"Parrot Fever" Suit May Not Fly
Legal Topics | 2008/06/27 16:16

The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.



Drunken Groom's Marriage Declared Invalid After 30 Years
Areas of Focus | 2008/06/26 16:04

An Australian bridegroom was horrified to learn after he had walked down the aisle that he was already married — after a drunken holiday romance he could barely remember.

The husband has had to confess in the Family Court that he spent 28 days partying and drinking in Arizona in 1978 on leave from his job as a cook on the oil rigs.

He can remember the "nice" blonde American woman he met through a pen pal newspaper advertisement — but little more.

"He has no recollection of going through any form of ceremony of marriage with her, or of discussing marriage, or of anything referable to marriage," said Justice Sally Brown, who annulled the marriage last month.

Not only that, but the man, who describes himself as an old-fashioned romantic, was already married at the time — to his wife of 14 years.

Yesterday the 67-year-old, who cannot be identified, told The Daily Telegraph "the sky fell in" when he was shown the Arizona marriage license.

"I looked at the signature and thought it could have been mine or it could not have been," he said.

The man had since divorced his 1966 wife. It was when he married his Hawaiian girlfriend in 2006 and applied to live in Hawaii with her that U.S. immigration authorities broke the bad news.

He said his latest wife, who has become his girlfriend again because their marriage was declared invalid, was very understanding.



"Naked Cowboy" Wins Court Shoot-Out with Candy Cowboy
Areas of Focus | 2008/06/25 16:05

A ruling in a trademark infringement case filed by a New York street entertainer who performs as “The Naked Cowboy” is another indication that judges may be taking parodies too seriously when the parody conveys a commercial message.

Robert Burck alleged an animated cartoon advertisement that featured a blue M&M dressed “exactly like The Naked Cowboy” violated the Lanham Act, which prohibits a false endorsement of a product or service by a real person. The ad ran on oversized billboards in Times Square, where Burck plies his trade, dressed only in a white cowboy hat, cowboy boots and underpants.

M&M's manufacturer Mars, Inc. argued that no consumer would be likely to confuse its parody as an endorsement of its product by Burck. The cowboy M&M, it said, is “part of a series of parodies of the 'New York City experience,'” which also portrays an M&M as King Kong climbing the Empire State Building.

But U.S. District Judge Denny Chin denied Mars' motion to dismiss, finding factual issues as to whether the M&M Cowboy characters are a parody of Burck's creation.

“Some consumers, as defendants argue, may view the the M&M Cowboy characters as part of a larger work depicting New York scenes and parodying famous New York characters,” he said in a June 23 opinion. But, he continued,

other consumers may mistakenly believe that The Naked Cowboy himself endorsed the copying of his “trademarked likeness” because the M&M Cowboy characters appear in a commercial setting.

Chin's ruling is quite similar to that of a Los Angeles judge who ruled in December 2007 that Paris Hilton could sue Hallmark Cards over its humorous use of her likeness and “That's Hot” catchphrase on a greeting card.

“[T]he potential exists that the card is sufficiently evocative of an image Hilton has presented of herself that Hallmark is capitalizing on her notoriety,” U.S. District Judge Percy Anderson concluded.

The U.S. 9th Circuit Court of Appeals has noted that “the cry of 'parody!' does not magically fend off otherwise legitimate legitimate claims of trademark infringement or dilution. There are confusing parodies and non-confusing parodies.” Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (1997).

But parodies which have a commercial purpose should be protected under the First Amendment if the use of a trademark “was not specifically misleading as to sponsorship or endorsement.” In neither the Burck nor Hilton parodies is there any specific statement that the “real person” endorsed a product and judges are giving too much latitude to plaintiffs by ignoring that requirement.

Chin did dismiss Burck's publicity rights claim, in part because New York's "privacy statutes were not intended to protect a trademarked, costumed character publicly performed by a person."



Naked Cowboy Sues M&M's
Legal Topics | 2008/06/24 17:24
"This is the case of The Naked Cowboy versus The Blue M&M," afederal judge wrote in allowing The Naked Cowboy's lawsuit against Marscandy and Chute Gerdeman ad agency to proceed. "Plaintiff Robert Burckis a 'street entertainer' who performs in New York City's Times Square,wearing only a white cowboy hat, cowboy boots, and underpants, andcarrying a guitar strategically placed to give the illusion of nudity."He claims Mars & Chute Gerdeman based a Times Square billboard adon his character, "featuring a blue M&M dressed 'exactly like TheNaked Cowboy,' wearing only a white cowboy hate, cowboy boots, andunderpants, and carrying a guitar."

U.S. District Judge Denny Chin kindly attached photos of the two characters at the top of his ruling.

Burck,who has registered The Naked Cowboy as a trademark, claims defendants'animated cartoon ad on two enormous billboards in Times Square violatedhis trademark and his right to publicity.

Chin dismissed thetrademark complaint, finding that New York law "protects the name,portrait, or picture of a 'living person,' not a character created or arole performed by a living person. Burck may proceed, however, with hisfalse endorsement claim, for he plausibly alleges that consumers seeingdefendants' advertisement would conclude - incorrectly - that heendorsed M&M candy."


Supreme Court weighs whales vs war preparation
Legal Topics | 2008/06/24 16:41
The Supreme Court will have the final say on whether war preparation trumps whale protection.

Acting at the Bush administration's urging, the court agreed Monday to review a federal appeals court ruling that limited the use of sonar in naval training exercises off Southern California's coast because of its potential to harm marine mammals.

Sonar, which the Navy relies on to locate enemy submarines, can interfere with whales' ability to navigate and communicate. There is also evidence that the technology has caused whales to strand themselves on shore.

The Navy argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes its ability to train sailors and Marines for service in wartime in exchange for a limited environmental benefit. The Navy says it has already taken steps to protect beaked whales, dolphins and other creatures in balancing war training and environmental protections, officials said.



Fight over White House subpoenas heads to court
Legal Topics | 2008/06/23 15:55
Congress issued its demands. The White House refused. Now it's up to a federal judge to settle a dispute over documents and testimony regarding fired federal prosecutors.

Lawyers for the White House and Congress were headed to court Monday to argue the scope of the president's power to ignore legislative subpoenas. Court fights on this topic are rare and are normally reserved for questions of whether the White House has to cooperate with a criminal investigation, not with a congressional inquiry.

The Democratic-led House Judiciary Committee is demanding documents and testimony from the president's chief of staff, Josh Bolten, and former counsel Harriet Miers about the firing of U.S. attorneys. The scandal helped force the resignation of former Attorney General Alberto Gonzales.

The White House says Miers and Bolten do not need to comply with the subpoenas, citing executive privilege, the principle that one branch of government can't make another branch do something.

Judges normally try to stay out of disputes between the executive and legislative branches. The Bush administration wants the court to avoid this fight, too. Lawmakers say the court is obligated to help enforce a congressional subpoena.



Court to rule on pension credit for old maternity leaves
Areas of Focus | 2008/06/22 15:54
The Supreme Court has agreed to decide whether decades-old maternity leaves should count in determining pensions.

The issue has split federal appeals courts and could become increasingly important as women who took maternity leaves in the 1960's and 70's approach retirement.

Their pregnancies occurred before the federal Pregnancy Discrimination Act, enacted in 1979, barred companies from treating pregnancy leaves differently from other disability leaves. Since then, maternity leave has been credited toward retirement.

The case before the court involves four AT&T Corp. employees who each took at least one maternity leave between 1968 and 1976. They have 67-261 days of uncredited leave because their pregnancies occurred before the law changed.



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