The Interior Designer Did It!

December 20, 2017 by Samantha Bates in Everyday Torts

Imagine, if you will, a tea party. Not a Boston Tea Party, or a political Tea Party, but a good old-fashioned, civilized tea party. It is a meeting of friends and unstated enemies over tea, crumpets, and jam. The scene is a stately manor in the hills of Northumberland. In attendance are all the ladies of high society, dressed in their Sunday best despite it being Wednesday. Yes, this is a party of the landed gentry, a place to gossip, a place judge, and a place to stab one another in the back. The room is immaculate and the walls are covered with lustrous green wallpaper and gilded gold trim. Servants wait in attendance to answer the ladies’ every need, overseen by their leader, the butler. He stands along the green wall like a statue, observing but not listening to the scandals of the day.

Unfortunately, the butler does not have many days left to observe, because he is being poisoned. And he will die a very unpleasant death soon enough. The local doctor will rule the cause of death as an unusually bad case of gastroenteritis. As I said, an unpleasant death. And so the question we must all ask is, who killed the butler? Did he hear something he wasn’t supposed to hear? Were there upstairs/downstairs issues at play? Or was there perhaps something amiss with his staff? Later analysis will reveal that the butler did not have a contagious gastroenteritis but instead was the victim of a long-term poisoning by arsenic. Neither the ladies of the room nor the house staff will be implicated, except perhaps for the interior designer, because it turns out that the butler was poisoned by the green wallpaper that rubbed against his clothes hour after hour, day after day. How on earth could the wallpaper be the culprit, you ask? Because the dye used to color that wallpaper green was infused with arsenic.

This may sound more fantastical than the notion that one of the guests poisoned the butler, but this was a real scenario. Green wallpaper in the 19th century was, in fact, largely made with arsenic. The off-gassing of that arsenic literally and actually killed people. And it was not just green wallpaper that arsenically poisoned people in the 19th century, as the heavy metal was used in a wide variety of everyday products. Products such as fabric, makeup, cardboard boxes, candles, oil paint, venetian blinds, soap, etc etc etc (a list from the Poisoner’s Handbook, by Deborah Bloom!) all contained arsenic.

It wasn't that the Victorians thought that arsenic was harmless, as evidenced by this cartoon from the humor publication Punch. But producers of arsenical green dyes insisted, convincingly to many, that the product was safe if not ingested. William Morris, the namesake of arsenical wallpaper company Morris & Co, proclaimed that any allegation that arsenical products were dangerous was just rampant scaremongering. As he wrote to a friend in 1885, the “doctors were bitten as people were bitten by the witch fever.”

The history of business is littered with quotes just like this, from executives and others with a financial stake in something secretly dangerous. And statements like this surely have contributed to countless deaths and other maladies. We have always been surrounded by things that will do us ill, things that we would surely do without if we only knew of the dangers that lurk within. Torts, and products liability law in particular, can play a pivotal role in exposing the true nature of that which we think of as safe.

Perhaps the best-known example of this is asbestos. Asbestos is an unusual product, a fibrous mineral that was widely used as a flame retardant, insulator, and other building material for a very long time. If you’ve watched television in the middle of a weekday, you’ve probably heard ads from questionable law firms pointing out that asbestos exposure causes mesothelioma, a very unpleasant and deadly cancer. And just like with arsenical wallpaper, asbestos producers proclaimed that any evidence that their product was dangerous was flawed.

I actually once had the good fortune of visiting the town Asbestos, Quebec, home of one of the world’s largest asbestos mines. It was a bizarre place where it felt almost like the inhabitants had never heard about the asbestos/cancer link. The town was so out of sync, in fact, that Comedy Central’s the Daily Show once did a segment interviewing/mocking the mayor as he tried to defend the town’s namesake product. It turns out that despite being largely banned in Canada, the town’s mine was exporting asbestos to other countries, like India, that still allow the use of asbestos in building projects. Thankfully a shift in power between political parties in 2012 caused the Quebec government to cancel a $58 million loan to revive the asbestos industry and instead pledged to help the mining community diversify its economy. It is amazing that, despite our now-longstanding knowledge that asbestos is deadly, the mine in Quebec only closed in the last few years.

