MattM 0 #51 January 7, 2004 I operate Microsoft Windows in accordance with manufacturer's recommendations and/or standard procedures... it still crashes. Can I sue? Matt Quote Share this post Link to post Share on other sites
sarge 0 #52 January 7, 2004 ok Quote You are flying an airplane, fairly new, all inspections, etc up to date, within it’s operating limits. The tail falls off and you are severely injured in the crash. Accident investigation determines there was a design defect in the tail that caused it to separate in flight. Do you sue the manufacturer? Classic Socratic platform... Law collides with individual conscience that collides with social conscience... You wish to stir the pot do you? Quote Purely hypothetical. I know of no incident as I described. That being the case then, the scenario you describe brings into the spotlight the many players involved in sewing this tangled web of (potential) liability. Stated, none less liable than the product mfr. moreover, likely more so liable, since they're obligations far exceed the mfr's responsibility for product safety would be included a number of certifying bodies with lawful responsibility for and accountability for approving such certifications etc... All that aside, in plain terminology it becomes simply; timing. At what point does the defect become apparent and at such point can a loss/damage/injury be preventable. If someone has full disclosure to potential hazzards exacerbated by an inherent design flaw say, and nonetheless continues to engage that hazzard then they must assume a greater responsibility in accepting a loss/damage/injury by their conduct, therefore limiting a claim against the 'provider' of the defect. Wherein, a person who is reasonably aware of understanding a hazzard can make an decision concerning his safety and welfare based on information that can be certified to be true and accurate by that certifying authority. Furthermore, that liability will be placed on the certifying authority and not the subject relying on the decisions of the authority if a defect does result in loss/damage/injury beyond the scope of the subjects awareness of defect and who did therefore rely on information of those certifications solely to engage a potential hazzard. well, I could probably go on... but I would sue How bout you Derek would you sue? Who? .-- I'm done with the personally meaningful and philosophical sigs!! Quote Share this post Link to post Share on other sites
billvon 3,107 #53 January 7, 2004 > Do you sue the manufacturer? Did the hypothetical pilot sign several waivers to the effect that "I understand that even properly maintained and operated aircraft of this type can have structural failures, and I risk injury or death by operating this aircraft?" I think you should hold people to what they agree to. That means you can agree to give up your right to sue if you choose to, as long as you are aware of the risks. Quote Share this post Link to post Share on other sites
mr2mk1g 10 #54 January 7, 2004 Ok - A lawyer joins the thread. (caviat - I practice in England). Also I will not answer "to sue or not to sue" only "is it possible to sue" Whether or not someone tries tp sue is up to them and down to a personal choice type thingy. Quote I agree, but how can you prove that a manufacturer knew that the design of the tail was flawed? It does not matter one jot if the manufacturer knew of the defect or not. If they built it, and it fell apart because of the way they built it, they can be liable. A defect they did not know about is referred to as a “latent defect” and manufacturers can be caught by them just as easily as any other. That is all you have to prove to establish primary liability. 1. They built the plane (probably not in dispute) 2. The plane fell apart due to the defect (if you have the NTSB on your side this may not be a problem but it depends on all the facts etc etc.). This is a classic Donoghue v Stevens situation. Those of you who have studied any form of law in whatever vocation you have will have seen this case, its English - but half of America's legal system is built on this one case! A woman buys a bottle of ginger beer and there’s a snail in it. She freaks and sues the manufacturer. She doesn’t have to show the manufacturer knew there was a snail. They are liable because the didn’t take reasonable steps to ensure no one suffered as a result of the snail being there. A reasonable step in that instance may be having someone check the bottles to see that they are clear. In the case of building a plane what is a reasonable step to ensure no one suffers is a lot greater. There is a lot more harm that can come of a mistake so it is reasonable to require manufacturers to be a lot more careful. The third thing you must therefore prove is that they did not take