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DANGER: ROTATING BLADES CUT OFF ARMS AND LEGS

· Do not mow when children or others are around.

· Do not mow in reverse.

· Look down and behind before and while backing.

· Never carry children even with blades off.

It also warns:

Using The Reverse Implement Option (RIO)

! CAUTION: Avoid injury! Rotating blades are dangerous. Children or bystanders may be injured by runover and rotating blades. Before backing up, carefully check the area around the machine.

NOTE: Backing up while the mower is engaged is strongly discouraged. The Reverse Implement Option should be used only when operating another attachment or when the operator deems it necessary to reposition the machine with the mower engaged.

1. Stop forward travel.

2. Look behind the machine to be sure there are no bystanders.

Alas, on March 25, 2007, Corey Nicklin didn’t follow the instructions, his three-year-old son Conor Jack Nicklin was behind him, and the warnings came to pass, with fairly gruesome injuries to the boy’s left leg. This is, of course, as a lawsuit filed in St. Clair County court alleges, the fault of John Deere and Home Depot. (Ann Knef, “Home Depot, John Deere named in child’s lawn mower accident suit”, Madison County Record, Jun. 25). The suit alleges that “The subject lawn mower is defectively designed in that it should have been designed in a manner that does not allow for the mower to be operated with its blades moving in reverse.” In other words, because someone might not follow instructions, the rest of us should be deprived of a feature we might want to use. Too, the suit implausibly claims a failure to warn; perhaps the warning label should have specified “Your three-year-old son Conor” rather than just “children.”

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(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.

Moreover, the manual includes the following warnings:

(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.

Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).

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Reporter Tom Searls certainly crafted a riveting lede:

Joyce Burnside had backed as far away as she could, crab walking down her hillside lawn on her hands, but her tumbling riding lawnmower and its whirling blade kept following her — 30 feet down the slope until a tree blocked her from going any further.

The blades of the out-of-control Murray mower should have stopped within five seconds after Burnside jumped from the seat. But this defective mower didn’t stop until it tore into Burnside.

According to the story, Burnside lost a substantial portion of her arm in the accident; Murray had gone out of business, so she sued Wal-Mart; Wal-Mart, according to Burnside’s attorney, “admitted they were the ones that would be responsible”; at trial, Burnside emphasized that a mower’s blades are supposed to shut off after five seconds; a federal jury in West Virginia awarded $1.8 million; Wal-Mart appealed, and then settled the case for the $1.8 million. (Tom Searls, “$1.8 million award ends mower lawsuit”, Charleston Gazette, Aug. 27). I certainly feel for the plaintiff; she’s suffered terribly. Nothing in the story indicates the system didn’t work here, right? But some details troubled me. I wrote the reporter seeking more detail; his reply is edifying.
=====================
Dear Mr. Searls,

Your recent story recounts the Ms. Burnside’s and her attorney’s tale of a defective lawn mower that didn’t shut off when it was supposed to, and caused some terrible terrible injuries when the blades struck her arm. Wal-Mart, according to the attorney, “admitted” it was liable. If that’s the full story, I don’t have much of a problem with the $1.8 million result, assuming that’s in the ballpark of what her surgeries cost; it’s the system working as it is supposed to.

But there are many facts reported in the story that aren’t consistent with that overview.

1) A West Virginia jury found the sympathetic plaintiff 25% responsible. Why? Did she do something to override the safety feature? Was she mowing drunk? Did the owner’s manual warn against using a rider mower on a steep slope, and did Burnside cause her own accident? Did Wal-Mart do something at trial to unfairly cast blame on the plaintiff? When a plaintiff has such terrible injuries and is found 25% responsible, that’s not infrequently a sign that the whole thing was their fault, but the jury feels bad for them. (Stella Liebeck was only “20% responsible” for spilling coffee on herself, for example.) But that fact, whatever it is, is left out of the story. I’d like to know whether I should be mad at Wal-Mart for unfairly casting aspersions on a victim, or at Burnside for blaming a deep pocket for her own carelessness in jumping off of a moving mower.

2) If Wal-Mart is “admitting” liability, as you quote the attorney claiming, why was it in court at all, as opposed to writing a settlement check? Had the plaintiff’s attorney sought jackpot damages and failed, but the demand for tens of millions of dollars forced Wal-Mart to litigate? Were Wal-Mart’s attorneys just wasting everyone’s time? Or did they have a real defense and didn’t admit liability after all? Hard to know, because the story doesn’t even seek a quote from the opposing lawyers, just repeating one side’s recounting of the story. Knowing attorneys who had to submit bills to Wal-Mart, I have a sense that they don’t spend money on attorneys for a three-day trial without a good reason, but I never learn what that reason is from your story.

