One of the first times that I got hissed in law school was in Torts class. Moran was the case — Moran v. Faberge, Inc., that is. Moran involved a moron who, in order to make a room smell nice, poured a perfume manufactured by the defendant over an open flame. As perfumes are alcohol based, a 'splosion ensued. Result? The court of appeals said that the plaintiff was entitled to a trial on a failure attach a warning label to the perfume about not dumping it on open flames.
I took the contrary position and argued that the danger of open flames is known to everyone, and that if someone is stupid enough in the first place to dump a substance of unknown composition into an open flame, no amount of warning — no matter how prominent, explicit, or neon-trimmed — is likely to suffice; that person will find a way to visit the burn ward. Plus, I argued, only somewhat less seriously, who are we to thwart fate? Isn't society better off if people who have not grasped "fire . . . HOT!" are tapped on the shoulder and invited, by rapid combustion if necessary, not to whelp similarly clueless children or otherwise promote social irresponsibility?
This was an unpopular sentiment at Snooty Lawschool. I was hissed, and several classmates would not speak to me for several days until I said something unflattering about private ownership of land or something.
Anyway, this all comes to mind because of Overlawyered's coverage of a lawsuit by one Brian Jacobs, an architect from Queens. Jacobs is suing Amtrak because Amtrak failed to prevent Jacobs from his dreadful burns and the amputation of an arm and a leg. More specifically, Jacobs went out drinking, went to Boston's South Station at 2 in the morning, tried unsuccessfully to break into an Amtrak train, then climbed up on top of the train and was electrocuted by overhead wires. Jacobs feels that Amtrak should have protected Jacobs from himself, by guarding the trains or perhaps by identifying moron drunks and stapling them to their chairs.
It's entirely possible that the suit will fail at one stage or another. But why not have a nice clear rule preventing the suit in the first place? Yes, Amtrak might, at great expense (derived at least in part from taxpayers), make its trains so drunken-moron proof that even people inclined to climb on top of them in the middle of the night would be safe. But the cost would be staggering. The concept do not climb on top of public transportation is surely as fundamental as the "Fire HOT" rule, and a person inclined to ignore it will surely ignore a great many other basic rules about trains, such as not lying under the wheels or biting the electrical lines or sticking their heads into the exhaust and so forth. Why spend the money so inefficiently making the trains safe from the Brian Jacobs of the world? Wouldn't that money bring more public good and happiness if it were spent on health care or debt reduction or making Amtrak trains slightly less like a slow-moving Port-a-potty?
And, once again, who are we to interfere with Brian Jacobs' destiny?