Warning: Don’t Touch Fire

Warning: Do Not Put Hands in Fire

An age-old products liability dilemma for manufacturers:

What will a court consider, in hindsight, to be an “obvious” product danger?

Generally, under U.S. law, there is no legal duty for product makers or sellers to warn of product dangers that are obvious?  Why?  Because if they’re obvious, people will already know about them and the warning won’t accomplish anything.  Google dictionary synonyms for obvious include plain to see, evident, apparent, conspicuous, prominent, noticeable,” even unmissable.

But what’s obvious to most people may not be obvious to everyone, so why not go ahead and warn, even when it seems obvious, such as the risk of burns from sticking your hands into a fire?  The major problem here it that it looks like you have to stick your head into the fire to see the warning, which says:

Do Not Touch The Fire Or The Fire-Glass.  Severe Burning And Cutting May Occur

Whoa!  Burning AND Cutting?  That, I did not see coming until my face was already on fire.

–Thanks to the Randy Maniloff, who took this picture at a local restaurant.  Check out his Coverage Opinions site for intelligent legal commentary and humor, along with his fascinating interviews with everyone from Richard Posner and John Grisham to the guitarist-turned-lawyer from Blind Melon.

Spot the Tort: The Latest in Overloaded Vehicle Torts

A rolling tort doubling as a mobile movie theater.

“Rolling Torts” is the label Lawhaha gives to overloaded vehicles presenting dangers on America’s roads and highways.  They’re everywhere.  On the one hand, you have to admire the ingenuity and ability of people to load moving-truck sized packages onto ordinary passenger vehicles.  On the other hand, if one of these items breaks loose, especially on a highway, the risk to other drivers and passengers is severe.

(Of course, technically speaking, “Spot the Tort” entries are actually potential torts.  An actual tort doesn’t occur until the risk manifests itself in injury.)

Spot the Tort: Tortious Neighbors Make Bad Neighbors

Last week I posted the reverse of this post, Non-Tortious Neighbors Are Good Neighbors,  then I came upon this spikey little trap.  As you can see, it’s right on the sidewalk.

I’m no expert, but I think the caution tape is supposed go around the hazard, not beneath.  And could you at least point the long rusty nails in the pedestrians’ direct path down?

Spot the Tort: Non-Tortious Neighbors are Good Neighbors

Do you ever take strolls around your neighborhood and find yourself appalled by the risky, tortious conditions residents leave on the sidewalks in front of their homes.  A couple weeks ago I passed a house with a pile of boards spilling onto the sidewalk bearing long, upward-turned rusty nails sticking out.  It’s a popular neighborhood where people like to walk, including at night.  I was tempted to knock on the door and explain duties of care and premises liability, but only had an hour, so instead just moved the worst offending boards off the sidewalk.

Then a couple days ago I came upon my new favorite neighbor’s house.  This is a thing of beauty.  Look at the reasonable care they exercised to protect sidewalk travelers, so awesome it earns Tortman’s Good Neighbor of the Month Award.  I would not be shocked if a lawyer lives there.

But you might be thinking, “Oh, Tortman, you’re lost in law professor land.  You worry too much.  People don’t really step on rusty nails on the sidewalk and sue people.”  In rebuttal, I refer you to Pittenger v. The Town of Hamilton, decided by the Wisconsin Supreme Court in 1833.  The court held for a plaintiff injured by an upturned nail in a board left next to a sidewalk because “it was so near the traveled portion of the walk or street as to endanger travel thereon.”

Warning: No Manspreading

From Madrid comes a new pictorial instruction sign (not technically a “warning sign”) on public buses prohibiting “manspreading.”  I was not familiar with this term.  I thought maybe it was something like this, which I wholeheartedly agree should be banned:

But that’s not it.  It’s this:

Okay, this might be worse.  Manspreading is the practice of some men to sit with their legs spread on a bus seat, crowding people around them, particularly women, apparently.  Whether this is done to protect personal space or intentionally invade someone else’s is not clear from the article.

But as the question always arises with pictorial communicative signs, does the picture alone work to convey the intended meaning?  If you didn’t already know what manspreading was and got on a bus and saw this sign, would you know it’s saying: “Dude, don’t spread your freaking legs”?  More troubling is why people need a sign to tell them this in the first place.

Spot the Tort: “I’m Fixing a Hole Where the Rain Gets In”

… and your foot and, if it keeps growing, your dog, child, small automobile.  Walking in Memphis is always entertaining and exciting, especially if you like to spot potential torts.

In fact, according to authentic Chamber of Commerce statistics that I am making up, there are more torts on the streets and sidewalks of Memphis than annual Graceland visitors.

I came across this interesting one taking a walk in Midtown.  The hole itself is interesting, sort of like a little sinkhole, but the pole sticking out of it what grabs one’s attention, as well as the bottom of your automobile.  As always, questions abound.  Were they trying to put a stop sign in the middle of the street?

Graphic Warning: Keep Hands Out of Vendor?

Pictorial or graphic warnings are designed to be interpretable by anyone, whatever language they speak and whatever their literacy level.  The problem is it can be darn difficult to convey a product warning in a single image.

This graphic warning sticker on a soda/water machine does a good job of getting one’s attention and clearly alerts people that they should not be sticking their hand in between grinding gears.  Where those gears are remains a mystery, but I suppose it must be the exit path for the soda or water bottle.

I have a bigger issue with the verbal warning: KEEP HANDS OUT OF VENDOR.  Vendor?  That sounds more like a sexual assault warning.  The dictionary definitions of “vendor” I’ve come across are limited to persons or companies that sell products, not machines that dispense them.  How about we substitute “vending machine”?

Here, here, here and here are a few other interesting graphic or pictorial warnings for your interpretative pain or pleasure.

Wacky Warning Sign: World’s Safest Road Excavation

Thanks to my Swiss friend for this link to a variety of wacky warning signs in Switzerland.  The Swiss are very safe people, no doubt about it.  Look closely at what this monstrous, overdone barrier and warning contraption is protecting: what looks to be about a four-inch deep road excavation.

Compare the Swiss approach to how we handle this type of hazard in good old Memphis.

–Thanks to Pat Crowell.

Diabolical Slip and Fall Combo – Ice and Banana Peel

Thanks to a former student at the Florida International University College of Law for spotting this particularly diabolical slip and fall risk.  As if ice or banana peels weren’t risk enough by themselves, here we get a combo.

Slip and falls are no laughing matter.  According to OSHA, they cause 15 percent of all workplace deaths.  Here’s an excellent blog post on the subject.

Ice is a lot more dangerous than banana peels, but people do slip on banana peels, and not just in cartoons.  One of lawhaha.com’s most visited posts is this death certificate for a poor fellow in Tennessee, noting that shortly before his death, he slipped on a banana peel.

–Thanks to Armando Torres.

You Are About to Enter the Sex Worker Zone

Prostitution Sign in ZurichA Zurich friend sent along this sign in Kleinbasler in Basel, intended to alert sex workers of new “tolerance zones,” designed to impose more control over prostitution, which is legal in Switzerland.

According to this article, “there has been a high turnover of prostitutes recently, mainly from EU countries in Eastern Europe, who are increasing competition, creating price falls and making it hard to convey the rules.”

The competition led to demands by locals for more restrictions. There are currently 800 sex workers in Basel. Police made 120 arrests last year for working outside of designated zones.

Thanks to Pat Crowell.

Don’t Store Explosives Next to Your Space Heater

Don't point space heaters at cans of gasoline five inches away.

Don’t point space heaters at cans of gasoline five inches away.

Well, it’s not quite that bad, but this warning in a package of instructions for a small space heater (maybe 10 by 12 inches)seems almost as obvious.  Not faulting the manufacturer. No doubt fires, probably a lot of them, have started because consumers unwisely placed heaters next to each of the listed flammable materials, probably including cans of gasoline.

U.S. products liability law does not require warnings against “obvious dangers.” But what’s obvious?  If people regularly suffer harm using a product in a dangerous way is it because the danger isn’t obvious or because product users frequently willfully or negligently overlook known dangers.

Manufacturers often get sued for failing to warn of obvious dangers. They don’t usually lose the lawsuits, but you can’t blame them for erring on the side of over-warning.  An unintended cost is the “dilution effect” of too many warnings. When instruction booklets are dominated by warnings, which they are, many of them repeated, it’s less likely consumers will read the warnings at all, or pay attention to the ones they really need to know.

But in this case, I’d agree the danger is both obvious and should be warned about because of the foreseeable grave risk.

Smoke Detector Warning Under Fire

Smoke Detector Fire AdviceNot surprisingly, the product warnings accompanying smoke detectors are extensive.  Smoke detector manufacturers have been held liable in lawsuits when the detector failed to work properly and harm resulted to residents.  (This short article on a law firm website provides a few details.)

I bought a replacement smoke detector last week at Home Depot and, as always, enjoyed reading the product warnings and instructions.

They provided a lot of good advice, but surely the first item of “WHAT TO DO WHEN THE ALARM SOUNDS” could have been worded better:

Alert small children in the home.

Maybe I’m quibbling, but I have three issues with this instruction.

First, the word “Alert” seems too unemphatic.  “Hey kids, the house is on fire.  Just wanted to let you know.”

Second, why alert only small children?  Don’t all children deserve to be alerted that the house may be on fire?

Third, why limit the alerting to children at all?  I picture the homeowner whispering: “Kids, the house is on fire.  Shhh.  Don’t wake Grandma.”

I suggest the following substitute:


• Scream “Everyone run for your lives!”

Just kidding.  Here’s my free, serious expert products liability/linguistics legal suggestion:

Immediately inform all persons in the house.

