Last week, our Gallivan, White & Boyd offices were trapped in the middle of a Southern Snowpocalypse, so we here at Abnormal Use were able to spend a few days enjoying the snow with our families.  We partook in the customary activities of sledding, building snowmen, and throwing snowballs.  We also observed others engaging in not-so-standard activities like pulling kayaks across snow-packed roads with golf carts.  As lawyers, we naturally started thinking about the potential liability for any injuries to said snow kayakers.  Beyond the operator of the golf cart, it is hard to identify any other obvious potential tortfeasors.  But, what about the Homeowners Association?  Could it be held liable for permitting such activities on its roads during the wrath of Mother Nature?  Sounds absurd, we know.  But, what duty should an entity have to warn of the dangers of weather?

Last week, in Fleury v. IntraWest Winter Park Operations, the Colorado Court of Appeals held that a Colorado ski resort was protected from such liability.  According to CBS-Denver, a man was killed by an avalanche while skiing at the Winter Park ski resort back in 2012.  On the morning of the man’s death, the Colorado Avalanche Information Center issues a warning that the chance of avalanche was high due to high winds and heavy snow.   The man’s widow sued IntraWest, the owner and developer of the resort, claiming that the ski area should have been roped off and her husband not allowed to ski due to the warning.  The trial court dimissed the case on the grounds that ski resorts are shielded from liability for accidents caused by avalanches.  The Court of Appeals affirmed, holding that the avalanche was caused by new snowfall, weak and unstable snowpack, and a steep slope – all of which are covered by the state law.

This case is obviously one in which the state legislature had already addressed the issue.  Even if it had not, we believe the result should be the same.  This isn’t a case in which the avalanche was caused by some act of the resort.  The result may be different if the resort was blasting nearby to pave the way for a new hotel. This case is about an act of weather.  Mother Nature plays havoc on us all and is often unpredictable.  We should all appreciate the unpredicatable nature of the weather when we partake in any activity.  The plaintiff in this matter claims that this accident could have been avoided had the resort listened to the Colorado Avalanche Information Center warning and closed off the ski area.  Interestingly, however, those claims are misplaced.  The Information Center only warned of the possibility of avalanches and actually urged skiiers to “enjoy the powder in the safety of the ski area.”

Clearly, a skiier trapped in an avalanche is not comparable to a kayak pulled behind a golf cart.  One involves a standard activity.  The other involves a couple of individuals adding some Southern flare to customary activities.  Nonetheless, Mother Nature treats us all the same.  And, so should the liability.

No one likes portable toilets; they always seem to be dirty, too hot or too cold, and one strong gust of wind away from falling.  Moreover, they leave you completely defenseless to the terrifying threat of being tipped over. I believe this author’s opinion of portable toilets is identical to the following quote about escalators: “Listen, not a year goes by, not a year, that I don’t hear about some escalator accident involving some [person] which could have easily been avoided had some parent – I don’t care which one – but some parent conditioned him to fear and respect that escalator.” That’s from Mallrats.  Well, if you needed another reason to fear and/or respect portable toilets, we have you covered. As reported by The Daily Mail, while on a fishing trip with two cousins, Douglas Adams III had to answer nature’s call.  After he entered the portable toilet, the cousins decided to play a little prank on Mr. Adams by parking a truck in front of the facility’s door.  During the ensuing banging and shaking, the portable toilet inadvertently tipped over.  As if being covered in what can only be described as the grossest blue cocktail wasn’t bad enough, Mr. Adams landed on his neck, which resulted in several cervical fractures.  He was airlifted to Thomas Jefferson Hospital in Philadelphia for surgery and spent two weeks in the hospital.  Unfortunately, due to his injures, Mr. Adams ended up a quadriplegic.

Mr. Adams and his wife sued the cousins, the installer, and Poly-San, the manufacturer, for his injures.  The cousins obviously were sued for tipping over toilet.  The installer was sued for installing the toilet on a hill and propping the unit up with wood.  The manufacturer allegedly did not provide spikes to secure the unit, even though the base of the unit had holes for spikes.  According to the report, Mr. Adams settled the lawsuit for $5 million dollars. While we recognize the need for such facilities, this case should serve as yet another warning for people everywhere to begin to taking portable toilets as serious as escalators.

Here we are again on Presidents Day (or, as the federal government officially refers to it, Washington’s Birthday).  As we once noted on this festive occasion:

5 U.S.C.A. § 6103(a) sets forth that today, the third Monday in February, is Washington’s Birthday, and thus, a legal public holiday. George Washington was born on February 21, 1732 (although confusingly, under the old calendar in effect at the time of his birth, he was actually born on February 11, 1731). Perhaps that’s an issue that will be litigated someday.

