(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.

Query source of "duty to protect."
And I don't know where you get your strict liability standard, but that's not the law here in Texas.
I know Alabama is a very plaintiff-friendly jurisdiction, but I didn't think it was that plaintiff-friendly.

(06-25-2014 02:13 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.

As I said... this is a law of large numbers. Nothing about opening a store causes heart attacks or contributes to them... in fact, merely opening a store doesn't generate sales either. There is no charge to attend, nor is there a purchase requirement. In the cases you have linked, they all involve PRODUCTS produced and for sale by that company. I understand you'd like to link these things, but that link is not in evidence... certainly not in the case you linked. You're asking me to accept that the court should have created a liability that doesn't exist anywhere else in order to reach a conclusion that similarly doesn't exist anywhere else.

Quote: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.

Yet discussion about whether having such a device present actually prevents that harm or lessens it is immaterial by your argument?

Quote: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.

THIS is what is irrelevant because you haven't demonstrated that such a construct of the law is appropriate. I understand you feel it should be, but you can't point to a case where strict liability was imposed merely for opening your doors.

Quote: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.

You ASSUME they didn't look at step 1 because you ASSUME that the liability you want exists and they are ignoring it. It's only a 2 step process based on your false assumption about other cases like Esrey being 'on point'. In order to FIRST establish that what is true for products is also true for merely opening doors to commerce (your argument), you have to be willing to discuss that pretense, and you aren't. You don't know that they didn't consider your 'first part' assumption because you don't have the whole transcript... You only know that if they did consider it, they disagreed with you.

(06-25-2014 05:29 PM)Hambone10 Wrote:  

(06-25-2014 02:13 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.

As I said... this is a law of large numbers. Nothing about opening a store causes heart attacks or contributes to them... in fact, merely opening a store doesn't generate sales either. There is no charge to attend, nor is there a purchase requirement. In the cases you have linked, they all involve PRODUCTS produced and for sale by that company. I understand you'd like to link these things, but that link is not in evidence... certainly not in the case you linked. You're asking me to accept that the court should have created a liability that doesn't exist anywhere else in order to reach a conclusion that similarly doesn't exist anywhere else.

Quote: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.

Yet discussion about whether having such a device present actually prevents that harm or lessens it is immaterial by your argument?

Quote: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.

THIS is what is irrelevant because you haven't demonstrated that such a construct of the law is appropriate. I understand you feel it should be, but you can't point to a case where strict liability was imposed merely for opening your doors.

Quote: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.

You ASSUME they didn't look at step 1 because you ASSUME that the liability you want exists and they are ignoring it. It's only a 2 step process based on your false assumption about other cases like Esrey being 'on point'. In order to FIRST establish that what is true for products is also true for merely opening doors to commerce (your argument), you have to be willing to discuss that pretense, and you aren't. You don't know that they didn't consider your 'first part' assumption because you don't have the whole transcript... You only know that if they did consider it, they disagreed with you.

I think this is where we are having the disconnect. I'm arguing for this application and pointing to places that can serve as precedent. I've not once argued that what I have said IS the way it is.

I'm for the courts imposing this way of thinking moving forward. I am not saying that it exists as I have outlined it. What I have said is merely a policy argument using existing ideas, and how those ideas can be brought together to create a system of liability to make stores safer. I'm well aware that this is an expansion not an application. That's where JH flew off the handle.

I've also avoided moving too much into the AED reasonableness argument etc because I've also said repeatedly that it isn't really part of what I am talking about. I'm perfectly willing to take your word for it that an AED doesn't work or whatever. That's why I mentioned the defense in my last post.

I think that the Court here missed an opportunity to evolve the law in a way that would make some of these stores safer. My argument really goes no further than that.

To put it bluntly, I'll bet my left nut that this line of thinking was neither presented nor considered by the Court here. It's purely a theoretical argument for the purposes I've stated.

(06-25-2014 04:10 PM)Owl 69/70/75 Wrote:  

(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.

Query source of "duty to protect."
And I don't know where you get your strict liability standard, but that's not the law here in Texas.
I know Alabama is a very plaintiff-friendly jurisdiction, but I didn't think it was that plaintiff-friendly.

It isn't. Like I just said to Ham, I think it is time for their to be an extension of liability, in this fashion, on some of these larger stores. The reason I think that is because these massive stores know terrible things are bound to happen to people and yet take no steps to remedy that, all while bringing in the masses to make money. I think that's immoral.

(06-25-2014 06:14 PM)HeartOfDixie Wrote:  It isn't. Like I just said to Ham, I think it is time for their to be an extension of liability, in this fashion, on some of these larger stores. The reason I think that is because these massive stores know terrible things are bound to happen to people and yet take no steps to remedy that, all while bringing in the masses to make money. I think that's immoral.

I don't.

(06-25-2014 06:11 PM)HeartOfDixie Wrote:  prevents that harm or lessens it is immaterial by your argument?

I think this is where we are having the disconnect. I'm arguing for this application and pointing to places that can serve as precedent. I've not once argued that what I have said IS the way it is.

When you said they got it wrong, that is precisely what you are saying.

If you had said they got it right (based on the law) but that you would like to change the law, that would be something else.

This is why I challenged your comment that 'they got it wrong'.

You seem to now be saying that they didn't get it wrong, you just wanted them to create a new interpretation.

Quote:I think that the Court here missed an opportunity to evolve the law in a way that would make some of these stores safer. My argument really goes no further than that.

And as I said, surely you understand that conservatives don't think this is the court's job. That if you want that to happen, it is should be a matter of law and not merely judicial interpretation. You didn't want to talk about that.

