Loose shit, Ace.
Read the article. It isn't his finger. But he is still a fucking jackass.

But is it his pinky or his thumb. What a jackass

It's worse than that. It is someone else's finger. The finger is from the guy working the custard machine, and it is being held by the guy who found it in his custard.

I say give him lots of money cause he is going to need it when the guy who actually lost his finger sues his a** off.

It's not his finger. It's the severed finger of the employee. So he's not really a moron, so much as a jackass.

I'm not a lawyer, but can Ace's lawyer readers tell us whether criminal charges can be brought against this guy? I mean, he stole another person's finger, for heaven's sake.

I guess the guy is giving the employee the finger. Oh, wait, he isn't giving him the finger. Now, I'm confused.

I am a lawyer. We're debating it around the office. No one has ever had a case of someone refusing to return someone else's severed body parts, but I am sure we could find somethng to pin on him.

Conversion. Civil theft. Intentional infliction of emotional distress, if nothing else.

Finn...it's good to know that criminal charges are possible. I hope the D.A.'s office in Raleigh seriously considers charging this guy with something. What a bastard.

I hate to be gross, and I know it's odd to think of it as property, but that severed finger has real value. At least it has value during the window of time when it's possible to surgically reattach it.

But this goes beyond the "property" concept. The finger thief is effectively increasing the other guy's personal injury. Maybe there's some sort of crime against the person here, like a kind of battery.

I don't know... this may be one of those cases where there's just no applicable criminal law on the books because no one in the 5000+ years of written law ever contemplated someone being such a vicious asshole in quite this way.

Well, the battery theory is a stretch, but the property theory is solid. That finger was someone else's property and he knew it.

Wild-ass guessing: While there's not a common law duty to render aid to someone with whom you do not have a legal relationship, I think there's a common law duty not to take affirmative acts (e.g. withholding a severed limb) that increase someone's distress when they require aid.

Ace: you're almost certainly right that there's no specific statute on the books barring you from withholding a person's severed body part. I doubt that matters too much, though. The criminal law is generally pretty good about stretching to cover profoundly evil acts, even if those acts are hard to fit into existing categories. First case in my CrimLaw class was a woman who made a false police report in the 1920s. The judge basically said that, although there's no specific prohibition on that, it's obviously wrong, and it would be just stupid to let this person slide on the technicality that we never specified that it's a bad thing to do. If that logic can hold on a false reports case (which, although bad, only deals attenuated injury to society), than it can certainly apply to this gob-smackingly vile man.

Actually, thought, I think Finn is right about the battery. By withholding the finger until it could not be reattached, this guy constructively inflicted injury... i.e., a battery. Alternatively, by containing the finger without the consent of its "owner," he's committed false imprisonment.

Basically, there are three ways to look at this act:

1. The finger belongs to the victim, like a VCR. In which case, the defendant is guilty of something like receiving stolen property ("receives [or] retains... moveable property of another... believing that it has probably been stolen")

2. The finger, although no longer attached, is just as much part of the victim as his other nine fingers. In which case, there's no legal difference between restraining the severed finger and, say, a limb (false imprisonment or kidnapping)

3. Causing this delay in reattachment has prevented adequate medical care from reaching the victim and he's permanently worse off as a result. Many jurisdictions make it a crime to interfere with a person's attempt to receive medical services, and you might be able to say that a constructive injury has been inflicted.

If I was prosecuting this case, I'd throw all of these theories against the wall to see which would stick. Judges, no less than jurors, generally want to nail scumbags. Give them a decent excuse, and they'll often do the right thing.

One objection to Finn's office debate, though:

It sounds like you guys are trying to find civil actions to take against the defendant. No doubt, his greed should result in his utter destitution. Also, this is one of those cases that make me say, "Well, there is a place in the world for plaintiffs' attorneys." The victim absolutely deserves a great thwocking wad of cash.

But wouldn't it also be nice to see this guy wearing an orange jumpsuit for a few years? Heck, if we could figure out how to hear the lamentations of his women, that would be ideal. I suspect that's a null set, though.

