The Law and Finger food?

On Wednesday March 24, 2005, an individual in San Jose, California decided to have a cup of Wendy's chili. Allegedly, when she was almost done consuming the chili she all of sudden started to panic and vomit. When the Wendy's employees started to clean up the vomit they noticed an awkward substance in remains. After they examined the substance for a longer period of time they noticed that it was a human finger that was in the chili and the individual regurgitated the finger when she got sick.

As a pre-law student my analysis is that, the injured person could sue on two grounds, product liability and/or negligence. Under product liability, this person could easily file suit for strict liability because all restaurants and places like Wendy's have standards to uphold by OSHA and other federal laws. Also, this person could sue for negligence due to a breach of duty (duty of care) because the restaurant has a duty of care to reassure that there are no foreign substances in the food they sell.

In this case it may be alleged that Wendy's breached that duty of care. But the big question is what will this person sue for? My guess is that they might try to plea for negligent infliction of emotional distress damages and will also try to be compensated for the physical body trauma that this person went through. Eating a finger and then regurgitating it would certainly cause physical trauma and also, emotional distress; because just the thought of eating a human body part can be quite disturbing.

But not only has Wendy's public relations taken a drastic hit, this story will certainly make some people think twice when they order any kind of fast food. But after a couple of weeks of investigation both San Jose Police and the Las Vegas Police fraud unit have not traced where the finger could have come from. Interestingly enough, this 39 year old woman has quite an extensive legal history and according to the News Journal (April 14, 2005) she has publicly announced that she will not bring suit against Wendy's.

Article by Craig Springer

NORAD - Cheyenne Mountain Operations Center

Cheyenne Mountain commands the view over Fort Carson, Colorado. I was stationed at Fort Carson during my stint in the 4th Mechanized Infantry Division. NORAD is inside of Cheyenne Mountain, and inside every cold war child. There are some neat photos of the facility that seem to humanize it.

Identity Theft Targets the Newly Married

There are reports coming out of the Delaware Clerk of Peace office that newlyweds are being targeted in an ID theft scam.

Be careful when receiving official looking documentation from organizations that you may not have heard of. If you think that there may be something fishy about a form that you receive asking for private information, don't hesitate to check further into it before you fill out that form.

I suspect that we will see more like this in the future.

Cops on Doughnut Shops

I'm all for camping out, but I'm not sure that my first choice of a place to do so would be on the roof of a Krispy Kreme Doughnuts shop.

Then again, it might be if it were for a good reason. Like helping to support the Special Olympics.

Three Delaware police officers are spending 54 hours atop a donut shop near the Governors Square Shopping Center off U.S. 40. With tent and sleeping bags set up, it's an interesting place to rough it out. They will be there today, and tomorrow until noon, and hope to raise money for the Special Olympics. If you find yourself in the area, you might want to consider stopping by, and cheering them on.

Here's a link to more about Special Olympics Delaware if you missed this event, but are interested in seeing what they are up to next, and how you can help out.

Schiavo Experience

Last week when I posted an entry indicating that we had received an increase in requests for Living Wills ( aka Advanced HealthCare Directives), I referenced the Schiavo case and how I felt that it had influenced many of these new inquiries.

I hadn't followed with particularity the Schiavo case(s). Today, I looked at Abstract Appeal and its Schiavo Information Page. I was stunned by the complexity and length of the history of the case, and feel even more sorry for the people involved.

What is Expungement?

Basically, expungement is the sealing of a person's criminal record. The expungement process does not erase the criminal record, but simply seals the record from public view. All copies of the record are shredded and erased from databases except for a sealed copy kept at the office of the Supervisor of the State Bureau of Identification. 11 Del. C. §4373. The sealed records can then only be viewed by a court or by "law-enforcement officers acting in the lawful performance of their duties...or for the purpose of an employment application as an employee of a law-enforcement agency." 11 Del. C. §4374.

Why is this important? Because a criminal record can hurt an innocent person's opportunities to gain employment, education, and credit. By expunging a criminal record, potential employers, schools and lenders aren't able to learn of an innocent person's past arrests.

Who is eligible for expungement? 11 Del. C. §4372 sets out three specific circumstances where expungement of a Delaware criminal record can be expunged. The first is when a person is acquitted (found not guilty) of a crime. The second is when a nolle prosequi (the state decides to drop the charges) is entered. The third is a dismissal by the Court. If any of these three circumstances occurs, the person charged is eligible to petition the Superior Court for an expungement. The petition and the proposed order ask the Court to expunge the record. It is up to the Superior Court to review the petition and decide if the expungement shall be granted or not.

