Another stupid lawsuit!

[Jeff Matthews]

I see your edit re: the part that makes you "ill."

Now, go back and see one of the factors why I say the case, as it is postured, has serious obstacles.

But, if the plaintiff in the iPod case was a child, we have a different case. Don't you know that one with a child is coming down the road? Of course it is.

So, iPod ought to consider beating the clock if it can and start sending out "fixes." And from now on, they ought to consider not making them play so loud. It's great that the fix will help protect innocent kids from dumb parents. It's even greater that that same fix for innocent kids will just so happen to be a fix for idiot adults, too! Problem solved.

[Jeff Matthews]

Does anyone really think that if the facts of this case were laid out for 100 people to decide (no jury "instructions" - just the facts) that most rationally thinking people would say that the employee caused his own injuries?

Welcome to the foray!

Well, let's talk about that. If you're on a jury in a court of law, don't you want to know a little about the law? That's what the instructions are for.

If you don't like the law, that's different. You should write your legislators and see if you can get them to change it. But if you want to be a responsible juror, you will follow the law.

Also, you might note that it was known by the mfg. that the tire had dangerous propensities, yet even though it could have easily been designed NOT to explode (like the other mfgs. design them), they did not follow the other design. They just IGNORED it and hoped they could substitute with a warning. Not good enough. Sloppy, if you ask me.

[Jeff Matthews]

That's an interesting document.

The problem with these cases seems to be the weight given to technicalities over common sense. I think this is why folks look unfavorably upon many court decisions.

Also, do you see the "double-standard" in your statement. If the guy fails to heed the warning, he recovers due to "technicalities over common sense."

If the guy lost, wouldn't he have lost because of "technicalities over common sense?" Common sense would dictate that the mfg should have made the tire to where it would NOT explode - just like all the other mfgs. were doing. That the mfg didn't do so shows utter lack of common sense on their part.

[codhead]

Well, we know that the tire had dangerous propensities if it was installed on the wrong rim. Kind of like saying that a gun has dangerous propensities if it is discharged while pointing at someone (why can't I write that without thinking about a guy named Dick?). []

As far as jury instructions are concerned, I'd have to know exactly what was said and how it was said. I really do believe that these instructions can be used to hedge a decision (but we would hope that this would be caught at the appellate level). Of course, it's hard to determine inflection from a transcript.

I'd also like to know the demographics of this trial. Ever hear of venue shopping? Not that this was the case here, but there certainly are areas of the country known for sympathetic juries.

When a decision seems to belie common sense, one has to wonder about all of the influences that came into play.

[Jeff Matthews]

Mounting tires that had corners cut during design and testing to "IGNORE" a known issue is criminal. Not the same case at all.

Here's a final twist before I catch my zzzzz's. If you read again (which you don't have to because the quote is below), you'll see that the mfg.'s knowledge of the safer design is not a required element. Here's what must be shown, as stated in the Court's opinion:

"This Court has adopted the products liability standard set forth in section 402A of the Restatement (Second) of Torts. See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89 (Tex. 1967). Section 402A states:

(1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

( it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

As is apparent, the mfg's knowledge of the existence of the alternative design is not required in order to impose responsibility.

I'll bet that really will make your head spin, now! [*-)]

But if you took in all the "societal" factors we've covered throughout this long thread, you might come to sympathize with why this state of the law has been considered the proper standard for many years, and why it will continue to be so.

So, in a products liability case, all the injured person needs to show is that the product was unreasonably dangerous. To show this, the plaintiff must proffer evidence of a safer alternative that would affect cost to a minimally acceptable degree and still provide the utility (i.e. the product could still serve its intended purpose, but without the undesirable, dangerous qualities and at little to no additional cost).

In a case I did, I remember going to Home Depot to find a $1.19 empty paint can that could easily be attached with some cheapo screws and 90-degree brackets in order to shield a high-speed spindle on a shoe buffer. The spindle caught a girl's long hair and pulled her scalp off.

As you can see, you just need, as a plaintiff, to show the jury that the mfg could have done what you were able to figure out - even though the mfg wasn't as brilliant as you at the time they created their design.

Same goes for warnings. If there's not an appropriate warning for a reasonably foreseeable risk, all you need to do is show the jury how the mfg could have used your warning to adequately advise of the risk and prevent harm.

