Friday Links

Rest in peace, Harold Ramis, the famed comedian, Ghostbuster, and director of Groundhog Day, one of our favorite, favorite films. Above, you’ll find the cover of The Real Ghostbusters #180, published way, way back in the halcyon days of 1991. Pictured prominently on the cover is Dr. Egon Spengler, the character immortalized by Ramis in the film. (Note: The character of Spengler has his own Wikipedia entry, which you can read here.). Like many in our generation, we first encountered Ramis in Ghostbusters, one of the biggest films of 1984. Those were the days. But it was 1993’s Groundhog Day that was his masterpiece. Has any comedy ever captured the existential dilemmas of life so well? We think not.

Friend of the blog and Georgia lawyer Michael Scaljon put it this way:

Whether as a writer, director or actor, Harold Ramis touched many people’s lives with a sense of humor that was both subversive and sweet for over three decades.  There aren’t many comedians, comedic actors or writers with a success rate quite like his.  That’s the most amazing thing, not that he was funny, but that he was really funny for a really long time, and without ego.  His passing sucks.

Indeed. For another good Egon related comic book cover, please see here.

Friend of the blog Jill Wieber Lens, a law professor at Baylor University, has published a new article on products liability issues.  Specifically, the article discusses the post-sale duty to warn and how the version of same that most states have adopted is likely a burden to small businesses.  If you’re interested, please take a look here. You might recall that we have interviewed Professor Lens not once but twice, first here in December 2010 and again here in September 2013.

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Missouri Woman’s Lawsuit Seeks Resurrection Following Deadly Credit Inquiry

Popular culture has seen its share of humans posthumously becoming re-animated and attempting to perform various activities.   We have seen the dead vote in elections, stagger around in search of human flesh, and participate in hilarious party weekends.  Just when we thought we had seen it all, Kimberly Haman proves that the dead can file lawsuits. That’s right, Ms. Haman has filed suit in the United States District Court for the Eastern District of Missouri against Equifax and the Heartland Bank for, among other things, violating the Fair Credit Reporting Act (“FCRA”) by wrongfully killing her.  Apparently, Ms. Haman went to Heartland Bank in order to be added to her parents’ joint bank account.  In connection therewith, the bank required Ms. Haman to submit to a credit inquiry.  Much to Ms. Haman’s dismay, the consequences of this seemingly innocent inquiry into her creditworthiness would be deadly. That is, Ms. Haman alleges that in the process of performing the credit inquiry, the bank informed Equifax that Ms. Haman was deceased, and this somehow became part of Ms. Haman’s credit report.  According to Ms. Haman, she is, in fact, not deceased.

As you might imagine, lenders are less confident that an individual will be able to repay his or debts if that individual is deceased.  According to Ms. Haman, this mistake caused her to be denied credit cards and mortgage refinancing, among other financial woes.  The mistake was not remedied by the defendants despite repeated assurances that the error would be corrected.

This is an interesting case.  All we have at this point is the complaint, so the factual allegations have not been truly tested.  Those of us who have applied for any form of financing can sympathize with Ms. Haman.  At least one jury sympathized with an Oregon woman who alleged that Equifax ruined her credit score, awarding her over $18 million.  On the other side of the coin, we can also sympathize with the employee(s) of the defendant(s) who may have made an innocent clerical mistake that resulted in litigation.  The truth is likely somewhere in the middle as it often is.  It will be interesting to see how this case plays out.

(Hat tip: Courtside).

Women Injured in Stage-Diving Accident Wins $1.4 Million Dollars

According to the lead singer of Fishbone, Angelo “Dr. Madd Vibe” Moore (age 48) “[p]eople want to be on the edge when they go to a Fishbone show.”  Fishbone is an alt rock band formed in 1979, which plays a fusion of ska, punk rock, funk, hard rock, and soul. Nothing screams edgy like a 48-year-old vocalist and saxophonist nicknamed Dr. Madd Vibe hurtling himself into the crowd.   Fishbone doesn’t want to detract from the show’s theatrics and therefore does not issue warnings about its act. Well, those theatrics have cost Fishbone and Dr. Madd Vibe $1.1 million in compensatory damages and $250,000 in punitive. In 2010, Kimberly Myers was attending a Fishbone show put on by WXPN, a Philadelphia radio show, when Moore dived off the stage, colliding with Myer, knocking her to the ground, where she lost consciousness. But the show must go on, and Fishbone continued to perform as though nothing had happened.  As a result of the incident, Myers broke her skull and collarbone.  She now claims to suffer from memory problems, shoulder pain, and autoimmune problems that led to lupus. Apparently, Fishbone has been stage-diving for two decades and has been sued at least one other time for stage-diving related incidents.  According to Moore’s testimony, an ambulance is called to their venues once every couple of months.  Edgy. Apparently, the argument about stage-diving continues.  In 2013, the Ocean Collective and the Summer Slaughter Tour took shots at each other on Facebook.  The Ocean Collective was touring on the Summer Slaughter Tour.  The Ocean Collective lamented the “stupid ‘no jumping into the crowd’ rules” were boring them and told fans “if you are worried about ruining your make up, don’t be in the first row.”  Ash Avildsen, founder of the Summer Slaughter Tour, appropriately responded; including “[j]umping off things at venue doesn’t make you extreme, it makes you dangerous.”

