In every 1L Torts class, new law students encounter cases involving plaintiffs who slipped on banana peels. Each case assesses the liability of premises owners based on a variety of factors, such as the condition or location of the peel. But just how many rogue banana peels are out there, anyway? Maybe it is time for casebooks to start updating their material.

They can start with the case of the woman suing a steakhouse chain after slipping on a peanut.

According to a report out of the El Paso Times, a Texas woman is seeking $1 million from Texas Roadhouse after slipping on a peanut shell thrown on the floor by a patron. The restaurant passes out peanuts to patrons and permits the shells to be discarded on the floor. The woman claims that Texas Roadhouse is responsible for the shells and should have either warned her of their presence or removed them.

Aside from the peel/shell distinction, this case is remarkably different than those read in law school. For starters, unlike the banana peel cases, this case doesn’t involve a single item mistakenly left on the floor. For anyone who has ever dined at these “Texas-style” steakhouses, peanut shells are scattered throughout the floor. Their condition is open and obvious.

More importantly, this case involves an object known by the landowner to be on the floor. Questions involving the condition of the shell or how long it has been left on the floor are moot. Instead of debating such minutiae, the inquiry can shift to whether the shells constituted a hazard and whether the plaintiff should have been aware of their presence.

These are, of course, questions that we actually encounter from time to time in our practice.

From time to time, we here at Abnormal Use receive recommendations on potential posts from our dear readers. Typically, readers alert us to wacky product lawsuits or hot coffee accidents. Such cases are right up our alley.

Other times, our readers think highly enough of us to send us cases like this one.

According to a report from Above the Law, a Tennessee attorney has sued Apple seeking protection for his porn addiction. That’s right. Apple created a porn addiction, and our readers thought we would be the perfect ones to write about it. They were correct, we suppose.

At first glance, the suit obviously sounds ridiculous. “Porn” addictions can be bred from anything. It depends on the user, not the vehicle bringing the access. On the other hand, the suit does raise some novel ideas. The plaintiff requests that Apple sell all products with a pre-installed porn blocker which can only be unlocked with a waiver filed with the company. The idea is not completely insane; however, we assume most people would prefer not to leave a paper trail granting them access to pornography. Plus, we would not envy the Apple employee charged with the handling of such waivers, as certainly, that worker would be inundated with paperwork.

Nonetheless, the plaintiff’s suit appears to be misplaced. The actual vehicle for the transmission of pornography in this case is the Internet itself – not Apple products. If Internet access to explicit material is a problem, then the proper target is much larger than Apple. Porn blockers on Apple computers will hardly prevent such access when the Internet is now as accessible as a water fountain.

We will monitor this suit as it moves forward, but we know how this one will probably end. The plaintiff will most likely get a legal lesson on not blaming other for his lack of self-control. If that weren’t the case, then porn-access litigation would snowball out of control (making the asbestos litigation look small by comparison). No one wants to pick up a catalog full of Victoria Secret models wearing overcoats.

(Hat Tip: Jim Beck of the Drug and Device Law blog).

Every now and then, a product hits the market that appears to have been taken straight out of Saturday Night Live‘s infamous “Bag O’Glass” skit.  You know the type.  A product that, while useful (or entertaining), seems to be begging for disaster if misused.  Recently, we here at Abnormal Use discovered one such product while perusing Amazon.com.

Meet the Laptop Steering Wheel Desk by Wheelmate.  That’s right.  A laptop desk for your car’s steering wheel!

According to the Amazon product description, the product:

Attaches to your steering wheel for easy access to a writing and drink storage surface. The Go Office Wheel Mate Steering Wheel Desk is flat for writing and perfect for lunch or a snack. This Go Office Wheel Mate Steering Wheel Desk stores neatly in your car when used with the larger Auto Exec Laptop Car Desk. For safety reasons, never use this product while driving.

