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Defensive customer service

Just as there is defensive medicine, there is defensive customer service: lawyers requiring service providers to do things that inconvenience customers, because the alternative is to expose the provider to huge liability.

Case study #1: Waldsachs v. Inland Transport, No. 5:10-cv-5 (W.D. Ky.) (via Oliver). A van service pulls over when its sole rider asks for the opportunity to urinate. That rider walks through an open field looking for a relatively private place to do so, and falls in a hole, injuring himself. The court refuses to grant summary judgment to the van service. Some might argue "Let the jury decide," but that's not what is going to happen here. The expense of litigation is such that it will be cheaper for the defendant to offer a nusiance settlement far greater than the expected value of a jury giving a jackpot for the plaintiff's own clumsiness. But the social costs of decisions like this need to be considered by judges. This customer may get a windfall for his own stupidity, but future customers will be punished, and not just through higher prices. We can now see how future van rides will play out:

"Please, pull over, I need to pee."
"No, the lawyers say I'll get fired if I make any stops."
"Really? I'm your only passenger!"
"Sorry, but the lawyers forbid my supervisor from having any discretion over whether to fire me for varying from the policy, because that might lead to an employment discrimination lawsuit."

Case study #2: As Hans Bader complains, Amtrak bars 12-year-olds from riding trains unaccompanied. That reflects an overabundance of caution, but I would've recommended the same thing if I were their in-house counsel. Amtrak can't charge enough for an 8-year-old's ticket if they got sued for something that happened to the 8-year-old on the train, and trains aren't the controlled environment that air travel is. Parents should be able to choose for themselves whether to subject their children to that tiny risk, but paternalistic courts have pretty much abolished the assumption of the risk doctrine as a useful defense. The solution here is statutory recognition of the defense creating immunity or capped damages low enough to create the proper incentives, but that's not politically feasible thanks to the likes of Andrew Cohen and the litigation lobby, which ask voters to only look at these issues in hindsight.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.