QuoteJack in the Box ordered to pay St. Louis beating victim $20 million
St. Louis County jury awards $10.8 million medical negligence verdict
Damages are awarded to the family of a woman treated by Mercy cardiologist. Read more
ST. LOUIS • Ali Aziz and a friend rolled into a Jack in the Box three summers ago after a night out.
They found themselves in the middle of a raucous dance party on the parking lot. Then, a brawl broke out, leaving Aziz unconscious, disabled and with lasting brain damage. He was in a coma for more than a year.
Four people have gone to prison for the beating. But Aziz also believed the fast-food chain was to blame for failing to prevent the fight. He sued the company for negligence. Last week, a jury agreed with Aziz and awarded him more than $20 million.
Aziz, now 35, who still cannot walk or feed himself, was awarded the money after a eight-day civil trial.
"God answered my prayer," Aziz's mother, Annette Brown, said of the verdict.
The lawsuit claimed Jack in the Box failed to prevent the fight that broke out on June 20, 2010, trained its employees poorly and violated its own policies for dealing with disruptive customers. The jury award was actually for $25 million but was reduced to $20.5 million because jurors found Aziz was partially to blame for his involvement in the fight.
In an emailed statement, a Jack in the Box spokesman said the company might appeal the ruling.
"This tragic event could have been avoided had the plaintiff not provoked an altercation, and the evidence supporting that fact was overwhelming," the statement said. "We're shocked and disappointed by the verdict and do not believe it was even remotely supported by the evidence."
'GET SOMEBODY HERE NOW'
Aziz and a friend pulled into the restaurant at 1807 Gravois Avenue shortly after 5 a.m., police and court documents say. The restaurant's drive-through was open, but inside seating was closed. Several people were dancing and playing music on the lot when Aziz and his friend parked.
Aziz's friend — identified in court documents as Luther Jones — got out of the car and began talking to a woman in the group. Several minutes later, a fight erupted after a man waiting in the drive-through hopped out of his car and started arguing with Jones.
Court documents say Aziz stepped in and was knocked to the pavement and several in the group kicked and punched Aziz in the head while he was down. Aziz was bloodied and knocked out. One of the men went through Aziz's pockets and took about $30 cash.
"They're beating the crap out of this boy," said a witness to the fight on a 911 recording. "You need to get somebody here now."
Aziz's friend ran away and was not hurt.
Three men and a woman pleaded guilty to assault charges related to the fight and have been sent to prison. They are Earnest Carter, 22, sentenced to 12 years; Jasmine Jeffries, 22, sentenced to 15 years; Johnnie Lane, 33, sentenced to five years; and Rwoeshan Booker, 20, sentenced to 13 years. A fifth person was acquitted.
A LONG RECOVERY
Aziz was a kitchen manager at Pi Pizzeria in Kirkwood. Chris Sommers, Pi owner, said in an email that Aziz came to Pi with no restaurant experience and excelled during his year-and-a-half with the pizzeria.
"He was incredibly hard-working," Sommers said. "He quickly took to the restaurant business, and was a rising star within our organization. I don't believe we promoted anyone as quickly as we did Ali."
After the fight, doctors gave Aziz's mother the choice of taking him off life support. She refused.
"I told them, plain and simple, that God has the last word," she said. "And Ali is still here. He wants to live."
After about two months in the hospital, he lived for a time in a nursing home. When he came to live with his mother, a nursing assistant, he was still comatose. She quit her job to take care of him around the clock, bathing him, giving him medicine and feeding him through a tube at their modest home in south St. Louis, where his hospital bed is in the dining room.
To his mother's surprise, Aziz emerged from his coma last year. "It was a miracle," she said. "I just kept the faith."
Last year, after he regained consciousness, Aziz's condition improved, and he began answering yes-or-no questions by blinking his eyes.
"When he did that, it was such a joy," his mother said.
But the fight has left Aziz's legs and arms bent and locked against his torso. One of his hips remains dislocated. He still can't feed himself or use his arms well, but he can talk through a device in his throat.
Asked about the jury's award, Brown translated for her son: "I am happy. We have God on our side."
Aziz faces several surgeries to correct his contorted arms and legs before he'll ever try walking again, Brown said.
"I think he will," she said. "We just need to pray. That money there will go toward his operations. That would do great things for him to get him back on his feet again. God gave him a second chance in life."
http://www.stltoday.com/news/local/crime-and-courts/jack-in-the-box-ordered-to-pay-st-louis-beating/article_919a377e-f59c-526a-89b3-d0f4e2af7ffb.html
After reading this, can only wonder, "What would Jaron do?"
Jaron would have killed the guy outright, none of this coma nonsense.
Quote"I am happy. We have God on our side."
Unfortunately God was too busy to stop the fight before her son was injured.
Quote from: crazy canuck on September 17, 2013, 11:45:03 AM
Quote"I am happy. We have God on our side."
Unfortunately God was too busy to stop the fight before her son was injured.
God doesn't care about Muslims. :pope:
QuoteAfter the fight, doctors gave Aziz's mother the choice of taking him off life support. She refused.
Wrong choice. Obamacare will hopefully take care of this.
20 mil doesn't seem like good recompense for the type of life he'll now lead. Also, they dropped 5 mil, because he was somewhat culpable? :lol:
We got our first JIB around here not too long ago. Never been to one.
Quote from: garbon on September 17, 2013, 12:01:00 PM
20 mil doesn't seem like good recompense for the type of life he'll now lead. Also, they dropped 5 mil, because he was somewhat culpable? :lol:
I just wonder how JiB is really to blame to the tune of $20m. I mean, did no one in the store call 911 once the fight started? Did anyone inside refuse to care for the guy?
It sounds to me that the people responsible are in jail for it (minus his friend who ran away). I get that the guy needs to be taken care of, but I wonder at how JiB could have prevented the incident. I'm assuming the jury thought that they could, but I'm not seeing it on the outside.
Quote from: merithyn on September 17, 2013, 12:07:03 PM
Quote from: garbon on September 17, 2013, 12:01:00 PM
20 mil doesn't seem like good recompense for the type of life he'll now lead. Also, they dropped 5 mil, because he was somewhat culpable? :lol:
I just wonder how JiB is really to blame to the tune of $20m. I mean, did no one in the store call 911 once the fight started? Did anyone inside refuse to care for the guy?
It sounds to me that the people responsible are in jail for it (minus his friend who ran away). I get that the guy needs to be taken care of, but I wonder at how JiB could have prevented the incident. I'm assuming the jury thought that they could, but I'm not seeing it on the outside.
My assumption would be that the jury figured JiB can pay the bills while the guys in jail can not.
Quote from: merithyn on September 17, 2013, 12:07:03 PM
Quote from: garbon on September 17, 2013, 12:01:00 PM
20 mil doesn't seem like good recompense for the type of life he'll now lead. Also, they dropped 5 mil, because he was somewhat culpable? :lol:
I just wonder how JiB is really to blame to the tune of $20m. I mean, did no one in the store call 911 once the fight started? Did anyone inside refuse to care for the guy?
It sounds to me that the people responsible are in jail for it (minus his friend who ran away). I get that the guy needs to be taken care of, but I wonder at how JiB could have prevented the incident. I'm assuming the jury thought that they could, but I'm not seeing it on the outside.
Well the article says only this: The lawsuit claimed Jack in the Box failed to prevent the fight that broke out on June 20, 2010, trained its employees poorly and violated its own policies for dealing with disruptive customers.
I don't know what the details are on that.
Quote from: merithyn on September 17, 2013, 12:07:03 PM
It sounds to me that the people responsible are in jail for it (minus his friend who ran away). I get that the guy needs to be taken care of, but I wonder at how JiB could have prevented the incident. I'm assuming the jury thought that they could, but I'm not seeing it on the outside.
The quest for deep pockets often results in odd outcomes.
Word.
Quote from: garbon on September 17, 2013, 12:01:00 PMAlso, they dropped 5 mil, because he was somewhat culpable? :lol:
You've never heard of shared liability? Best you not comment on civil court cases, then. The concept is used in these kinds of cases all the time (maybe even a majority of the time). :lol:
Quote from: grumbler on September 17, 2013, 12:44:22 PM
You've never heard of shared liability?
Sorta like if Marty would be murdered by homophobes.
Quote from: merithyn on September 17, 2013, 12:07:03 PM
Quote from: garbon on September 17, 2013, 12:01:00 PM
20 mil doesn't seem like good recompense for the type of life he'll now lead. Also, they dropped 5 mil, because he was somewhat culpable? :lol:
I just wonder how JiB is really to blame to the tune of $20m. I mean, did no one in the store call 911 once the fight started? Did anyone inside refuse to care for the guy?
It sounds to me that the people responsible are in jail for it (minus his friend who ran away). I get that the guy needs to be taken care of, but I wonder at how JiB could have prevented the incident. I'm assuming the jury thought that they could, but I'm not seeing it on the outside.
Without the benefit of the trial record, one would have to speculate. However, if the parking area is on JiB owned or leased premises, and JiB failed to follow its own SOPs in say informing the police about disrurptive activites on the premises, then they could potentially be on the hook.
Quote from: The Minsky Moment on September 17, 2013, 12:52:25 PM
Without the benefit of the trial record, one would have to speculate. However, if the parking area is on JiB owned or leased premises, and JiB failed to follow its own SOPs in say informing the police about disrurptive activites on the premises, then they could potentially be on the hook.
Thanks, Minsky. That's what I assumed, but it still seems like a really high amount for the amount of their involvement (or lack thereof).
Quote from: merithyn on September 17, 2013, 01:05:52 PM
Quote from: The Minsky Moment on September 17, 2013, 12:52:25 PM
Without the benefit of the trial record, one would have to speculate. However, if the parking area is on JiB owned or leased premises, and JiB failed to follow its own SOPs in say informing the police about disrurptive activites on the premises, then they could potentially be on the hook.
Thanks, Minsky. That's what I assumed, but it still seems like a really high amount for the amount of their involvement (or lack thereof).
If they are found to be liable the amount is determined by the measure of damage which has nothing to do with JIB and everything to do with the extent of the injuries suffered by the Plaintiff, his cost of future care and JIB's apportioned share of those damages (based on their percentage of liability not dollar figures).
Quote from: merithyn on September 17, 2013, 01:05:52 PM
Quote from: The Minsky Moment on September 17, 2013, 12:52:25 PM
Without the benefit of the trial record, one would have to speculate. However, if the parking area is on JiB owned or leased premises, and JiB failed to follow its own SOPs in say informing the police about disrurptive activites on the premises, then they could potentially be on the hook.
Thanks, Minsky. That's what I assumed, but it still seems like a really high amount for the amount of their involvement (or lack thereof).
I assume it's an outcome caused by 'joint and several liability'.
In some (most?) jurisdictions, if a bunch of folks are guilty of causing damage, the court will assign or apportion liability to everyone so found. However, the responsibility to pay is ultimately the group of tortfeasors as a whole - meaning if someone can't pick up their "share" of the "tab", everyone else has to.
In this case, obviously the lion's share of responsibility belongs to the punks who did the beating. Thing is, these punks very likely have no money. They certainly are unlikely to have $20 million lying about.
JiB has the deep pockets, so even if they are only 1% liable, they end up footing more or less the entire bill aside from the percentage assigned to the plaintiff himself, simply because they are the only ones who can pay.
http://en.wikipedia.org/wiki/Joint_and_several_liability
Quote from: Malthus on September 17, 2013, 03:19:47 PM
I assume it's an outcome caused by 'joint and several liability'.
In some (most?) jurisdictions, if a bunch of folks are guilty of causing damage, the court will assign or apportion liability to everyone so found. However, the responsibility to pay is ultimately the group of tortfeasors as a whole - meaning if someone can't pick up their "share" of the "tab", everyone else has to.
In this case, obviously the lion's share of responsibility belongs to the punks who did the beating. Thing is, these punks very likely have no money. They certainly are unlikely to have $20 million lying about.
JiB has the deep pockets, so even if they are only 1% liable, they end up footing more or less the entire bill aside from the percentage assigned to the plaintiff himself, simply because they are the only ones who can pay.
http://en.wikipedia.org/wiki/Joint_and_several_liability
Thanks, Malthus. That clarifies it for me.
That's a law that needs to change.
It's bullshit. It's unjust.
Quote from: Admiral Yi on September 17, 2013, 03:32:21 PM
That's a law that needs to change.
