J Thomas on May 17, 2011, 01:54:32 pm

What are her real damages, an ER visit or a life changing broken hip?

That's a good question.

"+ LOL's injuries amounted to $2,000,000"

I would guess this involves expenses that must be paid to someone, that some of the work has been done but not yet paid for while other of it has not been done, and that all of it is necessary to avoid serious adverse consequences. (It does not include rejuvenation to make her physiologically 15 and beautiful, for example.) Details on this beyond my assumptions could make some sort of difference.

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Did she see the note, can that be proven?

She said she did.

"+ LOL saw, read and understood Co-op's notice of limited liability"

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Was there an intent to harm?

It would make a big difference if there was intent to harm, wouldn't it? But nobody has mentioned the possibility so far. All have agreed that Bobby was negligent, and no one has suggested that anyone was malevolent.
« Last Edit: May 17, 2011, 02:12:38 pm by J Thomas »

SandySandfort on May 17, 2011, 02:08:54 pm
I agree that, in a 'market anarchy' - charming phrase by the way - there are no methods of limiting liability because such limitations require a government fiat creating such limitations. 

(... lots of pretty good analysis)

Defendants win, because no cause of action for negligent infliction of personal injuries can exist in the hypothesized society.

The cause of action is tort. Essentially all legal systems recognize the concept of tort. However, this scenario contemplates it arising out of the Anglo-American common law.

Why Anglo-American common law? When the US started up, it had essentially no history of its own of dispute resolution. However, there was a rich history, stretching back centuries, of dispute resolution from England. Rather than making every case in the new land a "case of first instance," the accumulated wisdom of the English common law was adopted, whole cloth. Of course, the American common law grew and mutated over the years, but the basic wisdom is literally hundreds of years old.

In EFT, a similar situation obtained. Once humans were beyond the direct control of Terran government, they still had disputes that needed to be resolved. The most peaceful, therefore least wasteful, was adjudication by arbitration. You might win, you might lose, but you don't have to fight.

Being a frontier, the only history of dispute resolution is what you brought with you from home. Early adopters were disproportionately Americans or other Anglophones, so that meant Anglo-American common law.


SandySandfort on May 17, 2011, 02:18:40 pm
This arbitrator would assign Bobby to work for LOL (for how long & such, I'd need way more background info on this particular community).  Personally, I think the matter is solely between LOL and Bobby anyway.  If there were some way for an employer to guarantee excellence in every employee, then I'd think the coop owed something, but there isn't, so they don't -- since this is a first offense and the employees do get safety training, coop has done what it could.

If it were my coop, though, I'd have offered to help from the first, as good community relations.

Agreed, but not relevant to the arbitration, assuming the stipulations and the common law.

I don't give a rap about anyone's common law.  What I'm interested in is what will encourage community good will and cooperation and what will drive wedges and create resentments.

Of course, but one of the best ways to do that over the long term is for people to have some idea which things will fly and which ones won't. Not every case has to be a case of first instance to be argued to death from square one. To have this sort of predictability it is useful to have a set of precedents to provide general guidelines. I.e., the common law in this case.

SandySandfort on May 17, 2011, 02:34:04 pm
What is LOL's net worth?

How much of the care for LOL's injuries has already been spent? Like, there could be some immediate emergency care which was provided, and with her condition stabilised she could need considerable work to be made whole, or some increased expense to survive in a crippled state.

What is LOL's expected future lifetime earnings?

What is Bobby's expected future lifetime earnings?

How much capital does Bobby need to function? (Like, to keep a job he needs presentable clothing, maybe a computer or equivalent, a cellphone or equivalent, money for transportation? etc. It might be counterproductive to take the money he needs to make money with. If his only bankrupt choice is a barracks bunk at the pig farm, but by keeping control of a little money he could make much more, that's worth paying attention to.)

All of your questions are irrelevant to the determination of liability, the only issue in this scenario. All of the relevant money issues (and then some) are stipulated. The questions you ask that address need are totally irrelevant to the issue of liability. Some of your questions about damages could be addressed, but none of them have any relevance to liability. What we do about Bobby cannot be addressed until after we have determined the liability question. So, if you intend to provide your judgment as the arbiter, first you must allocate liability, then assign damages, if you want.

J Thomas on May 17, 2011, 03:37:44 pm
What is LOL's net worth?

How much of the care for LOL's injuries has already been spent? Like, there could be some immediate emergency care which was provided, and with her condition stabilised she could need considerable work to be made whole, or some increased expense to survive in a crippled state.

