NationStates Jolt Archive

Nothing like adhering to red tape during a disaster... (http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/09/18/wkat318.xml&sSheet=/news/2005/09/18/ixhome.html)


Refugees from New Orleans died after private doctors were ordered to stop giving treatment because they were not covered by United States government medical liability insurance, according to two American surgeons.

Mark N Perlmutter, an orthapædic surgeon from Pennsylvania, was told by a senior US Coast Guard officer representing the embattled Federal Emergency Management Agency (Fema) that he must leave the overstretched disaster relief hospital at New Orleans airport.

He had applied a chest compression after a female patient died and was turning to another critically ill woman at the triage reception area on the airport tarmac when he was summoned to see Capt Art French, the doctor in charge of the hospital.

"The other lady was in equally bad shape and I was not able to work on her. When I went back afterward to get my supplies they were taking her body to a store where the deceased were being placed.

"It's absolutely possible I would have saved her life but I was denied permission to try." An estimated 20 to 30 patients died at the temporary hospital that day.

Dr Perlmutter arrived with Clark Gerhart, a surgeon colleague, and Alison Torrens, from Co Antrim, a medical student at Aberdeen University. All three had volunteered their services free of charge.

It was five days after Hurricane Katrina had struck but all three were struck by the sense of chaos. "It was like something out of a film," said Miss Torrens. "I couldn't believe I was in the middle of America. There were people lying on the luggage racks. Every single patient was in a pool of urine or had soiled themselves."

The surgeons said that the medical staff there had welcomed their arrival and needed trained doctors.

"They were just swamped," said Dr Gerhart. The surgeons, however, were told they could not work there without Fema credentials, which could not be issued even though they had their medical licences with them.

"[Capt French's] words were, 'We don't have any way to do credentialing and no way to ensure tort liability coverage'. How any one could utter those words in the middle of a catastrophe I do not know."

Dr Perlmutter said that he begged to be allowed to work until he could be relieved by a Fema doctor but was told that this was not possible.

Kim Pease, a Fema spokesman, said: "The volunteer doctor [Dr Perlmutter] was not a credentialed Fema physician and, thus, was subject to law enforcement rules in a disaster area."

The three were flown back to Baton Rouge in another Black Hawk and were then swiftly given credentials by the Louisiana state authorities. They spent four days treating hundreds of patients.

The surgeons, who worked at 9/11, were left with a sense of frustration that they had been blocked by what seemed to be petty bureaucracy.

"Could we have saved any of those lives?" asked Dr Gerhart. "We'd certainly like to have tried."


Yep. If you don't have enough people to get the job done, the correct solution is to turn away help until such time as they get Form A signed in triplicate, stamped, notarized, hidden under a rock, taken out, ironed flat, eaten, passed, and then submitted to the requesting authorities for further review....

That has to be the stupidest thing I have ever heard.

What's ironic (I think) is that their precautions to avoid tort liability has probably just opened the door to a class action lawsuit.

Someone responsible for this needs their face stabbed.

Red Tape: The ribbon of order with which the needy are hanged.

Hunh... Like something out of the first few chapters of Jennifer Government...

I can see the sense in permitting only qualified physicians to work on patients. Obviously, a the certification procedure needs to be revised.

Perhaps a solution is to issue a FEMA certification to every MD in the country, or to permit field commanders to certify in the field on their best judgement.

Despite the shock value of this article, I don't think the intention was to do harm to the poor. It's yet another broken thing that needs to get fixed.

What's ironic (I think) is that their precautions to avoid tort liability has probably just opened the door to a class action lawsuit.
I look forward to it -- unless they decide FEMA can't be sued because it's part of the government.

(I'm in favor of be able to sue the government. Sure it would create havoc, but could it possibly be worse than their own actions? I say, keep them tied up in court and out of our way.)

So, basically, these people have died because there wasn't anyone to pay the medical bill? :headbang:

I don't think there's anything left to say about that!

Thank you bureaucracy, for costing us more lives :mad:

This is what happens when you live by a plutocratic system ...... and the surprise that it causes is attributed to calling it 'democracy'.

Each dollar bill counts as a vote.

So, basically, these people have died because there wasn't anyone to pay the medical bill? :headbang:

I don't think there's anything left to say about that!

No, it's because of the evilest idealogy in the world. Buecracy.

I look forward to it -- unless they decide FEMA can't be sued because it's part of the government.

(I'm in favor of be able to sue the government. Sure it would create havoc, but could it possibly be worse than their own actions? I say, keep them tied up in court and out of our way.)
FEMA can't be sued for reasonable actions taken during a time of crisis.

FEMA can't be sued for reasonable actions taken during a time of crisis.
I just read the article five times and nowhere do the words "reasonable actions" come into my mind.

This is absolutely barbaric.

Final proof that the NHS needs keeping I think there.

No, it's because of the evilest idealogy in the world. Buecracy.

I'd go a step further and say it's due to the litigious nature of the American populace. We're sue happy.

If we wouldn't sue over the stupidest little things, just to get a free buck, those doctors may have been allowed to try to save more people.

Stop suing everyone for everything, put a bunch of lawyers out of jobs, and maybe we can start concentrating on what's really important.

I'd go a step further and say it's due to the litigious nature of the American populace. We're sue happy.

If we wouldn't sue over the stupidest little things, just to get a free buck, those doctors may have been allowed to try to save more people.

Stop suing everyone for everything, put a bunch of lawyers out of jobs, and maybe we can start concentrating on what's really important.

FEMA officials prevented doctors from treating patients.

FEMA officials put protection from tort liability ahead of people's lives.

And yet... somehow... it's a lawyers fault.

I don't know you Zaxon, but you strike me as pretty ignorant of the world if you think lawyers are some of the worst people around. Anyone with any experience in the law knows that clients are the root of all evil. :D

FEMA officials prevented doctors from treating patients.

FEMA officials put protection from tort liability ahead of people's lives.

And yet... somehow... it's a lawyers fault.

I don't know you Zaxon, but you strike me as pretty ignorant of the world if you think lawyers are some of the worst people around. Anyone with any experience in the law knows that clients are the root of all evil. :D

I've seen quite a bit. Like how lawyers are enabling the transformation of us all into "victims" with "entitlements", for instance. They are killing personal responsibility.

For instance: coffee between the legs. Nothing has a 0% failure rate. Cup or lid fails, someone gets third degree burns, they sue and win. That's called stupidity, not negligence on the part of the company selling the coffee in the cups. That's shunting the person's responsiblity (they made the choice to take the CHANCE nothing would happen with the vessel) on to a third party. Victims are being created and enabled by many lawyers out there. It's why health costs are soaring.

Doctors are human. They make mistakes--and when they do, it costs millions in "compensation". If you allow yourself to take the chance of letting someone cut into you (NOTHING is guaranteed with surgery--any number of things can go wrong--even for something considered "routine"), you take responsibility of what may or may not happen, by turning over control of yourself to others.

Don't get me wrong, lawyers aren't the only problem--and not all lawyers are bad, but the bad ones (and there seem to be more of those than good ones) out there are really turning the US into a bunch of weak, snivelling children who need their nanny state to tell them what to do.

Guaranteed that if something went wrong with a patient that wasn't covered under FEMA, while the "uncovered doctor" attempted to help the patient, that doctor would have been sued. You have lawsuits against average citizens who save another from choking to death (heimlich) but broke a rib in the process. It's absurd how much Americans want something for nothing (or worse yet, something when it was their own idiotic endeavors that put them in the situation in the first place!).

Lawyers enable this behavior to proceed. They're raping the system quite effectively. Now, this may be limited to the US, but it's definitely here. I've been seeing it for 16 years now (years of adulthood under my belt).

For instance: coffee between the legs. Nothing has a 0% failure rate. Cup or lid fails, someone gets third degree burns, they sue and win. That's called stupidity, not negligence on the part of the company selling the coffee in the cups.

Ah the McDonald's case. Well, certainly you know that the plaintiff originally asked for only medicial costs, around $20,000. Certainly you know that the jury found the plaintiff to be contributorily negligent in spilling the coffee.

You must also know the seriousness of third degree burns. You must also be aware that McDonald's officials basically testified that the coffee was, to their knowledge, unfit for immediate consumption as it would cause severe throat and mouth burns.

Naturally, you would also know that before the infamous case, McDonald's had settled dozens of potential suits.

Still though, personal responcibility and all that. I have to expect that my coffee will severely burn me to the point where I need professional medical treatment and possibly surgery.

Doctors are human. They make mistakes--and when they do, it costs millions in "compensation". If you allow yourself to take the chance of letting someone cut into you (NOTHING is guaranteed with surgery--any number of things can go wrong--even for something considered "routine"), you take responsibility of what may or may not happen, by turning over control of yourself to others.

Of course! When I sign a consent form I allow my surgeon to do anything he/she wants! Leave a towel behind my lung, leave the room for a few rounds of golf, have a monkey play rockstar drummer with my kidneys, etc.