Warning: Always Read Fine Print

Crafted-to-Remove-GlutenGrains such as barley and wheat used to make beer contain gluten (although gluten-free beer can be made from grains such as sorghum, buckwheat, rice, and millet).

Can gluten be removed from traditional beer grains?  During the middle of our products liability coverage in first-year Torts, a student sent this photo of a beer carton boasting in bold capital letters “CRAFTED TO REMOVE GLUTEN.”

The beer was of interest to the student, who suffers from celiac disease.  Persons with celiac disease, an autoimmune disorder, cannot consume gluten because their bodies will mistakenly react to gluten as if it were a poison.

But then she came to the fine print at the bottom of the box, which says:

* Product fermented from grains containing gluten and crafted to remove gluten. The gluten content of this product cannot be verified, and this product may contain gluten.

Gluten - Read the Fine PrintAs the student commented, “I have no clue what the manufacturer is even trying to say.”  Given the danger gluten presents to some consumers, surely the disclaimer deserves more prominent billing on the label.

Needless to say, the student passed on buying the beer.

Spot the Tort: Another Rolling Tort on the Highway

Another Rolling TortHere’s another “rolling tort”; i.e., a dangerous condition on a road or highway.

We look at these things lightly at Lawhaha.com, but large objects that come loose from a vehicle present a substantial risk of injury or death to those traveling behind.

Other examples of Rolling Torts are here, here, and here.  Or just sift through the entries under “Spot the Tort.”

–Thanks to Larry Peters.

Beware of Tripping Alligators and Fake Warning Signs

Fake warning signThis sign warning “Do Not Feed Hallucinogens to Alligators” would be amusing if it were real, but it’s not.

Complicating life at Lawhaha.com, where we love to post interesting warning labels and signs, is the proliferation of fake, Photoshopped samples.

Sometimes it’s hard to tell.  University of Memphis first-year law student George Scoville sent me the alligators picture.  It looked a bit sketchy.  Research led to a Reddit post detailing indicators that the picture is fake, including, for example, a Shutterstock watermark on the mushroom.

Real sign, but fake warningBut George had also sent a second similar photo: “Do Not Give the Bison Psychoactive Substances.”  This one looked real.

Determined not to be fooled twice, George, applying good legal research skills,  wrote to the San Francisco Recreation and Park Department (the bison are in Golden Gate Park), receiving a reply that explained:

“That sign was put up as a prank. We took it down as soon as we became aware of it.”

So the sign is (was) actually real.  Diabolical!  On the other hand, it is Golden Gate Park in San Francisco, home of “Hippie Hill” and neighboring Haight-Ashbury, so it’s possible a sincerely motivated animal-lover posted the sign.

Before posting anything on Facebook or otherwise, take a minute to check it out.  A quick check over at SNOPES will usually expose widely disseminated fake news, such as the recent viral Facebook post that Mark Zuckerberg was giving away $4.5 million to Facebook users who shared a thank you message.

In the meantime, signs or not, it’s not a good idea to give psychedelics to animals.

Warning: No Standing or Sitting Allowed

No Standing or Sitting in this AreaI guess we’ll have to take this one lying down because no standing or sitting is allowed.  From a former student comes this sign at a baseball field in Burns Park, North Little Rock, Arkansas.

What is the sign really trying to convey?  No loitering in this area?  No people in this area?  Under a strict construction, could you lie down in the area and be in compliance with the sign’s directive?

–Thanks for Shayne Smith.

Warning: Watch Your Head, British Style

Watch Your Head - Yanks vs BritsLow-clearance warnings can help avert unintentional head-banging (as opposed to purposeful head-banging to, say, Metallica).

In the U.S., we shout these warnings (Danger! Watch Your Head!) like we shout everything.  But the Brits take a more proper, refined approach, as shown by the sign on the right, taken in a London pub.

The only thing missing is an “Old Chap” at the end, as in “Please Do Mind Your Head, Old Chap.”

Thanks to Pat Crowell.

Lawn Darts for the Torts Museum

[Great News. The Torts Museum accepted my invitation. My lawn darts will be safely displayed in the museum’s “Dangerous Toys” section.]

When I first heard the news about Ralph Nader’s new American Museum of Tort Law, my first thought was, “Awesome!  A Torts Museum.”  My second thought was, “My lawn darts!  They belong there.”

In case you missed the news, the Torts Museum opened last month in Nader’s home town in Winsted, CN.  The museum offers a history of American tort law, with exhibits covering everything from the infamous McDonald’s hot coffee case to the even more infamous Ford Pinto exploding gas tank fiasco.

I bought my lawn darts about twenty years ago at a garage sale.  Never used.  No dirt or even bloodstains.  Pristine.  I knew it would be selfish for me to keep enjoying them, like hiding a Rembrandt in a private studio.

Lawn darts were banned by the Consumer Product Safety Commission in 1988 on the basis that their risk outweighed their social usefulness.  The Commission reported three deaths associated with lawn darts from 1970-1988 and an estimated 700 annual emergency room cases. Then-Commissioner Anne Graham explained the Commission’s risk-utility analysis (which my current first-year students will recognize as Judge Hand’s famous formula for negligence):

What limited recreational value lawn darts may have is far outweighed by the number of serious injuries and unnecessary deaths. This week another child was severely injured by a lawn dart. She is now in critical condition. There are numerous alternatives to lawn darts, and I would urge adults who have lawn darts to throw them away now.

The most amazing aspect of my set of Jarts is that the packaging doesn’t include a single warning.

Most Exciting Outdoor Game TodayLawn Dart Headed Straight For MomTo the contrary, it touts lawn darts as “The Most Exciting Outdoor Game Today.”  No doubt.  Nothing like a screaming ambulance to liven up the neighborhood.

Best of all, it was a game for the whole family, except … oops, that missile on the cover appears headed straight for mom!

Here’s the Consumer Product Safety Commission’s original notice of the ban, which “urges consumers to discard or destroy all lawn darts immediately” and instructs them to call the Commission’s hotline if they find any still for sale.

Spot the Tort: Secure Your Dirt

Always Tie Down Your LoadSome of the worst “Rolling Torts,” as we call them here at Lawhaha.com, involve folks negligently failing to secure objects being transported on the backs or tops of their cars or trucks.

Not sure whether to give the driver of this truck credit for at least trying to secure this huge loose pile of dirt or demerits for not trying quite hard enough.

Other examples of Rolling Torts are here, here, and here.

Warning: Do Not Touch Warning Sign

New Zealand Warning SignI’ve seen pictures like this on Facebook that were Photoshopped jokes, but this sign warning “Danger: Do Not Touch, This Sign Has Sharp Edges” is the real deal, straight from Auckland, New Zealand.

The friend who captured this image reports that she is not sure whether the sign is a joke or not because it’s attached to another large normal sign.  Weird stuff.

Thanks to Lina Lim.

Warning: “Get rid of children”

Free parenting advice - "Get rid of children"

Free parenting advice – “Get rid of children”

What to do with the kids?  It’s an eternal problem for parents.

Who knew the answer would be so simple and come, not from a parenting book, but from a product warning label on a Power Bank charger for electronic devices:

Get rid of children

We also see that it is unlikely the language of this warning will make it into the next edition of Strunk & White, Elements of Style:

Do not break,dismantling, into the fire or placed in …


With all the money the goes into R & D for a new product, it’s astonishing that manufacturers do not cough up a few extra bucks to hire competent people to write their warnings.  Manufacturers, call me.

One last funny part about this whole thing is that the Power Bank chargers containing this warning were given out by the Arkansas Bar Association to every lawyer at their annual convention.

–Thanks to former student George Carder for this beaut.

Warning: Trail Unsafe When Under Water

Trail Unsafe When Under Water Yes, it may be hard to believe, but it’s true.

This trail at the Razorback Regional Greenway in Northwest Arkansas–along with every other trail in the world–is dangerous when underwater.

Trails are also dangerous when covered with poisonous snakes, loose sticks of dynamite, large rusty spikes, and giant spiders from the planet Xenon.

Where are the warnings for those dangers?

But maybe you’re unsure whether this warning is accurate.  Maybe the trail is safe when underwater.  Maybe the sign is exaggerating, prompting unnecessary fear and caution.  Is it possible?

Nope, guess not.

–Thanks to Bill Putman.Yep, it is unsafe.







Baby Showers with Guns

Not the real guy.

Stock photo – Not the real guy.

Leave it to insurance coverage guru/legal humorist Randy Maniloff to track down the most interesting cases for his monthly publication, Coverage Opinions.  Among this month’s excellent articles (which include a mock interview with Tom Brady), Randy revisits his insurance Coverage for Dummies contest with the case of Blank-Greer v. Tannerite Sports, LLC, No. 13-1266 (N.D. Ohio Apr. 21, 2015).

Here are the basic facts, borrowed from Randy’s excerpts from the court’s opinion:

In May 2012, [James] Yaney’s friend, Jason Vantilburg, in anticipation of the birth of his first child, asked Yaney to host a party to celebrate. Yaney and Vantilburg fashioned the party into a ‘diaper shootout,’ where guests could bring diapers for the new baby and enjoy an afternoon shooting guns in Yaney’s backyard. As a ‘grand finale’ to the party, they also decided to blow up an old refrigerator.

In preparation, Yaney used his [Yaney] Motorsports truck to haul the refrigerator from Vantilburg’s home to his property. He then used his trailer to tow a box van to his backyard so that guests had a target to shoot. On the day of the event, Yaney set up the Motorsports truck and trailer as a staging area for guns and ammunition. ***

Towards the end of the event, Yaney and Vantilburg decided it was time to blow up the refrigerator. They hauled the refrigerator from Yaney’s pole barn into the backyard. Guests stood behind tables fifty meters away from where the refrigerator was located. Vantilburg moved into position behind his rifle, fired at the explosives [H2] inside the refrigerator, and detonated them. The refrigerator immediately blew apart and sent shrapnel flying across the yard. A piece of shrapnel hit (guest) Plank–Greer’s hand, nearly severing it.

