If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.

At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:

When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.

The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.

Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.

[Hat Tip: Libation Law Blog]

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

Ever so often, an appellate court blesses us with an opinion that is witty and full of subtle humor. With its recent opinion in Bisbano v. Strine Printing Co., Inc., No. 13-1722 (8th Cir. Nov. 27, 2013), the First Circuit did just that. Before diving into the opinion, here is a quick statement of the facts. Bisbano was a commercial printing sales representative who championed a national drug store chain as a major client for nearly two decades. Bisbano worked for several printing firms over the years, bringing the client’s business along with him at each stop. Prior to his employment with Strine Printing Co. (“SPO”), Bisbano had secretly paid the car lease of a printing department employee of the chain while he was working for his former employer. During the course of an internal review of printing practices, the client discovered Bisbano’s roll in the apparent kickback and he confessed to the act. Nonetheless, the client decided that it would no longer do business with him. Shortly thereafter, SPO fired him. In turn, Bisbano filed suit against SPO, asserting claims of unjust enrichment, tortious interference with contract, breach of contract, and intentional and negligent misrepresentation. The district court granted SPO’s motion for summary judgment on each claim, and Bisbano appealed. In the well-drafted opening paragraphs of the opinion, the Eighth Circuit described the same as follows:

[S]ales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants.

So, right off the bat, you see where this one is going. On appeal, the crux of Bisbano’s arguments were two-fold: (1) SPO interfered with his business relationship with the client by firing him, and (2) SPO misrepresented to him that he would remain employed with the company as long as he brought in the client’s business. The Court wasn’t sympathetic to either theory, finding that Bisbano’s assertions were factually inaccurate and not a basis for relief under any of the causes of action. The Court indicated that the client independently ended its relationship with Bisbano prior to any action by SPO and, thus, SPO did not interfere with the business relationship by firing him. As the Court eloquently stated:

It is a matter of chronology, not a question of disputed fact, that SPC could not have induced [the client] to break off a relationship that [the client] already had relegated to the scrap heap.

Likewise, the Court found that SPO neither breached the employment contract by firing him nor made any misrepresentations by promising to employ him as long as he brought in the client’s business because it had fulfilled its promise. Once the relationship with the client had ended, so to, did any responsibility SPO had to employ Bisbano. According to the Court:

[T]hese losses, by any leap of even the most agile imagination, cannot be said to flow from the plaintiff’s reliance on SPC’s representations. The losses unarguably flowed from [the client”]s discovery of the plaintiff’s corrupt relationship with a [an official of the client] and [the client’]s ensuing decision to sever all ties with the plaintiff. Seen in this light, the plaintiff was the author of his own misfortune.

Well-played, First Circuit. Well-played, indeed.

Now that we have finally finished off that last bit of Thanksgiving turkey, we here at Abnormal Use find it safe to turn our attention to the holiday season. Aside from the incessant holiday music blaring in every retail shop, there is much to enjoy about the holidays – gifts being right near the top. For those that have been blessed with children, gift buying takes on greater significance. As parents ourselves, this report from the Public Interest Research Group (PIRG) outlining those toys from 2013 the group deems “dangerous” caught our eye.

There are a few things of note on the list, which includes such items as a play food set and a toy dolphin. First, if these toys are the most “dangerous” ones out there, toy safety has come a long way since we were children. It seems like just a few short years ago, kids were wishing for lawn darts and Slip ‘N Slides. The protagonist in “A Christmas Story,” released way, way back in 1983, receives his very own Red Rider BB gun. A firearm! Yet today, we deem a princess wand “dangerous.” The shift in attitude doesn’t necessarily mean that the latter is not, in fact, dangerous. Nor does our commenting on the change mean a princess wand isn’t hazardous. But we must say that perception and cultural shifts are interesting.

Second, most, if not all, of the items, are included because PIRG determined that they constitute choke hazards. Certainly, any small item can be a choke hazard if ingested. We question, however, whether placing the items on a “dangerous” toy list is necessary. It is no revelation that a bead kit containing small parts is capable of choking a person. So, really, what is the point of placing such an item on the list other than to give its manufacturer a scarlet letter? The size of these items is not a latent hazard, so we shouldn’t need this type of list in the first place.