Finn:

I think Conversion too.

Also, there may be a dead body/part criminal statute in the jurisdiction (i.e. can't keep dearly departed mom in the deep freeze), and this finger is now VERY dead.

There's no general common law duty to render aid, unless you have voluntarily assumed that duty, such as by taking it upon yourself to do so, or holding yourself out as such, like a lifeguard. I don't think the finger-thief ever acted in a way that could make him a voluntary aid-renderer.

But, there may be a case for saying that he actively interfered in the attempt to render aid by refusing to surrender possession of the severed digit. He may have had possession of it, but he certainly didn't own it. No one intended to pass title to the finger to him, even though it was in the custard that he bought.

Imagine that someone comes on the scene of an accident, and decides to steal the Jaws of Life while the EMS guys' backs are turned. That's more than just the theft of the device -- it's interfering in the aid effort.

It sounds like you guys are trying to find civil actions to take against the defendant.

That's our stock-in-trade.

Nice debate. It sounds to me like the kid who lost a finger might have one heck of a case against the finger thief.

I'm enjoying the legal thought processes here, and I'm with everyone else on get this dirtball.

But part of me is stuck on the logistics of a guy losing a finger in an accident and it finding itself in a bowl of frozen custard. I mean, the poor kid certainly knew he was hurt... had to have bled all over the place... how do you manage to serve that mess to somebody?

I'm reasonably certain the kid was in a lot of pain, and probably incapacitated. Maybe clear heads were hard to find under that kind of duress.

Don't get me wrong, I'm not going after the manager or the kid.. I feel badly for them. I'm just scratchin my head trying to figure this.

Dave...I've been in a similar situation when I worked at a very, very large fast food restaurant chain that will go unnamed.

One of our managers cut her finger off in the safe door and we had to retrieve it and put it in a cup with some ice.. There was blood everywhere and we had to stop the bleeding, calm her down, call the hospital and keep the restaurant going. In a situation like that, it's pretty easy to lose track of stuff.

Amputated fingers don't bleed much, so it's pretty easy to see how this one could have fallen into a vat of something and gotten served if things were moving fast.

We managed to keep track of the manager's thumb, but they weren't able to reattach it.

Dave:

I suspect that it was part of a finger (and likely a small part). They may not have realized the finger ended up in the machine.

I can't explain how the finger got served though. It may be a temporal difference between the injury and later use of the machine by someone else?

But in a way didn't he actually buy the finger when he bought the custard? If I buy an old trunk at an estate sale, and later find a valuable piece of jewelry inside, even though I didn't mean to buy it it's still mine, IIRC. I think conversion is the best civil action against the guy -- anything else would be a stretch. Not giving the finger back was clearly a crappy thing to do, but I don't see how you can establish battery without unauthorized touching. The custard eater never touched the guy. The true harm is getting his finger chopped off, not being unable to reattach it.

Sarah,

Wouldn't that imply that the store somehow became the legal owner of the finger after it got chopped off? If not, they can't give the finger away.

Sarah, the waiver issue is an interesting one: i.e. didn't he give up "ownership" of teh finger by not stopping the machine. But with battery, remember that a battery extends to any part of a person's body, OR anthing touching the body directly (e.g. a coat or hat).

If the guy touched the fingertip, it's a stretch, but the tortfeasor touched the "body" of the victim, even though the part wasn't attached.

The inability to reattach the finger are causally related damages. (like eggshell plaintiff damages)

But your underlying point, damnum absque injuria, is a good one. This just might be something the law doesn't reach

One possibility is that the freezing temperatures of the custard machine (and the employee's hands) may have staunched the bleeding.

But in a way didn't he actually buy the finger when he bought the custard?

No! It's a question of intent. The law on "finders keepers" is a little inconsistent, but if you intentionally put something in a container and sell the container, you are presumed to have intended to sell the contents.

If you neglect to retrieve it, and didn't affirmatively intend to leave it in there, you are presumed to have abandoned the object, and thus the "finders keepers" rule applies.