Electronic Shelf-Life: Technologically Short or Manufacturer Conspiracy?

Here at Abnormal Use, we love electronics more than a pitcher of water at a chili pepper eating contest. That being said, there is nothing we hate more than learning our brand new electronics are outdated just a few short months after we open the box. How can we be expected to cope with an iPhone 5, knowing that others are using an iPhone 5s? It’s unfathomable. Nonetheless, we would never want to stand in the way of progress. Companies shouldn’t stop developing new technology – just slow down a bit after we purchase new things. But what if companies are intentionally selling obsolete products? That’s just what has been alleged in a new lawsuit.

Top Class Actions reports that a Wisconsin resident filed a class action against LG Electronics alleging that the company’s Blu-ray disc players were packaged with software that expired after a certain date, leaving the players unable to play discs released after the player’s purchase date. The complaint alleges that LG, Hitachi-LG Data Storage, and had a “planned obsolescence scheme,” conspiring to make the software obsolete. The Complaint states:

By bundling obsolete software with their [Blu-ray disc] players, defendants forced consumers to buy software upgrades, or to pay money or search for alternative software, and to incur installation hassle, computer damages, and other losses, in order to make reasonable use of the purchase.

By filing suit, the man seeks to represent all consumers nationwide who purchased LG, LGUS, and/or HLDS Blu-ray disc players bundled with discontinued CyberLink software from Feb. 8, 2008 to the present.

This type of suit is nothing new. We previously wrote about a similar suit against Apple regarding the power button on the iPhone 4. If there really is some “conspiracy of obsolescence,” then maybe this suit has legs. Without knowing all the facts, our hunch is that this is another case of technology advancing faster than the shelf-life of electronics. Unfortunately, much software and electronic devices are “obsolete” the moment they hit the shelves. Perhaps, LG can do more in the way of post-purchase software upgrades. However, based on the pleadings, it doesn’t appear that would completely satisfy the proposed class.

Again, we understand the frustration. We also understand, however, that all products age out eventually. Unfortunately, electronics are just ahead of the curve.

The suit is captioned Martin v. LG Electronics USA, Inc., et al., No. 3:15-cv-00083 (W.D. Wi. Feb. 8, 2014).

Apple Gets Siri Lawsuit Dismissed

One of Apple’s big selling points has long been that their products “just work.”  Most Apple users would likely confirm that the claim is true, at least for the most part.  However, one group of Apple customers was apparently not so satisfied with Apple’s voice recognition software, known as Siri, and filed a consumer protection lawsuit in 2012.  That  lawsuit (In Re iPhone 4S Consumer Litigation, 12-cv-1127, U.S. District Court, Northern District of California (San Francisco)) was recently dismissed. The plaintiffs claimed that Siri didn’t work as advertised. Specifically, they alleged that sometimes Siri didn’t understand their requests, required long wait times, or responded with the wrong answer.  Apple didn’t exactly put up a strong defense of Siri’s functionality by arguing that the plaintiffs could have simply returned their phones if they were dissatisfied.   Even assuming the complaints about Siri are true, does that mean the plaintiff’s are entitled to recover?  Not even close.

In February, U.S. District Court Judge Claudia Wilken dismissed the plaintiff’s claims, calling them “non-actionable puffery” and ruling that the plaintiffs had failed to show adequate evidence of any fraud in Apple’s part.  She also noted that Apple made no promise that Siri would operate without fail and that a reasonable consumer would understand that the commercials depicting the products they are intended to promote would be unlikely to depict failed attempts.

Thankfully, the judge used common sense in this case, which will hopefully help avoid a line of case law requiring advertisements to depict dropped calls, broken down cars,  malfunctioning computers, et cetera.

We reached out to Siri for a comment and she replied:

I’m really sorry, but I can’t take any requests right now. Please try again in a little while.