From the wiki article:
QuoteOpponents of the principle of joint and several liability note that its use (instead of proportionate responsibility) has led to cases in which a party with a very minor part of the responsibility unfairly shoulders the burden of damages. The classic example is the uninsured drunk driver who injures someone; the plaintiff will sue both the insolvent drunk driver and the state highway department (or automobile manufacturer), hoping to hold the latter 1% or 2% responsible, thereby forcing them to pay the entire award. Joint and several liability, reform supporters argue, leads to lawyers searching for "deep pockets" to sue (in the expectation that they will settle rather than risk trial), even though those defendants may only be remotely related to an incident.
The original notion was that the plaintiff should not have the burden of litigating proportions of liability among tortfeasors (under joint & several, the tortfeasors have that burden among themselves). However, obviously, J & S now results in a hunt for someone, anyone, with deep pockets to have even some trifling responsibility.
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Anything that could possibly harm a business is unjust in your book.
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Concur. Joint and several is terrible. It's radically unfair.
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
They should have had a JIB employee swing by and shoot him in the head.
What's the present discounted cost of Ali Aziz' life?
Quote from: Razgovory on September 17, 2013, 03:43:24 PM
Anything that could possibly harm a business is unjust in your book.
You've been trying now for about eight years to convince others, or possibly myself, that I am so hopelessly biased that my opinions are meaningless. By my estimation your success has been scant. That might be a signal to you to re-evaluate either the ends you are seeking, or the means you are employing.
Quote from: Admiral Yi on September 17, 2013, 03:49:39 PM
Quote from: Razgovory on September 17, 2013, 03:43:24 PM
Anything that could possibly harm a business is unjust in your book.
You've been trying now for about eight years to convince others, or possibly myself, that I am so hopelessly biased that my opinions are meaningless. By my estimation your success has been scant. That might be a signal to you to re-evaluate either the ends you are seeking, or the means you are employing.
But I haven't. I'm just amused by your predictability.
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Raz, I suggest making long-term bets with Yi at high odds on elections. When they pay off, the drop in his standard of living will motivate him, as a rational economic actor, to consider voting Democratic.
Quote from: Ideologue on September 17, 2013, 03:53:07 PM
Raz, I suggest making long-term bets with Yi at high odds on elections. When they pay off, the drop in his standard of living will motivate him, as a rational economic actor, to consider voting Democratic.
If I wanted him to vote democratic, I'd try to convince everyone to vote Republican. After a few years of Austerity, he'd come around.
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
Quote from: Ideologue on September 17, 2013, 03:53:07 PM
Raz, I suggest making long-term bets with Yi at high odds on elections. When they pay off, the drop in his standard of living will motivate him, as a rational economic actor, to consider voting Democratic.
I voted for Obama last election. I voted against recalling the Iowa SC judges who ruled for homomarriage in the last midterm.
The principle reason I'm not interested in going full tribal is because I'm not a member of a core constitutency that your boys are likely to shower with free money.
Quote from: Admiral Yi on September 17, 2013, 03:59:15 PM
Quote from: Ideologue on September 17, 2013, 03:53:07 PM
Raz, I suggest making long-term bets with Yi at high odds on elections. When they pay off, the drop in his standard of living will motivate him, as a rational economic actor, to consider voting Democratic.
I voted for Obama last election. I voted against recalling the Iowa SC judges who ruled for homomarriage in the last midterm.
Whoa, what? I totally missed that. Thought you were going for Romney.
QuoteThe principle reason I'm not interested in going full tribal is because I'm not a member of a core constitutency that your boys are likely to shower with free money.
Hell, I'm beginning to think that neither am I.
Quote from: Ideologue on September 17, 2013, 04:02:31 PM
Hell, I'm beginning to think that neither am I.
Well, you do have the student loan interest rate angle. Not particularly relevant if you're going IBRP perhaps.
Pretty positive it doesn't apply to me.
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Let's say you are an ordinary Joe who is defrauded out your life savings. The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank. Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea. BigBadBank is still alive and solvent however. A jury finds that between the three BigBadBank is 40% at fault.
If liability is several only, that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect). You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.
Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?
Quote from: The Minsky Moment on September 17, 2013, 04:59:37 PM
Let's say you are an ordinary Joe who is defrauded out your life savings. The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank. Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea. BigBadBank is still alive and solvent however. A jury finds that between the three BigBadBank is 40% at fault.
If liability is several only, that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect). You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.
Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?
There is no doubt whatsoever that from the POV of the plaintiff it's a sweetheart deal. What stinks is that BBB, who has only done you .4X damage, is on hook for X damage. What stinks even worse is the concept that a party that does you .0001X damage is still on the hook for X.
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
Quote from: The Minsky Moment on September 17, 2013, 05:10:00 PM
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
I see your point.
Are you maintaining that in every case involving joint and several liability the parties are accomplices?
Quote from: Admiral Yi on September 17, 2013, 05:12:35 PM
Quote from: The Minsky Moment on September 17, 2013, 05:10:00 PM
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
I see your point.
Are you maintaining that in every case involving joint and several liability the parties are accomplices?
Put another way, why should the burden be on the innocent party who was wronged to go after the other defendants rather than the other parties who did wrong.
Quote from: crazy canuck on September 17, 2013, 05:16:04 PM
Put another way, why should the burden be on the innocent party who was wronged to go after the other defendants rather than the other parties who did wrong.
Why should deep pockets pay for the wrong of others?
Quote from: Admiral Yi on September 17, 2013, 05:17:51 PM
Quote from: crazy canuck on September 17, 2013, 05:16:04 PM
Put another way, why should the burden be on the innocent party who was wronged to go after the other defendants rather than the other parties who did wrong.
Why should deep pockets pay for the wrong of others?
They are paying for their wrong and they have the pockets to go after the other defendants if they think those other defendents should pay up.
In terms of risk allocation it makes a lot more sense than penalizing the innocent plaintiff. People are a lot less likely to commit a tortious act if they think there is a risk they might pay 100% of the damages.
Quote from: Admiral Yi on September 17, 2013, 05:17:51 PM
Quote from: crazy canuck on September 17, 2013, 05:16:04 PM
Put another way, why should the burden be on the innocent party who was wronged to go after the other defendants rather than the other parties who did wrong.
Why should deep pockets pay for the wrong of others?
Because they were in conspiracy with them?
Quote from: The Minsky Moment on September 17, 2013, 04:59:37 PM
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Let's say you are an ordinary Joe who is defrauded out your life savings. The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank. Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea. BigBadBank is still alive and solvent however. A jury finds that between the three BigBadBank is 40% at fault.
If liability is several only, that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect). You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.
Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?
I think a case where there is established criminal collusion is a bit different than the case here.
Quote from: Razgovory on September 17, 2013, 03:43:24 PM
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Anything that could possibly harm a business is unjust in your book.
Raz, have you ever tried the strategy called "pick your battles"? There is a Laffer curve effect in play when it comes to stalking: cutting the number of put-downs in half may more than double the :pinch:/put-down ratio.
Quote from: crazy canuck on September 17, 2013, 03:57:55 PM
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
How many defendants could possibly each be over 50% liable? :lol:
Quote from: grumbler on September 17, 2013, 05:31:37 PM
Quote from: crazy canuck on September 17, 2013, 03:57:55 PM
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
How many defendants could possibly each be over 50% liable? :lol:
Depends on the total amount of liability.
Quote from: DGuller on September 17, 2013, 05:27:46 PM
Quote from: Razgovory on September 17, 2013, 03:43:24 PM
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Anything that could possibly harm a business is unjust in your book.
Raz, have you ever tried the strategy called "pick your battles"? There is a Laffer curve effect in play when it comes to stalking: cutting the number of put-downs in half may more than double the :pinch: /put-down ratio.
Would you like me to stalk you?
Quote from: Razgovory on September 17, 2013, 05:33:58 PM
Quote from: DGuller on September 17, 2013, 05:27:46 PM
Quote from: Razgovory on September 17, 2013, 03:43:24 PM
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Anything that could possibly harm a business is unjust in your book.
Raz, have you ever tried the strategy called "pick your battles"? There is a Laffer curve effect in play when it comes to stalking: cutting the number of put-downs in half may more than double the :pinch: /put-down ratio.
Would you like me to stalk you?
:hmm: Nah, stick to Yi, please.
Quote from: grumbler on September 17, 2013, 05:31:37 PM
Quote from: crazy canuck on September 17, 2013, 03:57:55 PM
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
How many defendants could possibly each be over 50% liable? :lol:
Any number actually.
Quote from: The Minsky Moment on September 17, 2013, 05:10:00 PM
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
That is the same situation, justice-wise, as if BBB were not found guilty of anything. How can it be fair that some innocent person gets ripped off by Bernie Madoff, and no one makes it good?
Quote from: alfred russel on September 17, 2013, 05:21:58 PM
Quote from: The Minsky Moment on September 17, 2013, 04:59:37 PM
Quote from: Admiral Yi on September 17, 2013, 03:36:57 PM
It's bullshit. It's unjust.
Let's say you are an ordinary Joe who is defrauded out your life savings. The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank. Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea. BigBadBank is still alive and solvent however. A jury finds that between the three BigBadBank is 40% at fault.
If liability is several only, that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect). You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.
Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?
I think a case where there is established criminal collusion is a bit different than the case here.
Exactly. BBB may have done nothing more than been negligent in updating the address on the victim's account reports (which, while it allowed the crime to some extent, was not intended to do so).
Quote from: grumbler on September 17, 2013, 05:40:00 PM
Quote from: The Minsky Moment on September 17, 2013, 05:10:00 PM
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
That is the same situation, justice-wise, as if BBB were not found guilty of anything. How can it be fair that some innocent person gets ripped off by Bernie Madoff, and no one makes it good?
No, Plaintiffs always run the risk that they may end up with a dry judgment. The policy issue is why should they face that risk when a tortfeasor can pay.
Quote from: DGuller on September 17, 2013, 05:32:43 PM
Quote from: grumbler on September 17, 2013, 05:31:37 PM
Quote from: crazy canuck on September 17, 2013, 03:57:55 PM
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
How many defendants could possibly each be over 50% liable? :lol:
Depends on the total amount of liability.
Really? I only really know about liability from Law of the Sea stuff back in my Navy days, but in LotS, liability totals 100%. In non-LotS stuff, if you have liabilities totaling, say, 200%, does the plaintiff get 200% of the award? If not, who gets the award in excess of 100%?
Quote from: DGuller on September 17, 2013, 05:35:32 PM
:hmm: Nah, stick to Yi, please.
Very wise choice, Dmitriy
Quote from: crazy canuck on September 17, 2013, 05:45:41 PM
No, Plaintiffs always run the risk that they may end up with a dry judgment. The policy issue is why should they face that risk when a tortfeasor can pay.
The policy issue is why make a minor transgressor pay the entire forfeit when the plaintiff has ended up with a dry judgement against the other, major defendants? This policy encourages widening suits and increasing costs to everyone just in the hope that a lawyer can convince a jury that the Big Bad Business is even 0.0001% at fault, so the lawyer can get his full 40%-of-settlement payment.
That's bad policy. I don't have a problem making all defendants over 50% liable jointly liable. In those cases, they were major players in the problem.
Quote from: crazy canuck on September 17, 2013, 05:18:49 PM
They are paying for their wrong and they have the pockets to go after the other defendants if they think those other defendents should pay up.
In terms of risk allocation it makes a lot more sense than penalizing the innocent plaintiff. People are a lot less likely to commit a tortious act if they think there is a risk they might pay 100% of the damages.
They are paying for their wrong and the wrongs of other parties. That was the starting point of the discussion.
In both Joan's hypothetical, and the JiB case (which turned out to be in a NIMBYCINCPAC state so a little moot) the other defendents had no assets. Going after them is not an option for the party on the hook. I can *sort* of see the logic of holding BB Bank totally liable and allowing them to go after a Bernie Madoff who is sitting on a stash in Ecuador, but the law doesn't appear to make that distinction. I can similarly see the logic behind applying the law to co-conspirators to fraud, but that doesn't describe either the JiB hypothetical or the Highway Department/drunk driver hypothetical.
Quote from: Admiral Yi on September 17, 2013, 06:02:58 PM
Quote from: crazy canuck on September 17, 2013, 05:18:49 PM
They are paying for their wrong and they have the pockets to go after the other defendants if they think those other defendents should pay up.
In terms of risk allocation it makes a lot more sense than penalizing the innocent plaintiff. People are a lot less likely to commit a tortious act if they think there is a risk they might pay 100% of the damages.
They are paying for their wrong and the wrongs of other parties. That was the starting point of the discussion.
Not quite. All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be. The policy decision is to not put that burden on the Plaintiff.
