Recently in Eat Drink and Be Merry Category

47-year-old archaeology professor Chris Ratte is perhaps not the most careful of parents; he says he didn't realize when he bought a $7 "Mike's Hard Lemonade" at a Tigers game, it was an alcoholic beverage (all of 10 proof), and let his 7-year-old son Leo drink the 12-ounce bottle. A vendor noticed the boy with the drink; the boy had no symptoms of inebriation but said he was nauseated; and stadium officials, in a prime example of defensive overreaction, summoned an ambulance, which found Leo fine with no trace of alcohol in his system.

Silly enough so far, no harm, no foul, but Michigan Child Protective Services intervened, held Leo in foster care for two days (refusing to release him to the custody of his aunts, who drove from New England on short notice for just such a possibility), and forced Ratte to move out of the house until a second hearing okayed his return. If Ratte and his wife weren't upper-middle-class academics with access to the University of Michigan Law School clinic professors, it could have been much worse. "Don Duquette, a U-M law professor who directs the university's Child Advocacy Law Clinic, represented Ratte and his wife. He notes sardonically that the most remarkable thing about the couple's case may be the relative speed with which they were reunited with Leo." (Brian Dickerson, Detroit Free Press, Apr. 28 (h/t B.C.)).

Some policy proposals are for taxpayers to fund attorneys to defend parents victimized by Child Protective Services; some go so far as to call it a constitutional right, albeit one having nothing to do with the underlying text of the Constitution. But that would only treat the symptom and ossify the underlying problem of abusive government intervention into the home.

I never thought I'd be involved in a hot-coffee lawsuit, but Gamepolitics covers my intervention and objection to the Grand Theft Auto: San Andreas class action settlement, which I predicted before the suit was even filed.

(I corrected a mistake in the earlier post; I said I purchased GTA:SA for the Xbox 360 when, of course, I purchased it for the Xbox. Fortunately, my affidavit to the court was correctly phrased.)

Grand Theft Auto IV debuts at midnight tonight to spectacular reviews, and the litigation is sure to follow...

• Overlawyered favorite Jack Thompson (Mar. 21; Feb. 22; Sep. 27, etc., etc.), whose antics could fill an entire sub-blog, has sent an obnoxious letter to the mother of Rockstar's boss, Strauss Zelnick, accusing it of being pornography and training for murder. A new book, Grand Theft Childhood, as documented by WaPo's Mike Musgrave, suggests that the fears of corrupted childhood are overblown, though Lord knows I wouldn't let any teenage kids I was responsible for play this game.
• As someone who purchased Grand Theft Auto:San Andreas the first day it was out for the Xbox 360 original Xbox, I am a member of a plaintiff class in a class action settlement over the Hot Coffee mod where players can access the Internet and voluntarily modify the game to make it slightly more offensive to the easily offended. (To imagine that one can find p0rnography on the Internet!) In the settlement, I get, well, nothing, and the attorneys will ask for about a million dollars; worse, individual "representative" class members who suffered no injury will get $5000 that could have been used to buy more music rights for Grand Theft Auto IV. We're frequently asked what we can do if we're unhappy with a class action settlement where we're a member, but this settlement was sufficiently appalling that I actually retained an attorney and he served an objection on my behalf on Friday. Further updates to come.

Update: I incorrectly said I bought San Andreas for the Xbox 360. Of course, San Andreas was never available for the 360. I bought the June 2005 release for the original Xbox.

Update: More.

Not only can you not sell the Kentucky dessert unless you are Kern's Kitchen, Inc., but you'd better not offer any "Bluegrass Bourbon Pie" and get all winky-winky with your customers about it, either. Wikipedia discusses the litigation history. (Charlie Pearl, "Still playing the pie game", Frankfort State-Journal, Apr. 17)(via Catallaxy.net).

We've been critical of would-be class action lawsuits claiming that Coca-Coca violates consumers' rights by sweetening its fountain version of Diet Coke with a mixture of aspartame and saccharin, rather than aspartame alone as in the supermarket version. Now the Missouri Supreme Court has rejected class-action status for such a lawsuit, reversing a lower court; it "said the classification was overly broad, because it could have covered an indefinite number of people, many of whom did not really care how their Diet Coke was sweetened." (AP/Kansas City Star, Apr. 15).

I'm quoted in this morning's New York Sun on that correlation. (E.B. Solomont, "Post-Smoking Ban, City Gains 10 Million Lbs.", New York Sun, Mar. 27).

Blogger Rogier van Bakel is furious (via Balko (h/t Slim)) at his local SPCA because they would rather put a dog to sleep than place it with his family with small children. See, they're worried about getting sued if the dog bites one of the children. van Bakel can't believe it: he's even willing to sign a waiver!

