AIG Steps on Crank....Hard.

[BridgeRunner]

Why is that a fact?

Ditto.

SS, I would love to see some law that backs up your theory that we can and should sue companies for not yet having developed and implemented as yet non-existent technologies in an attempt to avoid an incident that is triggered by an intervening cause and that is, with current technology, unavoidable. 

Sounds like the "you're f---ed, whatever you do" standard of care.  Oddly, that one has never cropped up in any cases I've come across.

[De Selby]

Headless,

It is a fact because it is undisputed that there was damage - that means someone is going to eat the cost.  It wouldn't be called "damage" otherwise.  The lost briefcase will either be replaced for money, or the use that gave it value in the first place will be foregone.  Damages do not cease to exist because you choose not to fork over cash; the loss itself represented value, which was why someone paid for the product in the first place.  Loss is also why people seek medical treatment.

AZredhawk, your post is a perfect example of why it is fruitless to impose the cost on consumers.  The average passenger doesn't have any idea how to design an airplane better; that's why for all the costs they'll suffer (unlikely as they are) due to existing airplane designs, there will be no productive result.  Impose the costs of airplane accidents on the owner of the plane, however, and over time the owner has every incentive to promote and adopt new technologies that help minimise the damage or avoid the accident.  Saying that the airline should pay the costs when there's an airline accident involving the airline's plane is not "California style control."  It imposes the costs on the only party that has the ability to do something about it, and leaves it up to the market whether that cost actually results in improved airplanes.  In any case, the incentive has some productive value, whereas imposing the cost on the passenger does nothing.

Bridgewalker,

You would have to skip all the tort law on independent contractors, animals, unusually dangerous activities (changing over time), and products liability to miss the parts where liability is traditionally imposed without a finding of negligence.  This is called "strict liability" traditionally, and that's exactly what it means: No matter what, you pay for damages caused by whatever activity is at issue.  It has nothing to do with whether you should have done something else; the argument about incentives for new technology is policy rationale, not law, of which there is already more than enough to justify holding people liable in some circumstances without fault or negligence of any kind.

According to my law school notes, we learned some of these cases on the subject:

Rylands v. Fletcher (1868), L.R. 3 H.L. 330

Siegler v. Kuhlman, 473 P.2d 445 (1970)

Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963)

Gray v. Manitowoc Company, 771 F.2d 866 (5th Cir. 1985) seems particularly close to the point, if my rusty notes are correct.

[Headless Thompson Gunner]

Headless,

It is a fact because it is undisputed that there was damage - that means someone is going to eat the cost.  It wouldn't be called "damage" otherwise.  The lost briefcase will either be replaced for money, or the use that gave it value in the first place will be foregone.  Damages do not cease to exist because you choose not to fork over cash; the loss itself represented value, which was why someone paid for the product in the first place.  Loss is also why people seek medical treatment.

I don't disagree that there will be a loss for someone.  Losses are a natural result of taking risks (and make no mistake, air travel has certain unavoidable risks associated with it).  My contention is with your assertion that someone should pay because of the loss.  "Pay" implies money changing hands. 

Tell me why you think someone should pay someone else because of the plane crash.

AZredhawk, your post is a perfect example of why it is fruitless to impose the cost on consumers.  The average passenger doesn't have any idea how to design an airplane better; that's why for all the costs they'll suffer (unlikely as they are) due to existing airplane designs, there will be no productive result.  Impose the costs of airplane accidents on the owner of the plane, however, and over time the owner has every incentive to promote and adopt new technologies that help minimise the damage or avoid the accident.  Saying that the airline should pay the costs when there's an airline accident involving the airline's plane is not "California style control."  It imposes the costs on the only party that has the ability to do something about it, and leaves it up to the market whether that cost actually results in improved airplanes.  In any case, the incentive has some productive value, whereas imposing the cost on the passenger does nothing.

This is based on two false premises.  First, you assume eliminating all risk is both possible and desirable.  Second, you assume that it's possible to design goose-proof jet engines that still fly. 

[Marnoot]

Or go back to turboprops?

Haven't you seen Indiana Jones and the Last Crusade?

 

[makattak]

As I recall, Strict Liability is not applied to cases by their nature, but rather under whatever legal regime exists in that state (or country).

As such, to claim the airline owes it because of "strict liability" is ignoring what the law happens to be.

For that matter, it also ignores whether the airline should pay those losses, because strict liability simply says they have to, not whether they should be responsible for them.

[BridgeRunner]

caused

The operative word.

[De Selby]

Headless,

Someone will pay - just not necessarily in cash, as people can choose to pay in foregone use of goods or disabilities.  It is still a cost, operatively, the same thing as "payment."  Cash represents goods and services.  Hence, someone is going to pay - that's why it's called "damage."  The only question is who is going to pay, not whether there will be a payment.  Just because not every payment/cost/whatever-you-want-to-call it will be in cash doesn't make the lost goods and services qualitatively different from cash out of pocket.

My argument about incentives is not based on either premise you cite.  It is only based on the premise that, given that we obviously have to make someone pay, it's best to make the party pay who is most capable of doing something about the risk (there's no question that it would be good to reduce this risk).
That way there's at least some productive incentive that results from these foreseeable events, rather than straight-up waste.

mak,

Strict liability has been imposed in common law for a long, long time.  Every set of laws varies slightly, including for airlines - (they are under an extra high duty of care towards passengers and cargo, not strict liability.)  My point is that it's not at all exceptional to force parties to pay damages even when there's no negligence or fault.  And sometimes it's even a good idea, like it would be in this case.  I'm saying it's a good idea to make the airline pay these costs.