If PIRG is only concerned with choke hazards, parents should not need the organization to tell them what toys are “dangerous.” Common sense should prevail. As you do your holiday shopping, police yourself. If you, like us, have young children who put everything in their mouths, don’t buy small toys with small parts. PIRG could have saved a lot of time and money by issuing the same statement.

It is not uncommon for inmates, particularly those facing lengthy sentences, to file lawsuits and other grievances challenging their convictions. Even though many of these prisoners proceed pro se, they are often surprisingly creative in articulating their theories for relief. Some of the causes of action are very well-crafted. Others are quite humorous. And, then, there is the new complaint filed by South Carolina’s very own, Shaheen Cabbagestalk (yes, it really is his name), challenging the authority of lawyers and judges to perform their jobs, which takes the cake. The suit, filed in the United States District Court for the District of South Carolina, is captioned Cabbagestalk v. S.C. BAR Head Person of Establishment, No. 5:13-cv-03037 (D.S.C. 2013). Before delving into the allegations of the complaint, we note that this is not Cabbagestalk’s first rodeo. Cabbagestalk is in the midst of an 18-year prison sentence after being convicted of armed robbery in 2009. Since his conviction, he has filed no less than 16 suits against various persons and entities. In our book, 16 complaints in four years elevates him to the rank of professional – and likely vexatious – litigant.

Cabbagestalk’s newest creation arises out of the Titles of Nobility Act of 1810 (“TONA”). The Act reads as follows:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

So what does TONA have to do with lawyers and judges? Well, according to Cabbagestalk:

Most judges, senators, Congressmen, even all federal judges and most presidents are attorneys whom carry these titles. B.A.R. = (British Accreditation Registry) headquartered in London recognized everywhere as the BAR. These dealings are of British nobility. Esquire was the principal title of nobility which the 13th Amendment sought to prohibit from exercising any office within United States. . . . (All Acts) of their government (since 1819) are technically (Null and VOID) under T.O.N.A. Both “Esquire” are targets of the 13th Amendment so the entire Bar of South Carolina is prohibited and all its dealings are (Null and VOID).

In other words, lawyers, judges, and most of the government itself lacks any authority pursuant to TONA and, thus, Cabbagestalk should be set free. Interesting theory, that is. We imagine most were not even aware of TONA prior to Cabbagestalk’s proposal. And for good reason. TONA is not exactly the law of the land.

TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810. However, the amendment was never ratified by three-fourths of the states and, thus, never became a part of the Constitution. Some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819 (hence Cabbagestalk’s 1819 reference). However, even with Virginia’s ratification, the amendment did not reach the necessary magical number for passage. (For a detailed explanation, read here).

In other words, Cabbagestalk’s claims fail on their face.

Even if TONA was, or is, the law, lawyers should still rest easily. As much as many of us wish we did, lawyers do not hold titles of nobility. Lawyers are licensed, and thereby receive their titles, by state bar associations – not the British aristocracy. Article I, Sections 9 and 10 of the Constitution actually prohibit state and federal governments from granting any titles of nobility. Until the Queen starts anointing us all with special titles by the sword upon swearing in, we should refrain from staking our claim to the prevailing social class.

Cabbagestalk deserves some credit for his effort. Discovering the “lost amendment” and deriving a roadmap to relief is not easily done from a prison cell. If nothing else, it led us here at Abnormal Use to do some research on TONA. Otherwise, we may have been concerned about our ability to continue on in our profession.

As if Pope Francis didn’t already have enough on his plate, a Rhode Island man now wants him to see the inside of a federal courtroom.  Recently, 64-year old John Devaney filed suit against Pope Francis along with the Catholic Diocese of Providence, Archbishop Carlo Laria Vigano, and Rhode Island Attorney General Peter Kilmartin, alleging that the bells of a Narragansett church ended his marriage.  Devaney claims the bells rang 700 times per week for the past 12 years, causing interruptions in his dreams, his thoughts, and his family relationships.  Devaney seeks an injunction limiting the number of times the bells can ring as well as unspecified monetary damages.  We are certain Pope Francis’ legal counsel is taking this one seriously.