Both the asbestos and arsenical wallpaper examples make me seriously question what products that are common in our 2017 lives will someday be revealed to be horribly dangerous. It is inevitable, isn’t it? Every once in awhile we hear unverifiable concerns about the dangers of cell phones, but I suspect the toxin of our lives will be something we never saw coming. Maybe it’s in the water we drink, or the bottles we drink it from. Maybe it’s in our mass-produced clothing, or in an additive in all of our toothpaste. The likelihood is that there are almost certainly MANY things that we see as safe that are in fact dangerous. And just like arsenical wallpaper and asbestos, the manufacturers and distributors of those goods will likely have advanced warning about the threats they are peddling. But the threats to their bottom line will likely keep it under wraps until some bold plaintiff will bring a tort suit and unravel the whole thing.

-Ellis and Acton

Now You Seesaw, Now You Don't.

December 05, 2017 by Samantha Bates in Everyday Torts

Very few objects say “tort law” more than the municipal yellow warning sign. Hidden driveway. Deaf children. Icy bridge. These words are familiar to drivers, but perhaps not as much as the monochromatic illustrations that we associate with them. Our yellow warning signs are iconic and change little over time, but in one particular case, they show an activity that has been rendered obsolete due to tort law. I’m speaking of the sign that warns of a playground ahead, a sign that generally shows two children on a seesaw.

The seesaw used to be a playground staple, a board evenly balanced on a fulcrum that allows two children to alternate soaring and crashing to the ground. It’s remarkable that I feel the need to explain what a seesaw is, but the fact is that seesaws have utterly vanished from the American landscape. By some accounts, between 2000 and 2004, the number of seesaws in American playgrounds fell by 80%. That is an extraordinary decline for something so associated with playgrounds that the United States Department of Transportation still mandates that playground warning signs feature a seesaw.

The decline almost certainly has to do with questions about the safety of seesaws. Those of us old enough to have used them as children all know the uncertain feeling of trying to get off a seesaw. And perhaps when we used them, we were drawn to the slight hint of danger. And surely there were plenty of seesaw injuries. But there are plenty of very dangerous things on a playground, like monkey bars and swings, and while they have also started to disappear, it hasn’t been to the same extent as the seesaw.

The year 1981 seems to represent the beginning of the end of the seesaw and other traditional playground equipment. In that year, the U.S. Consumer Product Safety Commission published its first version of the Public Playground Safety Handbook in response to rising awareness of serious playground-related injuries. While not a series of mandates, the handbook created a de facto national standard for playground equipment safety, arming plaintiffs with strong evidence against municipalities that did not conform to these standards.

Plenty of folks will see this decline as a sign of America’s infatuation with litigation. We have seen a similar decline, for example, in municipal snow sledding because towns are afraid of being sued for injuries. For example, the city of Boone, Iowa paid $12 million in 2011 to the victim of a sledding accident. For every town that is successfully sued for millions of dollars for a sledding injury, dozens or hundreds likely decide that it isn’t worth the legal risk. But we probably lose something when we take these experiences away from children. For example, seesaws reportedly can significantly improve a child’s balance and strength. Perhaps more importantly, the seesaw is an extraordinarily collaborative toy. It literally will not work without the equal participation of two children.

And I think that collaboration is a vitally important lesson, so I recently decided to build a seesaw for my own kids. Of course, right off the bat one of them fell off. But he got right back up and they figured out how to make it work. Given that towns everywhere have removed seesaws, am I negligent in building one for my children? Probably not, given the fairly wide latitude tort law allows parents to raise their children as they see fit. But the story might be different if another child were to come to my house and use the seesaw, either as a guest or as a trespasser. In fact, the seesaw in my backyard might even constitute an attractive nuisance, drawing children towards this theoretically dangerous item.

It’s a risk I’m willing to take, because I really do think that the benefits of cooperation and balance are worth it. And I think it’s not a bad thing for a kid to learn to fall and get up.

-Ellis

Where There's Smoke, There May Be Hay

November 21, 2017 by Samantha Bates in Everyday Torts

Anybody who wants to understand the law would be well served to read and/or watch Bleak House by Charles Dickens. Consuming Bleak House is a gargantuan task, perhaps intentionally reflecting the ceaseless complexity of the legal case it chronicles, Jarndice vs. Jarndice. The elevator pitch is that two branches of a family fight over an estate for such a long time that the estate is completely drained by legal fees. It’s a valuable lesson (even cited by courts!), and one that I bring up often when trying to talk friends off of the litigation ledge.

