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Legal Tales Stranger than Fiction:

SUVs: Safe Enough?

The family of a baby girl who died when her father accidentally backed over her in an SUV is suing the automaker for not equipping the vehicle with a back-up safety camera or sensor that would detect objects behind the SUV.

On October 9, David Clemens put his Infiniti SUV in reverse and tragically ran over his two-and-a-half-year-old daughter, Adrianna, killing her. Clemens’ SUV had neither a back-up camera nor a sensor. The family is now suing Nissan (the parent company of Infiniti) for negligence because the automaker did not include either device as standard safety equipment.

"Our contention is that safety of this nature should not be optional, ever," said the Clemens’ lawyer, Windle Turley. "This manufacturer was already putting [cameras/sensors] on some of its other vehicles, and it should have put it on this one."

Nissan/Infiniti spokesman Kyle Bazemore said the baby’s accidental death was "very sad, very tragic," but went on to explain that equipping every vehicle with a safety camera or sensor would not prevent all back-up accidents. "It’s a convenience; it’s not a substitute for proper reversing procedures," Bazemore said. "Drivers should always turn around and look."

The case is pending.

—Source: WFAA-TV (Dallas-Fort Worth, Texas)


Collecting in Court

An Illinois woman is suing Bank One for emotional distress after the bank allegedly did not remove unauthorized charges from her credit card account.  The lawsuit also asserts the bank harassed the woman in trying to collect the debt and now should have to pay $250,000 for the ordeal.

Marsha Eubanks, of Madison County, Illinois, claims that someone in Indiana obtained her credit card information and used it without permission.  In the lawsuit, Eubanks says that when she discovered the problem she immediately contacted the bank to request that they cancel the credit card and remove the unauthorized charges.  But, according to Eubanks' complaint, while the bank eventually got her a new card, it refused to credit her account for the unauthorized purchases.

Since then, Eubanks claims that Bank One has harassed and intimidated her about the bill.  She alleges that she has received constant collection calls and, as a result, has suffered from severe emotional distress and loss of peace of mind.  According to her complaint, Eubanks claims the collectors who called threatened to take her property, used profane language and even claimed she would be arrested if she did not pay the unauthorized charges.

On top of the $250,000 Eubanks is seeking through the lawsuit, the complaint also asks the court for attorney's fees, costs of the suit, and any other relief deemed appropriate. The case is pending in the Circuit Court for Madison County.

—Source: The Record (Madison County, Illinois)


Too Hot to Handle

It’s not the coffee that’s too hot at White Castle, it’s the onion rings, according to a lawsuit filed by a Chicago man.

Michael Strauss is suing the fast food company for more than $50,000 after he allegedly suffered "severe and permanent injuries" and "great pain and anguish in mind and body" when he bit into what he describes as an "unreasonably dangerous and defective" onion ring. Specifically, Strauss claims that "scalding hot grease spattered out and onto" his arm, "scalding and severely burning him" when he took a bite of an onion ring at a White Castle in Bourbonnais, Illinois, two years ago.

Strauss asserts six counts of negligence against the fast food chain, stating that "White Castle has a duty … not to sell food to the general public which is too hot for consumption." Strauss also claims he has paid "large sums for medical care."

A manager at the Bourbonnais White Castle said he had not heard about either the onion ring incident or the lawsuit. The complaint was filed nearly a decade after a jury awarded a woman more than $2 million for spilling hot coffee from McDonalds’s in her lap.

—Source: Chicago Sun-Times


It Takes a County to Raise a Child?

The grandparents of a baby conceived in jail are claiming that the county should bear some of the financial costs of raising the child while the parents serve their prison terms.

LaTonya Finney and her boyfriend, Adrian Howard, were arrested in 2002 on robbery charges. While the couple awaited trial, Finney became pregnant in the Crawford County (Georgia) Jail. The couple claims the sheriff allowed them to have a conjugal visit that resulted in the pregnancy. But the sheriff says otherwise, claiming Howard picked locks in order to visit Finney in the women’s side of the jail.

Both Finney and Howard are now serving prison terms, and the baby is being cared for by Finney’s parents. The grandparents claim that the county was partially responsible for the baby’s conception, so the county should also share in the costs of raising the child. The grandparents say they are determined to raise the child until her mother is released in 2012, but the financial burden is great. The grandparents say they only receive $1,741 a month from medical disability and welfare payments, and that neither grandparent can work with the baby at home.

For the county’s part, attorney David Mincey, Jr., commented: "I just think it’s a very, very bizarre social conscience these people have that their daughter conceives a child and they think the sheriff is responsible."

—Source: Associated Press


Clear Message, Confused Complaint

A North Carolina-based home siding company is suing a Georgia couple for posting an Internet website that criticizes the company and its spray-on siding product. The company claims the website infringes on the company’s trademarks and that consumers may be confused by mistakenly going to the couple’s site when trying to find the company’s official website touting its product.

