Editorial
Front Page - Friday, October 23, 2009
I Swear...
Poetic Halloween suit revisited
Vic Fleming
Last week, I used a passage from Real Lawyers Do Change Their Briefs as the bulk of the column.
Lest you suggest laziness on my part, let me say that I do not have that manuscript on any computer files. And I was unable to find that sentencing speech by the Arizona Territory judge anywhere on the Internet. (It’s there now, though!)
Before I closed my copy of the book, which is falling apart, and I mean that literally, I wanted to reprint another passage that my friend John Youngblood commented on when he called. That would be a 1986 suit filed near Halloween, which commenced with poetic pleadings.
The pleading that John Youngblood is fond of was written by James L. Simpson, Jr., of Friday Eldridge & Clark.
Jimmy was representing the defendant in a products liability suit that had been filed in circuit court on the day before Halloween. Cliff Jackson, representing the plaintiff, tried his hand at poetry in the complaint. He identified his client as a “devoted chocolate addict” who had
“… Trotted down to her friendly Alco Store
Her Hershey supply to restore.
… ‘Twas 1983, on Halloween night—
Ghosts and goblins, everywhere in sight—
But the sickest apparition [the plaintiff] would see
Was inside the wrapper of the Hershey’s candy,” which, it was alleged, contained “oodles of maggots.” Realizing this,
“[Plaintiff] shrieked in horror and practically fainted—
She had no idea the candy was tainted—
After all, there were the company guarantees
Of express and implied merchantabilities …
Wherefore, [plaintiff] pray now she must,
She seeks what is right, that which is just,
A green poultice to cover her wound,
Say somewhere in the tune
Of two million dollars
(Won’t the defendants holler!)”
To this complaint, Jimmy Simpson responded, on behalf of his clients:
“All material allegations lack substance and pride;
as related to [defendants] are hereby denied.
She failed to allege any damage ensued;
merely that she has a weakness for food.
Assumption of risk she has clearly accepted
by eating the candy she knew was infected.
Any harm that resulted from plaintiff’s ingestion
was caused by her biting without an inspection
She therefore is guilty of taking the fault
no proximate cause, her lawsuit must halt.
No facts to support lack of fitness for use;
pleads no cause of action and cooks plaintiff’s goose.”
Someday, I will have to ask Jimmy how that case came out. [Jim, if you’re reading this …]
© 2009 Vic Fleming
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