Sorry, but my response to your “enhanced injury” theory got eaten…
If that car you are operating in an unsafe manner is a 1947 Hudson (OK, make it a Ford - they still exist), do you get to sue because that car did not have seatbelts (or padded dash, or collasping steering column, or airbags, or… (you get the idea)?
If you do, then tort reform is WAY overdue.
How about motorcycles? By design, they can fall over, injurying the rider. Is that an actionable design?
Obviously, the mfg is aware of lay-down accidents - are we to allow any idiot who wrecks a bike to sue claiming defective design?
Where would this end? Boats can sink - are they defective?
re. Cleveland v Piper:
1000’s of taildraggers had been built and flown long before Mr. Cleveland decided to (illegally) fly a modified (was there a 337 signed off for the camera install? if not, the device was not an airplane (FAR part 91)) craft from a closed airport.
Pilots wishing to operate taildraggers are trained to handle a them, and require special sign-off before (legally) flying one.
Assuming that the car meets the minimum safety standards for the jurisdiction in which it is being sold, I would reason that no liability exists minty.
Even here in Australia, where the wearing of seat belts is compulsory, the onus for installing seatbelts in those cars which were manufactured without them (prior to the introduction of compulsory restraint laws) rests with the owner, not with the manufacturer.
I would assume that in jurisdictions where seatbelts are not part of the minimum compliance standards which vehicle manufacturers must meet, the purchaser assumes any risk inherent in the vehicle not being fitted with seatbelts. I would further assume that the owner’s failure to enhance the safety of his vehicle by installing seatbelts could be interpreted as further evidence of willingness on the part of the owner to assume the risk of being thrown through the windshield in the event of a collision.
I am assuming that there is nothing about the design of this hypothetical car which would cause the projectile driver/passenger a greater degree of injury than would be sustained in a similar collision in another vehicle without restraints and about which the purchaser could not reasonably be expected to know.
Not always true in the US. Meeting minimum standards does not bar someone from suing you and claiming that you should have taken more care.
Happyheathen Did you read my earlier post? It sounds to me like you want a contributory negligence rule. This used to be the law in most jurisdictions, according to Minty it remains so only in VA. (My source, Proser on Torts, 10th Edition p. 598 note 2 says that Alabama, Maryland, VA, and NC all still use contributory negligence, not sure why Iowa popped into my head earlier. This may no longer be good law, but that was my authority for my first post on the subject)
Either way, there are alot of problems associated with this rule, not the least of which is that it is hard to ever find a negligence case in which the plaintiff did not have some role in the cause of the accident. If you adopt a strict contributory negligence rule you will make it damn near impossible for anyone to recover anything.
Maybe what you would like to see is a shift in the alotment of culpability so that a person could only recover if they contribute less than 25% to the cause.
Personally, I think the system works rather well. Given the huge number of cases filed every year across the county we can’t expect that every single one is going to be perfectly decided. I would be hesitant to try to fix something that works well in 99.99% of all cases just to correct a perceived problem in the remaining .01.
Hey, you always get to sue. The question is whether you get to win. And it’s unclear whether you win in those circumstances. It is, after all, basically indisputable that the American auto industry refused to adopt any reasonable safety standards for way, way too long. (Unsafe At Any Speed, anyone?) If the safety feature asserted by the plaintiff was technologically and economically feasible in 1947, and if the safety feature would not decrease the overall utility of the vehicle, the manufacturer’s design is defective. Again, what’s your problem with that?
The mere fact that an industry did not adopt a particular safety measure by no means forecloses tort liability for failure to adopt that design. Industry standards do, however, constitute compelling evidence in favor of the reasonableness of the design, so they’re highly relevant.
If the motorcycle could have been designed to minimize the risk of falling over–without impairing the motorcycle’s utility–and the design was economically and technologically feasible at the time of manufacture, the motorcycle design will be defective. You tell me if such an alternative design exists.
What on earth does the camera have to do with the taildragger design?
What on earth does that have to do with the manufacturer’s choice of design?
So you keep saying. But you never explain why not. We’re looking for legal principles here, whether real or proposed, not random assertions that you don’t like the outcome of a case.