Above, for this special day, you’ll find the cover of George Washington: The Rise of America’s First President #1. Pretty cool, eh?

Well, it’s Valentine’s Day, and since we’re such cynical lawyers, we do not have much to offer on such sentimental topics. If you can’t say anything nice, don’t say anything at all, we were once told by someone. Well, the least we can do is present you with the cover of Teen-Age Temptations #5, which features a curious courtroom scene. As a stern judge looks down from the bench, a woman points at a witness and tells the jury: “She’s the one! She led my son to ruin! She’s got a lavish love nest, furs and jewels! That was my lifetime savings!” Well, we certainly understand the woman’s anger, if that is the case, but we can’t understand why she, herself, is addressing the jury. Is this a civil proceeding? It must be, as we doubt she is a prosecutor. Did she bring the case pro se? If so, why is she addressing the jury directly at a point in the the proceedings when a witness is on the stand? Where is the witnesses’s lawyer in all of this? Shouldn’t that lawyer be objecting?

As you might have heard, we here at Abnormal Use – as denizens of the East Coast – have suffered through a bit of a weather problem this week. There was snow everywhere! However, we are happy to report that today all of our offices are once again open. We hope to be posting some snow pictures later.

Back during the recent holiday period, the South Carolina Bar sent the following announcement out to its members:

Video testimonials: Lawyers Helping Lawyers can help
The holiday season can be challenging for us all. If you find you need help with depression, substance abuse or another stress-related concern, the Lawyers Helping Lawyers program can help. Call the confidential, toll-free helpline at (866) 545-9590, or call CorpCare at (855) GET-HELP (438-4357) for up to five free hours of counseling. Sweet Lawyers using either service will remain completely anonymous. Please click here to view video testimonials and support for the Lawyers Helping Lawyers program.

This is an important issue whether or not it is the holiday season. As you may know, this is a topic that we revisit again and again on this blog, in part due to our own Stuart Mauney’s recent chairmanship of the South Carolina Bar’s HELP Task Force. In fact, as a part of the video testimonial project, Stuart recorded his own video, which you can see here.

Okay, surely we all know not to fall asleep next to computer equipment that is plugged in and powering up, right?  No? Well, let’s talk about Ferraro v. Hewlett-Packard Co., 721 F.3d 842 (7th Cir. 2013). In that case, the Plaintiff fell asleep next to her laptop, and as she slept, she allegedly suffered injuries because the laptop’s power adapter allegedly overheated (as she slept). Of course, she sued.

In the interests of fairness, here are the specific facts as recited by the Seventh Circuit itself:

[W]hile sitting on her sofa and using her laptop, she noticed that the battery was running low. Ferraro shut down the laptop, placed it on a nearby coffee table, and plugged the laptop’s power cord into the wall. Midway along the cord is the power adapter, a brick-shaped plastic device housing a transformer, which converts AC electricity from the outlet into DC electricity used by the laptop. Ferraro propped the power adapter on the arm of her sofa, began reading a book, and fell asleep around 10:00 p.m.

At some point during the night, the power adapter slipped from the sofa’s arm, falling between the cushions. As Ferraro slept, the exposed skin of her right forearm came to rest against one of the adapter’s surfaces. It is unclear how long Ferraro’s skin was in direct contact with the adapter, but she eventually awoke with painful blisters at the point of contact.

“Slipped from the sofa’s arm,” eh? As you might expect, her claims were of the typical design defect, failure to warn, and breach of implied warranty of merchantability variety. As the court described it, the Plaintiff “alleged that the laptop was defectively designed because it ‘overheat[ed] during normal and foreseeable use’ and that it lacked ‘adequate or sufficient warnings.'” The district court granted summary judgment for the manufacturer, but the Seventh Circuit affirmed only begrudgingly (and not without great sympathy for the Plaintiff). On the design defect claim, the Seventh Circuit noted:

[L]aptops are designed precisely to be used in comfortable places, including sofas, beds, La–Z–Boys, or other places where people may nod off. By taking such a restricted view of the precise manner in which Ferraro’s harm materialized, the court sidestepped the undisputed fact that, at the time of her injury, Ferraro was using the power adapter to do just what it was designed to do: charge her laptop. Ferraro is not arguing that the power adapter overheated when she tried to use it to heat her blanket, or that it made for a poor drink coaster or paperweight; rather, she asserts that it was unreasonably dangerous when used for its intended purpose.

