Stella Case No. 114, Originally Published: 15 November 2006
There’s no holiday gift more traditional — or more derided — than the fruitcake. There are actually people who make, even eat, the combination of heavy cake, infused with booze and/or candied fruit, every year, despite the reputation that “there’s only one fruitcake” that’s passed around (and around and around).
Lucille Greene, 88, is a fruitcake lady — she makes about 30 of them every year to give away during the holidays. In December 2002, she took her boxes of fruitcakes to the post office in Magnolia, Del., to ship to her friends and relatives. She handed over her boxes to postal clerk James P. Maurer, and that’s when the trouble started, she said.
“He shook my fruitcakes and asked ‘what kind of explosives do you have in here?’” Greene said. That caused others standing in line to laugh, she said, which upset her. His joke over, Maurer accepted the packages and Greene went on her way.
But, she says, she was so upset that when she left, she tripped over a parking barrier and fell, breaking her glasses and a tooth, and hurting her knee. With the help of attorney John S. Grady, she sued, claiming intentional and negligent infliction of emotional distress because, she said, she felt like she was being accused of being a terrorist.
The majority of Greene’s medical expenses were paid by insurance or Medicare, so there was little out-of-pocket expense. No matter: The lawsuit demanded $250,000 in compensation.
“I’m sorry that the plaintiff injured herself,” said U.S. Attorney Colm F. Connolly. Since the defendant was the U.S. Postal Service, the case was filed in Federal court, and the U.S. Attorney’s office was brought in to defend them. But, Connolly continued, “I don’t believe it is appropriate to spend taxpayer money, let alone $250,000, to pay for an accident the government didn’t cause.”
Chief District Court Judge Sue L. Robinson heard the case in November 2005, and issued her ruling in September 2006.
First, she said in her six-page decision, the postal clerk was rude. While he was following established procedures for checking the contents of the box, “he was likely being less than courteous.” She chastised the USPS for not settling the case out of court, instead forcing a trial and “thus adding to its lamentable reputation.”
She also admonished the USPS for not apologizing to Greene. “An apology,” she said, “apparently, is an obsolete gesture in our contemporary American culture.”
Still, Robinson ruled, the injuries Greene received outside the post office were not the fault of the USPS. She noted that Greene had an eye condition that probably contributed to her fall, that Greene’s testimony contradicted itself, and pointed out that questioning the contents of packages was established and reasonable postal procedure, especially since Greene had not marked the boxes properly.
The bottom line: all claims were dismissed with no money awarded to Ms. Greene.
“I think I should be reimbursed,” a disappointed Greene said. She added she is considering an appeal.
But even though the USPS won, the U.S. Attorney’s office has filed an appeal of its own, asking that the judge especially remove the reference to the postal service’s “lamentable reputation” from her opinion, since there was no evidence presented at trial to support such a slam.
“The United States urges the Court to amend its opinion to remove this derogatory reference to the USPS, an organization employing approximately 700,000 people who work hard every day to serve the public good,” said the filing prepared by Assistant U.S. Attorneys Seth Beausang and Patricia Hannigan.
Also, they say, both the clerk and other postal service officials did apologize to Greene, and did so promptly. Plus, they point out, they made several attempts to settle the matter out of court, but Greene’s attorney wouldn’t budge from the $250,000 demand.
Even Mr. Grady, Greene’s attorney, said the response to the opinion was “unnecessary” since the government won the case. “This was a tough case,” he concluded.
Grady likely was not paid for his efforts, since most cases of this type are done on contingency. When such a case is won, the attorney receives a percentage of the reward — often 40 percent or more. But either way, Grady didn’t go away empty handed: Greene says she made him “a couple” of fruitcakes.
Yes, Greene had her day in court, and the government won. But don’t think that there wasn’t a significant cost: your tax dollars paid for a senior U.S. Attorney and two assistants — and likely plenty of support personnel — to avoid not just the quarter-million-dollar payout, but also setting a bad precedent that could have opened the floodgates to hundreds of more frivolous cases. That’s a significant cost of both money and court time spent debating the merits of a fruitcake’s case (er, I mean a fruitcake maker’s case) instead of other serious and important issues that come before federal courts.
We the People won this case — but the people of this country also lost significant time and money fighting it.
- “Post Office Scolded for Fruitcake Comment”, Wilmington News Journal, 12 October 2006.
Dismissed, as noted, and presumably not appealed, as threatened.
My 2022 Thoughts on the Case
I do think Judge Robinson erred by assuming what she would never let attorneys pleading before her to assume: that USPS didn’t offer an apology or settlement offers when they actually had done both. Mere citizens can make such assumptions, but attorneys (and, certainly, judges) shouldn’t. She retired in 2017.