However, as I said, mfgs cannot escape using safe designs by substituting the use of a warning in lieu of applying the safer design.

Head spinning, yet? []

[codhead]

Johnny ignored the "Beware of Dog" sign, jumped over the neighbor's fence, and kicked the Rottweiler in the face.

The Rottweiler bit Johnny.

The law says "All reasonable efforts should be taken to construct a secure fence around Rottweilers".

The plaintiff's lawyer says "The neighbor is wealthy, so he should have built an 8 foot fence instead of a 4 foot fence."

The paid "expert" says an 8 foot fence would have kept Johnny out of the neighbor's yard.

Johnny's family is poor, and he needs an expensive operation to fix his chewed-up face.

Johnny lives in a depressed area.

Johnny wins his lawsuit.

[cwop]

"The fact that Apple makes something that is capable of producing volume levels that are known to cause permanent hearing loss is just asking for trouble."

People can buy cars that can go 180mph, chainsaws that emit dangerously high SPLs (without hearing protection), rollerblades that can cause serious injury for idiots who overestimate their own skills with them, nightclubs with bands playing at levels that are magnitudes beyond OSHA standards for unprotected noise exposure.........where does lunacy end and common sense prevail?

[Jeff Matthews]

Well, we know that the tire had dangerous propensities if it was installed on the wrong rim. Kind of like saying that a gun has dangerous propensities if it is discharged while pointing at someone (why can't I write that without thinking about a guy named Dick?). []

As far as jury instructions are concerned, I'd have to know exactly what was said and how it was said. I really do believe that these instructions can be used to hedge a decision (but we would hope that this would be caught at the appellate level). Of course, it's hard to determine inflection from a transcript.

I'd also like to know the demographics of this trial. Ever hear of venue shopping? Not that this was the case here, but there certainly are areas of the country known for sympathetic juries.

When a decision seems to belie common sense, one has to wonder about all of the influences that came into play.

Okay, Cod, you're keeping me up. []

The subtelty in the opinion, as written, shows the likelihood that the guy might not have ignored the warning. I don't know if you caught that. It didn't hit me right away.

What the guy said happened was he did not know the rim onto which he was installing the tire was in fact 16.5 inches. He said the tire was already on that rim when it arrived. He took it off, and I guess repaired it. Then, he put it back on the rim. Of course, it goes without saying he did not whip out a measuring tape to see if the rim was wrong for the tire, since it came in that way. Who would?

Anyway, it was a plausible explanation to show that this was rotten luck leading to a tragic accident that could have been avoided if the mfg just used the other type bead, which would have prevented the explosion.

That's why the guy was not found to be at fault.

Now, supposing the guy said "Yeah, I saw the warning and knew I was putting the tire on a 16.5-inch rim," what do you think the jury would have done?

I bet your answer is they'd have goosed him in a heartbeat.

However, go back to the elements of a product liability case - i.e. the standard of law.

Even if he was that dumb, the mfg still could be held with responsibility under the law.

What we have (which was not always the case) is a system of allowing the jury to find proportionate responsibility. They could, for example, say the guy was 40% at fault, and the mfg was 60%, in which case, if the damages were found to be $10 million, they would be reduced by the guy's 40%.

If the guy was found to be over 50% responsible, the way the law works here is that he would get nothing of the $10 million damages.

So, yes, some degree of user negligence is acceptable, and still a plaintiff can make a case. But if the plaintiff is too stupid, he can get goosed.

Back to the iPod case, that's why if the plaintiff was a child, the case would have more meat on it.

[Jeff Matthews]

"The fact that Apple makes something that is capable of producing volume levels that are known to cause permanent hearing loss is just asking for trouble."

People can buy cars that can go 180mph, chainsaws that emit dangerously high SPLs (without hearing protection), rollerblades that can cause serious injury for idiots who overestimate their own skills with them, nightclubs with bands playing at levels that are magnitudes beyond OSHA standards for unprotected noise exposure.........where does lunacy end and common sense prevail?

Cars are sold for use by licensed ("educated") drivers only.

Chainsaws: read my previous post.

Rollerblades: have a unique utility in that they cannot be redesigned without truly remaining "rollerblades."

Nighclubs: read my previous post.

There is no lunacy problem like people like to fear.

The idea is that common sense is a 2-way street. If iPods are dangerously loud, truly innocent people (non-deserving of harm - like little kids) can be hurt by it. Not good.

