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Vol. 5, Iss. 9
September 7, 2016

Nose Bite Litigation – This Is Snot A Joke


The DRI insurance message board was recently full of kudos for member Chris Fargnoli on her win in a “nose bite case” before the South Carolina Court of Appeals. Well, when it comes to a nose bite case, we here at Coverage Opinions say sinus up. [Actually, Coverage Opinions is a one man band. There is no us. Writer’s embellishment used to make that work.]

Anyway, there is no way that Coverage Opinions would blow the opportunity to discuss a nose bite case. In fact, in July 2004, CO included an entire article on nose bite coverage litigation. The article looked at a couple of cases where nose biters sought coverage for claims arising out of their actions.

With Chris’s case getting attention, I decided it was now time to take a look at nose bites cases outside the coverage arena. And there are hundreds. Most are criminal. It’s a crime to bite someone’s nose. But there is no shortage of civil ones too. Plus, don’t forget when Uncle Joe grabbed your nose when you were three years old, put his thumb between his two fingers, and declared that he took off your nose. Surely that’s an area ripe for litigation.

With all these nose bite cases, it’s only a matter of time before a CLE company declares nose biting to be the “next asbestos” and offers a two hour program.

First here is a quick look at the recent decision from the South Carolina Court of Appeals in Easterling v. Burger King Corp, No. 5404 (S.C. Ct. App. May 18, 2016). It arises out of a fight in the drive-through of a Burger King (which is strange -- because nose supposedly tastes like chicken).

Gary Eastwood was behind Thomas Easterling in a Burger King drive-through in Charleston. Eastwood rear-ended Easterling twice. The court described what happened next: “Following the second impact, Easterling stepped out of his vehicle to assess the damage. While Easterling was assessing the damage, Eastwood exited his vehicle and approached Easterling in a ‘very aggressive’ fashion. Eastwood lunged at Easterling, put his shoulder in Easterling’s stomach, and grabbed Easterling around the waist. At some point during the altercation, Easterling hit the curb, tripped, and fell backward down the embankment. Easterling stated he must have bumped his head when he hit the ground because he was ‘knocked unconscious.’ When Easterling regained consciousness, Eastwood was on top of him and proceeded to violently bite his nose off.”

Easterling sued Burger King, asserting various theories why BK was liable for his injuries. Easterling lost. The opinion has as many parts to it as a Whopper. Here are a couple of the court’s conclusions: “Easterling failed to produce any evidence that Burger King did not execute economically feasible security measures to prevent a physical assault in its drive-through.” Burger King did not create an unreasonable and dangerous condition by constructing a drive-through lane adjacent to an embankment, which Easterling claims prevented him from exiting the drive-through lane to safety.

I looked at a lot of nose bite cases and the ones in the criminal context were the most interesting. I picked these as my favorites.

Morris v. State, 382 S.W.2d 259 (Tex. Ct. Crim. App. 1964): The defendant appealed his conviction for maiming. The statute provided as follows: “Whoever shall willfully and maliciously cut off or otherwise deprive a person of the … nose … shall be guilty of maiming.” The physician who examined the victim testified that “the tip of the nose including a part of the cartilage and the part that flares out had been severed.”

The defendant argued that the trial court erred, when it charged the jury that it could convict, based on a finding that the defendant deprived the victim of a “substantial portion” of his nose. Essentially, the defendant’s argument was that, to be guilty, he had to bite off the entire nose. The Texas appeals court disagreed, holding that the inclusion of “substantial portion” in the charge was not reversible error.

State v. Mairs & Mairs, 1 N.J.L. 518 (1795) (yes, nose bite cases go way back): In dicta, the New Jersey Supreme Court stated that, if a person bit off another’s nose, he would be guilty of assault and battery, even if the indictment charged him with cutting off the nose with a knife.

Mathis v. State, 17 S.E.2d 194 (Ga. Ct. App. 1941): While this was an ear biting case, the court drew upon nose biting for guidance. Defendant was convicted of mayhem for biting off someone’s right ear. He argued that, at most, he was guilty of a less serious statute prohibiting “[slitting] or biting the nose, ear or lip of another…” Looking to the more serious statute, which prohibited the cutting or biting off of the nose, the court stated that, if one third of a nose were bitten off, the person would be guilty of that crime, even though the entire nose had not been bitten off. Thus, the statute prohibiting the mere slitting or biting of the nose or ear was not in play for the defendant’s serious ear biting.

In all three cases, the defendants made fine-point distinctions between their particular nose biting and what they felt it should have taken to convict them. While the defendants all thought these deviations were nothing to sneeze at, in each case the court turned up its, well, you know.

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