The first line of the Mississippi Supreme Court’s opinion in Janet Olier v. Donna Bailey says so much in so few words: “Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard.”  As it turns out, Olier broke her arm and sustained various other injuries during the goose chase.  Olier filed suit in the County Court of Jackson County, Mississippi asserting theories of premises liability and the “dangerous propensity rule.”  The trial court granted summary judgment on the basis that “Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier” and that “there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident.” Following the Jackson County Circuit Court’s affirmation of the County Court’s ruling, Olier appealed to the Mississippi Supreme Court.

The factual section from the Mississippi Supreme Court’s opinion in this case warrants a block quote:

Olier wanted to see Bailey’s blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier.  However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.

The Mississippi Supreme Court affirmed the trial court on the premises liability theory but disagreed on the dangerous-propensity rule portion.  In Mississippi, the dangerous-propensity rule dictates that an animal owner may be exposed to liability for an attack by his or her animal when: 1) there is proof that the the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack and 2) there is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.  Here, in the “aggressive bird” case of first-impression, the Court found that “Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly” and held that summary judgment on that issue was inappropriate since “a jury could find that was happened to Olier was foreseeable.”

We will be interested to see what happens in this case on remand.  For some reason, the part that really stood out to this author was Olier’s assumption that the bamboo pole was useless and threw it down without attempting to fend off the charging goose.  A bamboo pole does seems like a good tool for fending off a goose, but then again, this author has minimal experience with such things.

(Hat Tip: Mississippi Litigation Review).

A California Court of Appeal has added to the list of recent opinions dealing with the duty owed to take-home asbestos plaintiffs.  As we previously blogged, the California Supreme Court is set to decide two somewhat conflicting, but potentially reconcilable, California Court of Appeals decisions in take-home asbestos cases.  In Kesner, the appellate court imposed liability on manufacturers in take-home asbestos cases, and in Haver, the court held that premises owners have no duty to take-home asbestos plaintiffs.  The November 21, 2014 opinion in Beckering v. Shell Oil Company, available here, follows Haver’s lead and holds that the premises owner defendant, Shell Oil Company, owed no duty to the take-home plaintiff. 

Like the Haver Court, the Beckering court relied on Campbell v. Ford Motor Company in reaching its decision.  The Plaintiff in Beckering attempted to distinguish Campbell, arguing that Campbell applies only to the narrow situation in which the relative who brought home the asbestos was an independent contractor of the premises owner.  The Beckering court rejected this argument, noting that the Campbell Court specifically stated in a footnote that the independent contractor status of the relative was not the basis for the decision.

This is positive for premises owner defendants in take-home asbestos cases in the sense that Justice Aldrich did not create a Court of Appeals split on the issue of the duty owed by premises owners to take-home plaintiffs, but as the Beckering Court noted, the issue will not be resolved with any certainty until the California Supreme Court makes its decision.

(Hat Tips:  Legal Newsline and Torts Prof Blog).

Folks, reportedly, the Navy now has a laser beam weapon.  The weapon, called “LaWS”, was recently test-fired from the USS Ponce, and it apparently “hit and destroyed targets mounted atop a small boat, blasted a six-foot drone from the sky, and destroyed other moving targets.” The project cost approximately $40 million over the past seven years.  The laser system “consists of six commercial welding lasers lashed together and aimed at the same point,” and it can purportedly hit targets up to about a mile away. Wow.

What legal implications might this new technology yield?  None yet.  However, this is awesome.  Laser beam weapons straight out of science fiction movies.  The only problem: Super villains around the world are licking their lips at the opportunity to hold the world hostage using an enormous ray gun.

Hopefully, a hero lawyer will emerge.  Groot, perhaps? Or Matt Murdock?  Or maybe one of the other comic book hero lawyers that we have covered in our regular Friday Links feature? Only time will tell

The Oklahoma Class 3A high school football playoffs continued last week with a match-up between the 10-3 Frederick A. Douglass Trojans of Oklahoma City and the 13-0 Locust Grove Pirates of Locust Grove.  The stakes were high as the winning team would advance to the final four. The underdog Trojans scored a touchdown with one minute left in the game, but the referees took the touchdown away due to a sideline infraction by one of the Douglas coaches.  Unfortunately, the referees got the call wrong, as Oklahoma City’s KOCO reports: “Oklahoma high school football rules say that touchdown should have counted and the penalty should have been enforced on the next play.”

