Written Materials Wacky Cases 1 & 2 Instructor: Joel Oster

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1 Written Materials Wacky Cases 1 & 2 Instructor: Joel Oster Number 10 Constanza v. Seinfeld Costanza v. Seinfeld, 693 N.Y.S.2d 897 (S.C.N.Y.County 1999). Works of fiction and satire do not fall within the narrow scope of the statutory phrase advertising and trade. Causes of Action: Public Disclosure of embarrassing/private information. Certain intimate details about people cannot be published, even though true. Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo. Ct. App. 2008); Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, (Minn. 1998) ( Today we join the majority of jurisdictions and recognize the tort of invasion of privacy. The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close. Here Lake and Weber allege in their complaint that a photograph of their nude bodies has been publicized. One's naked body is a very private part of one's person and generally known to others only by choice. This is a type of privacy interest worthy of protection. Therefore, without consideration of the merits of Lake and Weber's claims, we recognize the torts of intrusion upon seclusion, appropriation, and publication of private facts. Accordingly, we reverse the court of appeals and the district court and hold that Lake and Weber have stated a claim upon which relief may be granted and their lawsuit may proceed. ) o Information concerning sexual conduct, medical condition or educational records o Elements. Person bringing this claim must prove: information was private and not already in the public domain information was intimate, and publication would be highly offensive to a reasonable person. o Newsworthiness Defense. Haskell v. Stauffer Communs. Inc, 26 Kan. App. 2d 541, 990 P.2d 163 (Kan. Ct. App. 1999) False Light. Arises when a person unflatteringly portrays a person as something he or she is not. Busey v. Bd. of County Comm'rs, 2005 Kan. App. Unpub. LEXIS 736 (Kan. Ct. App. July 29, 2005). o The portrayal must be found to be highly offensive to a reasonable person, and o the actor had knowledge of or acted in reckless disregard as to the falsity of the matter and the false light in which the other would be placed.

2 Intrusion upon seclusion. Occurs when a reporter gathers information about a person in a place where that person has a reasonable expectation of privacy. Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (Kan. 1975). Three most common types are: o Trespass. o Secret Surveillance using technology to improve upon what an unaided person would be able to hear or see from a public place. o Misrepresentation invalid or exceeded consent Misappropriation of likeness unauthorized use of a person s name, photograph, likeness, voice or endorsement to promote the sale of a commercial product or service. Haskell v. Stauffer Communs. Inc, 26 Kan. App. 2d 541, 990 P.2d 163 (Kan. Ct. App. 1999); Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003). Practice Tip - Don t get lost in the celebrity status of a case. Here, the attorney was sanctioned for bringing a lawsuit with no merit. Number 9 Koutsouradis v. Delta Airlines Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 1339 (11th Cir. 2005). A woman traveling on Delta could not recover for emotional distress when employees made her take out an adult toy that was vibrating in her luggage in front of other passengers. According to the court, these actions did not rise to the level of outrageousness necessary to support a claim for intentional infliction of emotional distress under Florida law. Practice Tip: The conduct has to be really outrageous, not just frat house party joke, to qualify. Number 8 Dougherty v. Home Depot Case was dismissed where a customer was injured from sitting on a toilet seat that contained a ring of glue. Practice Tip: If you represent a client who offers public restroom facilities, it is prudent for your client to check those facilities regularly and so document. Bonus Case1: Attacking Vending Machines o Distributor not liable due to intervening criminal act. Oden v. Pepsi Bottling Company, 621 So.2d 953 (Alabama 1993) o Vending Machine owner could be liable for death when decedent was attempting to retrieve soda he had purchased but had not come out. Morgan v. Cavalier Acquisition Corp, 439 S.E.2d 149 (N.C. 1993) o Workers Comp covered injury from vending machine under Good Samaritan Doctrine. Circuit City Stores, Inc. v. IIC, 391 Ill. App. 3d 913 (2d Dist. 2009) (workers comp) Bonus Case 2: Reinsfeld v. University of Idaho. Case dismissed where college freshman sued university for his injuries sustained from falling out of a third floor dorm room window after mooning his friends below. Number 7 Chambers v. God Chambers v. God, District Court of Douglas County, Nebraska (Sept. 14, 2007). State Senator sued God in state court seeking injunction to stop God from doing

