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 Co'tor Shas wrote:
No... simply recognizing that something could be an issue does not make it thier fault.

Yes it does. That's the entire concept of negligence: if you know that a safety hazard exists and do nothing to mitigate the risk of other people being harmed by it then you can be found liable for your failure to act. Part of the job of park management is ensuring that the park is safe for the visitors, even if it requires you to work a little to do it.

 Peregrine wrote:

 Co'tor Shas wrote:
No... simply recognizing that something could be an issue does not make it thier fault.

Yes it does. That's the entire concept of negligence: if you know that a safety hazard exists and do nothing to mitigate the risk of other people being harmed by it then you can be found liable for your failure to act. Part of the job of park management is ensuring that the park is safe for the visitors, even if it requires you to work a little to do it.

It doesn't quite work like that. Some things, in fact many things, are inherently dangerous. Sitting under a tree is, surprisingly, I know, one of those things. The tree could fall on you, a large branch could fall on you, or an extremely large pine cone could hit your head. When you take an action that puts yourself at risk, however slight, you are the one who is reponsible. They are required to not put the people using the park at risk, not stop every single problem that could happen. It's like eating a poisonous plant and then suing, claiming the park has to pay your medical bills because they didn't put a "this plant is poisonous" sign.


Now I feel sorry for the guy, and hope he recovers, but there is not way it is the parks fault. Although you can be damned sure that those trees will be removed/fenced off.

 Peregrine wrote:

So you think a company should not have any liability when they deliberately heat their coffee well beyond the normal temperature of coffee, create a safety hazard that does not exist with normal coffee, and fail to give any warning that their coffee is dangerously hot and requires much greater care to avoid spills than normal coffee? Would it also be ok if they served hydroflouric acid labeled "coffee" and blamed the customer for not bringing a pH test to make sure that wasn't dangerous?

Oh how the hell did i miss this? The coffee would never make it to the customer because once you added milk to the coffee the hydrochloric acid would react scarring the barrista so the coffee would never reach the target , thereby rendering the PH kit useless. Alternatively the cup may not have been completely dry after coming from the dishwashing section and may cause the same result. I think steaming the milk may be problematic as well.
Hydrochloric acid coffee strawman - DEBUNKED.

 agnosto wrote:
What? You're the person who repeatedly stressed that these were unrecognizable hazard trees because they weren't indigenous. Ok......

Yes, and I'm asking why it matters that it's possible to be harmed by something that you don't recognize? How does what you said in any way reduce the park's liability?

In the case, it was factually stated that the coffee was 180 to 190 degrees f; the average temperature for hot beverages is 160-185 degrees (http://www.ncbi.nlm.nih.gov/pubmed/18226454).

So you concede that it was hotter than average. Even your own link says that the ideal serving temperature is about 140* and recommends that restaurants serve their beverages at a lower temperature for safety reasons. And McDonalds was serving their coffee above even the inappropriately-high temperature range used by other restaurants.

Here's the killer. The jury even realized it was a bit silly and found the plaintiff 20% at fault through comparative negligence because who the feth sits around in her sons parked car while their burned by coffee that they, themselves spilt?

Yes, but finding her 20% at fault still meant that McDonalds got 80% of the blame. That's still a very clear statement that this was not just a case of "lol, did you know that coffee is hot", McDonalds actually did do something inappropriate to cause her injuries, and the usual clickbait headline for the case is blatantly misleading.

I said nothing like that. I said that it's just as easy to blame his inability to leave his house on his having served in the military inferring they could sue the military.

You're right, you did, and I misread it. I read it as you saying that the claim of PTSD was just ambulance-chasing, not a legitimate problem.


Automatically Appended Next Post:

 Co'tor Shas wrote:
The tree could fall on you, a large branch could fall on you, or an extremely large pine cone could hit your head.

The first two are rare events (and park management is supposed to remove dangerous limbs that are at risk of falling), and the second is a risk that most people are completely aware of because the trees in question aren't a native species. It isn't "common sense" to be afraid of pine cones because most people are only aware of the existence of normal pine cones that are not capable of causing severe head injuries if they fall on you.

When you take an action that puts yourself at risk, however slight, you are the one who is reponsible.

Nope, that's now how liability works. If you are negligent in removing (or at least mitigating) a safety hazard then you are responsible for the consequences even if the person who gets hurt is also responsible.

They are required to not put the people using the park at risk, not stop every single problem that could happen.

