Law Student Sues Head Shops For Selling Him “Whip It” Cannisters

easywhip_2236_160568In California, Jason Starn has filed a lawsuit that could be a challenge before a jury. Starn would purchase nitrous oxide canisters, or Whip its, from a local head shop in Modesto. He was regularly using the “laughing gas” when he lost feeling below his rib cage. The numbness wore off eventually but he suffered a degeneration of his spinal cord related to his abuse of nitrous oxide. He now uses a walker and has sued three stores that sold him the gas. Starn, 35, was a schoolteacher in Modesto and a student attending the Humphreys College Laurence Drivon School of Law

Starn admits that he bought dozens of canisters from stores like Smoke Island, but not insists that stores should not have sold the gas to him. However, these canisters are also used by restaurants and others to whip creams. Yet, they are sold in head shops for obviously non-culinary purposes. The Plaintiffs’ lawyers are seeking purchase records to show such a pattern.

Starn used the product for over the next two months despite that fact that nitrous oxide depletes vitamin B-12 from the blood, which can lead to spinal cord problems. However, the dangers of such use is detailed on the Internet — raising the question of his own negligence and assumption of the risk. Moreover, the product is lawful to sell and is used by cafes, restaurants, and a variety of other businesses.

The question is whether head shops should be liable for the foreseeable misuse of a product of this kind. What do you think?

Starn is asking for an unspecified amount in general and punitive damages.

Source: SacBee

55 thoughts on “Law Student Sues Head Shops For Selling Him “Whip It” Cannisters”

  1. “The main objection I have is simply the propriety of allowing a person abusing a legal product in violation of applicable criminal law to recover for injuries.”

  2. ASDOC:

    A few clarifications might be in order:

    It’s called “Whip It” because it is used in making whipped cream. We don’t know how the shop got the product whether through direct purchase or via a distributor.

    Ephedrine and pseudoephedrine are sometimes used to make methamphetimine and are controlled by federal law. Remedies with these ingredients are stocked behind the counter and you have to sign an acknowledgment that possession in sufficient quantities is a federal crime.

    Contributory negligence and assumption of the risk are distinct concepts but may have some overlap in the area of comparative negligence. Contributory negligence so as to bar recovery implies conduct below the standard of care expected of every person which is the proximate cause of the injury complained about. Assumption of risk usually involves notions of contract or acceptance of certain risks attendant to the activity or product which absolve the seller of the duty to warn or create a safe product for foreseeable users. The person assuming the risk may well be acting prudently under the circumstances as in the case of a person carefully setting explosive charges in mining but there are inherent risks in the activity itself which the person voluntarily and knowingly assumes. Otherwise there would be no mining with explosives. A boxer in the ring assumes the risk of injury in the activity lest we have no sport of boxing since every loser would sue every winner for battery.

    In our case here, assumption of risk is but one defense. Contributory negligence will not apply to totally bar recovery since California is a comparative negligence state but it could reduce any award.

    The main objection I have is simply the propriety of allowing a person abusing a legal product in violation of applicable criminal law to recover for injuries.

  3. The question of foreseeable the misuse of such a product could probably be held against the head shop, but should more likely be held against the company selling the product. This sort of case is comparable to a suit against Advil or other asprin products that are used to create methamphetamine. There are specific precautions that convenience stores take to prevent people from buying too much at once, such as showing your ID and being entered into nationwide system. However, at other convenience stores there definitely is a legal purpose for selling advil, even in massive quantities so they take the necessary steps to dissuade illegal activity. However, there is a legal reason for asprin companies to sell to CVS. I think it is fairly foreseeable for most people that a company would have no legal reason to sell these canisters to head shops. I mean the term “whip it” itself is slang for the illegal drug use, other companies name their legal products something else related to whipped cream or air duster, which they are actually legally used for. I think the company has more power to avoid such purchases and health risks from people who are buying “whip its” and suffering the consequences.
    However, this man is definitely negligent to a certain degree because the assumption of the risk is pretty obvious- maybe not his particular injury, but other immediate effects should be pretty well known simply because this act is considered illegal drug use. However, since the company pretty much condones this act I still think they should be held liable even though he shouldn’t be able to recover. Just by looking at the box alone it looks like a teenage girl, smiling with trippy colors in the background. Its pretty clear shes not about to dust her room…

  4. Waldo:

    “With respect to 1, that seems beyond reasonable argument that in some cases, that “yes” it is foreseeable that a consumer would misuse a product.”