But Bleak House would not be Dickensian if it were just the story of a lawsuit. There are countless twists and turns that play out through betrayals and in hushed tones. And because nothing in Bleak House is straightforward, there is even a case of spontaneous human combustion. Deep in the recesses of Chapter 32, Mr Krook, a ragged old man who subsists on a diet of gin, catches fire and dies. This perhaps reflects the belief of the time that drinking excessive amounts of alcohol turned the human body into a flammable substance. Regardless, it brought spontaneous human combustion into the public imagination and it hasn’t really ever left.

The concept of spontaneous human combustion is controversial, in the sense that many people believe it is real but most serious scientific minds don’t think it exists. A classic rendition would have somebody stumbling upon a pile of ashes where once stood a person. The surrounding environment would give no indication of a larger conflagration. There are countless examples of this purportedly occurring, although over time instances have subsequently been explained--such as when an Oklahoma man was found to have had a heart attack and fallen atop a lit cigarette.

This is about the time in the article where I turn my attention towards torts. And while I am not qualified to pass a legal judgment on spontaneous human combustion, I can indeed discuss its very close and very real cousin: spontaneous combustion. Yes, there are inanimate objects in this world that will catch fire all on their own. They need no flame, and feature no electricity or batteries. This is a real thing and people die because of it more often than you’d think.

Example one of a spontaneously combustible thing is a rag or other implement used to apply an oil-based stain and finish to woodwork. As they dry, these substances go through a process of oxidation, a chemical process that can generate enough heat to actually ignite a rag. This is particularly likely when the rags are bunched up in a way that prevents cooling air flow. The phenomenon is fairly well-known among woodworkers, but it is far less known among very amateur homeowners. Picture your average Jane or Joe picking up a quart of an oil-based finish to touch up the deck, and you very well may be imagining the precursor to a fire. Examples of this are endless. Manufacturers do their best to warn of the danger, but we live in a world of unheeded warnings. They also have a fairly fail-safe procedure for dealing with such rags: after use, the rags should be put into a water-filled, sealed can (like a paint can) or laid out to dry on a pavement or concrete surface for at least two days. But that’s a lot to ask of some people, and as long as the curing process for these oil-based products doesn’t change, there will be fires.

So if Joe Homeowner starts a fire because he did not understand the warnings and that fire harms somebody else, might liability extend to the manufacturer of the products? Water-based wood finishes exist that don’t have this danger, and one could imagine a world in which all wood finishes must be water-based. The argument is that the end product is not as beautiful, but how beautiful must a product be for us to accept accidental fires?

If not extended to the manufacturer, liability would presumably rest squarely on the shoulders of our homeowner. Such was the case in Vaughn v. Menlove, a historic case involving a different class of auto-igniting materials: hay. It turns out that as wet hay decomposes, heat is generated to such a degree that the hay catches fire. In order to prevent such fires, farmers know never to stack hay unless it is entirely dry. The defendant in this case apparently didn’t get the message, and the resulting fire consumed much of the plaintiff’s property. In court, the defendant argued that while most farmers know that you shouldn’t stack wet hay, he did not, and therefore should not be held responsible. The court ruled in favor of the plaintiff, holding that the threshold question must ask what is reasonable to an ordinary person. Without such a standard, defendants could always escape liability by proclaiming ignorance.

The homeowner’s ignorance in our deck oil example seems different from that in Vaughn, in that a reasonable homeowner very well might not know about the dangers of improperly stored oil-soaked rags. Still, it is hard to argue that such ignorance should protect the homeowner when confronted by an aggrieved plaintiff in court. Hardly Jarndice vs. Jarndice, one would imagine that the plaintiff would make quick work of a defendant making such an argument.

Some Like It Hot, But...

November 17, 2017 by Samantha Bates in Everyday Torts

About a decade ago I was having a meal at a Cambridge diner with my roommate, who we will call Walter. Walter was born and bred in Europe and commented that the United States does not seem to have any original food. Everything, he argued, was derivative. I tried to argue, but the diner food on the menu was not helping my cause. Chicken Parm. Lamb kebobs. Gyro with Pita. You get the picture.

Several years later Walter and I took a trip across the eastern half of the United States, and one of my stated purposes would be to show him that we have plenty of great, original food. We bought cheesesteaks in Philadelphia, pulled pork in North Carolina, and shrimp and grits in Charleston. The tail end of our trip was in Nashville, and I was on the lookout for more quintessentially American faire. That’s when I stumbled upon Nashville hot chicken.

