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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:30
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quote:
Her stepfather was covered by AAA, not her. AAA often will assist family of members, but they are under no legal obligation to do so. |
quote:
Regardless, AAA sent a truck. They did more than they were obliged to do. |
By sending a truck, AAA assumed a duty to the woman. The legal obligation began when they agreed to send the truck. They had no legal obligation to help her, but when they agreed and sent a two truck the legal obligation began.
Of course, by beginning to help, the tow truck driver assumed a duty. Since it was in his normal course of work, under the doctrine of respondeat superior, the employer is liable for any tort of the driver. Usually, the driver will have no money, and so the people will sue the company, who are also liable.
HOWEVER, it seems the driver did not violate his duty here. The woman was negligent in getting in the stranger's car. Now, if the driver had said wait, and left and the woman, waiting in the parking lot had gotten killed, that might be a totally different story.
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MichaeltheGreat
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Apolyton Grand Executioner
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mooning the house that Ruth built.
Oct 1999
time: 21:30
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quote:
Originally posted by Imran Siddiqui
HOWEVER, it seems the driver did not violate his duty here. The woman was negligent in getting in the stranger's car. Now, if the driver had said wait, and left and the woman, waiting in the parking lot had gotten killed, that might be a totally different story. |
A point that's going to be important wrt proving negligence is that when the driver showed up, the woman was already talking to two people, using the cell phone of one, and the driver can't reasonably be expected to interrogate the three to form a definite state of knowledge about their familiarity with each other or the potential risk to the woman. Had he arrived and she was alone, with nobody around, that would be different, but the driver has no reasonable way to know that the woman is talking to two total strangers. She seemed comfortable with the situation.
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Straybow
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SG(2)… gone but not forgotten
Jan 1970
time: 23:30
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SpencerH, no such thing as "before cupholders." Even 50 years ago you could buy plastic holders that hang on the door/window slot. I bought one for my first car 20 years ago. I've got one hanging on my door even though my present car has a couple built in holders, just because sometimes they aren't big enough.
In general, I don't see much difference between holding the cup between the knees vs in the lap between the legs. If anything, that arrangement is less stable. And let's pry off the lid, instead of popping open the little hatch the lids come with to let you sip (or pour stuff in) with less danger of spillage.
It takes exactly one use of a styrofoam cup holding a hot liquid to know that it becomes softer, and it takes exactly one experience to know the danger of scalding liquid (and coffee is always served at >135° F, which is scalding). Did this woman never cook in her 81 years?
Again I hate to see pain and suffering of this extent. Yet stupidity should count more heavily towards her own share of the blame than 20%.
I see that McD's response was typical corporate stonewalling, which in a case with serious injury is stupid. They get what they deserve by not settling quickly, since they know what kind of tort awards are likely to come from a jury.
That doesn't mean I agree with the deep-pockets approach to tort awards. If the jury wants to see a punitive award based on gross sales, that should apply only to a class action suit, where all aggrieved parties can claim a share of the award.
If towing the car 60 miles to Boston instead of a fraction of that distance to a local garage is outside services normally provided under contract with the AAA, then the driver or company had a right to delay until resources could be spared to go that far out of the way.
I would also say that by refusing immediate service and requesting the tow all the way to Boston, the victim relieves the tower from immediate responsibility. Their implicit obligation then becomes limited to arrangements for the long distance transfer of the vehicle.
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Straybow
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SG(2)… gone but not forgotten
Jan 1970
time: 23:30
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quote:
Originally posted by SpencerH
I took a quick look at the Fumento piece and as a scientist, my first thoughts were, something stinks. I wonder who funded Mr Fumento? Just because there is no specific evidence in the literature does not mean that there are no indications, or that there is no likelyhood of something having an effect. |
Ah, yes, attack the messenger when you've got no data.  Don't just throw aspersions at the author, look for some real dirt if he is an industry shill. If not, ad hominem isn't the way to go.
If "the literature" were only specific medical experiments on exposure then yes, maybe few or no studies had been done on ingestion by means other than inhalation. But the literature includes health statistics of those living in polluted areas, those living in unpolluted areas, and industry workers. If there is near zero correlation of exposure to disease it is bad science to assert there is a correlation (industry shill or no).
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Fumento's 'logic' is what kept the tobacco industry penalty-free for so many years. |
Non sequitur. Tobacco was a product being sold to customers, whereas this is pollution caused by a leak. No comparison in terms of legal responsibility.
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All heavy metals are toxic and carcinogenic, it's just a matter of how many ppm. PG&E were negligent, in my opinion criminally so. |
Not so. Ferric metals can be highly soluble, and thus not accumulate in tissue to cause damage. For Iron in particular, we have a very high tolerance in solution.
Without solubility, precipitating reaction, and tissue absorbtion data on Ch+6 you can't contradict the overall health records which show no toxicity/carcinogen correlation. Assuming the biomedical data showed absorbtion or precipitation, you would still have to overcome the health data to assert that the particular concentration was responsible for uncorrelated ailments.
This is precisely why some measure of tort reform is necessary. These kinds of judgments can ruin lives and put people out of work, all for an easy fortune for litigators and a handout to fictitious "victims." It is immoral.
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SpencerH
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Co-Ruler of my patch of land south of Birmingham Alabama
Feb 2002
time: 23:30
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quote:
Originally posted by Straybow
Ah, yes, attack the messenger when you've got no data. Don't just throw aspersions at the author, look for some real dirt if he is an industry shill. If not, ad hominem isn't the way to go. |
Since you've 'thrown down the gauntlet" so to speak, I've looked into it a little further.
Mr Fumento is a lawyer who works for the Hudson institute writing about science (despite the fact that he is not a scientist or even an MD and IMO has no more expertise than any other non-scientist).
