Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on AshleyMadison.com back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like DarwinDating.com with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.

At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:

When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.

The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.

Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.

[Hat Tip: Libation Law Blog]

Well, as we previously reported last November, the editors of the ABA Journal recently named Abnormal Use to its Blawg 100 – the top legal blogs in the country – for the four year in a row. Well, as they do each year, the ABA Journal then asked its readers to vote for their favorite blogs in certain categories, and we had some fierce competition in the Torts bracket. We learned late last week that we had once again won the popular vote and became the readers’ favorite Torts blog.

The ABA Journal‘s official announcement can be found here, and in relevant part, it reads:

ABA Journal editors picked their favorite 100 law blogs of 2013 and then opened up the polls for some friendly competition. After some 4,000 readers weighed in, the winners and proud owners of bragging rights in each category are:

Torts

Abnormal Use

abnormaluse.com

If you’re suing because your yoga pants are see-through, or because hoisting up the back end of a running snowmobile left you short one leg, chances are your case could end up analyzed by the bloggers at Abnormal Use. Strictly speaking, Abnormal Use is a product-liability blog, but the writers are also interested in technology issues like social media discovery. Be sure to stop in for their “Friday Links” column, a roundup of offbeat and quirky legal news blurbs.

We do like us some offbeat and quirky legal news here, don’t we?

Thanks again to everyone who supported us and voted for us in the contest! We look forward to bringing you another year of commentary.

We rarely, if ever, post on Saturdays, but today is a special occasion.  It’s our fourth birthday!

Four years ago today, way back on January 4, 2010, we published our very first post here at Abnormal Use. It was a mission statement, and you can revisit it here. We didn’t have this fancy design back then; rather, we had put together a basic Blogger template. It’s funny to look back at those initial posts and realize that we had no idea that this enterprise would be in any way successful. But here we are, 48 months later, still posting each business day for you, our dear readers.

By the way, above, you’ll find the cover of Superman #207, published way, way back in 1998. As you can see, the comic celebrates Superman’s 30th birthday. Our favorite part, of course, is the super villains yelling at Superman in unison the following: “Unhappy birthday from your worst enemies Mr. Mxyzptlk, Luthor, Braniac . . . .” That seems rather hurtful, don’t you think? I mean, they go to all the trouble to go to Superman’s birthday just to yell insults? And by the way, aren’t they wanted criminals? Why aren’t Superman and Supergirl apprehending them? Are they so distracted by Superman’s birthday that they can’t be bothered to bring those villains to justice? Something doesn’t make sense there. That’s the Silver Age for you.

Thanks again to our tireless contributors: Nick Farr, Rob Green, Kyle White, and Frances Zacher! We’ll have some new writers joining us soon, and we can’t wait to introduce them to you!

To see our past birthday posts, please click here, here, and here.

Welcome to our first edition of Friday Links of 2014. Above, you’ll find the cover of More Fun Comics #17, published way, way back in the 1930’s. Happy New Year!

Three years ago this month, we published our interview with Jeff Richardson, the author of the iPhone J.D. blog. Let nostalgia take the wheels and revisit that post here.

Speaking of anniversaries, it’s now been three years since we here at Abnormal Use received a voicemail message from Wilford Brimley. To learn that fateful story, please click here.

In case you missed it, the North Carolina Court of Appeals cited Nathaniel Hawthorne in a recent commericial litigation case. Here’s the relevant excerpt:

“No man, for any considerable period, can wear one face to himself, and another to the multitude, without finally getting bewildered as to which may be the true.” Nathaniel Hawthorne, The Scarlet Letter 197 (Bantam Books 1986) (1850). Indeed, the wearing of multiple “faces” may bewilder not only men, but also corporations.

Bank of America, N.A. v. Rice, 750 S.E. 2d 205, 206 (N.C. Ct. App. 2013) (Hat Tip: North Carolina Bar Association Bankruptcy Listserv).

The musician Beck is being sued by an actor from a Quentin Tarantino film! It’s a landlord/tenant case. We tried really, really hard to come up with a “Loser” prevailing party joke, but we just couldn’t do it. Alas.

From Mental Floss: “11 Obscure References in Classic Songs—Explained!” Our favorite: “You’re So Vain.” Yes, of course that would be our favorite.

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

Happy New Year from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope you an eventful and safe New Year’s Eve, and we welcome you now to 2014.

