REI appeals Monika Johnson's case

[KaskadskyjKozak]

 

I'm going to stop by today and try to return everything I've ever bought there.

 

You don't use it anymore anyways. ;-)

[twitchy]

No and no. It just means that they will pay what they should have ponied up the first time. If they sell shit that falls apart and causes injury or death, they face what all Mfgs and importers face in this country. ie, they are responsible.

I'm not following you. You're saying if they sell shit (that they didn't manufacture) they will face what all manufacturer's face in regards to liability. That sounds like a "yes" to my original question.

 

IANAL, but it seems to me that if REI does accept fault here they set a precedence to be at fault whenever any equipment sold at their store fails.

[JasonG]

Thanks Matt. So the system is set up so that if REI bucked the trend and accepted blame, they would be such a target that they would be sued out of existence? Sorry to keep going at this, I am just trying to comprehend our legal system, and why this case is being handled the way that it is.

 

And, has been said by many, many others, I too am very sorry at the passing of Monika. I had only met her briefly, but she was not someone you ever forget. Thanks to Ryan and others for keeping her memory alive, and fighting on her behalf.

[KaskadskyjKozak]

No and no. It just means that they will pay what they should have ponied up the first time. If they sell shit that falls apart and causes injury or death, they face what all Mfgs and importers face in this country. ie, they are responsible.

I'm not following you. You're saying if they sell shit (that they didn't manufacture) they will face what all manufacturer's face in regards to liability. That sounds like a "yes" to my original question.

 

IANAL, but it seems to me that if REI does accept fault here they set a precedence to be at fault whenever any equipment sold at their store fails.

 

It's our fucked up legal system. If REI gave some money to the injured party (as they should of), then her lawyers would use that as tacit admission of full guilt. So REI lawyers dig in and REI acts like complete assholes.

[genepires]

if rei had paid what they should have up front, then there would have been no need to involve the lawyers.

 

This is pure conjecture on my part and i am not fully informed on the amount that she was asking for. But from what ryan was saying it seems like she was asking for

-refund for bike ($300?)

-$10K for testing on bike done as asked by rei to do so.

-medical expenses (throw out a number $10K)

-lost wages ($1000?)

-lost vacation time ($1000?)

 

all together and bump up and that comes to $30K with no lawyers involved. While a lot to me, this is trivial amounts for rei and they may very well lose that in sales if this were to be more in the public eye. I would be confident to say that rei has lost close to $15K just from the bad publicity here and at TAY alone.

 

[rob]

Thanks Matt. So the system is set up so that if REI bucked the trend and accepted blame, they would be such a target that they would be sued out of existence? Sorry to keep going at this, I am just trying to comprehend our legal system, and why this case is being handled the way that it is.

 

They didn't even refund the bike! They refund everyone else's crap but their own, it seems.

[KaskadskyjKozak]

if rei had paid what they should have up front, then there would have been no need to involve the lawyers.

 

This is pure conjecture on my part and i am not fully informed on the amount that she was asking for. But from what ryan was saying it seems like she was asking for

-refund for bike ($300?)

-$10K for testing on bike done as asked by rei to do so.

-medical expenses (throw out a number $10K)

-lost wages ($1000?)

-lost vacation time ($1000?)

 

all together and bump up and that comes to $30K with no lawyers involved. While a lot to me, this is trivial amounts for rei and they may very well lose that in sales if this were to be more in the public eye. I would be confident to say that rei has lost close to $15K just from the bad publicity here and at TAY alone.

 

Yes, give the 30K and then if there is still a lawsuit for more, they would not look like such assholes even if they fought it. REI must give away 10K to the community/charities, etc, so I doubt such a sum would even be put a dent in anything.

[mattp]

Our system relies on individuals to pursue their own claims and the trials are conducted in an adverserial manner. Neither side is actually expected to present their case in an honest manner which may acknowledge their weakness but both, whether it is plaintiff and defendant in a civil trial or prosecutor and defendant in a criminal matter, are expected to present their strongest case. The Judge or Jury decides who was right.

 

There are some legal systems that do not use this adverserial approach. Under the Napoleonic code, for example (France), the judge or a panel of judges conducts the inquiry and directs the trial rather than serving simply as referee. Many people argue that our adverserial system is fairer because it offers less opportunity for the government to control the process and exercise bias against one side or the other.

 

Most of our cases settle out of court, and I have no idea what discussions may have taken place in this matter. We are all speculating. I’m not sure, but REI might have been more likely to simply pay her off under the French system.

