From the comments: a chill on safety discussions

by Walter Olson on August 31, 2006

While the comments action has been lively elsewhere on this site, I noticed a comment that Jim Collins made on Ted’s post “Damned if you do, damned if you don’t files: Putnam Hospital” which I thought deserved its own freestanding entry:

The medical profession isn’t the only place where this happens. I used to be an aircraft mechanic for one of the major airlines, several years ago. Twice a month, after finishing our shift, we would go to a breakfast meeting. This meeting was attended by all of the mechanics from all of the airlines at that airport who worked the same shift. Several people from the airport and the FAA also attended. The purpose of this meeting was to share information on maintenance and airport safety issues. The FAA rep always took notes, compiled them from all of the shifts and a couple days later a copy was in your mailbox. I know of several problems and possible accidents that were prevented because of the information shared at these meetings. These meetings were suddenly stopped after company management found out that trial lawyers could obtain the minutes of them, from the FAA, through the Freedom of Information Act and use them against the airline in court.

{ 16 comments }

1 Deoxy 08.31.06 at 9:52 am

I wonder if those same meetings could be conducted… but without an FAA rp present, so as not to trigger FOI.

2 Jim Collins 08.31.06 at 10:57 am

You don’t want to have those type of meetings at all any more. Anything like that can be obtained and used against you. These meetings I am referring to occurred in the late 1980′s, since then things have become worse. My current job is designing industrial machinery. It used to be that we would have a session where we would try to figure out how someone could misuse one of our machines. We would then look at how we could prevent that misuse and if feasible modify the design of the machine. We stopped this when we found out that anything in those meetings could be used against us. The way that it was explained to me was that it wasn’t what we didn’t think of that could hurt us, it was what we DID think of. If we mentioned the possibility of something happening, then ruled it out as too improbable and it happened, we would be liable because we didn’t address it. Now we don’t address the issue beyond the required safety practices.

3 gould631 08.31.06 at 2:35 pm

You guys are wrong on this one. If those meeting minutes can and are used properly then they should be a defense to less than valid claims. If the meeting minutes can be used against you, then you are not following the advice or instruction of the minutes and they should be used against you.

4 Jim Collins 08.31.06 at 3:59 pm

gould631,

Let me explain what I mean a little clearer. Suppose we take a look and determine that if someone disables four safety interlocks and removes three guards there is a slight possibility that they might get a finger crushed if they accidently hit the start button while cleaning a machine. We determined that we wern’t going to address this because that was why we had the interlocks and guards there in the first place. Sure enough it happened. It took six months and over $30,000 to get the lawsuit dropped. This happened at a place I used to work at. The company’s was required to turn over all documentation on that product’s design to the people filing the lawsuit. They tried to use notes from this meeting against us. Their arguement was that since we realized the possibility that this could have happened, we had an obligation to prevent it from happening.

The mechanic’s meetings that I spoke of earlier could have been used pretty much the same way. The biggest worry about those minutes is that they could be used to try to prove to a jury that there was a history of unsafe practices and proceedures.

Look at the news right now about that plane crash in Kentucky. A huge issue is being made about the controller at the airport only having two hours of sleep between his shifts. One small problem, that controller is responsible for aircraft in the air, not on the ground. He could have had 24 hours of sleep between shifts and that crash still would have happened.

When this crash goes to trial and it will, lawyers are already lining up to represent the victim’s families.
How much do you want to bet that there will be a big issue made about that contoller’s lack of sleep. The airline is going to jump on that to try to shed some of the blame from itself by putting it on the airport.

5 Ted Frank 08.31.06 at 4:06 pm

A good example of the phenomenon Jim Collins describes is discussed in this Walter Olson post.

6 gould631 08.31.06 at 4:33 pm

Jim – seems to me that the example you cite first is exactly how it should be. You made a risk benefit analysis and decided not to address a safety concern. As a result, someone was injured in a way that could have been prevented. Your company paid 30k. That 30k is part of the risk analysis. A crushed finger is probably “worth” a lot more, but you got away easy with 30k. That is the price you pay when you take when you choose to ignore a known, forseeable, albeit unlikely, risk. As for the controller that was tired, I can’t say I am an expert in his responsibility for planes on the ground or air, but it is fair to say that if he was alert and saw the lights were off, he would have a duty on some level to notify the pilot. If there were meeting minutes that discuss this exact possibility and controllers were at the meeting and discussed the lights being off, then they should act accordingly. I guess we see this issue differently.

7 Dick King 08.31.06 at 7:45 pm

gould631, I would agree with you … if the damages bore any relation to reality. I don’t have a problem with predictable strict liability. I understand Coase’s theorem reasonably well.