What is LOL's expected future lifetime earnings?

What is Bobby's expected future lifetime earnings?

How much capital does Bobby need to function? (Like, to keep a job he needs presentable clothing, maybe a computer or equivalent, a cellphone or equivalent, money for transportation? etc. It might be counterproductive to take the money he needs to make money with. If his only bankrupt choice is a barracks bunk at the pig farm, but by keeping control of a little money he could make much more, that's worth paying attention to.)

All of your questions are irrelevant to the determination of liability, the only issue in this scenario. All of the relevant money issues (and then some) are stipulated. The questions you ask that address need are totally irrelevant to the issue of liability. Some of your questions about damages could be addressed, but none of them have any relevance to liability. What we do about Bobby cannot be addressed until after we have determined the liability question. So, if you intend to provide your judgment as the arbiter, first you must allocate liability, then assign damages, if you want.

No. As arbiter, I get to ask any questions I want to ask, before I decide anything. I say these make a difference to me in dealing with the situation, and I want to know about them.

SandySandfort on May 17, 2011, 04:20:01 pm
No. As arbiter, I get to ask any questions I want to ask, before I decide anything. I say these make a difference to me in dealing with the situation, and I want to know about them.

Arbiters are consultants hired by the parties. It is the parties who get to decide what they want arbitrated. In this case it is liability. After you ask your questions, the parties can stipulate that they are not relevant to liability. If you insist on proposing looking at ability to pay and the rigging of outcomes, they fire you and hire someone who provide the serve for which they contracted. The questioned asked was who is liable, not who has a greater need or who has deeper pockets. Obviously, I think there is sufficient information to make an appropriate assessment of liability. Ike (or was it Spudit) and Mellyrn seem to agree. I am confident that others will too. At this point, the scenario has nothing to do with what the loser in arbitration has to give to the winner. At this point, all that is being asked is who does or does not have liability and why.

J Thomas on May 17, 2011, 04:56:16 pm
No. As arbiter, I get to ask any questions I want to ask, before I decide anything. I say these make a difference to me in dealing with the situation, and I want to know about them.

Arbiters are consultants hired by the parties. It is the parties who get to decide what they want arbitrated. In this case it is liability. After you ask your questions, the parties can stipulate that they are not relevant to liability. If you insist on proposing looking at ability to pay and the rigging of outcomes, they fire you and hire someone who provide the serve for which they contracted.

Well, if either party gets to fire an arbitrator because they suspect he's heading a direction they don't like, then that will be an interesting system. Do you propose that system? How about if either party can fire the arbitrator after they hear his result?

If both parties agree to fire me, then as far as I'm concerned the problem is now solved from my point of view.


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Obviously, I think there is sufficient information to make an appropriate assessment of liability.

Obviously you do. But you asked me to arbitrate, and you said I could ask questions, and now you refuse to answer them. You are a bad client.

mellyrn on May 17, 2011, 05:30:26 pm
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from: mellyrn on Today at 12:00:07 PM
I don't give a rap about anyone's common law.  What I'm interested in is what will encourage community good will and cooperation and what will drive wedges and create resentments.

Of course, but one of the best ways to do that over the long term is for people to have some idea which things will fly and which ones won't. Not every case has to be a case of first instance to be argued to death from square one. To have this sort of predictability it is useful to have a set of precedents to provide general guidelines. I.e., the common law in this case.

I.e., I need to know the community.  Of course.

Limiting myself to the list presented, I rule for the coop.  I doubt I'll be asked to be arbiter again, but given the safety training, the background check, and the up-till-now clean record, I don't see much difference between LOL falling in the puddle in the store and LOL falling in a puddle on no-man's-land.  Just because the coop has money (the way an unowned piece of something would not) does not -- on my planet -- create liability in and of itself.  If "common law" says that it does, get a different arbiter:  this one thinks that stinks.

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Too bad that you choose to ignore the results of hundreds of years of the trial and error struggles of people trying to reach the goal we all seek.

Too bad you choose to hold today's people hostage to the baggage of the past.

In point of fact, I quite understand you:  today's people have been shaped by their past.  There's no way I could possibly serve my fellows well without knowing something of where we all came from (including me).  That said, the funny-peculiar terminology, for example (evidently from your post the word "offense" is a technical term belonging to "criminal" cases but not "civil" ones) will only matter to lawyers; the farmers won't care, Bobby won't care, LOL won't care if I speak of Bobby's error as an "offense" or not.  And I don't care if "offense" as a technical term stems from English common law or Spanish or Martian.  I don't care if it's a "tort" or a tortoise.  LOL wants her dreadful bills paid by someone other than herself.  Given the agreed-on list, all I can offer is Bobby's services, at most, keeping her personal sidewalk clear for a year.

