The debate concerned whether a pilot who landed a small plane on an expressway, ran into a car, whose driver died as the result of the impact, was criminally or civilly liable for the driver’s death. Some folks, including mouthbreather and zwaldd seemed to believe the pilot (and others) should bear some responsibility for the driver’s death. Several others disagreed. I elected to stay out of the argument. That is, until I thought one poster stepped over the line to make personal attacks against a person he/she disagreed with, instead of addressing the merits of that person’s opinion.
My initial entry into this fray was, in its entirety:
This earned me the following response from minty green
Granted, the “good for you” comment was a little testy, but I was a tad put off by what I perceived as a patronizing attitude, that all must defer to the almighty minty green’s sketchily supported position simply because HIAL.
Oh my. This is getting way too long, and if you did not participate in that debate, you certainly do not want to read a step-by-step recounting of it here (especially since I find myself unable to build up a sufficient degree of bile before the caffeine kicks in).
But if you have a moment, kindly peruse the ensuing posts in that thread, and judge for yourself whether it smacks of the patronizing smugness that lends truth to the adage that a lawyer’s most effective form of birth control is his personality. This partially evolved protozoan believes he clearly resolved this issue, (which I might add, counselor, is taking place in a public forum, not a court of law) by the selected presentation of non-controlling caselaw and statutes. Moreover, the learned assquire presents his views in a manner to suggest a darn good opposing position could not be presented. Which is all I attempted to suggest. (I use the masculine pronoun because my image of mg is unquestionably phallic in nature. The dipshit will probably take that as a compliment to his virility. If corrected, I will do my best to adopt appropriate mental imagery.) Good god, man. Are you a faboo litigator like I see on TV, where all it takes to convince a judge of your position is to spit out a citation? Hey folks. Guess what? You shouldn’t accept that on these forums, cause no judge worth a damn will find it convincing.
No, this isn’t a big thing. But I have to deal with pain in the ass, misleading, smug, ignorant jackass liars (oops, I meant lawyers. Or did I?) like minty green every day as part of my job. It annoys me when they intrude upon my intellectual recreation.
Err, so MG says she (or he, I dunno) knows tort law, tort law is pretty consistant throughout the country, and that tort law says the pilot isn’t responsible, and is “smug” about it, and that means that lawyers are pond scum? I’m missing something here. My opinion is that lawyers are only pond scum when they make me work late.
Oh goody! A Pit thread all for me! Thanks so much, Dinsdale! :o
Please don’t be under the impression that I was defending msmith’s thoroughly rude comments in any way. I was not then, and do not now.
Nevertheless, you complained that the thread was lacking in legal authority. I responded that the statements of law were thoroughly basic principles and that they were based on my professional knowledge. C’mon, we’re talking about “negligence” in that thread–that’s as basic a legal concept as there is. (And since you specifically complained about it, my definition of negligence came straight from Black’s Law Dictionary, as I cited in that very post.) Interestingly, you didn’t ask any of the pilots in the thread for cites, but that’s your perogative, I guess.
So my question to you still stands: Do you have the balls to dispute any legal statement I made in that thread, or did you just wake up on the cranky side of the bed this morning?
Also, FY everybody’s I, Dinsdale’s assumption is correct: I’m a he.
I don’t think pond scum can actually read this message board, so I don’t think anyone needs to worry too much about offending them.
I’m kidding, of course. Also, I figured I’d mention that I’m shocked to find out that my college library does not carry Restatement of Torts. Of course, it is a technical school, and management is probably as close to law as it gets around here, but still. They do apparently have Black’s, though, so they’re not entirely useless.
And for the record, minty green probably could have been more polite, but certainly didn’t do anything worth the invective heaped upon him in the OP, IMHO. Some people just like to be offended by lawyers, I think.
Well I’ve been following and contributing to that thread. I can tell you that it’s been surprisingly nasty from the start. Everyone is taking pot-shots at everyone else, mostly just for disagreeing with them.
