Lowering the Bar

Knife-Purchasers Must Register, Says Chinese Government

China's Ministry of Public Security, in full public-securing mode as the Olympic Games approach, has told citizens that anyone buying "potentially deadly knives" must now register with the state.  According to the government, "potentially deadly knives" include switchblades, knives with "blood grooves," and any knife with a blade measuring over 22 centimeters (8.66 inches) in length.

As you know, it is impossible to be killed by any blade measuring 8.65 inches or less.

As I mentioned in 2005, when we were discussing a proposal by some British medical experts that would have made pointy knives illegal, knife-control regulation goes back at least to the 17th century, when Louis XIV ordered that all knives in France be blunted in order to reduce violence.  As his grandson learned, a sharp point is not the only part of a blade that can be dangerous, but this idea still continues to come up now and then.

The Chinese government stated that regulations concerning any "knife tools" used by ethnic minority groups would be left up to "local autonomous governments," which might be a sign of a renewed commitment to civil rights if there actually were any local autonomous governments inside China.

Link:  Xinhua News Agency via Reuters

Rooster Executed

At a bend in the road near Joe's Creek, birds sing and dogs bark.  But the rooster no longer crows.

So begins this tale of tragedy, as reported in the St. Petersburg Times.  According to the report, Gilman the Rooster died as he had lived, greeting the day as it broke over the Florida horizon.  Neighbors said that Gilman led a flock of chickens who had lived in and freely roamed the neighborhood for years, apparently owned by no one but loved by all.  Or all but one, anyway.

The flock would roost at night in a tree near James Dominic's house, and Gilman would leap onto the roof in the morning to signal the dawn.  "He was like the neighborhood alarm clock," said Deanna Schwartz, who lives next door to Dominic.  Another resident said, "You heard the rooster and it made you feel good."

But it apparently triggered a different feeling in Eric Nicastro -- one of murderous rage.  Later, residents said they remembered Nicastro had been asking who owned the chickens, and when he learned they were feral he began to plot against them.  Authorities said he started out with a BB gun, but soon upgraded to a .45-caliber handgun, renowned for its rooster-stopping power.  The large-caliber bullets made short work of Gilman, who was hit by at least one of four shots that Nicastro fired.  "I got him!" Schwartz heard the murderer say.  His victory complete, Nicastro callously threw his victim's body into the creek.

Neighbors who heard the shots called police.  They arrived in time to find the shooter walking down the street, still carrying his weapon.  They did not arrest him but have recommended prosecution for "improper exhibition of a firearm."  As of today there was no news as to whether Nicastro would be prosecuted.  As the Times reported semi-somberly, a pall has settled over the neighborhood.

As the sun set Saturday, bread crumbs remained on Dominic's roof.

Link: St. Petersburg Times

Russian Farmer Sues Space Agency for Rocket Damage

Tired of having rocket parts rain down on his village, a Russian shepherd is suing Roskosmos, the Russian space agency, for one million rubles after a 10-foot piece of space trash hit his property, narrowly missing his outhouse.

Boris Urmatov lives in the village of Kyrlyk in southern Russia, evidently right under the flight path for rockets taking off from a Russian launch complex in what's now Kazakshstan.

Residents in Kyrlyk and surrounding villages said that rocket parts regularly drop from the sky there.  "Sometimes it's smooth metal casings, sometimes it's bolts," said a resident of nearby Ust-Kan.  "I remember something like an engine fell once."  Coincidentally, Russian rockets are powered by something like engines.

According to Urmatov's sister, "Something woke him up in the night, like something exploded. Since he's visually handicapped [especially in the dark] he didn't notice the fallen rocket parts" in his yard right away.  "But in the morning in front of the shepherd hut he saw this enormous metal casing, as smooth as an egg," she said. "It nearly crushed the outhouse."

A spokesperson for Roskosmos said it warns residents when there is going to be a launch, I guess so they can avoid using their outhouses during that time.  He also dismissed any concerns about rocket safety.  "Technologically speaking," he said, "these parts are supposed to fall off during a launch. They fly, they fall, they fly, they fall. It's how they work."  I remember the guy who sold me my first car saying something like that.

"If a court determines that, yes, those are rocket parts," he continued, and "they fell on his land, then for sure he will be compensated. No question about it. We live in a civilized, law-abiding country," he said, although they actually live in Russia. "What is abnormal is when somebody gets greedy, and it turns out the parts did not fall on his land, but that they were dragged there. Those moments are not good."

Russian legal experts speculated that instead of compensating Urmatov in rubles, the government would likely move him to Siberia for "safekeeping."

Link: Reuters

When Cows Attack

From today's report of new cases in Santa Clara County:

Michael Kellogg v. County Of Santa Clara; Ferrara Enterprises LLC; Does;
No. 1-08-CV-108597 (filed March 20, 2008)

Premises liability lawsuit. The defendants did not properly fence a walking trail and a group of cows charged and attacked the plaintiff when he was walking on the trail.

Please be alert to the danger of cow attack when hiking in Silicon Valley.

Lawsuit Alleges Serious Injuries Inflicted by Negligent Lap Dance

Tough times on Wall Street these days -- not only are securities traders getting smacked around by the market, they aren't even safe during their leisure-time lap dances.

A lawsuit filed on March 14 by trader Stephen Chang alleges that Chang was injured at the rather unimaginatively named "Hot Lap Dance Club" last November.  (Isn't that sort of like calling your movie "Snakes on a Plane"?  It's not really a name, just a description.)

According to the New York Post, the complaint states that Mr. Chang "paid for and was receiving a lap dance" when, "during the course of said lap dance, the employee suddenly swung around, striking the plaintiff in the eye with the heel of her shoe."  Said strike allegedly caused Chang to "sustain serious injuries."  The Post said neither Chang nor his attorney would return calls to discuss the extent of the ocular infringement.

