Comments on: You can’t be too careful

By: Xrlq

Xrlq — Sat, 03 Mar 2007 20:59:25 +0000

Is this theory really all that different from the concept of negligence per se? Even if it is, there’s a certain logic to the notion that if you actually knew a risk existed, it’s silly to defend on the theory that you shouldn’t have been expected to know about it. Actual knowledge should trump constructive “knowledge” every time.

By: David Nieporent

David Nieporent — Thu, 01 Mar 2007 19:17:25 +0000

Anon: first, I am me, not “this blog.” I believe I share many views with Walter and Ted, but I do not speak for them.

Second, if you note my last sentence, I am in no way denying the city’s liability in this particular incident.

Nor am I saying that companies should not have safety rules. I am saying that having safety rules shouldn’t make them more liable.

If one wants to argue that it is always clear negligence for a boat not to have two pilots on duty at all times, that’s one thing. But don’t argue that violating an internal rule about having two pilots on duty is negligence.

By: David Schwartz

David Schwartz — Thu, 01 Mar 2007 11:20:42 +0000

The company was not penalized for creating the rule. The rule was simply admitted to show that they knew of the risk. They *did* know of the risk, and limiting instructions will ensure that this is the only purpose for which the rule will be used.

As for policy issues, I think most companies will try to avoid having accidents in the first place rather than minimizing liability in the second place, because accidents have other costs than just legal liability. So they will almost certainly still issue those rules they really think will increase safety.

In this case, they added a lot of rules and enforced none of them. This makes it impossible for anyone to know which rules really need to be followed and which are just “being too careful”. The problem in this case was not that the PA was too careful but that they gave their employees no clue which rules were important and which weren’t.

There is no policy issue that justifies indemnifying that practice.

By: Anon

Anon — Thu, 01 Mar 2007 09:40:31 +0000

please strike this discussion as it makes no sense, whatsoever, for it leaves out the predicate and that is that companies have a duty to develop rules on safety. if there are no rules the company is equally liable.

it is hard for this blog to accept the concept that people who injure other people should be responsible for their actions

By: David Nieporent

David Nieporent — Wed, 28 Feb 2007 20:36:44 +0000

David S: the policy issues here are similar to the subsequent remedial measures rule. The fact that a defendant repairs a defect after an accident is generally not admissible for the purpose of establishing negligence, because we think it more important for people to fix problems so future people aren’t injured. The issue is incentives: do we want to discourage companies from doing more than the bare minimum? (Anything can be made safer, if enough money is spent. But a company that voluntarily goes beyond what it needs to do shouldn’t be penalized for it later.)

(The judge himself acknowledged the analogy, but argued that the long-established evidentiary rule excluding such measures is also questionable.)

By: David Schwartz

David Schwartz — Wed, 28 Feb 2007 19:39:28 +0000

You don’t think the fact that a company had a written rule prohibiting a certain type of behavior should be admissible as evidence that the company knew that that type of behavior could cause problems?

I think you’re blaming the judge for a misunderstanding the jury might make in the future. But I got the impression that a jury would receive a limiting instruction that the rule was only admitted to show that the operators knew of the risks of incapacitation, not that violating the rule was evidence of negligence.

In fact, the ruling talks about how violating the rule would be negligence only if the applicable standard of care required compliance with the rule.

I think people are drawing conclusions from the Cliff’s notes version of this ruling.

By: robin

robin — Wed, 28 Feb 2007 16:34:36 +0000

That judges’ comment is just plain funny. The same lawyers that craft product warning labels will be reviewing the safety policies. Why on earth would they not try to “game future negligence actions”?

I’m sure those of us in the corp world will be treated with helpful safety tips like “It is against company policy for an employee to cause any accidents”.

By: P.K.

P.K. — Wed, 28 Feb 2007 16:17:57 +0000

This isn’t as uncommon as you would think. There have been several toxic tort cases that were settled before trial where the companies defending them had more aggressive environmental emission controls or exposure guidelines than the federal or state regulators as part of a proactive environmental health and safety program. The plaintiff attorney used it against them by saying the following: you knew this release/condition was more hazardous than the regulators thought that’s why you set lower goals, and you knew you were harming these people because you weren’t meeting your more stringent goals. In terms of litigation risk, being more proactive or precautionary often increases the liability.