Why Strict Liability? (Was: Litigation Explosion)
Gerry Gryschuk
References: <1992Jan4.2...@midway.uchicago.edu> <30...@mentor.cc.purdue.edu> <BZS.92Ja...@world.std.com> <1992Jan9.1...@magnus.acs.ohio-state.edu> <BZS.92Ja...@world.std.com>
In article <BZS.92Ja...@world.std.com> b...@world.std.com (Barry Shein) writes:
>Agreed, but you're reaching for exactly what I am arguing against.
>That is, some sort of guilt or complicity in the harm.
>The point I am trying to make is, if you pardon the expression, shit
>happens.
>The question is, who should bear the burden when just plain bad luck
>occurs?
>Should the injured party be 100% responsible? Or might the
>manufacturer (in the cases used as examples) be asked to share in the
>pure bad luck?
>The problem is that there's too much of a vein here of finding the
>"guilty" party. Maybe NO ONE is guilty. Coke tried reasonably to not
>have its bottles explode. The person who was injured did nothing
>unusual, just opened a bottle of coke. So who should bear the cost of
>the bad luck? Coke? The person injured (well, that can't avoided
>somewhat since clearly they're injured)? Both?
But why shouldn't the store that sold the coke also share responsibility?
Or even perhaps others who bought a coke, since we don't know that
another person might have deliberately shaken a bottle thus making it
more probable that it might explode. Why not the trucking company that
brought the coke to the store?
The point being, at least as I see it, that too many people want to shift
responsibility for bad days to anyone but themselves. People can't/won't
accept the fact that as you put it "shit happens". Well it happens to
everyone sooner or later and we can't expect someone else to pay for our
misfortune.
For instance about three months ago I was playing ice hockey and got hit
in the teeth with a puck. My front two teeth were knocked out and it cost
me $660(Can.) to get them fixed. Luckily I was insured, but even if I wasn't
I would have payed the cost, fully realizing I was mostly at fault for what
happened but that in essence it was simply an accident. Anyway, do you think
I should have gone to the puck manufacturer to get part of my billed paid?
Maybe the other guy who shot the puck? The owner of the rink where I was
playing? After all I simply had a bad day, its not like this has happened
before, I've played hockey for ~25 yrs. with no major problems, luck(bad)
simply caught up with me.
So to put it bluntly nobody but ourselves bears responsibility for our
obvious bad luck.
---------------------------------------------------------------
Gerry Gryschuk(ge...@sask.usask.ca)
"The truth of a proposition has nothing to do with its
credibility. And vice versa."
-Lazarus Long(R.A.Heinlein)
---------------------------------------------------------------
Ted Frank
>
>For instance about three months ago I was playing ice hockey and got hit
>in the teeth with a puck. My front two teeth were knocked out and it cost
>me $660(Can.) to get them fixed. Luckily I was insured, but even if I wasn't
>I would have payed the cost, fully realizing I was mostly at fault for what
>happened but that in essence it was simply an accident. Anyway, do you think
>I should have gone to the puck manufacturer to get part of my billed paid?
>Maybe the other guy who shot the puck? The owner of the rink where I was
>playing? After all I simply had a bad day, its not like this has happened
>before, I've played hockey for ~25 yrs. with no major problems, luck(bad)
>simply caught up with me.
>
wouldn't throw out your claim. A hockey player with 25 years
experience has an expectation to lose his teeth. A waitress
removing a Coke bottle from a refrigerator shouldn't expect the
glass to shatter in her face.
--
Ted Frank + "...if [human] toes are found in chewing tobacco, it
1307 E 60 St, #109 + seems to us that somebody has been very careless."
U o' C Law Skool + -- Presiding Judge Cook ruling against defendant in
Chi, IL 60637 + Pillars v. RJ Reynolds Tobacco, 78 So. 366 (Miss. 1918)
Bernie Cosell
}ge...@SKATTER.USASK.CA (Gerry Gryschuk) writes:
}>
}>For instance about three months ago I was playing ice hockey and got hit
}>in the teeth with a puck. My front two teeth were knocked out and it cost
}>me $660(Can.) to get them fixed. Luckily I was insured, but even if I wasn't
}>I would have payed the cost, fully realizing I was mostly at fault for what
}>happened but that in essence it was simply an accident. Anyway, do you think
}>I should have gone to the puck manufacturer to get part of my billed paid?
}>Maybe the other guy who shot the puck? The owner of the rink where I was
}>playing? After all I simply had a bad day, its not like this has happened
}>before, I've played hockey for ~25 yrs. with no major problems, luck(bad)
}>simply caught up with me.
}>
}And if you were to sue, there wouldn't be a single court that
}wouldn't throw out your claim. A hockey player with 25 years
}experience has an expectation to lose his teeth. A waitress
}removing a Coke bottle from a refrigerator shouldn't expect the
}glass to shatter in her face.
Why not? Anyone who deals with glassware with any frequency [e.g., an
experienced waitress, or even an ordinary civilian over the age of ten]
knows that glassware occasionally breaks [*especially* glassware under
pressure]. Why not argue that *careful* people wouldn't be so foolish
as to put a pressurized glass vessel near their face in the first
place? What if the waitress was using the bottle to tap in a nail, and
testified that she has ALWAYS used a coke bottle as an emergency
tack-hammer and it seemed and OK expedient to her?
How do we determine what 'expectation of safety' is appropriate? What
if Gerry was wearing a face guard, but it didn't help --- is that still
an occupational risk of hockey players, or might he sue the faceguard
manufacturer because it [obviously] didn't work... on the other hand,
we look at EVERYTHING the manufacturer has ever said about the face
guard and it never once even implied that it would protect you against
any injury to your face, only that it would help. NOW how do we decide
who should pay to get Gerry's teeth fixed [assuming he was looking for
someone to sue]?
/Bernie\
Jeff C. Nichols
>ge...@SKATTER.USASK.CA (Gerry Gryschuk) writes:
>>
>>(stuff about losing teeth playing hockey)
>>
>And if you were to sue, there wouldn't be a single court that
>wouldn't throw out your claim. A hockey player with 25 years
>experience has an expectation to lose his teeth. A waitress
>removing a Coke bottle from a refrigerator shouldn't expect the
>glass to shatter in her face.
You may be right, but even if the case was eventually thrown out (since
it has to go to court to even _be_ thrown out) the hockey puck
company has to spend money to defend themselves.
Instead of using this mythical exploding coke bottle, why dont we use
a true example, like the guy who purchased a lawn mower and used it to
trim the top of his hedges that were several feet above the ground (I
am not sure of the exact case law, but I can find out from my wife).
When he went to set the mower down on the ground, he set it on his
foot and it cut off part of it. He sues. He wins. If he had been
mowing for 25 years, would that be grounds for an expectation to
lose his foot?
Or how about the example where a motorcyclist crashes and sustains head
injuries. He sues the maker of a particular brand of helmet--but he was
not wearing the helmet at the time of the crash, nor was he wearing a
helmet made by any of the other companies. He sued claiming that the
helmet company did not do enough to encourage him to use the helmet
while riding a motorcycle. He lost, but the helmet company had to spend
thousands of dollars in legal fees to fight this.
One of the problems, IMHO, is that even if the case gets thrown out,
the defendant still has had to spend money to fight it in court since
there is no way to throw a case out before it ever gets to court where
it is first heard. This leads more and more companies to settle, which
further encourages more lawsuits because people (or lawyers) see that
a particular company is more likely to settle than to fight it. Want
an example? My dads company, an engineering firm, was sued recently by
the family of a man who was killed on a road that the company had helped
design. Well, what is wrong with that, you ask? Well, the guy was drunk,
driving on the wrong side of the feeder road, and he entered the freeway
up an exit ramp. A mistake anyone could make Im sure--NOT! Well, the
company settled because it was cheaper than fighting it in court.
This, again IMHO, is a major problem and a reason to switch to a system
where the losing party pays the other partys fees. (Of course now I will
be attacked because if we did that, then poor Joe Stupid would not be
able to fight Big Old Mean Business Monopoly.)
--
* Jeff Nichols | I'm a lumberjack and I'm okay. *
* DoD#0402 AMA#568571 | Ride: GS500E *
* It's a dog-eat-dog world out there, and I'm wearing milkbone *
* underwear-- Norm Peterson *
Ted Frank
>Why not? Anyone who deals with glassware with any frequency [e.g., an
>experienced waitress, or even an ordinary civilian over the age of ten]
>knows that glassware occasionally breaks [*especially* glassware under
>pressure]. Why not argue that *careful* people wouldn't be so foolish
>as to put a pressurized glass vessel near their face in the first
>place? What if the waitress was using the bottle to tap in a nail, and
>testified that she has ALWAYS used a coke bottle as an emergency
>tack-hammer and it seemed and OK expedient to her?