By that logic, whenever I'm in a car accident where my actions were clearly the cause of the accident, I have no liability. Why? Because others know the risk of driving, they assume the risk of all possible harms by getting on the road.

...turning the US into a bunch of weak, snivelling children who need their nanny state to tell them what to do.

Possibly so. But I somehow doubt that someone who has been reduced to a "weak, snivelling [child]" would summon the courage to actually contact a lawyer and fight in court.

You have lawsuits against average citizens who save another from choking to death (heimlich) but broke a rib in the process.

I try not to be a source-Nazi, but here you really should cite the case. Circumstance is everything in tort law. Would you support that average citizen if his/her poor execution of the Heimlich manuever is what caused the rib to break and it was only by sheer luck that the chocking victim was saved?

It's absurd how much Americans want something for nothing (or worse yet, something when it was their own idiotic endeavors that put them in the situation in the first place!).

You would be hard pressed to find a situation where a someone has recovered injury for a problem of his/her own making. If it was totally his/her own fault, who would he/she sue?



There are frivolous lawsuits. Some may actually have been successful. But I doubt that it is such an epidemic as you suggest. I also don't see how FEMA's actions in this case wouldn't warrant action against them.

Still though, personal responcibility and all that. I have to expect that my coffee will severely burn me to the point where I need professional medical treatment and possibly surgery.


The flavor compounds in coffee that taste best release from water at less-than-boiling temperatures of 195 to 205-degrees.

http://www.fitnessandfreebies.com/food/articles/coffeeperfection.html

Yes, properly prepared coffee will give you third degree burns.


Of course! When I sign a consent form I allow my surgeon to do anything he/she wants! Leave a towel behind my lung, leave the room for a few rounds of golf, have a monkey play rockstar drummer with my kidneys, etc.


And yet, they haven't found the monkey in the kidneys.


By that logic, whenever I'm in a car accident where my actions were clearly the cause of the accident, I have no liability. Why? Because others know the risk of driving, they assume the risk of all possible harms by getting on the road.


Ever notice why you are never 100% liable, nor is the other person involved in a car accident--because if you were never there, it is argued that the accident may never have occured.


Possibly so. But I somehow doubt that someone who has been reduced to a "weak, snivelling [child]" would summon the courage to actually contact a lawyer and fight in court.


Sure they would. Someone else to fight their battles.


You would be hard pressed to find a situation where a someone has recovered injury for a problem of his/her own making. If it was totally his/her own fault, who would he/she sue?


Slipping on ice on a sidewalk. The owner didn't put the ice there. The person decides to walk on it anyway. Falls, and gets hurt. See where I'm going with this? The person decided to walk on a slippery surface of their own volition. It's not the owner's fault the person decided to do this.


There are frivolous lawsuits. Some may actually have been successful. But I doubt that it is such an epidemic as you suggest. I also don't see how FEMA's actions in this case wouldn't warrant action against them.

Like I said before, people want something for nothing. That would be a prime target.

Oh well if the coffee tastes better I'm sure it's ok to endanger your customers' health without their knowledge.

Slipping on ice on a sidewalk. The owner didn't put the ice there. The person decides to walk on it anyway. Falls, and gets hurt. See where I'm going with this? The person decided to walk on a slippery surface of their own volition. It's not the owner's fault the person decided to do this.

Well first of all, you are setting up a hypothetical situation and making an assumption about the law based on that hypothetical. Do you know for sure that courts in your state have found for plaintiff's in that situation? Or courts anywhere for that fact?

But assuming you are right that they would is it so unusual. What you described above isn't a danger of the plaintiff's making, but a natural occurrence. The question is not who's fault it is that there is ice on the sidewalk, but does the owner have a duty to keep his/her property in a reasonable state of repair so that it does not pose dangers to others.

FEMA can't be sued for reasonable actions taken during a time of crisis.

It's not reasonable AND there are 'Good Samaritan' laws in the US basically making anyone who renders emergency care in an emergency free from liability.

So -- if you are in a car crash and a passing doctor manages to give you a tracheotomy held open with the barrel of a disposable pen because you otherwise would have died, you CANNOT sue him.

Oh well if the coffee tastes better I'm sure it's ok to endanger your customers' health without their knowledge.


How about taking an IQ test before selling the coffee, to verify an idiot wouldn't put 190 degree liquid between their legs? Endanger my ass. This is what I'm talking about--where's the personal responsiblity? Coffee is HOT. People know this. Would you put a handgrenade between your legs? Pin's in, so it can't go off, right? Should be completely safe. You know something, even though the pin is in, I sure wouldn't put one between my legs...


Well first of all, you are setting up a hypothetical situation and making an assumption about the law based on that hypothetical. Do you know for sure that courts in your state have found for plaintiff's in that situation? Or courts anywhere for that fact?


Yup, Madison city ordinance states we have to have snow and ice cleared off the walks by noon the day after an ice or snow storm. It's due to the "safety" of the citizens. Maybe if the citizens would figure out not to walk on icy sidewalks...


But assuming you are right that they would is it so unusual. What you described above isn't a danger of the plaintiff's making, but a natural occurrence.


The person putting the coffee between their legs wasn't of the defendant's doing, either. The plaintiff put it there. The drive-through attendant didn't say, "Now put that between your legs."


The question is not who's fault it is that there is ice on the sidewalk, but does the owner have a duty to keep his/her property in a reasonable state of repair so that it does not pose dangers to others.

Please. It's their property. Duty to others that want to use another person's property....that's absurd. It's not my job to coddle you or anyone else, if you or they want to take a walk. This isn't a commune.

Nothing like adhering to red tape during a disaster... (http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/09/18/wkat318.xml&sSheet=/news/2005/09/18/ixhome.html)

Yep. If you don't have enough people to get the job done, the correct solution is to turn away help until such time as they get Form A signed in triplicate, stamped, notarized, hidden under a rock, taken out, ironed flat, eaten, passed, and then submitted to the requesting authorities for further review....
Yep ... we sure do need socialized medicine here ... yup. This should serve as a warning to those who want to apply Scandanavian or Canadian style socialized medicine to the US. It simply will not work. You would wind up with this same sort of thing happening on a daily basis in every hospital accross America! :(

Yep ... we sure do need socialized medicine here ... yup. This should serve as a warning to those who want to apply Scandanavian or Canadian style socialized medicine to the US. It simply will not work. You would wind up with this same sort of thing happening on a daily basis in every hospital accross America! :(

What are you talking about? The red tape in American Hospitals are no better. Not with the lawsuit happy people you've got there driving up insurance premiums like crazy. The amount of paper administrations use to cover their asses from lawsuits would probably be enough to repopulate a forest or two.

You have lawsuits against average citizens who save another from choking to death (heimlich) but broke a rib in the process. It's absurd how much Americans want something for nothing (or worse yet, something when it was their own idiotic endeavors that put them in the situation in the first place!).

During a first aid course with the Red Cross in Germany:

"Girl: I'm afraid that I might hurt or damage the patient, if I do cardiopulmonary resuscitation (CPR).
Instructor: It doesn't matter, the important thing is to try and help until the medics arrive.
Girl: But what if I press to hard.
Instructor: Then a rib might break. Hope it doesn't puncture anything important and continue. If it does puncture something important, tough luck. Remember, as long as you try and help you cannot be sued for damages, but if you just stand by, you can be taken to court for negligence."

And that I find very sensible!

During a first aid course with the Red Cross in Germany:

"Girl: I'm afraid that I might hurt or damage the patient, if I do cardiopulmonary resuscitation (CPR).
Instructor: It doesn't matter, the important thing is to try and help until the medics arrive.
Girl: But what if I press to hard.
Instructor: Then a rib might break. Hope it doesn't puncture anything important and continue. If it does puncture something important, tough luck. Remember, as long as you try and help you cannot be sued for damages, but if you just stand by, you can be taken to court for negligence."

And that I find very sensible!

I find it sensible as well. Unfortunately, we have those that try and fail. They're the ones getting hit. So fewer people try anymore. It's sad, really.

How about taking an IQ test before selling the coffee, to verify an idiot wouldn't put 190 degree liquid between their legs? Endanger my ass. This is what I'm talking about--where's the personal responsiblity? Coffee is HOT. People know this. Would you put a handgrenade between your legs? Pin's in, so it can't go off, right? Should be completely safe. You know something, even though the pin is in, I sure wouldn't put one between my legs...

Yes coffee is hot. Sip it slowly. Expect a first degree burn if you gulp it. Keep it away from children. We all know that.

However, McDonald's coffee wasn't just hot, it was scalding. It caused serious physical injury upon contact with the skin. You buy coffee to drink, and you can't drink this coffee without seriously hurting yourself.

You mentioned the 'between the legs' thing before and I answered you. The jury found the lady contributorily negligent, let me simplify that "It's your fault too, don't put hot coffee between your legs." But what's the proximate cause of the burns? Only that she spilled the coffee? Of course not! If you spill coffee on yourself you will get burned, 1st or maybe even 2nd degree if you don't get it off right away. But third degree burns? Those are serious physical injuries, she got them because McDonald's was negligent in keeping their coffee too hot without a warning.

