Goddamn we need a loser pays rule!!!

[VF5SS]

There's definitely something weird with this case.

I think its odd that they do not realize that those wide windows are supposed to be a safety feature. I mean, they're supposed to be wide enough to allow the egress of children in an emergency.

[Perinquus]

The problem with this whole thing is, it's the kid's fault he got himself killed. Even if you allow that the driver should not have swerved to avoid a raccoon (and trying to avoid hitting a live animal may be an instinctive reaction he took without thinking), the fact is that the kid simply should not have been sticking his head out the window. School children are always warned not to do that, and I've never heard of a bus driver who didn't make them stop if he/she sees them doing it. The kid did it anyway, and it's no one's fault but his own. I'm sure the driver of this bus would have made him knock it off if his attention hadn't been distracted at that particular moment.

This is why we need a loser pays rule (even though I know we'll likely never get one), to avoid frivolous or meritless lawsuits like this. Every time someone gets hurt or killed nowadays, someone wants to sue. And as I said, the danger of facing a really slick lawyer or a really gullible jury is real enough that a lot of times the defendant will settle, and he shouldn't have to. The awards plaintiffs get in cases like this sometimes impose huge costs on individuals or businesses, and the problem is, you can drive costs up to the stratosphere, and impose all sorts of regulations, but stupid people will still find ways to win Darwin Awards.

[Xenophobe3691]

Did anyone notice that they're suing at the capped amount allowed for damages? Shows what they're really after...

[Darth Wong]

The problem with this whole thing is, it's the kid's fault he got himself killed.

No, it is partially the kid's fault. Absolving the driver of guilt is utterly absurd if he actually swerved and hit a tree with a bus full of kids in order to avoid a goddamned raccoon.

Even if you allow that the driver should not have swerved to avoid a raccoon (and trying to avoid hitting a live animal may be an instinctive reaction he took without thinking), the fact is that the kid simply should not have been sticking his head out the window. School children are always warned not to do that, and I've never heard of a bus driver who didn't make them stop if he/she sees them doing it. The kid did it anyway, and it's no one's fault but his own. I'm sure the driver of this bus would have made him knock it off if his attention hadn't been distracted at that particular moment.

None of this changes the fact that the bus driver was negligent. The kid does not have a very high duty of care in this case, particularly since he was mentally handicapped. The driver, on the other hand, does this for a living and is supposed to know how to drive a fucking bus.

This is why we need a loser pays rule (even though I know we'll likely never get one), to avoid frivolous or meritless lawsuits like this.

The lawsuit's wording is very strange, but it's ridiculous to say that the school board is not at fault. Vicarious liability means that if the driver was incompetent (which he obviously was if he swerved off the road to avoid a raccoon), he was negligent, and this negligence resulted in injury.

Every time someone gets hurt or killed nowadays, someone wants to sue. And as I said, the danger of facing a really slick lawyer or a really gullible jury is real enough that a lot of times the defendant will settle, and he shouldn't have to. The awards plaintiffs get in cases like this sometimes impose huge costs on individuals or businesses, and the problem is, you can drive costs up to the stratosphere, and impose all sorts of regulations, but stupid people will still find ways to win Darwin Awards.

None of these prejudicial generalizations alter the definition of "negligence".

[Perinquus]

The problem with this whole thing is, it's the kid's fault he got himself killed.

No, it is partially the kid's fault. Absolving the driver of guilt is utterly absurd if he actually swerved and hit a tree with a bus full of kids in order to avoid a goddamned raccoon.

The driver didn't hit the tree. He veered close enough to it that the kid caught his head in the branches - because he had his head outside the vehicle. I grant you, the driver shouldn't have swerved. But if the kid hadn't been doing something stupid that he almost certainly knew he wasn't supposed to be doing, he wouldn't have got himself killed. The lion's share of blame goes to the kid.

Even if you allow that the driver should not have swerved to avoid a raccoon (and trying to avoid hitting a live animal may be an instinctive reaction he took without thinking), the fact is that the kid simply should not have been sticking his head out the window. School children are always warned not to do that, and I've never heard of a bus driver who didn't make them stop if he/she sees them doing it. The kid did it anyway, and it's no one's fault but his own. I'm sure the driver of this bus would have made him knock it off if his attention hadn't been distracted at that particular moment.

