For me, golf carts stir up long ago memories. I remember begging my dad to let me be his caddy just so that I could drive the golf carts for rent.  Golf carts, although initially built in the 1930s as a way to transport disabled golfers from shot to shot on the course while able-bodied individuals walked with a caddy, are no longer used only to carry two golfers and their golf clubs.  Today, golf carts are alternative road vehicles, saving people from using their gas-powered SUVs or even their legs to traverse their gated communities, tailgate spots, business complexes, or school campuses.  Like most things in our highly personalized economy, golf carts no longer only come in a one-size-fits-all style; rather, color and the number of rows for seating passengers are among some of the features which may be customized to fit the needs of the purchaser.  As options have increased, so too have injuries and, in turn, the amount of litigation.

According to one study, the number of golf cart injuries increased an astonishing 132% from 1990-2006. Such injuries usually stemmed from passenger ejection or overturned carts.  In one such case, the parties settled soon after  the court granted summary judgment to defendants on some of the Plaintiff’s claims. That case was Lynn v. Yamaha Golf-Car Company. On August 16, 2012, the parties settled for an undisclosed amount following the Western District of Pennsylvania’s order granting partial summary judgment in favor of the defendants as to Plaintiffs’ post-sale duty to warn and failure to warn claims.  In that case, the thirteen-year-old Plaintiff Lynn was riding as a seated passenger in a Model Year 1999 Yamaha Model G16 golf car.  Plaintiff Lynn’s friend had been operating the G16 for less than one quarter of a mile along a rural and infrequently traveled road at the time of the accident.  The accident occurred when Lynn’s friend made a u-turn, and as she was turning left, Lynn was ejected over the hip restraint of the cart (although the G16 did not tip, rollover, skid, or lose traction).  Lynn sustained serious injuries.

Plaintiffs contended that the G16 was defective in its design as it failed to prevent passenger ejection.  However, Yamaha argued that the G16 was properly was properly designed, properly manufactured, and safe for its intended use because it was never designed, manufactured, or intended to be used as a mode of general transportation.

In addition to finding summary judgment was proper as to Plaintiffs’ warning claims, the Court determined Plaintiffs produced enough evidence to show there was foreseeable risk of ejection when the golf cart was turned sharply at or near maximum speed, particularly when children are passengers, and that there were two reasonable alternative designs available at the time the G16 was constructed.  Finally, the Court was not convinced by Yamaha’s argument that Plaintiffs were using the golf cart for an unintended use.  The Court stated that the intended use of the vehicle could not be limited to cut-turf golf course surfaces.  The Court found, rather, that golf carts are intended to be used to convey persons from one point to another at a relatively low speed and that a jury could reasonably conclude “non-golf-course” uses were entirely foreseeable.

Based on these findings, it appears that at least in the Western District of Pennsylvania, holding onto the original use of a golf cart will not be a winning argument.  However, if the number of injuries keeps increasing as the uses for golf carts are broadened, each case will be factually intensive, and it will be interesting to see how courts treat these claims going forward.

We here at Abnormal Use often write about hot beverage litigation. Just last week, we reported on the tale of the hot tea and the airplane.  And, of course, we are no strangers to the McDonald’s hot coffee case.  Most of these hot beverage lawsuits share a common hurdle – the liquid at issue is intended to be served at temperatures the plaintiff’s later deem “unreasonably dangerous.”  If a consumer demands his beverage to be served hot, he shouldn’t be able to sue the restaurant for meeting his expectations.

But what happens when the hot liquid is a cup of soup?  And the consumer is an young old girl in a school cafeteria?

In Wisconsin, an 8-year old girl has sued the Beloit Turner School District over burns she sustained by a cup of soup served by the cafeteria staff at Powers Elementary School.  According to the Janesville Gazette, the complaint alleges:

The hot soup was placed on the girl’s lunch tray. She began to carry her tray to another table, but someone bumped her, and the tray tipped, causing the hot soup to spill onto her left forearm and cause injuries.

