heathen You can assume any risk you want. If you want to mow your lawn at night when you can’t see what you are doing, you can do that. If you run over a rock, that you would have seen during the day, while doing so and the blade breaks, and it hits the neighbor in the head, you and the neighbor will have a hard time going after the manufacturer of the mower. The neighbor, however, will likely nail your ass to the wall. Keep those insurance premiums paid!
By mowing the lawn in a reckless manner you have created the majority of the negligence in the accident, and even if the blade was weak, you will probably still loose against the mower company. These assesments are built into the system.
I would submit that there is no such thing as an “obvious deficient design” in a commercial product (barring Dan Ackroyd’s “bag of broken glass” children’s toy). I, presuming I am a reasonably prudent person, make the following reasonable assumptions:
A manufacturer wants people to purchase its products, and therefore will not sell a product that is defective, because if they do, people won’t buy them; and
A manufacturer employs engineers who know a lot more than I about such things than I, a layman.
If I were to apply my layman’s knowledge, I’d want everything I bought to be made in its entirety of solid 'Merican steel. But you know, these engineers think that plastic composites, aluminum, and titanium are, in many instances, better materials to use. If a lawnmower manufacturer attaches the blade with a rubber band, the appropriate assumption is that the manufacturer has tested their product and determined that the rubber band possesses the appropriate strength to keep the blade attached.
And, of course, there is the other purpose of products liability - to deter manufacturers of products from producing “obviously defective products.” Whether or not the reasonably prudent person should or should not know that a rubber band is insufficient to hold a mower blade on, do we want such dangerous devices on the front lawns of suburbia?
Under your theory of liability, the manufacturer that tries, but doesn’t get it quite right is the one who is held liable, but the manufacturer who could care less gets off the hook. Your plan would result in an increase in defective products, because it would be the safer course of action by the manufacturer.
Assumption of the risk =! Assumption of the liability.
I can assume almost any risk of injury, but I can only assume that risk for myself (and perhaps my heirs). What I cannot do is assume someone else’s liability to a third party in a manner that extinguishes that someone else’s liability for their own negligence or other actionable conduct. The manufacturer of the manifestly defective lawnmower and the consumer who knowingly operated it anyway will both be liable in tort for the injuries to the third party, with their extent of their liability to be controlled by the jurisdiction’s comparative responsibility system.
Even then, the manufacturer would be liable to third parties harmed by the explosion, and probably also to the consumer (diminished, of course, by the consumer’s own comparative responsibility). The basic principle here is that you don’t get to unreasonably market manifestly unsafe products just because some people are stupid enough to use them anyway.
Anytime you want, so long as you’re not harming or threatening to harm anybody else. But that does not speak at all to the issue of when other parties will be liable for unreasonably creating that risk.
So, if I can reasonably forsee that someone could be injured by a condition I caused or allowed to continue, I am liable for any damages arising from that foreseeable event?
This seems to be the thinking - if somebody loses control of their car and pins me against a 7-11, I get to sue 7-11 because they could have seen that somebody could run me down on their property?
or, involving an adult:
Should I tear out my curb because someone could trip over it?
Yes, the mfg of a mower so constructed would not get real far in the market. And I wouldn’t mind seeing him nailed on some theory. My point remains that an adult should be responsible for their actions - you run over a kid at the 7-11 you pay. Not 7-11.
And, at the risk of being accused of harping - in Cleveland, the “defect” (limited visibility) WAS obvious. By that theory Piper was marketing a “obvious deficient design”.
and then there is this:
She tripped over a box. There is no contention that the box was concealed, it (presumably) did not jump in front of her - she tripped over something a reasonable person could have expected to encounter at such a place of business. I fail to see a cause of action - but that is probably why I get “thanked and excused”.
What a great question! As a matter of fact, cigarette manufacturers routinely add all sorts of extra dangerous stuff to their cigarettes. As an example I know of, and was actually advertised, in the 1950s Kent cigarettes contained the exclusive Micronite filter. Billions of these cigarettes were made.