Apparently, the Oklahoma Secondary School Activities Association (OSSAA) apologized to the school for the blown call, but the school was not satisfied:

. . . Douglass went to the Oklahoma Secondary School Activities Association (OSSAA), filing an appeal and asking that the final 1:04 to be replayed. The Association apologized and acknowledged that a mistake had been made in applying the rules. The sideline infraction was a “dead ball” foul, not a “live ball” foul. But by a vote of 8-3, the Association declined to intervene on the ground that “OSSAA Board Policy does not permit protesting an official’s errors to the Board, nor do [National Federation of State High School Association (NFHS)] football rules.”

The OSSAA appeal unsuccessful, the school filed a lawsuit in federal court “asking for temporary restraining order forbidding Locust Grove from advancing and playing its scheduled semi-final game[,] . . . for the final 1:04 of its game to be replayed with the score reset to 25-20 (and with a chance, presumably, to kick an extra point).”  The school district argued:

. . . decisions of the OSSAA are subject to review under the Oklahoma Administrative Procedures Act (APA), and further that under APA substantial evidence must support an OSSAA decision. In light of the admission that the officiating crew had misunderstood the relevant rule, the District claimed that the OSSAA should have intervened in the result and ordered that the game be replayed with Douglass ahead and 1:04 left on the clock.  The District cited the NFHS rules, which state that “State Associations may intercede in the event of unusual incidents that occur before, during or after the game officials’ jurisdiction has ended . . . .”  NFHS Football Rules Book, Section 1, Article 8. The District argued that the OSSAA acted unreasonably in concluding that it could not overturn the results of the game.

The court did grant a temporary restraining order postponing the Locust Grove versus Heritage Hall semifinal pending the final ruling.  It will hear arguments shortly.

For sports fans, this is an interesting case that could create a slippery slope.  If this suit is successful, will teams have attorneys on the sideline to run to the courthouse in the event of an adverse ruling on the field?  Will referees need E&O policies?  Will we need court reporters at football games so that the record can be preserved for appeal?

We are not sure where this is going, but we will follow the story closely.

Side note:

A corollary to the main story played out as a result of a fan punching one of the officials after the game.  Apparently, the team was originally placed on probation following the game as a result, presumably rendering the legal challenge moot.  However, the OSSAA has now cleared Douglass for the playoffs if they win their legal challenge.

Manuel Noriega’s lawsuit against Activision, about which we previously blogged, has come to an end.  To recap, Noriega’s complaint alleged, among other things, that Activision “damaged his reputation” by portraying him “as a kidnapper, murderer, and enemy of the state” in its Call of Duty: Black Ops II video game.  Naturally, Activision hired former New York mayor Rudolph Giuliani of Bracewell and Giuliani to defend against the former dictator’s allegations of misconduct.  Giuliani promptly moved to dismiss the lawsuit.

Noriega, represented by the Chicago firm of Corboy and Demetrio, argued that the motion should be denied based on the No Doubt v. Activision case.  The trial court, Judge Fahey presiding, disagreed.  Judge Fahey found that “Noriega’s right of publicity is outweighed by defendants’ First Amendment right to free expression.” (emphasis added). Giuliani agreed with the Court’s decision and added that this seemingly small win was really a global win for freedom everywhere:

 This was an absurd lawsuit from the very beginning and we’re gratified that in the end a notorious criminal didn’t win. This is not just a win for the makers of ‘Call of Duty,’ but is a victory for works of art across the entertainment and publishing industries throughout the world.

In our humble opinion, this lawsuit is the civil litigation version of the Miracle on Ice –  former Panamanian dictator versus former New York mayor Giuliani, and Giuliani prevails based on freedom.  To borrow from one of Giuliani’s speeches, “[n]ow we understand much more clearly. why people from all over the world want to come to New York and to America. It’s called freedom.”

(Hat Tip: Courthouse News Service).

The legal dispute between Duke University and the estate of John Wayne, upon which we previously reported, has ended – for now.  The two sides have argued for years over the naming of certain goods and services. Most recently, John Wayne’s estate sued Duke University in federal Court in California seeking a judgment declaring that it could use The Duke name to market its own brand of whiskey. The trial court dismissed the action for want of jurisdiction after examining the “effects test” factors, which turn on whether a defendant aimed its wrongful conduct at California, whether the harm was likely to be suffered in the state, et cetera.  Judge Carter found that Duke University was aware of the Duke’s family’s presence in the state of California, but the Duke’s family was unable to show that Duke University intentionally directed its conduct at the state of California by filing oppositions to trademarks in the state of Virginia.