Before we become too critical of Devaney, this isn’t a case of moving next door to a landfill and then complaining about the smell. Devaney actually moved to the neighborhood six years prior to the bells becoming operational.  Nonetheless, the suit seems a bit absurd, especially considering it names the Sovereign of Vatican City as a defendant.  While any sound can be annoying over time, claiming that church bells ended a marriage is a bit of a stretch.  Good luck picking a jury who won’t side with the Catholic Church in this scenario.

Unsurprisingly, the church has denied any liability, claiming that the ringing of church bells is reasonable.  Moreover, the church claims that Devaney, himself, may have some unclean hands.  Through the Catholic Diocese of Providence, the church issued the following statement:

So many in the community have enjoyed hearing the bell for more than 10 years for but minutes a day. The parish believes the brief ringing of the bell is reasonable and well within its rights. The parish community is saddened that a sole individual would continue personal, inappropriate attacks harassing visitors, worshippers and staff of St. Thomas More Parish. As a community of faith, we will pray for peace and understanding and that all our neighbors know of our charity and concern.

Apparently, Devaney really, really hated those bells. Even though we can appreciate his frustration, Devaney, who brought the suit pro se, has an uphill battle in front of him.  Suing the Pope and the Catholic Diocese over some annoying church bells is a slight overkill to voice those frustrations.  He probably would be better suited challenging the local noise ordinances which exempt places of worship. Had his suit been aimed at a next door neighbor blaring Metallica 700 times per week over a loud speaker, then this suit would have never made the headlines.  Unfortunately for Devaney, this is the church.  And its bells.  And its leader.  We here at Abnormal Use wish him well.

Saying that the Internet changed media is an understatement worthy of a Nobel Prize. The days of reading the daily newspaper over a cup of coffee have been replaced with scrolling through RSS news feeds on a smart phone in between meetings. While the Internet has made news more accessible, many argue that accessibility doesn’t necessarily make for better news. After all, as the saying goes, “With the Internet, everybody becomes a journalist.” For every well-respected CNN or New York Times website, there is a Wikipedia or some other source of user-generated content which draws the ire of establishment critics. News is only as good as those that create it.

So, where should legal blogs fall into the mix? While none of us here at Abnormal Use are professional journalists, we take great pride in bringing you accurate legal news (with a touch of our own commentary, of course). At the end of the day, however, to many, we are still just a “blog” with whatever connotation that title brings. But, in this new age of media, shouldn’t some blogs be considered something more? We would never suggest that every blog carries the same weight of authority. Nor would we posit that a blog be viewed in the same light as a primary source. Nonetheless, when a blog such as SCOTUSblog, one of the preeminent news sources covering the Supreme Court, lacks official credentials to the Marble Palace, something seems wrong.

As the way we receive our media changes, so, too should the way that we perceive that media. Why shouldn’t a scholarly blog post be afforded the same level of scrutiny as a magazine article? We can verify sources and explore the credibility of the author from either form of media. The only difference between the two being the form in which the material is presented. A news source should be considered a news source regardless of the mechanism of delivery. Again, we would never suggest that Joe Schmo’s personal blog of drunken observations be afforded the same level of credibility as an article published in The New York Times. Nor are we suggesting that you view Abnormal Use in the same light as either. We only encourage you not to discount blogs because they are, well, “blogs.” News is only as good as those that write it. Check your sources. Check your authors. Make your own decision.

Recently, The New York Times published a “Retro Report” on the infamous Stella Liebeck McDonald’s hot coffee case. The report included a 12 minute video on the “facts” of the case which contained interviews from the parties’ attorneys as well as a Wake Forest professor. Since we have already written ad nauseum about the facts and published a comprehensive FAQ file on the case, we will refrain from any unnecessary repetition. That said, the writer Hillary Stout’s well-done article, however, presents some novel issues worthy of comment. So here we go again.

Stout’s point is this: Regardless of your opinions on the merits of the Stella Liebeck case, significant safety advances have been made in the field of coffee safety – sculpted lids, lower serving temperatures, cup holders, et cetera. – since the verdict was rendered more than 20 years ago. While the actual effect of the Liebeck lawsuit on these advances is unclear, Stout’s point is well-taken. But, what common product with any potential to cause injury hasn’t been made safer over the last two decades? No matter the product, we should always seek safer, more convenient alternatives. Coffee is no exception. The advances in serving coffee are certainly designed with safety in mind. Interestingly, however, none of the safety advances involved lowering the serving temperature to less than 130 degrees – the temperature at which Dr. Turner Osler testified in the Liebeck case could have caused her third-degree burns. While the report states that McDonald’s has lowered its serving temperature from 180-190 degrees to 170-180 degrees (that of Starbucks), the lowered temperatures would not prevent burns such as Liebeck’s. Despite the advances, one fact remains: people like coffee hot.

