Andrew McClurg's

Spot the Tort: Missing Grate Not So Great for Safety

Thanks to Duncan Young, a childhood friend from back in South Florida, for this pic of a dangerous pedestrian/jogger/pet/bike rider/car-absorbing death-trap on a Ft. Lauderdale street where the grate is missing.

As a good citizen (and police chief of a neighboring community), he reported it. The next time he drove by a new grate had been installed.

No way to know whether the quick corrective action occurred because: (1) Duncan is a police chief of a neighboring community; (2) the city has genuine concern for its citizens; or (3) the city has genuine concerns about being sued.

Should Judges Rhyme?

Should judges rhyme? A recent offering by Justice Michael Eakin (Pa. Sup. Ct.), one of the better rhyming judges, is submitted for your expert poetic analysis, preferably with reference to the late romantic period of Shelly, Byron and Keats.

Sung to the tune of the theme song from “Mr. Ed,” the television sitcom about the talking horse, here is part of Justice Eakin’s rhyming dissent from a ruling that the state’s drunk driving law does not apply to people on horses:

A horse is a horse, of course, of course,

but the Vehicle Code does not divorce

its application from, perforce,

a steed, as my colleagues said.

“It’s not vague” I’ll say until I’m hoarse,

and whether a car, a truck or horse

this law applies with equal force,

and I’d reverse instead.

To which we can add, with all due respect to Justice Eakin:

Justice Eakin, we love you, man,

for trying to do whatever you can

to spice up the lives of bar and bench.

But although it’s a dicey subject to broach,

could you please consider another approach?

‘Cause that latest rhyme gives off a bit of a stench.

Just kidding around, Justice Eakin. We love ya. Other Justice Eakin rhymes can be found here.

— Commonwealth v. Noel, 857 A.2d 1283, 1291 (Pa. 2004) (Eakin, J., dissenting). Thanks to Kelly Jordan.

Santa Claus Still in Legal Trouble in Ohio

santa claus lawsuit — Maybe he really is Santa Claus.

Warren J. Hays continued to brew trouble with that official Ohio identification card issued to him in the name of Santa Claus, listing his address as 1 Noel Drive, showing his birth date as December 25, 1900, and bearing a picture of him in a false beard.

“Santa Claus Is Coming to Court” recalls part one of the drama.

After being involved in a minor accident in his car, “which resembled a sleigh,” Hays presented his Santa Claus ID to the other party, who showed it to a police officer-friend of hers. The officer, suspecting that Hays might not really be Santa Claus, met with the prosecutor, who filed a misdemeanor complaint against Hays alleging that he provided false information in obtaining an the Ohio ID card.

The instant action was Hays’ suit for malicious prosecution and abuse of process, which he lost.

The burning question remains: How does a man claiming to be Santa Claus obtain an official state ID card? On the other hand, maybe he really is Santa Claus, in which case the state should quit hassling him so he can get ready for the holidays.

— Hays v. Merkel, Case No. 2003-T-0082, 2004 Ohio App. LEXIS 4476 (Ohio Ct. App. 2004). Thanks to Matt Vansuch.

Sing This Tax Opinion with a Twang

Think judges of the U.S. Tax Court are staid? Well, yes, probably. But in 1983, one of them cut loose with a rhyming opinion in a case involving country singer Conway Twitty’s defunct “Twitty Burger” restaurants:

Twitty Burger went belly up

But Conway remained true

He repaid his investors, one and all

It was the moral thing to do.

His fans would not have liked it

It could have hurt his fame

Had any investors sued him

Like Merle Haggard or Sonny James.

When it was time to file taxes

Conway thought what he would do

Was deduct those payments as a business expense

Under section one-sixty-two.

In order to allow these deductions

Goes the argument of the Commissioner

The payments must be ordinary and necessary

To a business of the petitioner.

Had Conway not repaid the investors

His career would have been under cloud,

Under the unique facts of this case

Held: The deductions are allowed.

Interesting factoids in the opinion include the revelations that Conway Twitty’s real name was Harold Jenkins and that he began his career in rock and roll before crossing over to country music in 1965.

— Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (T.C. 1983). Thanks to Professor Jose Gabilondo.

The Hard Life and Times of Nutkin the Squirrel

Appellate Judge Joseph Hudock of the Superior Court of Pennsylania treated us to a classic in a case involving a poor little persecuted squirrel named Nutkin.