Like I said, I bet the adult suing iPod will get goosed. But if it was a kid, then iPod might have to shell out.

The point was not to defend the adult guy's suit, so much as it was to say a suit against iPod for that design - in the right case - is not as impossible or as ludicrous as one might think.

Keep all this in mind because you never know with all this information when you might be able to help someone done wrong. Alot of people chalk up bad things that happen to them because they don't know the law.

And, yes, absolutely, positively, without a doubt, the mfgs MUST assume responsibility for making safe products and adding safety features when reasonable to do so - even if it's an afterthought (VERY important). It is their DUTY. If they undertake to be in the business of manufacturing, they need to have bright, capable people with common sense doing the designing - AND they need to stay on top of issues, technology and development to always improve when they can.

Here's a perfect example. The ladder cases. The old top step. People get on the top step, and the ladder falls. Nowadays, you can't find a ladder without a big "Danger: Do Not Stand" sign on the top step. Years ago, that was not the case. Years ago, without the warnings, it was probably often, and reasonably, assumed by buyers that since there was a step there, it was okay to use. I am sure some who may have had a little more experience (or maybe frightening incidents) on top steps back then would have known anyway without a warning. So, a person who doesn't know gets hurt, and the other guy says "You didn't know that was dangerous? Man!" Then, the guy who didn't know thinks it's all his own dumb fault, when it was not necessarily so. He was not warned and did not have any idea the top step was dangerous.

That's how come we now have warnings on every ladder about that.

But from that example you can see 2 things. First, just because someone might think it's your own dumb fault, it not always is - maybe often - but not always. Second, don't just suck it up without asking yourself if it could have been a little unreasonable to use that particular design - or to not use that particular warning. Legal advice after serious incidents is almost always warranted - just to be sure.

[codhead]

I'll have to re-read it, but I thought it was another employee that told the guy what the tire size was.

I dunno. I would think a guy that worked in a tire shop for a while might have a clue as to what size tires went on what vehicles. Would also think he might notice a smaller diameter tire was kind on difficult to get on a larger rim. And I'd really think he'd notice that the bead was not seated properly as he was filling it with air (i.e. the rim was riding up on the sidewall at this point).

I guess this begs the question as to just how "foolproof" a manufacturer has to make a product. One would think that if a person of average intelligence could safely follow directions, that would suffice. Or do the instructions have to apply to a moron? How about an imbecile? Or a dolt?

There are enough variables here to make your head swim. []

[Jeff Matthews]

I'll have to re-read it, but I thought it was another employee that told the guy what the tire size was.

I dunno. I would think a guy that worked in a tire shop for a while might have a clue as to what size tires went on what vehicles. Would also think he might notice a smaller diameter tire was kind on difficult to get on a larger rim. And I'd really think he'd notice that the bead was not seated properly as he was filling it with air (i.e. the rim was riding up on the sidewall at this point).

I guess this begs the question as to just how "foolproof" a manufacturer has to make a product. One would think that if a person of average intelligence could safely follow directions, that would suffice. Or do the instructions have to apply to a moron? How about an imbecile? Or a dolt?

There are enough variables here to make your head swim. []

Head swim? Yessirree!

All the pertinent questions:

What caused the harm? Who bought it? Who used it? Is the buyer the user or not? How obvious is the danger? What is the age (i.e. expected experience) of the user? Was it misused? If so, was the misuse a foreseeable type of misuse from the mfg's perspective? Is there a safer alternative? Can it be had for little to no extra cost? If so, will the product still function in much the same way without having the harmful qualities? Etc.

[Jeff Matthews]

Or do the instructions have to apply to a moron? How about an imbecile? Or a dolt?

I know you get it, now.

If a mfg knows its products are used by morons, it needs to do what it reasonably can to protect morons. That's why we always see some of the "stupidest" warnings you could imagine. Like warnings on knife handles that say "Caution: Sharp Edge."

Of course, if a knife handle does not have such a warning, it is not automatically the mfg's fault. The mfg is expected to do what is reasonable. Sometimes, you just have a feeling about certain morons that a warning on a knife handle would have never prevented him from hurting himself.

But it truly is all a big continuum. iPods that can damage kids' hearing are asking for trouble. iPod might dodge liability, but they are asking for a challenge.

