While the "she was asking for it" defense has thankfully been purged from most rape trials (at least those involving strangers), it seems to be alive and well in the civil trial world. Last week, a jury held that the terrorists who bombed the World Trade Center in 1993 were only 32% responsible for their actions. The real villain in this terrorist attack was ... the Port Authority, owner of the facility, who so thoughtlessly allowed themselves to get bombed. More via Volokh and Overlawyered. Based on joint and several liability, the PA now is on the hook for the entire $1.8 billion verdict.
By the way, the "smoking gun" in the trial was apparently a recommendation the PA received (one of hundreds and perhaps thousands of suggestions of wildly varying quality) to close the parking lot to cars to prevent car bombs. This helps reinforce my earlier point of why litigation insanity like this actually works to make the world less safe, because such litigation provides a strong disincentive for an entity to have any internal discourse on safety, since notes from this discourse can be held against it later.
It is always useful to think about what consistently applied policy would have satisfied the jury that the PA was not liable. In this case, the jury's verdict was clearly "they should have closed the garage to prevent car bombings." Now, lets apply that everywhere consistently. This would basically mean that we close every car parking garage in the country, since they are all equally vulnerable to a car bomb. Applying this further, wouldn't this same standard also result in closing all tall buildings to prevent airplane attack, closing all airports to prevent hijackings, and closing all government buildings to prevent bombings (well, maybe thats not so bad). I have posted before about finding the absurdity from translating a jury's civil verdict into a consistent policy. Here is one example:
the exact wording on the complaint against the railroad is even better than I thought:
"The
[engineer] did not stop the train in a timely manner, and failed to
yield the right of way to a pedestrian walking along the tracks in
plain view"
A freight train's topping distance is measured in miles, even with full emergency braking.
She and her attorney's further argue:
that
the railroad was negligent for failing to post signs warning 'of the
dangers of walking near train tracks and that the tracks were actively
in useLets
leave aside the obvious point
about individual responsibility, and ask what would happen if this were
the legal standard, to have such signs. To make sure someone saw one,
you would have to have one say every 30 feet. Since there are just over 200,000 miles of freight railroads in the North America that works out to a bit over 35,000,000 signs that need to be posted. At $100 per sign this would cost $3.5 billion.
Here is the serious point: Never would any legislature
pass a law that said there had to be warning signs every 30 feet on
railroads. It would be way too costly for little benefit. At grade
crossings today, we have signs and flashing lights and even gates and
still thousands of people a year drive in front of trains on grade
crossings. So, if we would never require it legislatively, how have we
gotten to a point where a jury might effectively retroactively require
such signs, and assess a multi-million dollar penalty for not doing it?
