The Derrick Rose lawsuit and emotional distress claims in South Carolina

Here at Abnormal Use, we’ve been involved in many cases in which the plaintiff alleges intentional or negligent infliction of emotional distress as a cause of action.  Cynical defense attorneys that we are, we are often skeptical–or even dismissive–of these damages, because they are so subjective and easily exaggerated.  Recently, we came across some stories about a lawsuit in which a fan sued Derrick Rose for emotional distress.  Yes, you read right.  A fan is suing a player on a pro sports team because he doesn’t like what was going on with the team and one player in particular.

Some background.  Derrick Rose is one of the stars–or the star–of the NBA’s Chicago Bulls.  Last year, during the 2012 playoffs, Rose blew out the ACL in his knee, requiring surgery and some time off from playing to heal, rehab, and recover.  There has been some scuttlebutt recently about the fact that Rose, who has been cleared by doctors to return to the Bulls since March 9, hasn’t taken the floor.  Moreover, it doesn’t look like he’s going to play for the remainder of the season, even though the Bulls could definitely use him.

All of this must be a little upsetting to Bulls fans.  Fans are probably frustrated, maybe even a tad bit angry at Rose.  But only one has decided that Rose’s failure to return has caused him such distress and emotional turmoil that he wants Rose to be held–yep, you guessed it–legally liable for that distress.

Meet Matthew Thompson, a 25-year-old Bulls fan from Peoria, Illinois.  He’s apparently been so upset by Rose’s absence that he’s put on a little weight.  So, as reported by the Houston Chronicle (along with several other news outlets), he’s suing Derrick Rose.  Because that’s what we do in America!

Common sense, if not legal training, shows that this lawsuit is just ludicrous.  But it’s also a good time to review the law of negligently inflicted emotional distress claims (since, we assume, Rose did not intentionally blow out his own knee just to hurt Thompson’s feelings).  Let’s assume the suit was brought in South Carolina.  The South Carolina Supreme Court considered the limits of recovery for bystander emotional distress in Kinard v. Augusta Sash & Door Co., 286 S.C 579, 336 S.E.2d 465 (1985).  The Kinard Court held that a bystander may recover for his or her emotional injuries under the following conditions:

(a) the negligence of the defendant must cause death or serious physical injury to another;
(b) the plaintiff bystander must be in close proximity to the accident;
(c) the plaintiff and the victim must be closely related;
(d) the plaintiff must contemporaneously perceive the accident; and
(e) the emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony.

Id. at 582-583.  Of course, we don’t know all the facts.  Thompson may have been sitting in the front row when Rose blew out his knee.  Thompson and Rose may be closely related.  We seriously doubt, however, that either of these conditions would be met by Thompson’s case.  We are confident, however, that Thompson could find some doctor somewhere to attribute the cause of his weight gain to the disappointment Thompson feels at the Bulls’ predicament.  In any case, we are curious to see how this case proceeds, if it proceeds at all.

All we know is that if this case survives, or if Thompson is paid one penny by Rose to settle the lawsuit, it could potentially open the floodgates.  This will be especially true in Chicago, where long-suffering Cubs fans will retain counsel faster than their team can race to the bottom of the NL Central.

The United Airlines Frequent Flyer Miles Litigation?

The list of reasons to dislike airlines is long and familiar.  Ticket change fees, checked bag fees, bumped flights, false imprisonment on the runway, and the inevitable delays.  Now, a disgruntled United Airlines passenger is adding another item to his list: finding himself robbed of his frequent flyer miles.  A Maryland man has filed suit against United in federal court in Illinois claiming it shorted him on frequent flyer miles by using the straight line distance, rather actual distance, to calculate the credit for miles. Of course, litigation is necessary to resolve this dispute.

The lawsuit alleges that United breached its frequent flyer contract by not awarding them for miles actually flown.  According to the lawsuit, the passenger’s flight from Dulles Airport to Beijing International Airport actually measured in 7,276 miles.  However, he was awarded only 6,920 miles, which is the shortest straight line distance between the two airports.

A quick scan of the official rules for United Airlines’ frequent flyer program reveals no information as to how miles are calculated.  However, there is some vague language about being able to modify the “currently recognized” means of accumulation without notice.   When asked by The Cleveland Plain Dealer, a United spokesperson declined comment on how the miles are calculated, but we expect United will argue that the rules essentially allow them to calculate miles however they please.  United did state that it believes the lawsuit to be merit-less.