3 acts of destruction and evil in Nebraska. The court dismissed the lawsuit for lack of jurisdiction and failure to serve. o When suing God, you still need to assert personal jurisdiction. General jurisdiction is where a defendant s contacts with the state are of such a continuous and systematic nature that the court will have jurisdiction over the defendant irrespective of the nature of the claim. Specific jurisdiction is where the defendant s actions in the state gave rise to the claim before the court. o Even though omniscient, God must be properly served with process (Federal Rule of Civil Procedure 12(b)(5) insufficient service of process). o Bonus case: United States v. Satan and His Staff, 54 F.R.D. 282 (W.D. PA 1971). o You may not use litigation for an improper purpose... no frivolous lawsuits. Number 6 Liebeck v. McDonald s: Hot coffee case Liebeck v. McDonalds Restaurants, 1995 WL (Bernalillo County, N.M. Dist. Ct. 1994). Plaintiff won 2.9 millions dollars of damages (later reduced by court) for burns she suffered from a hot coffee spill. Restatement (Second) of Torts 402A (1964). The plaintiff, to present a prima facie strict liability case, must prove: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control. Bonus Case 1 - Pelman v. McDonald s o In Pelman v. McDonald s, 237 F. Supp. 2d 512 (S.D.N.Y. 2003), the court held that while there were potential arguments against McDonald s that might survive a motion to dismiss, the plaintiffs did not specifically allege sufficient information to sustain a claim of negligence or deceptive advertising. Id. at , 533, o The court further noted that the plaintiffs failed to allege any facts that could prove that alleged negligence or deception by McDonald s proximately caused any injuries. Id. at o Class action was denied because common issues of law and fact did not predominate the case. o Practice Tip: Certification of class actions is generally difficult these days. They re being denied right and left. Bonus Case 2 - BMW v. Gore: Excessive damages award won t stand Number 5 - Kansas Department of Children and Families v. Marotta William Marotta case. Marotta was forced to pay child support when donated sperm to a lesbian couple without using a physician. Uniform Parentage Act. SECTION 702. PARENTAL STATUS OF DONOR. A donor is not a parent of a child conceived by means of assisted reproduction. Many states require the donation to be done through a license physician. See K.S.A (f) ( The donor of semen provided to a licensed physician for use

4 in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. ) Number 4 - Billittier v. Clark, 43 Misc. 3d 1223(A) 2014 N.Y. Misc. LEXIS 2174 Court ordered that engagement ring became a break up ring and thus belonged to the woman after the man broke off the engagement and sent a text saying she could keep the ring. Practice Tips: Tell your clients to zip it when it comes to potential litigation matters. Remember to be creative in your defense. If your client gives the court a reason to dislike him or her, the court may very well rule against them. This fellow s text message didn t show him in a favorable way, and that certainly didn t help his case. Number 3 Cavanaugh v. Bartelt, 2016 U.S. Dist. LEXIS (Neb). Holding: A prisoner s beliefs, which were tied to the Church of the Flying Spaghetti Monster, were not religious in nature and religious protections did not apply Practice Tip: In a practical sense, it seems that courts may use a smell test to assess the veracity of a plaintiff s alleged religious beliefs. It s worth noting, however, that courts shouldn t look to the truthfulness of a plaintiff s beliefs. Bonus Case: EEOC v. Abercrombie: Employer could have violated prospective employee s religious beliefs, which involved wearing a headscarf, despite the fact that the prospective employee never notified the employer of her beliefs. Acting with discriminatory intent sufficed. Number 2 In re: Hawver, 296 Kan. 417, 292 P.3d 318 (2013) State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013) a death penalty case, counsel was ineffective under the Sixth Amendment because introduction of defendant's prior voluntary manslaughter conviction by counsel, while simultaneously having counsel repeatedly portray him to the jury as a "professional drug dealer" and "shooter of people," was deficient because it was a highly risky gambit that was based upon a misunderstanding of the law; and Counsel was ineffective under the Sixth Amendment because the flat fee arrangement created a conflict of interest for counsel that adversely affected the representation of defendant in multiple respects; counsel failed to adequately pursue his defense or withdraw and act as an alibi witness. Rule 1.1 Competence - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Practice Tips: Remember to accept cases that are within your skill set. And if you find yourself in a position wherein you are over your head, seek or accept assistance. This attorney was offered assistance from two different non-profits.

5 Creativity has its bounds and playing dress up during oral argument is outside of those bounds. Number 1 - In re Hon. John C. Murphy, Florida Judicial Qualifications Commission, Case No A judge was permanently removed from the bench after engaging in a fight with defense counsel during a hearing. Although the judge asked for lenience because of his personal history, including suffering from PTSD from his military service, he was still removed from the bench.