For an alleged questionable motive (explained in the opinion), the state decided to prosecute Nutkin’s owner for keeping the squirrel as a family pet in violation of Pennsylvania wildlife laws. The good news is that Nutkin and the owner won. The better news is Judge Hudock’s opinion. This one is worth reading in full. Here are the opening paragraphs to give you a taste:

1. This appeal revolves around the life and times of Nutkin the squirrel.

2. Nutkin’s early life was spent in the state of nature ferrae naturae, in the state of South Carolina, and, as far as we can tell, in a state of contentment. She apparently had plenty of nuts to eat and trees to climb, and her male friends, while not particularly handsome, did have nice personalities. Life was good.

3. Then one day tragedy struck: Nutkin fell from her tree nest!

4. But fate was kind. Nutkin was found and adopted by Appellant and her husband who, at that time, were residents of South Carolina. Appellant lovingly nursed Nutkin back to health, and Nutkin became the family pet. . . . Life was good again.

5. Nutkin’s captivity and domestication were perfectly legal in South Carolina, possibly a reflection of that state’s long tradition of hospitality to all.

6. In 1994, Appellant and her husband moved to Pennsylvania and brought Nutkin with them. Life was full of promise.

7. Dark clouds began to gather, however … [when the mean old state of Pennsylvania came into the picture and tried to take Nutkin away].

. . .

9. Nutkin would then learn the shocking truth that the cheery Pennsylvania slogan “You’ve got a friend in Pennsylvania” did not apply to four-legged critters like Nutkin.

If you track down the full opinion, keep an eye out for the funny analogy Judge Hudock draws between old squirrels and old appellate judges.

— Commonwealth v. Gosselin, 861 A.2d 996, 997–98 (Pa. Super. Ct. 2004). Thanks to Ryan Kriger.

Judge Evans Hits a Home Run (Evans)

Judge Terence Evans funny opinions — Judge Terence T. Evans - Lawhaha.com Hall of Fame Judge

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit, passed away on August 11, 2011. Here’s a nice tribute to him on the Marquette law school (where he attended law school) faculty blog.

All accounts of Judge Evans and his life mention his keen sense of humor, which certainly shined through in several his judicial opinions. He’s elected to Lawhaha.com’s Strange Judicial Opinions Hall of Fame for the way he pragmatically and cleverly wove humor, especially sports and pop culture, into his opinions, never resorting to sarcasm or belittling as means for amusement. Lawhaha.com’s entries of Evans’ opinions were written long before his death:

If ESPN ever needs a replacement for Chris Berman, here is the perfect candidate: Judge Terence T. Evans of the U.S. Court of Appeals for the Seventh Circuit.

This is a guy with such a deep love for sports that he began his opinion in Hunt’s Generator Committee v. Babcock & Wilcox Co. expressing the wistful sentiment that he would rather be getting ready to watch the World Series than writing an opinion about successor liability for a landfill cleanup. He asked forgiveness if his mind wandered a bit in the opinion.

And wander it did. Reciting the dates of the landfill’s operation sparked fond baseball memories for Judge Evans.

So what that the landfill began operating in September 1959. That date has much more important baseball significance, as Judge Evans explained in this footnote:

FN1. September of 1959 was an exciting time. The San Francisco Giants–who blew off Manhattan’s Polo Grounds after the 1957 season–were leading the Dodgers and the Braves (Milwaukee, not Atlanta) by two games with eight to go in the race for the National League Pennant. But the Giants were playing in old Seals Stadium (a minor league park), a place not suited for World Series play. If they made it to the Series, they thought, they might want to play in the yet unfinished Candlestick Park. They were in a pickle–which way would they go? Fortunately, their old friends, the Dodgers (who, like the Giants, had broken hearts the year before by running away from Ebbets Field) came to the rescue. The Dodgers beat the Giants three straight times over the weekend of September 19-20, sending the Giants reeling into third place. There would be no need to choose between Candlestick Park and Seals Stadium. …

Another party operated the landfill until September 1970, but again, Judge Evans was distracted by the date’s importance to the national pastime:

FN2. In September of 1970, the Milwaukee Brewers were drawing the curtain on their maiden campaign in Milwaukee. Despite the fact that they finished 65-97, 33 games out of the race, baseball was back in town and Milwaukee fans were loving it.