Where the alternative design is economically or technologically unfeasible or would impair the utility of the product. Now, how about you tell us where you think liability for a defective design should start.
Some of them probably are.
reprise, the “minimum saftey standards” in America are the Federal Motor Vehicle Safety Standards, promulgated by the National Highway Traffic Safety Administration pursuant to the federal Motor Vehicle Safety Act. Congress specifically decided that those standards are (by and large) only minimum standards. Compliance with a minimum standard does not prevent a finding that the minimum isn’t good enough.
If you want to know more, the leading U.S. Supreme Court opinion is Geier v. American Honda, 529 U.S. 861 (2000). There’s also a good Texas case on point that I’m pretty familiar with, Estate of Wells v. Great Dane Trailer, 52 S.W.3d 737 (Tex. 2001).
Rhummy, it appears that my memory is faulty. Virginia, Maryland, North Carolina, and Alabama are the four remaining states to follow the old rule of contributory negligence. Maryland, however, does not apply the rule in strict liability cases (such as the products cases we’re discussing here). I’m not sure whether the others apply it in prodcuts cases. In any event, sorry for the unnecessary confusion.
No worries Minty I know they make us read this stuff for a reason.
Anyway, here I am grounding the Tort Reformer’s arguments for them in good nineteenth century law and they won’t even acknowledge me! I get no respect. Butterfield v. Forrester forever!!
If the person is engaged in an illegal activity, does he have less standing?
The regs on what one can do to an aircraft are quite specific - the installation of a camera mount and camera would require the sign-off of a licensed mechanic.
Operation of a taildragger (now nearly extinct thanks to Mr. Cleveland’s actions) requires specialized training.
Everyone interested in learning to pilot an aircraft learns this.
The fact that a taildragger is blind is well known and accepted by the people who know what they are talking about.
In Cleveland v. Piper, the jury did not know what they were talking about, and the judge failed to limit their findings in the matter of aircraft design.
Any attempt to equate the operation of an aircraft with the operation of an automobile is an excercise in failed logic - the level of training and licensing are not equivalent.
As to my opinion of where product liability SHOULD attach:
A reasonable man, competant to evaluate the situation (gee, no shoulder harness, and I can’t see over the nose!) cannot be expected to realize an inherent danger.
If a properly-maintained lawnmower were to throw a blade through a kid’s head because it hit a rock, I would say the design was defective (unless the blade was held in place by a rubber band, in which case I would hold that the user assumed the risk in selecting an obviously deficient design.)
I have a bit of 50% MEKP on hand (long story). This solution will dissolve the cornea of an eye in 4 seconds. Nasty stuff.
Is the seller liable if I, as a competant adult, with a copy of the Material Safety Data Sheet, injury myself?
What if a burglar injures himself while stealing it? Can I blame the supplier (it is stored in full compliance with safety suggestions), or is it my fault the thief opened the wrong bottle?
And, a jury getting to decide post facto if a product is “safe”, after the FAA has certified it as safe is troubling, to say the least.
In your world is anyone ever responsible for the (predictable by anyone with a brain) consequences of their actions?
As for my biases, I have been practicing law in the hinterlands for some 35 years. In that time I have tried cases for defendants and for plaintiffs. Some of the defenses have been on an insurance company’s nickel. I have defended medical malpractice cases and I have tried cases for serious auto accident plaintiffs. I have represented both sides in defective products cases, one in which a farm hand had the flesh stripped from his right arm by a tractor’s power take-off, another in which a farm wife was grabbed by the gears and chains of a combine and literally dismembered. I have had juries give unreasonably high verdicts and unreasonably low verdicts. I have had juries find no liability in strong plaintiffs cases and find liability in weak cases. In the vast majority of cases, however, the jury has done something reasonable. I am pretty well committed to the civil tort system as it works in my State and in the Federal Courts that sit in my State.
