MASCOTS 0 FANS 2

Some might suggest that “Sluggerrr,” the Kansas City Royals’ mascot, should be charged with Aggravated Public Annoyance or arrested just because or maybe put on a drone hit list. 

 That probably ain’t going happen, but Sluggerrr will have to face some civil court music—again.  John Coomer, while attending a Royals game, was struck in his left eye by a foil-wrapped hot dog which Sluggerrr had (allegedly) tossed into the stands as part of a between-the-innings promotion known as the “Hotdog Launch.”  Coomer suffered a torn and detached retina and underwent surgery; he had additional surgery for a cataract; now has an artificial lens in his eye.  Commer sued.  A jury ruled in Sluggerrr’s favor.  A Missouri Appellate Court (recently) reversed the ruling stating (inter alia) that, “Everyone who participates in or attends a baseball game assumes the risk of being hit by a ball, because the risk of being hit by a baseball is a risk inherent to the game.  However, the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game.  Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk merely by attending the game.”  (internal quotations and citations omitted)  Coomer v. Kansas City Royals Baseball Corp.  (Appeal from the Cir. Ct. of Jackson County, Missouri) (2013) WD73984 & WD74040.)  There’s a somewhat similar California case: “Tremor,” the Rancho Cucamonga Quakes’ mascot, is a seven foot tall dinosaur with a protruding tale.  Once upon a time at the “Epicenter” (Quakes’ home-field) Tremor was getting his freak on in the stands and his tale kept bumping and distracting a fan who, while distracted, was hit in the face by a foul ball.  Summary judgment in favor of Tremor was reversed on appeal.  Lowe v. Calif. League of Prof. Baseball (1997) 56 Cal.App.4th 112. 

IS CHICKEN REALLY THE DEVIL'S MEAT?

Is Chicken Really the Devil’s Meat?

Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 doesn’t provide a definitive answer to this poultry puzzle but does provide a heart (and gut) wrenching portrayal of a plaintiff who suffered a massive physical meltdown after partaking of “raw ahi tuna, avocado, cucumbers and soy sauce” at a local eatery.  She tested positive for Campylobacter, a bacteria “not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common.”  Four practices were identified which could have lead to cross-contamination: (1) Wipe-down rags not sanitized between wiping down surfaces; (2) Insufficient sanitizer in the dishwasher; (3) Chicken tongs sometimes used for other food; (4) Raw vegetables stored under (unspecified type of) raw meat so that a drop of raw meat juice might get on the vegetables.  There was also testimony that “the waiter ... used a wet, unsanitized rag stored underneath the bar to wipe down ... [plaintiff’s] table.”

Sarti is a must read (if you have the stomach for it) for anyone prosecuting or defending a food poisoning case because of its exhaustive review of seminal cases in this genre including Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003.  Mr. and Mrs. Minder ate a Sunday afternoon lunch at a restaurant.  Afterwards husband had an upset stomach.  Three days later he began sweating, developed a fever.  His wife felt a little nauseated on that Sunday afternoon, and her symptoms lasted for two days, when she became feverish and chilled.  Both of them had Shigella Flexneri, Group B.  The appellate court reversed judgments in favor of plaintiffs because (per the Sarti Appellate Court’s analysis of Minder) “there was no evidence to reasonably infer a link between the particular kind of food poisoning involved and the specific unsanitary conditions at the restaurant.”

Minder compelled the Sarti trial judge (who, of course, didn’t have the benefit of the Sarti appellate opinion) to follow Minder’s “black-letter rule of law that inferences are off limits to prove a food poisoning case.”  So, even though he felt that plaintiff had won her case “fair and square,” the judge entered a jnov (judgment non obstante veredicto [judgment notwithstanding the verdict]) in favor of defendant restaurant thus vitiating the jury’s $3,225,000 award.

But, in the end, the sweet taste of victory was plaintiff’s.  The appellate court reversed the jnov  and reinstated the verdict, noting, “Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases.  Reasonable inferences drawn from substantial evidence are indeed available to show causation.”                        
The Satri jurists also distinguished Sarti from Reese v. Smith (1937) 9 Cal.2d 324 which concerned a seamstress, linked sausages, botulism and a judicial proclamation that “maggots themselves are ‘not poisonous,’ not necessarily confined to rotting food ... [and are] ‘but the larvae of insects, most commonly that of the housefly.’”

Lunch anyone?

