Archive for the 'Personal Injury' Category

A Prank Too Far: Is Google Liable for the Fallout of an Ill-Conceived Prank?

Google is committed to their pranks, coming up with inventive April Fools jokes every year. Just last year they had twelve different pranks running, from playing Pacman in Google Maps to suggesting the song Sandstorm for nearly every music video on YouTube.  In 2011, Google announced that all their products would default to the Comic Sans font.  They also introduced a Meow Me Now app, which would locate kittens in the user’s vicinity.  This year, Google outdid themselves, and it came back to bite them.

As one of their many 2016 pranks, Google added a “Send + Drop Mic” button to Gmail. The button was an orange affair that read “Send +” then showed an animation of a small hand dropping a microphone.  It replaced the usual “Send and Archive” button and was positioned immediately next to the “Send” button.  When clicked, the button added a gif of a Minion from the movie series Despicable Me dropping a microphone and muted the thread—preventing the user from seeing any further replies. Mic Drop

Even though the button provided a pop-up warning the user what would happen if they sent their email in this manner when you scrolled over it, complaints of issues stemming from the confusingly position of the feature starting rolling in almost immediately after the feature rolled out. A bug in the feature also made the normal send button sometimes function as if the user had clicked the “Send + Drop Mic” button.  Several users reported losing job opportunities, while others complained that the feature had actually cost them their job.

The feature was only up for 12 hours before Google discontinued it and issued an apology for any inconvenience it had created. Google has also stated that they are working to undo the damage by bringing back all replies to “mic dropped” email threads.

Given that it was April Fools’ Day, everything posted on the internet is suspect. There is a real possibility that the users complaining of lost jobs and job opportunities were playing a prank of their own or simply fabricating their stories.  However, the situation raises the question, could Google be liable for the jobs and jobs opportunities lost due to their prank?

Negligent Dropping of Microphones

Negligence is one of the most common civil causes of action. While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty – That the accused had a duty. You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty – The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact But for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages The accuser has suffered some loss as a result of the accused’s negligent act.

Where people have lost their job or a job opportunity, their lost wages certainly represent damages. This just leaves the first four elements to figure out.

So did Google fail to act with the care of a reasonable person in their design and implementation of their “Drop the Mic” feature? This is a fairly fact specific determination, but we can look at what we know.  The design of the feature itself included a bug which made otherwise normal use of Gmail send the “Drop the Mic” version of that email.  In order to show whether Google acted with proper care, we would need to see if they knew about the bug prior to release.  Their apology statement certainly implies that they had no knowledge of the bug.  There could be a situation where the feature was created and released in such a slapdash manner that they should have expected substantial issues with the feature.  However, there is no evidence of this at this point and it seems fairly unlikely from a software company as established as Google.

So if the bug in the feature isn’t a breach of duty, is the implementation of the feature? There is an argument that a reasonable person would not have placed the “Drop Mic” button right next to the “send button” for the very reasons that occurred- users would click on the wrong button.  However, the button was of a bright color and looked substantially different from the normal “Send and Archive” button.

What’s more, the button created a pop-up explaining its function when the cursor scrolled over it. This being said, many users complained that they could only see the pop-up right before they clicked the “Drop the Mic” button.  Google has itself stated that they feel they should have included a confirmation pop-up that required a second click before “dropping the mic.”  The facts here are fairly tenuous, but there is a credible argument that Google’s implementation of their April Fools’ joke breached the duty of reasonable care.  This being said, it would be a heck of an uphill battle to prove it.

So with duty and breach established, sort of, let’s look to causation. Could a plaintiff show that but-for the “Drop the Mic” feature they would not have lost their job?  One of the very few instances of somebody losing their job over Google’s prank is a writer who claims he accidentally clicked the “Drop the Mic” button when sending his articles to his editor.  Due to the mute function, the writer states that he never received the suggested edits and missed his deadline.  His editor also took offense to the slight to her suggestions of the minion mic drop and ultimately fired him.

In a situation such as that of the writer, it seems likely that but-for the confusing positioning of the “Drop the Mic” button he would not have lost his job.

There is a real chance that Google may be vulnerable to a negligence lawsuit if the facts available are true and complete. However, not only may there be facts we do not know, the case is already fairly tenuous as to whether Google has actually breached a duty.  There is a real chance that Google may be vulnerable to a lawsuit, however it’s a slim chance at best.