Read Randy’s full account of the case, which addressed the issue of whether the party host was acting in the scope of employment with respect to insurance coverage from his business.  The court said no.

–Blank-Greer v. Tannerite Sports, LLC, No. 13-1266 (N.D. Ohio Apr. 21, 2015)

Warning: Dogs to the Left, Horses to the Right

Dogs swim left, horse rightSo sorry to see my friend and colleague move to Switzerland, but on the upside, Lawhaha.com has a great new source of pictorial instructional and warnings signs, which we love (as shown by a few examples here, here, here, here, here, here).  Remember that the goal of a pictorial warning is to advise of risks or deliver instructions to persons who cannot read or understand the written warning.

Here we have a sign at a swimming beach for dogs and horses.  That’s the first thing to note: Switzerland actually has swimming beaches for dogs and horses.  A recent worldwide survey showed the Swiss are the happiest people in the world.  The dogs and horses must be absolutely beside themselves.

As for the substance of the sign, it is instructing that dogs swim to the left and horses to the right.  For non-Swiss readers, would you have known that is what the sign is attempting to convey?

–Thanks to Pat Crowell.

Warning: No Hunting within 100 Feet of Trail

Gun Safety in ActionWent for a wonderful hike over the weekend with a friend in a state park.  It’s a really nice park with well-maintained, well-used hiking trails.

And it was comforting to note that they take visitor safety seriously, as shown by this sign at the trail head:


Surely one hundred feet is a more than adequate safety margin for hunting around hikers.  After all, how far could a bullet possibly travel?

Well, that’s where there might be a problem.  A bullet fired from an average deer-hunting rifle, say a 30-06, has a maximum range of 5,675 yards–or 3.22 miles.

Pictorial Warnings from Picturesque Italy

Sign from ItalyWe love pictorial warnings at Lawhaha.com, as shown here, here, here, here, here, here, and several other places.  Remember that the goal of a pictorial warning is to advise of risks or deliver instructions to persons who cannot read or understand the written warning.  So in trying to figure them out, you have to set aside the textual versions that usually accompany pictorial warnings.

Europe, with free travel among so many people of different cultures and languages, relies more heavily on pictorial warnings than the United States.

Here we have a sign from Italy with six pictorial warnings/instructions.  Which ones can you figure out without consulting the accompanying text?

Me?  Going left to right starting at the top row, I’d say:

1.  The first (no dumping trash on the ground) is reasonably clear.

2.  The second (no camping) is not clear. Maybe it could be used for “No public sex,” as it looks kind of like one person lying on top of another.  Just don’t see the camping angle.

3.  The third (no eating near monuments) may work, but it raises the question, “Why can’t you eat near monuments?”  Probably because: go back to number one.  Eaters leave trash.  But dilution of impact results with the proliferation of warnings and instructions.  The more there are, the less likely people pay attention to any of them.

4.  They could have done a better job with the fourth one (do not smear or deface).  The figure could be spraying bug repellant or air freshener or anything.  But more important, picture a person with a can of spray paint prepared to tag monuments.  He sees the sign.  Is it really going to change his mind?  “Oh, I didn’t know you weren’t allowed to deface the monuments with spray paint.  I came all the way out here for nothing.”

5.  In the fifth one (no bathing in fountains), I can’t get past laughing at the little doggie in the picture.  He’s really cute, but what is he doing there?  And the guy looks like he’s taking an actual bath.  The canine is probably there to indicate no dog-bathing in fountains, but it still cracks me up.

6.  The sixth one (do not go bare-chested in public) does not compute because the diagonal “do not ever this”-slash covers the entire image, which includes one person wearing a bathing suit top.  Looks more like “No hand-holding” or “No couples.”

So, maybe three out of six would be my scoring.  What do you think?

–Thanks to Pat Crowell.

Warning: No Protection in Texas from Dangerous Farm Animal Activities


Protection for Texas Farm Animal ProfessionalsFrom Texas comes this warning sign that:

A farm animal professional is not liable for an injury to or the death of a participant in farm animal activities resulting from the inherent risk of farm animal activities.

First, we notice the evolution of the term “professional” in modern society.  Originally, there were only three professions: clergy, lawyers, and doctors.  Over time, the number of groups laying claim to the title of a “professional” has expanded to include architects, engineers, pharmacists, et cetera.  Add to that list “farm animal professionals.”

Not sure of the history of the referenced statute, but it would be interesting to see if the dangerous “farm animal activities” that relieve farm animal professionals from death or injury is defined.  Logically, those activities would include things like mules kicking, horses rearing, bulls charging, and the like.

But what if the farm animal professional has notice of the animal’s dangerous propensity?  Does this change the result under the statute?  (It might.  I haven’t looked at it.)  Or what if, following in Gary Larson’s Far Side footsteps, the farm animals band together and decide to participate in more dangerous activities, such as racing all-terrain vehicles or shooting off fireworks?

–Thanks to Peter Dawson.

Warning: Pacemakers and Chainsaws Bad Mix

Pacemakers and Chain SawsThe highlighted warning in this image sounds like a joke, but it’s part of a real set of FAQs on a pacemaker information site.

Overall, it’s good news.  You can use a lawn mower and other power tools with a pacemaker, but not chainsaws:

Can I use a chainsaw?

Chainsaws are hard to operate at a safe distance from your chest pacemaker.  They should be avoided altogether.

Hard to argue with the factual assertion.  The user would either: (1) have to rip the pacemaker out of his chest and leave it in the house; (2) set the chainsaw up in the backyard, start it, and run like hell; or (3) tap in to Rubber Man’s secret.


Spot the Tort: A Tortfeasor and Proud of It

Proud tortfeasorCourtesy of a law student at St. Thomas law school in Minneapolis comes this drinking, phone-talking, smoking driver and proud tortfeasor.  As the student explained:

Here’s a potential tort for you. I’m a law student at University of St. Thomas (Minneapolis). While driving through Iowa, I spotted a girl drinking a beer, smoking a cigarette and talking on the phone. When she saw me taking a picture, she even posed for me.

The ultimate in driving multitasking.

Everybody’s Gone Surfing, Even the Cats

Cat sign 1So I’m taking a pleasant walk along a Florida beachfront park and encounter this sign warning that it is a crime, punishable by up to one year in prison, to abandon cats in the park.  I’m thinking, “That’s weird.”

Cat sign 2Then I get to a second sign warning it is unlawful to feed or abandon cats or other animals.  Unlawful to feed a cat?  Wait a minute.

At this point, I’m thinking, “Aren’t we engaging in some serious overkill on the cat issue?”

But then I come to a third sign and go, “Uh-oh.Cat sign 3” Did Tuggers run away to join the other cats?

Poor Tuggers.  Hope he is found.  In the meantime, if you are at the beach and come across an Orange Domestic Shorthair sunbathing or shell collecting, be felonious (or it is feline-ious) and feed the poor thing.

Meanwhile, anyone who would abandon a cat deserves a bad fate.

Share the Road … Or Else

Share the RoadFrom a golf course in Florida, comes this pair of signs.

The first one features a seemingly contented (despite having a decapitated head) golf-cart driver cruising along above a warning to “Share the Road.”

Twenty yards farther along we get a much more ominous sign.  Same cart, but the driver has been “disappeared.”  Did he fail to share the road?

An investigation is underway.

Or else.


Cartoon Scenarios that Made It to Court

Falling anvils can happen to anyone.

Falling anvils can happen to anyone.

Thanks to legal humorist extraordinaire Randy Maniloff for a nice shout-out to Lawhaha.com as part of his recent article exploring cartoon accident clichés that found their way to the courthouse.

Exploding cigars, falling anvils, you name it.  Turns out the experiences of Wile E. Coyote and Tom and Jerry also happen to ordinary people, and Randy cites the cases to prove it.

That’s one of the things we most appreciate about him.  Like Lawhaha.com (and unlike so many purveyors of legal humor), Randy doesn’t circulate undocumented anecdotes that may or may not have really happened.  He researches and provides citations to everything.

So check out his great list of cases involving common cartoon scenarios that made it to court.

Death Certificate Shows Man Died from Slipping on Banana Peel

Poor guy died from slipping on a banana peel.

Poor guy died from slipping on a banana peel.

Slipping on a banana peel is, of course, a classic clichéd accident depicted in cartoons.  As my 1Ls get ready to tackle the famous trilogy of banana peel slip and fall cases in the Prosser, Wade & Schwartz Torts casebook next week, the nagging question that lingers is: do people really slip on banana peels?

A previous post discussed this issue, but check this out.  It’s a 1927 Tennessee death certificate for a 74-year-old hospitalized man.  A bit hard to read, but the highlighted note written across the top and going down the right side says:

Inquiry at Hospital: They state that patient slipped on banana peeling and fell shortly before death.

Warning: Figure Out These Pictorial Warnings

Dehumidifier Warning - Let's Dance

“Let’s Dance”

We love pictorial warnings at Lawhaha.com, as shown by the samples here, here, herehere, and here.  These are supposedly universal warnings designed to be understood by everyone.  As in these warnings on the outside of a dehumidifier box, they are often accompanied by written warnings.  But not everyone can read the written warnings, either because of language barriers or simply an inability to read.

So how do these pictorial warnings rate?  When I look at the first one, all I can think of is the David Bowie song, “Let’s Dance.”  What is it trying to convey?  That you need two people to pick the thing up.  I think that one probably works, assuming for the sake of argument that people need a warning not to pick up large heavy objects without assistance.

