If there is one thing we here at Abnormal Use take seriously, it’s college football. Among our writers and contributors and fellow lawyers here at Gallivan, White, & Boyd, P.A., we boast fans of the University of South Carolina, Clemson, Notre Dame, and the University of Texas.  When the autumn arrives, you can rest assured that we are talking stats and plays when we are not otherwise toiling or blogging. But, dear readers, imagine our dilemma! We here are perpetrators of a legal blog dedicated to the discussion of products liability! Rarely, if ever, are we permitted to discuss football on these fair pages!  But the fates have smiled upon us! The South Carolina Court of Appeals recently issued an opinion dealing with the contentious issue of football stadium parking which, though not exactly related to products liability, is important enough to bring to your attention.

Last week, The State reported on a family of South Carolina Gamecock fans who sued the University of South Carolina after the university began charging them a hefty $595 for their three parking spots near the fabled Williams-Brice Stadium.  The family alleged that they were entitled to free parking by virtue of a $140,000 donation they made in 1987 for a Lifetime Silver Spur membership in the Gamecock Club.  The family had parked for free for nearly twenty years until the school began charging for the privilege in 2007.  The university attributed the change to its efforts to raise money in order to compete with the facilities of other Southeastern Conference members.

Enter the courts. Following the Rosens’ suit against the university, the trial court granted the university’s motion for summary judgment on the grounds that the relevant written contract was not ambiguous and failed to identify any of its listed privileges as “free.”  The trial court also found that as lifetime members, the family, by virtue of its $140,000 donation, only received the “benefit” of maintaining their donor level with the Gamecock Club.  During the final week of June, in an unpublished opinion, the South Carolina Court of Appeals reversed, holding that the contract was ambiguous on the parking issue, primarily due to the family’s 20-year history of free parking. See Rosen v. University of South Carolina, No. 2011-UP-331 (June 27, 2011) (unpublished). In so doing, the Court of Appeals, in an opinion authored by Justice Huff, noted:

At oral argument, the University urged this court to consider that the Rosens paid for football tickets, including the increases in football ticket prices, as the “customs, practices, [and] usages” of the Gamecock Club.  In considering the payment of ticket prices, we must also consider that during the same time period, the Rosens were not required to pay for the parking spaces.  Exhibit A [of the contract, which listed the benefits and priorities the Rosens received] made no distinction in the language used describing the tickets and parking spaces.  It neither stated additional charges would apply or that the benefits would be free.  When considering “the customs, practices, [and] usages” of the Gamecock Club that despite similar language, the members paid for tickets but did not pay for parking, we find the contracts to be ambiguous as to the parking issue.

The unpublished opinion drew a concurrence and dissent from Justice Pieper, who agreed with the court on the parking issue but not on an unrelated – and far less interesting – beneficiary issue.

We here at Abnormal Use must commend our Court of Appeals.  If anyone is willing to pay $140,000 for the privilege of attending college football games, they probably deserve some benefit. (There’s got to be some equitable Latin phrase from jurisprudence echoing that sentiment, right?). Whatever the case, the college football season officially begins in just a month and a half, and we’ll have to resist the urge to blog about that most important of subjects when September arrives.

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise.  The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues.  In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise.  If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument.  If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them.  The readers of our motions and briefs have much to do and many other items to review.  We suspect that they, most of all, would appreciate efforts to simplify the briefing process.  After all, a picture is worth a thousand words.

Just ask Mark Cuban.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.