SmartLid Systems recently unveiled a new disposable coffee cup lid which changes from a dark color to a light color when introduced to heat. The lid is supposed to make it easier on consumers to know when their coffee is hot without the hassle of reading warning labels. A novel idea, to be sure.

While we all like to rely on color changing plastic, we here at Abnormal Use question whether the lid is superior to those pesky warning labels they are designed to replace. According to the company’s website, the “color changing lid works in a universal languge, COLOR!” SmartLid may want to rethink this “unversal” strategy. First, not all people distinguish between the full rainbow of colors we have come to know. For example, how can the lid account for colorblindness? After all, a common symptom of colorblindness is the inability to distinguish between different shades of the same color. Maybe these people don’t fit within SmartLid’s definition of universal.

Second, SmartLid does not even succumb to its own “universal” business model. If heat has a universal color, we imagine it would be “red.” Water faucets differentiate between hot and cold with the colors red and blue, respectively, almost anywhere you go. SmartLid, however, has not adhered solely to the “red is hot” philosophy. SmartLid advertises that it can create the lid in a variety of color options to incorporate a company’s existing brand colors so long as the hot color is lighter than the cold color. How is the customer to know which color means hot?

To alleviate this problem, the rim of the SmartLid remains its cold-state color even after the lid transitions. If customers are not fully informed about the functioning of the SmartLid, we doubt they would be able to recognize this distinction. Of course, SmartLid can always place a label on the lid to explain the transitions. And we thought these lids were supposed us to keep us from having to read.

As is the case with many gimmicks, the producers haven’t thought through all the perils of real life. According to SmartLid, coffee is to be brewed at 190 degrees, but shouldn’t be consumed until the temperature decreases. We assume the lids will change color at this temperature. As the coffee cools, the lid color transitions back to its original state – room temperature – without stopping to tell us when coffee is “safe” to drink. And how could it? Personal preference will always dictate what temperature you want to drink your coffee. Despite the lid, people will still test coffee the old-fashioned way – by sipping it.

There is nothing necessarily “wrong” with the SmartLid. Rather, the lid does little, if anything, to protect from the hazards allegedly associated with drinking a hot beverage. Whether it is a color changing lid or a warning label, the determination of whether to consume hot coffee rests with the consumer.

Last year, we here at Abnormal Use had the pleasure of interviewing Adam Avery, Brewmaster of the Avery Brewing Company and producer of a Belgian-style ale known as Collaboration Not Litigation.  As you may recall, Collaboration Not Litigation is the by-product of a “friendly mediation” between Avery and fellow brewer, Vinnie Cilurzo of the Russian River Brewing Company.  When the two discovered they each produced a beer called Salvation, they got together, had a few drinks, and mixed their respective beers together.  The end result – Collaboration Not Litigation.  That is a great story with a great ending.

We remind you of this tale as an introduction to the greatest ever lack of collaboration.  Faced with a similar situation, the Oregon-based Steelhead Brewing Company sent a cease and desist letter to Freetail Brewing Company, demanding that they stop using the name “Hopasaurus Rex.”  Apparently, Steelhead never tried to settle this dispute over an alcoholic beverage.  Freetail responded to this lack of courtesy as follows:

There is nothing like the realization that your legal fees purchased a life-like rendition of a bipedal carnivore from the Cretaceous Period.  We imagine Steelhead didn’t find this letter quite as humorous as we did, but we hear the Flying Spaghetti Monster had a few laughs with his carbon copy.  At least Steelhead can take solace in knowing they will be the recipient of a high-five at the next Great American Beer Festival.

Freetail’s response should be a reminder to us all that sometimes the simplest answer is the best one.  We understand Steelhead’s concerns.  We too have sent our fair share of demand letters under the guise of our firm’s letterhead.  As Avery and Freetail have demonstrated, however, some problems can be solved with a little open dialogue (and perhaps a few beers).  Brewmasters have grasped this concept.  Why can’t we?

Colorado’s Stanley Gale is a lot of things.  A skier with a Level I Alpine certification.  An alumnus of the Alpine Ski Patrol.  An expert qualified in the areas of ski safety and accident reconstruction.  However, in Squires v. Goodwin, No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment.  Preposterous, you say?  How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask?  Certainly, the court must be in error.

In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado.  The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a bi-ski manufactured by Mountain Man, Inc.  After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree.  The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center.  Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man.  The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.

Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert.  According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.”  Further, the plaintiff argued Gale’s opinions were based on “sound principles.”  However, these “sound principles” were never articulated.

