NOTES FROM A LEXIOPHILE

"So all my best is dressing old words new
"Spending again what is already spent ..."
                                                           (Wm. Shakespeare, Sonnet 76)   

Words—gibbered or written—are an attorney’s stock in trade.  And there are some fine sounding legal phrases which can be trotted out.  Duos exempoator: Quicquid est contra normam recti est injuria. (Whatever is against the rule of right is a wrong.); Res est misera ubi jus est vagum et incertum. (It is a wretched state of things when law is vague and mutable.)  But as to attorneys themselves seldom is heard an encouraging word.  You’re more likely to hear argy-bargy (heated argument) and bumfs (dull, official notices or memoranda); or adjectives such as: sesquipedalian (embracement of polysyllabia); or erinaceous (resembling a hedgehog: Latin derivation, English usage since the 18th century) or inaniloquent (inanely loquacious) or incompt (unkempt, unpolished).  None of which is to say that attorneys might not be adept at eutrapely (pleasantness in conversation: some claim this is one of Aristotle’s seven moral virtues) or skilled at ensorcelling others (viz., bewitching, enchanting or captivating others: from Middle French ensorceler: see sorcery)—particularly jurors whom they might be fleeching (coaxing or wheedling especially by flattery) or sometimes judges before whom they might even stoop to uttering a flagitation (urgent importunity).  But enough of this lexiophilic palaver.  It’s time for me to absquatulate.  Bye!

John S. Spencer

SPENCER LAW FIRM

Sausalito CA 94966

877-999-5200

“But I’m not so think as you drunk I am.” (J.C. Squire)

I'd like to say I have this on good authority but I have it only on Internet authority.  Still, it bears an innate believability and came replete with a facsimile of a motion whereby a Colorado attorney sought an extension to respond to a legal proceeding on the grounds that she “had almost completed ... [her] response on the due date ... but suspended her work to take a friend out to dinner for his birthday.  When she came back, she was unable to finish it, due to the wine.  :-) ”  (Yes, the little sideways happy day face thingy was included in the pleading.)  “WHEREFORE ...” she concluded “... inebriation constituting excusable neglect ... the court should grant the ... extension, as it is in the interest of justice.”  Apparently (again, my authority is the Internet) the court—the phrase sober as a judge comes to mind—granted the extension.  (However, please note that the attorney in a reported (purported) email exchange with the original reporters of this matter claims that she withdrew the motion and filed another one.) 

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