reasonable steps to prevent the accident. To be blunt I can’t be arsed to go research what may be legally expected of a manufacturer this sort of situation but I can bet that it wouldn’t be too hard to show that they could have done more. If the NTSB can say conclusively that the crash was because of X – they really could have picked it up… probably… but then if we all knew what was going to be the legal outcome of any given situation I would be out of a job. The reason actual knowledge of defects becomes important in law is because you can get more money. It’s a concept called punitive damages. They are there to punish manufacturers who allow a dangerous situation to exist because its cheaper. Punitive damages are awarded to make sure its not cheaper to produce a dangerous product. If it can be shown that the manufacturer knew of the defect and ignored it – they are looking down the barrel of a huge pay out to the claimant. What are they liable for outside of punitive damages? Anything and everything that stems form the incident. Financially they must put you into the situation that you would have been in had the accident not happened. So they must pay for a new plane, new pants that were cut by the medic (eg) lost earnings you could have made were you not in the hospital etc. They are also liable for pain and suffering so must pay you a figure for that. In England we have a nice set of books and cases which tells us how much an injury is worth so I can instantly (literally at the press of a button – its quite macabre really) value any given injury. As far as I understand American law the jury decides this element (or at least has a hand in it) so god knows how much of a pay out may come here. In any case it depends on how bad the injuries are and how long recovery is going to take. Now I really ought to get back to non-hypothetical situations. Quote Share this post Link to post Share on other sites
Hooknswoop 19 #55 January 7, 2004 QuoteI operate Microsoft Windows in accordance with manufacturer's recommendations and/or standard procedures... it still crashes. Can I sue? Does your OS crashing cause you serious physical and financial difficulties. Apples and oranges. Derek Quote Share this post Link to post Share on other sites
Hooknswoop 19 #56 January 7, 2004 QuoteHow bout you Derek would you sue? I don't know. If the company knew about the flaw before the crash and did nothing, then yes I would sue. I don't know if I could find that out to help me decide. If they didn't know then I don;t know what I would do. I imagine that laying in a hosipital bed, severly injured, would influence my deciscion. Derek Quote Share this post Link to post Share on other sites
Hooknswoop 19 #57 January 7, 2004 QuoteDid the hypothetical pilot sign several waivers to the effect that "I understand that even properly maintained and operated aircraft of this type can have structural failures, and I risk injury or death by operating this aircraft?" He signed nothing agreeing not to sue the manufacturer. He did sign a waiver agreeing not to sue the airport. QuoteI think you should hold people to what they agree to. That means you can agree to give up your right to sue if you choose to, as long as you are aware of the risks. I agree. I also think that I can't say what I would do if I was severly injured. I'm not saying that injuries makes it right, only that it can affect the decision. Derek Quote Share this post Link to post Share on other sites
WrongWay 0 #58 January 7, 2004 Quote The tail falls off and you are severely injured in the crash. Accident investigation determines there was a design defect in the tail that caused it to separate in flight. Holy shit on a stick, YES. SUE. Wrong Way D #27371 Mal Manera Rodriguez Cajun Chicken Ø Hellfish #451 The wiser wolf prevails. Quote Share this post Link to post Share on other sites
mr2mk1g 10 #59 January 7, 2004 I guess to quickly adress "would you sue"... that depends on just how badly I was messed up... both pysically and mentally. If I was seriously out of pocket and it was some one elses fault - yeah I'd sue. If I was badly injured and it was some one elses fault - yeah I'd sue. Less than that, or maybe a manufacturer who I felt was less "morally culpable" no. I advise my friends and family to stay clear of the law. Participants rarely feal they have got a good deal on either side of things. My sisters car was hit by an idiot cypriot driver pulling of an really stupid manouvre while she was over there on holiday this summer. Typical whiplash you see in movies. Told her not to sue - would probably have been in for £500 - £1000, more if she'd hammed it up like I see most people doing. To me the hassle simply equates to more arse ache than £1000 is worth - and this is my job. I can only imagine how much arse ache it would be to someone who doesnt know shit and is worried about starting something that could see them being cross-examined in court by a Barrister. Now increase the payout... or increase how "wronged" I feel.... I may start to re-evaluate the situation. In the situation you describe... I'd probably say yes -I'd sue. I just fell out the back of a fucking plane when the tail came off! I'd be bust up and pissed they didn't spot the problem... but that view may change as you tweak the more specific facts a little. Quote Share this post Link to post Share on other sites