That said, this thread started with Shalmanese’s assertion that the civil jury system in tort cases was all screwed up because juries were all too often giving astronomical awards in questionable cases. This contention was illustrated with the notorious McDonald’s hot coffee recovery. That case, and some others, like the woman who got big bucks after tripping over her own kid in a furniture store, are pretty well dealt with in the Stella Awards web site referenced by Papermache Prince. Of particular interest is www.stellaawards.com/stella html which pretty well eviscerates the popular idea of the facts of the case, the jury’s decision, the judgement entered and the ultimate resolution of the case. What it all amounts to is that the standard example of the out of control jury and the need for tort reform that hobbles a jury’s ability to give a big award (in my view the jury’s ability to award adequate damages) is built on a very shaky foundation. An argument based on a lie is likely to be a bad argument.
As far as Contributory Negligence as a bar to recovery is concerned, Iowa abandon the defense some 20 years ago and the legislature adopted Comparative Fault after the State Supreme Court held that the Contrib. Neg bar was unfair, unjust and violative of the equal protection and due process provisions of the State constitution and, since it was a court created rule in the first place was one the court could change. In case the difference is not clear, under the Contrib. Neg. Rule any negligence by the plaintiff that in any way contributed to the plaintiff’s injury was a complete defense, a bar to recovery. For example, if I were going down the street at 40-mph in a 35-mph zone and I were T-boned by someone who ran a stop sign, there is a fair chance that I would have no recovery no matter how serious my injury was if a jury could conclude that my 5-mph speeding somehow was one of the causes of the accident or somehow made my injuries worse. Under the Comparative Fault Rule in the same situation my recovery would be reduced by the same percentage that the jury found was the amount the collision/injury was my fault.
At about the same time the legislature got rid of the Guest Statute which said that a passenger in an automobile could not sue the driver of the car he was in.
p.s. - I could use a different chemistry to accomplish the (as far as most folks could be expected to know) same result - same cost, similar process, etc.
Is a (future) jury to tell me it was wrong for me to choose to use this chemistry?
Even if you are right about every fact you have alleged and this is the WORST case EVER to be decided in the HISTORY of American law, which it isn’t, but even if it were it still doesn’t follow that there is something wrong with the system.
Maybe you would like to argue that cases involving special skills, like being a pilot, should be adjudicated in front of special juries of experts? You seem to have a problem with 12 normal people being asked to decide these technical cases. See, I keep throwing all these ideas out there, not because I think they are right, or good, but at least they are ideas about how to change the system, and not just rambling nonsense about one specific case involving a taildragging plane and a camera. If you think that torts need reform, you might begin by offering some, well, reforms!
Interestingly the comparative fault doctrine that you seem to be so unhappy with accounts for all of this rather nicely. If the plaintiff is substantially at fault for his own accident he will not be able to recover much, if at all, from the defendant. The defendant may also be able to raise an affirmitive defense of assumption of risk, but it is really the same thing as comparative negligence.
The problem with the system is that juries so often are allowed to decide complex issues which are beyond the grasp of the jurors.
In Cleveland v. Piper:
A properly trained and licensed pilot chose to acquire and operate a taildragger, knowing that it is blind, and that is had no shoulder harness.
The visibility and shoulder harness “defects” were obvious to the operator - he still chose the design (to follow the lawnmower analogy, he decided “well, I can deal with the rubber band thing”). The pilot then goes to extraordinary efforts to modify/load the aircraft.
He then attempts to operate from a closed field, against the wishes of the owner of the field. NOTE! this is NOT the same as backing out of a parking place after the garage attendant hangs out a “closed” sign.
A jury is then allowed to re-write the rules of aircraft certification - it asserts (with Minty’s blessing) that IT is the ultimate authority as to what is an acceptable aircraft design.
I once heard a figure of $50,000/seat for product liability insurance for general aviation airplanes - from a sales rep for a mfg of “build-it-yourself” airplane kits (which was why the kit mfg. did not carry liability insurance)
[sub] just noticed that Greyhound is being sued because some nut stabbed a driver while the bus was in motion - obviously, it was Greyhound’s fault that a loco got on board, stabbed the driver, AND the driver lost control of the vehicle, resulting in the death of whoever[/sub]
ENOUGH about the plane, what do you want to DO about it? If you had a magic wand, what policy would you put in place to prevent such things in the future?
Heathen, I don’t understand how you think anybody can possibly respond to your repeated reference to the facts of the Cleveland case. Random recitation of facts is not a proposal to change the system. Just what the heck is it that you’re proposing? Rhummy has offered all kinds of proposals that you might at least have the courtesy of acknowledging. Instead, you just keep blathering on about things that would certainly have been considered by the jury, without telling us what the heck they mean we should do to the system.
