Word of the Day: Litigious
Sunday, August 12th, 2007
litigious (adj.): prone to engage in lawsuits
My fellow Americans,
We’ve all become used to the phenomenon of the self-pitying American “victim” suing businesses big and small for their own accidents, misfortunes, or just plain stupidity. I know the first time I became conscious of this tendency of our national character was the McDonald’s coffee case (formally Liebeck v. McDonald’s Restaurants, No. D-202 CV-93-02419, 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. Aug. 18, 1994) [paralegal's note: there was never a published opinion in this case, and the foregoing citation is standard Bluebook format for a case whose opinion is only available on Westlaw]). Settlements and judgments of this kind have encouraged a growing stream of marginally frivolous product liability lawsuits and steadily increasing jury awards, presumably due to the same psychological phenomenon that causes the poor and middle class to decry estate taxes — because someday, the average Homo americanus hopes to be in a position to benefit from the same treatment.
A side result of this tendency in our society is the promulgation of increasingly ludicrous product disclaimers, designed to warn the customer about every conceivable danger one might imagine resulting from the product’s use. Today’s irons say “Do not iron clothes while on body,” Halloween costumes warn that “Cape does not enable wearer to fly,” and packages of peanuts say “Caution: Contains peanuts.” This is a state of affairs that we’ve grown accustomed to.
Today, I was at the hardware store having a couple of keys cut, and I noticed a product disclaimer that, while obviously meant for liability limitation, was aimed at people who were not so much stupid as absent-minded, and it was just so damn polite and helpful that I had to smile. On a small safe, designed for home use, was a label that read, “Be careful not to store key inside safe!” Duly noted, guys, duly noted.
“Do not blow dry your hair while in the shower.”
On kids cough meds. “Do not drive heavy machinary.”
My fav…. “Cards in this game do not really talk like on tv.” “This Plant is not meant to be eaten. Please don’t eat plant.” “Wand really doesn’t do spells.”
My personal favourite was the warning chiseled into the side plate of those old cloth-towel-dispenser hand-dryers (you know, it was a long feed of dishtowel and clanked loudly)…
“Misuse of product can result in injury or death.”
‘Cuz that means some motherfucker went so far as to punch his own clock on the damn thing. (Otherwise, why not just warn against the potential bodily harm?) I just don’t even see how that’s physically possible. Ah, the triumph of the human spirit!
By the way, do you think the”frivolity” of the McDonald’s coffee case is mitigated by the fact that the woman in question initially only asked for McD’s to cover the medical cost ($8000) of the skin grafts she needed because the coffee was so hot it melted her epidermis?
There are two interconnected but separate elements to what’s referred to as “frivolous” litigation: first, the claim itself, and its level of spuriousness (and yes, I would agree that the absurd heat of the McD’s coffee lessons the frivolity of the woman’s claim compared to, say, someone who burned himself because there was no sign warning him that bronze statues sitting in the sun get hot); and second, the outlandishness of the jury award, which indirectly encourages frivolous litigation by encouraging a lottery-winner mentality.
The other famous case which I didn’t cite in this post is BMW v. Gore, 517 U.S. 559 (1996), in which a BMW buyer discovered his “new” car had been repainted. He sued for $4,000 and was awarded $4 million in punitive damages, which led to the Supreme Court limiting possible jury awards. It’s that kind of award which makes companies fearful of liability and thus causes these disclaimers — even if there has been no prior frivolous suit to cue the disclaimer. (By the same token, I’m sure somebody in the legal department at Germ-Infested Towel Dispensers, Ltd. invented, through persistence and wild imagination, a scenario in which someone misused the product and subsequently kicked the bucket and figured, “well, might as well throw that one in there too.”)
LOL…. Sorry I can’t get the mental picture of someone kicking the bucket over a towel dispenser. Can you imagine his grave stone?!?
Here lies Jack we knew him well. Damn those towel dispensers!