Kansas City Personal Injury Lawyer

Chrysler Flip Flops: Announces Recall of Jeep SUVs For Rear Impact Fire Danger

Brett Emison — Tue, 18 Jun 2013 15:43:12 GMT

Last week Chrysler boldly refused to recall 2.7 million Jeep Liberty and Grand Cherokee vehicles after NHTSA identified a safety hazard that made the vehicles susceptible to post collision fire in rear impact crashes. Today, Chrysler flip-flopped.

Chrysler relented and announced that it would recall the vehicles because of post-collision fuel fed fire hazards. But it's unclear exactly what Chrysler's recall will do.

Its statement said it will recall the vehicles for inspection and, in "some cases" will "provide an upgrade to the rear structure of the vehicle to better manage crash forces in low-speed impacts."

"Chrysler Group recognizes that this matter has raised concerns for its customers and wants to take further steps, in coordination with NHTSA, to provide additional measures to supplement the safety of its vehicles," the company said.

- Chris Isidore at CNNMoney

What Prompted The Recall

The National Highway Traffic Safety Administration (NHTSA) asked for the recall after it determined that the Jeep Grand Cherokee and Jeep Liberty were more susceptible to fire after a rear-end collision than other vehicles in the class.

Randy Whitfield crunched the data (the same data that both Chrysler and NHTSA used) for the folks at Safety Research & Strategies in order to see how the Grand Cherokee compared. Whitfield found "[t]he 1993-2004 Jeep Grand Cherokee vehicles are far more likely to experience a fire-related, fatal, rear impact crash than peer vehicles."

Why Did Chrysler Back Down?

In all the discussion of why Chrysler might have backed down, I never saw the mention of customer safety or saving lives. Instead, most articles focused on public backlash and negative publicity - which would affect Chrysler's bottom line.

If it had not agreed to act by the end of Tuesday, [Chrysler] faced the prospect of high-profile public hearings. There would have been testimony from both car safety advocates who have pushed for the recall, as well as the parents of children who burned to death in fires. Experts say the hearing would have caused Chrysler's reputation to take a hit, even if it had avoided the recall.

"It strikes me that Chrysler underestimated the negative publicity they'd get out of fighting, and that they decided it was better off to go ahead and do the recall, said Michelle Krebs, senior analyst at Edmunds.com

- Chris Isidore at CNNMoney

USA Today also noted that "Chrysler is taking the step to avoid prolonged bad publicity...."

Older Vehicles, Younger Drivers

One of Chrysler's arguments against the recall was that many of the vehicles were beyond a 10-year limit for recalls. This is similar to a "statute of repose" in civil liability cases. Such policies (if your state has them) completely cuts off liability for a product manufacturer - including car companies - after a certain length of time following the product's manufacturer or initial sale. In states with a statute of repose, drivers or passengers injured or killed by a defect in the vehicle cannot recover for their injuries.

Who drives older, higher-mileage vehicles?

I do, for one. But also young drivers purchasing their very first car. Also, poorer drivers who cannot afford a newer vehicle or those trying to pay down debt and downsizing into a more affordable car or truck - for example, a Dave Ramsey "beater" vehicle.

And, apparently, nearly everyone else.

A report by Paul A. Einstein at NBC News finds that Americans are driving their vehicles longer than ever - 10 years and 150,000 miles is the new norm. In fact, 80% of drivers will keep their vehicle for a decade or longer according to a survey by AutoMD.com.

A separate survey by Black Book found that most owners will not trade in their vehicles until they have at least 125,000 to 150,000 miles - and 200,000+ mile trade-ins are increasingly common.

Chrysler's Recall

While I'm pleased to see Chrysler relent, I'll reserve judgment to see what Chrysler actually does. A simple visual inspection won't do anything to correct the underlying defect - which NHTSA has already identified. It looks to me like this might be an attempt for Chrysler to give the "recall" lip service in order to bolster its own reputation without actually doing anything to increase its customers' safety.

