Buying a pet for your child is a rite of passage into parenthood.  Whether it is a golden retriever or a goldfish, the pet is bound to cause at least some problems at the house.  Thankfully, most of the problems can be remedied with a little carpet cleaner or a toilet flush.  But, what happens when those nominal pet problems turn into problems for the children themselves?  What if the new pet comes packaged with a communicable disease which infects the child?  According to a new lawsuit out of California, you blame the pet store. According to an AP report, the family of a 10-year old boy has filed suit against Petco after their son died allegedly as a result of a bacterial infection he contracted from his pet rat.  The boy’s grandmother purchased the male rat on May 27, 2013, to serve as a companion to the boy’s female rat.  On June 11, the boy developed severe abdominal pain and died later that night.  The cause of death was determined to be an infection commonly known as rat-bite fever caused by exposure to an infected rat.  The Center for Disease Control has tested the rat to determine whether it was infected; however, those results have not been made available.  The lawsuit alleges that Petco was negligent in failing to detect the disease and in failing to adequately warn about the potential risks.

This is obviously a tragic accident, but it is not one without questions regarding liability.  First, it remains to be seen whether the rat was infected at the time of purchase.   We here at Abnormal Use do not pretend to be experts on rat infections, so we will refrain from speculation.  Nonetheless, this question will be pertinent to the litigation. Second, what is the culpability of the seller of a pet?  If the seller was an individual rat breeder, rather than a national retail chain, would this matter be handled differently?  It is not uncommon to obtain a pet and discover later that it is stricken with a health condition.  As is the case with humans, pets unfortunately get diseases.  The risk is inherent with the purchase of any pet.  The basis of this suit, however, is not that the rat had a disease, but, rather, that the family wouldn’t have purchased it had they known.

At this point, we do not know what steps Petco took to inform these buyers.  We do not know if the rats were tested.  We do know, however, that Petco actually warns customers online and through fliers in its stores that all rats are potential carriers of the infection.  Petco also warns that children under the age of 5 and people with weakened immune systems should “consider not having a pet.”  It is unclear whether the family failed to see these warnings or whether they did but consider them to be inadequate.  If the family did see the warnings, then it seems apparent that every rat was at risk.

Regardless of what steps Petco took, it should have been known that rats are carriers of disease.  Everyone hears of the horrors of the bubonic plague at some point in their lives after all.

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 Cyberlink.com 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).

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.

McDonald’s Happy Meal toys are apparently going through some changes. CNN reports that a McDonald’s employee has been charged with selling heroin in Happy Meal boxes at the drive-thru of a Pittsburgh-area location. The employee allegedly instructed customers to use the phrase, “I’d like to order a toy” to signal a transaction. Thereafter, the customer would approach the drive-thru window and be handed a box containing the desired “toy.” During the arrest, officers recovered 50 bags of heroin from the employee. No word on whether these toys have been examined by the CPSC.

While this is obviously not the type of news coverage McDonald’s craves, things could have been much worse. Fortunately, there are no reports of children accidentally receiving any of these earmarked Happy Meals. Just imagine the national outrage over a child discovering a bag of heroin in lieu of a miniature character from the latest Disney movie. A horrible event, to be sure. An event for which McDonald’s should be vilified? Maybe not, but certainly the media loves this story.

The reality of the situation is that this is a story about an employee caught selling drugs while on the job. This employee is probably not the first to be caught dealing drugs at a place of employment. In fact, this story could happen almost anywhere. Certain locations simply make it more newsworthy. Had this happened at a furniture manufacturing facility, the story would be lucky to be picked up by the local news. Unfortunately for McDonald’s, nothing can happen within its walls without making the press.

We urge you to read the story, marvel over the irony of packing heroin in Happy Meal boxes, and move on. Nothing to see here. McDonald’s will continue to be McDonald’s. Happy Meals will continue to be “happy” (but, not in the drug-dealing kind of way).

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.

In the past, we here at Abnormal Use have been critical of failure to warn claims.  To all of those claims, we now apologize.  Compared to the new suit against Nike , these other claims are as monumental as Marbury v. Madison.  According to a report out of NBC News, Sirgiorgio Clardy, an Oregon-based pimp sentenced to 100 years in prison for brutally beating a john with a Nike shoe has filed suit against the company alleging that Nike failed to warn that its shoes could be used as a dangerous weapon.  Apparently, had Nike provided such a warning, Clardy may have refrained from repeatedly stomping on the face of a client.   He is seeking $100 million due to Nike’s perceived omission.

Clardy apparently got the wise idea to sue Nike based on the jury’s classification of his shoes as a “dangerous weapon” in the criminal trial in order to ensure he received a maximum sentence.   We imagine if Clardy found some way to inflict the same injuries on the victim with a plastic spoon, it would have arrived the same classification.  Thankfully for Nike’s sake, it was not a party to the criminal suit and shouldn’t be deprived of the opportunity to protect its interests civilly.

Our criticism of failure to warn claims is the notion that requiring warning labels for many of these allegations is superfluous.  Many hazards are just too obvious to necessitate a warning.  This case takes the notion to the stratosphere.  We have watched enough episodes of “The Walking Dead“ to know that almost any object can be used as a weapon if the assailant is creative.  When a criminal uses an object in a way no reasonable person intended, then there is no need to warn of the horrid use. We understand why manufacturers should warn of certain dangers; those warnings serve a necessary purpose.  We doubt, however, that anybody would see Clardy’s suit as analogous to those situations.

We would say that we will keep you updated as this case progresses, but we all know how it will turn out.

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.

News broke last week that a California Little League coach is suing his former player over injuries he allegedly sustained in a victory celebration. According to reports, the 14-year old player scored from second base to win a game in walk-off fashion. In so doing, he took off his helmet and tossed into the air in celebration. When the helmet came back down to earth, it allegedly hit his coach, Allan Beck, tearing his Achilles’ tendon. Beck filed suit against the boy, seeking $100,000 in actual damages plus $500,000 in pain and suffering. However, Beck has indicated that he really was only interested in having the kid’s parents pony up the $20,000 he paid in medical expenses.

An interesting case from Halifax injury lawyers – McKiggan Hebert Lawyers. Had this been a case of a player intentionally throwing his helmet at the coach in anger after striking out, then this lawsuit would not have garnered so much national attention. But, this is not the case. There is no evidence of which we are aware that the boy intended anything other than to celebrate a victory. Watch baseball at any level and you will see players throw helmets in the air in much the same fashion. Until now, it has always been no harm no foul. What makes this case different, is that there allegedly was a harm. So, should the player be responsible for it? It is certainly foreseeable that someone could be injured by a falling helmet. After all, the laws of gravity dictate that what goes up must come down. It is surprising that more players or coaches haven’t been injured by helmets in these situations.

Generally, sports injury cases hinge on whether the injury occurred as a result of an act inherent to the sport. For example, a football player can’t sue an opposing player when tearing his ACL on a routine tackle. Throwing a helmet in the air doesn’t necessarily fall into that same category as a tackle; however, as mentioned, it may, too, be “part of the game.”

Regardless of the liability aspects, we are curious as to how Beck tore his Achilles’ tendon by a helmet thrown up into the air at home plate. The logistics of the injury seem to defy all odds. In describing the injury, Beck told Fox News:

I could not register right at that second, so I turned around and looked and there was a helmet laying on the ground and this young man that hit me was looking at me, stunned.

Given Beck’s own uncertainty, we have to wonder whether he sustained his injury when stepping on the helmet rather than when it fell from the heavens. Just leave it to us to speculate.

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.

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 FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, 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 AshleyMadison.com 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 DarwinDating.com 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).