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Sunday, October 21, 2007

Your old junk could come back to haunt you

A good friend in the lawsuit business alerted us the other day to an important, recent decision of the Oregon Supreme Court that could reach down into the pockets of anyone in the state who has ever used Craigslist or a garage sale to unload used goods -- or anyone who's ever sold their home, for that matter. The case is Bailey v. Lewis Farm, Inc., and the full text of the court's opinion is here.

The facts of the case are pretty simple. May Trucking had a Paccar tractor-trailer that it drove about 500,000 miles over six years. Then it sold it to another party, who in turn sold it to Lewis Farms. About a year after May had gotten rid of the truck, the wheels came off on the highway due to an axle failure. They hit a car, which then crashed and burned, and the car's owner, Jerome Bailey, was badly hurt. Bailey sued Paccar, Lewis, and May. His allegations against May were that it had negligently failed to maintain the axle, and that that failure is what caused the awful accident.

May said it couldn't possible be liable to Bailey, because it sold the truck a year before the axle failure. Lewis was responsible for the safety of the vehicle it was operating, said May, and so May should be off the hook to Bailey. May moved to dismiss the case, arguing that even if it were negligent, it had no duty to Bailey, and that the harm Bailey suffered wasn't reasonably foreseeable when May owned the tractor-trailer.

No way, said the court. Just because Lewis had a duty to Bailey doesn't mean that May was relieved of its obligation to act reasonably in maintaining the truck. And of course the harm could be reasonably foreseeable -- if you let your truck run down without proper maintenance, it's no surprise if somebody gets hurt in an accident as a result.

And so back the case goes to Multnomah County Circuit Court, where May may very well have to pay up whatever damages Paccar and Lewis aren't covering -- at least if it's proven that May was negligent, and that its negligence caused the axle to fail. (Evidence on those points hasn't been presented yet.)

How far does the rule of this case go? Would it cover tools that you unloaded at a garage sale last year? How about the house you sold last year, or five years ago? Surely, it would cover that used car you got rid of, although the court hinted that maybe you'd be off the hook if the dangerous condition was obvious when you sold it, or if you traded the car in at a dealership.

What can you do to protect yourself? I doubt that your insurance covers it -- at least auto policies end when the vehicle is sold, and I'd be surprised if a standard homeowners policy wouldn't work the same way. There's no way to get a release in advance from everyone who might be hurt by breakdowns of your former stuff while it's in the hands of future owners whom you don't even know.

I suppose you could try to make the person who buys your junk sign a contract that says from here on out, they'll pay for any harm that's caused by problems with the stuff, even if it's due to crummy maintenance by you. Those ought to be some interesting negotiations. Particularly at the garage sale. And that contract's only as good as the future credit of the person you're dealing with. Heck, in a lot of cases you probably wouldn't even take their check.

Comments (68)

You know this litigation could have been avoided, if the buyer had used his American Express Card, Buyer Protection Plan!
You know its the card of choice for yard sales and mass transit.

Thanks for pointing out this blindingly obvious example of a very disturbing trend in law and society.

The purpose of the law is to provide for the common defense of our individual liberties.

This purpose has been turned on its head in the service of legalizing plunder.

The legal community has allowed the law to become a fought-over brand, whose marketers exploit their position to continually, forcibly create artificial demand for kick-backing rent-seekers. The industry deserves a big RICO lawsuit brought by the People.

No wonder folks have such a belly-scraping, low regard for lawmakers and lawyers.

This purpose has been turned on its head in the service of legalizing plunder.

Bastiat was dead serious when he gave us his timeless rant, but yet, where can we turn to for humor in the face of ominous developments such as this one ?

Whatever happened to everyday common sense, responsibility for one's own behavior, and the very idea of mere truth needing no laws to support it in our ever-multiplying codex of corruption ?

This is gross. To sell a used vehicle cheap, because it has been used - and giving someone the right to buy it cheap and fix it - is an American right.

It makes one want to move from Oregon and go to Texas or Idaho, where there isn't this ridiculous 9th circuit court of appeals (maybe not Idaho) and this ridiculous state Supreme Court.

The only thing that gives me hope... is that when the US supreme court said that government can take a person's land for use by a private party, Oregon put into the constitution the statement - NO YOU CAN'T!

It's conceivable (if unlikely) that we might want to make private, non-commercial sellers liable for the condition of used goods. Were that done through legislation, it would be prospective and publicized, giving people the opportunity to adjust their conduct (and their insurance cover) to accommodate the change. That is the problem with judicial discoveries like this -- people are ambushed. I'm all for highway safety, but if the government is to be involved in it, it should take the form of periodic safety inspections for trucks, rather than a judge reaching unexpectedly into someone's pocket. As for Cabbie's lament for the loss of responsibility for one's own behavior, I can't quite see how that concept applies to being hit by a broken, out-of-control truck.

Why aren't those who actually INSPECTED the car, and allowed it on the road being sued?

I'm assuming that the vehicle had a current registration and inspection sticker, no?!

I can't quite see how that concept applies to being hit by a broken, out-of-control truck

You purchase a potentially dangerous piece of industrial machinery secondhand, like an automobile or firearm, and the responsibility for it's inspection before purchase, maintenance, storage, and use falls squarely upon your head, period, not the manufacturer or previous owner.

Clearly we need a government distribution agency to handle all buying and selling of,,,,,,, well,, everything. A department of maintenance too.
In fact in the model of OLCC it can be a money maker, taking a little off the top for public services.
i can imageine quite a few family wage jobs at these agencies too.
All for the collective!

