The War on Social Responsibility

Louisiana resident John Patterson is in the news and receiving considerable derision for suing Apple as the cause of his hearing loss.

The IPod players are “inherently defective in design and are not sufficiently adorned with adequate warnings regarding the likelihood of hearing loss,” according to the complaint, filed Tuesday in U.S. District Court in San Jose, Calif., on behalf of John Patterson of Louisiana.

The suit, which Patterson wants certified as a class-action, seeks compensation for unspecified damages and upgrades that will make IPods safer. Patterson’s suit said he bought an IPod last year, but does not specify whether he suffered hearing loss from the device.

There have been plenty of stories on frivolous lawsuits in the media these days. Many make for good, funny, reading. With the onslaught of a number of idiotic legal actions, it’s understandable that people could be frustrated, and might tell John Patterson to turn down the volume on your iPod, you iDiot.

And I acknowledge that, given that Patterson can’t prove that his iPod has damaged his hearing, that he is being opportunistic in seeking damages, but hold on. Consider the following paragraph:

The devices can produce sounds of more than 115 decibels, a volume that can damage the hearing of a person exposed to the sound for more than 28 seconds per day.

Wait a minute. One hundred and fifteen decibels? That’s the sound of a live rock concert, and not too far off a jackhammer. You want a rock concert or a jackhammer in your pocket? Maybe that’s a marketing campaign Apple could consider. But why would anybody need a device that had the capability of producing that much noise? What call does Apple have in designing a device which, if used as part of its normal operation, could cause hearing loss?

Some suggest that these lawsuits represent a war on personal responsibility, but alongside these frivolous lawsuits is a war on social responsibility, letting powerful corporations off the hook for mistakes which cause great harm, thanks to high-priced lawyers well versed in the art of shielding their masters from the limited legal firepower available to the little guy.

We’re too quick to judge some lawsuits as frivolous. Consider the case of Stella Liebeck, the 79-year-old grandmother who won millions from McDonalds because of her cup of coffee. Often cited as the classic case proving the need to limit legal settlements, it ignores the very real damage McDonalds did do to Stella’s person, damage that McDonalds did everything in its power to avoid paying for.

Stella spilled the coffee on the crotch of her cotton jogging pants, and the coffee immediately soaked through her pants and caused third-degree burns to her legs, thighs, and genitals. The burns were so severe she needed skin grafts to heal the damage. It took many months for her to recover from the severe burns.

Moreover, it’s rarely mentioned that, at the time of the lawsuit, a study was done which found that the coffee McDonalds sold was as much as twenty degrees hotter than coffee served by other fast food establishments. This conforms with my own experience: I have purchased coffee from Tim Hortons, Starbucks and Second Cup, and have had the lid accidentally pop off and my hands get splashed with hot coffee. I was not scalded. The coffee was hot, but it wasn’t scaldingly hot. And Ms. Liebeck wasn’t the first individual burned by the McDonalds’ brand:

Stella offered to settle the case with McDonald’s if they would just pay her medical bills, which were into the many thousands of dollars. McDonalds refused, and Stella filed a lawsuit. During the trial, it was discovered that in the ten years prior to Stella’s accident, over 700 men, women, and children had been burned by the unsafe McDonald’s coffee.
(link)

Corporate negligence is real, but the right to sue for it is relatively new. Of the five basic torts under the English system (which includes private nuisance, public nuisance, riparian rights and Rylands vs. Fletcher — see, I knew my two courses of Environmental and Planning law were useful for something), negligence was only added in 1929 when a Scottish woman consumed a ginger beer and discovered the decaying remnants of a snail at the bottom of the bottle. Gastric distress followed. During the trial, the person who sold the bottle basically folded his arms and said “caveat emptor”. I am not responsible for the damage my goods do. Am I my brother’s keeper? The judges were so incensed that, although they found he was right in that there was no legal precident under which they could award damages, natural justice required that they set precident. Most of the consumer protection rights that we now enjoy can be traced to this court case.

It helps that the phrase, “am I my brother’s keeper”, often cited by those denying their own responsibilities to those around them, is actually what Cain says when questioned by his parents, Adam and Eve, on the whereabouts of Abel — this being just after he killed Abel. “Am I my brother’s keeper” is not a good Biblical quotation to deny your responsibility to others on, since the implied answer is “most definitely, yes.”

We are not islands. I believe we have responsibilities to go with our rights. We have a responsibility to ensure that something we make and sell to others doesn’t injure when it is used as it is reasonably expected to be used. Some talk about the damage that power tools do and perhaps we should sue for nailing our own hands to the wall, but this isn’t the same thing. When used as the makers intended, power tools cause no injury. You would have no right to sue if you injured yourself through your own clumsiness, but if a power tool had a design flaw which, say, allowed a hammergun to go off while the safety catch was on, causing injury to a loved one, you would definitely want to sue, and I think you would have an absolute right to sue.

There is no good reason I can see for Apple’s iPods to deliver 115 decibels through their earphones. To me, this sounds like a design flaw that could accidentally cause damage to individuals over the course of the product’s normal use. As a result, I don’t believe the company should be let off the hook simply because of our gut reaction after seeing too many frivolous lawsuits hit the press.

This is not to say that I believe that Patterson should be awarded damages when it hasn’t been proven that the iPod has caused his hearing loss. I’m saying that this is something for the courts to decide. If Patterson’s lawsuit is as frivolous as we believe, then the courts will resolve in Apple’s favour and (we can hope) be awarded court costs. But if Apple’s products can damage hearing, and if this is the result of a design flaw, then they should be held liable.

Most of all, the courts should be allowed to decide this one themselves, through the process established through centuries of precident. Nobody wins if corporate responsibility is aborrgated as a result of a gut reaction.


Quick Hits — February 3

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