Bridgewalker,

That's the usual argument in strict liability cases, but it's hard to argue that this damage was not caused by a plane crash (why the plane crashed would only matter if fault mattered)

[BReilley]

Go Zeppelin.

Hindenburg notwithstanding, I would *love* to fly aboard a dirigible.

I don't disagree that there will be a loss for someone.  Losses are a natural result of taking risks (and make no mistake, air travel has certain unavoidable risks associated with it).  My contention is with your assertion that someone should pay because of the loss.  "Pay" implies money changing hands.  

Tell me why you think someone should pay someone else because of the plane crash.
This is based on two false premises.  First, you assume eliminating all risk is both possible and desirable.  Second, you assume that it's possible to design goose-proof jet engines that still fly.  

I agree completely.  If I may add:
It has been argued here that compensation for losses may not actually be paid in cash, and that forcing the airline to compensate those losses is somehow less offensive because of the absence of a cash transaction.  However, anyone who's ever filed a tax return knows that anything that you gain from is considered income(i.e. a transaction, cash or otherwise).  What's the difference here, in the reverse?

stuff

Why again should the airline bear the burden of funding research?  You continue to assert that they must pay, despite a clear lack of blame, as some sort of punishment for not having accident-proof aircraft.  Are there accident-proof aircraft in production?  None of which I am aware.  If there were such, would airlines buy them?  Certainly yes, as the airline which did not buy such an airplane would be in a tough situation with customers.  If you follow your line of reasoning further, the airlines should not be held culpable at all - it should be the aircraft manufacturer who should pay.  After all, they designed a plane that *could* go down.  There has to be some personal assumption of risk in getting on a plane, in a bus, on a car.  Things happen that are no one's fault.  Move on.

[Headless Thompson Gunner]

There has to be some personal assumption of risk in getting on a plane, in a bus, on a car.  Things happen that are no one's fault.  Move on.

Indeed.

Ya know, there's an easy way to ensure that airplanes never crash: don't fly them.  Ever.  US Air could shut down it's operation entirely and never fly another passenger anywhere ever again.  Voila!  Instant zero-risk! 

Would that be a good thing? Perhaps in a lawyer's world it is.  No existence, therefore no liability.  Right?

Back in the real world, we understand that risk cannot be eliminated, not if we want to get anything done.  We balance risks against rewards and make an informed decision about how to proceed. 

Unfortunately for the lawyers, balancing risk against reward isn't something that can be institutionalized or codified.  It isn't something that can be decided ahead of time.  Weighing risk is a judgment call, something we must each do for ourselves, based on our own unique circumstances, needs, priorities, and risk-tolerance. 

We don't need, and we definitely don't want, lawyers trying to make these decisions for us.

[KD5NRH]

SS, I would love to see some law that backs up your theory that we can and should sue companies for not yet having developed and implemented as yet non-existent technologies in an attempt to avoid an incident that is triggered by an intervening cause and that is, with current technology, unavoidable. 

http://overlawyered.com/2006/06/jurors-award-2-million-in-childs-mower-death/

“Jurors award $2 million in child’s mower death”

by Walter Olson on June 16, 2006

Lawyers successfully urge a Virginia jury to send a message:
Justin Simmons was killed in April 2004 in Daleville, north of Roanoke, when a mower operated at his daycare center rolled backward while going up a slope and over the child….


The jury held MTD responsible for not designing a mower that automatically stops its blades whenever it rolls backward. No such mower exists or has ever been tested, [company attorney John] Fitzpatrick said.

The company also argued that the operator of the mower, whose wife was the daycare provider, had ignored safety warnings. (”Jurors award $2 million in child’s mower death– company to appeal”, AP/Richmond Times-Dispatch, Jun. 15).

[RaspberrySurprise]

The mind... it boggles. I think I need to lie down for a bit now...

[Hawkmoon]

Whenever I momentarily think our jury system might be a good thing, I read articles like this and return to sanity.

The problem is that too many attorneys (sorry, BW, but this is my belief) have devoted too many years to creating an indelible impression in the minds of a large segment of the population (the unreasoning segment that these same attorneys prefer to have on juries) that insurance company money is somehow "free" money because the actual person isn't really paying the judgment, after all, it's "only" coming from the insurance company.

[De Selby]

Yeah, mostly you can't even mention that there is insurance at a trial, much less the amount of insurance involved for the other side.  It's hard enough to figure out what the limits are, and usually you only find out because the defense offers its limit and says so....

[Hawkmoon]

Bridgewalker,

That's the usual argument in strict liability cases, but it's hard to argue that this damage was not caused by a plane crash (why the plane crashed would only matter if fault mattered)

If you're going to talk about "strict" liability, you might consider "strict" use of correct terminology, too. In the case at point, the plane technically did not "crash." The aircraft made an unpowered landing on water.

[Hawkmoon]

Yeah, mostly you can't even mention that there is insurance at a trial, much less the amount of insurance involved for the other side.  It's hard enough to figure out what the limits are, and usually you only find out because the defense offers its limit and says so....

On the other hand, I once served as an expert witness in a trial wherein the presiding judge simply refused to hear ANY testimony as to who did what, who SHOULD have done what, or who should NOT have done what. All he knew was that some people had to pay to repair a fairly new building. He recessed at 10:00 a.m. and told all the attorneys involved to come back at 2:00 p.m. with a list of how much insurance their clients carried.