3) How is it physically possible for someone to outrace a tumbling motor by crab-walking 30 feet before being blocked by a tree but not have time to get out of the way? One would think that a mower that has the power to “roll[] completely three times” is moving with a lot of force from gravity. Could it be, perhaps, that the mower did follow the ANSI rules, and that the entire catastrophe happened in less than five seconds?

Best,

Ted Frank
==================
Tom Searls wrote back almost immediately:

like you, i assume, i wasn’t at the may trial. wal-mart’s admission was to say if anyone was responsible it would have to be them because the company was out of business. that left them liable under wv law. i assume her jumping off could be part of the 25 percent, but can’t say for sure. if you need additional details wal-mart officials may be willing to talk about it, or perhaps the victim or her attorneys. best of luck and thanks for reading.

Wait, did the reporter just tell me that the gaps in his story require more reporting that I should be doing? I am agog at the notion. (Note that the story doesn’t even claim that Wal-Mart refused to comment.)

Here’s a photo of a Murray riding mower, albeit not the precise model. I’m still trying to envision a physically-possible scenario where (i) someone jumps off a mower; (ii) lands in its path as it begins to roll; (iii) the mower rolls over completely three times; (iv) the person has the time to “crabwalk” thirty feet before the mower gets to them, but not (v) time to get out of the way, but I’m really suffering from a failure of imagination here.

I feel for Ms. Burnside; as the story recounts, lawn-mower injuries are grotesque and painful. But the story as recounted by Mr. Searls doesn’t add up.

Fortunately, it’s a federal case; I decided to do my own reporting. There were no lawsuits involving a “Joyce Burnside” filed in West Virginia. That’s weird. But my search-engine technique is unstoppable, and I quickly found Case #2:04-cv-00494, Joyce Wood v. Murray, Inc. (S.D.W.Va.).

The case I read about in the pleadings was wildly different than the case I read about in the newspaper. Here’s Wal-Mart’s expert reports from their first and second experts; before you accuse me of being one-sided, the reason I’m not posting Burnside’s accident expert reports is because she did not submit any in the docket (and, it appears, at trial). Here is the parties’ joint proposed pretrial order. A summary:

1) There’s substantial physical evidence that Wal-Mart didn’t even sell the lawn mower. The lawn mower was a heavily reconfigured 1998 model; the plaintiff claimed that she bought it with cash from Wal-Mart in 2000. But Wal-Mart only sells brand new lawn mowers or recently-exchanged mowers (and the latter at a steep discount).

2) The mower itself had been substantially modified, with a different battery, spark-plugs, paint, as well as labels from local garages, though Burnside testified there had been no modifications. Most importantly, the seat of the lawn-mower had been modified. The dead-man’s feature of the lawn-mower shuts off the blades when pressure leaves the seat. (Testing of the mower after the accident showed that the mower did shut off within five seconds.)

3) Indeed, Burnside’s lawn was too steep to be safely mowed with the riding mower, which had extensive instructions for determining whether an area was steeper than 15 degrees. Furthermore, the lawn hadn’t been mowed in eighteen months; mud on the tires showed that the lawn was wet (also contrary to the safety instructions) which is likely what caused it to lose traction; and it was the first time Burnside had mowed that particular area of the lawn (her husband had recently died). Furthermore, one is supposed to mow on a hill in an up-and-down motion; Burnside says she had her accident making a right-turn uphill after mowing from side-to-side. Most importantly, Burnside was aware that her late husband had had two separate accidents where he overturned a riding mower trying to mow that portion of the lawn! Nevertheless, the court refused to give the jury an assumption-of-the-risk instruction.

4) Too, the physical evidence was inconsistent with the story of the mower “rolling over three times.” There was not damage to the seat. A mower won’t slide backwards unless the driver shifts to neutral or reverse gear. And, oh, by the way, the ER personnel who attended to Burnside reported that the injury occurred when she was trying to “catch” the mower as it overturned.

5) Wal-Mart moved for judgment as a matter of law; the judge denied the motion in a one-paragraph order that didn’t address any of the legal arguments made by Wal-Mart—the plaintiff didn’t even file a response.

6) Also by the way, the reporter is wrong about a trivial detail; Murray Motors declared bankruptcy, but it’s not out of business.

“Tip of the iceberg” is a cliche I dislike, but it really applies here. One fewer detail in the story, or a less perfunctory response from Searls, and I might not have given this case a second look. My first reaction was that if Wal-Mart sold a mower that doesn’t disengage when it’s supposed to, of course it was liable. Even though I have written about related topics, I’m still insufficiently cynical for it to have occurred to me that the deep pocket might have been dragged in without strong proof that it actually had sold the product in question; like almost everyone, I tend to take complainants at their word on that sort of thing.

