Cases from the Crypt

A couple weeks ago, we talked about how Halloween can cause some real-life frights at the workplace.  Well, the workplace isn’t the only place where Halloween has wreaked legal havoc.  Yes, Halloween rears its head in various types of cases.  It’s time to consider some of these ghoulish matters.

The Incredibly Insulting Tombstones

Picture it, the peaceful Village of Bloomingdale, IL.   Unable to afford to store their large recreational vehicle in a storage, facility, the Puttrell family brought their RV and parked on their home’s driveway, where it remained over a year.  As you can imagine, the neighbors weren’t happy about this and eventually petitioned for the Village to adopt an ordinance banning residents from parking RVs on their property.  As  Halloween was quickly approaching, the Putrells responded to their neighbors’ efforts by erecting tombstones in their honor.  These tombstones weren’t simply decorative, though—they carried messages for those who sought the ordinance.

For example, one tombstone was dedicated to their neighbor Bette and read:

Bette wasn’t ready

But here she lies,

Ever since that night she died,

Feet deep in his trench,

Still wasn’t deep enough

For that wench’s stench

Another tombstone read:

Old Man Crimp was a

Gimp who couldn’t hear

Sliced his wife from ear to ear

She died . . . he was fried

Now they’re together

Again side by side!

As you can imagine, the tombstones didn’t do much for neighborly relations.  When the Putrells failed to remove the tombstones after Halloween, the neighbors complained.  Eventually, a scuffle between the Putrells and a neighbor lead to a police officer demanding Mr. Putrell remove the tombstones or face arrest for disorderly conduct.

The Putrells complied but instituted a lawsuit asserting, among other things, a First Amendment claim for violating their free speech rights.  The neighbors argued the tombstones constituted “fighting words,” which would render them unprotected by the First Amendment.  The court ultimately found the speech was indeed protected speech but the officer’s mistake ordering the Putrells to dismantle the tombstones was reasonable under the circumstances and, thus entitled to qualified immunity.

The Court, of course, took some time to take some parting shots at plaintiff’s counsel:

“In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it–on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. Freedom of speech encompasses “‘the freedom to speak foolishly and without moderation,” but it does not follow that every nominal violation of that right is—or should be—compensable.”

The Dark Haunted House

 

In a case out of Lousiana, a plaintiff attended a haunted house and encountered a monster.  The monster scared her to the point where she ran into a cinderblock wall and crushed her nose.  Ouch!  The scared attendee brought suit against the haunted house, arguing the dark walls and lack of lighting created an unreasonably dangerous condition and defendants had a duty to protect her.  The court noted the conditions the plaintiff argued were a dangerous condition were the very attributes of a haunted house:

“The very nature of a Halloween haunted house is to frighten its patrons.  In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits.  Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways.”

Haunted houses everywhere breathe a sigh of relief.

Little Bo Peep’s Smoking Sheep

The Ferlitos decided to attend a Halloween party as Little Bo Peep and her sheep.  Being a real “do-it-yourself” type (those costumes are always the most fun, aren’t they?), Mrs. Ferlito, Little Bo Peep, made her husband’s costume by hot gluing Johnson and Johnson cotton batting on a pair of long underwear.  She also used the cotton batting to create a headpiece.  The end result was a costume covering Mr. Ferlito in the cotton batting from his head to his ankles.

The Ferlitos, dressed up in their costumes and headed to a Halloween party.  At some point during the party, Mr. Ferlito lit up a cigarette, which set his costume ablaze.  The Ferlitos filed suit alleging, in part, Johnson and Johnson failed to warn them the cotton batting was flammable.   The court found a manufacturer’s duty to warn only extends to forseeable uses of the product, which was not the case here.  Furthermore, both parties conceded cotton batting burns when exposed to flame.

We wish you a Happy Halloween.  But, should you find yourself involved in some spooky circumstances, please call us.  The Law Firm of Alejandro Pérez, PLC has experience in advising and litigating a variety of civil litigation matters.

_____

This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

 

 

 

Force Majeur

I’m a law nerd.  I admit it.  While storms wreak havoc throughout the country, several thoughts run through my head. Of course, I hope everyone will remain safe and homes are not lost; but I also wonder what will happen with all those contracts that will go unfulfilled because of the harsh weather conditions.  We all know about Dorothy’s adventure thanks to a tornado–but did the tornado cost Aunt Em the farm?  Hopefully, companies adversely impacted by the storms have strong force majeure clauses in place.

A force majeure provision anticipates circumstances outside of a party’s control that prevent it from fulfilling its responsibilities under the agreement.   Force majeure clauses sometimes list several categories or events that could impact a party’s ability to perform.  Common in this list is “Acts of God,” which include natural disasters, such as hurricanes

  1. Read the Contract

First, you should read the agreement to see if it even includes a force majeure clause.  If there is a clause in place, read its specific terms so you know what is exactly covered and what actions are required.  Also, what are the other party’s rights if the clause is invoked?  This information is important and should guide your next steps.

  1. Search for an Alternative

Typically, a party seeking to invoke a force majeure clause must show there is not alternative means for performance.  If performance simply becomes more costly because of the outside conditions, the party will likely not be able to show it was unable to perform under the contract’s terms.

  1. Give Notice

Whenever you’re unable to perform under the terms of an agreement, you should provide immediate notice in accordance with the agreement’s notice requirements.  I can’t tell you how many times I see a relationship between parties go awry simply because of poor communication.

  1. Collaborate

The parties should collaborate to assess how to minimize damages.  This is where creative problem solving can be helpful.  By working together with the other party, parties can seek to minimize risk and avoid costly legal battles.

Remember:  it only takes one catastrophic event to destroy all your hard work an place your business in jeopardy. Taking the precaution of including a force majeure clause in every contract you enter is essential and communicating with your contracting party is integral.

If you’re facing a situation where you may have to invoke such a clause or entering a new agreement and need to make sure you include the essential provisions, the Law Firm of Alejandro Perez assists businesses draft, review, and negotiate contracts that meet their specific business needs and meets their goals.  Please call us at 602.354.2833 or info@alejandroperezlaw.com for more information.