If a person has an old conviction, can a new acquittal be expunged? No, if there are any convictions on a person's record, then the record cannot be expunged. A record is expunged so that an innocent person will not be hindered by an arrest record. If someone is found or pleads guilty, the damage is already done.

When should an expungement petition be filed? As soon as possible. A petition for expungement of criminal records should be filed right after the person becomes eligible either by acquittal, nolle prosequi, or dismissal. This way, the potential creditors or employers who would be able to see the record is kept to a minimum.

Even after an expungement is granted, it is still a good idea to have a criminal record search done a few months later to make sure the expungement process was completed. If the expungement has been successful, no record will be found.

Generally, while the drafting of a petition for expungement can be complicated, expungement is a relatively simple and inexpensive process. The problem is that many people and their lawyers are so happy to be done with a criminal case that they forget all about expunging the record. A criminal record is something that most people don't think about until it comes back to haunt them. An expungement is a relatively easy way to alleviate those headaches down the line.

NOTE: This post refers to expungement for criminal records of adults. A post on expungements for juvenile records will be coming soon.

Here are a few expungement related articles on celebrities:
First daughter, Jenna Bush
Basketball star, Allen Iverson
Pop singer and talent judge, Paula Abdul


UPDATE 5/16/05

In response to my entry of 4/11/05 about expungement, we received an email from John Sandy, Esquire of Stumpf Vickers & Sandy, P.A. in Georgetown, Delaware. He notes that when there is a previous conviction, it is still sometimes possible to get a new criminal charge expunged. He says in part:

4373 (a) states that the existence of the previous conviction is "prima facie" evidence that dissemination of information relating to the arrest to be expunged does not constitute a manifest injustice to the petitioner. Prima facie evidence is conclusive on the issue unless rebutted.

In my own practice, on several occasions, when the previous conviction was remote in time and/or considerably different in degree or nature, I have been able to convince the DOJ not to oppose the motion or the court of the "manifest injustice" over the State's objection. Within the past year I had a young lady turned down for a job with the Dept. of Corrections (I didn't think that they turned anyone down) on the basis of an arrest for Assault 3rd on her boyfriend. That charge was subsequently dismissed but because she had had an Under Age Consumption on her record 3 years earlier the DOJ opposed the motion. When I produced the letter from DOC stating that it was the assault arrest that kept her from being hired and pointed out that this was not a plea bargain where she pled to the alcohol charge in return for a dismissal of the assault, the DOJ withdrew its objection (but noted the previous conviction in its response to the court). The court granted the motion knowing that she had previously been convicted.

Another point that was not addressed in my previous entry, but that Mr. Sandy brought to my attention is that when a person is involuntarily committed to a mental hospital in Delaware, it is noted on that person's record and can be viewed by anyone with access to the criminal record. However, these records can also be expunged. Mr. Sandy writes:

I have twice been successful in having the "Mental Patient" notation removed (sealed) from the SBI record. In both cases SBI itself vehemently opposed and the DOJ took up their position. The cases, about 5 years apart, were nearly identical. Both involved young women applying for jobs that required a background check. As I recollect, they were both applying for teaching positions. At the time of their petitions both were in their mid twenties. In each case, when they were 15 or 16, they threatened (but did not attempt) suicide over breakups with boyfriends. In both cases, alarmed parents enlisted the aid of the State Police and 72 hour commitments were procured. Both girls were released before the 72 hours elapsed and neither ever had any other problem. Clearly, a background check would have been severely detrimental to their teaching careers. A reading of the statue clearly stated that "adult" commitments were to be reported. Despite the fact that the records should never have been made available to SBI the State opposed sealing the record. In both cases the court (Graves in one and Bradley in the other) granted the motion. I am surprised that some of the mental health advocates have not taken up the issue of the inclusion of this information in the SBI records.

Thank you Mr. Sandy for your insights.

Child Support, Spousal Support, and Parent Support

An interesting but uncommonly used Delaware Law provides that we as parents may be required to support our children, even after they turn 18. In fact, the tables may at some point turn and have the children required to support their parents.

Title 13 of the Delaware Code, at Section 503, establishes a legal duty to support our spouses, parents and children, if they are a poor person and unable to support themselves.

The duty to support that person does not mean, however that we are necessarily responsible for their debts. A duty to support would mean that we would have a legal responsibility to contribute a certain amount of money to that person for their living expenses. This is different from saying that we have to pay off their credit cards or other debts.

It is important that each case be discussed and evaluated on its own merits with a Delaware lawyer who is proficient with this topic.