Sound Of Children Playing Outside Leads To An Insane Lawsuit

PlayhouseJudges across the United States have heard some pretty ridiculous lawsuits between neighbors over the years, but the latest legal dispute out of Plano, Texas may set a new low for neighborly relations.

Andrew and Kelly Counts are being sued by their next-door neighbors because they don’t like the sound the Counts’ children make when they’re playing outside. It’s not as if the kids are lighting firecrackers or bouncing balls off their house, either. According to one report, the neighbors simply sued the Counts for upsetting what they call their “tranquil quality of life.”

The offensive sounds are basically cries of excitement from the kids as they use a playhouse in their back yard. It’s important to note that the Counts received the permission of the city and their neighborhood association for placing the playhouse in the yard. In other words, they played by the rules and their neighbors simply don’t like it.

It’s also relevant to this story to note that the Counts homeschool their children, so the kids play outside during the day more than children who go to a traditional school. This is also apparently a source of aggravation for the neighbors. According to the report, “the lawsuit blamed the Counts for allowing their children to play outside when ‘most children are in regular schools.’” The case will certainly be watched closely by home school advocates.

People with disputes like this should always seek alternatives to litigation before turning to the courts, but even I wouldn’t condone the first remedy these thin-skinned neighbors tried before suing the Counts. After they became upset with the sound of the kids playing, they reacted by blaring loud rap music with profanity-laced lyrics when the kids used their playhouse. Talk about hitting a sour note!

It sounds like a certain set of neighbors need a lesson in how to settle disputes like adults. If that doesn’t work, maybe the judge can give them a time out!

Originally published on the news site EpicTimes.

Federal Judge Deals Blow To PETA’s Legal Monkey Business

MONKEYSELFIE

Photo used with permission. Credit: ©Wildlife Personalities/David J Slater

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wildlife photographer David Slater has braved some of the most inhospitable jungles around the world and has even been picked at by wild monkeys. However, nothing this British adventurer has done in the wild could have prepared him for the experience of being sued in the untamed American courts by an animal rights group, which is exactly what happened last year.

First, some background. In 2011, Mr. Slater was on the Indonesian island of Sulawesi photographing a species of monkeys called macaque. He was attracted to the animals because of what he describes as their “very human-like characteristics” and because they are very inquisitive and clever. Some of his pictures of them can be viewed on his website. Their inquisitiveness would ultimately attract the monkeys worldwide fame and, unfortunately, make Slater a target of a ridiculous lawsuit.

One day, while following a group of macaque, Slater put his camera on a tripod with a wide-angle lens and configured the settings such as predictive autofocus to give him a chance of a facial close up. As Mr. Slater explains, the monkeys seemed to love the shutter noise, and soon, they were grinning, grimacing and baring their teeth at themselves in the reflection of the large glassy lens.

Eventually, one of the monkeys pressed the shutter button while looking into the lens and captured a human-like smile that would charm everyone who saw it. The image went viral. In the weeks and months that followed, it did exactly what Slater had hoped it would do while he was trudging around the uncomfortable rainforest: raise awareness of the plight of this endangered species and provide him with some much-needed income. Slater holds a copyright on the photo that is valid in both the United States and the United Kingdom, and this is important for reasons mentioned below.

The photo eventually caught the attention of the group, the People for the Ethical Treatment of Animals, which went bananas and sued Slater. PETA claimed that the monkey in the photo, not Slater, owned the copyright to the image and should get any money generated by it.

However, Slater’s attorney, Andrew Dhuey, pointed out in his motion to dismiss the case that PETA’s “factual assertions regarding the creation of the famous Monkey Selfie Photograph” were erroneous. The image was captured only after Slater had worked meticulously to set it up.

While Slater’s work in making the photo possible is certainly important, frivolous lawsuits like this can sometimes be dismissed more quickly for other technical reasons. Therefore, his attorney argued that the monkey on whose behalf PETA was suing didn’t have legal standing. In short, he maintained that since Congress has not given non-human animals the right to sue for copyright infringement, the case should be tossed.

On January 6, federal judge William Orrick agreed and issued a proposed order granting the dismissal of the case. Case closed.