    True enough, except that’s not what we’re talking about. We’re talking about a purchaser violating the law as the basis for the misuse. How can a seller foresee that a purchaser will commit a criminal act? Can’t he assume his purchasers will follow the law? We presume the law to be followed in most every other instance, but in this situation we say, “No, Mr. Seller, you must assume that a person with normal faculties will violate the law with your product to the tune of a felony.” That silliness, in an of itself, should bar recovery on public policy grounds since it rewards law breakers with access to the courts.

  5. After seeing the California Penal Code provision someone posted above, I would say that schmucko has just confessed to a crime by filing his lawsuit over the product being sold by the Headshop. He regret going to lawschool and learning his trade so well from that headshop lawschool. What was that name again? Humphrey’s School of Lame Brains?

  6. “. . . watching a lawyer use a shovel as a suppository would make for good theatre.”

    They do it all the time, only with someone else’s arse,

  7. “How can anyone –except maybe the appellate courts of Michigan* — conclude misuse of a product to get high is a foreseeable consequence of the product?”

    You’re talking about two different things. 1. Is it in fact foreseeable that a consumer would misuse a particular product and 2. should the product manufacturer have legal liability for the foreseeable misuse of a product.

    With respect to 1, that seems beyond reasonable argument that in some cases, that “yes” it is foreseeable that a consumer would misuse a product. For example, with this whip it product, do you really believe that the manufacturer and the head shops that sold it could not have reasonably foreseen that some people would misuse the product? Heck, as you point out, California even has a law against it. So, the legislature in fact foresaw this misuse. There’s no way, as a factual question, that the manufacturer and retailers did not in fact foresee or should have foreseen that some people would misuse this product.

    I suspect your beef is really with 2. I can see reasonable people disagreeing on whether a manufacturer or seller *should* be liable to someone who foreseeably misuses a product. the Restatement does impose some liability in certain cases and I agree with that rule.

  8. On a related topic, how can anyone justify this notion of “foreseeable product misuse” by an adult in this case. I certainly can understand the concept in a situation involving a child or other person with less than developed mental faculties, but I see no reason for its existence in the case of a fully developed adult. How can anyone –except maybe the appellate courts of Michigan* — conclude misuse of a product to get high is a foreseeable consequence of the product? It’s madness masquerading as good public policy.

    *Crowther v. Ross Chemical & Manufacturing Co., 42 Mich. App. 426 (1972).

  9. If I owned a “Head Shop” I would put a DumbSchmuck Disclaimer poster on the front door and at the cash register. Something like the Peter Tosh lyrics. ” Cigarette smoking is dangerous, .. hazad to ya health.. so legalize marijuana, oh uu uu uuoo. ” Have the music blaring. Then I would hire a zombie to do the sweeping and mopping around the store and tell the customers that this is what happens if you use the products for their intended purpose. I would make em sign a waiver on the bottom of the receipt at the cash register. I would include language that said that I was in law school and fully cognizant of my failings in matters of mind over matters.

    What is the name of that law school again? Maybe they need to start with lower case letter and then have upper case letter to make the name current and jive. Like; hUmphrey’s College DriveOn! School of Law. Maybe it was named after Hubert Humphrey. Or Humphry Bogart. California. Pirate Territory. One never knows.