My assessment: mg’s summation of the legal question was accurate and not really subject to dispute w/o cause. Dinsdale did, as an aside, almost, imply that mg’s comments were irrelevant or worse; there was no good reason (logical or otherwise) to do this. mg decided to get snippy about it, Dinsdale decided to get snippier, and so on.
In short, I believe you committed the error of trying to have it various ways at various times, while shedding little light on the issues at hand. You oversimplified certain legal principles, suggesting (to me) that you believed a particular outcome (non-liability of the pilot) was appropriate. Then you generally state that we do not know the facts. Without which we have no hope of determining whether the pilot was negligent. So where do you stand? What did you add here?
My initial post was prompted by the simple fact that I thought many posters (not you in particular, tho I was not overly impressed by you “citations”) were being unfair in their criticim of mouthbreater and his/her position. What subsequently ticked me off was that I took pains to post in a very measured manner, and you responded with insults and a tone of superiority. Maybe I was too thin skinned. That is possible. But the fact is your recommendation that I educate myself (knowing nothing about my education) and subsequent insults concerning my requiring a cite for the shape of the earth, were sufficient for me to conclude, “Aha. Here is a poster I never took notice of before. But now I have, to the extent that he seems to be an asshole.”
Here follows some tedious shit most of you will wish to skip.
As a starter, no one has presented any statutory language, from Ga or anywhere else, concerning the right of aircraft in distress to use roads. I find it hard to believe aircraft are given unfettered right to land on expressways or other public places and absolved from any resulting damage as suggested by some posters. But I clearly stated that I was ignorant of this area of the law. No one has seen fit to educate me as yet.
Your initial post was:
Well, now you certainly do not intend to suggest that specific intent is required for criminal liability. And you describe recklessness as “relative.” You think that adequately sets forth the legal standards applicable to this situation? I don’t. Presumably you have written enough standards of review, statements of controlling law to know that such things are not entirely objective and value-free.
I believe your presentation provided inadequate explanation to be of value in a non-legal forum. You acknowledge that you are simplifying “a little bit.” I disagree. You are simplifying a whole hell of a lot, to the extent that it would be misleading to someone who lacks your education and specific vocabulary.
Then you cite a Texas state statute concerning necessity. What effect does this have on a Georgia case (presuming litigation would take place in a Ga st court)? Do you assume everyone here knows that necessity is pled as an affirmative defense and what that means?
You subsequently discuss the need for negligence. Good point. And I don’t believe you said anything grossly incorrect. How I believe you erred, however, is in oversimplifying the issues. For crying out fucking loud. Black’s Law Dictionary? That might be where an ignorant would begin his search. I hope he would not end it there.
What is negligence? The only guidance you provide is a reasonably prudent individual. Do you believe everyone on that post shares the same image of who that might be?
So I try to provide a little framework in suggesting the requisite elements for negligence. You suggest I am in error, but your correction is only that I did not provide enough specificity, distinguishing between proximate and actual cause. Please. Is that discussion required for in this thread? For crying out loud. Next thing I know you’ll be talking about firecrackers and falling scales. So here you go from your previous oversimplification, to unnecessary specificity, in an attempt to impress us with your vast knowledge to which we must defer. Sorry. No.
Your practice in this thread was to simply toss out terms, without applying them to the few facts we know. That, IMO, was somewhat misleading. Your discussion of the need for negligence provides little guidance in the debate at issue, because we have no idea whether or not this pilot was negligent, a fact you acknowledge, but IMO afford secondary emphasis, in several posts.
You ask me to criticize your citations. Well, howzabout giving us one for the Cal case. (Not that I particularly feel like logging on to Westlaw to research this matter. Nor do I believe this is necessay for the level of discussion here. Please don’t interpret this thread as an invitation to research and brief this matter, because I certainly don’t intend to.) But how’s this for a start. Those are some pretty extreme facts. Alter any of them in the least, or even present those facts to a different decision-maker, and you could easily get an opposite outcome. The Cal.S.Ct. decision upholding the specific lower court decision in that specific case was providing no guidance as to different fact situations. So all we are left with is “no negligence-no liability.” To keep beating the deceased equine, this says nothing about whether or not there was negligence here o/b/o the pilot.