SandySandfort on May 17, 2011, 07:30:29 pm
If both parties agree to fire me, then as far as I'm concerned the problem is now solved from my point of view.

Though not resolved from the point of view of your clients. My guess is that the market would see to it that you had an early retirement.

Do you see what I mean, J Thomas? You always try to stretch things so far out of shape that there is no relevance to the real world. If I wanted to be a professional arbitrator, I would seek to demonstrate in word and deed that I am a sober, rational and learned person. I would listen to my clients, so that I could provide the best service possible. If people came to me with a simple case that turned on whether or not a declaration of limited liability should confer liability or not, I would not go off hunting for dandruff or left-handed, albino pygmies.

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Obviously, I think there is sufficient information to make an appropriate assessment of liability.

Obviously you do. But you asked me to arbitrate, and you said I could ask questions, and now you refuse to answer them. You are a bad client.

I answered them, but I am not the client. And anywhere but in your rich fantasy world, the clients would be right. So, the clients have all stipulated that your questions are irrelevant. You could ask one of the farmers the color of their undies, and claim it is relevant, but that does not make it so.

As to anyone being a bad client, have you never heard the business admonition, "The customer is always right"? Which leads to a semi-relevant question. Have you any experience running a real business (i.e., not just calling yourself a consultant, but with employees, offices, marketing, etc.) or have you primarily been a wage slave. I would guess the latter.

Now, I have responded to your questions, i.e., they are not relevant. I have a question for you. Why do you consider your questions relevant? The answer to which question would materially alter the determination of liability, the primary question the clients have hired you to determined?  You start with your first question. What possible relevance would the LOL's net worth have to do with the issue of liability? I am quite intelligent and yet can think of no plausible reason why her net worth would have on the question of liability, the question of liability, the question of liability, the only reason I created the scenario in the first place, the question of limitation of liability in a market anarchy like the Belt.

Again, if you can explain how your questions speak to the issue of liability, I would be happy to answer them, but I am pretty sure that is impossible for you to do.

POP QUIZ: What is the primary concept at issue in this arbitration scenario?
1. Liability
2. Damages
3. Need
4. Depth of pockets
5. Dandruff


mellyrn on May 17, 2011, 08:02:06 pm
I'm thinking that the coop has no liability in this case because it had no power to do anything differently than it had done.  No power --> no blame; no blame --> no liability.  ?

J Thomas on May 17, 2011, 09:41:10 pm

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Obviously, I think there is sufficient information to make an appropriate assessment of liability.

Obviously you do. But you asked me to arbitrate, and you said I could ask questions, and now you refuse to answer them. You are a bad client.

I answered them, but I am not the client.

Sv. Sandfort, that is correct. You are not the client. You came into my courtroom, on my property, and told me the order I must proceed on my case. You told me questions I was not allowed to ask, and told my clients not to answer them -- apparently based on your guess as to my purposes. You advised my clients to fire me.

You are way out of line.

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And anywhere but in your rich fantasy world, the clients would be right. So, the clients have all stipulated that your questions are irrelevant. You could ask one of the farmers the color of their undies, and claim it is relevant, but that does not make it so.

My responsibility is to find the best solution I can for my clients' problem. It is not necessary that my first action be to declare who is at fault. Sheesh.

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Now, I have responded to your questions, i.e., they are not relevant. I have a question for you. Why do you consider your questions relevant? The answer to which question would materially alter the determination of liability, the primary question the clients have hired you to determined?  You start with your first question. What possible relevance would the LOL's net worth have to do with the issue of liability? I am quite intelligent and yet can think of no plausible reason why her net worth would have on the question of liability, the question of liability, the question of liability, the only reason I created the scenario in the first place, the question of limitation of liability in a market anarchy like the Belt.

You have postulated multiple clients who are each so intent on liability that they can see nothing else. You have told them not to answer questions beyond that issue, though you have provided information about net worth for some of the individuals involved. But net worth for Bobby, the co-op, and the farmers is irrelevant for the only single legitimate question of liability. The ability of the various defendants to pay has nothing to do with their obligation to pay.  

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Again, if you can explain how your questions speak to the issue of liability, I would be happy to answer them, but I am pretty sure that is impossible for you to do.

Sov Sandfort, you appear to have little concept of anarchy. You tell us the single legal code that arbitrators must follow, and you tell us the order in which they must follow it.

