Lawsuits causing swing sets to be removed from schools

[dross]

I actually think you're mostly wrong about that. I don't think we have too much torts litigation. I think we have: 1. not enough and 2. only certain people bring suit..

I don't think I made the case that we have too much. I'd like you to make the case that we have too little, unless by that you're referring to your arguments below that litigation should replace regulation.

The answer to your first problem is insuring against the loss. It's the best we'll ever have. If, as a defendant, your lawyer can't find a way to get the case dismissed or for you to win on summary judgment before it ever gets to trial, your case probably isn't entirely meritless. If it is, I'm sorry for you, really. But I think those case are far more rare than you might think..

My sister is a paralegal who has worked primarily for plaintiffs for 25 years, and my ex-wife is a paralegal who has worked mainly in insurance defense for almost thirty years. Based on the many, many stories I've heard from both of them over the years, I've heard of many cases that, while not exactly frivolous, cost the defendants more than they should have, given the details.

The problem is not that they may eventually win. It's the damage done trying to answer. So, I bring suit. I have enough merit that the case isn't thrown out, yet it is likely I'll lose. The defendant, though in the right, now must suffer, in some cases, losing his business before it can be resolved. No way to make him whole. Yes, he won, but he lost as soon as he was sued. That's what needs to be addressed.

Products liability lawsuits are severely screwed up. I agree with that. I don't know of a good way to reform it. Perhaps one way is to cap punitive damage awards, but punitive damages are very rare. I wouldn't support any cap on compensatory damages. The distortive effects of such a cap on compensation would ruin capitalism forever..

I think the compliance with regulations issue likely would go in the defendant's favor. That's actually one of the reasons I disfavor government regulation and prefer tort liability. Mere compliance with a regulation probably would be enough to win. But it shouldn't be, and society loses as a result. If someone is negligent, they should pay. The problem comes when juries assume and demand an unnecessarily high level of care..

If the solution for anything is that juries must change, the solution is a non-starter. Changing human nature has never and will never work as a solution. Systems must be changed so that the flaws of human nature are minimized.

Lots of drug companies would disagree with you, that regulation saved them.

The drug approval process should be totally eliminated and tort liability substituted for the exact reasons you mention..

It is a myth that we have too much tort litigation in this country. Certain high profile cases have made the tort system look bad in the media, but that doesn't mean that plenty of legitimate plaintiffs haven't been able to prove a case (or never bring one), either. .

I'm not talking about the McDonald's coffee judgement. I know those are rare. I'm talking about bicycle manufacturors getting sued in one instance because they didn't provide reflectors, then in another sued because they did, implying their bikes were meant to be ridden at night, which is inherently unsafe. I'm talking about people being sued for falling off a swingset, which is what this post was about.

A small company can go out of business because of a lawsuit, even if they win a no-judgment.

I should be able to operate in a legal environment where I know if I'm taking chances with liability. That should be established to a certain level, and shouldn't be based on the malice of a plaintiff, and a lawyer's creativity at finding liability.

If you cause economic harm to someone else, you have to pay and there absolutely must be a process for that. A world of no liability means no precaution, and trust me, you don't want to live in that world.

Not a fair statement based on my argument. Suggesting that the system needs to be adjusted is not the same as suggesting that no one have legal recourse for harm.

 

[downzero]

The McDonald's coffee case never went to a jury. It was settled.

If you seriously want to read the case for why we have too few lawsuits, and not too many, PM me and I'll give you some cites. If you have access to a college library, you can probably get access to them. I can warn you, though, once you read them, you'll be very angry at the media...because the media accounts of the tort system will be obviously undeserving.

 

[Expat]

If you cause economic harm to someone else, you have to pay and there absolutely must be a process for that. A world of no liability means no precaution, and trust me, you don't want to live in that world.

