(06-25-2014 02:28 PM)HeartOfDixie Wrote: One more time:
More than merely foreseeable harms that occur in stores like Target, Wal Mart, etc--which operate on the basis of serving vast numbers of people--will impart strict liability on those stores. So, in practice, if Target knows that it will bring in 100,000 people and knows that it is a statistical certainty that X will occur to a person or persons then they are strictly liable should they take absolutely no action to prevent that harm or lessen it.
Now, separate ourselves for a second.
If the store can demonstrate, to any degree, that they did foresee the problem and take preventative steps, only to the extent that they accepted and acted upon their heightened duty to protect, they can then defend themselves by arguing that there was or was not negligence. This is the point at which a reasonableness argument comes into play for Target. A valid defense would be that it was unreasonable to do X instead of Y, which we did.
It's a two step analysis which merely makes step 1 strict liability instead of starting at step 2, as they did in California.
The entire goal is to recognize a heightened duty to protect. It's a two step process based on sheer size and probability.
One last time, you do not understand what strict liability is. First, as NIU007 noted, strict liability only applies to products and abnormally dangerous activities. If a store is strictly liable for a harm then they are strictly liable regardless of what they do. That's the whole point. If a blasting company sets up the perfect blast, but something goes wrong and a nearby house is damaged, the blasting company pays
regardless of the safety measures they put in place. Saying that a store is strictly liable unless they have done something is saying that they are not strictly liable. It's saying that they have failed to exercise a reasonable standard of care. Which is negligence, not strict liability.
Of course, you don't actually want negligence either, because you are trying to completely divorce causation from the analysis. A store is only liable for harms that it causes. And, as has been previously noted, stores don't cause heart attacks, heart attacks happen in stores. It's statistically certain that in a Target store at this very moment, as long as you are reading this during their business hours, someone is being battered inside a Target store. Are they liable for those too? Are they liable every time a brother pulls his sister's pigtails? The very suggestion is ludicrous.
I'm guessing that attempting to avoid causation is why you a trying to bring in strict liability, but that doesn't save you either. Even under strict liability the plaintiff still has to prove causation. If a reasonably foreseeable use of a manufacturer's did not cause the harm, the manufacturer is not liable. I'm guessing this is the strict liability defense you are trying to flip, but your version makes no sense. What the defense is is that, regardless of the justifications for strict liability, in this case what the plaintiff did was so stupid that the harm cannot be blamed on the product. Your version is just that something bad happened in a store and stores have lots of money so they should pay even though they did nothing to cause the harm. Nothing Target could have done would have prevented the heart attack.
You also don't seem to realize that stores already owe their customers a heightened duty because the customers are business invitees. Of course, no company owes its invitees anywhere near the level of care you have deemed appropriate. Common law isn't going to get you there--despite your protestations the only way to impose the kind of affirmative duty you are attempting to impose is through regulation. Some legislatures might be stupid enough to do it, but I hope not many.
Now you are comparing a store allowing customers to come in with tobacco companies selling cigarettes? If I remember correctly, the defense that was denied the tobacco industry was the assumption of risk (or contributory negligence) on the part of the smoker. Once again, that has nothing to do with the case at hand. Target's claim is that their stores don't cause cancer, not that someone assumed the risk of getting cancer when they walked into the store.
Quote:you pay for the damage you inflict through the course of business
Target didn't inflict any damage. If typing out this statement didn't make you clearly see how ludicrous your position is, this is clearly a hopeless task, so I incredulously bow out.