kallend 2,146 #60 January 7, 2004 There is no such thing as a perfect design in engineering. History shows that almost all engineering advances are based on previous failures. You might want to Google "Henry Petroski" for a lot of writing on this subject.... The only sure way to survive a canopy collision is not to have one. Quote Share this post Link to post Share on other sites
rehmwa 2 #61 January 7, 2004 Quote There is no such thing as a perfect design in engineering. History shows that almost all engineering advances are based on previous failures. You might want to Google "Henry Petroski" for a lot of writing on this subject. Amen Kallend! Everyone wants our products (and our politicians) to be "perfect" on every little detail. But they don't want to be responsible for themselves. curious ... Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants Quote Share this post Link to post Share on other sites
sdgregory 0 #62 January 7, 2004 QuoteOn the flipside - if the product was built to standard WHEN IT WAS BUILT there shouldn't be a case. ie. the case recently in CA of the Ford Bronco that flipped, it met the standards of the day when it was built but not current ones. I agree here. We cannot possibly think of everything as human beings and engineers. As engineers we always want to try and cover every possible thing that could happen. Sometimes a problem is not even discovered or thought of until a tragedy brings it to light. IF the vehicle was designed to meet the standards fo the day it was manufactured then I think there should be no suit. The designers and engineers probably covered ever angle they knew of at the time. Lawsuits should be reserved for cases of gross human neglegence. If I KNEW there was a safety issue and I deliberately ignored it or thought it was more expensive to fix it than pay out the few lawsuits I thought woudl come my way then I am liable and should be sued. But if I did everything required of me and everything I believed to be humanly possible to make a safe vehicle than I should not be held responsible. At some point we gotta accept responsibility for the risks we take. We are talking about imperfect machines built and designed by imperfect people. You do not HAVE to fly. You do NOT have to drive. You do NOT HAVE to ride a motorcycle. You CAN die doing any of these things. I have a dream. That one day man will accept responsibility for himself and not look to blame everything that goes wrong in his life on some other unsuspecting schmuck just because we have greasy lawyers looking to make a buck. Quote Share this post Link to post Share on other sites
mr2mk1g 10 #63 January 7, 2004 Quote If I KNEW there was a safety issue and I deliberately ignored it or thought it was more expensive to fix it than pay out the few lawsuits I thought woudl come my way then I am liable and should be sued. yes - definately Quote But if I did everything required of me and everything I believed to be humanly possible to make a safe vehicle than I should not be held responsible. sort of - so long what you did to make it safe was considered enough by joe schmo on the street - not just you. Whether or not you have done enough is an objective test not subjective. So it doesnt matter if you think its enough, it matters if everyone else thinks its enough. Quote Share this post Link to post Share on other sites
sdgregory 0 #64 January 7, 2004 QuoteSo it doesnt matter if you think its enough, it matters if everyone else thinks its enough. Here I will have to disagree. If I fullfill all the guidlines by law, meet all current government safety standards, that should be enough. OF course I should want to exceed them, to improve safety all the time. The problem with your statement is that everyone else cannot possibly know what is enough. Every joe schmoe thinks he knows what is best but most people ar NOT engineers and have no clue what is possible or what is not. At some point you have to realize that the experts know more than joe schmoe in their area of expertise. Now if a large group of engineers said I did not do everything I could have done then maybe I see your point but if just the average guy on the street thinks he knows more about materials, physics, stresses, loadings, heat transfer, etc than the engineer, well, there is something skewed in his thinking. That is why we have governing bodies filled with experts in theirs fields making safety standards. Because the average guy does not know. Therefore if the design met all safety standards at the time of manufacture then there should be no lawsuit. Quote Share this post Link to post Share on other sites