The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings.  Gale has never been employed by a ski equipment manufacturer and has no formal training in the field.  While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis.  Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.”  Gale identified no formal methodology as a basis for his opinions.

Gale’s opinions did not cease with his “broken buckle” logic.  He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.”  While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments.  The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.'”  Apparently, these opinions are not the reliability envisioned by Rule 702.

Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale.  Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture?  Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of Mona Lisa Vito (Marisa Tomei) in My Cousin Vinny.  If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right?  After all, with 38 years of experience on the slopes, Gale has seen a lot of skis.  Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter (Lane Smith) and Judge Chamberlain Haller (Fred Gwynne).

Fortunately for Mountain Man, the Court got this one right.  Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result.  As for Gale, well he won’t be able to add “ski equipment expert” to his CV.  Maybe he can spend his time away from the trial, designing that braking device.

You may think your new iPad is the greatest Christmas present ever, but we here at Abnormal Use found something better. On December 23, an Illinois appellate court issued an opinion in Zokhrabov v. Park, No. 1-10-2672 (Ill. App. Dec. 23, 2011), bestowing upon Gayane Zokhrabov the right to sue the estate of a dead man for injuries she sustained when struck by flying portions of his body. Yes, you read that correctly.

In 2008, an 18-year old Illinois man stepped in front of a train and was killed at a Metra station in Chicago. Following the collision, a large portion of his body was propelled 100 feet onto the southbound platform and struck Zokhrabov from behind. As a result of the accident, Zokhrabov sustained a shoulder injury, a leg fracture, and a wrist fracture. She sued the man’s estate for damages by roping in a Bronx personal injury attorney, alleging that his negligence in walking in front of the train caused her injuries. The circuit court granted the estate’s motion for summary judgment on the ground that the man owed no duty to Zokhrabov. The Appellate Court of Illinois, First Division reversed, holding that the man could have reasonably foreseen that his negligence would cause injury to a passenger waiting in the train station nearby.

Many of you are probably appalled by this decision because it may sound both grotesque and ridiculous. Others are probably excited for the opportunity to reflect upon Cardozo’s infamous Palsgraf v. Long Island Railroad opinion. We here at Abnormal Use fall somewhere in between. On one hand, the idea of someone suing the estate of a man dismembered in an accident seems to go against our humanity. On the other hand, Zokhrabov allegedly was injured by the man’s body. There is no evidence the train operator was negligent in any respect. (The estate actually sued the train company for negligence. However, the case was dismissed and upheld on appeal on the grounds that the danger was “open and obvious.”)

As you may recall, Cardozo created the “zone of danger” test in which a duty only arises out of a reasonably foreseeable danger. the experts at https://www.accidentnetwork.com/, held that it was reasonably foreseeable that an oncoming train could strike, kill, and fling the man’s body into a woman waiting on passenger platform. The court indicated that the potential outcome of the man’s conduct was limited because the train traveled on a fixed, linear path within the speed limit. Physics lessons aside, Zokhrabov must have been standing at the wrong place at the wrong time.

Regardless of the grotesque nature of the claims, Zokhrabov has been given a gift – the opportunity to let a jury decide whether it wants to hold a deceased man liable for these injuries. And you thought your holiday gifts meant something.

P.S. This post was written entirely on a new iPad.

For a thorough analysis of this decision and its Palsgraf interplay, please check out this piece by Jonathan Turley of the ABA Journal‘s top legal opinion blog.

Today, marks the last day of 2011 blogging for us here at Abnormal Use.  With that also comes our last humble request for you to vote for us in the 2011 ABA Journal Blawg 100.  As we previously mentioned, we here at Abnormal Use were honored by being named to the 2011 ABA Journal Blawg 100 for the second year in a row.  We have been placed in the Torts category with five other excellent blogs.  The editors of the ABA Journal have asked that their readers vote upon their favorite blogs in each category, and today is the last day of voting!  

If you enjoy what we do here at Abnormal Use, we would greatly appreciate your support and humbly request that you cast your vote for us.  Here’s how:

Plug this website into your browser:

http://www.abajournal.com/blawg100

You will be prompted to register with the ABA Journal website.  It’s takes just a moment, as all you need to do is create a username and  password.

Once you have completed the registration, you will be taken to a page with a large logo at the top with twelve categories of blogs listed below it.

Click on the category labeled “Torts.”

Scroll down and find the entry for Abnormal Use.  Click the “Vote Now!” next to the Abnormal Use logo entry.

We’ll let you know how that turns out for us. In the meantime, we hope that you have a Happy New Year!

