May It Please The Court

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There are 2034 Journal Items on 255 page(s) and you are on page number 119

Defective Design And Improper Warnings May Bypass Assumption Of The Risk Defenses

Sports injuries are usually barred by the doctrine of assumption of the risk.  In other words, if you elect to play, you have to expect to get hurt.  There are a number of exceptions to that rule, and one encountered most frequently in skiing accidents is "increasing the risk," which applies if the risk of the sport is increased by someone else's action.  Typically, in a skiing accident, it could be something like mis-labeling a ski run as a beginner run, when in fact it's a double-or triple-black diamond run (scroll down to the circle photo), for example.

California courts have now identified another type of end-run around the assumption of the risk doctrine:  defective design and improper warnings in strict liability actions.  The case of the day involves a personal watercraft, more commonly known as a jet ski.

Unfortunately, Susan Ford got on one as a passenger for the first time and suffered severe injuries when she fell off; the court delicately describes her injuries as "severe orifice injuries."  As she fell off the back of the jet ski, the water jet propeller pushed water into her, and she was found floating in a pool of blood.  She now claims that the manufacturer of the jet ski improperly designed the watercraft.  She argued that if it had provided a seatback, strap or grips to hold onto, then she would likely not have been thrown off the back and hurt.  Her suit also claims that the manufacturer also did not provide appropriate warnings.  The manufacturer did advise riders to wear a wetsuit to avoid such injuries, both in the manual (which as a guest, Susan didn't see) and on the jet ski itself, which Susan apparently didn't read.

The court appears to be most troubled by the manufacturer's (Polaris) failure to provide alternatives to hold on.  One telling point in the court's opinion was that the nature of jet skiing is to hold on, and presumably, therefore, by adding additional holds to grip, the manufacturer was acting consistent with the sport.  It likely didn't help that one of the Polaris employees testified that the engineering department "got too busy" to design such grips. 

Susan's rare accident was unfortunate, but who do you think should bear the risk?  Susan, the manufacturer, the driver of the jet ski or the owner of the jet ski?

Printer friendly page Posted by J. Craig Williams on Sunday, May 21, 2006 at 15:55 Comments (0) |

Crime-buster Bratton Blogs The LAPD From La-La Land

Even though I live behind the Orange Curtain, I travel up to LA for court and occasional weekend entertainment.  Now, however, thanks to Chief Bratton, I can enjoy LA from my chair in the blogosphere.  That's right, the LAPD has a week-old blog, which sports a really creative name:  "The Official Blog of the Los Angeles Police Department," especially when you compare it to the name of the LAPD's website:  "The Official Website of the Los Angeles Police Department."

Beyond lightening up a bit on the name, the blog has this ring of reality blogging - part press release, part cheerleader, part crimesolver and part informational.  Chief Bratton (I wonder if he really writes it or whether it's the product of the LAPD's press department) is not too bad of a writer.  The post in the last link has drawn 72 comments at the time of this post, but the blog itself needs some technical help.  Permalinks and a few other tidbits aren't quite operating properly, and hyperlinks are about as scarce as a policeman during an internal affairs investigation or a doughnut break.

All of that aside, it's good to see the LAPD enter the fray of blogging.  I'm not sure they're ready for it yet (the comments are moderated), but it's a fresh start for a notoriously tight-lipped bureaucratic agency.  The verdict is still out, however.  Chief Bratton's first attempts at blogging are a long way from the appeal of Lee Iaccoca.

Printer friendly page Posted by J. Craig Williams on Saturday, May 20, 2006 at 00:15 Comments (1) |

Underground Viewing Chamber Leaks Lead To Large Verdict Against Insurance Company

It took the court 67 pages to get to it, but it held Century Surety Company liable for bad faith for failure to defend and indemnify its insureds against a claim from a defective glass installation for an underground viewing chamber.  Just over $2.5 million for a $56,000 installation of glass panels in an underground stream viewing chamber.  How did it get so out of hand?

You'd have to ask the insurance company.  It issued an insurance policy naming the spouse of the insured, but when she got sued over the defective installation, the insurance company balked.  It also balked when the insured submitted the claim against the glass installer, but ultimately stepped in.  Sort of.

