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klk
Trad climber
cali
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May 19, 2011 - 12:24pm PT
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tx for the thread.
rei is a big corporation, but we already knew that.
my takeaway from the thread is that the liability insurance industry is using this as a test case to prevent or at least limit future settlements and suits.
bigsteve's posts sound credible to me, given my limited experience with the subject.
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Port
Trad climber
San Diego
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May 19, 2011 - 12:25pm PT
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The OP.
I just learned that REI is appealing the most recent ruling in Monika's case.
For those who don't know, Monika was riding downtown in 2007 when the carbon fiber fork on her bike sheared off from the frame and caused her to face plant onto the pavement. Broken jaw, broken teeth, trauma to the brain. She was going about 5 mph on the sidewalk when it happened. Forensic testing showed that the failure was due to a manufacturing defect. Monika had to pay for the test herself, but was never reimbursed by REI. (REI issued a recall based upon the test results.)
REI has denied responsibility, maintaining that the company who manufactured the fork is responsible, not REI, even though REI sub contracted that company and sold Monika the bike under REI's brand name, Navaro. REI even went so far as to suggest that Monika was to blame for the fork's failure because the bike wasn't clean. As though it was Monika's responsibility to notice a manufacturing defect. The superior court sided with Monika, ruling that REI is responsible to Monika and that REI could pursue legal action against the manufacturing company if it wished. REI appealed, and the appellate court ruled in Monika's favor the day she died. And now REI is appealing again. Wasting the time and energy of Monika's lawyer (and friend) and family.
The whole thing makes me sick. REI never reimbursed Monika for any of her medical or dental expenses, nor for her lost wages. Monika never wanted to crucify REI. She just wanted compensation for her expenses and for not being able to work full time on account of her brain injury. (She managed to sleep only about 3 hours a night)
And yet Monika still managed to get by, despite all those expenses and side effects. She did better than get by. She managed to be happy.
REI boasts about being a co op. Pretty swell treatment of one its nicer members.
f*#k REI.
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jfs
Trad climber
Upper Leftish
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May 19, 2011 - 12:26pm PT
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Please also note Big Steve's reasoned responses in the same thread. Useful information regardless of your opinion of REI.
Sad story and as much an indictment of our legal and insurance system as anything else.
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Port
Trad climber
San Diego
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May 19, 2011 - 12:26pm PT
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rei is a big corporation, but we already knew that.
I dont think the size of REI dictates its response. A small gear shop would probably react the same way (if it had the resources)..... Not that its a good thing, just greedy people being greedy.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 12:30pm PT
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REI is/owns Novarra...
Did BP create the oil spill or its subcontractors?
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Port
Trad climber
San Diego
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May 19, 2011 - 12:32pm PT
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Damn.....That's a shitty bike!
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atchafalaya
Boulder climber
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May 19, 2011 - 12:35pm PT
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The position that REi should "just pay" is pretty ridiculous. Product liability cases turn to the manufacturer (not REI). The fact they re-labeled under the name Novaro does not mean the manufacturer should not bear ultimate responsibility for a design defect. There is strict liability for manufacturers. That standard should not be applied to a consumer like REI.
That being said, they may still be liable for negligence, or under a different theory.
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jfs
Trad climber
Upper Leftish
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May 19, 2011 - 12:35pm PT
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typical interweb responses...
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Mighty Hiker
climber
Vancouver, B.C.
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May 19, 2011 - 12:40pm PT
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You can't necessarily blame REI for what has happened. In these cases, it's often the insurer that's in control of the defence, not the insured (REI). As long as the insurer mounts a credible defence, and acts in good faith (hard to prove otherwise), it decides how the case will be fought - not the company that's insured. And as someone mentioned, the insurance industry may be worried about a precedent.
"Hard cases make bad law". A very sad business.
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Ghost
climber
A long way from where I started
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May 19, 2011 - 12:40pm PT
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How could anyone sustain that much damage at 5mph?
I wound up with major orthopedic surgery and a full year of painful rehab following an accident that occurred when I was going about 2 mph. (No head damage, though). So her outcome, while unusual, is hardly impossible.
REI's repsonse on the other hand, while hardly unusual, is inexcusable.
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 12:44pm PT
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REI has denied responsibility, maintaining that the company who manufactured the fork is responsible, not REI, even though REI sub contracted that company and sold Monika the bike under REI's brand name,
REI haters gonna hate, but there may actually be two sides to this story.
The above argument does seem reasonable.
Would the mom and pop bike shop have responded any differently?
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stevep
Boulder climber
Salt Lake, UT
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May 19, 2011 - 01:09pm PT
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I obviously don't know all the details about how this case worked, but if it was a manufacturing defect, I would think that the fault is with the fork manufacturer, not with REI. The Novara bikes are REI's house brand, but I don't think they make them. I'm sure they are made at some factory in China, and I'd bet that the CF forks are made in China or Taiwan as well. I'd imagine a small shop would act the same if this was a Specialized bike they sold.
The exception to this would be if the failure was due to an assembly problem...i.e. an REI employee cranked the headset down too much or accidentally cut the steerer tube carbon fiber. But if it was an actual manufacturer defect, I'm not sure it would be appropriate to hold REI liable.
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John Moosie
climber
Beautiful California
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May 19, 2011 - 01:18pm PT
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I don't understand not holding REI liable. So if a Sears brand breaks in a dangerous manner, you don't hold Sears responsible? I don't understand this. Can someone explain this? What about a Vons brand food product? If it kills someone? Vons has no responsibility? They get to put their name on it, get all the benefits but have no responsibility if it goes bad? Something about that sounds like baloney to me. So explain it to me please.
And this business about it being part of the contract that the insurer gets to decide. That sounds like more big business bullshit to me. What happened to the "customer is always right"? If a big company like REI stood up to the insurance industry, then we would have less of this bullsh#t.
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Mighty Hiker
climber
Vancouver, B.C.