His anger is misdirected. The SPCA didn't kill his dog; trial lawyers did. Courts' failure to recognize the right of parties to contract out of excessive liability means that the SPCA has to protect itself against attorneys, and can only do so if they avoid situations where they might be sued. With 20/20 hindsight, the would-be John Edwards will say to a jury: "The SPCA has placed other dogs that bit small children and has been sued for it, yet they continue to place dogs with small children!", and demand punitive damages. Between judges who won't recognize the right of contract when it interferes with a lawyer's paycheck, and legislative efforts to prevent parties from agreeing to contract out of the high costs of the liability system, von Bakel cannot distinguish himself from the families who would blame the SPCA if a dog-attack occurs. The offer of a waiver does not help: the SPCA can't afford to take the risk that an adoptive family will renege on its agreement not to sue if the dog attacks a child.

Now, perhaps we as a society do not want shelters to place animals in homes with small children. Or perhaps we do. But shouldn't that be a decision that rests with a legislature, rather than random chance and a jury? But when a jury has the power to exact uncapped damages, an SPCA has to anticipate the regulation through litigation.

van Bakel and Balko direct readers to other organizations that have not yet been saddled with a lawsuit demanding such practices, but they will surely follow in the SPCA's footsteps when the lawyers get a hold of them. The long-term solution is to insist on elected officials who will appoint judges who respect freedom of contract, and who will pass tort reform measures that put common-sense limits on the power of courts to interfere with every-day activity. Even now in Congress is debating S. 1782, which would put further limits on the power of consumers to opt out of expensive litigation, and receive the benefits of lower costs and increased choice; while President Bush will veto such legislation, an Obama administration with a Democratic Congress would surely vote it into law.

For more on the Congressional and trial-lawyer campaign to reduce consumer choice, see the Overlawyered arbitration section.

Apologies to Mr. van Bakel for the misspelling of his name in the original version of the post.

New Haven, Ct. honors student Michael Sheridan, suspended and removed from his elected class post after being caught buying a bag of Skittles candy from a fellow student in violation of his school's policy against empty-calorie food, will be reinstated, the school says. (AP/Google). Ohio law blog The Briefcase (Mar. 13) has more, along with a link to this PTO Today article detailing how a federal law mandating school "wellness policies" has increased the pressure on states and local schools to adopt anti-snack measures.

Many defendants, including five of her friends as well as the inevitable bar, are to blame for not doing more to keep Amanda Jax from downing so much alcohol that night, according to the lawsuit by her family. ("Alcohol death: five times limit", Mankato (Minn.) Free Press, Nov. 9; Dan Nienaber, "Lawyer: Civil suit coming in drinking death", Mankato Free Press, Dec. 28; "The defendants and their alleged actions that night", Minneapolis Star-Tribune, Feb. 28; Scarlet Raven, Feb. 29).

Inconceivably beyond my frame of reference as an American: self-operated rides in a Denmark amusement park (as part of a larger travelogue on a very strange park, Bon Bon Land). Instructions are provided on signs: customers seat themselves, and the next person on line is supposed to press the appropriate button at the appropriate time to send a customer hurtling down a zip line.

It fascinates me how other cultures tolerate risk and reject idiot-proofing so much differently than the US. I wonder which way the causal arrow goes with the general litigiousness of American culture: are we litigious because we're risk-averse, or are we risk-averse because we're litigious? If the former, perhaps the European example actually reflects the moral hazard of social insurance. (Of course, other photos on the travelogue pages demonstrate other important differences between Denmark and the US.)

Related: Subcontinental Drift on zoos in Southeast Asia.

Update: Amusement-park-loving torts prof Bill Childs comments, which is appropriate, because the post was originally just going to be an email to Childs and a handful of other people before I realized there was no reason not to just expand it into a post.

Public Citizen's blog announced that CSPI plans to sue the beverage sellers, asking for disgorgement of profits from flavored malt beverages, unless they agree to take them off the market. Their theory? By making flavored alcoholic beverages that taste good, they are effectively marketing to children. (Because, after all, adults don't like beverages that taste good.) CSPI also claims that it violates FDA rules to sell alcoholic beverages that contain caffeine, which would be a surprise to every restaurant that offers Irish coffee.

An L.A. specialty "so good it's illegal" (Daniel Hernandez, L.A. Weekly, Feb. 6)(via Sullivan).