The story of the lawsuit after a lawn-mower was used to trim hedges is an urban legend, more often used to criticize the case for legal reform than to support it. But in this case a complainant did win a small fortune after abusing a lawn mower in an extensively negligent way (if not as colorfully as the fictional hedge-trimmer), yet the story is sold to the public with barely a hint of that negligence as a tale of a “defective mower”. It is far more common for a reporter to parrot a plaintiffs’ attorney’s fictional version of a case than to be fooled by a circulating e-mail account of fictional wacky lawsuits, but somehow the media is more likely to engage in soul-searching over the latter. This is just the story of one case I managed to fact-check with the assistance of about $10 in PACER searches. How many other media reports of lawsuits would yield similar surprises?

Here’s the coda: it took me less than an hour of digging to find most of this out (including the name of the case as filed). I did not see any evidence in the piece that the reporter had even contacted the defense attorney for comment, even though the story was a lengthy feature piece, rather than a one-paragraph barebones summary. Within an hour of his e-mail to me I wrote Searls a note outlining the things he missed, and how misleading the story was as a result. My site logs showed that someone from cnpapers.net started googling me shortly after this e-mail, and a half-hour later, Searls sent me the following response:

ted, thanks. it’s good to know you resident fellas are looking out for all of us. keep up the good work and keep reading The Gazette.

(& welcome Volokh, Bainbridge readers).

Update: the plaintiff’s lawyer responds in the comments. It’s worth noting that the plaintiff’s attorney’s e-mail has at least two lies: “Wal Mart did not offer an assumption of the risk with the limited amount of instructions and did not object to the court not allowing one from the first set.” This is absolutely false on both claims. See page 9 of the motion for new trial, linked to above. Thus the jury didn’t reject the defense claims—they never considered the defense claims because the judge twisted the instructions to prevent Wal-Mart from making its defense.

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Justin Simmons was killed in April 2004 in Daleville, north of Roanoke, when a mower operated at his daycare center rolled backward while going up a slope and over the child….

The jury held MTD responsible for not designing a mower that automatically stops its blades whenever it rolls backward. No such mower exists or has ever been tested, [company attorney John] Fitzpatrick said.

The company also argued that the operator of the mower, whose wife was the daycare provider, had ignored safety warnings. (”Jurors award $2 million in child’s mower death– company to appeal”, AP/Richmond Times-Dispatch, Jun. 15).

More: Considerable further detail is to be found in Mike Allen’s coverage for the Roanoke Times: “Lawyers for lawn mower maker, operator lay blame in boy’s death”, Jun. 8, and “Lawn mower company liable in boy’s death”, Jun. 15.

More: Aug. 18.

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Overlawyered posted on the drunk driving car window case we discussed.

In “The Myth of the Ford Pinto Case”, 43 Rutgers L. Rev. 1013 (1991), Gary Schwartz demonstrates that the Pinto’s safety record was comparable to other cars of the era, and that the Mother Jones prediction of hundreds of deaths was wildly off. This site’s editor’s articles, “It Didn’t Start With Dateline NBC” and “Exposing the ‘Experts’ Behind the Sexy Exposés: How Networks Get Duped by Dubious Advocates” are both good reading for more on the Pinto legend and on the topic of lawyers’ attempts to manipulate the media.

There appears to be a tradition that no litigation reform debate can be held without reference to the McDonald’s coffee case. The fact that Professor Turley defends this verdict (and presumably teaches the same to his Torts students) shows that this ten-year-old case is still relevant. The much-better reasoned McMahon v. Bunn-O-Matic threw out a lawsuit with an identical theory of liability for third-degree coffee burns in one’s lap. Professor Turley attacked the decision on the ad hominem grounds that Judge Easterbrook is conservative, but if that were so, one could presumably point to the part of the opinion infected by political bias, and I have yet to see anyone do so.

Professor Turley claims the urban legend of the lawsuit involving the guy who used a lawn mower as a hedge-clipper has infected the tort debate, but a Google search shows that the vast majority of references on the web to this story come from reprints of Turley’s article on the subject. I’d like to see a source for Professor Turley’s claim that this anecdote is taught in law schools; when I was in law school in 1992, the tale wasn’t treated as anything other than an urban legend, as one Chicago 1L shared with the pre-blog Internet urban folklore group. One columnist who didn’t fact-check before passing on e-mail glurge doth not a trend make.

There were a lot of questions about asbestos litigation; Jim Copland’s short overview on the topic is a good starting place, with many links to more detailed analyses.

I disagree with Professor Turley’s claim that medical malpractice rates would go down if there was “experience rating”, mostly because it appears that the malpractice liability system in place today is sufficiently random that past claims are not a good predictor of future claims. (Raymond Lehmann, “Medical-Liability Debate Puts Rate-Setting Complexities Under Microscope”, BestWire, Feb. 22 ($)). I’ve elsewhere commented sardonically on the claims that insurance industry incompetence is the reason behind the malpractice crisis.

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