Let us begin by saying the facts of this Mississippi “wild alligator nuisance case” (as described by the Mississippi Supreme Court) are truly terrifying and are basically a reptilian nightmare. Tom and Consandra Christmas purchased a tract of land adjoining a waste disposal site owned by Exxon.  They later discovered that Exxon’s property contained EIGHTY-FOUR ALLIGATORS.  As it turns out, the Mississippi agency responsible for regulating wild alligators investigated the infestation and concluded that this was “a high density of alligators to exist in the wild.”  We here at Abnormal Use thankfully do not have a tremendous amount of experience with alligators, but it appears that the agency’s observation was astute.

Allegedly, some of these alligators were spilling over onto the land owned by the Christmases, so the Christmases filed suit against Exxon, seeking monetary damages for the nuisance created by the alligators.  The trial court granted summary judgment based on the statute of limitations and the prior trespass doctrine, but the Mississippi Court of Appeals reversed and remanded.  The Mississippi Supreme Court reversed the Court of Appeals and affirmed the trial court, but on different grounds.

The Mississippi Supreme Court found that Exxon was entitled to summary judgment “because it cannot be held liable for the presence of wild alligators on its property.”  In so holding, the Mississippi Supreme Court found that there was no evidence that Exxon was responsible for bringing the gators to the property or that Exxon had taken control of the gators.  In fact, Exxon could not legally do anything to the gators without the permission of the Mississippi agency responsible for regulating alligators.

Was this the correct result?  We at Abnormal Use decline the opportunity to weigh in on the holding, but one thing is for sure – we would probably find somewhere to live besides property adjacent to an alligator infested waste disposal site.  That, or we would erect an elaborate electrified fence system to keep those prehistoric, toothy creatures on Exxon’s property.

(Hat Tip: Law360).

Spoiler alert! For “Game of Thrones” fans, it was an interesting twist when Tyrion Lannister recently balked at a plea deal and demanded trial by combat in the criminal proceeding to determine whether he killed King Joffrey. This got us thinking: what exactly is trial by combat?  We here at Abnormal Use have become fascinated with the concept, and our editor couldn’t stop tweeting about it last week (as is evidenced by his tweets here, here, here, and here).

Well, after some research, we learn that it’s “a concept attributed to the Normans in the Middle Ages wherein disputants would square off and battle it out. The one left standing would be declared the victor.”  Obiter Dicta, 89 ABA J. 12 (March 2003). Trial by combat “essentially resolves all legal disputes by pitting the parties against one another in a no-holds-barred fight to the death. At the conclusion of the proceedings, the person who is not dead is deemed the prevailing party.”  Apparently, our modern civil trials evolved from trial-by-combat.  See Capers G. Barr III, Prepare for the Peacemakers, 7 S.C. Law. 21, 22 (JULY/AUGUST 1995) (“Buried in the recesses of the trial lawyer’s psyche is an awareness that modern trials evolved from a more primitive form of dispute resolution—trial by combat.”); Parham v. State, 250 So. 2d 613, 614 (Ala. Crim. App. 1971)(“A trial is an adversary affair drawing much of its etiquette from medieval trials by combat”). How about that?

The Eagles’ hit, “Life in the Fast Lane,” depicts a life of excess involving drugs, booze, and generally “everything, all the time.”  What the song does not address is the consequences of one’s actions if his or her life in the fast lane comes in contact with innocent pedestrians and ends in death or serious injury.  A recent Texas case suggests that the outcome depends on how wealthy your parents may be.

You may recall the 2013 criminal trial of Ethan Couch, the affluent teen who killed four people and catastrophically injured another while driving drunk (his blood alcohol was reportedly three times the legal limit).  At the criminal trial, Couch’s defense counsel retained an expert witness who testified, in part, that Couch was the victim of “affluenza,” an ailment characterized by being the product of wealthy and privileged parents who never set limits for Couch.  Couch’s counsel disputes that it relied on an affluenza defense, but regardless, Couch was not required to serve any time in prison for his crimes. As you might imagine, there was a media frenzy at the time about the nature of that defense.