Dehumidifier Warnings Part 2These next three warnings on the same box are a mixed bag.  No idea what “4” stands for.  Assuming it’s something on a scale, but “4” out of what?  And what is it measuring?  Please send word.  The second one might be a warning to not put your wine glass on the dehumidifier, but, on the outside packaging, it’s probably a warning that the contents are breakable.  The third one?  Who knows?  Don’t stomp on it?  Don’t kick it?  Hmm, maybe don’t stand on it, which I could see, but if that’s the case, shouldn’t they have a box under the boot?

We like to have fun with these, but let’s face it, the real problem is that it’s almost impossible to meaningfully convey most product warnings via a symbol.

Warning: Smoking Causes Impotence

Graphic cigarette warnings

And a whole lot of other undesirable results.

The World Health Organization (WHO) directs, in Article 11 of the WHO Framework Convention on Tobacco Control, that parties to the convention “implement large, rotating health warnings on all tobacco product packaging and labelling.”

The WHO website shows twenty countries (and their mandated warnings) currently participating, including Brazil, which is where the Florida International University law student who gave me this pack of Marlboros purchased it.

Some of the warnings are much more graphic.  Speaking of warnings, here is fair warning: DO NOT LOOK at this larynx warning from Malaysia unless you have a strong stomach.

Other countries mandate pictorial warnings without belonging to the WHO convention.  In the United States, graphic pictorial warnings on cigarette packages were torpedoed by a lawsuit in which the tobacco industry successfully argued before the U.S. Circuit Court of Appeals for the D.C. Circuit in R.J. Reynolds Tobacco Co. v. FDA that requiring them to put pictorial warnings on “the top 50 percent of the front and rear panels of cigarette packages and 20 percent of the area of each cigarette advertisement” violated their First Amendment rights.

The warnings were authorized by the Family Smoking Prevention and Tobacco Control Act of 1989, which directed the U.S. Dep’t of Health and Human Services to adopt regulations requiring cigarettes to bear “color graphics depicting the negative health consequences of smoking.”

The Obama Administration backed away from the requirements after the decision.

The data is mixed as to whether pictorial cigarette warnings change smoking behavior.  A study of 4000 smokers in Malaysia and Thailand found the warnings had an effect in Thailand, but not Malaysia.

Spot the Tort: Yet Another Rollin’ Tort

Another Rollin' TortWhat Lawhaha.com calls “Rollin’ Torts” are so common they probably deserve their own subcategory in “Spot the Tort.”  As will no doubt be defined in the next edition of the Oxford Dictionary, “Rollin’ Torts” are vehicles moving down the highway carrying items too big and/or unsecured to be moved safely in that fashion or by that vehicle.  They are, literally, accidents waiting to happen.

Here, we have another great (meaning outrageously bad) example–in the pouring rain no less–courtesy of a 3L law student who, along with all her classmates, I taught to play “Spot the Tort” as a 1L.

–Thanks to Jessica Wargo.

Warning: Do Not Roast a Turkey in Toaster

Toaster WarningOkay, this warning label, sent along by lawyer comic and insurance expert Randy Maniloff, does not actually cover turkey roasting, but maybe that’s because there wasn’t any room left after warning people not to toast their “Danish, Muffin [or] Cake” in the toaster.

But wait, what’s up with the warning to not put “Bread” in the toaster?

–Thanks to Randy Maniloff.

Signs of the Times: Dive Head-First Into Pavement

Signs of the Times… at least that’s what these two signs seem to be indicating.

–Thanks to Gary Golden.


Warning: Another Coffee Cup Maker Thinks Hot Coffee Is a Joke

More hot coffee warningsA while back I posted a picture of a coffee cup, reportedly from Canada, that made fun of U.S. tort law and, indirectly, poor Stella Liebeck, the plaintiff in the infamous McDonald’s coffee spill.

Now Chris Fergus, a professor in Australia, sends along this photo showing another coffee cup maker having a grand old time with the case by including a warning on its cups stating, “Avoid Pouring on Crotch Area.”  I don’t speak French, but  can guess the French version amounts to something like “Don’t Pour It on Your Oolala.”  Chris said he received the photo from one of his students and is unsure where it originated.

Hilarious, unless you happen to end up like Ms. Liebeck.  Sorry for the graphic pic, but this is actually one of the milder pictures of her burn injuries:

Stella Liebeck's burn injuries

And so here we are more than a decade later continuing to distort the American tort system with a case in which dangerously hot coffee sold through a drive-thru window caused third-degree burns to a 79-year-old woman who accidentally spilled it while a passenger in a stopped vehicle trying to add cream and sugar.  Consult the original post for links to some eye-opening information about what really happened in the McDonald’s coffee spill case.

–Thanks to Chris Fergus

Warning: Don’t Trip on the Banana Peel Caution Cone

banana peel warning coneA student sent me this.  Not sure where it was taken, but gotta love it.  A much better attention-getter than the usual caution cones.

It raises the larger question of “Do people really slip on banana peels?”  Yes.  While slipping on a banana peel is a comedic cliché, it happens.

The famous Prosser, Wade & Schwartz Torts casebook contains a trilogy of cases involving plaintiffs who slipped on banana peels.  In keeping with the comedic tradition, our discussion of the cases ends with this question:  “Before we move on, what do the three banana cases all have in common?”  Pause, bewildered looks.  “They all went up on … a peel.”  Drum roll.

Mythbusters found there’s nothing particularly slippery about banana peels, but Googling the issue brings up several recent instances of people falling on them.  In December 2013, a Staten Island man slipped on a banana peel and fell onto the subway tracks.

Spot the Tort: Parents Never Listen

Do not play on the dinosaur.I count at least six kids climbing on this dinosaur, one about to climb on, and maybe more if the dinosaur extends to those kids at the back, all in contravention of the warning sign:

PARENTS: Do not let Children Play or Climb on top of Dinosaur

The warning is emphatic and seems pretty clear, although perhaps the kid inside the mouth could hire Suzy Spikes to make a persuasive textualist argument that she is not technically “on top” of the dinosaur.

Looks like they need a second sign: “PARENTS: Read the sign that says to keep your kids off the dinosaur.”

I join the sender in asking why “Children” and “Play” are capitalized.  (“Dinosaur” makes sense.  More like a proper noun, as in “Bye, Dinosaur!  We had fun playing and climbing on you.”)

–Thanks to Heath Waddingham.

Warning: Guitar Strings Can Cause Death

Guitar Strings Are DangerousAll guitar players have been painfully poked more than once by the sharp ends of the strings where they wrap around the tuners.  In the 1930s, Kluson marketed “SafeTiString” tuner posts where the string ends could be neatly tucked away in a slot in the posts to “banish the peril of injured, cut or bruised fingers.”

Neat invention, but apparently too late to save the poor woman pictured in this advertisement reprinted in Vintage Guitar magazine in the Feb. 2013 issue.  She appears to be bleeding to death.

Click to enlarge the thumbnail to appreciate her plight.

Spot the Tort: Tort-Spotting Friend of Lawhaha Keeping Floridians Safe

Dangerous DoorstopLawhaha.com friend and South Florida resident Amy Holland is always on the look out to make the world a safer place.  Here’s her latest effort:

Here’s a good spot-the-tort photo for you.  We were at a liquor store, and as we were (separately) browsing the aisles, we each tripped over this object in the floor.  Thankfully, neither of us was seriously injured, but tripping and stubbing a toe on this thing sure does hurt!

The object, which appears to be a doorstop, is made of heavy metal and anchored to the floor with concrete.  I have no idea why someone would place a doorstop in the middle of the floor (as opposed to near the wall).  The object is difficult to see given its small size, but the worst part is that it is located near the end of the aisle and centered between two shelves, one of which is full of glass bottles.  Because of its location, when a customer (or an invitee, rather) comes around the corner to enter this aisle, he or she will likely trip over the object before it ever comes into his or her field of vision.

Of course, I alerted the manager about the risk, and told him that he should immediately put up a caution sign or hazard cone as a temporary solution, and then have the object removed.  He said he would have it removed ASAP, so I went back to the little store last night just to see if anything had been done (okay, okay, so I wanted a glass of wine, too), and as soon as I walked in, the owner/manager said, “Watch out, the doorstop is still there!  I am having it fixed, though, I swear!” 

About two minutes later, a guy approached the manager as we were standing there chatting, and guess what—he was there to remove the doorstop!  The owner/manager was obviously serious (and diligent) about fulfilling his promise, and I thought, good for him!

Way to go, Amy!

–Thanks to Amy Holland

Spot the Tort: In Case of Emergency … Well, Maybe Not

Lift handset in case of emergency.Long distance information, give me … ANYONE!

Can you spot the potentially tortious risk?

Contrary to Murphy’s Law, most things in life usually go right when it comes to risk and injury.  Except in Tortland where the worst that can happen always does.

Picture a guest with an emergency, maybe a heart attack or a criminal attack.  They reach for the emergency phone as instructed and … oops. No phone.

Easy fix: just take down the sign.  No legal duty exists to provide an emergency phone in most situations, but one can assume a duty under tort law that would not otherwise exist by undertaking to render a service that people rely on and then performing it without reasonable care (i.e., negligently).

–Thanks to Pam Hatchell.

Plaintiffs Say “Boo!” to Haunted Halloween Tort Immunity

Randy Maniloff

Randy Maniloff explores Halloween tort cases.

Insurance expert, stand-up comic, and friend of Lawhaha.com, Randy Maniloff, penned an interesting article in his latest issue of Coverage Opinions about whether people who get frightened at Halloween haunted houses, with resulting injury, can sue.