As the name implies, Nashville hot chicken is just spicy fried chicken. But it’s not just a bit piquant. No, if you go to the true stalwarts of the specialty, you’ll find that the food is mind-numbingly spicy. So spicy, in fact, that it can and does make people physically ill. When we tried the “hot” level chicken at Bolton’s Spicy Chicken & Fish, it was so strong that Walter commented that it was barely food, but instead something like a dare. But honestly, what could be more American than that?

When we were ordering, I noticed that on the wall there was a sign alerting customers that they would issue no refunds under any circumstances. It was an ominous message, and one that made me think of the tort theory of assumption of risk. Basically, assumption of risk means that if you knowingly enter into an inherently dangerous activity, you cannot hold the provider of that activity responsible.

So might a person be assuming a risk when eating spicy food? As a baseline matter, it’s important to note that spicy food can, in fact, be dangerous. At low levels, capsaicin, the agent that makes food spicy, is very safe and can even have health benefits. But as one climbs the chart of spiciness---that’s actually a thing, and it’s called the Scoville scale--capsaicin can severely inflame membranes in the body and even lead to heart attack.

At spicy food-eating competitions, contestants regularly become physically ill. As a result, participants are almost always asked to sign waivers releasing contest-holders from liability should anything bad happen. For example, the Seven Deadly Wings Challenge in the UK requires participants to agree to the following:

“I understand that I will be eating chicken wings that are treated with the hottest ingredients … with an extreme degree of heat...I acknowledge that there could be a risk of personal injury, illness & possible loss of life, and risk of damage to or loss of personal property which may result from participating in this challenge. I confirm that I do not have a medical condition that could jeopardise my health or wellbeing during or after the challenge. I agree that I am taking on the challenge at my own risk and hereby certify that Huckleberry’s Bar and Grill Ltd, its employees or affiliates will not be held responsible or liable for any injuries, damage or loss of earnings caused during or after the challenge.”

Agreements like this certainly indicate that people offering and consuming ultra-spicy food know or should know that there is a risk to what they are about to undertake.

But what if a person consumes extremely spicy food without knowing what they’re getting themselves into? That was the case when a boy in Tennessee was hospitalized when his server gave him “Blair’s Mega Death” hot sauce when he requested hot sauce for his food. Blair’s Mega Death has a Scoville rating of 550,000. For comparison, Tabasco hot sauce is rated at around 2,500 Scoville Units. If the boy was expecting something on the order of Tabasco but instead consumed a sauce 200+ times more powerful, one would think he did not assume a risk. At that rating, it’s hard to see a distinction between hot sauce and poison. The server and the restaurant (based on vicarious liability) were sued by the child’s parents, and one would hope that they were able to find satisfaction and make the boy whole.

To some extent, it’s remarkable that there is a market for products like Blair’s Mega Death sauce. But it turns out that there are far spicier sauces on the market, with hotsauce.com selling several dozen sauces with Scoville ratings over 1,000,000 (and therefore at least twice as hot as Blair’s Mega Death). Whether it is due to thrill-seeking or some variation of masochism, plenty of people seem to want to eat food so hot that it will literally make you sick (and could kill you). This sounds like the definition of an ultra-hazardous activity, and wherever there are ultra-hazardous activities there are torts concepts like assumption of risk, negligence, and maybe even strict liability.

So if you find yourself in Nashville looking for something basic and American to eat, perhaps look somewhere other than the local hot chicken joint. But if your real purpose is to experience severe inflammation, shortness of breath, and heart palpitations, I can definitely recommend Bolton’s Spicy Chicken & Fish. But consider yourself warned, and consider your risks assumed.

- Ellis & Acton

Old McDonald Had a Right to Farm Statute

November 14, 2017 by Samantha Bates in Everyday Torts

If you were to take a look at a zoning map of the town where I grew up, you’d see that the vast proportion of plots are zoned residential, with a small cluster of commercial land in our shopping district. But smack dab in the middle of town you’d see one vast parcel that is zoned completely differently from the rest: it is my family’s ancestral land, and it is zoned for agricultural use. The town I grew up in is now a wealthy commuter suburb but once was dotted with farms. Somehow my family’s business was the only entity to survive the introduction of nearby commuter rail stations in the first half of the 20th century and the highways and advent of suburban living during the second half of the 20th century. In a town of bankers, we were farmers.

