....agree,plus our population more than doubled since 1945 , so I would infer that our crazy,psycho, sociopathic killers did too. The internet changes the game quite a bit also.Quote:
Originally Posted by trish
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....agree,plus our population more than doubled since 1945 , so I would infer that our crazy,psycho, sociopathic killers did too. The internet changes the game quite a bit also.Quote:
Originally Posted by trish
How come all the psycho-killers are male?
Aileen Wornos?Quote:
Originally Posted by buttslinger
broncofan
You truly believe that a change in product liability law will result in greater protections for all of us. Are you serious? You can't be because your premise is that assault weapons are inherently dangerous. Meaning it is not feasible to make a 'safer' assault weapon. Yes, I read your post regarding product liability law - but realized you had no true concept of the law and chose you ignore the comment. But since you think I missed it, I will address it. Making manufacturers civilly liable for flawed design (which product liability law addresses) will in no way result in changes to our safety. Unless of course you know of a better way to make a safer weapon (much less an assault weapon). Please educate me, no in fact, educate all of us, on the 'safer' gun design that you have. Once you read that the US Supreme Court decisions that have recognized that there does not exist a 'safer' gun design - then you realize that the products liability law is no answer (unless your a plaintiff's attorney who will file a class action that will result in pennies being paid to victims, while your own pockets are lined with millions in settlement money fees). This does not mention that resulting to civil law (and lawsuits) allows manufactures to assert as a defense the actions of the shooter 'as an intervening act' that they are not responsible nor liable for. Assault weapons are the boogie man - you're afraid of the boogie man.
Again - make every single gun transfer subject to background checks. Make the failure to do so result in 5 five year prison term. Its simple that straw buyers will no longer have an incentive in doing so. It will also prevent the 'oh I sold my gun to a friend' issue that often comes up.
It is simple.
It is also simple that once there is an attempt to ban any weapon - gun enthusiasts (or gun nuts as described by yourself and others or the NRA) will go ape-shit draping themselves in the 2nd Amendment. Idiotic as that maybe - it repeated happens. We will not succeed in having such a prohibition. Equally idiotic will be the other side clamoring for the complete ban on certain weapons. The debate will be bogged down and little will occur legislatively.
You do not intend to understand my position - which is your right. You clearly intend to continue your argument regarding assault weapons as the big bad boogie man - that only if we could be rid of them - we will live in everlasting harmony. But the reality is that less than 1% of people murdered were killed by an assault weapon. I am for the 99% who may be helped by a change in our collective treatment of gun ownership and transfer. While I do not suggest my ideas will stop all gun violence, I would much rather address 99% of the problem and thereby 99% of the victims than concern myself only with 1% (even if that 1% is of the most horrible acts our society suffers).
You don't like my comparisons - fine. You cannot attach my statistics, so you attack my analysis - fine as well. You attack me personally - equally acceptable. But I ask you ... do you really think I am wrong for trying to address the larger problem that affects 99% of the victims? Perhaps you do. Perhaps you'll come up with some other insult to hurl at me, my analysis, my logic - be that as it may. Well good luck on your attempt to ban weapons that are already in the public. Equal luck with your falling into argument that NRA loves (and tricks most of its membership into believing that a 'gun ban' may become a reality). Perhaps civil suits (which takes years to go to trial, if they are not settled before hand) is the way to effectuate change country-wide change. But I would argue otherwise and tell you to talk to the plaintiffs in the suits by American Indians, victims of environmental contamination (e.g. Love Canal), asbestos litigants and so on - if their lawsuits have won country-wide change [as opposed to lining the pockets of the attorneys on both sides].
Well I await your next insult.
P.S. Why are you so fascinated with my avatar name of brickcitybrother? Your continual suggestion that my name should endow me with some special attributes leaves me at a lost. Its a name. Its an avatar/screen name. Its not that serious. If you want to know its origin - simply ask. You need not assume. In a forum like this - there are not many secrets people are keeping. At least not here.
Again written in 8 or so minutes - excuse any spelling/grammatical errors.
Quote:
Originally Posted by robertlouis
There was also Dorothea Puente... who killed elderly residents of her boarding house, cashing their social security checks and forging letters to families to keep up appearances. This was during the 80s. I think she died in prison in last year or so.
Brickcity,
I didn't say anything about your screenname. I said I did not call you a name. What you say about products liability law is not exactly right. The requirement of a reasonable or feasible alternative design is not dispositive of design defect in most states. The Third Restatement's invention of the feasible alternative design standard has been rejected by most courts as a dispositive requirement but is used as a factor to consider in the risk utility consideration. When I say inherently dangerous I do not mean to say it is like the 3 foot deep swimming pools people were diving into. At least not with respect to all guns but rather certain types whose only utility is to maim innocents because as a defensive weapon, the effectiveness is slim.