Alan and Linda Townsend, of Paulding County, Georgia, decided to get their home protected with spray-on siding when they made some home improvements a little more than a year ago. But after spending more than $16,000, the Townsends were less than impressed with the product, complaining not only that the spray-on siding was sloppily applied, but also that the product did not live up to its promises. Advertisements claimed the spray-on siding is 10 times thicker than paint, has a smooth finish and lasts like other home siding.

The Townsends complained to their local contractor and the producer of the spray-on siding but, after the house was recoated, the couple was still unhappy. Specifically, the Townsends apparently found that the bottom edges of the spray-on siding were not fully sealed, which allegedly caused swelling and flaking. As a result, the couple launched an Internet website to tell others about the experience and to criticize the product at www.spraysiding.com.

But the producer of the spray-on siding, Alvis Coatings, has now sued the Townsends because the couple used an Internet address that is similar to that of the company’s official website, which can be found at www.sprayonsiding.com. The lawsuit alleges that the Townsends’ website "is confusingly similar" to both the address for the official spray-on siding site and the trademarked name of the product, "Spray On Siding."

Alvis Coatings seeks at least $75,000 in the lawsuit, as well as punitive damages and attorneys’ fees. According to the Townsends, the company filed the lawsuit after offering to settle the dispute through a gag order that would have forced the couple to sell the Internet address and prevented them from talking about spray-on siding. The couple refused the offer and decided to fight to keep the website up and running.

Sources: Atlanta Journal-Constitution, Associated Press


1 Down, 17200 Still To Go

A California lawyer has been ordered to pay almost $1.8 million for abusing the state’s unfair business practices law, popularly known as 17200, by filing frivolous lawsuits against small businesses. The Orange County Superior Court also decided that the lawyer, Harpreet Brar, will have to repay 11 businesses a total of $11,200 in connection with the "shakedowns."

The case against Brar was filed by the California Attorney General, who alleged that Brar sued hundreds of small business in Southern California based on technical and even non-existent violations in order to force their owners to pay quick settlements. For instance, according to Kevin Nguyen of Francis Nails in Redlands, California, Brar threatened to sue the salon for using the same bottle of nail polish on more than one customer.

Brar would offer to settle the matters almost immediately for $1,000, raising the cost of settlement with each new letter, the Attorney General claimed. Specifically, in one letter sent to a nail salon, Brar allegedly warned the price of settling the case could quickly rise to a figure as high as $10,000, the Attorney General noted.

"The litigation brought by Brar was not only frivolous, it was abusive," the Attorney General said. "It’s only purpose was to line Brar’s pockets with unjust profits."

While the court fined Brar, it dismissed allegations against his law firm. Brar may also face disciplinary action by the State Bar of California.

—Source: Associated Press

[Posted October 29, 2004]


17200 Re-Runs

A Los Angeles man who admitted on the television show "Cops" that he was assaulted while trying to buy illegal drugs cannot bring a lawsuit against the show’s producers based on the fact that he continues to appear in re-runs. Two California courts rejected the claim that viewers could be misled into believing the man is still involved with narcotics and that the re-runs should include a disclaimer noting the date of the incident.

In 1989, Paul Ingerson rode his motorcycle to a "bad area" of Los Angeles in order to buy marijuana. However, instead of getting drugs, Ingerson was assaulted by the seller, who attempted to steal the motorcycle. Ingerson escaped with his keys and ran to a nearby pay phone, from which he called 911. Two Los Angeles County Sheriff’s deputies then responded, bringing with them a camera crew from the Fox television show "Cops."

In a conversation that was captured on tape, the deputies asked Ingerson why he had come to such a bad part of town. Ingerson attempted to evade the question, but eventually admitted that he came to buy drugs. The police explained that Ingerson could have been more seriously hurt, and Ingerson agreed that the entire incident could have been avoided had he not tried to buy narcotics. "Cops" used the exchange for a four-minute segment in which Ingerson’s face was obscured and his name was never used. The episode originally aired in January 1990 and was re-run multiple times.

More than a decade after the episode originally aired, Ingerson filed a lawsuit against the show’s producers after an acquaintance introduced Ingerson as the "guy on ‘Cops.’" Specifically, Ingerson alleged that re-running the episode violated his right to privacy and California’s unfair competition law, known as Section 17200. A trial court dismissed the claims, and an appellate court upheld the ruling, noting that, "[a]t best, Ingerson provided only speculative, anecdotal evidence that anyone had been or was likely to be misled." The courts instructed Ingerson to pay the costs associated with the "meritless litigation."

—Source: Ingerson v. Twentieth Century Fox

[Posted October 21, 2004]


Partying All the Way to a Jury

A New Jersey jury has awarded nearly a million dollars to a man who was discovered passed out on a snow bank the morning after leaving a New Year’s Eve party. The jury ordered two local police departments to pay the man $850,000 because their searches failed to find him after a passerby reported a man unconscious in a 911 call hours earlier.