(Editor’s Note: Since we’re talking about Siri, please feel feel to revisit our April 2012 post entitled “Deposing Siri.”).

Friday Links

Above, you’ll find the cover of Batman Annual #1, published not so long ago in 2012. “Featuring The Torment Of Mr. Freeze!” the cover proclaims, and after last week’s snowpacalypse, we can relate. Sure, our neighbors to the North can chuckle about our inability in the Carolinas to cope with frozen inclement weather. But we’re not used to such things. Cut us some slack!

Our friend Kevin Underhill of the Lowering The Bar blog has been chronicling the tale of Kayla Finley, a South Carolina citizen who was arrested recently for allegedly failing to return her rented copy of Monster in Law to her local video store . The interesting point: The arrest occurred in 2014, the alleged offense occurred nine years before in 2005. (Cue your favorite VHS joke.). Well, Kevin is continuing to chronicle the saga of this ordeal, so please see his posts here, here, and here for more information. And remember, be kind and rewin.

If you practice in Charlotte, Mecklenburg County, North Carolina, you might be interested in this bit of news from the local bar:

As of the term beginning March 3, 2014, the weekly clean up calendar for Mecklenburg County District Civil Court 6330 will move from 10:30 am on Mondays to 2 pm on Fridays.  The clean up calendar will be conducted in courtroom 6330 by the Trial Court Administrator’s Office, without a judge presiding.

There’s more news from Charlotte. According to The Charlotte Observer, Charlotte may be getting Google Fiber. Way, way back in March of 2010, we wrote about Greenville, South Carolina’s attempt to woo Google to bring Google Fiber to that city. To revisit that story, and see the amazing photographs of the accompanying publicity stunt, please see here and here.

We must confess that we have been negligent of late in failing to link the Drug and Device Law blog’s Steve McConnell’s wonderful post about The Beatles and the Sixth Circuit. Just go to that post now and enjoy it; it is full of Beatles references and song titles. He even managed to throw “Helter Skelter” in there!

Rest in peace, Devo guitarist Bob Casale.

Let the Games Begin! Canadian Olympic Committee Sues The North Face

The Canadian Olympic Committee (COC) is none too happy about The North Face’s design and marketing choices for some recently released apparel, which it believes is an attempt to mislead people into thinking the company is an official sponsor of the 2014 Winter Olympic Games.  The COC has filed suit in a Canadian Court alleging that the apparel and the marketing surrounding it violate numerous Olympic trademarks.  The dispute is over The North Face’s clothing line originally dubbed its “2014 Village Wear Collection,” which used the marks “RU/14,” and “2.7.14” (the date of the open ceremonies).  The designs also prominently feature national flags and the items were allegedly identified in marketing materials with names such as “Men’s Sochi Full Zip Hoodie.”  Here is an example of one of the items from the collection. The COC claims that the words, images, and symbols were used by The North Face in a way that was “deliberately designed and calculated to mislead and confuse the public into believing [The North Face] is an official sponsor [of the 2014 Winter Olympics].  The North Face has renamed the line the “International Collection” in response to complaints by the COC but apparently has not changed any of the designs and has refused to stop selling the products. The COC is seeking damages in an unspecified amount, as well as an injunction prohibiting the further sale of the products.

The North Face has released a statement on the matter denying liability.  The director of brand communications said in the statement:

The North Face has been a longstanding supporter of the free-skiing movement but we are not an official sponsor of the Canadian Olympic Committee or Team Canada and never indicated that we were.  We do not agree with the COC’s claims and are disappointed that they have taken this action.”

This whole lawsuit is not that surprising given that the Olympics have become all about big big money in the past decades and the International Olympic Committee is fiercely protective of its brand.  The Olympic brand has a lot of value associated with it and companies spend oodles of money to become official Olympic sponsors.  Although all of the individual actions of The North Face may have been okay on their own, they may actually be in trouble when you look at the apparel and marketing campaign as a whole.  Perhaps most troubling for The North Face is the fact that it allegedly had a product catalog that stated the product line “captures the international spirit of the Olympic Games.”

Liability for the Snow: Who is Responsible?

Last week, our Gallivan, White & Boyd offices were trapped in the middle of a Southern Snowpocalypse, so we here at Abnormal Use were able to spend a few days enjoying the snow with our families.  We partook in the customary activities of sledding, building snowmen, and throwing snowballs.  We also observed others engaging in not-so-standard activities like pulling kayaks across snow-packed roads with golf carts.  As lawyers, we naturally started thinking about the potential liability for any injuries to said snow kayakers.  Beyond the operator of the golf cart, it is hard to identify any other obvious potential tortfeasors.  But, what about the Homeowners Association?  Could it be held liable for permitting such activities on its roads during the wrath of Mother Nature?  Sounds absurd, we know.  But, what duty should an entity have to warn of the dangers of weather?