There is no way under these circumstances that the finger-loser could have intended to pass title to his finger, and there is no way for the finger-finder to have reasonably believed anything different.

I don't see how you can establish battery without unauthorized touching. The custard eater never touched the guy.

That depends on what you consider to be "the guy." Is "the guy" the part that's jumping around screaming "my finger, my finger," or does it also include the actual finger, even though it was, shall we say, no longer contiguous?

Kidnapping?

Can we stretch the law to include part of a person?

Or rather false imprisonment, I guess.

oh, the finders keepers aspect was by far the weakest argument I thought of. . . also the first one which may be why I'm not practicing law any more! But going back to intent -- surely no one is arguing that the customer's touching of the finger (part) was intentional.

The finger is not contiguous! But the parties are litigious!

I should have said, the original touching was not intentional. The retaining of the finger was clearly intentional. I still think conversion is the best case against him. False imprisonment is intriguing but I don't think a body part can be falsely imprisoned. . . technically. Anyway, Pompous is right -- the law is bendable enough that surely the customer will be punished somehow for keeping the finger. He can pay the damages out of the money he gets from Kohr's (where I am NEVER going again).

I think the finder's actions of withholding the finger created an involuntary bailment.

There is an interesting case in California were an airplane crashed landed on a guy’s land. The owners of the airplane want to haul the airplane off, but the landowner refuses them access, and demands payment for property damages prior to recovery of the plane. While this went on, the airplane was stripped down by thieves. The court imposed liability on the landowner. Ball, Inc. v. Parreira, 214 Cal.App.2d 697(1963).

I like the conversion theory as well, but I’d plead bailment as well

John

Slublog, I'm with ya on the chaos. Wierdly enough, when I was working in a Tex Mex restaurant back in high school, a dude cut his forefinger off (almost the same thing, just enough to take off the whole nail). Sharp knife, cutting tortillas to make chips.

Everybody went nuts except a couple of us - one guy helped the boy, and I found the finger.

I can see losing track of the fingertip, but fingers bleed a lot. I suppose a towel clasped quickly over the hand would make it less messy.

anyway, the guy who kept it is still a shitheel, so you guys keep figuring out ways to mess him up.

oh, and they were able to successfully reattach the fingertip... it was such a clean cut

Most states have a variation of the following criminal statute:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

They way I would deal with it -- if the guy won't give me back my finger, I'll just go ahead and take his and call it even.

sarah

"surely no one is arguing that the customer's touching of the finger (part) was intentional."

In a battery, the intent to touch the finger is irrelevant to the intent of the act that resulted in the harmful or offensive touching.

It's not necessary to intent to commit battery to commit that intentional tort. you merely must intent the physical act that results in the battery.

For instance, I intend to throw my fist in a punching motion (i.e. I'm not just being jostled by someone)

You trip and walk into the punch. I've committed a battery (setting aside proximate casue questions), b/c I intended the act that resulted in the tort.

Dave - yikes. I wonder how many times this stuff happens in restaurants.

In my situation, we had an old WWII vet working there, so he took control immediately. He had me use my belt as a tourniquet and help hold a towel on the severed thumb. The severed thumb didn't bleed much, but my hands were pretty well covered with blood by the time the ambulance came.

One of my least-favorite work memories.

For purposes of a lawsuit, he is hiding someone else's severed finger.

So, when and if it goes to civil trial, can the other side argue the doctrine of unclean hands? I wouldn't award the a-hole a dime.

If the religion of the person who lost the finger requires they be buried intact, I would advise him to use that as a basis for a cause of action, too.

There is no legitimate issue as to ownership of the finger. Just get a judge to order him to return the finger otherwise be held in contempt.

Ahh, 3 colon comments.

On the first, colon, "unclean hands" only applies in suits at equity. A tort claim is a claim at law.

second colon, an IIED claim is pretty good idea, depending on the law of the jurisdiction. Surprised I didn't think of that. The asscrack knew---KNEW---that failing to giive the finger back would traumatize a reasonable person, but he did it anyway. IIED is the frontrunner for serious bank against the fingernapper.