The court that ruled on this case specifically said that the
plaintiff's recovery was because of "normal and proper use."
Your hypothetical is a strawman because courts haven't ruled
for adults clearly misusing a bottle like that.
[hockey mask again]
You're presenting another strawman. The courts haven't ruled
that way, and products liability doesn't work that way. If
it did, we wouldn't see tobacco on the market.
Ted Frank
>You may be right, but even if the case was eventually thrown out (since
>it has to go to court to even _be_ thrown out) the hockey puck
>company has to spend money to defend themselves.
Such a suit is *so* frivolous that I cannot imagine a court
refusing to award costs to the defendant. And, if it's Federal,
the judge should impose Rule 11 sanctions on the plaintiff's lawyer.
>a true example, like the guy who purchased a lawn mower and used it to
>trim the top of his hedges that were several feet above the ground (I
>am not sure of the exact case law, but I can find out from my wife).
>When he went to set the mower down on the ground, he set it on his
>foot and it cut off part of it. He sues. He wins. If he had been
>mowing for 25 years, would that be grounds for an expectation to
>lose his foot?
Maybe. Maybe not. Lemme see the case cite, and if I have time
I'll see what other facts of the case were relevant.
[cyclist sues helmet company b/c he didn't wear helmet]
Cite? Were costs awarded?
>One of the problems, IMHO, is that even if the case gets thrown out,
>the defendant still has had to spend money to fight it in court since
>there is no way to throw a case out before it ever gets to court where
>it is first heard.
Not true. In Federal Court alone, there's a 12(b)(6) motion to
dismiss for failure to state a claim, a motion for judgement on the
pleadings, and a motion for summary judgment before the jury is ever
selected. And if the case is frivolous enough, the Judge, upon motion,
is required to impose sanctions, and can require costs.
>My dads company, an engineering firm, was sued recently by
>the family of a man who was killed on a road that the company had helped
>design. Well, what is wrong with that, you ask? Well, the guy was drunk,
>driving on the wrong side of the feeder road, and he entered the freeway
>up an exit ramp. A mistake anyone could make Im sure--NOT! Well, the
>company settled because it was cheaper than fighting it in court.
>
If the case is how you describe it, and it didn't happen in California,
and the settlement was for a sum greater than $5,000, this was a
strategic mistake as best I can tell.
Barry Shein
From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>But why shouldn't the store that sold the coke also share responsibility?
I think that can be effectively argued against (they didn't make it,
assuming it was a failure of manufacture.)
>Or even perhaps others who bought a coke, since we don't know that
>another person might have deliberately shaken a bottle thus making it
>more probable that it might explode.
Ulp, back to trying to fabricate a guilty party...begs the question.
>Why not the trucking company that
>brought the coke to the store?
Same answer as with store (I'm not saying it's impossible, just
doesn't seem likely.)
>The point being, at least as I see it, that too many people want to shift
>responsibility for bad days to anyone but themselves. People can't/won't
>accept the fact that as you put it "shit happens". Well it happens to
>everyone sooner or later and we can't expect someone else to pay for our
>misfortune.
Why doesn't that comment apply to manufacturers? Why only to
(obviously) injured parties?
>For instance about three months ago I was playing ice hockey and got hit
>in the teeth with a puck. My front two teeth were knocked out and it cost
>me $660(Can.) to get them fixed. Luckily I was insured, but even if I wasn't
>I would have payed the cost, fully realizing I was mostly at fault for what
>happened but that in essence it was simply an accident. Anyway, do you think
>I should have gone to the puck manufacturer to get part of my billed paid?
>Maybe the other guy who shot the puck? The owner of the rink where I was
>playing? After all I simply had a bad day, its not like this has happened
>before, I've played hockey for ~25 yrs. with no major problems, luck(bad)
>simply caught up with me.
Would require more details. You're probably feeling more generous
because the injury was not that expensive and insurance covered it
(tho getting teeth knocked out is a permanent, serious thing, don't
get me wrong, but much worse things do happen, sometimes we don't even
have the freedom to be "generous".)
>So to put it bluntly nobody but ourselves bears responsibility for our
>obvious bad luck.
But again, manufacturers etc should be immune to bad luck?
--
-Barry Shein
Software Tool & Die | b...@world.std.com | uunet!world!bzs
Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD
Barry Shein
From: cos...@cosell.bbn.com (Bernie Cosell)
>What if the waitress was using the bottle to tap in a nail, and
>testified that she has ALWAYS used a coke bottle as an emergency
>tack-hammer and it seemed and OK expedient to her?
Bernie, you keep begging the question by posing malice, negligence or
stupidity. That's not the topic, that begs the question.
If they did something insufferably dumb then perhaps we have an
argument. But if they're just walking down the street and are attacked
and mauled by a wild coke bottle...
>How do we determine what 'expectation of safety' is appropriate? What
>if Gerry was wearing a face guard, but it didn't help --- is that still
>an occupational risk of hockey players, or might he sue the faceguard
>manufacturer because it [obviously] didn't work...
Well, that would be a big if, and if it were so he might well have a
case against the face guard manufacterer depending on details.
>on the other hand,
>we look at EVERYTHING the manufacturer has ever said about the face
>guard and it never once even implied that it would protect you against
>any injury to your face, only that it would help.
Then why is he selling it as a face guard?
This is going off the deep end.
Then again, it is the current milieu in software...
>NOW how do we decide
>who should pay to get Gerry's teeth fixed [assuming he was looking for
>someone to sue]?
Well, what if he didn't have any teeth to begin with...?
Barry Shein
Actually, newspapers love to pump up these "dumb case" stories, sells
papers. I've seen it first hand.
Here's a case that was pointed out to me by my venerable uncle lawyer.
The (NY) newspaper had the headline "4 Million Dollars Awarded for
Broken Leg". Went on to explain briefly that this four year old kid
was brought to an emergency room, the leg was set improperly and had
to be re-broken and re-set, and the court awarded $4M dollars!
Well, my uncle was the attorney in the case (for the four year old.)
What the paper failed to mention was:
1. The doctor in residence was drunk.
2. Two nurses had earlier called the administration
asking that this doctor be removed from his shift.
A hospital adminstrator refused, citing loss of
potential revenue as a concern.
3. The same doctor had been reported drunk on the job several
times before, and each time the adminstration ignored it.
4. This was documented. The two nurses testified.
5. The kid will never walk quite right again, had spent
almost two years in and out of surgery (four years old),
etc. Still wore a leg brace two years later.
But, hey, who wants to spend a quarter to read how rational the world
is?
"Wife Kills Hubby -- Makes Sandwiches!"
Actually, his theory was that the paper was so afraid that if they got
one iota of the story wrong they'd be sued for libel so chopped it to
pieces. So maybe I'm too cynical, but same result.
Barry Shein
That there are dumb cases doesn't argue against the concept, put
simply. How many reasonable cases are there?
Jonathan A Woodman
>That there are dumb cases doesn't argue against the concept, put
>simply. How many reasonable cases are there?
It *does* argue against the concept. The concept leads to dumb cases, so
maybe there is something wrong with it.
What I'm waiting to see is a "reasonable" case that couldn't be proven
using some other legal theory. I don't think your Volvo-on-ice example cuts
it since you seem to be equating moral fault (i.e. malice or intent) with
legal fault. I mean, you did hit the other car, so the damage done was done
by you and your car, so it is your fault, even though it was a non-negligent
accident.
How about a case that really needs strict liability or an innocent party
will be unjustly injured?
Jonathan
--
Jonathan Woodman \ "But we must live in the world, and the
jwoo...@magnus.acs.ohio-state.edu / world is thus."
The Ohio State University \ "No...No, thus have we made it.
College of Law / Thus have _I_ made it." -The Mission
Ted Frank
>In article b...@world.std.com (Barry Shein) writes:
>
>>That there are dumb cases doesn't argue against the concept, put
>>simply. How many reasonable cases are there?
>
>It *does* argue against the concept. The concept leads to dumb cases, so
>maybe there is something wrong with it.
>
of law. Should we suspend battery actions because Mike Tyson was
hit with a $100 million suit? Trespass because of the Garagosian case?
Expectation damages because of Groves v. John Wunder Co.?
