Friday, June 22, 2007
My sense of why people are so fascinated by injuries in amusement parks is because of the nature of the attractions: we're going there to feel that we are at risk without actually being at risk. Our hearts race and our adrenalin surges because our body believes we are in danger. This escapism -- the tendency to be carefree -- is encouraged by the parks (for good reasons). So when the perceived risk turns out to be a real risk, or when our carefree decisions turn out to cause harm to ourselves (not that that's what happened in Kentucky), it's a much bigger shock -- and gets more coverage than the proportional risk would otherwise justify -- than when someone engaging in an undeniably risky activity gets hurt.
It's not just media sensationalism, in other words. Or if it is sensationalism, it's grounded in what I think is a natural instinct among the public (and the reporters).
Other places to watch if you're wanting coverage...
- RideAccidents.com (who has the non-statement from Six Flags)
- The Cincinnati Enquirer (who runs the Courier Journal's story, which incorrectly states that the death on a similar ride in California was due to a restraint "popping open" - investigators never determined what happened, but the restraint seems to have stayed in place)
Just to put some structure around the regulatory scheme in Kentucky...
KRS 247.232 [PDF] defines amusement rides and attractions in a way that would seem to include Six Flags Kentucky Kingdom. This regulation provides for inspections by the state, I think annually. Then this regulation requires reporting of all serious injuries (requiring physician care) and deaths.
Thanks to Kathy Fackler for providing a link to her collection of the reports made in Kentucky in the past four years. None are from Six Flags. I'm rather surprised, and frankly a little skeptical, that only four events took place in that time frame.
Quite a few people, knowing of my interest in amusement ride safety, have directed me to the coverage of the tragic accident at Six Flags Kentucky Kingdom, where a girl's feet were severed on the "Superman: Tower of Power" drop ride (formerly known as "Hellevator"). The park has removed the ride's page from their website; you can see a cached version at Archive.org.
The ride is an Intamin installation of a "Giant Drop" ride. This is an image from a different installation:
As I understand the ride, each ride carriage is lifted up on three steel cables. (The cables may be attached to a "catch car" that holds the actual carriage, but I think this is one of the ones without the catch car.) After being held at the top, the carriage is released, which falls under the force of gravity to the ground, where it is stopped by permanent magnets, making the ride very nearly foolproof -- i.e., so long as the earth's magnetic force doesn't suddenly change, the carriages will always stop.
But then there's whatever happened here. It is fairly clear that at least one cable broke and either wrapped around the girl's legs or, because of the tension the cables are under, the broken cable flew through her legs. The CNN story says the cable wrapped around her legs.
The other puzzling part is the consistent description of the cable breaking and the carriage falling immediately thereafter. The obvious assumption is that the former caused the latter, but I think for that to happen, it would have to have been a catastrophic failure -- i.e., that all three cables broke at once. My guess (and it's pure speculation) is that the cable braking coincided in time with the point at which the car would have been dropping anyway.
Intamin also manufactured Cedar Point's Top Thrill Dragster, a launched coaster. The cable on that ride has broken periodically, including at least once when shards allegedly injured onlookers, who sued. (Intamin is a very prolific ride manufacturer; my sense is that they have perhaps more than their proportional share of injuries on their rides, including a death at Six Flags New England's Superman: Ride of Steel, but it's hard to be sure.)
More to come as more information becomes available.
Wes Craven (former philosophy prof and director of some good movies [the original Nightmare on Elm Street, Music of the Heart] and some absolutely awful ones [Shocker, Vampire in Brooklyn]) has sued his neighbor and embodiment of evil Pauly Shore, who has not been in a single movie you want to see, for negligence, nuisance, and trespass.
[Later note, after I realized I didn't actually say what the lawsuit is about: Sadly, Craven is not trying to create a new theory of liability alleging that being in movies like Bio-Dome and Jury Duty establishes a public nuisance (but are you listening, Motley Rice?), but instead bringing to court a relatively mundane fight about property water run-off and the like.]
There's been a dramatic increase in academic and popular press coverage of the problem of bullying in schools in the past few years, and Dan Weddle (UMKC) has posted on SSRN his 2004 Temple piece about the subject, addressing in particular his view that the tort system has a significant role to play in controlling the problem. The abstract:
Nearly two decades of educational research has repeatedly demonstrated that one of the most damaging and pervasive problems in our schools today is bullying. That research has shown that bullying leaves its victims with serious and often life-long emotional problems. It has revealed that bullies are substantially more likely than their peers to commit felonies later in their lives. It has even demonstrated that witnesses to the bullying are often affected in serious, lasting ways. Most importantly, it has proven that school officials can dramatically reduce the prevalence of bullying if they implement proven bullying prevention strategies. Nevertheless, in most schools today, bullying goes on unabated and virtually unchallenged by school officials.