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May 19, 2011 - 01:25pm PT
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John, you have mandatory third party liability insurance to cover operation of your vehicle, right? The not so fine print in your policy clearly states that in the event of a claim or suit, the insurer (not you) has the right to appoint the lawyer who will defend it, and the right to decide what the defence will be. There are few limitations on the insurer's right to conduct the defence.
That's standard in the world of insurance, and part of the trade offs. And given that it is the insurance company that is likely to be paying any decision or settlement, doesn't it make sense if they hold the reins?
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John Moosie
climber
Beautiful California
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May 19, 2011 - 01:30pm PT
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I agree that they insurer should hold the reins. And I am aware that I don't get to decide on my car insurance. My insurance settled in one case, which actually hurt me. I think the insuree should have some control. If that means their rates go up because of the decision they make, then thats what it means. But even REI has to know that if this case goes viral, then they will lose a lot of goodwill. I just don't like the whole notion of the insurance industry being the decider which absolves the big companies from any decision making or responsibility once it is in the hands of the insurer.
So what about my question about companies like Sears and Vons? Do they hold no responsibility?
Edit: Sears, Vons, REI, and other major companies decide who will represent their brand. They chose the manufacturer and decide the parameters. So why doesn't this make them at least partially liable?
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couchmaster
climber
pdx
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May 19, 2011 - 01:31pm PT
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I challenge you to find a "Novara" brand bike for sale new by any Mfg anywhere that is not REI. "Novara" is REI's house brand. Had this been a "Trek" or "Giant", I'd have some sympathy, but it's their brand which they import and control and theirs alone.
F*#kers.
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 01:33pm PT
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John,
Not a lawyer, but I took a business law class once. So I know just enough to give bad advice...
What I did learn is that there are some very established rules for product liability and negligence. Probably millions of people have been injured using manufactured products that originate through complex manufacturing chains. There are thousands of these types of cases and many decades of precedent. A lot of smart people (i.e. judges) have analyzed these types of issues over the years and developed rules for determining who is responsible.
Like any part of the legal system, the rules are imperfect, but a tremendous amount of logic and reasoning has gone into developing them.
In this case, it may seem reasonable to blame REI since they sold the product. But think about the practical realities: How could REI really ensure everything they sell is safe? Do they have to test every single product they purchase for resale? Does every distributor or reseller along the production chain have to do the same?
Does the mom and pop climbing shop test every piece of climbing gear they put on their shelves? Should they be required to do so?
Is this case different because REI owns the Novara brand, but it is manufactured by a third party?
So maybe the managers of REI are being jerks, or maybe they have a legitimate legal foundation for their position. I honestly don't know. That's why we have courts. Let them decide.
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Gene
climber
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May 19, 2011 - 01:39pm PT
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MP asks,
In this case, it may seem reasonable to blame REI since they sold the product. But think about the practical realities: How could REI really ensure everything they sell is safe? Do they have to test every single product they purchase for resale? Does every distributor or reseller along the production chain have to do the same?
Is this case different because REI owns the Novara brand, but it is manufactured by a third party?
Two courts have already ruled that REI is liable.
From OP link (snipped)
REI has denied responsibility, maintaining that the company who manufactured the fork is responsible, not REI, even though REI sub contracted that company and sold Monika the bike under REI's brand name, Navaro. The superior court sided with Monika, ruling that REI is responsible to Monika and that REI could pursue legal action against the manufacturing company if it wished. REI appealed, and the appellate court ruled in Monika's favor the day she died. And now REI is appealing again.
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John Moosie
climber
Beautiful California
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May 19, 2011 - 01:40pm PT
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Mangy, I think that it is one thing to sell a brand like Trek, but another to brand your own item. If you brand something, you are saying that it has the REI quality, and that should mean that you hold some responsibility to whether it is well made or not. If they sell a Trek brand bike, they don't decide where it is manufactured. But if they sell an REI brand bike, they do. So they could decide to go with the lowest bidder, and they should be held responsible for that decision if it goes bad.
The courts are where that should be decided. If REI can show they they did their level best to buy from a reputable manufacturer, and that they didn't push in any way to cut corners, but instead looked for a solid build, then they should have less liability. But they still put their name on it, and that is the crux. It is much different to sell someone elses brand, like Trek, or Bianchi. Its doubtful if any mom or pop outfit would have their own brand. If they do, then they are responsible for how it is manufactured, because they chose the manufacturer.
They don't have to test every piece of gear that isn't their brand. But they do hold responsibility for what they put their name on. You get a benefit, you should have the liability.
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Chango
Trad climber
norcal
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May 19, 2011 - 01:43pm PT
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I would think that when a company starts paying medical bills, it then assumes liability for the incident. REI has the best return policy in the industry. It's unfair to make claims that they don't stand behind their product. Do you honestly think an indepent shop wouldn't do the same?Assuming responsibility would destroy a small shop. And if REI took this one on, it would set a precedent for future lawsuits...and potentially destroy the company.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 01:45pm PT
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"REI makes top-rated Novara bikes for all types of cycling including mountain, commuting and road." www.rei.com/brand/Novara
REI stands behind their products or it doesn't.
[Warning graphic content]:
http://i1082.photobucket.com/albums/j372/ryan_lurie/Monika%20accident/accidentdamage.jpg
In November 2007, Monika Johnson was riding her bicycle along a
downtown Seattle sidewalk when the front carbon fiber fork of the bicycle, which attaches the bicycle’s front wheel to its frame, “sheared from the steer tube suddenly and without warning.” Clerk’s Papers (CP) at 57. The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.
http://www.courthousenews.com/2011/02/11/rei.pdf
In this case, REI is not standing behind their products.
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kunlun_shan
Mountain climber
SF, CA
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May 19, 2011 - 01:47pm PT
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As jfs mentioned, there are some very informative posts on the original thread by Big Steve about how REI is beholden to their insurance company. It would be much cheaper for REI to settle with Monika Johnson, but they are unable to do so.
In addition to the REI case, Steve mentions Yvon Chouinard's "frustration with the litigation control exerted by the insurance carriers" and Chouinard Equipment's forced bankruptcy. Interesting reading about a situation which affects us all, in the USA, whether we know it or not.
http://www.turns-all-year.com/skiing_snowboarding/trip_reports/index.php?topic=20872.0;all
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 01:47pm PT
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What is VERY clear is that REI does not claim to be reselling another manufacturer's product. They hold themselves out as making the bicycle.
