Friday, November 04, 2005

Wauwatosa Band Mothers follow-up

In her comment on the Tort of the Week, velvet says:
i'm a fan of the "tenth mother" theory, myself.

i'd want to throw some responsibility on the "reasonable person" devouring the turkey salad, too. is that allowed?
Didn't you also believe in the second gunman?

Anyway, so velvet's kind of saying "what happens when res ipsa loquitur meets caveat emptor?"

That depends on the jurisdiction. Most states follow a doctrine of comparative fault, where if the plaintiff committed negligent acts that contributed to his own demise, the jury is expected to wing some kind of calculation like "Hmm. Seems like the defendant is about twice as much of an asshole as the plaintiff, so we'll knock down the plaintiff's award by about a third and call it a day." Or at least this is how I assume it works. We don't learn this until sometime in early 2006,

(This is why we love juries. Because they do all this judgment-call work, and essentially for free, and after they're done, people can't complain about being victimized by the judge. Although they can complain about how the jury was misled by some slick lawyer and characterize 12 of their fellow citizens as rubes. Discourse about juries is very odd...)

There are a few jurisdictions (and Louisiana may be one of them), which work on a strict contributory negligence doctrine, where if the plaintiff was negligent at all, he can't get bupkis from the defendant. So you could have a situation where if a 18-wheeler with bad brakes owned by a company with a notorious history of maintenance violations and driven by a guy who was drunk at the time hits a little old lady who stepped off the curb to help a kitten, the old lady gets nothing.

But yeah, turkey salad. Would the reasonable person eat turkey salad at the band mothers' buffet? And if so, could that person be understood to be assuming some risk? I think that is how we operate in real life. I know when we were eating that funky crawfish stuff at the St. Joseph's day altar, I was running a cost-benefit thing in my head.

Another important fact of the Wauwatosa case is: the woman who got the food poisoning was sick for like, a year. She was one of those people who just can't shed salmonella very well. And in that case, where the plaintiff has some kind of condition that's not due to an act of the defendant or the plaintiff, but that makes the damage caused by the defendant much worse that it would usually be, it's just tough luck for the defendant. At least I think it is. Again, I don't think we learn that until next quarter.


At 9:20 AM, November 04, 2005, Blogger WordzGuy said...

>where the plaintiff has some kind of condition that's not due to an act of
>the defendant or the plaintiff

I wonder how this would play out with one a them famous peanut-allergy deals. Say I have a life-threatening allergy to peanuts, and I go to, mmmm, an Internationally Renowned Fast Food Restaurant, which deep fries its delicacies in whatever oil happened to be cheapest on the spot-vegetable-oil market that day. And today it was peanut. So I partake and am stricken with, dunno, hyper-hives. Can I sue IRFFR, because they should be careful about that sort of stuff, or am I SOL because I am unusually sensitive to something that other people can ingest until they look like blimps? (At which point they will, apparently, sue IRFFR for misleading them about those 2000-calorie meals they negligently serve.) To add conditions to the case, we'll say that in 8-pt type at the bottom of a 3' x 4' poster of nutritional information posted in IRFFR, there's a note that says "The following types of vegetable oil might be used in this restaurant: corn, canola, peanut, ..." I presume lawyers have vetted such statements.

In general, I must say, I personally tend to think in more hardass terms about what a reasonable person should know/do/assume. Look out for yourself, would tend to be my thinking, and "Gee, you shouldn't have done that, should you?" would tend to be my leanings whilst pondering negligence claims on a jury of my peers. I wonder if this would become apparent during voir dire.

-- Mike

At 12:48 PM, November 12, 2005, Blogger arguchik said...

i think it might be more clear if someone with a peanut allergy *asked* whether or not there were peanut oil in the fry vats. if they were told "no," maybe they would have a case. i'm wondering if the extremity of the possible reaction is a factor too, as in the food poisoning case. people with peanut allergies tend to have very severe reactions. i had a friend, growing up, who almost died once from ingesting something that turned out to have a small amount of peanut butter in it. apparently even the smell of peanuts (peanut fumes?) can provoke a reaction in some people. this seems to be an argument, for example, supporting the banning of peanut products in closed spaces like an airplane. but....i still don't know what to say about McIRFFR... should they be liable?


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