Punitive Damages And Tort Reform

[Meadmaker]

There is no such thing as a phone which can be safely used while driving. The science is clear on that.

Exactly. So, what should we, as a society, do about it? Even though there are laws in some places against using phones while driving, we know it will happen, and we know death and injury will result.

Are we willing to take that chance? Do the benefits of mobile communication outweigh the risks? If that's the decision we make, through our laws, I'm not going to hold the companies who provide those means responsible. We knew their products were dangerous. We encouraged them to make the products. I don't think we should then turn around and punish them for doing so.

 

[drkitten]

However, I don't think our system is ideal. I think that we should decide if it ought to be legal to own phones that can be used while driving. If it is, I can't object to a company providing such phones.

I don't think that anyone is objecting to them. People are objecting to them trying to avoid the responsibility for what they provide.

Anyone who likes can provide an inherently unsafe product. They also assume responsibility for the dangers introduced by that product. The more unsafe the product, the more responsibility they assume.

It's like the baked beans in the church basement case. Do we, as a society, want to allow church potlucks? If so, we ought to allow them. If not, we ought to ban them. Perhaps there's a comfortable middle ground where we explicitly, in statutes, demand that potluck goers compensate any resulting sickness with payment of medical bills, or a 10,000 dollar payement to next of kin who die as a result of the Tuna Surprise.

We already have those rules. We explicitly, via case law, demand that potluck organizers compensate anyone injured in proportion to their degree of responsibility up to the amount of the actual damages -- and that anyone found to have willfully abrogated their responsibility (which is much harsher than merely being negligent) may also have to pay punitive damages as well.

And that's why only 4% or whatever it is of cases involve punitive damages. But even actual damages may be more than someone is willing to pay, and so those people (and halls) are acting responsibly by refusing to allow people to do dangerous things under their supervision.

If the rules are clear, and you play by the rules, you ought to be off the hook.

Not at all. If the rules are clear and everyone plays by the rules, and someone gets hurt anyway, someone is still responsible for the damage.

You don't get it both ways. The Rules say that you should handle food safely. The Rules also say that you don't have the authority to dispense anyone from following The Rules.

The Cub Scouts violate the first principle, routinely, at their potlucks. By your own admission.
The halls that rent to the Cub Scouts, therefore, violate the second by permitting the Cub Scouts to violate the first in the halls they rent.

What we have now is a situation where the rules are fuzzy, and we'll decide after the fact what we meant.

No, what we have is a situation where the rules are clear and you are objecting to the fact that no one is willing to overlook the fact that you violate them.

 

[JoeTheJuggler]

Maybe. But only in the court of public opinion, not the court of law. Boycott the company if you like. People should be allowed to openly debate about what is an acceptable risk and what is not.

Again, the lobbying stuff is only to point out that the defense offered in this case is bogus. It's not about punishing them for lobbying, but on the merits of the case. The lobbying is merely evidence of a flaw in their defense.

I doubt they are arguing about foreseeability.

See post number 159. This cased relied on a previous case where the case was dismissed and the appellate court upheld the dismissal on the grounds that the accident was unforeseeable and that the plaintiff had no legal relationship with the cell phone company.

A chainsaw manufacturer can foresee that someone might use their product to cut off someone's head. That doesn't mean they are liable.

No, but if their defense was that an accident was unforeseeable, I would argue that it's a bad defense (and I think you agree with me on this point).

In the unlikely event the cell phone company opposed regulation by claiming their product was safe to use while driving, it still shouldn't impact their liability.

It would definitely argue against the defense that everyone knows it's dangerous.

I disagree. It should be dismissed on a number of grounds.

But a case can be dismissed, properly, and still not be frivolous in the legal sense.

I agree with KingMerv that any attempt to punish people, directly or indirectly, for their efforts to petition the government is unconstitutional. I think that such attempts represent a far greater threat than any threat of unsafe driving.

Again, that's not my point.

My point is that what they have historically argued in their lobbying (they're changing their tune, reluctantly, these days) contradicts their defense. I would punish them if they are indeed liable for the death in this case. The lobbying only comes in to show that this particular defense (everyone already knows it's dangerous) is flawed. (And I admit reasonable minds can disagree on this point too. However, I'm not advocating punishing them for their lobbying efforts, but for promoting and producing a product/service use that is dangerous even when they knew it was dangerous. And even at that, based on what I know from the news article, I'd probably find for the defendant, but I'm arguing that it's not a frivolous case.)

As an aside, I would think at this point the industry would be wise to embrace bans on cell-phone use in the car. It's not like they'll sell fewer phones, since they're so ingrained in the culture now. And if a case like this came up where there was a cell-phone ban in place, it would be completely clear that the liability ends with the guy talking on the phone who caused the accident (in violation of the law).

There is no such thing as a phone which can be safely used while driving. The science is clear on that.

