On Feb 1, 11:41 am, Ernie Klein <eckl...@pacbell.net> wrote:
> Notwithstanding all of Mike's comments, if the OP does nothing and
> leaves the graffiti in place couldn't that be seen as a sign by the gang
> members that the OP is an easy target prompting them to return and do
> more, or even encourage rival gang members to enter the picture which
> could lead to even worse situations.
Yeah, so OP's damned if he do, and damned if he don't. Sounds like the usual state of affairs, actually.
I never said life comes with any money-back guarantees. You take it as it comes and muddle through as best you can.
And jurors know that too, as does the law of negligence. They are unlikely to condemn someone who miscalculated and made things worse just because he _was_ exercising reasonable care and trying to help. The law does not demand perfection, just the ordinary level of care that prevails in the community.
That does not immunize OP from being sued if something bad happens, it just means he is likely to prevail in the end. The attorneys for someone who is injured in a catastrophe have a right, even a duty, to look for a way to legally compensate their client's loss by trying to find an arguably culpable defendant with deep pockets. "Arguably" because almost nothing is ever cut-and-dried, and if you listen to your mother, we are ALL guilty of something. Failing to finish all your peas could be one of the reasons children are starving in China. And since under our legal system, anybody can sue you at any time for any reason, and since even someone who is trying to be careful and reasonable DOES occasionally do things that can be constued in hindsight as negligent, that's why we have liability insurance.
> Wouldn't all or most of the risks Mike pointed out still be present if
> the failure to remove the graffiti could be connected to future violence?
Yes. Isn't law grand? The reason satirists have so much fun these days is, they don't even have to exaggerate.
> Also, don't many cities have local graffiti laws _requiring_ property
> owners to remove or paint over graffiti within a set time limit for that
> very reason, to discourage attracting gangs and/or graffiti?
Such a law would militate strongly against finding a shopowner liable if he DID paint over the tags. However, he still has a duty to do so in a reasonable way, giving appropriate information to the person he hires, etc. based on all the foreseeable consequences. He can make that decision by (consciously or subconsciously) comparing the perceived likelihood and severity of those consequences happening, vs. the cost and risk of his chosen action and other possible alternative actions (including doing nothing).
If the risk of harm is serious enough and likely enough, and if the cost of doing something about it is reasonable enough, then a person is negligent if he does NOT do that, or something else equally effective, to deal with that risk. It's almost never possible to state a firm black-and-white hard line rule on something as fuzzy as "reasonableness" and "foreseeability" and "enough". However, sometimes such statutes include an explicit grant of immunity to persons complying with its terms, for just that reason.
> Wouldn't it also make a difference whether the OP's property was the
> _only_ property in the area that was "tagged" (which could show that he
> was either 'singled' out, or that other property owners have been prompt
> to remove graffiti) , or the other hand, was the only property that had
> up to this time, been untagged in a neighborhood already filled with
> other graffiti?
Whatever additional facts you throw into the mix, change the balance in the risk/benefit analysis and thus potentially change the outcome. So, yes, it _could_ make a difference.
As a side note, most ordinary Joes do not go thru such an explicit cost/benefit analysis for every action they take in life -- nothing would ever get done that way. What happens, though, as in e.g. driving a car down the street, is that based on that person's knowledge, common sense and experience, the reasonable person can and does filter out the stuff that does not pose an immediate risk but bells go off in his head when he perceives something that could be dangerous, triggering the need to decide what to do next to avoid the risk. If those decisions are reasonable, not in fact calculated to purposely add additional risk (like trying to beat the train to the crossing, as Nick Cage did in the movie I saw last night), they are most likely not negligent even if something bad happens. OTOH someone who is toodling along, not paying any attention, eating a McFries or combing his hair or whatever, and doesn't even SEE the risk, is far more likely to be found at fault. The OP and others, including corporate decisionmakers trying to gauge risk of various options based on parameters known and defined well in advance, DO have the luxury of time, and thus are also far more likely to be judged at fault if they choose wrong.
Moderator Paul points to the Stella Liebeck vs. McDonald's "coffee case" as an example of improbable liability nevertheless being found by a jury. Without rehashing that whole case, and there are many websites that do so very well, I simply note that the unopposed evidence at that trial showed McD knowingly and intentionally served its coffee 20 to 30 degrees hotter than virtually any other eatery and probably 40-50 degrees hotter than at home; that they knew this increased the risk of severe third degree burns occurring within a second or two from spills by an order of magnitude vs. the lower-temperature coffee which other stores served; that McD was aware of over 700 serious burn cases from their coffee, and kept track of them; and that nonetheless, McD execs made a conscious decision to keep their coffee hotter than even they acknowledged was safe.
That's why they were held liable -- their explicit risk/benefit calculation basically said, "we can _afford_ to have 700 people get seriously burned if we serve our coffee hot enough that a morning commuter can go to the drive-through, then drive for an hour to his destination and still find his coffee pleasantly hot; that way we'll sell more coffee." The jury didn't like that, even though they too like their coffee hot -- just not "unreasonably" hot.
One may also note that Stella's award of damages WAS reduced by the percentage the jury found her OWN negligence contributed to causing her harm by spilling the burning liquid on herself, applying comparative negligence principles as they were required to do. And the "big" punitive damages hit McD took was measured by the plaintiff's argument in closing, that the value of a single day's sales of just coffee at all McD outlets worldwide may be enough to get their attention without seriously disrupting corporate profits. As it was.
Nor did the jury in the Ford Pinto case in CA in the 70's like what Ford managers did. They socked Ford for major punitive damages based on a conscious corporate decision that went as follows: the company would save megabucks EVEN IF they got sued for damages by toasted occupants, if they refrained from putting a $5 plastic guard over the gas tanks of each of their little bombmobiles that would prevent them from becoming an action-movie explosion scene when they got rear-ended. When one Pinto _did_ get rear-ended on a California freeway (as happens a lot), and foreseeably blew up and fried the guys inside, as Ford foresaw in advance would happen, the jury was not too happy about that either. It wound up costing Ford a lot more than they expected in their cost/benefit analysis.
It is not my intent to condemn the cost/benefit analysis process in corporate decisionmaking. Failure to do so would ALSO be negligent, maybe even grossly so (see above for "Damned if you do, damned if you don't). But just like OP deciding whether to paint over the graffiti or not, boardroom bigwigs cannot callously disregard human safety issues or treat them as mere currency in a market of risk. In other words, the law (thru juries, aided by diligent plaintiff attorneys) will insist that conglomerate boards, just like Joe down at the corner store painting over the graffiti, have to base their decision on humane values too, not just corporate bottom lines.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
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