jlmiracle 7 #65 January 7, 2004 This poll terrifies me that there are so many SKYDIVERS looking to sue for the risks THEY take. I answered NO. All these stupid (and yes this one would be stupid) lawsuits are going to be the end of skydiving. I hope these sue happy skydivers arent' jumping at my dz. JudyBe kinder than necessary because everyone you meet is fighting some kind of battle. Quote Share this post Link to post Share on other sites
mr2mk1g 10 #66 January 7, 2004 its ok - we're describing the same test. When there is a question of reasonability in relation to a technical point the "reasonable man" is deamed to be a "reasonable person with that technical knowledge". Therefore when I say "joe schmo" I mean "joe schmo engeneer" or whatever the question is in relation to. If you make something that meets all the design requirements then you probably are doing everything that can reasonably be expected of you. But tails dont just fall off. Quote Share this post Link to post Share on other sites
sdgregory 0 #67 January 7, 2004 True, I would wonder why the hell the tail fell off too. And maybe a lawsuit would bring out that there was no neglegence on the part of anyone and it was a new problem that would be addressed in future safety regs. But with juries awarding frivilous amounts on nothing lawsuits I think there needs to be some regulations on people who bring these suits. I think if you bring a suit against anyone and you loose you should have to reimberse all their legal expenses. That might make people think twice and stop the BS lawsuits from people who just want the easy money. Oh and I guess we do agree. Damn. foiled again Quote Share this post Link to post Share on other sites
TheMonkey 0 #68 January 7, 2004 i would sue the plane manufacturer....i would not sue the skydiving manufacturer....that's just me --------------------- Never argue with an idiot, they will drag you down to their level and beat you with experience! Quote Share this post Link to post Share on other sites
mr2mk1g 10 #69 January 7, 2004 Quote I think if you bring a suit against anyone and you loose you should have to reimberse all their legal expenses. That might make people think twice and stop the BS lawsuits from people who just want the easy money Thats how it works in England (at least partly)... and guess what... we don't have anywhere near the number of stupid fucks suing cos they stubbed their toe. We have made sure it doesnt interfer with peoples access to justice too. In fact a huge law firm started trying that sort of claim and went under last year taking half the personal injury industry down with it. They found the courts were always punishing them with massive costs pay outs to the other side. Quote Share this post Link to post Share on other sites
billvon 3,107 #70 January 7, 2004 >He signed nothing agreeing not to sue the manufacturer. He did sign >a waiver agreeing not to sue the airport. I didn't really ask that. Did he sign a waiver saying something to the effect of "I understand that even properly maintained and operated aircraft of this type can have structural failures, and I risk injury or death by operating this aircraft?" I.E. one that does not name the manufacturer of the aircraft company, rivet company, avionics company etc but does convey that this particular aircraft is not safe, and flying is not a safe activity? Quote Share this post Link to post Share on other sites
lawrocket 3 #71 January 7, 2004 Lawyer 2 joins in. Let me add some stuff to what the good barrister said. First, for a design defect, the following are the essential elements: 1) the defendant was the manufacturer or supplier of the product, here an airplane. (Comment - sellers can liable, too. Not just the designers and manufacturers) 2) The product possessed a design defect (Comment: hindsight can show a design defect) 3) The defect existed at the time it left defendant's possession. (Comment - this element precludes recovering against a manufacturer for a defect product added on later) 4) The defect was a cause of the injury (Comment - this means that if the design defect did no cause the injury, i.e., the defective part worked fine and another properly designed and manufactured part failed, no design defect case can be maintained) 5) Plaintiff's use of the product was a foreseeable use (Comment - this means if you manufacture screwdrivers, you better design handles strong enough for people to hammer