John Doe A v. Penn State
First Penn State scandal lawsuit says Coach Jerry Sandusky sexually abused a boy more than 100 times and the abuse was enabled by the school's "negligent oversight."
Bradley v. Lohan
Former Betty Ford Center employee sues Lindsay Lohan for assault, alleging the actress threw a phone at her and yanked her wrist while refusing to be breathalzyed.
N.D. v. New York Post
Hotel maid allegedly raped by French politician sues the New York Post for falsely reporting that she is a prostitute who "routinely traded sex for money" with male guests.
Reinhart v. Mortenson
Two Montana residents allege the author of "Three Cups of Tea" "fabricated material about his activities and work in Pakistan and Afghanistan" to sell the book.
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• Maryland appeals court says dog owners can be held strictly liable for pit bull attacks. "Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous." Tracey v. Solesky

• Woman who has been diagnosed as a sex addict sues a school district for failing to prevent her from having sex with male students on the school bus when she was in 11th grade.
Barksdale v. Egg Harbor Township Bd. of Ed.

• Civil rights activist challenges Georgia's "stand your ground law." "By not defining what actions create a reasonable perception justifying the use of deadly force, the Act[] potentially deprives all Georgia[n]s of the right to life without due process of law." Hutchins v. Deal

• Former patient of a Rhode Island doctor sues him for featuring her in a book about drug addiction. "Plaintiff had expected, as any reasonable patient would, that her private conversations during her treatment sessions with the Defendant would remain private and confidential."
Lisnoff v. Stein

• Class action alleges the YMCA deceives consumers by representing that it practices "Christian" values while allowing its gyms to be used for gay sex trysts. "YMCAs around the country ... are currently being used as brothels for cruising, with the YMCA's knowledge and implicit consent."
Keister v. YMCA

• Social workers are not liable for a sexual assault on a 5-year-old boy by a 16-year-old male placed in an adoptive home. "To rule against the individual defendants in this case would definitely break new ground."
Doe v. Braddy

• Student sues college for refusing to grant her the "reasonable accommodation" of a single room after she complained about her roommate's exhibitionist behavior.
Blankmeyer v. Stonehill College

• School district can be sued over a guidance counselor's sexual relationship with a student who was over the age of consent. "The inherent imbalance of power between a guidance counselor in a public school and a student may render opportunistic sexual predation sufficiently shocking, even with a 'consenting' student over sixteen, to form the basis of a substantive due process claim."
Doe v. Fournier

• Utah judge finds a "credible threat" that Utah County officials will prosecute a polygamist and his wives for bigamy. The officials' acts "suggest that an actual prosecution of Plaintiffs is forthcoming."
Brown v. Herbert

• Louisville, Ky., strip club sues a competitor for displaying an electronic sign outside a convention center that said "Don't go to Godfathers, their girls are ugly and have crabs."
The Godfather v. Trixie's Lounge

• A lawyer cannot sue two women he dated for posting derogatory comments about him on liarscheatersrus.com. "[W]hen viewed within the larger context of the website on which they were posted, there can be no doubt that a reasonable reader would understand the comments to be opinion." Coulotte v. Ryncarz

• Oglala Sioux tribe sues beer makers and Whiteclay, Neb., bars for enabling alcohol abuse on the Pine Ridge Indian Reservation. The illegal trade in alcohol has "caused devastating injuries to the Lakota people and massive financial damages to the [tribe]."
Oglala Sioux Tribe v. Schwarting




Alltop_125x125.jpg







Diner Makes Legal Meal of Injury From Artichoke Leaves Print

A Florida man who says he was injured from eating the leaves of a grilled artichoke has filed a lawsuit that may test whether a restaurant has a duty to explain to patrons how to eat unfamiliar food items.

Grilled artichoke isn't on the regular menu at Houston's in North Miami Beach. But Arturo Carvajal, a doctor with a family practice in Hollywood, Fla., says his table server offered it to him as a special on May 3, 2009.

“Neither at that time;” Carvajal alleges in a complaint filed last week,

nor at the time the “Grilled Artichokes” were served to Plaintiff, did the Defendant's order taking server or the Defendant's food delivery server ask Plaintiff whether he was familiar with how to eat “Grilled Artichokes” or explain to Plaintiff that [the] outside portion of the leaf should not be eaten; rather, only the inside portion of the leaf was safely digestible.

As a result of eating the wrong part of the leaf, the suit says, Carvajal “began experiencing severe abdominal pain and discomfort” and ended up in the hospital where, during exploratory surgery, “artichoke leaves were found lodged within Plaintiff's small bowell [sic].”

He has sued Hillstone Restaurant Group, which operates the Houston's chain, for negligent training of its staff, alleging it had “a duty to use reasonable care with respect to the serving and explanation of items not described on the menu; which by their appearance as served appeared wholly consumable.”

The art of eating an artichoke has certainly challenged many a gastronomic novice — only the soft, pulpy part of the inside of an artichoke leaf is edible. “If you didn't grow up eating artichokes and if you were encountering them for the first time, they might seem a little intimidating,” says one food website.

But Carvajal is pushing the legal envelope by arguing that Houston's was negligent in “failing to train its servers to explain to customers the proper method of consuming an artichoke.”

Florida, like other states, uses a “reasonable expectation” test in unfit food cases. A preparer of food “has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,” the Florida Court of Appeals said in Zabner v. Howard Johnson's, 201 So.2d 824 (1967).

Carvajal, though, can't recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

Courts have found that salesmen have a duty to explain insurance policies, loan agreements and investment strategies to consumers. In Vucinich v. Paine Webber, 803 F.2d 454 (1986), a stockbroker was found liable for failing to explain “the nature of short selling to [a customer] in a way that she could understand what she was getting into.”

But the duty in such cases arises because the salesman is a “fiduciary” of the customer with the authority to make financial decisions on the customer's behalf.

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, “How do I eat this?”

UPDATE

  • Carvajal's lawyer told Miami New Times, "It takes a sophisticated diner to be familiar with the artichoke. People might think that as a doctor, he'd know how to eat one. But he was thinking it was like a food he might have eaten in his native Cuba, where you eat everything on the plate."


  • COMMENT

  • "Is the defense here that he was warned? What part of 'arti' and 'choke' did Artie not understand?" — Supremecourtjester



  • By Matthew Heller
    11/4/10


     

    Editor's note: On Point's RSS feed has moved to this link.

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