Yup, Madison city ordinance states we have to have snow and ice cleared off the walks by noon the day after an ice or snow storm. It's due to the "safety" of the citizens. Maybe if the citizens would figure out not to walk on icy sidewalks...

That's a legislative issue. Write to your local rep. That's not a problem with tort liability.

Please. It's their property. Duty to others that want to use another person's property....that's absurd. It's not my job to coddle you or anyone else, if you or they want to take a walk. This isn't a commune.

You have responcibilities even to keep your own property safe. We live in a society were contact between people and their property is impossible to avoid. You may be surprised to learn that many would consider it irresponcible of you to put a minefield on your lawn.

Far be it from me to defend lawyers but, I'm going to defend lawyers a bit.

Yes, there are frivolous lawsuits and lawyers who make a fortune off them. The answer to this is strict laws prohibiting frivolous suits, not just throwing them out of court but applying penalties also. We have some; we need more. Same applies for scam artists who deliberately set up lawsuits, like that woman who planted a finger in Wendy's chili.

However, tort law is often the last resort to force corporations to stop doing bad things. I agree that a lot of settlements are for ridiculous amounts of money, but in many cases, the awards are not meant to represent real value, but are punitive, to punish the defendants for wrong-doing in a way they won't soon forget. Such lawsuits can expose the true extent of wrong-doing, too, which can be vital to consumer and public safety awareness -- as in the big tobacco and asbestos settlements, where there is ample proof of corporations knowingly putting people at risk in order to make or save money. Yes, some smaller businesses can be destroyed by such big actions, but considering the harm being done to the public, I have to think of those as necessary collateral damage.

When we live in a world where you can't see the view because of all the warning signs and guard rails, we've gone too far. But when we live in a world where cars don't explode as a result of a low-speed fender-bender collision, that's the proper use of tort law.

BTW, regarding ice falls -- If the piece of land with the ice on it is subject to laws requiring the owner to remove ice and snow, then the injured person may have a claim, but it can be contested -- and such claims are contested, every year.

I'd go a step further and say it's due to the litigious nature of the American populace. We're sue happy.

If we wouldn't sue over the stupidest little things, just to get a free buck, those doctors may have been allowed to try to save more people.

Stop suing everyone for everything, put a bunch of lawyers out of jobs, and maybe we can start concentrating on what's really important.

Exactly. Everyone complains about the red tape, but it wouldn't exist if not for the litigation that goes on every day in this country against people who were behaving reasonably.

This is more evidence for tort reform than anything else.

And to one of the other posters, this had nothing to do with who could pay the bill. They were worried about being sued with no insurance to cover those doctors.

At my company, we've turned away a potentially valuable employee because of being arrested for fighting his freshmen year of college as an 18-year-old, five years earlier. The insurance company didn't want to have to cover in the event of a lawsuit if this guy loses his temper and hits somebody at work. Ridiculous red tape? Absolutely. Even more ridiculous lawsuits causing said red tape? Of course.

Far be it from me to defend lawyers but, I'm going to defend lawyers a bit.

Yes, there are frivolous lawsuits and lawyers who make a fortune off them. The answer to this is strict laws prohibiting frivolous suits, not just throwing them out of court but applying penalties also. We have some; we need more. Same applies for scam artists who deliberately set up lawsuits, like that woman who planted a finger in Wendy's chili.

However, tort law is often the last resort to force corporations to stop doing bad things. I agree that a lot of settlements are for ridiculous amounts of money, but in many cases, the awards are not meant to represent real value, but are punitive, to punish the defendants for wrong-doing in a way they won't soon forget. Such lawsuits can expose the true extent of wrong-doing, too, which can be vital to consumer and public safety awareness -- as in the big tobacco and asbestos settlements, where there is ample proof of corporations knowingly putting people at risk in order to make or save money. Yes, some smaller businesses can be destroyed by such big actions, but considering the harm being done to the public, I have to think of those as necessary collateral damage.

When we live in a world where you can't see the view because of all the warning signs and guard rails, we've gone too far. But when we live in a world where cars don't explode as a result of a low-speed fender-bender collision, that's the proper use of tort law.

BTW, regarding ice falls -- If the piece of land with the ice on it is subject to laws requiring the owner to remove ice and snow, then the injured person may have a claim, but it can be contested -- and such claims are contested, every year.

According to the constitution you cannot be punished without being proven guilty beyond a reasonable doubt. If these companies are breaking the law they should be punished by the law. Punitive damages are punishments without the required of being found guilty beyond a reasonable doubt and in my opinion are an end around the US Constitution and the protective measures put in place to prevent being punished there is doubt. Benefit of the doubt goes deservedly to the defendent.

Quite interesting how an open discussion if physicians in a catastrophe should be allowed to help degenerates into head-bashing over lawsuits...remember the original point. Lifes were lost due to rigidly adhering to a system in need of overhaul!

Quite interesting who an open discussion if physicians in a catastrophe should be allowed to help degenerates into head-bashing over lawsuits...remember the original point. Lifes were lost due to rigidly adhering to a system in need of overhaul!

We are discussing which part of the system is the cause for the problem and which part needs an overhaul. So long as their is the ability to sue people for exhorbitant amounts of money for doing their jobs there will be mountains of red tape surrounding those jobs.

yeah, sure...

According to the constitution you cannot be punished without being proven guilty beyond a reasonable doubt. If these companies are breaking the law they should be punished by the law. Punitive damages are punishments without the required of being found guilty beyond a reasonable doubt...

You are incorrect in your analysis. It is a fairly common mistake, and you have to put some time into studying the law to understand how you are wrong.

Basically, tort liability isn't guilt. If you are found liable by a court you are not found to be guilty, you can continue to argue that you are right, and the court can't make you say that you were wrong.

Because liability isn't guilt, the plaintiff doesn't need to prove beyond a reasonable doubt that you are at fault. Instead, the plaintiff merely has to show that by proponderence of the evidence that you were at fault. The difference is pretty clear. In criminal law you have to be substantially certain (you cannot have a reasonable doubt) that the defendant did the crime. In tort law you have to believe that the evidence favors the plaintiff's case more so than the defendant's, even by a sliver.

Punitive damages are not based so much on the burden of proof, but on the culpability of the act determined by the defendant's mental state. Intentional or reckless actions can incur punitive damages, merely negligent actions cannot incur such damages. A negligent actor merely has to pay for the actual damages he/she caused.

[/b]You are incorrect in your analysis. It is a fairly common mistake, and you have to put some time into studying the law to understand how you are wrong.[/b]

Basically, tort liability isn't guilt. If you are found liable by a court you are not found to be guilty, you can continue to argue that you are right, and the court can't make you say that you were wrong.

Because liability isn't guilt, the plaintiff doesn't need to prove beyond a reasonable doubt that you are at fault. Instead, the plaintiff merely has to show that by proponderence of the evidence that you were at fault. The difference is pretty clear. In criminal law you have to be substantially certain (you cannot have a reasonable doubt) that the defendant did the crime. In tort law you have to believe that the evidence favors the plaintiff's case more so than the defendant's, even by a sliver.

Punitive damages are not based so much on the burden of proof, but on the culpability of the act determined by the defendant's mental state. Intentional or reckless actions can incur punitive damages, merely negligent actions cannot incur such damages. A negligent actor merely has to pay for the actual damages he/she caused.

Actually, you just restated my point of why punitive damages should not be allowed in a civil court. It means that in a court where the burden of proof is much less than a criminal court, I can be punished for that which is not only not a crime but for something that has not been proven beyond a reasonable doubt. It's an end around the system.

Much like OJ being sued for wrongful death and losing when in a criminal court he couldn't be found guilty of being responsible for the deaths in any fashion. It's an end around defendent rights and double jeopardy.

I recognize what the burdens are for each system and that's why I disagree with using civil courts for punishment as I pointed out in the post you are replying to.

If an action is actions are intentional or reckless and this makes them illegal then the defendent should be tried in a criminal court and punished. If they are intentional or reckless and they are not illegal but should be then this is what we have a legislative branch for. Punishing someone in a civil court is an end around both the criminal court system and the legislative branch.

I love how you start with the bolded statement which actually adds nothing to the argument other than saying I'm uneducated and that's why I'm wrong. But that statement is even better when you simply go on to restate everything I already have in a different way. Perhaps next you could explain to me how the legislative branch is different than a civil court (as I already addressed the difference above).

Actually, you just restated my point of why punitive damages should not be allowed in a civil court. It means that in a court where the burden of proof is much less than a criminal court, I can be punished for that which is not only not a crime but for something that has not been proven beyond a reasonable doubt. It's an end around the system.

The lower requirement of proof doesn't make the judgments in tort cases invalid.

I just don't see the problem with pronouncing someone who had likely acted wrongly at fault.