The issue is that here the other defendants wont be able to contribute because they are broke. But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
Quote from: grumbler on September 17, 2013, 05:53:41 PM
This policy encourages widening suits and increasing costs to everyone just in the hope that a lawyer can convince a jury that the Big Bad Business is even 0.0001% at fault, so the lawyer can get his full 40%-of-settlement payment.
That is a separate issue. If your law does not recognize de minimus acts as being non culpable then that is your real problem.
Quote from: crazy canuck on September 17, 2013, 06:10:24 PM
But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
Well of course. If we instituted a trillion dollar fine for hurting people's feelings on the internet that would be a deterrent too. Doesn't mean it's a great idea.
Quote from: crazy canuck on September 17, 2013, 06:10:24 PM
Not quite. All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be. The policy decision is to not put that burden on the Plaintiff.
The issue is that here the other defendants wont be able to contribute because they are broke. But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
IMO, the point of the tort system is to internalize the externality of your action. However, that point runs the risk of being lost when the externality is over-internalized by a factor of 100.
Quote from: crazy canuck on September 17, 2013, 06:12:10 PM
Quote from: grumbler on September 17, 2013, 05:53:41 PM
This policy encourages widening suits and increasing costs to everyone just in the hope that a lawyer can convince a jury that the Big Bad Business is even 0.0001% at fault, so the lawyer can get his full 40%-of-settlement payment.
That is a separate issue. If your law does not recognize de minimus acts as being non culpable then that is your real problem.
According to your policy, de minumis acts would still be significant, because otherwise the plaintiff has a dry judgement. Even in a de minimis case, "why should the burden be on the innocent party who was wronged to go after the other defendants rather than the other parties who did [minimal] wrong?"
I'm not sure if anyone has pointed this out yet, but in some states that have eliminated joint and several liability (i.e. Florida), courts generally do not permit the apportion of damages between intentional tortfeasors and negligent tortfeasors. This is significant for "negligent security" cases.
For instance, in negligent security cases(i.e. exactly what the Jib case is) in Florida, a jury is not permitted to assign any fault to an attacker of a patron. So if the Jib case was in Florida, JIB would be responsible for the entire verdict, unless the plaintiff was at fault also. That result actually kind of makes sense even when joint and several liability has been abolished otherwise.
In negligent security cases, the theory of liability against a premises owner is that the owner has some sort of duty to protect patrons, or warn them of security risks, etc. If a jury determines that a premises owner breached its duty to a patron such that the patron was assaulted, and it was reasonably foreseeable that the patron could be assaulted, then it makes sense that Jib should have to pay for the entire amount of damages and not have its liability reduced. A good example of this principle in practice is the following case: http://scholar.google.com/scholar_case?case=15514837030233561497&q=negligent+security+intentional+negligent+apportion&hl=en&as_sdt=4,10. From a practical point of view, plaintiffs would never recover anything in negligent security cases if fault could be apportioned to the actual attacker since those individuals are usually judgment proof.
That being said, if there were other potentially negligent actors (i.e. a security company, a leasing company), then a jury could apportion fault among the negligent actors.
Quote from: DGuller on September 17, 2013, 06:19:18 PM
Quote from: crazy canuck on September 17, 2013, 06:10:24 PM
Not quite. All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be. The policy decision is to not put that burden on the Plaintiff.
The issue is that here the other defendants wont be able to contribute because they are broke. But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
IMO, the point of the tort system is to internalize the externality of your action. However, that point runs the risk of being lost when the externality is over-internalized by a factor of 100.
In theory, insurance should account for that. Insurance comes into play probably in 90%+ of tort cases. The risk of facing joint and several liability should be reflected in an insurer's risk assessment and calculations of premiums. I am sure there are studies which look at the impact of tort reform (i.e. elimination of joint and several liability) on insurance premiums.
Quote from: stjaba on September 17, 2013, 07:54:30 PM
In theory, insurance should account for that. Insurance comes into play probably in 90%+ of tort cases. The risk of facing joint and several liability should be reflected in an insurer's risk assessment and calculations of premiums. I am sure there are studies which look at the impact of tort reform (i.e. elimination of joint and several liability) on insurance premiums.
Having a third party insurer doesn't reduce the size of the internalized externality, it just pools it.
Quote from: Admiral Yi on September 17, 2013, 08:01:16 PM
Quote from: stjaba on September 17, 2013, 07:54:30 PM
In theory, insurance should account for that. Insurance comes into play probably in 90%+ of tort cases. The risk of facing joint and several liability should be reflected in an insurer's risk assessment and calculations of premiums. I am sure there are studies which look at the impact of tort reform (i.e. elimination of joint and several liability) on insurance premiums.
Having a third party insurer doesn't reduce the size of the internalized externality, it just pools it.
One way or another, the risk of injury is probably being borne by customers, it's just a question of whether one customer will bear the risk of loss or whether all customers share the risk. For instance, consider the JIB case.
In a J&S world, in theory JIB's insurer will account for the risk of J&S liability, and charge JIB premiums accordingly. JIB will account for the cost of insurance and pass it along to its customers. All JIB customers therefore share the risk of loss more or less equally since in essence they are paying for the insurance, albeit indirectly.
In an abolition of J&S world, JIB's insurer will account for abolition of J&S liability. The risk is still with JIB customers, however now the risk is being heavily borne by the customer who is assaulted as opposed to all JIB customers equally.
***
FYI, one area where this model breaks down pretty bad is products liability. A lot of large corporations self-insure, and/or have are faced with overwhelming liability(i.e. beyond policy limits) in mass torts cases. This is particularly the case in instance of long tail liability. A classic example would be asbestos manufacturers. A ton of companies went bankrupt in the 70's and 80's due to asbestos lawsuits arising out of exposure in the 30's and 40's.
Another interesting example are small plane manufacturers(i.e. Piper). A bunch of them stopped manufacturing planes in the 80's because they were faced with defending a lawsuit over every single time a small plane was involved in an accident. Manufacturers were faced with defending lawsuits involving planes that had been manufactured 30-40 years in the past. These lawsuits are quite expensive to defend, as I know from personal experience as my firm defends airplane manufacturers in suits. In any event, Congress stepped in and passed a law called GARA which limited liability of plane manufacturers to planes that were manufactured within 18 years of the accident. Obviously that helps fix the long tail of liability problem.
Quote from: grumbler on September 17, 2013, 07:12:44 PM
Quote from: crazy canuck on September 17, 2013, 06:12:10 PM
Quote from: grumbler on September 17, 2013, 05:53:41 PM
This policy encourages widening suits and increasing costs to everyone just in the hope that a lawyer can convince a jury that the Big Bad Business is even 0.0001% at fault, so the lawyer can get his full 40%-of-settlement payment.
That is a separate issue. If your law does not recognize de minimus acts as being non culpable then that is your real problem.
According to your policy, de minumis acts would still be significant
No. "My" policy is that tortfeasors should look to co-defendants. To be a tortfeasor one must have commited a tort beyond a de minimus act.
Quote from: DGuller on September 17, 2013, 06:19:18 PM
Quote from: crazy canuck on September 17, 2013, 06:10:24 PM
Not quite. All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be. The policy decision is to not put that burden on the Plaintiff.
The issue is that here the other defendants wont be able to contribute because they are broke. But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
IMO, the point of the tort system is to internalize the externality of your action. However, that point runs the risk of being lost when the externality is over-internalized by a factor of 100.
If it is a factor of 100 then by definition the party could not possibly be a tortfeasor unless one buys into Grumbler's absurdity.
Quote from: stjaba on September 17, 2013, 08:10:37 PM
The risk is still with JIB customers, however now the risk is being heavily borne by the customer who is assaulted as opposed to all JIB customers equally.
And that's one of the debated points: whether damages awarded equal or exceed the risk born by the customers.
Quote from: stjaba on September 17, 2013, 08:10:37 PM
One way or another, the risk of injury is probably being borne by customers, it's just a question of whether one customer will bear the risk of loss or whether all customers share the risk. For instance, consider the JIB case.
In a J&S world, in theory JIB's insurer will account for the risk of J&S liability, and charge JIB premiums accordingly. JIB will account for the cost of insurance and pass it along to its customers. All JIB customers therefore share the risk of loss more or less equally since in essence they are paying for the insurance, albeit indirectly.
In an abolition of J&S world, JIB's insurer will account for abolition of J&S liability. The risk is still with JIB customers, however now the risk is being heavily borne by the customer who is assaulted as opposed to all JIB customers equally.
I disagree on several grounds. Among them, all customers may bear the cost of a beatdown in the parking lot, but it is not equally likely that all customers will be beaten down in the parking lot. In some alternate world where I wanted JiB in the middle of the night, it seems quite unlikely I would have been a victim of this beating, because from the sounds of the scene I would have stayed away, certainly not got out of my car, and likely not done whatever it was that had the jury consider the victim partially to blame.
Also, a likely consequence of higher insurance premiums is to have few restaurants open in the early morning hours. Already the line at 2 or 3 in the morning can be monstrous at McDonald's when it is one of the only places open. I don't know why more fast food restaurants aren't open until those times as there is obviously demand. I do suspect that security concerns and costs play into the decision.
Quote from: alfred russel on September 17, 2013, 08:24:17 PM
I disagree on several grounds. Among them, all customers may bear the cost of a beatdown in the parking lot, but it is not equally likely that all customers will be beaten down in the parking lot. In some alternate world where I wanted JiB in the middle of the night, it seems quite unlikely I would have been a victim of this beating, because from the sounds of the scene I would have stayed away, certainly not got out of my car, and likely not done whatever it was that had the jury consider the victim partially to blame.
To the extent the customer in cases this was "negligent," his damages were reduced by the jury, so he bore that risk personally.
Quote
Also, a likely consequence of higher insurance premiums is to have few restaurants open in the early morning hours. Already the line at 2 or 3 in the morning can be monstrous at McDonald's when it is one of the only places open. I don't know why more fast food restaurants aren't open until those times as there is obviously demand. I do suspect that security concerns and costs play into the decision.
This sounds like the market is working as expected. If it is riskier for a business to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
Additionally, I realize that different customers have different risk profiles, but once a business allocates the premiums on a per customer per transaction basis the difference has to be nearly meaningless. It would probably be more expensive to figure out and implement a pricing scheme such that items are priced according to a customer risk profile instead of simply treating all customers exactly the same.
Quote from: stjaba on September 17, 2013, 08:34:55 PM
Quote from: alfred russel on September 17, 2013, 08:24:17 PM
Also, a likely consequence of higher insurance premiums is to have few restaurants open in the early morning hours. Already the line at 2 or 3 in the morning can be monstrous at McDonald's when it is one of the only places open. I don't know why more fast food restaurants aren't open until those times as there is obviously demand. I do suspect that security concerns and costs play into the decision.
This sounds like the market is working as expected. If it is riskier for customers to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
1 Off-Duty Police Officer: $25/hour.
Quote from: Admiral Yi on September 17, 2013, 08:20:18 PM
Quote from: stjaba on September 17, 2013, 08:10:37 PM
The risk is still with JIB customers, however now the risk is being heavily borne by the customer who is assaulted as opposed to all JIB customers equally.
And that's one of the debated points: whether damages awarded equal or exceed the risk born by the customers.
At least earlier the debate was framed as whether JIB or the customer should bear the risk.
Quote from: stjaba on September 17, 2013, 08:34:55 PM
This sounds like the market is working as expected. If it is riskier for a business to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
That is great. I would ask who covers the rest of my night, but then I realized the line is so long it all gets spent at McDonalds. $3 for a McFlurry, and insurance coverage against random beatings. What a bargain.
Quote from: Admiral Yi on September 17, 2013, 05:12:35 PM
Quote from: The Minsky Moment on September 17, 2013, 05:10:00 PM
You haven't answered the question though. If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?
I see your point.
Are you maintaining that in every case involving joint and several liability the parties are accomplices?
although - you and AR both assume my example involves collusion, it doesn't necessarily.
The broader point is that if some defendants are judgment proof (missing or without assets) then someone is going to be screwed. It could be the plaintiff or it could be the other defendants.
What the common law did traditionally was say that if someone should be screwed it should be a party responsible for the wrong, and not the victims of it. Thus joint and several liability
But what if the only solvent defendant was only slightly at fault?
Then you get something like the Missouri scheme where it is only proportional liability unless a certain threshold of fault is hit (50% in Missouri). That is a pretty common scheme that lots of states follow now.
Quote from: stjaba on September 17, 2013, 08:34:55 PM
This sounds like the market is working as expected. If it is riskier for a business to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
It's not necessarily riskier for the business. A head stomping in their parking lot doesn't harm them much.
The market solution is for businesses to choose varying security/cost points, and for customers to choose their own tradeoff.