Protecting Your Business

Google has opened themselves up to potential lawsuits through what seemed to be a fun prank. Their danger is at best moderate, but wherever possible, it’s best to avoid such danger all together.  When preparing to offer a product or service, consider the potential implications of the use of that product or service.  If you are unsure whether you might be placing yourself in a lawsuit’s crosshairs, consult a lawyer.  You don’t want to end up in a courtroom with a Judge dropping the mic.

Starbucks Sued for Under Filling their Lattes

Some California residents have brought a class-action lawsuit against Starbucks for not filling their lattes up to the brim. Yep, you read that right.

The complaint claims Starbucks misled its’ customers by only filling their cups ¾ of the way full. According to their standard recipe guide, the Plaintiffs argue the missing 25% of the latte violates a whole slew of rights. Plaintiffs allege Starbucks breached an express warranty, breached an implied warranty of merchantability, received unjust enrichment, violated California’s Consumers Legal Remedies Act, violated California’s Unfair Competition Law, violated California’s False Advertising Law, negligent misrepresented their products, and committed fraud. The Plaintiffs further allege Starbucks made a conscious decision to under fill their lattes in order to save money on milk.

But don’t fret, because this was brought as a class action suit, so all you fellow latte drinkers are potentially entitled to the restitution, compensatory, and punitive damages the Plaintiffs are asking for. Oh yea, plus any interest tacked on for all those lattes you’ve bought!

Is This a Frivolous Lawsuit?

A lawsuit is frivolous when the Plaintiff knows there is little to no chance of succeeding on the merits, or lack of merits, of the case. Frivolous lawsuits can lead to fines in the thousands, contempt orders, or even criminal consequences in extreme situations. Starbucks

Let’s be honest, this is an absolutely absurd lawsuit, but the Plaintiffs may actually be able to win. Here’s a further look into what the Plaintiffs are claiming.

  • A breach of express warranty is anything that a seller represents to a buyer about the product.
    • The complaint alleges Starbucks expressly warranted their lattes contained “12 fl oz” for a Tall, “16 floz” for a Grande, and “20 floz” for a Venti, which is in fact true. The question is whether Starbucks breached their express warranty by only filling their lattes ¾ of the way to the top of the cup.
  • A breach of an implied warranty of merchantability is anything that is guaranteed to work as claimed.
    • Basically the same argument as above, except they added that the lattes were not fit within the market for their intended purpose.
  • Unjust enrichment is when one party is enriched at the expense of another.
    • Plaintiffs allege Starbucks was unjustly enriched in retaining revenue from the purchases of the lattes.
  • California’s Consumers Legal Remedies Act prohibits representing goods that have quantities, among other things, which they do not have.
  • California’s Unfair Competition Law prohibits unfair, deceptive, untrue or misleading advertising.
  • California’s False Advertising Law prohibits just what it says—false advertising.
  • Starbucks negligently misrepresented or negligently omitted material facts about the lattes.
  • Starbucks provided false or misleading material information and failed to disclose material facts about the lattes, i.e. fraud.

On the face of the legal issues presented, the Plaintiffs make some decent arguments that Starbucks misrepresented the actual size of their lattes. Although ridiculous, they may have enough to not be considered a frivolous lawsuit.

However, in order to win, they are going to have to prove that an average person who purchases the lattes expects to get exactly 12 ounces (or 16 and 20 ounces) in their latte. How many of us, when ordering a drink, expects it to be filled to the brim of the cup. I know I don’t. Wouldn’t filling the cup to the brim be quick to spill? I see another McDonald’s hot coffee lawsuit coming out of this.

Additional, the Plaintiffs need to prove actual harm in order to get an award for damages and that may be hard to do. The Plaintiffs allege harm because they state they would not have purchased the lattes on the same terms had they known the cups were in fact not filled all the way to the top.

Starbucks Can Fight Back

Starbucks has responded that they believe the case is without merit. Not only is each drink hand prepared, which inevitably results in variances of each drink, but Starbucks ensures that if a customer is unhappy with the preparation of their drink, they will remake the beverage at no cost to the consumer.

Starbucks can file a motion for summary judgment once all discovery is complete. Summary judgment is a judgment entered by the court in favor of one party without a full trial. These type of motions are filed if one party believes either the other doesn’t have enough evidence to prove their case or there is enough evidence that proves no liability.  Essentially, if Starbucks believes the Plaintiffs don’t have legal merits for the case, they can ask the court to make a decision without the need of a trial.