Will Chrysler stand behind the Jeep? [The Safety Record Blog at Safety Research & Strategies]
Chrysler relents, agrees to recall 2.7 million Jeeps [Chris Isidore at CNNMoney]
Chrysler caves, recalls 2.7 million Jeeps [James R. Healey at USA Today]
Chrysler backs down, agrees to recall 2.7 million older-model Jeeps [Staff Report at NBC News]

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Originally posted at The Legal Examiner by Brett Emison

Look Both Ways Before Crossing The Runway

Brett Emison — Mon, 17 Jun 2013 12:04:15 GMT

Our office has a national law practice. This means I get to see my fair share of the country's airports, hotels, and conference rooms. At a Father's Day bar-b-que yesterday, I mentioned that I had to travel to the Quad Cities today for some depositions. A relative who is a pilot wished me good luck given a disturbing number of runway incursions since January 2013. Seven runway incursions have occurred just this year.

As you can see above, the Quad Cities Airport was designed in what is essentially the form of an asterisk. Why someone thought it would be a good idea to intersect all three runways at this airport is beyond me. (Pilots - feel free to chime in with explanations in the comments section.) But this (somewhat) unique configuration is apparently causing problems with runway incursions at the airport.

So... pilots, ground crew members, and anyone else at the Quad Cities Airport, please look both ways before crossing the runway - especially while I'm passing through today!

Update (June 18): It was a long day (4 planes, 3 airports, 2 depositions, and 19 hours total from garage door up to garage door down), but the good folks at Quad Cities International Airport got us in and out safely.

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Originally posted at The Legal Examiner by Brett Emison

Report: Judicial Campaign Contributions By Business Donors Yields Votes

Brett Emison — Wed, 12 Jun 2013 12:48:05 GMT

Do campaign contributions play a role in judicial outcomes? 76% of voters and 46% of judges think so. New empirical data confirms the suspicion, especially when the contributions come from large business interests. As Dylan Matthews at the Washington Post puts it: When business give judges money, they usually get the rulings they want.

The study - Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions by Joanna Shepherd - reviewed more than 2,300 business-related state supreme court published opinions from all 50 states during the period 2010-2012. That data was correlated with every reported contribution to a sitting state supreme court justice - more than 175,000 contributions. The study confirmed "a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court."

The Issue

According to Shepherd's data, more than 90% of litigation in the United States is handled by state courts. And in 89% of state courts, judges face the voters in some type of election. In directly contested elections (whether partisan or non-partisan), campaign contributions raise suspicions of improper influence. Shepherd's data, unfortunately but not entirely unsurprisingly, suggest the suspicions are well-founded.

Some states have direct, popular election of judges. These elections bring with them the stigma of campaign contributions and the potential for undue influence. Other states have adopted a "federal" model in which judges are appointed and confirmed by the legislature. This process injects a high degree of politics into the system in which political allies are often chosen ahead of more qualified candidates. Other states, like Missouri, have adopted non-partisan merit selection of judges in which candidates are selected based upon their ability and skill. The Missouri Plan attempts to eliminate political and financial considerations from judicial selection in order to find the most qualified judges.

Justice for Sale?

In 2011, The New York Times asked: Can Justice Be Bought?

The question arose out of a United States Supreme Court decision in Caperton v. A.T. Massey Coal Company. In the underlying case, a West Virginia jury found coal company Massey Energy liable for fraudulent misrepresentation, concealment, and tortious interference with contract in a business-litigation suit and awarded Caperton $50 million in damages. After the decision, West Virginia was to hold its 2004 judicial elections.

Know the state Supreme Court of Appeals would consider the appeal, Massey's chairman - Don Blankenship - supported the challenger rather than the incumbent seeking reelection. Massey's and Blankenship's combined $3 million in campaign cash was more than the total amount spent by all other supporters and by the judge's own campaign committee.

The challenging judge won by less than 50,000 votes... and then heard Massey's appeal of the $50 million verdict against it. The newly elected judge was the deciding vote in overturning the verdict.

In a disturbingly close vote, the United States Supreme Court voted 5-4 that the newly elected judge should have recused himself in order to uphold the rule of impartial justice. Four justices didn't see anything wrong with the conduct. In fact, Chief Justice Roberts found that Massey's conduct was not even an "extreme case".

The Appearance of Impropriety

Regardless if such decisions are intentional or subliminal, even the appearance or suspicion of impropriety will have lasting detrimental effects on the justice system.

Having worn a judicial robe for a few months shy of thirty years, having run and won five times in partisan elections, having been involved in the most expensive appellate court race in the nation in 2006, I am sincerely concerned about judicial elections, the obscene amount of money which has flooded into campaigns, and the damage that has been done to the image of our beloved judicial system. The politicization of the courts puts justice at risk.

