Hypo
Imagine this scenario: a woman is killed in a wreck with a UPS truck. Witnesses establish that the driver had ample warning of the impending crash, including honking horns, screeching tires, etc. But the driver didn’t hear any of the warning signs — because he is deaf. The company is sued for hiring a driver more prone to accidents than most drivers because of his deafness.
Is it a defense for UPS to argue that a federal judge made the company hire a deaf driver?
UPDATE: The post was posted in a draft form by accident. I fleshed it out a bit.
Yes.
If the feds tell us who we have to hire, then they are responsible for the consequences.
Amphipolis (e6b868) — 12/29/2007 @ 6:37 pmI think it’s a good moral defense. Whether it is one legally, on the other hand, is a question I’m not qualified to answer. But if I were a juror, common sense would tell me, “Yes.”
Christoph (92b8f7) — 12/29/2007 @ 6:50 pmIf deafness was alleged to be the proximate cause of the accident. I could probably get the case dismissed on the pleadings with a good judge without even needing to implead the feds.
nk (c87736) — 12/29/2007 @ 6:57 pmTo expand, if he otherwise exercised the reasonable care a deaf person in the circumstances would. It’s the law of the land. Deaf people have no duty not to be deaf.
nk (c87736) — 12/29/2007 @ 7:02 pmMay I suggest a title for this post? How about “The UPSide of Disability Law.”
DRJ (09f144) — 12/29/2007 @ 7:02 pmDRJ, you gonna write your own blog? If so — what’s the URL?
Christoph (92b8f7) — 12/29/2007 @ 7:04 pmChristoph,
Absolutely not. This is the only place I want to blog and I’ve only been able to do that because I was working less after my wreck. Now that I’m able to return to my regular work schedule, I have co-workers who covered for me that need to take time off and get their lives back.
Isn’t it interesting how things work out? If I hadn’t been hurt in a wreck, I wouldn’t have had the chance to blog. I consider that my silver lining.
DRJ (09f144) — 12/29/2007 @ 7:15 pmI respect your decision, DRJ, although I think you alrady know that. Still, should a dove perch on your window sill ….
nk (c87736) — 12/29/2007 @ 7:23 pmI didn’t know you were hurt in a wreck, DRJ — glad you are recovering. Since I think you’ve discovered you like this type of forum for communicating your views, why not curtail activity, but keep your guest blogging account and weigh in on occasion when the mood strikes you and you have time to share your thoughts?
After all — the election will come and go and someone will win it. Why not have a soap box to endorse a candidate ahead of time and offer your opinion after?
As one example.
Christoph (92b8f7) — 12/29/2007 @ 7:28 pmWe’re REALLY gonna miss you DRJ.
Promise to still post an entry now and then. Patterico gets a lil dull some times. 🙂
Scott Jacobs (a1de9d) — 12/29/2007 @ 7:50 pm9 comments on another post that got posted by accident.
I’m going to have to lay off the Treo.
That was just the beginning of the post. Oh well.
Patterico (699c28) — 12/29/2007 @ 7:53 pmOK, re-read the post, which was posted in a draft form by accident. The current version is closer to what I meant to ask.
Patterico (699c28) — 12/29/2007 @ 7:56 pmIt made sense the first time.
Christoph (92b8f7) — 12/29/2007 @ 7:57 pmUPS would be freed from liability, assuming they used the “more prone to accidents” when they tried to stop the forced hirings.
IMO
Scott Jacobs (a1de9d) — 12/29/2007 @ 7:58 pmThe suit should look at who caused the accident. Any issues about whether UPS was forced to hire the deaf driver would be between UPS and the government and not relevant to the suit in question. They should be separate issues. Holding the litigation in the woman’s dearh hostage to the broader business issue at UPS is an unfair and irrelevant litigation tactic.
daleyrocks (906622) — 12/29/2007 @ 8:34 pmIs the standard negligence or absolute liability? If the standard is absolute liability, this discussion is moot. However, it isn’t.
Correct me if I’m wrong: I believe the standard is negligence.
If UPS is ordered by the government to employee a person as a driver who can’t hear audio emergency alerts such as screeching tires and drivers’ horns — and hearing this would have prevented the accident — then in no way, shape, or form is UPS negligent. Therefore, I don’t see how they are liable.
Assuming the legal government mandated standard for UPS drivers includes drivers who can’t hear… then hearing isn’t an essential ability for their driver as a matter of law. So if an accident occurs as above, it isn’t an accident preventable by any UPS action. They were behaving responsibly by putting a deaf driver on the road since they had no choice. Therefore, unfortunately for the woman’s family who was killed, they don’t have a valid cause of action against UPS anymore than they would if meteor had fallen from the sky and knocked the UPS truck of course into the path of the woman.