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stevep
Boulder climber
Salt Lake, UT
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May 19, 2011 - 01:52pm PT
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OK, after having posted, I went through and read the linked thread in the initial post. I stand corrected. Apparently, there is a WA law that holds coompanies that privately label stuff (REI/Novara) responsible even though they are not the mfg. So legally it sounds like holding them responsible is correct.
There are also some good posts from a lawyer on that thread indicating that REI may be in the position of being somewhat bound by their contract with their product liability insurance carrier. They may have been unable to settle and forced to fight this in court.
Sucks all the way around.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 01:53pm PT
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Thank your for posting the link.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
No. 65463-2-I
MONIKA JOHNSON, )
Respondent,
v.
RECREATIONAL EQUIPMENT, INC.
(REI), a Washington corporation,
Petitioner.
FILED: February 7, 2011
PUBLISHED OPINION
Accordingly, we affirm the trial court’s ruling that Recreational Equipment,
Inc. (REI) is not entitled to seek to allocate fault to the manufacturer of the No. 65463-2-I/2
defective product that REI branded as its own. We also conclude that the trial
court erred neither by finding REI strictly liable for the injuries caused by the
defective product nor by ruling that any third party claim by REI against the
manufacturer would be severed for trial
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Gal
Trad climber
a semi lucid consciousness
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May 19, 2011 - 01:55pm PT
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Yes, don't know how many more times the courts have to say REI is liable. Also, I read the other thread on the ski/snowboard site, and someone asks the question that I really think needs answered-who is REI's insurance provider (maybe someone already said who)? If they (REI) really have no control in this litigation, let the bad press point to where it should: The giant, apparently inhumane, Insurance company. Maybe this was already answered, but if enough people begin to point their frustration toward the insurance company (that apparently is propelling this litigation), it would (hopefully) make a difference/put pressure in the right spot.
So who is their insurance provider...? Where/who does one send a letter to?
I wish things had gone better for Monika... :(
She should have been compensated for all medical/dental without hesitation. I don't like to see the "little guy" (girl) get screwed. I do recongnize how how these giants apparently need to fight it out to establish the way future cases go, but in the meantime, Monika clearly needed to be compensated.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 02:01pm PT
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REI's product liability representation exists at the behest of REI, not the other way around.
Mine is a simplistic view but if an entity is going to reap the rewards of a product that is their brand, they must also own up the the liabilities of their brand.
This would be way different if it were Trek or Cannondale (or BD for that matter) equipment purchased from REI that malfunctioned. In which case I would imagine Trek, C'dale, BD would be on the hook.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 02:04pm PT
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http://seattletimes.nwsource.com/html/localnews/2014151086_skier07m.html?prmid=related_stories_section
Monika Johnson, experienced mountaineer, killed near Snoqualmie Pass
By Carol M. Ostrom
Seattle Times staff reporter
Monika Johnson
Monika Johnson, who died last week on a mountain peak near Snoqualmie Pass when a shelf of snow broke off beneath her feet, was not only an awesome backcountry skier and mountaineer, friends and family said, she was a generous, thoughtful friend and co-worker.
Ms. Johnson, 40, was killed when a cornice broke off on Red Mountain, dropping her hundreds of feet and burying her in snow.
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JEleazarian
Trad climber
Fresno CA
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May 19, 2011 - 02:05pm PT
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Those who blame REI need to read Mighty Hiker's posts again. In most states, the seller of a defective product is liable jointly and severally with the manufacturer, for any defective merchandise, regardless of whether or not the seller was negligent. For that reason, most sellers, including REI, do the responsible thing and buy insurance.
I'm unaware of any insurance contract that allows the insured to force the insurance company to settle for a specific sum. Instead, if the injured party makes a settlement offer within policy limits, the insured can instruct the insurance company to settle. If the insurance company fails to do so, it is legally on the hook for all damages ultimately awarded, regardless of whether the damages exceed policy limits.
The only exception of which I am aware are certain professional errors and omissions (i.e. malpractice) policies, that allow the insured to prevent the insurance company from settling. Again, I know of no policy where the insured can force the insurance company to settle.
Thus, those blaming the insurance company are on target. While I have plenty of issues with REI, which is rapidly becoming a supplier I love to hate (despite being a member since 1967 or '68), I don't think REI could do too much here.
John
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Port
Trad climber
San Diego
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May 19, 2011 - 02:10pm PT
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Tha is a tax scam if anything.
It's a marketing scam. And I totally agree.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 02:13pm PT
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If the fork was another company's other than REI (Novara), then that company should be liable....
liable for all physical damages, including head trauma, which may have contributed to her ultimate passing.
edit to add "Novara", an REI house brand.
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atchafalaya
Boulder climber
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May 19, 2011 - 02:13pm PT
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Rox, are you saying that REI is not a COOP?
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 02:15pm PT
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atchafalaya, ROX, the point of this thread is not the co-opiness of REI. It is their LIABILITY for selling their own defective product. Plenty of other threads to take that convo to.
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John Moosie
climber
Beautiful California
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May 19, 2011 - 02:16pm PT
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John, I prefer to agree with what Reddirt posted.
REI's product liability representation exists at the behest of REI, not the other way around.
Just because no such insurance exists at this time, doesn't mean that it can't. It might cost more to have some say in what happens, but thems the breaks when you put your name on something.
Maybe REI should announce that they are seeking a more responsive insurer.
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 02:17pm PT
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REI is NOT A CO-OP.
So what is it then?
A public corporation? Nope.
A privately owned corporation? If so, then who owns the assets?
Are the profits distributed to anyone other than the co-op members?
Perhaps their management is overpaid...I don't know. If their compensation is extreme, that would be fraud. Even so, it still doesn't change the definition of their corporate structure.
The reason the board never changes is because, beyond the occasional fleeting internet outrage, no one ever really cares enough to run and/or vote.
