of Punishment, twenty-five years of rehabilitation is forgotten after twenty-five days on the outside.

Deterrence is also largely an illusion. Many of the individuals who populate our prison system were born into an environment where criminal behavior was just behavior; this is simply how you were taught to act. Consequently, individuals are raised in circumstances where the threat of incarceration was just the cost of doing business. Prison isn’t really a threat; it’s just an opportunity cost. Furthermore, in Professor Blecker’s experience, life inside prison was no worse than life on the outside; all too often, it was better. On several occasions, Professor Blecker met with inmates who confessed to committing crimes in order to return to prison. In some cases, the subsequent crimes were more serious so that the offender could get a longer prison sentence in facilities that offered more privileges to its inmates.

Professor Blecker also concludes that punishment is an illusion. It is not sufficient to presume that incarceration in and of itself is punitive. It may be, if you have something to lose on the outside. But if life inside is no different than—if not better than—life outside, then time spent in prison is not really lost and it’s not really punishment. At least in prison, inmates have nutritious food, shelter, medical care, diverse recreational opportunities, and other privileges. These are things that America’s unincarcerated poor struggle with obtaining; things which inmates struggled with obtaining before they were incarcerated.

In sum, Professor Blecker concludes that the American prison system is failing at administering justice. Crimes are not being addressed with incarceration that provides a truly punitive experience, particularly for inmates who are convicted of committing the worst of the worst types of crimes.

What is Professor Blecker’s solution? The criminal justice system should create a separate institutional structure for the worst of the worst; that is, those individuals who commit the most morally outrageous crimes and who will never be capable of re-socialization. For these inmates, rehabilitation is irrelevant. Additionally, because of the morally outrageous nature of their offenses, they should be incarcerated in an environment that provides a uniquely punitive prison experience—permanent punitive segregation. Here, there would be only limited physical contact with other individuals; no television; no internet access; and no recreation. There would be hard labor. For food, only a bland nutrient-rich loaf would be available, just enough to sustain the inmate’s health but lacking any flavor from which the inmate could derive pleasure. For medical care, the inmate would receive only as much as the poorest members of our society routinely do. If this sounds harsh, Professor Blecker intends it to. Because these inmates—the worst of the worst—have deprived other individuals, their victims, of their lives and their opportunities to enjoy life’s simple pleasures, these offenders must be punished to the same extent. In fact, Professor Blecker would say that society has a moral obligation to do so. Anything less deprives justice from being served.

Now here’s the minor tie-in with product liability. Professor Blecker argues that the worst of the worst do not consist solely of those who commit violent crimes. It could also describe white-collar executives who make morally outrageous business decisions that harm others. For example, the Ford executives who green-lighted the Pinto knowing that there was a significant risk of fire presented by the gas tank’s design. In Professor Blecker’s opinion, the color of the collar on your shirt is irrelevant. There is no principled moral distinction between the manufacturing executive who knowingly authorizes the distribution of an inherently dangerous product capable of causing consumers’ disfigurement and death and the common thug who fires a weapon into a crowd of innocent by-standers. Justice demands that each be punished based on their offenses against common morality.

Where does the death penalty fit into all this? Although Professor Blecker is an advocate for capital punishment, he does not take the position that death can only be atoned with death. Not everyone that commits a murder, even if premeditated, should qualify for the death penalty. Capital punishment must be reserved explicitly for those who kill in connection with sufficiently aggravating circumstances as to justify the imposition of the harshest sentence available to civilized mankind. Professor Blecker’s philosophy is rooted in the belief that life – an individual’s life – has incalculable value. And if that life is terminated by another’s morally indefensible conduct, then society has a moral imperative to punish the offender with death. Not because society doesn’t value life; but because society values life so much that it must take the lives of those who don’t exist in the same moral universe. For everyone else, Professor Blecker argues, permanent punitive segregation is enough.

So what did you think of the book? I enjoyed it. While I appreciated Professor Blecker’s philosophy of criminal punishment, the parts I liked the most – and which I believe make The Death of Punishment appealing to a wider audience – are the sections recounting the conversations that Professor Blecker had with inmates. All too often, people talk about inmates, punishment, and justice as abstractions, as if they don’t really exist. The Death of Punishment breaks this mold by presenting specific discussions about punishment and justice as understood by inmates who have been sentenced by our justice system, have experience with “punishment,” and are serving out their periods of incarceration. These conversations provide insight into a world that is absolutely foreign to most – certainly to me. Particularly noteworthy are Professor Blecker’s conversations with convicted murderers awaiting the execution of their death sentences. In a strange twist, at times, Professor Blecker becomes the law student of the death row inmate, sparring in an intellectual game of cat-and-mouse about the philosophy and justice of capital punishment with the very individuals whose fate is death by state execution. Perhaps the most compelling take-away from The Death of Punishment was the sense of humanity I felt for the death-row inmates, people who I and society routinely condemn as the worst of the worst and not worthy of further consideration. Professor Blecker demonstrates that these people, maybe more than most, have a story to tell – a story that’s worth listening to, even though the storyline ends with the main character’s execution, as it justly may. I recommend The Death of Punishment to anyone who would appreciate thoughtful discussion of the philosophy of punishment, particularly from the perspective of the “worst of the worst,” in the American criminal justice system.

