July 31 roundup

by Walter Olson on July 31, 2008

  • Raft-flip mishap at Riviera Beach, Fla. water park: family’s collective weight far exceeded posted limit on warning signs, they’re mulling suit [Palm Beach Post]
  • New Rigsby/Katrina depositions include sensational new allegations of Scruggs misconduct as well as touches of pathos [Point of Law]
  • “Al Gore Places Infant Son In Rocket To Escape Dying Planet” [The Onion]
  • So much coverage of Hasbro vs. Scrabulous but so little solid reportage by which readers might judge strength of copyright infringement claims [Obbie]
  • City of Seattle spokesman says police actions in shootout with gunman might have “saved countless other lives”, which hasn’t saved city from being sued by injured bystander [Seattle Times]
  • First the vaccine-autism scare, now this? “Mercury militia” crows after FDA agrees to move forward with statement on possible risks of dental amalgam, but maybe there’s not a whole lot for them to chew on [Harriet Hall, Science-Based Medicine]
  • Of lurid allegations in paralegal Angela Robinson’s suit against Texas plaintiff potentate Richard Laminack, the most printable are the ones about chiseling fen-phen clients and not paying overtime [American Lawyer; Laminack response]
  • U.K. attorney suing former bosses for £19 million: that wasn’t me at the interview, that was my alternative personality [Times Online]
  • Allegation: Foxwoods croupier thought he could mutter lewd comments in Spanish about Anglo female patrons, but guess what, one was entirely fluent [NY Post]
  • “Richard Branson claims to own all uses of ‘Virgin'” [three years ago on Overlawyered]

{ 10 comments }

1 VMS 07.31.08 at 10:15 am

Raft-flip mishap at Riviera Beach, Fla. water park: family’s collective weight far exceeded posted limit on warning signs, they’re mulling suit.

If there was a causal relationship between the combined weight of the family (~875 lbs) and the ride’s design limit (700 lbs) then in my book the ride is defective since an overstress of 25% should NOT result in any failure, let alone a catastrophic failure. [Tipping over is a catastrophic failure]. In engineering, factors of safety are employed, so that designs do not fail if they are stressed slightly beyond the design point, or there are unanticipated forces (e.g., an unanticipated wind gust, an overloaded deck, lack of maintenance, a fat person on a ride), or overstress occurs becasue parts corrode, or someone did not tighten a bolt to spec., or the material used has a concealed flaw etc.

The ride should have a minimum factor of safety of two against tipover.

The greater the consequence of failure, the greater the factor of safety. Buildings are usually designed with a factor of safety of 2, unfired pressure vessels (e.g. gas cylinders) have a factor of safety of 4 because of the catestrophic nature of failure, elevator cables in NYC 7.0.

From a causation viewpoint, I have no problem with a lawsuit going forward if the cause of the accident was a 25% overload, and I would not attribute any “fault” to the family for being too fat.

I do however, have a major problem with this lawsuit going forward based on the nature of the injuries:

John D. Lenahan, 41, bit his tongue and was knocked unconscious. He was listed in stable condition Thursday night. His son John Lenahan, 15, was also knocked out and treated for a chin laceration.

The two younger children – Ronald, 14, and Julianna, 11 – were transferred to St. Mary’s Medical Center and released several hours later. They suffered cuts, bumps and bruises.

Cuts, bumps, and bruises and even being knocked out (with no permanent damage) are not the type of injuries for which major judicial resources should be expended. The injured party has to absorb this minimal “pain and suffering.”

The insurer, without hassle (by this I mean not refusing to pay because the insurer’s medical advisor in retrospect did not think that an MRI or CT scan was necessary), should step up and pay ALL medical bills for this incident (including follow-up care, if any) directly to the physicians and hospitals so that the usual paperwork fiasco associated with the billing is transparent to those injured.

Then, the insurer should complete the risk management loop and hire a professional engineer to determine the cause of the mishap. The ride should be shut down as unsafe (and uninsurable) if the difference between a 700 lb. and an 875 lb. load causes a catestrophic failure. In this instance, the injuries turned out to be minimal, but could have been much worse where a lawsuit would be justified.

