Back in 2011, Toys ‘R’ Us was hit with a $20.6 million verdict by a Massachusetts jury in a products liability case arising out of the death of 29-year old Robin Aleo.  The woman was killed while sliding down a 6-foot inflatable pool slide manufactured in China by Manly Toys and sold in the U.S. by Toys ‘R’ Us.  As the woman neared the bottom of the slide, it partially collapsed, causing her to strike her head on a concrete pool deck.  After a nearly two week trial, the jury awarded Aleo’s estate $2.6 million in compensatory damages and $18 million in punitive damages.  Toys ‘R’ Us appealed the jury award, and the Massachusetts Appeals Court heard oral arguments in the case last week.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

According to a report from Law360, Apple was sued Friday in a California federal court over an issue involving the iPhone 4’s power button. As you may know, there has been a great deal of Internet buzz among iPhone 4 users complaining that the power button becomes stuck or non-responsive after 1-year of usage. Because the button problems arose beyond the 1-year factory warranty, users were left without a remedy. Now, users are responding with a putative class action against the computer giant.

It is one thing to allege that a product is defective. It is quite another to allege that the product is rigged to fail just after the expiration of the warranty. Apparently, this is exactly what the class has done. It appears that the suit alleges that Apple not only knew and failed disclose the defective button, but also that it designed the button to fail as to render the phone unusable. That’s harsh.

We here at Abnormal Use do not have enough information to comment on the validity of the defect allegations. However, even if defective, we doubt Apple “rigged” the button to fail. What would Apple’s motivation be to do so?

We appreciate the rationale of a profit-motive argument, but it lacks an understanding of Apple buyers. iPhone users constantly upgrade their devices – broken power button or not. Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. While updating your new iPhone, upgrade a brand new personalized phone cover & for more details visit website. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace. Plus, we hope Apple users would be smart enough to move onto a new product line if the one you are using is defective.

It will be interesting to see how this suit plays out. Of course, Apple probably has the case rigged, right?

Last week, viral news site BuzzFeed released its “hotness” rankings of the various prosecutors appearing on NBC’s “Law & Order.” A daunting task it is to rank the attractiveness of our television colleagues. While BuzzFeed‘s efforts are admirable, it – like much of the general public – fails to view these TV lawyers for their total package. How shallow of them.

For example, by ranking Fred Thompson at No. 36 on the list, the author obviously failed to account for Thompson’s political career or his commercial work pushing reverse mortgages. What could possibly be more attractive than a politician encouraging others to take out loans accessing the equity in their homes? Obviously, BuzzFeed is ignoring the voices of its senior citizen readers.

And how can Alfred Molina rank a paltry No. 34? He is Dr. Otto Octavius, for goodness sake. We recognize that Spider-Man 2 was the worst of the trilogy and pales in comparison to the Amazing Spider-Man. But, he is still associated with the classic superhero and deserves more credit than a 34 ranking. BuzzFeed must be more a fan of heroes than villains.

As poor as the Thompson and Molina rankings are, they are by no means as laughable as placing Sharon Stone at No. 22. Stone is a legend. She has been dominating these types of rankings since the late 1980’s and deserves some respect. Last time we checked, Harry Connick Jr. (No. 6 on the list) never had a starting role in Total Recall. Ageism rears its ugly head once again.

Thankfully, there is no list ranking real-life lawyers in such a fashion. We here at Abnormal Use would not expect to rank very highly if such a list did exist. Especially, if BuzzFeed failed to account for our work as Old King Cole in our first-grade play.

Recently, in Quinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.

“If this was another country, we’d have to tell you that this coffee may be hot.  Good thing this is Canada!”

We couldn’t resist sharing this photograph above of a Canadian take-out coffee cup, which, not unexpectedly, is making the rounds on the Internet this week.  Twenty three years after Stella Liebeck spilled coffee on herself in the parking lot of a New Mexico McDonald’s, the culture still turns to her lawsuit for commentary and, as the image above indicates, legal humor.