Christoph (92b8f7) — 12/29/2007 @ 8:42 pmChristoph – Under your standard, you could have two identical preventable fatal accidents involving a UPS truck. In one, with a deaf driver, UPS could be held not liable. In the other, with a non-hearing impaired driver, UPS would be on the hook. In both instances, a UPS driver was unquesrionably at the wheel of the truck at the time of the accident, the only difference being a disability. I don’t agree that this is the outcome the law is seeking. The disabilities are irrelevant. The question revolves around who caused the accident. It is a question of the actions of the drivers, not a question of whether the drivers had disabilities. The question of negligence or gross negligence may be relevant for damages, but not for finding fault.
daleyrocks (906622) — 12/29/2007 @ 9:12 pm#15…
See, that’s why we civilians think the legal portion of this country is cracked, broken, twisted, unrealistic, and, and, and…..
Common sense is all we’re asking for. Here’s the story as I read it: a deaf driver was the cause of a fatal car collision because he didn’t hear the warning signals. He was hired by UPS because he applied to be a driver, and could not be denied a job on the basis of his deafness, and which deafness led directly to the collision under discussion.
Would the deaf man have been hired by UPS as a driver if there weren’t federal penalties for denying deaf men the job of driving UPS trucks? Common sense says what?
Of course, we all know the answer. The law has nothing to do with common sense. I sincerely believe it must have at one time. But now its principal purpose is to serve itself and its practioners first and foremost, despite the lip service paid to serving the public. It is arcane, convoluted, capricious, and cancerous in its ability to kill healthy segments of industry and commerce, leaving only hollow shells of overtaxed and overregulated industries that will sadly be exposed as this nation crumbles under the weight of it all, while the Chinas of the world grow unfettered and corrupt, polluting at will. And damn the public interest, we’ve got the law to protect here, people.
The law industry could be leading the way. Instead it is in the way. Taking the easy money versus helping build a vibrant, modernizing nation. Suing UPS for 30, 40, 50% fees is EASY money. And it stinks.
allan (9e11f2) — 12/29/2007 @ 9:14 pmallan – I agree it sucks the big one.
daleyrocks (906622) — 12/29/2007 @ 9:18 pmdaleyrocks #17, imagine you are a deaf driver who has been duly licensed by your state. You get into an accident, which witnesses say seemed preventable because another vehicle honked their horn and screeched tires, which should have prevented collision.† Other than not hearing the horn honk and tires screech, you weren’t negligent an investigation reveals. In the accident, the driver of the other vehicle dies.
Can you be charged with negligent homicide? Answer — no. If the legal standard for a judgment against you is negligence, were you negligent? How?
Another scenario. I am driving and I have my stereo blaring to the max. A car honks their horn and tires screech. An investigation reveals the collision could have been prevented if I had heeded the audio warnings — which I couldn’t hear due to my overly loud stereo, in violation of state motor vehicle regulations. Can I be charged with negligent homicide? I assume so. Can I be sued for negligence? Yes. (Same thing if I didn’t have the stereo on and just didn’t respond in a reasonable manner to hearing the horn/screeching tires.)
It would be ludicrous for a person to be given a license by with the state with full knowledge they don’t have a given sense and then punish — criminally or civilly — that same person for not responding to a sense they don’t possess. Likewise, it would be ludicrous to order UPS to hire drivers without a sense and punish them criminally or civilly for not responding to a sense they don’t have.
What part of what I wrote do you disagree with?
Christoph (92b8f7) — 12/29/2007 @ 9:27 pm† As an aside, I honked my horn today preventing a vehicle from changing lanes right into me: I’m not arguing deaf people should be licensed and working as high-mileage UPS drivers, just accepting the reality that they are, by judicial order.
Christoph – Address the dual outcomes I laid out first in my comment and whether or not they may make sense under the law and then I’ll address your comment.
daleyrocks (906622) — 12/29/2007 @ 9:47 pm† It isn’t UPS’ stupidity.
Yes, dual outcomes are possible, daleyrocks — that’s the point of this post and of my last comment too.
If a person receives a license to drive and they are deaf and as a result they don’t hear something, they are not at fault for not reacting to that which they couldn’t possibly have been aware. If they can hear and were aware of it (or took steps to cut off their sense in violation of the motor vehicle regulations) and did nothing, then they would be at fault.
This makes sense under the law. The problem you see is you’re caught up with it being a UPS driver. The deaf person is a UPS driver by government order and the dual outcomes are created by this order.
It’s as if the government ordered a small airplane to fly with a blind pilot. If the plane crashes, it’s the government’s fault, not the aircraft owner. If the pilot could see the runway, however, then it might well be the pilot and aircraft owner’s fault.
