Forget Who's At Fault; Sue The Deepest Pockets
It's truly horrible that this woman's mother was killed after her car was hit by a driver talking on his cell phone, but blame lies with that driver, not the cell phone manufacturer or the wireless company that provided his service. Yet, that's who she's suing.
Matt Richtel writes in The New York Times about the suit brought by the woman, 35-year-old Jennifer Smith:
"This is a compelling type of legal claim," said Kenneth A. Bamberger, a professor at the University of California, Berkeley, School of Law. "It deals with the widespread use of a product we now know is involved in significant risk and deals with the ultimate question of who should contribute in minimizing the risk."The lawsuit, filed in October, involves a crash in Oklahoma City on Sept. 3, 2008. Ms. Smith's mother, Linda Doyle, 61, died after her Toyota Rav4 was hit by a Ford pickup driven by Christopher Hill. Mr. Hill, then 20, told the police he was so distracted by a cellphone call that he ran a red light at 45 miles an hour, hitting Ms. Doyle's car as it crossed in front of him.
Mr. Hill was talking on a Samsung UpStage phone on the Sprint Nextel service. Samsung declined to comment. Sprint Nextel said that it "rejects the claims of negligence" in the suit and that it includes safety messages on packaging and user manuals, on its Web site and in its advertising.
I'm so sorry for Smith's going through, but suing the manufacturer and wireless company is like suing a gun manufacturer when a person is murdered with a handgun -- or suing a mascara manufacturer when you're rear-ended by a woman applying makeup behind the wheel.
Of course, it isn't appliance direction booklets (which maybe aren't even read) that keep people from negligent behavior, but caring enough about other human beings to take adequate care when, say, speeding down the road in a several-ton vehicle.
via Overlawyered
So does that mean we can sue alcohol companies for the actions of drunks. Or surgical implements supliers if a surgeon screws up?
lujlp at December 9, 2009 12:52 AM
Sorry if this becomes a threadjack. The TSA released their screening manual, complete with limits, has been online for a while.
Suki at December 9, 2009 4:03 AM
If he wasn't talking on a cell phone and hit her anyway, should they just sue the automaker?
This suit needs to go nowhere, though the motives are obvious. Fearing that she won't be able to get the bazillions that an accident victim surely is entitled to if she sues the culprit, she went after the cell phone manufacture.
Of course, if we got a little more harsh with our deadbeats and found ways of making them pay, then perhaps this woman would go after Christopher Hill instead of the company that sold him the cell phone.
Why would any lawyer agree to pursue such a ridiculous charge?
Patrick at December 9, 2009 4:32 AM
"Why would any lawyer agree to pursue such a ridiculous charge?"
Because he gets a percentage. Maybe the case will be laughed out of court (as it ought to be), but maybe it will be worth millions. So it's like a lottery ticket, only the chances of winning are a lot better.
bradley13 at December 9, 2009 4:59 AM
Bradley: Exactly. This is why we need tort reform. Were we to institute "loser pays" rules, frivolous lawsuits of this sort would disappear.
kishke at December 9, 2009 6:11 AM
Should we be surprised? If people could sue gun makers for what people did with them, and McDonalds for making them fat, then people can sue ANY company for what people do with their products. Stupid beyond belief, but hey, that seems to be the American way.
momof4 at December 9, 2009 7:07 AM
...but hey, that seems to be the American way.
Right? And how sad is that? It's almost as if "personal responsibility" is just a pipe dream anymore.
Why isn't she suing Christopher Hill's insurance company? I mean, he must have had insurance, no?
Flynne at December 9, 2009 7:10 AM
Why isn't she suing Christopher Hill's insurance company?
There is no legal basis to sue an insurance company unless they had
a contract with you. The insurance company gets involved when
you sue one of their policy holders (in this caee, Chistopher Hill).
There are two reasons (okay, it boils down to one reason: greed) to
sue more than the driver. One, the typical insurance coverage has
minimal limits. Two, the driver was required to be insured, but
that doesn't mean he was.
Ron at December 9, 2009 8:13 AM
Berkeley Law Professor Kenneth A. Bamberger should be ashamed of himself for providing that sound byte. He's contributing to bad name trial lawyers have earned for themselves, and I don't think he makes Berkeley Law look very upstanding, either.
Robin at December 9, 2009 8:35 AM
Damned foolish. DAMNED FOOLISH!