However, we have a culture that issues supposedly compensatory damages and punitive damages equal to the GNPs of small countries for single incidents. This throws risk/benefit analyses completely out of whack, and the culture of memo-waving makes it clearly optimal to do your engineering by the seat of your pants rather than meticulously with a written record.

With quarter Billion dollar judgments for single 62-year-old produce managers at WalMart who have been married less than a year, it doesn’t take many juries getting it wrong to outweigh the bulk of the juries who do their job competently.

-dk

8 Jim Collins 09.01.06 at 7:51 am

How did we get off light? The only reason that the man had his finger crushed was because he removed FOUR safety interlocks and THREE guards. He purposefully disabled the very precautions that we took to prevent him from getting hurt. Any ONE of these items would have prevented the accident. How does his intentional misuse of our machine make us liable?

9 Deoxy 09.01.06 at 9:57 am

gould631,

Kim is absolutely correct: there is NO amount of safety devices that can totally and perfectly prevent people from hurting themselves AFTER THEY ARE DISABLED.

Sure, they could have added yet MORE safety features… which could STILL have been disabled.

Your line of reasoning leaves no one responsible for their own actions, EVER. That is… well, “problematic” is the only polite thing that comes even remotely clos.

10 tcaptain 09.01.06 at 10:05 am

Jim – seems to me that the example you cite first is exactly how it should be.

How is this EXACTLY as it should be? I agree with Jim, so that the man COULD be in a position to injure himself, he had to WILLINGLY disable numerous safety features and guards. How does this translate into ANY cash payment, much less a 30K award?

Common sense dictates that intentional misuse carries an assumption of risk, but in this day of litigation all it seems to carry is a chance for a big payoff, and that needs to change.

11 Enrique 09.01.06 at 12:13 pm

Jim,

That’s a question that only personal injury lawyers and the judges they pay to elect could answer. The common sense answer that anyone not directly profiting from a lawsuit would give is that it obviously doesn’t. But if there’s enough money involved, someone will be happy to blame the deepest pocket, regardless of the situation.

12 David 09.01.06 at 12:42 pm

gould631, while I agree with you that the risk assessment “worked” in that the costs of mitigating the risk up front were probably less than the costs of pay-out, I think the point that he’s trying to make is that by having the meeting in the first place and identifying the risk up front, evidence of that meeting was used to *bolster* the case against them. In other words, by identifying the risk and giving it some attention, they have automatically increased the amount they are going to ultimately pay out in response to lawsuits that come about because they decided not to address it.

Management made a business decision here to stop having the meetings because, as a consequence of this, it’s cheaper to deal with lawsuits about things you didn’t think of than it is about things you did. So let’s stop the meetings and we can claim that we didn’t foresee that type of abuse.

Consequently, products are less safe because people are discouraged from thinking of ways that they could be unsafe.

13 Jetgirl 09.01.06 at 1:06 pm

Jim,

I definitely agree with your notion that the employee had to really TRY to misuse the equipment.

It’s a “you didn’t do enough to stop me from injuring myself” situation. How do we insert at least a minium of personal responsibility into the system?

14 Jim Collins 09.01.06 at 1:51 pm

The company didn’t have to pay anything to the man filing the lawsuit. The $30,000 was the amount it cost to get the lawsuit thrown out.

The company went out of business shortly after this. We were in the right on this and still this was allowed to happen. I was listed on the suit personally as my name was on many of the drawings in the “Designed By” box. My employer absorbed the cost of my attorney.

At what point does responsibility shift to the purchaser and/or operator? I have no problem with incorporating safety features into my designs, as a matter of fact I consider it an obligation. What is considered reasonable though?

15 MF 09.01.06 at 6:25 pm

Jetgirl: How do we insert at least a minimum of personal responsibility into the system?

You hit the nail on the head. And that seems to be the solution to the vast majority of situations reported on this blog. People need to take personal responsibility for their own actions. So many do not.

Jim C: What is considered reasonable though?

A little more than you did. (I would put a smiley there, but in reality it’s more of a crying than smiling situation.) It’s obvious that you didn’t do enough, because my problem still happened. If you’d only done a little more, I wouldn’t have had my problem.

But as we all know, if you’d taken that extra step, then I’d have taken the extra step to defeat your extra measure. With some people, it’s almost like a challenge to see just how many obstacles they can overcome. (Or, to put it from the designer’s perspective, to see just how stupid they can be.)

16 Larry 09.03.06 at 11:22 pm

The military’s safety investigation reports are covered by a federal law that prevents their disclosure for any purpose other than mishap investigation and prevention. Perhaps this same sort of law should be adopted for general industry. This is also a good reason to have a loser pays system.

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