The lower requirement is parallel to the lower culpability of torts actions. Like I said before, torts cases do not make you to be guilty, they just say that it is likely you made a mistake.

Also the risks of losing a torts case are just not as high as losing a criminal case. It's hard to believe with all these large monatery damages being thrown around, I know. But these are not the usual state of the law and it is better to pay $10,000 in medical bills than to go to jail for 3 years.

Also, the differant requirement of proof is appropriate for the actors invovled. In criminal cases it's the government, an institution with vast resources and power, against a single individual. In tort cases it's neighbor v. neighbor, relative v. relative, stranger v. stranger, and so on. We don't want an unusually high burden of proof because we want people to take their disputes to court.

Low requirements for criminal cases encourages authoritarianism. Low requiremetns for civil disputes encourages the civilized use of the court system.

If they are intentional or reckless and they are not illegal but should be then this is what we have a legislative branch for. Punishing someone in a civil court is an end around both the criminal court system and the legislative branch.

Tort and criminal law overlap heavily. They often have differant definitions of crime, but both punish the same actions, more or less.

However, the system is purposely set up so that there are a few things that you can and cannot do which are not criminal but which you also have responcibility for. It isn't criminal to, for example, use explosives in demolition. It can't be illegal, it's a necessary economic activity for society. However, it can cause damages so that innocent people will have to be compensated for those damages.

That is why the distinction between guilt and liability is so important.

Guilt makes you a criminal, a deviant.

Liaibility just recongnizes that you made a mistake in judgment that you should pay for.

It's an end around defendent rights and double jeopardy...If they are intentional or reckless and they are not illegal but should be then this is what we have a legislative branch for. Punishing someone in a civil court is an end around both the criminal court system and the legislative branch.

Here you are making a perfectly valid argument. Usually people will argue that the relief sought in criminal cases, imprisonment and fines, is for society while relief sought in tort, monatery recovery, is for the victim. But punitive damages are specifically not relief, they are, as the name implies, for punishment.

Well that is a problem. It is conceivable that there are some situations where the criminal law will not be able to punish a wrongful action but where tort law can. I'm not sure if these situations are prevelant enough to warrant punitive damages.

I love how you start with the bolded statement which actually adds nothing to the argument other than saying I'm uneducated and that's why I'm wrong.

I honestly didn't mean to insult you. I was just trying to say 'you are wrong, but I understand why, and it's a common mistake'.

I still maintain that your original arguement is wrong, but I do apologize for insulting you.

Yes coffee is hot. Sip it slowly. Expect a first degree burn if you gulp it. Keep it away from children. We all know that.

However, McDonald's coffee wasn't just hot, it was scalding. It caused serious physical injury upon contact with the skin. You buy coffee to drink, and you can't drink this coffee without seriously hurting yourself.


I already posted the link to those that know coffee--190 to 205 degrees F. McDonald's was at the low end of that. They were making it properly.


You mentioned the 'between the legs' thing before and I answered you. The jury found the lady contributorily negligent, let me simplify that "It's your fault too, don't put hot coffee between your legs." But what's the proximate cause of the burns? Only that she spilled the coffee? Of course not! If you spill coffee on yourself you will get burned, 1st or maybe even 2nd degree if you don't get it off right away. But third degree burns? Those are serious physical injuries, she got them because McDonald's was negligent in keeping their coffee too hot without a warning.


She was negligent for not knowing the industry standard temps.


You have responcibilities even to keep your own property safe. We live in a society were contact between people and their property is impossible to avoid. You may be surprised to learn that many would consider it irresponcible of you to put a minefield on your lawn.

Here's my problem--I'm not a socialist. It's not my job to protect anyone other than those I choose to (and will allow me).

I already posted the link to those that know coffee--190 to 205 degrees F. McDonald's was at the low end of that. They were making it properly.

Defense attorneys made that arguement and it didn't hold. The standard of care to sell safe products takes precedent over making tasty coffee.

Consider an analogy. Fast rollercoaster are fun. The faster the better. So if you make one go so fast that it collapses and kills and injures people it's ok, because it's supposed to go dangerously fast.

Hmmm... No sir, I don't like it.

She was negligent for not knowing the industry standard temps.

As I said before, she was found partially at fault.

But, McDonald's shouldn't make coffee that can cause serious injury. Should I be expected to know every defect of every product I buy, even if I have no warning and even if it is not reasonable to suspect such a defect?

I don't get it. You seem to be all for personal responcibility. The victim should have been responcible. OK. But doesn't McDonald's have the responcibility to sell safe products and warn the customer if a product is not safe?

Here's my problem--I'm not a socialist. It's not my job to protect anyone other than those I choose to (and will allow me).

That's not a socialism thing... but anyway let's not get into that tangent.

Yes it is your responcibility. If you do something, or fail to do something, your actions, or inactions, have to be evaluated. If you are at fault, if someone was hurt because of your fault you have a responcibility to fess up and pay for your mistakes.

Defense attorneys made that arguement and it didn't hold. The standard of care to sell safe products takes precedent over making tasty coffee.


Exactly. The nanny state decided that it knew better than the coffee professinals. And who decided that?


Consider an analogy. Fast rollercoaster are fun. The faster the better. So if you make one go so fast that it collapses and kills and injures people it's ok, because it's supposed to go dangerously fast.


Now, do they build them like that? No. Because people wouldn't go to them. Most people already know they have to be careful around coffee--that it's extremely hot. The knowledge, common sense, if you will, is already out there. If a roller coaster was built, and it was commonly known that they could kill you, or even injure you, not many sane folk would go on it.


But, McDonald's shouldn't make coffee that can cause serious injury.


Why not? Seriously. Should we pad all roads, so cars won't make any sort of crushing impact, too? She put a hot drink between her legs--no one made her do it. Doesn't matter HOW hot it was--we all know that coffee burns. What difference if it was 1st, 2nd, or 3rd degree? You WILL get hurt, regardless, should you get any on you.


Should I be expected to know every defect of every product I buy, even if I have no warning and even if it is not reasonable to suspect such a defect?


Nope. HOT coffee is not a defect--it's standard. Those that are in the profession say so--maybe not the politicians and lawyers, but hey, it's not their field, now is it?


I don't get it. You seem to be all for personal responcibility. The victim should have been responcible. OK. But doesn't McDonald's have the responcibility to sell safe products and warn the customer if a product is not safe?


If we have to put a helmet on every consumer, they're no longer responsible for themselves. It has to be a choice. The product is safe--it's the user that wasn't safe, by their own actions. Some people choose to accept risks--like bungie jumpers or people who para-sail.


Yes it is your responcibility. If you do something, or fail to do something, your actions, or inactions, have to be evaluated. If you are at fault, if someone was hurt because of your fault you have a responcibility to fess up and pay for your mistakes.

If I leave land mines on my property, and someone walks on the property, and dies, it's not my responsibility. They walked somewhere they had no knowledge of (nor had permission to be on). If you choose to accept a drink that is hot (but you don't know how hot), you accept responsibility for your actions. Me not shovelling my walk doesn't make it my fault that someone walked on the walk when it was slippery and fell. It makes the walker damn unobservant and rather careless in how they proceeded. There is no failure to do anything on my part. They chose that route.

The lower requirement of proof doesn't make the judgments in tort cases invalid.

I just don't see the problem with pronouncing someone who had likely acted wrongly at fault.

The lower requirement is parallel to the lower culpability of torts actions. Like I said before, torts cases do not make you to be guilty, they just say that it is likely you made a mistake.

Also the risks of losing a torts case are just not as high as losing a criminal case. It's hard to believe with all these large monatery damages being thrown around, I know. But these are not the usual state of the law and it is better to pay $10,000 in medical bills than to go to jail for 3 years.

Punishment is punishment. Paying 10,000 in medical bills is not punitive damages, it's compensatory which is the purpose of a civil case. Stay on point. Arguing that compensatory damages are fair is arguing against a point I didn't make. You're doing the same with the coffee argument. If you market a dangerous product knowingly without warning people you deserve to be jailed, not fined, but that's not the point. This is the job of the legislature and criminal courts to decide. It is not the job of civil courts to say well you deserve to be treated as a criminal in our not so humble opinion so we'll treat you that way without due process or even citing what law you've broken. That's the point.

Due process (5th Amendment0- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Read that twice and you'll notice that it guarantees protection from being deprived of property (money) without due process. The fifth amendment makes no distinction between the requirements when you are deprived of life, liberty or property. The fact that jail is not possible in a civil case does not make it okay to do an end around the fifth amendment. Due process does not only protect you from going to jail. You are required to have due process before being punished by death, jail or fines. This is an end around due process and double jeopardy.

Also, the differant requirement of proof is appropriate for the actors invovled. In criminal cases it's the government, an institution with vast resources and power, against a single individual. In tort cases it's neighbor v. neighbor, relative v. relative, stranger v. stranger, and so on. We don't want an unusually high burden of proof because we want people to take their disputes to court.

