For decades, Benihana has advertised itself as the place where hibachi chefs put on a show while preparing Japanese food. In December 2000, furrier Jerry Colaitis went for a birthday celebration at a Munsey Park, NY, Benihana. Colaitis reflexively ducked when the chef tossed a piece of shrimp at him — and, the family says, injured his neck. (Benihana says that Colaitis may have been trying to catch the shrimp in his mouth.) Colaitis had an operation six months later on the neck; but complications from that operation required a second operation two weeks later; according to the family, Colaitis, in his mid-40s, had a blood-borne infection and died from complications from that second surgery.
This is, of course, Benihana’s fault, says plaintiffs’ lawyer Andre Ferenzo, who has sued them for $10 million. A Nassau County judge, Roy Mahon, has held that the question of causation is for a jury to decide, which means the case will go to trial. (Andrew Harris, “Benihana Chef’s Playful Food Toss Blamed for Diner’s Death”, New York Law Journal, Nov. 23).
Update: Fark comments: “You have to admit, of all the ways a Benihana chef could have killed the man–his expert wizardry with knives, his ability to dice raw meat midair, his precise spatularic stylings–he cleverly used a common shrimp. Those ninjas that disguise themselves as Benihana chefs are as cunning as they are evil…”
Another update: By coincidence, the day after this post, the New York Daily News did a story with the same headline. (Helen Peterson, “The flying shrimp of death suit”, Nov. 24; Charles Delafuente, “A Shrimp, A Duck, A Death”, ABA Journal EReport, Dec. 10).
Tagged as:
restaurants
I’ll be taking a few days off for the holiday, so until the end of the weekend or so, any further posting will be from Ted or not at all.
Tagged as:
about the site
Trial began last week in a lawsuit filed by Hooters of America against a rival “breastaurant” operator named WingHouse, which also relies on curvy waitresses to sell sports-bar food and drink to a clientele of young men. Hooters charges infringement of “trade dress” (undress?) and other sins, while WingHouse contends that the older chain is using the legal system to suppress competition. (Henry Pierson Curtis, “Hooters suit aims to clip upstart competitor’s wings”, South Florida Sun-Sentinel, Nov. 18; Kris Hundley, “Hooters defends wings-and-winks turf”, St. Petersburg Times, Nov. 18; “Hooters competitor in court, accused of stealing ideas”, AP/Daytona Beach News-Journal, Nov. 19)(via Reason “Hit and Run”). For more Hooters litigation, see Mar. 27, 2001; Mar. 24-26, 2000.
Tagged as:
Hooters,
restaurants,
trade dress
Reader Steve Headley advises us that there have been follow-ups to the case (publicized worldwide) of Patricia Frankhouser of Jeannette, Pa., who’s suing the Norfolk Southern railway over a broken finger and other injuries she suffered in an encounter with one of its freight trains; the suit, among its other contentions, claimed the railroad should have warned that walking along the tracks was dangerous and should have yielded the right of way (see Nov. 12). After the original reports in the Pittsburgh Tribune-Review and Post-Gazette, and a Tribune-Review letter to the editor and editorial critical of the suit, attorney Harry F. Smail Jr. wrote in to the paper with his side of the story (Nov. 16). Smail argues that the case is meritorious because Frankhouser was earlier acquitted of charges of criminal trespass arising from being on the tracks. His response drew another critical letter to the editor (Nov. 17). (& update Feb. 20).
Attorney Smail, incidentally, has lately been involved in another colorful case, successfully representing a woman who passed a supposed $200 bill at a Fashion Bug; neither she nor the store clerk realized that there is no $200 denomination and that the bill was a joke replica with pictures and other references to President George W. Bush, Jr. (Bob Stiles, “Charges withdrawn against woman who used bogus bill”, Pittsburgh Tribune-Review, Nov. 13; “Charges Dropped in Bogus Bush Bill Case”, The Guardian (UK), Nov. 15).
Tagged as:
personal responsibility,
Pittsburgh
Not only does the Chicago Tribune-based syndicated columnist have an excellent column on last week’s decision throwing out the Chicago gun suit, but he’s even kind enough to quote me and mention this website (Stephen Chapman, “Activism on guns? Judges resist urge”, Nov. 21).