Frederick Puglisi, 20, left a New Year’s Eve party to buy cigarettes and something to eat just after midnight on January 1, 2001. Puglisi had been drinking, and, somewhere along the way, he apparently succumbed to drunkenness and passed out. According to Puglisi’s attorney, a 911 caller reported that a man had been hit by a car at 1 a.m., allegedly referring to Puglisi, who doesn’t recall any such accident. The police searched but never found Puglisi, and he remained unconscious on a snow bank until being discovered late the next morning. By that time, Puglisi’s body temperature had dropped to 78 degrees and he suffered from frostbite that caused the disfigurement of his right hand.

Puglisi filed his lawsuit against the two local police departments alleging they inadequately followed up on the 911 report. Specifically, Puglisi’s attorney argued that the police dispatcher did not get enough information from the 911 caller and that insufficient details were passed on to the searching police officers. The lawyer also claimed that the search was too short and that the officers never left their cars.

After trial, the jury ordered the Bergen County police to pay Puglisi $450,000 and the Ramsey County police to pay him another $400,000. The jury initially awarded $1 million but reduced the verdict by $150,000, finding Puglisi was 15 percent at fault because he was drunk. The police departments plan to seek a new trial.

—Source: Associated Press

[Posted October 14, 2004]


Retail Ricochet

A Texas jury has returned a more than $6.5 million verdict against a shopping center, holding the mall’s management company responsible for a shooting death that took place in the shopping center’s parking lot. The family of the man who was shot sued the shopping center alleging that the murder could have been prevented if there had been more security.

Shortly after midnight in February 2002, a masked assailant shot 31-year-old Luis Robert Gutierrez in the parking lot of the Alamo Quarry Market shopping center as he was leaving the mall’s movie theater with his common law wife. Police believe Gutierrez was murdered in retribution for providing information about a string of burglaries to investigators.

Six of Gutierrez’s relatives, including a son who was not yet born at the time of the murder, then sued the shopping center’s management company, Trammell Crow. The lawsuit claimed that Trammell Crow was liable for the shooting because it knew the mall had a crime problem, yet refused to address it by providing an adequate and visible security force.

Though the Gutierrez family only asked for $5 million in the suit, the jury awarded them more than $6.5 million. "If the [shopping mall] knew that they had this problem, they could have done something to stop this kind of activity before my brother was killed," said Martin Gutierrez, the younger brother of the murder victim.

The mall’s management company has not said whether it plans to appeal the verdict.

—Sources: San Antonio Express-News, KSAT

[Posted October 7, 2004]


Real Judicial Relief

A U.S. district judge has ruled that it is not illegal to urinate in the woods, dismissing federal charges brought against a Michigan man who did just that nearly two years ago.

On October 18, 2002, a federal ranger searching the Huron-Manistee National Forest for poachers witnessed a man in a pickup truck pull off to the side of a two-lane road. Suspecting the man was drunk, the ranger watched as the driver proceeded into the forest to relieve himself. After observing the man empty his bladder and get back into his vehicle to drive away, the ranger stopped the pickup. The ranger searched the truck, discovering a loaded .410 shotgun along with open liquor bottles. Among the charges later brought against the driver was that he had engaged in illegal "indecent and obscene conduct in a public place" by using the national forest as a make-shift toilet.

A federal judge would have nothing of the case, concluding that the man’s decision to relieve himself in the woods was not "indecent or obscene," much less probable cause for the ranger to stop and search the driver’s car. Thus, the judge ruled that the evidence discovered in the truck was inadmissible and the charges were dismissed.

As a postscript, the police search of the man’s truck took long enough that the ranger actually had to assist the truck’s disabled female passenger heed her own call of nature. Neither the passenger nor the ranger ever faced charges in connection with that incident. What a relief.

—Source: Bay City Times (Bay City, MI)

[Posted October 1, 2004]


Galloping While Intoxicated?

The Pennsylvania Supreme Court has ruled that the state’s drunk driving law cannot be enforced against horseback riders who drink before mounting up and galloping off into the sunset. The Court addressed the issue on appeal after another judge threw out drunk driving charges against two men who were involved in an accident with a pickup truck after leaving a local bar on their horses.

In the decision issued on September 22, the Court concluded that the drunk driving charges could not be brought against the horseback riders because the law was too vague about whether it applied to those who ride on animals, as well as in vehicles. But the court was not unanimous in its opinion. In a lone dissent, Justice Michael Eakin issued part of his contrary opinion in verse:

"A horse is a horse, of course, of course,
but the Vehicle Code does not divorce
its application from, perforce,
a steed as my colleagues said.
‘It’s not vague,’ I'll say until I’m hoarse,
and whether a car, a truck or horse
this law applies with equal force,
and I’d reverse instead."

—Source: Associated Press


Obscuring a View From the Beyond

Leona Helmsley is suing the cemetery where her husband is interred in a private mausoleum, claiming the "perpetual beauty" and "peaceful solitude" of the site have been allegedly destroyed by the construction of a community crypt. Helmsley asserts the new vaults ruin the "open view, serenity and tranquility" of her husband’s final resting place and have caused her "severe anguish and emotional distress."

