1. IrvingSnodgrass - Feb. 12, 1999 - 7:27 PM PT
A discussion has slowly heated up over the past few days in the News of the Day thread over the recent court decision determining that some gun manufaturers are responsible for firearm use. The tobacco suits of last year have also been brought into the equation. Is there a new trend of bypassing legislation and using the courts to effectively do what laws won't?
Read the discussion in News of the Day, and then tell us what you think.
2. CalGal - Feb. 12, 1999 - 7:57 PM PT
Here is the NOD discussion leading up to the creation of this thread.
3. CIGARLAW - Feb. 12, 1999 - 11:20 PM PT
its nothing new. how do you think the civil rights movement won?
the problem i see is the current trend to find villians instead of just looking in the mirror. i smoke and if i die because of it, it is my fault, not some cigar roller in honduras. i own lots of guns. if i get killed by one of them, or kill someone, it is my fault, not the guy who made it.
people have lost faith in the democratic process and have turned to the most autocratic branch of gov. to address their grievences, real or imagined. what we need is an emperor on a white horse.
4. ChristinO - Feb. 13, 1999 - 12:38 AM PT
I nominate you Don Cigarlaw.
but only if you have a glass of champagne for me.
5. darkviolet - Feb. 13, 1999 - 12:44 AM PT
ChristinO, what are you doing in this dusty place at 12:4X Saturday morning?
6. ChristinO - Feb. 13, 1999 - 12:45 AM PT
Meet me in the Corner and I'll tell you all about it.
7. darkviolet - Feb. 13, 1999 - 12:46 AM PT
I hope you are not moping. I'm not, not really.
I'm in a mood to capture fleeting memories, though.
8. cartman69 - Feb. 13, 1999 - 1:58 AM PT
Elliot:
Here is an article explaining the Dix case I mentioned in the News thread. Evidently the parents lost the suit, as they should have. I hadn't heard about that. But they are appealing the jury's decision.
9. cartman69 - Feb. 13, 1999 - 2:11 AM PT
And here is an article mentioning the grounds for appeal in the Dix case. Admittedly, the juror sounds like she's not playing with a full deck.
10. Mrtoner - Feb. 13, 1999 - 4:58 AM PT
I've been reading the exchanges concerning the recent gun cases and think both sides have some good points.
Thanks to Cartman69 for news reports about cases that might shed a bit of additional light on the debate. But the fact is, without our knowing a lot more about the legal rationale for these cases, and about the evidence presented to the juries, there's no definitive way of judging whether they were rightly decided.
I'm not suggesting that one cannot raise discussion points without this kind of research--I haven't done the research, either. But sometimes litigators can be pretty innovative, even if they're just contingent-fee tort lawyers.
As others have pointed out, the pattern of litigation's being used to right wrongs unaddressed by legislative bodies is far from new, and is, on balanace, probably a Good Thing. Naturally, you have to have a judicial system that doesn't go absolutely nuts and starts recognizing anything and everything as a legitimate cause of action.
Undeniably, sometimes judges have been too activist. It's equally maddening, though, when courts refuse to permit any deviation from the strict letter of statutory law, or when they interpret law in an unduly narrow fashion.
It ain't a perfect world, and don't it just freeze you sometimes, when it don't go your way?
11. ranheim - Feb. 13, 1999 - 5:26 AM PT
It seems to me that more has been decided by executive order and by the courts since the days of FDR (e.g. our current tax law - much modified - was a wartime measure; details of which were written by an FDR staffer).
With only 25 - 30% of elgibile voters voting in recent elections, I suppose the powers-that-be can make a case that they are undertaking measures and sentiments that the entire populace would should that group have enough time to study problems/programs on their own.
One of the early politicians is usually quoted as saying that the laws of this country should be made by those who OWN it. That would not be PC currently. However, the Executive and Judicial branches of government creating/changing most of our laws in recent times smacks of a certain kind of elitism.
In my opinion, some of the worst decisions are those that are made by lawyers. They certainly are some of the most controversial : e.g. Roe v Wade. Nature abhors a vacuum. Unless the great un-washed (us) begin making some of the tougher decisions, executive orders and courts will continue to step into the vacuum.
12. NICOLE7 - Feb. 13, 1999 - 9:59 AM PT
I have watch in utter horror as first it was falling off ladders,then smoking and now gun makers being sued.If you fall off a ladder its your fault,[unless the ladder breaks from something left out or something in the manufactering was faulty]]if you get cancer and your started smoking after 1960 ,its your damn problem,it was well publicized after 1960,and it sounds stupid but dammit its true guns dont kill people people kill people,if someone wants to kill someone they will,I can buy a gun within 5 minutes of leaving my house and I live in Teaneck NJ,THIS COUNTRY BETTER START FACING THE REASONS WHY THERES SO MUCH VIOLENCE AND GET OFF THE SUE AT THE DROPPING OF A HAT ROUTINE.
13. elliot803 - Feb. 13, 1999 - 1:00 PM PT
From the New York Times:
The Legal Battle: A Brief Overview
Results in Tobacco Litigation Spur Cities to File Gun Suits
New Data Point Blame At Gun Makers
9 Gun Makers Called Liable for Shootings
Verdict Against Gun Makers Likely to Prompt More Lawsuits
14. Greystoke - Feb. 13, 1999 - 1:27 PM PT
Elliot
Those are very interesting and informative links.
I expect to see more activity by state legislatures like the Georgia legislation described in your first link:
"Gun manufacturers and their supporters began a long and expensive counterattack on Monday on the growing number of lawsuits that cities are filing against the gun industry by successfully pushing the Georgia Senate to pass the first bill in the nation intended to block such suits.
The measure, which has moved rapidly through the Legislature, was passed by the House last month, and Georgia's governor, Roy Barnes, who was endorsed by the National Rifle Association in his recent campaign, is expected to sign the bill this week.
"Georgia is a strong Second Amendment state," said Sen. Eric Johnson, the Republican minority leader from Savannah. "People here see any attempt to sue gun manufacturers as an attempt to restrict the citizen's right to keep and bear arms." Both houses passed the bills with strong bipartisan majorities, the Senate voting 44-11, the House 146-25. Barnes has not commented publicly on the bill, but legislative leaders said they have been assured by his office that he will sign it."
15. enochsmoky - Feb. 13, 1999 - 1:29 PM PT
Make these reforms to our tort lialibity system and the most outrageous results will be kept to a minimum:
1) The losing party pays attorneys and court costs for both sides.
2) If punitive damages are assessed, the money should go to either the state or federal government and not the plaintiff and his attorneys.
3)Contigency fees should not be paid on punitive damages.
4) Joint and several liability damage assessments should be paid according to the % of damage each party is responsible for and not picked up by the deep pocketed defendant.
I know that I am dreaming that these reforms will happen anytime soon with the Democratic Party a wholly owned subsidiary of the trial lawyers association, but justice and common sense sometimes comes to the Democrats through osmosis.OTOH the trial lawyers will have to be pounded unmercifully to reform their easy money racket.
16. Greystoke - Feb. 13, 1999 - 1:31 PM PT
Elliot
More from your fourth link:
"In a lawsuit filed in Federal District Court in Brooklyn, which legal experts called a test case for a wave of suits that have recently been filed against the gun industry by a number of large cities, the jury found Thursday that 15 of 25 firearms makers named in the suit had been negligent, and that as many as 9 of the 15 were liable for three shootings -- two of them fatal -- in the New York City region in recent years.