It is so comforting to see the thinking of our next crop of ambulance chasers. Get rid of that whole negligence thing. Someone is hurt, you caused it, you have to pay. Forget the whole duty owed, duty breached, proximate cause, damages BS. Forget the concept of comparative fault or contributory negligence. I have a hurt client someone has to pay. Let's chase all the OB/GYN's out of business. None of them must be any good anyway because they are going to have a bad outcome occasionally. That's life. Let's put more and more small business out of business because they can't afford their insurance premiums because idiots slip and fall on snow in the parking lot in winter... golly gee imagine that snow in Indiana in the winter time. We need more suits that's for sure. Just not enough. Get rid of all the playgrounds, real kids sit home playing video games. OH but wait we can sue the manufacturer of those as well after junior stays on it for thousands of hours and gets carpal tunnel. Guys like you hope to be are a parasite to society. Yes there are good lawyers out there. I am good friends with one. He sends people home fairly often, with a "you don't have a case" speech.

 

[Expat]

The McDonald's coffee case never went to a jury. It was settled.

iebeck v. McDonald's Restaurants,[1] also known as the "McDonald's coffee case," is a 1994 product liability lawsuit that became a flashpoint in the debate in the U.S. over tort reform after a jury awarded $2.86 million to a woman who burned herself with hot coffee

Liebeck v. McDonald's Restaurants - Wikipedia, the free encyclopedia

are you ever right on anything?

 

[Ogre]

Downzero, while this is probably not good for your business (which I may be wrong, but I assumed you are an attorney of some sort), The problem with the system that I see is that you must pay an exhorbenant amount to merely defend or bring suit. To jump off track but stay on subject, take divorce and child custody and support hearings. why is the system set up that lawyers are a necessary evil in such procedings? Nine times out of ten the only people who actually come out ahead in many cases are the lawyers, both plaintiff and defendant have spent many thousands of dollars for minimial gain.
I have no first hand experience with this other than several close friends dealing with the legal system in this manner and the only people gaining anything are the lawyers. I understand the old phrase "the man who represents himself has a fool for a lawyer", but I think it is just a shame that our legal system is setup that way

 

[downzero]

It is so comforting to see the thinking of our next crop of ambulance chasers. Get rid of that whole negligence thing. Someone is hurt, you caused it, you have to pay. Forget the whole duty owed, duty breached, proximate cause, damages BS. Forget the concept of comparative fault or contributory negligence. I have a hurt client someone has to pay. Let's chase all the OB/GYN's out of business. None of them must be any good anyway because they are going to have a bad outcome occasionally. That's life. Let's put more and more small business out of business because they can't afford their insurance premiums because idiots slip and fall on snow in the parking lot in winter... golly gee imagine that snow in Indiana in the winter time. We need more suits that's for sure. Just not enough. Get rid of all the playgrounds, real kids sit home playing video games. OH but wait we can sue the manufacturer of those as well after junior stays on it for thousands of hours and gets carpal tunnel. Guys like you hope to be are a parasite to society. Yes there are good lawyers out there. I am good friends with one. He sends people home fairly often, with a "you don't have a case" speech.

That is insulting and false. Oversimplifying what I said to make it sound like I believe in strict liability is insanity.

There are plenty of people who need to go home with the "you don't have a case" speech. There are also plenty of people who will never walk in the door and tell their story who do have a case. The problem isn't too many cases, it's not enough of the right types of cases. That's what I've been saying this entire time.

Liebeck v. McDonald's Restaurants - Wikipedia, the free encyclopedia

are you ever right on anything?

Liebeck v. McDonald's Restaurants,[1] also known as the "McDonald's coffee case," is a 1994 product liability lawsuit that became a flashpoint in the debate in the U.S. over tort reform after a jury awarded $2.86 million to a woman who burned herself with hot coffee she purchased from fast food restaurant McDonald's. The trial judge reduced the total award to $640,000, and the parties settled for a confidential amount before an appeal was decided. The case entered popular understanding as an example of frivolous litigation;[2] ABC News calls the case “the poster child of excessive lawsuits.”[3]

Did you even read what you linked me to? Because I went ahead and bolded the relevant part of it for you.