Helmsley’s husband is entombed in a 20-by-30 foot mausoleum that Helmsley, in her complaint, claims resembles the vault built in 353 B.C. for King Mausolus, "still known as one of the seven wonders of the ancient world." Helmsley’s complaint also notes that the mausoleum’s "interior provides room for seating and private reflection, and stained-glass windows provide natural light for visitors."

According to a spokesperson for Helmsley, the real estate heiress believes the Woodlawn Cemetery violated an agreement with her by installing the new community burial vaults and obstructing the view previously enjoyed from the Helmsley mausoleum. Helmsley is seeking $50 million to move her husband’s mausoleum to another site, and another $100 million for the emotional distress she suffered as a result of the construction of the community crypt.

—Sources: BBC, The New York Times


No Habla Ingles

A South Texas jury has rejected a $10 million lawsuit filed on behalf of a Mexican worker who died in an explosion while inflating an American-made tire. The family of the worker claimed that the tire’s manufacturer was liable for the death because the company didn’t provide warnings about inflating the tire in Spanish.

Raymundo Barrera died after a tractor tire exploded while he was inflating it at a farm near Camargo, Mexico. The worker’s family then filed suit against the Illinois-based Titan Tire Corporation, alleging that the company was at fault for Barrera’s death because it provided no warnings in Spanish despite allegedly knowing that the tires would be used by Mexican workers.

The jury rejected the family’s arguments and decided that Barrera, not the tire company, was at fault for the explosion. Specifically, the jury concluded that Titan did not have to include customer warnings about tire maintenance and safety in Spanish. The attorney for the Barrera family has said that the verdict will be appealed.

—Source: Associated Press


Litigious Firearms Follies

A Philadelphia woman will collect an $850,000 settlement from a firearms retailer despite the fact that he legally sold the gun which was used to accidentally shoot the woman’s daughter.

Nafis Jefferson was killed after a friend discovered the gun under a parked car in South Philadelphia, playfully pointed it at Jefferson, and pulled the trigger. The seven-year-old’s mother, Tennille, filed a wrongful death lawsuit against firearms retailer Jon Sauers, who sold the gun legally to another Philadelphia man, after completing the required federal and state background checks on the buyer. According to police, the buyer later illegally resold the gun to a drug dealer who stashed it under the car, where it was found and used to shoot Nafis.

Mrs. Jefferson’s lawsuit claimed that Sauers should have known that the man who purchased the gun was a "straw buyer" who would resell it illegally. Rather than enduring the cost of a trial, Sauers decided to settle the case.

—Source: Philadelphia Inquirer


Dis-Orderly Conduct

The following is an actual order issued by U.S. District Court Judge Sam Sparks, excoriating the behavior of the lawyers involved in a case before his court:

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

KLEIN-BECKER, LLC, and BASIC RESEARCH,
LLC,

Plaintiffs,

Case No. A-03-CA-871-SS

-vs-

WILLIAM STANELY and BODYWORX.COM,
INC.,

Defendants.

ORDER

BE IT REMEMBERED on the 21st day of July 2004 and the Court took time to make its daily review of the above-captioned case, and thereafter, enters the following:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.

On July 20, 2004, the Court's schedule was interrupted by an emergency motion so the parties' deposition, which began on July 20, would and could proceed until 6:30 in the evening. No intelligent discussion of the issue was accomplished prior to the filing and service of the motion, even though the lawyers were in the same room. Over a telephone conference, the lawyers, of course, had inconsistent statements as to the support of their positions. On July 20, 2004, the Court entered an order allowing the plaintiffs/counter-defendants until July 23, 2004 two days from today to answer a counterclaim. Yet, on July 21, 2004, Bodyworx.com, Inc.'s lawyers filed a motion for reconsideration of that Court order arguing the pleadings should have been filed by July 19, 2004.

The Court simply wants to scream to these lawyers, "Get a life" or "Do you have any other cases?" or "When is the last time you registered for anger management classes?"

Neither the world's problems nor this case will be determined by an answer to a counterclaim, which is four days late, even with the approval of the presiding judge.

If the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court, the Court will contemplate and may enter an order requiring the parties to obtain new counsel.

In the event it is not clear from the above discussion, the Motion for Reconsideration is DENIED.

SIGNED this the 21st day of July 2004.

Sam Sparks                                
UNITED STATES DISTRICT JUDGE


Blaming the Road, Not the Bottle

The parents of a high school football player from Mooresville, Indiana, notified county officials that they intend to file a lawsuit against the county in connection with their son’s drunk driving death.

Seventeen-year-old Steven Terrell died November 1, 2003, when, after leaving a post-game football party, he lost control of his car on a rain-slickened road, hitting a culvert and rolling his Oldsmobile 98 over. Terrell’s blood alcohol level was more than twice the legal limit according to an autopsy, and reports from his friends indicate that Terrell admitted taking the painkiller OxyContin earlier that day. Terrell was also not wearing a seat belt.