If it is a known latent defect not disclosed by the seller, liability should attach based on a duty to disclose known latent defects. Otherwise, the legislature should exempt private sellers of used vehicles from the reach of this decision. C'mon just do it. Moot this overreaching decision by the Supremes.

Am I missing something? This just seems like common sense. If you don't properly maintain something dangerous that you own, and that dangerous thing harms someone, you should be responsible if your failure to maintain it caused the harm, right?

Whoever owns the dangerous thing when harm is caused is just kind of coincidental. Why does selling the thing before it hurts someone excuse you from taking care of it while you owned it?

Any car owner can avoid this problem by taking proper steps to maintain their car. That is a good thing that the law (and the market) should encourage, which is what this decision does.

sounds if Luke is a dimmo and wishes cradle to grave protection.
What are these supremo's smoking? "As is" has been the norm in private sales, other than disclosure mandated by law. Is there no more responsibility from the buyer to inspect before purchasing?

Hey Luke, let's take this one step further. Suppose your 35 year old deadbeat child deliberately injures someone and can't pay the damages. Well, it must be your fault as a parent that this miscreant was unleased upon society. So, YOU should be liable for any damages the child causes. It makes perfect sense to me based upon your reasoning. After all, we want to encourage parents to raise responsible kids.

What would we do if we didn't have the legal profession to enlighten us? I may just nominate the Oregon Supreme Court for the Nobel Peace Prize.

This case reminds of another I was involved with a few years back.

A guy with a Ford Explorer SUV wanted to save a few bucks on some tires so he made an offer on a set of four used tires stacked up in the parking lot of a gas station in Beaverton.

The gas station owner took the tires off an old van that someone abandoned on his lot. His station did not sell any other tires, new or used; it was a one-time type of transaction to help cover his expenses in disposing of the abandoned van.

Anyway, one of the tires turned out to be a Firestone that had been recalled in the millions a couple years earlier.

So on a trip out to the Columbia Gorge, the bad tire shredded and the SUV rolled and killed the guy's wife and badly injured him.

He sued the owner of the gas station arguing it was negligent to sell the recalled Firestone tire.

Unfortunately, I don't know the rest of the story because I didn't stick around that job long enough to see the outcome of the case. But if the case was lost, it seems this new decision would open up grounds for appeal.

he should have used a carfax report :)

Whenever I bought/sold a car in California, they had a release of liability form that was signed to protect the seller from any liability between the time the buyer took possession of the vehicle and whenever the got around to registering it in their name. That would imply that liability transfered with the registration. I'm surprised it doesn't work like that in other states.

I would never let someone take possession of a vehicle I've owned without a release of liability form.


Curiously the litigants didn't choose to include the manufacturer of the Trailer. The fact is they knew they were using inferior steel when making said axle, and because of cost chose to cast that part rather than forge it. It's the builder that it to blame as they didn't account for this happening to their product in the first place.

How about the mining company that decided to sell it the steel company that sold it to the axle builer who sold it to the trailer "assembler".

Jeez where does this stop?

You purchase a potentially dangerous piece of industrial machinery secondhand, like an automobile or firearm, and the responsibility for it's inspection before purchase, maintenance, storage, and use falls squarely upon your head

I didn't see anything in this case letting the current owner off the hook. It's more like the court gave the injured party a few additional people to sue.

Curiously the litigants didn't choose to include the manufacturer of the Trailer.

They did sue Paccar. That part of the case had already been "resolved," which I take to mean settled.

Silence Dogood said: "The purpose of the law is to provide for the common defense of our individual liberties."

Sorry, but you're wrong about that. the PURPOSE of the law is to maintain the status quo in society; to stop the poor from taking that which is owned by the rich either by stealth or by force. If what you suggest were even remoptely true, how would you then explain the existence of laws in places where there are little or no individual liberties?

The original owner did not perform the required maintenance in order to prevent the failure and did not disclose to the buyer that the maintenance was not performed.

The buyer did not inspect the truck or follow the prescribed maintenance plan.

Good job for the courts.

Two something for nothing slackers took it in the backside for endangering everyone they came in contact with.


Oh, this is coming after Fazzolari. I'm a second-year law student, and we had to write a Motion for Summary Judgment brief in a made-up case based on Oregon law last year for our legal research and writing class. The instructor told us to ignore Fazzolari because it was, in her words, too inconsistent with the rest of the freaking country. It stretches the limits of foreseeability for another's negligence to ridiculous proportions.

If the Oregon Supreme Court based this decision on the result in Fazzolari, no wonder it came out this way.

That is why I include the Term "As Is" on the Bill of Sale on Any Used Item I Sell.......Simple.

I saw nothing in the statements above that said May Trucking was negligent in its maintenance although that might have been in the full text. If May had the correct maintenance performed then they should NOT be liable at all. If they kept lousy maintenance records that is their (May's) problem and if they did not have proper maintenance performed then they are liable. This is a case however of someone trying to pay medical bills, expenses and recoup something for pain and suffering. May Trucking should NOT be held liable if they had normal maintenance performed and they should not be held liable if they informed the buyers of needed maintenance.


The difference between the scenario you propose and the one in the lawsuit is the question that Jack put in the post: What can you do to protect yourself?

If you imposed liability on parents for the acts of their adult children, there would be effectively nothing a parent could do to protect themselves (aside from just buying insurance), since there are just too many variables in parenting and the causative link is too tenuous and theoretical. You could never insulate yourself from liability, no matter what you did, because parenting is inherently personal (within limits) and there are lots of ways you can do it reasonably.

