Another stupid lawsuit!

[oldtimer]

I do see it as a two way obligation. Any driver by law knows the rights of the road and the duty to avoid pedestrians. Therefore the driver also knows that hot lava between the jewels while driving is at your own risk.

[Jeff Matthews]

As I understand it, the company in question knew that the product was lava, yet did nothing to lower it. That still does not excuse someone from driving with hot lava in their lap in the first place. Where does responsibility intersect with liability? Why does BMW not have cup holders? (because you are in a car for driving, to get to point b from point a, not to enjoy a meal or hot coffee on the way).

Re: the highlighted portion of your quote: But the person knew it to be hot coffee - not lava. See the difference? I hope so.

As to the next sentence, that's what we refer to as comparative responsibility. It allows apportioning a percentage of fault to both parties. In the McDonald's case, it was apportioned. The lady was also found to be at fault. The recovery was reduced by the percentage of her fault.

[oldtimer]

I repeat my question: Where does responsibility and liability intersect?

[oldtimer]

Our last posts were almost simultaneous. You answered my last question in a way. However, would BMW be at fault for not providing cup holders to the driving idiot?

[Jeff Matthews]

Why does BMW not have cup holders? (because you are in a car for driving, to get to point b from point a, not to enjoy a meal or hot coffee on the way).

I did not know that. If the right circumstances arise, you will see the failure to have cupholders being a viable cause of action. Vehicles are MUCH more than point A to point B. They have radios, TV's, air conditioners, leather vs. cloth seats - not to mention a myriad of safety features that you take for granted that have nothing at all to do with point A to point B, such as latches inside trunks that allow kidnap victims who are locked in by carjackers to get out before they suffocate to death.

A cupholder is certainly a reasonable safety feature - not to mention a great convenience.

[oldtimer]

By the way, Jeff. Have you had a chance to experience any of the "classical" music recommendations?

[codhead]

"We don't expect the particular risk that McDonald's introduced

by super-heating their coffee. Pure and simple. The danger was the

spiller's fault, but not the extreme danger."

We don't expect the particular risk that Ford introduced by designing a

F150 that will travel at 115 MPH. Pure and simple. The danger was the

16-year-old driver's fault, but not the extreme danger."

[oldtimer]

Very cogent codhead. If only we lived in a Brave New World, with such beautiful people in it.

[Jeff Matthews]

Here's the answer to your BMW question in terms of general questions and thought patterns:

How should the manufacturer expect its product to be used by consumers? Certain uses have little to do with the "primary function" of the product, but they are known uses just the same. The manufacturer has a duty to make products safe when used the way they are ordinarily expected to be used.

If you want to extend it further, in some cases, certain misuses of products are considered reasonably foreseeable enough that manufacturers should take such misuses into account when designing and marketing their products.

If a manufacturer can reasonably foresee that people will drive with drinks and that it would be safe to provide a cupholder so they can free their hands while not holding the cup to drink from it, sure, the manufacturer could reasonably be held to a duty to supply that safety feature. It would not offend me if such a holding was made - not at all.

On the forseeable misuse cases, that's why cigarette lighters now have child-proofing, as well as medicine bottles, detergents and many other potentially dangerous items. It is known that children can get into these and misuse them. Therefore, manufacturers have a duty to make reasonable efforts to come up with designs that are technologically feasible and economically practical in order to insure safety even in misuse situations.

[oldtimer]

The very idea of cup holders in a BMW is repulsive. They are safer than their drivers as a car, only the coffee spillers are at risk.

[oldtimer]

Yet cigarrette lighters in cars are not child proof.

[Jeff Matthews]

"We don't expect the particular risk that McDonald's introduced by super-heating their coffee. Pure and simple. The danger was the spiller's fault, but not the extreme danger."

We don't expect the particular risk that Ford introduced by designing a F150 that will travel at 115 MPH. Pure and simple. The danger was the 16-year-old driver's fault, but not the extreme danger."

Hark! Not cogent enough. Good reasoning, but a poor practical analogy. Everyone is considered to know a danger exists when flying around a curve at 115 mph.