Nevertheless, Terrell’s parents have filed a tort claim with Morgan County, blaming their son’s death on the county’s failure to maintain the road in a reasonably safe condition. Specifically, the parents complain that the road was poorly constructed and lacked proper warning signs. Filing a tort claim with the county is the first step to filing a personal injury lawsuit against the county under Indiana state law.

The Morgan County Commissioners acknowledged receiving the claim, and the attorney for the Terrell’s parents did not comment on the case. The host of the post-football game party, where Terrell allegedly drank before driving, was sentenced to 16 days in jail after pleading guilty to contributing to the delinquency of a minor. There have been no reports that Terrell’s parents are pursuing a lawsuit against the host.

—Source: Indianapolis Star


All in the Family

A Minnesota man is suing his parents for employment discrimination after he lost his job in the family business. Steven Sarenpa alleges his parents forced him from his job as the production manager in the family label and decal printing business not because of sub par work but because of his extramarital affair.

Sarenpa claims that his parents disagreed with his decision to leave his wife and start dating another woman. As a result, he alleges his parents chastised and reprimanded him at work. "It kept turning personal," Sarenpa told the Minneapolis Star Tribune. My parents "kept yelling at me, telling me what a sinner I am, that there’s never a reason for adultery."

Now it’s real personal. Sarenpa filed a lawsuit in federal district court alleging that his parents discriminated against him based on their religious and marital beliefs. Sarenpa’s parents are devout Christians. Specifically, Sarenpa claims his parents tried to impose their religious views upon him by using his employment in the family business as a way to control his personal behavior. When Sarenpa would not end the personal relationship with the other woman, he alleges his parents took out their feelings on him at work, creating a hostile environment.

For their part, Sarenpa’s parents deny any wrongdoing, stating that their talks with Sarenpa never went beyond company business into his personal life. The lawsuit is expected to go to trial in a year to a year-and-a-half, and, for right now, Sarenpa is working as a pizza deliveryman.

—Source: Minneapolis Star Tribune

[Posted August 4, 2004]


Saying ‘Thank You’ in Court

The parents of a 15-year-old boy who perished after falling off a rock ledge at the Crooked River Gorge in Oregon are suing the rescuers who tried to save the boy’s life.

Elijah Keller, a high school sophomore from Redmond, Washington, died several hours after plunging down the Crooked River Gorge while visiting the site with friends. Conflicting reports state that Keller was either "leaping from rock to rock" or "walking" along the precipice when the ground underneath him gave way, causing him to fall more than 20 feet. Keller landed on a narrow ledge and hit his head on a rock. Crooked River fire medics arrived on the scene about an hour-and-a-half later and lifted the boy out of the Gorge still conscious. However, Keller died from his head and internal injuries a few hours after he was taken to the local hospital.

Now Keller’s parents have filed a $9.5 million lawsuit against the rescue workers, alleging they failed to give the boy proper medical care. Specifically, the lawsuit claims that the medics didn’t properly secure Keller in the stretcher when they lifted up the boy up from the Gorge. Keller’s parents also allege that the mistake caused their son’s head to fall "sharply down to his chest," exacerbating his injuries.

The lawsuit is pending. The attorney for the rescue workers has said that his clients did everything they could to save the boy’s life.

—Sources: Associated Press, The Oregonian

[Posted July 29, 2004]


Trying to Hit the Jackpot in Court

A bartender is suing the Massachusetts State Lottery for failing to prevent a lottery ticket vending machine from falling on his foot.

Scott McGloughlin was in the middle of breaking up a bar fight between two patrons in 2002 when a 400-pound lottery ticket vending machine accidentally tipped over and fell on his foot, crushing his toes. The incident occurred at Rick’s Pub in Dedham, Massachusetts, when patrons allegedly got into a brawl and knocked into the vending machine, causing it to tip and lean against the wall. McGloughlin, as the bartender on duty, claims he walked over to the machine and tried to break up the fight, telling the men to leave. But instead of leaving, the two men allegedly began fighting again, this time knocking the vending machine over onto McGloughlin’s foot. As a result, McGloughlin had to have his big toe and part of another amputated, his suit claims.

McGloughlin filed his lawsuit after sending a letter to the state lottery commission demanding $100,000 for his injuries. Specifically, McGloughlin claims that the Massachusetts State Lottery Commission was negligent in placing a machine in a bar because, according to his lawyer, "[i]t’s not totally unexpected that something like that would happen in a bar."

The suit is pending, and a spokeswoman for the state Treasury Department, which oversees the lottery, refused to comment.

—Source: Boston Globe


Skate or Die … or Sue

A teenager can sue the County of Santa Cruz for skateboarding into a metal gate while high on marijuana at a closed public park, according to a recent decision by a California appellate court.