Friday Links

“How Gangland’s Sinister Disc Jockey Was Trapped!” proclaims the cover of Mr. District Attorney #2, published way, way back in 1948. Our question: Um, why is the district attorney pursuing disc jockeys? And why does Gangland need one? Is this some kind of payola thing?

The Hollywood Reporter has run a pretty interesting interview with the Motion Picture Association of America’s outside counsel. See here.

Don’t forget! The new Bruce Springsteen album comes out next week! (Hat Tip: Ultimate Classic Rock).

We will miss Phil Everly.

Congratulations to our own Steve Buckingham, who recently became a partner at the firm. He was a blogger at this site for quite some time before retiring almost a year ago to the day. You can revisit his farewell column here.

Well, next month, the North Carolina Bar Association is putting on a CLE entitled “Guns and Roses.” No, it’s not about Axl Rose (although that would present a host of legal issues). For more, see here.

FYI: Last week, the South Carolina Supreme Court published its annual order on Interest Rate on Money Decrees and Judgments. For the full order, please see here.

Headline of the week: “Bradley Cooper, Liam Neeson Settle Lawsuit Over Use of ‘A-Team’ Images.” You would think any lawsuit arising from the recent A-Team film would be one challenging its quality. Oh, well.

You’ve probably read – or at least heard of – law student blogs. We here at Abnormal Use peruse them occasionally to remind us of our lost youth. One of our favorites was So The Bear Says, a blog written by a Baylor Law School student back in the day.  In fact, if you revisit that student’s blog, you’ll learn that ten years ago this week he first became a registered law student. We hope someone is reviewing our posts at this site ten years from now.

Hurricane Verdict In California Breach Of Contract Case

The first question you probably have is, “What is a ‘hurricane verdict?'”  It is possible that we here at Abnormal Use are coining a term because a quick search on the Interwebs yields no references to this new phrase.  In any event, a hurricane verdict is a verdict which is both a windfall to the plaintiffs and a rainfall in that it creates a slippery slope.  I got pretty lost in the series of remittiturs and offsets, so it is unclear how big the verdict in Asahi Kasei Pharma v. Actelion Ltd. actually was, but it appears that the verdict awarded by the California jury totaled roughly $500 million.

You probably have a lot of questions.

For starters, you are probably wondering whether a hurricane is called a typhoon or a cyclone on the Pacific coast.  As it turns out, in order to be considered a typhoon, the storm must form west of the international dateline. Your next question is probably about the case.  In a nutshell, Asahi, a Japanese pharmaceutical company, contracted with a U.S. company, CoTherix, to sell its product in the U.S.  As part of the contract, CoTherix was required to perform all necessary pre-sale regulatory and other work. Actelion, a Swiss company, had a competitor drug on the market in the U.S., which accounted for almost all of its U.S. sales.  Allegedly, fearing the effects of competition, Actelion purchased CoTherix solely for the purpose of preventing the sale of Asahi’s drug on the U.S. market.  Actelion’s acquisition of CoTherix was successful, and CoTherix backed out of the agreement with Asahi.  As it often does, litigation ensued.

It appears that this $500 million verdict, which included lost profits for a drug that never made it to market, would qualify as a windfall, or “an unexpected, unearned, or sudden gain or advantage.”  That is just my initial reaction.  Those of us who have waded into the waters of proving/disproving and/or calculating consequential damages know that it is complicated and tedious. I do not have the time to devote to unravelling the specifics of the consequentials in the Asahi case for this post.  The bottom line, though, is that after subtracting litigation costs, Asahi ended with hundreds of millions in revenues for a product that it never had to put on the shelf.  Of course, Asahi went to great lengths to prove that these numbers were not speculative.  It was able to show that the drug had already been approved in China and Japan, and that is was a good drug in those markets, among other things.  Notwithstanding, as a practical matter, Asahi never had to face the risks involved with selling the drug in the U.S.  It never had to worry about suits against it based on side effects of the drug.  It never had to spend money to market the drug.  Apart from the courtroom, Asahi never had to actually compete with Actelion’s drug, which already had a foothold on the U.S. market.

