The State of Tort Law

I haven't written that much lately about tort law, but it certainly has not gotten better.  Here is an example set of facts:

19-year-old Sidney Odom happily went along when 20-year-old Travis Kirby and 18-year-old Riley Strickland asked "Who wants to go to the Beacon?""”a bar in Terry, Mississippi. A long night of drinking and driving came to an end at about 3 am when Kirby's Camaro hit a tree at about 90 mph. As none of the three were wearing seatbelts, all were ejected from the vehicle. Kirby, whose blood-alcohol level was three times the legal limit at 0.25%, died at the scene; the other two were injured.

Think for a moment about who you reasonably believe to be at fault for the accident.  Now, here is who actually was forced to accept liability:

  • The dealer who sold them the car
  • The shop that installed their tires
  • Goodyear tire company

All you can say is, huh?  When looking at modern tort outcomes, a much better predictor of legally assigned liability than trying to decide who was trully at fault is to look at the net worth of everyone who had any relation to the victims, and assuming those with the highest net worth will end up being heald "liable."

  • Dimi

    Well, I'd be the first to admit that tort law has gotten crazy,
    but from reading the original blog entry and comments, it seems
    to me that there is a reasonable explanation for this surprising
    decision.

    Namely, it seems that the back tire blew up, and there was no
    evidence of driver error. If that is the case, I would tend to
    agree with the decision, as I find it even more of a problem when
    accidents are blamed on "excessive speed" when the driver is going
    10-20mph over an arbitrarily imposed speed limit.

    In this case the blood-alcohol level is troubling, but since there
    is apparently no evidence that it played a role in the accident,
    why should the tire company get a free ride if they were indeed at fault?

  • Bill

    About 15 years ago, a very successful plaintiff's medical malpractice attorney candidly told me that he never finalized his "theory of the case" until he had discovered the medical malpractice insurance limits of all the defendants in the case - nurses, doctors, labs, hospital. Once he knew who had the largest insurance policy he would try to pin as much liability on that party as he could based on the insurance limits as opposed to the merits of the case.

    In the Kirby case you cite, I would guess that the "Beacon" in Terry, Mississippi had no liability coverage, no assets and, therefore, there was no incentive to sue it or its owner.

    What drives me crazy in these cases is the ignorance of the juries. They see the tragic death or injuries of three young men from their community who were engaged in reckless, "kids will be kids" behavior. They see the bereaved parents, relatives and friends. They see a large, international tire company. And they conclude $2 million is a rounding error for Goodyear, so why not give it to the survivors. To consider the fact that the bar sold excessive amounts of alcohol to
    three underage drinkers who then acted with gross negligence is apparently viewed as a cruel act, rubbing salt into the wounds of people who already suffered an unimaginable loss.

  • Bill

    Dimi said: there was no evidence of driver error.

    Let's see. Driver was under 21 years old yet had blood alcohol three times the legal limit, no-one in the car was wearing seat belts, car was going 90 miles per hour. If that constitutes "no evidence of driver error" I hope you don't live in my town.

  • nom de guerre

    i'm convinced that results like this stem not from *stupid* juries, but rather from *pissed-off* juries.

    think like joe lunchbox for a second. over the last 30+ years, you've seen the big corporations and their bought-and-paid-for government do the following: *eliminate the traditional pension you used to be assured of *eliminate the notion of 'working for the same company, and rising with it, for your entire career' *eliminate the notion that the company that demands your loyalty to it will return that loyalty to you (way to go, there, chainsaw al)(you too, jerk welch) *use, as you noted, the power of regulation to drive out or ruin small/independent competitors **and their employees** *and, most importantly, allow a flood of illegal workers into the country to depress YOUR wages while simultaneously raising THEIR pay to stratospheric heights. and on and on.

    there used to be a covenant of sorts between business and labor, but it's been buried under the buzzwords of globalism and new economics. and THEY broke the faith first - not joe lunchbox. i know a man - a nice old fart - who went to work for a drug company after he got done fighting WW2. he started loading trucks in the shipping department. promotions soon followed, and he retired 35 years later as a regional sales manager for that same company. he worked hard for THEM, they took good care of HIM. everybody won. you don't hear many stories like that anymore, as joe lunchbox very well knows.

    then you, joe lunchbox, find yourself on a jury. a jury that has the power to put a powerful whuppin' on one of those same corporations that laid of tens of thousands to "improve shareholder value"; that closed all their ohio and indiana plants and opened new ones in mexico and vietnam.