The Case of the Angry Unidentified Customer

♪♬ It’s the most wonderful time of the year
With the kids jingle belling
And everyone telling you “Be of good cheer”
It’s the most wonderful time of the year          ♪♬

“This case demonstrates the dangers of the cut-throat arena of after-Christmas bargain shopping.” So began the Court of Appeals of Tennessee’s opinion in Wells v. J.C. Penny Co. (Perhaps it’s also a prescient warning—a caveat emptor as it were—as to potential jeopardies of pre-Christmas sales.) Ruth Wells scooped up ten collectible crystal figurines at Penny’s.  Employees put them behind the counter while Wells continued shopping.  When she returned, all but two of the figurines—two bears—were missing. Wells grabbed the bears, but “an unidentified female customer cursed her ... Get your g@&&#$* hands off my ƒ&¢%*#$ bears.” Wells did not let go of the bears, but on two separate occasions asked an employee to call for security and management to settle the issue of who would be allowed to purchase the bears. The employee did nothing. Wells asked the unidentified customer, “What’s your name?” The response:  “ƒ&¢% you.”  Wells: “That’s a really nice name. Do you use that every day?” The customer grabbed Wells’s wrist, causing one of the bears to fall to the floor where it met a shattering demise.  (The court observed that “after-Christmas bargain shopping had somewhat diminished the unidentified customer’s Christmas spirit.”) At some point security showed up.  And the unidentified customer—this thus literally adding insult to injury—was permitted to buy the sole remaining bear.

Mrs. Wells and husband (Raymond) sued Penny’s for, respectively, $550,000 (injuries to rotator cuff, shoulders, neck, back) and $50,000 (loss of consortium, etc.).

Penny’s successfully moved for summary judgment. Mrs. & Mr. Wells appealed. Lost. The court explained that while a business ordinarily has no duty to protect customers from the criminal acts of third parties on its premises, a duty arises if the business knows, or has reason to know, that criminal acts are reasonably foreseeable. However, the court rejected Mrs. Wells’ argument that her requests for security or management showed foreseeability. Said the court, The reason for her requests “was not ... fear for her safety, but ...  her desire to have the manager or security guard decide ... [who] would be permitted to purchase the ... bears. ... Wells’s actions do not indicate that she feared a physical assault.” When Wells’s request for the unidentified customer’s name spawned “yet another expletive, Wells’s response was cavalier, and she still did not let go of the figurines and leave the vicinity. Wells’s actions ... indicate that neither she nor the Penney’s employees foresaw that the customer would assault Wells.”

Happy Christmas to all and to all a good night.

"Sometimes a cigar is just a cigar."

When asked how they destroy seized Cuban cigars, U.S. Customs Agents (so says the Internet) replied: “We burn them –” (comedic pause) “– one at a time.”  So, here’s another online Cigar (tall?) Tale.  A Charlotte lawyer insured a box of expensive cigars against (inter alia) fire.  Within a month he’d smoked the whole lot.  He filed a claim asserting that the cigars were “lost in a series of small fires.”  Claim denied.  Lawyer sued.  Judge awarded Lawyer $15,000 because Insurer had never defined “unacceptable fire.”  Insurer paid.  But (here’s one for you lawyer haters) justice did prevail: Lawyer fined $1,000 for each of 24 counts of arson and insurance fraud and sentenced to 24 months in jail. 


SPENCER LAW FIRM
Sausalito, California
877-999-5200
johnspencer@spenlaw.com

READ THE #$%*&+@ STATUTE!

Plaintiff was injured in a car accident.  Jury awarded her $77,986 in compensatory damages and $1,400 in punitive damages.  Post trial defendant filed a memorandum of costs—“Hey, even though I lost I get my costs!”—asserting that plaintiff had failed to best defendant’s Code of Civil Procedure §998 offer of $100,000.49.  (“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment ... plaintiff shall ... pay the defendant’s costs ...”  CCP §998(c)(1)) 

Plaintiff moved to tax [vitiate] defendant’s cost bill because (as defendant conceded) “his offer did not comply with all the requirements of section 998.”  It seems defendant had failed to include the provision (called for by CCP §998(b)) “that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”  Defendant contended that his “omission was harmless and should not have been interpreted to invalidate the offer ...”; and that to conclude otherwise would “elevate form over substance, thereby defeating the legislative intent behind section 998 ... [which is] to encourage early settlement of lawsuits ... by punishing a party who fails to accept a reasonable offer from the other party.”  (internal quotations and citations omitted)  
           
The appellate court noted—undoubtedly much to defendant’s deep chagrin—“[I]f the language of the statute is clear and unambiguous, appellate courts must follow the plain meaning of the statute ...”  And: “The plain language of the statute [herein: CCP §998] requires all offers to contain an acceptance provision.”  