Further, she alleges that the School District and its cafeteria staff were

[N]egligent in serving a substance at an unsafe temperature to an 8-year-old child, were negligent in failing to properly instruct its students on how to carry the unsafe substance, failing to properly warn its students of the unsafe substance and the dangers thereof, and failing to properly supervise its employees, agents and students at all times material to this complaint.

At this time, there is no information regarding the temperature of the soup.

As an initial matter, this case is clearly distinguishable from many of its hot beverage predecessors.  First, the plaintiff is a minor and doesn’t share the same degree of culpability for assuming the risk of her food choice (if she actually had one).  Second, she was required to transport the hot soup on a lunch tray through the cafeteria – a scenario that can lead to spills.  As a result, this case could find itself in the hands of a jury.

Nonetheless, a bowl of soup shares one thing in common with a cup of coffee.  Even in a school cafeteria, soup is expected to be served hot.  If not, parents would undoubtedly be complaining at the district office.  While we do not know the actual temperature of the soup served, the school district should not be found liable solely on the basis of serving “hot” soup.

As stated above, this case is unique in that it involves a minor in a school cafeteria.  Obviously, the school has some duty to look out for the safety of students.  But how far should that duty extend?  This is not a case about a corporation allegedly sacrificing safety to protect its profit margin.  School districts all across the country are in dire straits financially.  Should we really require that they provide warning labels on its soup bowls?  Or, will a simple verbal warning suffice?

Certainly, this case presents some novel issues for the hot beverage (or food) progeny.  We will be sure to keep you posted as more information surfaces.

Above, you’ll find the cover of Robocop #17, published way back in 1991.  “You have broken the law and betrayed us all!,” exclaims Robocop, who probably should never have received his own comic book series.  He  continues: “The sentence, Officer Lewis, is death.”  Something tells us this is not permitted by the sentencing guidelines in the future.  You would think Officer Lewis would at least have her union rep present for this “proceeding.”  But something isn’t right here. Robot cops get to charge, convict, and sentence their fellow officers?  If that is the “future of law enforcement,” that is not a good thing.

By the way, do you know how difficult it is becoming to find legal themed comic book covers after publishing one a week for nearly two years?  Wow. Although, in fairness, you probably had a sneaking suspicion that it was becoming a challenge when you saw that this week’s issue featured Robocop.  We’re really having trouble maintaining a straight face every time we type “Robocop.” Oh, well.

By the way, as we mentioned yesterday, this post – the one you are reading this very moment – is our 750th post.  We observed the anniversary yesterday (so as not to make this edition of Friday Links too self indulgent), but we must confess that this is quite an occasion for us.  Way back in January of 2010, when we started this blogging thing, 750 posts was an unimaginable goal.  And yet here we are.  Thank you for your support.

It’s been a while since we checked in on the North Carolina Law Blog.  Just this week, though, that site ran “Choosing a Practice Area: The Smaller, The Better” by Joyce Brafford. Check it out.

Apparently, hazing lawsuits, or at least the incidents they are based upon, are not new.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

As you know, perhaps all too well, we here at Abnormal Use love to observe arbitrary anniversaries.  And so it is today that we celebrate the occasion of our 750th blog post.  Mind, this post – the one that you are reading right now – is actually our 749th post.  Our official 750th post will appear tomorrow.  But, as you may also know, each Friday, we serve up the latest edition of our patent pending “Friday Links” column, so we decided to pat ourselves on the back today – one day early – for reaching 750.

(“Friday Links” is already self indulgent enough without us focusing on our number of posts.).

This is not our first such post; we’ve done a few of these before: Our first milestone, 100 posts back in May of 2010, then 500 posts in November of 2011, and for some reason, 700 posts back in July of 2012.