 

[Expat]

Did you even read what you linked me to? Because I went ahead and bolded the relevant part of it for you.

Yes, YOU SAID IT NEVER WENT TO A JURY. IS THAT TRUE OR FALSE? DEMONSTRABLY AND UTTERLY FALSE. IT IS DISINFORMATION.

 

[downzero]

Downzero, while this is probably not good for your business (which I may be wrong, but I assumed you are an attorney of some sort), The problem with the system that I see is that you must pay an exhorbenant amount to merely defend or bring suit. To jump off track but stay on subject, take divorce and child custody and support hearings. why is the system set up that lawyers are a necessary evil in such procedings? Nine times out of ten the only people who actually come out ahead in many cases are the lawyers, both plaintiff and defendant have spent many thousands of dollars for minimial gain.
I have no first hand experience with this other than several close friends dealing with the legal system in this manner and the only people gaining anything are the lawyers. I understand the old phrase "the man who represents himself has a fool for a lawyer", but I think it is just a shame that our legal system is setup that way

I am not a lawyer. I have studied economics and I am here as a defender of capitalism. I have nothing to gain by sharing my assessment of the empirical evidence on tort suits. If I was a lawyer, I'd prefer not to be involved in these sorts of suits, either. That doesn't mean that I don't think they should exist. There's plenty of evidence to support many legitimate tort suits.

I don't think it's a shame that you need a professional to defend your rights and interests any more than that you need a professional to keep you alive if you have a serious illness. The legal system is hard to understand, but there's plenty of self-help materials out there for those who'd wish to navigate the system themselves. The same is not true of medicine.

I agree with almost everything you have to say, however. It's a shame that it's so expensive. That's part of the reasons that even people who have legitimate claims never make it to court, and part of the economic reason why we don't have more of the right types of cases.

Yes, YOU SAID IT NEVER WENT TO A JURY. IS THAT TRUE OR FALSE? DEMONSTRABLY AND UTTERLY FALSE. IT IS DISINFORMATION.

More like I made a mistake in characterizing the facts. The main point I was trying to make is that the final judgment was not based on a jury verdict. The jury's verdict was not entered. Your assumption that I didn't further clarify my expression, which came purely from memory, or that it was made in bad faith is totally unwarranted.

If anyone is going to use that case to demonstrate that our system is broken, they'd have a hell of a time explaining why McDonalds didn't settle the case earlier, or how or why the judge didn't enter judgment on the original jury verdict, or a number of other issues. I'm not saying that case was rightly or wrongly decided, either, because I just don't know. But the jury didn't end the case--a settlement did.

 

[Expat]

I am not a lawyer.

I believe you hold yourself out as a law student.

 

[UncleMike]

Yes, YOU SAID IT NEVER WENT TO A JURY. IS THAT TRUE OR FALSE? DEMONSTRABLY AND UTTERLY FALSE. IT IS DISINFORMATION.

You're wasting your time arguing with that person!!!
The first thing that they do when someone enters Law School is to suck out half of their brain.
Mike

 

[downzero]

I believe you hold yourself out as a law student.

I'm not sure what the hell "hold yourself out" means, but I know nothing more about the law than you do, or anyone else posting in this thread, for that matter. This isn't about being a law student or not. Being responsible for one's conduct is part of being a member of any civil society, and absolutely essential to the preservation of capitalism.

Either we police ourselves or we become enslaved to the state and it polices us. I prefer the former. I'm not exactly sure as what the rest of you prefer.

 

[Expat]

More like I made a mistake in characterizing the facts. The main point I was trying to make is that the final judgment was not based on a jury verdict. The jury's verdict was not affirmed.