Last week, in Fleury v. IntraWest Winter Park Operations, the Colorado Court of Appeals held that a Colorado ski resort was protected from such liability.  According to CBS-Denver, a man was killed by an avalanche while skiing at the Winter Park ski resort back in 2012.  On the morning of the man’s death, the Colorado Avalanche Information Center issues a warning that the chance of avalanche was high due to high winds and heavy snow.   The man’s widow sued IntraWest, the owner and developer of the resort, claiming that the ski area should have been roped off and her husband not allowed to ski due to the warning.  The trial court dimissed the case on the grounds that ski resorts are shielded from liability for accidents caused by avalanches.  The Court of Appeals affirmed, holding that the avalanche was caused by new snowfall, weak and unstable snowpack, and a steep slope – all of which are covered by the state law.

This case is obviously one in which the state legislature had already addressed the issue.  Even if it had not, we believe the result should be the same.  This isn’t a case in which the avalanche was caused by some act of the resort.  The result may be different if the resort was blasting nearby to pave the way for a new hotel. This case is about an act of weather.  Mother Nature plays havoc on us all and is often unpredictable.  We should all appreciate the unpredicatable nature of the weather when we partake in any activity.  The plaintiff in this matter claims that this accident could have been avoided had the resort listened to the Colorado Avalanche Information Center warning and closed off the ski area.  Interestingly, however, those claims are misplaced.  The Information Center only warned of the possibility of avalanches and actually urged skiiers to “enjoy the powder in the safety of the ski area.”

Clearly, a skiier trapped in an avalanche is not comparable to a kayak pulled behind a golf cart.  One involves a standard activity.  The other involves a couple of individuals adding some Southern flare to customary activities.  Nonetheless, Mother Nature treats us all the same.  And, so should the liability.

Man in Portable Toilet Ends Up Quadriplegic; Settles For $5 Million Dollars

No one likes portable toilets; they always seem to be dirty, too hot or too cold, and one strong gust of wind away from falling.  Moreover, they leave you completely defenseless to the terrifying threat of being tipped over. I believe this author’s opinion of portable toilets is identical to the following quote about escalators: “Listen, not a year goes by, not a year, that I don’t hear about some escalator accident involving some [person] which could have easily been avoided had some parent – I don’t care which one – but some parent conditioned him to fear and respect that escalator.” That’s from Mallrats.  Well, if you needed another reason to fear and/or respect portable toilets, we have you covered. As reported by The Daily Mail, while on a fishing trip with two cousins, Douglas Adams III had to answer nature’s call.  After he entered the portable toilet, the cousins decided to play a little prank on Mr. Adams by parking a truck in front of the facility’s door.  During the ensuing banging and shaking, the portable toilet inadvertently tipped over.  As if being covered in what can only be described as the grossest blue cocktail wasn’t bad enough, Mr. Adams landed on his neck, which resulted in several cervical fractures.  He was airlifted to Thomas Jefferson Hospital in Philadelphia for surgery and spent two weeks in the hospital.  Unfortunately, due to his injures, Mr. Adams ended up a quadriplegic.

Mr. Adams and his wife sued the cousins, the installer, and Poly-San, the manufacturer, for his injures.  The cousins obviously were sued for tipping over toilet.  The installer was sued for installing the toilet on a hill and propping the unit up with wood.  The manufacturer allegedly did not provide spikes to secure the unit, even though the base of the unit had holes for spikes.  According to the report, Mr. Adams settled the lawsuit for $5 million dollars. While we recognize the need for such facilities, this case should serve as yet another warning for people everywhere to begin to taking portable toilets as serious as escalators.

President’s Day

Here we are again on Presidents Day (or, as the federal government officially refers to it, Washington’s Birthday).  As we once noted on this festive occasion:

5 U.S.C.A. § 6103(a) sets forth that today, the third Monday in February, is Washington’s Birthday, and thus, a legal public holiday. George Washington was born on February 21, 1732 (although confusingly, under the old calendar in effect at the time of his birth, he was actually born on February 11, 1731). Perhaps that’s an issue that will be litigated someday.

Above, for this special day, you’ll find the cover of George Washington: The Rise of America’s First President #1. Pretty cool, eh?