- Former Alabama Chief Justice Sue Bell Cobb

Supreme Court Justice Sandra Day O'Connor has also spoken out against partisan influence on the judiciary:

If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects. As the late California Supreme Court Justice Otto Kaus described it, ignoring the electoral pressure would be like "ignoring a crocodile in your bathtub."

- Sandra Day O'Connor, The Essentials and Expendables of the Missouri Court Plan, 74 Mo. L. Rev. 479, 487 (2009).

Ohio Supreme Court Justice Paul Pfeifer put it more bluntly:

"I never felt so much like a hooker down by the bus station... as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote."

Key Findings

Shepherd noted some key findings from her study:

A significant relationship exists between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.
The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.
A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
The empirical relationship between business contributions and justices' voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.
There is a stronger relationship between business contributions and justices' voting among justices affiliated with the Democratic party than among justices affiliated with the Republican Party.

Solutions

Shepherd's findings with respect to merit selection / retention elections are critical. She found no statistically significant relationship between money and voting in retention election systems meaning that merit selection systems like the Missouri Court Plan subject to retention election do a good job of removing political and financial incentives from the judicial equation.

An apolitical, independent judiciary comprised of qualified judges is critical to upholding the rule of law and individual rights of Freedom and Liberty. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.

[More on Judicial Selection]

Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions [Joanna Shepherd at American Constitution Society for Law and Policy]
When businesses give judges money, they usually get the rulings they want [Dylan Matthews at Washington Post]
The Missouri Plan: Non-Partisan, Merit-Selection of Judges

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Originally posted at The Legal Examiner by Brett Emison

U.S. Senator Laments "Dwindling Civil Jury"

Brett Emison — Tue, 11 Jun 2013 11:34:54 GMT

United States Senator Sheldon Whitehouse commented in the National Law Journal on the ongoing attacks against the civil jury system through restrictions including forced arbitration, enhanced pleading standards, and restrictions on class actions and punitive damage awards.

"The jury is more than just a means of dispute resolution, just a fact-finding appendage to the court. It is a structural element of our system of separated powers. Alexis de Tocqueville described the civil jury as an "institution of government" and a "form of the sovereignty of the people." The civil jury, according to William Blackstone, "preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents encroachments of the more powerful and wealthy citizens."

- Sen. Whitehouse, National Law Journal

Sen. Whitehouse noted how the earliest American colonists established juries in the 1600s and the American states "sounded the alarm when the original Constitution was silent on the civil jury, and the Seventh Amendment - which protects the civil jury - was ultimately sent to the states with the Bill of Rights."

In his op-ed, Senator Whitehouse outlines many of the attacks on the 7th Amendment right to jury trial. He also outlines means by which to restore the civil jury's proper place in our democracy. His article is worth a read.

Think about these restrictions in the context of other Amendments or other fundamental rights. Do you have a right to free speech if you are only limited to certain words? Do you have right to bear arms if you are limited only to long bows, pellet guns, and a .22 caliber rifle?

The 7th Amendment right to civil jury is arguably more important than either the 1st or 2nd Amendments. Why? Because the 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why constitutional conservatives oppose attacks on 7th Amendment rights through tort reform. What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

The 7th Amendment should be a cause that blurs party lines. The 7th Amendment is a cause that should be supported by conservatives and liberals alike. Noted conservative (and member of the Reagan Administration), Andrew Cochran has even outlined 7 reasons why protecting the 7th Amendment should be a Republican and Tea Party priority.

"A breakwater built into our system of government by our nation's founding fathers, the civil jury is designed to stand firm against the tide of influence and money. We allow it to crumble, or be disassembled, at our peril.

- Sen. Whitehouse, National Law Journal

Freedom, Liberty and Civil Justice are issue our founders fought and died for. They are issues that should unite us as citizens rather than divide us as partisans. Join those on both sides of the political aisle in standing up for our Constitution and for preserving Civil Justice rights and accountability.

[More on Your 7th Amendment Rights]

[H/T - Take Justice Back]

The Dwindling Civil Jury [Sen. Sheldon Whitehouse at The National Law Journal]
Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority [Andrew Cochran at The 7th Amendment Advocate]
Defending The 2nd Amendment
Do You Have A Right of Free Speech If You're Limited Only To Certain Words?