On the other hand, in the case of the car, you protect yourself from liability by doing what any reasonable person would do and what a responsible person in society should do - properly maintaining your car. In fact, all cars come with clear instructions that, if you follow them, you should have no liability issues.

In most states, selling a vehicle requires a bill of sale. These "bill of sale" documents nearly always have a stipulation that says the buyer is purchasing the vehicle "AS IS." No warranty is granted.

If the seller sold the vehicle without this clause, then that was their mistake. If they did have that clause, then they needed a better lawyer.

"As is" probably isn't going to help you when you're being sued by someone who's been hurt by the vehicle. It likely protects you only against claims by the buyer and any subsequent buyers.

I'm just wondering what kind of fool would buy a car / truck with 500,000 miles on it. It's bound to fall apart!

I haven't done my scheduled 100k axle xray! I better not sell my car. Come to think of it, I haven't had any of my bolts checked either, or every cable. And I bet no one else has either. Damn, good thin no one sells used cars.

This is stupid, and I can't imagine how the court came to this decision. Perhaps there was some clear evidence of neglect and failure to disclose, but I'm to lazy and lawyers write those things just to be hard to read, so screw it.

Damn activist judges! Right? Is that the correct right wing pejorative? Someone help me, I'm new to the whole pseudo-victim act.

This is "Progressive" thinking ats it best. No one should be surprised that this has happened especially being initiated by a judge from Oregon. After all, Oregonians are just wet Californians.

The safe approach is to throw everything out. Why reuse and become a defendant?

This is based on another ruling. In it, a auto parts store sold the wrong part to a mechanic, that proceeded to install it in a vehicle whose owner then had the brakes fail. It was ruled that the auto parts store was negligent in providing the wrong part. This set a legal precedent in Oregon.

The ruling here is based on that - and is not final - only allowing it to go back to trial and not be dismissed. The Supreme Court was not ruling on whether the facts were true - only that if the facts are true then it was worthy of being tried in court and not dismissed.

The standard applied to a truck that hauls freight on the highway is different than that applied to a passenger vehicle per federal law regarding the matter and addressed in the ruling.

So lets say I own a corporation that has a fleet of trucks. And instead of properly maintaining those trucks, I decide to save a few pennies and drive them for 250,000 miles. Then I set up another corporation, that doesn't have that many assets, and sell the trucks to that corporation and then that corporation operates the trucks for another 250,000 miles and then sells them to another company that doesn't know they have not been maintained. Then something goes wrong. Who is at fault here? I would say the second company if the wreck occurred under 25,000 miles or under 100,000 miles according to the required maintenance regime. If it is a part that is completely inspected and replaced at 100,000 miles - and the truck is driven more than that - then the third company is responsible.

Do you really want say 5000 used big rig trucks driving down the road that have not been properly maintained so some corporation can save a little money? Or so that some individual can claim they do not have responsibility for their actions and get out of paying for their negligence?

Now on the other hand - given the repair schedule of 25,000 and 100,000 miles - shouldn't the purchaser have been liable fairly quickly (perhaps less than a year) based on the mileage put on the vehicle since the purchase from the previous owner and taking in account what that maintenance requires? That's what the trial court has to decide.

This doesn't apply to cars because they are not required to be maintained under the same rules as a motor carrier. That is part of the distinction here - a Ford F-150 does not fall under the same criteria for maintenance and liability that a big rig truck does (a Kenworth for instance). Different licensing too - you have to have a CDL to drive the Kenworth - just a driver's license to drive the Ford F-150. It’s comparing apples to oranges. I’m certainly not gong to lose any sleep today if I sell my used car to someone based on this very narrow ruling in the state of Oregon.

This is BS! When was the last time any of us ever inspected an axle on our personal truck or car over the years we've owned one before we sold it besides having the differential oil changed? Reminds me of the meat slicer story in a Readers Digest article...a meat slicer used in WWII was sold after its many years of use in military service to a private company, who in turned sold it after many years of use. It was sold many times over the years to various restaurants. Finally, someone cut them self using this slicer, that had no guard since it was a used WWII slicer sold many times over...remember? Well, this person sued the manufacturer of the slicer...and WON! What BS!!! How many years must a company protect itself from such frivolous suits? Problem is, it's not the lawyers (they're just part of the problem), it's the idiot members of the jury who don't have the common sense to say enough is enough and say NO!

Oops...should have read a little further. Thought this was about a personal pick-up truck (saw the pic), not a semi-truck used in a fleet with a maintenance log. My bad!

i would simply tell the court. that even if the client does win they will never see a dime from me on these ridiculous allegations. i would even go as far as filing bankruptcy against the judgement just to prove a point

I didnt read all of the comments and I have no knowledge of Oregon Law, but, depending on why kind of liability Oregon adheres to, this ruling may mean little to nothing at all. In some states, just because you are liable, it doesn't mean you have to pay. the court may have simply ruled that it is possible for the former owners to be liable, which is not crazy at all. In this case it sounds like the previous owners are at best 1% liable, if they are found liable at all. I would guess that any lawyer worth a darn would be able to put forth an argument that the last owner was the most responsible for the accident. Dont fret folks, all is well and the law is not completely insane.

replace "liable" with "negligent" and my last post makes a lot more sense.

I disagree. The manufacturer isn't going to be liable in a case like this. The only other person the crash victim can sue besides the seller (May) is the party who was driving the truck when it fell apart (Lewis). If Lewis has no money and no insurance, May is going to pay.

Think about how much May's already spent on lawyer bills, even if it eventually wins -- and the court action isn't over. Now put yourself in May's position, and your car insurance company won't lift a finger to help you. Better junk that beater.