Other important dates included April 8, 1975, the day asset acquisition on the landfill was closed, but more significantly:

FN4. April 8, 1975, was the one-year anniversary of Henry Aaron’s historical 715th dinger which broke Babe Ruth’s lifetime record of 714.

In Olinger v. U.S. Golf Ass’n, Judge Evans demonstrated that his sports knowledge is not limited to baseball. Olinger was a suit by a disabled professional golfer seeking to be allowed to use a golf cart in the U.S. Open, in conflict with the rule that all participants must walk (the U.S. Supreme Court later decided in golfer Casey Martin’s case that the rule must give way under the ADA).

Judge Evans’ defense of the tradition that players must walk is not only impassioned, but provides enough golf factoids to fill a Trivial Pursuit game dedicated solely to golf (fitting, since the activity is one of the quintessential trivial pursuits). For example, did you know that the official “Rules of Golf” provide a two-stroke penalty for asking an opponent how far away he thinks the green is?

— Hunt’s Generator Comm. v. Babcock & Wilcox Co., 863 F. Supp. 879, 881–82 nn. 1, 2, 4 (E.D. Wis. 1994); Olinger v. U.S. Golf Ass’n, 205 F.3d 1001, 1003 (7th Cir. 2000). Thanks to Cynthia Cohan.

The Real Slim Shady Is Not a Michigan Trial Judge

Michigan Circuit Court Judge Deborah Servitto rapped part of her recent decision dismissing a defamation case brought against Eminem.

Eminem’s 1999 CD, “The Slim Shady LP,” included a song called “Brain Damage” in which Eminem accused one DeAngelo Bailey of bullying and battering him while the two were in elementary school: “Way before my baby daughter Hailey, I was harassed daily by this fat kid named DeAngelo Bailey … He banged my head against the urinal until he broke my nose, soaked my clothes in blood, grabbed me and choked my throat.”

Bailey sued for defamation, denying that he ever bullied or battered Em. Servitto dismissed the complaint on the ground that the statements in the song were mere rhetorical hyperbole, rather than statements that could be construed as stating actual facts about a person.

Thanks to several loyal lawhaha.com visitors, we now have the full text of the attempted rap for you, which is found in the last footnote of Servitto’s 14-page opinion:

11. To convey the Court’s opinion to fans of rap, the Court’s research staff has helped the Court put the decision into a universally understandable format:

Mr. Bailey complains that his rap is trash

So he’s seeking compensation in the form of cash

Bailey thinks he’s entitled to some monetary gain

Because Eminem used his name in vain

Eminem says Bailey used to throw him around

Beat him up in the john, shoved his face in the ground

Eminem contends that his rap is protected

By the rights guaranteed by the first amendment

Eminem maintains that the story is true

And that Bailey beat him black and blue

In the alternative he states that the story is phony

And a reasonable person would think it’s baloney

The Court must always balance the rights

Of a defendant and one placed in a false light

If the plaintiff presents no question of fact

To dismiss is the only acceptable act

If the language used is anything but pleasin’

It must be highly objectionable to a person of reason

Even if objectionable and causing offense

Self-help is the first line of defense

Yet when Bailey actually spoke to the press

What do you think he didn’t address?

Those false light charges that so disturbed

Prompted from Bailey not a single word.

So highly objectionable it could not be

–Bailey was happy to hear his name on a CD

Bailey also admitted he was a bully in youth

Which makes what Marshall said substantial truth

This doctrine is a defense well known

And renders Bailey’s case substantially blown

The lyrics are stories no one would take as fact

They’re an exaggeration of a childish fact

Any reasonable person could clearly see

That the lyrics could only be hyperbole

It is therefore this Court’s ultimate position

That Eminem is entitled to summary disposition

Will Bailey appeal? Judge Servitto probably would advise him to just “peace out, dawg.”

— Bailey v. Mathers, Case No. 2001-3606-NO, slip op. at 13 n. 11 (Macomb County Circuit Court, Oct. 17, 2003). Thanks to Jason Blalock, Geoff Brown, Mark Rodan, and Melanie Ware.

Hark the Herald Angels File Their Motion to Dismiss

The law is becoming increasingly well-settled that serious jurisdictional obstacles confront those who sue biblical beings. A suit against Satan and His Staff ran into trouble, as did this lawsuit against his opponents, filed in a federal court in Pennsylvania:

McGLYNN, District Judge.