The jury found that those nine manufacturers were collectively liable for the shootings -- even though it was not proved what brand of gun had been used in a particular shooting -- because their marketing and distribution practices fostered illegal gun trafficking from states with weak gun laws to those with strict regulations, like New York. "
How could the jury find the manufacturers liable "even though it was not proved what brand of gun had been used in a particular shooting"?
Do you support that reasoning, Elliot?
17. CalGal - Feb. 13, 1999 - 1:44 PM PT
Greystoke,
"How could the jury find the manufacturers liable "even though it was not proved what brand of gun had been used in a particular shooting"?"
See here--it's quicker than going back to News of the day. Look for post #2663.
Basically, the judge allowed the plaintiffs to argue that no "chain of title" was required back in May. This allowed the plaintiffs to argue that the entire industry was responsible.
18. elliot803 - Feb. 13, 1999 - 2:23 PM PT
GreyStoke:
"Do you support that reasoning, Elliot?"
Yes.
As for the new Georgia state law that attempts to block lawsuits of this kind, it is certain to face challenges on constitutional and other grounds. Additionally:
"Anti-gun lobbyists say the NRA will probably be successful in several state capitals but predicted that enough city lawsuits would go forward unimpeded to keep the industry busy in court. Many of the cities that have filed suit are being guided by a group of the same private lawyers who brought the original suit against the tobacco companies, and the lawyers say they are ready for the NRA."
19. AuNaturel - Feb. 13, 1999 - 3:25 PM PT
enochsmoky:
"2) If punitive damages are assessed, the money should go to either the state or federal government and not the plaintiff and his attorneys."
I'm afraid this would be extremely counterproductive. The government would serve to benefit from any punitive damages that might acrue, yet would bear no risk. Government would therefor *encourage* suits with punitive damages in order to enhance revenue.
Greystoke:
Elliot would probably embrace any conceivable mechanism to reduce the legal ownership of firearms up to and including the imposition of matial law and the initiation of civil war. You needn't bother using logic with him any more than trying to logically convince Jerry Falwell that Tinky-Winky isn't turning out children into gays
20. CIGARLAW - Feb. 13, 1999 - 4:24 PM PT
christineO: all my friends shall have enough champage to bathe in it -- particularly you. how does countess of santa barbara sound to you?
actually, the gun manufactuers have an out -- sue the killers. no, wait... no money.
you see, the gov. avoids being sued on theories such as this, by, at least in ca, asserting immunity and/or comparitive negligence. ie, even if not immune, you only collect from the gov its percent of fault. so if hit by a drunk driver on a blind curve with no warning signs,if the jury says 97% of fault was the DUI and 3% to lack of warning, the gov pays 3% and the DUI oes to bankruptcy court. in other states, and CA, unless you are the gov., if you are found o.1% at fault and the other party is broke, you pay 100% of judgment. perhaps we ought to give everyone the same rights as the gov.
21. cartman69 - Feb. 13, 1999 - 5:52 PM PT
Elliot Message #13:
Interesting links, but they raise several questions in my mind. Why are gun manufacturers responsible for dealers selling to minors or criminals? Why are manufacturers responsible for keeping track of what kind of dealers their wholesalers are selling to? Why aren't dealers who have been caught selling to minors or criminals shut down, and their licenses permanently revoked?
I'm not saying gun manufacturers should be totally absolved of their sins, but I don't understand the reasoning that a gun manufacturer has to pay up because a dealer, several steps down the food chain and well outside the manufacturer's purview, sold a gun to someone who decided to misuse it. Make the dealer pay, if he sold to someone he shouldn't have. 'Course, there's no money in that, so it'll never happen.
22. CalGal - Feb. 13, 1999 - 5:59 PM PT
Cart,
What's interesting is that the judge dismissed the case against the wholesale dealers.
23. CalGal - Feb. 13, 1999 - 6:00 PM PT
Oops. The distributors, not the dealers. But still. Why the one and not the other?
24. cartman69 - Feb. 13, 1999 - 6:06 PM PT
Cal:
Again, it's all about who's got the deepest pockets. That's why Philip Morris gets blamed for teen smoking, instead of Apu's Kwik-E-Mart, who actually *sold* the kids some smokes. PM has a shitload of cash, and Apu doesn't.
25. Greystoke - Feb. 13, 1999 - 6:32 PM PT
cartman69
"Again, it's all about who's got the deepest pockets. That's why Philip Morris gets blamed for teen smoking, instead of Apu's Kwik-E-Mart, who actually *sold* the kids some smokes. PM has a shitload of cash, and Apu doesn't."
I agree. But why don't the kids themselves get the biggest share of the blame for teen smoking? The teen smokers are just helpless, unknowing victims of Philip Morris and its lackey Apu? I think not.
26. CalGal - Feb. 13, 1999 - 7:09 PM PT
We have lost any concept of personal responsibility!!!!!
My God, I have morphed into Boomer Jeff.
27. cartman69 - Feb. 13, 1999 - 7:21 PM PT
Greystoke:
Actually, quite a few towns have started fining kids for smoking.
28. Greystoke - Feb. 13, 1999 - 7:26 PM PT
Hmmmmmm. BoomerGal. Kind of catchy.
29. CalGal - Feb. 13, 1999 - 7:36 PM PT
That was my second best laugh of the night, Grey.
30. CIGARLAW - Feb. 13, 1999 - 10:58 PM PT
Yep, cal. we HAVE lost all sense of personal responsibility. sort of goes with the loss of our concept of liberty.
31. CalGal - Feb. 13, 1999 - 11:03 PM PT
Cig,
You know, you were the first person who got me considering that connection.
32. cartman69 - Feb. 13, 1999 - 11:30 PM PT
Reminds me of the Ben Franklin saying, "Those who would sacrifice liberty for safety deserve neither".
33. AuNaturel - Feb. 13, 1999 - 11:54 PM PT
"We have lost any concept of personal responsibility!!!!!"
Bingo!!!! Welcome to the Nanny State where we are told repeatedly by the government, by lawyers, by academeia and by the inteligencia that we are not to blame for our ills, we wear the Holy Mantle of Victimhood. Then we are pointed towards the current devil du jour and told that's where the blame lies, not on our own shoulders. Incapable of bearing personal responsibility, we become as children and Uncle Sam becomes Sugar-Daddy who will make everything all right. No need for thought on our part cuz we'll only make bad decisions. Governmental power is enhanced, personal freedom is depleted.
34. cartman69 - Feb. 14, 1999 - 12:16 AM PT
AuNaturel:
Precisely, and this is now the coin of the realm for lawyers to accumulate money and politicians to acquire power: finding a bad guy to go after, preferably one with money. Inciting class warfare. Lawyers flummoxing bored and irritated jurors into believing that if someone is injured, even if they've injured themselves, someone *else* must pay for it.
There is absolutely no reason on earth to give one person $51.5 million for being unable to break a deadly habit (smoking). None whatsoever. The average person's lifetime earning power is maybe 1/20 of that amount, if they have a skill.