    WTF do you THINK joe lunchbox is gonna do? judiciously listen to the facts of the case? or use this, his once and only chance to register his unhappiness in the only way that the big bosses will really be hurt by, money, to *make the bastards pay*?

    ANY large company that refuses to settle cases like this and rolls the dice at trial is incredibly stupid. they made this bed, now they gotta sleep in it. and, i gotta admit, after seeing the horrific damage done to us by the geniuses of wall street and washington lately, i'm beginning to see mr. lunchbox's point.

  • Bill

    nom de guerre:

    The ignorance, not stupidity, of jurors lies in the fact that, while sticking it to large corporations might give momentary pleasure, in the long run it only drives up costs (not just prices) for everyone, including Joe. Do you think any corporation has decided not to market a new, innovative product based on the potential for liability? What happens to Joe's IRA, 401K, savings, and pension when share prices are depressed by asinine tort liability?

    To the extent the problem is caused by collusion between big business and big government (and I agree there is far too much of this), the government is to blame. It's the government's job, not private business's, to represent the interests of citizens.

    A lot of the loss of the employer/employee covenant over the past 30 years has been caused by Joe and his labor unions. Look at steel, textiles, airlines, autos - who breached the traditional covenant there, management or labor? Union thugs, often in collusion with government, used labor laws, coordinated labor strikes, or threats of strikes, to extort ridiculous "work rules", compensation and benefit packages from management. At some point, steel mills, textile plants, airlines and auto manufacturers fail. Congrats Joe - you killed the goose that laid the golden eggs.

    Do you really believe the outcome would have been different if, instead of an American tire company, it was a Mexican or Vietnamese tire company? A case could be made that these ignorant jurors would have whupp’d foreign tire manufacturers harder because they were foreign corporations.

    Yes, Joe should judiciously listen to the facts and render a just verdict. If he doesn’t, then in addition to being ignorant, he is dishonest.

    As for companies that "roll the dice" at trial, what difference does it make whether large corporations are being extorted by labor or trial lawyers? The result is the same – we’re all worse off.

    If Joe has a chip on his shoulder now, wait until more American manufacturers fail or flee to jurisdictions with reasonable labor, regulatory, judicial and tax policies. That's why the jurors are ignorant - they're hurting themselves along with everyone else.

  • Jess

    Dimi,
    I'm guessing here, but as tire technology has improved so much over the past couple of decades, most folks do not have much experience w/"blown" tires, so I'll give you a pass...
    However - a Front engine/RWD vehicle will not (strike that - can not. Ever.) flip, twist, or otherwise be "out of control" if a rear tire were to suddenly decompress. Ever.
    What will happen is that the car will (not suddenly, BTW. In fact, it's a rather mild motion), pull to that side. As a point of information, it's fairly common for drivers to ignore flat rear tires as they drive along even to the point of complete tire loss (vehicle now driving on the wheel).

    So - did the tire fail? Evidently so. Was that the "cause" of the crash? Certainly not, as the most novice of drivers would have been able to handle this without any undue consequence.

    J

  • LoneSnark

    I disagree. Given that the tire failed catastrophically it is sensible to believe that it failed at a point of extreme forces upon it. As such, I have a vision in my head of the vehicle travelling 90mph down a 45mph street and coming to an extreme turn, causing the outside rear tire to fail and slide sidways off the road and into a tree. In this scenario it is certain that had the vehicle been travelling at only 45mph it would not have left the roadway in the event of tire failure, but more to the point the tire would not have failed.

  • Chris

    Keep in mind this is Mississippi, which has a long history of bizarre lawsuit awards. Trial lawyers pretty much control the state and tort reform has been difficult to push through the legislature. This is one reason the state has been a backwater for business. I don't know how much Haley Barbour has changed things a governor.

  • Dimi

    Bill: Driver was under 21 years old yet had blood alcohol three times the legal limit, no-one in the car was wearing seat belts, car was going 90 miles per hour.