I only just now realized this is so. I was looking around to see what the industry was saying and ran into a lot of the research you're referring to. The industry is now not standing in the way of laws banning hand-held cell phone use while driving, but they are still opposed to a blanket ban including hands-free devices, even though, as you point out, the science shows that they're as dangerous (and arguably as dangerous as drunk driving).

 

[JoeTheJuggler]

Exactly. So, what should we, as a society, do about it? Even though there are laws in some places against using phones while driving, we know it will happen, and we know death and injury will result.

Are we willing to take that chance? Do the benefits of mobile communication outweigh the risks? If that's the decision we make, through our laws, I'm not going to hold the companies who provide those means responsible. We knew their products were dangerous. We encouraged them to make the products. I don't think we should then turn around and punish them for doing so.

But again, the reason there isn't a national law is due at least in part to the efforts of the industry to resist them. (I just read something about the industry-friendly Bush administration preventing statistics on cell-phone related accidents from being made public. I hate to keep saying it, but this sounds a lot like what went on with the tobacco industry and smoking.)

At any rate, getting back to the topic, your position illustrates that a cap on punitive damages would not be an effective way of dealing with a case like this --which isn't even frivolous, but would not come to court if a law were in place banning cell phone use while driving.

I don't know if there's a generalizable principle though--make tighter regulations on everything so the laws are clear? I think laws will always remain a bit behind the times wrt to the use of relatively new technology. I suspect courts will always have to deal with questions like this, and I think by and large they do a pretty good job of it.

 

[drkitten]

I don't know if there's a generalizable principle though--make tighter regulations on everything so the laws are clear? I think laws will always remain a bit behind the times wrt to the use of relatively new technology. I suspect courts will always have to deal with questions like this, and I think by and large they do a pretty good job of it.

The other problem is that laws are always inherently vague and ambiguous, because human behavior is so variable. Cell phone use while driving is a good example. Sure, let's make it illegal. What is "using" a cell phone?

Let's go all the way and assume I have a high-end smart phone like an iPhone, and I'll stipulate that an iPhone is a "phone."

Making a call on it? Okay, well, I wasn't making a call. I was texting.
Using it to communicate with another person? Well, I wasn't texting a person, I was texting a robot.
Using it to communicate at all? Well, I wasn't communicating, I was playing a game.
... I was dictating messages to the built-in voice recorder.
... I was using a third-party app that warns me of where speed traps are.
... I was using the built-in GPS system to help me get to where I was going on Google maps.

At some point, we'll get down to things that should clearly be legal, such as playing music on it through the car's built-in MP3 player.

Or let's go the other way. I wasn't making a phone call, in fact, I wasn't even using a phone. I was using my Mac laptop and Skype.

This is where common sense and judgement comes in.

 

[Meadmaker]

At any rate, getting back to the topic, your position illustrates that a cap on punitive damages would not be an effective way of dealing with a case like this

I used to support caps on punitive damages, and then I realized that the goal was not so much to reduce the cost of litigation, but to make it more predictable. Insurance companies, especially, love very large, very predictable, expenses.

I suspect courts will always have to deal with questions like this, and I think by and large they do a pretty good job of it.

Maybe. My point about bringing up Cub Scout potlucks, or Chess tournaments, is that people often don't realize the far reaching impacts of liability issues on their lives. Those costs pop up in lots and lots of ways. If you have kids, compare how they are brought up with how you were brought up. I'll take bets that their time is spent in a lot more structured, supervised, activities, for which a significant fee is involved, compared to how you were brought up. There's a lawsuit hiding behind those fees and supervision.

 

[drkitten]

Maybe. My point about bringing up Cub Scout potlucks, or Chess tournaments, is that people often don't realize the far reaching impacts of liability issues on their lives. Those costs pop up in lots and lots of ways. If you have kids, compare how they are brought up with how you were brought up. I'll take bets that their time is spent in a lot more structured, supervised, activities, for which a significant fee is involved, compared to how you were brought up. There's a lawsuit hiding behind those fees and supervision.

.... and there's an actual person who got seriously hurt hiding behind those lawsuits.

If I were you, I'd try to find ways to allow people to avoid getting hurt, not to find ways to avoid paying for people who get hurt because you're too lazy/cheap to take reasonable precautions.

 

[pgwenthold]

.... and there's an actual person who got seriously hurt hiding behind those lawsuits.

If I were you, I'd try to find ways to allow people to avoid getting hurt, not to find ways to avoid paying for people who get hurt because you're too lazy/cheap to take reasonable precautions.

Or to learn about anti-discrimination laws

 

[JoeTheJuggler]

Maybe. My point about bringing up Cub Scout potlucks, or Chess tournaments, is that people often don't realize the far reaching impacts of liability issues on their lives. Those costs pop up in lots and lots of ways. If you have kids, compare how they are brought up with how you were brought up. I'll take bets that their time is spent in a lot more structured, supervised, activities, for which a significant fee is involved, compared to how you were brought up. There's a lawsuit hiding behind those fees and supervision.

I have two different personal observations on this.