When you go to McDonald’s, or any other establishment, and order an iced tea, it’s filled with your beverage plus ice. You aren’t technically getting the full ounces represented on the cup. Based on the Plaintiffs’ arguments against Starbucks, all drink suppliers could potentially be sued on the same basis. A judgment in favor of the Plaintiffs would set a horrible precedent.

Will California Raise the Legal Smoking Age to 21?

In the 1950s, smoking was the epitome of cool. Movie stars such as James Dean and Humphrey Bogart were never without a cigarette. Actress Audrey Hepburn made smoking look glamorous. Advertisements even encouraged pregnant women to smoke to reduce their baby’s birth weight. Back then, we didn’t know just how harmful it is to blow smoke into your lungs.

Nowadays, we know that smoking causes a host of fatal diseases. The tobacco industry constantly loses customers when current customers quit or die from smoking-related illnesses. In order to survive, tobacco companies must attract a new generation of tobacco users, and that’s exactly who they target: the next generation.

California intends to protect today’s youth with new legislation. California’s current smoking law prohibits the selling of tobacco to any child under 18 years old, but the California legislature gave final approval to bills that would raise the smoking age to 21 and regulate electronic cigarettes. It is now awaiting a signature from Gov. Jerry Brown.

If it becomes law, California will be the second state alongside Hawaii to increase the smoking age to 21. More than 100 cities, including New York and Boston, have already raised the age limit.

Youth Related Smoking

Tobacco use in the United States is established primarily during adolescence. Whether they use standard cigarettes, electronic cigarettes, or hookahs, statistics demonstrate that nearly 9 out of 10 cigarette smokers first tried smoking by age 18. Even more alarming, each day in the United States, more than 3,800 youth aged 18 or younger smoke their first cigarette. No Smoking

Tobacco companies are savvy and use flavorings in their products to make them more appealing to youth. Most adolescents 18 or younger reported using a flavored tobacco product within the last 30 days.

The negative effects of smoking are staggering. Studies suggest if smoking continues at the current rate among youth in the U.S., 5.6 million of today’s Americans younger than 18 will die early from smoking-related illnesses. To give you further perspective, that’s about 1 out of every 13 Americans aged 17 or younger alive today.

Criticism of Legislation

In spite of the evidence that something needs to be done to protect today’s youth from this silent killer, experts that oppose the legislation claim that raising the smoking age to reduce tobacco use among teens does not work. Specifically, experts say that there is no research to show that raising the smoking age to 21 will deter teenagers from smoking.

Experts also claim that although the age increase may make it so less tobacco is sold to minors, there will be no effect in the ability of high school students to get cigarettes. They point to the existing evidence which demonstrate most people have tried their first cigarette before the legal age of 18.

Others claim that raising the age limit to smoke takes away a fundamental right afforded to all adults. In the United States, one needs to be 18 to vote or fight for the country. For all intents and purposes, people are considered adults as soon as they turn 18. Adults should be able to make decisions on their own without interference of government regulations.

Support of Legislation

Despite the naysayers, there is plenty of support for this legislation. Many believe that nicotine enslaves smokers in their addiction. Most people are unable to quit smoking in spite of numerous attempts to quit. If teenagers are unable to buy tobacco legally, it reduces the chance that they will become addicted at a young age.

Others hope that policies that reduce or delay initiation of smoking could have a large impact on public health. Raising the legal minimum purchase age of cigarettes from 18 to 21 could be an effective way to reduce youth smoking by making it harder for them to buy cigarettes. The legislation may also reduce the number of legal buyers teenagers encounter in their normal social circles, further limiting their exposure to tobacco products. Supporters think the legislation will prevent young people from dying prematurely because of lung cancer, stroke, emphysema, and heart disease. The American Academy of Pediatrics agree, claiming that premature deaths would decrease by 223,000, while lung cancer related deaths would decrease by approximately 50,000 per year.

Studies also suggest that medical cost savings far outweigh costs incurred through enforcement or checking IDs. Individual retailers incur the cost of checking IDs and the state incurs costs on enforcement, but overall states save in reduced health care expenditures.

Campus Carry Law: the Logic of Allowing Guns on Campus

In the United States, four of the 50 states have a campus carry law that allows a licensed gun owner to carry their personal firearm while on a public school campus.