The high burden of proof has nothing to with it being the government. The US Constitution says that you cannot be deprived of life, liberty or property without that level of process. In a damages case you are being asked to shoulder the burden of an action rather than someone else. In a punitive case you are being punished. OJ Simpson was put on trial for murder twice, once in criminal court and once in civil court. Some people applaud the action because of the likelihood of his guilt but it's symptomatic of a much bigger problem. We look to the courts to rectify the shortcomings of the legislature, but it is not for the courts to make up law, which is what happens when we punish people or companies for things that aren't crimes and it's even worse when punish people for what are crimes because we can't meet the necessary burden of proof of a criminal trial.

Making it about resources is ridiculous. Microsoft has far more to pay lawyers than the city of Nantucket will EVER have.

Low requirements for criminal cases encourages authoritarianism. Low requiremetns for civil disputes encourages the civilized use of the court system.

Does it? Punitive damages are the reason tort cases have gotten out of control. If only compensatory damages were awarded cases would be brought back within the realm of reasonable rather quickly. Lawyers wouldn't be making their careers off of unfortunate defendents that barely get enough money for compensatory damages anyway. The threat of unlimited punitive damages are often what causes companies to settle cases that should have gone to court and this results in clients get $20,000 in cases where they should have been awarded full compensation for the burdens of the actions of the defendent upon them. Tort law bites both sides and usually the only ones who win under the current system are the tort lawyers.

Tort and criminal law overlap heavily. They often have differant definitions of crime, but both punish the same actions, more or less.

And one is a violation of the fifth amendment and one isn't. They are not permitted to overlap and not designed to. Civil court is not called criminal court for a reason. I believe it's not I who needs to familiarize themselves with the purposes of the civil justice system.

However, the system is purposely set up so that there are a few things that you can and cannot do which are not criminal but which you also have responcibility for. It isn't criminal to, for example, use explosives in demolition. It can't be illegal, it's a necessary economic activity for society. However, it can cause damages so that innocent people will have to be compensated for those damages.

Again, don't confuse compensatory and punitive damages. It is illegal to use demolitions in an unsafe manner. If you weren't unsafe then you should only be forced to compensate the victim(s) which is the absolute role of the civil court. Punishing companies and people is not the role of the civil court and shouldn't be. Make your argument solely on punitive cases, since no one is arguing the civil courts out of existence. They have a role and they need to operate within that role. Stepping into the realm of punitive law is a gross overstepping of bounds.

That is why the distinction between guilt and liability is so important.

Again, so is the difference between punishing and compensating.

Guilt makes you a criminal, a deviant.

Liaibility just recongnizes that you made a mistake in judgment that you should pay for.

Again, stick to punitive damages. Punitive damages as you pointed out are not awarded for mistakes.

Here you are making a perfectly valid argument. Usually people will argue that the relief sought in criminal cases, imprisonment and fines, is for society while relief sought in tort, monatery recovery, is for the victim. But punitive damages are specifically not relief, they are, as the name implies, for punishment.

Exactly. Finally, you come back to the topic at hand. The bounds overstepping of the civil justice system.

Well that is a problem. It is conceivable that there are some situations where the criminal law will not be able to punish a wrongful action but where tort law can. I'm not sure if these situations are prevelant enough to warrant punitive damages.

Need doesn't matter. The role of the legislature is to decide what is and is not illegal. This is not the role of the civil court. The role of criminal court is to enforce that which is illegal. This is not the role of the civil court.

I honestly didn't mean to insult you. I was just trying to say 'you are wrong, but I understand why, and it's a common mistake'.

I'm quite familiar with the law which was demonstrated in my original point and every post since. Ad hominems probably don't please you when I use them and they don't please me when you do.

I still maintain that your original arguement is wrong, but I do apologize for insulting you.

Except my argument has always been that punitive damages overstep the bounds of the civil courts and you've just admitted as much. What part of my 'original' argument was wrong. Punitive damages are an end around the fifth amendment and this is, was and always will be my point.

This is starting to get exhausting.

Why not? Seriously. Should we pad all roads, so cars won't make any sort of crushing impact, too? She put a hot drink between her legs--no one made her do it. Doesn't matter HOW hot it was--we all know that coffee burns. What difference if it was 1st, 2nd, or 3rd degree? You WILL get hurt, regardless, should you get any on you.

In determining fault, juries are instructed to consider the following:

1) The probability of the risk of harm.

2) The severity of the harmto a potential victim.

3) The cost of precautionary measures.

In the case of McDonald's the probability of risk of harm was high, as determined by medical professionals. The severity of the harm was also high. The cost of the precautionary measures? Nominal at best. McDonald's has since lowered the temperature of their coffee and I bet that coffee sales have not been hurt.

We don't "pad all roads" because despite the high risk of severe harm the cost of doing is too high, and so we live with dangerous roads and use the tort system to seek recovery.

Nope. HOT coffee is not a defect--it's standard. Those that are in the profession say so--maybe not the politicians and lawyers, but hey, it's not their field, now is it?

Doctors say the coffee is a hazard, coffee professionals say it tastes best when it's a hazard... Gee, whose advice should we take.

If we have to put a helmet on every consumer, they're no longer responsible for themselves. It has to be a choice. The product is safe--it's the user that wasn't safe, by their own actions. Some people choose to accept risks--like bungie jumpers or people who para-sail.

Well... ignoring the hyperbole... I have already answered you. Civil courts do consider the fault of the plaintiff and if the evidence demonstrates that the plaintiff was more at fault than the defendant, even by 51% to 49%, then the plaintiff gets nothing. However, if the plaintiff is at fault to a lesser degree, then the plaintiff's judgment is reduced accordingly.

You see, the responcibility of the plaintiff is considered. In fact, this responcibility weighs strongly against the plaintiff.

Zaxon, I noticed that you are proud to be a libertarian. OK, this explains your fear/disdain of government and apparently socialism (whatever that has to do with it).

I'm not going to debate you on that, in fact I'm not really willing to because I'm sympathetic to a number of libertarianism's presumptions and conclusions. However, tort law isn't the case of a "nanny" state overstepping it's bounds. The adjudication of tort, and other kinds of, law is the basic function of the government. It's a way for injured persons to seek redress in an orderly and civilized manner.

Now if you are saying that, "Well Nikitas, I don't like the high rewards", then I will say that depending on the circumstances I agree with you wholeheartedly.

And if you are saying "Well Nikitas, I hate frivilous cases and irresponcible morons, lawyers and their clients, taking advantage of the system", then I will say to you Amen.

And if you are saying "I don't generally have a problem with tort law, but I don't like the way the McDonald's case was decided", then I will say that reasonable minds can disagree.

But if you are saying that the underlying problem of the torts system is that people have no responcibility to others to act in a reasonable and prudent manner, then you are just insane and most certainly not a libertarian.

Punishment is punishment. Paying 10,000 in medical bills is not punitive damages, it's compensatory which is the purpose of a civil case. Stay on point. Arguing that compensatory damages are fair is arguing against a point I didn't make.

Granted, $10,000 and 3 years are figures I pulled out of my ass as a ridiculous example. But why is it hard for you to imagine that the $10,000 I posited didn't include both compensatory and punitive damages?

I wasn't saying anything more than paying money is considered to be (and often is) not as bad as going to jail. You may disagree and that's fine. But I am only saying that we need two systems to make a distinction between a criminal act, which is morally reprehensible, and a tort act, which carries very little moral baggage outside of the 'intentional torts'.

If you market a dangerous product knowingly without warning people you deserve to be jailed, not fined, but that's not the point.

The criminal system uses fines to punish corporations. Who would you jail in the McDonald's case? The cashier? The manager? The board and the CEO? Why not the whole company?

This is the job of the legislature... to decide

And the legislature has authority to legislate the civil law. But so far it hasn't, with few exceptions, and outside of those exceptions someone has to be make the law. By tradition it's the courts. If you don't like it, write to your state and federal representatives.

It is not the job of civil courts to say well you deserve to be treated as a criminal...

I cannot stress this enough. I'm not sure that you will accept it; nevertheless I must continue to insist. Civil courts do not proclaim the losing party as a criminal. 'You have fault and should be punished so that you don't do it again', is a far cry from 'you are a criminal, a pariah to society'.

The Fifth Amendment is a rather weighty text. Let's just clip out the parts we don’t need: double jeopardy, because I agree with you on this aspect of the debate; the section on war time and the military; the section on self-incrimination; and eminent domain.

So we are left with...

No person shall... be deprived of life, liberty, or property, without due process of law

Well you were kind enough to bold due process of law. So then, could you explain how civil courts are not due process? They... are courts. They have nearly the same rules of evidence. They have judges, attorneys, and juries. They are sanctioned by the legislature. They are also under the legislature's scrutiny.

Is it only because that they don't require the plaintiff to demonstrate beyond a reasonable doubt that the defendant is at fault?

Well you couldn't possibly mean that because the same process of law that has decided that beyond a reasonable doubt is the appropriate burden of proof for a criminal case has also decided that preponderance of the evidence appropriate for a civil case.