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Gene
climber
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May 19, 2011 - 02:18pm PT
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If the fork was another company's other than REI, then that company should be liable....
The appeals court appears to disagree.
Thus, by imposing liability on sellers of branded products for manufacturing defects—which, inevitably, are caused by acts of the manufacturer—our legislature created a statutory form of vicarious liability that enables the claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 02:22pm PT
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Locker: because "the seller branded the product as its own"
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 02:28pm PT
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atchafalaya, ROX, the point of this thread is not the co-opiness of REI. It is their LIABILITY for selling their own defective product. Plenty of other threads to take that convo to.
The courts have already determined liability. We can agree or disagree with the courts but, unless anyone here is lawyer specializing Oregon product liability, we are just arguing from the perspective of our personal ignorance of the law.
Of course there is always the court of public opinion, which is what this thread is really about. And the perceptions of the co-opiness, and the size of the stores, and the nature of the products, etc. have a big influence on how people personally judge this situation.
Tell the same story and with the same facts, but change the name of the company, and you might get a very different set of opinions.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 02:29pm PT
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Gene: "If the fork was another company's other than REI, then that company should be liable...."
I meant if it were a non-Novara brand fork on a non-Novara brand bike... even if purchased from REI... then that non-Novara brand would/should/could be liable & REI is merely a conduit, not the owner of that brand.
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Gene
climber
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May 19, 2011 - 02:30pm PT
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Reddirt,
Gotcha!
g
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Ghost
climber
A long way from where I started
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May 19, 2011 - 02:35pm PT
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Thus, those blaming the insurance company are on target. While I have plenty of issues with REI, which is rapidly becoming a supplier I love to hate (despite being a member since 1967 or '68), I don't think REI could do too much here.
John, even assuming that you (and others) are correct in assuming that REI's hands are tied with regard to the insurance company's decision to appeal, I disagree with your last comment.
While REI may not have been able to prevent its insurer from acting as it did, REI certainly could have done many things to show that it actually cared. If it could not legally pay the woman's medical bills, it could have started, or backed, some kind of campaign to help her. Or taken any number of other steps to show that it understood the difference between legal and moral obligations.
By hiding behind its insurance contract it has made a very public statement that it doesn't give a sh#t about what happened to Monika Johnson. Something which could just as easily have happened to your daughter, btw.
I'm no REI hater, but this is not right.
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Port
Trad climber
San Diego
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May 19, 2011 - 02:41pm PT
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A privately owned corporation? If so, then who owns the assets?
Are the profits distributed to anyone other than the co-op members?
If it were a true COOP, there would be a true profit sharing program. It would come in the form of a dividend. What REI has cleverly done is to call their "profit sharing program" a "dividend." BUT it's neither. The "dividend" is based ONLY on what YOU bought, not the profits in total. In a true COOP, members share in profits and income is reinvested, or issued in a dividend depending on the goals of the organization. They may even choose to cut prices. In reality, REI does not distribute profits. Unless you consider 10 percent to be "profit sharing". It sounds more like a marketing budget to me.
My understanding is that REI uses the "member fees", the initial $20, to expand the company as rapidly as possible. The 10 percent you get back, is really not that much considering that prices at REI are high is comparison to online retail and other shops.
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Dolomite
climber
Anchorage
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May 19, 2011 - 02:52pm PT
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I'll defer to Big Steve, whose comments on the original poster's link are far better informed than any here. No dog in this fight one way or the other, but how is dying when a cornice breaks off causally connected to a bike accident?
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Mighty Hiker
climber
Vancouver, B.C.
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May 19, 2011 - 02:54pm PT
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Isn't it all Obama's fault? :-)
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JEleazarian
Trad climber
Fresno CA
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May 19, 2011 - 02:55pm PT
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John M,
The only other option for REI would be to self-insure, which I think would be irresponsible. Insurance companies don't allow third parties the right to direct them to settle because of moral hazard issues. If I like the plaintiff that I injured, I could collude with the plaintiff and force the insurance company to overpay. And yes, that sort of thing still happens.
I think as a matter of responsibility and good business, the better approach for REI would have been to pay Monika from its own funds, at least for her medical expenses, immediately and without question, then sue the manufacturer for reimbursement.
As far as I can tell, the appeal is over the trial court's decision to sever the case of damages that Monika suffered from the issue of who pays. Doing so does two things: It gets Monika the right to recover her damages sooner, and it puts both seller and manufacturer on the hook for paying her, which is essentially the proper outcome under standard tort law.
It seems to me that the appeal, in attempting to force one trial rather than two, is really either an unconscionable attempt to delay the payment of damages, or an attempt to change product liability law to parallel modern comparative negligence law in California, where the plaintiff can recover from the defendant only that amount caused by that particular's conduct. This would be a change in current law, and would, IMHO, be to the detriment of consumers generally.
The philosphy behind strict liability for defective products (whose seminal case in California arose in my home town [Escola v. Coca-Cola Bottling Company of Fresno]), is to spread the cost of injuries suffered from product defects among all users of the product. Thus, in a case where we are not sure who was really at fault, we allocate the cost to the seller and manufacturer, thus making the cost of those injuries a cost of making and selling the product. This cost gets reflected in the price.
If we, instead, tried to parcel out fault when, by assumption, we don't know for sure who is at fault, all we do is delay recovery for the injured party, and increase the administrative cost by adding another layer of lawyering. REI (and its insurer) lost deservedly, based on what I read.
John
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 02:58pm PT
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In reality, REI does not distribute profits.
Either the profits go to the members, or they go somewhere else. There is no evidence that anyone but members are receiving profits (which would be fraud.)
Is there a big pile of money accumulating somewhere that should be going back the the members?
So they use their excess cash to grow the business, open more stores, and solicit more members. Which means the dividend amount per member doesn't change, but the number of members grows. But it's still members that get the dividends.
It almost sounds like you are suggesting that they try to pay a bigger dividend to existing members every year. Would that be any more fair?
The dividend system based upon member purchases is transparent and equitable. All members have input into the board selection, and thus ultimately the management decisions.
