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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