The Daily News was able to reach a manager at the club, however, who said he was skeptical because Chang had not reported any injuries at the time.  "We didn't have any reported accidents," said "Lou," who noted that standard Hot Lap Dance Club medical practices would have come into play had such an incident occurred.  "We have a first-aid kit," he said -- well, that's good to know -- "and we would have treated the guy or called an ambulance" in case of injury.

Oh, just the ambulance for me, thanks.  Yes, I know my eyeball is hanging out, and there's a lot of blood, but I'd just rather Lou and his "first-aid kit" stay over there.  Nor am I confident this young woman is actually a nurse, but thanks for the offer.  Actually, maybe I'll just go hail a cab and pop this back in myself on the way to my lawyer's office.

Because the extent of the injuries are not yet known, it is impossible to confirm or deny one blogger's speculation that the fist of the man's wife might be an possible alternative cause of the eye injury.

Link: CBS News

Plaintiff Who Visited "Pissed Off Pete's" Alleges Beating by Pete

[Lowering the] Bar Exam Question One: if you go to a bar called "Pissed Off Pete's" and then get beaten up by Pete himself, do you have a claim?

This is not a hypothetical.  Here's the case report from last week:

Patricia [Plaintiff] v. Pissed Off Pete's et al.
1/16/2008 CGC-08-471147 (San Francisco Superior Court)

Complaint for personal injury and assault. Defendant [Pete] became enraged during an argument at his bar, defendant Pissed Off Pete's. He dragged the plaintiff to the door, pushed her to the street, threw her against the wall, up into the air, and then slammed her to the cement ground, causing bruises all over her body and intense pain.

Answer: I don't think assumption of the risk is a defense to an intentional tort, but even if it were the sign only warns (accurately, based on the comments found at the link below) that Pete will be "pissed off."  Plaintiff would not necessarily have anticipated being physically assaulted.

Give yourself full credit for any answer you gave unless you are representing one of the parties to this case.  If so, no points.

Link: Yelp.com (info about bar) (case report from Courthouse News Service)

Katrina Victim Sues For Three Quadrillion Dollars

No one would question that New Orleans and thousands of its residents suffered enormous damage as a result of Hurricane Katrina.  Some people lost everything.  One person apparently lost more than everything, since he or she filed a claim against the federal government demanding over three quadrillion dollars -- $3,014,170,389,176,410, to be exact.

The U.S. Army Corps of Engineers said it has received almost half a million claims to date as a result of Katrina, including one by the city of New Orleans that totaled $77 billion.  Two hundred and forty-six other claims (many by individuals) also exceeded $1 billion, but the $3 quadrillion claim appeared to be by far the largest.

That's good, because it's going to be difficult for the government to pay the claim as it is.  A quadrillion (1 followed by 15 zeros) is one thousand trillion.  There are only about 300 million stars in the Milky Way galaxy.  That's not just a lot of money for one person, it's about $10 for every cell in that person's body.  The entire gross domestic product of the United States was $13.2 trillion last year, so the claimant is demanding that the country's entire output of goods and services be turned over to him or her for the next 228 years and four months.  According to the article, a stack of one quadrillion pennies (and I think paying this person's award in pennies is not a bad idea) would reach to Saturn, and you would need 301 of those stacks (plus a little extra) to pay this demand.

It's a big number.  In fact, according to the expert economist contacted by the Associated Press for comment on this story, it's "the mother of all high numbers."  And now, a bulleted list of my thoughts on that comment:

• The saying "the mother of all _____" didn't make any sense to begin with.
• It was coined by noted wit Saddam Hussein, another reason to stop using it.
• It makes even less sense for numbers than it did for battles.  You can always add one to any number, so by definition there is no mother of all high numbers.
• Anyone can get their name in the paper.
• Anyone can be an economist.

"I understand the anger" that would generate such a number, continued this economist, apparently also a qualified psychologist.  "I also understand it's a negotiating tactic: Aim high and negotiate down."  I'm on the phone to the Nobel committee as we speak.  Where will you go from here, doctor?  "My new theory involves buying an item at one price, selling it at some other price, and examining the results.  If conditions are right, the seller may 'profit' from this exchange.  It's an exciting idea."

Daniel Becnel, an attorney who has filed some 60,000 claims for Katrina victims (but apparently none of the ginormous ones), said that measuring the damage Katrina caused is nearly impossible.  "There's no way you can figure it out," he said.  "The trauma these people have undergone is unlike anything that has occurred in the history of our country."  That's true.  I'm just saying that one of them has slightly overvalued his or her claim by asking for more money than has ever been generated in the history of our country.  Although some experts believe this may be just a negotiating tactic.

The Corps is apparently only collecting the claims, not evaluating them -- the federal courts get to do that.  Amanda Jones, the spokesperson for the Corps, said that they weren't passing judgment on any of the claims.  "[Each claim is] important to the person who filed it," she said, "so we're taking every single claim seriously."  Every single one.

The name of the mega-claimant was not released, but based on the zip code the claim was filed in Baker, Louisiana.  Hopefully, they have set aside some storage space for the 301.4 Saturn-high stacks of pennies that may be delivered there after the claims are processed.

Link: CBS5.com

Jury Finds Pool Store Not Liable For Goose Attack

Earlier this month, a jury in Maryland found against a woman who sued a shopping mall and pool store in Rockville after being attacked by a goose while on the mall's property in 2004.

Suzanne Webster said the goose's ferocious attack had caused her to fall and break her hip.  It appears that employees knew the goose was nesting on the property, but the defendants successfully argued that -- setting aside whether they could be responsible for the goose's decision to attack in the first place -- the goose is a protected species and so they were not allowed to interfere with the goose or the nest in any way.  The plaintiff's attorney argued that the store negligently allowed employees to feed the goose, making the situation worse, but the jury did not agree.

This is at least the fourth animal-attack lawsuit I know of that has failed.  As I previously reported, in 2006 Marcy Meckler sued the Old Orchard Shopping Center in Skokie, Illinois, claiming that it should be liable for the actions of a squirrel that jumped on her leg, causing her to panic, fall and suffer injury.  Like Webster, she also argued that the mall had "encouraged the squirrel" by feeding it.  I can't find any further record of this case, which usually means a case has quietly been dismissed.