Advocates of a campus carry law state that self-defense is a human right. To the advocates, if they were confronted with the gunman off-campus, they would have the right to defend themselves with deadly force. So when they face a gunman on a university campus, they should have the same right to defend themselves.

But are we comfortable with a student, or a person on campus, carrying a concealed firearm? What is a campus carry law? How do you get a license to carry a concealed weapon? Does the campus carry law help or create more issues?

What is a Campus Carry Law?

A campus carry law authorizes licensed gun owners to carry a concealed handgun on university campuses in the state. A CCL allows universities to enact “reasonable rules and regulations” for their campus.

In Texas, CCL states that:

  • There are no open carry on campus
  • Every gun holder must have a license to carry
  • To have a license to carry, the person must be at least 21 years-old.
  • It is still a crime for a licensed gun owner to carry a concealed handgun while intoxicated.

In Texas, the gun owner must be 18 years or older and have a valid I.D. to own firearms like rifles or shotguns. You must be 21 years or older with a valid I.D. to own a handgun. But to have a concealed handgun, the gun owner must ask for a license to carry.

How Do You Get a License to Carry a Concealed Handgun?

Concealed weapons law varies from state to state. In Texas, they apply a shall-issue approach to grant a concealed weapons license. Shall-issue grants licenses to conceal so long as the applicant follows the requirements of the law. In contrast, states like California and New York have a “may-issue” approach, which also requires the applicant to show good cause. Weapons Ban

This means that a sheriff or a local authority cannot deny a license to carry, even if they know of any reason why the particular applicant should not have one. If the police know an individual who is prone to be violent or prone to fits of passion, he may be granted a license to carry a concealed weapon.

The existence of a campus carry law and a concealed weapons law, together, is troublesome.

Does Allowing Students to Arm Themselves Help Prevent School Shootings?

There have been 277 shootings since the Columbine High School massacre in 1999. So the idea of allowing students to carry concealed firearms is disquieting. The nation can agree that we want to stop school shootings, but we cannot agree on how to stop them.

Every shooter has a name and story, but they are all labeled as unstable, psychotic, or evil. They all found access to firearms and carefully, deliberately planned their attacks. So the ultimate question is: how can we end school shootings?

Do we ban guns from society or do we allow individual citizens to arm themselves and fight back? There are many recorded instances where armed civilians stopped a gunman before their plan could be carried out. It is without question that these brave individuals saved the lives of others and at great personal risk.

A Campus Carry Law Does Not Fix Our Problem.

It’s true, guns don’t kill people; it is people with guns.

But the reason these shooters caused destruction is due to two things: mental instability and access to firearms. In a state like Texas, an applicant’s mental health is not questioned until it is far too late. We do not want to stigmatize and isolate individuals with mental illness as a threat to society. We also do not want to stigmatize and isolate gun owners as a threat to society.

A mentally ill person is often only a threat to themselves if you remove access to a lethal weapon. But a gun owner, whether they struggle with mental illness, can still be a threat. If a gun owner perceives a threat which doesn’t actually exist, or if the gun accidently discharges, then there is a very real risk that someone will be injured or even killed.

The reality is that we live in a society that was built on the use of firearms not only to defend, but to provide. Most of us do not rely on hunting for food. But today, Americans that live in poverty and rural areas rely on firearms and weapons to feed their families.

We also live in a society where $38.3 billion was spent on hunting gear and supplies in 2011. In comparison, it generated more revenue than Google did in the same year. Hunters and fishermen have spent $7.2 billion annually on permits and licenses. The money is used to preserve our national parks and wildlife.

We live in a society that enjoys the civilian use of firearms. But it does not mean we should accept a society with mass shootings. In America, over 80% of the firearms used in mass shootings were obtained legally.

If we cannot live in a society without guns, then we must be more strict and stringent to prevent firearms from falling into the wrong hands.

Assaults at Trump Rallies: Can Criminal or Civil Lawsuits be Brought against Trump?

Donald Trump’s political rallies have a history of violence. At a Las Vegas rally on December 14, 2015, Trump supporters were heard screaming “light the motherf***er on fire” at a black protester as he was escorted from the rally. Reporters were attacked at rallies by Trump campaign staff on February 29, 2016 and March 8, 2016. On March 2, 2016, a black woman was repeatedly shoved as she left a rally after Trump yelled to his supporters to get her out of the building.   On November 21, 2015, six rally attendees tackled, punched and kicked a Black Lives Matter protester.  These are just a few of the reported incidents of assault on protestors at Trump rallies. 