At least one civil suit has been filed in connection with the accident.  A teen riding in the back of Couch’s truck at the time of the accident suffered a debilitating, permanent brain injury, and he has apparently incurred at least one million in medical bills.  He filed suit against Couch’s parents.  Couch’s father’s business was also joined in the lawsuit, as Couch was driving a vehicle owned by the business at the time of the accident.  The suit has reportedly settled for over $2 million.

Though tempted, we at here at Abnormal Use decline the opportunity to weigh in more formally on the criminal or civil outcome, except to say that there is something very curious about this affluenza theory.  In Couch’s criminal case, there were few consequences for his crimes, but his defense rested on his parent’s wealth. In the subsequent civil litigation, his parents (and/or their insurance carrier) paid a handsome sum.

Perhaps the expert’s affluenza opinion was a bit of foreshadowing more than anything else?

The Third Circuit recently affirmed a trial court’s granting of a motion for judgment on the pleadings filed by various generic drug manufacturers in a Fosamax suit.  Ninety-one plaintiffs from 28 different states filed suit against Merck and various generic drug manufacturers in Missouri state court, alleging that Fosamax and its generic equivalent (alendronate sodium), used for treating bone conditions such as osteoperosis and Paget’s disease, were defective in labeling, design, et cetera, due to the drug’s propensity to make bones more susceptible to fracture.  The case was removed to federal court and centralized with several other Fosamax-related lawsuits in an MDL in the U.S. District Court for the District of New Jersey.  As mentioned above, the generic drug defendants moved for judgment on the pleadings based on a federal preemption argument, and the trial court granted the motion.

In reaching its decision to affirm dismissal, the Third Circuit relied heavily on Mensing and Bartlett.  The Third Circuit was persuaded by the generic drug defendants’ argument that “they could only avoid liability by taking one of the options that Mensing and Bartlett say they cannot be forced to take: (1) changing alendronate sodium’s labeling, (2) changing the drug’s design, or (3) ceasing sales of the drug altogether.”  In the end, the Third Circuit held that the suit against the generic drug manufacturers was preempted under the doctrine of conflict preemption and affirmed the decision of the trial court.

For more on this opinion, please see this post over at the Drug and Device Law blog.

Belts are an integral part of many outfits, and most of us take it for granted that our belts always keep our pants at waist level or above.  Vincent J. Vogelsang, an Iowa man, alleges that he discovered the hard way that belts don’t always do their job.

Mr. Vogelsang was apparently minding his own business, staggering around Iowa City with a healthy buzz (.264 blood alcohol content), when suddenly his belt malfunctioned, causing his pants to plummet from waist-level to ankle-level.  Two women, who happened to be in close proximity to Mr. Vogelsang at the time, allege that Mr. Vogelsang then made “lewd and sexual gestures” toward them subsequent to the removal of his pants.  According to Mr. Vogelsang, they had it all wrong and he was simply the innocent victim of a defective belt. Police apparently found the two women more credible and charged Mr. Vogelsang with indecent exposure and habitual intoxication.

Could it be that the women misinterpreted the drunk man’s awkward, uncoordinated attempts to re-clothe himself as obscene gestures? Without knowing more about the facts (and not really wanting to), we can say it is possible.

But it appears that Mr. Vogelsang may be laying the groundwork for a product liability suit! His belt was unreasonably dangerous and defective! It malfunctioned! Will he soon soon?

In what could be the saddest development of the last century, HuffPost reports that a Chinese billionaire has determined that there is now a market for soda cans containing air.  Although I am not the first to point it out, this means that Spaceballs has officially become reality – life imitating art in the most depressing way possible.  Those who scoff at the idea of air-in-a-can and think that no one would ever buy it should keep their laughter to themselves.  This canned atmosphere raked in about $800 in sales during its first day on the market, which is no small feat for a product priced at roughly 80 cents per can.  In other words, it is virtually flying off the shelves in the country that lays claim to some of the world’s most polluted cities.