Seventeen-year-old Angelo Seaver sued the County for injuries he received when he accidentally skateboarded into a metal gate at local park. Seaver claims he doesn’t recall seeing the metal gate before crashing into it, but it was night-time. Seaver snuck into the park after it had closed to do his skateboarding, and only after he had smoked a "bowl" of marijuana with a friend.

For these reasons, a California trial court had thrown out Seaver’s lawsuit. But a California appeals court reinstated the case, concluding that the metal gate was a "dangerous condition" the County should have foreseen and protected Seaver against. Specifically, the appellate court noted that the gate’s dark color made it hard to see at night, and the trees along the driveway cast shadows that only further concealed the gate from view. The appellate court also ruled that the park’s hours of "sunrise to sunset" were vague, so the County should have expected people to use the park after hours.

Seaver’s lawsuit can now proceed to trial.

—Source: Seaver v. County of Santa Cruz


A Real Boob Suit

A small claims court judge in Utah recently threw out a case in which a man had sued Viacom, claiming the corporate owner of CBS had falsely advertised the content of the Super Bowl’s revealing halftime show. The father of three, Eric Stephenson, claimed that pregame advertising led him to believe that the halftime show would be a family-friendly, patriotic showcase, complete with marching bands, confetti, and balloons. Instead, Stephenson found the show to be far from the G-rated fare he expected, and he went to went to court to recover damages.

Stephenson took offense at the explicit lyrics, sexually provocative moves and "wardrobe malfunction" that caused Justin Timberlake to expose Janet Jackson’s breast during their Super Bowl performance. As a result, Stephenson filed his lawsuit, claiming that Viacom should pay him $5,000 for having to see the halftime show.

The small claims court judge disagreed. Explaining the decision, Viacom’s lawyer noted that a local small claims court was the wrong place for Stephenson’s complaint since the Federal Communications Commission is the oversight body charged with policing decency standards on broadcast television. The FCC had already opened an investigation into the Super Bowl halftime show.

—Source: Associated Press


Rage Against the Company

A jury in Coweta County, Georgia, recently hit two trucking companies and their driver with a $3 million verdict in connection with a road rage incident. The case was brought by Sandra England, who claimed that a truck driver, Rickey Barron, punched her in the face in a fit of road rage while she and her new husband were on their honeymoon.

According to the Englands, the truck driver, Barron, became enraged after they inadvertently cut off his 18-wheeler while exiting Interstate 85 in Georgia. Barron not only responded with an obscene gesture, which Mr. England returned, but also allegedly followed the couple as they stopped at a gas station. While Mrs. England’s husband pumped gas, Barron then allegedly confronted Mrs. England inside where she had gone to pay. The incident quickly escalated with Barron stopping Mrs. England, shouting obscenities at her and then hitting her in the face. Mr. England intervened, but by then the punch had left Mrs. England with a fractured bone around her eye and nerve damage, her lawyer claimed.

The jury not only assessed the multi-million dollar award against Barron, but also against his employers, two trucking companies. Investigators found that Barron had a string of speeding tickets, and that the trucking companies permitted him to keep driving even though they knew of these moving violations. The jury wanted to send a message, explained the Englands’ lawyer, because the trucking companies knew about Barron’s history of speeding. Apparently companies must assume that a heavy foot also means the possibility of a heavy hand. The decision will likely be appealed.

—Source: WXIA-TV, Atlanta, Georgia

[Posted June 23, 2004]


Making the Grade … in Court?

The father of an eighth-grade student is suing his daughter’s former teacher and her school district after she only received a "C" in a physical education class last year. The lawsuit claims that the average grade was the result of the teacher’s racial discrimination against Brandy Hurd, who is black, rather than a fair assessment of her educational performance or physical talents.

Ivan Hurd, the girl’s father, filed the lawsuit on behalf of his daughter in the U.S. District Court in Fresno, California, asking the court to order the school district to change his daughter’s grade and for an unspecified amount of money damages. According to the complaint, it is "astounding" that Brandy received a "C" in her physical education class because not only is she "the fastest runner, boy or girl, in her elementary school" but, at the time, she was the "fastest elementary school runner in Kings County, although she was only in seventh grade."

The Hurds claim that Brandy was the victim of the teacher's racial discrimination, stating in the lawsuit that the teacher "indicated her bias in grading African-American students relative to other students." The school district has backed the teacher and has given her high marks for her teaching ability. It has also refused the Hurds’ request to change Brandy’s grade.

The Hurds are already at least somewhat familiar with suing the local government. Last year, Mr. Hurd settled a nearly seven-year-old case against Fresno County and a former reserve Deputy Sheriff for $700,000 based on claims of false arrest and other civil rights violations. The same lawyer who represented Hurd in that lawsuit is again representing the family in the grading dispute.

—Source: Fresno Bee

[Posted June 17, 2004]


Illegally Suing for Water

A federal district judge has refused to dismiss a lawsuit brought by the relatives of 11 Mexican citizens who perished in the Arizona desert while trying to illegally enter the United States. The plaintiffs claim that the U.S. Department of the Interior is responsible, at least in part, for the deaths of their family members since the Department had denied the installation of water stations in the Cabeza Prieta National Wildlife Refuge north of Yuma, despite knowledge that illegal aliens frequently crossed the area.

