We recently reported on the Consumer Product Safety Commission new safety ban on Bucky Balls.  Well, now, there’s a new allegedly “dangerous” toy ball on the market.  This time, it’s a product called Water Balz, marketed by DuneCraft Inc.

These brightly colored balls are about the size of a marble, but they can grow to the size of a racquetball when placed in water.

You can watch the product in action here.

What makes Water Balz so “dangerous?”  Well, much like the Bucky Balls, they don’t mix well with toddlers who treat them as food.  Two Texas parents recently found this out when their toddler ingested one of her older sister’s Water Balz.  When the toddler started having stomach problems, the parents suspected she had eaten one of the Water Balz.  Their concerns grew when they read the label, which explained that the balls expand up to 400 times if placed in water.  The parents took the girl to the hospital, but over the next 48 hours, the girl’s belly grew bigger and bigger, and her symptoms didn’t resolve.  Finally, the doctors operated.  In so doing, they cut open her intestine and discovered a bright-green Water Balz nearly an inch and a half across. Reportedly, the young toddler has fully recovered.

For now, no lawsuits have been filed over Water Balz.  We suspect that will change in the future.  Water Balz again raise the age old question for toys that cause injury.  Namely, whether the injuries are due to some inherently defective nature of the product or poor parental supervision.  I don’t think anyone would dispute that ingesting a chemical ball designed to expand in water creates a substantial risk of harm.  But the real question is, given that the product is not intended for ingestion, is it an unreasonably dangerous product?

Obviously DuneCraft’s CEO, Grant Cleveland, doesn’t believe Water Balz are unreasonably dangerous.  He told Reuters that said he was sorry to learn of the incident, but placed the blame squarely on the parents.  Said he:  “An eight-month-old has no business being near that product. Trying to turn it in to a public risk is absurd.” He also noted that the Water Balz product already carries warnings on the label and that the product is only recommended for kids over 3 years old.

I guess we’ll have to wait and see what happens.  It is not surprising, however, that some attorneys have already put out the APB for Water Balz plaintiffs.

Ever watch a horror film and think about all the potential tort claims? Think of all the car manufacturers who could be sued because their vehicles failed to start when needed the most. Certainly, those under-staffed hospitals in the Halloween movies breached a duty of care. And, what about premises liability claims for all those slip and falls suffered while fleeing the killer?

Just imagine the possibilities!

As we here at Abnormal Use like to believe, horror films are a microcosm of real life. Take this new suit in Illinois as an example. According to CBS Chicago, the father of a girl who tripped while being chased by a Halloween character has sued Six Flags. Last October, the girl visited Six Flags Great America for the Halloween-themed “Fright Fest.” While walking through the park, a “character” jumped out of a port-a-potty and chased the girl, squirting her with a water gun. As is always the case when fleeing a villain, the girl tripped and fell, suffering some scrapes on her arms and legs. The girl’s father is now seeking $30,000 in damages on her behalf. The suit alleges the park was negligent in encouraging employees to frighten and chase patrons despite the presence of tripping hazards. The report, however, does not indicate what tripping “hazard” caused the girl to fall. Based on knowledge of horror films, we assume that fleeing from a predator creates new tripping hazards.

Even though the facts in the report are sparse, Six Flags’ liability in this case is questionable. While we do not know the age of the girl, by attending an event known as “Fright Fest,” she should have assumed the risk of being confronted by a “Halloween character.” Admittedly, jumping out of a port-a-potty is a little sketchy, but that fact alone shoudn’t render the park negligent. Unfortunately, we do not know how the character pursued the girl. Chasing her violently and physically pushing her to the ground is one thing. Pursuing her at a Jason Voorhees-like pace is another.

Sure, all is fun until someone gets hurt. But, do we want to water down haunted houses and Halloween experiences over the fear of some scrapes and bruises?

At least movie directors don’t have these same constraints.

Here’s the cover to 2005’s Daredevil: Redemption #5 which, we must say, appears gritty, stark, and somewhat depressing. But that’s how comics are supposed to be now, right? What did Daredevil do, exactly, to merit the attention of Lady Justice, who doesn’t look particularly pleased? According to one Daredevil website, the story is based, in part, on the West Memphis Three, and the narrative sees far more of Matt Murdock (Daredevil’s lawyer alter ego) than the costumed superhero. Here’s a brief summary of the entire six issue limited series, courtesy of Amazon.com:

In the small, God-fearing town of Redemption Valley, a young boy’s body is found dead and mutilated. Is it a ritualistic killing? The local bad boy, Joel Flood, is arrested and put in jail. A black-garbed, “devil-worshipping” metalhead, he must be guilty… or is he? Enter attorney and super-hero Matt Murdock, brought in to save the troubled teen from what looks like a witch-hunt by an outraged community desperate for justice… and the death penalty. This may be the most important case of Matt’s career. A loss means justice denied and certain death for his client.