Tagged as:
guns
Just when you thought it was safe to run inside and pray: “Air inside churches may be a bigger health risk than that beside major roads, research suggests.” Candles and incense are deemed likely culprits for the prevailing high levels of polycyclic hydrocarbons and particulates, the latter of which were found at 12 to 20 times permissible EU levels. (“Church air is ‘threat to health’”, BBC, Nov. 20). Libertarian Samizdata has a rather drastic suggestion for what to do about the new findings. Another possibility, of course, is that the official EU hazard limits are set at a super-cautious level that has little to do with the amount of risk most people would consider it reasonable to bear. More on the candle menace: Jun. 19, 2001 (EPA advisory); Nov. 4-5, 2002 (Calif. “right-to-know” suits against candle makers).
Tagged as:
churches,
environment
Boy meets girl. Boy marries girl and later assaults her. Girl successfully sues Internet foreign-brides matchmaking agency Encounters International for as much as $434,000 before a Baltimore jury, “for failing to screen its male clients and failing to tell her about the so-called battered spouse waiver, a provision in immigration law intended to help foreign nationals escape abusive relationships without fear of automatic deportation.” (Eric Rich, “Battered Wife Wins Suit Against Md. Matchmaker”, Washington Post, Nov. 19). More: Nadya Labi covered the Fox-Spivack lawsuit in Legal Affairs’ Jan.-Feb issue. And the text of the 1996 federal law on mail-order brides is here.
Tagged as:
Baltimore,
family law
Looks like all those school districts that banned dodgeball, and the professor who described the popular kids’ game as “litigation waiting to happen” (see Jun. 13, 2001), were on to something. A New York appeals court has rejected a request by the Vestal Central School District to dismiss a suit demanding compensation for the injury that seven-year-old Heather Lindaman suffered when she “became entangled with another student during the game, fell on a hardwood floor and fractured her left arm”. The school said the players were adequately supervised, but the court said a jury should decide whether second graders are too young for the game. (Yancey Roy, “Vestal lawsuit could put dodgeball on trial”, Binghamton Press & Sun-Bulletin, Nov. 20) David Giacalone comments.
Tagged as:
schools
Geoffrey Fieger’s $30 million verdict in the cerebral-palsy case Hollins v. Jordan (Oct. 11), thrown out by one judge, has been reinstated by a second judge. The press coverage isn’t clear why Judge Lawther “voluntarily removed himself” from the case; Fieger had earlier threatened to file a motion to remove the judge (Aug. 31). Fieger isn’t satisfied with $30 million; he’s going to ask the court for an additional $50 million in “pre-judgment interest.” The defendants have not had an opportunity to comment, but they’ll presumably appeal to a higher court on the grounds that led the first judge to throw out the verdict. (James F. McCarty, Cleveland Plain-Dealer, Nov. 20).
Tagged as:
Cleveland,
Geoffrey Fieger,
medical
In my brief essay on loser-pays posted early in the history of this site, I observed: “While some loser-pays jurisdictions suspend the principle [of costs following the event] for what are viewed as true ‘cases of first impression’ where there is no established law, most are skeptical about applying any exemption more liberally, as one sees in this 1996 case from Alberta, Canada.” A belated update on that case, Vriend v. Alberta: on appeal to the Supreme Court of Canada, the plaintiff in 1998 won his case on the merits (with an award of costs), thus presumably escaping any need to pay costs arising from his “case of first impression” loss at the earlier stage. Thanks to Doris Wilson of the Alberta Law Reform Institute for calling my attention to this.
Tagged as:
Canada,
loser pays
Dow Jones & Co. “has settled a defamation lawsuit launched against it by an Australian mining magnate”, agreeing to pay $137,500 plus $306,000 in legal fees to Joe Gutnick and issuing a statement in court that it never intended to suggest that he was a client of a Melbourne man jailed for financial misdeeds. The case drew wide attention (see Jan. 18-20, 2002) primarily because it occasioned a “landmark ruling in December 2002 [in which] the High Court of Australia unanimously ruled that the case could be heard in Gutnick’s home state of Victoria because people there could have read the article online. … The settlement is not likely to affect the precedent already set, said University of Ottawa professor Michael Geist, who noted courts in the United Kingdom and Canada have already cited the Australian decision in asserting jurisdiction over other Internet defamation cases.” (“Dow Jones Settles Precedent-Setting Internet Defamation Suit”, AP/Editor & Publisher, Nov. 16).
Tagged as:
Australia,
libel slander and defamation,
newspapers,
online speech
The “dangerous instrumentality” to which a menace of liability attaches doesn’t have to be something as big and lethal as a car. According to a Florida appellate panel (Weissburg v. Albertson’s, filed Nov. 10, PDF) it can be a power-assisted grocery cart (courtesy Abstract Appeal).