On the bright side, the idea man behind the venture is donating all proceeds to charity.  He hopes that the buzz surrounding his product will spotlight the issue of pollution in China.

So what does this mean?  Should those who enjoy breathing avoid traveling to China?  Should we combine our Earth, Fire, Wind, Water, and Heart to summon Captain Planet?  What’s the difference between canned air and an empty, sealed can?   We here at Abnormal Use do not have the answers.  However, we do know that we who are fortunate enough to live an area where it does not cost to respire should take a deep breath while it’s free.

Feel free to speculate in the comments section about what we can expect in the way of canned air product litigation.

If recent reports are true, the Buncombe County, North Carolina School District deserves some scrutiny for its “handling” of a recent bullying incident. The school district of Buncombe County, North Carolina, like many schools, expresses a student-oriented mission.  Buncombe County even has a set of “core values,” which include: “[l]earning environments must be safe and supportive, with equity of opportunities for personal growth” and “[u]nderstanding and respecting diversity enriches the individual and the community.”  The school leads the public to believe that its goal is a safe school and encourages students to immediately report bullying. The school district’s web page even refers readers to stopbullying.gov, which among other things encourages adults to “[a]ssure the child that bullying is not their fault.”   At first glance, this school is doing everything right – encouraging students to embrace their unique qualities and creating a safe, bully-free environment for those students to thrive.  Presumably, this would be the perfect school for Grayson Bruce, a nine year old male student who is into My Little Pony.  My little pony’s slogan is “friendship is magic,” but young boys who play with My Little Ponies are often bullied.  Grayson was not immune to this, as he was punched, pushed, called horrible names, and otherwise victimized when he brought his My Little Pony bag to school.   Per the school policy, the bullying was reported.  One would expect the school to punish the bullies or otherwise do whatever it takes for Grayson to have the opportunity to both learn and be himself.  Shockingly, the school punished Grayson instead, ordering him to stop bringing the My Little Pony bag to school, under the rationale that the My Little Pony bag was the trigger for the bullies.  

Luckily, other students have supported Grayson, and the support and media attention pressured the school to remedy the situation.  Bullying is disgusting, and it is harmful for our society.  Luckily, this author never had to experience bullying as a child or adolescent, but I understand how damaging it can be for the development of a young person.  The recent focus on bullying-prevention nationwide is a positive development, and hopefully it will reduce or eliminate the phenomenon for future generations of young people.

(Hat Tip: Alias!)

Yes, folks, you read the headline correctly.  And you are probably about to say something like “Right, and the sky is blue.” Well, the sky was slightly less blue for Mark Johnston when he awoke from a bender in Vegas only to find out that his wallet was $500,000 lighter. Like many a brave soul before him, Mr. Johnston traveled to Vegas, enjoyed a hefty amount of alcohol, and subsequently lost a staggering amount of money at a casino. Of course, none of us have experienced a booze-involved cold streak at the casino, but we have all heard horror stories. These days people prefer to gamble on https://www.usgamblingsites.com/reviews/betonline-ag/ from the comfort of their homes as well.

What is unusual about Mark Johnston’s situation, apart from the fact that he lost more money in one night than the average American earns in over a decade, is that Mark Johnston has filed suit to get his money back. Mr. Johnston, a self-made millionaire, alleges that he was already intoxicated when he entered the casino.  He then consumed approximately 20 drinks courtesy of the casino, and started to play on casinoslotsmoney.com. He now claims that the free alcohol caused him to “black out.”  As a result, Mr. Johnston has no memory of losing the money. It will be interesting to see what happens with this case.  Mr. Johnston apparently bases his claim, at least in part, on a law which prohibits casinos from serving visibly intoxicated patrons.  Presumably Mr. Johnston would be within the class of people the law is meant to protect, and one could definitely argue that this is the type of harm the law is meant to prevent.  However, I imagine that proving causation will be challenging.  Also, the casino will likely advance numerous affirmative defenses. If I had to bet, I would wager that this case is going to be nasty and expensive for both sides. To avoid such situations, many people lean towards https://www.slotsformoney.com/casinos/us/illinois/ online casinos, which are much safer.