And I was proud of that distinction. While my friends had a house, we had shops and garages and barns and forests. Where they had a few trees, we had forests and fields and lakes and streams. And where they had lawn mowers and rakes, we had industrial-scale payloaders and tractors. For a kid, the tractors were amazing, with their size and power and diesel-soaked roar. But that’s exactly the sort of thing that might annoy a neighbor, especially if they heard it at 7am.

And if the neighbors had a serious problem, they could have a remedy in tort. Specifically the tort of Nuisance. Boiled down, the law of nuisance says that you can do anything you want with your private property so long as it doesn’t interfere with somebody else’s ability to do whatever they want with their private property. It is an extraordinarily old tort (even older than negligence!), with known cases dating back to the turn of the century--the 12th century. In one example from 1201, Simon of Merston petitioned King John for compensation when his neighbor, “Jordan the miller,” raised the water level of his pond in a way that could damage Simon’s property. King John ordered that the pond be destroyed and awarded Simon three shillings in damages.

Common modern examples of a nuisance include a dog that incessantly barks, a pig farm that incessantly smells, or an assembly line that incessantly clangs. There are both public and private nuisances--a public nuisance being one that affects an entire community rather than just an individual. Public nuisance law has evolved to encompass activities that are considered “indecent” or “offensive to the senses” (Richard Epstein, Torts (1999) 357). So if your neighbor is running a prostitution ring or a gambling joint, the city might have a case for nuisance because of the offensive nature of these types of activities and the cast of characters they might invite to the neighborhood. One of my favorite recent nuisance disputes involves the culty hot sauce Sriracha. It seems that for a brief period every year Huy Fong, the producer of the hot sauce, would have to process hot chile peppers in a way that caused some of the capsaicin to get into the air. Neighbors would complain about burning eyes, sore throats, and other maladies. It was an classic nuisance, and has been the subject of litigation for several years.

While these cases may seem clear-cut, nuisance cases are rarely so straightforward. In fact, according to William Prosser, a bona fide Lion of the Law™, “there is no more impenetrable jungle in the entire law than that which surrounds the word nuisance” (Prosser, The Law of Torts (3rd ed. 1964) 592). Perhaps this is because, by definition, the tort seems to clash with the classic American tradition of promoting property rights.

Another American tradition is the reverence of farmers. We have been putting the noble agrarian on a pedestal since the days of Thomas Jefferson. What is more American than staking out a plot of land, getting your hands dirty, and emerging with a crop? But farms are dirty and messy and smelly. They can pollute and tarnish our environment. Who among us would actively want to live next door to a pig farm? As a result, farmers are often the target of nuisance suits by abutters whose quality of life has been diminished by their neighbors’ activities.

This sort of thing is particularly acute in towns like the one where I grew up, towns where the agricultural land is surrounded not by other farms but by people who simply want to have a peaceful refuge from their daily grind when they come home. It would seem that the days of farming in these communities is numbered. But local governments have stepped in to save the day, at least from the perspective of the farmers, in the form of “right to farm” statutes.

A right to farm statute is a law that specifically states that noises, smells, and other nuisances incidental to traditional agriculture cannot be the basis of a nuisance lawsuit against a farmer. For the sake of illustration, here is the text of the Right to Farm statute in Chelmsford, Massachusetts (which is based on a MA state model):

“The right to farm is hereby recognized to exist within the Town of Chelmsford. The above-described agricultural activities may occur on holidays, weekdays, and weekends by night or day and shall include the attendant incidental noise, odors, dust, and fumes associated with normally accepted agricultural practices. It is hereby determined that whatever impact may be caused to others through the normal practice of agriculture is more than offset by the benefits of farming to the neighborhood, community, and society in general.” Chapter 127-3: Right to Farm Declaration

Right to Farm statutes represent government and legislation staking a claim on matters traditionally reserved for the common law. When I think about these laws I can’t help but think of that property map from my hometown, the one where my family’s property is an island of agriculture in a sea of residential homes. The right to farm, it seems, is meant to protect families just like mine. And in towns all across America, that is exactly why Right to Farm statutes exist.

But more and more, the phrase “Right to Farm” has become associated not with protecting the noble farmer but instead massive agribusiness. That’s because the newest wave of Right to Farm statutes don’t just prohibit nuisance lawsuits against a farmer with a flock of confident roosters. These new statutes can also prohibit local governments from enacting and enforcing new environmental regulations, such as those limiting the use of certain hazardous pesticides. I am always wary of a good idea being co-opted by the powerful to promote their interests, and it seems that may be happening here. As a person who owes his college tuition to agriculture, I generally support the concept of Right to Farm statutes. But I am very, very wary of where they may be headed.