Now, I firmly believe that the tobacco companies should be punished for lying incessantly about their product, but it should be hammered out in a criminal court. And any monetary damages should go into a fund earmarked to repay all the money the government has spent treating people for tobacco-related illnesses. Individual smokers and ex-smokers should not receive one dime for their folly. If you can't figure out from the first puff off a cigarette that smoking is very bad for you, too damn bad. Grab a clue, folks. There's a reason it makes you sick the first time you try it.
States that are set to receive this newfound tobacco largesse are now engaged in deciding what pork project to blow the money on. It's not even *about* improving health care; it never was. It's about a few lawyers (like Hillary Clinton's brother) getting a percentage on what they can grind out of the companies. And now that they've succeeded with proven liars like Philip Morris, they'll start heading down the line: Gun manufacturers, casinos, breweries/distilleries/wineries...and in the end, a few lawyers will be financially enriched, the product will cost more for the consumer, and absolutely NOTHING will be done about any supposed "health costs".
35. CalGal - Feb. 14, 1999 - 12:20 AM PT
Cart,
Well, actually smokers *save* the government money. Which is the kicker.
36. steveconoverjr - Feb. 14, 1999 - 12:25 AM PT
>Then we are pointed towards the current devil du jour and told that's where the blame lies, not on our own shoulders
I think the most interesting damage to personal responsibility comes from a certain fatalism within people these days (i.e., "I can't help it because I have naturally have trouble dealing with x (insert a psych-sounding word like "commitment" here). This is purely an outgrowth of psychologists scientizing (my made-up word) people's problems. You all know people like this...they spend half their income on psychologists and read lots of self-help and motivational-type literature.
What's scarier, though, is that even more-balanced people I know are buying into this crap, at least in part. "I have a tendency to" and "I naturally...blah" - yeah well everything you do starts with a conscious individual decision.
Regards,
Steve
37. cartman69 - Feb. 14, 1999 - 12:34 AM PT
Cal:
True. That is the kicker. Unless of course, the smoker lives long enough to collect everything he paid in to Social Security over the years *and* has to get medical treatment through Medicare. Which happens quite frequently, I would think.
38. CalGal - Feb. 14, 1999 - 12:57 AM PT
Cart,
I don't know about individual smokers. I know that I read a Samuelson column citing a study that said if all smokers quit tomorrow, health costs would go up 5%.
But I can't remember the name of the study or find the article.
Steve,
"I think the most interesting damage to personal responsibility comes from a certain fatalism within people these days (i.e., "I can't help it because I have naturally have trouble dealing with x (insert a psych-sounding word like "commitment" here). This is purely an outgrowth of psychologists scientizing (my made-up word) people's problems. You all know people like this...they spend half their income on psychologists and read lots of self-help and motivational-type literature."
I not only know people like this, many people think I *am* people like this. (I'm not. But don't tell anyone.)
However, I don't see any direct connection between this and the loss of personal responsibility. I agree that people might use a psychobabble phrase to explain their lack of responsibility. But I don't think one caused or contributed to the other. They just found the terms to be convenient labels.
39. elliot803 - Feb. 14, 1999 - 9:38 AM PT
AuNaturel:
"Elliot would probably embrace any conceivable mechanism to reduce the legal ownership of firearms up to and including the imposition of matial law and the initiation of civil war."
This comment is utterly stupid.
40. elliot803 - Feb. 14, 1999 - 9:46 AM PT
cartman:
"Interesting links, but they raise several questions in my mind. Why are gun manufacturers responsible for dealers selling to minors or criminals?"
They weren't held reponsible for dealers selling to minors; they were held responsible for their own negligent marketing and distribution practises.
"Why are manufacturers responsible for keeping track of what kind of dealers their wholesalers are selling to?"
I'm not aware that they are.
"Why aren't dealers who have been caught selling to minors or criminals shut down, and their licenses permanently revoked?"
I would assume that dealers who break the law are indeed subject to criminal prosecution.
"I'm not saying gun manufacturers should be totally absolved of their sins, but I don't understand the reasoning that a gun manufacturer has to pay up because a dealer, several steps down the food chain and well outside the manufacturer's purview, sold a gun to someone who decided to misuse it."
They weren't held liable for that; they were held liable for their own negligent marketing and distribution practises; which were found to be a proximate cause for at least some of the shootings.
41. elliot803 - Feb. 14, 1999 - 9:55 AM PT
AuNaturel:
"Bingo!!!! Welcome to the Nanny State where we are told repeatedly by the government, by lawyers, by academeia and by the inteligencia that we are not to blame for our ills, we wear the Holy Mantle of Victimhood."
This tired mantra yet again. But you forgot the part about how Americans have lost their sense of Rugged Individualism, which is What Made This Country Great.
42. ranheim - Feb. 14, 1999 - 12:47 PM PT
Has anyone else noted that sociologists and lawyers have eliminated the word that clergy formerly used : sin.
e.g. one does not rail against demon rum anymore. We are know told that there is a chemical in our brains that causes a certain % of us to drink too much. And its really not the fault of the poor PATIENT - never felon. Someone please tell MADD!!!
Using this same logic, none of us should be responcible for smoking, gambling, chasing women/men; gambling; eating at the golden arches.
For what other human conditions does one need a chemical in the brain.
43. LadyChaos - Feb. 14, 1999 - 1:30 PM PT
Message #15, enochsmoky
"1) The losing party pays attorneys and court costs for both sides."
This sounds like a good idea on its face, but it would really only serve as an additional barrier against low-income individuals bringing tort claims against large companies. Not every suit is lost due to lack of merit.
"2) If punitive damages are assessed, the money should go to either the state or federal government and not the plaintiff and his attorneys."
If this were to happen, you would see zero suits for punitive damages. The government should not get to take all the money where a law firm took the risk of bringing the suit.
"3)Contigency fees should not be paid on punitive damages."
I could see a rationale for putting a ceiling on contingency fees based on punitives, but to have no contingency fee based on punitives would again thwart law firms from putting up the risk capital to help private citizens bring high-costs suits against powerful companies.
"4) Joint and several liability damage assessments should be paid according to the % of damage each party is responsible for and not picked up by the deep pocketed defendant."
This is already true in some states.
"I know that I am dreaming that these reforms will happen anytime soon with the Democratic Party a wholly owned subsidiary of the trial lawyers association, but justice and common sense sometimes comes to the Democrats through osmosis.OTOH the trial lawyers will have to be pounded unmercifully to reform their easy money racket."
It's really not such an "easy money racket" being a plaintiff's lawyer. My father has done mostly defense work his whole career, and has only recently begun taking on plaintiff's cases in medical malpractice suits. The plaintiff work is much harder, truth be told, because the plaintiff's firm has to front all costs, including the hiring of expert w
44. LadyChaos - Feb. 14, 1999 - 1:33 PM PT
It's really not such an "easy money racket" being a plaintiff's lawyer. My father has done mostly defense work his whole career, and has only recently begun taking on plaintiff's cases in medical malpractice suits. The plaintiff work is much harder, truth be told, because the plaintiff's firm has to front all costs, including the hiring of expert witnesses, taking depositions in cities across the country, trial costs, etc.
45. LadyChaos - Feb. 14, 1999 - 1:45 PM PT
The notion that we are entering a new era of "judge-made" law is nonsense. Our legal heritage is descended from the English common law, in which courts gradually developed the law of property, contract, and tort over centuries of rulings. In fact, criminal law is the only area where we have comprehensively replaced the common law, perhaps with the exception of procedural rules.