Somehow people think that once a co-op reaches a certain size, it is no longer a co-op. Why?
In a true COOP, members share in profits and income is reinvested, or issued in a dividend depending on the goals of the organization.
The way you describe REI in your post sounds like it matches the above requirement. What are they doing differently than a "true" co-op?
It's a co-op. A very large co-op that is managed much like a large department store chain, but it's still a co-op.
BTW: I don't have any relationship with REI, have never worked there, and don't really even shop there very often. Just think a lot of the hate is based upon myths.
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originalpmac
Mountain climber
Anywhere I like
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May 19, 2011 - 03:05pm PT
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"REI came to ABQ and all the mom and pop (3 at the time) climbing/outdoor shops closed down.
Forest Service proposed Fee system, REI was all on board; now sells the forest service pass from the customer service desk."
Pretty spot on there. I didn't know about the fees with the FS, but they put an REI in downtown Santa Fe, which for some reason allowed a big chain in, when all of the rest are out on Cerrillos. The SF REI is within a minute walk to the local shop Sangre de Cristo mountain works, a fine shop owned a run by fine people, not to mention the other shops that specialize in downhill skis, or all the local bike shops.
Not trying to drift the thread away from REI's liability, but I think they overall manner in which they do business tells us a lot about what kind of company they really are. I personally haven't shopped there in a couple of years, since I saw them move in on Santa Fe. The Wal-Mart of the outdoors.
And yes, with my limited (understatement) understanding if liability insurance for corporations, I think they should stood by there sh#t. Flaunting all the co-op bullshit and their down to earth image, then not helping out a human with a legitimate claim.. just bull sh#t.
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Anastasia
climber
hanging from an ice pick and missing my mama.
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May 19, 2011 - 03:09pm PT
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I am just really sad about Monika Johnson... What horrible bad luck. First to suffer from this accident and later to lose her life in the mountains. If anything, we should at least sit still for five minutes in her honor.
AFS
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rectorsquid
climber
Lake Tahoe
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May 19, 2011 - 03:16pm PT
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I DON'T see ANY difference...
At the end of the year, members get 10% of that money back.
Beyond that, corporate and insurance law and techniques are not within my grasp so I can't comment beyond saying that REI probably gets sued tens or hundreds of times per year and if they just settled everything, they would go out of business. Business is business and that's how it works.
I think every one bashing REI should investigate all of the businesses with whom they do business. I would guess that they would find that lots of companies that they don't bash have the same problems and do the same things in court.
Dave
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JEleazarian
Trad climber
Fresno CA
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May 19, 2011 - 03:24pm PT
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My disgust with REI might be more style than substance. I just dislike the yuppification that occurred to its product line.
I like to keep my old REI catalogs to compare with the modern ones. The old ones show a company that sold a bit of clothing, and lots of climbing and backpacking equipment. The new ones show a company that sells lots of clothing, along with a smattering of other stuff. The local REI devotes more space to suitcases (called by it travel packs) than it does to climbing.
Lots of hat, but very little cattle.
John
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Port
Trad climber
San Diego
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May 19, 2011 - 03:25pm PT
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Hey Mangy,
Here's a good piece on REI in the seattleweekly.
http://www.seattleweekly.com/2003-06-18/news/who-owns-rei/
It explains that REI is only a partial coop, thus they do not have to release any financial statements. There is no way to tell who owns the company, but it is a company with profits that are not fully distributed to members.
I think its very telling that REI wont release who owns the company, or the salaries of their executives. Why not?
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 03:38pm PT
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Yeah I read that years ago and failed to become outraged. Lots of personal backstory and very few facts.
It's possible that there are some mild shenanigans going on - but there is not much hard evidence in the story to support even that idea.
But where the article completely fails is that it does not answer the title question: "Who owns REI?" Same question I have been asking in this thread.
Who's to say this one journalist didn't embellish some facts? They do that sometimes. Can't sell a story about the "scandal" he didn't discover.
The references to Enron are ridiculous, btw.
Until someone proves that there is fraud taking place, I'm not changing my shopping habits.
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Port
Trad climber
San Diego
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May 19, 2011 - 03:40pm PT
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Thanks Gene!, looks like they responded.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 03:54pm PT
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I think as a matter of responsibility and good business, the better approach for REI would have been to pay Monika from its own funds, at least for her medical expenses, immediately and without question, then sue the manufacturer for reimbursement.
REI, are you paying attention?
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Jingy
climber
Somewhere out there
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May 19, 2011 - 04:01pm PT
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the problem, as far as I can tell, is the American system that requires a co-op like REI to go for profits as much as it does.
Their response, seems to be in line with many businesses in the US (check out BP for "who is responsible when things go bad" for further discussion on the subject).
I believe that had there been adequate quality controls in place at the manufacturers this would not have happened.
I believe that if REI had sub-contracted the work for their Named bikes to a reputable manufacturer this may not have happened.
I believe that if REI really wanted to resovle the issue, they would have paid the costs associated with the medical/dental/wage expenses and then purued the manufactures for reimbursment of their losses, since REI and the manufacturer have all the time in the world to hash out their differences, while humans do not.
Shameful action by REI, horrible/shoddy manufacture of the bike, sad new for the end user.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 04:06pm PT
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There are plenty of companies that will pay actual expenses. There is more resistance when victim asks for pain and suffering, emotional damages or punitive damages.
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 04:12pm PT
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I think as a matter of responsibility and good business, the better approach for REI would have been to pay Monika from its own funds, at least for her medical expenses, immediately and without question, then sue the manufacturer for reimbursement.
REI, are you paying attention?
There are thousands of small-time ambulance-chasing hucksters out there who are paying attention. They would be pretty excited to hear about a company that pays "immediately and without question" to someone that claims an injury.
In this case, the injury was legit - but the only way to know that for sure is to investigate - which requires specialized resources.
REI, and most companies, are not in the business of investigating accidents. If they tried to do it, they would do a very poor job. Insurance companies are in that business. That's a big reason why REI, and every other company, has insurance for this sort of situation.
