According to a report from Travel & Leisure, Virgin Australia has found itself on the wrong side of the newest hot coffee lawsuit. The suit, filed in Victoria, Australia, apparently arises out of an incident involving 16-year old Rhett Butler (not of Gone With the Wind fame) while on a Virgin flight from Los Angeles to Sydney in May 2015. Shortly after take-off on the 15-hour flight, Butler’s cup of coffee allegedly fell from his tray table onto his lap, causing burns to his thighs, groin, genitals, and midriff. The flight crew allegedly did not have enough bandages to treat the wounds, so the Butler family was “forced” to use their own. Moreover, the suit alleges that the flight crew only had two ice packs and stopped supplying Butler with water bottles to ensure they had enough for the first class passengers. According to the report, Virgin Australia has confirmed that the incident occurred but offered no further comment.

As is often the case, we assume that many media reports on this incident may jump to inapt comparisons to the infamous Stella Liebeck case. From what little we know about this case, it appears that the two are apples and oranges. What made the Liebeck case so very intriguing from a legal perspective was that Liebeck sought to and was successful in holding McDonald’s liable for serving an “unreasonably dangerous product.” In other words, the jury found McDonald’s liable for serving coffee that it deemed too hot (something about which we’ve written a time or two).  Here, at least according to the information contained in the reports, Butler seeks to hold Virgin Australia liable, not due to the temperature of the coffee, but due to the conditions that caused the spill.  Specifically, Butler alleges that the airplane’s tray table lacked a recess to hold a cup and was defective and pointing down towards the passenger.

We here at Abnormal Use are interested to see how this one plays out. Regardless of the future outcome, we hereby grant the suit a reprieve from our typical criticism of prior hot coffee litigation. And, that’s a good thing. Even for us, there are only so many times we can say, “coffee is meant to be served hot.”

We hope you’re enjoying the Thanksgiving holidays! But, in case you needed a Friday Links fix, we’ve got you covered.

Here’s a pretty interesting article about an overseas jury noticing a 29 second gap in closed circuit television camera footage -after- the case had been given to them. Apparently, neither the prosecution nor the defense lawyers had noticed the gap, causing a good bit of tumult when the members of the jury inquired about the issue during deliberations.

Beware: Facebook’s app may be draining your phone’s battery more than you might expect. Click here for a bit more information on that report.

Just a few weeks until Rogue One is released! Will you be skipping work a bit early that day to see it?

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you and your family have a happy and eventful Thanksgiving. But not too eventful! Kick back and enjoy the time off! Let the billable work wait until Monday (or, if you simply must return to your desk and duties, until Friday). Although we usually present a comic book cover on holidays such as this, we direct your attention today to our official Thanksgiving card above. We hope you enjoy it, and we will see you in turn after the holidays. Don’t forget to watch some football!

Here we are again on the Monday before Thanksgiving. Accordingly, it’s time that we once again direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.” Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades. That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before. That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 106 years after its publication. (That neat illustration above – and many others like it – comes directly from the 106 year old article.). Have a look, and let us know what you think.

We have some news here at Abnormal Use and Gallivan, White, & Boyd, P.A.  We’re very proud of our partners, John E. Cuttino, John T. Lay, Jr., and H. Mills Gallivan, who are currently serving as presidents of DRI, IADC, and FDCC, respectively. All three sitting defense bar presidents, all at one firm. We’re very proud of them, and we wish them the very  best!

Go. See. Arrival. At. The. Theatre. We here at Abnormal Use can’t recommend it enough.

We’re fans of Jeff Richardson, who runs the iPhone J.D. blog. Well, if you updated your iPhone software recently, you might have noticed an annoying new way in which the iPhone’s email organizes your electronic correspondence. Well, if you want to restore your iPhone’s email software to the old way, read Jeff’s article here.

Step 12 – Pace Yourself for a Marathon.

We have now reached the final step in Judge Carl Horn’s 12 Step program for lawyers.  If you have followed steps 1-11, then you are on your way to Step 12: Pacing Yourself for a Marathon. Following the previous steps suggested by Judge Horn will lead to our last goal of a sustainable pace.  In order to pace ourselves for the marathon, we should make it clear that quality of life matters and that while we intend to work hard and pursue excellence professionally, we are not going to sacrifice important relationships and other essential elements of a healthy, balanced life. Professor Dershowitz reminds us that striving for professional excellence is a good and worthy goal.  In sharp and important contrast, trying to achieve perfection is not. Dershowitz observes that “every book, painting, symphony, or speech could be improved. The search for perfection is illusory and has no end.”

Judge Horn closes his 12 step chapter with this encouragement: “Except for the extraordinarily well disciplined, and perhaps the most saintly, these are challenges and issues with which we can expect to struggle for the rest of our lives. But, thankfully, they are not impossible struggles, and if we diligently take these ‘steps’ we can realistically expect to move closer to our goal: finding balanced success and fulfillment in the practice of law.”

