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Does Mack Have an OSHA Complaint Against Director Coulson?

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Rogue spy agencies commit acts of vigilantism, illegally conduct foreign operations in Canada, and obviously lack a human resources department. We also learned on Agents of SHIELD that no one had read the OSHA regulations before entering an alien city in Puerto Rico that had been sealed for centuries.

Does Mack have a cause of action against Director Phil Coulson for his workplace injuries in Attilan? Would a Court find such failures to follow OSHA regulations inhuman?

Shirt Compliments of Neatorama and available from NeatoShop.com
Shirt Compliments of Neatorama and available from NeatoShop.com

Let’s examine the basic facts: Mack is lowered into a confined space that has no windows or ventilation for hundreds, if not thousands, of years. Mack did not wear any protective clothing or wear an oxygen mask while entering the unsealed and unventilated confined space. Furthermore, there was no evidence of testing the air quality of the secret city entrance, other then the mini-drones called Dwarves becoming non-operational.

Employers are to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USC 654. Ensuring that a work area has an acceptable air quality for human habitation is part of these requirements ensuring employee safety.

OSHA recognizes that “Airborne contaminants can present a significant threat to worker health and safety.” As such, testing for airborne contaminants and determining what protective equipment is necessary to ensure the safety of employees is not one to be ignored, especially in ancient alien civilizations that destroy human tissue upon the touch.

OSHA-Atmosphere-Supplying-RespiratorsIf a work environment has “substances with a high degree of hazard to the skin are known or suspected to be present, and skin contact is possible,” then an employee should be protected by wearing the following:

Pressure-demand, full-face-piece SCBA or pressure-demand supplied air respirator with escape SCBA.

Fully encapsulating, chemical resistant suit.

Inner chemical-resistant gloves.

Chemical-resistant safety boots/shoes.

Two-way radio communications.

OSHA, Air Quality, Table 8-6, Sample Protective Ensembles

OSHA-HazardsMack did not have any such protection while being lowered into Attilan.

Upon coming in contact with the floor of the alien room, Mack immediately went into physical distress, developing alien markings upon his arm, his eyes changing color, and becoming physically violent to his coworkers.

It is noble that Director Coulson had a acceptable loss rate of zero for the operation in San Juan, however, providing Mack with proper protective clothing would have helped achieve that goal.

Mack might have assumed the risk of entering Attilan, given what was known about the Diviner and its destructive power on human beings. However, that knowledge should have been a warning to the SHIELD Agents to wear the proper protective clothing before entering a confined space of alien origin with unknown air quality. A Court finding otherwise would simply be Inhuman.

Lawyers and Judges Geeking Out Over Star Wars The Force Awakens

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There has been an awakening. Have you felt it?

NerfHerder_8594The answer is YES. Judge Matthew Sciarrino joined Jessica and I to discuss the teaser trailer for Star Wars The Force Awakens. If you remember IOU’s for Star Wars toys and have already requested December 19, 2015 off from work, then you will enjoy what Judge Sciarrino has to say about the new Star Wars teaser trailer.

Thanks, 2014!

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TurkeyIt’s that time of the year again, where we all think about what we’re thankful for (before we start thinking about what we want next!), so I’m here to say thanks for a great year!

Thanks to Josh, who is an awesome blogging partner whose great work on Guardians of the Galaxy (among other posts, like those on Captain America and Agents of S.H.I.E.L.D.) got us named to the ABA Journal Blawg 100 for the second year in a row (thanks, ABA Journal!).

SuperHeroesThanks to the geek world, which is getting better and better about giving us stories with great women.  My favorite, Wonder Woman, has been around for years, but I love her as the God of War.  And the new Goddess of Thunder is awesome! Even the news for future years – like the Agent Carter show and Captain Marvel movie – was exciting news this year.

And, finally, thanks to all of the family, friends, and fellow geeks out there.  You make life brighter and I hope you all have a happy Thanksgiving and a wonderful holiday season!

Black Friday: Avoid Tort Liability for Christmas

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BlackFridaySalesNothing expresses a season of thankfulness, love, and giving, like people waiting overnight in line to buy things. “Black Friday” videos of shoppers rushing into stores can look like the Normandy landing in a fight to the death for the best deal.

You almost expect people to pin letters home on their backs in case they do not survive, just like Union soldiers before Cold Harbor.

Corporate counsel at every major store probably have already issued litigation hold instructions to their records managers to save security video.

To not get me wrong, I love holiday shopping. The Stanford Shopping Center always has pretty decorations. Christmas in the Park in downtown San Jose is also fun. There is just no way on God’s Green Earth that I will go shopping on Black Friday.

nickel-60534_1280How long was “Black Friday” been around? The first case with the term “Black Friday” was in 1874.

The case did not pertain to holiday shopping, but a stock market crash where parties tried to corner the market in gold in 1869, “for purposes of speculation and plunder.” Cameron v Durkheim, 55 NY 425, 438-439 [1874].

A stockbroker who was alleged to have been part of the “Black Friday” conspiracy that caused the panic of 1869 sued on defamation over the accusation. Willard v. Sun Printing & Pub. Co., 106 F. 636, 636 (C.C.D.N.Y. 1901).

The first mention in a lawsuit that “Black Friday” was a major shopping event the day after Thanksgiving was not until 2001 during a deposition. Gray v Press Communications, LLC, 342 NJ Super 1, 5-6, 775 A2d 678, 681 [Super Ct App Div 2001].