The educational community knows that these children are being tormented; it knows that they are being damaged in ways that will haunt them - and in some cases, entire communities - for years to come. It also knows how to reduce dramatically the prevalence of the torment; and it knows that school officials must lead the way in doing so. Current legal theories, however, whether found in federal or state law, whether based in statutory or common law, are simply not aligned with what empirical research has shown to be true. Therefore, the law provides those who could stop the torment no real incentive to inform themselves and to act, and it provides victims of the torment no remedy against the school officials who could have protected them.
When victims attempt to hold schools accountable for failing to protect them from peer-on-peer abuse, courts routinely hold that, under theories of negligent supervision, the bullying and associated attacks and injuries were simply unforeseeable to the school officials who could have intervened, even though educational research has repeatedly demonstrated that such abuse is occurring in virtually every school setting. Under Title IX, requirements of actual notice and deliberate indifference sink most claims of peer-on-peer sexual harassment, and they ensure that such gender-based bullying will flourish by its very nature as an underground activity, hidden from school officials who are apathetic about its existence. Constitutional theories are inadequate to produce either remedies or educational change because courts are unwilling to turn bullying into a constitutional tort. Even anti-bullying statutes fail to require the kinds of reforms demanded by the empirical research, so schools continue to function with a blind eye toward the victims' plight, leaving them and future victims at the mercy of other children.
The nation needs a sea change in its current legal theories. Courts and legislatures need to abandon the fiction that schools do not know how to identify and stop serious bullying. Courts need to redefine negligent supervision with regard to bullying in order to acknowledge the foreseeability of the harms that result from bullying and the causal connection between school officials' inaction and victims' injuries. Legislatures need to enact laws that will reward those schools that implement proven strategies for preventing bullying and penalize those that refuse to do so. The nation needs, in short, to align legal incentives and penalties with the realities of schooling and the seriousness of the problem of bullying. Until that happens, far too many children will suffer needlessly at the hands of their peers, unprotected by the very adults into whose care they have been entrusted.
Part I presents in some detail what current educational research has revealed about bullying, its effects, and its prevention. An understanding of that research is essential to recognizing the flaw common to prevailing legal theories: that those theories define supervision breakdowns in terms of individual instances of bullying but fail to recognize the connection between bullying and school culture. They fail to recognize that school officials can transform a bullying culture, using research-based, whole-school approaches to preventing bullying. Part II critiques current legal avenues available to victims of bullying and current attempts by some state legislatures to curb bullying in their schools. Part III offers conclusions and some recommendations for reforming current definitions of negligent supervision and for creating a package of incentives for schools to change their practices.
Thursday, June 21, 2007
...that's what a new evaluation of a study suggests.
The initial negative results of the Women's Health Initiative study resulted because the investigators included a substantial number of older women in the study in the hopes of observing enough heart attacks to be able to draw conclusions. But those women are rarely considered for hormone replacement therapy.
"Unfortunately, [those results] were unfairly generalized, creating widespread concern that hormone replacement therapy is neutral or even harmful, with respect to heart disease, in all women," they wrote.
(I do some work for pharma companies, not including any HRT products. My old firm, through whom I do some work, does HRT work.)
That's the title of a new Writ column by Tony Sebok, addressing the pants case and Judge Bork's slip-and-fall case. The whole thing is well worth reading; his conclusion (broader than either part), in part, follows:
The problem, however, is that the real world of litigation has produced a situation where it can take a lot of time and money to cut through all the bluster that makes up so much of a plaintiff's initial allegations. The Chungs had to spend thousands of dollars whittling Pearson's case down to its real core. Now, they will have spend thousands more attempting to prove that Pearson is a liar[.] In turn, the Yale Club will have to spend thousands challenging Bork's claim that he should be able to collect $1 million in punitive and compensatory damages, before his lawsuit is finally reduced to the minor slip and fall case that seems to lie at its core.