None of this changes the fact that the bus driver was negligent. The kid does not have a very high duty of care in this case, particularly since he was mentally handicapped. The driver, on the other hand, does this for a living and is supposed to know how to drive a fucking bus.

The kid was not mentally handicapped. According to the article, his IQ was described as "low average" or "borderline". Low average is not that dumb. So he had enough sense that he certainly should have known better. He certainly had enough sense to comprehend the meaning of a simple instruction like "don't stick body parts out the window", and he was almost certainly given such instructions at some point.

This is why we need a loser pays rule (even though I know we'll likely never get one), to avoid frivolous or meritless lawsuits like this.

The lawsuit's wording is very strange, but it's ridiculous to say that the school board is not at fault. Vicarious liability means that if the driver was incompetent (which he obviously was if he swerved off the road to avoid a raccoon), he was negligent, and this negligence resulted in injury.

If this lawsuit, as it is worded, succeeds the school will be penalized not only for having a driver who made a terrible error, but for "allowing the windows wide enough for Raul to stick his head out". Guess what? Schools don't design the buses. This means a cost may be imposed on companies like International, Ford, etc. who will then have to go back and design newer, narrower windows, and costs on schools across the country, to retrofit older buses or buy newer "safer" ones, if they want to protect themselves from similar liability. The city and state will apparently also be hit for "failing to properly design and maintain the road". this means further costs. And all this because one kid did something obviously stupid, that anyone with a little common sense would know not to do.

Sorry, but this still does not strike me as fair. Seeking damages from the school for the actions of the driver might make some kind of sense. But this looks like a pretty obvious attempt to reach into as many of the deepest pockets they can associate with the incident.

Every time someone gets hurt or killed nowadays, someone wants to sue. And as I said, the danger of facing a really slick lawyer or a really gullible jury is real enough that a lot of times the defendant will settle, and he shouldn't have to. The awards plaintiffs get in cases like this sometimes impose huge costs on individuals or businesses, and the problem is, you can drive costs up to the stratosphere, and impose all sorts of regulations, but stupid people will still find ways to win Darwin Awards.

None of these prejudicial generalizations alter the definition of "negligence".

Nor does that alter the fact that the kid did something stupid, and the parents are seeking to cast blame as widely as they possibly can. They want money. Given how much they are seeking, and the multiple sources from whom they are seeking it, it's a frivolous lawsuit.

[Jadeite]

I remember this from last year. The road in question can barely fit vehicles side by side on it, and the tree the kid was decapitated by is literally right on the side of the road. The county had been supposed to remove it because it was a hazard but never did. Also, the bus driver was going keep going and hit the racoon, but a bunch of girls on the bus started screaming at the driver not to hit it, and he/she gave in and went around.

[Jadeite]

Bah, curse the lack of an edit! By last year I mean last school year.

[Darth Wong]

The driver didn't hit the tree. He veered close enough to it that the kid caught his head in the branches - because he had his head outside the vehicle.

How the fuck do you veer so close to a tree that something sticking maybe a foot out of the window gets jammed against it, without having hit anything? There's no way he avoided contact between some part of the tree and that bus.

I grant you, the driver shouldn't have swerved. But if the kid hadn't been doing something stupid that he almost certainly knew he wasn't supposed to be doing, he wouldn't have got himself killed. The lion's share of blame goes to the kid.

<snip more repetitions of this mentality>

You obviously still fail to comprehend the concept of "duty of care" as it applies to negligent liability.

Duty of care is at the heart of all negligent liability cases, and indeed, the entire underpinning of the very concept of negligence. To completely ignore it is, as I have noted, utterly absurd. It doesn't matter whether the kid should have known better; the point remains that the bus driver was negligent.

This is like saying that if a drunk hits and kills a jaywalker, the drunk isn't really at fault because the jaywalker should have known better.

[Darth Wong]

I remember this from last year. The road in question can barely fit vehicles side by side on it, and the tree the kid was decapitated by is literally right on the side of the road. The county had been supposed to remove it because it was a hazard but never did. Also, the bus driver was going keep going and hit the racoon, but a bunch of girls on the bus started screaming at the driver not to hit it, and he/she gave in and went around.

If the tree is that close to the road, the county may indeed be negligent. They are reponsible for maintaining safe roadways. But the driver would still be negligent for listening to the screaming of teenaged girls over the lessons from driving school.