Sure, the beginning of the case reads like a Three Stooges episode:  everything that could go wrong for the subcontractor did go wrong.  He didn't install a sealant between the window and the frame, and got into a dispute whether the contract required it.  Then it rained, flooding the underground chamber and causing solvents to come into contact with the glass, ruining the glass, which was then rejected by the customer building the underground viewing chamber, the US Forest Service.

Then the insurance company got involved, and it went downhill, so to speak, from there.  Fiasco after fiasco led to the subcontractor's downfall, each time exacerbated by inaction or wrong action on the insurance company's part.  The saddest part of this whole situation is that the claim started in 1997, and it was resolved nine years and $2.5 million later. 

This case should become required reading for insurance company adjusters and coverage counsel.  They really wouldn't have to read past the first eighteen pages to get the picture.

Printer friendly page Posted by J. Craig Williams on Friday, May 19, 2006 at 16:25 Comments (0) |

Coast to Coast Internet Radio Tackles Immigration

Sweeping proposals to change Immigration Laws have been met with strong emotions from Americans everywhere.  In this edition of Coast to Coast, we turn to the experts to identify the problems and dissect the proposals for change. Join me and my co-host Robert Ambrogi along with our special guests, Gregory Siskind, founding partner and immigration lawyer from Siskind Susser in Memphis, Tennessee, and Monica Guizar, an Employment Policy attorney at the National Immigration Law Center in Los Angeles.  We explore one of the hottest issues of the day.


Printer friendly page Posted by J. Craig Williams on Thursday, May 18, 2006 at 17:18 Comments (0) |

Fore Is Just Etiquette, Not A Requirement

Now you know.  "Fore" is a term of etiquette, not a mandatory warning when you slice or hook one on to the next fairway.  At least on Hawai'i golf courses, that is.  Hawai'i is fairly (no pun intended) far away from the Home of Golf, at the Royal & Ancient in St. Andrews, Scotland.  There, "fore" is considered a warning, first derived from military use, according to the Rules of Golf.  As if it were as simple as just that.

How misguided the Rules are.  Apparently, the Rules have yet to run into the Hawai'i Supreme Court. 

There, Andrew Tom was playing golf on the Mililani Golf Course.  Unfortunately, like most of us, what Andrew was playing may not have exactly passed for golf.  Unfortunately, Ryan Yoneda got hit with one of Andrew's golf balls.  In the eye.  Ryan has lost vision in his eye.

He sued Andrew for failure to warn.  Failure to warn with a "fore."  Ryan believed that had Andrew yelled "fore," he would have ducked and avoided the injury.  Andrew didn't yell "fore."  According to the Hawai'i Supreme Court, "[t]he ball, however, took flight in an unintended direction. The ball hit the left side of the fairway, bounced into the rough, bounced again on the dirt area, then bounced onto the cart path, sending the ball towards the golf cart in which [Ryan] Yoneda was seated."

And with that along with some law focused on assumption of the risk, the Hawai'i Supreme Court ruled in favor of Andrew, determining that when Ryan stepped on the course, he understood that he was in harm's way, and also that Andrew had no obligation to warn Ryan of Andrew's errant ball.  The term "fore" is simply a matter of good golf etiquette, according to the Court.

Whether the justices have ever played golf is an open question.  On the other hand, maybe they understand all too well the differences between a straight drive and a hook or a slice.

Printer friendly page Posted by J. Craig Williams on Wednesday, May 17, 2006 at 00:04 Comments (1) |

Homemade Bomb And Lover's Spat Don't Mix Well

But The Beaver Dam Is OK

I couldn't make this stuff up if I tried. 

CNN Law posted a story about a 45-year old North Carolina man who had two problems:  an ex-girlfriend and a beaver dam.  Sure, some jokesters out there have already picked up on the pun, and certainly some are busily chuckling under their breath.  But believe me when I tell you it gets better.

Much better.

Our hero, Otis Cecil Wilkins, wanted to get rid of a beaver dam.  At least that was his implausible excuse, according to his public defender.  Yep, you guessed it; He's a defendant in a criminal matter.  Get ready for the facts:  Otis Cecil had threatened his ex-girlfriend, and as she drove her car into her yard, Otis Cecil tossed a homemade bomb at her car.

Did I also mention that Otis Cecil smokes? 