You might think that animal-attack claims can't get more tenuous than those, but they can.  In 2005, an Illinois woman sued Lowe's Hardware after a bird flew into the back of her head while she was in the outdoor lawn & garden area.  The woman said that Lowe's was responsible for the bird strike because it "allowed wild birds to enter" said area (namely, the outdoors), thus creating a dangerous condition.  I did find one report stating that this case was dismissed in January 2006.

Finally, I also happen to know that in the late 1990s, a woman sued Sears, Roebuck & Co. making allegations similar to those later made by Meckler.  That woman claimed she fell and hurt herself after panicking when a bat flew at her head.  (A fruit bat of some kind, not a bat that somebody threw at her.)  I know this because we represented Sears in that  case.  It was the only deposition I've ever desperately wanted to take.

After the Maryland verdict, the score in negligent-animal-attack cases is now: Animals 4, Women 0.

Link: WJZ-TV (Baltimore)

First Santa Attack of 2007 Results in Arrest

In what I believe was the first Santa-related attack of 2007, a college student in Missoula, Montana, was charged with misdemeanor assault last Friday after he hit a shopping-mall Santa in the face with a pie.

The assaulter, a 22-year-old drama student suspiciously named "Clint Westwood," said he "lightly smooshed" the pie into Santa's face and then shouted, "What do you think of that, Santa?"  Westwood claimed he was videotaping the assault so that he could include the footage in a film he is making.  Santa's response to the question was not noted in the report, but Westwood may not have stuck around to find out what it was.  "It's a good thing [Westwood] didn't wait around," said a Missoula police officer, "because I think Santa would have laid him out."  That I'd pay to see.

Westwood probably can't use his footage anyway.  He said he had planned to ask Santa for a signature on a release form after the smooshing, but the police got there first.  Seems unlikely that Santa would have been in any mood to sign a release at that point, so my guess is that Westwood was just too much of a coward to stick around and face Santa's rage.

Based on evidence from previous years, this is only the first of many ordeals Santa will have to endure between now and December 26th.

Link: CBS News

Lawsuit Alleges Dentist Danced While Drilling

Very little about this story seems like it could be true, and yet it seems to be.  In a lawsuit filed last month, Brandy Fanning (a stage name if I've ever heard one) alleges that her dentist injured her by negligently dancing while he was drilling out a tooth he was extracting.

Fanning says she went to the Syracuse Community Health Center in New York in 2004 because of pain in a left upper molar.  The tooth had to come out, said Dr. George Trusty, and he set to work.  The complaint alleges the radio was on in the clinic and that, while drilling, Trusty began "performing rhythmical steps and movements" -- non-attorneys might refer to this as "dancing" -- "to the song 'Car Wash.'"

     Clap.  Clap.  Clap, clap clap clap clap.
     [Repeat several times]
     You might not ever get rich
     But let me tell ya it's better than diggin' a ditch

"Car Wash," the theme to the Oscar-winning movie of the same name, was a number-one hit in early 1977 for the band Rose Royce.  Here's another of the facts that have enriched my life as a result of research for this ridiculous blog: the story is that the first draft of "Car Wash" was written on a bag of fried chicken after inspiration suddenly struck its writer, Norman Whitfield.  (I found this on Wikipedia -- hard to confirm, but it appears in several books and other sources.)

     Let me tell ya it's always cool
     And the boss don't mind sometimes if ya
     Act the fool
     At the -- [Snap!]

Not "snap" as in "fingers," but "snap" as in "whoops, the drill bit just snapped off and is now lodged in your skull."

     Hey, get your car wash today
     Fill up and you don't have to pay

According to the lawsuit, Dr. Trusty tried to use a metal hook to pull the broken bit out, but somehow managed to push it up and into her sinus near her left eye socket.  I didn't know that was possible, but it does sound unpleasant.  Fanning alleges that Dr. Trusty first tried to minimize the problem, apparently by telling her she would probably just "sneeze it out."  He later changed his mind and told her to get to an emergency room.  Doctors there were able to remove the bit via emergency surgery.  They reportedly said that if she had tried to sneeze out the drill bit, she might have blinded herself in the left eye.  Fanning is demanding $600,000 for medical expenses, pain and suffering.

Previous stories here have included a lawsuit based on negligent dancing, and a dentist who worked on patients while dressed as a belly dancer, but this is the first one to combine those concepts.

Link: Yahoo! News

Ostrich Murderer Sentenced to Five Months in Jail

Timothy McKevitt, one of the two killers who murdered Gaylord the ostrich last October, has been sentenced to five months in jail.  His accomplice, Jonathon Porter, was released earlier this year after also serving five months for the crime.

As you may recall, but as I will enjoy telling you again, the ostrich slaying came after McKevitt, Porter, and two female companions trespassed on an ostrich ranch south of San Francisco after a night of drinking last Halloween.  The men startled and/or harassed the birds, causing one to attack.  It won the ensuing battle, though it ultimately lost the war when McKevitt and Porter returned with a rifle and shotgun, seeking revenge.

The prosecutor in the matter insisted on describing the motive as "all about male pride," simply because the two young men had the *&%$ kicked out of them by an ostrich named "Gaylord" while their girlfriends laughed at them.

Link: Reuters

Federal Court Dismisses 15-Count Lawsuit Alleging That Plaintiff Was Unfairly Given a "C"

All of us have likely had an issue with grading "on the curve" at one time or another, but what is one to do if "the empirical data was quite clear and convincing to any reasonable mind that [one's] performance was well within a higher range" than reflected in one's final grade?  One's course is clear.

