This doesn’t make sense. How can you assume the risk of a hidden defect? How can I assume a risk if I don’t know that the coffee is at a temperature that will cause third degree burns, but the seller knows this because they burned people in the past? I can I assume the risk that the manufacturer made an SUV that was too narrow and too tall and that tires likely to separate were installed unless the manufacturer tells me these things and tells me what problems their defect is likely to cause.
So, if anyone can explain to me how users can assume the risk of hidden defects, I’d be happy to read the explanation, because it is quite possible that my understanding of products liability law is thirty years behind the times.
Dinsdale, it would be ridiculous to refer to Piltdown Man as an example of a transitional fossil form when you know that the facts do not actually support the example. By the exact same token, it is ridiculous to refer to “the McDonalds coffee case” as an example of outrageous litigation when you know that the case itself does not qualify as outrageous litigation.
Or perhaps you’re confused about the mission of the Board?
IMO, the initial award of (IIRC) $2.8 mill to that plaintiff for her injuries, was outrageous.
Moreover, perhaps I assume too much on behalf of the folk here - or the OPer, but I considered reference to the McDonald’s case was very effective and clever shorthand on the internet - and particularly on this forum - BECAUSE of the urban legend/snopes-esque aspect.
And I guess I was confused minty - I did not recall that the mission of GD was to provide a vehicle for tossing out snotty supercilious slurs. Thank you for clarifying that for me.
That makes no sense. The OPer is attempting to argue that the American legal system is flawed. You are arguing that, in order to make that point, it is proper for the OPer to hold up as the shining example of the flawed legal system a case where the legal system (very arguably) came to the correct result.
Sua
I guess that explains why I so frequently find myself misunderstood! You mean everyone else’s mind does not work exactly like mine? (Thank goodness!) 
[sub] above smilie intended to convey a light-hearted nature, no hard feelings, a lack of desire to go much further on what is - at best - a fairly fine point of questionable merit, and regret over distracting from the OP. As tho that were not all clear on its cute little face.[/sub]
But don’t you see what’s happened here by continuing to refer to and defend the example of “the McDonalds coffee case”? Instead of making or discussing any substantive point, the discussion gets hijacked into full-scale ignorance fighting. There are plenty of people–hell, I’d say most people, though not necessarily on this Board–who still believe that the outcome of that case really was outrageous.
Whether you’re using it as an actual example of outrageous litigation is pretty much beside the point, since it will almost necessarily be received as such. In light of that, wouldn’t it make a heck of a lot more sense to, ya know, find an example that actually supports your proposition? C’mon, it can’t be that hard to find a ridiculous lawsuit, can it?
I can think of a lot of situations where punitive damages are proper even where the plaintiff is partially liable.
Take a hypothetical involving ladders. As we know, ladders have that “don’t step on the top step” sticker, the concern being that ladders tend to tip over when someone steps on the top step. Now, I’ve stepped on that top step many a time - being warned, I’ve assumed the risk of the ladder toppling over.
But what if, due to a design defect, a particular ladder, rather than toppling over, disintegrates when you put your weight on the top step, leaving the main supports exposed to spear you as you fall onto the collapsing ladder, and the ladder company knew of this design defect before they sold the ladder. I am partially liable for having stepped on the top step - but the risk I assumed was toppling, not evisceration. Punitive damages would be appropriate then.
Sua
minty - I rely upon hyperbolic analogies frequently. IMO, it is one thing that makes conversing fun.
For example, if someone mentions a trend to keeping exotic pets - say hedgehogs - I can raise the spectre of giant mutant hedghogs dwelling in NYC sewers devouring unsuspecting city workers. Or I can try to refer to a vacationer in Mexico bringing back an “unusual” puppy. And those can suggest very real concerns about the care of exotics, whether or not NY sewers ever housed mutant alligators, or some tourist brought home a giant rat. At the same time, my responses would create numerous avenues for carrying the conversation onto other planes at the same time. Which I consider part of te fun of conversing intelligently.
Moreover, depending on the specific situation, I may toss out a twisted reference, and see what my listener’s reaction is. If I mention the “McDonald’s coffee case”, I may learn a lot about you depending on whether you respond “that poor lady,” “what an idiot,” “that is what is wrong with our legal system,” or “you know that the actual facts of that case were …”
Sua - of course. Which only means that the phrase replaced by a clever 3-word pop culture reference, requires additional words to include foreseeable damages from the intended use etc, etc.
