YOU be the Lawyer #1
I’m currently taking Product Liability with professor Bruce Ottley. I’ve already taken Civil Procedure and Remedies with him, and will probably take whatever class he teaches next semester.
Yesterday, in Ottley’s Product Liability class, we went over a case called HAUTER v. ZOGARTS. In it, defendant Zogarts manufactured a product called the “Golfing Gizmo,” a training device used to help golfers improve their swing. “The Gizmo is a simple device consisting of two metal pegs, two cords—one elastic, one cotton—and a regulation golf ball.” To make a long explanation short, the Gizmo works like a slingshot.
Defendant Zogarts advertised the Golfing Gizmo by saying, “COMPLETELY SAFE. BALL WILL NOT HIT PLAYER.” They also put that phrase on the product’s label and on the cover of the product’s instruction booklet.
Well, ball hit player, and player was thirteen-year-old Fred Hauter, who suffered “extreme pain and dizziness,” unconsciousness, and brain damage. The Gizmo left Hauter epileptic.
The court held that defendant Zogarts misrepresented a material fact upon which Plaintiff Hauter relied. In other words, the court ruled for plaintiff Hauter.
Here’s my question to you:
IF YOU WERE REPRESENTING DEFENDANT ZOGARTS, WHAT WOULD YOU ARGUE ON THEIR BEHALF?
Technorati Tags: Product Liability, Defendant, Injury
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January 30th, 2007 at 11:51 am
The ball clearly couldn’t have hit Hauter unless Hauter hit the ball first. This incident is a self-defense whacking, plain and simple.
January 30th, 2007 at 1:31 pm
Counselor Ryan,
Sure, self-defense generally applies to criminal (not civil [i.e., lawsuit]) charges, and this is a civil case…but if you can just get over than tiny hurdle, you’re good to go!
-Rick Lax
January 30th, 2007 at 3:58 pm
I’d bring a third party clain against the parents. Obviously they should have some responsibility, since they undoubtedly purchased and then allowed their 13 year old access to such a dangerous piece of equipment.
January 30th, 2007 at 4:08 pm
it was a printing mistake! the words were completely re-arranged from the original printer submission (exhibit a). it reads: BALL WILL HIT PLAYER. NOT COMPLETELY SAFE!
i rest my case.
January 30th, 2007 at 5:15 pm
Counselors Chuck and Rob,
Passing the blame is always an option. But, Counselor Lax, I’m pretty sure it’s the 13-year-old’s parents who were doing the suing, so passing the blame to them wouldn’t do much good. Counselor Rob, passing the blame to the printer is probably the best idea so far becuase in the case, the Plaintiff’s argument was, “They said it wouldn’t hit the player and it did,” so if the Defendant could say, “We never said it would hit the player,” they’d be good to go. Though, something tells me this wasn’t a printing error…
-Rick Lax
January 30th, 2007 at 6:32 pm
Maybe if there was an age limit on the product you could fight that it was the parents fault for leaving it unattended and letting their child put himself in danger. That’s the first thing that comes to mind. I wouldn’t really want to think too hard about this one because I wouldn’t want to be the lawyer for the gizmo people anyway because I feel bad for this kid and what happened to him especially since they advertised that their product was safe.
January 30th, 2007 at 10:37 pm
Yeah poor kid. I’m sure the epileptic seizures are worsened by the piles of money that he now sleeps on.
January 31st, 2007 at 2:45 pm
What about the thousands of poor kids of the jobless workers who used to work at the now defunct Golfing Gizmo factory? Would you want to be the lawyer that caused them to starve to death? Eh?
February 2nd, 2007 at 2:29 am
man. that’s an unfortunate case. maybe, though– just *maybe* the kid had the type of epilepsy found in some kids where they don’t even realize they’re having a seizure? maybe, he was alone, had a serizure , fell to the ground, and the golf ball just shot out as it normally is supposed to– and hit the kid’s head…. BECAUSE THE KID WAS ALREADY DOWN?! orrrr. maybe the gizmo did malfunction and there’s no way to really avoid getting sued.
February 2nd, 2007 at 2:45 am
Counselor Yuri,
Not bad. Whenever somebody gets injured by something, the defense always tries to argue “You were already hurt before this happened–weren’t you?” or something like that. And as for the kid being down, that’s called contributory negligence. And this might be an okay place to argue it.
-Rick Lax
February 5th, 2007 at 11:11 am
If all relevant information has already been provided it seems obvious a mistake has been made on the part of Golfing Gizmo. I’d point to Kohlberg’s theory of morality as my reason for being unwilling to defend a client who’s clearly been negligent. Have the guilty party accept their consequences and reimburse the injury accordingly.
February 5th, 2007 at 12:33 pm
Counselor Michael,
Yes, advising your client to accept the consequences of their actions is sometimes the best way to go. That’s what settlement is all about. And when you have a bad case, you’ll often want to settle. But when you become an attorney, you have to put your own morality aside—well, you do when it conflicts with the Model Rules of Professional Conduct. It sound like Kohlberg’s Theory of Morality, in this case does.
The Model Rules say you have a duty to be an advocate for your client. Now, if you have HUGE moral problem with a client, you can refuse their case. But aside from that, you have to defend whoever walks through your door. That’s your job as an attorney. Your job isn’t to be the judge or jury. That’s what judges and juries are for.
-Rick Lax
February 5th, 2007 at 1:18 pm
I’d argue “no privity” between the kid and the seller. If that didn’t work, I’d argue “some privity, but still not enough.” And if that wasn’t enough to get Gizmo Company acquited, i’d advise Mr. Gizmo to turns state’s evidence, get immunity and testify against the rat bastard that invented the golfball.
February 5th, 2007 at 2:31 pm
Counselor Steve,
Its always great to get sound legal advice from an experienced attorney.
Chuck
February 6th, 2007 at 9:30 am
Obviously the solution here is that the term “Player” is undefined. The term “Player” has many different meanings, of which many do not include a thirteen year old child. As this was a device used for ‘practice’, not ‘playing’ the game, clearly the child was a ‘practioner’ while using the device, not a ‘player’. As such, he had no such guarentee of immunity from harm. It is a terrible tragedy that the child was harmed due to his parents misinterpretation of the clearly stated warning and their failure to ensure their child’s safety.
In conclusion, remember… hate the player, don’t hate the game.
Rob