    These are all problems, I agree, but it is a reasonable scenario where they didn't cause the crash. There are plenty of 21 years old that are much better drivers than 50 year old, the blood alcohol limit is a problem but different people have different tolerances and it is not in itself 100% proof that it was driver error, the lack of seat belts come into play only _after_ the accident occurred, and the 90 mph again is not a problem if the car was in good condition and the road straight. Anyway, we seem to jump to conclusions without paying attention to the details of the case.

    Jess: please remember that the jury heard for the expert witness that the accident was a direct result of the blown tire. I have experienced _flat_ tires too and they are not much of a problem. But when they do blow up is quite different than if they gradually lose pressure. This is one reason we switched to tubeless tires because they are a lot more _unlikely_ to blow up and cause accidents. Not that they don't blow up from time to time, but there is a big difference between a blow up and a flat tire.

  • nom de guerre

    bill, i'm probably politically to the right of attila the hun, but i have to take exception to your repetition of the tired old "evil unions" line. time after time, year after year, the right - and most especially the 'wall st journal' - whines voluminously about the evils of a system that allows joe lunchbox a decent wage. why is 'good pay for the non-executive help' a bad thing? how can you expect a $9/hour employee to power the economy? how is a guy/gal who makes $400 a week before taxes ever going to be able to buy a new chrysler?

    if unions are death to a company and its productivity, why does UPS succeed so well? why is that? working with an (almost) 100% unionized driver force? a driver force made up of *teamsters*, that most belligerent of unions? UPS makes money regular like clockwork; introduces new services and technologies on a regular basis; and they get their lazy, good-for-nothing-$30-an-hour-plus-lavish-bennies unionized driver force to deliver packages at a rate of 20 stops per hour. and sometimes, much MUCH more than that. (yes, i used to work for them: both as a driver and later management.)

    how'd they do that? is UPS just smarter? do they hire only MIT grads? why can't all the other unionized industries succeed like that?

    easy answer: because they had bad, gutless management. just like the airline industry: all miserable failures, all whining about how hard it is to succeed. except southwest, of course. they seem to prefer to manage properly rather than bitch about their good-for-nothing workforce. (the WSJ recently reported that the co-pilot of the puddle-jumper that crashed into the house in buffalo "due to pilot error" was being paid $16,000 a year. she herself said - on the cockpit tape - that she had no experience with icing. UPS's highly-paid pilots, OTOH, *don't* crash their planes and get innocent people killed. coincidence?)

    effective management of a unionized workforce means implementing a system of almost constant confrontation with that workforce. letting a mistake go uncorrected, even once, means you've set a precedent that will come back to bite you in the butt. it's *extremely* difficult to do, and quite often unpleasant, but it can be done. profits CAN be made while employees make $30 an hour. all you have to do is manage your ass off.

    it's just that the management of the airline industry; and the steelmakers; and the automakers were too lazy and gutless and incompetent to do the work. MUCH easier to snivel about unions. let's get it straight: joe lunchbox and his union didn't run american manufacturing into the ground. joe didn't kill the golden goose. management did. (who designed and decided to build the edsel? the corvair? the vega? the pinto? and all the other infamous american car bombs? was it the unions? did the *unions* decide to sink $10 billion into the craptacular 'saturn' concept?) EVERYthing is ultimately the responsibility of a good manager. and the ruination/decimation of a once-thriving, once-profitable business - and the loss of the thousands of jobs it once supported - lies entirely at the feet of the manager. you know it; i know it; and joe lunchbox knows it. yet every day in every way we hear bad managers and their jock-sniffing groupies ("jack welch: america's CEO!! 80 straight quarters of ever-improving numbers, just like bernie madoff!") moan about how they're not to blame. they only RAN the joint, after all. what possible effect could THEY have, right? it's those uppity *blue-collar* riffraff that brought down the industry!

    (note: none of the above applies to government-worker unions. they're a whole different animal.)

    so no fair complaining when joe gets on a jury and decides to punish those who are most responsible for the current mess. and no fair whining about how 'large jury awards cost us all' until corporations and their bought-and-paid-for government start defending the borders and enforcing immigration law. the iron rule of business is that management will reap what *they and they alone* have sown. management planted weeds. joe lunchbox merely worked as directed.