Now, if the vehicle cannot handle well at let's say mildly excessive speeds (which we all drive at from time to time, if not daily), that's different. That's why the rollover design cases were not only lucrative for attorneys, they caused the manufacturers to make SUV's that handled better. And aren't you glad they did? I hope you are.

[colterphoto1]

My brain hurts, can we stop now?

[Jeff Matthews]

Yet cigarrette lighters in cars are not child proof.

............ Yet!

Now, you're thinking!

Come up with the patent for a design, and you might find yourself a rich man one day.

EDIT: Ahem! Excuse me. ".... find yourself to be a rich man..." No offense intended. []

[Jeff Matthews]

My brain hurts, can we stop now?

That's funny! Michael, the ever-quiet, non-controversial, yet attentive listener. Glad to see you're here!

[codhead]

Bottom line. Tort law NEVER holds anyone 100% responsible for their own actions.

If psycho Johnny goes on a shooting rampage at school, the gun

manufacturer should be at least PARTIALLY responsible (or the

ammunition manufacturer, or the dealer, or the school for not having

metal detectors). There's always SOMEONE else to blame.

Generally this is a business/corporation/municipality with "deep

pockets". The whole thing has to be presented as the little guy vs. the

big guy, with the big guy being "punished" for their perceived

complicity in the plaintiff's ignorance.

[Jeff Matthews]

Bottom line. Tort law NEVER holds anyone 100% responsible for their own actions.

If psycho Johnny goes on a shooting rampage at school, the gun manufacturer should be at least PARTIALLY responsible (or the ammunition manufacturer, or the dealer, or the school for not having metal detectors). There's always SOMEONE else to blame.

Generally this is a business/corporation/municipality with "deep pockets". The whole thing has to be presented as the little guy vs. the big guy, with the big guy being "punished" for their perceived complicity in the plaintiff's ignorance.

No. No. No. Not true at all. It does work. You don't hear about it in the news because it's not exciting in the least. A couple weeks ago, we defended an employer from an employee who slipped and fell (allegedly hurting his back and requiring surgery). The jury found no negligence at all on the part of the employer.

Have faith. Jurors are people like you, with all the common sense and street smarts that you might or might not have. They are full of ordinary people. When the jury is comprised of 12 people - or even 6 - the odds are slim to none you would get all 6 or 12 being utter morons who have zero common sense.

The things that excite you in the news are incomplete accounts. If you were on that jury (in whatever case you think the jury did wrong) and you heard all the evidence (and not a snippet), you might have decided the case in the exact same way. On the other hand, maybe not.

But believe me, 99.9999% of the time, cases are resolved the way they should be, and the world is not going to hell in a handbasket.

So, you don't have to join the parade that likes to spit all over plaintiffs just because they are plaintiffs. There's alot more to it than that. And take all the snippets you hear with a grain of salt.

Do not let them bias you and keep you from considering all facts. One day, you might be on a jury. One day, you might be a plaintiff and need a fair jury that can look at EVERYTHING and use their common sense. You never know.

The last thing you want to hear if you're a plaintiff (and you never know, you might be one day) is during voir dire (picking a jury), people making comments like you that plaintiffs don't accept responsibility, and they are out after deep pockets. How would you feel when the jury panel is full of people making those comments on one of the most, if not the most, important days of your life?

It would scare the b'jeezus out of you, and if you happen to be a plaintiff in the right, you wouldn't want people like that deciding your fate, now would you?

[oldtimer]

Yet cigarrette lighters in cars are not child proof.

............ Yet!

Now, you're thinking!

Come up with the patent for a design, and you might find yourself a rich man one day.

EDIT: Ahem! Excuse me. ".... find yourself to be a rich man..." No offense intended. []

Dude! You are definitely not just pretending to be a lawyer. Grammatically, you could have simply changed the phrase to "find yourself as a rich man."

[oldtimer]

So Jeff, what was your major before law school?

[Jeff Matthews]

Accounting.