The Ninth Circuit Court of Appeals recently upheld dismissal of a lawsuit against Apple Computer, Inc., the maker of the iPod music player.  The class-action lawsuit, originally filed in January 2006, claimed that the 115-decibels sound production capability of the iPod was potentially damaging for the users’ hearing, that the device and headsets sold were defective and that the company failed to adequately warn the users of possible hearing loss.

“Studies indicate that exposure to 115 dB for more than 28 seconds per day, over time, can cause permanent damage,” the lawsuit contended.

In upholding the lower-court ruling, Senior Judge David Thompson wrote, “At most, the plaintiffs plead a potential risk of hearing loss not to themselves, but to other unidentified iPod users.”  The lower court ruled that any risk of hearing loss from playing music too loud were “obvious” and that the plaintiffs failed to provide evidence that iPods were defective. 

—Source:  Macworld.com

A Plano, Texas company is being sued by a Pennsylvania baker and restaurant chain that alleges a trademark violation over a smiley face cookie.

Pennsylvania-based bakery and restaurant chain Eat’n Park says Cookies by Design is using its trademark of a smiling face on some of its sugar cookies.  Eat'n Park says it has a trademark from 1987 for the "sugar cookie having raised design of a smiling face." According to the lawsuit’s Exhibit A, both versions of the cookies show a circle with two round eyes, a dot for a nose and a perky smile. 

Eat’n Park is seeking an undisclosed amount of damages and wants Cookies by Design to stop selling what it says are smiley-face cookies that are “confusingly similar.”

"The smiley cookie is one of the most recognizable brand icons in the area," Kevin O'Connell, spokesman for Eat’n Park said. "It's insanely popular."

In a written statement, Cookies by Design’s parent company, Crumb Corps LLC, says it "denies the allegations in the Complaint and intends to mount a vigorous defense of this matter."

—Source:  WFAA.com and DallasNews.com

A jury has found a national movie chain not liable to a woman who claimed she was injured after tripping on a “wet floor” sign at one of the company’s theaters.

After deliberating for fewer than 30 minutes, the jury disagreed with an earlier unanimous Georgia Supreme Court decision that questioned AMC’s actions and sent the case to the jury for final determination.  While he was pleased with the jury’s decision, AMC’s attorney Christopher M. Ziegler of Atlanta’s Gray, Rust, St. Amand, Moffett & Brieske, noted that the jury verdict didn’t override the lesson of the Georgia Supreme Court’s ruling, which said the trip-and-fall case had to go to a jury, ultimately costing the defendant additional legal expenses.

Plaintiff Nancy Sue Brown had visited the AMC Southlake Theater on Christmas Day in 2003, a traditionally busy day of the year for movie theaters. According to the Supreme Court’s opinion, by the time Brown reached the “wet floor” sign, it had fallen over and was lying flat on the floor.

In a unanimous opinion by then-Chief Justice Leah Ward Sears, the state Supreme Court ruled that a 1997 decision by the Court meant that routine issues of slip-and-fall and trip-and-fall cases -- such as how closely a retailer should monitor its premises and how vigilant patrons must be for their own safety in various settings -- must be answered by juries, not judges.

Given Browns' evidence of the risk posed by the A-frame type of "wet floor" sign when used in areas traversed by large concentrations of people, Justice Sears wrote, the Court couldn't say as a matter of law that AMC had fulfilled its duty to avoid creating an unreasonable safety risk for the public.

At trial, the plaintiffs argued that there were alternatives to the "wet floor" sign used by AMC.  AMC’s attorney countered, stating that:  "I argued that the 'wet floor' sign used in this case was pretty much the normal, standard sign that everyone sees everywhere they go." 

Another key issue considered by the jury at trial was whether the fall at the theater had caused the back injury of which Brown complained and sought damages of $383,000 to cover pain and suffering, medical expenses and loss of consortium for Brown's husband.

A decision to appeal has not been made.

—Source:  Law.com

A Queens, New York, softball player has sued the city and her high school coach, alleging that the coach was negligent in instructing her about proper sliding techniques.

Alina Cerda, 15, filed suit in Queens Supreme Court claiming she busted her ankle because Francis Lewis High School coach Bryan Brown never taught her how to slide.  The suit says Cerda needed six screws and a metal plate to fuse the ankle she broke while sliding on a muddy path during a practice.  Following the accident, Cerda missed her freshman year of softball.

Cerda’s lawyer, Clay Evall, faults Brown for not providing proper instruction.  “He wasn’t instructing them whatsoever,” Evall said.  “He told her to watch the older girls do it.”

City lawyers declined to comment.

Earlier this year, a Staten Island family settled a similar lawsuit for $125,000 filed against the New Springville Little League and its parent company, Little League Baseball Incorporated, after a 12-year-old boy suffered a knee injury following a slide into second base.  In addition to the leagues, two coaches were named personally in the lawsuit.

—Sources:  NYDailyNews.com and overylawyered.com