Given the low monetary value of the “missing” miles, the suit certainly appears frivolous.  It is not unreasonable for United to credit for a straight-line distance between origin and destination.  Other airlines apparently calculate miles the same way.  However, the question is, why doesn’t United just spell it out in the program rules?

In our litigious society, United should have seen this one coming from a “mile” away. Don’t sue us for our pun.

A Bizarre New Lawsuit Against McDonald’s

Someone needs to tell McDonald’s to take down the “Please think of some ridiculous reason to sue us” sign firmly planted on the grounds of its corporate headquarters. The fast food giant is back in the news after being sued by Chicago, Illinois woman, Anishi Spencer. According to a report from the Huffington Post, Spencer claims that in February 2012, her 2-year old and 3-year old sons discovered a used condom on the floor of the restaurant’s play area.  At some point thereafter, the 2-year old allegedly coughed up a piece of the condom, and both boys required medical attention.  The suit claims that McDonald’s failed to detect “deviant” activities on-site.  On behalf of herself and her two boys, Spencer seeks at least $50,000 in damages.

Call us crazy, but we would have thought Spencer herself would have had some duty to supervise her own old children.  Such duty should include stepping in to avoid condom interaction.  This situation suggests one of two possibilities, neither of which are good for Spencer:  1) either Spencer was supervising and failed to take any measures to prevent her child from encountering the condom, or 2) she was not supervising at all and should share the blame.  The only other explanation – the condom had nothing to do with McDonald’s at all.

Again, we have no way to verify Spencer’s claims or to attest to McDonald’s cleaning procedures.   That being said, this case is simply another example of the need to gather all the facts before the judgment.

Subway Lawsuit: Like Football, It’s A Game of Inches.

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

$30 Million Popcorn Lung Case Popped

In a recent article on “popcorn lung,” we here at Abnormal Use noted that such cases were typically occupational exposure cases where plant workers were exposed to the chemical diacetyl.  Solis v. BASF Corp., No. 1-11-0875. (Ill. Ct. App. Oct. 4, 2012) was one such case: Solis filed suit against BASF, a company that provided diacetyl to his employer, for injuries allegedly stemming from his occupational exposure.   He claimed that BASF failed to issue proper warnings as to the dangers of diacetyl.  In 2010, an Illinois jury awarded him $30.4 million in damages.  Recently, an Illinois appellate court reversed and remanded that verdict because of an improper jury instruction on BASF’s duty to warn (as well as failing to submit a statute of limitations issue to the jury).

By way of quick refresher, diacetyl was an ingredient in artificial butter flavoring like that found in microwave popcorn.  Inhalation of diacetyl fumes can cause a relatively rare lung disease called bronchiolitis obliterans, also known as “popcorn lung.”  Plaintiff worked at two flavoring plants from 1989 to 2006 where he worked around the chemical diacetyl.  BSAF was one of the diacetyl suppliers at the plant where Plaintiff worked from 1998 to 2006.  In 2006, Solis was diagnosed with popcorn lung, and he now claims to have just 25 percent of normal lung capacity.

Plaintiff claimed at trial that BSAF negligently failed to disclose to users of its diacetyl products the existence of a 2000 study showing the dangers of diacytel.   The trial court instructed the jury that an issue was whether “BASF Corporation was negligent in . . . in failing to disclose the results of scientific research available to it indicating that the use of diacetyl causes lung disease or risk of harm to others.” On appeal, BSAF argued, among other things, that the jury was improperly instructed as to the scope BASF’s duty to warn.  The appellate court agreed and found the trial court’s instruction to be too expansive based on the case law regarding the duty to warn.  It noted that a plaintiff must show that a defendant knew or should have known that the product was unreasonably dangerous and failed to warn the user of its dangerous propensity.  Accordingly, an instruction that BASF had a duty to warn with all information “available to it” just didn’t cut it.  The court also held that the instruction improperly failed to specify the universe of individuals BSAF was required to warn (e.g., Plaintiff vs. Plaintiff’s employer vs. the flavoring industry vs. the general public).

Interestingly, the trial court did give the proper instruction as to Plaintiff’s strict liability failure to-warn claim, in instructing that at “BASF Corporation has a duty to adequately warn and instruct the user about the dangers of its products of which it knew, or in the exercise of ordinary care, should have known, at the time the product left its control.”