Sounds useful.  We have all tried to jot down notes or browse our iPads in the car, wishing we had a flat surface to do so.  Now, this product solves those problems.  Like the Post-It Note, we all just wish we had thought of it first. Unfortunately, the laptop steering wheel desk presents a slight possibility of misuse.  We assume the product is intended to be used only when the car is parked.  After all, it has a warning label and a stock image showing the product in use while the steering wheel is upside down.  Not all products are always used as intended, however.  Just check out a few of these user comments:

“OMG! I am using it right now to post thi…”

“Watching movies is so much easier while I drive!  Thank you wheel desk!”

Two things we here at Abnormal Use detest: MTV’s Jersey Shore and retail clothing giant Abercrombie & Fitch. We understand that Jersey Shore and A&F appeal to some people, but we legal nerds have no place for spray tans and over-priced clothing – unless they cross paths in a courtroom. Much to our chagrin, after A&F released a t-shirt bearing the phrase, “The Fitchuation,” Jersey Shore‘s Mike “The Situation” Sorrentino filed a $4 million lawsuit against the retail chain, alleging trademark violations, deceptive advertising and misappropriation of his publicity rights.

A suit where there can be no winners, to be sure. According to the Hollywood Reporter, U.S. District Judge John O’Sullivan has now granted A&F’s motion for summary judgment. In a decision sure to make law school case books, Judge O’Sullivan notes:

Although the word ‘situation’ is not a word that was coined or made up by the plaintiffs, or a word that is obsolete, totally unknown in the language or out of common usage, the Court can discern no relationship between the word ‘situation’ and the apparel or entertainment services that the plaintiffs provide.

Moreover, Judge O’Sullivan found little in common between Sorrentino’s self-appointed nickname and A&F’s t-shirt.

The T-shirt expresses ‘The Fitchuation’ visually and phonetically different than ‘The Situation.’ There is no evidence of A&F ‘palming off’ its T-shirt as that of the plaintiffs where, as here, the T-shirt has the A&F inside label and prominently uses A&F’s own famous trademark ‘Fitch’ as part of the parody.

The highlight of the opinion, however, is Judge O’Sullivan’s response to a pre-suit press release put forth by A&F offering Sorrentino $10,000 to cease wearing its clothing.

A&F used only so much of the plaintiff’s name as was reasonably necessary to respond to his wearing A&F’s brand on The Jersey Shore, and did not do anything that would suggest Sorrentino’s sponsorship or endorsement. A&F’s press release expressly disassociated Sorrentino from A&F, and the plaintiffs have conceded that no third party has expressed any confusion that the press release rejecting Sorrentino’s image somehow suggested sponsorship or endorsement by Sorrentino.

Maybe The Situation should have taken that money. It is not $4 million, but it would be $10,000 closer to buying another 15 minutes of fame.

If you are a tortfeasor, there is a proper way to minimize the threat of litigation. And, then there is R&B singer Miguel’s way. Earlier this year, New Zealand exchange student Khyati Shah was injured during the singer’s performance at the Billboard Music Awards in Las Vegas. Apparently, Miguel kicked the woman in the back of the head while jumping between stages, slamming her head into a platform. As a result, the woman alleges cognitive impairment which arose one month after incident. According to reports, Shah was not taken to the hospital following the accident, but rather, given an ice pack and instructed to give an on-air interview alongside Miguel.

Her attorney describes her as “star-struck, dazed, and injured” at the time of the interview. Those acting on Miguel’s behalf are apparently unconcerned. Miguel has not offered any assistance with Shah’s medical expenses and has dared her attorneys to sue. Despite the pushback from Miguel’s reps, Shah’s attorneys still seek a resolution.

Regardless of whether Miguel committed a tort or whether Shah’s injuries are legit, daring someone to sue you is probably a good way to get sued. Even if Miguel prevails, the legal fees likely will not be cheap. At this stage, Miguel can do himself a service and save money in the long run by working with Shah’s attorney. The woman may understand that accidents happen and simply be looking for compensation for her loss – not a trip to Jamaica. Unfortunately, by shutting down communication, Miguel’s reps will never know.