House Bill 282, filed in the Mississippi legislature, is an "act to prohibit certain food establishments from serving food to any person who is obese, based on criteria prescribed by the state department of health". It sounds as if it almost has to be a parody, but when Sandy Szwarc calls its sponsor he says he's perfectly serious (Jan. 31).

Thus argues a lawsuit filed by James Bogden against four restaurants in Alexandria, Va., which "seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas." (Jerry Markon, "Man With Heart Condition Wants Smoke-Free Eateries", Washington Post, Jan. 31).

An Alexandria tapas bar was cited for serving sangria—which violates a 1934 Virginia law against mixing wine with spirits, with penalties of up to a year in jail. Virginia Spanish restaurants, so warned, now only serve a bowdlerized version of the drink, to the dismay of customers who can get the real thing a few miles away in DC or Maryland. The legislature is contemplating a change, though a pending bill would fail to exempt the similarly illegal kir royals or boilermakers. (Anita Kumar, "Virginia's Sangria Ban At Issue in 2 Hearings", Washington Post, Jan. 24). (According to Instruction 33 on this bulletin, Virginia also appears to ban the pitcher of margaritas the local Mexican restaurant serves.) Left unspoken: when is someone going to bring a consumer class action against the Spanish restaurants serving faux sangrias without warning customers?

(ObJingoism: At least Virginia still has better Thai, Indian, and Vietnamese food than DC or Maryland.)

For more on the more modern food police, see Overlawyered's Eat, Drink, and Be Merry section or my article, A Taxonomy of Obesity Litigation.

Plaintiff Trish Wiener "believes Dannon misled her, and she wants to milk it for all it's worth", reports the Los Angeles Times. The paper's reporter seems almost disrespectful of this very serious legal action, which claims the bacterial cultures in Activia and DanActive yogurt aren't really as salubrious as the ad puffery would have you believe. Most dramatic-irony-freighted quote, from a lawyer with the California firm of Coughlin Stoia, which is representing Wiener: "Companies are getting more and more aggressive in their advertising claims. They end up playing off people's general fears and concerns." Just to clarify, that's a quote by a lawyer from Coughlin Stoia, and not a quote about that law firm, which is best known for until recently (in its Lerach Coughlin incarnation) being the home base of disgraced felon William Lerach. (Alana Semuels, "Yogurt maker sued for claims", Jan. 24).

Meanwhile, Michael Krauss at Point of Law (Jan. 24) discusses the recent settlement of a class action against Bed Bath and Beyond over disputed bedding thread counts.

Kim Severson of the New York Times has this article on the growing interest among parents of food allergies:

Record numbers of parents are heading to doctors concerned that their children are allergic to a long list of foods. States are passing laws requiring schools to have policies protecting children with food allergies. But no one knows why the number of allergies seems to be on the rise, or even if they are rising as fast as some believe.

Ms. O’Brien and leading allergy researchers agree that few reliable studies on food allergies exist. The best estimates suggest that 4 to 8 percent of young children suffer from them, though the reactions tend to grow less serious and less frequent as children grow older.

Even though the science is weak, new laws and policies are enacted under the banner of child safety. Yet as David Bernstein points out, we've been down this road before.

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders' names, mug shots and BAC levels online. Sullum concludes that the prosecutor is "imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent."

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won't endorse the idea:

"Some parts of the Web site are good because they are informational and trying to provide the victim's perspective," said Misty Moyse, the spokeswoman for the group. However, she said, "M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving."

(crossposted at catallaxy.net)

A lawsuit against milk producers over failure to warn buyers about the phenomenon gets poured down the drain by a three-judge panel of the D.C. Circuit (Howard Bashman, "D.C. Circuit Doesn't Swallow Lactose-Intolerance Class Action", Law.com, Nov. 19). Earlier: Sept. 9, 2006, etc.

A discussion by Judge Posner at the Becker-Posner blog (via Childs) provokes this on-point comment from reader "Phil":

Perhaps one of the reasons social-host liability hasn't caught on yet is that the "duty" one is expected to perform is onerous.

Should one of my guests insist on driving home drunk, I have two choices: either take his keys by force, or call the police and have him caught.

In the first case, I could get badly hurt -- and, if my friend is only slightly over the legal limit, the combined physical harms to me and my friend are probably much higher than to the sum of the expected harms to all drivers on the road.

In the second case, my friend will lose his license, and perhaps his freedom. The penalty for getting caught driving drunk is much higher than the harms resulting from the individual infraction, as a deterrent, required because of the fact that so few drunk drivers are caught. So this is not something I would do to a friend. A stranger, perhaps, but not a friend.

The fact is that social hosts faced with an intoxicated friend who insists on driving have no reasonable recourse.