Wacky warning dept.: Steven Morris v. Harley-Davidson Motor Co.
Sean Wajert tells us of a remarkable failure-to-warn case, Steven Morris v. Harley-Davidson Motor Co., et al., No. 3:09-cv-74 (M.D. Ga.).
Harley-Davidson's warnings included:
- A warning in the owners' manual that exceeding the Gross Vehicle Weight Rating of 420 additional pounds over curb weight can affect stability and handling, which could result in death or serious injury.
- An explanation in the owner's manual that the Gross Vehicle Weight Rating is the sum of the weight of the motorcycle, accessories, and the maximum weight of the rider, passenger and cargo that can be safely carried.
- GVWR is shown on the information plate located on the frame steering head.
- A warning in the owner's manual stating "Do not pull a trailer with a motorcycle. Pulling a trailer can cause tire overload, reduced braking efficiency and adversely affect stability and handling, which could result in death or serious injury."
- A warning inside the storage compartment on the back end of the motorcycle that overloading the comparment with too much weight could cause loss of control and death or serious injury.
The 250-pound Morris, however, never read the Owner's Manual, and claims not to have seen any of the warnings on the bike itself. So when he took his 204-pound wife for a ride on his Ultra Classic motorcycle while pulling a trailer, and had a crash that killed his wife and injured himself, he blames Harley-Davidson Motor for "failure to warn." Silly enough, but the fact that the court has let the case proceed demonstrates that the legal community misunderstands the English-language concept of "failure." It's not clear what Harley could have done differently other than put its purchasers through a mandatory five-hour class.
Of course, the real-world reason that people don't read their owner's manuals is because failure-to-warn litigation has overloaded the manuals with pointless and obvious warnings, making the manuals bulky and intimidating. If owner's manuals could focus on the most important issues without fear of liability for failure to include everything, people would be more likely to read them and pay attention to the warnings. Just another way that trial lawyers have put profits ahead of people.
Chuck E Cheese settles playground injury suit
Less than two months after a lawsuit was filed, the owners of Chuck E. Cheese opted to settle with a Harris County woman who blamed the pizzeria for failing to supervise her son as he played on a slide.
The Southeast Texas Record previously reported that Pat Wilson filed a lawsuit April 23 in Jefferson County District Court against CEC Entertainment, doing business as Chuck E. Cheese.
Wilson's minor son, King Hall fell from a playground slide and broke his arm.
Rather than argue it was Wilson's responsibility to monitor her son, Chuck E. Cheese settled the suit in mid June for an undisclosed amount.
On July 19 Wilson successfully petitioned Judge Milton Shuffield, 136th District Court, to begin withdrawing settlement funds from the account set up for her son.
In her suit, Wilson says she took her son to the Chuck E. Cheese on Dowlen Road in Beaumont on Dec. 2, 2008. Hall was playing in an "overly crowded area" where "it was clear there was not proper supervision from the employees."
Wilson argued that because of his fall, Hall will experience a diminished earning capacity and suffered physical impairment, mental anguish, physical pain and disfigurement.
She was also suing for her loss of parental consortium and incurred medical costs.
Jonathan C. Juhan of Beaumont represented her.
Jefferson County District Court case number: D186-668
Public interest group plans to sue Miller, Anheuser-Busch
Lawyers for the Center for Science in the Public Interest served notices Thursday to Miller Brewing Co. and Anheuser-Busch Cos. over caffeinated alcoholic beverages made and marketed by the rival brewers.
The nonprofit Washington, D.C.-based activist group contends that drinks such as Miller's Sparks and Anheuser-Busch's Bud Extra and Tilt contain more alcohol than beer and contain stimulant additives such as caffeine, taurine, ginseng and guarana that are not officially approved for use in alcoholic drinks.
Miller management declined to comment specifically on the threatened lawsuit.
"Our Sparks brands are federally approved and responsibly marketed to legal drinking age adults," Miller spokesman Pete Marino said.
