In one of his “Markets in Everything” blog posts, Tyler Cowen introduces us to the (perhaps apocryphal) “Ticket Free” insurance – an insurance policy that drivers can obtain in addition to their primary liability policy that will pay for any tickets they get and the insurance surcharges associated with these tickets.
Ticket Free offers three different policies. The “Mini” exclusively pays for speeding tickets.The “Classic” covers other moving violations, such as illegal u-turns and running red lights and the “Enthusiast” covers everything from excessive window tint to having an excessively loud car stereo.
Although the fact that Ticket Free’s website no longer seems to be operational and it apparently never was registered with the California insurance commissioner suggests that it was pretty fly-by-night, this sort of insurance policy apparently is available in some Scandanavian countries, if blogging commenters are to be believed.
Needless to say, this sort of “ticket insurance” would be a bad idea for American roadways. As the comments to this blog post by law professor David Bernstein (himself recently ticketed) suggest, there are myriad ways that reckless drivers can get out of tickets – even citations issued on the basis of that gold standard of speed detection “lidar.”
The underenforcement of our traffic safety laws causes more numerous and more serious car accidents to occur. Let’s hope that just forcing traffic scofflaws to take time out of their day to show up to traffic court has some deterrent effect on them.
Monthly Archives: August 2010
Massachusetts Supreme Judicial Court Hands Down Disappointing Liquor Liability Case
On July 12, the Supreme Judicial Court handed down a disappointing decision in the much-anticipated case of Lev v. Beverly Enterprises-Massachusetts, Inc., declining to hold an employer liable after its employee became intoxicated at an after-work meeting held at a restaurant and struck a pedestrian on his way home.
In a separate criminal case, the employee was found guilty of operating under the influence.
The facts of the case are simple and many of the minor details played an important part in the opinion’s rationale. On March 14, 2004, a nursing home dietician and his supervisor met at a Chinese restaurant after work to discuss patients’ menus. Over the course of the meeting, the employee had at least two and a half drinks, that he paid for himself. Upon leaving the meeting, the intoxicated employee struck a pedestrian near an on-ramp to Rt. 128 in Newton.
The pedestrian sued the intoxicated driver’s employer (who would be much more likely to be able to pay any judgment than the employee).
The Supreme Judicial Court declined to hold the nursing home liable for two distinct reasons. First, the Supreme Judicial Court said that the doctrine of respondeat superior did not operate to hold the employer liable because, at the time of the accident, the employee was traveling home and employers, in accordance with so-called “going and coming” rule, are not liable for the negligent acts of their employees in traveling to and from work. Second, the Supreme Judicial Court said that the case did not call for an extension or modification that employers are liable for their employees’ intoxication only when the employer controls the supply of the alcohol (as opposed to having mere control over the employee who decides to consume it).
From a public policy standpoint, both of these rationales are lacking. The idea that liability should attach to an employer only when the employer actually supplies the alcohol is misguided. From a public policy standpoint, legal duties should be assigned to the party who can fulfill the duty at the lowest cost/with the greatest ease. In light of this principle, who should we assign the duty to – the restaurant or the employer?
It seems obvious that in this case, the employer (acting through the supervisor) was in the best position to determine whether the employee had become intoxicated and to act to prevent him from driving. This was a one-on-one meeting with the supervisor sitting opposite the employee the whole time.
The supervisor (employer) had the best opportunity to observe the employee and to determine whether he should have anymore to drink. The waiter/waitress, on the other hand, was probably attending to a dozen different tables and interacted with the employee for only a couple of minutes.
Some basic economic theory illustrates that the supervisor’s perspective on things was superior to the restaurants. Why do waiters and waitresses earn tips as opposed to earning a regular hourly salary? One explanation is that it’s simply historical custom. But another explanation, an economic explanation, draws upon the agency problems inherent in a restaurant manager’s supervision of his or her staff. It’s extremely difficult for a manager to distinguish among his or her best wait staff and to determine who’s doing the best job and to reward the best performers with higher wages. The tipping system avoids this problem by putting decisions about pay into the hands of the people with the most detailed information about wait staff performance – the restaurant’s customers.
In this situation, the employee’s supervisor had superior information about the employee’s level of intoxication and a much better opportunity to monitor the employee than the restaurant’s management or wait staff. Accordingly, responsibility for the employee’s intoxication should be allocated to the nursing home rather than the restaurant.
In some situations, such as a large Christmas party, it might make sense to assign legal liability to the party controlling the alcohol supply, rather than the company’s supervisor. In cases like companywide outings and picnics, the sober caterers and bartenders are likely in a far better position to monitor employees than the company’s management and, indeed, the monitoring of the employees is something that the company is paying for. The Supreme Judicial Court’s unwillingness to distinguish a one-on-one or small group meeting from a company Christmas party was disappointing.
The Court’s rather mechanical application of the “going-and-coming” rule was also disappointing. It simply begged the question of where the negligent conduct occurred – was it at the meeting at the restaurant or on the way home when the employee was driving erratically?
We can’t afford to hold liquor liability cases to a different standard than other negligence cases. There are just too many tragedies that could be prevented by stricter legal rules.
Massachusetts Supreme Judicial Court Abolishes Archaic “Natural Accumulation” Rule In Premises Liability Cases
In what is being hailed as one of the most important Massachusetts premises liability cases in decades, the Supreme Judicial Court last week in Papadopoulos v. Target Corporation abolished the so-called “natural accumulation” rule that had long governed Massachusetts slip-and-fall cases involving snow and ice.
The so-called “natural accumulation” rule held that Massachusetts property owners were not liable for injuries resulting from the natural accumulation of snow and ice on their properties. So, for example, if a snowstorm dropped a foot of ice and snow on a Massachusetts property, the property owner could not be held liable if a visitor slipped and fell on that virgin snowfall because it was “natural accumulation.”
Of course what was natural accumulation and what was some artificial alteration of the natural accumulation was never really clear. As the Supreme Judicial Court noted in last week’s decision, the distinction between natural and unnatural accumulation, “has proved difficult to apply because virgin snow that falls on a heavily trafficked walkway, driveway, or parking area is soon changed by the tramping of feet, the rolling of tires and the passage of time.” The natural accumulation rule had even resulted in the absurdity that property owners who shovel away a top layer of snow, revealing a bottom layer of ice, were not liable to individuals who slipped on the ice because the bottom layer of ice was considered “natural accumulation.” Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135 (2009).
The natural accumulation rule was such an outlier that, in other jurisdictions, it was referred to as the “Massachusetts rule.” All of the other courts in snowy New England had rejected it and imposed a duty of reasonable care on property owners.
In Papadopoulos, the Supreme Judicial Court finally joined those other jurisdictions, holding that a property owner will now owe the same duty of reasonable care regarding dangers arising from snow and ice on his property that he owes with regard to all other hazards to lawful visitors on his property. What exactly is that duty of reasonable care, what are its flesh and sinews? In last week’s opinion, the Supreme Judicial Court stated: “The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”
The new reasonable care standard is a far superior rule to the old “natural accumulation” rule. The natural accumulation rule was unclear and therefore difficult and expensive to apply. Furthermore, property owners did not rely on it. Because the distinction between what was “natural” accumulation and what was “unnatural” was so illusory, the legal standard made no difference to the way that businesses actually plowed their property. And regardless of the legal standard, any business owner who wanted to attract patrons would have to plow and shovel his property.
Next winter, we’ll get our first opportunity to see how this new legal rule will develop in Massachusetts.