Scandal is afoot at Quaker.  Cap’n Crunch has been outed for not being a real Captain.  The truth has been right in front of us for years – the three stripes on Cap’n’s uniform signify the rank of Commander – yet, we have been blinded by Quaker’s deceptive advertising.  Certainly, a class action among the millions duped into enjoying the fraud’s variety of cereals over the years is in the works.

In response to the scandal, the Cap’n took to twitter to declare his innocence:

Tell that to all of the legitimate captains that have come before you, Cap’n.

As Gawker has noted, because Cap’n commands the S.S. Guppy, he is entitled to be addressed as Captain regardless of his official rank.  Even so, consumers have been purchasing the cereal for years under the assumption that it had been blessed by a man who had fully paid his dues.  With no disrespect to Commanders, something about the cereal now seems less fulfilling.

The food and beverage industry must be run amok over the scandal.  Somewhere, we expect the good folks over at Coca-Cola are checking the credentials of Dr. Pepper, hoping the guy actually received his degree.  Can you imagine the outcry if Dr. Pepper lovers discover they have actually been consuming an over-priced Mr. Pibb all these years?  Where will the carnage stop? Companies are right to utilize the services of spokespersons to market their products.  A likeable spokesperson helps consumers identify with a product.  But, companies need to start engaging in thorough background checks in order to save themselves from Quaker’s embarrassment.  Certainly, in this case, checking the official rank of a military veteran would not have been outside the scope of discovery.

Earlier this year, 5-Hour Energy manufacturer Innovation Ventures LLC d/b/a Living Essentials was hit with a series of class action lawsuits alleging that its claims of increased energy without the subsequent “crash” were false. Innovation subsequently moved to dismiss those suits. Last week, the manufacturer found out that it must continue litigating at least one of those suits after a Florida federal judge denied its motion.

At issue in these cases is 5-Hour Energy’s product statement, “Hours of energy now – No crash later.” As self-proclaimed coffee connoisseurs, we are a little too old fashioned to know the effectiveness of an energy drink’s claim. Apparently, enough consumers to organize into three putative classes think the product statement is a bit of a stretch.

In one of the suits, Guarino v. Innovation Ventures LLC, d/b/a Living Essentials, No. 13-cv-00101-GPM-PMF (S.D. Illinois 2013), the plaintiffs allege that the product statement “is not true, as admitted on the Defendant’s website and hidden behind the bottles in the display, which reads: ‘No crash means no sugar crash.’” So Innovation is falsely advertising a product by placing true statements on its website and directly on the bottle? Now we see why Innovation filed those motions to dismiss in the first place.

While its motion to dismiss may have been denied, Innovation may still ultimately prevail in this suit. Pleading sufficient allegations to survive a motion to dismiss does not necessarily make a good case. Unfortunately for Innovation, it now must embroil itself in hours of litigation defending the case. For their sake, let’s hope there is no awful crash afterwards.

Last week, we here at Abnormal Use attended a CLE course offered by the South Carolina Bar on the state’s new Fast Track jury trial system. The system, authorized by an Order of South Carolina Supreme Court Chief Justice Jean Toal back in March, is a voluntary, binding jury trial before a smaller jury panel and a Special Hearing Officer selected by the parties. The Fast Track trial usually takes place within 180 days of commencement of the action.

The following points are highlights from the Chief Justice’s Order and the subsequent CLE:

First, for the Fast Track jury trial, there must be some cooperation between the parties. In fact, parties must consent to initiate the process in the first place. Once the parties consent to the Fast Track jury trial, they can stipulate to almost anything, including the admissibility of evidence, how testimony is presented, and what pre/post-trial motions are necessary. Without all these agreements, we seem to think parties would be best to keep the case on the circuit court docket.