So, today, we direct you back to our helpful Stella Liebeck McDonald’s Hot Coffee Case FAQ, in which we attempted to offer an objective accounting of the case using only the pleadings and contemporary media coverage.  Sure, such an objective, facts-only FAQ won’t earn us a spot on HBO’s documentary line-up, but we are still pretty proud of it.

(Hat tip: Overlawyered).

We hate the ellipsis.  There, we said it.  We can’t stand the ellipsis. Recently, we received a complaint containing not one, but seven, instances of our most despised punctuation device. Sure, we admit that the ellipsis has its proper place, but when used improperly, an otherwise formal pleading just looks foolish. Oh, my.

The Oxford American Dictionary defines ellipsis as “the omission from speech or writing of a word or words that are superfluous or able to be understood from contextual clues.” If one is inserting a quotation into a brief, and some of the words contained therein are insignificant, then the ellipsis has a home. If citing the first half of a quotation, but not the second half, then the ellipsis knows its place. If, however, you are making an allegation and are not satisfied with a single period to end your sentence, then we here at Abnormal Use have some problems. Oh, the humanity!

If we had to create an exception to the OAD definition, we would consider allowing the “yet to come” ellipsis usage to be acceptable. For instance, if we were to say, “If only we knew what would happen Friday night . . . ,” then by indicating that there is some form of unknown, the ellipsis has a point. In trying to keep with the definition of ellipsis, the “we don’t know what is to come” can be inferred from the contextual clues in the sentence. While not strictly within the plain meaning of the definition, we can at least understand why the ellipsis is being used.

We know our punctuation is not always perfect. In fact, we are certain that one could read over this blog and point to several instances of punctuation error. However, you won’t catch us ending pleading allegations with ellipses. There comes a point when enough is enough . . . .

The Masters tournament may be over, but golf is still in the news here in the Deep South. An Ohio man, Jim Wiencek, has settled his suit against the Ocean Creek Golf Club in Fripp Island, South Carolina arising out of an alligator attack. According to the complaint in the matter, 80-year old Wiencek reached down to pick up his golf ball near a small lagoon on the 11th hole of the course when a gator emerged from the water and ripped off his right arm. The course allegedly did not warn him of the presence of the gator. Thereupon, Wiencek sued Fripp Island Resort and its affiliates, and, as noted above,  recently settled his claims for an undisclosed amount. The case is captioned Wiencek v. Fripp Island Resort, Inc, et al., No. 9:11-cv-127-MBS (D.S.C. 2011).

The accident obviously resulted in a horrific injury. Fripp’s liability, however, was questionable. Typically, property owners are not liable for wild animal attacks. But, the plaintiff contended this case was different in that Fripp was on notice of the gator’s presence and failed to warn others or take any measures to assure their safety. There apparently is no known precedent on the duty of golf courses to warn of the presence of alligators. Because the case settled prior to trial, we still do not know how the courts would handle the situation.

Whatever the case, we believe golfers should bear at least some of the responsibility in this situation. Even without warning signs, we would like to think golfers are aware of the presence of alligators in every pool of murky water in the low country. The fact that the dark and brackish condition of the water obscured visibility should be a sign that gators could be near. We recognize that the plaintiff is from the gator-free land of Ohio, but it doesn’t take an episode of Swamp People to be aware of an alligator habitat. The plaintiff was an avid golfer, playing on many of the world’s top courses, so we assume this wasn’t his first rodeo on the Carolina coastline.

To be fair, this case is not a situation in which the golfer attempted to retrieve his ball from the brackish water. The gator actually emerged from the water to initiate the attack. Nonetheless, Wiencek could have assumed the risk of an alligator encounter by going near the water. Admittedly, we here at Abnormal Use have the benefit of living in South Carolina. With that comes the knowledge of the local rule that any ball hit near the water garners a free drop in the fairway.

Little known fact: we here at Abnormal Use are avid golfers. We are not particularly good at the sport, but we do find golf to be a great escape from reality. As much as we love the game, however, we often find ourselves aggravated with golf’s slow pace – a condition made exponentially worse when you find yourself playing out of sand, trees, and water.