I asked my father recently if he could recall a time when our family was the subject of a nuisance complaint as the result of maintaining our little island of agriculture. To my surprise, he said he wasn’t aware of that ever happening, despite all the trucks and tractors and fertilizers we employed over the years. It seems that our town did not need a Right to Farm statute. Instead, our neighbors naturally adopted the notion that our presence outweighed any negative side effects of our agricultural activities. Last year, after a century of planting and growing, selling and kids playing, my family finally sold our business so that my parents could retire. Generations of my relatives owe so much to that place. And I’d suggest we also owe at least a tip of the cap to our neighbors, who graciously accepted and embraced our little island of agriculture amidst their sea of suburban homes.

-Ellis & Acton

Can SawStop Stop Saw Safety?

November 01, 2017 by Samantha Bates in Everyday Torts

One of my favorite things to do when I want to relax is to head to my basement workshop and make something out of wood. It’s only a few feet below the real world, but heading down there is like being teleported to a peaceful and tranquil alternate reality. A reality where twitter and cellphones and complaints don’t exist. Just me and a bunch of lumber…and a collection of extraordinarily dangerous tools.

The modern workshop is a veritable smorgasbord of implements that want their pound of flesh. There are miter saws and bandsaws and routers and thickness planers, and all are quite dangerous. But the king of dangerous power tools is the table saw, and the way modern table saws are sold (and how they SHOULD be sold) tells quite a torts story.

A table saw is just what it sounds like, a small table with a large spinning blade emerging from its center. To use it, a woodworker pushes the material he or she wants to cut directly into the teeth of the spinning blade. Even upon immediate inspection a table saw’s danger is immediately apparent. It is a snarling tiger, not a cuddly Persian kitten. But the real dangers of a table saw are not as obvious.

Most people would think that the way to stay safe is to just steer clear of the spinning blade of death. But the true danger that causes an enormous amount of accidents every year is a phenomenon called kickback. Kickback occurs when the already-cut portion of the wood catches onto the back end of the spinning blade and hurtles at blinding speed towards the operator. And because kickback results in the uncut portion of wood being pulled toward the blade, it also tends to pull the operator’s hands towards the blade. It’s a little hard to describe, so it might be worth watching this video to see kickback in action (note! This person tries to induce kickback on purpose. Which is...an absolutely terrible idea!).

So it’s probably no surprise that over 30,000 people go to an emergency room in the United States every year due to table saw accidents. And according to a study in an emergency medicine journal, table saws are the second leading cause of amputation injuries every year behind accidents involving doors.

As a result of the melee happening in workshops around the country, a table saw purchased today comes adorned with a variety of safety devices intended to reduce the chances of kickback and other injuries. The most important of these is called a riving knife, which is a stationary blade that attempts to keep cut wood from binding with the back of the spinning saw. Next in importance are anti-kickback pawls, which are little spring-loaded claws that push the wood down towards the table. On top of that there is a blade guard, which is a metal and plastic housing that provides a barrier between a user’s fingers and the saw.

*Table Saw with Riving Knife, Anti-Kickback Pawls, and Blade Guard attached*

Both the table saw and its instruction manual are absolutely plastered with warnings that say the saw should never be used without these safety devices. Unfortunately, those warnings represent something of a legal fiction: the manufacturers very well know that saw users will remove these safety devices because they often make it impossible to perform the cuts required for certain projects (particularly the pawls and blade guard). Responsible operators like me always use the safety devices when we can, but it is not always possible, and the manufacturers seem to acknowledge this by making safety device removal incredibly easy.

If only there were a technology that would allow woodworkers to perform the cuts they want safely. If only. Ah, but there is! A company called SawStop uses an amazing flesh-sensing technology to halt the progress of a spinning blade the moment it touches a human finger. The demonstrations are amazing, and I strongly suggest you watch them for yourself. If all saws had SawStop technology, literally thousands of amputations a year would never happen. So why don’t all table saws have this technology now?

*SawStop Patent Describing Safety Technology*

Patents. SawStop is the only manufacturer in the United States that is legally allowed to sell such saws due to its intellectual property in the invention. In fact, when Bosch tried to introduce a competing technology called Reaxx, SawStop successfully sued Bosch for patent infringement and prevented Reaxx saws from reaching the market. Patents and other intellectual property are a form of government-established monopoly, but companies can choose the extent to which they enforce their monopolies. And SawStop has gone to great lengths to enforce its monopoly.