  • Bill

    nom de guerre:

    I never said good pay for the non-executive employee is bad; it’s not. What’s bad is excessive pay, excessive benefits and work rules that stifle productivity. The problem with the Detroit Three is not the wage rate paid to current workers – my understanding is that it’s not very far off what the
    transplants pay in non-union shops. The problem is, for example, GM employs about 100,000 workers yet pays extremely generous medical and/or retirement benefits for over 1,000,000 people, If GM could rid itself of retirement benefits, it would probably be in very competitive shape. That’s the problem; it’s stuck with the deal it made under vastly different circumstances than exist today. BTW, I don’t expect $10 per hour employees to power the economy or buy new cars.

    Perhaps UPS does so well because package delivery cannot be outsourced to foreign countries and its relatively few competitors have the same labor costs (how’s DHL doing?). GM, Ford and Chrysler did great 40 years ago when there was no foreign competition and their labor costs were in parity. How much would you bet that UPS will be as strong in 2049 when the “lavish bennies” come home to roost and a new competitor enters the package delivery market without the millstone of retirement benefits wrapped around its neck? This is why unionized industries are destined to fail. As for the new services and technology, obviously these are introduced by management.

    I agree that the Wagner Act set up an adversarial relationship between labor and management that necessitates “constant confrontation” between the two. I don’t agree this is a good thing. While unionized companies have to devote “almost constant” time and resources to do the “extremely difficult” and “unpleasant” tasks of managing their “asses off” vis-a-vis their workforce, their non-union competitors can devote all of their time and resources to improving products and competitiveness.

    Who designed and decided to build the Corvette, the Mustang, the Camaro, the Caprice, the Taurus, the F150, the Suburban, ect? To hold management to a standard of perfection; to believe that management can see the future; to suggest that they will never introduce a bomb; this is childish. Do the losses of thousands of jobs in the typewriter, adding machine, mimeograph, phonograph and VHS industries lie “entirely at the feet of the manager”? Or might there be other considerations? Times change, industries change, but when your feet are cemented in the past you can’t adopt.

    I completely agree with you on immigration. There is no doubt in my mind that immigrants take jobs Americans would gladly do as well as suppress wages of American workers by undercutting them. However, this is a government failure, not a private sector/management failure.

  • skh.pcola

    Nom, when Boeing union workers strike and cost the company $100 million per DAY, then I'd proffer that your vigorous defense of unions as being the exemplars of "*blue collar*" protectors is nothing but a populist screed. Management has been held hostage by unions for the last several decades and while some of the blame for the Big Three's troubles can be attributed to weak management, the unions themselves are worthy of the largest share of the blame. I've heard countless union zombies intone the "We're gonna shut this company down!1!" mantra over trivial points to believe your perspective on their deleterious influence on American manufacturing.

  • Craig

    Dimi,

    For the right price, you can get an "expert" witness to say whatever you want.

  • Dr. T

    Yes, the tire blew at 'only' 90 mph. A well-cared for tire, properly inflated and routinely rotated, should not blow-out at 90 mph. Any bets on how well the Camaro owner cared for the tires?

    Even if the tire was flawed, a sober driver going the speed limit can handle a rear tire blowout.

    To assign blame to the seller of the car and the installer of the tires makes no sense at all. To assign no blame to the driver is bizarre. The passengers also were partly at fault: they were drunk, they knew the driver was drunk, they got in the car anyway, and they didn't wear lap belts and shoulder harnesses. I hate cases like this.

  • John O.

    This is a case where the facts would favor the defendant but the jury for whatever reason chooses to ignore them and side with the Plaintiffs. Its a verdict that makes no sense at all, yet the courts routinely allow it as most judges pass the buck on to the courts of appeal.

    -- John O.

  • Jess

    D & LS -
    A few points - first, there was no turn, as this happened on a "straight", and second, the tire did not "explode", as witnessed by the tire segments found upstream from the crash site.
    A RR tire loss in a turn in a vehicle w/such a front weight bias won't exhibit the behavior you describe.

    One must admit to driver error.

    J

  • Sid

    Yes I got into the car earlier in the night with someone who had been drinking. Which at the time didn't appear to be anywhere near drunk. Was it the wrong decision? Yes. But I fell asleep, therefore I didn't have any control of how the vehicle was driven. And the the T-tops were in the floor board after the wreck. If we had been wearing seat belts, we would all be dead. And you say the passengers were drunk, although my blood alcohol content was ever talked about anywhere in the case. So get all the facts before you make assumptions. And you say they knew the driver was drunk, the last I talked the other two no one appeared to be drunk.