We sometimes see our fellow humans doing some – shall we say – head-scratching things. Sometimes worthy of a “Darwin Award”. Other times simply worthy of the observation “that’s a lawsuit waitin’ to happen!”. Enter this column. The idea is simple: capture and share with others “lawsuits waiting to happen”. With the end goal of laughing at them – not with them. If you think that’s harsh, no worries – you can skip to the serious parts of this newsletter. For the remaining folks with senses of humor…. If you happen across a “lawsuit waiting to happen”, please please share it with us at Lamar3@armstronglawyers.com. With video or picture if you have either. If we think its funny enough (no, this is not a democracy), we’ll include it in a future edition of this column. You’ll get the credit and become famous.
Without further ado, introducing the inaugural lawsuit waiting to happen: the drive thru worker assaulted with a hamburger.
Yes, you read that right. An unhappy customer chucked (pun intended) a burger at a Checkers employee in Smithfield. Apparently the customer had prior beef (pun intended) with the worker. And to top it off (pun intended, OK I’ll stop), the burger missed, striking a window instead.
Lets skip the rich opportunity for jokes (the comments to the article have this covered) and instead evaluate this lawsuit waiting to happen. At first blush, one might think the fact that the burger missed its target means that there’s nothing to see here legally.
Not so fast, my friends. Any first-year law student should be able to recite the basic difference between “assault” and “battery”: assault does not require the attempt involve physical touch (at least a misdemeanor version), whereas battery does. So technically you can assault someone without physically touching him/her – so long as there is “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.”
If you’ve ever had a Checkers burger, you know this incident qualifies as an attempt “with force and violence”. Try arguing with that window if you disagree.
So the question is whether the worker was reasonably in fear of immediate bodily harm. Again – Checkers burger. Case closed. Get the orange jumpsuit ready. Make room Hamburglar – the Ham-assaulter is your new cell mate.
– Lamar Armstrong, III