TortsProf Blog

50 Cent, Others Sued for Promoting Gangsta Lifestyle

Via ATL, Reuters reports that the victim of an alleged battery by one "Yayo," apparently a friend of 50 Cent and member of his hip-hop group, has sued both the rapper and his label for promoting a violent lifestyle.

In related news, I am contemplating suing all organizers of science fairs for causing me to be nerdy and, thus, the obvious target for junior high beatings. Sound good?

The lawsuit actually may not be quite that crazy (though it's still pretty crazy, at least as reported) -- keep in mind that Yayo allegedly was part of Fitty's group and, according to the suit, "The members of G-Unit, including defendants Yayo and 50 Cent, encouraged, sanctioned, approved and condoned its members threatening violence, and or engaging in violent acts in furtherance of its business." That last bit -- "in furtherance of its business" -- may be the link that gets it to potential vicarious liability rather than being the "media makes people mean" argument. And the suit alleges that the battery was triggered by the victim wearing a shirt for a rival group. Was it in furtherance of the employer's interests?

--BC

Sebok on "New Duty" for New Jersey Restaurants to Protect Bar Patrons

In this week's Writ Column on FindLaw, Tony Sebok analyzes an interesting dram shop case in New Jersey:  Bauer v. Nesbitt.  As Sebok explains, Bauer involved several young men who were drinking at the C View Inn in Cape May, NJ.  One young man, James Hamby, was visibly intoxicated.  He left with his friend Frederick Nesbitt, who was not visibly intoxicated and - to the restaurant's knowledge - had been drinking soda all evening.  Nesbitt crashed his car, killing Hamby.  Hamby's estate sued Nesbitt and the C View Inn under New Jersey's Dram Shop Law.  The trial court dismissed the suit against the C View Inn, but in a recent opinion, the appellate court reversed.   

As Sebok notes, the appellate court "held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication."  Sebok argues that the appellate court "created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not."

The full column analyzes the underlying rationales of the decision, the precedents cited by the court, and the potential policy implications.  Give the column a read!

- SBS

"Slanderous Kook: I'm a Slander Victim"

That's The Smoking Gun's headline, and it does a nice job of summarizing the story of Larry Sinclair, a Minnesota man who first made (unsubstantiated) allegations of doing various illegal things with Barack Obama and who has now sued Obama, Howard Dean, and another fellow who I assume to be a DNC media person of some sort, for defamation. I note that the case, filed pro se, has been assigned to my judge. One of those days I don't really miss clerking.

--BC

Don't Like Web Content? Try Suing Google

Techdirt reports that two Australian real estate agents are suing Google for linking to an allegedly defamatory article about them.   The suit has been filed in Australia and appears to bring common law defamation claims against Google.  (Via WSJ BizTech Blog).

- SBS

Assumption of the Risk in Jello Wrestling

A great teaching opportunity on assumption of the risk from WNBC (New York):

... Avram Wisnia was an NYU junior in 2004 when he and his dorm mates organized a party called "Beach Bash." While horsing around a kiddie pool filled with gelatin, Wisnia was pushed and shattered his hip....Wisnia's 2005 lawsuit blamed NYU for allowing the event and for having the school's food service provide the gelatin. But Manhattan Justice Carol Robinson Edmead ruled that Wisnia knew what he was doing.

(Via Walter Olson at Overlawyered).

- SBS

Chuck Norris Cannot In Fact Do a Wheelie on a Unicycle, It Seems

Okay, I can't make this quite be a torts suit, since it seems solidly in the IP camp, but I can't resist it anyway.  Chuck Norris is suing Penguin Books and the TruthAboutChuck.com website for the satirical "facts" about him, such as the unicycle-wheelie one above and the like ("Chuck Norris counted to infinity.  Twice.").

"Some of the 'facts' in the book are racist, lewd or portray Mr. Norris as engaged in illegal activities," the lawsuit alleges.

Norris, who rose to fame in the 1970s and 1980s as the star of such films as "The Delta Force" and "Missing in Action," says the book's title would mislead readers into thinking the facts were true.

"Defendants have misappropriated and exploited Mr. Norris's name and likeness without authorization for their own commercial profit," said the lawsuit.

The suit, filed in Manhattan federal court, seeks unspecified monetary damages for trademark infringement, unjust enrichment and privacy rights.

There.  That's my Christmas gift to you.

--BC

Suing Seven-Year-Olds for Fun and Profit

Wonkette notes the Boston.com AP story about the tale of a sixty-year-old lawyer for Reader's Digest suing a seven-year-old for injuries incurred on the ski slope.  The boy's parents say that all 48 pounds of him were skiing at perhaps 10 miles per hour.