James Heselden, the owner of Segway, Inc., died back in 2010 after driving a Segway scooter off a cliff.   We imagine this news will one day be the foundation of a dramatic Segway urban legend.  For now, we assume this story has tipped the world that the Segway should be taken seriously despite its ridiculous exterior.  If the owner of the company can die while using his product, lay people better take caution.  Unfortunately, the apparent dangers of Segway operation wasn’t so well known back in 2009.

Recently, in Ezzo v. Segway, Inc., a Connecticut jury awarded $10 million to a plaintiff who fell and allegedly suffered a traumatic brain injury while operating the motorized scooter.  In September 2009, the plaintiff, a student at Southern Connecticut University, took part in a Segway obstacle course to raise money for the Special Olympics.  Segway employees brought two Segways to the university for the event and discovered that they had left helmets back at the office.  Rather than make a special trip back, Segway allegedly proceeded sans helmets.  During a blind-folded section of the course, the plaintiff lost his balance on the scooter and hit his head on the carpeted floor.  At trial, Segway argued the plaintiff fell because he blind-folded himself – not because he wasn’t wearing a helmet.  The reports are silent as to who was responsible for planning the blind-folded Segway run; however, the plaintiff was instructed to wear the blindfold by a campus police officer.    Segway has filed suit against the officer and the Special Olympics for indemnification.

For the record, neither Ezzo nor news of the Heselden’s unfortunate death offer any evidence that the product is defective.  Contrary to what you may hear from some of our more litigious friends, sometimes people are injured by perfectly safe products.  These accidents are the result of disrespect for the Segway.  Heselden died while riding the scooter along a narrow, uneven walkway littered by tree roots.  Ezzo was injured while driving blind-folded and helmetless.  The $10 million verdict is not evidence that something is fundamentally wrong with the Segway product.  Rather, as jury forewoman, Lorrie Hathway, indicated, “We felt the verdict was deserved.  The company instructed their employees to wear helmets, but did nothing to protect the students.” In other words, the verdict was about Segway’s alleged failure to protect its riders.

We recognize that at first glance the Segway may appear harmless.  Look again.  The Segway can reach a top speed of 12.5 miles per hour.  Twelve miles per hour might seem slow.  However, when you consider the average cyclist travels between 12-15 miles per hour, the Segway’s top speed gets a little more perspective.  How often do you see a cyclist on the road without a helmet?  Maybe, we should pay the Segway the same respect.

Last week, our very own Steve Buckingham wrote an intriguing (and quite funny) review of the infamous Santa (aka Kris Kringle) trial from Miracle on 34th Street.  As Steve correctly noted, the defendant in that film is not the real Santa, but rather a “good-natured elderly man with a love of Christmas who is correctly identified as having dementia.”  To our knowledge, the real Santa has never seen the inside of a courtroom.  Santa obviously has deep pockets, so this should come as a real shocker.   How Santa has been able to avoid litigation and public scrutiny over the last 200 years is beyond my comprehension.  Santa, I have news for you.  Despite your present run of lawsuit-avoidance, you are a tortfeasor.  Its time to lawyer-up because you have wronged me for the last time.

My history with Santa has always been very business-like.  We would typically see each other once a year.  At that time, we would come to an agreement in which he would deliver certain goods to my house on a certain date in consideration for my good behavior.  Santa always fulfilled his end of the bargain.  However, I found it odd he would never agree to make the exchange face-to-face.  Apparently, Santa had seen one too many Godfather movies because he valued discretion over all other things.  I preferred to make the exchange publicly during the daytime hours to make sure Santa didn’t try anything sinister.  Despite our contrasting styles, our arrangement seemed to work.  We had a good thing going.  Santa got whatever pleasure he derived from seeing well-behaved children, and I got my toys.

It all changed in 1987.  As usual, Santa and I had our annual meeting a few days after Thanksgiving.  We discussed the terms of the year’s transaction.  Because my behavior had been exceptional since our last encounter, I decided to up the ante.  Instead of the usual He-Man action figures, I requested a Nintendo Entertainment System.  Without flinching, Santa agreed.  I thought all was good. However, on the morning of December 25th, I went downstairs to our normal drop spot only to discover that instead of our agreed upon product, Santa had mistakenly left a bunch of Gobots! Gobots, of all toys!  If Santa wasn’t going to fulfill our deal, he could have at least had the decency to provide me with Transformers, not some generic rip-off.  Upon discovery of Santa’s betrayal, I tore my clothes and announced to the world that Santa was dead to me.  I vowed to one day hold Santa accountable for his actions. That was the sole reason I chose to become a lawyer.