The problem with guns, I would guess, is whether the doctrine of strict liability can be applied to them as to other products. The questions to be asked are complex, but the most basic ones are: (1) was the product being used for the purpose for which it was made when the injury occurred? (2) did it contain adequate warnings and instructions for its use? and; (3) could it have been made safer without either making it unreasonable expensive or defeating its functionality?
The problem that cities and individuals will have in suing gun manufacturers is that, on the whole, the American gun industry is pretty good about making its products reasonably safe to use and providing adequate warnings and instructions. However, I think that it's a little bit disingenuous to say that improvements could not be made. The problem now, of course, is that if they make those improvements, it could be used as evidence against them.
46. LadyChaos - Feb. 14, 1999 - 1:54 PM PT
As long as we have the 2d Amendment, I have come to realize that the only logical thing to do is to have mandatory firearms safety instruction as part of a public education curriculum. Most accidental gun deaths that one reads about, such as the case that cartman69 linked earlier, happen because an adult left a loaded gun improperly stored and unattended, and a child found it who didn't understand how it worked and just how deadly it was. We have a law in this State that makes it a felony to leave a firearm within reach of a minor, but such a law will generally only be enforced against a gun owner when it's already too late.
47. Jonesatlaw - Feb. 14, 1999 - 1:57 PM PT
LadyC- 43-45 good posts. Unfortunately, these are tough cases. If they weren't they wouldn't attrack attention.
I haven't read the cases yet, and won't comment on their substance until I do. The Nanny State, and the parade of horrors are pretty shop worn arguments. There's far fewer of these suits than anything else in the courts, but they attract a great deal of attention.
48. LadyChaos - Feb. 14, 1999 - 2:02 PM PT
Jones,
One thing I've learned as the child of a lawyer is that the vast bulk of litigation involves relatively reasonable sums of money. But the sensational cases get lots of media attention, and so corporate lobbyists are able to stir up the pot and foist tort reform laws that are favorable to them. The public who takes this lying down will probably only wake up to the problem when they get injured by a large HMO or manufacturer, and find that they have no legal recourse.
49. LadyChaos - Feb. 14, 1999 - 2:09 PM PT
I would add that the argument that we have given up on democracy is misleading. People have stopped participating in democracy because they have come to see it as a rigged game in favor of corporations and the wealthy. To a certain extent, I tend to agree. The courts are where average citizens can take on the powerful and make them pay for the harm they cause.
50. cartman69 - Feb. 14, 1999 - 2:21 PM PT
Elliot:
From your third link in Message #13: "Guns legally move from a manufacturer to a distributor and then to licensed dealers. But the new data suggest that many handguns enter the illegal market through dealers' selling them to straw purchasers acting for another customer, to out-of-town buyers who cannot legally buy guns back home or to buyers who lack gun permits.
"In Chicago, for example, which has one of the nation's most restrictive gun laws, undercover officers recently went to suburban dealers and were able to buy guns while posing as members of city street gangs. Chicago is using evidence from that sting operation to seek hundreds of millions of dollars in its own lawsuit against gun makers."
Sounds like the real problem is at the street level; there are unscrupulous dealers who will sell to anyone & everyone, regardless of age or criminal status. In this case, the government should be putting these people out of the gun business permanently, by assessing fines and revoking dealer licenses. It it not Beretta's fault if Joe's Guns is selling to convicted felons--unless Beretta is directly supplying Joe and has been notified of his predilection for selling to felons. If Joe gets his supply from a distributor or wholesaler, then it is not Beretta's problem, imho.
51. cartman69 - Feb. 14, 1999 - 2:23 PM PT
(cont. to Elliot):
From the fourth link:
"Still other suits, filed by cities like New Orleans and Miami, are based on a different argument: that the gun makers have failed to include sufficient safety devices in their products. All the cities' suits are intended to recoup law-enforcement and hospital costs stemming from gun violence.
"In only one of the shootings was a gun recovered. But the plaintiffs' chief lawyer, Elisa Barnes, told the jury that this 'simply doesn't matter'.
"Ms. Barnes and her trial colleagues -- Denise Dunleavy, Michael S. Feldberg and Marc E. Elovitz -- asserted that the gun makers made no attempts to keep their products from falling into criminal hands, like requiring wholesalers not to supply dealers suspected of selling the weapons to questionable buyers. 'They don't care,' Feldberg declared of the manufacturers."
Well, of course they don't care. There's not much they can do about it even if they did care, any more than Jim Beam can shut down every liquor-store owner that sells to minors. It's not their job anyway; it's the government's job to go after the violators of the law.
I particularly enjoy this bit of legalistic flummery: "...requiring wholesalers not to supply dealers suspected of selling the weapons to questionable buyers."
So let me get this straight--if a dealer is *suspected* (not guilty, mind you, for that would necessitate revocation of the dealer's license, right?) of selling to questionable buyers, then it is the gun manufacturer's responsibility to lean on the wholesalers, and tell them who they can and can't sell to, even if no crime has been proven? Ah, if only our very own government had that sort of inventory control!
52. LadyChaos - Feb. 14, 1999 - 2:26 PM PT
cartman69,
You can bet the farm that Beretta knows where its products are going and to whom they are being sold. That's not to say that I necessarily agree that Beretta should be held liable, but it's unrealistic to think that any major manufacturer doesn't have a pretty good idea of where its products end up. The Chicago deals are not isolated incidents.
53. cartman69 - Feb. 14, 1999 - 2:29 PM PT
LadyChaos Message #46:
I think most states have firearm laws similar to the one you mention; however, it is my understanding that such laws are rarely enforced to the full extent of the law. This is because it is almost always a family member's gun responsible for the tragedy, and prosecutors are reluctant to throw into jail a father whose son accidentally shot himself with the father's gun.
At the very least, the offender's gun license should be revoked permanently, and a healthy fine assessed, if not jail time. Unfortunately, I don't think that happens very often. There should be severe penalties for doing something as stupid as leaving a loaded gun where kids can find it, but people feel sorry for the family when it happens, so usually nothing gets done about it (except hopefully, the offender doesn't leave a loaded gun out anymore).
54. LadyChaos - Feb. 14, 1999 - 2:32 PM PT
cartman69,
For the sake of argument: Would it be unreasonable to have car manufacturers make sure that dealers were not selling to unlicensed drivers?
I don't think that any lawyer is going to be able to hit on the right formula for proving their case, but it's certainly not unreasonable to posit that the major gun manufacturers have a pretty good idea of what percentage of their wares are being sold illegally. The problem is to show how they should be expected to exercise any degree of control over those sales.
55. CalGal - Feb. 14, 1999 - 2:37 PM PT
Cart,
"There should be severe penalties for doing something as stupid as leaving a loaded gun where kids can find it, but people feel sorry for the family when it happens, so usually nothing gets done about it (except hopefully, the offender doesn't leave a loaded gun out anymore)."
Yes. Exactly. I have no problem with prosecuting parents for their stupidity. It might serve as an object lesson for others. Their grief is their own problem.
Lady,
"Would it be unreasonable to have car manufacturers make sure that dealers were not selling to unlicensed drivers?"