I guess this is an instance where cut and paste can really be your friend.

Halloween Fear Fest Leads To Litigation

Ever watch a horror film and think about all the potential tort claims? Think of all the car manufacturers who could be sued because their vehicles failed to start when needed the most. Certainly, those under-staffed hospitals in the Halloween movies breached a duty of care. And, what about premises liability claims for all those slip and falls suffered while fleeing the killer?

Just imagine the possibilities!

As we here at Abnormal Use like to believe, horror films are a microcosm of real life. Take this new suit in Illinois as an example. According to CBS Chicago, the father of a girl who tripped while being chased by a Halloween character has sued Six Flags. Last October, the girl visited Six Flags Great America for the Halloween-themed “Fright Fest.” While walking through the park, a “character” jumped out of a port-a-potty and chased the girl, squirting her with a water gun. As is always the case when fleeing a villain, the girl tripped and fell, suffering some scrapes on her arms and legs. The girl’s father is now seeking $30,000 in damages on her behalf. The suit alleges the park was negligent in encouraging employees to frighten and chase patrons despite the presence of tripping hazards. The report, however, does not indicate what tripping “hazard” caused the girl to fall. Based on knowledge of horror films, we assume that fleeing from a predator creates new tripping hazards.

Even though the facts in the report are sparse, Six Flags’ liability in this case is questionable. While we do not know the age of the girl, by attending an event known as “Fright Fest,” she should have assumed the risk of being confronted by a “Halloween character.” Admittedly, jumping out of a port-a-potty is a little sketchy, but that fact alone shoudn’t render the park negligent. Unfortunately, we do not know how the character pursued the girl. Chasing her violently and physically pushing her to the ground is one thing. Pursuing her at a Jason Voorhees-like pace is another.

Sure, all is fun until someone gets hurt. But, do we want to water down haunted houses and Halloween experiences over the fear of some scrapes and bruises?

At least movie directors don’t have these same constraints.

Illinois Court Holds Woman Can Sue Dead Accident Victim Over Flying Body Parts

You may think your new iPad is the greatest Christmas present ever, but we here at Abnormal Use found something better. On December 23, an Illinois appellate court issued an opinion in Zokhrabov v. Park, No. 1-10-2672 (Ill. App. Dec. 23, 2011), bestowing upon Gayane Zokhrabov the right to sue the estate of a dead man for injuries she sustained when struck by flying portions of his body. Yes, you read that correctly.

In 2008, an 18-year old Illinois man stepped in front of a train and was killed at a Metra station in Chicago. Following the collision, a large portion of his body was propelled 100 feet onto the southbound platform and struck Zokhrabov from behind. As a result of the accident, Zokhrabov sustained a shoulder injury, a leg fracture, and a wrist fracture. She sued the man’s estate for damages by roping in a Bronx personal injury attorney, alleging that his negligence in walking in front of the train caused her injuries. The circuit court granted the estate’s motion for summary judgment on the ground that the man owed no duty to Zokhrabov. The Appellate Court of Illinois, First Division reversed, holding that the man could have reasonably foreseen that his negligence would cause injury to a passenger waiting in the train station nearby.

Many of you are probably appalled by this decision because it may sound both grotesque and ridiculous. Others are probably excited for the opportunity to reflect upon Cardozo’s infamous Palsgraf v. Long Island Railroad opinion. We here at Abnormal Use fall somewhere in between. On one hand, the idea of someone suing the estate of a man dismembered in an accident seems to go against our humanity. On the other hand, Zokhrabov allegedly was injured by the man’s body. There is no evidence the train operator was negligent in any respect. (The estate actually sued the train company for negligence. However, the case was dismissed and upheld on appeal on the grounds that the danger was “open and obvious.”)

As you may recall, Cardozo created the “zone of danger” test in which a duty only arises out of a reasonably foreseeable danger. the experts at, held that it was reasonably foreseeable that an oncoming train could strike, kill, and fling the man’s body into a woman waiting on passenger platform. The court indicated that the potential outcome of the man’s conduct was limited because the train traveled on a fixed, linear path within the speed limit. Physics lessons aside, Zokhrabov must have been standing at the wrong place at the wrong time.

Regardless of the grotesque nature of the claims, Zokhrabov has been given a gift – the opportunity to let a jury decide whether it wants to hold a deceased man liable for these injuries. And you thought your holiday gifts meant something.

