We hope and trust that you are not in the law office today. If you are, put down your work product and time slips and go spend time with your family. It’s Christmas Eve! Of course, on this most merry of occasions, we simply had to share the comic book cover above, that The Brave and The Bold #148, published way, way back in 1979. Look at Batman and Plastic Man fighting alongside Santa Claus! That’s some Christmas magic!

If you’re traveling today, be safe, and when you arrive at your destination, be merry. We wish you the best and a very happy holiday.

The first line of the Mississippi Supreme Court’s opinion in Janet Olier v. Donna Bailey says so much in so few words: “Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard.”  As it turns out, Olier broke her arm and sustained various other injuries during the goose chase.  Olier filed suit in the County Court of Jackson County, Mississippi asserting theories of premises liability and the “dangerous propensity rule.”  The trial court granted summary judgment on the basis that “Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier” and that “there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident.” Following the Jackson County Circuit Court’s affirmation of the County Court’s ruling, Olier appealed to the Mississippi Supreme Court.

The factual section from the Mississippi Supreme Court’s opinion in this case warrants a block quote:

Olier wanted to see Bailey’s blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier.  However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.

The Mississippi Supreme Court affirmed the trial court on the premises liability theory but disagreed on the dangerous-propensity rule portion.  In Mississippi, the dangerous-propensity rule dictates that an animal owner may be exposed to liability for an attack by his or her animal when: 1) there is proof that the the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack and 2) there is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.  Here, in the “aggressive bird” case of first-impression, the Court found that “Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly” and held that summary judgment on that issue was inappropriate since “a jury could find that was happened to Olier was foreseeable.”

We will be interested to see what happens in this case on remand.  For some reason, the part that really stood out to this author was Olier’s assumption that the bamboo pole was useless and threw it down without attempting to fend off the charging goose.  A bamboo pole does seems like a good tool for fending off a goose, but then again, this author has minimal experience with such things.

(Hat Tip: Mississippi Litigation Review).

A California Court of Appeal has added to the list of recent opinions dealing with the duty owed to take-home asbestos plaintiffs.  As we previously blogged, the California Supreme Court is set to decide two somewhat conflicting, but potentially reconcilable, California Court of Appeals decisions in take-home asbestos cases.  In Kesner, the appellate court imposed liability on manufacturers in take-home asbestos cases, and in Haver, the court held that premises owners have no duty to take-home asbestos plaintiffs.  The November 21, 2014 opinion in Beckering v. Shell Oil Company, available here, follows Haver’s lead and holds that the premises owner defendant, Shell Oil Company, owed no duty to the take-home plaintiff. 

Like the Haver Court, the Beckering court relied on Campbell v. Ford Motor Company in reaching its decision.  The Plaintiff in Beckering attempted to distinguish Campbell, arguing that Campbell applies only to the narrow situation in which the relative who brought home the asbestos was an independent contractor of the premises owner.  The Beckering court rejected this argument, noting that the Campbell Court specifically stated in a footnote that the independent contractor status of the relative was not the basis for the decision.

This is positive for premises owner defendants in take-home asbestos cases in the sense that Justice Aldrich did not create a Court of Appeals split on the issue of the duty owed by premises owners to take-home plaintiffs, but as the Beckering Court noted, the issue will not be resolved with any certainty until the California Supreme Court makes its decision.

(Hat Tips:  Legal Newsline and Torts Prof Blog).

Since this is our last edition of Friday Links before Christmas, we thought we’d share the cover of Archie’s Giant Series Magazine #216. We’re not entirely certain when this particular issue was published, but it seems appropriate (especially with Archie’s looming 75th birthday). Enjoy.

Today is the last day you can vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support. The polls close at the end of the business day today.

Today, by the way, is our editor Jim Dedman’s birthday.

The Lawyerist site – a blog we’ve linked many times over the years – is starting a new podcast. For more information, click here.

Our favorite tweet of late simply has to be this one:

Dance like no one is watching; email like it may one day be read aloud in a deposition.

— Olivia Nuzzi (@Olivianuzzi) December 13, 2014

When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.

Folks, reportedly, the Navy now has a laser beam weapon.  The weapon, called “LaWS”, was recently test-fired from the USS Ponce, and it apparently “hit and destroyed targets mounted atop a small boat, blasted a six-foot drone from the sky, and destroyed other moving targets.” The project cost approximately $40 million over the past seven years.  The laser system “consists of six commercial welding lasers lashed together and aimed at the same point,” and it can purportedly hit targets up to about a mile away. Wow.

What legal implications might this new technology yield?  None yet.  However, this is awesome.  Laser beam weapons straight out of science fiction movies.  The only problem: Super villains around the world are licking their lips at the opportunity to hold the world hostage using an enormous ray gun.

Hopefully, a hero lawyer will emerge.  Groot, perhaps? Or Matt Murdock?  Or maybe one of the other comic book hero lawyers that we have covered in our regular Friday Links feature? Only time will tell

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day since January of 2010. That’s a lot! Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date.

So, without further ado, fill yourself with nostalgia, just as we have, and revisit these entries from 2014.