Not every problem, but this one certainly qualifies. It's a rare kind of tree that doesn't fall under "common sense says stay away from it" because most park visitors are unaware that such a tree exists, and it's an easily-foreseen hazard with equally easy solutions. Refusing to do anything about the trees, in defiance of park policy, is blatant negligence.

It's like eating a poisonous plant and then suing, claiming the park has to pay your medical bills because they didn't put a "this plant is poisonous" sign.

You're right, it's exactly like that. Any park manager stupid enough to put a garden of poisonous plants in a public park without any kind of warning sign should be responsible if someone eats those plants. That is reckless stupidity and we punish it for good reasons.

So it's the park's fault if someone picks up a random plant off the ground and eats it, not knowing what it is? Good to know. Glad we sorted that one out.

 Peregrine wrote:

 Co'tor Shas wrote:
No... simply recognizing that something could be an issue does not make it thier fault.

Yes it does. That's the entire concept of negligence: if you know that a safety hazard exists and do nothing to mitigate the risk of other people being harmed by it then you can be found liable for your failure to act. Part of the job of park management is ensuring that the park is safe for the visitors, even if it requires you to work a little to do it.

You're half-way there because standard of care also plays a large role in determining if there was in fact negligence. Someone can't just wave a hand and say, they didn't put a sign up so it's their fault. Standard of care comes into play and applies the concept of reasonable and prudent; was a sign necessary? Did both the plaintiff and defendant act with appropriate care to prevent or mitigate damages?

Tort cases not only examine liability for defendants but the actions of plaintiffs as well. Did the defendant create risk or enhanced risk by not acting reasonably (i.e. sleeping in a park in a city with a known and growing violent crime rate)?

Here's the thing. Under the Federal Tort Claims Act, you can't sue the federal government for punitive damages which is where the big money is; you can just sue for compensatory, real, damages so this guy will not see $5million, not even close to that. He could get medical and lost wages; he's in his 50s so that won't amount to much. The other thing is that the feds have to allow the case to begin with; if they review and find no negligence, there's no case, that's it, no appeal nothing, it's over.

This might not go very far anyway because the FTCA bars suits due to the discretionary function exception, even if it would be a tort offence in the state where the activity occurred.

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89).

First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536.

Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.

Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government to properly train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).

http://www.lectlaw.com/def/f071.htm

 Co'tor Shas wrote:
So it's the park's fault if someone picks up a random plant off the ground and eats it, not knowing what it is? Good to know. Glad we sorted that one out.

It's the park's fault for allowing poisonous plants to grow in the first place. It's a park, not a remote wilderness area.

 Peregrine wrote:

 Co'tor Shas wrote:
So it's the park's fault if someone picks up a random plant off the ground and eats it, not knowing what it is? Good to know. Glad we sorted that one out.

It's the park's fault for allowing poisonous plants to grow in the first place. It's a park, not a remote wilderness area.

Those are not mutually exclusive. Most of the landmass managed by the NPS is remote wilderness, much of it part of our National Parks.

 Grey Templar wrote:
Those are not mutually exclusive. Most of the landmass managed by the NPS is remote wilderness, much of it part of our National Parks.

Yes, but in this case we're talking about an urban park with a museum and a bit of grassy space with some decorative trees. Obviously things are different if we're talking about remote wilderness.

 Peregrine wrote:

 Co'tor Shas wrote:
So it's the park's fault if someone picks up a random plant off the ground and eats it, not knowing what it is? Good to know. Glad we sorted that one out.

It's the park's fault for allowing poisonous plants to grow in the first place. It's a park, not a remote wilderness area.

You seem to have a fundamental misunderstanding of what a national park is, as well as their mission. They are not like your town park or whatever. They can range from things like the statue of liberty, to actual designated wilderness areas. They will not exterminate plants willy-nilly just because "oh-no someone might be stupid and eat it". They are about preserving flora and fauna and historic sites. A lot of their work focuses on ecological preservation. The only plants they would exterminate like that are invasive or non-native ones. And if it's a historic site, they will often plant the things that were their originally, even if they are non-native. That may be the reason that these plants were there in fact, as they were there historically.

Heck, their tagline is "Charged with the trust of preserving the natural resources of America."


And, you know what, even if they were like your average town park, it would still be the persons fault for eating the plant. It's a naturally occurring plant that does no harm otherwise. Unless they have signs saying "you can eat this plant", it's not their fault.