The rainfall portion of the hurricane verdict is more problematic than the windfall component.  As always, the case had its nuances, but essentially, the basis for liability against Actelion was that it intentionally interfered with the contract between CoTherix and Asahi by buying CoTherix and directing it to breach.   In other words, even though CoTherix was a wholly-owned subsidiary of Actelion at the time of the breach, Actelion was treated as a third-party – a stranger to the contract in this case.  This is important because the difference between breaching the contract and interfering with the contract was essentially a $400 million difference.  How did I determine that?  Asahi pursued ICC arbitration against CoTherix, the company that actually breached the contract, and was awarded just shy of $100 million.  The verdict against Actelion, based on the interference with the contract, was around $500 million, and there were no remaining claims against CoTherix when the case went to trial. So there are several layers to Asahi’s rake.  CoTherix’s actual breach of the contract was worth $100 million. Actelion’s interference with the contract was worth $400 million (after the CoTherix offset).  And there is yet another layer that is perhaps the most disturbing aspect of the verdict.  While there were no punitive damages awarded against Actelion, there were roughly $30 million in punitives awarded against three Actelion executives who allegedly directed the interference with the contract.

The result in this case does not add up.  The civil conspiracy theory of liability (that all of the defendants conspired to harm Asahi) was dismissed before trial, so the jury did not find that executives of CoTherix, and Actelion were in cahoots.  Yet both organizations and all three executives were all found liable for essentially the same act.  The antitrust allegations did not make it to trial, either.  The sole theory of liability was that Actelion purchased a controlling interest in CoTherix such that CoTherix no longer made its own decisions, and that it did so in order to direct CoTherix to induce the breach.

This result sets precedent for three distinct theories of liability based essentially on a single breach by a single organization – 1) the subsidiary with no control over its decisions is liable for the actual breach; 2) the parent company is liable as a nonparty for inducing the subsidiary to breach; and 3) the executives who made the decision to induce the breach are even more liable (such that punitives are warranted) for making the decision to induce the breach.  Piercing the corporate veil understates what occurred here.  Asahi was able to fire a bunker busting bomb that went through CoTherix, through Actelion, and exploded in the executive wing of Actelion. Additionally, one could argue that this decision sets the dangerous precedent that companies cannot purchase competitor companies without giving rise to liability.  Actelion had a duty to its stockholders to maximize profit.  Had CoTherix performed on the contract, and had the competitor drug been successful, Asahi would have been able to consume an indeterminate amount of Actelion’s market share.  Had Actelion not purchased CoTherix when it was possible to do so, it would have resulted in an indeterminate amount of market share loss.  Thus, arguably Actelion could have been liable to its shareholders for not purchasing CoTherix and inducing the breach.

So it appears that the real theory of liability is negligent purchase of a competitor, which Actelion was arguably compelled to do in the course of business.  The verdict and decision are arguably an unfair restriction on free markets and the capitalist system in general.

Online Dating Site Targeted for Alienation of Affection

Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like,, and, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

Fourth Circuit Finds Jury Can Speculate About Negligent Cleaning

If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.

At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:

When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.

The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.

Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.

[Hat Tip: Libation Law Blog]

Abnormal Use Wins ABA Journal’s Blawg 100 Popular Vote For Torts Blogs

Well, as we previously reported last November, the editors of the ABA Journal recently named Abnormal Use to its Blawg 100 – the top legal blogs in the country – for the four year in a row. Well, as they do each year, the ABA Journal then asked its readers to vote for their favorite blogs in certain categories, and we had some fierce competition in the Torts bracket. We learned late last week that we had once again won the popular vote and became the readers’ favorite Torts blog.

The ABA Journal‘s official announcement can be found here, and in relevant part, it reads:

ABA Journal editors picked their favorite 100 law blogs of 2013 and then opened up the polls for some friendly competition. After some 4,000 readers weighed in, the winners and proud owners of bragging rights in each category are:


Abnormal Use

If you’re suing because your yoga pants are see-through, or because hoisting up the back end of a running snowmobile left you short one leg, chances are your case could end up analyzed by the bloggers at Abnormal Use. Strictly speaking, Abnormal Use is a product-liability blog, but the writers are also interested in technology issues like social media discovery. Be sure to stop in for their “Friday Links” column, a roundup of offbeat and quirky legal news blurbs.

We do like us some offbeat and quirky legal news here, don’t we?

Thanks again to everyone who supported us and voted for us in the contest! We look forward to bringing you another year of commentary.