P.S. This post was written entirely on a new iPad.

For a thorough analysis of this decision and its Palsgraf interplay, please check out this piece by Jonathan Turley of the ABA Journal‘s top legal opinion blog.

The McDonald’s Broken Toilet Case

Plaintiffs certainly have high expectations for what McDonald’s should “know” in civil litigation these days. Back in the early 1990s, in the infamous Stella Liebeck McDonald’s hot coffee case, the plaintiff asserted that the fast food chain should have known that the beverage could cause serious harm to a person who did not appreciate the dangers that steaming hot drinks perched in laps could inflict. Now, just last week, an Illinois woman sued McDonald’s based on her claim that the restaurant should have known that a toilet located in its restroom was dangerous.

The Chicago Sun-Times reports that Plaintiff Cherry Hardie has filed a lawsuit against a Chicago-area McDonald’s after allegedly suffering injuries to her left arm and shoulder after the toilet upon which she sat broke underneath her. She has asked for damages exceeding $30,000.00 and claims to have suffered a “shock to her nervous system” and become disabled.

Now, if we were the lawyers taking this Plaintiff’s deposition, we would have a few interesting questions for her. First, we might ask why she thought it was okay to sit down in the first place, given the cleanliness of most fast food chain restaurant restrooms we’ve seen of late. Assumption of the risk, indeed. Next, we might ask what kind of notice she believed the restaurant may have had that a solid piece of commercial-grade porcelain might collapse. Finally, since Ms. Hardie claims she suffered severe, disabling personal injuries as a result of the mishap, we would ask about any prior personal injury suits. In fact, during our cursory online search for a copy of her complaint in this matter, we stumbled across this prior suit. Is it possible that the pro se Cherry Hardie in that prior Illinois lawsuit is the same woman now claiming to be victimized by the McDonald’s toilet? And what injuries was she claiming in this prior suit?

Cynical? Perhaps. But an important issue to explore nonetheless.

False Name Results in Dismissal of Complaint

Shakespeare may argue otherwise, but a person’s name carries great legal weight, and the prosecution of a civil claim under a false name may result in the dismissal of the claim with prejudice. In Santiago v. E.W. Bliss Co., — N.E.2d —, Nos. 1-10-0796, 1-10-0780, 2010 WL 5292919 (Ill. Ct. App. Dec. 21, 2010) [PDF], the Appellate Court of Illinois decided a certified question and set forth the facts of the case as follows:

On May 12, 2006, plaintiff was injured while working with a punch press. Components of the machine were manufactured by defendants, and on May 9, 2008, plaintiff filed a product-liability complaint against defendants in the circuit court of Cook County. The initial complaint identified plaintiff as “Juan Ortiz,” and it did not indicate whether he had ever been known by any other name. Plaintiff filed his first amended complaint on November 4, 2008, naming additional defendants that had been identified during discovery. The first amended complaint also named “Juan Ortiz” as the sole plaintiff.

During written discovery, plaintiff received at least three sets of interrogatories from various defendants. Among other information, each set of interrogatories asked plaintiff to disclose personal identification information, including his name, work history, and social security number. Plaintiff answered the interrogatories on February 25, 2009, identifying himself as “Juan Ortiz.” As required by section 1-109 of the Code of Civil Procedure . . . plaintiff signed and verified each interrogatory with the signature “Juan Ortiz.”

Defendants deposed plaintiff on May 19, 2009. When defendants asked plaintiff to state his full name, however, plaintiff responded that his name was Rogasciano Santiago, not Juan Ortiz. This was the first time during the course of litigation that plaintiff had used this name, and defendants had not previously been aware that plaintiff’s true name was not Juan Ortiz. The record does not disclose whether plaintiff’s attorney was aware of plaintiff’s true name.

Mr. Santiago/Ortiz moved for leave to amend the complaint to substitute his real name. The circuit court granted leave, after the statute of limitations had run on the products claim, and then the court asked for assistance in determining the effect of the amendment on the substantive claim given the facts and the defendants’ motion to dismiss the amended complaint. First, the appellate court ruled that dismissal of the complaint with prejudice is not a mandatory sanction, but it may be an appropriate sanction given the facts of the case. Second, the appellate court held that an amendment to substitute the real name of the plaintiff made after the statute of limitations has run bars the claim because the amended complaint cannot relate back to the original filing. The appellate court then instructed the circuit court to take actions consistent with its opinion.