Countersuit for filing a frivolous action, should be filed jointly by the state and the manufacturer.
Ashame her husband is dead, but frankly the money grubbing activity removes my sympathy for her.
Robert at December 9, 2009 8:41 AM
This type of behavior is in direct concert with Amy's column today about parenting, actions have consequences, sometimes many years down the road. No one forced that person to be on the cell phone, he was negligent, period. In my mind, cell phone conversations while driving a vehicle are no less irresponsible than drinking and driving, especially if not using handsfree devices.
jksisco at December 9, 2009 8:54 AM
"I'm so sorry for Smith's going through, but suing the manufacturer and wireless company is like suing a gun manufacturer when a person is murdered with a handgun"
No, it is a fair lawsuit. Like many gun manufacturers, Sprint and Samsung knew damn well that selling a mobile phone to a young person is a deadly combination. They specifically market their phones to the young hip crowd who don't know any better and don't have the willpower to resist talking, texting, or sexting while driving. That poor young man is a victim of the evil cell phone consortium!
/sarcasm
Sio at December 9, 2009 10:10 AM
kishke: Bradley: Exactly. This is why we need tort reform. Were we to institute "loser pays" rules, frivolous lawsuits of this sort would disappear.
I have to say, "loser pays" is a terrible idea. With the threat of that hanging over their heads, a legitimately wronged person might be dissuaded from pursuing a civil suit, just out of fear of a technicality getting his case dismissed.
People have the right to sue in good faith and should not be discouraged at the thought of "loser pays" rules sending them to the poor house, on top of whatever injuries they may have incurred.
Patrick at December 9, 2009 10:27 AM
a legitimately wronged person might be dissuaded from pursuing a civil suit, just out of fear of a technicality getting his case dismissed.
I'm not sure that that would be more damaging than the situation we're in today, which makes it profitable for lawyers to file all kinds of frivolous lawsuits. But even if you're correct, there's no reason we can't tailor "loser pays" to minimize the damage you describe; e.g., by defining "losing" as not merely the dismissal of the case on a technicality, but as the court ruling definitely that the defendant was not responsible for the damage.
kishke at December 9, 2009 10:49 AM
Patrick writes: "I have to say, 'loser pays' is a terrible idea. With the threat of that hanging over their heads, a legitimately wronged person might be dissuaded from pursuing a civil suit, just out of fear of a technicality getting his case dismissed."
I assume it would only apply if the case actually goes to trial. I agree that it should not apply if, say, the case is dismissed because of a statute of limitations. (Although in that case I might support a "loser's lawyer pays" rule...)
I will point out that "loser pays" is the rule in most Western nations; the U.S. is the major exception. However, if "loser pays" is too unpalatable to too many people, I'd support this alternative: eliminate the doctrine of joint and several liability. This is the rule that makes one defendant responsible for the entire amount of a judgment even if other defendants were found to be more liable.
Cousin Dave at December 9, 2009 11:00 AM
How about "loser pays" with some discretion by the judge to apportion the payment. In other words, if the judge rules it was a legitimate grievance and not a frivolous lawsuit (even though it lost), the judge can assign a portion of costs (from all to none) for the loser to pay.
That way, parties with deep pockets still have little incentive to drag a case out or throw batteries of lawyers at it.
Conan the Grammarian at December 9, 2009 12:35 PM
Aren't there supposed to be penalties for frivolous lawsuits anyway?
I'm not a rich person, and even if I were, I have better things to do than pay court costs for a suit I filed in good faith. If the GinormousSuperDuperRich organization wrongs me and I have a legitimate grievance, considering the high-powered lawyers at their disposal and their ability to drag out my case forever, the thought of losing and being forced to pay for my loss would pretty much deter me from seeking redress.
I would say "loser pays" if the judge rules "frivolous lawsuit," with the option to appeal the judge's "frivolous lawsuit" ruling.
Patrick at December 9, 2009 1:17 PM
If the GinormousSuperDuperRich organization wrongs me and I have a legitimate grievance,
"Loser pays" would ensure that you and your lawyer make damn sure it really is a legitimate grievance, and not just in your eyes.
kishke at December 9, 2009 2:33 PM
kishke: "Loser pays" would ensure that you and your lawyer make damn sure it really is a legitimate grievance, and not just in your eyes.
Kishke, it's a terrible idea. A single technicality could get a legitimate grievance thrown out and put the defendant in serious debt in addition to whatever he has may have suffered that prompted him to file the suit in the first place.