--BC

Do Not Eat Within Thirty Minutes of Reading This Story

Honest, you really won't want to.  Especially not at Burger King.

The title is enough, isn't it?

Vermont man alleges he found condom in Burger King burger.

Ick.

--BC

Well, At Least She's Not Also Suing Rose Royce or Christina Aguilera & Missy Elliott

Via Wait Wait, Don't Tell Me, we learn of the frankly horrifying story of the dental patient injured when the dentist's drill goes a bit off course.  The alleged reason?

A dentist at Syracuse Community Health Center, dancing to the song “Car Wash” while he was extracting a patient’s tooth, lost the inch-long drill bit, which punctured her sinus cavity and came to rest by her eye socket, according to her lawsuit.

The NYT blog The Lede has more discussion, including an observation that the dentist's name is, amusingly, Dr. George Trusty.

I've got a dentist appointment on Friday.  Perhaps I'll ask that they turn down the volume on the radio...

--BC

Alienation of A Child's Affection: A New Tort?

The New Jersey Law Journal (via law.com) reports on a suit filed last week in the Law Division by a non-custodial parent against the child's mother (and custodial parent) for "alienation of affection."  Following a 2001 separation, the suit alleges that the children's relationship with their father was "damaged," "that he no longer has the relationship with his children he had previously."  The suit is based on negligence and intentional infliction of emotional distress theories, and seeks both compensatory and punitive damages. 

New Jersey courts abolished alienation of affection as a cause of action between spouses on June 27, 1935, and other states have also abolished the action.

However, at least one court seems to have allowed a claim like Segal's to go forward. In Raftery v. Scott, 756 F.2d 335 (4th Cir., 1985), a federal appeals court applying Virginia law affirmed an award of $40,000 in compensatory and $10,000 in punitive damages in an emotional distress suit by a New York man who alleged it took a year to find his child after his former wife absconded to Virginia while the divorce decree was pending. By the time he was able to see his child, the ex-wife had allegedly turned the child against him, he alleged.

But a Wisconsin court went the other way in 1987, refusing, in Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987), to allow a noncustodial parent to sue the custodial parent and his new wife for emotional distress and alienation of affection.

- SBS

Dry Cleaning Pants Plaintiff To Lose Job As Judge

The Washington Post reports that Roy Pearson, the plaintiff in the dry cleaning pants lawsuit, will not be reappointed to his position as a DC administrative law judge. (Prior posts here,  here, here and here).  No formal letter has been issued, however, so any decision is not yet final. 

- SBS

You May Already Be Pacman Jones's Co-Defendant

...at least, given the range of the people and entities on the wrong side of the "v." in the suit filed against the suspended Tennessee Titan/idiot.  John Day has some commentary on the suit, where a manager of a strip club in Vegas has sued Jones, the Titans, and the NFL for his injuries in a shooting outside the club.  But even the suit against Jones is tenuous at best, since he was not the shooter (at most he started the melee inside, it appears).  But the basis for the suit against the NFL and the Titans is, well, you be the judge:

"The fact that the NFL and the Titans did not punish Adam 'Pacman' Jones until after Tommy was paralyzed is a proximate cause of Tommy's injuries," attorney Matthew Dushoff said before a news conference in suburban Las Vegas.

Maybe a factual cause, sure.  But getting past duty and legal cause?  Good luck with that.

--BC

Another Floral Lawsuit - Lawyer Bride Sues Over Pastel Hydrangeas

Yesterday's New York Times reports on a lawsuit filed by a lawyer-bride against her wedding florist.  The suit alleges that the florist used "pastel pink" hydrangeas instead of the requested "dark rust" in the table centerpieces.   

Their pastel colors clashed with the linens, favor boxes, wedding cake and décor at Cipriani 42nd Street, the luxurious restaurant where she and her husband, David, held their reception, Ms. Glatt said.

“The use of predominantly pastel centerpieces had a significant impact on the look of the room and was entirely inconsistent with the vision the plaintiffs had bargained for,” Ms. Glatt, a lawyer who practices under the name Elana Elbogen, said in the lawsuit, which she filed on behalf of herself, her husband and her mother-in-law, Tobi Glatt, who paid for the flowers.

The New York Post also covered the story.   After spending around $30,000 on the pretty pink flowers, the couple now seeks $400,000 in damages.

- SBS

   

When the Celebrity B-List (or C-, or D-) and Tort Law Collide, We're All Winners

You can't help but have a good day when you get to quote this lede:

Former "Survivor" contestant Jonny Fairplay sued Danny Bonaduce, alleging battery and emotional distress after Bonaduce tossed Fairplay over his shoulder at an awards show.