What is the Micronite filter, you ask? Well, it’s made of a special mineral called crocidilite, that is especially resistent to heat, and some such. Well, as some of our posters here at SDMB know, crocidilite is one of the six varietys of minerals that have the quality called, yes, you guessed it: asbestos! But not just any asbestos, but cape blue crocidilite asbestos, with extra long microscopic fibers. Crocidilite isn’t more or less harmless like the kind of asbestos found in ceiling flocking of the 60s and early 70s, but is the most dangerous kind of asbestos and most highly associated with mesothelioma, a form of cancer that usually causes death within about a year and half from diagnosis.
I am informed from other sources that all sorts of chemicals like formaldhyde and ethelyene glycol are added to various brands for taste.
Can you assume the risk of these additives when they are not disclosed? I think not.
HH I am still unclear, and maybe I am just not getting it, but what do you want to DO about the problem? Is your problem with “reasonably foreseeable risks” in general or just in these cases?
IOW, Are you saying people should never be liable for reasonably foreseeable risks, or are you saying that in these two cases, based on the 12 word synopsis printed on an expert witness’s web page, there should not have been liability because the injuries were not foreseeable?
If people are not going to be liable for RFR, don’t you think the world is going to be pretty dangerous?
Case one, Suppose I am a contractor putting in new sewers and at night I don’t cover the holes in the street or mark them in any way. Person falls into hole and dies. I am not liable, under the Happyheathen Doctrine even though I knew there was a substantial probability that someone was going to fall and be hurt.
Case two, I as a convience store owner place a pay phone on the wall outside my front door near the parking lot. I know that people on the phone will have their backs to the parking lot. I take no action to protect those people. I also know that cars often drive into the front wall/windows of convienence stores. Under the Happyheathen Doctrine no liability?
Once again, happyheathen proposes no principles of law, choosing instead to recite random facts. Maybe I should start reciting random facts where tort liability is indisputably fair and just, without ever bothering to explain why. I mean, at least then we’d both be in the same realm of meaningless data points.
I’m not impressed with the safety-engineer cite, by the way. Frankly, I’m not about to accept at face value the case descriptions of a plaintiff’s expert witness on his own resume, especially when none of his descriptions are verified through other information and none of the cases appear to have been appealed.
My problem is that these cases find liability where I see none.
In your cases:
The contractor is liable - a reasonable person can safely expect that the sidewalk will be there, or the presence of a hole will be marked.
Counter-Q: what if some kid steals the barricade 10 minutes before the unsuspecting pedestrian steps into the hole? I say the kid (actually, parent/legal guardian) is liable. I suspect that a jury would still find the contractor liable (assuming the contractor has a more attractive insurance program)
As to your second scenario: BINGO!!!
As a competant adult, I can assess the danger of using a phone adjacent to a parking lot. This is a no-brainer. If I choose to use such a phone, I assume the risk of being hit. (I also do not turn my back on traffic, but maybe that’s just me)
Again, my position:
The rule SHOULD be:
If a competant adult engages in an obviously dangerous activity, that person is solely responsible for any/all consequences.
This rule of “reasonably foreseeable” has pretty much destroyed general aviation, and has generally raised the cost of business insurance (go shopping for a ladder).
Also, the courts need to limit the discretion of juries - a sympathetic plaintiff is not necessarily correct, but an crippled kid can sure rack up big bucks.
And then we can talk about limiting legal fees - yes, I know, but there is nothing like going after the obvious bad guys.
Lawyers who solicit business by bragging about settlements are going a bit beyond propriety, and when they begin comparing their “conquests” - well, justice should not be measured in dollars, should it?
So:
Adults are big people, and assume the “foreseeable” consequences of ther actions.
Juries limit themselves (or are limited) in the areas they address (can we discuss jury findings completely at odds with all available evidence?)
Lawyers lose the financial incentive to make mountains out of molehills.
(and, bonus point: should there be a lot more legal malpractice cases than there are, based on the number of tort cases?)
I thought “assumption of risk” WAS a legal principle, and the discussion was the relative weight that SHOULD be given to it v. RFR.
I provided specific cases because you seemed to be unimpressed by general assertions.
Sorry you found the cite lacking - I thought it good for the subject at hand. Perhaps I should have added “assuming this expert witness isn’t lying” prior to the quotes?