Patrick at December 9, 2009 2:45 PM
The quote that got me was this one: "It deals with the widespread use of a product we now know is involved in significant risk and deals with the ultimate question of who should contribute in minimizing the risk."
Dude... How much more do you expect the cell phone companies to do to "minimize the risk"? I mean, they litter their packaging, the manuals, and adverts with "Do Not Use in These Situations" messages AND most phones now come with hands-free headsets when you buy them (except maybe GO Phones). I mean, do you have to include a shut-off device that will activate whenever a car engine is turned on? How much can a company reasonably DO in a situation like this?
I mean, consider Amy's stance on cell phones, for example. Anytime Amy says something along the lines of "Damn few calls are worth interrupting other people's peace of mind and texting while talking is obnoxious" [a paraphrase], we get a thousand people on these chatboards going "But I need my phone for work" and "I never refuse a call from my children" or "my friends know to only call my cell if its important". And these are people who normally believe in the power of nice. Now imagine a big auto-shut off for cell phones in cars. Can you imagine the OUTRAGE? People would do start rioting in the streets over that. People love their cell phones more than they love the people they talk to on them, it seems!! I just... how much can a company do against that tidal wave of emotion?
cornerdemon at December 9, 2009 3:03 PM
This reminds me of the John Edward's pool case. The one where the cover manufacturer took the hit -- but the pool installer and county settled.
That was a screwed ruling. As will this case be.
Jim P. at December 9, 2009 5:17 PM
I don't know about other states or the federal system, but here the judge can rule the filing was in bad faith (not sure the exact term) and the lawyer can even be fined. Though I believe it is rarely used.
I think that we have a loser pays system for the most part. There is almost always a counter suit which includes the legal costs among other things. And in the cases I am aware of, the winner usually is awarded their legal expenses.
The Former Banker at December 9, 2009 5:42 PM
Don't drink and drive should become don't drink, talk on your cell phone, and drive. The US is one of the few counttries that allows cell phone use while driving. Is that phone conversation really that important?
Roger at December 10, 2009 6:46 AM
I dunno, Patrick (that loser pays is a terrible idea). I think with appropriate protections put into place, it would minimize alot of this BS.
If nothing else, lawyers would be bound to advise their clients as to the possible negative consequences and it would deter some potential frivolity. The point made above about lawsuits being similar to lottery tickets isn't an invalid one. Some companies don't want to be dragged through the expense and time of a trial, potential bad publicity, etc. and will settle just to be done with it.
Ms. Smith is in need of grief counseling, not an attorney.
the other Beth at December 10, 2009 7:05 AM
Speaking of lawsuits-Many years ago a couple in California, I believe, had a swimming pool with the legally required fencing around it.
The couple next door had a 3 year old boy who climbed their fence and drowned. Of course the parents were not watching him and so naturally they sued the neighbors with the pool.
I was so happy to hear that the couple with the pool counter-sued for emotional damages etc... for the negligence of the boys parents.
David M. at December 10, 2009 7:27 AM
Banker writes: "I think that we have a loser pays system for the most part. There is almost always a counter suit which includes the legal costs among other things. And in the cases I am aware of, the winner usually is awarded their legal expenses."
You probably follow it more than I do, but I have never, ever heard of anyone actually recovering even their legal bills from one of those, much less compensation for the time and effort they had to spend defending themselves. In particular, lawyers who work product liability are very careful to choose judgment-proof plaintiffs. In those rare cases where countersuits are successful, the judgment is always against the plaintiff, never against the plaintiff's representation. So the successfully countersuing defendant never recovers their costs, and the attorney responsible for the frivolous action walks away scot free, probably to re-file the same action with a different judgment-proof plaintiff. Further, lawyers who do this kind of work are expert at venue-shopping and will not file in a circuit where they face even the slightest possibility of being found in contempt.
Judges and attorneys are like Congress in this respect: when it comes to individual personal or legal indiscretions, they are all members of the same club.
Cousin Dave at December 10, 2009 9:11 AM
I had no idea that in the USA you are still allowed, legally, to talk on a mobile phone while driving? Really? In previous columns, I thought that people were trying to defend an illegal and clearly negligent act. It does happen here in Aus, but not often because it is illegal - occasional fools still try to justify it though.
Alison at December 12, 2009 6:03 AM
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