There are several points for discussion, probably worthy of multiple posts, but here are just a few. First, this may create a certain conundrum for the plaintiffs’ bar. It’s unclear whether there was any willful blindness here, but when a lawyer decides to take on a case of a person who may or may not be properly documented, discovery certainly includes some risks that may have ramifications outside of the lawsuit. I am sure, though, that this would have been a great deposition to take or attend. Not often does the deposition go south right after “Can you please state your full name for the record?”

Next, this case shows that defense counsel should always ask the routine, mundane questions because the answers may let you out of a lawsuit. In addition, the timing of the filing of the complaint and subsequent discovery can certainly impact the merits of the case. Finally, the court shows that it is not going to allow the judicial system to be tampered with. There is a certain calculus in play in this case. Perhaps this was a case where the plaintiff’s goal was to settle prior to deposition. In any event, although a person who may or may not be properly documented has access to the court system, extrajudicial issues certainly play a part in the decision to bring what may otherwise be a meritorious case.

The Case of the Reconditioned Lawnmower and Implications on Strict Liability

As we all know, a finding by a jury that a product is unreasonably dangerous will cause the manufacturer to be held strictly liable for any injuries the product causes. But what happens when the product itself has been used, “reconditioned,” and sold to someone else?
This was the question considered by the Seventh Circuit in Malen v. MTD Products, et al., No. 08-3855, 2010 WL 4670176 (7th Cir. 2010). Malen bought a Yard-Man riding lawnmower from Home Depot which was manufactured by MTD Products. The lawnmower was marketed by Home Depot as having been “reconditioned,” and the product came with a warranty. Malen took the lawnmower home and used it between 30 and 50 times without incident. One day, while mulching leaves, the lawnmower became wedged up against a curb and Malen couldn’t dislodge it. So, he stood up and tried to get off the lawnmower. There was conflicting information about the exact sequence of events, but it is undisputed that the blade of the lawnmower cut Malen’s foot, and he suffered permanent injuries.
According to industry standards, the lawnmower should have been equipped with two separate safety features–one that stopped the lawnmower blade if the operator stood up from the seat, and another that stopped the blade if the lawnmower was put into reverse. It was undisputed that at the time Malen test drove the lawnmower at Home Depot, the reverse safety function was not operational. Furthermore, it was uncontested that the blade did not stop when Malen stood up from the seat on the day of the accident.
As the Seventh Circuit pointed out, “Manufacturers and sellers are strictly liable for injuries caused by unreasonably dangerous products unless an unforeseen alteration by a third party introduced the unsafe condition.” Second, the court acknowledged that when products are used and sold “as is,” any unforeseen defects introduced by prior owners cannot be attributed to manufacturers and sellers. Both Home Depot and MTD attempted to show that the product had been altered by the first owner of the mower, by Malen, or by some other “nefarious person.” The court was not convinced.
It was, however, a case of first impression as to how Illinois courts would treat products that had been “reconditioned.” By reconditioning a product, the Seventh Circuit reasoned, is different than simply repairing a product, and in its opinion “extends the useful life beyond what was contemplated at the point of manufacture and effectively creates a new product.” The Seventh Circuit surmised that, as they have before, Illinois courts would follow the Restatement (Third) of Torts and apply strict liability in the case of re-manufactured products. On this basis, the Seventh Circuit found that the lawnmower, by failing to have the requisite safety measures in place, could be found unreasonably dangerous.
The court also concluded that a jury could find that the lawnmower was defectively designed, and the proximate cause of Malen’s injury on negligence theories. It reversed the grant of summary judgment for MTD and Home Depot, and remanded the whole case.
In this case, there was evidence that the safety measures were not properly connected or installed before the lawnmower was sold to its first owner. However, the decision has serious implications for manufacturers of products which are then “reconditioned” by someone else, and perhaps warranted by the retailer. If the reconditioned product later causes injury, the manufacturer may eventually be released from liability, but it obviously won’t prevent the manufacturer from being sued and forced to engage in expensive discovery as to the original condition and/or design of the product, and as to what modifications and/or repairs were performed on the product prior to resale, without the manufacturer’s knowledge and without compliance to the specifications of the manufacturer. All for the re-sale of a product for which the manufacturer saw no profits.