In January, Brian Marquis, a student at the University of Massachusetts at Amherst, filed a 15-count class-action lawsuit in federal court after he got a C instead of the A- he thought he deserved in his political philosophy class.  In the suit, Marquis, acting on behalf of himself and Does 1-25,000 (all of whom apparently agree that Brian should have gotten a better grade), alleges that the practice of grading on the curve, as implemented by defendant and teaching assistant Jeremy Cushing, violated the First, Fifth, and Fourteenth Amendments; 42 U.S.C. §§ 1981-83, 1985, and 1986; 18 U.S.C. § 241 (conspiracy to do the foregoing); the Massachusetts consumer protection law; and common-law doctrines including promissory estoppel and intentional infliction of emotional distress.

Coincidentally, Marquis is a paralegal who has returned to college to get a degree in legal studies.

Marquis alleges that Cushing set forth a grading formula at the start of last semester under which, by Marquis's calculation, he should have scored a 92.5, "translating, by universally accepted standards," into an A-.  Whilst reviewing his fall 2006 grades, however, "Plaintiff noticed a grade of C in the . . . Problems in Social Thought" class.  "On or about 10 January 2007," the complaint continues, "Plaintiff e-mailed Cushing with this apparent discrepancy and ask[ed] him to reevaluate, or in the alternative, explain the method used . . . ."  Cushing responded that, by his calculations, Marquis had scored an 84, not 92.5, but that Cushing had graded on a curve in any event.  And he told Marquis that "I thought your grade (of C) was a good reflection of your work."  The school's ombudsman did not agree with Marquis that he had a grievance.

Next stop, federal court.  The key paragraph of the complaint is really paragraph 23, in which Marquis describes the harm.  Scarring his transcript with a C "has left Plaintiff's undergraduate transcript as a dismal record of non-achievement. . . . [T]he chances of any student with C letter grades seeking admission to graduate school is remote. . . . Since Plaintiff did not earn a C final letter grade, he should not have to bear the burden of carrying this beast around with him forever."

Those of you who have been worrying about "grade inflation," take note: the Scarlet Letter used to be an A.

Last week, after what the Boston Globe described as a "brief hearing," Judge Michael Ponsor dismissed the lawsuit.  Marquis later discussed the case with a reporter for the Globe, delivering the quote above as to the clear-and-convincingness of the empirical data and so forth.  (The article notes that Marquis "salts his comments with 'strike that.'")  Marquis also said that he is considering an appeal.

Link: Boston Globe
Link: Marquis v. University of Massachusetts, et al. 

German Awarded Just $4,100 for Lost Skull Section

In a result sure to not open the floodgates of missing-skull litigation, a German court has awarded only 3,000 euros ($4,100) to a man who had to have the top of his skull replaced with plastic after a hospital's error.

According to the report, the man needed a brain operation that required the top of his skull to be removed.  As Germany does not appear to have mastered screw-top brain surgery, doctors proceeded in the more traditional manner to remove the skull section, and they put it in cold storage during the operation.

Unfortunately, the storage did not turn out to be cold enough, because of a defect or malfunction in the refrigerator, and the part could not be reattached.  After what were probably a few awkward moments, and some rummaging around in desk drawers, doctors replaced the missing section with what the article called a "plastic prosthesis."

The patient was not pleased with his new sun roof.  He sought compensation of at least 20,000 euros, saying that the prosthesis caused him headaches, affected his balance and made him "unduly sensitive to the weather."  (Maybe it leaked?)  But, after consulting with experts, the court found that the problems had been caused by the operation, which itself was not negligent, rather than the skull part that was lost due to defective refrigeration.

The court ruled that the man was entitled to 3,000 euros as "appropriate and sufficient" compensation for the discomfort, but gave him nothing for the prosthesis.  In fact, he was lucky that he didn't have to pay them, since according to the report the skull experts concluded that "the new skull roof was better than the original."

Link: Reuters

Heart Attack Blamed on Failure to Warn About Massive Consumption of Red Bull

Surprised at his sudden heart attack (but then, I guess, who isn't?), an Australian whose heart stopped after he drank eight Red Bulls in five hours is blaming the company for not warning about what might happen.  The labels do warn not to drink more than two cans a day, but he says they should have specifically warned that doing so could lead to death.

Matthew Penbross is only 28, has no family history of heart disease, and is apparently in good shape.  But he collapsed after a motocross event he was competing in last Sunday, and paramedics had to use a defibrillator to revive him.  A cardiologist attributed his attack to "excessive consumption of energy drinks."  Penbross is also a smoker and told the doctor he had experienced chest pain after drinking Red Bull before, when his intake had been "high."

Higher, apparently, than his average of four cans a day, twice the amount stated on the labels as a maximum.  "With the work I do I don't have a lot of time to eat," Penbross said. "I have a couple of Red Bulls in the morning and it carries me through."  Until his next two Red Bulls, or a heart attack, whichever comes first.  Each can of Red Bull contains 80 milligrams of "caffeine," a substance you may have heard of since it is also found in coffee, tea, and other substances that humanity has been consuming for thousands of years as "stimulants."  Stimulants stimulate, among other things, the heart, which is great, apart from the stress they place on it, which can cause it to stop.

Penbross said that he went with eight Red Bulls before his event "to get a bit of a buzz and keep down my reaction time.  You have got to get off [the mark] and around the first corner first."  Had he known he might die, however, he might have settled for getting off the mark a little more slowly.  At least, that's what he claimed recently when he complained that the company's warning labels were inadequate.

He admitted that the labels warned him not to drink more than two Red Bulls a day (he averaged four), but said they should have said exactly what could happen.  "They say [on energy drink labels] don't have more than this much . . . [b]ut they don't say if you have too much, what will happen."  Now that he knows what can happen, he says, he's done drinking Red Bull.

A spokeswoman for Red Bull said she was unable to comment on pending litigation, and then commented on pending litigation by saying that the product label was clear and met standards set by the government.

Link:  Sydney Morning Herald

"Schnitzel Stephan" Convicted on Multiple Dine-and-Dash Charges

A German man who repeatedly fled from restaurants rather than pay his bills was sentenced today to 18 months in jail after being convicted on 64 counts of meal-related fraud.  The man, a 350-pound unemployed truck driver, has been nicknamed "Schnitzel Stephan" for his habit of ordering a big meal of Viennese schnitzel along with numerous beers, before ultimately running out on the check each time.