I thought "buyer beware" covered this sort of thing. He should've had it checked out by a mechanic before he bought it.

On second thought, nothing covers it. In states without mandatory safety and maintenance checks you're under no legal obligation to keep your car in any sort of shape other than smog controls. It's the government's fault. That's your winning legal argument right there. 300 bucks please.

I not very familiar with the commercial trucking world...but I am intimately familiar with the aircraft world.

It would seem to me that commercial trucks are *required* to have periodic inspections by qualified maintenance personnel.

These inspectors would determine and record the roadworthiness of the vehicle so that the current owner can decide to:

1) use the roadworthy vehicle.
2) repair the vehicle to roadworthy condition
3) Sell or scrap the vehicle whose records would follow it.

In any condition, the current owner is ultimately responsible for the roadworthiness of the vehicle.(PERIOD!)

this is how it mostly works in the aviation world...

Otherwise the case of who bears intermediate responsibility for allowing the vehicle to ultimately fail would branch out almost to infinity.

For example, should the state trooper who inspected the vehicle during an interstate stop hold some responsibility for not fully determining the entire line of ownership and examining the entire vehicular inspection records to determine the vehicle was past due for maintenance?

Maybe that troopers supervisor should bear some responsibility for not properly training the trooper?

Or the Coffee shop for inadvertently putting de-caf in the troopers cup so he was not as alert as he should have been?

No...bad ruling...bad bad ruling.

This is really stupid thinking. Mechanical failures happen. In reality, no maintenance schedule, no matter how carefully followed, would prevent an AXLE FAILURE. Machines break down. This is reality. If you buy a used machine, you understand that it is used. What this really is a case of, is the original owners failed to include a clause in the selling contract specifying that they weren't liable; and because they failed to explicitly state "not mine, bye bye" this guy gets to sue them. There IS NO LEGITIMATE REASON FOR THEM TO BE INCLUDED IN THE LAWSUIT.

If I own a car, and sell it to you used, and some time later - A YEAR later, for example - some part fails, and bad things happen, this doesn't mean a thing about the care and maintenance I gave the car. It does mean something broke down. An axle failure is NOT an ordinary, clearly preventable mishap; it is a highly unusual, "act of God" type mishap.

Any claim that responsibility adheres to May for this freak incident misses the salient points:

Bailey wants more money, so he needs more people to sue;

May sold the truck to another company, who had it for AN ENTIRE YEAR before the incident;

The buying company failed to inspect the vehicle before, during, or after the purchase.

Honestly, even if they HAD inspected it, the likelihood that they would have spotted imminent axle failure seems fairly remote; it happens so rarely that it's not on the checklist for most safety inspections.

What's really going on here is that the Supremos are giving this guy Bailey a license to sue anyone remotely connected with this, for no GOOD reason at all. Liability cannot reside with someone who is not the owner of the vehicle, unless you want a chain of never-ending lawsuits alleging responsibility for utterly ridiculous things.

Suing a sneaker company, for example, after you slip on ice and fall in front of a public building, as well as the city / county / state in which you fell; because they should surely have foreseen you would be dumb enough to wear sneakers on ice in the first place, and thus designed their sneaker soles to be slip-resistant.

Of course, if they DID, and you managed to fall anyway, you could then sue them for false representation - of course the fact that you fell proves that their shoes AREN'T slip-resistant - and thus you can get them coming and going, can't you?

ESPECIALLY if they put a warning not to walk on ice on the box; because then you can claim that it wasn't printed in large enough type, and this proves their negligence.

It's even WORSE if the warning says something like "care should be taken on any slippery surface," instead of spelling out every slippery surface known to man, because THEY DIDN'T TELL YOU ICE IS SLIPPERY, so they were negligent.

Plus, if you got mud on your clothes, you can get them for all of the above plus reckless disdain for your appearance - obviously racist, so long as you're not white, in which case it sucks to be you - but at minimum an egregious insult to a paying customer for which they ought to have to not only pay, but publicly apologize as well.

All because you didn't have the sense to wear proper footwear in winter, or stay off the slippery ice.

I'm sorry the guy got hurt; that sucks. But blaming the previous owners of a used vehicle for an outlandishly unusual accident - a year after they sold it - is the height of silliness.

How do you maintain an axle? what are inspections for???

People who do not understand the law should not blog about it.

First, lawyers cannot bring cases without people willing to sue. so dont blame the lawyer. Second, if you were the Plaintiff and the law allowed you to recover large sum of money from multiple people, would you turn it down?

Third, you shoudl have linked to the Supreme Court opinion so that your readers could read the Supreme Court’s reasoning and decide for themselves.

Under another reading of the case, someone cannot sell a product they know to be defective and which can cause harm and be free from liability. In other words you cannot sell a car that you failed to maintain and be free from liability if it harms someone.
You are right, have the buyer sign an indemnification and release the seller from all liability.

This is total BS. What we need is a loser pays system and you wouldn't get these lawsuits that have no merit.

Third, you shoudl have linked to the Supreme Court opinion so that your readers could read the Supreme Court’s reasoning and decide for themselves.

I did. "... and the full text of the court's opinion is here." If you can't see that, I can't help you.

People who do not understand the law should not blog about it.

People who can't refrain from making comments like that are not welcome here.

You are right, have the buyer sign an indemnification and release the seller from all liability.

A release wouldn't help against a claimant like Bailey. An indemnification would, but only if the buyer had reachable assets.

This reminds me... I need to get my oil changed

How do you maintain an axle?