TMZ, naturally, has more, including the complaint.  (And NYPI Blog has the video, God bless 'em.)

--BC

More Litigation Against the Patriots

Our regional NFL team, the New England Patriots, already is dealing with a purported class action misrepresentation claim based on, well, something to do with the coach's admitted videotaping of opponents' defensive signals.

But now it gets better, with a prolific inmate pro se litigant going after Belichick for, among other things, placing a listening device in Donovan McNabb's soup (McNabb appears in ads for Campbell's chunky soup).  It's no snake head in the green beans, but it would be a surprise, no?

--BC

Misrepresentation Suit Filed Against Patriots

Like we New Englanders don't have enough annoyance with the videotaping of opposing teams' signs by the New England Patriots.  Now we have Jets fans filing lawsuits.

The lawsuit states that because other teams found illegal videotaping by the Patriots, Jets ticket holders should be compensated for all Jets-Pats games in Giants Stadium since Belichick became coach in 2000.

The two calculated that because customers paid $61.6 million to watch eight “fraudulent” games, they’re entitled to triple that amount - or $184.8 million - in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.

Good luck with that.

Other Coverage of Zyprexa/Egilman

• The NYT has a story (with no individual byline) that includes a quote from their own editor about the coverage;
• The Indianapolis Star has a piece;
• The AP has a story too;
• and another one (this one addressing a bit about the dispute over how to parse the agreement, this time about whether "regretting" actions is the same as an apology);
• And Reuters has a story.

--BC

Scientific Discourse via the Legal System

I won't try to capture all of the posts about the recent lawsuit against PZ Myers, author of the terrific Pharyngula blog on the ScienceBlogs network.  The short version is that an author, displeased by Myers's writings about his book, has sued Myers for libel.  (Unless there's something more than I've seen, it's a silly case.) 

The best coverage I've seen has been at the essential SciAm blog, which also notes that all WordPress blogs have been blocked in Turkey.  The Myers story is well worth following, both as a libel case and as a blogging story.

--BC

In Case You Missed It - The Pants Suit Saga Continues

In news you may have missed, the Legal Times (via Law.com) reported that Roy Pearson filed an appeal last week with the D.C. Court of Appeals.   Following a two day bench trial, the trial court rejected Pearson's $54 million suit against his former dry cleaner over a pair of allegedly lost pants.   

(Thanks to Overlawyered.  Ted Frank notes that the "D.C. Court of Appeals' average time for appeal is 575 days, implying a wait until 2009 for a decision."). 

- SBS

Is Barry Bonds Libel-Proof?

Probably not as to some of the subjects about which he's considering suing others (presumably including Curt Schilling):

Now that Barry Bonds has passed Henry Aaron to become baseball's all-time home run king, he's threatening to sue anyone who makes false or misleading statements about him, two Bay Area attorneys said Monday.

Attorneys John Burris of Oakland and Todd Schneider of San Francisco said Bonds has retained them "in connection with legal issues arising from the myriad of false statements attributed to him by players, the media and others."

Deadspin comments, as does Steroid Nation.  Update: Sports Law Blog comments, including noting the challenges for Bonds by the fact that he's a public figure.

--BC

A Floral Duty of Confidentiality?

As reported yesterday on The Today Show (and others), Leroy Greer has sued 1-800-Flowers for damages and "mental anguish" because the florist inadvertently disclosed Greer's extramarital affair to his wife.   According to The Today Show, the florist sent a thank-you for the order to Greer's home address.  When his wife received the thank-you - the couple was divorcing and Greer was not living at the house at the time - she called the florist to find out more.   The company then sent her  "a receipt and a copy of the note he sent with the flowers." 

According to the ABC story,

The receipt revealed that Greer had sent another woman a dozen long-stemmed red roses, along with a note that read, "Just wanted to say that I love you and you mean the world to me!" according to court documents.

The couple was already going through what Greer's attorney described as an amicable divorce.

After learning of the affair, Greer's wife asked for a $300,000 divorce settlement in addition to child support, said Kennitra Foote, Greer's attorney.

Greer is suing for $1.5 million in federal court in Texas.

- SBS   

 

Drug Party Leads to Tort Suit

The St. Louis Post-Dispatch reports that the parents of a man who died at a drug party are suing the party's hostess.   

Craig and Kelly Dodson are suing Kacie Kissell and two other defendants, Liana Kim and Jesse Ashley, in the death of Joshua Dodson, 20. The case was filed recently in circuit court in St. Charles County, a little more than a year after a criminal case against Kissell ended.