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atchafalaya
Boulder climber
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May 19, 2011 - 04:14pm PT
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Rox, still not clear and about to head over to the Co-op for some gear. Are you saying they are not a CO-OP?
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stevep
Boulder climber
Salt Lake, UT
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May 19, 2011 - 04:20pm PT
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As was pointed out on the other thread, it is possible that REI would have wanted to settle and pay out of its own funds to take care of her.
But their contract with their liability insurer might have prevented them from doing so.
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atchafalaya
Boulder climber
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May 19, 2011 - 04:28pm PT
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Alright, to recap:
REI never "shirked responsibility", but was insured and the insurance policy most likely requires that they tender all claims to the insurer for defense.
Since it is the insurer's money, they control the defense. They choose the attorneys and they work with the attorneys/insurer throughout the case.
The insurer is advised throughout the litigation and instructs its attorneys to fight the various legal battles and appeals.
The attorneys must pursue all legitimate or possibly meritorious arguments, or they may face liability in the form of a malpractice suit.
Summary: Everything is working just the way it should and it is REI's legal right to appeal an adverse ruling they disagree with.
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Gene
climber
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May 19, 2011 - 04:36pm PT
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Thanks you, Mr. Atchafalaya!
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John Moosie
climber
Beautiful California
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May 19, 2011 - 04:41pm PT
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Alright, to recap:
REI's product liability representation exists at the behest of REI, not the other way around.
In my opinion, there is something wrong with a system that doesn't allow for the insuree to take some control of the situation. Blaming the delays on the insurance industry seems a bit convenient to me.
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Gene
climber
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May 19, 2011 - 04:50pm PT
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John,
I understand what you're saying but that would be impractical since the insured would be spending the insurer’s $$$.
g
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blahblah
Gym climber
Boulder
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May 19, 2011 - 04:50pm PT
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The insurer is advised throughout the litigation and instructs its attorneys to fight the various legal battles and appeals.
No, the attorney represents the insured, not the insurance company, although the attorney and insured may be required to report to the insurance company according to the terms of the policy.
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atchafalaya
Boulder climber
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May 19, 2011 - 04:55pm PT
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Agreed, the attorney represents the insured, but it is the claims adjustor (insurer) who calls the shots during the litigation.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 04:55pm PT
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REI never "shirked responsibility", but was insured and the insurance policy most likely requires that they tender all claims to the insurer for defense.
Since it is the insurer's money, they control the defense. They choose the attorneys and they work with the attorneys/insurer throughout the case.
The insurer is advised throughout the litigation and instructs its attorneys to fight the various legal battles and appeals.
The attorneys must pursue all legitimate or possibly meritorious arguments, or they may face liability in the form of a malpractice suit.
Summary: Everything is working just the way it should and it is REI's legal right to appeal an adverse ruling they disagree with.
Sure they are shirking responsibility. REI has more and legal responsibilities to its members. Those exist regardless of any relationship that REI may have entered into with its insurance companies. That is why REI is being sued, not the insurance company. That is why the court is saying that REI (again, not the insurance company) is responsible.
If the insurance company is involved, it is because REI chose to involve them, by entering into a contract with them to begin with, and then by having them handle this claim. If REI wished to settle directly with victim, the insurance company would not stand in their way. But REI would have to pay out of pocket.
As things stand, REI has already lost twice and will lose a third time. They have the legal right to appeal an adverse ruling, but they are going to have to pay anyway, and now when they do, the perception will be (quite correctly) that they did kicking and screaming with a gun to their head.
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blahblah
Gym climber
Boulder
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May 19, 2011 - 05:11pm PT
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I haven't read any of the underlying documents--is there really a reason to think that the insurance company is driving things, or is this just speculation?
This isn't the type of stuff I do, but it seems to me that the claim would be so slow in this case that it would be below REI's deductible (I may be wrong, no doubt). For example, I work for a large law firm--we have malpractice insurance, but it only kicks in at a VERY high deductible (I think one million, may be more, that's not my department).
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 05:19pm PT
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I haven't read any of the underlying documents--is there really a reason to think that the insurance company is driving things, or is this just speculation?
It's speculation, albeit, informed speculation.
This isn't the type of stuff I do, but it seems to me that the claim would be so slow in this case that it would be below REI's deductible (I may be wrong, no doubt). For example, I work for a large law firm--we have malpractice insurance, but it only kicks in at a VERY high deductible (I think one million, may be more, that's not my department).
When REI's general counsel meets with its outside litigation counsel, how likely are they to say, "hey, just pay it" as opposed to "hey, we have grounds for an appeal"? $600 an hour is a good reason for litigation counsel to recommend once course of action over the other.
Also, maybe they were too stupid to get high-deductible coverage.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 05:20pm PT
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I think the original claim was rather low. Definitely not punitive, only compensatory.
Noteworthy repost from turns all yr:
What's more, one of the reasons that REI is even attempting to excuse itself from responsibility is the result of the forensic bike test that revealed a manufacturing defect in the Aprebic fork. Monika paid for the test out of her own pocket without so much as a dime in reimbursement from REI. Think about that, whoever reads this. Monika paid close to 10k out her savings to pay for a test that REI requested, and never received reimbursement. What's 10k to REI? To Monika it meant not being able to fly to Germany for her grandmother's funeral last year.
Libby stated in that mass email she sent to people who voiced concern that REI stands by its products and has been committed to its co-op values throughout its defense. Libby, if you read this, are you aware that REI refused to reimburse Monika for the cost of her bike!?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 05:33pm PT
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She just wanted compensation for her expenses and for not being able to work full time on account of her brain injury.
This explains why they are fighting it. Paying for one-time medical costs isn't that much, but verdicts can get much more expensive when intended to cover living costs and ongoing medicial expenses for the rest of someone's life due to a brain injury.
When I read that she died in a mountaineering accident, I assumed that she had fully recovered.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 05:35pm PT
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REI refused to reimburse Monika for the cost of her bike!?
I find that hard to believe. Did she take it to the customer service counter and try to return it? Wouldn't her lawyers want to keep it as evidence?
