Monthly Archives: July 2011

1997 – Wrongful Death Involving Cell Phone Distraction

This case was a fairly high profile one because it was one of the earliest cases which highlighted the dangers of cell phone useage while driving.  Added to what would become a recipe for disaster was the fact that the driver who caused the collision was a teenager. 

In January, 1996, a 16 year-old girl whose parents were on a ski trip in Colorado, decided to take her parent’s company van out for a drive, even though she had been forbidden to do so.  She brought a cell phone along with her, and during the excursion, it fell onto the floorboard of the van.  Along the way, the cell phone rang, which distracted the teenager from her driving duties while she reached for the ringing cell phone.

During the few seconds that her eyes were taken off the roadway to retrieve the cell phone, the van veered across the center line of the highway, striking head-on a small compact car which was traveling in the opposite direction.  In the other car was a family of four – father and mother in the front seat, young daughter and son in the back.  The impact resulted in the death of the 3 year-old boy and serious brain damage to the father, resulting in his total and permanent disability.  The mother and daughter were also injured, but survived without permanent physical injuries.

A wrongful death lawsuit was filed was almost immediately in the 352nd District Court, seeking damages against both the teenager individually and against the teen’s parents.  Besides allegations of common law negligence, the plaintiffs sued under multiple other theories, including negligent entrustment, negligence per se and a claim that the vehicle itself constituted an attractive nuisance for a teenager whose parents were out of town.  With regard to their negligence action, plaintiffs complained that the teen’s parents had failed to properly instruct her on how to safely operate a mobile phone while simultaneously driving a vehicle.

During the pretrial of the case, the plaintiffs asked Judge Sudderth to recognize a new cause of action in the law – a cause of action for negligent entrustment of a cell phone.  Plaintiffs argued that the law recognizes a cause of action for negligent entrustment of chattel (tangible personal property – the cell phone itself).  Plaintiffs argued that such a cause of action exists in the common law if the person supplying the chattel has reason to know it is likely to be used in a manner involving an unreasonable risk of harm.  Plaintiffs argued that the entrustment of a cell phone to a teenager driver under these circumstances was similar to the entrustment of a firearm to a minor child, which had already been recognized in Texas jurisprudence as a basis for liability under the theory of negligent entrustment of chattel.  Judge Sudderth rejected this argument, declining to recognize a new cause of action in Texas law for negligent entrustment of a cell phone.

The plaintiffs also sought damages under the theory of negligence per se, since the teenager was also operating the vehicle with an expired driver’s license at the time of the collision.  Judge Sudderth also declined to apply the law of negligence per se in this case, rejecting plaintiff’s contention that an expired driver’s license was tantamount to driving without a license.  In her ruling, Judge Sudderth drew a distinction between driving under an expired license and driving without ever having been licensed at all.  Causing a collision or reckless driving, Judge Sudderth ruled, would be a direct result of being an unlicensed driver; hence, the law of negligence per se would apply.  However, Judge Sudderth held the mere fact that a valid license had been permitted to expire would have no direct causative relationship with the quality of a driver’s skills or abilities behind the wheel.  Therefore, Judge Sudderth ruled that under the facts of this case driving under an expired license, while a violation of the law, would not invoke the doctrine of negligence per se.

The case went to the jury on the theory of negligence as to the teenager and negligent entrustment of a motor vehicle as to the teen’s parents.  In a 10-2 verdict, the jury imposed liability on the driver, but not her parents.  Damages were awarded against the teenager in the amount of $6.9 million.  Neither the verdict, nor Judge Sudderth’s pretrial legal rulings, were appealed.

The tragic and fatal accident that gave rise to this lawsuit took place in January 1996.  Judge Bonnie Sudderth heard many news accounts of this accident while she was campaiging for the position of judge of the 352nd District Court.  She won that election two months later and by the time she took office, the lawsuit had already been filed and randomly assigned to the 352nd District Court.  The case went to trial one year later and was the first trial that garnered media attention during Judge Sudderth’s tenure on the district court bench.  It was notable because access to cell phones, cell phone technology and research regarding cell phone useage while driving was still in its infancy during this era.

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2004 – Cows vs. Horses

It’s only fitting that this lawsuit would be filed in a court located in Cowtown…

In 2001, Cattle Pros entered into a contract to provide cattle for the National Cutting Horse Association’s (NCHA) Championship Futurity, the Super Stakes and the Summer Spectacular Events over a three-year period of time.  For the first event, the 2001 NCHA Championship Futurity, Cattle Pros was obligated to provide between 10,000-12,000 cattle.  The cattle were required to be between 450-750 pounds in weight and in good health (no blind, injured or physically defective cattle).  In addition, the cattle couldn’t have “too much ear” on them (meaning they must be primarily English breeds) and must be “fresh,” in that they could not have previously been used in a cutting horse event.  (Witnesses testified at trial that cattle which had been “worked” in prior events learned techniques on how to avoid being cut from the herd.) 