All right! Now we are getting somewhere, a rule of general applicability! I think we can agree that this rule is now in effect, though I think we might disagree about what an obviously dangerous activity is.
Doh! Now we are back to talking about ladders and planes! We were doing so well.
Ok, how do you purpose to limit the discretion of juries? Would you like juries to find liability but leave it to the judge to determine damages? What if the two parties pre-determined what the damages were going to be, and then the jury was left to find liability without knowing how much it would cost either party. Would this make the jury more fair?
Ok, do you think the contingency fee system for plaintiff’s lawyers is bad? How would you replace it?
Seems like a good way to measure it to me. Do you have another proposal? If I were a plaintiff in a slip and fall case I would want an attorney who had been successful in this area of law before. How should attorneys convey their success to the public without referring to cases they have won?
But, Plaintiff’s lawyers are working on speculation, they win some, they loose some. The only way they can survive is to make more money on the cases they win than they spend on the cases they win and loose combined. How do we only compensate them on the cases they win and expect them to take any cases? In this sense they will always be paid more on the cases they win, but how else can we do it?
I don’t know how many malpractice claims there are. Why do you think the two are linked?
Back to the hypotheticals……
I think that if the contractor can show he placed the cones and was reasonable in his belief that they would not be stolen he will be fine. The law does not require a standing army and barbed wire around every hazard. It only requires reasonable conduct. I think the kid, if he is found, is in a world of hurt.
Well, maybe you think that way, and that is great that you are so careful. The question though is whether a reasonable person would take those precautions.
Now we’re getting somewhere. You might even be on to something if you amend that to read " . . . that person is solely responsible for any/all consequences to himself." So far, you’ve indicated quite the opposite, which is, from the perspective of an innocent third party, entirely unreasonable.
Would that apply to defense attorneys too? That is, do I get to tell potential clients about my favorable results? Oh, and how do you feel about the First Amendment, by the way?
Care to elaborate, 'cause I’m afraid I don’t follow you here.
So what happens if a child is hit by a car while using the badly situated phone?
Some years ago a friend of mine tripped over at a car repair yard and suffered major orthopaedic injuries as a result of her fall. The injuries required her to spend many weeks in hospital for nital treatment, during which time she had to pay for alternative care for her severely disabled daughter. Repeated medical consultations indicated a need for repeated major orthpaedic surgery in the future.
Although the car yard was found liable for the accident itself, the amount of compensation was significantly reduced by the fact that my friend was morbidly obese. The defendant’s argued - successfully - that the severity of my friend’s injuries was a consequence of her weight ( factor quite obviously beyond their control) and that they should not be held liable for the full extent of her injuries.
I suspect that these days attempting to limit compensation on the basis of someone’s weight would run afoul of our anti-discrimination laws.
When does “reasonable care” cease being “reasonable”? Must we always factor in the probability that people with diminished visual accuity or hearing impairment will use our products or access our premises? Should factors beyond the control of the plaintiff (such as vision or hearing loss) have the potential to limit the defendant’s liability if it can be proven that they have contributed to either the initial occurence or the ultimate severity of the injuries sustained?
Reprise that is an interesting story, and I am sure Minty can tell you better than I, but here is my semi-lay take on it.
In torts we try to use a “reasonable man” standard because it is objective. If we start down the path of inquiring into each specific plaintiff and defendant’s thought process and condition it gets messy quickly. Having said that, there are cases where we will look to the conduct of like-situated reasonable people. Thus, if a blind person bumps into you, causing you to fall and break a hip, the question is not was the blind person acting as a reasonable person, but was he acting as a reasonable blind person, say if they were walking without a cane or dog.
With someone who is obese you could argue that they need to take special care, do to their situation. Knowing that they are less agile they have a duty to be extra careful in a place like a car yard where there might be things on the ground. Thus, an obese person needs to act as a reasonable obese person ought to act.
If the jury found liability for the defendant, but reduced the award because she was obese, this might be why they did so.
This is futile. In the lawyer business there is a saying: If the facts are on your side, argue the facts; if the law is on your side, argue the law; if you don’t have the law or the facts, pound on the table. Our friend Happyheathen has been pounding on the table from the beginning of this thread. The only thing he has going is an attitude. No amount of facts, law, experience or logic is about to shift him. He is not worth the effort that has gone into this thread. He doesn’t understand the system and he is not about to consider that his view is possibly not perfectly in line with reality. Let us do as Richard Nixon should have done. Let us declare victory and get out of here.