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Originally posted at The Legal Examiner by Brett Emison

Chrysler's Big Gamble: It's Reputation; Your Life

Brett Emison — Fri, 07 Jun 2013 11:22:32 GMT

Chrysler is taking a big gamble with its own reputation - and, possibly, your life - in failing to recall Jeep Grand Cherokee and Jeep Liberty vehicles even after the National Highway Traffic Safety Administration (NHTSA) identified a safety defect that caused fuel leaks and fires in rear end collisions. Forbes magazine even asked if Chrysler was "committing brand suicide".

Why would Chrysler thumb its corporate nose at NHTSA even after the agency identified this substantial safety risk?

My guess: It's about the money. Automakers - and other industries - routinely engage in cost-benefit or value analyses. These might be appropriate to determine the optimum amount of widgets to manufacture or which supplier to use for a particular component. These value analyses are much less appropriate when lives are on the line.

But that doesn't stop the automakers.

General Motors infamously performed such an analysis in the 1970s. A "Value Analysis of Auto Fuel Fed Fire Related Fatalities" by Advance Design Engineer E.C. "Ed" Ivey calculated to the penny how much human life was worth to General Motors and, therefore, how much GM was willing to spend in order to make the cars safe.

The Ivey Memo assigned a value of $200,000 for a human life and multiplied that "value" by expected number of fuel-fed fire deaths per year. It then divided that product by the number of new models produced in a year. Ivey concluded that "it would be worth approximately $2.20 per new model auto prevent a fuel fed fire in all accidents." After than, it was cheaper to simply pay wrongful death settlements than to make the vehicles safe.

Ford made a similar analysis in "Fatalities Associated with Crash Induced Fuel Leakage and Fires" by E.S. Grush and C.S. Saunby (sometimes called the "Grush/Saunby Report"). When the Grush/Saunby report was issued, NHTSA had announced plans for new safety standards in hopes of preventing post-collision fuel-fed fires in all vehicles. The Grush/Saunby Report was produced in response to NHTSA's announcement in order to compare the costs and benefits of complying the proposed new standard.

Using these formulas, Ford determined that it would cost almost three-times as much to comply with NHTSA’s rollover requirement as they could expect to benefit. The report reads: “As better estimates of the parameters used become available, they could be inserted into the general analysis framework. It does not appear likely, however, that such alternative estimates could lead to the substantial benefit estimate increase which would be required to make compliance with the rollover requirement cost effective."

The Grush/Saunby Report was central to the outrage surrounding the Ford Pinto fire cases in the 1960s and 1970s and led to punitive damages against Ford in many of these cases.

Has Chrysler performed a similar analysis with respect to NHTSA's requested recall? One would think so. Chrysler appears to have determined it's just not worth the cost to make these vehicles safer.

Chris Isidore at CNNMoney says "even if Chrysler Group wins its fight over the recall of 2.7 million SUVs, it might be a loser in the eyes of customers."

Forbes magazine thinks Chrysler should look to Toyota and other companies who lost not only money - but brand reputation - in futile struggles against proposed recalls.

If Chrysler is taking its guidance from General Motors, then it should look to a more recent example. In 2009 and 2010, Toyota was besieged with complaints of unintended acceleration. A single fatal crash, which took four lives in August 2009 gained widespread media attention. The brand prevaricated, first blaming the problem on accelerators getting fouled with floor mats and recalling 4.2 million vehicles for that problem in two separate recalls. Consumer complaints continued and in 2010 resulted in millions more vehicles being recalled. Then other problems with Toyota vehicles surfaced, affecting both Toyota cars and trucks.

The crisis caused an unprecedented apology from Akio Toyoda in 2010. The grandson of Toyota’s founder had taken control of the company less than a year earlier. As embarrassing as this was for Toyoda, the consequences for the Toyota brand have been more far reaching. An excellent analysis by Forbes Contributor Ann Marie Kelly reveals consumer sentiment data showing that even two years after the recalls, negative feelings for Toyota have almost doubled and positive feelings for the brand are down by thirteen points.

Forbes also points to Johnson & Johnson as providing an instructive lesson:

As with Toyota, the Tylenol recalls proved to be the tip of the iceberg, as other problems surfaced in other divisions. Recalls mounted from DePuy (hip implants) to Johnson & Johnson Vision Care (contact lenses). But the worst damage was to its customer reputation. By fighting recalls and trying to minimize the appearance of damage, Johnson & Johnson lost the trust of some of its most important consumers. Although the stock market has not yet punished J&J, whose earnings continue to grow, the company has lost its long-held top 5 ranking in Fortune’s Most Admired Companies, dropping to #23 this year. This kind of precipitous plunge has long-term consequences for any brand.