If anyone is going to use that case to demonstrate that our system is broken, they'd have a hell of a time explaining why McDonalds didn't settle the case earlier, or how or why the judge didn't enter judgment on the original jury verdict, or a number of other issues. I'm not saying that case was rightly or wrongly decided, either, because I just don't know. But the jury didn't end the case--a settlement did.

More like a euphemism for spreading disinformation. The trial court judge reduced the amount of the verdict. But it was still as a result of the jury finding favorably for the plaintiff.

Why didn't McDonalds not settle the case before trial? They didn't think they owed the claim. They had a warning on the cup for people too brain dead to know that coffee can be hot. Why did the judge reduce the size of the jury verdict? Because even assuming McDonald's was negligent, the award was out of proportion to the injury sustained.

A settlement was only made because of the huge jury award.

 

[Expat]

I'm not sure what the hell "hold yourself out" means, but I know nothing more about the law than you do, or anyone else posting in this thread, for that matter. This isn't about being a law student or not. Being responsible for one's conduct is part of being a member of any civil society, and absolutely essential to the preservation of capitalism.

Either we police ourselves or we become enslaved to the state and it polices us. I prefer the former. I'm not exactly sure as what the rest of you prefer.

I am sorry if you have never heard the phrase "hold yourself out as". It is fairly commonly used in my experience. You are the one that has dropped that into a couple different threads. I assume there was a reason you mentioned it previously. It was apparently information you thought was important to impart to the rest of us.

 

[downzero]

More like a euphemism for spreading disinformation. The trial court judge reduced the amount of the verdict. But it was still as a result of the jury finding favorably for the plaintiff.

Why didn't McDonalds not settle the case before trial? They didn't think they owed the claim. They had a warning on the cup for people too brain dead to know that coffee can be hot. Why did the judge reduce the size of the jury verdict? Because even assuming McDonald's was negligent, the award was out of proportion to the injury sustained.

A settlement was only made because of the huge jury award.

The huge jury award was not entered as a judgment at any level of court, so you either can't understand the article to which you linked me, or you're just purposely mischaracterizing reality to suit your foregone conclusion.

I'm not going to comment on the case because I don't actually know. I do know that people exist, like you, who just assume that it's wrong and fit the facts to their conclusion. I'm not really surprised that people who come here throwing insults instead of analyzing the facts are in that group, either.

I am sorry if you have never heard the phrase "hold yourself out as". It is fairly commonly used in my experience. You are the one that has dropped that into a couple different threads. I assume there was a reason you mentioned it previously. It was apparently information you thought was important to impart to the rest of us.

I don't use that term.

I also don't see how two weeks of law school has changed any of my thoughts about what we're talking about. I can tell you one thing that it has changed, though. I am starting to lose enjoyment in arguing with you people about the law. It used to be fun, because I actually enjoy learning about what's going on in our world and in the law. But ever since law school started (I've been here a whole two weeks), everyone wants to follow me around the forum, brow-beating me because they think their opinion is better than a second-week law student.

Maybe I'll just post in fewer of these threads. Because it seems that because I'm in law school, I can't have opinions on public policy anymore, or they're necessarily tainted, or I'm brainwashed, or whatever. And that's a bunch of crap. I'm grown up enough to weigh costs and benefits and generate my own political opinions, irrespective of my chosen educational path.

Going to any level of school doesn't really change what you think about anything. It just helps you examine what you think more critically. Sometimes, when you look back at your opinions, you see that they don't really fit the facts, and you change them. But this isn't part of the systemic process of education on any level. I was a capitalist and a libertarian before I ever went to college, and I was when I left, too, but I was one armed with an entirely different and more complicated view of markets and how they function.

Everyone assumes law school is some process whereby one "learns" the law, but that's just not the case. The "law" is a very complicated thing. It's not as simple as what is written in a statute, or a single judicial opinion. And if you asked me the simple question of what the law "is" for a given scenario, I couldn't answer you in a sentence or even a paragraph, and I'm not sure anyone else could, either.