Read the opinion:

Once during the time that defendant owned the tractor-trailer, on August 8, 1997, "maintenance work was performed on the rear axle shaft and the drive axle on the Kenworth truck, involving one or more spindle nuts." Otherwise, "[defendant] failed to perform any of the [manufacturer's] recommended services [on the axles] during more than 500,000 miles of use." Specifically, defendant failed to clean and repack the bearings every 25,000 miles and also failed, every 100,000 miles, to disassemble, clean, inspect, and refill or repack the bearings with clean lubricant, readjust the bearing play, and torque the rear axle flange nuts.

I remember the Flange Nuts. I saw them open one time for Grand Funk Railroad.

If PAST owners are liable, Shouldn't the current owner be liable as well, and shouldn't he have to sue himself first before suing other parties?

a semi tractor trailor can easley do 2 or 3 million miles or more in its life. an axel is not something a driver would see to report but the state safty inspectors should os picked on it. maintance is mostly changing oil and greasing bearings, and if it wasen't loose at the previouse maintence check the mechenck couldn'n have seen it. the orignal owener absoluty should be held lible. people should quit looking for a free ride. lawers mostly. dave

For the non-lawyers out there ... take a look at the concurring opinion - this case doesn't mean what most of you think.

" at this stage in the case, the answer to the question whether defendant's conduct may have unreasonably created a foreseeable risk of harm to plaintiff can be based only on the allegations in the complaint. Those allegations include that defendant negligently failed to perform recommended axle maintenance and to maintain a truck that was safe to operate; that defendant sold the truck to a third party; and that the subsequent failure of the truck's axle was a substantial cause of plaintiff's injury. As the majority opinion carefully points out, accepting those allegations as true, it is difficult to escape the conclusion that defendant's conduct "unreasonably created a foreseeable risk of harm" to plaintiff.

By limiting its defense (at this point) to asserting that the allegations in the complaint fail to state a claim for relief, defendant has staked its position on a single defense: that its sale of the truck to a third party more than a year before plaintiff was injured necessarily bars plaintiff from bringing this action. The majority correctly rejects that argument."

"If PAST owners are liable, Shouldn't the current owner be liable as well, and shouldn't he have to sue himself first before suing other parties?"

The current owner's claim is subject to comparative negligence. If current owner is determined to be 50% negligent or more then the result is a defense verdict. zippo, nada,nil - not even medical expenses, etc.

It's gotten to be not only a sad state of affairs but a rather dangerous trend when the lawyers and judges can twist the Word of the Law far beyond its' original meaning and common sense.

The term 'buyer beware' is used quite frequently as a defense by sellers in court and is an accepted fact. You buy an item 'as is' if there is no written guarantee, which means you assume all of the responsibilities for the condition of the thing.

Somewhere back in the late 70s or early 80s, suing the pants off anyone for anything started showing up and became a massive and expensive trend that affects everyone no matter what you do. A classic example is the woman who sued McDonalds over her spilling a hot cup of coffee in her lap and winning a huge judgment. Now, warning labels are put on some cups of coffee because, apparently, steam is not enough of an indication that the contents are hot.

Another lawsuit in England forced toothpick makers to include instructions for their use on their packets.

Ridiculous lawsuits such as this are why you get to pay a tremendous amount more for the goods you buy. Businesses, heavily sued, pass the cost onto you. The majority of your physicians have been sued, and the cost gets put on your bill plus many stopped allowing patients to pay on time. Every hospital in the US has been sued.

Not satisfied there, the providers of medical supplies and equipment have been sued along with the makers, meaning that you get to pay a lot more for their goods. Pharmaceutical companies are forever in court over lawsuits, the expense of which helps make that $0.25 pill you need go up to $8.00 each.

Your own communities have probably canceled many projects which you would have enjoyed because of the potential for liability suits.

I can't understand, in this case, how the judge decided that any responsibility should fall on the previous owner of the truck. Especially since, at this time, there is no proof that he was negligent in maintaining the axles.

The letter of the law was to be based on common sense, not fiction, but current lawyers have managed to twist it around so much that the innocent can become the guilty.

I think if you read all the court documents you would see they original owners, and the most recent seller all failed to do the required inspections by Law, and the failure of those parties to comply with the inspections "significantly" contributed to the axles failure. anything that spins, houses bearings or supports something of the weight of a tractor trailer would HAVE to be inspected & maintained properly. The original company failed to due the inspections for whatever reason, save money? this is a commercial vehichle operated supposedly under the law which REQUIRES these vehicle to be maintained by manufacturer specifications in order to PREVENT catastophic failures that could so easily harm other people operating on the road. It would be common sense to assume that IF an AXLE on a tractor trailer were to fail, and given the amount of cars/trucks on highways or roads that the failure of the axle, and its ability to keep the WHEELS attached to the vehicle would cause serious harm to anyone near it. the probablity of NO harm or danger stemming from an axle faiure has got to be off the charts. It probably would make alot more sense if you were the one who was taken out by a tractor trailer tire& Wheel(as what happend to bailey) only to find out after the fact that NONE of the owners had COMPLIED with REQUIRED maintenance inspection on the axle. these maintenance inspections are NOT RECCOMENDED, they are required by Law to be complied with for commercial vehicles, which this vehicle was.

As a previous blogger stated. read the court documents and get the facts before you post an opinion.

As a lifetime Portland resident, I'm consistently baffled by the socialist tack on legal issues. This is totally absurd. What happened to buyer-beware? I want a retroactive rebate on every POS used car I've ever owned!!