Just prior to the first event and after having inspecting less than 20% of the cattle to be provided, the NCHA concluded that Cattle Pros would be unable to provide satisfactory quantity and quality of cattle for the event. Shortly thereafter, NCHA terminated all future contracts with Cattle Pros and made arrangements for another company to supply cattle for next and subsequent events.

Cattle Pros brought suit in the 352nd District Court for breach of contract, seeking damages in excess of $1.5 million.  Summary judgments were presented to Judge Bonnie Sudderth for consideration, but Judge Sudderth denied them, ruling that a fact existed which precluded summary judgment and which would require a jury finding after a full trial on the merits.  The issue at trial was whether or not NCHA had acted within its rights to terminate the contract in advance of the event and whether or not Cattle Pros was able to perform under the terms and conditions of the contract.  Throughout the trial, the judge, the jury and everyone else in the courtroom was provided with a unique glimpse into the world of cutting horses and cutting horse competitions.

At the end of trial, the jury rendered a verdict in favor of the NCHA and awarded the association approximately $250,000 in attorney’s fees.  Judge Bonnie Sudderth accepted the jury’s verdict and signed a judgment in NCHA’s favor.

(Side note:  During trial, one of the attorneys who represented the Cutting Horse Association would frequently whisper to co-counsel so loudly that his voice could be heard several feet away from counsel table. This earned him the nickname among court staff as the “Horse Whisperer.”)

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2009 – Texas Deceptive Trade Practices and the Acai Berry Claims

In response to more than 350 complaints lodged by Texas consumers, the Consumer Protection Division of  Texas Attorney General Greg Abbott’s office sought relief from Judge Bonnie Sudderth of the 352nd District Court of Tarrant County, to enjoin Texas DTPA violations by a dietary supplement distributor regarding the sale of an acai berry supplement called Acai Berry Maxx.  The Attorney General sought a permanent injunction against what his office described as ongoing deceptive trade practices and requested up to $250,000 in civil penalties to be assessed against the vendor for each separate violation.

The lawsuit primarily focused on a website advertisement which offered a “free trial” sample of the product, which the Attorney General contended was not, in fact, free.  In addition, the Attorney General argued that the advertisement itself was deceptive.  In large print, Acai Berry Maxx was advertised as the “#1 Recommended Super Food” which would “reduce the risk of heart disease, Alzheimer’s disease, cancer and premature aging.”  Yet, the advertisement also contained language in fine print stating that the product was “not intended to diagnose, treat, cure or prevent any disease.”

As a part of the sales pitch, online consumers were given four minutes, during which time they were told they could take advantage of a “no obligation,” “free trial offer,” but after which time the offer would expire.  During those four minutes, customers were required to provide a credit card number and agree to three single-spaced pages of various “terms and conditions” in order to receive the “free trial offer.”  The consumer’s credit cards were immediately billed $5.95 for shipping and handling fees, and by agreeing to the terms and conditions, the consumer enrolled in a “continuity plan” which included monthly shipments of the acai berry product for a total of $85.90 per month.  (These monthly purchases would be automatically billed to the consumer’s credit card unless the subscription was cancelled within 14 days of the initial order.)

Numerous consumer complaints were filed with the Attorney General’s Office and the Better Business Bureau as a result of the advertisements and the offer, including allegations that consumers didn’t receive the actual trial sample until after the time had passed to cancel the monthly subscription.  Other consumers reported that when they attempted to cancel the subscription, their calls to the telephone numbers provided were not answered and their emails to the web addresses provided were not responded to.

Almost immediately upon the filing of the lawsuit, the parties announced to Judge Sudderth that they had agreed to settle the case.  The settlement provided that the distributor would stop selling the acai berry product in the State of Texas and would not sell it at any time in the future.  In addition, the vendor also agreed to refund all money requested by former customers and to maintain a customer service website to process and fulfill consumer refund requests for a period of at least six months after the order had been signed.

Judge Sudderth quickly signed an order setting forth the terms of the agreement and permanently enjoining the vendor from making any further false or misleading claims.  Specifically, the order required the vendor to cease claiming that the acai berry product would diagnose, cure, mitigate or prevent diseases and to remove from its website purported success stories about celebrities Brad Pitt and Rachel Ray’s alleged use of the product.  Finally, the distributor was ordered by Judge Sudderth to pay $200,000 to the Texas Attorney General’s Office as a civil penalty for the deceptive trade practices. 

(The Attorney General agreed not to attempt to collect the fine as long as the vendor complied with all other terms of the order, including the permanent injunction against selling acai berry products in the future.)

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