In July, 2010, an eight-year-old girl referred only as “N.K.” in court documents sustained injuries when her foot became caught in the side skirt of a moving escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station.  At the time, N.K. was wearing Crocs-brand sandals and riding a few steps ahead of her parents.  N.K.’s parents and other witnesses tried to stop the escalator by using its emergency stop switch, but that didn’t work.  A good samaritan finally managed to pull N.K.’s foot out of the escalator before it reached the top. N.K.’s mother, Nancy Geshke, brought a products liability action in Massachussetts federal court against Crocs, Inc.    We’re not sure if the elevator manufacturer or the MBTA were ever parties to the action, but in any event, the case proceeded against Crocs.  In its opinion granting Crocs’ motion for summary judgment, the district court discussed the various warnings posted on the escalator itself, portraying children getting caught in the escalator and warning of the same in writing, so perhaps Plaintiff chose not to pursue that avenue. See Geshke v. Crocs, Inc.,  No. 10-11567-RGS (D. Mass. Sept. 7, ,2012) [PDF].

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

Recently, the Consumer Product Safety Commission recalled custom-made horizontal and vertical blinds manufactured by Michigan-based Blind Express.  According to the CPSC report, the vertical blinds contain adjustment cords that do not attach to the wall or floor.  Likewise, the horizontal counterparts do not possess inner cord stops to prevent the cords from being pulled from the blinds.  As a result, children can become entangled in the cord loops.

The recall was prompted by a report of a 2-year-old girl strangled in the cord of some vertical blinds.

We here at Abnormal Use have not always seen eye-to-eye with the CPSC.  The CPSC, for all the good it does, is sometimes overzealous with its recalls.  In this instance, however, we can agree that loose blind cords present good grounds for a recall – especially when young children are placed in harm’s way.

Nevertheless, while we may support the end result, let us be a little a critical of the CPSC’s methods.  Just check out these photos from the CPSC recall notice:

Wow. We can understand using “fire and brimstone” tactics to make a point, but hanging baby dolls may be a bit excessive.  The blinds pose a strangulation hazard.  We get that.  But please explain how babies get trapped in the cords and then somehow suspended in mid-air?  We are guessing these are not accurate depictions of the hazards.  Something about these photos screams more psychopath journal than instructional warning label.

Illustrative warnings can be helpful – and sometimes even necessary – to get the point across.  Sometimes, however, a simple diagram will suffice.

Above, you’ll find the cover for Daredevil #16, published not so long ago in, well, 2012. (We’ve previously mentioned Daredevil, and his lawyer alter ego Matt Murdock, here and here, and we even interviewed Daredevil writer Mark Waid a year ago.). This is a pretty depressing cover. Although we’ve not yet read the issue (because it is so new), it appears that Murdock and his long time friend and law partner Foggy Nelson are parting ways. Murdock’s name is even crossed  out on the firm’s front door.  That’s not good. We knew that there were some tough times out there for the legal profession, but when Daredevil has to leave his law firm, it’s getting ridiculous!

Of course you know of Edward Herrmann, the character actor who played the evil head vampire in The Lost Boys. He’s played FDR on screen an few times, too. The Onion A.V. Club recently interviewed him as a part of its “Random Roles” series, and in so doing, they asked him about his role in The Paper Chase, the classic law school film.  Here’s what he had to say:

Oh, that was fun. I was in New York, I got there in ’70, and it was basically my first proper movie. Besides, of course, that immortal performance in Lady Liberty. [Laughs.] We shot it up in Kleinburg, in Ontario, and there were two big soundstages, and they built that lecture hall on one of the stages. Next to it was a film that was being directed by a director I eventually worked with, a wonderful director named Dan Petrie, who did the Roosevelt films [Eleanor And Franklin], and he was doing one with Ben Gazzara and Yvette Mimieux and Ernest Borgnine [The Neptune Factor]. It was about submarines, and they go down and there are creatures that eat them and all of this stuff. It was science fiction. And, oh, God, I’d go over there during lunchtime, and I saw all of these sets, all of these aquarium tanks where they had versions of the characters made out of fish food so that the fish would eat them. And I thought, “Boy, this is a real movie! All we’re doing is talking!” [Laughs.]

But Anderson was fun. It was a bunch of great actors. Graham Beckel and Tim Bottoms. But John Houseman came up, and it was touching, because he was nervous as hell, and he kept blowing his lines. It was a little scene in the office, one of his first scenes, and I felt the need to be cordial… me, the old veteran, who had never made a proper movie. [Laughs.]