That’s some heavy duty material there.  No wonder it caught Lady Justice’s attention.

So we hear that Newsweek will go the way of so many other print magazines before it and go all digital.  Alas.  Back in the day, we were Newsweek subscribers, but then again, so were lots of folks.

How long has it been since you’ve read the official Abnormal Use mission statement, published way, way back on January 4, 2010? Well, that’s too long!

Did you know that you can follow our fearless leader, Mills Gallivan, on Twitter? To do so, simply click here.

A federal court just taught a valuable and expensive lesson to a wine connoisseur:  Unlike wine, legal claims age poorly.   In the late 1980’s, billionaire William I. Koch bought bottles of wine represented to have belonged to President Thomas Jefferson.  When he discovered that Thomas Jefferson actually had not owned the wine in question, he sued Christie’s Auction House for fraud in New York federal court.  However, the Second Circuit recently upheld the district court’s dismissal based on an expiration of the statute of limitations.  See Koch v. Christie’s Intern. PLC, — F.3d —-, NO. 11-1522-CV (2d Cir. October 04, 2012).

Koch’s argued  that Christie’s promoted as authentic a cache of wine that was supposedly bottled in the late 1700’s and linked to Thomas Jefferson.   Koch alleged that these “Jefferson wines” were, in fact, counterfeit, and that Christie’s knew or recklessly did not know of the wines’ dubious nature.  Koch purchased four bottles of the now discredited Jefferson wines from third-party dealers in November and December 1988, allegedly relying on promotional representations made by Christie’s.  In 2010, he brought suit on the issue alleging fraud and racketeering by Christie’s.

In 2011, a district court judge dismissed the case, finding Koch had missed the statute of limitations on the racketeering claim.  The heart of the issue was the operation and scope of “inquiry notice.”  Attorneys for Christie’s argued that news coverage of the Jefferson wine issue should have put Koch on notice at least ten years prior to his filing suit.  Koch argued that inquiry notice doesn’t trigger the running of the statute of limitations.  Instead, he said the statute doesn’t begin to run until a plaintiff has knowledge of a defendant’s scienter, as well as the alleged injury.

The Second Circuit agreed with the district court, holding that the statute of limitations began to run when there were “storm warnings” that should have prompted Koch to inquire into as to whether he has been injured.   It noted that the “storm warnings” need not spell out every aspect of the alleged fraudulent scheme.   The “warnings” will be sufficient to start the running of the statute of limitations when they would suggest to an investor of ordinary intelligence that he has probably been defrauded. Perhaps the District Court Judge, John Koeltl, put it best: “For wine, timing is critical, the same is true of causes of action.”

A few months ago, just back from maternity leave, I blogged about how I was feeling so inundated with warning labels.  We had just finished a house renovation, and I’d just had my second child, so the number of warning labels on everything from the new tub to the baby’s carseat were starting to drive me a little batty.  Okay, it could have been the sleep deprivation too, but I did wax poetic on the warning labels issue in that post.

Case in point.  Recently, I received a notice by email and in the mail that there has been a recall on Bumbo Baby Seats.  If you have no idea what I’m talking about, here’s a picture of one of these contraptions before the recall:

Now, I know it looks like a medieval torture device.  It’s not.  It’s one of the best baby products ever invented.  You put your not-quite-sitting-up-infant in the seat and WHAMO!  He can sit up!  The seat is light, and babies love it.  One important thing about this seat, or at least I thought, is that the baby is so wedged into the chair that he can’t tip it over, or tip himself out of it.  Both my sons have used the Bumbo, and neither one has ever tipped out of it.

Even before the recall, there were warnings.  Users are told not to use it in the bathtub or on raised surfaces, and there is also a warning to always watch your baby when he’s in it.  Well, it appears that wasn’t enough.  Apparently, some babies more determined than mine did, in fact, succeed in tipping themselves out of the Bumbo.  So, the company has issued a recall, and this is what the seat looks like since the company added a seatbelt:

And, of course, there is a new warning label to be affixed over the old one, something called “repair kit instructions,” and a video about how to properly use the Bumbo.

I know I’m being flippant.  Many infants and children are injured every year when products made for them are misused, or even when they are used properly (thus the recalls).  I’m not trying to trivialize those cases.  I do, however, see this as an example of the common sense filter I talked about in that prior post.