The Center for Science in the Public Interest said it will seek a permanent injunction prohibiting the companies from combining stimulants with alcohol and disgorgement of the companies' profits from the drinks into a charitable fund.
"This is just the latest and one of the more sinister attempts by alcohol producers to prey on a new generation of future problem drinkers," said George Hacker, director of the group's alcohol policies project.
Milwaukee-based Miller and Anheuser-Busch, St. Louis, also are being investigated by 16 state attorneys general, who recently subpoenaed internal company documents pertaining to the products' sales and marketing.
In a letter to Miller chief executive officer Tom Long, the Center for Science in the Public Interest's litigation director, Stephen Gardner, wrote that the group's lawsuit will allege that Sparks is an "adulterated product" and that Miller "engages in acts and practices that are both unfair and deceptive" with respect to the sale and marketing of Sparks.
Miller operates the largest brewery in Ohio in Butler County, where it has about 650 employees.
Coke sued over VitaminWater marketing
Consumer group Center for Science in the Public Interest (CSPI) has filed a lawsuit in California seeking class action against The Coca-Cola Co., claiming the Atlanta beverage giant has made “deceptive and unsubstantiated claims” about its VitaminWater products.
CSPI said in a new release Thursday Coca-Cola (NYSE: KO) “markets VitaminWater as a healthful alternative to soda by labeling its several flavors with such health buzz words as ‘defense,’ ‘rescue,’ ‘energy’ and ‘endurance.’ The company makes a wide range of dramatic claims, including that its drinks variously reduce the risk of chronic disease, reduce the risk of eye disease, promote healthy joints, and support optimal immune function.”
But the Washington, D.C.-based group argues its nutritionists found 33 gram of sugar in VitaminWater, which it says does “more to promote obesity, diabetes, and other health problems than the vitamins in the drinks do to perform the advertised benefits listed on the bottles.”
"VitaminWater is Coke's attempt to dress up soda in a physician's white coat,” CSPI said. “Underneath, it’s still sugar water, albeit sugar water that costs about ten bucks a gallon."
Coca-Cola spokesperson Diana Garza Ciarlante called the suit “ridiculous” and said the suit is “about increasing the readership of CSPI’s increasingly irrelevant newsletter.”
“Glaceau vitaminwater is clearly and properly labeled and shows the amount of vitamins and calories in the product,” she said. “Consumers today are savvy, educated and are looking for more from their beverages than just hydration. Many people know that they are not receiving adequate nutrients from their diets so they have turned to products like glaceau VitaminWater in order to help supplement what they are not receiving from the foods they eat.”
The Naked Cowboy Sues Again
New York's "Naked Cowboy" is threatening to sue the "Naked Cowgirl" for $150,000, claiming she is infringing his trademarked look.
The Naked Cowboy, Robert Burck, performs in Times Square, wearing only briefs, boots, and a cowboy hat. The Naked Cowgirl, Sandy Kane, appears in Times Square wearing only a red-white-and-blue bikini and matching cowboy hat.
Burck wants Kane to cease violating his trademark or buy one of his franchises (he's sold at least one already) for $500 a month or $5,000 per year. The Naked Cowboy previously sued Mars, Inc. for its campaign involving M&Ms wearing similar outfits. The case settled for an undisclosed sum, according to loweringthebar.net.
But The Naked Cowgirl, a former stripper known for closing her act by lighting her breasts on fire, says there's no reason she should pay Burck a single cent. "I've been naked for years," she said.
Source: Jennifer Fermino, "Cowboy: 'Naked' rip-off!" New York Post, June 22, 2010; "Naked Cowboy in Trademark Battle With Naked Cowgirl," loweringthebar.net, June 23, 2010
"Hostile Fetus" Claim Brings Lawsuit Against Popular Home Builder
Omaha, NE - A well-known Omaha builder is accused of pressuring employees into unusual behavior at work. Former workers at Hearthstone Homes come forward after a federal lawsuit exposes complaints about the company and it's CEO.