--
Ted Frank + "What good is having money if you can't inspire terror
1307 E 60 St, #109 + in your fellow man?" -- Montgomery Burns
U o' C Law Skool + "Look. Do you want a happy god or a vengeful god?"
Chi, IL 60637 + -- Bart Simpson
Gerry Gryschuk
In article <BZS.92Ja...@world.std.com> b...@world.std.com (Barry Shein) writes:
>From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>But why shouldn't the store that sold the coke also share responsibility?
>I think that can be effectively argued against (they didn't make it,
>assuming it was a failure of manufacture.)
>>Or even perhaps others who bought a coke, since we don't know that
>>another person might have deliberately shaken a bottle thus making it
>>more probable that it might explode.
>Ulp, back to trying to fabricate a guilty party...begs the question.
O.K. just a second here. At least one of the questions is whose bad luck
is it? A second one having been, is there no reasoning that can conclude
both parties should share in bad luck? The answer to the first one being
that its the poor slob who had the coke blow up on him whose obvious bad
luck were dealing with. As far as the second question goes, well there may
indeed be reasoning to conclude Coke should share in this bit of bad luck
but you have yet to present anything beyond "we assume its a manufacturing
defect". As far as I can see that is simply circular reasoning.
Who's bad luck is it? Cokes. Why? Because we assume it was a manufacturing
defect. Why? Because Coke should share in the bad luck. Why? Because we
assume its a manufacturing defect. Oops, now I'm stuck and can't get out.
My statements about the store keeper, the trucking company or some innocuous
third party were to point out that we can't assume aprior that possible
problems with Cokes product are due only to defects arising due to the way
they manufacture it. Furthermore the probability of a bottle exploding in this
case is so low as to make it essentially an act of God, so that someone else's
handling or mishandling of the product might raise that probability in an
amount equal to its probability when it comes out of the plant. So instead of
a one in a million chance we have a two,three or four in a million, still
awfully low by most standards but certainly greater than when Coke released
it. So simply because we can't pin point a specific guilty party we should
make Coke totally or even partially responsible for a problem that may have
arisen without their being able to do anything about it?
>>The point being, at least as I see it, that too many people want to shift
>>responsibility for bad days to anyone but themselves. People can't/won't
>>accept the fact that as you put it "shit happens". Well it happens to
>>everyone sooner or later and we can't expect someone else to pay for our
>>misfortune.
>Why doesn't that comment apply to manufacturers? Why only to
>(obviously) injured parties?
Where did I say it didn't? Shit happens to manufacturers also and they
shouldn't expect someone else to pay for their obvious bad luck either.
[My hockey accident deleted]
>Would require more details. You're probably feeling more generous
>because the injury was not that expensive and insurance covered it
>(tho getting teeth knocked out is a permanent, serious thing, don't
>get me wrong, but much worse things do happen, sometimes we don't even
>have the freedom to be "generous".)
That's ok I understand what you mean. Your right its not like I lost an
eye,arm or leg but I am trying to take responsibility for my life and
that includes accepting that bad luck will happen. If I have insurance
to cover that bad luck great, if not well then that's my problem and I
have to learn to live with it.
>>So to put it bluntly nobody but ourselves bears responsibility for our
>>obvious bad luck.
>But again, manufacturers etc should be immune to bad luck?
Again, I never said they should be or that they are. Only that when
a manufacturer produces a product that is accepted to have a high level
of safety the onus should be on the injured party to show there was
some form of malice/negligence that the manufacturer could have taken
reasonable steps to have corrected. Thus simply assuming a manufacturing
defect doesn't cut it.
Final note, from Jon's recent definition of Strict Liability this
exploding Coke thing doesn't appear to adhere to it. However I'm not
confident enough in my knowledge(read none) of strict legal definitions
to change the subject line, if someone else wants to, feel free to do so.
Jeff C. Nichols
>j...@rice.edu (Jeff C. Nichols) writes:
>>a true example, like the guy who purchased a lawn mower and used it to
>>trim the top of his hedges that were several feet above the ground (I
>>am not sure of the exact case law, but I can find out from my wife).
>>When he went to set the mower down on the ground, he set it on his
>>foot and it cut off part of it. He sues. He wins. If he had been
>>mowing for 25 years, would that be grounds for an expectation to
>>lose his foot?
>Maybe. Maybe not. Lemme see the case cite, and if I have time
>I'll see what other facts of the case were relevant.
Well, I am not sure of the cite. My wife, who is in law school, told me
that they discussed it in torts.
>[cyclist sues helmet company b/c he didn't wear helmet]
>Cite? Were costs awarded?
Again, I am unsure of the cite and will admit that this may be a
hypothetical situation. A better example concerns Yamaha motorcycles.
They were developing an ABS braking system for one of their more
expensive models. They finally introduced it, but waited a couple of
years before introducing it in the United States. The reason? Their
own lawyers advised them of the possibility of lawsuits from people
who bought a different model bike, crashed, and sued claiming that
they wouldn't have crashed had their model bike had ABS. To me, this
is crazy and causes companies to hold back on safety related items. IMHO.
>Not true. In Federal Court alone, there's a 12(b)(6) motion to
>dismiss for failure to state a claim, a motion for judgement on the
>pleadings, and a motion for summary judgment before the jury is ever
>selected. And if the case is frivolous enough, the Judge, upon motion,
>is required to impose sanctions, and can require costs.
I stand corrected. I would like to add that I don't have problems with
juries awarding money for physical damage (like hospital bills) but when
punitive damages (better known as pain and suffering, and emotional
distress--one of my favorites) are added then I really get pissed off.
>If the case is how you describe it, and it didn't happen in California,
>and the settlement was for a sum greater than $5,000, this was a
>strategic mistake as best I can tell.
I don't know the exact amount, but my dad said that the company can settle
for much less than they could ever fight it in court. I agree that it is
a strategic mistake because once companies start to fight frivolous
lawsuits, then people will be less likely to try and get punitive damages.
Maybe people will be less likely to go into stores, drop an egg on the
floor, lie down next to it and claim it was there and they are going to
sue the store. (And no I don't have a cite, but a friend of our family
has a store and he has seen it happen more than once)
Jonathan A Woodman
>jwoo...@magnus.acs.ohio-state.edu (Jonathan A Woodman) writes:
>>In article b...@world.std.com (Barry Shein) writes:
>>>That there are dumb cases doesn't argue against the concept, put
>>>simply. How many reasonable cases are there?
>>It *does* argue against the concept. The concept leads to dumb cases, so
>>maybe there is something wrong with it.
>It most certainly doesn't. There are dumb cases under every concept
>of law. Should we suspend battery actions because Mike Tyson was
>hit with a $100 million suit? Trespass because of the Garagosian case?
>Expectation damages because of Groves v. John Wunder Co.?
I said it argues against the concept, not that it proves that it is
worthless. Bad results from using a legal theory should give us pause
as to its value. It's continued use should be called into question
and examined, with the said bad results being part of the argument
against it.
Any of the examples cited would stand up to that kind of scrutiny.
The value of the law of battery, tresspass, and expectation damages
in contract law outweighs any of the possibly negative results in
the cases you mention. (As an aside, I would say that the Tyson case
is more of an argument against punitive damages, but hey, let's not
go off on tangents, right?)
So I stand by what I said. Bad results are arguments against the legal
concepts that spawned them, and if the negative results outweigh the
positive, then the concept should be scrapped.
Jonathan A Woodman
>I would like to add that I don't have problems with
>juries awarding money for physical damage (like hospital bills) but when
>punitive damages (better known as pain and suffering, and emotional
>distress--one of my favorites) are added then I really get pissed off.
Just for the record, damages for pain and suffering and emotional distress
are considered actual damages right along with medical expenses, loss of
consortium, loss of wages, etc. Punitive damages are a separate entity from
actual damages and are not compensation for an actual harm, but a
punishment of the tortfeasor.
And quite frankly, I think they are a little out of hand myself, although
I still believe in their necessity.
Larry Kolodney
>From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>But why shouldn't the store that sold the coke also share responsibility?
>I think that can be effectively argued against (they didn't make it,
>assuming it was a failure of manufacture.)
Actually, in a strict liability or warranty of merchantability regime,
the seller IS liable, jointly and severally, with the maker.
Larry Kolodney
>Or how about the example where a motorcyclist crashes and sustains head
>injuries. He sues the maker of a particular brand of helmet--but he was
>not wearing the helmet at the time of the crash, nor was he wearing a
>helmet made by any of the other companies. He sued claiming that the
>helmet company did not do enough to encourage him to use the helmet
>while riding a motorcycle. He lost, but the helmet company had to spend
>thousands of dollars in legal fees to fight this.