 Co'tor Shas wrote:
You seem to have a fundamental misunderstanding of what a national park is, as well as their mission. They are not like your town park or whatever. They can range from things like the statue of liberty, to actual designated wilderness areas. They will not exterminate plants willy-nilly just because "oh-no someone might be stupid and eat it". They are about preserving flora and fauna and historic sites. A lot of their work focuses on ecological preservation. The only plants they would exterminate like that are invasive or non-native ones. And if it's a historic site, they will often plant the things that were their originally, even if they are non-native. That may be the reason that these plants were there in fact, as they were there historically.

I know what a national park is, and I've spent plenty of time in national park wilderness areas. But the park in this case is NOT a wilderness area. It's a museum and a grassy area in the middle of a city, with a few decorative trees. Obviously remote wilderness areas have different standards, but even in the big wilderness parks the "casual tourist" areas operate under different standards and expect to provide a much higher level of safety features than a backpacking trail 20 miles into the middle of the wilderness. So please don't try to confuse the issue by bringing in appropriate management policies for remote wilderness areas that have nothing to do with this case.

As for preservation, the trees were planted by a park employee "years ago". The article says nothing about any historical value, and according to park policy they should have been removed. But if there is legitimate historical or ecological value for a dangerous plant removal isn't the only option. Warning signs are also a perfectly good option, and there's no reason why they should have been absent in this case. A sign saying "WARNING: POISONOUS PLANTS" fulfills the park's obligation to protect its visitors, and if a person ignores the sign then it's their fault for doing so. But if the park refuses to even post a warning sign then they are responsible for the consequences of that failure.

And, you know what, even if they were like your average town park, it would still be the persons fault for eating the plant. It's a naturally occurring plant that does no harm otherwise. Unless they have signs saying "you can eat this plant", it's not their fault.

That's not how liability works. It isn't an all-or-nothing situation where exactly one person is responsible and everyone else gets away blame-free. Even if the person who eats the plant deserves some of the blame the park is still guilty of creating an unsafe situation and gets their share of the blame (including financial penalties, if appropriate).

The trees are Australian.

 Peregrine wrote:

 Iron_Captain wrote:
Yes, the stupid thing about this lawsuit is that the fact one should not nap under pine trees is common sense.

No it isn't common sense, because a normal pine tree is not dangerous. Getting hit on the head with a normal pinecone is a minor injury at worst, and probably nothing more than " ING PINE TREES!!!".

So you want to nap under a pine tree? By all means, go ahead. But if you can't sleep because pine cones keep falling on your head, don't say I didn't warn ya.
They might not be dangerous, but they sure as hell hurt when they fall on your head. It shouldn't take a genius to figure out that pine trees are not good places for napping. Any place where objects are likely to fall on you is not a good sleeping spot.

 Iron_Captain wrote:
So you want to nap under a pine tree? By all means, go ahead. But if you can't sleep because pine cones keep falling on your head, don't say I didn't warn ya.
They might not be dangerous, but they sure as hell hurt when they fall on your head. It shouldn't take a genius to figure out that pine trees are not good places for napping. Any place where objects are likely to fall on you is not a good sleeping spot.

You do realize that there's a difference between "hurt and mad about it" and "skull crushed and permanent brain damage", right? You don't have a right to complain about a normal pine cone falling on your head if you take a nap under a normal pine tree. You do have a right to complain if someone plants ridiculous extreme pine cone trees you've never even heard of before and doesn't bother to post a "warning, this tree can kill you" sign.

For reference, this is his head:

(Warning: possibly not for the faint-hearted)

 Peregrine wrote:
You do have a right to complain if someone plants ridiculous extreme pine cone trees you've never even heard of before and doesn't bother to post a "warning, this tree can kill you" sign.

Sorry, are you seriously suggesting that plants you're personally unfamiliar with be required to have warning signs on them?


I'm curious if you're aware of the dangers of all of the various plants you encounter every day, and how many of them you feel should have similar warning signs.

 Bullockist wrote:
If you put up a sign branches don't fall down or if they do they harmlessly bounce of the special snowflake field that those signs hand out to those humans within eyeshot.

if a branch falls in a forest and no one is around, can they still sue?

"Warning: These apple seeds contain cyanide"
(For those who don't know, apple seeds contain small traces of cyanide. It's a non-lethal dose.)