In Case No. 112, I discussed the implication some cases give that lawsuits could be avoided if only people would just post warning labels about things. Easy! (You know, like the sort demanded in last week’s case — “Warning: This mall is outside. Animals live outside. If you’re at this mall, you might see some animals around. Deal with it.”)
I noted that in California, it’s the law that anything that might be “known” to produce cancer or other health problems has to have a warning label. Grocery stores “deal with it” in part by posting signs by the front door. Now that California has more than a thousand items on its official “Proposition 65” list, there are warning labels everywhere — so naturally, with all that visual noise, people don’t see warning labels for real dangers anymore.
Ronald in Delaware: “I pay the rent by writing Material Safety Data Sheets for a company that makes medical diagnostic equipment and chemical kits. I produce a single document for each particular product that covers the regulations for all of North America — we do not make a special edition for California customers. That means the when one of our products contains a very small amount of something on the Prop 65 list, such as the antibiotic Streptomycin, I include a standard statement that this material is known to the State of California to cause birth defects. The clear implication is that Arizona or Nevada does not know this, or else if you cross the state line it will no longer cause birth defects. Actually most of our customers in the rest of North America understand exactly what the California Prop 65 warning means, and laugh.”
Peter in Illinois is not laughing: “Your [discussion of] California’s Prop 65 reminded me of an issue that is impacting our industry and business that sell drinking products with their logos on them. Based on the current interpretation of Prop 65, if a promotional mug somehow gets into a someone’s hands without the Prop 65 weasel-words, perhaps given out at a trade show in California, everyone down the chain is liable. This includes the company giving out the mug, the promotional products distributor and the manufacturer of the mug. We counsel our clients that if they have a trade show in Calif, that they make sure they do not even think about giving out a drinking item.
“Taken to its logical conclusion, anyone who sells a promotional mug or imprinted glass on their website to someone in Calif is risking their business. Silly is the polite word. Flat-out insane is a better description. However, I have come to realize through your efforts that common sense is anything but common here in the states. I have no suggestions or solutions other than hoping that the judges will come to their senses and start the wholesale tossing of frivolous lawsuits. Until this happens we will continue to have warnings warning us about the warnings.”
It may be too late for the U.S., but a South American lawyer hopes it’s not too late for his country:
Marcio in Brazil: “We have a law called ‘the consumers code’ from 1995 that regulates consumers’ rights, and duties and companies’ rights and duties. Now, in 2006, we are in 2nd generation of the rights and duties prescribed in that code. When we get the 5th or 6th generation, our rights will be just like yours today. That’s why I read very carefully your newsletter — I want try to prevent absurd cases like them here.”
Best of luck to you, Marcio!
Eileen in Arizona: “Even if the manufacturer had labels on these elevated beds [as demanded in the last issue’s case], college students would gleefully deface them, protesting the concept that they were considered so dumb as to need the labels. So, now, will the over-burdened dorm supervisors have to add label inspection to their already busy schedules? And who will incur the cost of replacement labels when the original ones are unreadable? All ages of people have rolled out of bed. My own 5-year-old fractured her collarbone in such an incident. So, do I sue the maker of the cement for the slab floor for it being too hard? This thing is too utterly ridiculous. But, then again, without such stories, how would we entertain ourselves over our morning coffee?”
Careful, Eileen: hot coffee can be dangerous!
Luckily, the judge in the bed case noted that the label would warn against something that’s patently obvious, and threw out the case. Unluckily, not all judges demonstrate such common sense in their rulings.
In my discussion of Prop 65, noting that grocery stores now have to warn shoppers about mercury in food, I said, “What foods have added mercury in them? None. But seafood has it naturally.” That brought a lot of letters saying I’m wrong about that, that mercury in seafood is quite obviously the result of burning coal in power plants.
That mercury in fish is “natural” is something I’ve read many times over the years, and a quick Google search brought me several references. Examples include this from Science Daily: “‘People have assumed that the high mercury in fish must be from pollution,’ says Francois Morel, Ph.D., a professor of geochemistry at Princeton University and an author of the study. ‘We have about tripled the mercury in the atmosphere, and therefore it should be tripled in the ocean, right? But maybe mercury that occurs in fish is a natural thing, and it may have been there all along.’”
Another example, from the University of California at Davis: “The mercury in [tunas’ and swordfishes’ systems] must come from natural sources. For years, we have probably eaten tuna and swordfish with mercury levels above FDA’s limit without harmful effects. Analysis of museum specimens of tuna caught from 1879 to 1909 reveal that they contain levels of mercury as high as those in fish being caught today. Scientists therefore conclude that mercury levels in tuna, and probably swordfish, have not changed in the past 100 years.”
Take it or leave it, but obviously this isn’t something I made up. And since it’s well beyond the scope of this newsletter, I claim the last word: no more on this subject, so don’t bother to write about it — you can search Google as easily as I can.
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