You do not need an arbitrator. Your needs would be better handled with a flowchart. The flowchart could give the questions to ask and the order to ask them, and a simple program could present the questions from a database. The program could be distributed for a small charge to anyone who suspected they might get into litigation, and they could game it out and find their best result for whichever answers their opponents were likely to give.

But unpalatable judgements aside, please just answer the questions. They are probably irrelevant to liability, but they are important to my solution for my clients.
« Last Edit: May 17, 2011, 10:15:01 pm by J Thomas »

J Thomas on May 17, 2011, 10:11:56 pm
I'm thinking that the coop has no liability in this case because it had no power to do anything differently than it had done.  No power --> no blame; no blame --> no liability.  ?

I thought of a collection of things the coop could do to reduce the chance of this sort of accident, while increasing the chance of accidents that involve only employees or contractors. I'm sure you could too. I would suggest the coop consider the possibility of expanding their business in some of those ways, both to reduce the chance of another similar accident and to perhaps find new ways to profit.

But what they are described as doing is customary. Even if it creates accidents at some rate which could be statistically determined with enough experience, it is generally considered an acceptable rate and no one except me is advocating safer procedures. It doesn't make sense to say they're liable when they're doing the same things everyone else in their position is doing, and they were just the particular ones the accident happened to.

These are issues of community standards. If their procedures were considerably more negligent than usual, we would say they were negligent. But when they do follow the consensus community standards, we say they were not.

So, to make up a fanciful case, if they spilled a can of motor oil at the head of a stairway, and didn't clean it up for a week while a long series of customers slipped and caught themselves, and then a customer did slip and fall down the stairs, that would be negligence. They should have known better. Nobody else would admit to doing that.

But when it's one employee making a minor spill, and he chooses to complete his current quick task before he cleans it up (which almost makes sense -- after all, he might spill something else before he's done and clean them both at once -- and someone slips before he had any reason to expect anyone to arrive) when it's one employee making an error of judgement he was trained not to make, this could happen to any employer who allows customers onto his property. They would all be upset if one of them is held liable for something that could easily happen to anybody.

So -- community standards. If it could happen to anybody, you're not at fault when it happens to you. If nobody else admits it could happen to them, you're negligent.

SandySandfort on May 17, 2011, 10:37:37 pm
But inpalatable judgements aside, please just answer the questions. They are probably irrelevant to liability, but they are important to my solution for my clients.

If your questions are irrelevant to the issue of liability, they are irrelevant to the clients. No one asked you for a "solution." They contracted with you for a ruling on allocation of liability. If you cannot do what you were hired to do, I guess they will have to fire you and get a more professional arbiter who gives the clients what they ask for and does not impose his personal opinion and engage in snooping around the client's personal financial information, beyond that which they disclosed in the stipulations. Since you have breached your contract, the clients will, of course, pay you nothing. They may even take you to arbitration, alleging fraud in the inducement.

J Thomas, I know that when you are up to your ass in alligators, it's hard to remember that you originally set out to drain the swamp. However, you should really learn to keep your eye on the prize and focus on what you have been asked to do, not go off on some personal, tangental quest.

BTW, who said the arbitration would be held on your property? The logical venue is the Co-op store in which the slip-and-fall occurred. Or maybe in an "outdoor" restaurant in the Place de la Concorde. Do you really think that justice depends on whose property the case is heard?

Your arbitration clients want you to demonstrate relevance before they will answer your intrusive questions. How hard is that?

J Thomas on May 18, 2011, 12:07:20 am
But inpalatable judgements aside, please just answer the questions. They are probably irrelevant to liability, but they are important to my solution for my clients.

If your questions are irrelevant to the issue of liability, they are irrelevant to the clients. No one asked you for a "solution." They contracted with you for a ruling on allocation of liability.

OK, fine. They do not need an arbitrator for that. They can merely consult your law.

You made it plain that no one should be considered negligent except Bobby. The store was run according to common practice and did everything that would normally be expected of them. The farmers were not negligent in choosing coop management, who did everything normally considered appropriate. They had no reason to expect Bobby would have his single failure.

Independent of the question whether they can limit liability by saying so, they did nothing wrong according to prevailing community standards. It is not appropriate to give the coop's total value to the LOL, providing her with half her needs. It is not appropriate to award her a token payment from the coop, though they may wish to contribute something.

Bobby's case is a little harder. At first sight it looks almost the same. He had an accident that could happen to anybody, and it turned into a catastrophe quickly after one minor lapse of judgement. You provided no details so I will make them up.

