« Quote of the Day | Main | Courtesy of Bahrain TV, The Islamic Version of »

January 11, 2007

La-La-La-Wyer Land

One of my favorite blogs is The Volokh Conspiracy. I don't comment there much, because most of the discussion is way out of my league, but many of the posts and comments provide interesting explanations and views on things legal in a manner that is pretty accessible for average idiots like myself. Eugene Volokh is especially brilliant, but sometimes he gives little hints that he's spent just a tad too much time teaching law instead of living with the real-world effects of it (and certain types of lawyers) on our society and how it operates:

Restaurants and Aspirin (and the Like): On occasion, I've found myself with a nasty headache in a restaurant; and when I've asked the front desk whether they had any aspirin (or whatever else, but I'll just say aspirin for now) I could have, they've always said no.

Now my sense is that, like most employers, they do have some aspirin for their staff, likely in those little individually wrapped packets. It's also probably in their interest to help out with it: If I've got a bad headache, I'm going to have a less pleasant dinner, and while I probably won't consciously resent them for not helping, I'll be slightly less likely to come back soon (since often one comes back to a restaurant because of memories of recent pleasant dining experiences there). And of course giving me some of the aspirin would cost very little money and time. So why not help out, especially given that they're in a service industry where the presumption (I'd think) is that they should try to help the customer with simple requests that could make him happy?

One possible theory, which I recall having heard a couple of times from restaurants, is that they don't want to give out aspirin for fear of product liability should anything bad happen to me. But I don't really see the real liability risk: There's nothing negligent in their giving me something that I could buy over the counter at a gas station — it's not like they're giving me medical advice. Given that they're not negligent, the only extra risk is strict product liability, but that only arises in the extraordinarily rare circumstance the aspirin was somehow defective; and even in that rare case, it's likely that the payment would come from the manufacturer, not the distributor, with the distributor being on the hook only if the manufacturer is insolvent.

So is it that the restaurant just doesn't want the hassle of helping me? That, contrary to my assumption, they don't have aspirin around for the staff? That they fear liability without much foundation, because there's some industry myth about it afoot (or because they just haven't looked into the legal question, and err on the side of caution)? That, contrary to my sense of tort law, they may in fact be legally on the hook if I react badly to the aspirin? Or something else?

One of the commentors said that

You're living in "la-la-la-wyer" land if you believe that a restaurant won't be sued for a bad reaction to the aspirn, much less found liable.

which to me exactly sums it up. Because of the way trial lawyers have been allowed to run amock you can and will be sued for everything and anything now in this country, and we are forced to read and sign 'legal disclaimers' before doing damn near anything. The result is that more and more people, and most businesses, are afraid to do anything extra to 'help' anyone because they know they will get sued, and even if they 'win' the case they will be out thousands of dollars in legal fees plus whatever bad press is generated. This is a perfect example of why our system needs to be reformed immediately. First off the loser should pay all the legal costs in civil suits. This would eliminate a lot of these nuisance lawsuits that pop up constantly and force businesses to fear any sort of extra service to clients (like aspirin or pepto-bismol type stuff). Secondly judges should be given wide discretion, and be encouraged to use it, to dismiss such lawsuits before they even go to trial. Third, people like John Edwards should be taken out to the most convenient woodshed and severely paddled. Actually, do this first. And third. And...

Posted by Mr. Bingley at January 11, 2007 07:08 AM

Comments

Oh, I got another one.

I am a member of a faculty women's group. For 20 odd years, they have had an annual potluck supper in one of the dining rooms here on campus.

Last year, the food-services people first told us we couldn't do it any more - for liability reasons - or that we'd have to have it catered by them.

The reason? They were afraid that if someone got food poisoning from a salad one of the members brought in, they'd sue the school.

I think it's monumentally stupid, but I guess they've checked it out with the lawyers. I did finally manage to talk them into letting ME sign a waiver promising that if someone ate some bad mayonnaise, the school was no longer liable, I guess they figure that as the current head of the group I have now assumed liability.

The thing is? If one of the women in my group got food poisoning from one of the salads, her reaction would be, "Well, my bad luck then." I can't think of one person in there who'd want to sue.

I've also seen the "no aspirin" rule in action. My brother is prone to migraines and one day my whole family was in a restaurant (visiting him and his wife) and he started with one. My mom had to leave the table and DRIVE to the nearest gas station to buy aspirin (he needs to take it within 15 minutes of the headache starting or he's totally down for the count) because the restaurant refused to give out any.

Posted by: ricki at January 11, 2007 08:25 AM

School nurses can't hand out 'over the counter' medicinals anymore. And THEY have a degree.

Posted by: tree hugging sister at January 11, 2007 09:02 AM

Ricki, try and have your teenage daughter ask the school nurse for aspirin or motrin to help with her cramps. The nurse won't/can't do it. Oh, and if Daughter brings a few aspirin to school with her she's suspended for being a drug dealer.

Posted by: Mr. Bingley at January 11, 2007 09:13 AM

Guess I need to type faster.

Must be these cramps.

Posted by: Mr. Bingley at January 11, 2007 09:18 AM

My mom is a nurse and growing up she had one of those neighborhood helping hand signs in the window. We lived next to a park so there was always some parent or kid knocking on the door for a bandaid or help to get out a splinter. One of the local mothers told my mother she was a nurse too, but would not even think of giving out a bandaid cause she was afraid of getting sued. And this was a good 25 years ago.+

Posted by: Kcruella at January 11, 2007 11:06 PM