Judge Horn then concludes his book with a charge to the jury:

Now, members of the jury, the evidence is in, and it is your turn to deliberate. You have been introduced to the experiences of your fellow lawyers, some happy and some not so happy, and have seen what many are doing to find fulfillment in the practice of law, read more from source here to understand how to make your visit worth the time.. Members of the jury, it is solely up to you to address the issues that have been raised.   Please retire to your own personal and professional “jury rooms” and do your best to reach a unanimous verdict. When you complete your deliberations, you will not be discharged from further service.   Much to the contrary, your service on this jury is for life, or at least as long as you labor in the law. May you find the “wherewithal” to keep any commitments you have made and may we all be busy and happy engaging in what the law is essentially all about:  doing justice.

We hope you have enjoyed our weekly series on 12 Steps Toward Fulfillment in the Practice of Law. Judge Carl Horn wrote this as part of his book, Lawyer Life: Finding a Life and a Higher calling in the Practice of Law, published by the ABA in 2003. Horn’s focus was on the individual choices lawyers can make in their personal and professional lives for better satisfaction in our profession.

According to a recent report from the New York Post, New Yorker Bradley Moss has filed suit in the Manhattan Supreme Court seeking the recovery of a $125,000 engagement ring he gave to his ex-fiancee, Amy Bzura. The plan was for Moss and Bzura to wed back on October 29th, but the wedding was apparently called off at the last minute. No word as to the reason for ending the nuptials. Regardless, Moss is now seeking the return of the ring or its cash value plus interest as well as punitive damages. Lawsuits arising out of the predicament of the cancelled wedding engagement ring are nothing new. For reasons unknown, we here at Abnormal Use find them fascinating. Perhaps it is because they way these cases are often decided is the perfect blend of property law, soap opera, and reality television. In other words, the engagement ring cases are most-suitable for an episode of “Judge Judy.”

At common law, an engagement ring was considered a conditional gift given on the promise to marry. If the marriage did not occur, then the condition was not fulfilled and, thus, the ring shall be returned to the donor. This remains the law in many jurisdictions, including New York (but with a couple of exceptions). Other jurisdictions, however, have added a new twist to the conditional gift paradigm – fault. In other words, while an engagement ring is considered a conditional gift, a donor cannot recover the ring if he/she was at-fault for ending the engagement. Bring on the soap operas and reality TV.

We can understand the equity behind the introduction of fault to the analysis. However, the fault determination creates a couple significant issues. What is “fault” for ending a relationship, anyway? It isn’t always that clear from a legal sense. For example, what if two people are engaged to be married and one of the people gets a little too intoxicated at a bar one night and has a moment of infidelity. The cheater still wants to get married, but the other finds out about the affair and calls off the wedding. Is the cheater at fault or is it the other who said, “I don’t want to marry you?” If you think the answer is clear, remove the cheating aspect of the hypothetical and replace it with any other complaint. See how this might be a problem?

The question we have to ask ourselves is should juries really be deciding who is to blame for ending a relationship? More importantly, is this really something a jury wants to decide? Sure, it may be more entertaining than your average contract dispute, but, in our opinion, deciding who is to blame for ending a relationship is often an impossible task. After all, if one’s own peers can’t decide, what makes us think a jury of them wants to anyways?

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past. We thank them for their service and their sacrifices.

Step 11 – Be Generous with Your Time and Money.

Judge Carl Horn reminds us of “the inverse relationship between selfish materialism and happiness.” Specifically, Horn says that “devoting too much of our time and energy to acquiring will yield an opposite result.” While most of the writing in this area has a narrow focus on pro bono work, Horn’s point is a broader one. “Our primary point here is more selfish, namely, that being generous with our time and money will make us feel better about our profession and our lives generally. In a word, giving generously will make us happier.”

Judge Horn quotes legal commentator Steven Keeva on his encouragement to develop a “helping heart.” Keeva says “those who . . . have been revered for their wisdom and empathy . . . have often been people who believed that the very purpose of life is to be of service to others. Today’s lawyers, being overwhelmingly inclined to minimize the importance of their inner experience are more apt to see personal enrichment as their purpose, at least in their professional lives.”  

Judge Horn states that if fulfillment is one of our goals then “after we provide for ourselves and our families, we will get more satisfaction out of generously giving then we will from hoarding.” Lawyers who are fortunate enough to make more money than they need “should apply this important life lesson by taking Step 11, that is, by looking for opportunities to share their time, talents, and resources with others.” 

Next week is the last Step, Pace Yourself for a Marathon.   

Unlike strict liability and breach of warranty claims, any negligence based claims asserted by Plaintiffs will focus on the conduct of the defendant, as opposed to whether the defendant merely sold a defective product. Accordingly, arguments that the defendant merely acted as a middleman in the transaction are more effective (under the current state of South Carolina law) in defending any negligence based theories that are asserted. If the Plaintiff is unable to point to culpable conduct on the part of the defendant, the Plaintiff will be unable to prove a negligence based claim. This is particularly important because punitive damages are not available for strict liability and breach of warranty claims in South Carolina, while punitive damages are available in negligence based product liability claims (if the jury determines that a defendant’s conduct was willful, wanton, or reckless).

Accordingly, if the Plaintiff is unable to point to any wrongful acts or omissions on the part of the Defendant, the negligence claim will fail, as will the Plaintiff’s claim for punitive damages.