But it was very useful, because down the street there was a Bette Davis festival going on. And they were proper 35mm prints, and I saw for the first time, classic, top-of-the-line Warner Bros. ’30s sob-sister movies, and… I began to see, “What’s all this fuss about Bette Davis? She overacts, she’s got splinters in her teeth from eating the scenery. But who’s this guy George Brent? He’s wonderful… because he doesn’t do anything!” And it helped me in The Paper Chase, because James Bridges was directing, and he was really wonderful with us youngsters. With the study table, the camera would go around and pick up all of our close-ups and stuff, and I was acting my socks off. And he said, “Great, cut, print. That was wonderful, but… they can see that in the balcony, so can you just pull it back just a little bit?” So I did. “Great, cut, print. Okay, that was in the mezzanine.” We did it again. “Now we’re in the orchestra.” I brought it back and brought it back until I thought I wasn’t doing anything. But then I went to see George Brent, and I realized, “He’s not doing anything except for being he’s the guy he says he is.” And that was a real lesson in film acting.

By the way, we’re pleased to announce that Todd R. Davidson has joined our firm’s Greenville office as a partner. With 23 years of experience as a transactional attorney, Todd will be a great addition to our firm’s Business and Commercial Practice Group. We have not yet convinced him to join the blog, though. But we’re working on it!

Beef Products Inc. (BPI) was featured in ABC News reports a number of times this spring.  As you might guess from the title of this article, the news reports were not favorable.   The reports concerned possible health and nutrition issues with BPI’s “lean finely textured beef.”  ABC News even went so far as to refer to it as “pink slime.”  In response, BPI has filed a defamation lawsuit against ABC News, Inc., among others, seeking $1.2 billion in damages over the allegedly false and malicious coverage.

BPI’s “lean finely textured beef” is produced in a process by which bits of beef are heated and treated with a small amount of ammonia to kill bacteria and then compressed together for use in ground beef products.  Yummy!  Apparently, this practice meets federal food safety standards, and the product can properly be referred to as beef.   It does not appear that the USDA has ever declared the product to be unsafe.  Of course, that really only means that the product probably won’t make you sick.  It doesn’t necessarily mean that the product is nutritious.

According to the lawsuit, ABC News ran 11 television segments and 14 online news stories in March and early April of 2012 as part of a “month-long vicious, concerted disinformation campaign against BPI.”   BPI’s attorney claims that the reporting was designed to mislead consumers to believe that BPI’s “lean finely textured beef” was unhealthy and unsafe.  BPI has allegedly had to close three of its four plants and lay off 700 workers.  However, ABC was certainly not the first entity to refer to BPI’s finely textured beef as “pink slime.”  A Department of Agriculture microbiologist (also named in the suit) apparently coined that term a few years ago.

Unfortunately for BPI, defamation claims are notoriously hard to prove.   Not only will BPI have to prove that the information was false, but it must also prove that the ABC News knew that information was false and chose to ran it anyway.  Proving ordinary negligence by a news outlet just won’t cut.  Luckily for the media, they can be negligent until the cows come home (pun intended) with little or no repercussions.  In fairness to ABC News, I took a look at several of the stories archived on the ABC News website and nothing in them appeared to give BPI much of case (see e.g., story number 1).

Regardless of the merits of this particular lawsuit, it does go to show the power of the media.  It makes you wonder whether the law should allow a news outlet to be held accountable if it negligently runs a series of false stories that essentially put a company out of business and 700 employees out of work.  Discuss among yourselves.

What’s an ear infection, ringing of the ears, and tightness of the neck/back worth?  According to a California woman, it’s worth $1.7 billion.  Yes, you read that right!  That’s billion with a “b,” not million with an “m.”  And the culprit that has caused such grievous injury?  None other than the city’s newly installed “smart” parking meters.

The City of Santa Monica, California recently installed smart parking meters that allow drivers to use smartphones and credit cards to purchase metered time.  The parking meter slots have sensors that will reset a meter when a parking space is vacated.  A local woman named Denise Barton recently filed a lawsuit seeking a mere $1.7 billion plus $1.7 million per month thereafter in damages because the wireless signals emitted from the meters are making her sick.  Apparently, shortly after the parking meters were installed, she developed an ear infection which required antibiotics to treat.  She must have one hell of a doctor, because he was able narrow the cause down to the city’s new parking meters.

