The new Cal Biz Lit blog of San Francisco’s Adams Nye law firm’s managing partner Bruce Nye has an entertaining hypothetical scenario that nicely demonstrates the absurdity of the way California’s products liability law (Jan. 4, etc.) hangs together.
Addendum: a commenter asks whether, even though a jury is likely to rule against the plaintiffs in Nye’s example, the defendant wouldn’t feel intense pressure to settle. Answer: probably not more than a nuisance sum, if that. (Then again, an irrational plaintiff determined to bring this case to trial can impose large costs on the defendant, who, as Nye points out, would be unlikely to win the case before a jury trial because of the alleged factual disputes, increasing the settlement value.) A critical difference is that the damages do not include personal injury. As such, the home insurance probably pays and then decides whether to sue the manufacturer. (Insurers aren’t immune to bringing stupid products liability suits against manufacturers: we documented one such case Dec. 20, 2004 involving an unattended toaster.) If a small child had been horribly disfigured or killed by the accident, the scenario changes, and the outside risk of weirdly exorbitant damages unbalances the settlement calculus, as juries are more likely to demand unreasonable measures when hindsight and sophistic trial lawyers suggest the failure to post an armed guard 24/7 next to every washing machine warning people not to wash gasoline-soaked rags was actually evidence of the corporate indifference of the defendant for putting profits before people. (You might scoff, but a regular theme of the Bizarro-Overlawyered site is how corporations are terribly callous for ever deciding that any safety measure might be too expensive. See also Jan. 12 (Edwards on warnings).)
4 Comments
As a non-attorney, Bruce Nye’s exposition on product liability in California was informative and more than a little frightening. I particularly liked his conclusion; that the Schlubb family would/should get nothing on the grounds of sheer idiocy. Here’s my question: given the inability of the defendants to cite the willful ignorance and stupidity of the Schlubb’s as a defense, the non-predictive nature of juries (think McDonald’s and coffee) and the distinct likelihood of the plaintiff being successful (Big bad corporations vs the little guy), wouldn’t it be more likely that the two defendants would feel extreme pressure to settle out of court? From what I’ve read over the years, it’s the cost of settling cases like these that drives up costs, not the occasional loss in court for a far larger amount. Is that still true?
Best solution, get the he11 outta CA while the getting is good!
A major purpose of government is to protect the big guy from little guys. Back in the 70’s we got it backward.
We are blessed to have a carade of enginneers who provide us with automobiles that work almost every time, cheap airfare that lets us visit distant relatives or see
the world, and health care that enables surgeons to repair the heart with stents. Also vaccines and good water and sewage treatment and on and on.
It makes no sense to value a dip lawyer, Ralph Nader for example, with magic intuition. Look what happened with the breast implants. Magic intuition about democracy doesn’t work either.
You know, California is sounding better and better to me: No snow, beaches, Highway 1, authentic Mexican food instead of this bland midwest variety, and product liability law that favors the buyer.
Ridiculous examples aside, what’s so wrong with deeming a product defective if it doesn’t perform as consumers expect it would?
I don’t consider myself an idiot (go ahead and take the cheap shot) but I wouldn’t have ever guessed gasoline rags in a washing machine would pose a fire hazard. I would have assumed that all the water and detergent would neutralize the gasoline. Considering how easy it is to get gas on your clothes – defective gas pump, changing your fuel filter or carburetor, etc. – I’m sure lots of guys put clothes with gasoline in the washer.
OK, I just checked my Kenmore washer. It does indeed have a warning on it about gasoline and vegetable oil. Who knew?
I’ve owned this washer for at least 6 years, and never notice the warning label. But every time I open the thing, I see the big Kenmore tag with its serial number. Maybe the warning label should go there, eh?