This is called government stupidity at work.†
Christoph (92b8f7) — 12/29/2007 @ 9:57 pmNo Christoph, I’m trying to stick to the hypo and not add twists or change the discussion. If I’m the estate of the dead woman, I don’t really give a shit if the driver was deaf or not if UPS is at fault. UPS has deep pockets and I smell a recovery. The fact that the driver was deaf may add sensationalism and argue for a higher settlement, but it should turn on the circumstances of the accident, which you keep ignoring. The deaf driver presumably held a valid CDL issued by his state to operate the vehicle he was driving. A hearing driver would as well. Presumably deaf people can be distracted as can hearing people. If both are involved in identical accidents, Christoph, why in your mind, does it make sense for the law to have different outcomes for the estates of the deceased depending on the hearing status of the driver?
daleyrocks (906622) — 12/29/2007 @ 10:36 pmI’ve explained this, daleyrocks. In Patterico’s hypo, the warning of the accident came in the form of sound. The driver can’t hear sound. The government ordered UPS to hire a driver who can’t hear. UPS is not responsible for an accident caused by obeying a government order. It does seem unfair from the deceased woman’s point of view, but that’s the point: It is unfair. The unfairness was created when the government ordered a person who can’t hear into a high-mileage driving job where hearing is a definite boon to safety (this being one of the major points behind senses and all).
So is it unfair? Yes. And it’s the government’s fault.
Consider this scenario. It’s absurd, but then so is the above one, the point Patterico is making.
You are a businessman and you need a bodyguard because of a threat to your life. A judge acting under the Americans with Disabilities Act forces the security company you contract with (Black Knight) to employ — in the position of in the field executive security for you, their only client — an an otherwise well qualified person whose arms were amputated. This is by government order; they have no choice in the matter.
A man attacks you running at you with a knife from 50′ away. Much like in Monty Python and the Holy Grail, your Black Knight security guard proves less than effective and is unable to use the pistol he is licensed to carry. You die.
Was the company negligent? It was not. It was following the law. Why did you die? As a result of the illogical orders of a callous and ridiculous government.
I realize somehow you’re not grasping this point, but I can’t really do much about it. It is unfair to you in the above example that you get a security guard without arms and someone else gets one with arms and lives. But it isn’t the fault of Black Knight.
Now, if Black Knight hired a man who could draw his gun, but refused to or was too drunk too, then you have a cause of action. But if he was unable to due to a judge’s order contrary to Black Knight’s wishes, it isn’t in the wrong.
You’re a victim of bad law, not a negligent nor malicious company.
Patterico’s hypothetical in no way, shape, or form referred to the deaf person being distracted. Here it is in its entirety:
YOU are the one changing the hypothetical. OBVIOUSLY, if your point is the deaf driver let themselves be distracted in some negligent way and this caused the accident, the driver and driver’s company are responsible and liable. But Patterico’s example, the one we’re all discussing, is simply one where the deaf driver through no fault of UPS’ (it wanting hearing drivers only, but being forced by a judge to hire deaf drivers) can’t hear the horn and screeching tires.
So quit saying this in such a way as to imply I am doing it:
… and actually address Patterico’s hypothetical without assuming the driver was distracted, something Patterico didn’t mention.
Christoph (92b8f7) — 12/29/2007 @ 10:56 pmI found the following on a site about deaf culture: “Many deaf drivers use special devices that let them know when fire or ambulance sirens are wailing or car horns are blaring. To enable drivers to distinguish between sounds, many of these devices can rate the type of sound and alert users on a multi-light panel. Some deaf drivers also use special panoramic mirrors so they can see more of what is around and behind their car.”
So, perhaps the deaf driver and UPS were not exercising the “reasonable care a deaf person in the circumstances would.”
Also, while in the U.S., there are few restrictions on the deaf obtaining a license to drive, not all countries permit deaf people to drive; according to statistics from the World Federation of the Deaf (WFD), at least 26 countries do not allow deaf citizens to hold a driver’s license.
JayHub (0a6237) — 12/29/2007 @ 10:59 pmAn employer is liable for the torts of an employee committed in the course of his employment. It’s called respondeat superior. It is absolute liability of a sort. That’s why it’s a good idea for businesses to be corporations or other limited liability entities.
However, there is no liability for the employer if there is no liability for the employee. If there is no duty for the employee to hear screeching tires or honking horns there is no fault on his part and there is no transferred fault to the employer.
nk (c87736) — 12/29/2007 @ 11:05 pmHow many of you have problems with deaf people getting drivers’ licenses (which they can) and making deliveries in their own trucks (which they can)?
Andrew J. Lazarus (df2cc8) — 12/29/2007 @ 11:15 pmThat’s pretty much what I figured, nk. Thanks for putting it so much more succinctly and better.
Christoph (92b8f7) — 12/29/2007 @ 11:20 pmHow many of you have problems with deaf people getting drivers’ licenses (which they can) and making deliveries in their own trucks (which they can)?
And what does this have to do with the hypo, Andrew?
Paul (d07d56) — 12/29/2007 @ 11:29 pmThis is one of the few times we agree, Andrew.
nk (c87736) — 12/29/2007 @ 11:29 pmI said it even more succintcly in my comment #4 Christoph. I’ll try again: There is no duty not to be deaf.
nk (c87736) — 12/29/2007 @ 11:35 pmHell, if we take this “liable because of a disability” doctrine to its logical extreme only twenty-five year old Olympics contenders will be allowed to drive.
nk (c87736) — 12/29/2007 @ 11:40 pmChristoph – I don’t think nk let you off the hook with his comment. Nice try changing the hypo again, bodyguards this time instead of kids with loud stereos.