Well, maybe. NPR has reported that PETA is planning to keep fighting. And it has deep pockets.

While the hilarious image of the monkey in question has received worldwide attention, none of the reports on the judge’s action in this lawsuit have mentioned the fact that the photographer is British. This is relevant to the story because the lawsuit was filed in the United States, not Great Britain.

This kind of monkey business would never be tolerated in UK courts, or any other courts around the world for that matter. Unlike the United States, the UK has a “loser pays” legal system that would have required PETA to pay for Mr. Slater’s legal expenses if (when) it lost.

While anyone with common sense might look at this case and say PETA is foolish for filing it, the sad fact is that even PETA isn’t foolish enough to risk filing an outrageous lawsuit like this anywhere but the United States. And that should make every justice-loving American cringe.

Originally published on EpicTimes.com

♬ “It’s the Most Warningful Time of the Year” ♪

Christmas Tree warningIn 1963, one of America’s favorite crooners, Andy Williams, released a Christmas song entitled “It’s the Most Wonderful Time of the Year” that would become one of the standards of the holiday season. Little did he know that by the end of the century, the holiday season would also become the most “warningful” time of the year, too.

How so? Most of the gifts Americans will give to each other during the holidays are plastered with warning labels. In fact, there are often so many warnings that they can’t all fit on the product, so something as simple to use as a fountain pen may come with an “instruction manual” filled with warnings. And many of those labels warn us about things that are such common sense they’re downright wacky.

One of my favorites is a label found on the most popular child’s scooter sold in America. If you look closely, right on the handle bar between the grips it says, “Caution, this product moves when used.” Isn’t that the whole point of a scooter?

There is also a snow sled that warns, “Beware: sled may develop high speed under certain snow conditions.” Now, if you give your child a sled that doesn’t develop high speed when it’s used, you know it probably won’t be used much longer.

And then there is the label that was found on a live Christmas tree. It warned: “Not intended for human consumption!” What?! We can all understand the need for a warning like that on some fruitcakes, but on a live Christmas tree?

Consumer products are now loaded with warnings because product makers know that if they don’t provide them, even if the warning is about something that is common sense, they can be sued by someone who may be injured while using their product. Everyone knows that a scooter will move when a child uses it, but in America, companies are being sued even when their product wasn’t defective.

Virtually all lawsuits filed nowadays over injuries involving a consumer product have a common denominator: they claim the manufacturer “failed to warn” the consumer about a potential danger. So, even if the danger is obvious, the warning is now provided.

What many people don’t know is that these common sense, obvious warnings aren’t nearly as common in other parts of the world. As the host of the annual Wacky Warning Label Contest, I have done scores of radio and TV interviews with reporters in Europe and Asia over the years, and the most common question I get is, “Why don’t we see warning labels like this in our country?”

The answer is that the United States is the most lawsuit-happy society on earth, and these common sense warnings are put on our products to avoid lawsuits. The number of tort lawsuits in America dwarfs the number of tort lawsuits filed in any other country in the world when taken as a percentage of the national economic output. In the United States, the amount of the Gross Domestic Product that goes to tort costs is 2.2%. That’s twice what it is in Germany (1.1%) and nearly three times what it is in Japan (.8%). The United Kingdom and France spend even less on tort costs than Japan.

While there is certainly a place for legitimate lawsuits, excessive litigation has become such an everyday part of life in America that many people don’t notice it anymore. And it’s why the holiday season, in addition to being the most wonderful time of the year, is also the most warningful time of the year.

If judges and lawmakers begin telling plaintiff lawyers with regularity that personal responsibility and common sense still have a place in America’s courts, product makers won’t need to keep putting common sense warnings on their products. Until that happens, we’ll continue seeing labels like the one found on a pair of shin pads used by bikers that warns: “Shin pads cannot protect any part of the body they do not cover.”

If you find a hilarious, common sense warning on one of the gifts you receive, send it to us for a chance to win the $1,000 grand prize in our Wacky Warning Label Contest.

Fear, Not Facts, Too Often Guides Medicine

Doctor with noteDuring the busy holiday season, the last thing anyone wants to have to do is take time to visit a doctor’s office when they’re sick. However, if it becomes necessary, and you find yourself sitting in a waiting room thinking about all of the other things you have to do, be thankful there’s not one more thing you’re thinking about: being sued.