Well, we’re not sure that laptop chargers are designed to be placed precariously on the arm of a sofa upon which its user may ultimately fall asleep while undertaking another tasks altogether on said sofa (i.e., reading a book). The charger, of course, charges, but the user of the charger must surely consider where the charger is placed prior to using it, no? The Seventh Circuit had an answer for that, as well:

HP may be correct that Ferraro was not using the product in the precise manner intended by the manufacturer, insofar as the power adapter was designed to rest on a flat surface with ample ventilation, but this is beside the point. The appropriate inquiry for the consumer-expectations test is whether the product performed as safely as an ordinary consumer would expect when used in =an intended or reasonably foreseeable manner. The great virtue of a laptop is that it can be used on one’s lap, while sitting on a sofa, or perhaps while in bed. Indeed, we note that the Facebook page for “Using the laptop in bed” (Mission: “Public awareness of the usage of laptops in bed”) has nearly one million “Likes.” Our analysis would be no different if the power adapter had started a fire in the sofa while Ferraro was in the next room; in either case, the consumer’s use of the product would be the same. A jury could conclude that Ferraro was using the power adapter in a “reasonably foreseeable” manner when the relevant harm occurred.

(Quotations and citations omitted).

A Facebook group cited as persuasive authority? Really? How did that end up in the opinion? Take a look at that Facebook page and you’ll see the danger of citing to unofficial Facebook groups as authority. (Now, perhaps we would feel differently if the Facebook group were entitled “Precariously placing a laptop charger on the arm of a sofa while sleeping,” but we’ll cross that bridge when we come to it.).

Okay, so here’s the question: With such sympathy for the Plaintiff coming from the court, how did the defendant prevail? I mean, how does the defendant come back from that type of commentary?

A fatal appellate error, that’s how. Behold the following remarks made by the Seventh Circuit at the very beginning of its opinion in this matter:

The court concluded that Ferraro would be unable to show that the power adapter was “unreasonably dangerous,” a required element of her design defect claim. Under Illinois law, there are two alternative methods of establishing that element: the “consumer-expectations test” or the “risk-utility test.” The district court found Ferraro’s evidence insufficient to meet her burden under either one of them. On appeal, Ferraro argues that the district court erred only in concluding that she would be unable to prove unreasonable dangerousness under the consumer-expectations test. She has not challenged the district court’s determination that HP was entitled to summary judgment under the risk-utility test, nor has she appealed the district court’s dismissal of her defective warning and implied warranty claims. This puts her in an impossible bind. Under Illinois law, the risk-utility test “trumps” in design defect cases if the two methods of establishing unreasonable dangerousness yield conflicting results. Because the district court’s finding that she could not succeed under the risk-utility test furnished an independent and unchallenged ground for the decision, we affirm.

Oh, well.

As The Washington Post reported last week, the British Court of Appeal affirmed a ruling that Chobani, a United States-based company and leader among the ever-popular Greek yogurt movement, cannot label its products “Greek” because the products are actually made in America.  The lawsuit was brought by rival Greek yogurt maker Fage, which is, in fact, a Greek company.  For edification, Greek yogurt is identified by its thick and creamy texture, which results from the straining of the whey.  The British court affirmed a previous ruling that Chobani’s “Greek yogurt” label misled British consumers and any products labeled “Greek yogurt” must be made in Greece.  As a result, the court enjoined Chobani from using the “Greek yogurt” label in Britain.  One could argue this is a harsh result, especially from the country that produced William Shakespeare, who famously observed that “[a] rose by any other name would smell as sweet.”

A similar battle was fought in the United States over the “Napa Valley” designation on wine labels in the early 2000’s.  Bronco Wine Co. purchased the Napa Creek, Rutherford Vintners, and Napa Ridge labels in the 1990s and 2000.    Federal law mandates that if a wine bears the name of a geographical place, at least 75 percent of the grapes in the wine must have been grown within the geographical region.  Due to a loophole in the federal law which grandfathers and exempts pre-1986 labels from the requirement, Bronco sold these Napa-labeled wines using grapes grown elsewhere.  Some referred to Bronco’s business plan as a scourge of Napa Valley.  The problem?  Napa vinters are a strong and powerful association in California, who seek to protect the prestige and identity of Napa-produced wine.  The group successfully lobbied the California legislature to pass a law requiring wine labels that bore the name Napa or any other federally recognized viticultural area within Napa County to contain 75 percent local grapes.   After six years of legal battles, and I’m sure quite a few bottles of Cab Sav, Bronco gave up its fight to stop California from enforcing the law.  Bronco may have lost this labeling battle but is undoubtedly winning the supply and demand war, as it is the owner of the ever-popular (and economic) Two Buck Chuck.

Do brands like Hawaiian Punch, London Fog, Patagonia and Arizona Beverage Company face the same fate, or are the Bronco and Chobani results merely aberrations?  We’ll see.