Quote from: Admiral Yi on September 17, 2013, 08:48:33 PM
Quote from: stjaba on September 17, 2013, 08:34:55 PM
This sounds like the market is working as expected. If it is riskier for a business to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
It's not necessarily riskier for the business. A head stomping in their parking lot doesn't harm them much.
The market solution is for businesses to choose varying security/cost points, and for customers to choose their own tradeoff.
I meant risk from a legal/liability point of view. It sounds like you are suggesting that a business should never be liable for a beatdown that occurs in its parking lot. That's different from rejecting or embracing joint and several liability.
However, in negligent security cases, the general theory of liability is that the premises owner affirmatively did something (or failed to do something) that caused a risk of injury to a patron. Generally, a beatdown of a customer, without anything more, is insufficient to render a business liable. However, hypothetically, if Jib is aware that beatdowns had occurred in its parking lot at night, and did nothing to prevent future occurrences nor did anything to warn customers about the risk of beatdowns, then legally it could be liable.
Returning to being open at night example- let's assume that Jib is aware of an increased risk of beatdowns in its parking lot at night, and that this alone is sufficient to make Jib liable for future beatdowns in the parking lot. Obviously the smart thing for Jib to do would be to add security and/or make sure insurance covers it. Jib then spreads the costs to it customers, probably at the cost of fractions of a penny per burger. How is this a bad thing?
Quote from: stjaba on September 17, 2013, 07:39:47 PM
I'm not sure if anyone has pointed this out yet, but in some states that have eliminated joint and several liability (i.e. Florida), courts generally do not permit the apportion of damages between intentional tortfeasors and negligent tortfeasors. This is significant for "negligent security" cases.
For instance, in negligent security cases(i.e. exactly what the Jib case is) in Florida, a jury is not permitted to assign any fault to an attacker of a patron. So if the Jib case was in Florida, JIB would be responsible for the entire verdict, unless the plaintiff was at fault also.
Interesting, had not known that, this kind of case is a bit out of my usual area.
That would explain the result here.
Stjaba, I understand the way things are.
My point of view is this. The insurance model you suggest is not good public policy in this instance. In theory, there is a risk, and the insurance protects everyone from that risk, with the premium paid by the business and passed on to the consumer. But in reality, the actions a person takes can significantly alter their risk. Also, there are significant sources of waste in using insurance:
-insurance has significant overhead, from profits to investors, to administration costs, to legal costs, and adjusting costs
-the litigation in these sorts of situations is enormously expensive
-the outcomes in front of a jury are random and unpredictable
I also disagree about the triviality of the costs. I don't know the ownership structure of this JiB. It may have been a owned by a franchisee who had just one or two stores, and with insurance limits that will cause him to go into bankruptcy. It may be have been a corporate store owned by JiB. But if we assume the biggest pockets possible--this was owned by JiB--I checked their net income from last year: $58 million (and that includes Qdoba). A $20m judgment would be a big deal to them if they self insure. Even if they don't, their insurance costs must be considerable.
Quote from: stjaba on September 17, 2013, 07:54:30 PM
Quote from: DGuller on September 17, 2013, 06:19:18 PM
Quote from: crazy canuck on September 17, 2013, 06:10:24 PM
Not quite. All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be. The policy decision is to not put that burden on the Plaintiff.
The issue is that here the other defendants wont be able to contribute because they are broke. But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.
IMO, the point of the tort system is to internalize the externality of your action. However, that point runs the risk of being lost when the externality is over-internalized by a factor of 100.
In theory, insurance should account for that. Insurance comes into play probably in 90%+ of tort cases. The risk of facing joint and several liability should be reflected in an insurer's risk assessment and calculations of premiums. I am sure there are studies which look at the impact of tort reform (i.e. elimination of joint and several liability) on insurance premiums.
No, it doesn't account at all for the perversion of the legal theory upon which tort system is based. It only changes the deep pocket being tapped into in a particular case, and in the long run that cost is just spread along all the deep pockets that buy insurance.
Quote from: stjaba on September 17, 2013, 08:34:55 PM
This sounds like the market is working as expected. If it is riskier for a business to be open at night, then rational businesses should be closed, unless they are willing to protect their customers via extra security or insurance to cover the risk of attack.
Just because individual actors are acting based on their financial incentives does not meant that the market is working as expected, if the costs being avoided are artificially inflated way past the real costs inflicted on society. You still have an inefficient allocation of resources based on a legal absurdity.
Quote from: CountDeMoney on September 17, 2013, 08:36:04 PM
1 Off-Duty Police Officer: $25/hour.
Or at least following their own internal policies, which according to the report they did not do.
Quote from: DGuller on September 17, 2013, 11:25:29 PM
You still have an inefficient allocation of resources based on a legal absurdity.
that the risk of wrongdoing should be borne by the wrongdoers and not the victim. What an interesting view of absurdity you have :P
Quote from: crazy canuck on September 18, 2013, 07:00:17 AM
Quote from: CountDeMoney on September 17, 2013, 08:36:04 PM
1 Off-Duty Police Officer: $25/hour.
Or at least following their own internal policies, which according to the report they did not do.
The organizational mission of JIB is not security.
Quote from: DGuller on September 17, 2013, 11:21:43 PM
No, it doesn't account at all for the perversion of the legal theory upon which tort system is based. It only changes the deep pocket being tapped into in a particular case, and in the long run that cost is just spread along all the deep pockets that buy insurance.
Assuming JIB is like most businesses, it passes along the cost of its insurance to its customers by building the cost of insurance into the price of its products. In the long run, the risk is being spread to all the patrons of JIB.
Quote from: alfred russel on September 17, 2013, 09:21:28 PM
Stjaba, I understand the way things are.
My point of view is this. The insurance model you suggest is not good public policy in this instance. In theory, there is a risk, and the insurance protects everyone from that risk, with the premium paid by the business and passed on to the consumer. But in reality, the actions a person takes can significantly alter their risk.
The system partially accounts for that being reducing damages in the event that a plaintiff has himself acted negligently. Additionally, while obviously people can take non-negligent actions that increase their individual risk, it is probably cheaper and more efficient to essentially treat everyone equally.
Quote
Also, there are significant sources of waste in using insurance:
-insurance has significant overhead, from profits to investors, to administration costs, to legal costs, and adjusting costs
-the litigation in these sorts of situations is enormously expensive
-the outcomes in front of a jury are random and unpredictable
In a non J&S world, you are still going to have all of that. The elimination of J&S in Florida certainly did not eliminate the need for businesses to purchase liability insurance. Are you opposed to the tort system generally? Or the concept of tortfeasors passing along insurance costs to customers? Even if you are opposed to imposing liability on JIB in negligent security cases, JIB is still going to have buy insurance to cover slip and fall accidents, accidental finger in chili incidents, etc.
Quote
I also disagree about the triviality of the costs. I don't know the ownership structure of this JiB. It may have been a owned by a franchisee who had just one or two stores, and with insurance limits that will cause him to go into bankruptcy. It may be have been a corporate store owned by JiB. But if we assume the biggest pockets possible--this was owned by JiB--I checked their net income from last year: $58 million (and that includes Qdoba). A $20m judgment would be a big deal to them if they self insure. Even if they don't, their insurance costs must be considerable.
Again, these costs and risks generally exist whether J&S liability exists or has been abolished. Does J&S liability marginally increase the odds of a significant adverse judgment and marginally increase the cost of insurance? Probably, but I suspect you are vastly overstating how much of an impact J&S liability has on the general cost of liability insurance.
Quote from: DGuller on September 17, 2013, 11:25:29 PM
Just because individual actors are acting based on their financial incentives does not meant that the market is working as expected, if the costs being avoided are artificially inflated way past the real costs inflicted on society. You still have an inefficient allocation of resources based on a legal absurdity.
Also, it should be pointed out that in a non-tort world, many of the issues you and AR raise would still exist. Rather than businesses bearing the risk of loss via tort suit, rational individuals would purchase insurance to protect against the risk of loss, and/or the cost of other insurance(i.e. health and disability) would increase There would still probably be litigation over accidents, albeit in the form of breach of contract suits between individuals and insurance companies. An analogous example to this is un/under insured motor(UM) insurance. UM carriers are routinely sued in lawsuits all the time.
There's no escaping insurance and litigation costs. What the tort system does is place the risk of loss on the party who is best placed to spread that risk over a large pool of people. Additionally, it incentives defendants to put into place measures to avoid accidents, which makes sense because defendants generally are much better situated to put into place measures to avoid accidents, compared to plaintiffs.
Quote from: crazy canuck on September 17, 2013, 03:57:55 PM
Quote from: Malthus on September 17, 2013, 03:52:27 PM
Quote from: The Minsky Moment on September 17, 2013, 03:46:34 PM
Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.
So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault. Either seems odd, but when you go to a jury, you takes your chances.
Okay, now *that* doesn't make any freaking sense. :lol:
Why, only defendants over 50% of apportioned liability become severally liable for all the damage. Makes sense to me. Especially if I am representing defendants who are 50% or less :D
The rule makes sense. That the rule resulted in this outcome doesn't.
JiB being out 20 million is an outcome that makes sense under traditional J&S. JiB being out 20 million doesn't make sense under the 50% rule.
Quote from: Malthus on September 18, 2013, 08:27:08 AM
The rule makes sense. That the rule resulted in this outcome doesn't.
JiB being out 20 million is an outcome that makes sense under traditional J&S. JiB being out 20 million doesn't make sense under the 50% rule.
It makes sense because as I mentioned in my other post, generally in negligent security cases even when J&S liability has been modified by statute, juries are not permitted to apportion liability to intentional tortfeasors. Which makes sense because the theory of liability in negligent security cases is that the defendant was (to over-simplify it) supposed to protect the plaintiff from assault.
Assuming that's the law in Missouri, it sounds like the jury apportioned 80% of the responsibility to JIB and 20% of the responsibility to the plaintiff.
Quote from: stjaba on September 18, 2013, 08:53:06 AM
Quote from: Malthus on September 18, 2013, 08:27:08 AM
The rule makes sense. That the rule resulted in this outcome doesn't.
JiB being out 20 million is an outcome that makes sense under traditional J&S. JiB being out 20 million doesn't make sense under the 50% rule.
It makes sense because as I mentioned in my other post, generally in negligent security cases even when J&S liability has been modified by statute, juries are not permitted to apportion liability to intentional tortfeasors. Which makes sense because the theory of liability in negligent security cases is that the defendant was (to over-simplify it) supposed to protect the plaintiff from assault.
Assuming that's the law in Missouri, it sounds like the jury apportioned 80% of the responsibility to JIB and 20% of the responsibility to the plaintiff.
Certainly (though I have my quibbles about that rule - as it seems to make the deep pocket 100% liable for intentional torts not committed by it).
My only point is that I was criticizing the
outcome in light of the Rule as MM presented it, not the Rule itself.
Quote from: crazy canuck on September 18, 2013, 07:02:04 AM
Quote from: DGuller on September 17, 2013, 11:25:29 PM
You still have an inefficient allocation of resources based on a legal absurdity.
that the risk of wrongdoing should be borne by the wrongdoers and not the victim. What an interesting view of absurdity you have :P
Disproportionately. If you penalize the activity that cause $10 of harm by making punishing the activity with a $1000 judgment, you are creating an environment where the actor has rational incentive to spend $900 to mitigate the possibility of that $10 activity occurring, which is economically inefficient and will lead to absurd levels of risk aversion.
Quote from: stjaba on September 18, 2013, 07:12:49 AM
Quote from: DGuller on September 17, 2013, 11:21:43 PM
No, it doesn't account at all for the perversion of the legal theory upon which tort system is based. It only changes the deep pocket being tapped into in a particular case, and in the long run that cost is just spread along all the deep pockets that buy insurance.
Assuming JIB is like most businesses, it passes along the cost of its insurance to its customers by building the cost of insurance into the price of its products. In the long run, the risk is being spread to all the patrons of JIB.
How does insuring the disproportionate costs or spreading them out changing anything, other than allay the moral doubts that lawyers should have about going after the deep pockets of marginally culpable parties?
Seriously, I feel like I'm arguing with ambulance chasers here. "Don't worry, it's the driver's insurance company that would pay for your whiplash. Actually, make that whiplash and pain and suffering. Actually, make that whiplash, pain and suffering, and PTSD."
I don't get the moral doubts point. Far worse that the innocent and wronged party can't recover any damages.
Who sets the amount of damages in the US?
Quote from: Sheilbh on September 18, 2013, 09:19:32 AM
I don't get the moral doubts point. Far worse that the innocent and wronged party can't recover any damages.
Who sets the amount of damages in the US?
