Curious Legal Issues Archives

Baby Showers with Guns

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)

Tomatos are Vegetables as a Matter of Law, So Says the U.S. Supreme Court

The next time someone raises the age-old debate as to whether a tomato is a fruit or a vegetable, show off your legal acuity (or nerdiness) by informing them you have it on good authority that tomatos are vegetables. No, in fact, make that great authority. Who? The U.S. Supreme Court.

More than 100 years ago, in Nix v. Hedden, Justice Horace Gray, speaking on behalf of a unanimous Supreme Court, ruled that a tomato is a vegetable as a matter of law.

The Tariff Act of 1883 declared a 10 percent duty on all vegetables entering the country, but allowed fruit to enter duty-free. The New York Customs Collector saw an opportunity to increase revenue and declared the tomato to be a vegetable.

Angry importers sued and their case reached the Supreme Court, where Justice Gray said: “[A]lthough botanists consider the tomato a fruit, tomatoes are eaten as a principal part of a meal, like squash or peas, (and all grow on vines), so it is the court’s decision that the tomato is a vegetable.”

— Nix v. Hedden, 149 U.S. 304 (1893). Thanks to Lihwei Lin.

Wishing Trial Judge Happy Birthday on Facebook Not an Ex Parte Communication

Facebook Button — Friend your trial judge on Facebook.

Facebook is creating a quickly growing pile of novel legal issues in a variety of areas. Here’s one of the first to reach a state supreme court: Does a witness’ wishing a trial judge happy birthday on the judge’s Facebook page violate the rules on ex parte communications?

The plaintiff in Onnen v. Sioux Falls Independent School District # 49-5 worked as the registrar for Southeast Technical Institute in Sioux Falls—an entity of the Sioux Falls School District. Plaintiff was terminated from employment in August 2007 due to improprieties relating to the registrar’s duty to verify a student’s compliance with graduation requirements. Among other things, some 28 students had been improperly awarded degrees, while 40-50 students entitled to a diploma did not receive one. The plaintiff appealed the termination. The trial court affirmed the decision and the South Dakota Supreme Court affirmed the trial court’s decision.

Among the issues raised on appeal, the plaintiff argued that a “major witness” for the School District had improperly engaged in an ex parte communication with the trial judge by wishing him “Happy Birthday” on the judge’s Facebook profile page. The court held that the trial judge was not required to disqualify himself and that an uninvited and unresponded-to happy birthday greeting on Facebook does not rise to the level of an improper ex parte communication.

I’m assuming the witness (who apparently was a distant relative of the judge) was a Facebook friend of the judge to be able to post a birthday greeting. If so, is that a problem? Some states have rules prohibiting judges from being on Facebook. Is that a free speech violation? An interesting legal question raised by social networking–one of first of what is going to be a long list.

— Onnen v. Sioux Falls Independent School District, Case No. 49-5, 2011 S.D. 85 (2011). Thanks to Professor Roger Baron.

Squirrels Not “Vermin” According to Judge

Rats, clearly agitated about their shrinking legal rights after judge announces squirrels are better than them. — Rats, agitated about their shrinking legal rights after judge rules that squirrels are better than them.

In a 1954 Georgia case, an insured sued his insurance company for property damage caused by a squirrel. The insurance company denied coverage under an exclusion for “vermin.” The issue was whether squirrels are vermin or some higher grade species. The court ruled for the plaintiff, stating (some paragraph breaks inserted):

The brief of counsel for the defendant in error (which, incidentally; includes an excellent recipe for squirrel stew) concludes with the following words, with which this court is inclined to agree:

“‘Vermin’ is a mighty harsh word to hurl at our little friend the squirrel. He has long been well considered and much thought of as a pet and an attractive addition to the scenery of any city, garden, or country yard. He is praised in song and story as a shining example to mankind of industry and thrift. It is respectfully submitted that this court should not label the little fellow as nothing more than ‘vermin’.”

It is all the easier to agree with this encomium, as the question of whether squirrels are vermin was submitted to the jury, and the plaintiff offered without objection a wealth of technical and opinion evidence to the effect that it is not so classified (vermin being “any noxious, mischievous or disgusting animal”), whereas the defendant failed to place our furry friend within the limitations of this category.

He certainly does not belong there as a matter of law, and as a matter of fact we are well content to leave the verdict undisturbed, there being no evidence to the contrary.