I make up that he was using a ladder to store currently-surplus applesauce on high shelving. He was doing this the standard approved way, which involved picking up a large box of glass jars of applesauce, and balancing it while climbing the ladder, and slinging it into place. He had eight large boxes to store this way, stacked on the floor. The fifth box slipped and fell, something that happened perhaps once every few months, rarely enough that nobody worried about the waste. He had a choice, he could leave the broken box with its exposed glass and applesauce on the floor along with the other three boxes while he left to get cleaning supplies, then clean up the mess, then put away the cleaning supplies, and then pack the last three boxes. Or he could pack the last three boxes first and then take the ladder with him when he went to get cleaning supplies. (If he had thought about it, he could have had the cleaning supplies with him so that he didn't have to go get them, and they would be one more thing for customers to trip over every time he did this job, not just a few times a year, in addition to the boxes and the ladder.) Or he could have called for help and gotten someone else to do part of the work. They could bring with them warning signs and maybe barriers to keep customers away.

Normally it wouldn't have mattered much which he did. But this one time, while he was balancing on the ladder holding a large box, a LOL came by, slipped on the spilled applesauce, and landed on a sharp piece of glass which left her quadriplegic.

A freak accident that could happen to almost anybody. Is he liable? Is he completely liable? Yes. Even though there was a sign that said no matter what he did, customers were on the premises at their own risk. He made a minor error that had catastrophic consequences.

Suppose he had immediately gone to clean up, and the customer tripped over the ladder. He would be liable.

Suppose he called for someone else to help, but he did not actively prevent the LOL from hurting herself. Liable.

The only thing he could do to avoid liability was to exactly follow the procedures he was taught as the right thing to do. Anything short of perfect behavior makes it his fault. It isn't fair to take money from people with deep pockets when they made things as safe as people with deep pockets usually do. It is fair to blame poor employees for absolutely any deviation from policy.

Unless -- maybe community standards on Ceres say it's OK to make the sort of mistakes anybody else could have made? Everybody makes little mistakes, and accidents do happen, and if nobody did anything wrong that was worse than usual then maybe it just wasn't anybody's fault at all.

Tucci78 on May 18, 2011, 01:33:32 pm
You made it plain that no one should be considered negligent except Bobby. The store was run according to common practice and did everything that would normally be expected of them. The farmers were not negligent in choosing coop management, who did everything normally considered appropriate. They had no reason to expect Bobby would have his single failure.

What Counselor Sandfort is after is an impervious "hold harmless" concept in the rules of an AnCap society. Dunno how that might be enforced. Denying the LOL restorative or compensatory damages on the basis of Counselor Sandfort's "Tough luck, lady; you saw the goddam sign!" approach is entirely too likely to result in a Molotov cocktail response.

Bye-bye farmers' co-op.

In fixedly insisting upon the restriction of the arbiter's role to the determination of "liability," Counselor Sandfort is continuing to impose upon this hypothetical a constraint which really would not tend to happen in real life.  

In Escape From Terra, we've already seen one story arc in which the nuts and bolts of arbitration on Ceres have been demonstrated, and the arbiter in that case was focused not so much on "liability" as upon the proper compensation for damages done and how to get them out of the three miscreants culpable of the injuries inflicted.

When explaining how violent aggression against persons or property would be handled in an AnCap society, SF writer L. Neil Smith (in The Probability Broach) proposed that arbitration would determine not just "liability" but also compensatory damages to be remitted to the injured parties, giving each criminal case a civil resolution. The aggressor caught and put under such an obligation could either pay the set damages (thereby "paying his debt to society;" faugh...) or get the hell out of society ("Divers needed in the oceans of Europa! High pressure! High risk! High pay! No identification required").  

Such a system seems to necessitate that the usual-and-customary role of an arbiter include both determination of "liability" and appropriate compensation to be rendered by those found liable to the injured parties in each case.

I suppose you could posit a hypothetical situation in which the parties on both sides agreed to an arbiter who rules on nothing except the determination of "liability," but that's really reaching way to hellangone up there to find something to yank out that would suit Counselor Sandfort's taste.

Such an arbitration process would then leave the parties without resolution of just what compensation (if any) the successful plaintiff might be due.  Kinda half-baked, don'tcha think?
« Last Edit: May 18, 2011, 02:41:19 pm by Tucci78 »
"I is a great believer in peaceful settlements," Jik-jik assured him. "Ain't nobody as peaceful as a dead trouble-maker."
-- Keith Laumer, Retief's War (1966)