Kevin at Lowering the Bar wonders whether there’s a need for a California-specific warning.
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Posts tagged as:
failure to warn
Via Consumer Law & Policy, the punch line of a new study:
We follow the clickstream of 47,399 households to 81 Internet software retailers to measure contract readership as a function of disclosure. We find that making contracts more prominently available does not increase readership in any significant way. In addition, the purchasing behavior of those few consumers who read contracts is unaffected by the one-sidedness of their terms. The results suggest that mandating disclosure online should not on its own be expected to have large effects on contract content.
Regulation, of course, often goes to great lengths to mandate disclosure, and a considerable volume of private litigation is also based on theories that lack of more extensive and prominent disclosure rendered a transaction wrongful. The study is Florencia Marotta-Wurgler, Does Disclosure Matter?NYU Law and Economics Research Paper No. 10-54 [SSRN].
A customer unfamiliar with the vegetable ordered the grilled artichoke special at a North Miami Beach restaurant, and says the server should have warned that you’re not supposed to eat the fibrous, indigestible upper mass of the leaves, just the heart and pulpy bottom portion. He’s suing. [Matthew Heller, OnPoint News] More: Above the Law.
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As a connoisseur of hot-coffee cases, I’m always excited to see a court get one right. The Abnormal Use blog points us to Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010). The plaintiff made the usual gamut of “design defect” and “failure to warn” claims, but the court wasn’t buying it. Note that the plaintiff claimed to be injured by the coffee at Sonic Restaurants, yet another refutation of the trial-lawyer claim that Stella Liebeck’s McDonald’s coffee was unusually hot.
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The suit argues that the student wasn’t given adequate warning that attaching electrical clamps to his nipples could be dangerous. Earlier reportage on the case quoted students who accused the teacher of encouraging horseplay and making light of the dangers of mild shocks; the teacher later resigned but did not face criminal charges. [Joey Cresta, Foster's Daily Democrat/Boston Herald (Dover, New Hampshire)] More: Lowering the Bar (“Nor am I buying the Mountain-Dew-enticement allegations.”)
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- Lawsuit alleging failure to warn of addictiveness of online game Lineage II survives motion to dismiss [Kravets/Wired, Mystal/AtL]
- Research: outcome of job-bias claims hard to predict, smaller and legally unsophisticated employers at higher risk of adverse outcome [Schwartz]
- UK survey sheds light on decline of outdoor and neighborhood kids’ play [BBC via Free-Range Kids]
- “The Music-Copyright Enforcers” [John Bowe, NY Times Magazine via Carton, Legal Blog Watch]
- Did an early-offer/full-disclosure system reduce medical malpractice costs at University of Michigan hospitals? [Ted at PoL]
- Here’s a professor who might become very popular with the class action bar [Vanderbilt Law School, SSRN] P.S. Andrew Trask responds to Prof. Brian Fitzpatrick.
- Nevada: “Process Server & Office Manager Are Criminally Charged re Alleged False Filings for Debt Collector” [Neil, ABA Journal]
- 1-800-PIT-BULL: not an urban legend [six years ago on Overlawyered]
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- “Wacky warning dept.: Steven Morris v. Harley-Davidson Motor Co.” [Wajert and Ted at PoL]
- “Are HOA Foreclosures a Necessary Tool or an Extortion Racket?” [Jurow, Business Insider]
- “Court Under Roberts Is Most Restrained in Decades” [Adler/Volokh, earlier]
- New Jersey Supreme Court confirms equestrian center’s legal protection in horseback-injury case [NJLRA]
- White-collar prosecution: Is “Conscious Avoidance” the Next “Honest Services”? [Christine Hurt, Conglomerate]
- Cy pres class action giveaways arrive in Canada [National Post]
- More on why Wal-Mart is spending big to fight a relatively low OSHA fine [Paul Greenberg, earlier]
- Older jobseekers find offers scarce? Someone should pass a law! Oh wait [four years ago on Overlawyered]
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A product liability action filed in San Francisco alleges that “defendants failed to warn the plaintiff that playing with a sharp sword displayed in its store would result in the plaintiff slicing his hand when he attempted to place it back in its sheath.” [Kevin Underhill, Lowering the Bar](& welcome Bainbridge readers)
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Following a Nevada jury’s highly controversial $500 million verdict over allegedly inadequate warnings against multiple patient use, as well as bad publicity over possible abuse by music legend Michael Jackson, “Israel-based Teva Pharmaceutical Industries recently announced it will stop production of its sedative propofol, which many worry will intensify an already existing shortage of one of the most widely used anesthetics in the United States.” [Abnormal Use, earlier]
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So thinks a Michigan appeals court, reinstating (over a dissent) a suit against a maker of a muffler repair kit which allegedly should have warned of the danger of carbon monoxide emitted by the car under repair. [Pero, White v. Victor majority and dissent (PDF)] (& welcome Daniel Fisher, Forbes readers)
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- No answer at 911? “Florida Verdict May Threaten EMS Availability” [White Coat]
- New Orleans politico Steve Theriot drops suit seeking identities of online critics [Times-Picayune and more, NYT "Media Decoder", Slabbed, earlier]
- On a vial of anesthetic: “One patient use only.” Nevada jury finds that warning inadequate to prevent multiple patient use and awards $500 million in punitives [Carter at Point of Law, Abnormal Use] More: Ted at PoL.