We doubt that we’ve seen the end of this dispute.  As John Wayne himself once said, “[a]ll battles are fought by scared men who’d rather be someplace else.”  This battle was no different.

(Hat Tip: Hollywood Reporter).

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.

Two kings of the tech world will reportedly duke it out over allegedly unpaid royalties.  In the suit, filed in federal court in New York, Microsoft alleges that it entered into a patent-sharing agreement in 2011 by which Samsung was to pay Microsoft a royalty for every Android phone it sells.  This was purportedly part of an effort to “work together to develop and market Windows Phone, Microsoft’s mobile software.” Microsoft alleges that Samsung failed to make a royalty payment on time and refused to pay interest on the late payment.  The original “heavily redacted complaint” alleges that Samsung has attempted to use Microsoft’s acquisition of Nokia’s phone business as an excuse for not complying with the patent-sharing agreement. Microsoft has since filed an amended complaint, and Samsung has responded with a motion to compel arbitration. The case is Microsoft Corp. v. Samsung Electronics Co., 14-cv-06039, (D.N.Y. 2014).

A New Jersey litigation funding firm, American Asset Finance LLC, has reportedly been awarded a $960,000 judgment against a Texas lawyer who fraudulently borrowed $400,000 for fake law suits.  The owner of American Asset Finance, Tim Foley, is pleased that justice has been done, but is concerned that the defendant, Texas lawyer Gwendolyn Climmons-Johnson, who has been licensed to practice law in Texas for 25 years, is judgment proof.  This is because Climmons-Johnson was convicted in June of this year of using the EMS company that she owned to defraud Medicare in the amount of $2.4 million/

According to an FBI press release:

Gwendolyn Climmons-Johnson, 54, was convicted by a federal jury in Houston, Texas, on October 30, 2013, of one count of conspiracy to commit health care fraud and four counts of health care fraud. In addition to the prison sentence, Climmons-Johnson was also sentenced to serve three years of supervised release and ordered to pay $972,132 in restitution.

According to evidence presented at trial, Climmons-Johnson was the owner and operator of Urgent Response EMS, a Texas-based entity that purportedly provided non-emergency ambulance services to Medicare beneficiaries in the Houston area. The evidence showed that from January 2010 through December 2011, Climmons-Johnson and others conspired to enrich themselves by submitting false and fraudulent claims to Medicare for ambulance services that were medically unnecessary and/or not provided. Climmons-Johnson, who controlled the day-to-day operations of Urgent Response, submitted, and caused to be submitted, approximately $2.4 million in fraudulent ambulance service claims to Medicare.

At trial, the evidence showed that patient records had been falsified and the Medicare beneficiaries for whom Climmons-Johnson had billed ambulance services did not need ambulance services and were not in the condition stated in the records.

This is just another example of why crime never pays.  We are always amazed to see lawyers who think they can get away with fraud and other forms of financial dishonesty.  No matter how difficult it is to work hard for a living, the office is better than a federal prison cell any day of the week!

(Hat Tip: ABA Journal).

We here at Abnormal Use took notice of a recent Wall Street Journal article which examined the use of adverbs in legal documents in the United States.  The article highlights the impact that the usage of adverbs have had in SCOTUS jurisprudence.  For example, in the recent Burwell v. Hobby Lobby case, the Court was faced with the determination of whether certain regulations “substantially burden the exercise of religion” as defined by the Religious Freedom Restoration Act (RFRA).  See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759, 189 L. Ed. 2d 675 (2014).  In a recent “net neutrality” case, the United States Court of Appeals for the District of Columbia was forced to determine the impact of a rule requiring service providers to “serve the public indiscriminately.” Verizon v. F.C.C., 740 F.3d 623, 655-56 (D.C. Cir. 2014).

In the piece, the WSJ examines the glut of adverbs in the legal system against the backdrop of numerous opinions of successful writers, including Stephen King, who warns against the use of adverbs:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

However, the article acknowledges that research on the subject has yielded mixed results:

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Our take is that lawyers should be aware of their audience.  If the audience likes adverbs, use adverbs.  If the audience hates adverbs, don’t use adverbs.  If you are unsure whether your audience likes adverbs, or if you are writing a mystery novel in your free time, err on the side of avoiding adverbs. But do so carefully.

(Hat Tip: ABA Journal).