Why? Because that’s often what the doctor you’re about to see is thinking about. Or, at least, it’s one more thing in the back of her mind dictating many of the decisions she will make throughout the day. And it’s having a major impact on medicine in America today.

That’s what many physicians will tell you if you can get them to talk about practicing medicine in the most litigious society on earth. Recently, a cardiologist who also teaches at one of the top medical schools in the country took time to write about this troubling reality.

According to Dr. Kevin R. Campbell, a clinician educator and assistant professor of medicine at the University of North Carolina at Chapel Hill, the type of medicine you receive is too often being dictated by fear rather than facts because doctors often find themselves looking over their shoulder for the next lawsuit.

In a recent op-ed, he points out that:

“Defensive medicine, defined as medical decision-making and care provided solely for the purpose of avoiding malpractice litigation, accounts for a significant proportion of healthcare costs today. While striving to provide excellent care for their patients, physicians are faced with the harsh realities of our litigious society.”

In medical school, he says, physicians are taught to think like Sherlock Holmes. When a patient presents with a set of symptoms and physical findings, doctors develop a differential diagnosis (a list of possible causes) and then work to eliminate possibilities through logic and objective data. When defensive medicine is practiced, however, “this entire system is disturbed because physicians are not being led by logic and objective data. Instead, they are trying to avoid a malpractice claim.”

Practicing medicine isn’t like this for physicians everywhere, however. It’s certainly not like this in Europe. According to a 2011 survey by one of the leading survey research companies in the U.S., RAND, 99% of American physicians in high-risk specialties will face a lawsuit at least once in their careers while in Europe, that number is only 20%. Here, being sued is virtually a given. There, if you’re sued, you’re in a small minority of doctors.

Maybe that’s why the highly respected British Medical Journal decided to publish a study conducted in the United States that looks at the relationship between physician spending and risk for malpractice claims. As doctor Campbell reveals, after “hospital data for more than 24,000 physicians were sampled; the researchers found that the higher the resource use, the lower the risk for malpractice claims. In a nutshell, that means doctors who ordered more tests were significantly less likely to be sued for malpractice.”

There’s no evidence that doctors in the US are any worse than doctors in Europe. It’s our legal system that allows this. And when doctors are put in the position of having to order more tests to cover themselves in case they’re sued, the cost of health care we all pay soars.

The head of one of our nation’s largest medical schools once told me that the most expensive tool a physician uses today is not something big, like an X-ray machine, a CT scanner or a surgical robot. Rather, it’s something very simple. It’s the pen he or she uses to order tests that aren’t necessary.

Originally published on EpicTimes.com

Giving Thanks For Alternatives To Traditional Litigation

Tribal CourtAs Americans celebrate Thanksgiving this week, children in schools across the nation are learning about how the first Pilgrims relied on Native Americans to survive their first year. That’s an important part of our history, but there is still a lot that we can learn from Native American tribes today, including how to use courts to resolve conflicts.

Did you know that there are about one hundred and fifty tribal courts across the United States? Unlike state and federal courts that use an adversarial system to resolve disputes, many tribal courts use a different approach.

The National Institute of Justice, an agency of the US Department of Justice, points out that while some indigenous justice systems are based on the American paradigm for courts, many others use a holistic philosophy that focuses not just on punishment and providing victims with payment, but on bringing harmony and peace to the community.

According to the NIJ website:

“The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, with everyone focused on the same center. The center of the circle represents the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community. The continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships.”

Sounds a lot more constructive than traditional litigation, for sure. Because of its many benefits, US courts have adopted some of this philosophy in recent years and now actively promote alternatives to litigation like mediation and arbitration. Not only is alternative dispute resolution usually much less expensive, aggravating and time-consuming than litigation, it has a tremendous success rate.

It’s so successful, in fact, that state and local governments around the country fund mediation programs and strongly encourage courts to utilize them. Unfortunately, many people still don’t even know these programs exist and often unnecessarily spend tens of thousands of dollars on lawyers when their problem could be better resolved in mediation or arbitration.

