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Bad Calif Court of Appeal opinion re skiing - Page 4

post #91 of 115
Thread Starter 
Joe -- thanks, I've been laughing too. It's hard not to when people like Philth and ShiftyWriter write in the same manner as the character "Trixie" in the movie of the same name. Go Emily Watson! Go Philth! Go ShiftyWriter! They are holding court in the Castle of NonSequitur, in the Duchy of Illogic. And, I'm quite happy to be the Court Jester!

When will the loyal subjects decide it's time to tell the Court that they have no visible clothing? Whoo! Talk about mixed metaphors! Now he's mixing tales and fables!

Lawdy, lawdy lawdy. This'n be right near to a hoot.
post #92 of 115
Thread Starter 
MissedShift, double-clutching won't help you now. Do you think you have exposed something? Hey, everybody, let's just quote stuff and then post non-sequitur remarks afterward! We'll expose the original poster as a nincompoop! a cretin! a veritable nabob!

:
post #93 of 115
Gonzo, Pop Culture FYI aside: Lionel Hutz is an occasional guest star on the Simpsons. He is an incompetent attorney character.

Now, which one of you is going to invoke
Godwins law of the web first?

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 12:59 PM: Message edited 1 time, by TomK ]</font>
post #94 of 115
post #95 of 115
<BLOCKQUOTE>quote:</font><HR>Originally posted by ryan:
www.pencorse.freeserve.co.uk/lionel.htm<HR></BLOCKQUOTE>

Without a doubt, the most worthwile post in the last three pages.

edit
Wow, I looked up Godwin's Law. Now I am learning something. This thread is actually informative. Thanks Ryan and TomK [img]smile.gif[/img]

Godwin's Law

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 01:08 PM: Message edited 1 time, by dirtsqueezer ]</font>
post #96 of 115
I know i am going to regret this but...

Gonzo...as I stated before,I don't completely disagree with some of the conclusions you have reached. But there is one thing that still bugs me...HTF does the doctrine of res ipsa loquitor apply? I know what it translates to literally ("The thing speaks for itself"), but as a legal doctrine it has to do with causation issues where a plaintif is injured by an instrumentality under the control of another where the injury would not have occurred but for the presence of negligence. Classic ex.- chair falling out of the window of a hotel strikes passerby. Although the passerby cannot explain the exact mechanism of how the chair came to fall and strike him, because the instrumentality was under the control of the hotel and would not go flying out of a window but for negligence, the fact that the accident occurred, in and of itself, satisfies the causation element. In other words, "the thing speaks for itself".

How does res ipsa apply here?
post #97 of 115
dirtsqueezer,

further re godwin...

if it's been noted here, i apologize; i perused quickly, didn't see it. but for those who don't know, nietzsche was perhaps hitler's favorite philosopher.
post #98 of 115
Thread Starter 
ryan -- do you think that means Nietzsche somehow was involved in Hitler's horrible acts?

Herman -- quite simply, a person runs a red light and collides with someone who has the green. Do you need to know more than the fact of running the red light to see who was in the wrong?
post #99 of 115
<BLOCKQUOTE>quote:</font><HR>Originally posted by Herman:
{how} does the doctrine of res ipsa loquitor apply? I know what it translates to literally ("The thing speaks for itself"), but as a legal doctrine it has to do with causation issues where a plaintif is injured by an instrumentality under the control of another where the injury would not have occurred but for the presence of negligence. Classic ex.- chair falling out of the window of a hotel strikes passerby. Although the passerby cannot explain the exact mechanism of how the chair came to fall and strike him, because the instrumentality was under the control of the hotel and would not go flying out of a window but for negligence, the fact that the accident occurred, in and of itself, satisfies the causation element. In other words, "the thing speaks for itself".

How does res ipsa apply here?
<HR></BLOCKQUOTE>

I think I can see how res ipsa applies here, but I'm not sure how that principle moves this from negligence to recklessness. Assuming two key facts here: that Mastro was downhill from Petrick; that Mastro was in Petrick's blind spot. Mastro may not be able to explain the exact "mechanism" that caused Petrick to hit him because Mastro's back was to Petrick. The instrument of the accident, Petrick himself, was obviously under Petrick's control. The accident occurred due to Petrick's negligence in not checking his blind spot. Again negligence defined as an act that a reasonably prudent person would not do. One expects that a reasonably prudent snowboarder, knowing they have a blind spot, would continually be scanning that blind spot for dangers. So, to me, Herman, I think res ipsa applies quite nicely to Petrick's negligence given the facts as I assume them to be. Like you, I don't get where this gets us to recklessness. Gonzo, while you're answering Herman's question, perhaps you could extend it from negligence (which I think Petrick is guilty of) to recklessness (which I'm not sure applies to Petrick in this case).