A picture of a woman hugging her two small children, a smile replacing what Jammie Harms describes as a terribly troubling and humiliating time while pregnant with her son. Harms filed a lawsuit accusing her former boss of calling her unborn child hostile, suggesting it had a negative agenda.
Harms claims Hearthstone Homes CEO John Smith felt he was spiritually connected to her fetus and it "was creating a negative energy in the work place". I go to Hearthstone Homes for answers. "I think it's important to note that she was terminated with the company, let go with the company, as a result of a number of people let go with the company," says Neil Smith, the V.P. of of the popular home building company. Smith, not related to John Smith, insists Harms was let go as part of a 40 percent staff reduction due to the economy. Harms was executive assistant to the CEO. Her lawsuit accuses Hearthstone of religious and gender discrimination.
Our investigation uncovers other former employees not shocked by Harm's lawsuit. "It's 100 percent religious based, he would tell us about his Unity church, his past life experiences," says Mike Boyd. Boyd worked for Hearthstone for six years. Boyd insists CEO Smith and other company leaders forced what he calls, their religious beliefs, on every employee. If you worked there you were required to attend Mind, Body, and Energy sessions or MBE, a practice the company describes as holistic and good for their business. "If you don't continue on in these courses, you know, they had certain ones you need to go to, basically you're not going to move up in the company or be forced out," says Boyd. Boyd also says every employee had to go at least once a week.
Former Hearthstone sales manager John Risley was also pressured to attend MBE. "Do you feel like it was a job requirement to attend these sessions," I ask. Risley answers, "It would never show up on job description, but yeah, if you didn't follow in those footsteps, follow in that path, you were frowned upon by John and became a target." Hearthstone's V.P. admits the company offers MBE but employees decide if they want to go. "Do you force employees to take part in any type of religious practices," I ask. Neil Smith responds, "No, we make opportunities available for them and we have some people who choose not to participate in those and we have others who willingly choose to be a part of that."
In her lawsuit, Harms insists she too was forced to attend MBE sessions to clear her negative energy. She resisted and eventually was let go, she was five months pregnant. Neil Smith responds, "I don't know of any specific conversations where she was forced to do anything so that would surprise me if she was."
I ask Risley, "When you hear that a former employee has filed suit saying that John Smith said her fetus was hostile, what's your reaction to that?" He responds, "When we base buying land by the amount of land fairies that are on the land, nothing surprises me." If you didn't catch that, he said land fairies. Risley claims that's one way Smith decided to buy land for a future subdivision. Other decisions were based on muscle testing. Former employees show me what muscle testing is. They say Smith would ask a question and if your fingers could be pulled apart, the muscle was weak and the answer no. If your fingers stayed together, it was strong or yes. "We would base hiring and firing people on muscle testing," says Risley.
I ask Neil Smith, "So muscle testing is sometimes used as a way to make business decisions here?" He responds, "There are a number of practices that we would use that traditionally may not have been considered traditional business practices, but we look at a more holistic way of making those decisions."
So if things were so bizarre why did all of these employees stay? "Whether they believed it or not they would agree with him and go along with him because they were scared of their job," says Risley. Boyd answers, "It was completely cult-like. You were either in the cult, you pretended to be in the cult, or you avoided the cult and those were the people that were forced out ."
Whether or not Harms' suit will stick, I ask the vice president flat out, did the CEO call her fetus hostile. "Did it happen?" Neil Smith answers, "I think those specific questions will be answered through the course of the lawsuit." I ask, "So, you can't tell me if he did say that?" "No," Smith responds. "So there is a possibility that he did say that?" I ask. "I suppose, there's also a possibility he didn't say that," Smith closes with.
Risley and Boyd were both fired by Hearthstone. They told me they couldn't sue because they accepted the company's severance package. Jammie Harms is not the first former Hearthstone employee to sue the company for religious discrimination. A sales associate filed suit several years ago and won. The judgement was one dollar.
Reported by Molli Graham, firstname.lastname@example.org