People need to read the case before jumping on the "socialist" bandwagon.

First, the Supreme Court did not rule that the plaintiff should win; rather, the trial court should not have dismissed the case in favor of the defendant, and should have sent the case to the jury to decide whether or not the failure to maintain the axle is actionable. The legal ruling by the Supreme Court, simply stated, is: the mere fact you sold a good does not insulate you from damages to third persons due to your negligence.

Second, the legal concept above have been around since 1965. The Supreme Court relied upon Hills v. McGillvrey, 240 Or 476, 402 P2d 722 (1965) in reaching their decision.

Caveat emptor.

OK, let me AX a question....should Oregon start forcing previous owners of my car to pay my auto insurance premium? And her's another question I'd like to much liability do those previous owners have if I wreck my car in an accident? 10%, 20%..50%? Man, this is great--insurance rates will go down. What a gloriously, farking day!!

Hasn't the plaintiff already agreed to cap the measure of damages against anyone by way of their settlement with one of the joint and severally liable defendants?

The owner at the time, in order to maintain a claim for indemnification AGAINST THE SELLER or prior owner, must be on the hook to pay some amount of damages.

We don't want an inconsistent assessment of damages do we?

As proof pretend that there is no settlement then remix with the singular issue being a fight solely among joint and several tortfeasors.

As to the foreseeability issue a bouncing tire could be viewed as coming from the back of a rig driven by John Doe or a frozen turkey dropped from an overpass. Who here would like to effectively restore the last clear chance doctrine by way of senseless dicta about foreseeability?

It seems to me that the plaintiff made a huge blunder by way of settling with one for anything less than what they hoped to obtain from any joint tortfeasor. It would only be equitable for May to sue the fellow tortfeasor to obtain the benefit of the settlement they obtained from the plaintiff.

Straightening out the party alignment problem to substitute the truck-owner at the time as the litigant against May, for indemnification, would make the case much more clean and make it much less nausiatingly painful to read page after page of wholly unnecessary dicta. (Nevertheless May should suffer the consequences of their own tactical blunder of not raising such an argument in a timely manner.)

If the truck-owner is known and seems competent to contract for a settlement with the plaintiff then the qualifier that they are a John Doe or insolvent or a dissolved entity would not even need to be addressed.

If a punk drops a turkey off a bridge into the windshield of a car could they claim as an excuse that they were an idiot, even if they offer it up as proof for a defense to liability? An insanity defense might still be available, but only to himself/herself and in the criminal context.

I noticed on your blog page an ad that says you support John Edwards for President. Are you aware that John Edwards is part of the problem, not the solution? I will explain what I mean.

A number of years ago when John Edwards was an ambulance chasing attorney in North Carolina, Edwards sued the manufacturer of a Flu vaccine because his client had gotten a Flu shot and after getting the Flu shot still got the Flu. Edwards was able to turn it into a class action lawsuit and won millions of dollars, of which he got 33% of. Is it any wonder why the majority of the companies that now produce Flu vaccines are now based out side of the United States?

I realize that my posting might be slightly off topic, but it all comes down to our society wanting to sue, sue, sue. The court systems are now used as a form of playing the lottery. Just trying to get rich quick. At the cost of the entire country having to pay for all of the frivolous law suits.

Joe, how about we set a cap on the measure of damages in all suits. Inclusive of artificial entities, against one another or between any real citizen and an artificial entity; contract and tort alike? I am not prepared to assign a higher value to the life of a corporation than I am a person. Are you? The court system (or government itself) does not exist to amplify disparity of bargaining power, but to offer one last best hope for a remedy for the individual that is not otherwise obtainable in a wild wild world of anarchy.

I have been in the trucking business for over 35 years, and know every commercial rig on the road is required to have a minimum of $1,000,000 liability insurance. Sounds to me like the plantiff is attempting to get his $1,000,000 from several different sources. As for proper maintenance on either a trailer or rear axle of a tractor, most bearings run in oil, and today, most do not have to be disturbed to replace brakes. Many run close to a million miles prior to the seal starting to leak, and until it does, no service is required. Much todo about nothing, except some fee seeking attorney.

As a truck driver, There are very specific signs of an "axle failure". The first thing is the hub is full of oil, as the bearings fail the inner seal will begin to leak.allowing the oil to leak out over the wheels. There is no way the driver would not have either seen or smell this as he was doing his required inspections during his trip. There would also be considerable smoke from the axle long before the wheels ever came off. This whole thing really falls onto the driver's shoulders.

Hasn't the plaintiff already agreed to cap the measure of damages against anyone by way of their settlement with one of the joint and severally liable defendants?

We don't know for sure from the court opinion that he settled. We're told only that the claims against Paccar and Lewis have been "resolved."

This is quite outrageous. More than that, it's yet another shameful disgrace of our judicial system. Unless the seller told the buyer that it was a new, working vehicle with no deterioration or flaws, then let the buyer beware. Get third party information before you throw your money at anything in life. Anything at all.


Can't see the forest for the trees huh?

May operated the truck safely for 500,000 mile. The fact that for, whatever reason, there is no record of them doing the maintenance (too cheap, didn't have time/money or just did not keep the records) is meaningless. Even if they admit that they did not do it, that does not change the fact that the vehicle worked in their possession. They sold it. The buyer failed to do a thorough check on the vehicle. Perhaps just do certain things to the truck to bring it "up" to safety. After all they could have simply done the 100,000 mile service to get the most out of their investment.
This is just a lawyer's bait and switch.

BTW, what part exactly broke/failed for the tire to fall off? Was it the axle itself? The bearings? Bolts/studs? That would be helpful in determining if the service would have helped.