>One of the problems, IMHO, is that even if the case gets thrown out,
>the defendant still has had to spend money to fight it in court since
>there is no way to throw a case out before it ever gets to court where
>it is first heard.
Yeah, but the plaintiff ALSO has to spend money to litigate it, and
he's not going to do that unless he thinks he has a good chance of
winning. So the kinds of suits you are talking about are not likely
to be very common.
> This leads more and more companies to settle, which
>further encourages more lawsuits because people (or lawyers) see that
>a particular company is more likely to settle than to fight it.
The company will only settle if they think that their litigation costs
plus likely jury award will be greater than the settlement (and they
probably take into account the long term example-setting cost of the
settlement as well).
Ted Frank
>I said it argues against the concept, not that it proves that it is
>worthless. Bad results from using a legal theory should give us pause
>as to its value. It's continued use should be called into question
>and examined, with the said bad results being part of the argument
>against it.
>
>Any of the examples cited would stand up to that kind of scrutiny.
>The value of the law of battery, tresspass, and expectation damages
>in contract law outweighs any of the possibly negative results in
>the cases you mention. (As an aside, I would say that the Tyson case
>is more of an argument against punitive damages, but hey, let's not
>go off on tangents, right?)
>
>So I stand by what I said. Bad results are arguments against the legal
>concepts that spawned them, and if the negative results outweigh the
>positive, then the concept should be scrapped.
>
Punitive damages are *not* routine in products liability cases, but
only awarded when there are
aggravating circumstances, such as reckless indifference to safety,
gross negligence, or fraud.
Number of products liability cases in federal courts of appeals
from beginning of 1982 to mid-1985: 220.
Number of these cases where punitive damages were awarded at trial
level: 13.
Number of these cases where punitive damages were upheld at appeal: 5
(one of which the court reduced the punitive damages 70%).
Punitive damages were even less likely to be awarded or upheld in
the state courts.
Source: Landes and Posner, _The Economic Structure of Tort Law_, 302-306.
They also cite a Rand Corporation study showing that only eight
awards of punitive damages in products liability cases were awarded
in civil jury trials in San Francisco and Cook County (Chicago's
county), Illinois, between 1960 and 1984.
Jeff C. Nichols
>In <jcn.695056522@keckiris> j...@rice.edu (Jeff C. Nichols) writes:
>>One of the problems, IMHO, is that even if the case gets thrown out,
>>the defendant still has had to spend money to fight it in court since
>>there is no way to throw a case out before it ever gets to court where
>>it is first heard.
>Yeah, but the plaintiff ALSO has to spend money to litigate it, and
>he's not going to do that unless he thinks he has a good chance of
>winning. So the kinds of suits you are talking about are not likely
>to be very common.
BZZZTTT! Wrong! Ever heard of late night lawyers? Not having to pay
unless you win? Sorry, but I just don't agree.
>> This leads more and more companies to settle, which
>>further encourages more lawsuits because people (or lawyers) see that
>>a particular company is more likely to settle than to fight it.
>The company will only settle if they think that their litigation costs
>plus likely jury award will be greater than the settlement (and they
>probably take into account the long term example-setting cost of the
>settlement as well).
But when they are not at fault? I think that in this case, the company
should have gone to court and fought this, pointing out the fact that
this guy was drunk and driving on the wrong side of the access roads!
For this a company should be held liable?!?
Terry Carroll
>j...@rice.edu (Jeff C. Nichols) writes:
>>My dads company, an engineering firm, was sued recently by
>>the family of a man who was killed on a road that the company had helped
>>design. Well, what is wrong with that, you ask? Well, the guy was drunk,
>>driving on the wrong side of the feeder road, and he entered the freeway
>>up an exit ramp. A mistake anyone could make Im sure--NOT! Well, the
>>company settled because it was cheaper than fighting it in court.
>>
>If the case is how you describe it, and it didn't happen in California,
>and the settlement was for a sum greater than $5,000, this was a
>strategic mistake as best I can tell.
Not necessarily. If the driver's negligence in being drunk and on the
wrong side of the road was 99% responsible for the injury, and the
engineering firm was 1% responsible, and the value of the injury was
assessed at, say $20,000,000, then many jurisdictions, applying
comparitive negligence, would still award $200,000. Nothing wrong with
that, that I see.
--
The above is my thoughts, not Amdahl's; | Terry Carroll 408/992-2152
The above is not legal advice; | Senior Computer Architect
All models over 18 years of age; | Amdahl Corporation
Contents sold by weight, not by volume; | tj...@juts.ccc.amdahl.com
Your mileage may vary. | tj...@amail.amdahl.com
Terry Carroll
>Instead of using this mythical exploding coke bottle, why dont we use
>a true example, like the guy who purchased a lawn mower and used it to
>trim the top of his hedges that were several feet above the ground (I
>am not sure of the exact case law, but I can find out from my wife).
>When he went to set the mower down on the ground, he set it on his
>foot and it cut off part of it. He sues. He wins. If he had been
>mowing for 25 years, would that be grounds for an expectation to
>lose his foot?
I've searched for this case for quite some time, and have never found it.
alt.folklore.urban has assessed this urban legend as false. If you have
anything to substantiate it, I'd love to see it.
Terry Carroll
>But why shouldn't the store that sold the coke also share responsibility?
>Or even perhaps others who bought a coke, since we don't know that
>another person might have deliberately shaken a bottle thus making it
>more probable that it might explode. Why not the trucking company that
>brought the coke to the store?
You have reached the Zen of strict liability. The purpose of SL is indeed
that what you suggest happens. Coke, in order to meet the requirements of
SL, raises its price. The store that buys the coke, and the other
consumers who buy the coke, do indeed share the cost of the injured
customer, reflected in the price of the beverage.
Gerry Gryschuk
In article <1992Jan10.2...@midway.uchicago.edu> th...@ellis.uchicago.edu (Ted Frank) writes:
[In response to Bernie's hypothetical hockey mask case(it is hypothetical I
wasn't wearing one)]
>You're presenting another strawman. The courts haven't ruled
>that way, and products liability doesn't work that way. If
>it did, we wouldn't see tobacco on the market.
Well I'm probably mistaken or else the case was actually thrown out but
didn't something similar occur in football in recent years. That is I
think I remember a case of an NFL(could have been college) player who
was suing Riddel(the makers of most football helmets) for injuries sustained
during a game in which he was hit in the head. He was claiming the helmet
should have saved him from the injury. Sorry for the sketchy description but
I barely remember it myself, does anyone else remember this or am I really
barking up the wrong tree?
William December Starr
In article <1992Jan14.0...@midway.uchicago.edu>,
th...@midway.uchicago.edu said:
> Number of products liability cases in federal courts of appeals
> from beginning of 1982 to mid-1985: 220.
> Number of these cases where punitive damages were awarded at trial
> level: 13.
> Number of these cases where punitive damages were upheld at
> appeal: 5 (one of which the court reduced the punitive damages
> 70%).
> Punitive damages were even less likely to be awarded or upheld in
> the state courts.
> Source: Landes and Posner, _The Economic Structure of Tort Law_,
> 302-306.
In addition to this, the Roscoe Pound Foundation in Washington has
just released a two-year study (conducted by Prof. Thomas Koenig,
Northeastern University and Prof. Michael Rustad, Suffolk University
Law School) which covers state and federal court product liability
cases from 1965 to 1990. One of the parameters of the study was
that they only concerned themselves with cases which were heard by
juries; bench trials were ignored.
I excerpt from an article about the study that appeared on page B1
of the 1/6/92 Wall Street Journal:
-=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=-
Among the findings:
-- Only 355 punitive damage verdicts were returned by state and
federal court juries during the 25-year period... one quarter of
those awards involved a single product, asbestos.
-- In the majority of the 276 cases where complete post-trial
information was available [to the researchers], punitive damages
were thrown out or reducted by the presiding judge or by an
appeals court. Plaintiffs received no punitive damages on 111
cases (40.2%), received judgments in 39 cases (14.1%) and full
jury awards in 126 cases (45.7%).
-- The median punitive damage award for all product liability
cases actually paid since 1965 was $625,000, slightly above the
median compensatory award -- $500,100. Punitive damages were
significantly higher than compensatory damages in only about 25%
of the cases.
-- The aggravating factors leading to high awards that lawyers
most often cited in interviews and surveys were failure to reduce
risk of a known danger and failure to warn consumers of those
risks.