I do not believe I have ever said that I oppose the assessment of punitive damages in all cases. I am not certain, however, that the awarding of specific dollar amounts to named plaintiffs is the optimal mechanism for assessing them.
But when you do, do you expect your audience to believe there really are giant mutant hedgehogs in the NYC sewers? Of course not.
Well, don’t do that here. The admins frown on “psychological experiments” on the Boards. But, in any event, you aren’t the person who first raised the issue of the McDonald’s coffee case in this thread - the OPer did. And I doubt it was for the purposes of conducting a psychological experiment.
Sua
Randy Cassingham, who produces the This is True e-newsletter, has recently started a Stella Awards newsletter as well. His stated ambition is to not distrubute any of the bogus law cases; see listing of bogus cases here.
minty and sua, I disagree that the McDonald’s case, as it was originally decided, was fair. $3 million is a completely inappropriate amount to have awarded for the damages caused.
But, since I also believe that the underlying foundation behind the lawsuit (i.e. a burn victim seeking damages) was justified, then this case should not be referenced as shorthand for the need for tort reform. In that way, Dinsdale, I disagree with you.
As I said above, real changes needs to come from jury education. We have policies in place to ensure unnecessary litigation doesn’t make it to trial. What we need are 12 men and women who decide that, say, 28 BILLION DOLLARS is not an appropriate punishment to be handed out even punatively.
Minty
ISTR? don’t know that one.
Can’t find the case, but here is a synopses:
Plaintiff operated a sailplane (glider) business from a small, privately-owned airstrip. He used the Cub as a tow plane.
There was a dispute between the owner of the airstrip and the plaintiff, resulting in the owner parking a large van across the runway to prevent Plaintiff from using the strip.
Plaintiff decides to shoot a film for use as a tV ad to drum up business.
Toward that end:
He installs a large camera mount (with camera) in the front seat,
Note: the Cub is a 2-seat tandem design. When flown solo, the pilot occupies the REAR seat.
He then attaches the tow rope to a sailplane (with pilot).
Having burdened the plane in this manner, he attempts to take off over the truck.
He didn’t make it - his head struck the camera mount, resulting in much trama.
In 1953, small planes did not come with shoulder harnesses.
He chose to operate the plane in a really stupid way - he assumed the risk. IMHO.
I believe it was 60 Minutes which did the ladder story - a manufactured recalled being sued because a farmer had set up a ladder on (then-frozed) pig feces. As the day progressed, the feces thawed, the ladder (with the idiot on it) shifted, idiot got hurt. This is somehow a defective ladder?
I learned a hard lesson in an ethics class in college. If you’re going to use an example, or a hypothetical situation to help make your point, you better make it bulletproof or you’ll spend all your time defending your example and none actually talking about your point. We were discussing public aid programs and how someone had been denied food stamps becuase a member of their household owned a new vehicle which had a blue-book value of a decent amount of money. The position of the state was obviously that if they can afford such a vehicle they don’t need support. Several of my classmates took up this banner as well.
I tried to divert this by saying that a good vehicle is a necessity for the household’s breadwinner. My hypothetical situation was something like this. If a person has an 1954 Ford that’s falling apart and costing them more monthly in repairs/upkeep than the payments on a financed new/gently used vehicle would cost. Why should the state encourage them to keep the old vehicle by revoking their benefits if they get a more reliable, and valuable, vehicle?
Of course the point was the household was making the decision which would cost them the least each month and help ensure their stability by providing a reliable means of transportation to and from work.
I ended up debating the value of a “classic” vehicle. The quality of something made in 1954 versus modern vehicles. Apparently the nail in my arguement’s coffin was the testimony of a classmate who had come back to college after a career as a mechanic who said “I’d rather have a 1954 Ford, no matter what the condition, than anything made these days.”
ARRRGGGG!!
So, don’t use the McDonald’s lawsuit as an example unless you want to talk about something the McDonald’s lawsuit was ACTUALLY an example of.
Enjoy,
Steven
On Preview: happyheather ISTR = I Seem To Recall
Just for future reference, it’s a million times more helpful to have the actual facts of an actual case in front of you when you’re talking about how the law applies to the facts of the case.