2 Bill Poser 07.31.08 at 11:04 am

While it is true that press accounts say little about the legal issues in the Scrabbulous case, and the blogs that I have seen are mostly indignant and don’t deal with the legal issues either, I suspect that the lack of legal commentary is because the case is so clear. At the risk of giving an amateur analysis, the name “Scrabbulous” infringes the “Scrabble” trademark, and the use of essentially the same gameboard infringes the copyright in the non-functional elements of the design. The rules of the game and the functional elements of the design are not subject to copyright.

What I find perplexing is the fact that the creators did not avoid infringing since they could easily have done so. All they needed to do was to choose a non-confusable name and use different artwork. As it was, they were just asking for a lawsuit.

3 Deoxy 07.31.08 at 11:35 am

Foxwoods – $500k EACH? For remarks only one of them could understand? And that she didn’t tell them she could understand when they started? She could have simply told them they should stop, since she could understand what they were saying… instead, she waited around and let the pot get bigger, intentionally listening to something she could have cut short. Yeah, lots of sympathy from me… not to mention that, last I checked, the good old First Amendment allows stuff like that to be said – businesses have good BUSINESS reasons to fire employees for it, but the courts shouldn’t be involved.

4 Deoxy 07.31.08 at 11:38 am

Oh, and I agree with Bill Poser on the Scrabble ting – putting out your own “copy” of a game legally is actually disturbingly easy… that they didn’t even meet the ridiculously low requirements is almost humorous.

5 PatW 07.31.08 at 1:40 pm

Deoxy- you are not factoring in the enormous emotional damage caused by the comments, as proven by the plaintiff’s attorney’s statement.

6 OBQuiet 07.31.08 at 5:59 pm

PatW,

How many of them actually spoke Spanish? Maybe the others should sue the interpreter since she was the one that actually said things which upset them.

7 OBQuiet 07.31.08 at 6:20 pm

VMS,

I would imagine that there is ALWAYS some risk of failure. By setting and posting a limit, the park/manufacturer accepts that risk UP TO THAT POINT. The extra weight not only increases the chance of failure but may very well increase the risk of injury in a failure. Colliding with a 150 lbs object is less injurious that colliding with a 250 lbs one. So the added marginal cost may well rise exponentially.

And we have no information about whether other behavior such as raising arms and not holding onto provided grips contributed to the event.

Why prevent people for operating within a safe region(<700)? Should they lower the max to 500 lbs when this has no measurable effect on the safety of people in the 500-700 range? Just to make it easier to prevent folks who should know better from operating it outside the safe range?

Mind you, I have no information about the rate of incident increase or the risk of injury with increased weight or any reason to think that the family was not behaving appropriately on the ride. But if I overinflated my tire by 25% and drove around on a sunny, hot, summer day, I wouldn’t try blaming the manufacturer for my blowout/failure.

I do so miss contributory negligence. It seems to have all but disappeared.

8 VMS 08.01.08 at 12:38 pm

OBQ

If you overinflated your tire by 25% and it blew, that would be indicative of a major defect in the tire. If its ceterline prematurely wore, that is a different story.

9 Phil G 08.01.08 at 1:17 pm

That Foxwoods Casino lawsuit in this Roundup is quite interesting in a couple of ways. First of all their lawyer appeared to be unaware that legal actions against Foxwoods “must be filed in a tribal court”, not in state court where he filed it. So either their lawyer doesn’t know what he is doing (which is most likely since run of the mill plaintiff lawyers aren’t known for being the brightest bulbs in the box) or he doesn’t care and is just interested in getting a quick settlement from Foxwoods as a nuisance lawsuit, while getting lots of free publicity for himself at the same time. And it certainly looks like it’s only a typical nuisance lawsuit (which as readers of this blog know are only too common) since the ladies weren’t really harmed in any way, Foxwoods did try to make it up to them with various “comps”, and Foxwoods has fired one of the offending croupiers.

10 OBQuiet 08.01.08 at 2:45 pm

That was why I added the operation in an already stressful environment, summer driving. On their own, neither is that huge a risk, but when you are operating the tire in at its extreme already, the added 25% could push past the tolerance.

And I was in Florida too. Ya that’s the ticket. Driving with my wife, Morgan Fairch… Jessica Simpson ya.

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