One big reason for this is likely that we’re bombarded with ads by personal injury lawyers and rarely hear anything about mediation or arbitration in the media. If we counted how many ads there are on TV for personal injury lawyers compared to ads for mediation services, I’d guess there would be about 100,000 ads for personal injury firms for every one ad there is for mediation, and that’s probably being conservative.

Mediation and arbitration aren’t going to work in all disputes, but this Thanksgiving, it’s important to know that alternative dispute resolution is available, and it often leaves people thankful they ditched their lawsuit and tried something new. For more information, one great source is the National Association for Community Mediation.

“Psychic” Sues Governor Of New York For Reward Money

PredictionA self-described psychic from Texas is suing the State of New York and Governor Andrew Cuomo for reward money Cuomo offered during a manhunt for two inmates who escaped from a prison in upstate New York last summer. This is a bizarre case that could be even more bizarre if information I discovered while doing research on this case turns out to be more than a coincidence.

On June 7, Governor Cuomo announced on Twitter that a $100,000 reward was being offered by the state for information leading to the arrest of escaped inmates Richard Matt and David Sweat. The manhunt made national news and caught the attention of an Eric Drake in Texas.

Drake says he’s a psychic and says he called the governor’s office after hearing about the reward to provide information that he claims helped locate the men. He doesn’t say with whom he spoke or even know if anyone connected with the investigation ever received the information he provided, but considering the “clues” he professes to have provided, it probably wouldn’t help his case anyway.

In a 31-page lawsuit, he could only point to vague opinions he gave that day such as “The two inmates separated for some reason” and “the police were walking right by or over them were they were hiding.” These two general statements eventually turned out to be true, but they are hardly the kind of leads on which investigators could act.

Most of Drake’s rambling lawsuit is devoted to offering “evidence” of his supposed psychic powers. In an effort to prove he’s legit, he says he foresaw his mother’s death, predicted the death of President Obama’s grandmother just before election night 2008, and gave Washington, D.C. police information that would have helped them catch the snipers who killed 17 people in 2002 if they just hadn’t ignored him.

Now, for the bizarre coincidence. While looking into this case, I found out that an Eric Drake from Texas has been named a vexatious litigant on more than one occasion. A vexatious litigant is a legal term that describes someone who has abused the justice system by repeatedly filing frivolous lawsuits and who has had their right to sue again taken away from them by a judge. This phenomenon may come as a surprise to anyone who follows the US legal system, but it actually does exist. Too bad it’s not used more often.

Anyway, authorities in Texas haven’t yet confirmed whether the Eric Drake who has sued Cuomo is the same Eric Drake mentioned here and here as a vexatious litigant, but it seems like an amazing coincidence. It’s just my opinion, but after reading the lawsuit against the governor of New York by Eric Drake, it looks just like the strange cases filed by the vexatious litigant in Texas, who also represented himself.

I’m not usually one to make predictions, but there’s one thing I can foretell with certainty in this case: the taxpayers of New York are going to have to pay to defend this ridiculous lawsuit. A judge there has allowed the case to proceed without the usual filing fee. Why?Because, says the judge, “the plaintiff has only about eighty dollars in his bank account.”

Advertising By Personal Injury Lawyers Skyrockets

AmbulanceChasersWe’ve all seen them more times than we can count…television advertisements by personal injury lawyers. Lately, I’ve been wondering if it’s just my imagination, or if there are more of those ads on TV than usual. Well, a new study has just confirmed; it’s not my imagination.

According to a new report published by the US Chamber Institute for Legal Reform, the amount of money being spent on television ads by lawyers is growing faster than the amount of money spent on TV ads by any other industry in America.

The report, Trial Lawyer Marketing: Broadcast, Search and Social Strategies, estimates that in 2015 alone, TV ads by lawyers will total $892 million. In fact, their television ad spending grew six times faster than all other television ad spending during this period. The total for this year is 68% more than they spent in 2008.

Lisa Rickard, president of ILR, says:

“The plaintiffs’ bar orchestrates some of the most sophisticated and relentless marketing campaigns in our society.”