The City of Santa Monica claims the wireless emission is at a very low level and extends only up to eight feet from the meter.  Assistant Finance Director Don Patterson told the Santa Monica Daily Press, “The Wi-Fi is very low level and only communicates between the meter and the sensor, about 5 to 8 feet… It’s the same as someone using a cell phone walking on the sidewalk.”  According to the city, the meters comply with all necessary regulations related to wireless communication.

There have been no other complaints over health issues caused by the meters, except those of Barton.  Although the dangers of wireless radiation have been widely disputed, the studies usually focus on holding a cell phone to your head for long periods of time.  The studies don’t access the dangers of walking past someone sending a text message.  Then again, we’re sure Barton’s attorneys have some great new studies because we all know an attorney would never file a frivolous claim.  However, if that’s the case, why on earth isn’t she suing the cell phone carriers for her health issues?  Perhaps those mammoth companies don’t have deep enough pockets for her $1.7 billion claims?

“Man goes to bar.  Man consumes alcohol.  Man rides mechanical bull.  Man falls.”

A familiar story to anyone who has ever visited a Texas-style honky tonk.  The synthesis of alcohol and a simulated rodeo is difficult for anyone to resist.  Unfortunately, the combination can also lead to embarassing falls and, in some cases, injury.

Sounds like the makings of a good lawsuit, right?

In Thom v. Tonk, No. 03-11-00700-CV (Tex. App – Austin, Aug. 30, 2012), a Texas man filed suit against Rebel’s Honky Tonk after injuring his back after falling from the bar’s mechanical bull.  The man signed a release before riding the bull but failed to disclose his chronic back condition to the operator.  Nevertheless, the man rode the bull, found himself thrown from it, and fractured two vertebrae in his back.

The trial court granted the bar’s motion for summary judgment on the basis of release and assumption of risk.  On appeal, the man argued that the release was inconspicuous and that actual knowledge could not replace the requirement that the release be conspicous.  However, the Austin Court of Appeals found that the release’s title, “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK,” left little doubt as to the document’s purpose.  Furthermore, the man testified at his deposition that he understood that the release was a waiver in the event he was injured.  So there goes that argument.

Notwithstanding his signature on the release, the man also argued that because he did not read the document, he could not have known the risks involved in riding the bull.  But then again, the man did testify that before mounting the bull, he did not witness anyone ride without falling.  And, of course, this is Texas, so undoubtedly the man has witnessed a rodeo a time or two.  In any event, the court was unpersuaded, holding that one is presumed to a know the contents of a contract that one signs.

A difficult sale it is to contend that one did not appreciate the risks of riding a mechanical bull.  Unlike the rodeo, the purpose of the mechanical bull is more than an 8-second ride.  The end-game is the fall.  Never has a mechanical bull operator thrown his hands up after a customer’s short stint on the bull saying, “Ok, Ty Murray.  I give up.  You are too good.”   You get on the mechanical bull to get tossed and to provide a good laugh for the crowd.

Injuries are obviously no laughing matter.  But, in this case, mechanical bull suits belong in the courtroom like a bull belongs in a china shop.

Over the last few years, Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats, has endured much litigation.  In 2009, a Montana jury awarded a family $850,000 after their son was killed by a ball struck by the aluminum bats.  Last month, the company settled the claims of a New Jersey teenager severely injured in a similar accident for $14.5 million.  The multi-million dollar settlement came on the heels of another $951,000 verdict from an Oklahoma federal jury.

Things weren’t looking too good for the bat manufacturer, to say the least.

In a twist of fate, however, an Oklahoma court tossed the $951,000 jury verdict just days after the massive New Jersey settlement.

The jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries.  In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn.  Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball.

On Hillerich’s post-trial motions, the court held that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.'” Certainly an aluminum bat can create increased bat speed, but does this necessarily mean it is more dangerous than its wooden counterpart?  As Forbes writer Dan Fisher, noted:

[T]he experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball.

Apparently, the plaintiff also never established that the bat – and not some other extraneous factor (i.e. a good hitter) – was to blame for the injuries.  As the judge noted, a “verdict may not be based on this kind of conjecture.”

The theory behind these Louisville Slugger suits is an interesting one.  Undoubtedly, an expert of some sort can testify as to the increased bat speed created by aluminum bats.  We imagine, however, that even a well-struck ball by a wooden bat could cause facial injuries.  The only way to prevent such injuries is to use baseball equipment manufactured exclusively by NERF.  Unfortunately, sport and injury often go hand-in-hand regardless of the equipment used.