This site would not be possible without the support of our firm, Gallivan, White, & Boyd, P.A. (now with offices in North and South Carolina).  The real heroes, though, are our authors: Nick Farr, Rob Green, Frances Zacher, and Steve Buckingham, all of whom go above and beyond the call of duty each week to submit posts offering timely and fun commentary.  They are the reason we’ve been able to reach this latest milestone, and here’s hoping that we reach 1,500 posts some time in the future.

By the way, above you’ll find the cover of Action Comics #750, published not so long ago in the halcyon days of 1999.  There are not many comic book series which have reached 750 issues.

As you can imagine, we here at Abnormal Use are big fans of the United States court system.  We recognize that it’s not perfect, but, on balance, it does a pretty good job protecting the rights of litigants–both plaintiffs and defendants.  The lawyers helping with bankruptcies in Oklahoma City area say that some lawsuits are just ridiculous.  We are not advocating that some people be denied access to the court system.  What we might want, however, is for lawyers to sometimes take a step back and ask potential clients, “Do you really want to bring this before a judge?”  Below are two lawsuits we found recently that might have benefited from such an inquiry.

The case of the prematurely fading lipstick:

The Wall Street Journal Law Blog recently posted about a new suit seeking class action status against Maybelline, a cosmetics company that sells lip gloss and lipstick lines that it claims will last for 10 hours and 14 hours, respectively.  The plaintiffs allege, as you can imagine, that the lip color does not last nearly as long as advertised by Maybelline and have filed suit in Manhattan federal court. That’s right.  A New York federal court is going to have to decide if Maybelline has violated federal law, as well as consumer protection laws in New York, Michigan and New Jersey, simply because women might have to re-apply lip color more than once every 10 hours.

The case of the beer bottle in the bar-room brawl:

Hat tip:  Overlawyered:

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment.

I would love to see a total bill for the court fees, lawyer time and expenses, and pro-rated judge, court reporter, and bailiff salaries that were incurred just getting this thing thrown out.  One of the comments on the Overlawyered blog suggested that the plaintiff’s lawyer be sanctioned under Rule 11.  Not sure we’d go that far, but this one definitely doesn’t pass our smell test.

Forum shopping fiasco:

While we’re on the subject of questionable moves in the legal world, I noticed a story in the Wall Street Journal on September 24, 2012 about the Philadelphia Court of Common Pleas.  Apparently, budget cuts prompted Judge Pamela Dembe to throw wide the doors of Philly’s courthouses for lawsuits–and, in turn, open the court’s wallet for filing fees.

As the story noted, lawsuits–primarily in the asbestos and pharma areas–exploded “from 550 in 2008 to nearly 2,700 last year.”   A new administrative judge, John Herron, is trying to clean up the mess that Judge Dembe’s invitation created for the court system up there.  As Judge Herron commented in the story, “Courts should not be in the business of making money.”  In our opinion, such blatant forum shopping should not be condoned–let alone suggested or supported.

Hot beverage litigation lore now has a new chapter – “Tea, Airplanes, and Bulkhead Seats.” According to The City Paper, a Tennessee woman, Angelica Keller, has sued Southwest Airlines after spilling hot tea in her lap mid-flight. Keller spilled the beverage when attempting to pry loose a tea bag wedged between two cups. Apparently, Keller was seated in the first row of the plane, so she did not have an available drop down table to rest the cups. Before she could unbuckle her seat belt and stand up, the hot tea spread around the seat cushion, allegedly causing her second degree burns. Thereafter, she filed suit against Southwest, alleging that the airline failed to warn her of the hazards of delivering a hot beverage during a flight in a bulkhead seat.

On the one hand, this matter sounds eerily similar to the infamous McDonald’s hot coffee case. Passenger injured while holding a hot beverage in her lap. Burns exacerbated by sitting in the liquid. Facially ridiculous lawsuit to follow. Abnormal Use picking up the story.