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 05:56pm PT
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Summary: Everything is working just the way it should and it is REI's legal right to appeal an adverse ruling they disagree with.
atchafalaya nails it.
The system is imperfect. There may be ways to improve it, and we should always strive to do so.
But there is no evidence of evil. None at all.
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malabarista
Trad climber
PA, then AZ, then CO, Now CA, soon OR
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May 19, 2011 - 06:20pm PT
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This really makes REI look bad IMO. Legal standards be damned, companies ought to have a human side as well. If they don't I'd rather not do business with them given choice. REI's conduct on this issue calls their values into question. At least they should they helped pay, better -they could have helped organize a fund raiser.
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crunch
Social climber
CO
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May 19, 2011 - 06:50pm PT
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"Summary: Everything is working just the way it should and it is REI's legal right to appeal an adverse ruling they disagree with."
That's true, but it's also my legal right to shop elsewhere, and to suggest to my friends that they do likewise.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 06:52pm PT
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Summary: Everything is working just the way it should and it is REI's legal right to appeal an adverse ruling they disagree with.
The legal system is working as it should. REI has the right to appeal adverse rulings they disagree with. So does anyone else including Bernie Madoff, Charles Manson and the Unabomber.
The fact that they have a legal right to appeal that they exercise and the fact that the legal system is working just the way it should does not imply that what they did is right or that are good citizens.
The 2010 REI board of directors. Back row: left to right — Cheryl Scott, José Ignacio Lozano, Joanne Harrell, Brenda Davis, Anne Farrell, Charles Katz, Jr., Stephen Lockhart, Michael Smith. Front row: left to right — Jesse King, Sally Jewell, John Hamlin
REI is the nation's largest consumer cooperative with more than 4 million active members. A professional management team and staff operate REI, and a board of directors selected from REI's membership oversees the company.
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Mangy Peasant
Social climber
Riverside, CA
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May 19, 2011 - 06:58pm PT
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So anyone that files an appeal can be lumped into the same group as Bernie Madoff, Charles Manson and the Unabomber?
Hope you never get sued or accused of a crime.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:01pm PT
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I'm simply ridiculing the idea that just because they have the legal right to appeal, and are availing themselves of it, "everything is working just the way it should."
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Gene
climber
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May 19, 2011 - 07:02pm PT
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The legal system is working as it should. REI has the right to appeal adverse rulings they disagree with. So does anyone else including Bernie Madoff, Charles Manson and the Unabomber.
Not to put too fine a point on this, but I suspect that Bernie and Ted K cannot file appeals under the terms of their plea deals with the Feds.
I understand your point.
g
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:09pm PT
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Obviously "everything" did not work just the way it should, or this wouldn't have happened.
If you borrow a friends No. 4 Camalot and drop it of the tenth pitch of Royal Arches, the honorable thing is to apologize and buy him a new one. But if you want to be a complete bastard you can tell him to sue you in small claims and then try to appeal all the way to the Supreme Court. You are within your legal rights to do so, but that does not make it morally right, nor will it win you new friends.
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Captain...or Skully
climber
or some such
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May 19, 2011 - 07:12pm PT
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Not much in a Boardroom, either. ANY Boardroom.
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Port
Trad climber
San Diego
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May 19, 2011 - 07:12pm PT
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REI should have taken care of this member's medical bills, then gone after the manufacturer for any additional claims. The title of this thread is dead on. REI shirked its responsibility.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:18pm PT
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Gene, check the headlines. Ted K. filed some papers with a court just last week. He's now a suspect in the 1982 Tylenol poisonings.
Also, it's possible to file appeals attempting to set aside plea bargains, but there chances of succeeding is unlikely.
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Gene
climber
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May 19, 2011 - 07:35pm PT
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GC,
We're way OT here but I like to understand these kind of things. I thought Ted K’s recent filings were to prevent the Feds from auctioning his things. Hopefully someone much smarter than me will weigh in.
Of course, any filings made by Ted regarding Tylenol are beyond the scope of his plea bargain.
Cheers,
g
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:40pm PT
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Many of us have cams from respected companies such as Black Diamond, Wild Country or Metolius. Pretend that the next time you are out climbing, the axle of one of these cams fails under body weight. Analysis reveals that the axle was defective. The manufacturer accepts the analysis enough to issue a recall.
How would you expect the manufacturer to handle the situation:
1. Apologize for distributing defective cams and offer to replace your's.
2. Tell you that although they hold themselves out as "making" the cam and sell it under their brand, they are not truly the manufacturer. Explain that they are just outsourcing production of the parts to the lowest bidders and assembling them. The axle was made by some sweatshop in an Asian country which undercut the next prospective supplier by 20%. Claim that they are not responsible and that you need to go after the sweatshop that made the axle.
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blahblah
Gym climber
Boulder
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May 19, 2011 - 07:40pm PT
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Corporations are not people. They are legal constructs. There is no humanity on a piece of paper.
DMT
It is true that a corporation is a legal construct. So are things like your "rights" under the constitution. Purely legal constructs, nothing more.
The fact that a corporation is a juristic entity is largely irrelevant to whether it is good, bad, legally responsible for certain conduct, whatever.
By the way, a "partnership" is also a legal construct. Those lacking humanity too?
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Gene
climber
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May 19, 2011 - 07:42pm PT
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I couldn't agree more with the two most recent posts from DMT and GC.
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blahblah
Gym climber
Boulder
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May 19, 2011 - 07:47pm PT
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^ ^
Nope, just checking if two or more people acting in concert lack humanity.
Seems to me that acting in groups is an fundamental characteristic, but glad you cleared things up again.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:48pm PT
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We're way OT here but I like to understand these kind of things. I thought Ted K’s recent filings were to prevent the Feds from auctioning his things. Hopefully someone much smarter than me will weigh in.