He writes:

On any other evening, presenting a frightening or threatening visage might be a violation of a general duty not to scare others.  But on Halloween at trick-or-treat time, that duty is modified.  Our society encourages children to transform themselves into witches, demons, and ghosts, and play a game of threatening neighbors into giving them candy.”  Bouton v. Allstate Ins. Co., 491 So. 2d 56 (La. Ct. App. 1986) (also noting that the Louisiana legislature has recognized Halloween as a special occasion by exempting it from the statute which prohibits the wearing of masks in public places).

But does this “Halloween rule” apply to haunted houses?  All sorts of duties are imposed on property owners to maintain a safe premises.  Do these same rules apply when the premises are advertised as having, as their only purpose, to scare visitors?  Indeed, many visitors will leave a haunted house disappointed if they were not frightened while there.  That being the case, can the visitor of a haunted house now turn around and sue for injuries sustained in the process of getting what he asked (and paid) for?

His research turned up five reported judicial decisions in which visitors of haunted houses sought recovery for injuries “sustained on account of being scared.”  Notably, the plaintiffs lost every case based on assumption of the risk analysis and the social utility of keeping haunted houses scary and darkly lit.  In one case, a startled plaintiff in a pitch-dark house turned to run and ran smack into a brick wall.

Hate to be a party-pooper, but I think there’s a duty to act reasonably to prevent highly foreseeable injuries at premises open to the public.  The goal of a haunted house is to terrify, the expected result is that customers will be terrified, and the instinctive response to terror is to run.  But no one can see!  Give them helmets, maybe even put flashlights on them, or scare them outside where they can run into the cushy-walls of cornfield mazes.

“Eerily,” as Randy notes, all five cases are from Louisiana.

Flow Chart for the Tort of Nuisance

Nuisance Flow ChartA student from my very first Torts course a million years ago sent me this brilliant flow chart for the tort of nuisance, which comprises substantial and unreasonable interferences with the use and enjoyment of one’s property.   The most interesting thing about it is that it actually summarizes the law pretty well, assuming one has dropped acid before studying it.  Credit on the chart attributes this work of art to one Margaret Hagen.  Well done!

“Torts Illustrated”

Torts IllustratedA 1L sent me this “Torts Illustrated” image, sort of a grown-up version of Garrett v. Daily, a famous case that all law students study in which a five-year-old was sued for pulling a chair out from under an elderly woman.  If anyone knows the original source, please send it along so we can give proper credit.

In the meantime, one can only imagine what the swimsuit issue would look like.

Warning: Why Not Just Say “Steep Hill”?

Weird warning of steep slope.Curious warning sign at the Beale Street Landing on the Mississippi River in downtown Memphis.  It says:

Caution grass slopes may exceed 8%

Is “8%” meaningful information?  Would it not be better to say “Caution: Steep Hill”?

Also, this is a multi-million dollar new development.  Couldn’t they come up with a more professional sign.  Maybe someone texted the sign maker:

btw, we need some signage for the slope, something like Caution grass slopes may exceed 8%.  Why 8%?  To mess with them!  LOL

Warning: Don’t Spill Beer on Your Phone

beer spill warningA recent graduate sent me this warning from a bar: “USE CAUTION!  SPILLS HAPPEN … DON’T BLAME US … keep yours [your phone] CLEAR OF THE BEER.”

Nice!  Makes nuclear power plant warnings pale in comparison.  But then, those only involve radiation poisoning.  We’re talking phone deprivation here.

–Thanks to Sarah Atkinson.

Spot the Tort: Rollin’ Tort in Hot ‘Lanta

Rolling Tort in AtlantaOverloaded vehicles, which we call “Rolling Torts,” are popular submissions on Lawhaha.com as shown here, here and here.

But if a contest were held, this one would have to take the prize.

–Thanks to Jill Magill.


Warning: Another Contender for Largest Warning Award

largest warning labelThis very large sign in a Tennessee restaurant contends with the Tokyo Subway warning for The World’s Largest Warning, but it’s more interesting than that.

In the Southern United States, and perhaps in other parts of the country, it is popular for some restaurants to serve peanuts and encourage customers to throw the shells on the floor.  Forget that it’s an unreasonable risk for a business invitor to have debris or other objects on the floor where customers are known to walk, or that slip and fall cases rank in the double digits percentage-wise among all tort lawsuits.  It’s FUN to throw trash on the floor!

The fact that customers are on notice that peanut shells litter the floor– and it would be hard to content otherwise given this enormous sign, give them credit for that–probably is not sufficient to protect a business from liability if someone slips and gets injured.  The fact that a danger is obvious is a defense only if the danger can be navigated safely with knowledge of the risk which, I would argue, is not true of a shell-strewn floor, which is probably dark and traveled on frequently by customers consuming alcohol.

As for the “Loud Music” warning, this could be an attempt at humor, as the entire sign could be, or it could be a legitimate warning that the music played in the establishment is loud enough to cause hearing damage.  It raises an interesting question I have long wondered about: Is a music venue negligent if it plays music at a level that causes hearing damage or is that a risk music fans assume?  Even though I sing and play in loud rock bands, I assert it is negligent to play music the venue owner reasonably knows or should know is above the  decibel-level known to cause hearing damage.

One year when I was teaching at a law school in San Francisco, I was at a Fillmore show.  I forget who the band was but the music was so loud that it felt literally deafening.  My ears ached and I could see my clothes flatten with every bass note.  I went to the soundman and tried to explain it was too loud.  He couldn’t hear what I was saying, of course.  I shouted louder and when he figured it out, he looked at me like I was crazy.

Any cases on this?  Let me know.

–Thanks to Terry Van Eaton

Tokyo Subway Contends for Largest Warning Award

Tokyo Subway warning

Is this the World’s Largest Risk Warning?

Persons and entities with a duty to warn of risks under tort law are often accused of hiding the warnings in the fine print or otherwise not making them sufficiently conspicuous.  But the administrators of the Tokyo subway could never be accused of that, as shown in this mural-size slip and fall warning.

If there’s a Guinness Book of World Records entry for the largest risk warning, this one might contend.  Good job, Tokyo subway.

Comparative Law Tangent: Many Americans think personal injury lawsuits are common only in the United States and attributable to far out U.S. tort law principles.  Actually, basic tort law principles are remarkably similarly throughout much of the world.  I learned this  co-authoring Practical Global Tort Litigation: United States, Germany and Argentina with Adem Koyuncu and Luis Sprovieri.

Oversimplified, the principal tort law and litigation differences between the United States and many countries can be reduced to five:

1. Higher noneconomic damages (e.g., damages for intangible injuries such as physical and mental pain and suffering, disability and disfigurement) in the United States .

2. The fact that most developed countries have public health care with the result that injured tort victims do not have to sue to recover large medical expense obligations (lifetime medical expenses in the United States for catastrophic injury cases such as quadriplegia can exceed $20 million).

3. The availability of civil punitive damages in the United States to punish and deter particularly egregious wrongdoers, which are not available in most other countries (but other countries may be more willing to criminally prosecute and fine offenders who endanger public safety).

4. The “loser pays” rule that applies in most countries, but generally not in the United States. The loser pays rule requires the losing party to bear not only their own attorney fees and litigation costs, but their opponent’s.  In the United States, each side generally bears its own legal fees, win or lose.

5. The wider availability of discovery in the United States.  Discovery is a process by which each side gets access to the facts in the possession of the other side, with the goal that all relevant facts will be presented at trial and the case will be decided on those facts.

But I got carried away.  The point of this post is that this is one huge warning!

Warning: Playing “Stairway to Heaven” Is Prohibited

guitar playing warningAs a hobby, I sing and play in Memphis rock cover bands.  At the Young Avenue Deli in the Cooper-Young neighborhood of Memphis, the sound guy has a sign posted warning bands: “$20 Fine for Playing Brown-Eyed Girl or Mustang Sally.”

If you’re a music fan, you might be thinking, “Why? Those are both great songs.”  They definitely are, which is why 90 percent of cover bands play them, which in turn is why sound guys hate them.

We encounter a similar phenomenon with guitar players.  Every guitar player learns or tries to learn certain fundmental songs and riffs, including Stairway to Heaven (first song I ever learned back in college), Smoke On the Water, and Sweet Child O’ Mine.

In response we get this admonishment from a music store that:


–Thanks to my bandmate Ron Lefkowitz for this one.

Spot the Tort: “Crowned with a Spike Right Through My Head”

Spot the tort: hanging spikeThere are potential torts and there are POTENTIAL TORTS. This hanging rusty spike stands out even on the gritty, tort-filled streets and sidewalks of downtown Memphis. As you can see in the second picture, it’s hanging at a level where a person could walk right into it.

I snapped this shot on my way to the annual law review banquet a week ago and was surprised to see it still hanging yesterday on my way back from lunch.

hanging spike wide viewThe headline reference, of course, is to a line from the Rolling Stone’s Jumpin’ Jack Flash.

Spot the Tort: How to Move a Refrigerator in 10 Easy Torts

Spot the Tort Fridge in TrunkYou think this is bad, you should see how the guy tried to move his living room. Not the furniture, the entire room.

Why waste money on a delivery charge just to save a few million in accident costs?

–Thanks to Tommy Rogers

Warning: No Scream Impressions or Diaperless Tots

In Torts, we were talking about product warning defects and, particularly, the warnings found on most plastic bags. These are warnings to adults to keep plastic bags away from babies, cribs, etc. because they present a suffication hazard. Using various bags as examples, we talked about the efficacy of such warnings in terms of size, placement and whether they needed to be in multiple languages. (We also discussed whether the risk is obvious, in which case there would be no duty to warn of it.)

This week a student brought me a plastic bag that attempted to solve the efficacy problems by omitting written warnings and relying solely on pictorial warnings. Did they succeed?  You be the judge.

Pictorial plastic bag warningFirst, we have this one. Here’s your test.

Question. This pictorial warning is intended to convey the following risk information:

(a) Keep plastic bags away from babies to prevent suffocation.

