Q: As an attorney, I have to take issue with the advice in your April 5 online column (“Salvaging a Damage Claim”) that you gave your correspondent who was having a dispute with a carrier over whether possibly contaminated polymer pellets retained salvage value.
You recommended the shipper simply turn over the goods to the carrier for sale to resolve the issue of salvageability. I disagree strongly. Doing this would expose the shipper to possible product liability litigation if the buyer found there was contamination and was injured thereby.
I always recommend to my clients they avoid salvaging any damaged merchandise, regardless of the reason for the damage. The only exception is where the manufacturing identification can be removed so completely that there is no possibility the goods can be traced back, and that’s a rare situation.
In this case, there are only a limited number of producers of polymer pellets. Further, because this was a special order, the manufacturer could probably be identified. The shipper is asking for legal trouble if it follows your advice.
A: Somebody once told me lawyers exist for the primary purpose of warning people not to do anything that makes sense, anything that’s generous, anything out of the ordinary, or indeed much of anything at all.
I often find that to be true, though I’m loath to blame the lawyers alone. The problem is the law itself as it’s administered and applied far too often; the lawyers are only the messengers, so let’s not rush to shoot them all quite yet.
We live in a society in which a consumer isn’t supposed to be able to figure out that when hot coffee is ordered, it’s likely to come hot and might burn you if you immediately spill it in your lap. In our society, juries award damages to women who use hairspray while smoking and get burned — notwithstanding proof that you couldn’t ignite the hairspray with a blowtorch.
And on it goes. Companies that sell frozen foods warn the foods will be hot after cooking (hey, I thought that was the point). People are cautioned not to ingest cleaning solvents (they want to spruce up their intestines?). Knives are labeled “caution, blade is sharp” (like you’d buy a dull knife).
All of these and the myriad other label warnings are there because some legal team insisted on it. Why? Because these lawyers know perfectly well that any time a lot of folks do something stupid and hurt themselves, their second move, right after that trip to the emergency clinic, is to look around for somebody to pay them big bucks for failing to tell them ahead of time not to be stupid.
Now, you might think anyone with half a brain would grasp that, when they find something at a salvage sale going for 10 cents on the dollar, there’s likely to be something a little off with it. Even if it looks OK to the casual eye, the nature of the sale ought to positively scream out, “Use at your own risk!”
Nuh-uh, not in this country. One of the great things about the U.S. judicial system, it’s said, is that anybody can sue anybody for anything. And people take full advantage of this. All. The. Time.
Not that they necessarily win. For every coffee and hairspray story (both are real), there are countless lawsuits that are lost, pitched out of court or settled for comparative pennies. But for some plaintiffs (and, to be fair, plaintiffs’ attorneys), it’s like playing the lottery, you go for the big win and take your small losses in stride.
Win, lose or draw, though, the costs of defending such lawsuits can be staggering. Big companies — the ones, of course, with lots of money — are the usual targets of this kind of litigation, and they don’t hire cheap legal help. That’s why they listen up when their lawyers say do this or that and don’t do that or the other because you might, just might, get sued.
To a considerable extent I, being a realist, have to go along with them. If warning somebody that cooked food gets hot, that caustic liquids aren’t for drinking or that knives are sharp can save a lawsuit down the line, I guess it’s a good idea to do it.
So, to my previous correspondent, there’s a lawyer out there who thinks you might get sued if you do what I told you. He might even be right. There, that’s my warning label.
Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.