The high burden of proof has nothing to with it being the government. The US Constitution says that you cannot be deprived of life, liberty or property without that level of process.

That's ridiculous! The Constitution is a document that describes government structure and responsibility. The Bill of rights is a document that limits government power. What citizens are required to do or not do was to be decided later by the government. That is why you do not have a penal code in the Constitution or state constitutions.

Does it? Punitive damages are the reason tort cases have gotten out of control. If only compensatory damages were awarded cases would be brought back within the realm of reasonable rather quickly.

Yes of course, but at what cost? We would have lost our ability to punish non-criminal but wrongful acts.

If you want to make everything that could ever possibly be considered wrongful into a crime then you would be very busy indeed.

Lawyers wouldn't be making their careers off of unfortunate defendants that barely get enough money for compensatory damages anyway. The threat of unlimited punitive damages are often what causes companies to settle cases that should have gone to court and this results in clients get $20,000 in cases where they should have been awarded full compensation for the burdens of the actions of the defendant upon them.

The plaintiff's lawyer that has the threat of high punitive damages on his/her side but still manages to get less than the compensatory damages is one shitty lawyer. I think you would be hard pressed to find a trend in settlements where the plaintiffs get totally screwed.

And one is a violation of the fifth amendment and one isn't.

As I said before, nope. Civil law follows due process and the 5th only limits government actions.

They are not permitted to overlap and not designed to.

Not permitted by whom? Certainly not by every legislature and legal professional since the first penal codes were created.

Again, don't confuse compensatory and punitive damages.

For the most part that passage was speaking directly about punitive damages. But you are right in that my hypothetical did mix the two. Activities such as demolitions are under the doctrine of strict liability where the defendant must pay all damages that were proximately caused by the dangerous activity, but no punitive damages can be sought.

A better example would be tort battery, where someone intentionally strike me or violated my person without special privilege. If I get punched in the face for no reason, then the person gets jail time, gets to pay my bills, and pays me a bit extra so he learns not to do it again.

You think it's overkill (punitive damages are inappropriate) every time, I say it could be overkill but we can only make that decisions based on the circumstances and the little extra I got.

Punishing companies and people is not the role of the civil court and shouldn't be.

Why not? Civil courts do find fault if not guilt. And the punishment they deal out isn't as bad as that of criminal courts (generally speaking).

Stepping into the realm of punitive law is a gross overstepping of bounds.

There is no such thing as punitive law. Punishment is a result of wrongful or illegal action, it isn't an area of law.

Again, stick to punitive damages. Punitive damages as you pointed out are not awarded for mistakes.

But they are. Compensation: "You were wrong so make it right." Punishment: "You were wrong so learn not to do it again".

Punitive damages are perfectly reasonable were they act as a deterrent.

Need doesn't matter. The role of the legislature is to decide what is and is not illegal. This is not the role of the civil court. The role of criminal court is to enforce that which is illegal. This is not the role of the civil court.

Of course need is important. This isn't only about lofty ideals and armchair speculation. We need the law to settle disputes. When the legislature hasn't decided the law in a broad area, we need the courts to make the law.

Ad homonims probably don't please you when I use them and they don't please me when you do.

I could interpret your tone in your last response as unnecessarily aggressive, condescending, and outright rude.

But I won't, because I figure you are a decent person. I also know that the written word is an imperfect form of communication.

I didn't mean to insult you, and I apologized for it even though I didn't intend it. So please don't dwell on it.

Except my argument has always been that punitive damages overstep the bounds of the civil courts and you've just admitted as much. What part of my 'original' argument was wrong. Punitive damages are an end around the fifth amendment and this is, was and always will be my point.

A response here will also serve ideally as a summary to my thoughts.

You claim that civil courts are violating Fifth Amendment rights on two primary grounds.

First, due process. This is incorrect on several counts. Due process is a restriction on the government not on individuals. When individuals demand punitive damages from the court they, the individuals, are firmly within their rights and not violating due process (only the government can do that). Furthermore, the very idea that the courts of all institutions could possibly be systematically violating due process is rather odd.

Second, double jeopardy. In this I agree that you have a strong argument of which I neither have a counter nor am I sure that I would wish to counter.

There is much to discuss about double jeopardy. Should it fall under a restriction of the government like due process so that only criminal courts are prohibited from it? Does that mean you can be liable for the same tort several times? Are wrongful death and homicide, for example, sufficiently similar so that a defendant is being prosecuted for the same act?

I don't know the answer to these questions and many others with regards to double jeopardy. And so I'm not assenting to the argument, but acknowledging that it is reasonable, powerful, and that I do not have the answer.

Granted, $10,000 and 3 years are figures I pulled out of my ass as a ridiculous example. But why is it hard for you to imagine that the $10,000 I posited didn't include both compensatory and punitive damages?

I wasn't saying anything more than, paying money is considered to be (and often is) not as bad as going to jail. You may disagree and that's fine. But I am only saying that we need two systems to make a distinction between a criminal act, which is morally reprehensible, and a tort act, which carries vary little moral baggage outside of the 'intentional torts'.

Did you read the fifth amendment? Regardless of the penalty, according to the 5th amendment, you are afforded due process.

The criminal system uses fines to punish corporations. Who would you jail in the McDonald's case? The cashier? The manager? The board and the CEO? Why not the whole company?

You said they proved intent or negligence. If you proved it then you must of proved someone was negligent. Now if the employee was ordered to do it then whoever ordered them is guilty. If the employee did it themselves then they're guilty. However, it's not for me or you or a judge to decide. It's for the makers of laws to decide, and that isn't juries or judges. Also, laws can apply to corporate entities as well. How do you think they apply tax law?

And the legislature has authority to legislate the civil law. But so far it hasn't, with few exceptions, and outside of those exceptions someone has to be make the law. By tradition it's the courts. If you don't like it, write to your state and federal representatives.

No. The courts are not allowed to make law. You do know the purpose of the legislative and judicial branches and why they're different, yes? The judicial branch can't make law because otherwise there are no checks and balances. Legislature make laws and the judicial branch interprets them (civil courts fills a slightly different position but not the legislative position for certain).

Ha, that's hilarious. Write to my state and federal representatives and say what? That they should enforce the US Constitution? That's the job of the Judicial Branch. Then it would be completely backwards. Seriously, if you're not familiar with the US Constitution then this conversation is a waste of time.

I cannot stress this enough. I'm not sure that you will accept it; nevertheless I must continue to insist. Civil courts do not proclaim the losing party as a criminal. 'You have fault and should be punished so that you don't do it again', is a far cry from 'you are a criminal, a pariah to society'.

Kind of like a speeding ticket? Who enforces those? Is that civil courts? Speeding tickets are a perfect example where you can be found guilty and not be considered a criminal in any way.

It doesn't matter. You don't have to proclaim them a criminal. They are punishing them. You are not permitted to punish people without due process.

The Fifth Amendment is a rather weight text. Let's just clip out the parts we don’t' need: double jeopardy, because I agree with you on this aspect of the debate; the section on war time and the military; the section on self-incrimination; and eminent domain.

Uh, clip out double jeopardy? I pointed out how the civil courts were used to violate that.

So we are left with...

Well you were kind enough to bold due process of law. So then, could you explain how civil courts are not due process? They... are courts. They have nearly the same rules of evidence. They have judges, attorneys, and juries. They are sanctioned by the legislature. They are also under the legislature's scrutiny.

http://www.usconstitution.net/consttop_duep.html
Due process has been defined by precedent to mean -
Right to a fair and public trial conducted in a competent manner
Right to be present at the trial
Right to an impartial jury
Right to be heard in one's own defense
Laws must be written so that a reasonable person can understand what is criminal behavior
Taxes may only be taken for public purposes
Property may be taken by the government only for public purposes
Owners of taken property must be fairly compensated

http://www.usconstitution.net/constnot.html#innocent
They also cannot presume guilt and must be proven beyond a reasonable doubt. This is considered so basic of a right that it isn't even codified. It's considered and has been considered since the creation of the US to be common law.

The links explain who these rights and what goverments these rules apply to.

Is it only because that they don't require the plaintiff to demonstrate beyond a reasonable doubt that the defendant is at fault?

Well you couldn't possibly mean that because the same process of law that has decided that beyond a reasonable doubt is the appropriate burden of proof for a criminal case has also decided that preponderance of the evidence appropriate for a civil case.

Yes, for a civll case, for a case that does not include punishment. When the burdens were created punitive damages did not exist in civil court. That's the point. Reasonable doubt in cases involving punishment was decided by common law prior to the creation of the US and, again, is considered so basic that its never been codified.

That's ridiculous! The Constitution is a document that describes government structure and responsibility. The Bill of rights is a document that limits government power. What citizens are required to do or not do was to be decided later by the government. That is why you do not have a penal code in the Constitution or state constitutions.