Kissell, 25, was sentenced in July of last year to eight years in prison for involuntary manslaughter and drug possession. Prosecutors said she repeatedly injected herself, Dodson and other guests with cocaine and heroin at a party in 2005 at her parents' home.

The suit brings negligence and battery claims against the defendants. 

- SBS

DC Pants-Suit Plaintiff May Lose Administrative Law Judgeship

Roy Pearson, the administrative law judge who sued his dry cleaners for $54 million over a pair of lost pants (prior posts here, here and here) may next lose his job.   Pearson's initial ten-year term expired in April, in the midst of the pants law suit.  (Since that time, Pearson has not been sitting as a judge, but rather working as an "attorney adviser" at the Office of Administrative Hearings).  The Washington Post reports that the DC Commission on Selection and Tenure of Administrative Law Judges has "doubts" about granting Pearson another 10-year term on the bench, and plans to issue a letter to Pearson explaining their concerns next week.  According to the Post,

The panel's discussion about Pearson's future has focused on what role a judge's behavior outside the courtroom should play in assessing his qualifications. Was Pearson's extraordinary zeal in pursuing the case against the Chungs so embarrassing that it amounts to evidence of poor judicial temperament?

The commission is expected to address the Chung case in its letter to Pearson, pointing out that his no-holds-barred pursuit of mega-millions in a case stemming from a $10.50 alteration on a pair of suit pants raised public doubts about the court system. After receipt of the letter, Pearson would have the right to a hearing before the commission. Only after that hearing would the commission formally move to end Pearson's tenure as a judge.

- SBS

Update: Family of Drunk Driver Dismisses Lawsuit Against Restaurant

As posted earlier, the father of Josh Hancock, a St. Louis Cardinals pitcher killed in a drunk driving accident, filed suit last May against Mike Shannon's Steaks and Seafood, the driver of a stalled car and a towing company for their alleged roles in his son's death.  The St. Louis Post-Dispatch reports that the family dismissed the suit yesterday just before a hearing on the defendants' motion to dismiss.  The dismissal, however, was without prejudice.  (Howard Wasserman at Sports Law Blog has a thorough post examining the dismissal.)

The Post-Dispatch reports that the family released the following statement: 

"The subject of my son's death has been widely reported and discussed, as has my motivation to file the wrongful death lawsuit. Often, legal action has more to do with performing responsibilities and gaining control. This lawsuit was not filed for personal gain. Few know that Josh died without a Will, leaving multiple heirs in two separate families in different states. When I became the court appointed Administrator of his estate, I agreed to perform fiduciary responsibilities to protect the interests of his estate and all beneficiaries.

"Information from the intense news coverage of Josh's tragic death, facts about the accident and varying public statements from witnesses indicated that certain individuals and entities shared some degree of comparative negligence in the cause of Josh's death.

"The final investigation report recently issued by the Missouri Division of Alcohol and Tobacco Control ("ATC") provided some insight into the events leading to Josh's death. Considering all factual issues, combined with the prolonged legal battles which we would have to fight if this lawsuit were to continue, I have instructed that the defendants be dismissed from the lawsuit.

"Josh was often quoted saying, 'everything happens for the good.' The ATC report confirms that since his death, bars and restaurants are now becoming even more focused on their responsibilities. I am certain that his death has caused many individuals to become more aware of personal responsibility. Additionally, a number of employers and groups are also examining and changing their alcohol policies.

"It is my hope that public opinion will eventually have an even greater effect on public policy to emphasize the responsibilities of both those who consume alcohol and those who serve it."

As I queried in my earlier post, was this a classic example of a frivolous lawsuit?  Certainly sounds like the family had a good faith belief that another party was negligent when they filed the suit.  But assuming no discovery has taken place in the past two months (which given the posture of the case seems correct), no new information has been discovered that could not have been learned with greater pre-filing investigation on the part of the plaintiff's attorneys, or in the case of the ATC's final report, some patience in rushing to the courthouse.   Overall, this one seems to exemplify "sue first, ask questions later."

- SBS

Vick's Got A Civil Suit, Too

AboveTheLaw has the pro se complaint and commentary.  Short version is that Vick's got a lot more criminal exposure than civil, at least from this complaint.

--BC

Mike Piazza Would Rather You Keep the Water Bottle in the Stands, Thank You Very Much

Oakland A's designated hitter Mike Piazza is promising legal action against one Roland Flores, who threw a water bottle at Piazza and hit him on the (helmeted? not sure) head.

The story's headline states that Piazza plans to sue Flores, while the story itself suggests that the likely action will be criminal charges.

(Via Deadspin.)