As a result, the least expensive way to buy a table saw that will not amputate your appendages is a $1300 SawStop portable model. Portable table saws without the technology can be had for literally 1/10th the price, with even high quality table saws costing closer to $500. So in the table saw world, safety comes at an extraordinary premium.

And that premium might be spread across the market if SawStop has its way and the United States Consumer Products Safety Commission makes rules requiring all new table saws to have flesh-sensing technology. From a consumer products safety perspective, this is a no-brainer. There is a technology that can save literally thousands of people a year from being permanently disfigured. Juries have found that the absence of such a technology by default makes a manufacturer negligent. In a recent Massachusetts case, the victim of a table saw accident successfully sued Ryobi for designing a saw that does not use SawStop technology (although the jury did determine that he was 35% responsible for the accident because he disabled all of the safety features). His lawyer argued that because Ryobi passed on an opportunity to buy the underlying SawStop intellectual property in 2000, it rendered all of its future designs defective. Given that a jury would deem tools without this safety feature defective per se underlines how impactful the technology is, and should make the decision by the Consumer Products Safety Commission easy. With absolutely no pun intended, the decision should be clear cut.

But because SawStop has a monopoly, it would be able to effectively control the market until the patent expires in 2021. The company claims that it will charge a reasonable royalty, but there is no way to enforce that claim. And government bodies are rightly wary of mandating that a technology be used when that technology is kept under strict lock and key by a company founded by a patent attorney. It doesn’t have to be this way. Auto manufacturer Volvo never enforced its patent for the seat belt because the company thought that safety mattered more than the competitive advantage it would have by being the exclusive provider of seat belts. But that does not appear to be SawStop’s modus operandi.

So until 2021, consumers like me will be faced with a choice: risk owning one of the 1 in 229 table saws that send somebody to the emergency room each year or pay an extraordinary amount of money for safety (and in doing so, enable a borderline patent troll). I often say that our torts system is far from perfect. This is an instance, though, where the torts system has been almost completely sidestepped by a competing field of law - intellectual property. It’s a reminder that our discussion of duty, breach, cause and harm hardly exists in a vacuum and that it is only a piece of the tangled landscape that is American law.

-Ellis

Sometimes Looks Are Not, In Fact, Deceiving

October 31, 2017 by Samantha Bates in Everyday Torts

The entire point of many amusement parks is to make safe things seem dangerous. But what about where an amusement park's m.o. is to make the dangerous seem dangerous? Consider the case of New Jersey's Action Park ("Class Action Park"). I first encountered Action Park in a short documentary that made the internet rounds a few years ago. The park is perhaps most famous for a failed attraction called the cannonball loop, a waterslide so outlandish photos of it look photoshopped. But that extraordinarily dangerous attraction was closed in just a few days. Other rides at Action Park flaunted their dangerous nature for up to two decades.

The top line figure we might look at is the number of fatalities: six people died at Action Park during its twenty year run. But the number of deaths doesn't tell the whole story. By all accounts, an enormous number of people were seriously injured at Action Park due to the design of the rides and poor oversight (including allowing local 14-15 year olds to supervise). One particularly dangerous attraction was the Alpine Slide, a concrete luge run with no safety barriers or equipment except for often-defective brakes. So many people were injured on the run that management allegedly posted graphic photos of maimed children at the top of the slide to warn guests. In another indication that the park was fully aware of how dangerous its attractions were, it also allegedly helped the town of Vernon, NJ pay for more ambulances to accommodate its patrons.

The reputation of the place--as a singularly dangerous amusement park--would seem to square with Cardozo's reasoning in Murphy v. Steeplechase. Most people knew that Action Park was legitimately dangerous, and that the danger was part of the fun. When the park recently re-opened, United States Senator Corey Booker tweeted "WOW! Action Park is back! I still have scars from long ago visits but I so want to go again[.]" So should we just think of Action Park as the amusement equivalent of mountain biking, rock climbing, or other inherently dangerous activities? Or does the "dangerous by design" nature trigger Cardozo's [perhaps dicta] suggestion that a park/ride could be so dangerous as to be beyond the scope of an assumption of risk affirmative defense?