One is my profession--I'm a juggler. Over the years I have seen a bit more concern about proof of insurance, but I don't begrudge that. My performer's liability insurance is pretty cheap. It hasn't gone up appreciably over the years. It certainly isn't an excessive burden. And I haven't seen unreasonable fear of lawsuits (even though most of my clients have an exaggerated idea of the risk of injury or property damage in what I do--as I always say, getting in my car and driving to the gig is by orders of magnitude more dangerous than what I do in my act).

The other is that I spent two years living in Quito about 10 years ago. If they had a system more like ours, it would be a much safer place. So many things routinely had sharp corners and dangerous surfaces. You'd have to shout at the bus drivers to make them come to a full stop when a senior citizen was getting on or off--the rest of us pretty much had to abide by a brief slow down. And for someone like me with a gringo's immune system, a lot of the food or drink sold on the streets was an invitation to dysentery (thinking of the Cub Scout potlucks). [I don't mean this as any disparagement of the people of Ecuador. I mention this just to show what happens when there isn't a system for holding people responsible.]

Yes, I would rather have a system where people are accountable for their wrongs.

And to this point

If you have kids, compare how they are brought up with how you were brought up. I'll take bets that their time is spent in a lot more structured, supervised, activities, for which a significant fee is involved, compared to how you were brought up.

I would point out that a great deal has changed since I was a kid. I don't think this kind of comparison is very meaningful. It's a different world now than it was then.

 

[leftysergeant]

Resisting regulation is not the same as encouraging you to use a product unsafely. What specific regulations are we talking about?

The cell phone industry always seems to be opposed to requirements for hands-free useability and bans on texting while driving.

I personnally think that texting while driving should be punishable by a life-time ban on driving or owning a car. Anybody who thinks they can do both is too stupid to be allowed to posess anything more dangerous than a baseball bat.

 

[Meadmaker]

]too stupid to be allowed to posess anything more dangerous than a baseball bat.

I hope you mean a wooden baseballl bat.

http://www.internationalskeptics.com/forums/showthread.php?t=157843

 

[quadraginta]

I hope you mean a wooden baseballl bat.

http://www.internationalskeptics.com/forums/showthread.php?t=157843

 

[JoeTheJuggler]

The phrases you use in statutes or common law determine the level of discretion a judge has. You could rewrite some of those phrases.

I'd support that. I don't know what the particulars are, but I would suspect these changes wouldn't do a whole lot. (On the other hand, as others have said, I doubt that frivolous cases are such a big problem anyway.)

What do you think of my more radical idea? Whenever a decision goes completely against the plaintiff, you ask the fact finder to answer the question, "Was this a frivolous case?" (if the fact-finder is a jury, the judge should explain exactly what is meant by "frivolous case"). If the answer is "yes" then the plaintiff has to pay all or a portion of the defendant's defense costs (or maybe simply a court imposed fine).

This would definitely discourage settling meritless cases since defending them wouldn't be as costly. And again, if a case is truly frivolous, then it has no chance of winning even without a great deal of money being spent to make a defense. (The examples cited so far in this thread were not really frivolous.)

I'm sure my idea would raise other new problems--but I haven't been able to think of any that couldn't be resolved easily enough.

 

[drkitten]

This would definitely discourage settling meritless cases since defending them wouldn't be as costly. And again, if a case is truly frivolous, then it has no chance of winning even without a great deal of money being spent to make a defense. (The examples cited so far in this thread were not really frivolous.)

The problem with this is that it's more or less the stated goal of the court system to encourage out of court settlements, in part because the existing caseload is too much for them to handle (and has been for decades), and because it's perceived to be better all around for people to come to their own livable compromise than to have the government dictating terms.

So you're basically saying that you want to clog the court system up further. I doubt this will get much traction.

What you need to do is to weed out the meritless cases earlier rather than encourage them to go to completion. The area I would start looking at is in the rules governing summary dismissal and in the awarding of court costs and legal fees in summary dismissal cases. As has been pointed out, truly frivolous cases rarely if ever see a courtroom, even to have the judge rule on a summary dismissal; the time and expense comes in the trial preparation. Making it easier, faster and cheaper to seek dismissal on the ground of obvious lack of merit would be a much better idea.

 

[JoeTheJuggler]

The problem with this is that it's more or less the stated goal of the court system to encourage out of court settlements, in part because the existing caseload is too much for them to handle (and has been for decades), and because it's perceived to be better all around for people to come to their own livable compromise than to have the government dictating terms.

Yep--that's right. In fact, I was looking at the key to deterring frivolous suits as discouraging settling bad suits, but getting all those cases into court comes with its own huge cost to the system.

Still. . .I think after people learn how it works (that you won't get a settlement for a frivolous case simply because it's cheaper to settle than to defend it), the net result wouldn't be to discourage settlement of claims with merit (both sides could still profit by staying out of court), but would in fact discourage frivolous cases at all. And the result of that would be fewer cases being settled AND fewer cases being heard in court.