(b) Impressions of Edvard Munch’s The Scream are prohibited.

(c) Do not place large adult mitts around babies’ throats.

(d) This haz-mat suit does not work properly.

A is the correct answer.

This next one was on the same bag.

Question. This pictorial warning is intended to convey the following risk information:

Pictorial plastic bag warning(a) Keep plastic bags away from babies to prevent suffocation.

(b) Diapers required.

(c) Do not press pieces of toast against baby’s head.

(d) No balloon animals.

A is the correct answer.

Warning: Play-Doh Skill Level May Be Low

When you were a kid, or maybe still, did you ever wonder why, no matter how hard you tried, you couldn’t reproduce the product results with your toys similar to those represented in the advertising? These failures caused massive wounds to self-esteem to millions of children. The examples are too many too count. Legos, Erector Sets, Lincoln Logs. How were we supposed to build that 10,000-piece castle on the box with fifty pieces?

At least one modern manufacturer is paying attention to protecting the egos of today’s youth via product warnings. Play-Doh warns kids, at least the ones who read product warnings, to not get their artistic hopes up because:

Reading this made me feel much better about myself because I recently attempted to replicate this delightful bug on the same packaging:

But ended up with this:

Warning: Quit Dancing on Your Trash Dumpster

wacky pictorial warningCan you interpret this pictorial warning?

The entertainment lawyer who sent it along thought maybe her landlord was warning tenants not to practice their parcours on the trash dumpster. “That stick figure is having far too much fun,” she wrote. “Look at his exuberant arms!

He definitely does appear to be celebrating a “Ta-Da!” kind of moment.

Remember: In evaluating a pictorial warning, you have to imagine you can’t read the textual warnings, either because you can’t read at all or can’t read English or other language the verbal warning is printed in.

This one rates only a 1.0 on Lawhaha.com’s proprietary 4.0 “Pictorial Warning Clarity” scale.

For more pictorical warning fun, see here herehere and here.

–Thanks to Nicole Jurkowski.

Warning: Giant Kids at Play

wacky warning giant children at play

Slow down. The Incredible Hulk’s offspring may be playing in your neighborhood.

Hmm, maybe kids really are getting bigger. First, we had the titan-tyke falling from the diaper-changing station and now we have,  courtesy of a first-year law student at the University of Memphis, this sign cautioning that children are at play. Very large children. Children who, judging by the picture, could contend in the decathlon at the Olympics.

–Thanks to Rob Clapper.

Warning: Titan Tyke Falls, Cleans Up Afterwards

Diaper station pictorial warningIt’s always fun, fun, and more fun deciphering pictorial warnings.

Here’s a warning, along with a request, from a restaurant restroom in Naples, Florida: be careful not to let your baby fall off of the changing station, and also, don’t forget to throw away the dirty diaper! A good warning and reasonable request.

Remember, to interpret pictorial warnings, you have to imagine you can’t read the textual warnings below the symbols, either because you can’t read at all or can’t read English or other language the verbal warning is printed in. That’s the purpose of a pictorial warning: to convey a danger or instruction to persons for whom verbal warnings are inadequate.

The first picture–the falling baby–does a pretty good job of communicating the risk, although that is one huge baby. His feet are way above the changing table while his head is already touching the floor. Recommended height for a wall-mounted baby changing station is 45.5 inches. At that height, this baby would be approximately six-feet tall judging by the picture.

Because the child is portrayed as a giant, the flecks flying up around his head look like they could be pieces of floor tile. Maybe the intended warning is: “Do Not Damage Floor with Falling  Objects.” Or: “No Sumo Wrestlers on Changing Table.”

But the poor “little guy” is resilient. The second picture shows him cleaning up afterwards, and good news! He looks fit as a fiddle.

These accidents do happen and are terrible to imagine. The risk is obvious, but maybe a picture serves a useful reminding function.

On the 4.0 point “Pictorial Product Symbol Clarity” rating system recently developed at secret Lawhaha.com laboratories, I would give these pictorial symbols a 3.5. What do you think?

Spot the Tort: How About “Fix the Tort”?

Downed stop signSpotting torts, as we like to do here at Lawhaha.com, has its benefits as a pastime, but maybe a new “Fix the Tort” category should be added to “Spot the Tort.”  After all, reducing risk, not just identifying it, should be the ultimate goal.

From sunny South Florida comes this picture of a downed stopped sign which, amazingly, the sender reported was fixed the same day it went down.  Good job, city workers.

Warning: Toasters Are Dangerous

toaster warningsLike any heat-generating electrical device, toasters can be very dangerous.

Here’s the main warning page from a set of instructions for a new toaster (click pic to expand).

Most of these are good warnings, even if they sound silly. For example, “do not insert fingers … into slots when toaster is plugged in” sounds obvious, but how many toaster-users among us could swear under oath we haven’t fished stuff out of a plugged-in toaster with bare hands? One of the most common types of toaster injuries is burned fingers from trying to get Pop-Tarts out.

And on reading “Do not operate or place the toaster  … in a heated oven or microwave oven,” your first reaction might be to laugh, but this kind of warning is there because real live, or at least formerly so, consumers have engaged in exactly that activity.

So these are mostly good warnings, but two quibbles applicable to many product warnings:

–First, it’s annoying when product warnings direct consumers to do things the manufacturer knows 100 percent they are not going to do, such as “Unplug toaster from outlet when not in use.” Maybe I lead an overly risky life, but I do not unplug all electrical products (many of which include the same warning) between usage. Repeated plugging and unplugging strikes me as being potentially even more dangerous when it comes to toasters because water is frequently running nearby and fingers may be wet or slippery from various cooking ingredients.

–Second, it would be great if we could ditch the generic warnings that clearly do not apply to the particular product. They simply dilute the impact of (and already small likelihood consumers will actually read) the important warnings. Example here: “Do not use attachments that are not recommended by the manufacturer.” I have no doubt consumers misuse products in varied and imaginative ways, but I can’t picture what kinds of attachments they would use for a toaster.

Post script: An insurance defense lawyer-turned-judge friend wrote in response to this post:

Gulp.  Will you still be my friend if I confess that I  actually DO unplug the toaster between uses?  It’s the old insurance defense lawyer in me.  I don’t walk over grates in the sidewalk or manhole covers in the street.  I don’t talk on the phone or shower when there is lightning outside.  I inanely tell loved ones departing in cars:  “Drive safely!”  (In response, my former husband once told me, “Good thing you said that.  Had you not, I would have driven like a maniac.”) In my defense, experts actually do advise unplugging small appliances like toasters.  Here’s one explanation why.

Two points. First, you can see what being immersed in tort law does to people’s psyches. We become very safe people. Second, I’m still not convinced. If electric appliances present a significant risk of physical harm to persons or property (other than harm to only the product) simply from being plugged in, I would argue that the failure to incorporate failsafe technology from electrical surges is a defective design.

Warning: Do Not Eat iPod Shuffle

Warning: Do not eat iPod shuffle.It’s hard to tell in this warning if Apple was serious or trying to be amusing in admonishing consumers “Do not eat iPod shuffle.”

It seems jokey, especially because it follows the jokey tone of the instructions above, where it says that syncing the device will be “a piece of cake. Cupcake, even.”

No doubt Apple has a galaxy of outstanding legal advisors, so it’s surprising no one pointed out: “Never, ever make jokes in product warnings.”

Let’s assume hypothetically that the product seriously injured someone in a different way that should have been, but wasn’t, warned about, say, because the battery could explode.  Picture the cross-examination:

“So you didn’t warn consumers about the danger of exploding batteries, is that true?”

“That’s correct.”

“But you did warn them not to eat their iPod shuffle, is that correct?”

“Yes, but we were just joking about that.”

“Sir, my client is blind in one eye because of your failure to warn. Does Apple  consider product warnings to be a joke?”

On the other hand, it’s possible that it is intended as a real warning to not eat iPod shuffles, which would be unnecessary.  Manufacturers do not have a legal duty to warn consumers not to eat electronic devices. The exception, of course, would be if the object was small enough to present a choking hazard to children.  That doesn’t appear to be the case with an iPod shuffle. But even if that is a risk, the warning should not say “Do not eat iPod shuffle,” but like, “Choking hazard–Keep away from small children.”

Warning: No Blindfolded Kids Swinging Bats

no pinatasDuring a Torts class last semester, we were discussing various applications of Judge Learned Hand’s formula for negligence, when a student asked, “Why isn’t it negligent to hold pinata parties?” To which I replied, “It probably is!”

Judge Hand’s formula, explained in a famous case called United States v. Carroll Towing Co., is that if the burden of avoiding a risk is less than than probability of the risk resulting in harm multiplied by the potential severity of the harm, it is negligent to engage in the conduct.

As applied to pinata parties, the only burden to avoiding the risk is to choose a different, safer game to entertain kids at a party, compared to the risk that a blindfolded kid swinging a bat could whack some other kid in the head and cause serious injury.

Some students thought I was just being, as usual, overly cautious Tortman, but then I came across this sign at a picnic area while bike-riding in Shelby Farms. Vindicated.

But wait, what is up with that prohibition on metal detecting?

Warning: No Happy Children

No child labor pictorial announcement.If you come here often, you know we love pictorial product warnings. Pictorial warnings are intended to explain product dangers in a universal symbol or picture that can be universally understood even by people who cannot read or who speak and read a different language.

Here we have a pictorial product announcement on the back of a rug indicating the company uses no child labor. Very commendable.

The test for a pictorial symbol is whether it communicates its intended message without textual explanation.  So take away the “No Child Labor” words and what do you see?  A “No Happy Children” warning.

