Liability roundup

  • “A handful of plaintiffs’ lawyers dominates MDL (multi-district) litigation. Is that a problem?” [Alison Frankel, Reuters]
  • “A. 5918: Unconstitutional, Unwise and Futile Effort to Expand N.Y. Courts’ Jurisdiction” [Marc Gottridge and Lisa Fried, New York Law Journal, earlier on would-be end-run around Daimler limits on state court jurisdiction]
  • “Hawaii counties threaten to pull lifeguards off state beaches if liability bill dies” [Nathan Eagle, Honolulu Civil Beat]
  • No good reason why New York municipalities should be required to pay interest rate as high as 9 percent a year on lawsuit outlays [Adam Morey, Auburn Citizen letter to editor]
  • “Ohio Supreme Court orders halt in liquidation of defunct Chesley law firm” [James McNair, City Beat (Cincinnati)]
  • “What Should Tort Law Do When Autonomous Vehicles Crash?” [Michael Krauss; Jones Day]


  • The Hawaiian life guard issue seems all too typical in that, at least as described in the article, we can’t tell what is really at stake. Both positions are reasonable on their faces: if liability is too strict, people will be discouraged from working as lifeguards and providing lifeguards will become more, perhaps too, expensive, resulting in loss of life. On the other hand, if liability is too loose, poor lifeguards may be used and swimmers may die unnecessarily. One thing we dont know is how deaths due to lack of lifeguards balance against deaths due to poor lifeguarding. I don’t know how reliably such estimates can be computed, but they would contribute to rational decision-making.

    The other thing we don’t know is in what situations a deserving victim is unable to recover under the current gross negligence standard but would be able to recover if the law is not renewed. What situations are these, hypothetically? And to what is their incidence in real life?

  • All the county lifeguards in Hawaii have to be certified by the United States Lifeguard Association. So if no liability = poor life guards (and they’ve had the liability protection for the last 15 years) then what you are really saying is that USLA’s certification criteria are too lax

  • In re the cars: There is what SHOULD and what WILL tort law do. The “will” is clear, sue, sue, sue the manufacturer in the event of a bad outcome no matter how ineptly the operator operates the system.

    One point brought up in the article is very germane to the aviation business and would apply to self driving cars.

    One large European aircraft manufacturer institutes “hard” limits in the flight control software. The pilot is never allowed to exceed maneuvering limits, ever, for example. No matter how hard the pilot pulls on the controls, the computer will adjust the rudder and elevators to limit the “G” load, for example, to not greater than the regulatory limit of 2.5 (beyond which the airplane will bend, but not break until 3.75). The large US manufacturer has “soft” limits, where the pilot may exceed that limit, but with the feedback of substantially increasing effort on the control stick once the limit is reached.

    Each has its advantages toward safety. In the one case, it’s idiot proof….ok, well, highly idiot resistant. At the cost of flying into the ground in those rare cases when bending the airplane would have saved it, the hard limit works – a pilot just pulls the control and the computer adjusts the response to just get the maximum permissible response. It also assumes the designer can foresee every event and program appropriately. The soft limit acknowledges that there are those rare cases where it is safer to fly “dangerously” and that the designers can not foresee every case. Pilots have the option to exceed limits, but there are clear indications they’re doing so (the large increase in force for each additional increment of control input).

    Philosophically it boils down to who is finally in control: Pilots, or engineers.
    Hard limits = engineers.
    Soft = pilots.

    • May 10, 2017 9:30 AM No Name Guy wrote:

      Each has its advantages toward safety. In the one case, it’s idiot proof….ok, well, highly idiot resistant.

      Unfortunately there is always a more highly skilled idiot just waiting to test that resistance.

      The problem may be one of those “pick any two” posers: Idiot proof, feasible to build, useful.

      • In the context of this site, it’s really situational. The jerk lawyer will find something to gripe about in a bad outcome, no matter what design is used.

        Going back to cars, take anti-lock brakes for example.

        For the vast majority of drivers (the semi-skilled masses), they maximize braking action in a panic stop situation, especially in slippery conditions like wet or snowy / icy roads.

        But a professional driver, one who is truly skilled in maximizing vehicle performance can, without anti lock brakes, outperform an otherwise identical vehicle in the same conditions.

        The lawyer will sue you no matter what you do, from a design perspective:

        In the case of a semi-skilled masses driver with a bad outcome: “How dare you not include anti-lock brakes?!?!?!! How was my client “lame Soccer Mom” supposed to stop on the snow without them?”

        In the case of a truly skilled professional with a bad outcome: “How dare you that you had anti-lock brakes on this vehicle?!?!?!! How was my client, Ms. Danica Patrick [professional NASCAR and Indy car driver], supposed to maximize stopping power when your system interfered with her ability to brake effectively?”

        The trouble with lawyers and the law is that there is never an unambiguous place that one can be in without potentially getting screwed. The mere act of getting sued in a BS situation IS the penalty.