[White Haven]

Mike, yes, the driver was negligent, but he was not the one targetted by the suit, so that, in this case, is academic. The man could have been Evil incarnate, and it would still be irrelevant, because he wasn't targetted. Your argument is valid, but beside the point

[Elfdart]

In point of fact, there already is a "loser pays" provision on the books if a case is found by the judge to be without merit. It's seldom enforced for the same reason it's damn near impossible to get a shyster attorney disbarred: the good ole boy system. Adding another "loser pays" law to the books won't do any more than the one we already have.

The driver is clearly at fault for swerving the bus. He was driving for the school district, so the district is ultimately liable. Wong's analogy about running over a jaywalker is on target here. Whatever the kid did pales in comparison to what the driver did -which could have killed more than one student. And for a fucking raccoon.

And yes, buses will lose balance @ 30mph on a turn. They are more top-heavy than pickup trucks, which also have problems at that speed if forced to maneuver.

[Perinquus]

You obviously still fail to comprehend the concept of "duty of care" as it applies to negligent liability.

Duty of care is at the heart of all negligent liability cases, and indeed, the entire underpinning of the very concept of negligence. To completely ignore it is, as I have noted, utterly absurd. It doesn't matter whether the kid should have known better; the point remains that the bus driver was negligent.

This is like saying that if a drunk hits and kills a jaywalker, the drunk isn't really at fault because the jaywalker should have known better.

I comprehend the concept of duty of care quite well, which is why I granted that it might make some sense to go after the driver and the school district that employed him. The problem is they are spreading their net much wider than that, and extending liability where it does not belong.

And the kid is still an idiot for sticking his head out the window, and at his level of intelligence, he had no excuse for not knowing that it was a stupid thing to do. The lion's share of blame still belongs with him.

[Perinquus]

In point of fact, there already is a "loser pays" provision on the books if a case is found by the judge to be without merit. It's seldom enforced for the same reason it's damn near impossible to get a shyster attorney disbarred: the good ole boy system. Adding another "loser pays" law to the books won't do any more than the one we already have.

That turns out not to be the case. If there is such a law already on the books, it's recent, according to the source I have found:

Reform attorneys’ fees in Ohio

Which indicates that as of 1999, at least, Alaska was the only state in the Union to use an English style "loser pays" rule. The article also indicates that the existence of that rule in Alaska has worked to deter frivolous lawsuits, and is beneficial.

Here's another article with some interesting points:

Procedural Tort Reform

The tort systems of Commonwealth nations other than New Zealand remain basically similar to the American system, but legal scholars in both the United States and the Commonwealth have taken note of several damaging features peculiar to the American system: (1) civil jury trials prevail in the United States, but have been largely abolished elsewhere; (2) only in the United States is the losing party not responsible for the legal fees and costs of the winner; and (3) American law, unlike the law in most Commonwealth jurisdictions, puts no limits on contingency fees. All of these eccentricities encourage speculative tort litigation, which is perhaps the biggest problem facing the American tort system.

One can define a speculative claim as one whose success depends not on the intrinsic legal merits of the claim, but on fortuity. For example, in many toxic tort and product liability cases, the plaintiffs' causation theory is directly contrary to the overwhelming weight of the scientific evidence. These cases are nevertheless brought by plaintiffs' attorneys who know that the cases have a high economic value because an occasional jury can be persuaded to issue a verdict contrary to the scientific evidence.

A good example of this practice comes from the antics of the current Democratic vice presidential candidate. John Edwards was a trial lawyer before he became a Senator and now a VP candidate. In some of his cases, he argued that brain-damaged babies became brain damaged through the negligence of doctors who, in certain cases failed to have these babies delivered by Caesarian section.

So Edwards, a lawyer skilled at playing on the jury's emotions, was able to take a wrenching human tragedy, and sue a well-insured defendant. Edwards is estimated to have collected $60 million in damages from such cases. In the intervening years, a lot more study has been done, and validated by medical authorities in the U.S. and in countries as far away as Australia. As it turns out, there is no apparent correlation between Caesarian operations and the prevention of brain-damage in babies. Yet such operations have now increased greatly not to protect babies from brain damage, but to protect doctors from lawsuits. And thus the cost of health care is driven up, not only by the need to cover the expense of paying out huge damage awards, but also by the increase in the number of costly medical procedures that are unnecessary for the patients' health but imperative to keep doctors from being ruined financially.