In sum, I believe you oversimplified many aspects of this extremely complex case. Then in other instances you intentionally threw out, without explaining or applying, terms of art in an attempt to illustrate your superior knowledge. Moreover, I believe in a tragedy such as this, our legal system (both criminal and civil) is wonderfully equipped to determine what happened, and who should be held responsible to what extent. You may disagree. Fine. Remind me if I ever need a lawyer in Texas not to look you up.
You come off with this smug patronizing attitude, perceiving implied insults when none were intended, inviting me to educate myself, and acting as tho we must defer to your partial and selective presentation on this issue simply because YAAL. That is what I took offense with. And this is common of too many (tho not all) lawyers.
For crying out loud, VarlosZ! I “as an aside, almost, implied” something? Man, I have been wasting my time here the past several months if I have failed to convey my desire to (especially in GD) express myself clearly and directly. Please, folks, if you think I am “almost implying something as an aside,” ask me without insults. I would like to think that in the few instances that I have directed insults at specific individuals, they have been aware of the fact.
Yes, perhaps I could have phrased that a bit more clearly. You did not “almost imply something as an aside.” You did imply that mg’s comments were irrelevant or worse, but you did so “almost in the manner of an aside.” The placement of commas in my first post suggests as much, but I can see where it would be confusing.
Of course, you’re right that this does not necessarily constitute an insult, and in this case I don’t believe it did. You were merely stating your doubts about the validity of mg’s authority and/or assertions on the matter. It was a little thing that both parties blew way out of proportion.
It’s o.k. folks, nothin’ to see here. Move along. . .
Dinsdale, it appears that you’ve simply taken offense at my discussion of the legal standards, then jumped to baseless conclusions about what I think about the merits of any tort suit against the pilot. I never stated that there are no grounds for suit against the pilot. But the pilot is not, as a matter of law, liable for the death of the driver merely because she was flying the aircraft. Tort liability (generally) requires negligence, and negligence is determined from the facts of the case. Nobody in that thread has sufficient basis to make an informed judgment as to that pilot’s negligence or lack thereof, because there are undoubtedly many relevant facts that we simply do not have on this board.
Truly, I am a horrible person for not posting a cite on a subject I never even discussed. :rolleyes:
Pure genius. I say that “recklessness” is relative, i.e., dependent upon the circumstances. You respond that it’s not relative, because “such things are not entirely objective and value-free.” Ow, I’m bleeding here.
I cited that statute, as I stated at the time, because I had easy access to it and it illustrated the general point I was trying to make (which it still does, in the criminal context). If you think the fact that it’s an affirmative defense makes a crucial difference, why don’t you make that simple point instead of whining about my citation? Or even better, show everyone that Georgia has no analogous defense.
You think Brian Garner, Editor just pulled that definition out of his rectum? It comes from long-standing case law. Feel free to find a court employing a substantively different definition. I assure you, that is an eminently fair representation of how American courts–including, I have no doubt, Georgia–define negligence. The burden’s on you to either prove otherwise or shut up. The definition of negligence is exceedingly simple, but the application of the law to the facts is virtually always a judgment call for the jury.
Actually, Mrs. Dinsdale’s mnemonic describes the elements of a tort. “Negligence” goes to the duty-related prongs of the tort requirements, in that everybody owes everyone else a duty of “due care.” Again, that’s a fairly irrelevant quibble, but one that makes me less impressed by your legal arguments.
I don’t think I did this, but I’ll let everyone else judge for themselves.