But it’s not just TV ads on which personal injury lawyers are spending their money. They’re also aggressively seeking clients on the Internet, social media and mobile devices. The report found that twenty-three of the top twenty-five Google key words linking ads to user searches are for personal injury law firms.

This spending reflects a major change in philosophy for lawyers. There was a time when they felt that the idea of buying advertising to promote their services was unseemly.

Those days are obviously long gone. Considering how often the American public is exposed to messages promoting litigation as the only option for resolving disputes, law schools and bar associations would do well to remember what Abraham Lincoln advised his fellow lawyers many years ago:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.”

That may be a novel idea, but Lincoln’s advice is just as good today as it was when he was practicing law.

Lack Of Flesh-Sensing Technology On Table Saw Leads To Money-Sensing Lawsuits

Table SawIt probably wouldn’t be too much of a stretch to say that one the most amazing inventions in the power tool industry over the past 20 years is a table saw that can stop the blade virtually instantly when it comes into contact with skin. It’s an incredible product, but unfortunately, it has spawned numerous personal injury lawsuits, too. Here’s the story.

Using a patented braking system, the flesh-sensing technology can stop a spinning blade when it comes into contact with skin so quickly that it leaves a user with a minor cut instead of a lost finger. It was invented in 1999, but it’s still hard to find them in stores. One big reason is a fear of lawsuits. Many retailers are worried that if the blade doesn’t stop every time and someone is injured, they’ll be sued. In today’s litigious society, this is a constant and very real fear.

With thousands of the common table saws still being used, there are many people still being injured. One of those people is Victor Ingram.

According to an article in the legal publication, the Cook County Record, Ingram claims to have suffered permanent injuries after his fingers came in contact with the blade of a Sears Craftsman table saw. Even though the saw worked exactly as advertised and was safe when used properly, Ingram’s lawyer claimed the saw was “defectively designed” simply because it didn’t include flesh-sensing technology.

The lawsuit is still pending, but it’s likely that Ingram’s lawyer knows about other similar lawsuits, including one by a Massachusetts man who won $1.5 million. In that case, he was injured after removing the blade guard on the saw, but that didn’t stop him from being able to convince a jury that the real reason for his injury was that his saw was defective because it didn’t have the saw stop technology. Read more about that at FineWoodWorking.com.

Now, I want to be clear, it would be wonderful to see this technology on every saw in America. But it would also be wonderful if all cars were as safe as Sherman tanks. The reality is, that’s just not realistic. If courts are going to require product makers to put every expensive innovation on their products that might be available, many consumers won’t be able to afford the things they need, and some products won’t come to market for fear of lawsuits.

More and more these days, judges and juries are being asked to overlook personal responsibility in order to award someone money who was injured by a product that is safe when used correctly. That is the real issue here.

Aunt Sues 8-Year-Old Nephew After Exuberant Hug Leads To Injury

courtroom:gavelOur “Let’s Be Fair” radio commentary this week is about a New York City woman who sued her eight-year-old nephew for $127,000 over an injury she says he caused. If you’ve already heard the commentary, you know she didn’t get the money. However, what we didn’t talk about was a ridiculous comment she made in court that may have helped doom her case, and that’s worth a minute here.

First, a little background. In 2011, Jennifer Connell travelled to her nephew’s house in Connecticut to celebrate his birthday. When she arrived, the boy leaped into her arms to give her a big hug. She fell to the ground and broke her wrist. For more on that part of the story, click here.

After her lawsuit made the news, there was quite a public uproar against the aunt’s decision to drag her nephew into court. One newspaper story even dubbed her the “Auntie Christ.” Ouch. So, in what could reasonably be viewed as an attempt to save her reputation, she went on some news shows to explain why she sued the little fella.

On the Today Show, she said she was told by an attorney that the best way for her to get money to pay for her medical bills would be to sue the eight-year-old. It was “a formality with an insurance claim.” She adores the child, she explained, and this was just a way to use the law to get the family’s insurance company to pay her bills.

What she probably didn’t bargain for, however, was the reality of having to face tough and even awkward questions in court. That’s where things took a serious turn for the worse.