This is the primary reason we need this kind of tort reform to discourage frivolous lawsuits: nothing is free. These kinds of suits impose all sorts of costs on the rest of society.

The driver is clearly at fault for swerving the bus. He was driving for the school district, so the district is ultimately liable. Wong's analogy about running over a jaywalker is on target here. Whatever the kid did pales in comparison to what the driver did -which could have killed more than one student. And for a fucking raccoon.

Mike's analogy is not on target here - or at least not exactly. The reason is that not all transgressions are equal. The drunk driver deserves more blame than the bus driver in this case, and the hypothetical jaywalker may deserve less.

Consider the fact that swerving to avoid an obstacle in the road is an instinctive reaction. An obstacle suddenly appears and you have a split second to react. Since it is instinctive to try and avoid potentially damaging collisions, the action to swerve may be taken entirely without conscious thought. It's a reaction you have to actually train yourself to override. Contrast this with the drunk who spends a few hours quite deliberately getting tanked up, and then makes the equally deliberate decision to climb behind the wheel, either because he doesn't give a damn that he's endangering peoples' lives, or because he stupidly underestimates his level of impairment. In either case, one decision is made quite consciously and deliberately over time, and the other is made in a split second, and may be made entirely without conscious thought. I think it is pretty obvious that the level of blame attaching to each of these decisions is quite different.

And as far as the jaywalker is concerned - jaywalking is not something that usually descends to the level of stupidity of sticking your very vulnerable head out of a moving vehicle. You can jaywalk on a street when there's little to no traffic and it's not very dangerous at all, and hence, not especially dumb. Even in heavier traffic, if you are paying attention, the danger is not all that great. By contrast, sticking your brain pan out of a moving vehicle is never a good idea.

In neither case does the blame fall entirely on one of the parties involved, but the blame is not equally divided in both cases either.

[Elfdart]

You're confused, Perinquus. There has ALWAYS been the option of forcing the plaintiff to pay the defendant's court fees if the judge finds the case without merit. A blanket "loser pays" system is just another attempt -along with so-called tort reform -to fuck over anyone who can't afford an attorney on retainer.

[Alyrium Denryle]

You're confused, Perinquus. There has ALWAYS been the option of forcing the plaintiff to pay the defendant's court fees if the judge finds the case without merit. A blanket "loser pays" system is just another attempt -along with so-called tort reform -to fuck over anyone who can't afford an attorney on retainer.

If I were a judge... I would be utterly ruthless in that regard...

"You are suing... because you burned your penis on a laptop after holding it on your lap for 9 hours? Get the fuck out of my courtroom, judgement goes to the defendant, plaintiff must pay defendents legal fees and is fined $1000 for wasting the court's time"

[Darth Wong]

I comprehend the concept of duty of care quite well, which is why I granted that it might make some sense to go after the driver and the school district that employed him. The problem is they are spreading their net much wider than that, and extending liability where it does not belong.

It may well be that they're spreading their net too wide; I haven't seen the details of the case. However, to claim that the entire case is utterly "meritless" as you have done is simply wrong.

And the kid is still an idiot for sticking his head out the window, and at his level of intelligence, he had no excuse for not knowing that it was a stupid thing to do. The lion's share of blame still belongs with him.

It's not about blame; it's about negligence. This is what I keep trying to explain.

[Perinquus]

You're confused, Perinquus. There has ALWAYS been the option of forcing the plaintiff to pay the defendant's court fees if the judge finds the case without merit. A blanket "loser pays" system is just another attempt -along with so-called tort reform -to fuck over anyone who can't afford an attorney on retainer.

And the system we have has encouraged frivolous, speculative lawsuits, and this has made Americans the single most litigious people on earth today. Take a look again at the second article I cited. America is the only country whose legal system is based on the British model where the losing party not responsible for the legal fees and costs of the winner. They have this rule in other commonwealth countries, it works quite well, and I see no evidence that acts "to fuck over anyone who can't afford an attorney on retainer". What it does do is discourage the kind of frivolous suits that end up imposing all kinds of costs on the rest of society - that fucks people over.

[Perinquus]

I comprehend the concept of duty of care quite well, which is why I granted that it might make some sense to go after the driver and the school district that employed him. The problem is they are spreading their net much wider than that, and extending liability where it does not belong.