Nutkin the Squirrel would be pleased. As someone pointed out in a comment, this case is amusing, but also a good lesson in the importance of paying attention to every word when drafting legal documents, especially documents such as insurance policies that by their very nature depend on definitions.

— North British & Mercantile Ins. Co. v. Mercer, 82 S.E.2d 41 (Ga. App. 1954). Thanks to Paul Scott.

Goldfish Qualify as “Animal Companions”

In People v. Garcia, the defendant appealed his conviction on multiple charges arising from a domestic assault episode that included stomping on some poor kids’ pet goldfish.

Judge James Catterson’s opinion explored the intriguing legal question of whether goldfish qualify as “animal companions” under statutes imposing enhanced felony penalties for abusing such companions.

The opinion started with an interesting history of animal domestication:

The earliest known domestic animal appears to be the dog, a companion to mankind as early as 15,000 B.C. Goats, sheep, pigs and cows followed in domestication in the next ten thousand years. Horses, however, did not succumb to the lure of mankind’s presence until 4000 B.C. The domestication of fish is believed to have begun much later, in China during the Tang Dynasty, around 620 A.D. The common goldfish (Carassius Auratus), a member of the carp family that was first domesticated in China, is now the most commonly kept aquarium fish. The goldfish’s leap from domesticated fish to family pet and companion may have happened as early as 1368 during the Ming Dynasty. The goldfish’s popularity in the West began as the first public aquarium opened in London in 1853. Keeping goldfish as companions and pets in the United States has been popular since that time.

The criminal statute at issue defined “companion animal” as any dog or cat or “other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal.” The defendant argued that goldfish don’t qualify.

Here’s a healthy excerpt of Judge Catterson’s terse, well-reasoned analysis of the issue:

The defendant contends that a fish is not a companion animal because it is not domesticated and because there is no reciprocity or mutuality of feeling between a fish and its owner, such as there is between a dog or a cat and its owner.

[The defendant cites to Am. Jur. 2d, which] defines “domesticated animals” as those that “no longer possess the disposition or inclination to escape,” and claims that “if dropped in a pond and offered the opportunity to swim away, a goldfish will do so without any hesitation and not look back”. He maintains that the statute’s reference to “any other” domesticated animal limits “companion animals” to those that are similar to dogs or cats, that is, those with a degree of sentience sufficiently elevated to enable them to enter into a relationship of mutual affection with a human being. Furthermore, “[b]eloved household pets (fish) may be, but ‘companion animals’ in the same vein as dogs or cats they are not”.

The defendant’s contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute. The Legislature simply did not require a reciprocity of affection in the definition of “companion animal.” To the contrary, the statutory language is consistent with the People’s contention that “domesticated” is commonly understood to mean “to adapt (an animal or plant) to life in intimate association with and to the advantage of humans”. Thus, a goldfish such as the one herein is a domesticated rather than a wild animal within the common meaning of the term. Moreover, the goldfish was, as the statute requires, “normally maintained in or near the household of the owner or person who cares for [them].” Indeed, acknowledging that the goldfish is one of the most common household pets, defense counsel stipulated at trial that there are “millions of fish owners throughout the country”.

The defendant’s argument that goldfish are not domesticated animals because given the opportunity they would leave home is without merit. While this trait arguably distinguishes fish from dogs and, probably to a lesser extent cats, it fails to take into account that many other animals commonly considered pets, such as hermit crabs, gerbils, hamsters, guinea pigs and rabbits, would depart for less confining venues and greener pastures if given the opportunity. Loyalty, if that is what it is, is merely another characteristic urged by defendant-but not included by the Legislature-as a defining feature of a companion animal.

Moreover, [the statute] provides that “[n]othing contained in this section shall be construed to prohibit or interfere in any way with anyone lawfully engaged in hunting, trapping, or fishing ….” (emphasis added). This provision would be superfluous if a fish could not be considered a companion animal.

— People v. Garcia, 29 A.D.3d 255, 257, 260–61 (N.Y. App. Div. 2006). Thanks to Dan Green.

Alabama No Longer Sweet Home to Wiretapping Spouses

ear — Spouses now have to resort to old-fashioned eavesdropping in Alabama.

Think of all the reasons people choose to live in different locales: job opportunities, climate, family ties, economic conditions, the ability to wiretap one’s spouse …

That last one might not have come readily to mind, but a U.S. Eleventh Circuit Court of Appeals judge thinks it could play into some couples’ relocation decisions. Read on:

An Alabama woman sued her former husband under the federal wiretapping act for taping her phone conversations made from within the marital home. The trial court granted summary judgment to the husband on the basis of a 1974 Fifth Circuit case, Simpson v. Simpson, which held that spouses can secretly tape each other’s conversations because of an implied interspousal wiretapping exception to the federal statute.