It isn't citizens that are deciding to penalize other citizens. It's the government. The jury or judge are employed by the government in a civil court. Who pays a jury member? The government. Now you could say you pay court costs but you do so in criminal cases as well. It is the court (a part of the government) that takes money from one party and gives it to another as punishment to the first party.

Yes of course, but at what cost? We would have lost our ability to punish non-criminal but wrongful acts.

You don't have the right to punish non-criminal acts. That's why we have laws. One of the accepted parts of due process according to precedent is that you have a right to only be punished for violations of clear and easily understood law. You don't get to use the government to punish people for whatever you want. Hell, according to you the amendments only apply to the government so if the civil court or a jury decides to punish someone for raising their child in a Christian home because the jury and court decides that it shouldn't be allowed that they could do so. Tear that US Constitution right up. Who needs it, right? You've actually outlined exactly why only the legislative branch can make law.

If you want to make everything that could ever possibly be considered wrongful into a crime then you would be very busy indeed.

Quick question, is something neglect that results in death against the law? Yep. It's called manslaughter. Is intent that results in death against the law? Yep, it's called murder. Wrongful death suits are end arounds to these laws. You can't get past that.

http://law.freeadvice.com/general_practice/legal_remedies/damages_punitive.htm

So far every example you've used could have been prosecuted under criminal law.

It's called double jeopardy and the case against OJ was an end around.

The plaintiff's lawyer that has the threat of high punitive damages on his/her side but still manages to get less than the compensatory damages is one shitty lawyer. I think you would be hard pressed to find a trend in settlements where the plaintiffs get totally screwed.

You aren't very familiar with tort cases are you? Most cases are settled regardless of the likelihood of a loss because of the fact that there is no limit to damages and because cases themselves can become so expensive.

As I said before, nope. Civil law follows due process and the 5th only limits government actions.

Due process is created by the 5th amendment. You can't seperate them. Also, the bill of rights apply always. Not just to the government. Are you suggesting that a civil court can violate your freedom of religion or your freedom of speech.

Not permitted by whom? Certainly not by every legislature and legal professional since the first penal codes were created.

Are you kidding? When did punitive damages start? Certainly, you're not suggesting that punitive damages were permitted during the entire history of our country. Punitive damages are a new phenomena. Prior to punitive damages there was no overlap.

http://www.aon.com/us/busi/risk_management/risk_transfer/punitive_damages.jsp

For the most part that passage was speaking directly about punitive damages. But you are right in that my hypothetical did mix the two. Activities such as demolitions are under the doctrine of strict liability where the defendant must pay all damages that were proximately caused by the dangerous activity, but no punitive damages can be sought.

A better example would be tort battery, where someone intentionally strike me or violated my person without special privilege. If I get punched in the face for no reason, then the person gets jail time, gets to pay my bills, and pays me a bit extra so he learns not to do it again.

So basically, they get tried twice for the same crime. You are familiar with double jeopardy, yes? The criminal court can punish with money or jailtime or a combination of the two. Why is the civil case necessary? Because you feel the law isn't good enough. That's a dangerous path my friend.

You think it's overkill (punitive damages are inappropriate) every time, I say it could be overkill but we can only make that decisions based on the circumstances and the little extra I got.

I don't care if it's overkill or not. I don't care if it's a good thing or not. Sometimes violating freedom of speech is a good thing, but I'm not going down that path either. Due process is in the US Constitution to prevent us from being punished for something without proving it beyond reasonable doubt.

Why not? Civil courts do find fault if not guilt. And the punishment they deal out isn't as bad as that of criminal courts (generally speaking).

What's your point? Where in the 5th amendment does it split out your protections by the severity of the punishment?

There is no such thing as punitive law. Punishment is a result of wrongful or illegal action, it isn't an area of law.

Laws aren't punitive? You are familiar with the word punitive and that it is an adjective? Punitive is an adjective to describe laws that involve punishment. Her's a little help on that.

http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=punitive
Are you going to tell me there's no such thing as green pants next?

But they are. Compensation: "You were wrong so make it right." Punishment: "You were wrong so learn not to do it again".

Wow, it's so much fun when you contradict yourself.

Intentional or reckless actions can incur punitive damages, merely negligent actions cannot incur such damages.

Intentional or reckless actions are not mistakes.

Punitive damages are perfectly reasonable were they act as a deterrent.

Opinion. Ignored.

Of course need is important. This isn't only about lofty ideals and armchair speculation. We need the law to settle disputes. When the legislature hasn't decided the law in a broad area, we need the courts to make the law.

So we violate the US Constitution because we don't like it. What's next? Freedom of Religion? Freedom of Speech?

I could interpret your tone in your last response as unnecessarily aggressive, condescending, and outright rude.

But I won't, because I figure you are a decent person. I also know that the written word is an imperfect form of communication.

I didn't mean to insult you, and I apologized for it even though I didn't intend it. So please don't dwell on it.

I'm not. I was just reiterating why I said anything, as you're doing now.

A response here will also serve ideally as a summary to my thoughts.

You claim that civil courts are violating Fifth Amendment rights two primary grounds.

First, due process. This is incorrect on several counts. Due process is a restriction on the government not on individuals. When individuals demand punitive damages from the court they, the individuals, are firmly within their rights and not violating due process (only the government can do that). Furthermore, the very idea that the courts of all institutions could possibly be systematically be violating due process is rather odd.

Covered above.

Second, double jeopardy. In this I agree that you have a strong argument of which I neither have a counter nor am I sure that I would wish to counter.

There is much to discuss about double jeopardy. Should it fall under a restriction of the government like due process so that only criminal courts are prohibited from it? Does that mean you can be liable for the same tort several times? Are wrongful death and homicide, for example, sufficiently similar so that a defendant is being prosecuted for the same act?

Civil courts fall under the US Constitution as well. Wrongful death and homicide aren't similar. They're the same, except for the punishment, which is the point of double jeopardy. You cannot be tried more than once to decide punishment for the same crime. Not at different levels of government. Not by the people.

I don't know the answer to these questions and many others with regards to double jeopardy. And so I'm not assenting to the argument, but acknowledging that it is reasonable, powerful, and that I do not have the answer.

And it outlines one of the three problems with allowing civil courts to punish. One is double jeopardy (which hadn't been exercised on courts in the past only because punitive damages didn't exist). The second is that position of creating law falls on the legislative branch. Not the judicial branch. And the third is the lack of due process. Due process includes knowing what you can and cannot be punished for.

:rolleyes:

I'm sorry, but your reply is disjointed. It ignores my argument as a whole while you nitpick small parts you don't like.

Besides that you have made yet still more incorrect conclusions about the justice system.

I don't have time for this right now, but I will bookmark this thread and reply after the weekend.

:rolleyes:

I'm sorry, but your reply is disjointed. It ignores my argument as a whole while you nitpick small parts you don't like.

Besides that you have made yet still more incorrect conclusions about the justice system.

I don't have time for this right now, but I will bookmark this thread and reply after the weekend.

Ha. That's great. You give me a reply in seventeen parts, all of which I address and then you complain that my reply that is broken up into parts to reflect YOUR partitioning is disjointed. I replied to ever point you made. You call pointing out the position of the legislative and judicial branches in the process of punishment nitpicking? Defining due process nitpicking? Was it nitpicking when you claimed that punitive law does not exist even though it's a perfectly correct term for what I was referencing? Or is it only nitpicking when I correct you on your mistaken attempt to pick apart my term?

Which incorrect conclusions were those? My incorrect conclusions about how the judicial branch interprets law and the legislative branch makes it? You suggested that courts are SUPPOSED to make law when the legislative branch doesn't, but that is absolutely contrary to the intent. But maybe I'm confused. I mean they did call it the LEGISLATIVE branch, but perhaps that was a misnomer. It couldn't be because they intended for the LEGISLATIVE branch to be responsible for creating LEGISLATURE. You've errantly suggested that courts should be used to circumvent the will of the people as expressed through their elected officials. This is obviously incorrect.

You've tried to seperate due process from the 5th amendment which is an amazing feat since the 5th amendment introduces due process. This is obviously incorrect.

You've tried to suspend bill of rights protections in a civil court. This is obviously incorrect.

You've suggested punitive damages are older than law itself, but punitive damages in civil courts are a new phenomenon in the US. So once again you were obviously incorrect.

Now, as you're not going to post until after the weekend. Take your time. Look up the origin of punitive damages in civil courts in the US. Look up the bill of rights and when you are protected by the bill of rights, particularly the fifth amendment and the fourteenth amendment. Familiarize yourself with which branches were designated to make laws.

If what you say is true, individual civil courts would essentially have unchecked power and the system of checks and balances would be placed on its ear. You've highlighted exactly why it is necessary to discontinue the practice of punitive damages in civil courts.

Have a great weekend and, hopefully, on Monday, I'll find a post that actually takes the US Constitution into account when it talks about crime and punishment.

EDIT: This came out more snide than it was intended. It was really late and I was kind of irritable. Ignore the snideness and just address the points. I do understand where you coming from and I think many others would follow your position, I just don't agree with or any other end around the US Constitution.