I guess another point is that there is no "black letter law" that you can look up to find out who must win or lose in every case under every conceivable set of circumstances. So, you are given the general considerations, and you have to take it and run with it from there.

The iPod issue is not a "no-brainer" from either sides' perspective.

[codhead]

Man, Jeff. You're still up? I'm lucky - I don't have to work tomorrow today.

I think that no matter how much we debate cases like the iPod, it's still a crap shoot when it goes to trial. No such thing as a slam dunk, even when you sure think it should be. I'm still recovering from that eminent domain decision. If that's not the raison d etre of a legal system gone horribly awry, nothing is.

[Jeff Matthews]

If the ladder example was not a good one to intrigue you, this one should be:

The Crashworthiness Factor. Yep, the mfg must make your car crashworthy. You have the right to expect that sometime in your life you just might take your eyes off the road (either with or without good reason) and wreck. At that moment, you have a right to be in a reasonably crashworthy vehicle. No, they are not all the same, but the degree of crashworthiness depends alot upon the particular utility you want out of a car. Utility does in fact include tiny, red convertibles that can get plowed into accordions by Yukons - because they are so cool! Coolness is a utility for cars. True, actually.

But who would have thought that if you got hurt in a wreck you caused, your injury might not be your fault? Ala, Ford Pinto's. A little bump in the back and KABOOOOOMMMMM!!!!!

Often, it comes down to the degree of the injury. Even though the injury was caused by you, you would not have been hurt as bad had the product been made to be reasonably safe.

[Jeff Matthews]

I'm still recovering from that eminent domain decision. If that's not the raison d etre of a legal system gone horribly awry, nothing is.

Agreed 100%. That issue needs to be re-visited so that the Supremes can change it back and redeem themselves.

[codhead]

"The Crashworthiness Factor"

Remember this ...

After racing Willie Shoemaker's

life would take a tragic turn when he broke his neck, and became a quadriplegic

in 1991, when the Ford Bronco he was driving veered off a freeway in suburban

Los Angeles, tumbled down an embankment and rolled. He had been drinking

after playing golf and police said his blood-alcohol level was twice the legal

limit. He sued Ford Motor Co. and won a multimillion-dollar settlement.

[Jeff Matthews]

Never heard of it. Okay.... What's the full, un-biased synopsis? I don't believe it was a simple as "drunk dude drives off hillside and rakes in millions from Ford."

[TheEAR]

Jeff,

When I need a good lawyer to win a cause for me when I stick my fingers in a meat grinder I will know who to call. []

Good too see you put up a fight to defend the little people of this world who do not follow instructions,warnings and go all out to be in harm's way. []

[Jeff Matthews]

I do what I can! []

Hey, that reminds me of a funny little story. My brother, who is as sarcastic as me, liked to refer to lawyers as "blood-suckers." When my nephew as about 3 or 4 (now, he's 12 or 13), my brother asked my nephew (in an entirely different context and without reference) what he wanted to be when he grew up. My nephew was unsure. So, my brother asked him if he wanted to be a lawyer like Uncle Jeff. My nephew, as serious as he could be for such a young boy, actually remembered his dad's sarcastic comments before and said "I don't want to suck blood!"

That cracked me up. []

[stan krajewski]

I'm still recovering

from that eminent domain decision. If that's not the raison d etre of a

legal system gone horribly awry, nothing is.

Agreed 100%. That issue needs to be re-visited so that the Supremes can change it back and redeem themselves.

Also 100% agreement here.

However, by twisting, flexing, cunning and completely disregarding any

conmmon sense we now have the infamous "eminent domain" decision. You

know, the one that allows legally stealing land from one person to give

it to another. That was a 5 to 4 decision and the 5 were composed of 4

liberals and 1 swing vote.

That's why this ipod thing is important. Lets face it. You could

justify anything. Within the law you could commit a hollocoust.

Piece by piece, legal point by legal point, precident by precident, we

have worked our way here. And where is here? Well, now it might be

deciding whether a fully mature person was not properly warned that

playing an ipod at deafening levels would cause deafness. Where the

hell are we going?

What if a runaway jury with a runaway case decided a judgement for 12

trillion dollars. Do we pay hat out? It was a legal decision. Right?

Remember the 29 billion dollar "smoking caused death of spouse"

judgement in California.