The Eleventh Circuit initially affirmed the summary judgment, relying on Simpson, but on rehearing en banc, reversed, overruling Simpson and the implied exception. It also ruled that the decision applied retroactively.

In dissent, Chief Judge Edmonson questioned whether it was fair to make the decision retroactive since some privacy-invading spouses might have relied on the exception in choosing to live within the Eleventh Circuit (which encompasses Alabama, Florida and Georgia). Edmonson wrote:

I am not trying to be facetious; but before today, some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law. Even if we think it unlikely that someone would live in our Circuit to avoid liability under federal law for wiretapping their spouse, it is our job to ensure that someone cannot be punished retroactively for doing so, as the act was clearly lawful.

In his concurring opinion, Judge Carnes addressed the Chief Judge’s concern satirically:

I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:

Jim: Honey, I’ve been thinking, we ought to move to Alabama.

Liz: But Sweetheart, I thought you liked living in Colorado.

Jim: I do, Sugar, but there’s a problem.

Liz: What’s troubling you, Sweetie?

Jim: Well, Punkin’, Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.

Liz: But Honeybun, doesn’t Alabama’s criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?

Jim: It does, Snookums, but all I’m worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.

Liz: You’ll look so good in jailhouse stripes, my Love. When do we move?

— Glazner v. Glazner, 347 F.3d 1212, 1228 n.13, 1223 (11th Cir. 2003) (Edmonson, C.J., dissenting, and Carnes, J., concurring). Thanks to Lisa Lin.

French Fries Ruled to be “Fresh Vegetables”

Great news for the diet-conscious. Frozen batter-dipped french fries are a “fresh vegetable” under the Perishable Agricultural Commodities Act, according to U.S. District Judge Richard Schell, Beaumont, Texas. And so are cheeseburgers!

Kidding about the cheeseburgers, but it’s true about the french fries. Although the court did not explicitly rule that french fries are fresh vegetables, that’s the legal effect of the opinion.

The ruling applies only to commerce, not nutrition, regulations, which focus on assuring buyers of agricultural commodities that they are getting what they paid for.

— Fleming Companies, Inc. v. U.S. Dep’t of Agriculture, 322 F.Supp.2d 744 (E.D. Tex. 2004). Thanks to Melanie Ware.

The Case that Turned on the Meaning of a Three-Letter French Word

You know a judicial document is going to be a great read when it is captioned:

Order Denying MAAF’s Motion to Preclude the French Phrase ”Quel Jeu Doit-on Jouer Vis-à-vis des Autorités de Californie?” From Being Translated as “What Game Must We Play With the California Authorities?”

This opinion from U.S. District Judge A. Howard Matz (C.D. Cal.) stemmed from the judge’s frustration in overseeing a series of over-litigated lawsuits arising from the collapse of a California insurance company. The motion giving rise to the order, after all, was the twentieth motion in limine the judge had addressed in recent days.

Judge Matz seemed irritated that “some of the French litigants caught up in these complicated cases are still coping with the ‘mystifying’ peculiarities of American courts. They appear to assume, for example, that no judge is capable of using common sense (and perhaps some pre-existing familiarity with French) to understand a straightforward French phrase.”

The motion turned on the meaning of the French word “jeu” in a document addressed to one of the French defendants. The document posed a question: “Quel jeu doit-on jouer vis-à-vis des autorités de Californie?” The California Insurance Commissioner’s expert asserted the question translates to: “What game must we play with the California authorities?” The defendant’s expert claimed it means: “What approach must we take with the California authorities?”

Judge Matz accused the defendant’s expert of playing games with the court (paragraph breaks inserted):

If M. Simonet [composer of the document] was not speaking about a “game,” surely Ms. Zarelli [defendant’s expert translator] is playing one. The problems with her declaration are abundant. First, she relies only on a French-to-French dictionary. Wouldn’t the fairest, most reliable way to ascertain the correct English meaning of “jeu,” as M. Simonet used it, be to consult a French to English dictionary?