For the purposes of other drivers on the roads, the deaf driver is the same as any other licensed driver. Are you too thick to grasp that point Christoph? If there is an accident and in the reconstruction of the accident scene it is determined that the driver of the truck is at fault, does it matter whether or not whether he was deaf? If so, why?
My contention is that the government requiring UPS to hire drivers with disabilities is a matter between those two parties. UPS may seek imdemnification from the government for the actions of such employees, but it will be a long time resolving that issue and I doubt it will be successful. In the meantime, hearing impaired drivers will be licensed and on the road, involved in accidents. Your argument is that people unlucky enough to be involved in accidents with them where the UPS driver is at fault are almost in the same situation they would be if they had gotten involved in an accident with an uninsured motorist. I say bullshit. I say the disability doesn’t matter.
daleyrocks (906622) — 12/29/2007 @ 11:42 pmOf course not. I’ve already said that as has nk. And I haven’t changed the hypo. I’ve directly answered it, and added other examples showing the same principles at work.
YOU are the one who has added to it. IF the driver is “at fault” — i.e., he’s breached some duty of care — then you’re right. Patterico’s hypo is the opposite. Why don’t you talk about it?
Christoph (92b8f7) — 12/29/2007 @ 11:46 pmChristoph – You are full of it tonight.
“Of course not. I’ve already said that as has nk. And I haven’t changed the hypo. I’ve directly answered it, and added other examples showing the same principles at work.”
This is exactly how you get dual outcomes depending on whether the driver has a disability. You somehow can’t seem to see this is a ridiculous legal outcome.
“YOU are the one who has added to it. IF the driver is “at fault” — i.e., he’s breached some duty of care — then you’re right.” – Christoph – How do you expect the plaintiffs to prevail in the lawsuit described in Patterico’s hypo except by showing fault of the driver? If you’ve got another theory I’d love to hear it.
My scenario is right on the hypo, you just refuse to see it because you took the wrong path from the start.
daleyrocks (906622) — 12/29/2007 @ 11:56 pmMy father had ankylosing spondylitis. His neck was totally fused. He could not turn his head either to the left or the right. A rear-end collission would have killed him. Yet he drove for fifteen years like this with extra mirrors and extra careful. He didn’t hurt anyone and he was not hurt. Disability is not per se negligence.
(He had a heart attack and the paramedics finished him off by breaking his neck when they tried to intubate him. No, we did not sue them. His disability was not their fault either.)
nk (c87736) — 12/29/2007 @ 11:58 pmAnother example: If a 6’4″ bodybuilder comes across you when you’ve been injured in a fall on a train track and a train is hurtling toward you about 30 seconds away and he doesn’t pull you out of the way of the train, he’s “at fault” for his negligence and, as New York says, “depraved indifference” and is criminally and civilly liable for your death.
If an 88-year old frail woman in a wheelchair is in the same situation and she’s physically unable to get you out of the way of the train, she is not at fault. This is analogous to not being able to hear a horn or screeching tires because it’s a physical impossibility.
daleyrocks, the problem you’re having is that you’re stuck on using the words, “at fault.” A deaf person isn’t at fault for being deaf.
You’re confusing fault with no-fault. There are four elements to a tort (i.e., “at fault):
The point nk made in comments #4 and #31 is relevant. Please read it.
Christoph (92b8f7) — 12/30/2007 @ 12:08 amI’m sorry, nk. I know that happened relatively recently and I’m sorry to hear about it.
Patterico (699c28) — 12/30/2007 @ 12:09 amA very mature attitude, nk #36. Once again, I am sorry for your loss. I’m also glad you loved him enough to be so affected by his passing. You must have had a good father.
Christoph (92b8f7) — 12/30/2007 @ 12:12 amThank you, Patterico.
But I seem to be having a bad blogging day, today. Besides my tiff with David and two disagreements with you, the dam spam filter ate my second serenade to DRJ.
nk (c87736) — 12/30/2007 @ 12:18 am
Christoph (92b8f7) — 12/30/2007 @ 12:18 amdaleyrocks, boiling it down: Having duly licensed the driver who disclosed his hearing disability to the licensing authority, no obligation can be placed on him to react to sound.
Christoph – I don’t think what I am saying contradicts nk. I don’t think you really understand what he is saying, but I could be wrong in both cases. In multiple car accidents with fatalities in my experience, there is usually an investigation. Some finding will come out of that investigation. It will often point fault one direction, share blame, or find otherwise. That is my reference to finding fault.
If the driver’s conduct on the road breached numbers 1,2 and 3 in your comment 37, it doesn’t matter if he was deaf or had perfect hearing if he was legally licensed to operate the vehicle for him to be liable. If he was not at fault, similarly, it should not matter if he was on the road with a hearing impairment if he was legally licensed to operate the vehicle. To me those principles are simple.