Instead of dismissing the lawsuit, the judge ordered two months of further discovery so the plaintiffs could prove their allegations. The case names both the Interior Department and the U.S. Fish and Wildlife Service, and asserts that the federal government was negligent in failing to allow a social-welfare organization to install water stations "given that Interior employees were well aware that many illegal aliens were dying from lack of water while attempting to cross the refuge." The lawsuit also specifically claims that one of the water stations would have been located in the area where the 11 Mexicans died.

The Border Patrol found the bodies of the Mexican nationals in May 2001, in an area of the Cabeza Prieta Wildlife Refuge known as "the Devil’s Path." The illegal aliens apparently died of dehydration after a five-day trek across the U.S.-Mexico border and Arizona desert, when the temperatures rose to highs of 115 degrees. The families are seeking a total of more than $41 million in damages from the federal government or $3.75 million per victim.

—Source: United Press International, Washington Times

[Posted June 3, 2004]


Run Away Jury

A New Jersey judge overturned a $1.5 million jury verdict after concluding that a former high school basketball player could not prove she was entitled to compensation for an alleged eating disorder developed after her former coach asked her to lose 10 pounds. In a written opinion, the judge said that there was no objective evidence to support the former high school hoopster’s allegation that she suffers from an eating disorder, and that any injuries she did suffer were not permanent.

Jennifer Besler, 25, had sued her former coach for verbally abusing her during the 1995-96 high school basketball season. Among her allegations, Besler claimed that the coach insisted she lose weight. She testified that, as a result of his conduct, she still takes diet pills, exercises excessively and has resisted any treatment for her eating disorder. A jury found in Besler’s favor and awarded her the seven-figure sum, but that verdict was reversed by the judge.

"The court does not suggest that plaintiff did not experience embarrassment, humiliation, intimidation, frustration, betrayal and other painful emotional distress at the hands of defendants during the 1995-1996 basketball season and thereafter," the judge wrote. But those injuries could not be grounds for the damages awarded, the judge ruled, because Besler had not presented any evidence of medical treatment demonstrating severe emotional distress or permanent physical injury.

Besler and her attorneys insist they will appeal, and, in the meantime, one of Besler’s lawyers is considering a post-trial motion for attorney’s fees. The lawyer claims that Besler’s father has paid about $1 million in legal fees, and that those fees can be recovered since the jury ruled in Besler’s favor on several counts. But that legal award may also be blocked, according to the lawyer for the coach and the school board, who says she is unaware of any cases where attorney’s fees have been awarded when the plaintiff receives no damages.

—Source: New Jersey Law Journal

[Posted May 20, 2004]


The Doghouse Dispute

A brutal custody battle is shaping up in a Pennsylvania county courthouse, and a group of Great Danes are caught in the middle.

The canines in question were among 105 dogs and other animals seized from the farm of Avis Brech when the local Society for the Prevention of Cruelty to Animals (SPCA) found them living in allegedly squalid conditions. After Brech was denied visitation rights to her four Great Danes being held at the SPCA shelter, Brech sued the SPCA for the return of the pets, two of which are 5-month-old puppies.

But Brech isn’t the only person claiming a legal interest to the four-legged companions. James R. Keiser, the breeder who sold the two Great Dane puppies to Brech, claims the dogs are rightfully his since Brech never fully paid him for the pedigreed, purebred puppies. Accordingly, Keiser has also filed suit and is pressing his case against both Brech and the SPCA for custody of the two puppies.

Unfortunately, an ill-fated turn of events has denied one dog his day in court while raising the possibility of breeding yet another lawsuit after one of the coveted Great Dane puppies died recently at its temporary SPCA-assigned home. A necropsy is in the works to determine the cause of death, and a decision is still pending as to whether Keiser will sue over the pup’s premature demise.

—Source: Associated Press

[Posted May 12, 2004]


The Supermarket’s Sheer Sight

Apparently the food isn’t the only thing going au naturel at Whole Foods Markets these days. A group of former employees sued the supermarket for allegedly not taking appropriate action when a male customer walked through a Santa Fe, New Mexico, store wearing white, see-through biking shorts with no underwear.

The plaintiffs claim emotional distress as a result of the transparent display, and assert that the store and its managers fostered an environment of sexual harassment and discrimination by refusing to remove the man from the store.

According to Whole Foods Market, the lawsuit represents nothing more than a group of employees seeking vengeance in the courts because the store had fired one of the plaintiffs for insubordination. But the plaintiffs maintain the supermarket chain itself is responsible for retaliation, because the employee was allegedly fired after she complained about the patron’s revealing attire.