The problem with the system is that juries so often are allowed to decide complex issues which are beyond the grasp of the jurors.
It is the job of counsel to render the complex case intelligible to the lay jury by the presentation of articulate expert witnesses, the use of hypothetical questions, the presentation of demonstrative exhibits and generally by the effective and sometimes imaginative exercise of the skills of advocacy. A skilled practitioner should be able to make the most complex and technical concept understandable by a lay jury.
One of the problems is that is sometimes serves the ends of one of the parties to keep the facts and concepts obscure in the hope that a confused and indecisive jury will throw up their hands in confusion and conclude that they just can’t come to a decision. Usually that is a tactic employed by the defense.
It may be that in happyheathen’s airplane case the hiding the ball tactic backfired and a jury which was deliberately flim-flamed decided to take it out on the flim-flamer. That a trial tactic did not work is hardly a good reason to abandon a method of dispute resolution that has evolved over the centuries and which meets the needs of the community is the vast number of disputes.
_
Plaintiff’s Attorney: Your honor, the defendant’s vehicle was defectively designed because the design causes the vehicle to explode in a massive fireball when it is driven for more than 30 minutes at a time.
Defense Attorney: Your honor, I would refer the court to the treatise of Happyheathen on Torts, wherein it is stated that “A reasonable man, competant to evaluate the situation, cannot be expected to realize an inherent danger.”
The Court: In that case, let’s hold a trial next Tuesday to determine whether the danger was inherent and what a reasonable man would expect from the vehicle. That, and damages. Thank you, counsel.
Plaintiff’s Attorney: Boy, I love Happyheathen on Torts.
Defense Attorney: Damn you, happyheathen!
Now, on to assumption of the risk. Why on earth do you think that the child in your example above has assumed the risk of having his head split in two by a lawnmower blade? The kid isn’t the user, isn’t the purchaser, and darn sure didn’t sign a written waiver assuming the risk that some other idiot’s crappy lawnmower would throw a blade? Think your examples through a little but before you post them.
I think it is a worthy debate topic. Let’s take two examples of cases actually tried, the “MacDonald’s” case in Texas and this week’s $28 billion California tobacco verdict. Both were jury cases. We know about them both through media reports, usually reports that take less than 1 minute to read or watch. In short, they are summaries told by someone who was writing a half dozen other stories at the time. They might have simply cribbed their story from the press release of the corporate loser.
The juries in each case have taken days to examine the actual facts entered into evidence, and then there are other facts the juries never consider. (The coffee lady originally offered to settle for around $500.) MacDonald’s coffee was 190 degrees, 30 degrees hotter than competing chains. This contains far more kcals of energy than 30 degrees would indicate to the layman. MacDonald’s does this to have a competitive edge so the customer’s coffee stays hotter a lot longer. However, did you now that over 110 degrees water can scald you? That some states prohibit plumbers from setting water heaters/boilers over 130 degrees for fear of burning people in baths and showers? That overheated water (which coffee mostly is) can be so hot that it liquifies the skin (3rd degree burns?). That MacDonald’s knows all this and knew it when they made their coffee hotter anyway? Did you know that the general public does not know this information, and that MacDonalds does not indicate in any way that their coffee product is substantially more dangerous than their competitor’s product? Did you know that the lid was not securly on the coffee cup handed to the little old lady in question? Did you know that she held it between her legs and it spilled because the lid was not on securely and gave her 3rd degree burns in her private parts? Did you know that the judge had the power to reduce the jury award, and did so? Did you know that 89% (sorry, not cite) of all judgments are never collected? Did you know that it probably cost little old lady and her attorneys about $100,000 to put on the case out of pocket because MacDonald’s insisted that they had no liability and wouldn’t take the initial demand. Did you know that companies count on the fact that most people will not hold them responsible if it means they must advance tens of thousands of dollars? IIRC the final judgment was reduced to about $600,000 in the MacDonald’s case from the original several million. Oh, and the jury had a lot more facts than I did.