I am not an expert on what we're talking about. I have read some empirical economic studies on the issue and I have taken an undergraduate course in law and economics. My opinion is informed, but it is not professional, not based upon any first-hand accounts or any of that. I am not a lawyer, and even if I was, I still might not know a damn thing about this. Ultimately, this is a philosophical discussion for me. You guys do make some seriously good points, but they aren't persuasive to me, because other arguments outweigh those issues.

If people (on both sides) didn't have good arguments, the Supreme Courts of this country would be awfully bored. The key is realizing that even the side that you think is "wrong," will win sometimes, and it's not always due to malpractice. This is just part of life, that sometimes you win, and sometimes you lose. It doesn't mean you should stop playing or the game is totally screwed. It's just part of playing the game that you're going to lose sometimes.

And the same is true of ANY body of the law you read. Courts, even at the highest level, get it totally and utterly wrong sometimes.

 

[Bill of Rights]

So... if I have a swingset and my neighbor's kid is injured not because of a failure of the swingset but because the kid was standing on the top bar and fell off, hitting his/her head on the way down... Should the manufacturer be sued? Should I, as the property owner? Or should the parent suck it up and take the responsibility for his/her own kid who came and used my kid's swingset when I wasn't even home?

If someone breaks into my house, I pull out a pistol and shoot them, should they be able to sue me because they were injured on my property? (moot point. Dead men can't file lawsuits.)

If someone breaks into a doctor's office through the skylight, going in looking for drugs, falls and breaks his leg, who should be sued? The doctor? The skylight manufacturer? How about the criminal, for causing the doctor to have to replace the skylight and whatever was under it when the BG fell through and caused the damage?

Too few lawsuits? Do you really want to make that argument?

 

[Eddie]

A part of the problem is something that Dross touched on earlier: not all defendants are created equal.

To an extent, insurance and the current tort system works pretty well when all of the players have a lot of money. McDonalds can afford to decide whether or not to settle or take their case to trial because McDonald's has enough money to do either and still pay a judgment if they lose.

Instead, imagine yourself put in that situation: you get sued and you don't have insurance to cover what you are being sued for. A cheap attorney is gonna cost $100 an hour and they are figuring on 100 hours of time to try the case. The other side is completely lying but their lies are creating a disputed fact so you can't just get the case dismissed on summary judgment. The judge, after you spend $2,000 to answer the original complaint and get through the initial discovery, orders the parties into mediation. The mediator is billing you $100 an hour. After three hours of mediation the other side offers to settle for $5,000.

What do you do?

On a small scale, when the average guy is a defendant, the wheels of justice look more like millstones. Right or wrong you are gonna get ground down just trying to play the game.

 

[Eddie]

So... if I have a swingset and my neighbor's kid is injured not because of a failure of the swingset but because the kid was standing on the top bar and fell off, hitting his/her head on the way down... Should the manufacturer be sued? Should I, as the property owner? Or should the parent suck it up and take the responsibility for his/her own kid who came and used my kid's swingset when I wasn't even home?

If someone breaks into my house, I pull out a pistol and shoot them, should they be able to sue me because they were injured on my property? (moot point. Dead men can't file lawsuits.)

If someone breaks into a doctor's office through the skylight, going in looking for drugs, falls and breaks his leg, who should be sued? The doctor? The skylight manufacturer? How about the criminal, for causing the doctor to have to replace the skylight and whatever was under it when the BG fell through and caused the damage?

Too few lawsuits? Do you really want to make that argument?

To use the Dr.'s office scenario as an example, current practice seems to be to sue the doctor, the skylight manufacturer, the guy that installed the skylight, the architect who designed the building, the owner of the building, the property manager, the construction company that built the building, the drug manufacturer, the plant that built the table he landed on, the guy that sold the doctor the table, the cleaning lady and a couple of guys who happened to be walking by outside the night before.