Car & Driver has also looked at Chrysler's stance in refusing the recall and noted a slide in Chrysler's own presentation seemed to undercut Chrysler's own argument. The slide shows that the Grand Cherokee has been involved in rear impacts with fuel fed fire as the "most hazardous event" more than 2 times more often than the next similar vehicle.

Justin Berkowitz at Car & Driver puts it bluntly:

It’s possible, of course, that Chrysler really believes the data show these older Jeeps to be as safe as their contemporaries, and doesn’t want to be forced into an exorbitant recall. Trying to retrofit protection to a gas tank that hangs out near the back of the truck would be insanely expensive and complicated.

Regardless, the degree of WTF to Chrysler’s behavior here is shocking. Does Chrysler really think a long, public battle—even the BBC World Service has picked up this story—is cheaper than a recall? Even if Chrysler wins in the end, it loses. GM fought NHTSA in court regarding its X-cars in the early 1980s, and while GM won, analysts considered the case to be a PR nightmare. Why did Chrysler respond to the recall request by putting out a press release and calling even more attention to its refusal?

Chrysler should do the right thing and make sure its vehicle are safe for its owners, driver, passengers, and the public. If that means retrofitting, shielding, or otherwise fixing the problem, then that is what Chrysler should do. What do you think?

Is Chrysler Committing Brand Suicide? [David Vinjamuri at Forbes]
Why Chrysler Said "No Thanks" to NHTSA's Request to Recall 2.7 Million Jeeps [Justin Berkowitz at Car and Driver]
Chrysler puts reputation at risk in recall fight [Chris Isidore at CNNMoney]
Chrysler Refusal on Jeeps Sets Challenge to Recall Power [Angela Greiling Keane at Bloomberg]
Did You Know... Companies Put A Value On Your Life?

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Originally posted at The Legal Examiner by Brett Emison

Disney World Cracking Down On "Disabled" Line Jumpers

Brett Emison — Thu, 06 Jun 2013 17:31:24 GMT

In May, the New York Post featured a story about how "Rich Manhattan moms hire handicapped tour guides so kids can cut lines at Disney World". The moms - and others across the country - turn to "disabled" Disney tour guides who pose as family members and escort the families past the long lines at rides using a special handicapped pass that permits the guide and an additional 5 people to bypass the lines and get right on the ride.

The "black-market Disney guides" run $130 an hour, or $1,040 for an eight-hour day.

"My daughter waited one minute to get on 'It's a Small World' - the other kids had to wait 2 1/2 hours," crowed one mom, who hired a disabled guide through Dream Tours Florida.

- New York Post

The Today Show has followed up and now Disney will be cracking down on these practices.

Disney said:

We find it deplorable that people would hire the disabled to abuse accommodations that were designed to permit our guests with disabilities to enjoy their time in our parks. We have initiated a review of this abuse and will take appropriate steps to deter this type of unacceptable activity.

As deplorable as it is to exploit the "disabled" just to line jump at an amusement park, what's worse is the effect it may have on actual disabled people and their families. The majority of my clients are severely and catastrophically injured - many of them are confined to wheelchairs or must use artificial limbs. The effort required to do normal, everyday activities is substantial. I know how fatigued and worn out I get spending the day at an amusement park with my family. I can't imagine what it must be like for them. When people abuse policies like Disney has in place, it's the real people who get hurt.

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Originally posted at The Legal Examiner by Brett Emison

Chrysler Refuses Recall After NHTSA Identifies Safety Defect

Brett Emison — Wed, 05 Jun 2013 13:02:47 GMT

Earlier this week, the National Highway Traffic Safety Administration (NHTSA) identified a safety-related defect in the fuel tank location in 1993-2004 Jeep Grand Cherokee and 2002-2007 Jeep Liberty SUVs, dubbed a "Pinto for Soccer Moms". NHTSA's investigation found numerous fire-related deaths and injuries as well as other fires that did not result in deaths and fuel leaks in rear impacts. Because of the identified defects, NHTSA's Office of Defect Investigation (ODI) has asked Chrysler to initiate a safety recall of those vehicle. In a surprising move, Chrysler has refused.