Unfortunately for our hero, some ash from his cigarette fell onto the fuse, which promptly started to burn.  I'm guessing here that the early fuse wasn't part of Otis Cecil's original plan.  When he tossed the homemade bomb, it immediately exploded into a fireball.

This part is where it gets better.

Otis Cecil must have been so surprised by all the commotion that after he threw the homemade bomb, he forgot to jump out of the way.  The homemade-bomb-turned-fireball rolled back toward him, which next caught his shorts on fire.

Otis Cecil, who according to CNN, "... ain't no terrorist.  It was just a little bit of black powder.  It was just a little boom thing."  This startling denial came from Otis Cecil, as recorded in a law enforcement report filed last year at the time of the incident.  He spent three weeks in the burn unit recovering.

Perhaps fortunately for the prosecutor, the ex-girlfriend became uncooperative.  I say fortunately because in the trial, I don't think the prosecutor could have kept a straight face while trying to present these facts to the jury.  In a plea bargain entered last week because of this uncooperative witness, Otis Cecil plead guilty to three counts of assault, and agreed to a 10-month sentence.

Reportedly, the beaver dam is still intact. 

Printer friendly page Posted by J. Craig Williams on Tuesday, May 16, 2006 at 01:02 Comments (0) |

Buy As Much Gas As You Want At Cheap Prices

Yes, you're tired of paying high gas prices, but it's little consolation that our European counterparts pay in excess of $7.00 per gallon.  They're used to it.  We're not.

There's seemingly no way to beat high gas prices.  Sure, there's, which tells you where the current lowest price is near your zip code, but that's just shaving something in the neighborhood of pennies from the current price.  Boycotts of Exxon Mobil haven't worked because too many people drive their cars and need gas to run them.

Alternative fuels are still a long way away, and hybrids are only a small percentage of the total number of cars on the road.  So what's the solution?

Well, you could drive on over to a First Fuel Banks gas station in St. Cloud, Minnesota.  Compared to the price for gas that I paid just today, you could save over $0.70 a gallon - about a 20% savings if you bought their gas.  And you can buy as much gas as you want at that price.  The most sold so far at any one time is $400,000.  That's a lot of gallons of gas.  The idea is to bank your savings now, and use the fuel in the future when you need it, and at a savings over future prices. 

You become a futures trader in the most real way possible. 

The only problem:  you're here, and they're there.  Even saving 70 cents a gallon, that's a long way to drive just to fuel up.  If you don't live near St. Cloud, your only hope is that your local gas stations pick up on this idea and start the same program.  If you want to put your favorite gas station owner in touch with First Fuel Banks, here's how:  First Fuel Banks Main Office, 625 SE Lincoln Avenue, St. Cloud, MN 56304, telephone number 320-252-2265, fax number 320-252-0653, email:

And no, MIPTC didn't get any gas for this plug.  Just you as a satisfied reader. 

Printer friendly page Posted by J. Craig Williams on Monday, May 15, 2006 at 14:09 Comments (0) |

Cleaning Up Your Computer's Environment: Attorneys To The Rescue

Spyware, adware, cookies and malware are all new names that have sprung up to describe what happens when websites, hackers and others deposit information or programs on your computer without your consent.  How do you rid yourself of these maladies?  Apart from the software designed to combat them, there's a new sheriff in town.

Perhaps not so new.  It's the law of trespass.  As a law, it's been around since fences were invented.  Now, it's being applied to computers in a most unusual way.  You're probably most familiar with the law of trespass based on signs you've seen posted on property and real estate.  The law is also applied to personal property, such as the theft of personal property, and attorneys are arguing that is exactly what happens to your hard drive and computer when these software maladies attack it.  Courts so far have upheld the idea, although the cases have not been addressed in the appellate system.

It's probably too early to tell whether the idea will grab hold, but attorneys are advancing a number of other legal theories in case trespass doesn't hold, such as statutory remedies, including the Computer Fraud & Abuse Act and the Electronic Communications Privacy Act.  The common law theories, of which trespass is one, also include negligence, tampering and invasion of privacy. 

The theories abound, but the most common of all is:  "Where there is a wrong, there is a remedy."  I don't know about your computer, but for mine, the remedy can't come soon enough.  If I see one more pop-up ad ...

Printer friendly page Posted by J. Craig Williams on Sunday, May 14, 2006 at 14:38 Comments (0) |

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