Um. Yes. Do you think otherwise?
56. LadyChaos - Feb. 14, 1999 - 2:53 PM PT
CalGal,
Read the rest of my previous post for the answer to your question.
57. CalGal - Feb. 14, 1999 - 3:05 PM PT
Lady,
I did read it. I just didn't see an answer.
"but it's certainly not unreasonable to posit that the major gun manufacturers have a pretty good idea of what percentage of their wares are being sold illegally."
I don't see why you think that's reasonable. But even if so, you skipped a step in between this and your next sentence:
"The problem is to show how they should be expected to exercise any degree of control over those sales."
Namely, *if* they know that their product is being used illegally, why should they care? Why is it their responsibility? And then you can get to whether or not they should be expected to exercise control.
We going after glue manufacturers next?
58. LadyChaos - Feb. 14, 1999 - 3:14 PM PT
CalGal,
Don't be silly. As a gunowner who shoots on a regular basis, I appreciate the arguments of the gun manufacturers. It is ridiculous, though, to say that those manufacturers simply don't know where a large percentage of their product ends up. I've worked with product managers for some of the world's largest corporations, and they all have a fair idea of who buys their products and what they are used for, isolated eccentricities excepted, of course.
The question of whether they should care is being assumed *arguendo* for the time being.
Your analogy to glue manufacturers is specious; one can't point a bottle of glue at someone and kill them with a squeeze of the finger (unless they manage to get the victim in a very odd position).
59. LadyChaos - Feb. 14, 1999 - 3:17 PM PT
I think that the strongest case against guns could be made by comparing them to lawn darts; i.e., an inherently dangerous product with almost no social utility. Of course, the lawn dart manufacturers got sued out of existence. That's not likely to happen with the gun makers.
60. CalGal - Feb. 14, 1999 - 3:22 PM PT
Lady,
"Your analogy to glue manufacturers is specious; one can't point a bottle of glue at someone and kill them with a squeeze of the finger (unless they manage to get the victim in a very odd position)."
Now. Did you not see that I was referring to glue-sniffers? Or have you just not explained why it isn't analogous?
"The question of whether they should care is being assumed *arguendo* for the time being."
Well, no. I realize that the judge agreed that they should care, last May. But it seems to me that part of what we are debating, in general, is whether or not that ruling made sense.
61. cartman69 - Feb. 14, 1999 - 3:30 PM PT
LadyChaos:
"For the sake of argument: Would it be unreasonable to have car manufacturers make sure that dealers were not selling to unlicensed drivers?"
Yes. It's the dealer's fault if he sells a car to an unlicensed driver, not Ford's fault. Not only that, if the driver in question is an adult, and he promptly goes out and kills someone with the car, it's HIS fault, not the dealer's. What happens if the driver presents a fake DL, and acquires a car? Isn't it clearly the driver's fault?
And I don't doubt that the Chicago gun case is an isolated incident. But if a gun dealer is selling to minors or criminals, then the *law* should put him out of business. These juries are basically making manufacturers financially liable if they don't do the job of law enforcement, which is not only impractical but damned close to extortion.
The problem seems to be that it's simply not enough to assess criminal pnealties and liabilities; it's about the money. For instance, if Beretta is indeed *responsible* for people getting shot, why isn't anyone from the company being prosecuted for involuntary manslaughter, or criminal negligence? If this is a problem with unscrupulous marketing & distribuion, then the people in charge of those departments should be prosecuted criminally.
But that ain't the deal. The deal is that these cities have stumbled upon what the states did with the tobacco companies: a cash cow. They're not really worried about reassessing the role of corporate responsibility, they smell money.
62. CalGal - Feb. 14, 1999 - 3:30 PM PT
"I think that the strongest case against guns could be made by comparing them to lawn darts; i.e., an inherently dangerous product with almost no social utility. "
Selfprotection counts as a social utility.
And for heaven's sake, don't anyone get into the whole numbers game. Yes, I realize that more people die from accidents with guns than protect themselves. That's somewhat besides the point when considering each individual situation.
But that goes back to whether or not the goal is to protect people from their potential to make mistakes.
Also, there *is* that pesky Amendment.
I don't think the lawn darts analogy holds up.
63. cartman69 - Feb. 14, 1999 - 3:57 PM PT
Actually, I think the lawn dart analogy works to a certain extent. There's only two ways you can get hurt with a lawn dart: 1) you're dumb enough to stand near the target and you get hit; 2) the thrower is an incredibly poor shot. Either way, you have a case of common sense not being exercised, and I don't see why that's the fault of the lawn dart manufacturers.
Essentially, decisions like these, over the years, have sent a message to the idjits of the world: if you don't have any judgment, discretion, or common sense, fear not--you can get paid anyway, 'cause it's somebody else's fault! Did you spill hot coffee in your lap? That's OK, it's not your fault for having the dexterity of a brick, it's MickeyD's fault for making the coffee too hot!
Look, I don't own a gun, I've never smoked, and I have an instinctive mistrust of anything corporate. But I'm a big believer in people owning up to the responsibility for their actions, and many of these decisions we've discussed obviate that simple, sensible line of logic.
64. LadyChaos - Feb. 14, 1999 - 4:09 PM PT
CalGal,
"Now. Did you not see that I was referring to glue-sniffers? Or have you just not explained why it isn't analogous?"
Your reference was obvious. Can you think of a reason why it's not analogous to gun violence?
"I realize that the judge agreed that they should care, last May. But it seems to me that part of what we are debating, in general, is whether or not that ruling made sense."
Okay. Gun manufacturers *should* care whether or not a significant amount of their products are being diverted into illegitimate markets.
cartman69,
"It's the dealer's fault if he sells a car to an unlicensed driver, not Ford's fault."
If it's a series of isolated cases, I would agree with you. But if the dealer regularly sells, say, fifteen percent of its wares to unlicensed drivers on a regular basis and Ford knows about it, then Ford could arguably be held liable. It's interesting to note that auto manufacturers established dealerships in the early part of this century mainly to take advantage of what was then known as the "privity doctrine," which held that one could only sue the entity with which he had contractual privity (i.e., the entity from which they bought the car) for injuries caused by a dangerous or defective product. This had the effect of protecting car manufacturers from liability until the privity doctrine was abandoned by the New York Court of Appeals.
"Not only that, if the driver in question is an adult, and he promptly goes out and kills someone with the car, it's HIS fault,"
Agreed. That's what the law says, anyway.
"What happens if the driver presents a fake DL, and acquires a car? Isn't it clearly the driver's fault?"
If the fake DL was presented in circumstances that would have led a reasonable person to believe that the DL was genuine, then of course the dealer should not be liable. If, otoh, the person was obv
65. LadyChaos - Feb. 14, 1999 - 4:10 PM PT
If the fake DL was presented in circumstances that would have led a reasonable person to believe that the DL was genuine, then of course the dealer should not be liable. If, otoh, the person was obviously underage, a reasonable jury could find that the dealer was negligent in not double-checking. The irony here is that dealers have an incentive not to deal with minors because a minor can usually revoke a contract to buy a car, unless the dealer can prove that the car was purchased as a necessity.