How a 350-pound man who recently filled up on schnitzel and beer was able to run anywhere, let alone get away no fewer than 64 times, is not at all clear.  I have a vision of a very slow-motion getaway featuring a titanic schnitzel-filled German lumbering unstoppably down the street with three or four waiters clinging to him.

Stephan apparently was already on probation for an undisclosed number of previous unpaid eating binges when he began his latest spree.  The total value of what he consumed with regard to the 64 charged offenses was said to be about $4100.

Link: Reuters via Yahoo! News

Defendant Learns Why Blogging About Your Own Trial is a Bad Idea

A tool or device probably can't be considered inherently bad in and of itself.  A case could be made that some, like the atomic bomb or the BlackBerry, are so dangerous or destructive that they should be banned entirely because there is just no good way to use them without unacceptable risk.  But such examples are pretty rare.  Same for blogging.  Blogging can be a great way to share information, or it can be a very bad idea; it depends how you blog, and who or what you blog about.

Here's a suggestion -- blogging about your own trial is probably not a good idea.  If you are the defendant, do not (for example) reveal the defense strategy of the case, or accuse jurors of not paying attention.  This is because blogs appear on something called the "Internet," which can be viewed by something called "the public."  And this can come back to bite something called "your ass."

This lesson was learned by Dr. Robert Lindeman last month.  Lindeman is a pediatrician who had been sued for malpractice.  He also writes, or until recently wrote, a blog called "drfleablog," in which a blogger named "Flea" writes about medical issues, including issues relating to, let's say, the ongoing trial of a malpractice suit against a pediatrician.  A week or two before that trial began, the plaintiff's attorney had learned about the blog, and apparently monitored it to see what might turn up there during trial.  "Flea" began to post some fairly embarrassing comments, which led to an unusual cross-examination question: "Are you 'Flea'?"  He was.

Plaintiff's counsel did not go into much, if any, detail about drfleablog at that point, but had gotten her point across.  Lindeman settled the next morning for what was described as a "substantial" sum.

Link: Boston Globe

Bar Association: Lawyer-Administered Beatings May Be Unethical

In India on Wednesday, the Agra Bar Association said it would be looking into the details of an attack by several lawyers on a litigant there.  According to reports, the lawyers claim that the man refused to marry the niece of one of the lawyers, a dispute that (for reasons that were not clear to me) ended up in court.  Actually, I guess it ended up out of court, because when the man arrived to discuss settlement, the lawyers instead grabbed him, tied him to a tree, tore off his shirt and cut various bald patches into his hair.

For a closing argument, they also beat him up.

Indian TV channels have been running video of the lawyer gang's assault on the stubborn bachelor, and a local official says he has ordered police to file a case.  According to the report, the local bar association has said it is also "investigating the attack."  This tells me that a spokesperson for a bar association, presented with video of lawyers actually abducting a litigant, tying him to a tree, embaldening him and beating him up, refused to make a call as to whether this was unprofessional conduct or not.  But he did promise they will "look into it."

I look forward to the report of the committee of experts they convene for that investigation.

Link: Reuters

City of Montreal Ordered to Pay $27,000 for Disastrous Bar Mitzvah Reception

Peter Neumann was awarded "moral and legal damages" on Monday by a court in Quebec, based on Neumann's allegations that a city employee ruined his grandson's bar mitzvah in 2003 and the city government then failed to take his complaints seriously.  Neumann described the event, held at the Pierrefonds Cultural Center with 350 invited guests, as "the bar mitzvah from hell," and it is hard to argue with that.

Most of the damage was done by the janitor who seems to have been the only staff member present during the event, and who seems to have been drunk throughout (hereinafter "Drunken Janitor"):

• The first sign of difficulty came before the party had even started, when Drunken Janitor stole all the ice Neumann had bought for the party and tried to sell it back to him.
• A guest got stuck in the elevator.  Drunken Janitor "was of no help."
• He also refused to fill the toilet paper dispensers.  Neumann had to buy his own.
• Another guest got stuck in the elevator.  Again, Drunken Janitor was of no help.
• Next, the pianist had a heart attack.  According to the report, "the custodian was nowhere to be found," which is odd because it implies that had he been found, the man who had refused to fill the toilet paper dispensers would have been of some help with the medical emergency.
• At 10:30, Drunken Janitor reemerged and ordered the band to stop playing, although the room had been rented until 2 a.m.
• At midnight, he emerged again and threatened to lock everyone out of the building.

Needless to say, Neumann subsequently complained to the city, but was told that he "didn't have a case."  He later learned that someone in the city's legal department had advised city officials that Neumann didn't have a case because his grandson "wasn't even Jewish."  The report did not explain why the unidentified legal genius thought the grandson's status would be relevant to the claim for damages -- was the city going to counterclaim for a fraudulent bar mitzvah?  Plus, he is Jewish.

The city refused to compensate Neumann, who eventually sued.  Two months ago (four years after the event and a month before trial), the city apologized.  Too little, too late.  This week, Judge Henri Richard awarded Neumann $22,000 plus interest, mostly for causing the family "unnecessary distress" with the allegation about the bar mitzvah being a fraud.  Neumann said he would donate the money to charity.

Meanwhile, Drunken Janitor was fired.  He now works as a groundskeeper for an elementary school somewhere in the United States.

Link: Montreal Gazette

Attorney Demands $50K For Injury Caused by Pizza Hut Door

Amanda Verett, an attorney in Edwardsville, Illinois, has sued Pizza Hut and another customer for injuries she says she sustained from a door.  Verett alleges that on February 12, as she was exiting the Hut, she held the door open for herself and another customer (now the co-defendant), Clarence Jackson.  According to the suit, Jackson grabbed the door in such a fashion that it moved suddenly, causing her to "sustain an acromion process impingement in her right shoulder."

I thought The Acromion Process was one of those Robert Ludlum books, but it does turn out to be part of your shoulder.  (It's the part that articulates with the clavicle and curves forward to overhang the glenoid cavity, if that helps any.)