Not quite sure why the manufacturer felt it necessary to include a pictorial symbol in the first place, unless universal pictorial warnings have been transmuted into marketing tools–which will further dilute their already limited uility as product-risk warnings.

Or, maybe the manufacturer really is warning consumers not to use child labor. I can see some kid whose allowance includes vacuuming balking to mom and dad, “You’re violating this warning! I’m calling the labor department!”


Warning: Hurry When You Cross This Street!

Crosswalk sign with energy drink.Okay, that’s probably not the original message of this crosswalk sign, found on the University of Florida campus, but a sense of urgency was added when someone doctored the sign by adding a can of Red Bull … and angel wings?

Warning: Canadian Coffee Seller Makes Fun of Hot Coffee Warnings

Liebeck coffee burn.

One of the milder pictures of  Stella Liebeck’s coffee burn injuries.

Any mention of lawsuits and hot coffee invariably invokes the grossly misunderstood “McDonald’s coffee spill” case of Stella Liebeck, a 79-old-woman who suffered third-degree burns after spilling a stryrofoam, takeout cup of McDonald’s coffee on her legs.

I apologize for the gruesome picture, but a large part of the misunderstanding of this case comes from people not appreciating that Ms. Liebeck suffered extremely severe injuries. There are much worse pictures of her injuries available on the internet. There is also a ton of information, and misinformation, out there about the McDonald’s case. Here (scroll down to “Public Perceptions: The McDonald’s Coffee Spill”) and here are a couple accounts of the facts. You might also want to check out the movie, Hot Coffee, which explores the McDonald’s case and, more generally, the tort reform movement.

Canadian coffee cup warning

Sideways on purpose. Click to expand.

At least one Canadian coffee seller found the idea of warning consumers about hot coffee to be amusing:

“If this was another country, we’d have to tell you this coffee may be hot. Good thing this is Canada!”

Spot the Tort: What a Tortious Web We Weave When First We Practice Technology

Torts in law schoolsLaw schools, filled as they are with lawyers and law students, are pretty safe places, but they sometimes present their own dangerous premises issues, as here in a University of Memphis classroom where students were trying out some new technology that has not reached the wireless stage. The result: a spider web of trip and fall possibilities. Thanks to Rachel Cade.

Warning: Sad Pumpkins Should Avoid Hair Rubberbands

Goody hair bands pictorial warningPictorial warnings are intended to explain product dangers in a universal symbol or picture that can be universally understood even by people who cannot read or who speak and read a different language.

Unfortunately, coherently explaining product risks usually is hard to do in a single image. A picture may be worth a thousand words, but product warnings can be better explained in words (unfortunately, many litigation risk-averse product makers insist on using the full thousand or more, but that’s a different issue).

Here we have a pictorial warning about hair rubberbands. As the written part of the pictured warning shows (all thumbnails are expandable), they can present a choking hazard to young children. But what if one can’t read the printed warning?  That’s where the symbol warning against use by children under three comes in.

But wouldn’t it be easy to do and more effective to create a symbol that looked more like a child and less like a melancholy pumpkin?

Warning: Halloween Grease Makeup Promises Tricks, Not Treats

Grease paint product warnings.Getting in the Halloween spirit, I was in a drug store reading warning labels for Halloween products and came across this Grease Makeup. Looks like fun stuff, right?

Not as fun as you might think. First, don’t expect to end up looking like this clown.Grease paint product warnings.






Why? Because–Bozo warning alert–the instructions on the back of this one quarter-inch thick transparent package clearly state: “COSTUMES AND ACCESSORIES SHOWN IN PHOTO NOT INCLUDED.”

Grease makeup product warnings.But things get worse. Ready to have some fun applying your grease makeup? Like the thought of sporting red or maybe yellow eyes at the costume party? Forget about it. How about pink or purple?  Scratch those too. Maybe green? Orange? No, No. All of those colors are banned from eye-area application. And don’t even think about going with blue, green or purple lips:

Grease makeup product warnings.Have a happy, complicated Halloween with your grease makeup!

2012 Spot the Tort Contest: Good Doggie, Bad Doggie

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Inside Otis: No Tort. Outside Otis: Tort — John McNeil

2012 Spot the Tort Contest

2012 Spot the Tort Contest

2012 Spot the Tort ContestYou thought “Risk” was a good game? Spotting risk is even more fun, and definitely more educational. As law students learn in Torts, the world is a dangerous place where the worst that can happen often does.

My 1Ls at the University of Memphis have been participating in a “Spot the Tort” Contest. Check out their photo entries. This is just one sample of the “accidents waiting to happen” they’ve documented in and around Memphis.

2012 Spot the Tort Contest: Tort With a View

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This guy was riding in the back of the truck on I-240 going 70 mph.  Can’t say if he made it to his destination, but I haven’t heard anything to the contrary on the news. — Meelad Hanna

2012 Spot the Tort Contest: Eat More Cow, Commit Fewer Torts

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Someone at my apartment complex left a trail of Chick-fil-A sauces on the ground. You could easily slip on one of these yummy packets if you are not careful! — Courtney Sharp

2012 Spot the Tort Contest: A River Runs Through It

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This tort waiting to happen has been staring me right in the face all along. This is the man-made stream that runs through my apartment complex. Lots of kids, most of them fairly young, play on the grassy area on its banks. The water’s probably not more than a foot deep, but I’ve heard kids aren’t very smart and can drown in an inch of water. — Natalie Worlow

2012 Spot the Tort Contest: [Don’t] Walk This Way

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

The box indicating when to walk and how much time remains is oriented in a way that those actually crossing at the corner cannot see.  I think a storm moved it a while ago and it has never been fixed. Not knowing how much time I had left to cross the street and avoiding death was the most exciting part of my morning. — Thomas Turner

2012 Spot the Tort Contest: Police Inaction

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Traffic lights are out at one of busiest intersections in downtown Memphis, Danny Thomas and A.W. Willis. (The camera made the scene look brighter than it was.)

Memphis PD are sitting in the turn lanes and off to the side outside of the lit areas with all lights off, not even running lights. Instead of directing traffic at the intersection, the police were watching drivers go through the intersection then pulling them over to give them tickets. On multiple occasions I witnessed, thankfully, near misses. — Rob Clapper

2012 Spot the Tort Contest: Watch Your Step

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This is where two slabs on concrete meet on a sidewalk at the corner of Front Street and Union.  It looks like the concrete began to buckle and someone “fixed” it by putting the metal cover so that it would be a smooth surface.  The only problem is that the metal is unhinged from the sidewalk and it protruding upwards, waiting for someone to trip over it and fall face first onto the concrete. — Ariel Anthony

2012 Spot the Tort Contest: Flesh-Ripping Bench

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This just seems like a bad situation waiting to happen. I’m not sure if it’s a tort but it seems like someone is going to get hurt. This bench is at bus stop across from the law school. — Rachel Cade

McClurg note: Yes, I would say this is definitely a potential tort, assuming the city had actual or constructive notice of it.  In fact, “a bad situation waiting to happen” is a good way to describe a potential tort.

2012 Spot the Tort Contest

Dedicated Law Student Gets Judge Hand Tattoo

Judge Learned Hand tattooAre you in law school? Do you consider yourself to be a dedicated law student? Not sure? Measure yourself on McClurg’s simple 0-100 scale, with 0 being “I’m not totally thrilled with Judge Learned Hand” and 100 being “I aspire to be like the guy in this picture.”

Years ago, a student of mine at the University of Arkansas at Little Rock School of Law took a trip, to Philadelphia, I think. He struck up a conversation with a tattoo artist in a bar. When the artist learned he was in law school, she asked, “Have you ever heard of a judge named Learned Hand?”  “Of course!” the student replied.  All law students know and remember Judge Learned Hand.

The artist said the young man above came into her tattoo parlor with the accompanying picture of Judge Hand (the picture is from the famous Prosser, Wade & Schwartz Torts casebook used at 124 law schools) and asked to have Judge Hand, wearing a jester cap, tattooed on his arm. As proof, she followed up and sent this photograph to my student, who entrusted it to me.

For non-legals, Judge Hand was a famous judge who in a famous case–U.S. v. Carroll Towing–set forth a famous algebraic economic cost-benefit formula for determining whether injury-causing conduct was reasonable or unreasonable. If reasonable, the defendant is off the hook. If unreasonable, the defendant is liable for negligence and must pay damages. The formula is B < P x L. B stands for the burden of avoiding a risk of harm, P is the probability that the risk will actually cause harm, and L stands for the severity of the harm if it occurs. The formula states that if the burden of avoiding the harm is less than the probability of the harm occurring multiplied by the severity of the potential harm, the conduct is unreasonable (i.e., negligent). Conversely, if the burden of avoiding the risk outweighs the probability times the severity of harm, the conduct is reasonable (i.e., non-negligent).

The back of the picture is stamped with “Tattoo & Photo by Sherry Sears, Creative Images, Des Moines, IA.” So if you want to impress your professors and university’s counseling department, book a ticket to Des Moines.

2012 Spot the Tort Contest: Plywood Playground

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

I am not sure if this is a tort, but I do know the neighborhood kids thought it was a playground! — Jessica Wargo

2012 Spot the Tort Contest: Multi-Ton Rolling Tort

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This truck was completely stopped and stuck on the curb, which is why I had a chance to take the picture. The quality is not the best, but the brake lights are not only broken they are smashed out. Also, nothing in the bed of the trailer is strapped down!