I’ll be happy to provide a cite when I get home tonight and have my Torts casebook handy. But you missed the point entirely if you think I was citing that case for the proposition that the pilot is not liable in damages. Read that exchange between me and zwaldd again, and you will see that I was making the point that the pilot is not civilly liable unless she was negligent. I never, not once claimed that she was not negligent, even though it is a reasonable position to conclude from the incomplete facts that she was not negligent. As you may have noticed, several people in the original thread argued that she was not negligent at all. You wanna cast aspersions on their status as multicellular organisms?
So where did I say otherwise?
I never asked anyone to defer to me because I was a lawyer until you wandered into the thread and implied that I didn’t know what the fuck I was talking about. And you can’t understand how I would take that unsupported implication as an insult? Sheesh.
Good god, Dinsdale, if this is the best you’ve got, why did you take it to the Pit in the first place?
And to mouthbreather, VarlosZ, thanks for the kind words. It was/is an interesting thread, and I enjoyed participating.
Just in case Dinsdale still thinks I’m making it all up, allow me to provide some citations from the Restatement (Second) of Torts. For you non-lawyers out there, the Restatements are put together by the American Law Institute. The rules put forth in the Restatements are designed to summarize the law of the various American jurisdictions, and courts frequently refer to them when making their decisions. I have no reason to beieve that Georgia law differs substantively on the following points:
Section 283: Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under the circumstances.
Section 291: Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outhweigh what the law regards as the utility of the act or of the particular manner in which it is done.
Section 295: The fact that the actor’s only alternative is a course of conduct which involves an equal or greater risk of harm to a third person is a factor in determining the reasonableness of his conduct.
Section 296: (1) In determining whether condict is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action. (2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.
The winner is DINSDALE!!!
(For the non-lawyers, the Palsgraf case is one of the cases that gives almost every first year law school student headaches)
As for the OP, which is to say whether the pilot is liable, while MG is correct that:
For non-lawyers, “as a matter of law” means any other facts would not change the outcome.
However, I would like to say that I doubt strongly that in the situation set forth in the OP, where a pilot lands on a highway, that the pilot would not be liable as a matter of law.
And what does that mean, students? Yes, it would be a jury question! And I don’t see enough facts in the OP or the links to decide one way or the other. I would want day and night aerial photos, eyewitness testimony, and lots more if I was sitting on the jury or if I were the judge in a bench trial.
See ya 'round the boards, Dinsdale. No hard feelings, I hope.
And your post makes me realize that I should have been clearer in that sentence, 2nd Law. It would have been clearer if I had phrased it this way: “The pilot is not automatically liable for the death of the driver merely because she was flying the aircraft.” She certainly is not not liable as a matter of law, if you’ll forgive the horrible double negative.
I haven’t been frequenting the boards much the past few days.
But, in case you missed it, I’m agreeing with MG. I don’t think the pilot is automatically liable with the given facts, or automatically not liable.
Now if you’ll pardon me, I’m still having first year flashbacks due to the Palsgraf reference.
I haven’t been participating in the Great Debates thread because aviation law is not a subject I know much about, but I have been following it, and I think MINTY has been mostly correct in his analysis. Having looked at the subject a little more clearly this morning, I still think that; but it does appear that MINTY IMO does not know enough about the subject to be espousing on it with such assurance. The following may or may not be quibbles; judge for yourselves:
MINTY said “Are you asking why she is not criminally responsible for the driver’s death? That’s easy, from a legal standpoint: the pilot did not have the necessary mental state in order to have committed a crime.”
In fact, lack of intent (or “the necessary mental state”) would not necessarily be enough to remove the threat of criminal charges; gross negligence is criminal in many jurisdictions and negligence does not turn on intent.
MINTY cites the Texas statute on necessity in the GD thread, and then says in this thread “Or even better, show everyone that Georgia has no analogous defense.”
FWIW, Georgia does not appear to have an analogous statutory defense. And you may align me with DINSDALE in dismissing statutes from one jurisdiction as illuminating much of anything on the law in another jurisdiction. Discussions of the common law may extend over jurisdictions; discussions of statutes (unless we are talking about uniform acts, like the UCC) generally do not. The statutory law in Texas has nothing to do with how the matter might be handled in Georgia.