Jack, you must be a hell of a father because you've got patience bro! You make a good point here. This is a big case. I wish I could hold liable the parents of some of the flange nuts posting on this topic.

Man, I've blown $100k on my law school education, but it was worth it just to understand how the law and legal profession is misunderstood by most people. And then these same people have the strongest opinions. Go put on your "Best of Lars Larson, Rush, O'Reiley, and Hannity" tapes rubes.

Huck, your point is?

I will again try to isolate out the settlement/resolved/whatever-secret-agreement that moots the need for judicial resolution between the plaintiff and the owner-at-the-time of the flying tire . . . the tire that speaks for itself relative to any party who has had no contractual relationship/interest in the truck.

I could offer the supposition that the owner/buyer is driving on a road that is on the side of a big hill and the tire falls off and he tumbles down the hill to his demise. Would his estate have a claim under tort law rather than contract law?

Help me discern the rule of the case! For example:

I drive an auction car; once part of a government fleet. Suppose the front wheel falls off while I am driving and I am injured. That is, it is not a third party that is injured (again to isolate out financial responsibility impositions etc.).

Can I as a buyer/driver/injured-party assert a tort action on my "as is" auction purchase against the government and then go on a discovery frenzy for maintenance records . . . where I can be sure, while shooting from the hip on a bad day, to find something factual to rest a claim of negligence.

Would it be cheaper for the government to seek out all former government-owned vehicles previously sold "as is" at auction and buy them back from the present owners? Can I reach an (disclosed/undisclosed) settlement on the matter in advance of any injury, by contract as to a potential tort action just as freely bargainable as I could reach a settlement after an injury? What would be the right "value" to assign to a car that is repurchased (for destruction) by the government to escape exposure to liability?

Show your stuff! To any buyer of former government vehicles at auction . . . as is.

pdxnag - I don't really know the "rule of the case" as I've only given it a cursory reading and I really don't care much about torts. But, I'll try: Businesses and governments are held to a higher standard of "reasonableness" and should follow these higher standards or face a greater likelihood of liability. Simple. Get general liability insurance and pass on the cost or go out of business. We don't care if life gets more expensive, we're not going to create a blanket rule that rewards negligence. It really isn't a stretch, IMHO.

This case hadn't even gone to trial yet! They were arguing over the allegations in the complaint, not over the outcome of the case! The concurring opinion admits his concern for abuse of the holding in this case, but explains that the decision was an easy one.

My point was only that people in general don't understand that a single case can have many, many "decisions" and they don't look deep enough (often the media's fault, but the judicial branch should have a relationship with schools to help bring back civics instruction) and only hear "so and so lost." So-and-so may only have lost their most extreme position, not their ultimate case, but people fly off the handle and can't comprehend why judges, lawyers, and juries are so stupid. I'm really sick of the low level of education in this country. That Miss Teen USA contestant from S. Carolina will end up being a political/corporate marketer, because she is the "average joe" in America these days. Our global culture has an illness, and it's not rooted conservativism or liberalism, its rooted in marketing/packaging's triumph over honesty.

This is exactly the reason why for the past 15 Years I pay cash for everything I buy, never send in a warranty card, use credit cards only when necessary and never put my DL or SSN on any check or money order.