The appellate court affirmed the trial court’s order granting plaintiff’s motion to tax: no costs for defendant.  

(Perez v. Torres (2012) 206 Cal.App.4th 418)

John S. Spencer
SPENCER LAW FIRM
Sausalito CA 94966
877-999-5200

SO, TWO LAWYERS WALK INTO A BAR ...

SO, TWO LAWYERS WALK INTO A BAR ...

... can’t recall a good story or punch line to complete this prologue.  Lawyer jokes aren’t memorable.  Even the best (relative term) of them are just nasty and churlish and (worse) not all that funny.  Perhaps lawyers and humor don’t mix.  The “Guide for Counsel in Cases to Be Argued before the Supreme Court of the United States” admonishes putative oral arguers that, “Attempts at humor usually fall flat.”  Which doesn’t prevent the Justices from throwing caution to the wind during oral arguments and behaving as if they were auditioning for a gig on Saturday Night Live.  (“It would be argument for a week, laughter for a month, and a good jest for ever.”  Henry IV, Part I Wm. Shakespeare)

One Ryan A. Malphurs, Ph.D. analyzed transcripts (which noted laughter in the court at various points) and audio files (where he heard laughter) from the U.S. Supreme Court 2006-2007 term’s oral arguments to explore “the communicative function of laughter in Supreme Court oral arguments.”  (You might ask: “Why?”; or, perhaps, just take comfort in the fact that your job doesn’t suck as much as his did.)  Here are some (ehh) humorous excerpts from his “People Did Sometimes Stick Things in my Underwear” The Function of Laughter at the U.S. Supreme Court (Communication Law Review Vol. 10, Issue 2): the title comes from a bit of hilarity provided by Justice Breyer discussing—in the context of a 4th Amendment case involving a strip search of a middle schooler suspected of concealing Ibuprofen—how he, Breyer, was teased as a boy.

Justice Breyer: “In my experience when I was 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?  And in my experience, too, people did sometimes stick things in my underwear.  [laughter noted in the transcript]  Or, not my underwear.  Whatever.  Whatever.  I was the one who did it?  I don’t know.”

Dear Reader — Stop laughing!  Take a deep breath: pull yourself together.  Keep reading please ...

Justices Kennedy and Scalia (the Court’s Martin & Lewis? or, maybe, Cheech & Chong?) were not to be denied their Moment in the Sun of Frivolity.  Malphurs reported only three instances—out of the 131 moments in which justices used laughter during the 2006-2007 term—when the justices used laughter as “an act of aggression.”  Here’s one where these comics’ rapier like wit slashed to bits the arguments of the attorney representing a student who contended that his First Amendment rights had been violated when the school principal confiscated the student’s banner—which read: “BONG HITS 4 JESUS”—and suspended him.  (In a 5 to 4 ruling the Court went on to hold that the First Amendment does not prevent suppression, in a school setting, of student speech that is reasonably viewed as promoting illegal drug use.)

Justice Kennedy: “So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many of you here are truants ... I can’t discipline you because you’re a truant, you can go ahead and throw the bottle.”  [laughter noted]

Attorney: “No I don’t think [the principal] ... needs to do that in the heat of the moment.  But later on once she’s discovered the true facts, then at that point I think she loses a basis for punishing him as a student if was not there as a student.”

Justice Scalia: “Because you’re both a truant and a disrupter, you get off.  [laughter]  Had you been just a disrupter, tough luck.”  [more laughter]

        Maybe you had to be there —  A jest’s prosperity lies in the ear
                                                          Of him that hears it, never in the tongue /
                                                          Of him that makes it
                                                                                              (Love’s Labour’s Lost Wm. Shakespeare)

Malphurs noted that while the justices “aggressively ridiculed” this particular attorney, “not a single advocate” during the studied time period “aggressively ridiculed the justices” adding (probably unnecessarily) “most likely due to the danger of making light of a Supreme Court Justice.”  (Ya think!?)