Tort cases involving Black Friday have included injuries from stepping on a skateboard; claims of excessive force by police by someone attempting to get a shopping cart; and even trademark infringement between online retailers. Doyle v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 128624, 6-7 (N.D. Okla. Sept. 15, 2014); Bannan v. City of Philadelphia, 2012 U.S. Dist. LEXIS 16353, 10 (E.D. Pa. Feb. 9, 2012); Overstock.com, Inc. v. Nomorerack.com, Inc., 2014 U.S. Dist. LEXIS 89620, 2 (D. Utah June 30, 2014).

“Black Friday” has been around for decades with people going shopping. Personally, I prefer to celebrate the day after Thanksgiving by avoiding crowds.

However, if you must go shopping, or off to enjoy a movie to see the Star Wars The Force Awakens teaser trailer, be safe in parking lots, and remember the spirit of the holiday. Having up-to-date insurance and your lawyer’s number might also be handy.

Murder, Incorporated on Gotham

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Let’s start with Alfred is awesome. The ultimate butler who can fight off three assassins and put one in the ground. The world needs more marksmen butlers.

Alfred-VenusianAikidoThe Gotham mid-season finale focused on three assassins hired to kill Selnia Kyle (AKA Cat) at Wayne Manor. This small “league of assassins” killed a groundskeeper at Wayne Manor, shot Alfred (just a flesh wound), murdered Dick Lovecraft, and had a gunfight with the police.

“Murder-for-hire” assassins would violate both Federal and New York. Federal law specifically states:

(a) Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $ 250,000, or both.

(b) As used in this section and section 1959 [18 USCS § 1959]–

(1) “anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;

(2) “facility of interstate or foreign commerce” includes means of transportation and communication; and

(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

18 USCS § 1958.

The murder of Dick Lovercraft was a completed murder-for-fire and could be prosecuted under Federal and New York law.

New York law specifically prohibits conspiracy to commit murder under NY CLS Penal § 105.15. Murdering a witness to a crime with the intent to prevent the witness from testifying in a trial is first-degree murder. NY CLS Penal § 125.27(1)(a)v).

The three assassins could be prosecuted under both Federal and State law for their conspiracy to kill Selina Kyle (thus attempted murder), because there was 1) a contract to kill the minor; 2) the intent to kill Kyle was to prevent her from testifying in the Wayne murder; and 3) interstate commerce was used in someway to give Federal jurisdiction, whether it was by communication or travel.

The death of the groundskeeper would qualify as a “death” under both statutes, as the groundskeeper was murder in the furtherance of the conspiracy. His death would carry a life sentence for all of the conspirators. Alternatively, if somehow the groundskeeper’s death and body mutilation was only second degree murder viewed separate from the conspiracy, the fact an assassin shot Alfred in the arm would qualify as an injury, thus carry a 20-year sentence.

The Legal Geeks Made the ABA Journal Blawg 100!

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BasicIllustratorFileLetter—CSWords cannot express my joy that The Legal Geeks made the ABA Journal Blawg 100 for a second year in a row.

I feel like Grooting.

Thank you all very much for this wonderful honor. We are deeply humbled you enjoy The Legal Geeks.

I want to thank the editors of the ABA Journal for selecting us and for such a kind description of our blog:

The dictionary may define a “geek” as someone with “excessive enthusiasm for and some expertise about a specialized subject or activity,” but we would quibble about the word excessive. We hope that Josh Gilliland and Jessica Mederson never stop sharing their pop-culture enthusiasm with us. This year, we especially enjoyed the series of posts that coincided with the movie release of Guardians of the Galaxy. Their podcasts also should not be missed.

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

I have had a lot of fun the past year using action figures, shooting video with green screens, and finding new ways to be creative. I want to thank New York State Court Judge Matthew Sciarrino for his friendship, sharing our blog, and joining us for the occasional podcast on Doctor Who or Star Wars. Judge Sciarrino introduced us to New York political consultant Gerry O’Brien, an amazing geek in his own right with his book 1901: Theodore Roosevelt, Robot Fighter. I had a blast discussing the legal and political fallout of Captain America The Winter Soldier and Agents of SHIELD with Judge Sciarrino and Gerry.

Jessica and I also had our first celebrity podcast when Matt Weinhold joined us to discuss Doctor Who, after Jess qualified Matt as an expert under Federal Rule of Evidence 702. I met Matt back when my family owned Rooster T . Feathers Comedy Club while I was in college, who is a wonderful person, and geek extraordinaire.

A lot of people have ReTweeted and promoted us over the past year, including the talented Madeleine Holly-Rosing, author of the Boston Metaphysical Society, San Diego Comic Fest, and our friends at The Geekie Awards. There are many others and thank you so much for your support.

I want to especially thank Jessica for continuing our adventure on The Legal Geeks. Jess is an outstanding lawyer, dedicated mother, and has a wicked sense of humor.

Voting is now underway in each of the 13 categories of the ABA Journal Blawg 100. We were so honored to win the For Fun category last year. We ask for your vote once again. If you could please vote for us in the For Fun category, we would greatly appreciate it.

To vote, please visit the ABA Journal, register, and vote for The Legal Geeks in the For Fun category.

Thank you all for reading The Legal Geeks.

OK, back to dancing to I Want You Back.

Grooting-ABAJournalBlawg100

Let’s Go to the Comic Book Store

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We love comic books. So, sit back, relax, and enjoy a rip-roaring discussion on comic book care, women in comics, and super-hero lawyers.

How was She-Hulk’s defense of Captain America? Moreover, why does Jess love Wonder Woman? And Just who is the new Thor? Check out my theory on Agents of SHIELD and Captain Mar-Vell in our new video and audio podcast.

WhoIsGoddessThunder_5915