As Stout properly points out, coffee, at least that purchased from restaurants, is far more prevalent today than it was in Liebeck’s era. No one who has ever driven past a Starbucks at 8:00 a.m. would contend otherwise. With greater consumption comes the increased chance of injury. Despite all of these safety advances, coffee accidents still occur. Stout reports that an average of 80 people a year are hospitalized for coffee and tea burns (many of which occurred at home) at the William Randolph Hearst Burn Center at New York-Presbyterian/Weill Cornell Medical Center. Whether the cup is more insulated or contains a sculpted lid, people will continue to have accidents when drinking a hot beverage. But, not everyone will file suit over it. Hot liquids, whether 130 degrees or 170 degrees, will burn if spilled. Absent lowering the temperature to a point at which the beverage becomes undrinkable, no safety advance will change that.

On another note: Remember the time The New York Times cited to our blog about the McDonald’s hot coffee case? If not, see here for more on that fateful day.

We here at Abnormal Use don’t pretend to know much about hair products. We do, however, know that they shouldn’t melt your hair. A host of new plaintiffs apparently know this as well, having filed suit against Unilever alleging that the manufacturer’s hair-strengthening Keratin product did just that. Unilever moved to dismiss the suit, but a Kentucky federal court recently denied the motion. We suppose a jury will now get to decide whether our presumption was correct. The plaintiffs allege that Unilever’s Suave Professionals Keratin Infusion 30-Day Smoothing Kit contains harsh chemicals that burned their scalps and melted or permanently destroyed their hair. The product was advertised as “formaldehyde-free,” but the plaintiffs have some suspicion that might not have been the case. Unilever recalled the product in 2012, but multiple plaintiffs were able to purchase and use the hair kit after the recall, the suit alleges.

Certainly, we know very little of the merits of the case at this point. Not that it would absolve all liability, but we do wonder whether the hair melting occurred after the first use or whether it was the result of the entire 30-day process. It will also be interesting to see the merit behind the “permanently destroyed” allegation. If the product had worked as advertised, straightening the hair by breaking down disulfide binds in curly hair, and the user didn’t like the result, would that also be damage? If so, it seems as if this analysis could be extended to any hair product such as hair dyes when repeatedly used. Moreover, last we checked, hair grows back, so how can the damage be permanent? Clearly, we here at Abmormal Use pay close attention to hair.

Last year, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban “Buckyballs” because the spherically-shaped magnets apparently posed a risk of ingestion despite the product’s warnings. As you might recall, the company’s response to the draconian measures was quite humorous, illustrating how any product can be dangerous based on the CPSC’s logic. Unfortunately, Buckyballs ultimately lost its fight and found itself forced out of business. Now, Buckyballs’ founders are back with a new company, and they haven’t forgotten the CPSC.

Seemingly defeated by the CPSC over the small-in-size, magnetic Buckyballs, the new company is now selling large, magnetic balls known as “Liberty Balls.” Take that, CPSC. Certainly, large balls can’t pose the same risk of ingestion. Aside from being a slap in the face to the CPSC, the new product serves an even greater purpose. Liberty Balls are the fundraising linchpin for the continued fight against the CPSC under a program entitled, “United We Ball.” According to the company’s website:

Liberty Balls and Ball of Rights are seriously BIG MAGNETS with a seriously BIG MISSION: to support the legal battle of one individual against government absurdity overreach retaliation regulators and stand up for the rights of all Americans (that’s you.)

Because the fight against the CPSC is so important, Liberty Balls have been called by some (the company) the “most important balls in American history.” And, who are we to argue? We must applaud a company for standing up to the CPSC’s over-reach. Some may say Buckyballs has taken this fight a bit far. We here at Abnormal Use say keep going farther. We are always looking for new material.

(Hat Tip: Overlawyered; Reason.com).