But not all judicial personages have been able to avoid laughter inducing  verbal attack.  As a young barrister, F.E. Smith, First Earl of Birkenhead, and one of Winston S. Churchill’s best buddies, was defending a tramway company being sued by a boy who had been run over by a tram and (as alleged) rendered blind.  Churchill reported, in his Great Contemporaries, the following courtroom dialogue —

Judge: “Poor boy, poor boy!  Blind!  Put him on a chair so that the jury can see him.”

Smith (taking umbrage): “Perhaps your honor would like to have the boy passed around the jury box.”

“That is a most improper remark.”

“It was provoked by a most improper suggestion.”

Judge (after a bit of ponderation): “Mr. Smith have you ever heard of a saying by Bacon—the great Bacon—that youth and discretion are ill-wedded companions?”

Smith: “Yes, I have.  And have you ever heard of a saying of Bacon—the great Bacon—that a much-talking judge is like an ill-tuned cymbal?”

“You are an extremely offensive young man!”

“As a matter of fact we both are; but I am trying to be and you can’t help it.”

                                                                                                         * * * * *

                SO, TWO JUDGES WALK INTO A BAR ...

John S. Spencer
SPENCER LAW FIRM
Litigation & Mediation
Sausalito CA
877-999-5200
johnspencer@spenlaw.com

CONBOBULATED

COMBOBULATED?

We can (probably) all agree that DISGRUNTLED is an authentic word, an adjective, meaning: displeased and discontented; sulky; peevish. 

But what about GRUNTLED as the obverse?
           
Perhaps not a pressing legal question but one which reared its linguistic head during oral argument at the U.S. Supreme Court on Nov. 3, 2009 in the case of Hemi Group, LLC et al., Petitioners,  v. City of New York (which involved cigarette taxation: lots of money at stake).  Using our time machine let’s pop back to that late Fall day and listen in as Randolph H. Barnhouse, Petitioners’ attorney, begins his oral argument —

    Thank you, Mr. Chief Justice, and may it please the Court:

    The city of New York alleges that it only collected 40 cents on the dollar and it wants to collect 300 cents on the dollar from my clients but the city lacks standing to sue because the city’s claim that it lost the sovereign opportunity to tax is not an injury to business, and it’s not an injury to property.

    (ellipses and brackets not included)

Chief Justice Roberts immediately poses a question — 

    Q. Why – why isn’t the property money?

    Attorney Barnhouse responds,

    A.     Money in the bank would be property, Mr. Chief Justice Roberts, but an opportunity to collect money is an inchoate [i.e., not fully developed] interest, and so it would not be property at that point.  It would be the opportunity to collect it.
   
    Q.     Well, isn’t a lawsuit with a potential recovery regarded as property of an individual?

    A.     The lawsuit would be – the lawsuit itself would be property, but the – but any recovery would not be property until choate, until there was an amount of money assigned to it.   

    Justice Scalia chimes in,

        There is no such adjective – I know we have used it, but there is no such adjective as “choate.”  There is “inchoate,” but the opposite of “inchoate” is not “choate.” ... It’s like “gruntled.”

Was Justice Scalia’s scolding of Mr. Barnhouse—albeit done in a jesting fashion: laughter in the courtroom noted in the transcript—was the scolding well founded? 

The (on line) Urban Dictionary unabashedly defines gruntled as: “The opposite of disgruntled.  To be happy.”  And P.G. Wodehouse, in his 1938 Code of the Woosters, penned: “If not actually disgruntled, he was far from being gruntled.”  (To add some obfuscation to the mix, the Oxford English Dictionary defines gruntle as: “to grumble, murmur, complain”; and references Robert Bruce sermonizing in 1589: “It becomes us not to have our hearts here gruntling upon this earth.”)

However, there doesn’t seem to be similarly strong support for choate as the opposite of inchoate, although use of choate in that context is not without precedent.  As far back as 1896 Oliver Wendell Holmes lamented its inclusion in a California court opinion—he felt it was a legal barbarism.  And further atrocities followed.  The court in Quail v. Municipal Court (1985) 171 Cal.App3d 572 opined: “But it did render choate another part of Blackstone’s and Marshall’s definition of an Englishman’s in forma pauperis right.”; and from Boyle v. Hawkings (1969) 71 Cal.2d 229: “Plaintiff’s right ... to interest became “choate on the date of judgment ...”

A parting thought — If gruntled is a word so shouldn’t sheveled be?

John S. Spencer
SPENCER LAW FIRM
Litigation & Mediation
Sausalito CA
877-999-5200