In another spectacular rebuke for the proponents of gun-control-through-litigation, the Illinois Supreme Court has unanimously tossed out both Chicago’s lawsuit and a lawsuit by private parties seeking to hold gun companies liable for “negligent marketing” and alleging that sales of guns at suburban gun shops constitute a public nuisance along the lines of smoke or stray animals. (John O’Connor, “Chicago gun suits tossed”, AP/Chicago Tribune, Nov. 18). Chicago’s case had been thrown out by a trial court (see Sept. 20, 2000) and then reinstated by an appeals court before yesterday’s denouement. The Illinois Supreme Court is considered among the nation’s most unfriendly by business defendants, but Chicago’s theories were too extreme and too unrooted in precedent to pass muster even there. (City of Chicago v. Beretta; Young v. Bryco Arms). Smallest Minority has much more on the decisions (Nov. 18).
Most of the 30+ municipal gun suits have now been dismissed, but the burden of fighting the litigation has been a crushing one for many defendants, which are often small and family-owned. Their tormentors in the Brady Campaign and other anti-gun groups — funded by George Soros as well as deep-pocketed foundations — show no signs of relenting in their strategy of filing an unending series of flimsy suits in an attempt to achieve through lawyering what voters have denied them at the ballot box. Federal pre-emption, as discussed yesterday, is thus more needed than ever; and it would also help if courts began considering the issuance of sanctions against the groups that file such meritless suits. Update Nov. 22: Steve Chapman comments.
Tagged as:
guns,
Illinois
“The fashion to sue fast food enterprises has reached Russia. Thirty-seven-year-old Muscovite Olga Kuznetsova claimed a 100,000 ruble ($3,500) compensation from McDonald’s for the burn that a spilled cup of coffee had left on her body.” (Pravda, Nov. 15; Novosti, Nov. 12). For Ted’s take on the much-discussed Stella Liebeck case, see Dec. 10, 2003, Aug. 3, 2004, and Aug. 4, 2004.
Tagged as:
hot coffee,
McDonald's,
Russia
Monday’s post on the “Get your million dollars” webpage drew a big response from readers, many of whom commented on the question of the page’s sponsorship (the elusive “Leon”, interviewed by New York Sun reporter William Hammond). A typical response was that of reader T.J. McIntyre, who wrote:
You might already know that this appears to be an attempt to make money via the Google AdSense program. You’ve already commented on this in the related context of paid keywords and asbestos.
As such, I suspect that this site isn’t affiliated (at least directly) with any law firms. The webmaster is probably making the bulk of his money from pay per click advertising. Still sleazy, but if he was linked to specific law firms, he wouldn’t be using AdSense, which gives him no control over which firm’s ads will appear. For more on AdSense see this link.
And, of course, “Leon” is also trying to make money by selling for $100 the document containing supposed secrets of Vioxx litigation that Lawyers Don’t Want You To Know. Reader Matt Baucom suspects the page is “filled with outlandish info just to get people to come and click on the links or purchase the document”. That sounds right, too.
[click to continue…]
Tagged as:
asbestos,
product liability
Last time up, Sen. Dianne Feinstein’s poison-pill amendment passed 52-47, dooming the urgently needed bill although it enjoyed the support on paper of a wide majority of Senators. Now five Democrats among those 52 votes are going to be gone. “Conservative Republicans, all of whom were endorsed by the NRA, will replace all five Democrats.” (Jim Snyder, “Gun lobby, GOP have lawsuits in their crosshairs”, The Hill, Nov. 17). For more on this bill, see my dialogue with Michael Krauss, linked Jul. 21; Mar. 12, Feb. 25; Oct. 9, 2003 and many others.
Tagged as:
guns
Not sure exactly how this one escaped our notice last year: a Pennsylvania federal judge has ruled (or, really, observed) that whatever other advantages blonds may enjoy, they are not a protected class under Title VII federal employment discrimination law. Brigitte Shramban had sued Aetna claiming that her boss had made various tasteless and disparaging remarks which belittled her on account of her sex, race, national origin, religion and blondness. Aside from noting that the last-named flower could not properly be included in the Title VII bouquet, the judge dismissed the case as a whole because the improper remarks were not sufficiently severe, pervasive, or bothersome to a reasonable listener. (Shannon P. Duffy, “Offensive Behavior Not Necessarily Harassment”, The Legal Intelligencer, May 23, 2003). It seems doubtful that a case could be made out that discrimination against those with fair tresses operates as a “proxy” for bias against those of certain ethnic origins; thanks to modern technology, blonds (as the Census says of Hispanics) “may be of any race”.
Tagged as:
harassment law,
Pennsylvania,
workplace