MINTY said “Actually, the pilot will not be liable in tort at all unless she was somehow negligent in a way that caused the collision.”
This is apparently not necessarily correct. In fact, under the Restatement (Second) of Torts, which MINTY has cited several times, owners and operators of aircraft are to be held STRICTLY LIABLE for damages sustained on the ground. Now, it is true that this rationale is based on the outdated theory that aviation is an unreasonably dangerous activity, and it is true that a few jurisdictions have declined to apply it and said instead, as MINTY says, that general negligence principles should apply, but since MINTY cites the Restatement, it seems to me to be reasonable to expect him to know what it says on this subject. (For anyone who cares, the exact citations is the Restatment (Second) of Torts sec. 520A.) The existence of this line of authority means that MINTY really cannot say so confidently, as he has, that “no negligence = no liability.” The fact is that we don’t know this, because we don’t know if Georgia would accept or reject the old “strict liability” standard.
In addition, there is apparently some question as to the applicability of the doctrine of res ipsa loquitir (“the thing speaks for itself”), on the grounds that planes do not just fall from the sky unless someone has committed negligence somewhere, be it in piloting or maintainence. Application of this doctrine would mean that the plaintiff would not have to show that the pilot was negligent; rather, it would be up to the pilot to show that she was not negligent. Again, the application of this doctrine is not universally accepted, but it ought to at least be acknowledged that it exists and might apply. (For anyone who cares, citations on aircraft-to-object-on-ground collisions may be found in Strict Liability In Absence Of Statute, For Injury Or Damage Occurring On The Ground Caused By Ascent, Descent, Or Flight Of Aircraft, 73 ALR 4th 416; and Res Ipsa Loquitir In Aviation Accidents, 25 ALR 4th 1237.)
MINTY apparently because a little irritated because DINSDALE said “little legal support [has been] provided outside of a statute from a state other than where this incident occurred,” taking it as “contest[ing] the accuracy of my (or anybody else’s) statements of applicable law[.]”
These are two different things. The fact of the matter is that MINTY did not back up his opinion with much in the way of legal citation (no case on point, no Restatement on point, no reference to ALR or other secondary authority on point). That doesn’t mean he’s wrong – he may not be – but it’s a pretty thin basis for him to assert he’s right. “Do you have a cite for that?” is a pretty standard question in the law, and I do not take anyone’s word for the accuracy of the law, on a message board in particular. That doesn’t mean I’m saying someone is wrong; it means I’d like to see the authority on which they claim to be right. I personally am especially adamant that authority be coughed up by lawyers, since they ought to know its importance.
MINTY also said in this thread “Actually, Mrs. Dinsdale’s mnemonic describes the elements of a tort. ‘Negligence’ goes to the duty-related prongs of the tort requirements, in that everybody owes everyone else a duty of ‘due care.’”
In my jurisdiction, “duty, breach, cause, and damages,” are the elements of, and therefore the very definition of, negligence. Not tort, unless you are using those terms interchangeably, which I would not. “Negligence” is not limited only to breach of duty, at least it isn’t here. For all we know, it might not be where DINSDALE is, either.
In short, I think the situation in the GD thread is possibly more complicated that MINTY’S posts would lead many lay-people (and lawyers) to believe. Having discovered that through a minimum of research this morning, I think both MINTY and DINSDALE have over-reacted to each other’s posts. But having discovered that MINTY is not strictly correct – or not totally correct, or not necessarily correct as far as we can discern, given that we don’t know Georgia’s position on strict liability and res ipsa loquitir in aviation accidents – I’m sure he will understand if I, for one, continue to ask for citation from him (and DINSDALE and BRICKER and everyone else) and do not take “IIAL” to be proof of much of anything.
I will be cross-posting the legal side of this to the GD post, in case anyone over there is interested in how the situation might play out.