On June 3, 2013, NHTSA sent a 13-page letter to Chrysler that outlined the agency's concerns and identified the safety defect.

ODI's analysis revealed that the MY 2002-2007 Jeep Liberty and the MY 1993-2004 Grand Cherokee performed poorly when compared to all but one of the MY 1993-2007 peer vehicles, particularly in terms of fatalities, fires without fatalities, and fuel leaks in rear end impacts and crashes.

- NHTSA letter, p. 2.

It turns out that these SUVs were designed with the fuel tanks behind the rear axle - a design similar to that found in the 1970s era Ford Pinto.

NHTSA's letter to Chrysler outlined this background and quoted from Chrysler's own engineering study that found fuel tank locations forward of the rear axle "provides the protection of all the structure behind the rear wheels - as well as the rear wheels themselves - to protect the tank from being damaged in a collision."

By the 2002-2003 model years, only four vehicles sold in the United States had fuel tanks based on the "Pinto design" and located behind the rear axle. Those vehicles were the Ford Mustang, Ford Grand Marquis/Crown Victoria/Lincoln Town Car, Jeep Liberty, and Jeep Grand Cherokee.

As part of its refusal to recall these vehicles, Chrysler has noted that each complied with federal minimum standard for fuel system integrity - FMVSS No. 301. I see this argument from automakers in product defect lawsuits every time. The automaker claims that because the vehicle complied with the federal minimum standard, it cannot be liable for a safety-related defect. Well, every car on the road - including the Ford Pinto, GM pickups with side-saddle gas tanks, and Ford Explorers with Firestone tires - complied with federal minimum standards. NHTSA has repeatedly explained that the federal minimum standards are a floor for safety, not the ceiling, and compliance with the standards is not a defense to a product defect claim and certainly does not mean the design chosen by the manufacturer is "safe".

NHTSA's position that compliance with federal minimum standards does not equal a defect-free design dates back to at least 1981:

NHTSA's letter went on to state that the minimum standards do "not require that manufacturers limit their chosen design to the performance levels specified in the standard" as the "performance standards are minimum, not maximum ones. Manufacturers are free to select designs which exceed those in the safety standards."

Similarly, the letter noted that "compliance with a Federal motor vehicle safety standard does not presumptively mean that the design chosen by the manufacturer is safe."

NHTSA has notified Chrysler that if it does not initiate a voluntary recall of these vehicles, "NHTSA may proceed to an Initial Decision that these vehicles contain a safety-related defect." Chrysler must provide NHTSA's Office of Defect Investigation a full explanation of its decision to not recall these vehicles including any additional analysis of the problem beyond Chrysler's previous presentations to NHTSA. Chrysler has until June 18, 2013 to provide such information to NHTSA.

What do you think about Chrysler's refusal to recall these vehicles?

Update [2:14 EDT]

CNN/Money has published a follow-up article to the one listed below that contains the following video:

[Learn more about Fuel Fed Fire Dangers]

NHTSA's Recall Letter to Chrysler
Chrysler refuses to recall 2.7 million Jeep SUVs [Chris Isidore at CNNMoney]
NHTSA Drops the Hammer on Chrysler Jeeps [The Safety Record Blog]

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Originally posted at The Legal Examiner by Brett Emison

Facebook's Fine Print

Brett Emison — Mon, 03 Jun 2013 10:05:00 GMT

We know - or at least we should know - to guard our privacy online. If you're an injured plaintiff, you can be certain insurance companies and their defense lawyers are snooping on your Facebook account. Even legislators get their Facebook accounts hacked. Even if you keep your personal information private, you never know when Facebook might accidentally release the account details of 100 million Facebook users or just flat out sell you and your friends to the highest bidder. So yes, online privacy is important.

Now, it turns you, you have to worry about Facebook privacy in the real world. Chris Matyszczyk wrote an article - Why you should always read the small print from Facebook - over the weekend documenting the "Crowd Scene Release" he found posted at a local restaurant in California.

From Matyszczyk's article:

And yet, as I read the smaller type, I saw that Facebook didn't merely intend to shoot and record with nary a privacy care.

No, by entering I was giving Facebook permission to use its recordings of me, my companion and anyone else sailing into the chowder house "throughout the universe, for any purpose whatsoever, in perpetuity."