That’s what the Commissioner’s expert translator does: she points to Harrap’s Shorter Dictionnaire. . . . And what does that more reliable source reveal? Zut alors! Of the many definitions and examples of how “jouer” and “jeu” are translated, almost all are perfectly consistent with how “jeu” was translated in the document that MAAF seeks to keep out: as a “game,” and often with a connotation of “trickery.” Harrap’s even translates “jouer le jeu” as “to play the game.” It translates other examples of the use of “jeu” into such familiar, straightforward English words andphrases as “all this fooling around;” “what’s your game?;” “to play into one’shands . . ..”

Moreover, as the Commissioner’s language expert points out, the definition that Ms. Zarelli happened to choose — “manière d! agir” — includes, if one bothers to take the complete entry into account, which Ms. Zarelli did not do — “manège” and “stratagème.” The connotations of those terms are hardly helpful to MAAF; they mean “ploy” or “trick.” In short, both the literal meaning and the context in which M. Simonet asked his not-so-rhetorical question “Quel jeu doit- on jouer vis-à-vis des autorités de Californie?” is entirely consistent with “What game must we play with the California authorities?”

Judge Matz must have been enjoying himself by this point because he added a closing footnote comparing the bravery and last name of the plaintiff’s lawyer—one “Ney”—to “Ney, the Duc d’Elchingen and Prince de la Moskova,” an army commander who Napoleon once called “the bravest of the brave.”

What did the lawyer do that was so brave? He had the nerve (“considerable fortitude,” as Matz put it) to file what the judge considered to be a ridiculous motion.

— Garamendi v. Altus Fin. S.A., Case No. CV-99-2829 (CWx) (C.D. Cal, Feb. 10, 2005). Thanks to Michael Barclay

Poor Choice of Words May Result in Death

State v. Terrazas, a 1999 case out of the Texas Court of Criminal Appeals, turned on the meaning of a statement made by a state investigator to a defendant that led to the defendant confessing. The issue reminded dissenting Judge Price of a legal brainteaser from the movie Let Him Have It based on the controversial true story of a young man who was hanged for murder in 1953. Here’s Judge Price’s footnote on the matter (paragraph breaks inserted):

1. This issue calls to mind the film “Let Him Have it” which was based on the famous Derek Bentley Confession case in post-WWII England.

Two boys who were trying to break into a building were cornered on a rooftop by a policeman. One of the boys had a gun. The policeman calmly reached out his hand and asked the boy to hand over the gun.

The other boy said, “Let him have it.” The boy with the gun pulled the trigger and killed the officer.

What did the phrase, “Let him have it,” really mean? There are two possibilities: “Hand over the gun!” Or “Shoot him!” A British jury decided upon the second possibility and the boy, a retarded young man named Derek Bentley was convicted of murder and hanged.”

The legal tip from this case is that it’s always smarter to always use nouns and articles rather than pronouns when responding to police commands.

— State v. Terrazus, 4 S.W.3d 720, 729 (Tex. Crim. App. 1999) (Price, J., dissenting). Thanks to Senior Judge James Barlow.

Federal Judge Reversed for Issuing Ghostwritten Opinion

U.S. Court of Appeals for the Third Circuit reversed a district judge in Pennsylvania, finding impropriety in the fact that the judge’s opinion dismissing plaintiff’s claims was “nearly identical” to a proposed order and opinion submitted by defendants’ lawyers.

The court had previously expressed its disapproval of trial courts adopting proposed “findings of fact and conclusions of law” submitted by the prevailing parties in litigation, although it said that such copying would not be ground for reversal unless the findings were clearly erroneous. This situation was different, according to the court, because it involved an “opinion”:

Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion.

…

Judicial opinions are the core work-product of judges. They are more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.

Certainly, the court seems correct in ruling that parties to litigation have a fair and reasonable expectation that the judge, not the parties, should be the one to articulate the reasons for the decision.

However, the court’s distinction between ghostwritten opinions and ghostwritten findings of fact and conclusions of law doesn’t hold up. Opinions and Findings of Fact and Conclusions of Law are the same thing, differing only in format. Both documents dispose of the losing party’s claims and give the reasons why.

And in fairness to the trial judge, it should be noted that he was following a common practice, as evidenced by the fact that the plaintiff’s lawyer devoted only one footnote of the appellate brief to the issue.

After my first trial as a young lawyer a million years ago, the trial judge–who was highly regarded and ultimately elevated to the Florida Supreme Court–called our firm, said our client had won, and asked us to draft an opinion to send to him. Ghostwriting for judges is as old as … well, ghostwriting.

— Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004).