A hopeful litigant asked an Ohio appellate court to rule that a collision with a cow was covered under an uninsured-motorist insurance provision; the court declined to go along, though. The opinion William Bedsworth would have given? “Hello, it’s a cow.” (May It Please the Court, Jul. 7, 2004)(via Ernie the Attorney).
Posts Tagged ‘autos’
Congress pre-empts vicarious car-lease liability
In a surprising stroke, Congress has included in its new transportation bill a provision that would abolish New York’s “vicarious liability” law, which places auto manufacturers and independent leasing firms on the hook for unlimited vicarious liability when cars they lease are later involved in accidents, regardless of whether the lessors have been negligent or behaved wrongfully (see my N.Y. Post op-ed of Jun. 9, 2003 as well as many posts on this site including Feb. 2, Sept. 5, etc.) The law, stoutly defended by New York’s trial lawyers and certain of their allied “consumer groups”, has driven most of the largest automakers out of the leasing business in New York and led to a steep hike in lease charges for those that remain. The bill is headed to the desk of President Bush, who is expected to sign it. (Tom Incantalupo, “Auto leasing may return to NY”, Newsday, Aug. 2; Joe Mahoney, “New law may cut car lease cost”, New York Daily News, Aug. 3; Ian Bishop, “Boost for NY Car Leasers”, New York Post, Aug. 3; Michael Cooper, “Congress Passes Bill Nullifying a State Law, and Making It Easier to Lease Cars in New York”, New York Times, Aug. 4)(many links via Henry Stern’s NYCivic.org).
The provision is found as sec. 1409 at p. 219 of the 1075-page bill, and is reprinted below in the post’s extended entry (definitions omitted). Among the bill’s notable features: it will take effect immediately to block newly filed vicarious suits, including those over accidents before the law’s effective date; it apparently applies to short-term car rentals of the Hertz and Avis kind, which have also been much discouraged in New York by the vicarious liability law; and (from a casual reading, at least) it also appears to pre-empt the laws of other states which impose some degree of vicarious liability after a crash on lessors (up to a capped figure of damages, that is; only New York imposes unlimited liability).
“All it will do is enrich leasing companies and automobile companies,” charged Shoshana Bookson of the New York State Trial Lawyers Association — a prediction whose accuracy should be testable soon enough. (Alan Wechsler, “Congress paves way for cheaper vehicle leases”, Albany Times-Union, Aug. 3). And according to the Staten Island Advance, Charles Carrier, a spokesman for Democratic Assembly Speaker Sheldon Silver, “said the law change would be unfortunate because it ‘means that companies can rent to anyone — even someone drunk — and not incur a liability.'” (Robert Gavin, “Bill would scrap N.Y. law allowing crash victims to sue leasing firms”, Aug. 3). In point of fact, sec. (a)(2) of the bill specifically preserves liability in cases of “negligence or criminal wrongdoing” by the owner or its affiliate.
P.S. Well, it didn’t take long to falsify Ms. Bookson’s prediction. An Aug. 4 editorial in the New York Daily News (“Congress repeals the Shelly Tax”) says: “Expecting the President’s signature, a number of car companies that fled the New York market years ago are now planning their return. And several others announced immediate $600 price reductions, proof positive that [assembly speaker and trial lawyer Sheldon] Silver was the sole reason New Yorkers have unfairly paid extra for leasing a car. Call it the Shelly Tax, and thank heaven, or Washington, that it is finally gone.”
Might sue Toyota over kids’ trunk suffocation
Attorney Peter M. Villari represents the family of one of the three Camden, N.J. youths who suffocated last month in the trunk of a car. Not surprisingly, Villari says he’s considering filing suit over the incident against the city of Camden, whose police department has been widely criticized for not thinking to check the trunk of the beat-up 1992 Camry after the boys went missing although it was parked steps from where they’d last been seen. Anyone else to sue? Yes, “possibly Toyota”. (“Boys Who Died Lived 17 Hours in Car Trunk, Lawyer Says”, New York Times, Jul. 19).
The myth of the Pinto case
No discussion of the modern litigation system seems to be complete without a reference to the Ford Pinto and the supposed “smoking-gun” memo found in the automaker’s files. As Newmark’s Door observes (Jul. 11), the myth was long ago refuted, but it lives on endlessly in public discussion anyway, perhaps because many fans of expansive product liability find it too good to check. We’ve commented on it a number of times in the past — here, for instance (see final paragraphs).
Update: Joshua Flax v. Chrysler seat back case
We covered this case in detail Nov. 24 and Dec. 21. The court reduced punitive damages from $98 million to $20 million, which means that the total injustice is $23.75 million instead of $101.75 million. The AP version of the story doesn’t even acknowledge the auto company’s defense. (Randy McClain, “Judge slashes damages against carmaker”, The Tennessean, Jun. 21; AP, Jun. 21).
Lawyers Weekly USA has more details about the trial, including the fact that the jury wasn’t allowed to hear that, with 7.1 million vehicles on the road, there were only three deaths from collapsing seatbacks. Moreover, the judge permitted plaintiffs to argue liability based on a post-sale duty to warn of (allegedly) improved technology, unprecedented in Tennessee and most other states: thus, according to plaintiffs, when Chrysler merged with Mercedes, Chrysler had a legal duty to inform every single one of its car owners of any safety features on Mercedes vehicles that weren’t on Chrysler vehicles (and, one would imagine, vice versa). How this would have prevented a pick-up truck from slamming into the rear of a minivan at twice the speed limit, one wonders, but too many judges have stopped requiring causation to be an element of a tort. (Reni Gertner, “Parents Of Baby Killed In Seatback Collapse Win $105.5M”, Lawyers Weekly USA, Jan. 2005).