That said though, that's a big cave in. I can't blame him for trying to get some dosh. I do think he lacked a bit of common sense to sleep under the tree. I mean sure, people don't typically look up but you'd think if you're in a national park you'd look up at the trees either for the sight or to see that "Hey, there's a massive fething seed pod. Better not stick around here for too long."

 Matt.Kingsley wrote:
I mean sure, people don't typically look up

And that, right there, is the problem. Not the existence of these trees.

Bits of trees fall down from time to time. Sometimes, the bits that fall out of trees are quite large. As such, if you're going to take a nap under a tree, it's a good idea to first look up and see if there is anything in said tree that might be problematic if it falls on you.

If you fail to do so, that's nobody's fault but your own.

So as much as it's a terrible thing to have happen, I have a hard time seeing it as anyone's fault but his own.

 Peregrine wrote:

 Jehan-reznor wrote:
Yes, the park may had to put op signs, especially big signs with simple drawing as it seems that people these days cannot use common sense or read or use their frikkin brain.

I guess you missed the part where the tree in question is one that most people probably don't even know exists (and should have been removed from the park)? It's hard to use "common sense" to avoid something you don't know about. The real failure of common sense was by park management when they failed to follow their own policies on removing non-native species that create a safety hazard and allowed a tree that drops skull-crushing "pinecones" to exist in a high-traffic area.

1. You're dinging them for not putting up signs, when the signs they put up were voluntary.
2. Still not seeing how you can sue the Sovereign.
3. Easiest way to deal with this is A) take down all the signs (thus making the case against public policy); B) throw everyone out-no visitors on government property or you will be forced to debate 40K army composition with Mauleed.


Automatically Appended Next Post:

 Peregrine wrote:

 Jehan-reznor wrote:
Yes, the park may had to put op signs, especially big signs with simple drawing as it seems that people these days cannot use common sense or read or use their frikkin brain.

I guess you missed the part where the tree in question is one that most people probably don't even know exists (and should have been removed from the park)? It's hard to use "common sense" to avoid something you don't know about. The real failure of common sense was by park management when they failed to follow their own policies on removing non-native species that create a safety hazard and allowed a tree that drops skull-crushing "pinecones" to exist in a high-traffic area.

Yes but any tree can drop branches, especially in an old growth forest. Do they need a warning sign on every tree warning of branches?


Automatically Appended Next Post:

 Peregrine wrote:

 Co'tor Shas wrote:
So it's the park's fault if someone picks up a random plant off the ground and eats it, not knowing what it is? Good to know. Glad we sorted that one out.

It's the park's fault for allowing poisonous plants to grow in the first place. It's a park, not a remote wilderness area.

Nature is poisonous. The park probably has snakes and spiders too. They are poisonous. Is the park liable if you are bitten by a snake? What if a squirrel steals your nuts? What if this is Australia and a Great White Shark leaps out of the ocean-is killed by a drop bear- and the drop bear drops its carcass on you?


Automatically Appended Next Post:

 Bromsy wrote:
The trees are Australian.

Of course. That explains it. We have Deathworld trees that have escaped! Quickly call the flame units! Wind up the C-17s to drop fuel air bombs on the whole area if we can't contain the threat. WE ARE THROUGH THE LOOKING GLASS HERE PEOPLE.

 Frazzled wrote:
What if this is Australia and a Great White Shark leaps out of the ocean-is killed by a drop bear- and the drop bear drops its carcass on you?

Then you re-enact Sharknado with only 1 shark and no tornado.
Then get mauled by the drop bear.

Also not sure if Bromsy was joking or not, but the pine tree WAS actually Australian (It's what's known as a Bunya Pine)

Edited for being unable to spell. I must have got hit by a pine cone

In Australia, everyone walks in fours.
one to watch the trees for drop bears/flying great white sharks
one to watch the ground for killer spiders/killer crocs
one to scan the horizon for herds of killer wallabees/dingos/frogs/post apocalypse leatherboys/small children
and baby to hold the Gat.

When I was in Sicily, we stopped in a park (which was on our coach tour), and sat on some benches. I was just unwrapping my sandwich when suddenly *thud*, a big pine cone hits the ground just near us. It wasn't anything like 16 pounds, I doubt it was even 16 ounces, but it could still give you a bump on the head. Can't say I was expecting it either. How often are you really on the lookout for pinecones? Then I noticed there were quite a few of them on the ground, and in the 30 mins we were there, we saw another fall.