--BC

Depo Questions Give Rise To Emotional Distress Suit

The New Jersey Law Journal (via law.com) reports that a plaintiff's attorney has sued defense counsel for "inflicting grievous emotional distress" on the plaintiffs during a deposition.  The underlying case involved a medical malpractice suit based on the death of the plaintiffs' daughter.   At the depo, counsel for the defendant-doctor asked the father what "he thought might have happened to the baby, whether he felt the couple's baby nurse or nanny had committed negligent homicide and whether his wife had been involved in the death."  The suit claims that as a result of those questions, the wife left the depo "so wracked with guilt and so depressed that she does not want to leave her house, socialize or enjoy family activities; that she spends whole days crying in bed and that she has started seeing a psychiatrist. The plaintiffs say they both feel humiliated, embarrassed and insulted."

- SBS    

Judge Denies Motion to Reconsider in Pants Case

The AP/WUSA reports that on Monday, Judge Bartnoff denied the plaintiff's motion to reconsider in the DC Pants Case.   (Via Overlawyered).  Prior posts on the DC Pants Suit are here and here. 

- SBS

Philly Food Critic's Anonymity Threatened By Litigation

The food critic for the Philadelphia Inquirer was unimpressed by a steak he got at a restaurant called "Chops," and said so in a review.  The restaurant, displeased, sued for libel, contending that he received (and knew he received) a steak sandwich without bread, not an actual steak.  And now, the Philadelphia Weekly reports, his videotaped deposition may be shown publicly, causing significant harm to his ability to remain anonymous.

(I observe that the Chops comment section has some negative comments about the lawsuit too.) (Update: As commenter LCC (also known as my sister) notes, the negative comments have disappeared.)

--BC

Rock Concert Injuries

An entertaining Above The Law post about this ad at Q101 in Chicago, where Goldberg Weisman Cairo, a personal injury firm, seeks clients injured at rock concerts.

As a general matter, I find the header ("The pit is dangerous!") to be a pretty compelling argument for assumption of risk.  I've been in quite a number of pits and I was quite aware of the risks.  Indeed, the risks are generally the purpose, no?

Additionally, this caught my eye:

June 29, 1998 A 17-year-old girl attended a rock concert where promotional compact discs were being thrown into the audience as prizes. She suffered an extensive corneoscleral laceration with vitreous hemorrhage and retinal detachment when a compact disc struck her in the eye. An alternative, safer method must be used for distributing compact discs as prizes.

And why did it catch my eye?  Because of how closely it tracked part of my exam [PDF] in Torts last fall, which featured all sorts of bands from the '80s you don't want to hear again:

The Fixx performs at Second Street, at a show attended by (among others) Gregory Pajeski, who paid $10 for his ticket.  At the end of the performance, all of the members of the band (including Pyrnin, Prown, and guitarist drummer Adam Poods) throw several dozen free CDs into the crowd as promotions.  Pajeski just misses catching one of them.  At the end of the encore, all three members of the band again throw several dozen free CDs into the crowd.  This time, one hits Pajeski in the ear and slices it open, requiring many stitches and several thousand dollars worth of medical care.

Good times.

--BC

The $54 Million Pants Trial

By now, we've all heard about the DC Administrative law judge who is suing his dry cleaner for $54 million (originally $65 million) for losing a pair of pants.  The trial started yesterday.  Emil Steiner of the Washington Post is live-blogging the trial.  The trial resumes today with cross-examination of the plaintiff.  (Thanks to Overlawyered for the tip). 

- SBS

Robert Bork Sues Yale Club For Negligence

The Wall Street Journal Law Blog reports that Robert Bork, the former nominee to the Supreme Court and current professor at Ave Maria, has filed a negligence suit against the Yale Club based on a slip-and-fall at an event in June 2006.  WSJ Law Blog has a copy of the complaint.  Bork seeks $1 million in compensatory damages and an unspecified award of punitive damages. 

-SBS

Ethics In Negligence Case - Sharp Maybe, But Sanctionable?

The Florida Supreme Court recently sanctioned a lawyer for his conduct in a personal injury case (Florida Bar v. Cocalis).  The lawyer represented the defendant in a dog bite case.  Plaintiffs alleged that the defendant's dog bit their two-year-old daughter, and that the bite caused alopecia (hair loss on the scalp).   During the case, plaintiff's counsel refused to stipulate to the records of a treating physician.   So, defendant's counsel subpoenaed the records custodian to appear at trial.  The custodian, however, mistakenly mailed the records to defendant's counsel.   Defendant's counsel returned the records to the custodian and explained that they should be brought to trial.   