Further, that it isn't entirely clear that the presence of defibrillators actually would make stores safer. You believe they would, but the evidence is 'iffy' at best, unless used by qualified personnel on people experiencing specific types of symptoms.... and you didn't want to talk about that either

So you see, All along I've been specifically talking about what you're talking about... I just don't make the assumptions that you do going in... and you don't want to discuss the assumptions

Strict liability seems reserved for what I can best describe as 'proactive' actions of commerce... like making or selling something... and not merely the ancillary activities of opening the doors to facilitate the commerce. You want to expand this, and that is an okay opinion... but you apparently don't want to talk about the consequences of such an expansion... about the cost OR the benefit.

It reminds me a lot of the 'climate change' argument in that the left doesn't want to talk about how real the problem is or how much it could cost to provide how much benefit to impact how much of the problem... they merely want to assume that spending money will solve the problem and that only fools wouldn't agree with that.

Be clear, I'm not saying you ascribe to to this or that you don't accept that there are other opinions as they do... I am merely stating the similarities in the impact.

Quote:To put it bluntly, I'll bet my left nut that this line of thinking was neither presented nor considered by the Court here. It's purely a theoretical argument for the purposes I've stated.

So if it wasn't a question before the court, they didn't get it wrong, right?

Wow. Watching lawyers go at it is fun.

(06-25-2014 06:11 PM)HeartOfDixie Wrote:  I think that the Court here missed an opportunity to evolve the law in a way that would make some of these stores safer. My argument really goes no further than that.

And I, for one, hope that all courts miss every opportunity they ever have to evolve the law. Forever.

Evolving the law is a legislative function, not a judicial one.

(06-25-2014 06:48 PM)Hambone10 Wrote:  

(06-25-2014 06:11 PM)HeartOfDixie Wrote:  prevents that harm or lessens it is immaterial by your argument?

I think this is where we are having the disconnect. I'm arguing for this application and pointing to places that can serve as precedent. I've not once argued that what I have said IS the way it is.

When you said they got it wrong, that is precisely what you are saying.

If you had said they got it right (based on the law) but that you would like to change the law, that would be something else.

This is why I challenged your comment that 'they got it wrong'.

You seem to now be saying that they didn't get it wrong, you just wanted them to create a new interpretation.

Quote:I think that the Court here missed an opportunity to evolve the law in a way that would make some of these stores safer. My argument really goes no further than that.

And as I said, surely you understand that conservatives don't think this is the court's job. That if you want that to happen, it is should be a matter of law and not merely judicial interpretation. You didn't want to talk about that.

Further, that it isn't entirely clear that the presence of defibrillators actually would make stores safer. You believe they would, but the evidence is 'iffy' at best, unless used by qualified personnel on people experiencing specific types of symptoms.... and you didn't want to talk about that either

So you see, All along I've been specifically talking about what you're talking about... I just don't make the assumptions that you do going in... and you don't want to discuss the assumptions

Strict liability seems reserved for what I can best describe as 'proactive' actions of commerce... like making or selling something... and not merely the ancillary activities of opening the doors to facilitate the commerce. You want to expand this, and that is an okay opinion... but you apparently don't want to talk about the consequences of such an expansion... about the cost OR the benefit.

It reminds me a lot of the 'climate change' argument in that the left doesn't want to talk about how real the problem is or how much it could cost to provide how much benefit to impact how much of the problem... they merely want to assume that spending money will solve the problem and that only fools wouldn't agree with that.

Be clear, I'm not saying you ascribe to to this or that you don't accept that there are other opinions as they do... I am merely stating the similarities in the impact.

Quote:To put it bluntly, I'll bet my left nut that this line of thinking was neither presented nor considered by the Court here. It's purely a theoretical argument for the purposes I've stated.

So if it wasn't a question before the court, they didn't get it wrong, right?

You need to reread my comments pages and pages ago. My take has never deviated one bit.

You've been on some sort of quest here, even going so far as to end up in the land of strict scrutiny, to try and come at me from and entirely pointless angle. I'm sorry; I can't help assuage your embarrassment in attempting to engage here.

They got it wrong.

(06-25-2014 07:08 PM)HeartOfDixie Wrote:  You need to reread my comments pages and pages ago. My take has never deviated one bit.

I know it hasn't. You have simply refused to support or defend your position. You simply think this is how it should be and that is the end of the conversation.

Quote:You've been on some sort of quest here, even going so far as to end up in the land of strict scrutiny, to try and come at me from and entirely pointless angle. I'm sorry; I can't help assuage your embarrassment in attempting to engage here.

I'm not embarassed that I've tried to get you to engage... to defend your position, nor do I find it pointless. That is exactly what I've tried to get you to do. You clearly have an opinion that you felt not only worthy of posting, but to devoting page after page after page of responses to...

but apparently not one line worth defending your opinion to me or anyone else. You just think this is how it should be.

Quote:They got it wrong.

Res ipsa loquitur

(06-23-2014 02:43 PM)HeartOfDixie Wrote:  I think they got it wrong. The Court has the common law duty to push for improvements. There are cities and states which require large stores and such to keep AEDs on hand because they are so big and there are so many people that an AED has a decently high chance of saving a person's life.

I don't think that every store and gas stations from coast to coast ought to have an AED; I'm not saying that. I do believe that when your store is sufficiently large that your duty to protect the people within in increases along with it. And, there is precedent for that.

That sounds like social activism. explain why it's not and why you seem to agree with it in this case.

(06-25-2014 07:08 PM)HeartOfDixie Wrote:  They got it wrong.

Nope.

It's like the head lobbyist for the personal injury lawyers association showed up to stump for an extremely promising untapped source of revenue.

It would be suffocating for me to live in a society regulated as such.