Thanks!
[img]smile.gif[/img]
[edit] Gonz, your post crossed with mine. I don't get your analogy to running a red light. In running a red light, the causal (sp?) relationship to the accident is quite clear. If I understand this correctly, res ipsa applies when the causal relationship is not clear or readily provable, as in a chair flying out a window.

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 03:19 PM: Message edited 1 time, by Tag ]</font>
post #100 of 115
gonz,

you're inferring too liberally. scholars are quick to point out that hitler took a few notions (the uberman, the will to power) and ran quite a bit too far. (mussollini as well.) and old fred was dead about 35 years before all that shit hit the fan. hitler happened also to take similar liberties with wagner's music.

edit: perhaps you weren't inferring at all but, rather, asking an innocent question, in which case, ne'ermind.
nietzsche made quite an impression on me, as well, when i was in school. didn't he die of a venereal disease? seriously, i seem to recall that. i know he went a bit bonkers at the end.

late...

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 03:12 PM: Message edited 1 time, by ryan ]</font>
post #101 of 115
Thread Starter 
no apologies needed, ryan -- it was a real question, but given my typical sarcasm I can understand your thinking I might be playing around. Yeah, I think you're right about old Freddy... that's my recollection about his untimely death, too. I loved his things about "we are hyperboreans, ubermenschen" and the old saw, "that which does not kill me, makes me stronger."

I don't think he had an aphorism for the perils of unprotected sexual activity!
post #102 of 115
Thread Starter 
Tag -- great thoughts, good questions!

My point about the sublimation of Petrick's conduct (do not stop at "Negligence," do not collect $200, go straight to "Recklessness") has to do with the character of the risk. I would call it simple negligence if Petrick had merely been going say, 10 mph, and knocked Mastro over without any injury to speak of (other than to Mastro's or Petrick's own pride). Of course, this becomes a bit of hairsplitting -- that's because in most tort cases, universal legal axioms are hard to come by because bizarre tort facts rarely repeat themselves.

Maybe I was too quick on the red light/green light analogy. Let me try to explain it -- perhaps I will end up contradicting myself... You and Herman are correct that in the typical law school example of RIL, when a barrel falls from a window in a 2d story warehouse, and the witnesses could see no agent on the 2d story to cause the barrel's fall, and the barrel strikes Peter Plaintiff, a pedestrian passing below, the liability simply is assigned to the warehouse because there's no other explanation. The warhouse regularly houses such barrels, its window was the only one open above the sidewalk where Peter Plaintiff was injured, and the barrel clearly fell from above and nowhere else.

In Mastro's case, the analogy isn't perfectly linear, but I think it holds. As the uphill skier, Petrick has the obligation to watch out for those below him. As we saw with the Hall/Cobb collision, the care Petrick owes to Mastro (and other downhill persons) includes not only avoiding those he can see, but also factoring in the risks associated with speed and terrain. In Hall's case, that meant accounting for someone being on the other side of a blind knoll. In Petrick's case, that included being aware of Mastro's position and doing the mental calculations of the rate of approach and the time/room needed to avoid colliding with Mastro.

RIL is not strict liability. It is something that posits liability, yet is susceptible of disproof. Under my analogy, in Petrick's case, his collision with a downhill skier resulting in severe injury to that skier is a RIL recklessness assignment, UNLESS he could disprove his recklessness by showing that he proceeded with due care but something intervened -- hidden ice patch on an otherwise perfect condition day, Petrick's board delaminating just as he neared Mastro, etc.

That may be a bit fuzzy and maybe even tenuous to some folks, but I think it's a pretty fair analogy.

Herman, what do you think? Am I heading back down the driveway to The University of Stupid?
post #103 of 115
What if the traffic light is faulty and changes to red at the moment the driver goes through the intersection. Also, has anyone else thought that a skier or rider may not be reckless, but unfamiliar with the sport and the dynamics involved and just hits someone even though they were trying very hard to control their speed and avoid obstacles
post #104 of 115
Case in point, Lucky, is the child everyone's seen on the slopes that keeps accelerating in a straight line. The tears and screams indicate they know danger is imminent, but that's not to say that they know how to regain control. I know at least one adult that has happened to also, but when I looked around nobody would admit to knowing me.

I don't see how res ipsa loquitor would resolve that circumstance.

--
I want to die like grandfather did. Peacefully, in my sleep. Not screaming, like the other passengers in his car.

