Cross-posted from Tort Deform
A recent post by guest blogger David Nieporent on Overlawyered criticized the denial of immunity and the general reasoning of the recent decision by Federal District Judge Edward R. Korman.
The thrust of the post asserts that the judge’s use of the existing internal rules for the Ferry to help determine the city’s awareness of the risk of pilot incapacitation, and to thereby use them as a factor in determining that NYC was negligent and could not invoke a liability cap based on an 1851 law, was unwise because it would encourage companies to not promulgate internal safety rules or to weaken the internal safety rules that they already have in place.
At first brush there’s a certain appeal to that framing of the case. However, that’s not true if you look closely at the reasoning of the entire case, think hard about the root cause of the accident, and analyze the case using foundational concepts of tort law.
The ferry had in place a rule that the captain and assistant captain had to be at the forward pilothouse at all times. This regulation was based on the risk that the captain at the wheel could suddenly become incapacitated (as occurred and as was the cause of this crash). In simple terms, this regulation is based on the same premise as the airplane co-pilot. You don’t want to have to rely on the stewardess to take control of the plane if something happens to the pilot.
Judge Korman, had to determine whether or not the city was aware of the great risk posed by sudden incapacitation, and looked to these rules, along with other ferry’s internal rules, to determine that it indeed was aware and that its conduct fell beneath the proper standard of care.
Nieporent looks at this case and says by allowing the internal regulations to be evidence of the city’s knowledge of the risk and failure to meet the proper standard of care, we encourage the downgrading of safety regulations
In his own words:
In other words, the fact that at one point in time someone who worked for the city was extra-cautious actually works against the city; as soon as someone put down an idea about safety on paper, it became a minimum requirement rather than an option....So what lesson do we send? Don't adopt any rules beyond the absolute bare minimum; certainly, don't put anything beyond this on paper. (The judge naively pooh-poohed this risk, arguing that a "rational company" would be "far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual," as if a company knew beforehand which accidents were "actually" going to happen.) (link to decision)
Translation: A company should attempt to game future negligence actions by carefully crafting its safety manual instead of being concerned with actually preventing accidents.
I’ve discussed the safety is too expensive business model a variety of timeson Tort Deform.
However, the most ironic aspect of the model being illustrated here is that it is not possible that taking effective safety measures could have cost more than the process of attempting to game future negligence claims. Here, the primary safety measure was cost neutral (i.e. it costs nothing to make both captain and assistant captain stand in the same room when they are both always on board - as did not occur here) and would have prevented this accidents and all those like it.
Tort "reformers" spend an awfully large amount of money and time criticizing personal injury lawsuits and class actions. They’d save themselves a lot of work if they gave more effort to improving safety, and thereby reducing the frequency and severity of the injuries about which these lawsuits are filed.
As stated in the opinion:
It is not surprising that the Staten Island Ferry’s rules were not followed given the
haphazard way in which they were disseminated. At the time the accident occurred, the internal rules were neither well understood nor effectively enforced. The Staten Island Ferry had no formal safety management system. There was no single manual that was readily accessible to crew members. There was no mechanism to monitor who had received the procedures and at what time. And there was no system for ensuring that the rules were actually obeyed. Indeed, "there [were] no formal training programs at the Staten Island Ferry." Gansas Aff. ¶ 5. Instead,
according to Captain Gansas, "there was ‘on the job’ training and the policies and procedures were passed down from the senior Captains and Assistant Captains" by word of mouth. Id p. 7 (link to decision)
Given this fact, why wouldn’t commentary focus on the lack of enforcement of rational rules the adherence to which would have prevented the accident, and ultimately, the subsequent lawsuits?
Moreover, the itself opinion actually addresses Nieporent ’s argument in more detail than he includes in his post:
I do not find persuasive the City’s argument that allowing internal rules into evidence will discourage employers from adopting safe practices. As one commentator has observed, "[w]hen a danger exists and the company knows or should know of it, the company must reckon with the possibility that the very failure to make rules may be used
against it." John M. Winters, The Evidentiary Value of Defendant’s Safety Rules in a Negligence Action, 38 Neb. L. Rev. 906, 932 (1959). A rational company, then, will be far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual. Indeed, in Bryan v. Southern Pacific Co., 79 Ariz. 253 (1955), the leading case in this area, the Supreme Court of Arizona rejected the argument that
defendants now press:
[W]e fail to understand why, as a practical matter, an employer will refuse to adopt such rules when by their adoption and enforcement the accident would not occur – at least through fault of the employer’s servants. To us the more likely result will be that an employer will require a stricter adherence to his rules. Id. at 260. This reasoning reflects the majority rule, adopted by roughly three-fourths of the courts that have considered the question. See C.R. McCorkle, Admissibility in Evidence of Rules of Defendant in Action for Negligence, 50 A.L.R. 2d 16 § 3 (1956); see also Danbois v. N.Y. Cent. R.R. Co., 12 N.Y.2d 234, 239 (1963).
(link to decision)
There’s also more issues here that I hope to discuss in subsequent posts.