Unfortunately, in 1987, I was unfamiliar with the legal remedy for breach of contract and the three-year statute of limitations.  Knowing that my claim was barred, I waited patiently for the day when Santa would slip up again.  Last weekend was that day.

My wife and I took our 3-year old daughter to the mall to do a little Christmas shopping.  The day started out uneventful, but upon arriving at the center of the mall, I made a discovery that was completely unexpected.  There he was.  Staring me straight in the eye.  Sitting on his throne.  Making deals with hordes of unsuspecting children.  Santa Claus.  My first thought was to walk right up to Santa and demand restitution.  However, getting into a verbal altercation was not the type of example I wanted to set for my daughter.  Instead, I decided I would walk away, pleased with this newfound knowledge of Santa’s whereabouts.  As I began to direct my family away from the scene, I felt a tug on my pants leg.  I looked down to see my daughter asking to go see Santa.  What do I do?  Do I tell her the man is a con-artist, crushing her innocent heart?  Or do I allow her to go spend time with my archenemy?  Well, as every father knows, we did what she wanted to do.  We went and saw Santa.

After waiting in line for 45 minutes (during which I concocted many stratagems), it was finally my daughter’s turn to meet Santa.  She walked right up and sat in his lap.  Santa flashed me a sinister smile, knowing that he once again had the opportunity to victimize the Farr family.  Then he looked at my daughter and asked her what she wanted for Christmas.  He had her.  This was his chance.  My daughter was about to confide in Santa her heart’s desires.  It was like watching an accident about to happen.  But to my surprise, she looked at Santa and said nothing.  Silence.  Santa was completely powerless over her.  Visibly defeated, Santa handed my daughter a cookie and sent her on her way.

While I never got my revenge on Santa, my 3-year old daughter had done it for me.  I was ecstatic.  We could rid ourselves of this Christmas menace forever.  But then I remembered the cookie.  To the outside world, I am sure the cookie appeared to be an innocent token of business appreciation.  But I knew the truth.  The cookie was a sugar-filled contract – a renewal of sorts – which Santa used to gain entry into one’s home.  I knew the the cookie must be destroyed.  Without instruction, my daughter voluntarily consumed this gingerbread contract of adhesion.

If I know Santa like I think I do, he will consider my daughter’s acceptance of the cookie as an open invitation to our home.  I have news for you, Santa.  This isn’t 1987.  Now, I am prepared to fight you with the weaponry of South Carolina tort law.  A minor under the age of four lacks the capacity to contract.  Ever heard of trespass?  You know, the unauthorized entry into the land of another?  Be warned.  Stay out of my property.   Stay off my land. If you choose to ignore my warning, you might also want to keep your hands off of those cookies sitting by the fireplace.  Those are mine.  Eat them and begin preparing your defense to the tort of conversion.

Please don’t treat my animosity towards Santa as an attack on Christmas.  I have nothing against the holiday.  My dispute is with Santa alone.  This conflict can only be resolved by our judicial system or a court appointed mediator.  Santa, just in case you were wondering, all I want for Christmas is to see you succumb to the long arm jurisdiction of the South Carolina courts, or, in the alternative, a Nintendo Entertainment System would suffice. Even after all of these years.

Every spring, our firm scrounges together a group of attorneys and staff members to play in a local Co-Ed Law Softball League.  Despite our stationary profession, some of us have maintained the athletic prowess of our youth and resemble actual softball players.  Others (including me), simply try our best to finish each game without suffering serious injury.  The games are meant to develop camaraderie both within the firm and the local bar.  However, when you bring a group of lawyers together, you should expect a certain level of competitiveness.  Diving catches.  Head-first slides.  Home plate collisions.  Whatever it takes to win.  But what happens when a “winning play” results in injury to your competitor?  With this many lawyers on the field, certainly someone can develop some theory of liability.  But will it be successful in a court of law?  Recently, our very own South Carolina Supreme Court handed us down some guidance on the issue.

In Cole v. Boy Scouts of America, No. 27072 (S.C. Dec. 5, 2011), the Court addressed a challenging recreational softball game.  The plaintiff and his son participated in a pick-up softball game during a Boy Scout camping trip.  Despite the fact that the score was not being kept officially, some of the fathers were playing “aggressively” and hitting the ball with “full swings.” Gasp.  During one such play, the defendant, attempting to score from second base, collided with the plaintiff, who was blocking home plate.  As a result of the collision, the plaintiff suffered a closed head injury and spent two days in the intensive care unit.  Thereafter, the plaintiff and his wife, personally and as guardian ad litem for their son, sued the Boy Scouts of America, the local Pack, and the defendant for personal injury, loss of consortium, and negligent infliction of emotional distress.  The defendant moved for summary judgment on the grounds that he owed no duty to the plaintiff because the plaintiff assumed the risks incident to the sport of softball.  The circuit court agreed, and the Supreme Court affirmed the decision.