On the other hand, this case does have some intricacies that may distinguish it from its coffee predecessors. Notably, due to her mode of transportation, the plaintiff was under the control of the defendant. It is at least arguable that the accident could have been prevented had Southwest provided tables for the bulkhead seats. Moreover, unlike the consumer who purchases hot coffee and is free to go wherever he chooses, an airline passenger confined in a packed seat thousands of feet in the air has no such luxury.

Unlike the hot coffee cases which allege that restaurants are serving an unreasonably dangerous product, this suit alleges that Southwest is negligent for serving hot liquids on a potentially turbulent flight. An interesting concept, that is. Interestingly, the plaintiff does not appear to allege that the spill was caused by turbulence, but rather, by her own conduct.

Regardless of their differences, this suit has one glaring similarity to the hot coffee cases before it – the beverages are meant to be served hot. Users should assume the risk of burns when handling a known (and desired) hot liquid.

As we posted last week, there’s a new “popcorn lung” case on the block.  Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case.  While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment.  Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring.  This new case involves a Plaintiff who just REALLY liked popcorn.  He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis.  One purported cause of bronchiolitis obliterans is the chemical diacetyl.  Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn.  The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day.  At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung?  By eating popcorn.   A LOT OF POPCORN.  This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years.  He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans.  While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million).  The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.  A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages.  They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?

What is up with the mugshot procedures in the Gotham City Police Department? Apparently, it’s a free for all, and as depicted above, criminals can make a mockery of their mug shots with impunity. Surely the booking officers there have a bit more control over the process, eh? By the way, that’s the cover to Gotham Central #15, published not so long ago in 2004. (To see a different comic book mug shot profiled some time ago on Abnormal Use, click here.).

If you’ve ever asked yourself “where does [Plaintiff’s lawyer and blogger of note] Max Kennerly stand on frivolous lawsuits?”, then this series of tweets is for you.

Although we’ve knocked Bob Dylan in the past (here, a brief reference  here, and here), we must confess that we really dig his new album, Tempest.  Who knew he still had it in him? To learn more about it, see here.

Speaking of music, we note that the opening lyrics of Angel Olsen’s new song, “Miranda” are, in fact, the famed Miranda warnings. It’s a sad love song, though, not a ballad of criminal procedure. The song appears on the album Half Way Home, which was released earlier this month.

Congratulations to Abnormal Use blogger Nick Farr,  and his wife Jill, on the birth of their new son Hayden Andrew Farr, 9 lbs and 21.5 inches long born on 9/22 at 7:05 am. You can follow Nick on Twitter here!

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good.  Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome.  The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

We, as lawyers, learn many, many rules from many, many texts, including statutes, cases, regulations, and such.  But what allows a practitioner to rise above the rest is his or her knowledge of the unwritten customs of the practice of law.  These practices vary from jurisdiction to jurisdiction, state to state. The most universal of them all, though, is the old familiar rule:  no depositions should start before 10:00 AM local time. Really, this informal custom is part of the glue that holds our profession together.

Really, this should be incorporated into some future draft of the state and federal rules of civil procedure.  Generally, most lawyers follow this unwritten custom, taking into account the fact that colleagues planning to attend a deposition may want to stop by their own office first or travel from another city before arriving at a deposition.  The standard 10:00 AM start time even permits an attorney flying in from a far away jurisdiction to possibly catch an early flight and arrive on time.  If not, this standard start time allows those who fly in the night before to accustom themselves to their new surroundings and make it to the deposition without unnecessary haste. All in all, the custom preserves some level of peace and tranquility.

I raise this issue because lately I have seen a number of notices calling for the deposition to begin at – gasp – 9:00 AM.  Oh, the humanity! Mind you, these instances were not circumstances where the deposition needed to start earlier than 10:00 AM. Rather, the noticing party just decided to set the deposition start time at 9:00 AM. Alas. Of course, there are exceptions to the informal rule, typically doctor depositions, because physicians may only be able to present themselves at some unusual time before or after business hours. And, of course, there’s always the occasional witness who may only be available at some strange and unusual time. But generally, depositions should start at 10:00 AM.  No question.