While learning all about Action Park, I stumbled upon the website Rideaccidents.com, a slightly dated but still informative collection of severe injuries and deaths from amusement parks around the world. It reminded me that perhaps the most dangerous amusement out there, at least on a per capita basis, is the dreaded bouncy house. For the uninitiated, bouncy houses are basically giant inflatable trampolines, most popular among very little kids. The problem is that they are exceptionally dangerous, leading to a huge number of injuries and some deaths. Time Magazine (do you remember magazines?) called bouncy injuries an "epidemic," and a study in the journal Pediatrics claimed that in 2010, 31 American emergency room visits per day were due to bouncy house injuries.

Unlike Action Park and the Flopper, the danger of bouncy houses is perhaps a bit unintuitive--they are essentially huge airbags, after all. And the number of injuries is no doubt compounded by the fact that they are generally not found in amusement parks but instead town carnivals, outside local sporting events, and even birthday parties--that is, the people in charge are not necessarily professionals. So how would Cardozo look at a bouncy house injury claim?

-Ellis

Where the Wild Things Are (Hint: It's Your Backyard)

October 31, 2017 by Samantha Bates in Everyday Torts

If you live in the city, the array of wild animals you'll see is fairly limited. Of course, there are squirrels and chipmunks, and you'll very occasionally run into a deer, raccoon or rabbit (unless you live in Boston). But that's pretty much it for city-dwellers. If you live in the woods, however, you might know the unique thrill of seeing something truly exotic. Foxes, coyotes, bears, and if you’re really unlucky, fisher cats. It's all about your environment, it seems.

But increasingly, it's less about your environment and more about your neighbors. If you have the wrong neighbor, you or your loved ones might come face to face with a tiger, cobra, or leopard. Perhaps it is a reflection of our increasingly artificial surroundings, but more and more people are making the decision to own/adopt/buy exotic pets. These animals can look cute and cuddly one minute and turn into vicious predators the next.

ABC News Coverage of Exotic Pet Insurance (worth the watch).

From a torts perspective, owners of exotic pets almost certainly have assumed a risk--but their neighbors haven't. You can be certain that in most jurisdictions if you own a serval and it mauls the kid across the street, you are going to be on the wrong side of a torts judgment. But this is America! So of course you can buy insurance to protect your pocketbook in case that serval attacks your neighbor. And the exotic pet insurance business is booming.

As you'll see throughout This Year in Torts, insurance plays an enormous role in our torts system. If torts is primarily about making victims whole and setting norms, insurance does both. The mauled neighbor will be compensated for their injuries, but the insurance market will also strongly encourage exotic pet owners to maintain proper facilities to prevent attacks in the first place. As a parallel, consider the way automobile insurance policies provide discounts for advanced safety features and safe driving. That is, insurance pricing and availability can encourage owners of inherently dangerous things to maintain those things in a more safe manner. Add in the fact that some state and local governments require owners of inherently dangerous things to have insurance (for example, here’s Georgia’s exotic pet law), and it seems like a useful and important way to not only compensate victims but also to make society safer.

But does the existence of insurance actually encourage the ownership of inherently dangerous things? Could it be that the existence of exotic pet insurance leads people to think it's ok to own a pack of wolves just across the street from a preschool? When is a thing too dangerous, and too unnecessary, for us to allow insurance markets to exist? Obviously cars are ok--they are somewhat dangerous and very necessary in our society. But what about a small-scale nuclear weapon? Would we allow insurance for that? Couldn't it be argued that a tiger is just too dangerous and not useful enough for a private person to own and thus insure?

A hybrid approach--pun intended--has caused the emergence of hybrid wild animals. So instead of a serval, one might own a serval-domestic cat hybrid. Get the look of the serval and the lap-kittiness of a domestic, some think. Of course genetics don't really work that way. You very well might end up with the look of a tabby but the viciousness of a leopard. In fact, there are nearly limitless stories of hybrid cat owners being taken by surprise by just how wild little Patches actually is. Communities across the United States are struggling now with how to classify these animals, with most settling on definitions regarding the number of generations removed from the "wild" an animal must be in order to be considered domesticated. A serval hybrid with only one exotic great-great grandparent may be considered domesticated and not subject to exotic pet insurance.

So the next time you are playing frisbee in your backyard and you run into an animal that looks like a leopard, it's probably worth paying a visit to your neighbors. Be sure to ask about that cat's family tree and whether they have insurance. The answers might just make a difference if you have a less than pleasant encounter with the cat and seek redress.

-Ellis