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In Vino Veritas

Lange, Pinot Gris 2015
Kiona, Lemberger 2014
Willamette Valley, Pinot Gris 2015
Aix, Rosé de Provence 2016
Marchigüe, Cabernet 2013
Inazío Irruzola, Getariako Txakolina Rosé 2015
Maso Canali, Pinot Grigio 2015
Campo Viejo, Rioja Reserva 2011
Kirkland, Côtes de Provence Rosé 2016
Cantele, Salice Salentino Reserva 2013
Whispering Angel, Côtes de Provence Rosé 2013
Avissi, Prosecco
Cleto Charli, Lambrusco di Sorbara Secco, Vecchia Modena
Pique Poul, Rosé 2016
Edmunds St. John, Bone-Jolly Rosé 2016
Stoller, Pinot Noir Rosé 2016
Chehalem, Inox Chardonnay 2015
The Four Graces, Pinot Gris 2015
Gascón, Colosal Red 2013
Cardwell Hill, Pinot Gris 2015
L'Ecole No. 41, Merlot 2013
Della Terra, Anonymus
Willamette Valley, Dijon Clone Chardonnay 2013
Wraith, Cabernet, Eidolon Estate 2012
Januik, Red 2015
Tomassi, Valpolicella, Rafaél, 2014
Sharecropper's Pinot Noir 2013
Helix, Pomatia Red Blend 2013
La Espera, Cabernet 2011
Campo Viejo, Rioja Reserva 2011
Villa Antinori, Toscana 2013
Locations, Spanish Red Wine
Locations, Argentinian Red Wine
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Shatter, Grenache, Maury 2012
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Abacela, Vintner's Blend #16 Abacela, Fiesta Tempranillo 2014
Benton Hill, Pinot Gris 2015
Primarius, Pinot Gris 2015
Januik, Merlot 2013
Napa Cellars, Cabernet 2013
J. Bookwalter, Protagonist 2012
LAN, Rioja Edicion Limitada 2011
Beaulieu, Cabernet, Rutherford 2009
Denada Cellars, Cabernet, Maipo Valley 2014
Marchigüe, Cabernet, Colchagua Valley 2013
Oberon, Cabernet 2014
Hedges, Red Mountain 2012
Balboa, Rose of Grenache 2015
Ontañón, Rioja Reserva 2015
Three Horse Ranch, Pinot Gris 2014
Archery Summit, Vireton Pinot Gris 2014
Nelms Road, Merlot 2013
Chateau Ste. Michelle, Pinot Gris 2014
Conn Creek, Cabernet, Napa 2012
Conn Creek, Cabernet, Napa 2013
Villa Maria, Sauvignon Blanc 2015
G3, Cabernet 2013
Chateau Smith, Cabernet, Washington State 2014
Abacela, Vintner's Blend #16
Willamette Valley, Rose of Pinot Noir, Whole Clusters 2015
Albero, Bobal Rose 2015
Ca' del Baio Barbaresco Valgrande 2012
Goodfellow, Reserve Pinot Gris, Clover 2014
Lugana, San Benedetto 2014
Wente, Cabernet, Charles Wetmore 2011
La Espera, Cabernet 2011
King Estate, Pinot Gris 2015
Adelsheim, Pinot Gris 2015
Trader Joe's, Pinot Gris, Willamette Valley 2015
La Vite Lucente, Toscana Red 2013
St. Francis, Cabernet, Sonoma 2013
Kendall-Jackson, Pinot Noir, California 2013
Beaulieu, Cabernet, Napa Valley 2013
Erath, Pinot Noir, Estate Selection 2012
Abbot's Table, Columbia Valley 2014
Intrinsic, Cabernet 2014
Oyster Bay, Pinot Noir 2010
Occhipinti, SP68 Bianco 2014
Layer Cake, Shiraz 2013
Desert Wind, Ruah 2011
WillaKenzie, Pinot Gris 2014
Abacela, Fiesta Tempranillo 2013
Des Amis, Rose 2014
Dunham, Trautina 2012
RoxyAnn, Claret 2012
Del Ri, Claret 2012
Stoppa, Emilia, Red 2004
Primarius, Pinot Noir 2013
Domaines Bunan, Bandol Rose 2015
Albero, Bobal Rose 2015
Deer Creek, Pinot Gris 2015
Beaulieu, Rutherford Cabernet 2013
Archery Summit, Vireton Pinot Gris 2014
King Estate, Pinot Gris, Backbone 2014
Oberon, Napa Cabernet 2013
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Benziger, Cabernet, Sonoma 2012
Roxy Ann, Claret 2012
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Conundrum, White 2013
St. Francis, Sonoma Cabernet 2012

The Occasional Book

Phil Stanford - Rose City Vice
Kenneth R. Feinberg - What is Life Worth?
Kent Haruf - Our Souls at Night
Peter Carey - True History of the Kelly Gang
Suzanne Collins - The Hunger Games
Amy Stewart - Girl Waits With Gun
Philip Roth - The Plot Against America
Norm Macdonald - Based on a True Story
Christopher Buckley - Boomsday
Ryan Holiday - The Obstacle is the Way
Ruth Sepetys - Between Shades of Gray
Richard Adams - Watership Down
Claire Vaye Watkins - Gold Fame Citrus
Markus Zusak - I am the Messenger
Anthony Doerr - All the Light We Cannot See
James Joyce - Dubliners
Cheryl Strayed - Torch
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Saul Bellow - Mister Sammler's Planet
Phil Stanford - White House Call Girl
John Kaplan & Jon R. Waltz - The Trial of Jack Ruby
Kent Haruf - Eventide
David Halberstam - Summer of '49
Norman Mailer - The Naked and the Dead
Maria Dermoȗt - The Ten Thousand Things
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Christopher Buckley - Thank You for Smoking
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Bill Bryson - A Short History of Nearly Everything
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Stephen King - 11/22/63
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Mark Twain - A Connecticut Yankee in King Arthur's Court
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Beverly Cleary - A Girl from Yamhill, a Memoir
Kent Haruf - Plainsong
Hope Larson - A Wrinkle in Time, the Graphic Novel
Rudyard Kipling - Kim
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Fran Cannon Slayton - When the Whistle Blows
Neil Young - Waging Heavy Peace
Mark Bego - Aretha Franklin, the Queen of Soul (2012 ed.)
Jenny Lawson - Let's Pretend This Never Happened
J.D. Salinger - Franny and Zooey
Charles Dickens - A Christmas Carol
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Deborah Eisenberg - Transactions in a Foreign Currency
Kurt Vonnegut Jr. - Slaughterhouse Five
Kathryn Lance - Pandora's Genes
Cheryl Strayed - Wild
Fyodor Dostoyevsky - The Brothers Karamazov
Jack London - The House of Pride, and Other Tales of Hawaii
Jack Walker - The Extraordinary Rendition of Vincent Dellamaria
Colum McCann - Let the Great World Spin
Niccolò Machiavelli - The Prince
Harper Lee - To Kill a Mockingbird
Emma McLaughlin & Nicola Kraus - The Nanny Diaries
Brian Selznick - The Invention of Hugo Cabret
Sharon Creech - Walk Two Moons
Keith Richards - Life
F. Sionil Jose - Dusk
Natalie Babbitt - Tuck Everlasting
Justin Halpern - S#*t My Dad Says
Mark Herrmann - The Curmudgeon's Guide to Practicing Law
Barry Glassner - The Gospel of Food
Phil Stanford - The Peyton-Allan Files
Jesse Katz - The Opposite Field
Evelyn Waugh - Brideshead Revisited
J.K. Rowling - Harry Potter and the Sorcerer's Stone
David Sedaris - Holidays on Ice
Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 113
At this date last year: 155
Total run in 2016: 155
In 2015: 271
In 2014: 401
In 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269

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