[mattp]

Apart from the adverserial system, there is another major question here. To those who say liability exposure is the problem here, I'd ask: what is the alternative? If you take the individual right to sue REI or if you cap liability awards as tort reformers would like to do, what incentive would there be for REI to insure that this doesn’t happen again? Would you rather have some kind of consumer safety board that would have the authority to close REI’s doors if they don’t clean up their act? Some other regulatory power? And what about Monika? Should public payor healthcare have been available to take care of her if she had no right to sue REI? Or, if she had no insurance, should she simply have been screwed?

 

In many ways, our tort system (personal injury and other suits for injury) is the ultimate "free market" approach to safety and victim compensation.

 

[twitchy]

To those who say liability exposure is the problem here, I'd ask: what is the alternative?

I don't know. I think that's better left up to people smarter than me, which there is no shortage of. I've only been aware of this entire situation for a few days now and it just seems like most of the outrage is misplaced.

[selkirk]

No and no. It just means that they will pay what they should have ponied up the first time. If they sell shit that falls apart and causes injury or death, they face what all Mfgs and importers face in this country. ie, they are responsible.

I'm not following you. You're saying if they sell shit (that they didn't manufacture) they will face what all manufacturer's face in regards to liability. That sounds like a "yes" to my original question.

 

IANAL, but it seems to me that if REI does accept fault here they set a precedence to be at fault whenever any equipment sold at their store fails.

 

i'm not a lawyer.....

 

Seems like they would only be setting legal precedent (one way or another) if they went to court and lost. If they settled out of court it would almost certainly be cheaper and I'm sure the settlement agreement would have a "no fault" rider in there.

 

Sounds like the insurance company is using this case to draw a line in the sand regarding the Washington state liability laws and their interpretation. This just happened to be a good test case for them, so threw Monika under the bus

 

 

 

...though I play one on TV.

[DPS]

This just happened to be a good test case for them, so threw Monika under the bus

 

In my experience, insurance companies would throw their own children under the bus if it was good for the bottom line.

[Hugh Conway]

Apart from the adverserial system, there is another major question here. To those who say liability exposure is the problem here, I'd ask: what is the alternative? If you take the individual right to sue REI or if you cap liability awards as tort reformers would like to do, what incentive would there be for REI to insure that this doesn’t happen again? Would you rather have some kind of consumer safety board that would have the authority to close REI’s doors if they don’t clean up their act? Some other regulatory power? And what about Monika? Should public payor healthcare have been available to take care of her if she had no right to sue REI? Or, if she had no insurance, should she simply have been screwed?

 

In many ways, our tort system (personal injury and other suits for injury) is the ultimate "free market" approach to safety and victim compensation.

 

Why are you making this so complex matt? It sounds like REI wants to dump liability of their house brand products onto someone else; they branded it, they sell it under their name, they should take the liability.

[Water]

this morning it made it really easy to grab a shirt out of my closet that I bought in 2005 at an REI in michigan. I'm looking forward to the $38. I never wore the shirt anyways. this thread certainly helped me to feel no qualms about returning it.

[RaisedByPikas]

this morning it made it really easy to grab a shirt out of my closet that I bought in 2005 at an REI in michigan. I'm looking forward to the $38. I never wore the shirt anyways. this thread certainly helped me to feel no qualms about returning it.

 

Look for me in line around 5:30 returning an old REI branded jacket that the zipper is f'ed up. I previously felt bad about returning an old product but no more. I'll have to convert it into some 25% off cams though because they will only give me store credit.

[mattp]

Why are you making this so complex matt?

 

My points really are quite simple. I'll break it down for you:

 

1) It is a sad situation but I don't think it is realistic to expect REI or any other company to admit liability when they or their insurer do not have to.

 

2) Ours is not a perfect system but this is an example of how our legal system probably does work as a deterrent toward irresponsible corporate behavior and as a provider of compensation to the victim.

 

You may not be interested in further elaboration but Jason was asking why I wrote what I wrote and I tried to offer a bit of my reasoning.

[RaisedByPikas]

Why are you making this so complex matt?

 

My points really are quite simple. I'll break it down for you:

 

1) It is a sad situation but I don't think it is realistic to expect REI or any other company to admit liability when they or their insurer do not have to.

 

Having to admit liability and volunteering to do it because its the right thing to do are different. REI says they stand behind their products but apparently they want their suppliers to stand behind them instead when things go wrong.

[Hugh Conway]

Having to admit liability and volunteering to do it because its the right thing to do are different. REI says they stand behind their products but apparently they want their suppliers to stand behind them instead when things go wrong.

 

Exactly. If REI doesn't want to accept liability they shouldn't sell shit under their brand.

 

Or they could look doubly douchey, like they do now

[rob]

Why isn't there any local news coverage on this? Come on, PI -- get with it!

[KaskadskyjKozak]

Having to admit liability and volunteering to do it because its the right thing to do are different. REI says they stand behind their products but apparently they want their suppliers to stand behind them instead when things go wrong.