That's part of the problem - damages awards are often set by a jury, and this leads to huge awards. In Canada, awards tend to be far more modest - pain & suffering damages are capped, awards are set by a judge, and punitive damages awards are comparatively low and only awarded in the most egregious cases - all compared with the US.
Quote from: Sheilbh on September 18, 2013, 09:19:32 AM
I don't get the moral doubts point. Far worse that the innocent and wronged party can't recover any damages.
I don't think anyone has argued against the plaintiff recovering *any* damages.
I was thinking that whereas I'm in favor of jury trials in criminal cases, there's a strong argument for removing them from civil cases.
Quote from: stjaba on September 18, 2013, 07:28:22 AM
Quote from: alfred russel on September 17, 2013, 09:21:28 PM
Stjaba, I understand the way things are.
My point of view is this. The insurance model you suggest is not good public policy in this instance. In theory, there is a risk, and the insurance protects everyone from that risk, with the premium paid by the business and passed on to the consumer. But in reality, the actions a person takes can significantly alter their risk.
The system partially accounts for that being reducing damages in the event that a plaintiff has himself acted negligently. Additionally, while obviously people can take non-negligent actions that increase their individual risk, it is probably cheaper and more efficient to essentially treat everyone equally.
Quote
Also, there are significant sources of waste in using insurance:
-insurance has significant overhead, from profits to investors, to administration costs, to legal costs, and adjusting costs
-the litigation in these sorts of situations is enormously expensive
-the outcomes in front of a jury are random and unpredictable
In a non J&S world, you are still going to have all of that. The elimination of J&S in Florida certainly did not eliminate the need for businesses to purchase liability insurance. Are you opposed to the tort system generally? Or the concept of tortfeasors passing along insurance costs to customers? Even if you are opposed to imposing liability on JIB in negligent security cases, JIB is still going to have buy insurance to cover slip and fall accidents, accidental finger in chili incidents, etc.
Quote
I also disagree about the triviality of the costs. I don't know the ownership structure of this JiB. It may have been a owned by a franchisee who had just one or two stores, and with insurance limits that will cause him to go into bankruptcy. It may be have been a corporate store owned by JiB. But if we assume the biggest pockets possible--this was owned by JiB--I checked their net income from last year: $58 million (and that includes Qdoba). A $20m judgment would be a big deal to them if they self insure. Even if they don't, their insurance costs must be considerable.
Again, these costs and risks generally exist whether J&S liability exists or has been abolished. Does J&S liability marginally increase the odds of a significant adverse judgment and marginally increase the cost of insurance? Probably, but I suspect you are vastly overstating how much of an impact J&S liability has on the general cost of liability insurance.
Regarding costs, I've posted that the entire net income of the JiB/Qdoba enterprise were $58m last year. $20m is a significant chunk of that. I can't imagine that the impact to insurance is insignificant (J&S not being the issue so much as the more general issue of finding deep pockets to foot expenses).
The de facto insurance coverage you are giving me when I enter a JiB parking and must recover through the tort system is also so deeply flawed I can't rely on it. Jury verdicts are unreliable both in terms of outcome and amount. Fees take away a significant portion of the proceeds if I win. Litigation can take years when I may need money immediately. The other party may not pay (and in this case that is still a possibility--if this was a franchisee and insurance was capped at a lower amount).
Essentially, despite the insurance you are theoretically giving me in the JiB parking lot, I need to self insure for the risk. This isn't so bad, because I also need to self insure for other causes of medical incapacity that don't have deep pockets around to pick up the tab.
Quote from: DGuller on September 18, 2013, 09:08:28 AM
How does insuring the disproportionate costs or spreading them out changing anything, other than allay the moral doubts that lawyers should have about going after the deep pockets of marginally culpable parties?
It changes the whole equation. Your argument seems to be that it is unfair for JIB to pay for 80% of the damages when you feel that the risk of loss should be borne entirely by the victim(since the intentional tortfeasor is judgment proof). My response is that it makes sense to essentially spread the risk of loss among all JIB patrons via insurance built into the price of JIB's products as opposed to burdening any one particular patron with the risk of loss.
As a further point, as I noted in my other post, in an alternate universe where JIB is not liable, the risk of loss would probably be allocated among JIB patrons' health and disability insurers, or there would be some sort of alternative insurance system to cover the risk of accidents caused by others (i.e. similar to UM insurance). Or to the extent injured parties are indigent and have no insurance, the government would cover it to a certain extent. One way or another, the risk of loss will be spread. It just so happens under the tort system, JIB is presented with the direct cost of obtaining insurance, and it spreads the risk itself. Which makes sense, because of all the parties out there, JIB is the one best placed to (1) spread cost of insurance of injuries for JIB patrons, and (2) prevent injuries from occurring on its premises.
Quote from: stjaba on September 18, 2013, 09:35:29 AM
It changes the whole equation. Your argument seems to be that it is unfair for JIB to pay for 80% of the damages when you feel that the risk of loss should be borne entirely by the victim(since the intentional tortfeasor is judgment proof). My response is that it makes sense to essentially spread the risk of loss among all JIB patrons via insurance built into the price of JIB's products as opposed to burdening any one particular patron with the risk of loss.
As a further point, as I noted in my other post, in an alternate universe where JIB is not liable, the risk of loss would probably be allocated among JIB patrons' health and disability insurers, or there would be some sort of alternative insurance system to cover the risk of accidents caused by others (i.e. similar to UM insurance). Or to the extent injured parties are indigent and have no insurance, the government would cover it to a certain extent. One way or another, the risk of loss will be spread. It just so happens under the tort system, JIB is presented with the direct cost of obtaining insurance, and it spreads the risk itself. Which makes sense, because of all the parties out there, JIB is the one best placed to (1) spread cost of insurance of injuries for JIB patrons, and (2) prevent injuries from occurring on its premises.
I think it would be much more efficient to spread the risk among other insurers. As I mentioned, I think the tort system as insurance provider is phenomenally inefficient.
Quote from: alfred russel on September 18, 2013, 09:33:37 AM
The de facto insurance coverage you are giving me when I enter a JiB parking and must recover through the tort system is also so deeply flawed I can't rely on it. Jury verdicts are unreliable both in terms of outcome and amount. Fees take away a significant portion of the proceeds if I win. Litigation can take years when I may need money immediately. The other party may not pay (and in this case that is still a possibility--if this was a franchisee and insurance was capped at a lower amount).
That's why 97% of civil cases settle. Also, obviously the system is imperfect, but I challenge you to come up with a system that 1) Incentives defendants to avoid accidents, 2) compensates plaintiffs for their injuries and 3) allocates risk fairly.
Quote
Essentially, despite the insurance you are theoretically giving me in the JiB parking lot, I need to self insure for the risk. This isn't so bad, because I also need to self insure for other causes of medical incapacity that don't have deep pockets around to pick up the tab.
That's great for you, but most people don't have the capability to self-insure. What makes more sense? Having JIB increase the cost of burgers a few cents to pay for insurance or expecting everyone to self-insure against accidents?
Quote from: Malthus on September 18, 2013, 09:29:32 AM
That's part of the problem - damages awards are often set by a jury, and this leads to huge awards. In Canada, awards tend to be far more modest - pain & suffering damages are capped, awards are set by a judge, and punitive damages awards are comparatively low and only awarded in the most egregious cases - all compared with the US.
Yeah. That seems to me the problem.
I don't think there's anywhere near such a problem with joint and several if the damages awarded are reasonable. They're also relatively modest in the UK because 99% of civil cases are heard by a judge alone. In addition the Government Actuary's Department provides a table for courts to use to calculate appropriate damages.
QuoteI don't think anyone has argued against the plaintiff recovering *any* damages.
No. But I think a lot of people here would be more comfortable with joint and several if the level of damages were a bit more sensible.
But the effect of just getting rid of it would be to deprive innocent parties of damages they should receive for loss they have suffered, or to make them go through all the extra legal costs of recovering it. Especially when you're dealing with uninsured or insolvent defendants.
Quote from: alfred russel on September 18, 2013, 09:41:23 AM
I think it would be much more efficient to spread the risk among other insurers. As I mentioned, I think the tort system as insurance provider is phenomenally inefficient.
You are correct that it is inefficient, but by removing the threat of tort liability you remove incentives for defendants to avoid accidents. Basically in your system, defendants will be free riders, it is likely there will be more accidents since defendants will have no incentive to prevent accidents, and other insurers will have to pick up the tab. And in your alternate universe, there will still be litigation, but between the insurers and plaintiffs, as opposed to between plaintiffs and at fault parties.
Quote from: stjaba on September 18, 2013, 09:35:29 AM
Quote from: DGuller on September 18, 2013, 09:08:28 AM
How does insuring the disproportionate costs or spreading them out changing anything, other than allay the moral doubts that lawyers should have about going after the deep pockets of marginally culpable parties?
It changes the whole equation. Your argument seems to be that it is unfair for JIB to pay for 80% of the damages when you feel that the risk of loss should be borne entirely by the victim(since the intentional tortfeasor is judgment proof). My response is that it makes sense to essentially spread the risk of loss among all JIB patrons via insurance built into the price of JIB's products as opposed to burdening any one particular patron with the risk of loss.
As a further point, as I noted in my other post, in an alternate universe where JIB is not liable, the risk of loss would probably be allocated among JIB patrons' health and disability insurers, or there would be some sort of alternative insurance system to cover the risk of accidents caused by others (i.e. similar to UM insurance). Or to the extent injured parties are indigent and have no insurance, the government would cover it to a certain extent. One way or another, the risk of loss will be spread. It just so happens under the tort system, JIB is presented with the direct cost of obtaining insurance, and it spreads the risk itself. Which makes sense, because of all the parties out there, JIB is the one best placed to (1) spread cost of insurance of injuries for JIB patrons, and (2) prevent injuries from occurring on its premises.
I'd quibble with (2). In general, the ability of JiB to prevent a beat-down in its parking lot is pretty minimal. We don't have details as to why JiB got dinged this time, other than because it didn't follow its policies.
The problem with allocating so much liability to the deep pockets is:
(1) It amounts in essence to strict liability for businesses - there is always going to be *some* amount of liability attributable to *some* business in every tort, however tangental; and
(2) It is socially and economically impossible to prevent being (say) 1% liable for tangental torts;
(3) Which leads to a situation where tort liability, rather than acting as an incentive to rational action, acts more or less randomly to impact (perhaps ruin) profit-making businesses as a windfall to tort victims (and their counsel! :D ) - which is a socially and economically inefficient system, to say nothing about fairness.
The problem with this outcome is exacerbated by the fact that damages awards tend to be huge in the US compared to other places - Canada has J&S, but it isn't as big an issue because awards tend to be less enormous.
Quote from: DGuller on September 18, 2013, 09:18:31 AM
Seriously, I feel like I'm arguing with ambulance chasers here. "Don't worry, it's the driver's insurance company that would pay for your whiplash. Actually, make that whiplash and pain and suffering. Actually, make that whiplash, pain and suffering, and PTSD."
Ironically, my job is to battle ambulance chasers in court (although also sometimes defend them, as one of my practice areas is legal malpractice defense). :contract:
One thing I find amusing is that civil defense oriented firms (such as mine) push for legislative tort reform because that's what our clients want. Ironically, though, the riskier and more uncertain things are for our clients, the better it is for us.
Quote from: Malthus on September 18, 2013, 09:51:30 AM
QuoteWhich makes sense, because of all the parties out there, JIB is the one best placed to (1) spread cost of insurance of injuries for JIB patrons, and (2) prevent injuries from occurring on its premises.
I'd quibble with (2). In general, the ability of JiB to prevent a beat-down in its parking lot is pretty minimal. We don't have details as to why JiB got dinged this time, other than because it didn't follow its policies.
In this particular instance, I'd agree that Jib couldn't do much to prevent the beatdown, probably. However, as a general rule, I think you would agree defendants are best placed to prevent accidents. I am speculating, but I imagine 90%+ of tort cases involve car accidents, slip and fall accidents and the like, where the defendant is best placed to prevent the accident. While there may be exceptions to the general rule, in formulating the general rule it makes sense to account for what happens in the vast majority of cases.
Quote
The problem with allocating so much liability to the deep pockets is:
(1) It amounts in essence to strict liability for businesses - there is always going to be *some* amount of liability attributable to *some* business in every tort, however tangental; and
(2) It is socially and economically impossible to prevent being (say) 1% liable for tangental torts;
(3) Which leads to a situation where tort liability, rather than acting as an incentive to rational action, acts more or less randomly to impact (perhaps ruin) profit-making businesses as a windfall to tort victims (and their counsel! :D ) - which is a socially and economically inefficient system, to say nothing about fairness.