Here's where the case gets interesting:  the mailed copy of the records contained a notation that was not on the original set of document's attached to the doctor's deposition.   The new entry documented a call between the doctor and plaintiff's counsel, stating that the doctor advised plaintiff's counsel that he did not believe the alopecia was caused by the dog bite.   Unaware of the new entry, plaintiff's counsel finally stipulated to the admission of the documents at trial.   Defendant's counsel did not advise plaintiff's counsel that (1) he had received the records from the custodian, (2) that the records contained a new entry, or (3) that the records he sought to admit were not the same as those attached to the depo. 

The Florida Supreme Court found the defendant's lawyer guilty of misconduct under Florida's general "misconduct and dishonesty" rule.  (The Court of Appeals also reversed the case, finding the trial court had abused its discretion in admitting the mailed records.  Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)).    The Florida Supreme Court ordered a public reprimand as well as attendance in a professionalism program and bar ethic's course.  Notably, the lawyer had no prior disciplinary charges.

Was a public reprimand (and exclusion of the evidence) warranted in this case?   What about the plaintiff's lawyer who failed to follow up with the most current version of the records?   This one just strikes me as odd. 

- SBS

Wrong Casket? Dig Up Your Ancestor and Sue

That's the approach in Arkansas, anyway:

When [Clarence Budy] Simons died in July 2002, the Simons family shelled out $1,745 for an Addison 20 gauge casket that was supposed to be leak-proof for 75 years.

But in 2005, Simons' family learned that some "leak-proof" caskets made by Batesville Casket weren't so watertight, according to the family's lawsuit filed in Pulaski County Circuit Court by their attorney, Charles Phillip Boyd Jr. of Little Rock.

In May 2005, the family exhumed Simons to see if the casket had leaked.

Sure enough, the family said, the casket had leaked and didn't preserve Simons.

Why, yes, they have sued:

The family also learned the casket Simons was in was of "significantly less quality" and cheaper than the one they ordered.

The family said the situation has caused severe emotional distress and has listed several counts on which they are seeking damages, including breach of contract.

Query: Does voluntarily witnessing the exhumation of your father/spouse/family member fit in the category of consent and/or assumption of risk?

(h/t LCC)

--BC

Father of Drunk Driver Sues Restaurant For Son's Death

Howard Wasserman has an interesting post over at Sports Law Blog about a case filed last week by the father of a St. Louis Cardinals pitcher against a restaurant (Mike Shannon's Steaks and Seafood), the driver of a stalled car and a towing company for their alleged roles in his son's death.  A copy of the complaint is available from KMOV in St. Louis.

Cardinals pitcher Josh Hancock was killed last April when his car collided with a tow truck that was assisting a disabled car.  Prior to the accident, Josh Hancock had been drinking at Mike Shannon's.  In the lawsuit, Hancock's father, Noel Dean Hancock, alleges that the restaurant violated Missouri's dram shop law by continuing to serve Josh even though he was visibly intoxicated.  The complaint also brings negligence claims against the tow truck company and stalled car driver.  Notably, reports indicate that Josh was drunk, speeding, and talking on his cell phone with his girlfriend at the time of the crash.  (Check out Wasserman's post for links to several stories about the accident and lawsuit). 

Wasserman provides a thorough analysis of the unlikely success of the dram shop count and the likely comparative fault defenses on the negligence counts against the tow truck and stalled car driver.  Beyond that, Wasserman raises an interesting point about the tort system:  Is this case a frivolous lawsuit clogging our system or a dispute best resolved by a jury? 

(Note to TortsProfs:  The case also may provide some good facts for exam time -- save this idea away for next year). 

- SBS

That Might Be Just a Tad Beyond the Limitations Period

...or at least it would be if she filed a lawsuit:

An 81-year-old Kerrville [Texas] woman was arrested Tuesday on charges she sent letters to Hall of Fame NFL quarterback Bart Starr in an effort to extort $2 million from him.

A typed, computer-generated letter that authorities contend Ruby Y. Young mailed alleges a vague encounter with Starr in 1960. But the former MVP of the first two Super Bowls denies even knowing the woman, according to a criminal complaint affidavit filed against Young in Birmingham, Ala.

* * *

"And now, the time has come for you to pay -- to pay for the many injuries you caused me. ... No I am not a push-over Mr. Starr -- and no, I do not need the money -- but I intend to see that you pay for your wrong doings (sic) to me ...," said the first letter, dated Oct. 30, 2006, which an agent quoted in part in the affidavit. "How much is it worth to preserve this 'image' presented to the public these many years of who and what you are?"