On appeal, the plaintiff argued that the defendant’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive.  While we wish the Court would have used the opportunity to discuss the interrelatedness of sport and competitiveness and the horrors of non-score keeping, the Court opted for a more tactful approach.  The Court indicated that a risk inherent in sport can be found at any level of play possibly more so in a non-professional arena where the players are less skilled and athletic.  Whether or not the plaintiff was keeping score, he was still playing softball, which the court deemed a “contact sport.”  Accordingly, by playing softball, the plaintiff assumed the risks inherent to the sport, including home plate collisions.

So what should we take from this opinion?  First, according to our Supreme Court, recreational softball, like professional football, is a contact sport.  Second, keeping a softball game “non-competitive” will not affect the legal analysis.  Third, catchers are open targets, so long as you keep your conduct within the “scope of the game.”

We doubt the average softball player is considering his legal duty as he barrels towards a catcher blocking the plate.  But just in case he was wondering, he can take solace in the fact hat the Court respects the game.  Unlike the NFL, the Court is not going to penalize a player for conduct natural to the game itself.  Even if home plate collisions violated some over-protective rec league softball rule, the Court noted that rule violations themselves are inherent to the sport.

Last week, we wrote about a mishap with Victoria Secret’s new line of collegiate t-shirts.  Just days later, Old Navy has followed suit with its own defective product.

To the naked eye, these new Old Navy shirts look perfectly normal.  No misspelled words.  No mismatched collegiate logos.  No misplaced slogans.  On closer inspection, you will notice a slight problem – those dates at the bottom were apparently pulled out of a hat.  Those dates are meant to represent the founding year of each university.  The years 1820, 1878, and 1881 were probably fertile years to found universities.  The problem is the Universities of Iowa, Colorado, and Arizona were founded in 1847, 1876, and 1885, respectively.

We understand errors can happen, but this is inexcusable.  Before learning of this defect, like Old Navy, I had no idea when these universities were founded.  A simple Google search took me 1 minute and 43 seconds to verify the founding dates of each school.  With less than two minutes of work, Old Navy could have saved itself from this embarrassment.

This mistake really should not surprise any of us.  After all, Old Navy had to recall thousands of collegiate tees back in August after misspelling “Let’s Go!!”  Proofreading is obviously not a strongsuit.  If Old Navy can mess up such a simple phrase, we shouldn’t expect them to correctly handle “complex” dates and numbers.

To our knowledge, no lawsuits have been filed over these defective products.  Certainly, some University of Iowa fan has been damaged by the discovery that his university is 27 years younger than Old Navy’s proclamation.  Of course, there must be some level of comparative fault for having to learn a piece of your university’s history from a $10 t-shirt.

Victoria’s Secret has created many products.  In the past, our personal favorite has always been the “Very Sexy for Him” men’s cologne line, obviously.  After discovering Victoria’s new collegiate apparel, however, we are rethinking our opinions.  The PINK Collegiate Collection features women’s t-shirts, sweats, and under-garments (of course) for many of your favorite colleges.

Even though we adore the entire collection, we hear that Victoria made a slight error in the design of the Michigan State line.

At first glance, the shirt looks completely normal.  Low cut design.  Vintage font.  What East Lansing co-ed would not love this shirt?  One with any knowledge of the Michigan-Michigan State rivalry, that’s who.   You see that “Hail to the Victors” logo?  That’s Michigan’s motto.  You know, Michigan State’s in-state rival?  Unless Victoria is trying to mock those in Ann Arbor, we imagine this was an error.  If it was intentional, then Victoria clearly doesn’t understand the landscape of collegiate rivalries.

Rivalries are intense.  Back in 2006, a South Carolina man killed his friend over the Clemson-South Carolina football game.  For most of us, rivalries aren’t life-or-death situations.  However, we can all agree that wearing the merchandise of an arch rival is the equivalent of a scarlet letter.

According to reports, Victoria’s Secret pulled the shirt from its web site within hours of notification of the mistake.  We only wish we knew how many uninformed MSU fans purchased the shirt before it was pulled.  We imagine the shirt will show up as a piece of memorabilia in an Ann Arbor sports bar.