Spavined Gelding, I don’t think that happyheathen is alone in not understanding “the system”. I think very many of us are confused by the application of tort law to public liability and personal injury cases.
While you might be finding happyheathen’s comments frustrating, I can assure you that those of us who would like to understand better this area of the law are finding this debate extremely informative and I suspect that I am not alone in hoping to see it continue.
(no, I’m tired of getting yelled at so I won’t name that C-------- v P---- case)
Did you both go to the same law school?
**Minty - **
I thought I had pointed out:
The operator of the hypothetical mower was liable, NOT the child.
The operators of the automobiles were liable, not the store, nor the persons pinned against the store.
(again, not mentioning that Mr. C-------- was responsible for his injuries)
Did I miss any innocent third parties?
I would suggest the idea of caps on fees - I frankly have no opinion of the various schemes proposed, but the financial incentive must be reduced.
Contingency fees are exactly what I would aim at - I think an equitable scheme could be determined whereby competant representation would be available without creating any more McD’s coffee cases.
How to limit juries - how about not having them? Why are these cases not heard by the judge?
Since judges can set aside and/or direct verdicts, I would suggest more oversight by the judges - telling a jury that their findings cannot be supported by fact or law would be a good start.
First Admendant? love it - yes you can mention your track record - I’d be the first to scream if I could not learn it.
BUT
when people start stating “judgement 4 times previous high in the jurisdiction”, I think we have gone too far.
(remember when lawyers were not allowed to advertise? I sometimes miss that time)
**reprise - **
The person who runs over the kid is responsible. What a concept, huh?
Sorry about your friend’s injuries, but…
isn’t a junkyard kind of the ultimate “enter at your own risk” type of place?
It is, by definition, where pieces of scrap cars belong - wouldn’t a person entering such a place assume the risk of tripping over scrap, getting cut by broken glass, etc? Rhum Runner -
And it is now “extraordinary” to watch out for moving vehicles when standing in a parking lot?! This is somehow beyond what a “reasonable” person could be expected to do?
And you really don’t want me to start on “slip and fall”. We are now to the point that mfg’s must ensure a certain coefficient of friction in their flooring tiles (if said tiles are to be installed in a commercial application). Enough!
and the concept of a “defective” parking space would be funny if people didn’t get sued over them.
happyheathen, I know that you probably have as many shonky car-yards in the US as we have here and that some of them could justifiably be described as “junkyards”. Had that been the case in the particular car repair yard where this accident occured, I have little doubt that the compensation awarded would have been substantially greater.
Interestingly, we have here a victim’s compensation tribunal which distributes funds to those who have suffered relatively minor injuries due to the criminal actions of another. Both the amount of compensation which can be awarded and the fee which a legal representative can charge for preparing the case are capped.
Reprise I forgot that you are in Australia. I am semi-literate on American law, but I have no idea about the specifics of your country’s sysyem, so I apologize for my repsonse to your story since it may not be at all accurate. (It is though, I think, a fair reading under general American law)
Also “car-yard” = “repair shop”? That is what I took it to mean.
I have been consistently (I think) arguing that “assumption of risk” should out-weigh RFR.
I am aware of how tort law currently works - the Q is how to reform it - so, a recitation of how it does work is not germain to the Q of how it should work.
**Minty Green - **
If so many cases are thrown out (summary dismissal and/or summary judgement) are the lawyers filing such cases culpable?
The case of a personal injury suit known to the plaintiff’s attorney to be fraudulent comes to mind - why would this attorney:
a) not have his butt sued off
b) be disbarred
The wider Q: is legal malpractice currently in the state that medical malpractice was in prior to Mel Belli?
In those days, it was impossible to get a Dr to testify against another - Mel found ways to convince a jury anyway.
Are lawyers protecting their own, even when they shouldn’t?
(how’s that for a open-ended Q?)
(and sometime I’ll count the number of times I typed “assumption of risk” in this thread…)
