Comments on: New Mexico blinkers itself to foreseeability

By: Stewart Peterson

Stewart Peterson — Sun, 11 May 2014 17:41:30 +0000

I think it was WWII general Freddie de Guingand who said “one must remember: one can’t be strong everywhere.”

Good leadership often involves doing something that can, theoretically, fail – due to circumstances which you foresee perfectly well and happen to notice are not present. For example, the Germans did this all the time in WWII; the attack on France in 1940 could have been stopped a number of different ways, and the Germans conducted the attack the way they did precisely because the Allies happened to not be doing those things. Had they been doing those things, the Germans would not necessarily have been stopped, because they would have changed the attack plan and done something else.

This case does nothing less than put the Maginot Spirit into law. Rather than make decisions which are appropriate to the situation, you’re now supposed to build The Perfect Edifice that does everything. Your time is not important. The fact that agility is often the only advantage a small business has over a larger one is also not important, to these people.

How about this for a test: “unless I told you to do it, I’m not liable for what happens when you do.”

By: Greg Dwyer

Greg Dwyer — Sat, 10 May 2014 00:19:09 +0000

This seems to remind me of New York’s scaffolding law

By: Carol Herman

Carol Herman — Fri, 09 May 2014 22:52:12 +0000

I know when I drive to a mall. Or a supermarket. There are concrete blocks preventing trucks with explosive to “just drive in.”

At Target, they do one better. There are barriers up high, so if the bed of your truck came up more than 8 feet high … the barriers would rip the top of your truck off.

Sure. After 9/11. But parking lots (here in California) are assuming that terrorists could use trucks containing explosives to do harm. Especially because they’d know they could get on TV.

Perhaps that’s what the New Mexico court is pointing out?

By: Jason Barney

Jason Barney — Fri, 09 May 2014 21:52:10 +0000

The question of “duty owed” seems to be the most misunderstood part of the duty, breach, proximate cause, and damage analysis. Duties owed—and foreseeability—should be questions of law and not fact. These set precedents and give people expectations of behavior. In the case at hand, one jury could easily determine the accident was foreseeable while another might fail to see it that broadly and decline to find fault because it was not foreseeable. How are people supposed to react, other than overreact to everything—or more likely—do only what is reasonable and get sued anyway?

Also as the amicus brief notes, if the particular issue was that concerning the legislature could pass a law or the municipal code could be amended to prohibit certain structures from vehicle thoroughfares which do not have proper traffic calming techniques. Surely there is a duty to build to code, and that is written down and published in advance so at least you know what rules to follow, which is far preferable to allowing a trial to proceed on you having breached some fantastic, speculative duty which was virtually inconceivable at the time you set up shop.