This is starting to get exhausting.


Then give up. :D I doubt that will happen though. You're too bright for that.


In determining fault, juries are instructed to consider the following:

1) The probability of the risk of harm.
2) The severity of the harmto a potential victim.
3) The cost of precautionary measures.

In the case of McDonald's the probability of risk of harm was high, as determined by medical professionals. The severity of the harm was also high. The cost of the precautionary measures? Nominal at best. McDonald's has since lowered the temperature of their coffee and I bet that coffee sales have not been hurt.

We don't "pad all roads" because despite the high risk of severe harm the cost of doing is too high, and so we live with dangerous roads and use the tort system to seek recovery.


Yup, somewhere along the way, responsibility got left behind. I know what the juries are told, and who tells them--this is why I don't like lawyers (last I checked, judges have to be lawyers first). They have taken away personal responsibility.


Doctors say the coffee is a hazard, coffee professionals say it tastes best when it's a hazard... Gee, whose advice should we take.


Depends--were they purchasing an apendectomy or COFFEE? So, should ALL coffee be illegal to make at high (normal) temps? The professional that you're citing seems to think that way. That's the problem with your argument--you're using a non-professional (doctor) opinion on the topic of coffee temperature. Coffee is hot, we know it, doctors know it, consumers know it. If it spills on you, it will hurt. Why should anyone be rewarded for placing a potentially damaging substance anywhere on their body, and and then runs into a problem?


Well... ignoring the hyperbole... I have already answered you. Civil courts do consider the fault of the plaintiff and if the evidence demonstrates that the plaintiff was more at fault than the defendant, even by 51% to 49%, then the plaintiff gets nothing. However, if the plaintiff is at fault to a lesser degree, then the plaintiff's judgment is reduced accordingly.

You see, the responcibility of the plaintiff is considered. In fact, this responcibility weighs strongly against the plaintiff.


So, the temperature of the coffee was at 51% or more of the blame? That's absurd. Placing the coffee in the sensetive area in the first place constitutes more than half. That's like putting the coffee on a TV or on the carpet. The coffee spills in both cases. Do you sue McDonald's for breaking the TV or staining the carpet? It'll break the TV, if it gets inside, certainly, and will stain the carpet. But it's not McDonald's fault because YOU put it in the space. And last I checked, McDonald's didn't make the cup, either. You might have a shot at going after the manufacturer, if they made a defective product (something I believe was mentioned in the case as well). Maybe not. They didn't know what McDonald's was going to put in it.


Zaxon, I noticed that you are proud to be a libertarian. OK, this explains your fear/disdain of government and apparently socialism (whatever that has to do with it).

I'm not going to debate you on that, in fact I'm not really willing to because I'm sympathetic to a number of libertarianism's presumptions and conclusions. However, tort law isn't the case of a "nanny" state overstepping it's bounds. The adjudication of tort, and other kinds of, law is the basic function of the government. It's a way for injured persons to seek redress in an orderly and civilized manner.


By blaming someone else, instead themselves for their own ignorance/carelessness? I see that more than others--now that may be the media just posting those types of cases, and me not going out to look for others.


Now if you are saying that, "Well Nikitas, I don't like the high rewards", then I will say that depending on the circumstances I agree with you wholeheartedly.


Well, we agree on part of it. That's something.


And if you are saying "Well Nikitas, I hate frivilous cases and irresponcible morons, lawyers and their clients, taking advantage of the system", then I will say to you Amen.


And another part.


And if you are saying "I don't generally have a problem with tort law, but I don't like the way the McDonald's case was decided", then I will say that reasonable minds can disagree.


I can deal with that.


But if you are saying that the underlying problem of the torts system is that people have no responcibility to others to act in a reasonable and prudent manner, then you are just insane and most certainly not a libertarian.

When it comes down to that, my problem is, who defines what is reasonable or prudent? Libertarianism--my rights end where my fist stops and your nose begins. If I throw the coffee at someone, yes, I am responsible. If I give you a hot cup of coffee, and you put it between your legs, regardless the condition of the container--not my fault. (you normally don't lift cups by their lids, right? You also don't squeeze the cup between your legs, right?) You have a chance to inspect the container--you do this with cars and other things, right? Why not something that can hurt you? If you take the chance, the responsibility is yours.

If the person goes in willingly, and is not coerced, the responsibility is theirs, once the object has been passed off.

Then give up. :D I doubt that will happen though. You're too bright for that.

Yup, somewhere along the way, responsibility got left behind. I know what the juries are told, and who tells them--this is why I don't like lawyers (last I checked, judges have to be lawyers first). They have taken away personal responsibility.

Depends--were they purchasing an apendectomy or COFFEE? So, should ALL coffee be illegal to make at high (normal) temps? The professional that you're citing seems to think that way. That's the problem with your argument--you're using a non-professional (doctor) opinion on the topic of coffee temperature. Coffee is hot, we know it, doctors know it, consumers know it. If it spills on you, it will hurt. Why should anyone be rewarded for placing a potentially damaging substance anywhere on their body, and and then runs into a problem?

So, the temperature of the coffee was at 51% or more of the blame? That's absurd. Placing the coffee in the sensetive area in the first place constitutes more than half. That's like putting the coffee on a TV or on the carpet. The coffee spills in both cases. Do you sue McDonald's for breaking the TV or staining the carpet? It'll break the TV, if it gets inside, certainly, and will stain the carpet. But it's not McDonald's fault because YOU put it in the space. And last I checked, McDonald's didn't make the cup, either. You might have a shot at going after the manufacturer, if they made a defective product (something I believe was mentioned in the case as well). Maybe not. They didn't know what McDonald's was going to put in it.

By blaming someone else, instead themselves for their own ignorance/carelessness? I see that more than others--now that may be the media just posting those types of cases, and me not going out to look for others.

Well, we agree on part of it. That's something.

And another part.

I can deal with that.

When it comes down to that, my problem is, who defines what is reasonable or prudent? Libertarianism--my rights end where my fist stops and your nose begins. If I throw the coffee at someone, yes, I am responsible. If I give you a hot cup of coffee, and you put it between your legs, regardless the condition of the container--not my fault. (you normally don't life cups by their lids, right? You also don't squeeze the cup between your legs, right?) You have a chance to inspect the container--you do this with cars and other things, right? Why not something that can hurt you? If you take the chance, the responsibility is yours.

If the person goes in willingly, and is not coerced, the responsibility is theirs, once the object has been passed off.

I would also like to point out that they are not required to present the opinion of all doctors or a random sampling. They are permitted to search for doctors until they find one or several willing to agree with them and then pay them for their service. It doesn't matter in a tort case if the doctor's opinion is one in a million or 9 out of 10. The opportunity for the defendent in such a case to rebut by bring in a string of doctors that disagree with the plaintiff's doctors are limited.

Also, is boiling water dangerous? Is it necessary to boil water in order to make spaghetti? What if got burned making spaghetti? Can I sue the maker of the product for designing a product that requires me to be put in harms way in order to partake or is the responsibility mine for engaging in a product that by necessity is dangerous? You can bring in a troupe of doctors telling me that boiling water is dangerous and the spaghetti is not required for sustanence and none of that could possibly convince me that the danger of partaking in such a product is evident and the responsibility falls on the person to protect their person from injury while partaking. My eight-year-old nephew knows not to mess with his father while he's holding a hot cup of coffee. If a young child understands the danger inherent in a scalding product why doesn't a fully-grown woman?

As an alternative, if the were rules or laws in place regarding the temperature of the product and the company was violating the standards placed on their agency by appropriate agencies then they should have been held responsible for compensatory damages in a civil court and fined in a criminal court.

A nitpick- don't want to hijack, but it's nice to introduce some paranoia of the government at times like this.
Lotsa blatantly true points which are incredibly basic, then...

You've tried to suspend bill of rights protections in a civil court. This is obviously incorrect. In most cases (such as the coffee thing), you're theoretically right. However, The National Security Act of 1947 (http://www.intelligence.gov/0-natsecact_1947.shtml) abolished the constitution- see sections 105, 602, and the 900's- the Bill of Rights doesn't actually limit the federal government anymore, but it's still used as a general guideline.

A nitpick- don't want to hijack, but it's nice to introduce some paranoia of the government at times like this.
In most cases (such as the coffee thing), you're theoretically right. However, The National Security Act of 1947 (http://www.intelligence.gov/0-natsecact_1947.shtml) abolished the constitution- see sections 105, 602, and the 900's- the Bill of Rights doesn't actually limit the federal government anymore, but it's still used as a general guideline.

HA!

Perhaps you'd like to be more specific, because what I see is authorizing powers to the President relating to foreign countries, agencies and persons in the 900's who don't fall under the US Constitution. The President does, of course, but it is the role of the President to set foreign policy.

I don't see what rights are suspended in 105 or 602. Perhaps you'd like to pull out the specific text that 'abolishes the constitution'.