[via Deadspin]

Note to Self: Never, Ever Tailgate a Greyhound Bus

The Smoking Gun tells you why and has the complaint:

In a Court of Common Pleas lawsuit, Robert and Angela Stokes charge that they were driving last May (Mother's Day, to be exact) on I-75 in Toledo when "Greyhound Bus No. 6426" suddenly "emptied the contents of its latrine." The Stokes, who were traveling with their three children, claim that they and their 2002 Ford Explorer were covered with "human urine, human feces, toilet paper, other waste products" and a liquid toilet chemical known as F-104 Inca Gold.

I am particularly amused that someone gave a liquid toilet chemical a name that sounds like it should be featured in a sentence reading something like "Dude, pass me that Inca Gold; that's some bad-ass stuff there."

Also: Ick.

(h/t TF.)

Those Hips May Not Be Judgment-Proof

Bar holds "Shake it Like Shakira" dance contest.

On the bar.

Patron falls.

Lawsuit ensues.

(Also, thanks to WCBS-TV for hilariously including a picture of empty drink glasses with the story.  "Oh, so that's what drinks come in?")

(And yes, I know the title of the post doesn't make sense, since Shakira is not herself being sued.)

As If T.O. Wasn't Enough

The receivers coach for the Dallas Cowboys has sued McDonald's after finding a six-inch rat in his salad.

The dead rodent, believed to be a juvenile roof rat, was about 6 inches long and was found on its back with its mouth opened, Scott Casterline, a spokesman for the family, told The Associated Press.

He said the women didn't find the rat until taking the salad home to eat, and that a manager from the McDonald's "didn't offer any comfort" after driving to their house to see the rodent. The suit was filed after the restaurant didn't follow through on promises "to make things right," he said.

"The family needs closure," Casterline told The Associated Press. "It came to a point where you have to draw a line."

* * *

According to the lawsuit, Christine Haley and Kelley had eaten part of the salad purchased June 5 before the dead rodent was uncovered.

The women became violently ill and endured long-lasting physical injuries, the lawsuit said. Chritine Haley, who was nursing, states she had to feed her baby with formula.

The roof rat is common in Texas.

Also: Yuck.

[via DeadSpin]

Perhaps the Finest Warning of the Year

I am, I admit, utterly unconvinced of the value of being able to plug a guitar into a car stereo, though that may have something to do with my playing violin.  (But, in a vain attempt to regain any hipster cred I might have once had, I note that I do host, with my daughter, an indie kids' music show called "
Spare the Rock, Spoil the Child.")

But for those of you who might be tempted by the VW, I note this, strictly for your safety (from the disclaimer page):

(The magazine ad I'm looking at says "Do not operate guitar while driving," but apparently they decided that passengers shouldn't rock out either.)

My Sensitive Ears!

A good friend of ours in Minnesota traditionally says, derisively, "Bark," when he's confronted by something silly and/or pointless.  And to the plaintiffs suing Wal-Mart (complaint [PDF]) because they bought a Tool CD and were shocked -- shocked! -- to find naughty language, I say: Bark.

(Click on the image to see it bigger.)

(via WSJ Law Blog via Plaintiffs' Lawyer Blog.)

Featherstone on the Frey Settlement

The post is here, along with some lunatic rantings in the comments.

(via Point of Law.)

A Million Little Pieces = $2.35 Million Settlement (Maximum)

Definition of "nuisance settlement"?  You be the judge.  (NYT story here.)

(Earlier post, and another post referencing one of the plaintiffs' lawyers, Thomas Pakenas, who also brought a McDonald's gluten lawsuit.)

Happy Birthday! Oh, and I'm Suing.

In the Thanksgiving's-gonna-be-awkward category comes this AP story of one Carriel Louah, who paid her parents a surprise visit for her mom's birthday back in 2005.  She slipped and fell in their (allegedly) icy driveway the next morning, injuring herself, and has now sued her mom and stepfather.

U.S. District Judge John Shabas denied summary judgment: Download ice.pdf.

(There's nothing particularly problematic with the suit itself, incidentally.  It seems to be a fairly run-of-the-mill premises case, made interesting only by the familial connection.)

Slightly Off Topic Sports Fun

First, it's entertaining to see the Jamail video finding its way to Deadspin.

Second, also from Deadspin, a Colorado attorney is suing various online fantasy football providers under New Jersey law, claiming that they are in fact providing online gambling illegally.  Tech Law Advisor has the complaint; and the lawyer has a press release.  I suppose if some sites get enjoined, I might not be as embarrassed in my leagues this year...