Second, the results are binding and not appealable, so prepping the client beforehand is imperative. We imagine the smaller, Fast Track juries are just as unpredictable as their larger counterparts. Couple that with a non-judge presiding over the proceedings, and you have a potential for unexpected results – with no opportunity for appeal. As a result, Fast Track jury trials are great candidates for high-low agreements to help manage some of that risk.

Finally, Special Hearing Officers still get to wear judges’ robes. While not technically “judges,” Special Hearing Officers are at least granted the appearance in the eyes of the jury. The Fast Track system is set up to mimic the circuit court system as much as possible without expending as many of the court’s resources.

If you are practicing in the state, we encourage you to explore the Fast Track jury trial. However, we recommend leaving it to the minor car accidents and slip and falls. We doubt product manufacturers or seriously injured plaintiffs are going to want their fates tied to a system of relaxed evidence and unappealable results.

According to a report out of The State (SC), a South Carolina man charged with third-degree arson after burning his own home has been found not guilty by reason of insanity.  The state Department of Mental Health recommended the verdict after finding that the man burned his house because he believed witches were in the home.  Judge Ferrell Cothran complied with the Department’s recommendation, sentencing the man to no more than 120 days in a state mental health facility.

Before we chalk this story up as another case of offbeat South Carolina news, let’s pause.  If one believes witches are inhabiting his home, who are we to say he wasn’t justified in burning it down?  After all, fire is the best method of ridding oneself of a witch. If the man’s home was inhabited by vampires, he could have avoided any criminal conduct by installing an extra skylight or lacing the rooms with garlic.  Given the man’s predicament, fire was perfectly acceptable.  Why punish him for it?

We imagine this case would have been bigger legal news had there actually been witches inhabiting the man’s home.  In addition to arson, the man would likely be facing multiple counts of homicide.  Assuming the witches are of the supernatural, broom-flying variety and not practicing Wiccans, the Court would be faced with determining the rights of creatures formerly believed to be mythical. Should witches really be treated as humans in a court of law?  Answering the question in the negative would certainly breed a witch-led civil rights movement worthy of an episode of “True Blood.” This would be the South Carolina news the nation has grown accustomed to seeing.

Unfortunately, this story is limited to questions of capacity and its role in the courtroom.  We trust the Department of Mental Health and its determination that the man was suffering from some psychological illness at the time of the act.  With the commonplace depiction of vampires and zombies on television, we find it unlikely the man would chose witches as the culprit if he was simply making it up.  We understand the mens rea ramifications of an insanity finding and agree with the end result in the criminal context.

Well, McDonald’s once again finds itself on the wrong end of a case caption.  According to the New York Post, a gospel singer in Brooklyn, New York has sued the fast food chain claiming that her voice was ruined after biting into a piece of glass found in a chicken sandwich.  The incident, which happened way back in 2010, has allegedly caused the former alto to lose her soprano-status.  In addition, her now raspy voice has others confusing her for a man while on the phone. We suspect they may take this deposition by video.

As with any new lawsuit in its baby stages, we here at Abnormal Use have no idea whether the plaintiff’s claims are valid.  Nonetheless, we know how to defend the case from a damages perspective.  First, how is a voice ruined simply by biting into glass?  At least according to the report, it appears the singer’s allegations suggest she swallowed the glass, thereby damaging her vocal chords.  After knowingly biting into a piece of glass, wouldn’t the next step have been to spit out the food?  It seems some of these damages could have been avoided.

Second, how does one value the difference between an alto and a soprano, assuming the allegation is true?  Does an alto gospel singer find better singing gigs than sopranos?  We recognize that the change may have been unwanted, but it seems like the singer could make the most of the situation and turn this into a positive.

Unfortunately for McDonald’s, unlike the post-verdict, anti-tort reform rhetoric regarding the Stella Liebeck case, this matter won’t be tried on damages alone.  If glass was in the woman’s chicken sandwich, then it certainly should not have been there.  Once that presumed liability hurdle is surpassed, then – and only then – will her damages become an issue.