In addition to Chobani’s Shakespearean troubles, Russia has blocked 5,000 Chobani yogurts from reaching American athletes participating in the 2014 Winter Olympics in Sochi.  Russian officials are saying improper paperwork is to blame, but one can only wonder given the recent tension between Russia and the United States.   Though seemingly minor compared to the countries’ recent disagreements, Yogurt-Gate has escalated into an intense political matter – the Obama administration has even intervened.  Nevertheless, at the time of the post, the Russian stance remains “Nyet.”

In the span of one month, Chobani has been stripped of its “Greek” reference in the United Kingdom and all but banned from the Olympics, the biggest sporting history in the world.   Do you want to know the true irony of Chobani’s recent woes?  It just so happens that the birthplace of the Olympics is . . . Greece.

McDonald’s Happy Meal toys are apparently going through some changes. CNN reports that a McDonald’s employee has been charged with selling heroin in Happy Meal boxes at the drive-thru of a Pittsburgh-area location. The employee allegedly instructed customers to use the phrase, “I’d like to order a toy” to signal a transaction. Thereafter, the customer would approach the drive-thru window and be handed a box containing the desired “toy.” During the arrest, officers recovered 50 bags of heroin from the employee. No word on whether these toys have been examined by the CPSC.

While this is obviously not the type of news coverage McDonald’s craves, things could have been much worse. Fortunately, there are no reports of children accidentally receiving any of these earmarked Happy Meals. Just imagine the national outrage over a child discovering a bag of heroin in lieu of a miniature character from the latest Disney movie. A horrible event, to be sure. An event for which McDonald’s should be vilified? Maybe not, but certainly the media loves this story.

The reality of the situation is that this is a story about an employee caught selling drugs while on the job. This employee is probably not the first to be caught dealing drugs at a place of employment. In fact, this story could happen almost anywhere. Certain locations simply make it more newsworthy. Had this happened at a furniture manufacturing facility, the story would be lucky to be picked up by the local news. Unfortunately for McDonald’s, nothing can happen within its walls without making the press.

We urge you to read the story, marvel over the irony of packing heroin in Happy Meal boxes, and move on. Nothing to see here. McDonald’s will continue to be McDonald’s. Happy Meals will continue to be “happy” (but, not in the drug-dealing kind of way).

Way, way back in 1959, Orson Welles starred in the film Compulsion, based on the Leopold and Loe murder trial.  Apparently, the courtroom scene was so powerful that it was released on vinyl – the cover of which you’ll see above. The sleeve proclaims: “Here is the dramatic courtroom scene from COMPULSION where Orson Welles, as Jonathan Will, appeals to the court to spare the lives of two accused teenage murders. The portrayal by Mr. Welles is one of the screen’s greatest moments. The words are those of one of history’s greatest criminal lawyers, Clarence Darrow.” To see the back cover, click here.

Friend of the blog Alberto Bernabe, who himself blogs at the Torts Blog, shares a photograph of a warning sign at a local skating and sled hill.  See it for yourself here.

Survivor, the band, has sued its record company!

Over at CNN, attorney Patrick Krill has an important article worthy of your attention: “Why lawyers are prone to suicide.” According to this piece, Mr. Krill is the director of the Legal Professionals Program at Hazelden Addiction Treatment Center. Please take a moment to read it. We learned about this article when we noticed that he had linked one of our own prior pieces on the subject, that being this 2012 blog post by our own Stuart Mauney.

Rest in peace, Philip Seymour Hoffman.

We knew it was coming, and we’ve seen evidence of it already. Courts are beginning to limit the nature of social media discovery, chiefly in light of the fact that we live so much of our lives online that not every post or status update can be discoverable in a lawsuit. Yesterday, in Root v. Balfour Beatty Const. LLC— So.3d —-, (Fla. Ct. App. Feb. 05, 2014), the Florida Court of Appeals overturned a magistrate’s order in a negligence case that had required the Plaintiff to produce a host of materials from her Facebook account. The Plaintiff was suing on behalf of her young son who was injured in an automobile accident near a construction site (the safety of which was at issue in the proceeding). It does not appear that the Plaintiff was present at the scene of the accident, and at that time, Plaintiff’s son was being supervised by his 17 year old aunt (which led to a negligent entrustment affirmative defense).

Here’s what the defendant’s asked for:

(o.) Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff’s]’s
i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

….

v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

Not surprisingly, the Plaintiff object to the discovery requests on the grounds that they were overbroad. The Court of Appeals bought this argument, noting:

[Plaintiff’s] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child’s] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff’s] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff’s] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

At the hearing before the magistrate, the party seeking discovery didn’t help itself by noting that “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Well, we as defense lawyers probably need to articulate the basis for our social media discovery requests a bit more artfully (although the magistrate judge, who apparently remarked at the hearing that “95 percent, or 99 percent of this may not be relevant,” did require production of the materials requested). The lesson: tailor social media discovery requests to require production of materials related as closely as can be to the claims and defenses in the case.