on them, since thousands use them every day as chisels.) What is the definition of a design defect? Either: 1) if the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or 2) the risk inherent in the design outweighs the benefits of that design (this is determined by weighing the gravity of the danger, the likelihood that the danger would cause damage, the mechanical feasibility of a safer alternative design at time of manufacture, the financial cost of improved design, and the adverse consequences of an alternative design.) So, you can see that there are plenty of things to show for a design defect. Also, note that there is no element of actual knowledge on part offf the manufacturer or seller. It only must be shown that the product design was defective (Comment - the law is that the manufacturer should have known of the defect) I've also noted that there is some discussion about the manufacturer publicizing a safety bulletin about the part to fix it. This is one of the bigger legal "so what's" out there. Subsequent remedial measures are inadmissible as evidence of negligence. Why? Because if they were, manufacturers would allow defective products to stay on the market to avoid paying up in a lawsuit. Policy is to fix a problem without risk of adverse consequence in a pending suit. So if you have a sidewalk that is slippery, and you fix it after someone slips on it, that person cannot use your repair as evidence of negligence. In the facts that hook gave us? Yeah, it's a good lawsuit, and worth a shot, I suppose. But, bear in mind that whether you can sue is entirely different than whether you can win. Proving or disproving the questions above is why lawsuits are so expensive. Note: you cannot get attorneys' fees in most cases, but you can get "costs" in most places recovered from the losing party. These costs may be substantial, even hundreds of thousands of dollars. Our system is a modified "loser pays," covering almost everything but legal fees. My wife is hotter than your wife. Quote Share this post Link to post Share on other sites
Hooknswoop 19 #72 January 7, 2004 Quote>He signed nothing agreeing not to sue the manufacturer. He did sign >a waiver agreeing not to sue the airport. I didn't really ask that. Did he sign a waiver saying something to the effect of "I understand that even properly maintained and operated aircraft of this type can have structural failures, and I risk injury or death by operating this aircraft?" I.E. one that does not name the manufacturer of the aircraft company, rivet company, avionics company etc but does convey that this particular aircraft is not safe, and flying is not a safe activity? He signed a waiver that stated that flying was a dangerous activity and agreed not to sue the airport in the event of an incident. Derek Quote Share this post Link to post Share on other sites
Hooknswoop 19 #73 January 7, 2004 QuoteThere is no such thing as a perfect design in engineering. History shows that almost all engineering advances are based on previous failures. Absoutely true. But the design should be able to do what the manufacturer says it can do. If the max speed of the aircraft is 160 knots and you have never exceeded that and the tail falls off while cruising along at 130 knots because of a design defect (i.e. the tail isn't strong enough to stay on over 120 knots), then there is a problem. I don't ecxpect perfect designs, I expect the tail to stay on below 160 knots. I don't expect the tail to stay on at 161 knots or more. Derek Quote Share this post Link to post Share on other sites
sdgregory 0 #74 January 7, 2004 Hooknswoop I would say that is a reasonable expectation. Quote Share this post Link to post Share on other sites
pilotdave 0 #75 January 7, 2004 Quote There is no such thing as a perfect design in engineering. History shows that almost all engineering advances are based on previous failures. Absolutely true. The Wright Flyer's tail had every right to fall off (not that it did). Assuming this hypothetical aircraft is not a radical design completely different from anything that has come before, they should have learned lessons from previous tail designs and they should know how to ensure that the tail won't fall off. The fancy new flat panel display in the cockpit can fail. They're still using steam gauges to back those up. A tail cannot fail. True, engineering isn't perfect. Humans make mistakes. But the company that produced the faulty design should still be held accountable. Someone mentioned we don't HAVE to fly and don't HAVE to skydive and all that. What if we were talking about a design flaw on a skyscraper or bridge? How about the roof of your house? Would it make a difference if it wasn't a plane or parachute we were talking about? Dave Quote Share this post Link to post Share on other sites