-- "Most Fortune 500 companies have not had a single punitive
damage award against them, "says Prof. Rustad. "I think
companies have nothing to worry about in punitive damages as long
as the act responsibly."
-=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=-
-- William December Starr <wds...@athena.mit.edu>
Ted Frank
>l...@panix.com (Larry Kolodney) writes:
>>In <jcn.695056522@keckiris> j...@rice.edu (Jeff C. Nichols) writes:
>>>One of the problems, IMHO, is that even if the case gets thrown out,
>>>the defendant still has had to spend money to fight it in court since
>>>there is no way to throw a case out before it ever gets to court where
>>>it is first heard.
>
>>Yeah, but the plaintiff ALSO has to spend money to litigate it, and
>>he's not going to do that unless he thinks he has a good chance of
>>winning. So the kinds of suits you are talking about are not likely
>>to be very common.
>
>BZZZTTT! Wrong! Ever heard of late night lawyers? Not having to pay
>unless you win? Sorry, but I just don't agree.
>
hours of time (and a good deal of litigation support expenses)
just so she can't even charge a fee afterward? (Aside from the
risk of being exposed to Rule 11 sanctions for bringing a clearly
losing case.) It may be free to the plaintiff, but the plaintiff
has to find a lawyer to take the case first. Unless they go
pro se (which is why pro se cases have a disproportionate
kookiness quotient -- lawyers don't take cases asking for
injunctions against Satan and his Servants for civil rights
violations).
Jeff C. Nichols
>Not necessarily. If the driver's negligence in being drunk and on the
>wrong side of the road was 99% responsible for the injury, and the
>engineering firm was 1% responsible,
SAY WHAT?! How is the driver only 99% resposible? He decided to get
drunk. He decided to drive. He decided to drive down the wrong way.
At what point is he not responsible anymore? It's this type of thinking
that allows people to blame anyone but themselves. What ever happened
to taking responsibility for your own actions? And who's responsibility
should it have been to know which way to travel down a road? The
company that designed the road? The company that built the road?
Here's a novel idea--how about the person driving on the road?
Jeff C. Nichols
>In article <jcn.695056522@keckiris> j...@rice.edu (Jeff C. Nichols) writes:
>>(stuff about cutting foot off with a lawn mower-turned hedge clipper)
>I've searched for this case for quite some time, and have never found it.
>alt.folklore.urban has assessed this urban legend as false. If you have
>anything to substantiate it, I'd love to see it.
I will ask my wife again, but you may be right--it may be an urban
legend, but I seem to recall that stuff like this led to manufacturers
putting kill switches on mowers now (but I may be just dreaming that
part )
Barry Shein
From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>Ulp, back to trying to fabricate a guilty party...begs the question.
>
>O.K. just a second here. At least one of the questions is whose bad luck
>is it? A second one having been, is there no reasoning that can conclude
>both parties should share in bad luck? The answer to the first one being
>that its the poor slob who had the coke blow up on him whose obvious bad
>luck were dealing with.
Not at all clear. If the company shares in the liability then it is
their bad luck also, which might be appropriate. Your reasoning only
holds if you prejudge the situation.
>As far as the second question goes, well there may
>indeed be reasoning to conclude Coke should share in this bit of bad luck
>but you have yet to present anything beyond "we assume its a manufacturing
>defect". As far as I can see that is simply circular reasoning.
You are still obsessed with this notion of proving blame.
I never said it was a manufacturing defect, never.
I just said that some bad luck occurred, it's no one's fault in
particular, and perhaps both parties need to work out who is to
shoulder the expense (50/50 or whatever.)
Just because the cap hit the injured party in the eye doesn't mean
that therefore they must burden all the bad luck. They're certainly
not to blame, right? (assuming it was just that.)
Again, the auto example where you skid on some ice completely
unavoidably and with absolutely no warning (let's not start
introducing "should have known the weather was bad" or "should have
had better tires", completely unavoidable), hit another car, your car
is undamaged, the other car sustains damage. Should you be able to say
"ah well fellah, bad luck, but my car's ok and certainly I am not to
blame, consider suing god for putting that freak bit of ice on the
road"?
>Who's bad luck is it? Cokes. Why? Because we assume it was a manufacturing
>defect. Why? Because Coke should share in the bad luck. Why? Because we
>assume its a manufacturing defect. Oops, now I'm stuck and can't get out.
As I said, I never said a word about manufacturing defects.
Just some random bit of bad luck occurred, and perhaps coke should be
happy that their eyes are intact and could consider sharing the other
party's injury costs.
>>>The point being, at least as I see it, that too many people want to shift
>>>responsibility for bad days to anyone but themselves. People can't/won't
>>>accept the fact that as you put it "shit happens". Well it happens to
>>>everyone sooner or later and we can't expect someone else to pay for our
>>>misfortune.
>
>>Why doesn't that comment apply to manufacturers? Why only to
>>(obviously) injured parties?
>
>Where did I say it didn't? Shit happens to manufacturers also and they
>shouldn't expect someone else to pay for their obvious bad luck either.
You implied it by saying that the manufacturer should be immune from
the consumer's bad luck.
Terry Carroll
>tj...@ccc.amdahl.com (Terry Carroll) writes:
>
>>Not necessarily. If the driver's negligence in being drunk and on the
>>wrong side of the road was 99% responsible for the injury, and the
>>engineering firm was 1% responsible,
>
>SAY WHAT?! How is the driver only 99% resposible? He decided to get
>drunk. He decided to drive. He decided to drive down the wrong way.
>At what point is he not responsible anymore? It's this type of thinking
>that allows people to blame anyone but themselves. What ever happened
>to taking responsibility for your own actions? And who's responsibility
>should it have been to know which way to travel down a road? The
>company that designed the road? The company that built the road?
>Here's a novel idea--how about the person driving on the road?
_If_.
Ted Frank
>tj...@ccc.amdahl.com (Terry Carroll) writes:
>>>(stuff about cutting foot off with a lawn mower-turned hedge clipper)
>
>>I've searched for this case for quite some time, and have never found it.
>>alt.folklore.urban has assessed this urban legend as false. If you have
>>anything to substantiate it, I'd love to see it.
>
>I will ask my wife again, but you may be right--it may be an urban
>legend, but I seem to recall that stuff like this led to manufacturers
>putting kill switches on mowers now (but I may be just dreaming that
>part )
>
This makes the story even more implausible, or the true story
more likely to be a case where the manufacturer really *was* at fault.
Jeff C. Nichols
>How could the facts as you describe it be helped by a kill switch?
>This makes the story even more implausible, or the true story
>more likely to be a case where the manufacturer really *was* at fault.
I beleive that some lawn mowers have a mercury type switch that can
recognize if it is being lifted. Also, the kill switch might have been
something like the bar mounted level that has to be held while mowing;
if you let go, the mower stops. This would make it difficult to hold
the mower at hedge height and still keep the lever engaged. Of course
someone could also bypass or tie the level down. I wonder who would
be responsible if someone did that and then used it to trim the hedges?
(It's a rhetorical question)
Barry Shein
Oh, people are so fascinated with these outside, whacko cases that may
or may not have happened but always appeal to a certain moral
indignation.
In my experience at best these things are like a game of telephone and
the facts get more and more mutated to fit the conclusion the speaker
wants the audience to draw.
The real question people should be asking themselves is whether or not
they can imagine real harm coming to themselves from a product's
failure by reasonable use and whether or not they want all avenues of
redress closed because of one in a million or even fictional abuses?
Because you can bet that's where the real money is.
It's analogous to the welfare thing. A lot of people on welfare are
truly unfortunate by any reasonable measure, the severely retarded,
quadrapalegic, elderly. But that doesn't play well on the political
laugh circuit and you don't hear those who want to score a certain hit
talking about the indigent, they just go on and on about real or
imagined welfare queens driving up in cadillacs...
I believe abuses occur. I do believe in reform.
I am not so convinced that we should come to the conclusions being
suggested by them. Invariably they ask to shoot oneself in the foot.
Ted Frank
>Oh, people are so fascinated with these outside, whacko cases that may
>or may not have happened but always appeal to a certain moral
>indignation.
>
I did some research on some "true" cases put forward by people
to demonstrate the products liability had gone out of control
on a "major legal database." ;)
1. Story of lawsuit against lawn mower company for injury to foot
incurred while trimming hedges.
No cases of this nature found.
2. Story of lawsuit against ladder manufacturer for fall incurred
when ladder slipped in barn after being placed in horse excrement.
A search of all cases involving falls from ladders in barns and
farms found no such case reported. Only case mentioning the words
"ladder" and "feces" was a prison tort case which combined several
different actions.