A quick comparison of the warnings included with the Bumbo prove my point.  The warning not to use the Bumbo in the bathtub is quite helpful–the seat resembles another product that is used to help a child sit up in the bathtub, and I can see how someone might confuse the two.  But an instruction not to leave the child unattended?  And a warning not to put a baby in the seat on a raised surface?  Come on folks.  That’s parenting/child care 101.  Those types of warnings are the worst, because they give us an excuse not to think for ourselves.  We get lazy, and believe that we need to be spoon-fed our own common sense.  We should expect–and want–better for ourselves.

Recently, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban the spherically shaped magnets known as Buckyballs.  As you might recall, we were a little critical of the CPSC’s over-zealous tactics to protect the public from swallowing the magnets.  Call us reckless, if you will, but we just didn’t see the necessity of banning a product whose alleged “hazards” could be cured by a little self-policing by the consumer.  The product had warnings.  Common sense could keep any accidents from happening.  Sometimes, it appears that, according to the CPSC’s logic, any product could be unreasonably dangerous.

Apaprently, the Buckyballs company made the same observation.

Buckyballs has taken to Facebook launching its own campaign against the CPSC’s logic.  As pictured above, Buckyballs’ creativity did not cease with the invention of the magnetic sphere.  It’s true.  Any product, including a bed, can pose a hazard when not used properly.  As much as we love warning labels, even with them, accidents can sometimes occur.  Obviously, it would be ridiculous to require these types of warnings for a bed.

While we agree that the CPSC’s draconian efforts to ban Buckyballs are ridiculous, the company’s campaign is comparing apples to oranges.  In most instances, falling out of a bed is accidental and not the result of the sleeper’s own comparative fault.  The ingestion of magnetic spheres, on the other hand, typically takes some ridiculous affirmative act.  Even though a warning should not be necessary with either product, at least with Buckyballs, the label need only warn the user to exercise common sense.

In the case of Buckyballs’ coconut spoof, we must respectfully disagree.  Coconuts should be banned, but not due to the risk of injury from their falling.  Rather, coconuts should be banned – or at least heavily regulated by the FDA – as an unsafe food additive.  How many times have you been handed a delicious looking piece of cake only to discover after biting into it that it has been tainted by this horrible food?  A discovery that undoubtedly induces a negative reaction – one that can pose dangerous to those in the vicinity.  Therfore, coconuts should be banned.  Perfect CPSC logic.

(Hat tip: Walter Olson).

Several weeks ago, a breach of contract/failure-to-warn lawsuit was filed in California state court against a specialty billiard table manufacturer. The case is Desert Beach, LLC v. Nottage Design Pty Ltd. et al, (Orange County). The complaint alleges that Desert Beach, which is a luxury resort, purchased a futuristic pool table from the defendants that – in my immodest opinion – is really, really sweet. Basically, instead of being covered in traditional green or blue felt, the defendants’ pool table is made entirely of glass. Make no mistake, regardless of the threat of war with Iran or the fact that some jerk-wad from Chicago literally just tried to hijack my bank account (props to Wells Fargo for shutting that down), this pool table represents a future I’m proud to live in.

Here’s the problem: The table is apparently easier to break than Michael Vick, who I’m told is also made of glass. Well of course, you may be thinking. A glass pool table is begging to be broken. That’s what I thought, too. However, the defendants allegedly coat each table in a synthetic known as “Vitrik,” which is supposed to make the table top highly durable. That’s one piece of the equation. The other piece is that only specialty billiard balls are to be used on the table. You could also get the best new pinball machines.

Which brings us to the lawsuit. The complaint alleges that defendants failed to tell Desert Beach about the fact that they had to use specialty billiard balls. So guess what Desert Beach did. They went to the Orange County equivalent of Wal-Mart (which may, in fact, be Wal-Mart, I don’t know) and bought the first set of billiard balls they laid their eyes on. And shot pool with them. And damaged the table so badly that not even Obi Wan could offer any hope.

Desert Beach called the defendants and asked them to make it right. And in a power-move befitting of a company who charges $73,000 for a pool table, the defendants allegedly told Desert Beach to pound sand. Then, again allegedly, the defendants tried to reverse engineer their website and other documents to show that Desert Beach knew they were only supposed to use specialty billiard balls with the table. Desert Beach was not amused by the underwhelming customer service and decided to double-down on the insanity with a lawsuit in California, the land of crazy lawsuits.

The defendants haven’t answered the lawsuit yet, so we don’t know their side of the story. But let’s be honest. The pool table cost $73,000. Did the defendants think that Desert Beach would just walk away from that? I mean, if you’ve got that much money to blow on a pool table, you’ve got that much money to blow on litigation to prove a point.