- Floodgates to litigation? “Parent Can Sue Ex for Turning Children Against Him” [NJLJ]
- Lawyer who isn’t honest is a threat to the social order: noted Allentown, Pa. attorney gets 6 1/2 years for fraud [Legal Intelligencer, earlier]
- “Another European Prosecution for Insulting Religion” [Volokh; pop star Dorota Rabczewska, Poland]
- A lawyer’s advice: try to get those Rand Paul types off your jury [Turkewitz]
- If SEIU craves respectability, maybe it shouldn’t send mobs to besiege bank execs at their homes [Nina Easton, Fortune, cross-posted from Cato at Liberty; related from PoL last year; more from Big Journalism including role of D.C. police, but note denials on last point]
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- Doc self-injects with Botox, wins $15 million on failure-to-warn claim [Legal Blog Watch]
- Kindergarten teacher Tonya Craft acquitted in widely watched abuse-allegation case [Sullum and more, Greenfield, Popehat, A Public Defender, Lynch]
- Naughty Toyota, it defends itself when attacked [Fumento, Ted at PoL]
- Washington Post profiles economist/perennial blogroll favorite Tyler Cowen (Marginal Revolution) with guest appearance by fashion business mentor/outspoken CPSIA critic Kathleen Fasanella;
- Business groups oppose nomination to federal judgeship of Rhode Island trial lawyer/political kingmaker Jack McConnell [ShopFloor]
- “CEI’s FTC Complaint Against GM: A Response to Walter Olson” [Fred Smith/Open Market, earlier]
- Bad: New York’s highest court limits assumption of risk defense [NYLJ, Mura, Rapp]
- Why we can’t represent you in your suit demanding removal of your microchip brain implant [Popehat]
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- Failure to warn? “Non-Child Sues For Slide-Related Injury” [Lowering the Bar]
- “AG Cuomo Sues Lawyer for Fraud, Says He Sold His Name to Debt Collector for $141K” [ABA Journal]
- Ted Frank on his move to the Manhattan Institute and Point of Law [CCAF]
- “Viacom is becoming a lawsuit company instead of a TV company” [Doctorow, BoingBoing]
- UK: “NHS pays £10,000 to family of psychiatric patient who committed suicide” [Times Online]
- American Cancer Society: federal advisory panel’s chemicals-cause-cancer alarms are overblown [NYTimes] More: Taranto, WSJ.
- “Who Knew Bankruptcy Paid So Well?” [NYTimes]
- Famed sleuth Bloomberg Holmes on the case: was the Pathfinder headed for a vile sodium den? [IowaHawk]
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Ted’s Center for Class Action Fairness has been contesting a class action settlement as overly generous toward lawyers’ interests. The underlying lawsuit claims failure to warn of hearing loss from high-volume headset use. [CCAF, Bader/Open Market] More: California Civil Justice, Aetherczar.
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Trying to move the contents of his Duval Street store to another location, a jeweler in Key West, Fla. was killed when the enormously heavy object fell on him; his widow’s suit “claims that Mutual Safe Co. and Harwood’s Miami Safe Co. failed to warn her husband of the life-threatening risks involved in moving the 10,000-pound, refrigerator-sized safe, according to the lawsuit filed in Monroe County circuit court Tuesday.” [Adam Linhardt, Key West Citizen; & welcome Lowering the Bar readers]
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In 1992, Diana Maychick drove her mother’s Oldsmobile back to Washington Place in Greenwich Village, and got out. Her mother, the 74-year-old Stella Maychick, slid over from the passenger seat to the driver’s seat, readying herself to return to Yonkers. Maycheck, a shorter-than-average woman, suddenly took off in the car, which sped up, ran two stop signs, and tore through Washington Square Park, killing five and maiming several others.
Diana Maychick is now Diana Foote, a restaurant reviewer for a Palm Beach newspaper, and recently recounted the accident, claiming the recent Toyota troubles exonerated her mother.
Which I found fascinating, because I worked on that litigation—and the evidence that Maychick hit the gas instead of the brake was so strong that the plaintiffs’ lawyers abandoned the standard specious “mysterious gremlins caused the car to accelerate” theory and replaced it with a “General Motors knew that drivers were hitting the wrong pedal but didn’t do enough to warn them” theory. I took issue with Foote’s column in a letter to the newspaper.
As for the lawsuit itself, the judge excused everyone in the voir dire who expressed the remotest skepticism about plaintiffs’ theory, and GM settled shortly after the start of trial. One certainly marvels at the chutzpah of the theory of the case, given trial lawyers’ role in trying to persuade the public that driver error couldn’t possibly be to blame.
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Canadian health officials require poutine—a Canadian dish of french fries, cheese curds, and gravy—to be heated to 140 to 165 degrees for health reasons, a temperature somewhat that below of hot coffee. Alas, this is a temperature that can cause second-degree burns if a consumer happens to suffer an epileptic fit and fall face-first into their poutine, as happened to an Ontario teenager dining alone at a local KFC. No lawsuit appears to be planned, though her father seems to be demanding warnings of some sort. (Don Peat, “Teen burned in KFC poutine mishap”, canoe.ca, Jan. 19 (h/t Bumper)). Of course, given that warnings cannot deter epileptic seizures, it’s not clear why this would have made a difference. And as the Mocking Words blog points out:
What if instead she ended up falling down and hitting her head on the concrete floor? Are you going to go around warning people that concrete is a very solid material and that people should be aware that if you fall and hit your head on the floor that it’s going to hurt and is possibly going to injure you?
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The New York Times publicizes a possible new front for product liability litigation [sidebar, yesterday's p. 1 story]
P.S. A long, must-read post from Russell Jackson, who was quoted in the article: “Various Defenses Should Make Cell Phone Suit Untenable“.
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