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 05:37 PM: Message edited 1 time, by ShiftyRider ]</font>
post #105 of 115
Lucky, in the abscense of other information
(if there is any, would someone post it?), I would say that yours is the most likely scenario. That area of the hill is primarily a green slope area. The collision seems to have happened at the intersection of a very short blue trail and a green trail. It is mostly novices who use this area. And I would say that the skill of the participants has alot to do with determining recklessness.
As far as a serious injury indicating recklessness on the boarder's part, note that many skiers have torn their ACL by falling down while standing still.
post #106 of 115
Thread Starter 
Lucky and ShiftyRider - the place where the analogy breaks down a bit is in the inanimate object vs a person. The barrel cannot fall without some intervenor at some point (perhaps placed too close to the window, and warehouse vibrations cause it to shimmy to descent), but when it falls it doesn't have to be manned.

With a traffic light, and the malfunction of the light, RIL no longer applies. My analogy assumes the light is working and the drivers are not driving defective cars.

ShiftyRider, RIL doesn't seek to resolve things. It merely assigns blame & liability. Resolution is another step down the chain.

EDITED to reply to milesb

Miles, that bit about the ACL is hollow, and I think you know it -- just think about it. It seems you are saying that because someone CAN tear an ACL under a freak injury, therefore Mastro's ACL tear was a freak injury and Petrick's liability should be watered down. As a "victim" of ACL reconstruction on each knee, and 3 ACL injuries on the right one, I know that there is nothing bogus about an ACL tear.

<FONT COLOR="#800080" SIZE="1">[ October 11, 2001 07:18 PM: Message edited 1 time, by gonzostrike ]</font>
post #107 of 115
No, I'm saying that it does not necessarily follow that because there is a serious injury, there was significant forces (speed, for example) involved. All it could take to initiate a serious knee injury while skiing would be for the injured party to get off balance. There would not even have to be contact. I think that this is the reasoning behind the court's "circular argument" statement.
post #108 of 115
Good post, Gonzo. Thanks for the explanation! [img]smile.gif[/img]

Miles, thanks also for some more background on the site of the accident.

I agree with your comment, Gonz, about it being difficult to extract general 'rules' about these cases because of the specific nature of each tort claim. I guess I would prefer to think that this ruling would be very narrowly applied and not be considered a broad precedent for other cases.... It does make you wonder though what this court would have done with the Hall case....

[edit]corrected typo

<FONT COLOR="#800080" SIZE="1">[ October 12, 2001 06:39 AM: Message edited 1 time, by Tag ]</font>
post #109 of 115
Most likely, they would have done something similiar, since there were many witnesses, and there is presumably a higher level of responsibility for employees of the ski area, as they should have a better handle on "reasonable activities". Which do not include getting big air at high speed off of a blind roll on an intermediate trail near closing time.
post #110 of 115
Many, if not most, "experts" on Nietzsche have agreed that his decade or so of madness resulted from untreated syphilis. Syphilis was much more of a deadly disease way back because there were no antibiotics to treat it, among other problems. Nietzsche died in 1899 before the disease was well documented and became treatable.

In the 19th century, a common treatment was to use some form of mercury (mercury had been used for centuries in various ways). Docs tried potassium iodine for a time in the 19th c., too. In the early 20th century, a salve with arsenic also became popular.

But once Nietzsche got the tertiary form of the disease, he was toast. No one has found a way to reverse that, as far as I know.

xxL

<FONT COLOR="#800080" SIZE="1">[ October 12, 2001 02:58 PM: Message edited 1 time, by lisakaz ]</font>
post #111 of 115
In (little known) fact, Nietzsche was known by his better friends as "Herr Toast."
post #112 of 115
o...k....
kinda confused about all the banter that's going on in this thread...but here's a question if it hasn't been posed:
In a case like skiing/boarding, wouldn't negligent = reckless? Reckless = skiing/boaring out of control, so how exactly could you be skiing in control if you're negligent of the surroundings around you?

Regards,
RK
post #113 of 115
Mello,

Negligence = Didn't know it was risky, but should have.

Gross Negligence = Didn't know, but "Everybody" knows that it's risky.

Recklessness = Knew it was risky, but didn't care and did it anyway.

(Lawyers, Please correct if I'm wrong.
I know, this is far more black and white than you would prefer, just trying to simplify.)
post #114 of 115
This thread reminds me of the "Grim Reaper" scene from Monty Pythons "The Meaning of Life"

Question:
If you know the hill is really busy on the weekend could you be found to be grossly negligent by just being there ??? :
post #115 of 115
<BLOCKQUOTE>quote:</font><HR>Originally posted by TomK:
Mello,

Negligence = Didn't know it was risky, but should have.

Gross Negligence = Didn't know, but "Everybody" knows that it's risky.

Recklessness = Knew it was risky, but didn't care and did it anyway.

(Lawyers, Please correct if I'm wrong.
I know, this is far more black and white than you would prefer, just trying to simplify.)
<HR></BLOCKQUOTE>

That's pretty much it.

Now AC...put the hammer down on this thread.
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