With her acromion process impinged, Verett alleges, she was "unable to avoid falling on a later date" and the fall injured parts of her left arm, including "the pronator quadratus muscle at the dorsum."  The report did not say how an injury to Verett's right shoulder caused her to fall in the first place, but maybe we'll learn that later.

Verett says that Jackson operated the door negligently and that Pizza Hut was negligent for "maintaining a door for ingress and egress [which I think is what most doors are for, actually] which was not reasonably safe and was likely to injure people when being held open and grabbed by another."  I'm quoting the article, not the complaint, but I'd be willing to bet the article is quoting the complaint, unless reporters also go around saying things like "a door for ingress and egress."

Verett is seeking a default judgment against Jackson, who did not answer in time.  Pizza Hut's answer alleges that Verett was more than 50% responsible for her injuries, which under Illinois law bars any recovery on her part.

Link: Madison County Record

Cardinals Fan Sues Over Botched Tattoo

St. Louis fans are justly proud of their Cardinals, who (as some of you will remember) won the World Series in 2006.  Jason Harris was so proud of them that he went to a local tattoo parlor to have a memento of the victory permanently enscribed on himself.

• Tattoo requested: "St. Louis Cardinals, World Series Champions, 2006"
• Tattoo received:   "St. Louis Cardinals, Worlb Series Champs, 2000"

This is especially unfortunate since the New York Yankees, not the Cardinals, won the Worlb Series in 2000.

In a lawsuit filed on April 27, Harris accuses the House of Ink and its workers of negligence in permanently etching the mistake on his back, "causing severe damage to plaintiff's body."  In an interview, he claimed that he did not learn of the errors until the next day when she showed the tattoo to his mother, which is a little more plausible given that the tattoo was between his shoulder blades.  He has refused an offer to "correct" the mistakes or to cover them up with another, larger tattoo, in favor of seeking $25,000 in damages.

Link: The Smoking Gun

Class Members Sought for Anti-Shark Litigation

This helpful update appeared in today's "Legal Headlines" email from FindLaw:

PERSONAL INJURY

Boy, 12, Bitten By Shark Off Fla. Coast

Well, that is a "personal injury," no doubt about it.  I'm just not sure what the legal ramifications are, or who Boy's family will be able to sue for this.  Some ideas:

    1. Shark.
        Pro: did it.
        Con: long gone by now, no deep pockets (no pockets at all, in fact).

     2. Lifeguard.
        Pro: can be found, might possibly have been negligent in some way.
        Con: pockets not much deeper than shark's.

     3. Energy industry.
         Pro: can be found, has deep pockets, contributes to global warming that caused Boy to enter ocean seeking relief, Al Gore available as expert witness.
         Con: Al Gore available as expert witness.

     4. Captain Quint.
         Pro: Not very likeable; negligent actions off Long Island rendered boat and crew unable to catch further sharks, making injury to Boy more likely.
         Con: was eaten.

     5. Toy manufacturers.
         Pro: wholly non-threatening and toothless shark-like stuffed animals and pool toys led Boy to believe sharks were not dangerous; should have carried label that warned of enhanced danger from real sharks in real ocean.
         Con: is dumb, but no dumber than a lot of other cases out there.

I think the nation's toy makers should get ready for an expensive class action.

Link: AP via FindLaw.com

Second Japanese Toilet Manufacturer Admits Its Product Placed Buttocks at Risk

The blazing-bidet scandal continues to grow in Japan, with the country's second-largest toilet maker now joining the market leader, Toto Ltd., in admitting that it has been aware for years of defects in its "washlet" products.

INAX Corp. said today that it knew of at least seven cases of its washlets overheating, emitting smoke or catching on fire between 1991 and 2005, but did not make the incidents public.  It had recalled 30,000 washlets in 1985 for similar problems, but the seven cases obviously post-dated the recall.  INAX said that none of the seven incidents involved personal injury and that it had reported them to the appropriate government ministry.

The article did not say which government ministry would be the appropriate one to receive such a report.

Coincidentally, INAX made the incidents public only after its competitor had already publicly apologized to consumers for its own washlet problem.  Toto apologized earlier this week and said it would check and repair about 180,000 washlets to correct a defect that might potentially result in a very inconveniently timed fire.

A Toto Ltd. representative indicates
the product's "blowtorch" feature, which
she said the company would be phasing out.

Toto's spokesperson, Yasuhiko Matsumoto, said that the company had received over 100,000 telephone calls since Monday, and that it encouraged its customers to contact the company if they had any concerns.  But Matsumoto reasserted his company's commitment to the problematic extending-bidet feature, which he said had been important to the company's success and, indeed, part of its mission: "We've been promoting a culture of washing one's backside since 1980," he said, "and that's given us a 60 percent market share."  I can't find any evidence that Toto has ever actually used the slogan,

Washing One's Backside Since 1980!

but I would strongly encourage it to do so.  Does your company's mission statement promote a culture of washing one's backside?  If not, please amend it without delay.

Link: Reuters via Yahoo! News
Link: Present a Paper at the 2007 World Toilet Summit

Japanese Company Warns That Defective Toilets May Catch Fire

Toto Ltd., Japan's leading toilet manufacturer, announced today that it was offering free repairs for a defect that had been identified in its popular "Z Series" toilets.  The company said that the defect, related to the toilets' electrical systems, may cause the toilets to catch fire.  Company spokeswoman Emi Tanaka said that 29 incidents had been reported in the past year, three of which involved actual fires and the others involving large quantities of smoke.

You may remember Toto Ltd. from its prior development of "photocatalytic organic decomposition technology," though more recently it has focused on "super hydrophilic photocatalyst technology," which is way better.

It also makes toilets.