The tobacco case for $28 billion. As much as I love juries, even I have to say that this one goes too far. The judge will probably reduce the award. But tobacco companies make the plaintiff spend hundreds of thousands of dollars to go to trial as a deliberate policy (I have this from a lawyer that used to represent tobacco companies) in scorched earth litigation. And the tobacco companies knew the risks, sold an addictive product and then told reassuring lies about it. Not everyone reacts to addictive substances the same way. It has a far more addictive effect on some people than others, and the nature of addiction highly damages rational choice for those addicted. Such a large verdict, however, damages the company to such a degree that other injured people will not be able to recover. While their conduct is despicable, fraudulent, oppressive and malicious, and just as certain to cause painful, lingering deaths as OJ Simpson caused quick and gruesome deaths, $28 billion is not rational, and should be reduced. Punitive damages are ordinarily measured by not more than 10% of the culpable defendant’s wealth. When the wrongful conduct amounts to murder, as in the Simpson case, all bets are off and the jury can award pretty much anything they want.
I think key discussion points for future public policy are:
How is pain and suffering measured?
What is the value of a life, or the life in question?
How much do you punish the defendant?
How do you take into account the costs of Plaintiff in bringing the case? (Attorney’s payment and expert and transcript type costs)
Juries currently decide based on each case what to award for pain and suffering.
Juries decide this depending on the particular life, and how much the survivors would have been receiving from daddy’s paycheck. Rich people get more. Is that right?
Punishment is not ordinarily part of the civil law. Conduct must be extreme. Is it constitutional to not have criminal “beyond a reasonable doubt standards” (yes), and why does the Plaintiff get the money? Many more questions here.
In the US of A, unlike the UK, each side bears its own attorney fees unless there is a statute or contract provision that shifts fee paying so that the winner can recover fees, such as a race discrimination case. Others in this thread have commented.
What exactly is a ‘tobacco company’? Cigarette manufacturers don’t manufacture tobacco, they just turn it into cigarettes. Is tobacco any more addictive or carcinogenic when it leaves a cigarette factory as when it enters?
Why aren’t the farmers who grow the tobacco, the government which legalizes and taxes it, and the retailers who sell it being held liable? Most responsible of all is the consumers, since the market they create guarentees that tobacco will be grown, made into cigs, and sold at stores. By whom hardly matters.
All these parties together constitute the ‘tobacco industry’, so why are cig makers singled out?
sqweels Would you have people sue US Steel for providing the metal to make a Pinto? The cig makers are singled out, rightly or wrongly, for several reasons;
They have the money,
They are readily identifiable and they have been around a long time. Farmers are all over the place, and they come and go. People buy from different retailers all the time,
You can’t, usually, sue the government,
They have the money,
You need some type of cause and effect to establish liability. It would be hard to prove that Leo Burnett is responsible for some one’s cancer,
It’s an interesting thought, however, to target tobacco farmers instead of the cigarette manufacturers. If you really want to drive tobacco out of business through litigation, the farmers have a lot fewer legal resources than Philip Morris. Hmmmm . . .
(Note: I have zero sympathy for either cigarette manufacturers or the tobacco farmers who knowingly produce the carcinogenic product in the first place. But given the unique social status of tobacco, I would favor general exemption from tort liability and corresponding regulation of the industry. But that’s a policy choice that is properly the responsibility of legislatures, not the courts.)
I never said the child assumed risk - I said that, given an obviously deficient design, the person choosing to use the product assumed the risk involved.
IOW - the operator of the mower would be liable, not the manufacturer - because the reasonable man (yes, oxymoron) should have known better than to use a mower whose blade is secured by a rubber band.
Note, that, had the blade become airborne because the blade was not properly annealed, THEN the mfg is liable - the “reasonable man” cannot be expected to assess the metallurgical properties of a mower blade.
Your “car explodes afer 30 minutes” case is exactly what I am talking about - unless that mythical “reasonable man” could be expect to foresee this event, the mfg IS liable.
(what if there is a large, red read-out labeld “Time Until Explosion” ticking down in full view of the driver? never mind…)
again - when do I, as a competant adult, get to decide to take a risk?
And, there will be no signifigant change in these awards until juries are eliminated, or the selection criteria is drastically changed.
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