And I am only exaggerating a little bit for purposes of humor.

 

[downzero]

A part of the problem is something that Dross touched on earlier: not all defendants are created equal.

To an extent, insurance and the current tort system works pretty well when all of the players have a lot of money. McDonalds can afford to decide whether or not to settle or take their case to trial because McDonald's has enough money to do either and still pay a judgment if they lose.

Instead, imagine yourself put in that situation: you get sued and you don't have insurance to cover what you are being sued for. A cheap attorney is gonna cost $100 an hour and they are figuring on 100 hours of time to try the case. The other side is completely lying but their lies are creating a disputed fact so you can't just get the case dismissed on summary judgment. The judge, after you spend $2,000 to answer the original complaint and get through the initial discovery, orders the parties into mediation. The mediator is billing you $100 an hour. After three hours of mediation the other side offers to settle for $5,000.

What do you do?

On a small scale, when the average guy is a defendant, the wheels of justice look more like millstones. Right or wrong you are gonna get ground down just trying to play the game.

I think you've hit the nail on the head exactly as I would. I didn't want to say "poor people get screwed" because it'd sound like some sort of egalitarian crap. But, not only do I agree with you about your fact pattern, but imagine this one:

Same situation, but the reverse. Good plaintiff, good case, but not a lot of money. States a legit cause, no dismissal. Disputed issue of fact, no summary judgment. Then what? If the other side has the money/time to drag it out, maybe she gets nothing. And as a society, we want her to get something if she has a legit case, right? But we already know how this one would play out...she'd never bring a case at all, because she can't afford her attorney's fee.

It cuts both ways, but this is what I mean about 1. too many of the wrong suits and 2. not enough of the right ones. Plenty of good, decent, honest, hard-working, but not wealthy people get injured based on someone else's negligence. And what happens to the other side? Nothing, because he knows, and the injured party knows, that it is too expensive to try, even if you do recover.

And I can't tell you what the solution is or might be, because whatever would make it cheaper would diminish due process. Due process is a constitutional entitlement and we all want as much of it as we can get....but it's become so expensive that we seem to have lost sight of any notion of justice or efficiency at all.

And, sadly, the winners are the lawyers either way. And I think that's unfortunate for ALL sides of the litigation.

 

[Expat]

So... if I have a swingset and my neighbor's kid is injured not because of a failure of the swingset but because the kid was standing on the top bar and fell off, hitting his/her head on the way down... Should the manufacturer be sued? Should I, as the property owner? Or should the parent suck it up and take the responsibility for his/her own kid who came and used my kid's swingset when I wasn't even home?

If someone breaks into my house, I pull out a pistol and shoot them, should they be able to sue me because they were injured on my property? (moot point. Dead men can't file lawsuits.)

If someone breaks into a doctor's office through the skylight, going in looking for drugs, falls and breaks his leg, who should be sued? The doctor? The skylight manufacturer? How about the criminal, for causing the doctor to have to replace the skylight and whatever was under it when the BG fell through and caused the damage?

Too few lawsuits? Do you really want to make that argument?

Bill, did you know kids sometimes use the swing set? Should you have known that it would draw poor innocent children to it? Then it is an attractive nuisance and you are liable.

Your shooting on premises, luckily you have some legislated protection there. But as to dead men filing suit, are you kidding they do it all the time. Their estates, their loved ones....

The skylight case, I remember reading that case and the doctor lost.

 

[downzero]

Bill, did you know kids sometimes use the swing set? Should you have known that it would draw poor innocent children to it? Then it is an attractive nuisance and you are liable.

Your shooting on premises, luckily you have some legislated protection there. But as to dead men filing suit, are you kidding they do it all the time. Their estates, their loved ones....

The skylight case, I remember reading that case and the doctor lost.

I have to say, if those are legit cases, that is truly unfortunate. If I was on the jury, I wouldn't give a trespasser a dime, "attractive nuisance" or not.