Why are superheroes always on trial? Above, you’ll find the cover of The Trial of Thor, published not so long ago in 2009. Why, pray tell, was the God of Thunder put on trial?  Summarizes the website Comicvine: “Did Thor snap? After an epic battle against the Frost Giants, the Thunder God is accused of murdering innocent Asgardians. It sounds impossible . . . except that Balder the Brave is an eyewitness to the carnage. Did the mayhem and stress of war finally push even the greatest of heroes over the edge?” We hope that Thor’s defense attorney subjected Balder the Brave to a vigorous cross examination; we suspect that there is some good impeachment material there, after all. Although we’ve not yet read the volume, we suspect Thor escaped severe punishment. (To see our coverage of “The Trial of Superman,” see here, here, here, and of course, here).

As you know, we here at Abnormal Use are huge, huge nerds.  This is why we couldn’t resist sharing this article from Mental Floss entitled “Alternate Histories: 7 More Ways the World Could Be Completely Different.”

Friend of the blog Walter Olson, of the Cato Institute and the famed Overlawyered blog, visited and spoke to students at the University of South Carolina this past week.  See here for some Facebook coverage of that event.

What does the canceled 2002 science fiction television show “Firefly” teach us about contract law?  Josh Gililands answers that question. “Firefly,” as you may recall, was a television series created by Joss Whedon, the same auteur responsible for TV’s “Buffy The Vampire Slayer” and this year’s The Avengers.  We’re not sure what he knows about contract law, but oh, well. (Hat tip: friend of the blog Dan Loyd).

As we near the end of 2012, the “blogosphere” as we know it is now, depending on your estimate, about ten years old.  Of course, there were precursors to what we now know as blogs, and those proto-blogs, or whatever we want to call them, pre-date what came to be known as the blogosphere.  A few months back, Overlawyered celebrated is thirteenth anniversary, meaning that it began its existence in 1999.

I can remember reading Overlawyered in the law library of Baylor Law School in Waco, Texas way back in 2000.  (Ah, the days of yore and legal studies.). Considering the amount of work involved in perpetuating a blog, it is amazing that the site has endured as long as it has, especially in light of the fact that it is run by just one person: the indefatigable Walter Olson.

2002, though, was the year blogs officially burst onto the scene, and a handful of sites that began that year celebrated their tenth anniversaries this year.

However, many of the blogs that began that year – or in the years that followed – have sunk into the depths of the Internet ether. I recently stumbled across an old folder of Internet bookmarks from the 2000-2002 timeframe, and most, if not all, of those websites are now lost to history.  So too are many, many forgotten legal blogs, which began years ago and failed or died somewhere along the way.  But blogs like Overlawyered and others have long endured, and it’s fascinating to chart their evolution.  One of the joys of a blog’s archives is that a reader can revisit commentary and case law and trace the origin of issues over the past ten years. We can learn legal history from a blog’s archives, just as we could from a collection of a newspaper writer’s collection of editorial columns, and there’s some great value in such a repository of wisdom and commentary.

But, all this got me thinking about the nature of the legal blogosphere and how blogs evolved and what the future has in store for them. Are their efforts to preserve the state and federal legal commentary that has accumulated over the past decade?  Are there really readers who revisit blog archives to ascertain how issues were debated and consensus evolved?  With courts themselves now citing blogs, what efforts are being made to preserve and protect those entries? What use is a court’s citation to a legal blog entry if the blog no longer exists? What can we learn from 10 years of blog posts and accompanying reader commentary?

We here at Abnormal Use do not have answers to these questions.  We’ve only been doing this blogging thing for two and a half years. But they are questions worth asking.

Over the past couple years, we here at Abnormal Use have written a great deal about hot liquid product liability cases.  Just this week, we reported on hot soup in a school cafeteria.  Last week, we told you about the case of the hot tea on an airline flight.  We have even kept you abreast on hot coffee litigation nationwide.  And, of course, the genesis of it all – Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.

Now, it all comes full circle as Saladoff has come to our backyard.

Tonight, from 7:00 to 9:00 p.m. at the EpiCenter Theater in Charlotte, North Carolina, you can attend a screening of Hot Coffee followed by commentary from Susan Saladoff.  The screening is sponsored by the Mecklenburg County Bar Association.  There is no cost to the general public or for attorneys not seeking CLE credit.  For those who would like 2 general hours of CLE credit, the cost is $90.

You may remember Saladoff cancelled an interview with Abnormal Use just prior to the release of Hot Coffee. We wrote at length about her background as a plaintiff’s attorney and her potential bias as a filmmaker covering the infamous Stella Liebeck McDonald’s hot coffee case litigation.  Maybe tonight, we may get the chance to finally meet her and ask her some questions.  We will be sure to report on our experience.