I get the feeling that if it is the right season, then pine cones are going to be falling all the time. It's not like a rotten branch which falls once in a blue moon, or a tree falling over during a storm. If those pine cones also weigh 16 pounds, then I imagine it would be worth warning people about.

 Peregrine wrote:

 Co'tor Shas wrote:
OTOH, you have to consider that, even though it was their protocol to have warning signs, was it actually their fault. That's up for the judge to decide I guess.

If you have warning signs around all hazards, especially hazards that a visitor might not be familiar with (such as a dangerous tree most people have never even heard of), then the absence of a sign implies that there is no hazard. This isn't a case of "warning, knives may be sharp", the average person could not reasonably be expected to know that they're in danger of suffering a serious head injury because of a pinecone.

And, again, there's another part to the park's liability: their own policies require them to remove non-native species that cause safety hazards, so the tree shouldn't have been there at all.

And a big sign on Australia reading 'Just DON'T!'

I feel for the man - what happened to him was not his fault.

But it was an act of nature and of nature's god (to steal a phrase) - not negligence.

Or as a great man once paraphrased 'crap happens'.

The Auld Grump

If a bird gaks on me, can I sue somebody?

 Smacks wrote:
For reference, this is his head:

(Warning: possibly not for the faint-hearted)

Spoiler:

Jesus that thing is ridiculous.

if it wasn't a native plant then where did it come from?

i bet its Australian.

 TheAuldGrump wrote:

 Peregrine wrote:

 Co'tor Shas wrote:
OTOH, you have to consider that, even though it was their protocol to have warning signs, was it actually their fault. That's up for the judge to decide I guess.

If you have warning signs around all hazards, especially hazards that a visitor might not be familiar with (such as a dangerous tree most people have never even heard of), then the absence of a sign implies that there is no hazard. This isn't a case of "warning, knives may be sharp", the average person could not reasonably be expected to know that they're in danger of suffering a serious head injury because of a pinecone.

And, again, there's another part to the park's liability: their own policies require them to remove non-native species that cause safety hazards, so the tree shouldn't have been there at all.

And a big sign on Australia reading 'Just DON'T!'

I feel for the man - what happened to him was not his fault.

But it was an act of nature and of nature's god (to steal a phrase) - not negligence.

Or as a great man once paraphrased 'crap happens'.

The Auld Grump

But the problem is the tree shouldn't have been there in the first place. The park was aware of the danger and it was their policy to remove dangerous, non-native species. It was thanks to their negligence that this happened in the first place. If someone leaves a dead, rotting tree that they were aware was dead and likely to fall over on someone's house are they not liable for the damages when it inevitably does?

Referring to the OP here-That's ridiculous! Why would you want to do that? I've had no pinecones fall on my head, but this is seriously ridiculous.

 TheCustomLime wrote:

 TheAuldGrump wrote:

 Peregrine wrote:

 Co'tor Shas wrote:
OTOH, you have to consider that, even though it was their protocol to have warning signs, was it actually their fault. That's up for the judge to decide I guess.

If you have warning signs around all hazards, especially hazards that a visitor might not be familiar with (such as a dangerous tree most people have never even heard of), then the absence of a sign implies that there is no hazard. This isn't a case of "warning, knives may be sharp", the average person could not reasonably be expected to know that they're in danger of suffering a serious head injury because of a pinecone.

And, again, there's another part to the park's liability: their own policies require them to remove non-native species that cause safety hazards, so the tree shouldn't have been there at all.

And a big sign on Australia reading 'Just DON'T!'

I feel for the man - what happened to him was not his fault.

But it was an act of nature and of nature's god (to steal a phrase) - not negligence.

Or as a great man once paraphrased 'crap happens'.

The Auld Grump

But the problem is the tree shouldn't have been there in the first place. The park was aware of the danger and it was their policy to remove dangerous, non-native species. It was thanks to their negligence that this happened in the first place. If someone leaves a dead, rotting tree that they were aware was dead and likely to fall over on someone's house are they not liable for the damages when it inevitably does?

How is it negligence? Just because you have a policy does not mean you are now negligent if you sdon't follow that policy.

For example: It is the policy of X state to harass group Y. If they fail to follow that policy on an occasion does that then make them negligent if that member of group Y then steals a purse?

I'll admit ignorance on how legal matters like this work but if organizations violate their own policies regarding safety can they found liable for the accidents that occur because of their negligence? Or does it have to be based on state law regarding safety?