66. CalGal - Feb. 14, 1999 - 4:12 PM PT
Cart,
"There's only two ways you can get hurt with a lawn dart: 1) you're dumb enough to stand near the target and you get hit; 2) the thrower is an incredibly poor shot. Either way, you have a case of common sense not being exercised, and I don't see why that's the fault of the lawn dart manufacturers."
Well, yeah. I agree. I was focusing on her use of the word "social utility".
67. LadyChaos - Feb. 14, 1999 - 4:22 PM PT
CalGal,
I put up the lawn dart sitch as a "close" analogy, but not a precise one. Lawn darts appeared on the market as a game to be marketed to families, to be played with by little kiddies. Juries found that it was reasonably foreseeable on the part of the manufacturers that children would toss them over fences and such, resulting in serious if not grave injuries.
68. LadyChaos - Feb. 14, 1999 - 4:26 PM PT
CalGal,
The social utility argument is a valid one to be made. The question for a jury would be whether the social utility of self-defense was reasonably greater than the risk of harm.
69. elliot803 - Feb. 14, 1999 - 4:27 PM PT
CalGal:
"Namely, *if* they know that their product is being used illegally, why should they care? Why is it their responsibility?"
For the same reason that any company has a responsibility to take reasonable measures to prevent their products from being used in ways that cause harm to innocent people.
"We going after glue manufacturers next?"
Maybe. If people are harmed because glue companies have been negligent in a legally culpable way in the design, manufacture or sale of their products, then I hope someone does go after them. In fact, I wouldn't be surprised if someone already has.
"Selfprotection counts as a social utility."
The "self-protective" value of guns is largely a myth.
"Also, there *is* that pesky Amendment."
No gun control law, including gun bans, has ever been struck down on Second Amendment grounds. The Second Amendment is largely a red herring with respect to the issue of gun control.
"Yes, I realize that more people die from accidents with guns than protect themselves. That's somewhat besides the point when considering each individual situation."
Individual situations are beside the point that the overall effect of guns is harmful.
70. CalGal - Feb. 14, 1999 - 4:37 PM PT
Lady,
"Can you think of a reason why it's not analogous to gun violence?"
Well, that was part two of my question. I wanted to know your reasons for thinking so.
"Gun manufacturers *should* care whether or not a significant amount of their products are being diverted into illegitimate markets."
Thank you for filling in that step in your argument.
"The social utility argument is a valid one to be made. The question for a jury would be whether the social utility of self-defense was reasonably greater than the risk of harm."
Right. But to put self-defense on the level of, say, lawn darts?
71. LadyChaos - Feb. 14, 1999 - 4:38 PM PT
"There's only two ways you can get hurt with a lawn dart: 1) you're dumb enough to stand near the target and you get hit; 2) the thrower is an incredibly poor shot. Either way, you have a case of common sense not being exercised, and I don't see why that's the fault of the lawn dart manufacturers."
If the person tossing the dart is a child and the person getting injured is either a child or someone on the other side of a wooden fence, I don't see how the above statement could stand.
Some people seem to be missing the traditional purpose of Anglo-American tort law. It is not to say that individual actors are not responsible, but rather that manufacturers and sellers are in a better position to protect society in general from the effects of dangerous or defective products and to spread the cost burden of liability through cost or through insurance or both. Viewed in this light, the question of whether gun manufacturers should be held liable when their products are regularly sold to people who can reasonably be expected to use them for committing violent acts against other humans proves more complex than would first appear.
72. CalGal - Feb. 14, 1999 - 4:44 PM PT
Elliot,
We are not talking gun control, we are talking liability. Lady Chaos had said that guns were analogous to lawn darts. I was merely pointing out that lawn darts weren't guaranteed in the constitution. I have never said that gun control laws weren't constitutional.
Do you ever tire of stating the obvious? One would think from sheer boredom you would take another approach.
"The "self-protective" value of guns is largely a myth."
I knew you would say that, sweetie pie. Alas. While it is probably true, it doesn't matter whether or not it is a myth for most people. In each individual case, a person buying a gun might be doing it for that reason, and Elliot the Evangelist scoffing at their concerns really isn't going to cut it. Remember, I am talking about this *in comparison to lawn darts*, dearheart.
"Individual situations are beside the point that the overall effect of guns is harmful."
And that is because you say so?
73. LadyChaos - Feb. 14, 1999 - 4:44 PM PT
CalGal,
"Well, that was part two of my question. I wanted to know your reasons for thinking so."
The deadly effects of a gun are immediate and easily perpetrated by the holder of the gun against others. This is not the case with glue.
"But to put self-defense on the level of, say, lawn darts?"
It's not a question of putting it on the same "level" as lawn darts, but rather it's one of pointing out the risk/utility test used in product liability law. If the risk of injury is seen by a jury to outweigh the product's utility, the manufacturer can be liable.
An example of a product that is inherently dangerous but has a high utility value is a harvester combine. Such things can only be made so safe before their utility or cost becomes use prohibitive. Lawn darts are at the other end of the spectrum. Guns are somewhere in between on the spectrum, but much closer to lawn darts, imo.
74. elliot803 - Feb. 14, 1999 - 5:02 PM PT
CalGal:
"We are not talking gun control, we are talking liability."
Irrelvant. 'That pesky Amendment,' by which I assume you mean the Second Amendment, has even less to do with product liability law than it does with gun control.
"While it is probably true, it doesn't matter whether or not it is a myth for most people."
Of course it matters. Law should be based on reality, not myth. The myth may have prevailed, more or less, in the United States so far, but eventually I think the facts will win out, as they already have in the rest of world.
"And that is because you say so?"
No, it is because individual situations really are beside the point that the overall effect of guns is harmful.
75. CalGal - Feb. 14, 1999 - 5:14 PM PT
Elliot,
You are missing the point about guns and social utility. Lady Chaos was making a case for the social utility of guns as analogous to lawn darts. She was saying that since guns have no social utility, there is a correlation. (or that that is the argument to make.) I realize you have much sympathy with this argument. I was merely pointing out that guns are, like it or not, in a different category than lawn darts. Now leave this one be until we get into a *real* second amendment discussion, which this is not. Be a big boy now, and leave this alone. You will have wasted all your second amendment arguments on someone who isn't making that case. And then you'll have to cut and paste them to use again. But then, you already do that, don't you?
"No, it is because individual situations really are beside the point that the overall effect of guns is harmful."
It boggles my mind that you think it is necessary to restate your argument. Perhaps some mentally deficient alien wasn't up to speed on your approach. No doubt he is grateful.
Now. Go play with someone else. Or come up with something interesting to say.
76. LadyChaos - Feb. 14, 1999 - 5:21 PM PT
CalGal,
"Lady Chaos was making a case for the social utility of guns as analogous to lawn darts. She was saying that since guns have no social utility, there is a correlation. (or that that is the argument to make.)"
Your penchant for misconstruing another's point shows through in this statement. What I said was that, in applying the risk/utility test as applied to other products liability lawsuits, a reasonable jury might be pursuaded that the risk of injury from guns (or perhaps only certain *types* of guns) outweighs their utility. I hope you can see the distinction.
77. CalGal - Feb. 14, 1999 - 5:23 PM PT
Lady,
"The deadly effects of a gun are immediate and easily perpetrated by the holder of the gun against others. This is not the case with glue."
Suppose gluesniffing reaches epidemic proportions. And glue manufacturers realize that there is just no way that the increased sales of the product are due to the added need to stick two pieces of paper together.