Above, you’ll find the cover of New Adventure Comics #12, published at the very end of 1936 and dedicated to the arrival of the new year: 1937. Wow. That is one old comic book. Check out the summary from Comicvine:

New Comics received a makeover with issue #12, becoming New Adventure Comics, its symbolic cover featuring a fresh faced baby 1937 ushering out Father Time’s past relics. While still stuffed with short humor strips, including, “Hard luck Harry,” New Adventure Comics increasingly emphasised action in far away lands through such features as “Castaway Island” and “The Vikings.” Rounding out issue 12 was another installment of “Federal Men” though readers could have been forgiven for puzzling over its bizzare sci-fi twist. Unapologetic Sci-fi fans Siegel and Shuster had shoehorned in a professor who explained the “future of scientific crime detection.” This framing device gave the two a licence to delve deep into their favourite obsession, telling a tale set in the year 3000 that involved ray guns, rocket ships and star pirates. It also starred an “ace sleuth” named Jor-L (a name later to be re-cycled as that of Superman’s father).

As that summary suggests, there’s an interesting bit of Superman history/trivia in this 76 year old comic book. Superman, of course, would not appear until 1938 in Action Comics #1.

Check out our past New Year’s Days posts (featuring new year themed comic book and album covers) here, here, and here.

In fact, a year ago today, we published a list of our favorite songs about the New Year.  To revisit that post, please see here. (Of course, it features references to U2.).

“The world’s mightiest family salutes the new year,” proclaims the cover of Shazam! #11, published way, way back in the early 1970’s. As you can see, the new year at issue then was 1974, making this comic book cover exactly 40 years old. How about that?

How many of you went to work today? Days like today always prompt such a dilemma: What, if anything, might accomplished today, the final day of the year (especially when few others are actually in the office)? As we’ve confessed in the past, we are not actually in the office today (and in fact, this post was written days ago and set to auto-post this morning). So who knows where we are right now? But we can say this: it’s been a fun and fine year. We thank all of our readers for their support.

So, as you venture out into the night tonight, be merry, but be safe. Have a happy new year!

In the mean time, check here to see last year’s New Year’s Eve post for a great Archie comic book cover related to the day.

We here at Abnormal Use are pleased to report on the trial of one of our contributors, Nick Farr.  Earlier this year, GWB lawyer, Rob Corney, set the modern (the 1970’s is not modern) firm record for the least amount of time elapsed between the firm’s retention in a case to the trial of that case at just over 30 days.  That’s now old news. Farr took the record after opening a file, trying the case, and closing said file all in a mind-boggling 20 hours.  And he secured a defense verdict to boot!

How you might ask?  GWB partner David Rheney received a call at 4:00 p.m. on a Tuesday afternoon from a client with a new case pending in magistrate’s court.  Apparently, the complaint had been filed in October, served in November, and answered by the defendant in December.  The defendant remembered to tell the insurer that very Tuesday afternoon.  Once Rheney confirmed that there had been no default, we determined that we could amend the answer since we were within the 15 day period. All good things.

However, we then learned that the case was up for trial the very next day! Farr responded that he was up for the task. Armed with nothing more than two grainy black and white photographs , he appeared in court on Wednesday, obtaining a defense verdict in a non-jury trial.  Case closed.  He was pleased to report, as an added bonus, that the plaintiff’s daughter slammed the door in his face on the way out the courtroom.

Joe DiMaggio’s record 56 game hitting streak and Byron Nelson’s record of 11 straight PGA tour victories will be nothing more than ashes on the dust heap of history long before anyone approaches Farr’s record 20-hour Open-Try-Close.

Behold the cover of DC Universe Holiday Special #1, published not so long ago in 2008. We find it appropriate for the occasion. Our question: Where’s Batman?

In 1964, famed writer Isaac Asimov penned a piece in The New York Times predicting what life might be like in 2014. To read that fascinating article, click here. Three years ago, in December of 2010, we commented upon a series of New York Times articles written in 1931 predicting the world of 2011. (Hat tip: Treehugger).

Here’s one we ought to read: “16 Habits That Are Killing Your Productivity and How to Fix Them.” (Hat tip: Lee Rosen).

Our favorite tweet of the week: “Decided against being the first attorney to be subject to an objection for wearing Google Glass in a deposition.” (Via @BytePatent).

Of late, we’ve been enjoying the Libation Law Blog, which bills itself as a source for “[n]ews, insight and commentary on liquor law and legal developments in alcohol regulation, and the brewing, winemaking, and distilling industries.” It’s run by Ashley Brandt, an attorney in Chicago with Freeborn & Peters LLP. (We note with interest that Mr. Brandt features a Christopher Hichens quotation on his official firm bio.).