3. Motorcyclist sues manufacturer for not warning him to wear helmet.
There was a similar case, Shaffer v AMF, 842 F.2d 893, where the
plaintiff sued the manufacturer for "misleading" advertising making
him think that cycling was completely safe.
The case was ruled for defendant on summary judgment. (no trial)
Decision was upheld on appeal in a 3-0 ruling, with one judge writing a
concurring opinion calling the appeal frivolous.
4. NFL player sues helmet manufacturer.
There are no recorded cases of National Football League players
suing over a defective football helmet.
--
Ted Frank + "We conclude the authorites cited above and expert test-
1307 E 60 St, #109 + imony likewise establish that Texas Hold'em falls within
U o' C Law Skool + a separate category of cardgames known as spit-in-the-
Chi, IL 60637 + ocean." Tibbetts v. Van de Kamp, 222 Cal. App. 3d 389
Larry Appleman
>I did some research on some "true" cases put forward by people
>to demonstrate the products liability had gone out of control
Is there really a "major legal database" that contains complete records of
trial court decisions? Certainly not Westlaw or Lexis. Your research probably
only encompassed reported appeals court opinions -- and thus you haven't
answered the question of whether these products liability cases really exist.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Larry Appleman P.O. Box 214, Cambridge B, Mass. 02140
Ted Frank
>th...@midway.uchicago.edu writes:
>>I did some research on some "true" cases put forward by people
>>to demonstrate the products liability had gone out of control
>>on a "major legal database." ;) [and he didn't find any]
>
>Is there really a "major legal database" that contains complete records of
>trial court decisions? Certainly not Westlaw or Lexis. Your research probably
>only encompassed reported appeals court opinions -- and thus you haven't
>answered the question of whether these products liability cases really exist.
True. But then :
1) How did the law professors find out about them?
2) In cases this ridiculous, it's unbelievable that the company
wouldn't appeal, in which case it would be reported.
3) In cases this ridiculous, it's not unreasonable that they *would*
be reported. These collections love far out wacky cases as much
as the next person, and I can find you more than a few. Just not
ones that clearly go against the grain of the law like these.
At any rate, it's not a valid argument to present a black box for
argument through hearing stuff from a FOAF. And then say "You
can't prove that it *didn't* happen." That's a no-no on a.f.u.
Terry Carroll
>In article <1992Jan16....@midway.uchicago.edu> th...@midway.uchicago.edu writes:
>>I did some research on some "true" cases put forward by people
>>to demonstrate the products liability had gone out of control
>>on a "major legal database." ;) [and he didn't find any]
>
>Is there really a "major legal database" that contains complete records of
>trial court decisions? Certainly not Westlaw or Lexis. Your research probably
>only encompassed reported appeals court opinions -- and thus you haven't
>answered the question of whether these products liability cases really exist.
>
Lexis has Nexis and Westlaw has Dialog. While neither is technically a
"legal database" (more news, etc.), they are accessable via the same
system and session as Lexis and Westlaw, so a confusion between the two,
particularlt by someone not using it, is forgivable. In addition, both
services have databases of law review articles. It's not unusual for
such an article to report on verdicts and judgments from courts of
original jurisdiction.
Terry Carroll
>>Oh, people are so fascinated with these outside, whacko cases that may
>>or may not have happened but always appeal to a certain moral
>>indignation.
>>
>Which makes a nice lead-in to...
>
>I did some research on some "true" cases put forward by people
>to demonstrate the products liability had gone out of control
>on a "major legal database." ;)
>
Remember also, that only comparitively recent cases of most courts (esp.
the state courts) are kept online, or kept in the primary database.
On both Westlaw and Lexis, no Tennessee case is kept prior to 1944 (try
looking for the Scopes trial appeal, for example. And Westlaw keeps
its older cases in another database, suffixed with -OLD. A good
thing to remember when looking for a case that might have a few years
on it.
>
>4. NFL player sues helmet manufacturer.
>
> There are no recorded cases of National Football League players
> suing over a defective football helmet.
Well, there was a real case where one player sued another (and I think,
maybe his team and the NFL) when he was injured in a fight by another
player. I dunno if a helmet manufacturer was also implicated. If the
lawyer had any brights, he probably was, since I think it's tougher to
add parties than to let them off later (but I bow to anyone who's had
Civil Procedure on this point). Let me know if you want the cite. It
was a note case in the Keeton torts casebook, under battery.
Caroline E. Bryan
>>Oh, people are so fascinated with these outside, whacko cases that may
>>or may not have happened but always appeal to a certain moral
>>indignation.
>>
>Which makes a nice lead-in to...
>
>I did some research on some "true" cases put forward by people
>to demonstrate the products liability had gone out of control
>on a "major legal database." ;)
[neato list deleted]
Three I've always wondered about but weren't on your list are:
1. Man sues maker of table saw because he sliced off his own finger after
removing the guard that the maker put on the table saw to keep him from
slicing off his own finger. Rumor says he won.
2. Man sues maker of lawn mower after getting injured while attempting to
trim a hedge by lifting the running mower up against the shrubbery. Rumor
says he lost.
3. Woman sues doctor for malpractice because premature infant care tech-
niques change some 20 years after her prematurely born daughter dies. Rumor
says she won.
Can you determine if these cases were ever real?
Carrie c...@dbrus.unify.com x6244
+----------------------------------------------------------------------------+
| "I have NOT lost my mind: it's backed up on tape somewhere." - Anon. |
+----------------------------------------------------------------------------+
Mary Shafer
Three I've always wondered about but weren't on your list are:
2. Man sues maker of lawn mower after getting injured while attempting to
trim a hedge by lifting the running mower up against the shrubbery. Rumor
says he lost.
This one was made up by an insurance company and/or its advertising agency.
The fabricator has admitted it.
--
Mary Shafer DoD #0362 KotFR NASA Dryden Flight Research Facility, Edwards, CA
sha...@rigel.dfrf.nasa.gov Of course I don't speak for NASA
"There's no kill like a guns kill." LCDR "Hoser" Satrapa, gunnery instructor
"A kill is a kill." Anonymous
Larry Kolodney
>>Yeah, but the plaintiff ALSO has to spend money to litigate it, and
>>he's not going to do that unless he thinks he has a good chance of
>>winning. So the kinds of suits you are talking about are not likely
>>to be very common.
>BZZZTTT! Wrong! Ever heard of late night lawyers? Not having to pay
>unless you win? Sorry, but I just don't agree.
BZZZTTT yourself! Do you think those late night lawyers will take
just any case on the off chance it will win? How do you think they
earn their salary. If a case is a total loser, its not worth it to
them to front the cost of a suit.
Gerry Gryschuk
In article <BZS.92Ja...@world.std.com> b...@world.std.com (Barry Shein) writes:
>From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>
>>O.K. just a second here. At least one of the questions is whose bad luck
>>is it? A second one having been, is there no reasoning that can conclude
>>both parties should share in bad luck? The answer to the first one being
>>that its the poor slob who had the coke blow up on him whose obvious bad
>>luck were dealing with.
>Not at all clear. If the company shares in the liability then it is
>their bad luck also, which might be appropriate. Your reasoning only
>holds if you prejudge the situation.
What reasoning? I simply stated what we knew for sure, since it's unclear
Coke has had bad luck I left that possibility open. Just give me a good
reason why it should be their bad luck.
>I never said it was a manufacturing defect, never.
To my question as to why the store that sold the coke shouldn't also share
responsibility you replied:
"I think that can be effectively argued against (they didn't make it,
assuming it was a failure of manufacture.)"
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Maybe I'm missing something or I might have misunderstood you but could you
please explain how this is substantively different than saying it was a
manufacturing defect.
>I just said that some bad luck occurred, it's no one's fault in
>particular, and perhaps both parties need to work out who is to
>shoulder the expense (50/50 or whatever.)
Perhaps both parties do, but that would be good business practice not bad
luck. That's between the two(or more) parties that are involved.
The law shouldn't make the manufacturer automatically subject to damages
simply because someone deems it appropriate.
>Just because the cap hit the injured party in the eye doesn't mean
>that therefore they must burden all the bad luck. They're certainly
>not to blame, right? (assuming it was just that.)
Well in the case that there is noone at fault, a simple accident, no
manufacturing defects, no negligence by anybody along the route, not
a truck driver, store keeper etc., then why aren't they to blame?
They didn't have to buy it, nobody held a gun to their head.