It may well be that they're spreading their net too wide; I haven't seen the details of the case. However, to claim that the entire case is utterly "meritless" as you have done is simply wrong.

And the kid is still an idiot for sticking his head out the window, and at his level of intelligence, he had no excuse for not knowing that it was a stupid thing to do. The lion's share of blame still belongs with him.

It's not about blame; it's about negligence. This is what I keep trying to explain.

Fine, so sue the driver and the school district. What makes the suit in this article frivolous and speculative is that the parents are going after people who have a very tenuous connection to the whole thing, and are pretty obviously doing it because these people have deep pockets.

[Perinquus]

You're confused, Perinquus. There has ALWAYS been the option of forcing the plaintiff to pay the defendant's court fees if the judge finds the case without merit. A blanket "loser pays" system is just another attempt -along with so-called tort reform -to fuck over anyone who can't afford an attorney on retainer.

Still need proof we have a problem with frivoulous lawsuits?

GM Wins In Derrick Thomas Wrongful Death Trial

A guy drives recklessly in icy condition, while not wearing a seatbelt, loses control of his vehicle (quel surprise), and is ejected from the vehicle when it rolls over, and his family sues General Motors.



You know, I'm truly sorry for Derrick Thomas' mother. I truly am. But it's not GM's fault that her son died, it's her son's fault. If he'd been driving the speed limit, as he was supposed to (if anything, on icy roads, you should be going slower); and wearing his seatbelt, as he was supposed to, he might be alive today.

This is the kind of case that should never even be taken to court. It takes up the court's time and costs the taxpayers money. If we had a loser pays rule then this sort of thing would be greatly curtailed. It needs to be, because it's nonsense.

[Perinquus]

This is the kind of case that should never even be taken to court. It takes up the court's time and costs the taxpayers money. If we had a loser pays rule then this sort of thing would be greatly curtailed. It needs to be, because it's nonsense.

I also forgot to add, the cost of paying their legal fees, even when they win the case, costs consumers in the end, because companies like GM end up passing those costs on to us in the form of higher prices for their products.

[Rogue 9]

I have to agree with Andrew. Swerving to avoid an animal is stupid, irresponsible, and was one of the first things I was warned not to do in my driving class as well.

Well, it depends on the animal...
You can easily run over smaller animals, like foxes or rabbits. But going against a full-grown boar or deer for instance can do some serious things to you and and your car...

Got a picture of a roadkilled deer that looks like it took a flying leap at the car. It's right through the windshield and sitting in the passenger seat with its back legs hanging through the glass onto the hood. I know I would rather have swerved. But for a raccoon, this is ridiculous.

[Durandal]

The driver is clearly at fault for swerving the bus. He was driving for the school district, so the district is ultimately liable.

Don't be absurd. This is clearly a case of a bad apple bus driver. The president, er, district, cannot be held responsible for the actions of those under it.

Sorry sorry, I know, thread hijack, but I couldn't resist.

[neoolong]

The driver is clearly at fault for swerving the bus. He was driving for the school district, so the district is ultimately liable.

Don't be absurd. This is clearly a case of a bad apple bus driver. The president, er, district, cannot be held responsible for the actions of those under it.

Sorry sorry, I know, thread hijack, but I couldn't resist.

Unless of course the driver had a history of bad driving that the school knew about but ultimately did nothing about.

But that didn't seem to be the case here.

[Korvan]

I don't think the bus driver actually swerved at all. Given that the kids had plenty of time to notice what was happening, rush to the windows and yell at the bus driver not to kill the raccoon, I'd wager that this incident happened at low speed and the bus just went around the racoon.

We know that the road was narrow and that a tree was pretty damn close to the side of the road. What we don't know is if the bus actually hit the tree or just came close enough for a protruding head to get, well, squashed off.

If this is the case, then the question becomes Is it negligent to drive around an obstruction in a control manner? I know that if I was able to safely drive around an animal in the road, I would do so. I would also assume that my passengers aren't fool enough to have bits (especially important ones like their head) sticking out the windows.

[neoolong]

I don't think the bus driver actually swerved at all. Given that the kids had plenty of time to notice what was happening, rush to the windows and yell at the bus driver not to kill the raccoon, I'd wager that this incident happened at low speed and the bus just went around the racoon.

From what Jadeite said, it would seem that the driver saw the thing and was planning on running it over. And then he listened to a bunch of girls, and by that time he would have to swerve or something.