What you say about criminal acts being a superceding cause or intervening act is an attack on causation. This is not something that is uniformly applied in the common law, but has required regulations and statutes to be passed to exempt manufacturers for the actions of criminals with their products. In fact, it is not a principle of cause in fact at all; that is it has nothing to do with whether there is an unbroken chain of causation such that one can say a product is the but for cause of the tort. It is a product of what is called proximate cause, which in tort law means that at some point even when cause in fact is established, courts do not want to hold people liable for the unforeseeable results of their actions. Proximate cause is an artifact of policy, so that liability can be limited to that which can be foreseen and manufacturers can properly insure their risks.
BTW a defense usually means an affirmative defense for which the defendant has the burden of proof once the prima facie case has been made out by the plaintiff. It does not usually refer to those arguments used to rebut the prima facie case such as the lack of proximate cause or cause in fact. And yes, products liability would change the way manufacturers make guns. Various cases were held in favor of plaintiffs and reversed on appeal. There were issues of conduct, which are not held in strict liability but based on negligent marketing. Further, if products liability would not have resulted in liability for manufacturers, why would there have been a need to pass a federal statute to pre-empt tort law which is typically within the province of the states to decide (all you state's rights advocates take heed)?
And if your argument then morphs into a claim that perhaps they'd have been held liable but they would not have responded by developing safer products, we could look at the behavior of other manufacturer's held liable for their products. A design defect finding basically makes a product susceptible to attack from any individual whose harm it caused. It is a referendum on an entire product line. It would not effectively ban all guns but would rather make the production of certain types of guns unprofitable once the external costs are internalized.
BTW, did you do some research on the legal issues? Not to be condescending but you got most of it right. My claim is the federal law meant that strict liability was not able to develop in this arena. The common law is not static as new circumstances challenge old paradigms. As I said the federal law would not have been passed if the legislature did not think the shield were necessary.
There's no such thing as statistics without analysis. There's no point in posting numbers if they are not to render one argument or another more effective. The statistics have to say what you want them to say otherwise they are bare figures.Quote:
Originally Posted by brickcitybrother
We are confusing two things. There are two major policy objectives in tort law. One is redress for the victims. Another is to deter wrongful conduct. You seem to be saying that wrongful conduct has not been deterred because victims have not been properly compensated. If there was a large payout, it would make it irrational for a manufacturer aware of the precedent to make products for which they will have to make similar payouts. I think you said in a previous post that plaintiff's attorneys get too big a cut, which would be relevant to the redress of victims but not necessarily to the deterrence function, since money would be paid out but would not necessarily go to the right party.
Products liability does not eliminate unsafe products but it does reduce their number. If there are not regulatory agencies in place ensuring product safety, at least manufacturers can be forced to internalize the costs imposed on others by their products.
Edit: just in case you miss it I respond to your legal arguments in the previous post.
77 days since Newtown and 2363 gun deaths up by 25 since yesterday.
Quote:
Originally Posted by broncofan
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Your legal training is fine -though it is clear you are not a personal injury attorney (plaintiff or defense). However, perhaps if you read the actual Restatement of Torts article you would under my point better. When plaintiff's tried products cases under the strict liability for Abnormally Dangerous Activities/Products they were initially successful with litigation against the gun known as the Saturday Night Special. However, state legislatures have gutted the claim when the courts did not. The Design Defect claims are also ineffective because both of federal legislation and all state jurisdictions requiring that a Design Defect claim allege adefect in the gun that caused it tomalfunction.
Plaintiffs' attorneys have tried to have courts interpreted design defects to include product designs that pose unreasonable risks only where the unreasonable risks result from a particular design feature that renders the design defective. However, courts have required that in order to recover under this approach, the plaintiff must identify a particular design feature that is defective and then prove that this design feature rendered the product unreasonably dangerous. The identification of a defective design feature, the 'defect', serves as a threshold requirement to considering if the design poses unreasonable risks. Unlike the first approach, this approach does not impose liability for product designs that pose unreasonable risks generic to the basic design of all products of that type. It limits liability to product designs that pose unreasonable risks that result from particular design features considered defective. This has not been successful either as the usual interpretation a the manufacturer subject to liability when its product includes a 'design feature' (e.g. defect) which caused the product to perform in a way not contemplated by a reasonable consumer, to operate less safely than a reasonable alternative design, or to malfunction and, as a result, rendered it unreasonably unsafe, is the manufacturer subject to liability.
Law Review articles have suggested that a simple 'risk-utility test' for design defect would be successful. But talk with the ATLA guys (who know now call themselves the American Association for Justice) about the millions they spent on that theory only to be beaten with a defense of assumption for the buyers (who made informed decisions to purchase such products) and then beaten again by the statistics that don't bear out the risk to third parties out weigh the product's utility (360 million guns and less than 36,000 deaths). Better yet, in the battle of the experts there was not response to the following analysis
Nearly a dozen (11 to be exact) nationwide surveys concerning
defensive gun use, conducted estimated that there are between
760,000 and 3.6 million defensive gun uses per year. During these
uses, only a 1,000 to 3,000 involved the killing of an assailant, with
only 8,000 to 16,000 sixteen thousand involving the wounding of an
assailant. An extremely conservative analysis demonstrates that more
than 97% of defensive gun uses involve showing or merely referring
to the gun. It seems a that for a criminal, given these numbers,
facing a victim with a gun is more likely than arrest and far more likely
than incarceration. And unlike the reactive nature of a police
response, defensive gun use preempts crime before it happens.