Are you saying that the cities wouldn't consider suing glue manufacturers? Or that they wouldn't be able to?
If so, then all your reasons why glue-sniffing isn't like gun-shooting go bye-bye. If not, then I agree that glue is not a valid analogy.
78. CalGal - Feb. 14, 1999 - 5:27 PM PT
Lady,
I do see the distinction. In fact, I made the distinction. In the part you quoted. Please see "(or that this is the argument to make.)" Perhaps I should have added "to a jury", but since your entire series of posts are addressed purely to the legal aspect, I figured you would get that.
The point is that Elliot is still back on second amendment, using up all his valuable arguments. He has so few; I was trying to save him the effort.
79. elliot803 - Feb. 14, 1999 - 5:27 PM PT
CalGal:
You are the one who mentioned the Second Amendment, as if it were relevant. It's not.
"It boggles my mind that you think it is necessary to restate your argument."
It wasn't a restatement of my argument. It was an answer to your question.
80. CalGal - Feb. 14, 1999 - 5:31 PM PT
Oh, be silly. You said the same thing.
The fact that guns are protected by the second amendment, when lawn darts are not, is not relevant when one draws an analogy between the two? Christ, Elliot. Besides everything else, it was a by the way. So chill. You're being silly. Go stroke your Teletubby.
81. lemwalker - Feb. 14, 1999 - 5:37 PM PT
Next someone will sue God for allowing death. Would rather worry about a lot of things other than if I can make it through the police check station. A nation of bloody sheep! If you are unarmed the assailant doesn't need much of a weapon. Chunk of wood, rock, larger size. Predator or Prey. Choose your team.
82. elliot803 - Feb. 14, 1999 - 5:38 PM PT
CalGal has now entered her mode of "explaining" and "clarifying" her previous posts. Get ready for a flood of lengthy posts "explaining" how she didn't mean what she actually said, she meant such-and-such, a cycle that will continue until her position, if it can be called that, collapses into complete incoherence.
83. CalGal - Feb. 14, 1999 - 5:43 PM PT
Elliot,
Oh, good. You found your Tinky Winky. Hopefully it will help.
Now. Wait until someone *really* brings up the second amendment. You have all your arguments ready.
84. Greystoke - Feb. 14, 1999 - 6:04 PM PT
LadyChaos
"An example of a product that is inherently dangerous but has a high utility value is a harvester combine. Such things can only be made so safe before their utility or cost becomes use prohibitive. Lawn darts are at the other end of the spectrum. Guns are somewhere in between on the spectrum, but much closer to lawn darts, imo."
And each jury in a product liability case is free to make that determination? What a great way to set public policy! And this is setting public policy, is it not? The dart manufacturers are out of business. And the zealots are trying their damnedest to drive the cigarette and gun manufacturers out of business. The rationale: Congress and the state legislatures aren't acting, or acting fast enough to suit them.
Talk about an undemocratic approach. What ever happened to trying to convince a majority of Americans that your position is the correct one? (I am speaking to the zealots, not you with that question.)
85. LadyChaos - Feb. 14, 1999 - 6:16 PM PT
Greystoke,
See my Message #45.
CalGal,
"Suppose gluesniffing reaches epidemic proportions. And glue manufacturers realize that there is just no way that the increased sales of the product are due to the added need to stick two pieces of paper together. Are you saying that the cities wouldn't consider suing glue manufacturers? Or that they wouldn't be able to?"
No, I'm saying that the risks are different. You shoot someone with a gun and BANG, they're either dead or seriously injured. The effects of glue are self-induced and require repeated use over a period of time in order for the harmful effects to accrue.
Nevertheless, the same risk/utility test would be applied; i.e., does the glue's utility outweigh its risks of causing harm, and are there any viable and safer alternatives that the manufacturers should reasonably have been aware of.
86. LadyChaos - Feb. 14, 1999 - 6:25 PM PT
Greystoke,
I'm not particularly alarmed that lawn dart manufacturers were put out of existence by lawsuits. If a product is so risky and yet of such negligible value to society, then forcing the makers and sellers to pay for the injuries caused by that product to the point that selling the product is no longer profitable is not a bad thing for our justice system to do. You have to remember that no one decides that they are going to just take a manufacturer to court and put him out of business. A causal link to an injury must first be proven, but as I have pointed out, it doesn't end there.
87. CalGal - Feb. 14, 1999 - 6:26 PM PT
Lady,
The fact that the risks are different are utterly irrelevant if the cities use the same utility argument to take them to court.
I am only pointing that out because you scoffed at the glue/sue argument when I brought it up, yet you have now said that the same argument would be used. Which was, oddly enough, my point as well.
If I misunderstood, apologies.
88. Greystoke - Feb. 14, 1999 - 6:40 PM PT
LadyChaos
"If a product is so risky and yet of such negligible value to society, then forcing the makers and sellers to pay for the injuries caused by that product to the point that selling the product is no longer profitable is not a bad thing for our justice system to do."
But can we expect that juries will always properly balance the value to society versus the risk of the product? Perhaps after a long series of trials and appeals, that balance is reached. Or maybe not.
But it is entirely possible that a jury verdict could put a company out of business even if the product has negligible risks and great benefits to society. What if the manufacturer cannot afford to appeal an unjust verdict? It seems to me that Congress and/or an executive branch department (FTC, FDA, BATF) should be weighing the benefits of a product versus the cost to society, not the civil courts.
89. LadyChaos - Feb. 14, 1999 - 6:44 PM PT
CalGal,
You really do have a remarkable talent for taking something out of context and, over a series of posts, coming around to saying that what you meant was something different.
You originally asked why gun manufacturers should care if their products were being used illegally, and then made the jump to rhetorically asking if glue manufacturers would be sued next. My point in response was that the types of harm are of two very different natures. A gun is an inherently dangerous product; used as directed, it kills immediately and with great efficiency. I keep hollow-point bullets in my clip, and the manufacturer who made those bullets knows that the precise purpose of those bullets is their "man-stopping" power. It's reasonably foreseeable that a gun, once sold into the stream of commerce, will be used to kill somebody.
The problem with glue is entirely different. In addition to the risk/utility test, one would have to pose the question as to whether the unintended use of deliberately sniffing the glue (I'm assuming that this is what you meant) was reasonably foreseeable, and also whether the manufacturer was aware or had reason to be aware that a certain number of people were misusing it in this way. (It's more complicated than that, but that's essentially the idea.)
90. LadyChaos - Feb. 14, 1999 - 6:49 PM PT
Greystoke,
Judges are allowed to give directed verdicts in place of unreasonable jury verdicts. The system has worked rather well, over time.
"But it is entirely possible that a jury verdict could put a company out of business even if the product has negligible risks and great benefits to society."
This hasn't happened to my knowledge. Prescription drugs, for example, are held to a negligence standard rather than a strict liability standard, so the burden of proof for a plaintiff is much greater.
"What if the manufacturer cannot afford to appeal an unjust verdict?"
For a small manufacturer, his insurance company would handle appeals if it thought it had a case (and they often do). Large manufacturers will not be put out of business by one lawsuit.
91. AuNaturel - Feb. 14, 1999 - 6:59 PM PT
LC
"You have to remember that no one decides that they are going to just take a manufacturer to court and put him out of business."