Search parties are a wonderful thing.  A search party is an organized group of people who have joined together to find something or someone that is missing – human compassion and selflessness at their finest.  Notwithstanding the good that search parties do, they often receive very little media attention beyond “search party finds . . . .”  A search party in Iceland recently discovered the exception to the rule and made a name for itself.

The search party in question was formed by a group of tourists to search for a missing woman near Iceland’s Eldgja canyon.  They searched for several hours before they realized that the missing woman was actually part of the search party.  Deathandtaxes has already done this story justice in a recent post, but I do want to take this opportunity to provide a checklist for future search party members so that they may avoid embarrassing media attention:

1.  Determine what or who you are searching for.  I mean, this in the most basic sense possible.  For example, make sure everyone in the group knows that you are searching for a human being if that is what you are looking for.  This will eliminate the possibility of time-wasting “false alarms” like “Hey, everyone, I found the dog!” when the group is actually looking for a missing teenage human.

2.  Determine how you will identify the person or thing if you encounter it.  If you have a photograph of the subject of the search, that is ideal.  If not, some sort of description is necessary.  For example, if you are searching for a person, the group may want to know the hair color of the person, the height and weight, the age, the skin complexion, and/or similar characteristics.  If the subject of the search is a human or animal, knowing the name of the subject is helpful.  That way members of the group can call out to the subject of the search by name while searching.

3.  Periodically examine the group for new members. This step serves two functions.  First, when the group realizes it has a new member, it will know to brief the new member on items one and two on this checklist.  Second, if the subject of the search has in fact joined the search, you will know to call off the search because the subject of the search has been located.

4. Have fun, but stay focused. Search parties are normally a serious endeavor, so you will want to stay focused on the task at hand.  However, a search party by definition is still a party, so have fun with it.  Put on your camo, bring your outdoor gear, and channel your inner woodsman.

Disclaimer:  While the checklist above does provide good advice to search partiers, it should not be interpreted as legal advice, nor is it meant to encompass all of the guidelines that search parties should follow.  This author recommends that you consult a search party expert before joining a search party and initiating a search.

(Hat tip: Walter Olson).

It’s not just about the hot coffee, you know. In what seemed like a normal culinary transaction, Webster Lucas ordered a Quarter Pounder Deluxe from his local McDonalds in Pacoima, California. The Quarter Pounder Deluxe (or “Royale with Cheese Deluxe,” for our readers on the metric system) comes with the following according to the McDonalds website: “100% beef layered with melty American cheese, ripe tomato, leaf lettuce, crinkle-cut pickles, crunch red onion, mayo and mustard, on a toasted bakery-style bun.” According to Mr. Lucas, it should also come with more than one napkin. It is plausible that one would need more than one napkin in the process of consuming this beast of a burger. These ingredients, while delicious (in fact, just typing the description of this burger caused my mouth to water), are quite messy. Knowing the messy character of the delicious burger, Mr. Lucas opened his McDonalds bag hoping to find a sufficient number of napkins. It is unclear how many napkins Mr. Lucas expected to find, but what we do know is that the bag contained only one napkin.

As TMZ reports, Mr. Lucas immediately confronted the manager who, according to Mr. Lucas, was unwilling to provide additional napkins. Mr. Lucas then explained to the manager: “I should have went to eat at the Jack-in-the-Box because I didn’t come here to argue over napkins.” Things apparently escalated from there, and according to Mr. Lucas, the manager also made a racist comment during the exchange. When McDonalds corporate offered free burgers (and presumably extra napkins) in an attempt to remedy the napkin debacle, Mr. Lucas was “insulted.” Not only was he insulted, but Mr. Lucas now suffers from “undue mental anguish” from the experience.

It is unclear how many napkins Mr. Lucas needed, or how much those extra napkins would have cost McDonalds, but Mr. Lucas is able to assign a dollar figure to his suffering. Mr. Lucas has sued McDonalds for $1.5 million.