From his bio
"Fumento is the author of four books: The Myth of Heterosexual AIDS (Basic Books,1990, revised, Regnery, 1993); Science Under Siege: Balancing Technology and the Environment (William Marrow, 1993); Polluted Science: The EPA’s Efforts to Expand Clean Air Regulations (AEI Press, 1997); and The Fat of the Land: The Obesity Epidemic and How Overweight Americans Can Help Themselves (Viking, 1997).
He also has authored a monograph on silicone breast implants and co-authored another on the alleged health risks of chlorine."
The Myth of Heterosexual AIDS 
"alleged health risks of chlorine"
Maybe they should read his work to the victims of Bopal!
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If "the literature" were only specific medical experiments on exposure then yes, maybe few or no studies had been done on ingestion by means other than inhalation. But the literature includes health statistics of those living in polluted areas, those living in unpolluted areas, and industry workers. If there is near zero correlation of exposure to disease it is bad science to assert there is a correlation (industry shill or no). |
I havent seen those statistics but since the workers didnt ingest the Cr-6 it's not relevant.
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Non sequitur. Tobacco was a product being sold to customers, whereas this is pollution caused by a leak. No comparison in terms of legal responsibility. |
A leak of a product that they themselves knew (and admitted in their own documentation) was toxic.
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Not so. Ferric metals can be highly soluble, and thus not accumulate in tissue to cause damage. For Iron in particular, we have a very high tolerance in solution.
Without solubility, precipitating reaction, and tissue absorbtion data on Ch+6 you can't contradict the overall health records which show no toxicity/carcinogen correlation. Assuming the biomedical data showed absorbtion or precipitation, you would still have to overcome the health data to assert that the particular concentration was responsible for uncorrelated ailments.
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Solubility effects absorbtion, yes. That doesnt mean that you should ingest toxic material. Or perhaps you agree with the 'expertise' of Mr. Fumento when he says in his rebuttal to Ms. Brockovich
"Never mind that numerous agents such as plutonium and forms of asbestos are highly carcinogenic when inhaled but simply pass through the body when ingested."
Feel free to ingest all the plutonium you want, it wont harm you.
I followed the link provided by Mr. Fumento to the EPA's data on Cr-6 and in my expert opinion as a cellular microbiologist (and contrary to his totally inexpert one) the weight of data on Cr-6 exposure in humans and other animals clearly suggests that all forms of exposure including skin, ingestion, and inhalation can have severe detrimental effects including rashes, cancer, and birth defects.
I wouldnt want myself or my kids exposed to it (and I suspect neither would Mr Fumento). This was not a frivolous lawsuit.
Last edited by SpencerH on 10-09-2003 at 19:35
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Flubber
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With a view of the Rockies
Aug 2000
time: 22:30
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quote:
Originally posted by Boris Godunov
Certainly, but the issue is also verdicts. Basically, since people can sue for almost any reason, of course there will be a lot of bullshit lawsuits. |
But of something is totally crap, it should be a judge that tosses it long before it gets to a jury. In Canada, the trial procedure rules in every province provide a number of mechanisms to eliminate totally invalid lawsuits. Canada still has some weird decisions at times but generally they are fewer because
1. civil trials are USUALLY before a judge alone-- juries are possible but pretty rare. Judges tend to not get as inflamed into big awards
2. Civil trial rules provide that the unsuccessful plaintiff is responsible for " costs" to the successful defendent. These costs can be actual costs if the unsuccessful plaintiff rejects settlement offers that excede what they get at trial. Settlement offers are sent to the opposing party and sealed at court to avail of these provisions.
The result of all this is that its not all upside in suing someone if you could face a bill for hundreds of thousands for bringing one of these lawsuits-- The clients pay, not the lawyers.
3. Pain and suffereing was cappped in the 70s at a maximum award of 100,000 ( growing with inflation)-- it now sits at around 300,000. To get more, you have to prove actual damages, lost wages or losses or get punitive damages.
4. Judges rarely apply punitive damages in Canada.
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Flubber
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With a view of the Rockies
Aug 2000
time: 22:30
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As for the AAA case, there is no way the plaintiff should succeed on the facts presented here. First to find that AAA had a duty to bring a non-member 60 miles right away when they are already in a developed commercial area seems totally unreasonable. I don't see what else he failed to do here. He did not place her in a dangerous situation and he did not leave her in a dangerous situation.
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Flubber
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With a view of the Rockies
Aug 2000
time: 22:30
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quote:
Originally posted by Imran Siddiqui
I wouldn't mind a cap on pain & suffering, but punitive damages have to stay. Companies that **** over people should have to pay a huge damage just to make them think if they ever try it again. |
Punitives still apply and in some instances are quite large but there has to be some major bad behavior for most judges to go that route
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Flubber
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With a view of the Rockies
Aug 2000
time: 22:30
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quote:
Originally posted by Arrian
Speaking of punative damages, some state courts have decided that punative damages are insurable. Think about that for a second. What is the purpose of assinging punative damages? Right, to PUNISH. So if it's insurable, does that not defeat the purpose of assigning punative damages?
-Arrian |
Thats crazy--- I'm thinking that the insurers involved are busy revising there policies to alter that situation
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st_swithin
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10069
Nov 2002
time: 05:30
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I'm feeling fehklempt.
The topic today is "Tony Kaye's frivolous lawsuit over wanting his director credit of 'American History X' to be under the name Humpty Dumpty."
Tawk amongst yaselves.
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10-09-2003 08:27
The main thing tort reform does is deny justice to people who need money to live because some ******* ruined their lives, preventing them from ever working again, etc.
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