The other drivers on the road don’t have any privity to what happened between UPS and the government in terms of hiring decisions and have no need to be sucked into it.
daleyrocks (906622) — 12/30/2007 @ 12:28 amNo kidding!
Christoph (92b8f7) — 12/30/2007 @ 12:31 amChristoph,
Licensing is irrelevant. Honest. Trust me on this. The questions are, 1) what was his duty and 2) what did he do to breach it. The difference between “what did he do to breach it” and “how did he breach it” is also very important.
nk (c87736) — 12/30/2007 @ 12:33 amI say the disability doesn’t matter.
The disabillity matters in assessing fault. Since the deaf driver doesn’t have access to all the same cues that a nondeaf driver would, it’s unreasonable to expect them to behave as if they did. Of course, the hypo as laid out doesn’t actually say who was at fault in the crash. Being in a position to possibly avoid a crash doesn’t necessarily make you to blame for it.
Taltos (4dc0e8) — 12/30/2007 @ 12:35 amLicensing is relevant only in this sense. (I’m taking a step backwards earlier in time, nk.) The point being if a driver hid a hearing disability from the licensing authority, they could be liable for that. However, if a driver properly discloses their deafness to the government and the government says, “That’s fine,” and gives them a license, the driver isn’t responsible for not being able to hear.
In this case, you’re right; it isn’t important. I’m adding it for rhetorical emphasis, not because it’s a legal decision point.
Christoph (92b8f7) — 12/30/2007 @ 12:40 amWell said.
Christoph (92b8f7) — 12/30/2007 @ 12:42 amNo, Christoph,
Licensing is entirely irrelevant. In the United States and I believe in every common law country including Canada. Getting a license is fulfilling a duty owed to the state. Only to the state. Its possession does not fulfill the duty owed to your fellow citizens and its absence is not automatically a breach of any duty to your fellow citizens.
nk (c87736) — 12/30/2007 @ 12:49 amOkay, nk, I concede to your superior knowledge on this score. In the end though, the core issue is as you stated: Can a deaf person be held liable for not hearing? No — not if they’ve acted reasonably. Can a company — forced to hire a deaf person — be held liable because of something which happened because the deaf person (who was acting reasonably) couldn’t hear? I don’t see how.
Do you agree with that?
Christoph (92b8f7) — 12/30/2007 @ 12:52 amYes, I do. I thought I said that in the first place. I suppose I could have been more precise. Words and their placement are important.
nk (c87736) — 12/30/2007 @ 12:58 amLate to the game, but I still want to jump in.
Considering #1 in comment #37 and assuming it is correct – doesn’t the driver have a duty to compensate adequately for his hearing loss? I don’t think we need to expect him to “hear” the screeching/sirens/whatever, but we should expect that driver to have properly compensated for the inability to hear a safety device. That’s why smoke alarms in office buildings have flashing lights and an alarm frequency you can “feel” as well as hear.
It seems unfair and illegal under that ADA to hold a person’s disability against them in anyway – positive or negative. So, while I don’t expect a deaf person to actually hear a horn and the screeching tires, I do expect them to have compensated for thier hearing loss in a way that would allow them to react to audible cues.
Just like the old woman at the train tracks, I would expect her to at least make an attempt to help the person – not just sit idly by, whining about being in a wheelchair and unable to assist. Just like the armless security card should have been able to shoot the pistol with his toes or teeth or something.
I don’t think being disabled gets you off the hook. It seems that you have to act in the manner that a reasonable man of ordinary prudence would, not a reasonable deaf/wheelchair bound/armless man of ordinary prudence would. Adding those qualifiers in there is discriminatory.
But, I’m not a lawyer – though I am handicapped, so I feel a need to give the gimp point of view.
Chris Farley (6a96d1) — 12/30/2007 @ 4:16 amCF, would the driver have to compensate, or would UPS have to do it for him? When you’re talking about a private citizen acting in a personal capacity, your point holds. But in the employment realm it would be the employer that has to provide the compensating measures.
To a point. The armless security guard is a good example of an exception. How about a blind firefighter or a quad beat cop? The nature of the duty requires that the disability disqualify the disabled person.
Pablo (99243e) — 12/30/2007 @ 5:00 amThere are a lot of public policy decisions that result in individuals suffering some harm.
Consider this one: It’s been a while since I looked at the relevant studies, but IIRC if you have, even short term, neurological symptoms after a “whiplash” injury there’s around a 1 in 4 chance of long term sequelae that will need treatment off and on throughout your life and a small but real chance that things will get so bad you’ll need surgery.
Let’s say the other guy was at fault in the accident (and you’re not in a no fault state.) Does the other guy’s auto insurance pay these costs? No way. Even if you (or the other guy’s car insurance) spent a few thousand in acute care and rehab after the accident, that 1 in 4 statistic isn’t going to do much for you. Any sequelae, even expensive surgery, would be paid for by your medical insurance, folks.