TortsProf Sports Special

Via the indispensable DeadSpin, we finally get a good sports story.  The local TV news has the details on the man's lawsuit against Michael Jordan and Phil Knight (Nike's founder), seeking $832 million:

Allen Heckard filed the suit himself, June 29th in Washington County Court. Heckard says he’s been mistaken as Michael Jordan nearly every day over the past 15 years and he’s tired of it.

I'm constantly being accused of looking like Michael and it makes it very uncomfortable for me,” said Heckard.

Heckard is suing Jordan for defamation and permanent injury and emotional pain and suffering. He’s suing Knight for defamation and permanent injury for promoting Jordan and making him one of the most recognized men in the world.

Says Heckard of how he came up with the $832 million figure ($416 million each): "Well, you figure with my age and you multiply that times seven and ah, then I turn around and ah I figure that's what it all boils down to."

DeadSpin also has this story and this followup on a lawsuit (complaint [PDF]) against Minnesota Timberwolves center Eddie Griffin for allegedly causing a car accident due to being distracted by watching and, er, enjoying pornographic videos on his in-dash DVD player.

Illinois Excitement

Two interesting opinions noted on the TortProf listserv; both are also discussed at Overlawyered:

• In Tri-G v. Burke, Bosselman & Weaver, the Illinois Supreme Court held that "lost" punitive damages are not available in legal malpractice claims.  In other words, if your lawyer screws up and you lose punitive damages as a result, you can't recover those by way of suit against your lawyer.  From the majority opinion:

Disallowing lost punitive damages means that plaintiffs in legal malpractice actions may not receive as much money as they might have if the underlying action had been handled properly. Compensating plaintiffs, however, is but one of several factors that must be balanced in assessing whether lost punitive damages should be recognized in legal malpractice actions. There is no reason in logic or the law why it should be given preeminent effect where, as here, the jury has already awarded full compensation to the plaintiff for all the damages it actually sustained.

Punitive, or exemplary, damages are not awarded as compensation, but serve instead to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future. Loitz v. Remington Arms Co., 138 Ill. 2d at 414. Allowing Tri-G to recover its lost punitive damages from Burke would not advance that policy in any way. To the contrary, by holding the firm liable for the intentional or willful and wanton misconduct of a third party, it tears the concept of punitive damages from its doctrinal moorings.

Section 2-1115 of the Code of Civil Procedure (735 ILCS 5/2-1115 (West 2002)) expressly bars recovery of punitive damages in a legal malpractice action. By characterizing lost punitive damages as "compensatory," Tri-G is attempting to evade reach of this statute.

• In another June decision, the Illinois Supreme Court held that a Burger King has a duty to patrons in connection with potential injuries from traffic smashing through the walls.  The dissent (and Ted Frank) suggest that the conclusion is massively overbroad -- but I think the opinion is actually fairly narrow.  Certainly the restaurant has a duty to its customers in terms of how it builds walls, roads, etc.
  
  The harder questions in this case are whether these injuries fall within proximate cause and whether the restaurant breached the duty of ordinary care.  Recall that the case was resolved on a motion to dismiss, where it's virtually impossible to win a breach argument. As for proximate cause, the Court concluded that the defendants failed to properly raise the proximate cause question: "[W]e find that defendants' [sic] have forfeited their argument regarding proximate cause for purposes of this appeal. Defendants argue for the first time before this court that, as a matter of law, the allegations in plaintiff's complaint are insufficient to demonstrate that their conduct proximately caused the decedent's injuries."
  
  I tell my students (and I told Massachusetts judges a couple of weeks ago) that any time a statement of duty sounds really specific -- i.e., "Restaurants have no duty to guard against bizarre traffic accidents ending up with cars running through the walls" -- it's much more likely to be a statement about breach, and properly dealt with on summary judgment.  The Court does a pretty good job of discussing how much confusion there is about duty, and comes out about right:
  

  Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings.

  Ultimately, the court concludes that the category of injuries is foreseeable enough that it can't find the absence of a duty as a matter of law -- but is emphatic that the presence of a duty implies neither breach nor proximate cause:
  

  Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution. Nor is it the same as concluding that the breach was the proximate cause of an invitee's injuries.

  Do I thnk it's a great case?  Nope, not from what I've read.  It seems highly unlikely that there's a breach, given the facts that are known.  But those are hard questions to win on a motion to dismiss.  As for proximate cause, you might be able to win that on a motion to dismiss -- as long as it's properly before the court, which it apparently isn't here.  In other words, I think it's a loser of a case, but a loser at a different stage.
  
  I'm not an Illinois lawyer, so I don't know the procedural rules, but an early motion for summary judgment sounds like a good idea.  (I happen to think that more such motions should be taken seriously, but that's for another day.)