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.

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:

WHAT TO DO WHEN THE ALARM SOUNDS  

• 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.

Freudian Slip By Defense Lawyer?

What would this guy have to say about it?
What would this guy have to say about it?

When a defense lawyer in a defective building case says “scare and kill” when he means to say “care and skill,” is that just being tongue-tied, or is it a Freudian slip?

From a judge friend comes this:

In a recent motion hearing in a multi-party construction case, the attorney for the developer of the allegedly defective building intended to refer in his argument to his client’s “care and skill” in constructing the involved building. He got a little tongue-tied, however: instead of referring to his client’s construction method as involving “care and skill,” he identified it as one involving “scare and kill.”

Simplistically, a Freudian slip is an unintentional word snafu that reveals subconscious thoughts or feelings.

No Prejudice in This Dismissal

GavelA lawyer friend in Jacksonville, FL sent along this funny story about a plaintiff who objected to his complaint being dismissed “with prejudice”:

At a mediation, a settlement agreement was reached, so the mediator formalized it in a written document.  The plaintiff’s lawyer was going over each of the terms in the document  with the plaintiff.  When they  got to the term that stated “Plaintiff will dismiss the Complaint with prejudice,” the client looked up and adamantly stated, “I will not!  I am not prejudiced, and believe everyone is equal under the eyes of God.”

For non-lawyers, “dismissed with prejudice” is a legal term of art meaning that a case cannot be re-filed.  “Dismissed without prejudice” means that case can later be re-filed.  Needless to say, for settlements and other final dispositions of cases, defendants insist that the case be dismissed with prejudice.

 

Supreme Court Emoji Challenge

Thinky EmojiInsurance law expert and all-around funny, clever guy Randy Maniloff has come up with a fun test for spelling out the names of 10 famous U.S. Supreme Court cases using only emoji.  How did this come about?  He explains in his latest issue of Coverage Opinions:

The other night I was out to dinner with my 9 year old daughter. As we waited for her mac & cheese to arrive I decided to give her a lesson on the Supreme Court. I figured I’d start with the basic operation of the federal judiciary. From there move on to some landmark Supreme Court cases. And by dessert we’d be discussing the Necessary and Proper Clause. But she wanted no part of it – begging me to stop.

So I took a different tack. I’d tell her about a case and then she would use my phone to find emojis to write out the case name. This idea she loved. While it didn’t last long, as dinner arrived, it gave me an idea: The Supreme Court “Emoji Challenge.”

For non-lawyers, the first takeaway from this is how geeky lawyers can be.  My own daughter grew up playing “Spot the Tort.”

I confess I fared poorly on the exam, but maybe it’s a generational issue.  Law students: Be sure to take the test. Rumor has it that several Constitutional Law professors (only at the higher-ranked schools) intend to use it on their upcoming Spring final exams.

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.

The Golden Mean in the Gun Debate

Howard Law Journal (002)Andrew Jay McClurg, In Search of the Golden Mean in the Gun Debate, 58 Howard Law Journal 779-809 (2015).

The American gun debate is stuck and has been for a long time. Both sides remain trapped by their own hyperbolic rhetoric and reasoning fallacies, with the result that partisans are being heard only by those who already agree with them. This essay asserts that there is such a thing as “reasonable middle ground” in the gun debate and seeks to prove it by analyzing five specific measures that have the potential to reduce gun violence without infringing legitimate Second Amendment rights:

(1) bolstering federal support for research into the causes and prevention of gun violence, which Congress has blocked since the 1990s;

(2) extending instant background checks, currently required only for sales by licensed firearms dealers, to all gun sales;

(3) requiring gun purchasers to demonstrate their knowledge of state gun laws and basic gun safety rules and also their ability to safely handle the gun they are purchasing;

(4) mandating security measures by retail gun sellers to prevent theft; and

(5) implementing microstamping technology that would enable law enforcement to trace crime guns and ammunition cartridges found at crime scenes, facilitating the apprehension and prosecution of violent criminals.

While more substantial measures would be more effective in combating gun deaths and injuries, this essay purposely selected limited measures with the hopeful goal of getting people to recognize that there may well be middle-ground or a “golden mean” in the gun debate.