17 Comments

Tesla needs to sell only used cars to avoid this problem. They’ll need people who are unaffected by the smell to drive new models for the first 5,000 miles or so, until the new car smell wears off. Let me be the first to volunteer. I am also available to handle new Audi R8s and BMW M3s.

New on Overlawyered: Ridiculous defenses to claims.

Can this get its own subcategory?

One more unsecured creditor to list when Tesla files for Chap. 7.

But, it could be quite a valuable asset to sell — “The Tesla New Car Sleeping Smell” — Road tested and better than a pill.

Ron,

Right after a new category is set up for “Ridiculous Plaintiff Claims.”

From the articles:

The suit — which also names Palo Alto-based Tesla Motor Co. — alleges that Jain carelessly and negligently drove into Alper. It also contends that the Tesla in the crash was “defective and unreasonably dangerous when used in a normal, intended and foreseeable manner,” according to the lawsuit. The complaint mentions funeral expenses but does not seek a specific amount of money.

How is Tesla supposed to prevent this?

According to the CHP, Alper was riding a road bike south on Highway 1 near Dimeo Lane. Jain was driving north in a black 2013 Tesla S when he crossed the double yellow, drove up a hill, down a hill and struck Alper on the road’s shoulder.

Can you say “deep pockets?”

I knew that you could.

Gitacarver, if the defendant is pointing at the Tesla, the plaintiff is going to need to name Tesla as a defendant so the driver can’t point to the empty chair. It puts the plaintiff in an impossible situation.

You are the expert, I assume, Gitacarver. Does this make sense to you?

Ron, isn’t the Texas solution to force the Defendant driver in the case to name Tesla as a defendant if he wants to assert that defense to his own liability in the accident?

California’s policy choices regarding litigation is not the only choice available. This lawsuit, and the claims raised by various parties, is a fine example with which to compare and contrast various policy choices. The Texas model, at least, doesn’t force Tesla and the driver to share a table while the driver points a finger at them. Nor does it force the injured plaintiff to advance such a seemingly crackpot theory to prevent the driver from pointing at the empty chair.

Texas litigation has MUCH not to recommend it, but in this respect at least, I submit it is superior to the CA model.

I don’t know there is any rule anywhere that requires you to sue the empty chair that you point to at trial. So if Texas has that law, and it sounds like it does based on what you are saying, that is news to me. Either way, I think you can flush it out in discovery because I doubt that the defendant is going to be able to make that case against Tesla.

The greedy plaintiffs’ lawyer wants to see Tesla is a easy narrative to jump on. It sounds right. But the more likely scenario is the opposite. The plaintiffs’ lawyer does not want to sue Tesla because he is greedy. Telsa is not going to settle a “the car smell made me do it” case. Not in a million years. And you are not going to win that case at trial. In the meantime, you are going to spend 20k plus trying to put on testimony to make that case. Greed makes you go in a different direction.

Ron,

I am having problems following the logic here.

It seems that you are saying that the plaintiff should sue Tesla not because they believe that Tesla is guilty of anything but rather because the car driver is going to blame Tesla in court.

I see that as Tesla being dragged into court not because there is an actual case against them, but because of a legal strategy by someone who is looking to shift the blame for their actions or inactions.

Are we really at the point were we are defending the idea of a lawsuit being not a surgical instrument of justice, but rather a shotgun looking to spread mayhem and carnage at every turn?

[…] “New Car Smell” Blamed for Fatal Accident […]

Gitarcarver – I agree that Tesla appears to have no liability here but under the law of my state (Tennessee) the plaintiff would have no choice but to sue Telsa or risk an allocation of fault to Telsa if the car’s driver makes out a legal claim against them. In a perfect world a lawsuit would be a surgical instrument of justice, but in the real world it cannot be. Note that it is the driver’s insurance company’s lawyer taking this position – undoubtedly one of the insurance companies that contribute millions of dollars per year to complain about frivolous lawsuits. If anyone or anything should be condemned here, it is the hypocrisy of the car driver’s insurance company.

And that’s entirely satisfactory to you, John?

Bob

Of course not, Boblipton. In the event that the assertion against Telsa is determined to frivolous, the driver and his lawyer should be sanctioned under FRCP Rule 11 or its state court equivalent.