As much as I loathe the health insurance industry, I don’t think it’s fair that they get stuck with paying for long-term sequelae of an accident where someone else was at fault.
The bottom line is we are shifting billions of dollars of costs that theoretically should be paid by a car insurance policy to our own health insurance policies. If we didn’t, car insurance would be prohibitively expensive. In order to keep car insurance affordable, we therefore have higher health insurance premiums than we would if risk and liability were more justly allocated.
Peter B (f906ca) — 12/30/2007 @ 7:59 amPablo,
If UPS was forced by the Gub’mint to hire the deaf driver said government should be on the hook for providing compensatory devices, not UPS. I realize that it doesn’t work that way in real life, but it should. Not too long ago we had a town hall in which a blind woman was arguing that she could do anything a sighted person could, and (infuriatingly) the majority seemed to be going along with it. I took exception, cementing my reputation as all-around prick, and asked “What color is this ball?” Folks with disabilities actually have disabilities, and to pretend otherwise is a disservice to all. Frankly, I’d like to put the driver on the hook for not realizing that he was unqualified for the position and gracefully getting a job within the company where he was not an immediate danger to himself and others. I’m 5’6″, but I’m not going to use government mandates to try to get into the NBA, even if they provide stilts.
nk, I’m really sorry to hear about your dad. That seems to be one of those situations where, despite best intentions and attempts, the world just sucks. Condolences.
Uncle Pinky (c3d832) — 12/30/2007 @ 8:35 amUPS applied the health and safety standards that drivers of larger trucks are forced to meet, to hold a valid commercial driver’s license and medical card. That means the judge tried to override the recommended safety standards set by legislation and regulation, solely because the driver of a vehicle of less than 10,000 lb isn’t required to hold a CDL. But I’m trying to imagine how the government would penalize a compeny which had greater safety standards than the minimum required.
One of the big issues concerning CDLs, back when they were mandated in the late 1980s, was that commercial drivers were on the road a lot more hours than a normal driver; a small van driver for UPS is still going to be on the road for the majority of his work day, rather than the hours people normally commute and the like.
Question: if UPS is required to not discriminate against drivers who are deaf, does that mean that:
1- UPS must maintain a fleet of not-CDL vehicles in case a deaf applicant wants to drive for UPS; and
2- Is the company on the hook to provide specialized safety equipment to make it easier for a deaf driver to operate said vehicle?
Why does this remind me of banks having to put braille key pad indicators on drive-up ATMs?
Dana (556f76) — 12/30/2007 @ 9:03 amnk – I disagree that licensing is irrelevant. Holding a valid license means the hearing impaired driver is qualified to operate a vehicle in the eyes of the state and owes the same duty of care to other motorists as non-hearing impaired drivers. Christoph’s standard, by saying the hearing impaired driver cannot be held accountable for his disability, implies he is being held to a lower standard or duty of care to other motorists than non-impaired drivers. That results in discrimination in favor of impaired drivers, an outcome I find difficult to believe is the intended consequence of the public policy.
daleyrocks (906622) — 12/30/2007 @ 10:14 amEver see a blind person in a taxicab?
If deaf people can’t handle a UPS truck safely, they probably shouldn’t be allowed to drive, period.
I can understand generic backlash against the ADA, but the examples so far don’t impress me.
Andrew J. Lazarus (df2cc8) — 12/30/2007 @ 10:29 amNK #36 & #40,
I’m sorry about your father and also that I missed it if you mentioned it before. Like your father, my mother had a disability for most of her life but it was still hard to accept when she died. I don’t think we are ever prepared, no matter the circumstances.
And thank you for La Paloma. I grew up with Spanish people from childhood and while I’m only average at speaking their language, I love their culture and music. La Paloma is and always has been my favorite song.
DRJ (09f144) — 12/30/2007 @ 10:55 amCF, at 51: the standard used would be the standard of behavior of a reasonable deaf person. You could argue that any reasonable deaf person would compensate adequately in some fashion, but you’d need some pretty strong evidence of custom in order to establish that (or a legal requirement which was violated which might be indicative of custom).
aphrael (a6b779) — 12/30/2007 @ 11:02 amThis is an excellent hypo. It’s almost the employment version of the eggshell plaintiff case, and that is still one of my favorite discussions from law school. Based in part on that, I suspect the law will resolve this by making UPS hire deaf drivers but it won’t protect UPS from liability if a deaf driver causes an accident because s/he couldn’t hear.
The good news is there probably won’t be a lot those cases. Most drivers are effectively deaf because of stereos, loud A/Cs, etc., and thus we rarely use audio cues when we drive.
DRJ (09f144) — 12/30/2007 @ 11:05 amI’m sorry, daleyrocks, but my understanding of the law is that licensing is neither a sufficient nor necessary element of the duty of care, and it is not only in driving but in all activities.
nk (c87736) — 12/30/2007 @ 11:10 amThank you, DRJ.
nk (c87736) — 12/30/2007 @ 11:12 amMost drivers are effectively deaf because of stereos, loud A/Cs, etc., and thus we rarely use audio cues when we drive.