Trump’s campaign started playing an advisement over loudspeaker at the beginning of their events that their rallies are intended to be peaceful rallies and telling rally-goers to neither touch nor harm protesters. In February of this year, reporters noted that the crowd laughed when this advisement was played. Trump 3

Many of the above incidents have resulted in police investigation as well as criminal and civil charges being pressed against the rally-goers who actually assaulted these protestors and reporters. However, Trump himself has tacitly and explicitly approved of the use of violence in removing protestors or reporters from his rallies. Trump’s campaign also funds all of his events, repeatedly calling his rallies private events. These facts can be enough to form the basis of either civil liability for the violent acts of Trump’s rally-goers or criminal liability through an argument of incitement to violence.  So can Trump be held liable on either of these theories?

Civil Liability For Criminal Acts of Third Parties

There is generally no liability for the criminal acts of other people and no duty to protect others from the acts of third parties.  However, there are exceptions where a special relationship exists. If such a relationship exists, a party has a duty to take reasonable steps to protect against foreseeable criminal acts of third parties. Failure to take these reasonable steps opens the party up to liability.

So does Trump have such a special relationship with protesters at his rallies? The exact nature of what constitutes a special relationship for liability purposes varies a fair bit depending on state law.  A common form of these special relationships arises between a possessor of land who holds it open to the public and those who enter in response to this invitation.  Thus, the question is whether Trump, by personally financing his events and holding them open to the public, is treating all who attend his rallies as invitees. 

Case law does not conclusively rule on this issue, and state law varies enough that it is difficult to make a real determination as to whether Trump has created a relationship that could lead to liability. However, if a person open their business to the public, anyone who enters is an invitee. This includes customers and patrons. Thus, there is a real argument to be made that Trump, who personally pays to rent his venues and allows any of the public to enter, has created a special relationship with every person at his rallies.

If Trump has made such a special relationship, the question becomes whether these assaults are foreseeable. Foreseeability in these cases boils down to whether Trump knew about a history of frequent, similar criminal activity. Trump rallies have had numerous assaults, as illustrated above. Trump certainly has reason to foresee the potential for further assaults against protesters at his rallies.

Finally, in order to be liable, there must be reasonable steps that Trump could take to prevent violence, but failed to. Trump has issued an announcement advising his rally-goers not to attack protesters.  However, numerous assaults have occurred since this advisement was introduced—proving it ineffective. What’s more, providing adequate warning is only part of the reasonable steps one must take. While the exact nature of reasonable steps varies state to state, where a duty exists one must take steps to secure common areas against foreseeable criminal acts that are likely to occur. 

This means that Trump must provide security sufficient to prevent protesters from being assaulted. This is something he has not done up to this point, instead focusing on using his security to remove protestors.  One clear reasonable step Trump could take in preventing violence is not endorsing it at his rallies, such as when he told his crowd on February 1, 2016 “if you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you? Seriously. Okay? Just knock the hell — I promise you, I will pay for the legal fees. I promise. I promise.”

The issue with holding Trump civilly liable for the criminal acts of his rally-goers is determining whether he has created a special relationship with those who attend his rallies. As it stands, it is very hard to determine whether such a relationship exists.  If such a special relationship exists though, there is a very real possibility that Trump himself may be vulnerable to a lawsuit.

Inciting Rally-Goers To Imminent Lawless Action

The second potential source of liability for Trump would exist if he has actively incited his rally-goers to imminent lawless action. The Supreme Court established a test for unprotected speech, ruling that speech is unprotected where it incites a person to immediate violence or illegality. Most states have statutes that could hold Trump criminally liable if he is found guilty of inciting violence.

However, in order to be criminally liable for incitement, Trump would need to actively advocate immediate illegal action. While Trump has gone on record with numerous comments that imply his support of his rally-goers violent actions, he has yet to cross the line of suggesting immediate violent action.  If Trump were to say “punch that protester in the face for me” that would likely constitute incitement.  However, simply fostering an environment conducive to violence does not mean his language incites immediate violence. A situation could arise where Trump, following his current trend of behavior, may find himself criminally liable.  However, it is unlikely that Trump could be prosecuted for anything he has said up to this point.  



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