But the recourse most people recommend is to punish the plaintiff and his lawyer who, under Tennessee law, have no realistic alternative but to add Telsa to the case and permit the defendant driver to try to prove his case. (I don’t know about CA law so I cannot comment if such a course of action would be required there.) This was not true twenty years ago – TN had joint and several liability, and when defendants made outrageous claims about the fault of others a plaintiff could and often would choose to ignore them. Today, several liability governs, and an unintended consequence of such a law is that defendants have an incentive to blame others and plaintiffs are forced to sue the newly-blamed to prevent “empty chair” liability. Thus, I have seen defendants now make arguments on the liability of others that most plaintiff’s lawyers would be ashamed to make.

And how would it be determined to be frivolous, John? Assume it’s put out there as a trial balloon and then ignored? Yes, Tesla can and should have their staff lawyer write a letter to the attorney demanding a retraction in a full-page ad in the New York Times, using language that Tesla finds satisfactorily penitent …. I would settle for “I was pulling this out of my ass” or go to court, have it proclaimed frivolous and then ask for costs.

That’s Tesla. Your average guy confronted with a frivolous claim like this has neither the resources nor inclination to get involved with this sort of bs. Instead of having some recourse to this legal mugging of reputations, your idea of how to deal with it is to wait until the whole thing settles out and then a bunch of lawyers go into a back room, wink at each other and come out again.

Bob

John Day,

Thank you for the response.

I can understand the plaintiffs suing Tesla if as you and others have said, the defendant points to Tesla and assigns some or all the blame to Tesla.

My problem is that when the plaintiffs file the lawsuit, they don’t know what the defendant is going to claim as a defense. They may have an inkling of the defense, but for all the plaintiffs know the driver is going to claim there was a light from a black helicopter that blinded the driver whose tin foil hat sold by 7-11 was not properly made by Reynolds Aluminum. (And they didn’t sue Reynolds or 7-11 as far as I aware.)

To me, at issue is the idea that the plaintiffs sue everyone no matter whether they actually can prove anything in order to bring other parties into the lawsuit just in case the defendants claim another party had anything to do with the accident.

To me, it seems fundamentally wrong to have a lawsuit plopped in front of someone because someone may or may not claim you contributed to the accident.

If the plaintiffs want to add Tesla after the defendant’s response in order that the defendant can’t “point to an empty chair,” that is fine. Until the defendant does that, the plaintiffs suing Tesla seems wrong in a scatter gun or shotgun where they are just firing at random is wrong.

Gitarcarver – I tend to agree with you, although I am missing a couple of facts that are important.

One fact is the applicable statute of limitations. In TN we have only one year to file suit. Now, there is a special provision in the law (which I helped draft) to extend the deadline for filing suit if the defendant blames a non-party to the litigation. This is a good rule – it makes it unnecessary for plaintiffs to file suit against those who might be responsible, allowing them to wait to see who the defendant blames.

But that is not true in KY. In KY you have one year to file suit in PI and WD cases and if the defendant later asserts fault against someone else you the plaintiff is left holding the bag. In KY, you are forced to sue people based on rumors and possibilities to meet an unrealistically short deadline for taking legal action.

But, as I said, I don’t know the law in CA. If the plaintiff had plenty of time to file suit against Telsa I don’t know why the suit was filed against Telsa at this time.

Boblipton – whether a claim or defense is frivolous is readily defined by extensive case law.

John, it’s good to know that you have helped extend the time people must wait until possible random legal issues go away. It’s also good to know that given enough money spent on lawyers, that right will usually prevail. I’m sure people who have decided to cave in to patent trolls rather than waste time and money fighting them for an outcome they don’t understand are comforted by that.

Bob

John Day,

Thank you again for the response.

I have to say that you lost me when you said “In KY, you are forced to sue people based on rumors and possibilities to meet an unrealistically short deadline for taking legal action.”

I don’t think that a year is “unrealistically short.”

I would offer the old adage of “justice delayed is justice denied,” but I know you know that one.

In the recesses of my mind, I think that the delay of more than a year in merely filing a lawsuit results in more billable hours rather than an actual hard wall deadline that is impossible to meet. Yet as you have been kind and cordial in this discussion, I will keep that thought to myself as I don’t want to insult you.