I don’t know. I have prevented countless accidents by being alert and using my horn when necessary.
Patterico (699c28) — 12/30/2007 @ 11:24 amA frail wheelchair bound woman finding you passed out on train tracks with a train approaching has the same duty as a healthy young male bodybuilder to attempt to save your life if possible, but if she’s physically unable to whereas the buff dude is, we don’t hold her responsible and “at fault” for her physical incapacity.
The law cannot demand the impossible.
Likewise, the deaf driver has the same duty to drive carefully as a non-deaf driver does, but if the only warning of an impending avoidable accident is an audio cue the deaf driver can’t hear, the deaf driver hasn’t failed in his duty by not hearing it.
Can’t you understand it?
By the daleyrocks standard, the government mandates the deaf can hear.
Christoph (92b8f7) — 12/30/2007 @ 11:30 amI did so yesterday. I’d say being able to hear is a substantial boon to safety.
Christoph (92b8f7) — 12/30/2007 @ 11:31 amAs have I, but the law generally doesn’t require us to prevent accidents that are caused by someone else’s mistake. (The exception is the last clear chance doctrine, which even in my day was rarely used and as I recall only in contributory negligence states.) There’s a big difference between what the law requires and what the law encourages. We encourage driving safety but we only sanction drivers for driving errors or mistakes. It’s not a mistake to fail to hear something.
DRJ (09f144) — 12/30/2007 @ 11:41 amA deaf person can drive, but in CA I cannot wear a headset over, or earplugs in, both of my ears ears while driving.
Dubium (0a6237) — 12/30/2007 @ 11:49 amSorry, botched the formatting there.
Andrew J. Lazarus (df2cc8) — 12/30/2007 @ 12:03 pmnk – We’re not communicating.
“I’m sorry, daleyrocks, but my understanding of the law is that licensing is neither a sufficient nor necessary element of the duty of care, and it is not only in driving but in all activities.”
If the driver holds a license, they have a right to be on the road. Without a license, they have no right to drive. If they are operating the vehicle unsafely, e.g. without regard to the other vehicles on the road, they risk citation or revocation of driving priveleges. Simple.
daleyrocks (906622) — 12/30/2007 @ 12:05 pmChristoph – Read Chris Farley @51. He gets it. You keep flailing.
Your paragraph:
Likewise, the deaf driver has the same duty to drive carefully as a non-deaf driver does, but if the only warning of an impending avoidable accident is an audio cue the deaf driver can’t hear, the deaf driver hasn’t failed in his duty by not hearing it.
Can be massively simplified. End the first sentence after the word “does” and you’ve got it. Does the law care about all the possible excuses that can thrown in after that word to explain why an accident occurred when it boils down to a standard of care was not exercised by one driver. Your conclusion that someone is shit out of luck if they get into an accident caused by a deaf driver because the deaf driver could not hear horns or tire screeches is ludicrous relative to the same accident with a hearing driver. I’m willing to be proved wrong, but you aren’t persuasive.
daleyrocks (906622) — 12/30/2007 @ 12:24 pmdaleyrocks,
Fine. But the right to drive is an entirely different creature from the duty of care. I could have my license revoked permanently because while driving drunk I took out a whole marching band but if I still drove and somebody rear-ended me, 1) I would go back to prison, 2) I could sue the guy who rear-ended me for my injuries and the damage to my car and 3) he could not sue me for being in front of him in a car that I had no right to be driving.
It goes back to my comment about the duty owed to the state and the duty owed to our fellow citizens. In the common law, we have a separation between crimes and torts.
nk (c87736) — 12/30/2007 @ 12:25 pmnk – Understood. I don’t have a duty of care unless I exercise that right to drive.
daleyrocks (906622) — 12/30/2007 @ 12:29 pmYou always have a duty of care but the government’s permitting or forbidding for you to engage in an activity is an entirely separate matter. Just as “I have a driver’s license” is not a defense, “he does not have a driver’s license” is not a cause in a private, civil action.
nk (c87736) — 12/30/2007 @ 12:36 pmdaleyrocks, have you had a stroke?
“all the possible excuses”?
Being deaf? You equate deafness with an “excuse”?
Yes, daleyrocks, I gave exactly the right conclusion. A driver has an obligation to drive reasonably, but cannot do what they are physically unable to and are not to be faulted for their inability.
It’s the exact same principle as my person unconscious in front of an oncoming train example: If you lose your leg to an oncoming train because a frail woman couldn’t get you out of the way in time, you are shit out of luck in going to her for compensation. The fact that a strong person easily could have gotten you out of the way in time is irrelevant. The law treats the two situations differently because they are different.
Christoph (92b8f7) — 12/30/2007 @ 12:55 pmdaleyrocks, put another way… which you are also not going to understand:
In your world, people with disabilities would be punished twice. Once by having the unfortunate disability. Twice by being held legally responsible for not being able to do the same thing as a person without a disability could do.