 

Exactly. If REI doesn't want to accept liability they shouldn't sell shit under their brand.

 

Or they could look doubly douchey, like they do now

 

Does anyone know what if anything changed w/r/t to their relationship with Farily Bicycle Manufacturing, and how the latter manufactures/assures quality, since this problem occurred?

[JayB]

Here's a cross-post from TAY that seems consistent with Matt's explanation:

 

"I am an attorney and a former bicycle framebuilder (now a hobby). Some of these issues lie outside the sweet spot of my legal expertise, but I'll offer these comments:

 

1. I highly doubt that the decision to appeal is in REI's control. It is more likely in the control of REI's product liability insurance carrier. The policy likely provides that the carrier (who is ultimately on the hook to pay) controls all decisions re settlement and litigation. I've never heard of a PL policy that gives control over such matters to the insured. Such a rare provision might exist in some rare policy, but I've never seen one nor have I heard of one. So, I will assume that REI has no control over the decision to appeal.

 

2. I have quickly read through the opinion issued in Feb by the Court of Appeals, Division I. The fundamental issue is purely legal and involves the tension between the Washington Products Liability Act (WPLA) and comparative fault provisions of RCW Chapter 4.22 (sometimes called the "Tort Reform Act").

 

3. The WPLA generally imposes strict liability on the manufacturer of a defective product, but holds a mere "product seller" (e.g., a mom and pop bicycle shop) to liability only for negligence, breach of express warranty or intentional misrepresentation. However, the WPLA also provides that, in limited circumstances, a the liability standard of a manufacturer may be imposed on a seller "where the product was marketed under a trade name or brand name of the product seller.” This private labeler liability appears to apply to REI’s Novara branded bicycle products.

 

4. Where more than one party has contributed to the injury suffered by the plaintiff, under the comparative fault provisions of RCW Chapter 4.22 one of the several liable parties can “point the finger” at the other parties by attributing a percentage of fault to them, thus limiting the finger pointer's liability. (I’m simplifying things here, so tort experts please forgive me.) In this case, the manufacturer, Aprebic Industry Company, Ltd., was not named in Monika’s action and was thus an “empty chair.” (I will assume that Aprebic was not named because Monika’s attorneys did not want to get stuck trying to chase assets in Asia.) So, the legal issue is whether REI can attribute all or a large percentage of fault to Aprebic and thus avoid liability or some portion of it.

 

5. Division I ruled in favor of Monika, rejecting REI’s argument that the CF provisions of RCW Ch. 22 trumped the WPLA imposition of manufacturer liability on private label sellers. Division I reasoned, among other things, that allowing REI to allocate fault would have the effect of abrogating the private labeler liability of the WPLC. Division I’s opinion is very well reasoned and well written. While it is difficult to forecast what WA Supreme Court will do, I am optimistic that Division I’s ruling will be affirmed.

 

6. If people are going to get angry at someone, I suggest you direct your ire against the insurance industry which heavily lobbied the WA legislature to pass RCW 4.22 and those lawmakers who are shills for the industry. As I state above, REI likely has no control over whether or not to appeal. The insurance industry continues its efforts to avoid liability by, for example, blaming soaring medical costs on insurance payouts to victims of medical malpractice and their attorneys," ....etc

[Kimmo]

Having to admit liability and volunteering to do it because its the right thing to do are different.

 

but: certainly an aspect worth considering is how "responsible" REI feels over the situation.

 

if you sold products manufactured by others, can you honestly honestly say you would accept any and all manufacturing defects by said company? I personally cannot say I would.

 

Couple that with the existing legal/insurance structure, which has been at least tangentially addressed by mattp and jayb's post (worth reading the original thread), and all of a sudden you have a situation that is definitely more complicated than anything addressable by a sense of outrage (no matter how justifiable and understandable).

Edited May 21, 2011 by Kimmo

[Hugh Conway]

if you sold products manufactured by others, can you honestly honestly say you would accept any and all manufacturing defects by said company? I personally cannot say I would.

 

If you don't want to accept any and all don't sell it under your name sell it under theirs

 

As a consumer do you want to buy a private label product knowing the labeler (REI, Performance Bike, Safeway) won't accept responsibility for what's in the product manufactured by some entity you can't determine?

[DPS]

If you don't want to accept any and all don't sell it under your name sell it under theirs

 

As a consumer do you want to buy a private label product knowing the labeler (REI, Performance Bike, Safeway) won't accept responsibility for what's in the product manufactured by some entity you can't determine?

 

Amen.

[JasonG]

Thanks Matt, I had read the opinion that Jay cross-posted previously- and was looking for another legal mind to weigh in on the matter. I've learned a lot about how our system works, imperfect as it may be. Much appreciated.