Thankfully, 2012 Masters Champ Bubba Watson has heard our cries.

Watson has teamed up with hovercraft expert Chris Fitzgerald to create the “hovercart” in order to improve on the limitations of traditional golf carts. What limitations, you ask? The inability to drive in sand traps and over water hazards, of course. The hovercart travels over a bed of air allowing it to easily travel over any surface. With a footprint pressure 33 times less than the human foot, the cart could theoretically travel atop those delicate Bermuda greens. Though, something tells us golf course superintendents are going to draw the line somewhere.

The hovercart is not yet in mass production, but it should be the remedy for many of golf’s ailments. No more “cart path” only rounds on rainy days. No more embarking by foot on the treacherous trek into deep sand bunkers. No more parking 30 yards away from greens. No more walking. Sounds perfect.

We do not know whether hovercarts will ever enter the mainstream. But, anything that eliminates all of that pesky walking from getting in the way of swinging a golf club gets our support. If we could just get Watson to solve our slice, golf will be near-perfect. We can dream.

(Hat tip: The Daily Beast).

Someone needs to tell McDonald’s to take down the “Please think of some ridiculous reason to sue us” sign firmly planted on the grounds of its corporate headquarters. The fast food giant is back in the news after being sued by Chicago, Illinois woman, Anishi Spencer. According to a report from the Huffington Post, Spencer claims that in February 2012, her 2-year old and 3-year old sons discovered a used condom on the floor of the restaurant’s play area.  At some point thereafter, the 2-year old allegedly coughed up a piece of the condom, and both boys required medical attention.  The suit claims that McDonald’s failed to detect “deviant” activities on-site.  On behalf of herself and her two boys, Spencer seeks at least $50,000 in damages.

Call us crazy, but we would have thought Spencer herself would have had some duty to supervise her own old children.  Such duty should include stepping in to avoid condom interaction.  This situation suggests one of two possibilities, neither of which are good for Spencer:  1) either Spencer was supervising and failed to take any measures to prevent her child from encountering the condom, or 2) she was not supervising at all and should share the blame.  The only other explanation – the condom had nothing to do with McDonald’s at all.

Again, we have no way to verify Spencer’s claims or to attest to McDonald’s cleaning procedures.   That being said, this case is simply another example of the need to gather all the facts before the judgment.

We here at Abnormal Use are taking a break from our traditional witty commentary on product liability news to bring you this important announcement.

BIGFOOT IS ON THE LOOSE IN OUR HOME STATE OF NORTH CAROLINA!

And, apparently, he has beautiful hair.

According to a report from Greensboro, North Carolina’s Fox 8, a Cleveland County man, Tim Peeler, came into contact with a 10 foot tall Bigfoot with “beautiful hair” while he was calling for coyotes on his property. Thankfully, Peeler was able to scare Sasquatch away by “rough talking” him. Peeler was able to provide authorities with a sketch of the creature (pictured in the linked video above), observing that Bigfoot has six fingers on each hand. Law enforcement has filed a suspicious person report. The creature remains at large. So, beware.

Peeler is not the first to encounter the creature. Tales of Sasquatch date back to the indigenous population of the Pacific Northwest. Nonetheless, this report has a more meaning to us as it is in our own backyard.

Indeed, we are concerned about the ramifications that a population of sasquatch creatures may have on the legal system of the Carolinas.

Many bigfoot encounters take place when the creature is caught stealing chickens from a chicken coop or messing with other small animals. Had this conduct been that of a coyote or other wild animal, the property owner may have no legal recourse. But, what if the tortfeasor is a large, hairy, bipedal humanoid? The creature may be too human-like to be considered an animal, but is it also too non-human to be subject to suit in a Carolina court? Questions like these must quickly be addressed by the North Carolina legislature.

Even if Sasquatch could be sued, he is likely uninsured and judgment proof. Nonetheless, assuming suit is inevitable, he will need legal counsel. We will look forward to that opportunity. After all, Sasquatch has to make for a great witness with that beautiful hair and all.