The objective is usually to suck as much money out of the manufacturer as possible regardless of the merit of the case. Destruction of an industry is a side effect. I am reminded of the idiot who spilled the hot coffee in her lap and then was awarded bazillions of bucks by an equally idiotic jury. Had it not been McDonalds she was tangling with, she might have gotten away with it.
92. AuNaturel - Feb. 14, 1999 - 7:10 PM PT
Greystoke:
"It seems to me that Congress and/or an executive branch department (FTC, FDA, BATF) should be weighing the benefits of a product versus the cost to society, not the civil courts."
They do already. However any agency whose mandate is to "regulate" will invariably bias towards ever increasing regulation. That's just Empire Building 101 at work. Short of a political earthquake, the trend is NEVER in the opposite direction. Even then the reverses are but temporary. If you like this situtation, you must be assuming that NO degree of possible regulation is ever too much.
The civil courts will do much better the bureaucracy given reasonable standards of evidence. The most obvious issue is that the plaintif should have to demonstrate behaving in a reasonable and prudent manner with the product before any award should even be possible.
93. CalGal - Feb. 14, 1999 - 7:13 PM PT
Lady,
"You originally asked why gun manufacturers should care if their products were being used illegally, and then made the jump to rhetorically asking if glue manufacturers would be sued next. "
Precisely. So I have taken nothing out of context. The fact that you are focusing on the *differences* of the two products--which I don't dispute--has nothing to do with the fact that the similarities (which you have acknowledged) are there.
Your original scoffing was misplaced. Had you just pointed out the differences between guns and glue, rather than dispute every aspect of my analogy, I wouldn't have quibbled.
Now chill, for heaven's sakes, and go find some other legal technicality to justify your time spent Fraying.
94. AuNaturel - Feb. 14, 1999 - 7:24 PM PT
"It's reasonably foreseeable that a gun, once sold into the stream of commerce, will be used to kill somebody."
Not at all true. Most guns never shoot anything more than paper. The rare guns that do, mostly shoot game. Most defensive (and offensive) uses of a firearm do not involve the discharge of a round. Less that 1 in 10,000 firearms end up in the commission of a homocide.
"In addition to the risk/utility test, one would have to pose the question as to whether the unintended use of deliberately sniffing the glue (I'm assuming that this is what you meant) was reasonably foreseeable..."
Of course glue sniffing is easily forseeable. So are idiots spilling scalding coffee all over themselves. So are auto accidents. So are elctrocutions, given the 110 ac voltage going through your home wiring. Easily forseeable is nonsense. If you don't set the standard to be "dangerous even when used in a reasonable and prudent manner", all you do is reward irresponsibility.
95. LadyChaos - Feb. 14, 1999 - 7:37 PM PT
AuNaturel,
You're barking up the wrong tree. The standard is "reasonably foreseeable," not "easily foreseeable." And I'm not advocating anything; just clearing up some of the legal issues that will be considered in a lawsuit against gun manufacturers.
CalGal,
Yeah, whatever. This pattern of endless quibbling couldn't possibly be related to how you communicate, I suppose.
96. Greystoke - Feb. 14, 1999 - 7:37 PM PT
AuNaturel
"The civil courts will do much better the bureaucracy given reasonable standards of evidence."
So you are saying that any twelve people chosen at random can do a better job of deciding the risks of a product versus the benefits to society than Congress or the empire building executive branch? Well, I disagree. Actions of Congress are supposed to reflect the will of the people. And executive branch agencies rely heavily on scientific evidence to make their regulatory decisions. I'm not saying those decisions are perfect, but better than jury decisions.
I realize that you are a Libertarian. Does that also mean that you distrust democracy as the "tyranny of the majority"?
(And yes I know that Lady Chaos made a good case for civil litigation in Message #90, but I want to know what you think.)
97. LadyChaos - Feb. 14, 1999 - 7:48 PM PT
Greystoke,
I think that your concern is a little misplaced. Juries aren't making broad, sweeping policies for all society, but are only called upon to render verdicts in specific cases where specific causal links to specific harms or injuries must be proven.
98. cartman69 - Feb. 14, 1999 - 7:49 PM PT
LadyC Message #71:
"If the person tossing the [lawn] dart is a child and the person getting injured is either a child or someone on the other side of a wooden fence, I don't see how the above statement could stand."
Ah, but if the object is a rock, it's a different story, isn't it? Although I'm sure that if Mother Nature could get stuck with the punitive and compensatory damages, some tort lawyer would give it the old college try.
"Some people seem to be missing the traditional purpose of Anglo-American tort law. It is not to say that individual actors are not responsible, but rather that manufacturers and sellers are in a better position to protect society in general from the effects of dangerous or defective products and to spread the cost burden of liability through cost or through insurance or both."
OK, I admit that I don't know much about tort law; I'm not a lawyer (nor do I play one on TV). But it seems that in *modern* tort cases, the traditional intent of the law has been twisted a bit, and allowed individuals to claim exorbitant amounts for questionable damages.
The infamous McDonald's coffee case is a classic example. If I remember correctly (and I probably don't have the numbers exactly right), the woman originally was awarded $2 million, and the amount was later dropped to about $300,000. Which is still too much. This just in--fresh coffee is usually very hot! She should not have received a penny. Yet some juries seem deliberately blind to the obvious.
Now, if a product is defective, or more dangerous than is necessary to manufacture it, then one has a case. But really, nearly ALL products can be dangerous, if used incorrectly or ineptly. The best a manufacturer can do in good conscience is assess the risks of the product, refine it the best they can, and provide instructions and warnings for the consumer to be aware of.
99. LadyChaos - Feb. 14, 1999 - 7:51 PM PT
Perhaps to give a "legal" voice to the main reservation being expressed here, I should point out that the most important element in liability that will tend to work in favor of gun manufacturers is that of duty. If gun manufacturers can show that they were under no duty to protect against the harm alleged in a particular lawsuit, they cannot be held liable.
100. LadyChaos - Feb. 14, 1999 - 8:01 PM PT
"Ah, but if the object is a rock, it's a different story, isn't it? Although I'm sure that if Mother Nature could get stuck with the punitive and compensatory damages, some tort lawyer would give it the old college try."
Perhaps. I read of a case where a guy tried to sue the devil, but it was thrown out of court because it was impossible to serve process on the defendant.
"...But it seems that in *modern* tort cases, the traditional intent of the law has been twisted a bit, and allowed individuals to claim exorbitant amounts for questionable damages."
You're getting needlessly hung up on sensational cases like the McDonald's coffee spill. In the vast majority of cases, neither the facts nor the damage awards are in any way exceptional.
"Now, if a product is defective, or more dangerous than is necessary to manufacture it, then one has a case. But really, nearly ALL products can be dangerous, if used incorrectly or ineptly. The best a manufacturer can do in good conscience is assess the risks of the product, refine it the best they can, and provide instructions and warnings for the consumer to be aware of."
You are right, and the case law has respected this. Misuse of a product can be a complete defense against liability if the misuse was an unforeseeable one. Some misuses are foreseeable, though, like using a chair as a stool to change a light bulb.
The coffee spill case doesn't fit in here because the plaintiff did not misuse the product in any way. You need to think of a different angle on that one.