The question at hand is are deaf people responsible for accidents caused by an inability to hear? How? Why? Explain.
Your standard truly would punish deaf people for being deaf. Deafness isn’t an “excuse”. You actually would hold people who can’t hear liable for consequences of not being able to hear.
In your illogical world, in some cases a hearing person would simply hear the horn and tires, avoid the accident, and would therefore have no culpability because nothing happened. In other cases, far fewer, they would have culpability because they didn’t react reasonably to audio warnings they heard. Therefore this person’s odds of being sued would be far less because they could avoid a higher percentage of accidents by responding to horns warning them of potential collisions.
A deaf person would not only be at higher risk of an accident because of his or her disability, but would also carry the unfair additional burden of being responsible for accidents resulting from their not hearing warning signs in the environment.
That’s absurd and morally wrong.
Christoph (92b8f7) — 12/30/2007 @ 1:08 pmNK, at 61: I believe that in California, it is presumed that someone who is (a) unlicensed and (b) performs tasks usually performed by a doctor has violated the duty of due care, and is civilly liable for negligence *as well* as being criminally liable for practicing medicine without a license.
aphrael (a6b779) — 12/30/2007 @ 1:42 pmI think that’s a good point, aphrael. Licensing is important insofar as a person who discloses a disability and is granted a license to drive can’t then be held responsible for an accident solely resulting from that disability. The law has already judged it reasonable that they should drive. It would take some further unreasonable action or neglect on their part for the person to be held liable.
However, if a person with that disability was not allowed to drive, but did anyway (or hid their disability from the licensing authority to fraudulently obtain a license), then the person is acting unreasonably by driving and are, hence, liable for any action caused by their driving with a disability.
Christoph (92b8f7) — 12/30/2007 @ 1:54 pmWell, yes. In terms of liability, that’s exactly what we’re talking about.
Pablo (99243e) — 12/30/2007 @ 2:36 pmPablo, daleyrocks doesn’t use the word excuse in that sense, a sense I agree with. He dismisses being deaf as a worthless excuse in the hypo, when obviously it is the crux of it.
Christoph (92b8f7) — 12/30/2007 @ 2:57 pmBTW Christoph, the security guard analogy doesn’t hold water. In CA, to be an armed security guard, you need a license from the state. Part of that licensing is to be able to demonstrate your ability with a handgun, on a range, under the observation of an individual licensed by the same agency as an instructor/trainer. If you can’t shoot a gun, they are not going to issue you a license.
Anybody want to take on whether or not this Judge could have/would have compelled a police department to hire this individual (all things being equal) as a Patrol Officer?
Haven’t we reached the “Law is an Ass” point with this decision?
Another Drew (8018ee) — 12/30/2007 @ 3:17 pmOf course it’s absurd, Another Drew, and I wasn’t limiting it to CA per se. Did you see anything in my hypo mentioning a jurisdiction? No, you did not. Does it talk about circumstances as they exist? No. It’s hypothetical.
The point is to illustrate absurdity by being absurd.
Christoph (92b8f7) — 12/30/2007 @ 4:00 pmaphrael #77,
I can see where somebody who impersonates a doctor or other health professional can be guilty of battery, civilly and criminally, regardless of whether he botched the procedure. If California has extended lack of license to be malpractice per se, it might be the beginning of a new trend. A lot of today’s tort law originated in California. Is it case law, BTW? I could not find it in the California licensing statutes.
nk (c87736) — 12/30/2007 @ 5:12 pmChristoph – You already arrived at my conclision. The problem is, you didn’t stop there.
From your 64:
Likewise, the deaf driver has the same duty to drive carefully as a non-deaf driver does.
If there is an accident, one driver may be found to have not been exercising enough care. You say we then have to look at why the driver may not have been exercising care because it is perhaps not fair to hold them to the same standards, contradicting your own logic. I say it doesn’t matter because there could be a variety of “excuses”, including hearing impairments, offered up for why the driver was unable to perform with an expected level of care. The government may be interested in the excuses with respect to continued driving priveleges, but the opposite side in an adversarial legal proceeding probably has little interest because the outcome, the accident, remains the same one way or another.
daleyrocks (906622) — 12/30/2007 @ 5:32 pmYou’re a moron, daleyrocks.
Christoph (92b8f7) — 12/30/2007 @ 6:05 pmThat’s a compliment coming from you Christoph.
Thanks
daleyrocks (906622) — 12/30/2007 @ 6:27 pmYou’re both silly to get angry over this.
nk (c87736) — 12/30/2007 @ 6:47 pmI’m not angry.
Christoph (92b8f7) — 12/30/2007 @ 6:49 pmYa know, this site is great and all, but just realized today I mostly come here just to count the number of posts in a thread before either blah, Christoph or David Ehrenstein becomes a total jerk to other poster(s). Happy New Year
FredHead (1ebbb1) — 12/30/2007 @ 7:09 pm