So what? Did this overweight the plane? Obstruct his field of view? See, this is why we need the real case.
Why not? Again, we need additional facts to evaluate what the heck this means, legally speaking.
But I know what this means. It means that if there had been a shoulder harness in the airplane, he wouldn’t have had his skull bashed in. Whaddaya know, cause in fact and proximate cause have now been fulfilled.
Well yeah, that’s kinda the point of the whole lawsuit, isn’t it? The question is whether they should have had shoulder harnesses, considering their technological and economic feasibility at the time of manufacture and their overall utility to the consumers of the product.
There’s the real problem with your position–you’re missing the concept of enhanced injury. Yes, the pilot probably would have been hurt when he crashed the plane even if it had shoulder harnesses. But if a manufacturer could, through the exercise of reasonable care, have designed the product so as to minimize the risk of harm resulting from foreseaable misuse or accidents, that manufacturer will–and IMHO should–be liable for the enhanced injury to the plaintiff. For instance, if I drive down the highway at 90 mph and crash my car due to the negligence of speeding, I’m gonna get hurt. But I’m gonna get hurt a lot more if my car was never equipped with seatbelts. In such circumstances, the auto manufacturer will be liable for that portion of my injuries that results from not having any seatbelts, minus some percentage for my own comparative negligence (which, if it’s great enough, will actually bar my recovery in its entirety).
Do you have a problem with those principles?
Ah, sourceless anecdotes, the bread and butter of tort reformers. How the heck do you think anyone is supposed to rationally respond to this stuff? We don’t know the basis of the claim, the additional facts of the case, the outcome of the litigation, or a million other things. In the absence of these crucial facts, it is simply unreasonable to expect anyone to draw any conclusions at all about the merits of the claim.
Here is on of the appeals in the piper cub case for those interested in seeing how the facts of the cases like this get misrepresented to make a point.
The plane was built in 1970, not 1953.
It wasn’t just seatbelts, the plaintif alleged a faulty tail wheel design resulting in poor visibility.
The award was reduced to 1m
The asserion that he was operating the plane in a manifestly unsafe manner doesn’t seem to be based in fact.
Is there a missing link there, Ned?
Shalmanese, I think that recent Australian awards such as the award of $3.75 million to a swimmer who dived into a sandbank at Bondi and the award of $49,000 to a drunken lout and $18,000 to his mother adequately demonstrate the need for tort reform in Australia without even considering some of the absurd awards made in cases overseas.
I’m sure Narrad or Princhester will correct me if I’m wrong, but I can’t recall any state in Australia which has juries in civil cases.
Unless our laws have changed radically, the court is required to consider contributory negligence by the plaintiff when awarding damages. It used to be common for courts to name an award amount and then adjust it to reflect the contribution of the plaintiff to his own injuries. I’ll admit that we don’t often hear of that occuring these days - possibly because the tab is ultimately being picked up by an insurance company in most high profile cases.
I think we are moving towards getting the balance right, although I would like to see our courts make far more use of punitive damages in cases where negligence has been clearly demonstrated. I would also like to see less use of administrative sanction, which render a lot of breaches of those laws meant to ensure our safety invisible to the public.
Um, taildraggers are blind over the nose when in 3-point configuration.
This is not news.
The fellow had hour many hours in type?
The plane crashed into an obstacle placed on the runway specfically to prevent his use of the runway.
Just how “manifest” must the incompetance be?
The case in Q is Cleveland v. Piper Aircraft (NM, not AZ - sorry)
from
http://www.netvista.net/~hpb/cases/piper-1.html
The jury decided that a taildragger is defective by design?!
And this was allowed by the judge?
yes, we really need a few changes…
Yes, it is perfectly conceivable that a taildragger could be a defective design. You can’t see very much out of a taildragger when you’re on the ground. That doesn’t do it by itself, of course, but if the risk of injury increases enough to outweigh any benefits of the design (under the technological and economic standards of 1970, the year of manufacture) and the utility of the product, the design will be defective. What’s your problem with that? Note also that this design was NOT found to be defective–that determination was left to the jury at the trial to be held on remand from the 10th Circuit.
And hey, thanks for ignoring my points about liability enhanced injury. I’ll ask again: If your car manufacturer decides not to install seatbelts, will the manufacturer be liable to you when you go through the windshield face first?