I believe there are some theorists (and I agree to a certain extent) who believe that whatever the rules of liability are, the risk will always be spread out, some way or another. Obviously there will be outliers where something "unfair" occurs. Doesn't it make more sense to have the risk of an unfair occurrence on defendants who can at least spread the risk of the unfair occurrence(aka an adverse judgment), as opposed to plaintiffs who cannot?
AR kept mentioning the example of a business going into bankruptcy because of a judgment beyond its policy limits. I agree that's a bad outcome, but I think a worse outcome (and more unfair outcome) is a plaintiff being entirely uncompensated for an injury that he has no responsibility for and when other parties negligently contributed to the injury. Maybe that's not the case in the Jib news article, but it is easy to think of examples where that would be the case.
Quote
The problem with this outcome is exacerbated by the fact that damages awards tend to be huge in the US compared to other places - Canada has J&S, but it isn't as big an issue because awards tend to be less enormous.
I agree that's an issue, but it is entirely a separate and distinct issue.
Quote from: stjaba on September 18, 2013, 09:41:49 AM
That's why 97% of civil cases settle. Also, obviously the system is imperfect, but I challenge you to come up with a system that 1) Incentives defendants to avoid accidents, 2) compensates plaintiffs for their injuries and 3) allocates risk fairly.
Clearly there needs to be a point at which a party is responsible for accidents they cause or contribute to. The question of this thread, at least to me, is the extent to which relatively tangential parties should be held liable when they are the only one with deep pockets (I don't think anyone has brought up another common but economically inefficient way of handling this problem: thinly capitalizing corporations exposed to risk).
"Fairly' is a loaded word, but I would say the current system does not meet that criteria in any event.
I used the word "self-insure" earlier rather recklessly. I did not mean that I keep $20m on hand to deal with beatings I may catch in JiB parking lots. I meant that I have a variety of insurance plans plus some savings that could cover the risk. I think that is a better system, even if for many people that system is in many cases backed by the government.
I obviously can't say for certain, but it doesn't seem likely that 5 am beatdowns at dance parties will be reduced by JiB having a more vigilant security presence. More likely the parties will just move out of the JiB parking lot and into some other parking lot / field / street. That doesn't improve public safety, and may even harm it. When you put costs on a business like this, the result is that you will get less businesses. Which could get back to why there are long lines at McDonald's at 3 am.
Quote from: stjaba on September 18, 2013, 09:46:01 AM
You are correct that it is inefficient, but by removing the threat of tort liability you remove incentives for defendants to avoid accidents. Basically in your system, defendants will be free riders, it is likely there will be more accidents since defendants will have no incentive to prevent accidents, and other insurers will have to pick up the tab. And in your alternate universe, there will still be litigation, but between the insurers and plaintiffs, as opposed to between plaintiffs and at fault parties.
To be clear I'm not talking about cases where the defendent clearly contributed to the loss.
But it is more than inefficient. It reduces the ability of a person to assume risk. An example of this is that climbing gyms tend to be more expensive in the US than in Europe. I don't know for certain why the pricing is different, but I don't think I'm going out on a limb (pun intended!) to say increased US liability is a factor. I don't think it is off the wall (pun intended again!) to think that we have less climbing walls and climbers because of this.
Quote from: alfred russel on September 18, 2013, 10:28:49 AM
Quote from: stjaba on September 18, 2013, 09:46:01 AM
You are correct that it is inefficient, but by removing the threat of tort liability you remove incentives for defendants to avoid accidents. Basically in your system, defendants will be free riders, it is likely there will be more accidents since defendants will have no incentive to prevent accidents, and other insurers will have to pick up the tab. And in your alternate universe, there will still be litigation, but between the insurers and plaintiffs, as opposed to between plaintiffs and at fault parties.
To be clear I'm not talking about cases where the defendent clearly contributed to the loss.
But it is more than inefficient. It reduces the ability of a person to assume risk. An example of this is that climbing gyms tend to be more expensive in the US than in Europe. I don't know for certain why the pricing is different, but I don't think I'm going out on a limb (pun intended!) to say increased US liability is a factor. I don't think it is off the wall (pun intended again!) to think that we have less climbing walls and climbers because of this.
Most countries in Europe have universal health care insurance and stronger social welfare systems. Because of that, if a climber is hurt at a climbing gym in Europe through the negligence of the gym, he doesn't need to sue the gym to be compensated for his injuries, he probably will be compensated by the government. Either way, the climber is ultimately paying for his own insurance, though higher taxes as in Europe, or through a higher gym membership price as in the US.
Quote from: stjaba on September 18, 2013, 10:07:44 AM
In this particular instance, I'd agree that Jib couldn't do much to prevent the beatdown, probably. However, as a general rule, I think you would agree defendants are best placed to prevent accidents. I am speculating, but I imagine 90%+ of tort cases involve car accidents, slip and fall accidents and the like, where the defendant is best placed to prevent the accident. While there may be exceptions to the general rule, in formulating the general rule it makes sense to account for what happens in the vast majority of cases.
The problem is endemic. It is generally going to be the case that a business cannot reasonably allocate resources to prevent being 1% liable to any potential or possible intentional tort. If it did, it would have no money to do anything else.
QuoteI believe there are some theorists (and I agree to a certain extent) who believe that whatever the rules of liability are, the risk will always be spread out, some way or another. Obviously there will be outliers where something "unfair" occurs. Doesn't it make more sense to have the risk of an unfair occurrence on defendants who can at least spread the risk of the unfair occurrence(aka an adverse judgment), as opposed to plaintiffs who cannot?
AR kept mentioning the example of a business going into bankruptcy because of a judgment beyond its policy limits. I agree that's a bad outcome, but I think a worse outcome (and more unfair outcome) is a plaintiff being entirely uncompensated for an injury that he has no responsibility for and when other parties negligently contributed to the injury. Maybe that's not the case in the Jib news article, but it is easy to think of examples where that would be the case.
The issue isn't unfairness, it is lack of social utility. Ideally, tort liablity ought to be both "fair" (an I agree, any system is likely to be 'unfair' to someone) and create incentives for people to behave in ways that make social sense - that strike a good balance between safety on the one hand, and risk-taking and profit-making on the other.
This system seems out of wack. It creates perverse incentives. To give but one example, the potential awards are so harsh that businesses are incentivised to settle frivolous cases. This acts as a net drain of money from productive to non-productive uses.
Quote
I agree that's an issue, but it is entirely a separate and distinct issue.
I don't agree at all that it is an entirely seperate issue. It is the size of awards that is putting the system out of wack, more than anything else. They create all sorts of perverse incentives. Ditto with the lack of sensible costs rules.
It makes no sense to look at one part of the system and say 'in theory, this creates fairness'. You gotta look to the whole thing, as it actually works. Otherwise you get the 'the operation was a complete success, but the patient died' phenom.
Quote from: CountDeMoney on September 18, 2013, 07:05:40 AM
Quote from: crazy canuck on September 18, 2013, 07:00:17 AM
Quote from: CountDeMoney on September 17, 2013, 08:36:04 PM
1 Off-Duty Police Officer: $25/hour.
Or at least following their own internal policies, which according to the report they did not do.
The organizational mission of JIB is not security.
Perhaps, but as the operator of a business that invites the public onto its property it needs to pay at least some attention to the issue.
Quote from: stjaba on September 18, 2013, 10:36:58 AM
Most countries in Europe have universal health care insurance and stronger social welfare systems. Because of that, if a climber is hurt at a climbing gym in Europe through the negligence of the gym, he doesn't need to sue the gym to be compensated for his injuries, he will be compensated by the government. Either way, the climber is ultimately paying for his own insurance, though higher taxes as in Europe, or through a higher gym membership price as in the US.
So we have three potential systems:
-insurance provided by the government
-insurance provided by private markets
-insurance provided through the tort system
One of these is dramatically less efficient than the others.
I have actually seen the advice to climbers to save money by getting out of the gym. Think about how crazy this situation is for a cash poor novice climber. Leave the weather controlled, standardized, and supervised environment for the wilderness because there isn't a party that can be sued out there.
Quote from: Malthus on September 18, 2013, 10:42:46 AM
The problem is endemic. It is generally going to be the case that a business cannot reasonably allocate resources to prevent being 1% liable to any potential or possible intentional tort. If it did, it would have no money to do anything else.
The problem in your example is the application of the law of tort which would create any liability for someone who had nothing to do with it (ie your 1% example).
Quote from: crazy canuck on September 18, 2013, 10:47:22 AM
Quote from: Malthus on September 18, 2013, 10:42:46 AM
The problem is endemic. It is generally going to be the case that a business cannot reasonably allocate resources to prevent being 1% liable to any potential or possible intentional tort. If it did, it would have no money to do anything else.
The problem in your example is the application of the law of tort which would create any liability for someone who had nothing to do with it (ie your 1% example).
They had 1% to do with it.
The issue is whether they should pay 1% of the damages, or 100% of the damages, or something in between.
The problem is made more pressing if the damages are in the tens of millions of dollars.
Quote from: Malthus on September 18, 2013, 10:50:36 AM
Quote from: crazy canuck on September 18, 2013, 10:47:22 AM
Quote from: Malthus on September 18, 2013, 10:42:46 AM
The problem is endemic. It is generally going to be the case that a business cannot reasonably allocate resources to prevent being 1% liable to any potential or possible intentional tort. If it did, it would have no money to do anything else.
The problem in your example is the application of the law of tort which would create any liability for someone who had nothing to do with it (ie your 1% example).
They had 1% to do with it.
The issue is whether they should pay 1% of the damages, or 100% of the damages, or something in between.
The problem is made more pressing if the damages are in the tens of millions of dollars.
You are not understanding my point. The problem is with a law of torts that would find any liability for someone so remote as to be 1% liable.
Quote from: crazy canuck on September 18, 2013, 10:53:00 AM
Quote from: Malthus on September 18, 2013, 10:50:36 AM
Quote from: crazy canuck on September 18, 2013, 10:47:22 AM
Quote from: Malthus on September 18, 2013, 10:42:46 AM
The problem is endemic. It is generally going to be the case that a business cannot reasonably allocate resources to prevent being 1% liable to any potential or possible intentional tort. If it did, it would have no money to do anything else.
The problem in your example is the application of the law of tort which would create any liability for someone who had nothing to do with it (ie your 1% example).
They had 1% to do with it.
The issue is whether they should pay 1% of the damages, or 100% of the damages, or something in between.
The problem is made more pressing if the damages are in the tens of millions of dollars.
You are not understanding my point. The problem is with a law of torts that would find any liability for someone so remote as to be 1% liable.
So, if they were 1% at fault, they should pay 0% damages? What's the threshold, moving upwards? If they were 10% at fault, should they pay anything? 25%? 50%?
I can see dismissing claims that are clearly
de minimis, but 1% of a $20 million claim is still $200K an a several basis.
Quote from: Malthus on September 18, 2013, 10:57:58 AM
So, if they were 1% at fault, they should pay 0% damages? What's the threshold, moving upwards? If they were 10% at fault, should they pay anything? 25%? 50%?
I can see dismissing claims that are clearly de minimis, but 1% of a $20 million claim is still $200K an a several basis.
I see I am going to have to explain my meaning better. Before a party can be found liable in negligence there has to be a number of hurdles to cross. Duty of Care, Foreseeability, Remoteness and Causation being the big ones. In my view the problem is that the law has developed in such a way that these important barrier to liability have been steadily eroded so that parties who have almost nothing to do with the injury (and so there had no causal connection, or the injury was too remote, or was unforseeable) are being found liable.
The problem is not with the law regarding joint and several liability. The problem is that parties are being found to be tortfeasors who should not have any liability at all.
Like St Jaba, I spend almost all my efforts on the defendant side of these equations.
I also mostly agree with the argument he is presented, which flow from tort theory as it has developed over the last few decades.
The common law was essentially a moral doctrine, and thus tended to lead to very sharp and harsh results, both for plaintiffs and defendants. At common law, the norm of joint and several liability could easily lead to defendants paying far more than their responsibility - the common law would say that is the price of being a bad actor. On the other hand, at common law it used to be that any material degree of fault by a victim could negate any recovery. For centuries, legislators and judges fumbled about with ad hoc modification to these rules trying to get to more fair results.
Then came the recently departed Ronald Coase. Coase pointed out that in a frictionless world, an efficient result can be achieved by clear delineation of property rights and freedom to transact, regardless of how the rights are allocated. For example, it is equally efficient to give rights to producers to pollute the air, or give rights to the air breathers to block any polluting activities. In either case, the parties can transact ex post to reach to efficient outcome in terms of the amount of production (and pollution) that is socially optimal. The only economic consequences are distributional (and those can be remedied by transfer payments).