[Paraphrased from DON KATES, JR. & GARY KLECK, THE GREAT AMERICAN GUN DEBATE:ESSAYS ON FIREARMS AND VIOLENCE] I did not want to weigh this down with cites but I knew I had to provide some backup for this one.
The plaintiffs' attorney have also tried 'design defect' claims that allege a defect in the gun under the "reasonablealternative" design test. This too has been unsuccessful as technologies that incorporate safety features such as locking devices would serve to “personalize” guns, making them useless to non-authorizedusers haven't been successful technologically or practically. Old fashion gun locks are easily defeated - ask anyone who's has had his bike stolen with the same tech. New tech [imbedded fingerprint scanners or radio ring triggers] is no where near prime time.
The best case for a case against gun manufacturers came in the best state California, with the best case scenario: A mass shooting with an military assault weapon -the TEC 9. [Actually, it was a TEC DC9 which was worse than the original.] The best plaintiffs' attorney got together and sued Intratec, the American sub of Interdynamic AB, which was actually operating as Navegar. 8 years after the case was dismissed on summary judgment, (meaning no trial, no huge verdict, no headlines), the California Supreme Court threw the plaintiff's out of court on every theory (even their negligent marketing claim based on the manufacturer's violation of California statutory law regarding the marketing of handguns).
I saved that case and point for last, because it illustratesthe points I was making that you did not address. 8 years after the best plaintiffs' attorneys, in the most liberal state, with the most liberal laws, with some of the most strigent gun laws, with the most liberal judiciary in the nation, with amass murderer using a 'non hunting' 'killing machine' of a gun to kill innocents - still are tossed out of court before a jury is even selected.
Please, tell me where do you think you're going with the 'sue the manufacturers' to get this society safe from gunstheory! Oh I get it, you will personally argue to Justice Scalia (who by the way wrote the opinion that Washington, DC cannot have a restrictive ban on guns under the 2nd Amendment - District of Columbia v. Heller) to change his mind and/or that of Chief Justice Roberts or Justice Thomas (who always goes against Scalia) or maybe you can appeal to the intellect of Alito (who while on the 3rd Circuit wrote a dissenting opinion which would have let a man who illegally purchased and possessed fully automatic machines go free because he did not believe Congress had the authority under Commerce Clause to trump the 2nd Amendment to ban the sale of fully automatic weapons).
Of course this is really just intellectual masturbation right? I've indicated previously and you say you acknowledge that Congress pretty much closed every door to suing gun manufacturers. The Protection of Lawful Commerce in Arms Act, covers both and state and federal court civil liability for almost all negligence and products liability claims.
Enough of jerking off.
P.S. And yes you kept referring to my name in your posts attacking my opinions and now you back away from it - fine. Can we simply leave that you do not like being challenged and enjoy argument (like most attorneys who find joy in the argument as opposed to finding solutions). I have offered a viable step going forward (perhaps not a complete solution if there is one). I am only offering support to my opinion - not ridicule or derision (though I am not above a small amount of sarcasm).
With that said - I think I will leave this discussion hoping (and working) for a better tomorrow.
Click Here if you're really interested in what the Harvard Law Review had to say about the California case.
When did I refer to your name? I honestly don't remember. If I were backing away from it I wouldn't bring it up. Are you sure I didn't use your name for identification purposes?Quote:
Originally Posted by brickcitybrother
The writers of the restatement as you say did require a product be "defective" in addition to unreasonably dangerous. They were concerned about products such as beer or guns being the subject of a suit just because they happen to be dangerous when used for their intended purpose. The PLCAA provides a similar protection and is a shield to liability. It must have been passed for a reason; the feeling being that eventually a Judge was going to be receptive to the right set of facts.
However, the writers of the restatement are restating the law as it was (if they do it correctly; many questions about third restatement). The law develops based on exigency and I think in the case of guns, the federal law was passed out of fear of what many Republicans call judicial activism. In fact the advent of strict liability was an act of judicial activism as not too long ago it was anathema to hold people liability for defective products when their conduct was non-negligent.
Also, the Navegar case I think is a bad example of the failure of products liability. There was a regulation in California that if I recall did something similar to the federal law. I am talking about the common law developing without the interference of state legislatures or Congress on behalf of gun manufacturers. Why should guns get special protection if as you say they should win these lawsuits based on tort law? I am not going to pull up Navegar, but I think you'll find that I'm right about there being a regulation and so it wasn't a matter of normal tort principles applying. It may be a liberal state, but these suits were not going to stop being filed and gun manufacturers like manufacturers of other products were going to have to defend themselves eventually. Even if successful most of the time, this imposes costs.
We cannot rely on private litigation to be the ONLY tool for regulation. But no reason it shouldn't be a tool for when people have immunity their incentives change.