Publicity roundup
Texas Lawyer has a well-reported and personality-filled article, unfortunately not online, detailing how the state’s plaintiffs lawyers became “in many ways…the victims of their own success”; it happened when “tort reformers, provoked by the plaintiffs bar’s hubris, particularly as it was asserted at the state Capitol in Austin, galvanized themselves over the past 15 years to topple the trial lawyers’ dominance over Texas politics.” Also a lot about asbestos-suit reform (Miriam Rozen, “Paradise Lost; Plaintiffs Bar Bemoans End of an Era as Tort Reformers Target Asbestos”, Texas Lawyer, Feb. 28, not online). A Medill News Service dispatch from last December quotes me on the subject of class action jurisdiction (Betsy Judelson, “On the Docket: Getting Out of Madison County”, Medill News Service, Dec.). And Automotive Industries, in an ambitious backgrounder on the liability explosion, mentions my Hillsdale College speech of last year (Gary Witzenburg, “Urgent Need for Tort Reform”, April).
Update: court won’t upset Ford sweetheart verdict
Zavala County, Texas: Judge Amado Abascal of the 365th District Court has refused Ford Motor Company’s request for a new trial in that very curious $31-million-verdict case in which Ford alleges that juror Diana Palacios, city manager of Crystal City, turned out to be romantically involved with one of the plaintiff’s lawyers suing Ford, Jesse Gamez, and even “allegedly helped Gamez sign up three of the victims as clients in the lawsuit against Ford”. Further tidbit from the new coverage: Palacios is said to work as a jury consultant. See Mar. 7, Mar. 22, and, on other issues raised by the case, May 13 and May 16. (Tresa Baldas, “A Small Town’s Big Verdict Leads to Ugly Charges”, National Law Journal, May 27).
Auto laminated glass
Report from London
Ted (who reports that he’s having trouble posting directly while away) writes as follows:
I’m less than twelve hours into my first trip to London, and one can see right up front how badly the compensation culture has stunted the US compared to the UK. My ride from the airport was in a Mini Mayfair, which is even smaller than the small Mini Cooper, but one can also drive around the city in something called a “Smart Car,” an even teenier two-seater akin to the one Sam Lowry drove in Brazil. Any manufacturer trying to sell a car like that in the US would risk getting socked with punitive damages the first time the car ended up a loser in a collision with an SUV; after all, the disingenuous plaintiff’s attorney would say, the manufacturer was clearly more concerned with profits than with safety by daring to sell a small car. (Never mind the environmental differences, or the fact that the availability of a cheap SmartCar could vastly improve the lives of many working poor.)
The escalators in the Underground move about 60% faster than the ones in the DC Metro. I’m looking forward to studying whether London has a worse safety record with its escalators. I would hypothesize that, aside from the King’s Cross fire, they do not: people are just more careful, because (1) the escalators are plainly dangerous, rather than giving the illusion of safety that a slow escalator does; and (2) Brits know that if they hurt themselves, they can’t blame someone else, much less potentially collect millions (Feb. 13). It’s just so nice to be treated like an adult.
I wouldn’t trade the American way for the British way, but we could learn a thing or two.
Laminated glass in car windows
Belatedly following up on the Mar. 7 report about the $31 million verdict against Ford Motor in Zavala County, Tex., on attorney Mikal Watts’s theory (as we put it then) “that the [ejection] injuries were Ford’s fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system,” law student Shane Murphy (George Mason U.) had the following comment:
Laminated glass, which is two layers of plate glass with plastic laminate in between, is used on automotive windshields. It has been used for decades to keep objects from easily getting through the windshield and entering the vehicle, not the other way around. In fact, I have seen more than one hapless unbelted occupant of a vehicle propelled fully through a laminated windshield.
Safety glass, which is designed to shatter into very small pieces, is used on side windows in cars. This type of glass is easy to shatter should you need to make a hasty exit from the vehicle, and that’s a key reason it’s put there. It also shatters into small pieces with very little “sharding,” reducing the opportunity for serious injury from broken glass.
Laminated glass requires a special saw to get through. With 12 years of experience, it still takes me five minutes to saw through a car windshield. If your car is on fire you’d prefer safety glass for this reason alone. Laminated glass also causes serious head and facial injuries to those who do full face-plants against the windshield despite seat belt warnings. It will have the same effect in a side window if an occupant is unbelted.
Some automakers are putting laminated glass in the side windows of high-end cars, but this trend should be viewed with great caution. This type of glass does prevent people from “popping a window” to escape from a vehicle in an emergency situation. Two examples of emergencies of this type are vehicle crashes with resulting fires and accidents where a vehicle ends up partially submerged in a body of water. In both cases, the electrical system will likely short out and will prevent easy exit since nearly all cars now have power windows.
I really cannot believe this theory about auto glass even got past the laugh test, never mind into the jury room. Automotive glass should not be used to keep people in the vehicle. Using automotive glass as a backup safety feature would do more harm than good. Seat belts are to keep you in the vehicle, not windows. In fact, I much prefer glass that breaks easily.
More: reader Brian Poldrack of Houston, Texas writes in to say: