Should marshmallows carry a warning label?  Laura had just finished her shift as a waitress and bought a bag of large marshmallows for the kids.  The next morning while she was asleep, one of the kids climbed up on the counter, retrieved the bag of marshmallows, and gave some to his younger brother.  Within a few minutes, the child starting choking.  A man who was visiting performed the Heimlich maneuver, but the child continued choking, was rushed to the hospital where a small liquefied piece of marshmallow was removed from his airway.  He sustained brain damage, and Laura sued, claiming marshmallows are dangerous to consumers, who should be warned of the choking hazard.  The Court that first heard the case held marshmallows possess no inherently dangerous characteristics, but Laura appealed, and the Appeals Court reversed holding that marshmallows are dangerous for children, that while they appear soft and innocuous, they continue to expand after entering the airway.  One Judge dissented, but the majority ruled and although the law may getting soft, marshmallows may soon carry a warning label at the result of a case that turned out not to be a lot of fluff after all.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Chad Emery and Laura Emery vs. Federated Foods, Inc., et al., Supreme Court of Montana, 11/18/93, Gray, J., 262 Mont. 83, 863 p. 2d 426

Podcast: Download

Here’s a case where white-out played center stage.  It all got started when Ken decided to sell his motorcycle.  He thought he had it sold to Joe, and was so sure Joe was going to buy it, he wrote Joe’s name and address onto the title, then the sale fell through.  Mark bought the motorcycle, so Ken whited-out Joe’s name and address and wrote in Mark’s.  Unfortunately, the certificate of title says in capital letters, “IF ANY ALTERATIONS OR ERASURES ARE MADE, THIS TITLE IS VOID.”  Ken probably should have whited-out those words, too, but he didn’t.  Mark was then involved in a very serious accident with the motorcycle and his insurance company claimed that title was void because of the white-out.  Therefore, Mark didn’t legally own the cycle, and they didn’t have to pay the claim.  The Judge that first heard the case agreed, but the Appeals Court reversed, ruling that there’s nothing in the law that authorized the DMV to declare that all alterations or erasures automatically void a title.  So the bottom line is–when you use white-out, while you may not win outwhite, you may outwit the opposition–all white alweady.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Auto Club Insurance Assoc., vs. Mark T. Sarate, Court of Appeals of Michigan, 6/25/99, Curiam, 1999 W.L. 450422 (Mich.)

Podcast: Download

How much is your “sweat equity”  really worth? David put many hours of sweat equity into restoring a 1932 Ford Roadster.  It was in great shape until it was totaled by Elizabeth, and it was bye, bye Highboy and hello Tristate Insurance Company.  The company offered to pay David the total value of the car, which was $35,000.  David said, “no way,” what about my sweat equity, and claimed the car was worth $80,000.  He sued hoping to sweat out of the insurance company the sweat equity he put into the car.  But the Court decided the only measure of value of an item completely destroyed is its market value at the time of destruction, and only if the market value cannot be ascertained, will the Courts turn to other ways of determining value.  The Court added, to award sweat equity would open the door to all sorts of speculation.  So you can’t mark up market value, and the Court said there’s no sweat in equity, but whoever said life was fair anyway.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

David James Giacomino v. Tri-State Insurance Co.,  Court of Appeals of Minnesota, 6/29/99, Schumacher, J., 1999 W.L. 430788 (Minn. App.)

Podcast: Download

If a hospital emergency room either won’t let you in or makes you get out, you can sue under something called EMTALA, which stands for the Emergency Medical Treatment and Active Labor Act.  But how about if letting somebody out results in harm to a third person?  This tragic case involved a husband who’d been admitted to an emergency room with psychiatric problems.  Ten days later he hunted down his wife and killed her.  The wife’s estate sued alleging the hospital violated EMTALA by releasing the husband from the hospital prematurely.  The law says any individual who suffers personal harm can obtain damages.  The hospital argued the word “individual” means the patient, not third persons.  The Court that first heard the case agreed, but the Sixth Circuit reversed holding the words “any individual” mean patient and non-patient alike.  The hospital also argued that EMTALA only covers cases where proper emergency care wasn’t given, but the Court said the patient obviously shouldn’t have been released when he was.  So EMTALA rules and liability has come to life.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Moses v. Providence Hospital and Medical Centers, Inc., Sixth Circuit Court of Appeals, No. 07-2111, April 6, 2009, U.S. Law Week, Vol. 77, No. 40, Pg. 1641, 4-21-09

Podcast: Download

You get notice your domain name is about to expire, so you simply renew it.  Right?  It sounds simple, but the world of domain names on the internet just got a lot more complicated as the result of the case of the Coalition of ICANN Transparency v. Verisign.  ICANN stands for the Internet Corporation for Assigned Names and Numbers and is a non-profit oversight body that coordinates the internet domain name system.  ICANN contracted with Verisign which is the sole operator of the dot com and dot net domain name registries and getting a fee for each name.  The problem is there was no real competition for the Verisign contract and the Coalition, which includes website owners sued, arguing that Verisign and ICANN conspired to restrain trade.  The Ninth Circuit Court of Appeals has held the case can go forward and that nonprofit, standard setting organizations, such as ICANN, are covered by the antitrust laws and have to play fair.  So, we’ll still be able to register our domain names, but those who hold domain over the domain will have to cross the T’s and dot the net.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Coalition for ICANN Transparency, Inc. v. Verisign, Inc., Ninth Circuit Court of Appeals, No. 07-16151, June 5, 2009, Schroeder, J., U.S. Law Week, Vol. 77, No. 48, Pg. 1763, 6-16-09

Podcast: Download

If you stash grass in your trash, can they trash your trash to get the grass?  This case began when an informant told a sheriff’s deputy that he’d bought marijuana from Darrin at his home on ten occasions and that Darrin kept a stash of about ten pounds of marijuana, sometimes making sales every 15 minutes.  This caused two agents to go to Darrin’s home where they removed a trash bag from one of his trashcans.  After they found marijuana cigarette butts and other residue, they secured a warrant to search Darrin’s home where they found marijuana, LSD, psilocybin mushrooms and cocaine.  Darrin filed a motion to suppress the evidence claiming it was all the fruit of the poisonous tree, that the police had no right to search his trash, in which he had a reasonable expectation of privacy.  But the Court held it’s common knowledge that plastic garbage bags left at the curb are readily accessible to animals, children, scavengers, snoops, and other members of the public, including the police.  As for privacy in your trash, well, the Court basically said that’s rubbish.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Darrin Berekman v. State of Wyoming, Wyoming Supreme Court, No. S-08-0119, February 5, 2009, Waldrip, J.

Podcast: Download

You can blow your own horn but it could really cost you.  This case involved horn honking, chickens and angry neighbors, and it all began when Helen got a letter from the neighborhood homeowners association informing her her chickens were illegal and violated the master deed.  Helen, who really loved her chickens, immediately suspected fowl play and confronted the association president and two other neighbors about the letter.  After John admitted he had complained about the chickens, he was awakened at 5:15 A.M. by a loud car horn excessively honking in front of his house.  Sure enough, it was Helen, who ended up being arrested and convicted for violating an ordinance that makes it a crime to honk a horn for other than public safety reasons.  She appealed claiming honking a horn is free speech, but the Court said it was harassment plain and simple.  So the chickens have come home to roost, and horn honking ordinances are constitutional.  So, honk if you agree with this case or, on second thought, maybe you’d better not.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

State of Washington v. Helen D. Immelt, Court of Appeals of State of Washington, No. 60991-2-1, Division One, Grosse, J.

Podcast: Download

Do you know what lawyers and orthodontists have in common?  Well, they both work on retainers.  But retainers for lawyers have just run into serious trouble and if a lawyer tells you his fee or retainer is nonrefundable, you can tell him or her to take a hike.  Several State Bar Ethics Committees have recently announced it’s misleading and unethical for lawyers to characterize a fee or retainer as being nonrefundable.  The old rules allowed nonrefundable retainers provided the fee was fully explained to the client and was not excessive.  The new rules say a lawyer must refund any advanced payment of a fee that has not been earned.  The only exception is where a retainer is intended to insure the attorney is exclusively available to the client and cannot represent the opposing side, such as where a husband retains the best divorce lawyer in town so his wife can’t.  So while orthodontists can still work on retainers, lawyers can’t work and, by the way, the new rules have teeth in them.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Alaska Bar Association Ethics Committee, Op. 2009-1, May 5, 2009, U.S. Law Week, Vol. 77, No. 48

Podcast: Download

Before you set up your tent, you’d better canvass the trees.  The Aldridge family decided to go camping in a state campground, specifically requesting a campsite with shade.  Right after they set up camp, it started raining and when they heard a severe storm front was on the way, they decided to go into the tent to change clothes to leave.  But as they were taking off, in preparation of taking off, a huge dead tree branch broke off and came crashing down on the tent, seriously injuring Mr. and Mrs. Aldridge.  The Court noted the limb was huge, and if the entire tree had fallen, it would’ve covered the length of the entire campsite.  A family member testified that shortly after the incident a conservation officer told them the tree was dead and should’ve been removed but added “we can’t get them all.”  The family sued, but the Court, refusing to go out on a limb, held that while states have a duty to the general public, they do not have a duty to any individual member of the public and the mere fact the family relied on proper tree maintenance did not create a special duty of care.  So pay attention where you stake out your tent, because if the weather causes a flap, you may not be able to stake out a claim.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Bernadine, Raymond, and Rodney Aldridge v. Indiana Dept. of Natural Resources, Court of Appeals of Indiana, 4/30/99 (694 N.E.2d 313) (see script no. 5468)

Podcast: Download

If you’re driving and you feel sleepy before, during or after this broadcast, find a safe place to pull off the road and get some rest so what happened to Chris won’t happen to you.  It was 9 o’clock in the morning when Chris fell fast asleep behind the wheel.  He drove right off the road striking and killing Judy, who was jogging on the grass by the roadside.  A driver behind Chris testified he never even applied his brakes.  The officer who responded described Chris as extremely tired with bloodshot eyes and a faint odor of alcohol.  Chris admitted he’d been up for 22 hours but said that wasn’t unusual because he played in a band, adding he was only five minutes from home.  Chris was convicted of involuntary manslaughter, but the Appeals Court reversed stating we cannot conclude that Chris knew or should’ve known that he would kill someone and, although he engaged in reckless misconduct, that does not support a finding of criminal manslaughter.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Christopher Conrad v. Commonwealth of Virginia Court of Appeals Richmond, May 11, 1999, Elder, J., 1999 WL 288036 (see script no. 5470)

Podcast: Download