The more intriguing question may be the tremendous discrepancy between the jury awards and the multi-million dollar New Jersey settlement.  While every case and jury is different, damages may not be the issue – the “smallest” verdict involved a child that was killed.  As Ted Frank at the  Point of Law blog notes:

The fact that Oklahoma caps noneconomic damages surely made a difference here: without the threat of jackpot justice, the defendant could defend itself without fear of disproportionate liability.

A factor, to be sure.

Above, you’ll see the cover of Batman – Bruce Wayne: Fugitive #1, published not so long ago in 2002. We direct your attention to the wanted poster hanging just above where Batman is standing. Now, let’s not consider the great coincidence of Batman happening to find himself right next to a wanted poster featuring a picture of Bruce Wayne. Let’s instead focus on the wanted poster itself. First off, it doesn’t suggest what the reader is to do if he or she happens to see Bruce Wayne. There’s no toll free number to call; there’s no reference to any police force or law enforcement authorities to contact. Plus, there’s not even a hint of a reward! No wonder Bruce Wayne is running around free somewhere!

Okay, so who pre-ordered an iPhone 5 today? Not us, we must confess. We here at Abnormal Use will wait for the iPhone 6. If you did, please let us know if you were successful. Further, to keep up with all the iPhone related madness, we suggest you read Jeff Richardson’s excellent iPhone J.D. blog, which is covering this story in full.

Our fearless leader, Mills Gallivan, has been elected to serve as the President of the National Foundation for Judicial Excellence (NFJE).  The NFJE, established in 2004, is a non-profit organization that supports an independent and well-versed judiciary in order to promote excellence and fairness in the civil justice system.  The NFJE accomplishes this task through providing education to the judiciary as well as hosting an annual national symposium for state appellate judges.

How long has it been since you read the Abnormal Use mission statement, published way, way back on January 4, 2010? If it’s been a while, or if you’ve never read it, you can check it out here.

Earlier this week, we ran a post on the Aurora, Colorado shooting litigation. That post has drawn a few comments, so if you missed that exchange, be sure to revisit it.

The iPhone 5 is set to be released soon, and as per usual, it appears that it will be another in the long lines of wins for Apple.   It will arrive in stores just as Apple wraps up a lawsuit over broken iPhone 4s.  A federal judge in San Jose, California, recently threw out a class action lawsuit from iPhone 4 owners who claimed that Apple misrepresented the strength of the phone’s glass screen. The case is Williamson v. Apple, Inc., No. 5:11-CV-00377 (N.D. Cal. Sept. 4, 2012).

In the lawsuit, the complaint alleged that Apple’s claims that its phone’s  glass screen was “20 times stiffer and 30 times harder than plastic” were misleading, citing a study that the glass on the iPhone 4 breaks at a rate 82 percent higher than previous iPhones.  District Court Judge Edward Davila disagreed.  In his order dismissing the case, he stated that “it is a well known fact of life that glass can break under impact” and ruled that Apple did not breach a warranty or violate consumer protection laws.

I’ll admit that I have noticed a large number of of people walking around with cracked iPhone screens lately.  Are the screens really up to snuff as described in Apple’s marketing materials?  I could certainly see an argument that the ads might lead you to believe that the odds of breaking the glass are very low.  Especially when the materials appear to tout the glass screens as stronger than plastic screens, which rarely shatter.  However, the judge based his decision on the fact that Apple never stated that the iPhone 4 was “resistant to normal wear and tear, that the glass housing would never break or crack under normal use, or that the phone might not be damaged if it was dropped.”

So, it appears all of you iPhone 4 users rolling around with cracked screens aren’t going to hit the jackpot this time.  It might just be time to just pony up for that shiny new iPhone 5 with a fresh screen. Good luck.

Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons?  According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.”  Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.

The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss.  One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice.  I believe that the primary responsibility at this point rests with Cinemark.”  Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.

It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark.  I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.

I feel a lot of compassion for the victims and the families of the victims of this heinous crime.  I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer.  However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer.   Of course, a theater owes a duty to its patrons to keep them safe within reason.   But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon.   Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon?  As recent events have show, even the military struggles to protect their own under similar circumstances.

If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons.  It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening.  This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums.  These costs will undoubtedly be passed on to the consumer.

Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function.  Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.