>Again, the auto example where you skid on some ice completely
>unavoidably and with absolutely no warning (let's not start
>introducing "should have known the weather was bad" or "should have
>had better tires", completely unavoidable), hit another car, your car
>is undamaged, the other car sustains damage. Should you be able to say
>"ah well fellah, bad luck, but my car's ok and certainly I am not to
>blame, consider suing god for putting that freak bit of ice on the
>road"?
Ever hear of no fault liability, if noone is truly at fault, you each pay
your damages(or your insurance company does) if your car didn't sustain
damages bully for you. We have this in Canada maybe you don't.
>>>>The point being, at least as I see it, that too many people want to shift
>>>>responsibility for bad days to anyone but themselves. People can't/won't
>>>>accept the fact that as you put it "shit happens". Well it happens to
>>>>everyone sooner or later and we can't expect someone else to pay for our
>>>>misfortune.
>>
>>>Why doesn't that comment apply to manufacturers? Why only to
>>>(obviously) injured parties?
>>
>>Where did I say it didn't? Shit happens to manufacturers also and they
>>shouldn't expect someone else to pay for their obvious bad luck either.
>You implied it by saying that the manufacturer should be immune from
>the consumer's bad luck.
Since I never said the manufacturer should be immune I implied no such
thing.
Ted Frank
>(most summaries of negative findings omitted)
>
>Remember also, that only comparitively recent cases of most courts (esp.
>the state courts) are kept online, or kept in the primary database.
>On both Westlaw and Lexis, no Tennessee case is kept prior to 1944 (try
>looking for the Scopes trial appeal, for example. And Westlaw keeps
>its older cases in another database, suffixed with -OLD. A good
>thing to remember when looking for a case that might have a few years
>on it.
But since these are all products liability cases, they've presumably
been decided since Escola (and Mississippi didn't discard the Winterbottom
privity standard until 1966). If none of these cases have happened
within the last 25 years, I'm not to worried about their effect on
modern society, because tort doctrine has changed quite a bit since then.
>>4. NFL player sues helmet manufacturer.
>>
>> There are no recorded cases of National Football League players
>> suing over a defective football helmet.
>
>Well, there was a real case where one player sued another (and I think,
>maybe his team and the NFL) when he was injured in a fight by another
>player. I dunno if a helmet manufacturer was also implicated. If the
>lawyer had any brights, he probably was, since I think it's tougher to
>add parties than to let them off later (but I bow to anyone who's had
>Civil Procedure on this point). Let me know if you want the cite. It
>was a note case in the Keeton torts casebook, under battery.
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir., 1979).
Trail court dismissed, appeals court reversed the dismissal. Don't
know what happened on remand. At any rate, it was considered under
intentional tort doctrine, i.e., battery.
--
Ted Frank + "[P]laintiffs' activities in promoting talking cat were
1307 E 60 St, #109 + within legitimate exercise of city's taxing power."
U o' C Law Skool + -- Headnote from Miles v. City
Chi, IL 60637 + Council of Augusta, 710 F.2d 1542
Ted Frank
>
>1. Man sues maker of table saw because he sliced off his own finger after
>removing the guard that the maker put on the table saw to keep him from
>slicing off his own finger. Rumor says he won.
He lost. Briney v. Sears, Roebuck, Co., 782 F.2d 585.
A similar loss was Hagans v. Oliver Machinery Co., 576 F.2d 97, for
an injury incurred dozens of years after the 1942 manufacture of the
table saw.
>2. Man sues maker of lawn mower after getting injured while attempting to
>trim a hedge by lifting the running mower up against the shrubbery. Rumor
>says he lost.
This was on my list as untraceable. Other posters have said that
an insurance company fabricated the story. (Another popular
fake insurance company story is the woman who got $1 million
damages for "loss of her psychic powers" due to medical malpractice.)
>3. Woman sues doctor for malpractice because premature infant care tech-
>niques change some 20 years after her prematurely born daughter dies. Rumor
>says she won.
>
I need more detail before I slog through every medical malpractice case
involving premature infants. I saw a few brought six years after the
birth that were barred by a two-year statute of limitations.
Ted Frank
>Well I'm probably mistaken or else the case was actually thrown out but
>didn't something similar occur in football in recent years. That is I
>think I remember a case of an NFL(could have been college) player who
>was suing Riddel(the makers of most football helmets) for injuries sustained
>during a game in which he was hit in the head. He was claiming the helmet
>should have saved him from the injury. Sorry for the sketchy description but
>I barely remember it myself, does anyone else remember this or am I really
>barking up the wrong tree?
>
Sports Illustrated or the Boston Globe or someone had an article
about the poor job reconditioning firms do recycling helmets, so
there very well could be negligence, the type that causes unneeded
spinal injuries.
But a quick check for all recorded tort cases where Riddell was the
defendant:
Carrier v. R., 721 F.2d 867, high school football player sues,
court grants summary judgment for the defendant.
Dente v. R., 664 F.2d 1, college football player sues, jury rules
for defendant, upheld on appeal, despite plaintiff's complaint
that the defendant introduced evidence of his regular
solicitation of prostitutes.
Lynch v. R., [no published opinion], Riddell could impel discovery
of full television interview with plaintiff about injury.
No further record of outcome of case.
Bryns v. R., 113 Ariz. 269, 550 P.2d 1065, high school player sues,
trial court grants directed verdict for defendant, appeals
court reverses and remands for full jury trial. Unknown
disposition.
Campbell v. R., Delaware slip opinion, Feb. 1984, co-defendant in
high school player's suit had to stand trial. Unknown
disposition.
Galindo v. R., 437 N.E.2d 376, high-school player sues, jury rules
for defendant. Appellate court reverses and remands, because
that former football player Tom Mack doesn't qualify as an
expert witness and other crucial information was withheld from
jury. (The appellate court ruled that it was not error for
the plaintiff to be forbidden from introducing as evidence
catalogs for Riddell helmets showing other safer models, a
different result than what people have been complaining about
the "safety tax.")
Struder v. R., Tennessee slip opinion, Jury verdict against high
school player's suit was upheld, with costs. This is
actually a very funny case; it appears that Riddell's
lawyer was quite the character at the trial level.
Since it is arguable that Riddell's helmets _were_ defective (they
certainly result in a large number of paralysis injuries every year)
or poorly designed, I'm not sure how relevant any of these cases
are to the debate on strict liability, though it's worth noting that
not a single one of these cases showed a final judgment for the
plaintiff.
This is not necessarily an exhaustive list, because my search was
limited to cases where Riddell was a named defendant, and thus would
not include cases where they were a secondary co-defendant.
William December Starr
In article <1992Jan18.1...@midway.uchicago.edu>,
th...@midway.uchicago.edu said:
=> But a quick check for all recorded tort cases where Riddell was
=> the defendant:
=> * * *
=>
=> Dente v. R., 664 F.2d 1, college football player sues, jury rules
=> for defendant, upheld on appeal, despite plaintiff's complaint
=> that the defendant introduced evidence of his regular
=> solicitation of prostitutes.
Ah, but was he wearing a Riddell helmet when he solicited the
prostitutes? (Or have I just been reading too much Doonesbury
lately? :-)
Terry Carroll
>In article <eu1...@Unify.Com> c...@dbrus.Unify.Com (Caroline E. Bryan) writes:
>
> 2. Man sues maker of lawn mower after getting injured while attempting to
> trim a hedge by lifting the running mower up against the shrubbery. Rumor
> says he lost.
>
>This one was made up by an insurance company and/or its advertising agency.
>The fabricator has admitted it.
Mary,
I've been trying to track this down as conclusively true or false; can
you point me to a source that documents that it's false?
Paul Wallich
>In article <eu1...@Unify.Com> c...@dbrus.Unify.Com (Caroline E. Bryan) writes:
>>Three I've always wondered about but weren't on your list are:
>>3. Woman sues doctor for malpractice because premature infant care tech-
>>niques change some 20 years after her prematurely born daughter dies. Rumor
>>says she won.
>I need more detail before I slog through every medical malpractice case
>involving premature infants. I saw a few brought six years after the
>birth that were barred by a two-year statute of limitations.
The one of these that I recall hearing reported during my early
years (ok, the late 60's/early 70's) was not a death but a blinding.
Apparently during the 50's and early 60's premature infants in
incubators were kept in high-oxygen environments and often went
blind from oxygen toxicity. Eventually somebody figured out a way
around this (a surfactant compound that helped undeveloped lungs
work better so you didn't need so much oxygen, i think) and so you
no longer had to trade eyes for life. The suit was brought by
someone who had been blinded at a time when the physician in charge
might/should/could have known that over-oxygenation was not optimal
care. slog away :-)
paul
Brian Gordon
> [...]