Still, I could be assured that the company would, at least, allow me some rights to these recordings.

Not quite. "All such photographs and sound recordings to be the sole property of Facebook."

***

I have therefore contacted Facebook to ask whether the company can envisage, at any point, playing a recording of my intimate conversations to aliens from the Planet Zug.

The notice seems both troubling and potentially unnecessary. The questions involved come down to privacy and contract. It's black letter, first year law school basics that a binding contract requires (1) competency of parties to contract; (2) an offer; (3) acceptance of the offer; (4) mutuality of agreement; and (5) consideration. For a contract to be binding, all of the elements must be met. With respect to Facebook's "notice", it is unlikely that any, much less, all of the required elements are present.

A minor or mentally incapacitated person cannot form a binding contract. If a 17-year-old walked in for dinner, he or she could not enter into a legally binding contract. There was no offer made - just a statement about what Facebook purported to take. Because there was no offer, there was nothing to accept. Even if there was something to accept, there is little - if any - indication of mutuality of agreement (i.e., an intention of both parties to enter into the contract). To the contrary, it's likely many patrons failed to see or understand the "release" language. Finally, there is no consideration because Facebook failed to offer anything in exchange for the patrons' "release".

So if not a question of contract, then it turns to privacy. A California case - where Facebook's recording occurred - discussed the tort of intrusion. Sanders v. American Broadcasting Companies, 978 P.2d 67 (Cal. 1999). There it said: "The cause of action... has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. The first element... is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place." Id. at 71.

Oregon attorney Bert Krages went so far as to publish a pamphlet entitled The Photographer's Right that outlines some of the basic law on photography and privacy.

The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you're legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks.

Here, Facebook was photographing, videotaping, and/or recording people in a public place - a restaurant - in which Facebook had permission to make such recordings and the public should not have had an expectation of privacy. The sign posted by Facebook made no offer, permitted no acceptance, and offered no consideration.

It thus appears the notice was both unnecessary and ineffective. That said, just because it's "legal" doesn't make make Facebook's surveillance any more moral or "right". What do you think about Facebook's attempt to snoop on people in a public restaurant and assert ownership over every single thing it documented? For me, it just doesn't pass the smell test.

Why you should always read the small print from Facebook [Chris Matyszczyk at c|net]
The Photographer's Right [Bert Krages]

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Originally posted at The Legal Examiner by Brett Emison

The Dark Knight Rises: What's The Legality of Bruce Wayne's "Death"?

Brett Emison — Thu, 30 May 2013 10:05:00 GMT

If you like comic books, superheroes, and the like and want to know actual legal answers to fictional superhero questions, I've got the site for you: Law and the Multiverse. From their self-description:

If there's one thing comic book nerds like doing it's over-thinking the smallest details. Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers. Just a few examples: Are mutants a protected class? Who foots the bill when a hero damages property while fighting a villain? What happens legally when a character comes back from the dead? You'll find the answers to all of these questions and more right here!

Approaching the 1-year anniversary of the release of final movie in the Dark Knight trilogy - The Dark Knight Rises - a guest post by Mike Lee answers the question of why Bruce Wayne was declared legally dead at the end of the movie. Spoiler alert: it is believed Batman was killed in a nuclear explosion, but no explanation was given for Bruce Wayne's death. Check out the post for Lee's explanation.

http://www.youtube.com/watch?v=onpD6rHlYG8

Other questions addressed by the guys at Law and the Multiverse include:

Guest Post: The End of The Dark Knight Rises [Mike Lee at Law and the Multiverse]

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Originally posted at The Legal Examiner by Brett Emison

Tort Liability For Boston Marathon Bombing?

Brett Emison — Wed, 29 May 2013 12:13:35 GMT

Walter Olson at Overlawyered is concerned there may be tort liability for the Boston Marathon bombing.

Eric Turkewitz at the New York Personal Injury Law Blog explains why the answer is no - there will not be tort liability for the bombing.

So here's the answer on potential liability: No. As in, it won't happen, no way, no how, you gotta be kidding me, and I can't believe there was actually a panel discussion regarding it.

- Turkewitz

You really should read both posts, but particularly Turkewitz's post explaining why tort liability will not materialize. Lawyers are not in the business of taking unwinnable cases. And the very few lawyers who do, don't stay in business very long.

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Originally posted at The Legal Examiner by Brett Emison