Monday, January 12, 2015

Who Cares About Negligence?

While going through some old CDs, I stumbled upon an essay I wrote for college on April 3, 2003.  The title was particularly intriguing, and it might be the best part of the work - although I will allow you to be the judge.  I cannot recall for what or whom it was written or what grade it got.
Since I haven't posted anything new here in a while ... here is something.

Who is responsible for consumer negligence?  If we can define a negligent consumer as one who is irresponsible, then by definition it is not the company.  We also cannot always hold manufacturers responsible for so-called “foreseeable but unintended harm” caused by their products.  So, that leaves us in a legal no-man’s land of product liability, which seems to be precisely where we belong.
          The 2003 version of the Porsche 911 Turbo is advertised as a car to “leave the rush hour behind.”  According to the company, the car has a top speed of 190 miles per hour.  It comes with such luxuries as Porsche Stability Management, VarioCam Plus and something called a Tiptronic S transmission, whatever that is.  The car develops 415 horsepower and will get you to 60 MPH in less than 4 seconds.[1]
          Under what conditions does the car go from being a mode of transportation to an implement of destruction?  Surely one can get from point ‘A’ to point ‘B’ in a vehicle with far less technology, so can we say that Porsche encourages drivers to risk their lives by designing the car for such extravagant performance?  Combine the Porsche with the latest Nokia cellular phone and the combination could prove to be disastrous, even though the manufacturers of each product had no intention of providing such a calamitous situation.
          The National Highway Traffic Safety Administration (NHTSA) says that driver distraction from various causes plays a role in 20% to 30% of all motor vehicle crashes.  Research has identified three different ways in which the use of a mobile phone can distract a motorist – visual, biomechanical and cognitive.  Try using a phone while driving 190 MPH.  Pay attention, because you won’t be on the road for long.  Even at legal speeds, the combination can be hazardous to your health, but our legislators have yet to help.  In 2001, legislation to reduce mobile phone use by drivers was proposed in 43 states, but passed in only New York.[2]
          Gray areas abound in either the Porsche or cell phone issue.  If we are to rely on consumers’ good sense, we will be disappointed with the results.  In the cases of manufacturer responsibility, we must rely on the law to be our guide.  Porsche should not be held liable for an accident that occurs in excess of the legal speed limit and Nokia should not be held liable for a similar accident in which the driver was distracted by the use of a cell phone.  They should only be responsible for product defects, not user defects.  If the intervening actions of the user result in harm, the manufacturer should not be held liable.
          If so, then all sorts of product liability cases would result.  Knives, baseball bats, chairs and rope are all capable of doing harm, but it is not their intended purpose.  If someone is tied to a chair, beaten with a bat and stabbed, those actions are so far removed from sitting, pulling, playing baseball and carving a turkey that any liable suit should be deemed frivolous.  Certainly the intervening actions usurp the products intended purpose.
          Should the auto industry and cell phone manufacturers decide to lobby governments to limit or eliminate such lawsuits, we would all benefit. Surely a great portion of the cost of such products is going toward attorney’s fees, so any effort to limit the amount of a settlement should keep consumer costs down.  Such actions would be legitimate in the cases of products whose original intent was not to cause harm.
          Gun manufacturers have a responsibility to the consumer merely because the gun has no purpose other than destruction.  Other products like cell phones or kitchen appliances are a benefit to society, and as such, any liability would be limited to product defects.  A manufacturer cannot be held responsible if someone throws a toaster into a bathtub filled with water.  One would hope that the cost of lobbying for such limitations would not outweigh the potential cost savings to consumers.
          I’m sure the National Rifle Association has a powerful lobby in Washington working to assure that gun manufacturers can continue to develop and sell guns with little regard to any moral responsibility.  As does the tobacco industry, whose products are often as harmful, albeit not as immediately.  Both industries lobby heavily to protect their interests.  However, it usually falls to consumers (or their lawyers) to try to force companies to make their products safer.  Unfortunately, all we get are “low tar” cigarettes and “safer” guns.  Hardly a panacea.
          What we are left with are more laws on the books and lobbyists who care more about profits than people.  I can only wonder why cigarettes and guns can continue to be sold while other products that cause far less harm (anything less than death qualifies) are prohibited from being sold.  Perhaps the same folks lobbying for tort reform could push for lobbying reform.  In my perfect world, special interest groups would remain special, and their interest in products that cause harm would be theirs alone.  My gut tells me that if our legislators were tied only to the interests of their constituents, guns and cigarettes would be the least of our concerns.  Instead, they are the cause of excess legislation and destruction.

[2] “Cell Phones and Driving:  How Risky?”, David Ropeik & George Gray, Consumers Research, Jan. 2003, Vol. 86, No. 1

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