>>2. Man sues maker of lawn mower after getting injured while attempting to
>>trim a hedge by lifting the running mower up against the shrubbery. Rumor
>>says he lost.
>
>This was on my list as untraceable. Other posters have said that
>an insurance company fabricated the story. (Another popular
>fake insurance company story is the woman who got $1 million
>damages for "loss of her psychic powers" due to medical malpractice.)
Half of this one sounds familiar. Probably Philadelphia, maybe around the mid
80's. I'm from Philadelphia, and I sort-of remember reading about it in the
local (West Coast) papers and some discussion on the net. Seems like a CAT
scan damaged her psychic powers. I remember at the time that I posted (not in
a.f.u, that was before its time) that I wanted to be the defense attorney - "As
a psychic, how come you didn't know that this disaster was going to befall
you?", and some wag answered that her reply should be "I did, and saw the jury
awarding me $1,000,000 ..." Were we all being duped than, or was I dreaming?
--
:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:
| Brian G. Gordon bri...@Sun.COM |
| bri...@netcom.COM |
:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:
Gordon Burditt
>>damages for "loss of her psychic powers" due to medical malpractice.)
...
>Half of this one sounds familiar. Probably Philadelphia, maybe around the mid
>80's. I'm from Philadelphia, and I sort-of remember reading about it in the
>local (West Coast) papers and some discussion on the net. Seems like a CAT
>scan damaged her psychic powers. I remember at the time that I posted (not in
>a.f.u, that was before its time) that I wanted to be the defense attorney - "As
>a psychic, how come you didn't know that this disaster was going to befall
>you?", and some wag answered that her reply should be "I did, and saw the jury
>awarding me $1,000,000 ..." Were we all being duped than, or was I dreaming?
The way I remember this, it was true that:
- She claimed that she lost her psychic powers, and sued.
- She won a large damage award.
but, what doesn't go along with the rumor, but was still the truth:
- The claim for lost psychic powers got thrown out fairly early, or
was never taken seriously in the first place, or was only made in
newspapers, not in court.
- The damages were awarded for injuries of a type that are incontestably
real injuries, like radiation burns or broken bones when she got mashed
by part of the scanner. The extent to which she suffered these injuries
was decided in court, but nobody makes claims like "bones are imaginary
so you can't be injured by having them broken" in court. I believe
there was some element of permanent injury, as in reduced mobility or
visible scars, involved.
Gordon L. Burditt
sneaky.lonestar.org!gordon
Kristopher Martin Nasadowski
Sorry, but I missed this somewhere... (er, this thread) but wasn't it a
woman down in Florida who had been hit by falling lumber in a Home Depot?
Kristopher Nasadowski
<nas...@rpi.edu>
Barry Shein
From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>I never said it was a manufacturing defect, never.
>
>To my question as to why the store that sold the coke shouldn't also share
>responsibility you replied:
>
>"I think that can be effectively argued against (they didn't make it,
>assuming it was a failure of manufacture.)"
>^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
(apparently replying to me)
You'd better re-check your attributions.
I think you got confused somewhere in the > and >>.
Or you're confusing two threads or something.
>>I just said that some bad luck occurred, it's no one's fault in
>>particular, and perhaps both parties need to work out who is to
>>shoulder the expense (50/50 or whatever.)
>
>Perhaps both parties do, but that would be good business practice not bad
>luck. That's between the two(or more) parties that are involved.
>The law shouldn't make the manufacturer automatically subject to damages
>simply because someone deems it appropriate.
Under what conditions should they make them subject to damages (I'll
beg the word "automatically")? If noone deems it appropriate?
>>Just because the cap hit the injured party in the eye doesn't mean
>>that therefore they must burden all the bad luck. They're certainly
>>not to blame, right? (assuming it was just that.)
>
>Well in the case that there is noone at fault, a simple accident, no
>manufacturing defects, no negligence by anybody along the route, not
>a truck driver, store keeper etc., then why aren't they to blame?
>They didn't have to buy it, nobody held a gun to their head.
I could just as easily say the manufacturer didn't have to manufacture
and sell it, I don't see that that is any weaker a statement. Some
products have inherent potential for damage (ok, coke bottles seems a
bit extreme, but automobiles, no one forced the manufacturers to go
into the business of selling automobiles, they could have sold joke
books, I bet there haven't been too many liability cases against joke
book manufacturers.)
>>unavoidably and with absolutely no warning (let's not start
>>introducing "should have known the weather was bad" or "should have
>>had better tires", completely unavoidable), hit another car, your car
>>is undamaged, the other car sustains damage. Should you be able to say
>>"ah well fellah, bad luck, but my car's ok and certainly I am not to
>>blame, consider suing god for putting that freak bit of ice on the
>>road"?
>
>Ever hear of no fault liability,
Sure, isn't that what I'm arguing for?
>if noone is truly at fault, you each pay
>your damages(or your insurance company does) if your car didn't sustain
>damages bully for you. We have this in Canada maybe you don't.
We have it in some states in the US.
So, you find no-fault liability ok in the case of automobiles, but not
in the cause of manufacturers/consumers?
Maybe you should think about this a bit. Notice what a great deal your
line of thinking is for the manufacturers!
>>You implied it by saying that the manufacturer should be immune from
>>the consumer's bad luck.
>
>Since I never said the manufacturer should be immune I implied no such
>thing.
Now I'm having trouble understanding why you're here at all.
Gerry Gryschuk
This will be my last attempt to publicly clear up some possible misconceptions
which seem to have arisen. Since you and I seem to be the last two people even
discussing this I suggest we take any further discussion to email.
In article <BZS.92Ja...@world.std.com> b...@world.std.com (Barry Shein) writes:
>From: ge...@SKATTER.USASK.CA (Gerry Gryschuk)
>>>I never said it was a manufacturing defect, never.
>>
>>To my question as to why the store that sold the coke shouldn't also share
>>responsibility you replied:
>>
>>"I think that can be effectively argued against (they didn't make it,
>>assuming it was a failure of manufacture.)"
>>^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>(apparently replying to me)
>You'd better re-check your attributions.
>I think you got confused somewhere in the > and >>.
>Or you're confusing two threads or something.
Which statement do you have a problem with, the one that reads,
"I never said it was a manufacturing defect, never."
or
"I think that can be effectively argued against(they didn't make it,
assuming it was a failure of manufacture.)"
Both of these statements came from you(Barry) under the same subject line,
ie. Re: Why Strict Liability (Was: Litigation Explosion).
The first statement is in article <BZS.92Ja...@world.std.com> which
is in fact the last article of yours I replied to. The second statement
was from article <BZS.92Ja...@world.std.com>. I save all articles
I post or reply to as well as any I find interesting and may have comments
on later. If you want I will email you a copy of your posts.
Since I know both statements came from you and were on the same topic
is it any wonder why I may be confused as to your position?
>>>unavoidably and with absolutely no warning (let's not start
>>>introducing "should have known the weather was bad" or "should have
>>>had better tires", completely unavoidable), hit another car, your car
>>>is undamaged, the other car sustains damage. Should you be able to say
>>>"ah well fellah, bad luck, but my car's ok and certainly I am not to
>>>blame, consider suing god for putting that freak bit of ice on the
>>>road"?
>>
>>Ever hear of no fault liability,
>Sure, isn't that what I'm arguing for?
It is? In your coke bottle example you want to make Coke liable for
part of the damages sustained by the customer without fault/negligence/defects
having been shown. This is not no fault liability it is 50 - 50 liability
or whatever percentages you want to call it by. This premise applied to
a car accident in which no fault could be associated would make the person
with little or no damage liable for part of the damages received by the
other presumably more injured party, which as I indicated in my previous
article isn't what happens. No fault liability applied to your coke incident
would make Coke subject to damages in replacing the bottle and contents and
nothing more. Now is that really what your arguing for?
>>>You implied it by saying that the manufacturer should be immune from
>>>the consumer's bad luck.
>>
>>Since I never said the manufacturer should be immune I implied no such
>>thing.
>Now I'm having trouble understanding why you're here at all.
Then it seems we're even.
Look I am running from the premise that negligence/fault/defects should
be applied to products liability cases when the consumer wants to recover
losses due to damage THEY received. This doesn't make the manufacturer
immune any more than applying the same standard to auto accidents makes
drivers immune. But you don't want me to use this standard thus the immune
part is all your construction.
---------------------------------------------------------------
Gerry Gryschuk(ge...@skatter.usask.ca)