In what purports to be a civil rights action, the only defendants identified by name are God and Jesus. The complaint simply states “Treating Inhuman Sex.” The papers were accompanied by a petition to proceed in forma pauperis and it would appear that plaintiff qualifies to do so.

Nevertheless, the complaint must be dismissed because quite apart from the question of service on the principal defendants, there is no factual basis for the exercise of this court’s subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).

— Jones v. God, Civ. A. No. 90-0742, 1991 WL 42399 (E.D. Pa. 1991, March 25, 1991). Thanks to Lihwei Lin.

Wanted: Expert Witness in Nizzle Shizzling

In a copyright battle between two British rap bands, an English court ruled that rap lyrics should for practical purposes be considered a “foreign language,” requiring expert testimony as to their interpretation.

British band Ant’ill Mob sued another band, Heartless Crew, alleging the defendant disparaged the band’s copyright for its 2001 hit song, “Burnin’,” by remixing the song using lyrics the plaintiff considered objectionable because they allegedly refer to drugs and violence, including the terms “shizzle my nizzle,” “mish mash man,” and “string dem up.”

Even after playing the record at half speed and consulting the Urban Dictionary, Judge Kim Lewison said he could not determine the meaning of the phrases without an expert witness.

The amusing predicament of three uppercrust, white, middle-aged judges trying to unravel rap slang was not lost on Judge Kim, who commented on the “faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases.”

According to the Urban Dictionary (urbandictionary.com), “shizzle my nizzle” means:

a bastardization of “fo’ sheezy mah neezy,” a bastardization of “for sure mah n—,” a bastardization of “I concur with you wholeheartedly my African-American brother.

— Confetti Records v. Warner Music UK Ltd, [2003] EWHC 1274 (Ch). Thanks to Cynthia Cohan, Elise Hendrick, and Catherine Seville for sending this opinion. Catherine is the Director of Studies in Law at Newnham College in Cambridge and reports that Judge Lewison is “a good Cambridge man.” Indeed.

Weakest Argument in Appellate History?

Stressed out that you just lost a case and have weak grounds for appeal? Cheer up. It could be worse. What if your strongest argument on appeal was that your client’s name was typed in all capital letters in the trial court documents?

That was the situation in R v. Linehan, a case from the Alberta (Canada) Court of Queen’s Bench, where a defendant convicted for failing to file a tax return pinned his appellate hopes on the argument that his name should not have been spelled in all capital letters. Here are some excerpts from his argument:

1. There is no jurisdiction to tax the flesh and blood, of the lawful natural person.

2. GORDON LINEHAN in the charges is a fictional artificial person’s name.

3. GORDON LINEHAN is outside the definition of a proper noun.

4. A proper noun would spell my proper lawful name Gordon Linehan.

5. The new Oxford Dictionary of English published by the Oxford university Press, 1998, states:

Proper Noun. Noun. A name used for an individual person, place or organization spelled with an initial capital letter, e.g. Jane London.

Name Noun. Noun 1. A word or set of words by which a person, animal, place or thing is known, addressed, or referred to: my name is a Parsons, John Parson.

6. The Newbury House Dictionary of American English, published by Monroe Allen Publishers, Inc., 1999, states: “Name N. 1. (C) A word by which a person, place or thing is known. Her name is Diane Daniels.”

7. Plain English. A guide to Standard Usage and Clear Writing. Prentice – Hull Canada Inc. publishers. C. Edward Collins, and Hugh D. Reads, the authors. Both authors are from the Northern Alberta Institute of Technology, otherwise known by the acronym (NAIT). Chapter 2 states: Every noun can be classified as either a proper noun or a common noun. A proper noun names a particular person or thing. It begins with a letter. Examples are: Emily, Ford, and December, note capital letters for the first letter, lower case letter for the following. A common noun identifies a person or thing in a general way. It begins with a small letter unless it is at the beginning of a sentence. Examples are: month, car, and education.

8. I found no example in any recognized reference book that specifies or allows the use of all capitalized names, proper or common nouns.

9. The National Aeronautics and Space Administration (NASA), publication SP-7084 states at chapter 4 in the introduction 4.1 “First we should define terms used when discussing capitalization.” …

Those who lack faith in the legal system, take heart! The argument did not succeed.

— R. v. Lineham, (2000) 276 A.R. 383 (Can. Alta Q.B.). Thanks to David Cheifetz