Of course, Coase also noted that we don't live in a frictionless world. There are costs, often significant, to transacting. So how rights are allocated may matter because some social actors can more easily overcome transactional frictions.
Over the years, the Coasian framework percolated into tort theory. Take the example of retail business that serve the public. There are many hazards that can occur when the public comes to a retail premises: they could be hit by a falling beam, or electrocuted by fault wiring, or harmed by a fellow patron, or served bad food - any number of things. Who should bear responsibility for those hazards? Two things that unites all these hazards: (1)they are likely to strike fairly randomly, (2) the chance of occurence can be affected to a significant extent by the business, but not so much by the patrons. If one says caveat emptor and puts the onus on the patron to avoid harm, it is going to quite difficult for the patrons to transact to get to the optimal level of care with respect to all these hazards. An individual patron cannot efficiently research every retail store he or she might interact with to determine levels of relative risk, much less transact with each one to obtain more security.
Now imagine all responsiblity is placed with the stores. Unlike the patrons, the store operators have very good information about the riskiness of their own operations and significant ability to calibrate the level of risk. They also can protect themselves against unexpected, semi-random bad accidents by securing insurance. Because in the aggregate insurance of retail operations is a very big business, there is likely to be a deep and reasonably competitive insurance market. And the premium the insurance company charges is going to be calibrated on the degree of care the business operator chooses to exercise. In a free market, that should result in business owner selecting the optimally efficient level of care and paying the corresponding premium.
In short it makes sense to put the responsibility on the party that is most capable of engaging in efficient transactions to allocate the level and distribution of the risk. Which will usually be the store owner.
Joan, I don't see the relevance of Coase to JiB. JiB and the beatdown victim are not transacting freely.
Quote from: Admiral Yi on September 18, 2013, 11:49:09 AM
Joan, I don't see the relevance of Coase to JiB. JiB and the beatdown victim are not transacting freely.
Agreed. Hence the issues of the proper application of the principles of forseeability and remoteness.
Quote from: crazy canuck on September 18, 2013, 11:10:53 AM
Quote from: Malthus on September 18, 2013, 10:57:58 AM
So, if they were 1% at fault, they should pay 0% damages? What's the threshold, moving upwards? If they were 10% at fault, should they pay anything? 25%? 50%?
I can see dismissing claims that are clearly de minimis, but 1% of a $20 million claim is still $200K an a several basis.
I see I am going to have to explain my meaning better. Before a party can be found liable in negligence there has to be a number of hurdles to cross. Duty of Care, Foreseeability, Remoteness and Causation being the big ones. In my view the problem is that the law has developed in such a way that these important barrier to liability have been steadily eroded so that parties who have almost nothing to do with the injury (and so there had no causal connection, or the injury was too remote, or was unforseeable) are being found liable.
The problem is not with the law regarding joint and several liability. The problem is that parties are being found to be tortfeasors who should not have any liability at all.
Okay, but that strikes me as simply restating the problem as 'I don't buy that someone held 1% liable could ever have met the causation, foreseeablility and remoteness requirements, properly applied'. Which raises the question of whether someone held 10% or 25% could.
Quote from: Malthus on September 18, 2013, 11:57:19 AM
Okay, but that strikes me as simply restating the problem as 'I don't buy that someone held 1% liable could ever have met the causation, foreseeablility and remoteness requirements, properly applied'. Which raises the question of whether someone held 10% or 25% could.
No, its not mathmatical.
Quote from: Admiral Yi on September 18, 2013, 11:49:09 AM
Joan, I don't see the relevance of Coase to JiB. JiB and the beatdown victim are not transacting freely.
A direct transaction over the risk is not feasible. Thus, placing the responsibility on the patron will result in suboptimal level of care by retail owners because the patrons cannot either transact to raise it, nor accurately monitor the level of care. That follows from Coase.
But if responsibility is placed on the retail owner they can and will transact with an insurer to spread that risk. And that transaction should result approximately in the optimal level of care. I.e. let's say a 10% risk of $1 million injury can be avoided by spending $40,000. The insurer will charge $100,000 in additional premium if the expenditure is not made, and so it will be made. But what if it costs $150,000 to avoid? Then it won't be made.
If the insurance market is sufficiently deep and competitive, bargaining in that market should approximate the optimal result. In effect, the public will be buying the "right" amount of insurance for the "right" price, albeit indirectly through the incorporation of insurance premia in the cost of goods. And while it is very unlikely that any given person will be injured in a 5 AM fight in a St. Louis fast food joint, it is quite likely, that over an entire lifetime, a person or their dependents will be exposed to some potential hazard as a result of interacting with some purveyor of goods or services.
I don't see the relevance of insurance either. The issue is whether $20 million is an efficiently derived price for JiB's negligence to ensure safety. The whole point of your pollution example is that once rights are assigned neither party has an incentive to be dishonest about quantity and price. The beatdown victim had every incentive in the world to be dishonest about risk aversion pricing.
Quote from: Admiral Yi on September 18, 2013, 12:19:58 PM
I don't see the relevance of insurance either. The issue is whether $20 million is an efficiently derived price for JiB's negligence to ensure safety. The whole point of your pollution example is that once rights are assigned neither party has an incentive to be dishonest about quantity and price. The beatdown victim had every incentive in the world to be dishonest about risk aversion pricing.
I didn't mention JiB or this case. That may be why you don't see the relevance because we are talking about different things.
I am talking about the design of a regime to allocate rights and responsibilities.
You are talking about something different - given a particular regime, how are the costs of a violation of right or obligation to be accurately determined?
Of course, under an adversarial system such as the US, the victim has an incentive to exaggerate the cost of injury; OTOH the defendant has a similar incentives to minimize it and typically at least as much means to present evidence in favor of its view.
Perhaps you view that system as faulty or structurally biased given the jury system. There any many possible solutions to THAT problem assuming it truly exists - e.g. have judges decide damages award, have expert special masters decide damages, remove damages from adversarial case presentation altogether, etc. But that doesn't effect the basic legal regime of allocating the underlying rights and responsibilities for the injury, however its value is determined.
OK.
Forgive me if this question sounds rude, but what question were you trying to answer Joan?
Quote from: Admiral Yi on September 18, 2013, 01:46:46 PM
OK.
Forgive me if this question sounds rude, but what question were you trying to answer Joan?
The question of why it might make sense to have a tort regime that puts more responsibility on enterprises for injuries that occur on their premises than on the members of the public who enter them.
Quote from: The Minsky Moment on September 18, 2013, 01:54:25 PM
Quote from: Admiral Yi on September 18, 2013, 01:46:46 PM
OK.
Forgive me if this question sounds rude, but what question were you trying to answer Joan?
The question of why it might make sense to have a tort regime that puts more responsibility on enterprises for injuries that occur on their premises than on the members of the public who enter them.
The law as described appears, in effect, to impose strict liability on premises-owners regardless of fault. Why them and not (say) the state government of the state that they happen to live in? If fault is effectively removed from the equation, it isn't obvious why this
particular person should have to pay.
Quote from: Malthus on September 18, 2013, 03:10:17 PM
The law as described appears, in effect, to impose strict liability on premises-owners regardless of fault.
It doesn't really - in most cases, in most states it is still a negligence standard and the plaintiff has to prove breach of the standard of care.
In reality, the plaintiff can usually get to a jury and a jury presented with a victim and a deep pocket may not agonize much over the standard of care. But that is sociology, not the law.
QuoteWhy them and not (say) the state government of the state that they happen to live in?
You could do that and then have a regulatory regime but in theory decentralized bargaining between private insurers and facility owners should be more efficient.
Quote from: alfred russel on September 18, 2013, 10:46:13 AM
Quote from: stjaba on September 18, 2013, 10:36:58 AM
Most countries in Europe have universal health care insurance and stronger social welfare systems. Because of that, if a climber is hurt at a climbing gym in Europe through the negligence of the gym, he doesn't need to sue the gym to be compensated for his injuries, he will be compensated by the government. Either way, the climber is ultimately paying for his own insurance, though higher taxes as in Europe, or through a higher gym membership price as in the US.
So we have three potential systems:
-insurance provided by the government
-insurance provided by private markets
-insurance provided through the tort system
One of these is dramatically less efficient than the others.
I am not so sure about that. I don't think government insurance (i.e Social Security) is a paradigm of efficiency.
And modified liability schemes do not necessarily eliminate litigation and/or create their own problems.
For instance, in Florida, auto accidents are "no fault" when damages do not exceed $10,000. Drivers are required to purchase no fault insurance. If drivers are injured, but only modestly, they don't need to file a lawsuit and they can have their medical bills taken care of by their own insurer. In addition, they can get some lost wages paid. In theory, this what you want: plaintiffs must insure themselves, whether they are injured due to their own fault or others. I believe that the theory was that no fault insurance would drive down litigation costs.
In practice, no fault insurance has led to an explosion of fraud in Florida. People stage accidents, go to shady doctors who run up bills in exchange for a medical opinion that allows people to make lost wage claims, etc. In response, insurance companies basically have to now go through the time and expense of closely scrutinizing claims, hiring lawyers to put claimants under oath (similar to a deposition in a lawsuit), etc. In other words, while the no fault system was supposed to reduce expenses and costs, associated with low level claims, it hasn't done a good job of that. Additionally, because so many doctors and clinics were engaging in shady practices, insurance companies began short-changing them on reimbursements. In response, the clinics started filing lawsuits against insurance companies. It's a big mess. And ultimately the no fault system probably introduced as many problems as it solved.
The trick with the system like that is have a panel of independent doctors to review the cases. If you want recovery, you have to go through someone on the panel and assignment is random.
Or something like that.
Quote from: crazy canuck on September 18, 2013, 07:02:04 AM
Quote from: DGuller on September 17, 2013, 11:25:29 PM
You still have an inefficient allocation of resources based on a legal absurdity.
that the risk of wrongdoing should be borne by the wrongdoers and not the victim. What an interesting view of absurdity you have :P
A part of the problem is that it's unclear, I think, in a case like this, that JiB was in any real sense a "wrongdoer". What exactly did they do wrong, and what should they have done differently? And if they had done what they "should" have done, would the beating still have occured anyway? As you yourself put in a later post, "The problem is that parties are being found to be tortfeasors who should not have any liability at all." (Yes, we're told that they did not follow their own internal policies, but exactly what those policies were and how they were not followed in this particular instance, we don't know.)
Quote from: stjabaIn this particular instance, I'd agree that Jib couldn't do much to prevent the beatdown, probably. However, as a general rule, I think you would agree defendants are best placed to prevent accidents. I am speculating, but I imagine 90%+ of tort cases involve car accidents, slip and fall accidents and the like, where the defendant is best placed to prevent the accident. While there may be exceptions to the general rule, in formulating the general rule it makes sense to account for what happens in the vast majority of cases.
How, exactly, is a business best placed to prevent car accidents in its parking lot? Slips and falls I can see, because you have a responsibility to keep your walkways and such clean and clear, but auto accidents?
Quote from: dps on September 18, 2013, 08:06:04 PM
Quote from: crazy canuck on September 18, 2013, 07:02:04 AM
Quote from: DGuller on September 17, 2013, 11:25:29 PM
You still have an inefficient allocation of resources based on a legal absurdity.
that the risk of wrongdoing should be borne by the wrongdoers and not the victim. What an interesting view of absurdity you have :P
A part of the problem is that it's unclear, I think, in a case like this, that JiB was in any real sense a "wrongdoer". What exactly did they do wrong, and what should they have done differently? And if they had done what they "should" have done, would the beating still have occured anyway? As you yourself put in a later post, "The problem is that parties are being found to be tortfeasors who should not have any liability at all." (Yes, we're told that they did not follow their own internal policies, but exactly what those policies were and how they were not followed in this particular instance, we don't know.)
Quote from: stjabaIn this particular instance, I'd agree that Jib couldn't do much to prevent the beatdown, probably. However, as a general rule, I think you would agree defendants are best placed to prevent accidents. I am speculating, but I imagine 90%+ of tort cases involve car accidents, slip and fall accidents and the like, where the defendant is best placed to prevent the accident. While there may be exceptions to the general rule, in formulating the general rule it makes sense to account for what happens in the vast majority of cases.
How, exactly, is a business best placed to prevent car accidents in its parking lot? Slips and falls I can see, because you have a responsibility to keep your walkways and such clean and clear, but auto accidents?
I imagine the wrong doing on the part of JIB would be failure to call the police for an incident occurring on their property.
Quote from: Razgovory on September 18, 2013, 08:08:27 PM
I imagine the wrong doing on the part of JIB would be failure to call the police for an incident occurring on their property.