—Source: Reuters

[Posted May 5, 2004]


The Name Game Redux

When faced with impending trials or lengthy incarcerations, inmates across the country are learning that even if they can’t name names, they can still claim ownership in their own. A fad has developed among the nation’s prison inmates claiming copyrights in their names and then demanding payment for each unauthorized use in legal documents and proceedings. And, according to the inmates, at least, their names are quite valuable – with most charging about $500,000 per use.

One Illinois inmate sent a $2 million invoice to a judge who used his name four times during his hearing for tax evasion. Another inmate in Oklahoma claimed the federal prosecutor and two judges who sent him to prison owed him $13.5 million for copyright infringement of his name. And, in a detention center in Brooklyn, New York, at least four inmates have filed liens ranging from $2 million to $60 million against judges, prosecutors and prison wardens, who used the inmates’ names in court papers and courtrooms. Two particularly resourceful inmates even filed liens against their defense attorney for unauthorized use of their names during trial.

The scheme is getting worse. Most recently, an inmate began repeatedly interrupting his preliminary hearing for crack-cocaine possession to assert that he would be demanding money for each time his name was spoken without his permission.

Given that a name cannot actually be copyrighted, no payments have been reported, and most inmates attempting the scheme have instead been served with injunctions or contempt of court. But the claims have achieved some small measure of success by getting a judge recused from a sentencing hearing, forcing those accused of the violations to answer the claims in court, and generally tying up the legal system’s time and resources. As U.S. Attorney David Dugas stated, "If an inmate can get us to respond to his actions, it’s a victory for him."

—Source: Court TV

[Posted April 28, 2004]


Playboy Model Wrestles With Her Image, In Court

Kitana Baker, one of the models who gained fame by mud wrestling over whether Miller Lite "tastes great" or is "less filling" in the beer’s "Catfight Girl" television advertisements, is now suing a Los Angeles entertainment company for ruining her reputation.

Baker alleges that Backyard Wrestling, Inc., used her image to promote "offensive" video games after tricking her into signing a broad talent release for her appearance in one of the company’s videos.

In her lawsuit, Baker claims she agreed to appear in a "Backyard Wrestling Babes" video after being assured the video would be done "in a high-class manner and would not be in any way graphic." She also claims that, while she agreed to perform a "Playboy style" striptease, she "would not under any circumstances … engage in any wrestling."

Since then, Baker, a Playboy Lingerie Model of the Year, alleges Backyard Wrestling has ruined her reputation by using her likeness as a wrestler in its X-rated video games. Baker, who says she was outraged by the unauthorized depiction, has demanded $1 million in damages and an order stopping the video company from using her image in an upcoming sequel to the game.

According to its website, Backyard Wrestling is principally engaged in producing videos that "highlight the most outrageous, violent, shocking and sexy footage from real backyard wrestling matches all across America." The company did not comment on Baker’s lawsuit.

—Source: Reuters

[Posted April 22, 2004]


Long-Legged Litigants Insist Size Matters

A club for tall people has come up short in its legal battle for more legroom on commercial airplanes.

The Tall Club of Silicon Valley filed suit in the year 2000 against a group of airlines including American and Southwest. The club sought preferential seating in exit rows for men at least 6 foot, 2 inches tall and women at least 5 foot, 10 inches tall. A California Court of Appeal panel unanimously rejected the lawsuit, asserting that airline regulations should be determined by the federal Department of Transportation, not state courts.

Unfortunately for the long-legged litigants, the Department of Transportation has already denied their petition for roomier accommodations, refusing to impose the costs on the airline industry. The club attempted to sue the airlines directly under California’s unfair-business-practices act rather than appealing the department’s decision, but the suit has now been shut down by both the state superior and appeals courts. Thus, the Tall Club, whose motto is "Heads Above the Rest," appears to be on its last leg, with little left to try other than appealing to California’s supreme court.

—Sources: Reuters, San Mateo County Times

[Posted April 15, 2004]


Not Everyone’s a Critic

Moviegoers who claimed they were lured to see mediocre films based on a fake critic’s positive reviews will settle their resulting class action lawsuit against Sony Pictures Entertainment out-of-court.

The frustrated filmgoers sued Sony after learning that one of its marketing executives had created the critic to rave about less-than-stellar Sony releases such as "Hollow Man" and "The Animal." Suing on behalf of "all consumer nationwide who paid to see any movie" based on a phony review, the plaintiffs first offered to settle their class action suit for a $4.5 million fund to reimburse those duped by such promises as Heath Ledger being "this year’s hottest new star," and "Hollow Man" being "one hell of a scary ride." Sony rejected the initial offer, and the terms of the pending settlement have yet to be finalized.

The decision to settle the case comes on the heels of a recent California appeals court decision rejecting Sony’s argument that its advertising, including statements from the fictitious critic, were protected under the First Amendment. Although the 2-1 majority ruled that the advertisements were unprotected commercial speech, Justice Reuben Ortega dissented, deriding the suit as "the most frivolous case with which I have ever had to deal."

Sony maintains it was unaware of the phony critic ruse; it pulled the ads and suspended the marketing exec and his supervisor as soon as the story broke.

—Source: Court TV



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