Colon # 3, a quiet title action for the finger is a bit of a stretch, and you don't just get to walk into court and say "yur hona, I'se be missing mah finga dat dat moron's got. Make him give it back!"

There's such a thing as a "legal basis" for a court to consider.

Then have the DA file a complaint. He can turn over the finger in lieu of them proceeding on the criminal charges. If not, it's an easy conviction. He can be ordered to return the finger as part of probation or sit in jail for the entire sentence. If he still doesn't turn it over before he maxs out, he can be charged with contempt of court and remain in custody until he does.

Hobgoblin, I agree with all your points -- but I don't think you CAN set aside the proximate cause issue.

I think some of the comments missed a vital point: the article said that the finger is now completely dead and cannot be reattached.

This has two implications:

1. Returning the finger will no longer make the victim whole.

2. The victim has suffered permanent injury, including significant impairment of his future life activities.

So, all the discussion about contempt proceedings, for example, is moot. The victim doesn't want the finger, because now it's a small piece of meat. What the victim wants is probably a mixture of two things: (A) money; and (B) to see the bastard pay.

In any event, if I were the DA, I would be very reluctant to cut* a deal for the return of the finger (even if the finger could still be reattached). This guy appears to care about his well-being to the detriment of anyone else. Those are the EXACT kinds of guys that prosecutors enjoy screwing with.

Think about it: day after day of people who steal radios to feed their crack habits, you get a little sympathetic to them. Not very sympathetic, mind you, but it's hard to take any great pleasure in imprisoning such people. And along comes a guy who's pretty well off but isn't satisfied, a guy who hurts others out of greed and malice. There's nothing like giving him a little of his own back.

*No pun intended.

As a prosecutor my goal would be to get the finger back to the rightful owner as quickly as possible. Though it can no longer be re-attached, if it were *my* finger, I would want it back asap, or at least not in the possession of some nutjob holding it hostage and doing God knows what with it.

Most people do not go directly to prison or even jail for most first time offense. So, depending on his prior record, offering him some sort of diversion, like many other offenders are offered, is not special treatment. He will still have to deal with the civil suit filed by the victim.

He's not going to be convicted of any crime. Enshrined in our criminal law is this dictum:

"If the glove doesn't fit, you can't convict!"

Sorry for the last one.

IIED doesn't work. The elements are (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

The problem is with the first element -- I would argue that the defendant didn't act, and we're coming up dry trying to find a theory imposing a duty to act.

Of course, what do I know. I'll defer to you lawyers. I'm just an informed citizen and a subscriber to Consumer Reports.

You don't consider hiding the finger, pulling it out for the cameras, then secreting it again in an unknown location, an intentional act?

Everytime the victim sees his finger being waived around in front of the cameras, he relives the pain and horror of having it sliced off into the slurpy, or whatever it was, machine. Simply awful!

In general, he is entitled to hide the finger, pull it out for the camera, and hide it again if he is in lawful possession. That's mildly gross, but not "extreme or outrageous" conduct with respect to a human body part that he lawfully possesses and can do with as he pleases. And there is no reason to believe that he has displayed the finger with the intent to inflict emotional distress. My assumption would be that this is the rational behavior of a person who intends to sell his story to the National Enquirer.

The problem with respect to IIED is that we have no act (or failure to act in violation of an established duty) by which he unlawfully came into possession of the finger, knowing that this would cause emotional distress. If he had actually swiped the finger, the situation would be entirely different.

We're also just assuming that the victim experiences "pain and horror" from all of this. For all we know, he thinks it's hilarious and his new-found celebrity has been a boon for his love life.

IIED is a tough case to prove. Cederford causes emotional distress almost every night on this blog, but so far he has stayed well outside the scope of this tort.

As previously posted, there is a legal duty to return lost property.

Does anyine know what type of custard machine caused this injury? I am looking to purchase custard equipment, and certainly would not want to purchase any that could easily sever a finger....Thanks