Little League Celebration: Part of the Game or Negligent Act? (Nick Farr, January 21, 2014)

Mötley Crüe Contracts to Dissolve, But Who Are They Kidding? (Nick Farr, February 3, 2014)

Man Sues After Choking During Live Fish Eating Contest At Tennessee Haunted House (Rob Green, March 12, 2014)

The Legacy of Kurt Cobain (A Law Blog’s Perspective) (Jim Dedman, April 7, 2014)

Law Day: The Great Equalizers (Mills Gallivan, May 1, 2014)

Four Decades After Its Release, “Stairway To Heaven” May Be Litigated (Jessica Waller, June 2, 2014)

The Wood-Shelving, Aged Cheese Incident (Lindsay Joyner, June 24, 2014)

R.I.P. Buckyballs (Nick Farr, July 22, 2014)

Former Oppressive Dictator Sues Video Game Creator For Portraying Him As An Oppressive Dictator (Kyle White, July 29, 2014)

20 Years of McDonald’s Hot Coffee Case Rhetoric (Nick Farr, August 12, 2014)

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony (Jim Dedman, August 13, 2014)

Social Media Perils: Attempted Impeachment By Blog Post? (Jim Dedman, October 6, 2014)

“You Drawin’ Me?” ‘Goodfella’ Sues ‘The Simpsons’ (Rob Green, November 26, 2014)

The McDonald’s Hot Coffee Case, The JFK Assassination, And Expert Witness Dr. Charles R. Baxter (Jim Dedman, December 4, 2014)

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2014, we published a total of ten such interviews (including some with comic book creators or beer enthusiasts). Today, we list all of our 2014 interviews and provide links back to them:

Law Professor Rory Ryan (February 4, 2014)
Kylie TenBrook, Corporate Counsel of Best Western International (May 6, 2014)
Kevin Underhill, Author of The Emergency Sasquatch Ordinance (April 14, 2014)
Keith Lee, Author of The Marble and the Sculptor: From Law School to Law Practice  (May 5, 2014)
James Daily of The Law and the Multiverse Blog (July 28, 2014)
Lawyer and She-Hulk Comic Book Writer Charles Soule (August 26, 2014)
Trial By Jury and Mistrial Movie Director Heywood Gould (September 9, 2014)
Lawyer and X-Files Actor Zachary Ansley (September 10, 2014)
Actress Roma Maffia from Disclosure and Double Jeopardy (September 24, 2014)
Daniel Hartis, Author of “Beer Lover’s The Carolinas” (October 16, 2014)

As 2014 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it. And, if you missed any of the interviews, take a look!

So, now that we’re well into December, we can stray a bit from our mission to post legally themed comic book covers and instead focus on holiday themed comic book covers. Above, you’ll find the cover of Green Lantern #18, published way, way back in 1945. This is the original Green Lantern, of course, not the newer version you may have seen depicted more often in popular culture. And as for his sidekick, Doiby Dickles, we’ve written about him before here.

There is going to be a new narrative television series about the O.J. Simpson trial. Too soon, we say.

It’s Christmas, so we must direct you back to Stuart Mauney’s immortal 2011 post: “Lawsuit of the Day: Grandma’s Estate v. Santa and His Reindeer.” We can’t believe that it has been three years since we first posted it here at Abnormal Use. Don’t forget: You can follow Stuart on Twitter here.

You can still vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support.

Don’t forget: You can follow Abnormal Use on Facebook here and on Twitter here. Drop us a line sometime, will you?

The Oklahoma Class 3A high school football playoffs continued last week with a match-up between the 10-3 Frederick A. Douglass Trojans of Oklahoma City and the 13-0 Locust Grove Pirates of Locust Grove.  The stakes were high as the winning team would advance to the final four. The underdog Trojans scored a touchdown with one minute left in the game, but the referees took the touchdown away due to a sideline infraction by one of the Douglas coaches.  Unfortunately, the referees got the call wrong, as Oklahoma City’s KOCO reports: “Oklahoma high school football rules say that touchdown should have counted and the penalty should have been enforced on the next play.”

Apparently, the Oklahoma Secondary School Activities Association (OSSAA) apologized to the school for the blown call, but the school was not satisfied:

. . . Douglass went to the Oklahoma Secondary School Activities Association (OSSAA), filing an appeal and asking that the final 1:04 to be replayed. The Association apologized and acknowledged that a mistake had been made in applying the rules. The sideline infraction was a “dead ball” foul, not a “live ball” foul. But by a vote of 8-3, the Association declined to intervene on the ground that “OSSAA Board Policy does not permit protesting an official’s errors to the Board, nor do [National Federation of State High School Association (NFHS)] football rules.”

The OSSAA appeal unsuccessful, the school filed a lawsuit in federal court “asking for temporary restraining order forbidding Locust Grove from advancing and playing its scheduled semi-final game[,] . . . for the final 1:04 of its game to be replayed with the score reset to 25-20 (and with a chance, presumably, to kick an extra point).”  The school district argued:

. . . decisions of the OSSAA are subject to review under the Oklahoma Administrative Procedures Act (APA), and further that under APA substantial evidence must support an OSSAA decision. In light of the admission that the officiating crew had misunderstood the relevant rule, the District claimed that the OSSAA should have intervened in the result and ordered that the game be replayed with Douglass ahead and 1:04 left on the clock.  The District cited the NFHS rules, which state that “State Associations may intercede in the event of unusual incidents that occur before, during or after the game officials’ jurisdiction has ended . . . .”  NFHS Football Rules Book, Section 1, Article 8. The District argued that the OSSAA acted unreasonably in concluding that it could not overturn the results of the game.

The court did grant a temporary restraining order postponing the Locust Grove versus Heritage Hall semifinal pending the final ruling.  It will hear arguments shortly.

For sports fans, this is an interesting case that could create a slippery slope.  If this suit is successful, will teams have attorneys on the sideline to run to the courthouse in the event of an adverse ruling on the field?  Will referees need E&O policies?  Will we need court reporters at football games so that the record can be preserved for appeal?

We are not sure where this is going, but we will follow the story closely.

Side note:

A corollary to the main story played out as a result of a fan punching one of the officials after the game.  Apparently, the team was originally placed on probation following the game as a result, presumably rendering the legal challenge moot.  However, the OSSAA has now cleared Douglass for the playoffs if they win their legal challenge.