  10. Some guy drove his car off the fiscal cliff here at the beach. He is suing Honda. Or so he said when I questioned him at the bottom of the cliff on the beach. He had a can of that WhipIt in the back seat. Funny how all of these topics come together on New Years Day. I told him to blame the RepubliCons for the fiscal cliff even being there. He hid the WhipIt before the cops arrived. I did not know why at the time. That cliff is gonna costs the taxpayers some money if they dont put a warning sign up there on that road that leads to the edge. He said that he had a sore arm too. I guess he will blame that on the WhipIt. I’d blame it on the county for not having a warning sign about the fiscal cliff. The county commissioner who frequents the gas station was buying condoms for the wife and said that everyone had fair warning on Fox News of the fiscal cliff. I said that each driver had to be aware of road conditions whether they were fiscal or not. I looked up the word “fiscal” in the DogsRus dictionary and on the Dogalgue Machine dictionary and that cliff does not have anything to do with accounting. The times they are a-changing.

  11. Paul:

    Those are just silly cases. The point of product liability law is to protect the public from unscrupulous sellers who knowingly sell defective products. They don’t get to hide behind the “we didn’t know” defense if they should have known or the “its a free country” platitude defense. The public is entitled to protection from things they could not possibly know about or reasonably understand. The seller is the expert in his product and he/she/it gets paid handsomely for it. That position of power comes with some accountability — or is that only for the consumer in your view?

  12. California penal code 381b

    381b. Any person who possesses nitrous oxide or any substance

    containing nitrous oxide, with the intent to breathe, inhale, or

    ingest for the purpose of causing a condition of intoxication,

    elation, euphoria, dizziness, stupefaction, or dulling of the senses

    or for the purpose of, in any manner, changing, distorting, or

    disturbing the audio, visual, or mental processes, or who knowingly

    and with the intent to do so is under the influence of nitrous oxide

    or any material containing nitrous oxide is guilty of a misdemeanor.

    This section shall not apply to any person who is under the

    influence of nitrous oxide or any material containing nitrous oxide

    pursuant to an administration for the purpose of medical, surgical,

    or dental care by a person duly licensed to administer such an agent.

  13. We live in a “free” society. A free society comes with risks. If we want people to innovate and create new products, ideas, opportunities then (IMHO) we must require personal responsibility and not burden our society with compensating every dumb mistake.

    Should we require car companies to be responsible when a driver drives a car off the road? Certainly this is a predicable outcome of someone yanking the wheel of the car hard in one direction.

    We loose a bit of freedom and we loose a lot of potential future gain when we deny the personal responsibility aspect of this sort of thing.

    He choose to use the product in a manner not for which it was designed. Will we hold the grocery store responsible for the drowning of a person when they pour milk up their nose?

  14. David Greewald:

    “He’ll have to make the case that the headshop was winking and nodding at the use of the product, just as they do when they sell bongs under the guise of being waterpipes for tobacco.”


    The Restatement of Torts (Third) states in §2 that a seller will be liable only if a plaintiff is harmed while using the product in a reasonably foreseeable manner and if the risk of harm was reasonably foreseeable. Is the plaintiff’s possible criminal use of the product foreseeable? Must the owner of a lawful business foresee possible criminal uses to his product? How does that work with knife sellers like Cutco Cutlery? (Gun manufactures are statutorily protected, of course, from this type of suit by our government: the NRA … er … the Congress of the United States).

  15. If there’s no caution notice, they’re in for a bad time. Take it from one who has seen hundreds of them, sat through countless meetings about them, and has had to proofread and publish them. I’ve had to recycled tons of packaging and printed material when new notices have made the old inventory obsolete. This is no joke. It’s more than printing “No Cholesterol” on an apple bag!

  16. Idiots sue the makers of music players because they suffered hearing loss instead of turning their music down. Idiots sue fast food companies instead of eating unprocessed foods. Idiots become diabetic and sue soda makers instead of not drinking five sodas a day.

    This “lawsuit” belongs in the same garbage can as those against other companies. “Everybody’s a victim, and nobody is responsible” is not a way to run a society except to run it into the ground.

  17. This guy sets a new standard for “AirHead”.

    Went in dumb, come out dumb too, hustlin round Atlanta in his alligator shoes, ….. Califoooornia, Califooornia, they dont know their arse from a hole in the ground, … etc

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