If it seems strange that a toilet would have an "electrical system" at all, you're obviously not an owner of a high-end Toto toilet, or "washlet" as it is more properly known.   The Toto Z-Series washlet (which, if the research department has done its job correctly, is sold as the "S400" in the U.S.) incorporates a number of high-tech, 21st-century features that make it so much more than your current Mark 1 Hydraulic Dung Transport Device.   In particular, the S400 features automatic flush, a "sensor-activated lid that automatically lifts as you approach the toilet and lowers as you walk away," a heated seat, an automatic air purifier, a bidet attachment that provides "front and rear washing," warm-air drying with three temperature settings, and something called a "massage feature," which I refuse to investigate any further.  While I'm glad that so many of the exhausting chores connected with elimination have finally been eliminated, there is still a lot of room for improvement.  I assume that the S401 will be able to sense when I need to go and just come get it, sparing me the time-wasting trek to the bathroom in the first place.

The bidet attachment appears to be the culprit in the recent fires, which is quite disturbing.  "At your command," according to the company website, "an integrated, self-cleaning nozzle extends to release a warm, soothing stream of aerated water to provide the ultimate in personal cleansing."  The feature is "designed to introduce you to a level of unprecedented comfort," but, it appears, may also occasionally introduce your ass to an unprecedented level of fire.

Tanaka pointed out, however, that this was only a case of a manufacturing defect, and that no one had been injured by the problem.  "Fortunately, nobody was using the toilets when the fire broke out and there were no injuries," she said.  She added, helpfully, that had you been using such a toilet when the defect manifested itself, "the fire would have been just under your buttocks."

Toto says it will repair any of the 180,000 affected units (the washlets, I mean), which were those manufactured and sold in Japan between May 1996 and December 2001.

Link: Yahoo! News
Link: Toto Ltd. (English site)

Man Sued for Negligent Dancing

The AP reported this week that a Chicago woman is suing a man she danced with at an office party, alleging that she was injured by one of his dance moves, which seems to have gone something like this:

1. Step up.
2. Step back.
3. Slide to the left.
4. Slide to the right.
5. Grab your partner.
6. Throw partner into air.
7. Let partner crash to floor headfirst.
8. Repeat with new partner (if any).

It sounds almost as painful as the Macarena, at least for the person who gets thrown.  Plaintiff alleges that her partner "grabbed her by the forearms and tossed her in the air," which must have been a rotary toss similar to the hammer throw unless he is incredibly strong.  "I was in the air, over him," she recalled, which is not consistent with the hammer-throw theory, and then "fell hard enough you could hear the impact of me hitting the floor over the sound from the jukebox."  Plaintiff says she suffered a fractured skull and is seeking damages.

According to plaintiff's attorney, she was a victim of "negligent dancing."  Her dance partner was also, as it happens, the husband of her boss, which probably made things a lot more awkward for one or more people involved.

Link:  FindLaw.com
Link:  Wikipedia entry on the "Macarena" that "may not be reliable"
Link:  Wikipedia entry showing that "Macarena" spent two weeks at #1 in Latvia

UPDATE: Settlement Talks Break Down in Case of Previously Lustful Ostrich

I reported recently on a case in Germany in which an ostrich rancher had sued three teenagers for allegedly making one of his ostriches impotent by throwing firecrackers at it.  Happily (for me), the parties have so far failed to reach a settlement that was expected on Monday, and so another hearing has been set for June 4.

The rancher claims that Gustav was rendered impotent due to post-traumatic stress he suffered from the incident.  Gustav is apparently the only male breeding ostrich on the ranch, or at least I assume he is because his owner alleges that he would have been presented with 14 additional chicks but for Gustav's incapacity.  By the way, in case you've ever wondered what the expression on an impotent ostrich's face might look like, it would look something like this:

Fig. 1: The steely glare of a sexually frustrated male ostrich.

That's actually an AFP file photo, not Gustav specifically, but I'm sure he looks a lot like that, assuming he is still in the same condition.

The three teenagers deny throwing fireworks at Gustav, but do admit lobbing other things at him, so that's not much of a defense.  They have already agreed to work on the ranch as punishment, apparently to work off the 5,000 euros that the rancher is seeking, but the parties failed to reach agreement Monday on the issue of how many hours the boys must work.  They have offered 40, but the rancher is demanding 80 -- which would still work out to $27.71 per hour, not a bad rate for ostrich work.

The June 4 hearing will feature the testimony of a veterinary expert, presumably as to the possible effects of fright on ostrich libido.

Link: AFP via Yahoo! News

German Teenagers Accused of Proximately Causing Ostrich Impotency

On Monday, a court in Bautzen, Germany, will hear the case of an ostrich farmer who alleges that three teenagers frightened his male ostrich so badly with fireworks that it was unable to breed for six months.  This cost the farmer a number of tiny ostriches and likely cost Gustav the Ostrich most of his self-esteem.

The farmer, Rico Gabel, who has a farm near Dresden, is demanding $6,450 in damages for the offspring of which he believes he was deprived.  (Gustav had two female breeding partners.  This story isn't that weird.)  The lawsuit alleges that the teenagers set off fireworks near the farm in late 2005, scaring the mojo out of the bird and rendering it apathetic, depressed, and unable or unwilling to breed until late in 2006.  (The AP report refers to the ostrich as "the previously lustful Gustav," which is a great line whether it is in the complaint or not.)

Ostrich chicks apparently are worth about $460 each, and Gabel estimates that 14 were not fathered by the previously lustful Gustav during his six-month despondency.

Link: AP via Yahoo! News

NJ Appeals Court Holds No Duty to Warn About Gravity

This week, the New Jersey Appellate Division ruled that a bunk-bed manufacturer has no duty to warn the user of a bunk bed that rolling off the top bunk during sleep may result in gravitationally induced injuries.

This ruling was necessary because a New Jersey trial court had previously ruled that a bunk-bed manufacturer did have a duty to warn the user of a bunk bed that rolling off the top bunk during sleep may result in gravitationally induced injuries.

