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.

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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.    

 

 

 

Halloween at Work: A Real Hellraiser

Do you love Halloween?  I happen to dig Halloween.  Growing up, my family placed as much emphasis on Halloween as they did on Thanksgiving or Christmas.  The truth is we celebrated everything big:  Cuban family + [insert holiday/special event] = PARTY!  As a family, we still love dressing up, decorating, watching scary movies, attending Halloween parties, haunted houses, and giving out candy.

That said, although it may surprise you, I don’t think Halloween and the workplace mix well.  Some employers who innocently allow their workforce to engage in Halloween celebrations may find themselves in some hair-raising situations that make Michael Myers and Freddy Krueger seem undaunting.  Let’s discuss some potential issues and ways around them.

The Problem with Costumes

People magazine recently released its annual list of potentially offensive Halloween costumes, which include:

  1. Stormy Daniels Look-alike, “Cloudy Affair”;
  2. Sexy Op-Ed Article;
  3. Brave Red Maven, a provocative take on the Handmaiden’s Tale;
  4. Costumes that involve darkening your skin;
  5. Zombie dead celebrities (i.e. Zombie Carrie Fisher, Zombie Tom Petty, etc.) (GASP!)
  6. O.J. Simpson;
  7. Kneeling NFL protestors;
  8. Sexy versions of characters played by children;
  9. Costumes related to Harvey Weinstein and his victims;
  10. The “wall” (yes, the Trump wall);
  11. Sexy border patrol agent;
  12. Costumes dealing with Bill Cosy and his drugging of women

Costumes and work can cause some serious nightmares that can prove costly.  Allowing costumes may lead to such provocative or potentially offensive choices that can create serious risks for discrimination and harassment claims.   It can also create intense tension amongst the workforce.

If you’re absolutely resolute allowing people to dress up consider implementing strict guidelines.  Be prepared to send non-complying employees home to change.  Don’t require everyone to participate by wearing a costume.  Finally, speak to management to ensure they are not isolating employees who refuse to participate.  Such strong-arming or isolating can have serious consequences.

Halloween Parties and Decor

In addition to costumes, workplace Halloween parties and decorations can lead to similar results.  If an employer wants to allow its employees to decorate, that can be fine.  I would ensure the decorations are subtle and non-offensive.  Fewer witches and goblins and more cute gords with smiley faces.

Keep in mind, if you have an actual Halloween party, make sure your employees are on board.  Some employees may have religious convictions that are offended by Halloween.  Consider giving these employees a day off.  Don’t make participation mandatory.  We have seen complaints based on this issue.  In one matter, an employee filed a complaint alleging she was fired for refusing to attend a company Halloween party after she explained to her supervisor she could not participate for religious reasons.  See Morales v. PNC Bank, N.A., No. 10-1368, 2011 WL 3425644 (E.D. Pa. Aug. 4, 2011).  In another case, an employee who declined to dress up for Halloween alleged her employer retaliated against her by reducing her hours and demoting her.   See Meraz v. Jo-Ann Stores, Inc., No. CV 03-2914 GAF, 2004 WL 882458, at *10 (C.D. Cal. Apr. 2, 2004).  

As you can see Halloween can present some scary workplace situations.  The best way to avoid these problems is to just skip the celebration altogether.  However, if you choose to engage in the festivities, that’s fine–just make sure you have some thoughtfully-crafted policies in place and NEVER mandate participation.  Employees should be able to opt-out without penalty or fear of retaliation.

Now, are we ready to trick-or-treat now, or what?

The Law Firm of Alejandro Pérez assists employers in complying with the myriad of laws and situations that impact the workplace.  For employment assistance, please call us at 602.354.2833 or email us at info@alejandroperezlaw.com.

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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.

Re Re! Say it ain’t so!

I grew up around music–it’s in my blood.   Music has gotten me through hard times and has made the good times that much better.  In fact, if you come to the Firm on any given day, it is likely you will hear music playing.  Aretha Franklin has been a constant voice in the soundtrack of my life.  Her impressive career spanned over six decades, and she will go down in history as one of America’s greatest and well-known voices.  I am most crazy about Aretha’s remakes.  NO ONE could remake a song and make it their own like Aretha. What an instrument and what a gift!  Here is one of my favorite remakes by Aretha.  And yes, there is “legal” a point to this blog.

Recent reports allege the Queen of Soul died without a will.  Accordingly, Aretha’s estate, which is estimated to be worth $80 million, will pass through the laws of intestacy.  Under Michigan law, that means it will be split evenly amongst her four sons.  While that may seem logical, it gives no consideration to the fact she left behind a son with special needs that will need continuing care and support for the rest of his life.  It also means the Court will place someone in charge of her estate.  And most upsetting, we will never know if these were indeed Aretha’s wishes.

Aretha dying without a will is surprising but not completely shocking.  Many of my clients put off estate planning.  I get it, contemplating your incapacity and death is not the most joyous of exercises.  In fact, it can be downright uncomfortable.  It causes you to consider a parade of horribles that can be unsettling and take you on an emotional rollercoaster.

That said, it HAS to be done.  You work hard to build your legacy and you owe it to your family and loved ones to leave a detailed plan that will allow them to mourn and honor your wishes without the guesswork. This is especially so when you have loved ones that require additional support and assistance.

While the thought of starting the process may seem daunting or saddening, I promise you there you will have a great feeling of relief once you know you have taken care of such a major component of your life and you have clearly set forth your wishes.

The Law Firm of Alejandro Pérez assists clients in creating comprehensive and individualized estate plans that clearly articulate their wishes.  Attorney Alejandro Perez has been involved in the special needs community for almost all his life.  As a result, the Firm works regularly with families who require some sort of special needs planning. You can count on us to make the process as seamless as possible.

Don’t put something off for tomorrow because tomorrow is not promised.  We want to partner with you through this sensitive process and make sure you have a detailed plan for the future. Call us at 602.354.2833 or email us at info@alejandroperezlaw.com to start the process.

I will close this out with another one-of-a-kind Aretha remake.

 

 

 

August is National “Make a Will Month”!

In today’s world of social media and endless celebrations, it seems everything you can imagine has a designated day or week or month.  And this month is no exception–it turns out it is “Make a Will Month.”

Curious as to its origins, I did some research to learn more about “Make a Will Month.”  Surprisingly, there’s not much out there explaining how this joyous month came to pass.  There also seems to be a healthy debate as to which month is the official month for wills. Nevertheless, we love a good reason to celebrate and are passionate everyone should have their affairs in order.  Accordingly the Law Firm of Alejandro Pérez, PLC is offering a 20% discount on all full estate plans completed in the month of August.

This 20% discount applies to all comprehensive estate planning packages that include a revocable living trust, will, health care directives, and other estate planning documents.  The documents must be executed by the end of August.

For more information on your estate planning needs, please contact the Law Firm of Alejandro Pérez by phone: 602.354.2833 or email: info@alejandroperezlaw.com to schedule an appointment.  Appointments should be made as early as possible to allow sufficient time to finalize your individualized plan.

Sure, we get it; National “Make a Will Month” may not be as enticing as National Doughnut Day.  But, we promise you will feel much better once you have an estate plan in place.