I was waiting for one of the plastic poles on the side to roll off. Then I noticed that the construction machine was not tied down. Then at this point I was wondering how much damage this would do if it came off the trailer. Gravity does not work miracles! — Jessica Wargo

2012 Spot the Tort Contest: Loose Chicken in Danger of Being Converted

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

My mom took a great picture for the contest! As you can see, someone lost their favorite pet chicken, and he just happened to wander out to Gus’s Fried Chicken in Collierville. Now Gus is all about saving money and the price of chicken these days is just so high … sounds like an exam question right? Trespass to chattels? Conversion? — Stewart Hornor

2012 Spot the Tort Contest: Gym Workout May Include Running to ER

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This is a photo of a potential tort I spotted at the gym this weekend. The negligence of failing to close this safety pin on a locker key could result in someone losing an eye or receiving an unwanted piercing. — Sheerin Mehdian

McClurg footnote: I would go further and argue this is a defective design for a locker room key ring.

2012 Spot the Tort Contest: Don’t Run to This Bathroom in a Hurry

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

The size of this restroom compared to the size of its vanity in a mom and pop restaurant in my hometown of Savannah, TN, appears to me to create a danger for people who enter the restroom without paying careful attention or to those needing to get out quickly in case of a fire. — Terry VanEaton

2012 Spot the Tort Contest: The Door to Nowhere

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Forget Palin’s Bridge to Nowhere; here’s my neighbor’s Door to Nowhere. I haven’t been able to find out why it’s there–except to tempt small children to try to fly. — Natalie Worlow

2012 Spot the Tort Contest: “Outside the Box” Electrical Outlet Danger

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Stubbed my toe and about busted on the carpet in the 4th floor reading room of the law school because of  this thing.

Now that we’re done with the memo, I’m hoping to get out this weekend to spot more torts. There will be a lot of Aggies in town for the Ole Miss game. To quote Top Gun, it’ll be a “target rich environment.” — Rob Clapper

2012 Spot the Tort Contest: Bathtub Tort Disguised as Tree Limb Tort

2012 Spot the Tort Contest

Bathtub in road hidden behind tree limb.

2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Here are a couple of (admittedly bad and small) photos of a partially fallen tree in the west bound lane of Stage-Delano Road [in Shelby County]. Hidden from the view of west bound motorist by the fallen tree, a danger in itself, was a fiberglass bathtub. The tub is visible to east bound motorists and is shown in the east bound photo. It was in the road for at least two weeks.

2012 Spot the Tort Contest

View from other direction.

Over that course of time, I noticed that the tub appeared to have been struck at least twice. I do not know if it was struck by a passing motorist. I can attest that damage to the tub increased at least twice over the course of my observations as I passed to and from the law school over the two weeks.

I am happy to report that it appears that the right of way on the street was mowed today and the tree and tub were removed. — Terry VanEaton

2012 Spot the Tort Contest: “Nearly Lost a Public Defender Here”

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Potential tort spotted at the corner of Front and Gayoso [in downtown Memphis]. I nearly lost a Shelby County Public Defender. — Melissa Harris

2012 Spot the Tort Contest: The Leaning Staircase of Memphis

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

This is the outside staircase I use each and every day at my apartment. It scares the living daylights out of me. It’s hard to tell from the pic, but the poles holding it up are leaning to the right. I like to think of it as the rusted out Leaning Staircase of Memphis. Sort of like the Leaning Tower of Pisa, only much more terrifying. — Natalie Worlow

2012 Spot the Tort Contest: Faulty Foundation

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Here’s a pic of the column holding up the front of my apartment building — resting on a few random bricks. Take my word for it that there’s no mortar between those bricks or anything physically connecting the column to said bricks. I’ll send you a pic of the outside staircase tomorrow–it scares me! — Natalie Worlow

2012 Spot the Tort Contest: Another Safety Cone Fix

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Just before school started the city public works department came to my house to replace a clay sewer pipe under the street.  I took these photos a few minutes ago.  I wonder how many more times I need to call them; I’m sure they could use the orange cone elsewhere! — Rick McCabe

2012 Spot the Tort Contest: Loose Pool Table

2012 Spot the Tort Contest2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Possible tort spotted this morning on Walnut Grove in front of Baptist East Hospital.  The picture is a bit blurry, but the pool table in the back of this tailgate-less truck was secured to the truck bed by nothing other than gravity. The truck also did not have functional brake lights, as we were all at a complete stop at the red light when I took the photo. — Melissa Harris

Spot the Tort: The Balcony Doors to Nowhere

dangerous balcony“I am just a nowhere man, falling into nowhere land, stepping through the balcony doors to nowhere.”

With apologies to the Beatles, that’s the tune that came to mind on receiving this picture of a second floor balcony with nowhere to go but down at a resort at Pickwick Lake in Tennessee.

The submitter said the doors open inward. While the railing no doubt helps, the open space at the bottom is still a tort waiting to happen.

Spot the Tort: Looks Like a Hogwarts Tort

hogwarts tort dangerous staircaseFrom a University of Memphis law student comes this photo of a treacherous, spiral staircase that looks like it would be a perfect set piece for a low-budget version of a Harry Potter movie. The student said the whole staircase, not just the railing, “wobbles all the way down.”

Spooky. And dangerous.

Seriously. Stairs, like ladders and any other place a person can fall from height, can be extremely perilous. One recent study found that 931,886 children under five were treated in emergency rooms for stair-related injuries from 1999 through 2008, averaging 93,189 injuries per year.

Speaking of Hogwarts Torts

Warning: Call for a Shower Mat

bathtub warningOne of my colleagues was amused and bemused by this warning sticker inside the shower stall of her hotel room during a vacation to Norway:


The bathtub can be slippery. Anti-slip mats are available at our housekeeper.

Please dial 7000.

Hmm, if the bathtubs are slippery, shouldn’t they already have mats in them? And isn’t it a bit too late to be dialing up the housekeeper for a mat once you’re already in the bath?

Warning: Defective Pictorial Warning on How to Deal with Mountain Lion Attacks

defective pictorial warningCourtesy of a rising 2L at the University of Memphis law school, we have another failed attempt at conveying warnings and instructions via pictorial symbols.

In evaluating pictorial warnings, remember that the principal purpose of pictorial warnings is to convey warnings to people who can’t read or read in a different language. If people could read the warnings, we wouldn’t need the pictures.

Thus, interpreting only the pictures, here’s what a non-English speaking park visitor might take away from these four frames of a sign warning about how to handle mountain lion attacks:

1. Top left: “After lion has bitten off your right hand, run AWAY from the lion. Follow the arrow. Never run toward a mountain lion.”

2. Top right: “Once you realize you can’t outrun a mountain lion and are handless, say the hell with it and give up.”

3. Bottom left: “If accompanied by children, offer them to the lion.”

4. Bottom right: “Don’t know. Can’t read it. That’s why I needed the pictures!”

Warning: You Lost Me at “Important”

Too many warnings.When manufacturers overwarn, it dilutes the impact of warnings that consumers really need to know about. Over-warning is a serious problem — not to be confused with global-warming, which is also really bad.

Given some of the silly and dangerous ways consumers misuse products, one can have sympathy for manufacturers that don’t want to take chances. I’ve done consulting work writing product warnings and instructions for manufacturers and confess that I advise erring on the side of giving too many warnings.

But to waste space and, more importantly, short consumer attention span on worthless warnings that lead with telling consumers to:

1. Read these instructions.

2. Keep these instructions.

3. Heed all warnings.

4. Follow all instructions

… is just stupid. The most important warnings should come first. Even diligent consumers are going to tune out quickly reading these warnings (which led to the headline, a reversal of the famous line from Jerry McGuire, “You had me at hello”). No manufacturer has been or ever will be held liable for failing to warn consumers to read and keep their warnings and instructions.

Meanwhile, the list of warnings for this apparently incredibly dangerous alarm clock went on much longer, but I cut it off.

Cardozo’s Pub

Cardozo's Pub Palsgraf

Two drink minimum; No packages wrapped in newspaper.

A student of mine posted this pic on Facebook of “Cardozo’s Pub” in Chicago. Is “Andrews’ Billiard Hall” next door by any chance?

For non-legals, Judge Benjamin Cardozo is one of the most famous American jurists. He authored several judicial opinions read by law students, including the majority opinion in Palsgraf v. Long Island Railroad. Judge William Andrews wrote a famous dissent in the same case.

Palsgraf, studied by every first-year law student, is the improbable tale of a set of scales allegedly knocked on top of the plaintiff, Mrs. Helen Palsgraf, as a result of an explosion that occurred when a man running to catch a train dropped a package of fireworks while being helped onto the train by railroad employees.

For the completely true fake inside story behind these opinions, check out Palsgraf Uncovered). Other posts related to the famous case are here, here, and here.

No known connection exists between this Chicago pub and the real Judge Cardozo.

Warning: Candy May Contain “Human Flesh”

human flesh in candyA Facebook friend posted this picture of a candy wrapper, featuring the warning:


Not sure where he got it or if it’s real. It doesn’t look Photoshopped (but it’s hard to tell sometimes).

Human tissue does sometimes end up in food products during the manufacturing process, probably more often than we would want to know.

My favorite “flesh in food” cases is a 94-year-old Mississippi Supreme Court case where the plaintiff found a human toe in a plug of chewing tobacco. That’s one way to “kick” the habit.  Har, har.

The plaintiff couldn’t prove how the toe got there, so he invoked res ipsa loquitur. For non-legals, res ipsa loquitur is a procedural device that allows a tort plaintiff to get his case to a jury despite a lack of specific evidence that the defendant was negligent if: (1) the injury-causing event is of a nature that ordinarily would not happen unless someone was negligent; and (2) the defendant had control of the instrumentality at the time the negligence most likely occurred.

I have always loved the Mississippi court’s terse analysis of the first element: “We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.” Pillars v. R.J. Reynolds, 78 So. 365 (1918).

But is human flesh getting into food really such an extensive problem that manufactuters feel obligated to warn about it? This is either a fishy warning or our food supply and worker safety programs are in worse shape than believed. Or, a third possibility is that California passed a law.

Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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