In Mathews v. University Loft Company, the plaintiff, a college student, claimed that he had been asleep on his bunk bed "about noon" on October 11, 1999, when his pager went off.  His roommate yelled at him to turn the pager off, which plaintiff said "startled" him and the next thing he knew, he was "on the floor."  Working together, the floor and gravity dislocated plaintiff's shoulder, which then hurt a lot.  Plaintiff admitted that he later resumed sleeping in the bed, although he was careful to position himself "all the way against the wall" to minimize the chances of being subjected to the floor's titanic gravitational forces again.

According to plaintiff, he had never slept on a loft or bunk bed before, and it had never "cross[ed his] mind" or "occurred to" him that he could fall out of it.  He testified that had the manufacturer of the bed provided a warning with the product, he would then have been aware of the hazard and could have hugged the wall to begin with.  He asserted a number of other claims, but all were dismissed -- except for the failure-to-warn claim.

It does seem possible that Mathews actually injured himself in this alleged fall.  Applying Torricelli's equation, v²_f=v²_i + 2aΔd, with the assumption that the fall occurred at or near sea level so that Δ can be assumed to be 9.8m/s², and ignoring the effect of air resistance, I calculate that Mathews was traveling approximately 6.26 meters per second or almost 14 miles per hour when he struck the floor.  (Under the theory of relativity, of course, it would be just as valid to say that the floor struck him, which would make it the floor's fault.  Unfortunately for the manufacturer, our legal system has not caught up with Einstein yet.)  As someone who once walked into a lightpole at less than half that speed, I can tell you that an impact of that kind likely did hurt like hell.  So the claim of injury could be valid.

The warning claim, though, is bullshit.

Mathews hired an expert witness who claimed to be an expert in "safety engineering," including "safety in falls from heights, and human factors."  I've never understood what "human factors" means, frankly, but it seems that one of the factors is a human's need to be warned that falls from heights are unsafe.  According to plaintiff's expert, the bed was six feet high (apparently, he had measured it), and a fall from a height of six feet constitutes a "significant risk."  (See above.)  He claimed that the manufacturer should have provided an adequate warning of that risk, and he defined "adequate warning" as one that "tell[s] the people what the danger is and how to avoid it."  Thank you, Dr. Adequate.  Good to know.

Not surprisingly, defendant moved for summary judgment.  More surprisingly, the trial judge denied that motion.  She found an issue of fact existed as to whether the dangers of the loft bed, specifically the possibility of falling out of it, were open and obvious so that no warning would legally be required.  The jury resolved that issue in plaintiff's favor, and awarded him almost $180,000 based on the manufacturer's failure to warn of the gravitational danger.

But the Appellate Division found that the risk was obvious, as a matter of law.  It noted that putting a warning on everything would mean that no one would pay attention to the important ones, and that there was no duty to label every product that "poses a generally-known risk of injury if misused, dropped, or fallen from."  Further, it pointed out, a warning would not have done any good on the facts of this case anyway, since plaintiff was asleep at the time when he claimed he needed to be warned.

Plaintiff said through his attorney that he would appeal the ruling to the New Jersey Supreme Court, thus again flagrantly disregarding an obvious risk associated with going up higher than you can handle.

Link: New Jersey Star-Ledger
Link: Mathews v. University Loft Co., No. A-1536 (N.J. App. Div. Aug. 15, 2006).

Woman Sues Mall for Aiding and Abetting Squirrel Attack

In a lawsuit filed Monday in Cook County Circuit Court, Marcy Meckler alleges that the owners and employees of the Old Orchard Shopping Center in Skokie are responsible for injuries she suffered on December 3, 2004, when she was attacked by a squirrel.

This seems like a good point to stop and reflect on the competing theories of causality and the possible interconnectedness of the universe.  Some believe that events occur by chance and that what may seem to be order in those events is actually something that is imposed by the human mind, seeking to make sense of a chaotic universe and seeing patterns and connections where none exist.  Others see the hand of God, or some sort of divine force, as the only explanation for the synchronicity of distant and seemingly unrelated events that nonetheless appear to be ultimately component parts of a much larger and coherent plan.

Which sort of theory explains the fact that a small rodent in Skokie, Illinois, would leap upon the leg of an unsuspecting woman, who would then fall to the ground, suffering allegedly severe physical and mental injuries that would lead her, almost two years later, to sue the shopping center on the grounds that it was responsible for "encouraging the squirrel" to be in its courtyard and for "failing to warn the plaintiff of the squirrel's presence," and that the lawsuit would be reported at a time when I, an attorney who once defended a very similar lawsuit by a woman who was attacked by a bat that she claimed flew out of a Sears store, causing her to fall and break her hip, would have available to me something called a "blog" on which I could reach many others with this story almost instantly, which, by delaying my departure for work slightly and also putting me in a state of extreme happiness, virtually ensures that I will be hit by a bus as soon as I leave the house?  I cannot say.

I can only be grateful, if a bit chapped about the whole bus thing.

Link: cbs2chicago.com

Hawaii Supreme Court Rules Golfers Need Not Yell "Fore"

The Hawaii Supreme Court has ended Ryan Yoneda's quest for compensation from Andrew Tom, who he says hit him in the eye with a golf ball in 1999.  In a unanimous ruling, the court found that golfers assume the risk of injury when they play golf, because it is "common knowledge" that golf balls don't always go where a player intends them to go.  (Mine sure as hell don't.)  Since the risk of being struck by an errant golf ball is an "inherent risk" of the activity, the assumption-of-the-risk defense defeated Yoneda's claim.

In fact, the court said, Mr. Tom was not even required to yell "Fore," the traditional way of announcing, "Attention!  My golf ball does not appear to be going where I intended it to go, and may intersect one of your appendages or other parts."  ("Fore" is shorter.)  Tom conceded that he had not given any notice, but the court considered this a rule of "golf etiquette," not a legal requirement.

"That's not too good," Yoneda said of the court's ruling.  "I know what it's like to be hit and I don't want anybody to go through what I went through."  Well, you still have options even after the court's ruling.  Two suggestions: (1) the fairway is not the best place to watch somebody else tee off (although Yoneda's injury did involve a multiple-bounce