On the stand, she claimed that the injury wrecked her social life and made it “difficult to hold my hors d’oeuvres plate” at parties. Can you imagine the reaction of the jurors when they heard that? Some legal observers think she may have lost the jury with that comment.

Then, her attorney had to argue that the eight-year-old was legally negligent. Yet as Brendan Maher, professor of law and director of the Insurance Law Center at the University of Connecticut School of Law, explains, the jury had to “decide whether when little Sean hugged her — and fractured her left arm in the process — he behaved like a reasonable 8-year-old, or an unreasonable, negligent one.” The professor went on to say that:

“When you are 8 years old and hugging your aunt, you are behaving like a reasonable 8-year-old.”

The jury evidently agreed, and it took just twenty-five minutes to throw out the case and award the woman nothing. Good for them.

My question is this: how did we get to the point where an attorney who has spent three years studying the law believes the best choice in this situation is to sue an eight-year-old boy who was trying to hug his aunt? Is this what our law schools are teaching these days? If so, I think I know an eight-year-old who could testify to what a poor decision that is.

Lawsuit Leads To Cancellation Of Popular Pumpkin Hurling Contest

Punkin Chunkin 5There probably hasn’t been more disappointment associated with a pumpkin-related event since the Great Pumpkin failed to show up for Linus and Sally in the beloved TV special, “It’s the Great Pumpkin, Charlie Brown.” I’m talking about the cancellation of the annual World Championship Punkin Chunkin competition in Delaware after nearly 30 years.

No, I’m not out of my gourd. This is a serious event that has had a major positive economic impact on the rural part of Delaware that has hosted the competition. As many as 20,000 fans have travelled to Sussex County in recent years to see pumpkins be launched in the air via slingshots, catapults and even pneumatic cannons.

The event started in 1986, and there’s an interesting history of the competition on the Punkin Chunkin website. Despite its enormous popularity – it was even featured on the Discovery Channel’s, Mythbusters, show – it was cancelled in 2014 and won’t be held this year, either.

Why? A couple of years ago, a volunteer was injured in an ATV accident and filed a lawsuit. Daniel Fair was a “spotter” and, along with others, rode an all-terrain vehicle through a field to help determine the distances competitors flung their pumpkins. The ATV he was riding flipped in 2011, and he suffered serious injuries. He filed a lawsuit seeking at least $4.5 million in damages.

The Wilmington News Journal reported that owner of the farm argued there was nothing inherently dangerous about the path Fair was riding on and that “its existence was obvious and known to all.” It estimates that “Fair, a repeat volunteer, drove an ATV over it 150 times between 2007 and 2011 without a problem, as did plenty of other people.”

The lawsuit was eventually dismissed, but the parties settled out of court. Of course, that started a domino effect, and now, affordable insurance for the event is impossible to find, and the farmer who hosted it won’t let it return to his property.

That’s a shame. In a news report that aired on ABC-affiliate, WMDT-TV, Delaware Senator Brian Pettyjohn noted that in addition to all of the economic benefits enjoyed by the local businesses who served the thousands of people who came to the event, Punkin Chunkin raised $50,000 for student scholarships and $100,000 for charities over the years.

To help save the event, Senator Pettyjohn introduced legislation to cap pain-and-suffering awards in lawsuits against non-profit charities sponsoring annual events, but as WMDT reported in a follow-up story, it was blocked in committee, and “supporters of the bill said lobbying by trial lawyers defeated the measure.”

So, is the Punkin Chunkin competition history? An article on the Delaware Surf Fishing website reports that “due to this lack of protection, Punkin Chunkin organizers are starting to look out of state” for a new location.

To stop that from happening, a grassroots movement called #savethechunk has now sprouted up on Facebook and Twitter, and leaders of the effort still hope to convince Delaware legislators to enact legislation that will allow the event to remain in that state.

This situation reminds me of a time when a group of citizens in Connecticut rallied to keep public bike trails open there after a lawsuit by an injured biker forced the trails to be closed. I discussed this on my blog at the time, and a groundswell of public support led by hardworking volunteers there eventually led to legislation being enacted that allowed the trails to re-open. If it could be done in Connecticut, it can be done in Delaware.

Hat tip to Walter Olson for alerting us to this story on Overlawyered.com.