The fact that plaintiffs and defendants can use lies and exaggerations tactically in litigation may seem commonplace to lawyers, but I think the public is right to be irate when they see these tactics being used, in particular, by judges who choose to become litigants. The public is upset, I think, because they expect judges to be part of the solution to the problem of dishonest litigants, not part of the problem. They expect - reasonably so - that judges should set a high standard, not lower themselves to the level of the typical litigant.
The civil justice system can only work if litigants monitor themselves, refraining from exploiting the system's slow and clumsy mechanisms for ferreting out claims that are not true. By refusing to keep their claims and damage demands to a minimum that reflects the true core of their cases, Judges Pearson and Bork help erode public confidence in the civil justice system and weaken the very institution they swore to uphold.
Wednesday, June 20, 2007
Two Seattle lawyers have filed a class action complaint (available via WSJ law blog) against Avvo, a lawyer rating website founded by a lawyer. The suit brings claims under Washington's Consumer Protection statutes, alleging that the website constitutes "unfair and deceptive conduct."
Justices Ginsburg and Alito apparently are part of the proposed class, defined as "All persons licensed to practice law in the United States and who are listed on the Avvo site and given a numerical rating."
(Thanks to WSJ Law Blog for the tip).
Last December, New York City passed a regulation requiring certain restaurants (mostly fast food establishments) to list calorie content on menus and menu boards by July 1st. (NYC has an info book on the new regulation explaining the details). (This was part of the trans-fat ban passed at the same time).
And now, as CBS News Reports (via an AP story), the New York State Restaurant Association has sued NYC in federal court to stop the regulation from taking effect.
Tuesday, June 19, 2007
In the comments to this post, someone identifying themselves as being with TheLegalAdvocate.com denies that his company sent the Avandia spam I received. So far as I can tell, that's probably true; the whois information for the domains do not match up, and TheLegalAdvocate.com's case list does not include Avandia. And TheLegalAdvocate.com looks closer to being legal direct marketers and/or a referral system than LegalLeadsHost.com, the apparent actual sender of the spam.
Another interesting Times piece about Chinese-made defective products, this time focusing on toys. Though I read all of the recall notices from the CPSC, I had not specifically noticed that every one of the 24 kinds of toys recalled this year originated in China. Given the market share, it's not a completely shocking fact, but it's at least notable. This also caught my eye:
Just in the last month, a ghoulish fake eyeball toy made in China was recalled after it was found to be filled with kerosene.
First: Yuck. Second: Doesn't the Restatement have almost that precise example (other than the "ghoulish fake eyeball" part) as an illustration, maybe in the deterioration section? I'm in an airport when writing this and -- I hope this won't disappoint any readers -- I don't travel with the Restatement in hand, but I very strongly remember a ball-filled-with-poison example.
On Friday, the New Jersey Supreme Court rejected a public nuisance claim against manufacturers of lead paint: In re Lead Paint Litig. The court found that the claim, at its core, was a products liability claim, stating: "We cannot help but agree with the observation that,were we to find a cause of action here, "nuisance law" would become a monster that would devour in one gulp the entire law of tort." (Op. at 50).
The abstract states:
The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages comprise about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by two years by the early offer reform, and litigation costs will be reduced by an average of $100,000 to $200,000 per claim.
Monday, June 18, 2007
The JPML Has Been Listening to the Hold Steady a Lot or Maybe They Just Want to Visit the Mall of America
...because they'll be next sitting [PDF] in the very fancy ceremonial courtroom in which I clerked in the District of Minnesota. Minnesota is lovely in the summer if you can avoid being carried off by mosquitoes.
The only tort-related item of interest on their agenda:
MDL-1856 -- In re Depo-Provera Products Liability Litigation
And that's it in terms of clearly tort-related items. There are some marketing items that might be related to tort cases - not sure - but overall, it seems like they're really trying to get out early.
What might they be heading to? Some thoughts:
- First Avenue has "Ritmo Caliente" night in the main room with Latin dancing and two-for-one drink specials. The night before, Steel Pulse is playing the main room, so maybe the panel is just expecting to be tired for the day of hearings.
- The Mounds View Community Theatre will be finishing up its run of Oklahoma! at the Irondale Theater. (By coincidence, one of my favorite Twin Cities bands, Arcwelder, created a font called Irondale. Arcwelder, however, is not playing, either during the panel's visit or in the pit orchestra for Oklahoma!)
- The St. Paul Saints, which provides just about the most fun you can have watching minor league baseball, will be playing the Sioux City Explorers.
I hope the panel enjoys all that the Cities have to offer.
Sunday, June 17, 2007