Probably something along those lines. But it's not clear from the article that they
didn't call the police.
Quote from: dps on September 18, 2013, 08:06:04 PM
How, exactly, is a business best placed to prevent car accidents in its parking lot? Slips and falls I can see, because you have a responsibility to keep your walkways and such clean and clear, but auto accidents?
I was referring to normal auto accidents that occur on the road, not ones that occur on the premises of a business. Obviously, if an auto accident involves any kind of serious injury, typically there will be litigation, or at a minimum some kind of settlement pre-suit. I think it's a fair statement that defendant auto drivers are the ones best placed to avoid auto accidents.
I think it's extremely unusual for a business owner to be sued for an auto accident that occurs on its premises, though I know of at least one instance where Target was sued by someone who got hurt in a car accident in a Target parking lot. The plaintiff theorized that Target negligently designed the parking lot, which caused the accident. I think the parties had to bring in dueling experts on "human factors," one who theorized that the parking lot appropriately considered human factors, and that other one who had an opposite opinion. :lol:
Since most drivers have liability insurance and serious auto accidents are extremely rare in parking lots, I think these kinds of suits are very uncommon.
Quote from: dps on September 18, 2013, 08:15:38 PM
Quote from: Razgovory on September 18, 2013, 08:08:27 PM
I imagine the wrong doing on the part of JIB would be failure to call the police for an incident occurring on their property.
Probably something along those lines. But it's not clear from the article that they didn't call the police.
No, but I doubt a news article written after the trial played a major factor in the case.
Quote from: stjaba on September 18, 2013, 05:49:10 PM
I am not so sure about that. I don't think government insurance (i.e Social Security) is a paradigm of efficiency.
I actually think that it is. To compare a government program that has a more direct private sector counterpart, Medicare gets quite a bit more health care per dollar than private insurers. It helps when you don't need to turn a profit or do much marketing, and it really helps when you have laws that help you dictate terms.
Quote
And modified liability schemes do not necessarily eliminate litigation and/or create their own problems.
For instance, in Florida, auto accidents are "no fault" when damages do not exceed $10,000. Drivers are required to purchase no fault insurance. If drivers are injured, but only modestly, they don't need to file a lawsuit and they can have their medical bills taken care of by their own insurer. In addition, they can get some lost wages paid. In theory, this what you want: plaintiffs must insure themselves, whether they are injured due to their own fault or others. I believe that the theory was that no fault insurance would drive down litigation costs.
In practice, no fault insurance has led to an explosion of fraud in Florida. People stage accidents, go to shady doctors who run up bills in exchange for a medical opinion that allows people to make lost wage claims, etc. In response, insurance companies basically have to now go through the time and expense of closely scrutinizing claims, hiring lawyers to put claimants under oath (similar to a deposition in a lawsuit), etc. In other words, while the no fault system was supposed to reduce expenses and costs, associated with low level claims, it hasn't done a good job of that. Additionally, because so many doctors and clinics were engaging in shady practices, insurance companies began short-changing them on reimbursements. In response, the clinics started filing lawsuits against insurance companies. It's a big mess. And ultimately the no fault system probably introduced as many problems as it solved.
For some time Florida has had a reputation as the state with arguably the worst insurance regulation in the country, which would be quite an achievement considering the competition.
That said, I don't think I've gotten across my point of view. In cases where there has been harm caused by the actions of others, such as when you drive into my car after you run a red light, I think it is important that one side be able to successfully sue. JR mentioned a scenario earlier where a beam falls on a customer in a store. I do believe there is a reasonable expectation that stores maintain their structural integrity, and if they fail to do so should be liable to correct the wrong.
The JiB situation appears to be quite different: a serious crime was committed, those culpable are insolvent, and the only potential deep pockets contributed the situation tangentially at best.
Maybe the plaintiff's attorney "theorized" that JiB's demonic clown logo drove its customers into a sociopathic rage.
Quote from: alfred russel on September 18, 2013, 08:50:08 PM
That said, I don't think I've gotten across my point of view. In cases where there has been harm caused by the actions of others, such as when you drive into my car after you run a red light, I think it is important that one side be able to successfully sue. JR mentioned a scenario earlier where a beam falls on a customer in a store. I do believe there is a reasonable expectation that stores maintain their structural integrity, and if they fail to do so should be liable to correct the wrong.
The JiB situation appears to be quite different: a serious crime was committed, those culpable are insolvent, and the only potential deep pockets contributed the situation tangentially at best.
Negligent security cases are somewhat of an outlier in that the jury is unable to apportion fault to the attacker. Normally, at least in many states, juries are permitted to apportion fault among all potentially responsible parties.* As Minsky stated, some states have the rule that J&S apply if a tortfeasor is found to be responsible for at least 50% of the damages. But in any event, in most negligence cases, at least in many states a deep pocket that only tangentially contributed to an accident will not be liable for the entire amount of damages. So your concern is really limited to a very small subset of circumstances.
Then the question is in the subset you are concerned about: who should the loss of beatdowns fall on: victims or Jib? Jib in theory can spread the risk of loss of a beatdown of one customer to all of its customers. Isn't it more logical to have the loss spread to all customers as opposed to concentrated solely on the unlucky SOB who got beat up?
*One major exception to this rule involve defective products. In those cases, generally speaking everyone involved in the chain of distribution is essentially jointly and severally liable for any defects. Usually, but not always, parties will secure indemnification agreements from parties up-stream in the chain of distribution.
AR, I am curious, are you philosophically ok with a retailer being fully liable for a defective product, even if the product contained a hidden defect that the retailer had no knowledge of, and in no way the retailer did anything wrong other than selling the product?
Quote from: stjaba on September 18, 2013, 09:32:02 PM
Negligent security cases are somewhat of an outlier in that the jury is unable to apportion fault to the attacker. Normally, at least in many states, juries are permitted to apportion fault among all potentially responsible parties.* As Minsky stated, some states have the rule that J&S apply if a tortfeasor is found to be responsible for at least 50% of the damages. But in any event, in most negligence cases, at least in many states a deep pocket that only tangentially contributed to an accident will not be liable for the entire amount of damages. So your concern is really limited to a very small subset of circumstances.
Then the question is in the subset you are concerned about: who should the loss of beatdowns fall on: victims or Jib? Jib in theory can spread the risk of loss of a beatdown of one customer to all of its customers. Isn't it more logical to have the loss spread to all customers as opposed to concentrated solely on the unlucky SOB who got beat up?
I'm not certain that our definition of "tangential" is the same. I think the subset as I would define might be larger than what you would. :P
For the reasons I've explained, I think it is most logical, under our current legal system, for the loss to be concentrated on the SOB that got beat up.
I won't rehash all the many reasons already stated for this, but among them are the somewhat random actions of jury outcomes and the high costs of litigation. This case in particular seems like an award of "jackpot justice" rather than a cold calculation of the guys loss. As evidence of this: the jury calculated damages of $25m, but only have him $20m. Attorney fees will eat away at that further. So this guy is going to get considerably less than the what he lost, his family is unlikely have the means to make up the difference, and the payment has been delayed for years by litigation. However, his camp seems overjoyed by the outcome, and attributed the outcome to God. Maybe that is a hint the amount was a bit excessive?
Some ideas that could improve this: loser pays, so the attorney fees don't cut into his winnings, nontangible damages capped by a strict formula, medical awards paid into a trust released only to medical providers (and ideally provided through a program like Medicare)--leftover funds returned to the defendant, shortfalls covered by the defendant.
Quote
*One major exception to this rule involve defective products. In those cases, generally speaking everyone involved in the chain of distribution is essentially jointly and severally liable for any defects. Usually, but not always, parties will secure indemnification agreements from parties up-stream in the chain of distribution.
AR, I am curious, are you philosophically ok with a retailer being fully liable for a defective product, even if the product contained a hidden defect that the retailer had no knowledge of, and in no way the retailer did anything wrong other than selling the product?
Yes.
But I hesitate to say anything is "philosophical" about this--including in the JiB case.
It's also worth keeping in mind that the overwhelming majority of beatdown victims get jack shit, except maybe the justice of seeing the perps do time.
Does the government not do anything?
Here we've go a scheme that, in certain circumstances, pays compensation to victims of violent crime.
Quote from: Admiral Yi on September 18, 2013, 10:36:41 PM
It's also worth keeping in mind that the overwhelming majority of beatdown victims get jack shit, except maybe the justice of seeing the perps do time.
A beating should be educational. You should explain how the person got in this situation and suggest not calling me fucking names while I'm minding my own business walking in the park <_<
Quote from: Razgovory on September 19, 2013, 12:22:27 AM
Quote from: Admiral Yi on September 18, 2013, 10:36:41 PM
It's also worth keeping in mind that the overwhelming majority of beatdown victims get jack shit, except maybe the justice of seeing the perps do time.
A beating should be educational. You should explain how the person got in this situation and suggest not calling me fucking names while I'm minding my own business walking in the park <_<
What names should we be careful not to call you? :whistle:
Quote from: Peter Wiggin on September 19, 2013, 01:01:49 AM
Quote from: Razgovory on September 19, 2013, 12:22:27 AM
Quote from: Admiral Yi on September 18, 2013, 10:36:41 PM
It's also worth keeping in mind that the overwhelming majority of beatdown victims get jack shit, except maybe the justice of seeing the perps do time.
A beating should be educational. You should explain how the person got in this situation and suggest not calling me fucking names while I'm minding my own business walking in the park <_<
What names should we be careful not to call you? :whistle:
Everything I said was hypothetical.
Quote from: Sheilbh on September 18, 2013, 10:44:03 PM
Does the government not do anything?
Here we've go a scheme that, in certain circumstances, pays compensation to victims of violent crime.
I think a view jurisdications might have compensation schemes; not really sure.
Quote from: stjaba
AR, I am curious, are you philosophically ok with a retailer being fully liable for a defective product, even if the product contained a hidden defect that the retailer had no knowledge of, and in no way the retailer did anything wrong other than selling the product?
Quote from: alfred russel on September 18, 2013, 10:27:51 PM
Yes.
How do you square that with your generalized opposition to tangentially involved, deep pockets being fully liable? How is a retailer that sells a defective product without any knowledge of the defect (or any way to become knowledgeable about the defect for that matter) or any control of the defect any more "responsible" than Jib?
The retailer chooses which items to stock, they don't choose what kind of people are going to be hanging out in their parking lot. I don't think anybody would be too upset if JiB was on the hook for food poisoning claims that were really the fault of their supplier.
Quote from: stjaba on September 19, 2013, 04:25:06 AM
Quote from: stjaba
AR, I am curious, are you philosophically ok with a retailer being fully liable for a defective product, even if the product contained a hidden defect that the retailer had no knowledge of, and in no way the retailer did anything wrong other than selling the product?
Quote from: alfred russel on September 18, 2013, 10:27:51 PM
Yes.
How do you square that with your generalized opposition to tangentially involved, deep pockets being fully liable? How is a retailer that sells a defective product without any knowledge of the defect (or any way to become knowledgeable about the defect for that matter) or any control of the defect any more "responsible" than Jib?
Wait, what kind of argument style is this? Ask me an opinion on a separate issue versus the one being discussed, and then challenge me for being inconsistent based on that reply? :P
There are a lot of factors at play, and in the interests of not writing a novel, a consumer needs to be able to recover from a defective product. If the legal system does not hold the supply chain (through the retailer) responsible for defective products, there are obvious consumer problems that can develop. Among them, it is possible to vertically integrate a supply chain, but if liability is to be focused on just the responsible party, a rational response is to break each step into a separate corporation and leave them thinly capitalized.
We have been discussing a very different situation. In the JiB case, a guy got a beatdown that happened to be in a JiB parking lot. The judgment creates an economic incentive for JiB to either close down the location (either entirely or just during certain hours) or create a security environment that pushes the dangerous elements off of its property. Neither result does anything to improve the community (and harms it in the former case). But if I buy a defective swingset, being able to recover only prevents the company from selling defective swingsets.
Quote from: Sheilbh on September 18, 2013, 10:44:03 PM
Does the government not do anything?
Here we've go a scheme that, in certain circumstances, pays compensation to victims of violent crime.
Generally, not anything specifically to help crime victims. If you're disabled, you'd still be eligible for the same assistance any other disabled person would get (SSI, etc.).
We don't really know all the facts in the JiB case, and what the jury heard.
It does on the surface seem not to portray the American tort system in the best light.
But this thread also raised some broader issues about tort doctrine and the "justice" of different kinds of regimes. And the merits or lack thereof of this one particular case don't necessarily have a lot to bear on those questions.