Of course, any filings made by Ted regarding Tylenol are beyond the scope of his plea bargain
Gene, you're right about Ted K's recent filing. But I found this.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00626.htm
A sentencing appeal waiver provision does not waive all claims on appeal. The courts of appeals have held that certain constitutional and statutory claims survive a sentencing appeal waiver in a plea agreement. For example, a defendant's claim that he or she was denied the effective assistance of counsel at sentencing, United States v. Attar, supra; that he or she was sentenced on the basis of race, United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994); or that the sentence exceeded the statutory maximum, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), will be reviewed on the merits by a court of appeals despite the existence of a sentencing appeal waiver in a plea agreement.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 07:53pm PT
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Next up is to sell tickets to executions as well as Prison Sex Reality TV.
This auction is completely misguided - the theater of the absurd. Maybe they should auction photos of the carnage?
DMT
DMT nails it. How tacky is that?
How would people react if the government started auctioning off the stuff they captured in the Bin Laden raid on the excuse of raising funds for the 9/11 victims?
This may be thread drift, but it's interesting thread drift.
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blahblah
Gym climber
Boulder
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May 19, 2011 - 07:59pm PT
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No DMT, contracts are simply the mechanism by which we set forth legally binding obligations with one another.
Corporations and other legal entities exist because society has found that encouraging forms of collective action promotes the common good.
But this looks like one of your "religious" issues, so no reason to get into it.
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James Wilcox
Boulder climber
Santa Barbara
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May 19, 2011 - 08:10pm PT
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The sad thing (besides her passing) is that she wasn't asking all that much from them in the first place; just reimbursement for expenses. It sure got out of control fast. I'll bet the billing for phone time from the lawyers alone surpassed her request.
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blahblah
Gym climber
Boulder
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May 19, 2011 - 09:49pm PT
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James, you are jumping to conclusions.
According to what's been posted above, she claimed to suffer a disability that prevented her from working (perhaps permanently), and she wanted to be compensated for that. While that may be perfectly reasonable, I don't know how any of you conclude that she was just asking for peanuts.
It's been alleged that she spent a considerable amount of money out-of-pocket to have the bike tested--that's not consistent with a small demand.
So far we've seen the insurance company blamed (without a shred of evidence that an insurance company has even been involved in this case) and the lawyers (who may in fact be at least patially blameworthy--after all, they've lost at both the trial and appellate level so far).
But as long as we're just making stuff up, I'd throw out another profession as the likely wrongerdoers: accountants.
Yep, it's the bean counters who make the important decisions in most businesses today. Probably fair to blame them for the collapse of American industry, corporate shenanigans, and pretty much everything else wrong with America.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 10:01pm PT
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According to what's been posted above, she claimed to suffer a disability that prevented her from working (perhaps permanently), and she wanted to be compensated for that.
I haven't seen any cash amount listed anywhere, so I wonder whether any verdict was issued. If not, and it still needs to be issued, I wonder if it will take into account Johnson's death in the skiing accident. Because of the accident, supporting her "for the rest of her life" would presumably be a lot less expensive.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 19, 2011 - 10:03pm PT
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how is dying when a cornice breaks off causally connected to a bike accident?
No one has claimed that it was causally connected. But now that you ask this, I wonder if it's possible that the brain damage in the bicycle accident led to her having impaired judgment.
ranting but I'm in hawaii drinking my balls off and fishing LOL.
LOL!
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Rankin
Social climber
Greensboro, North Carolina
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May 19, 2011 - 10:15pm PT
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I haven't read all of the posts, but from reading page one I'm a little bothered that people are so quick to spew such venom at REI when their level of fault is unclear. It is clear, however, that the manufacturer is to blame. I guess REI is an easy target because, for many here, all big corporations are evil. Seems like the venom should be more directed at the known bad guy. I see no reason to pass such judgment on REI from I've read so far.
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 10:17pm PT
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the bike fiasco left her
1. some head trauma, potentially impaired judgement
2. needing to wear a full face helmet, potentially reducing her field of view when she was on Red Mtn
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reddirt
climber
PNW
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Topic Author's Reply - May 19, 2011 - 10:24pm PT
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I guess REI is an easy target because, for many here, all big corporations are evil. Seems like the venom should be more directed at the known bad guy. I see no reason to pass such judgment on REI from I've read so far.
REI is the bad guy. They are not backing equipment of their own brand. They said fuk off by refusing to accept her initial request for compensatory damages, and taking it to court. The court said REI is liable for their own branded equipment. REI once again said fuk off by appealing. They are beholden to no one, not their insurance company, not that insurance companies attorneys.
I can only hope that the chances of the success of their appeal is as small as some think it is:
as posted on t-a-y
"They're saying they can't pay proven damages established at trial, because of the terms of a commercial contract (which is all an insurance policy is). That argument may have had some relevance before REI's liability was established at least 3 separate times (e.g., on summary judgment, at trial, and on appeal), but not at this stage. REI's probability of success at this point is incredibly small. By appealing this time, they're electing a tactic intended to limit their liability (by delaying payment and increasing Monika's estate's costs). "
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habitat
climber
grass pass
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May 19, 2011 - 10:47pm PT
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"I'm a little bothered that people are so quick to spew venom at REI when their level of fault is unclear."
Rankin,
Did you click on the link in the very first post and read some of what is written there?
The superior court ruled in Monika's favor.
REI appealed it.
The appelate court ruled in Monika's favor.
REI is again appealing it.
What is so hard to understand?
Boycott REI and their MADE IN CHINA junk.
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apogee
climber
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May 19, 2011 - 10:50pm PT
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As a dedicated REI hater, I'd love to pin this on them, but in this case, MH & JE nail the reality right between the eyes.
If you want to hate anyone in this tragic situation, hate the insurance industry.
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habitat
climber
grass pass
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May 19, 2011 - 10:58pm PT
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Who's talking about hating anyone? What is at issue here is that a company many of us have supported for so long has demonstrated so clearly that they no longer deserve our support.
No, REI does not get a pass because they have insurance. Did the courts find the insurance company at fault? NO - they found REI at fault.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 12:16am PT
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I'm a little bothered that people are so quick to spew such venom at REI when their level of fault is unclear. It is clear, however, that the manufacturer
REI is the manufacturer. They held themselves out as making the bike. They did this using parts that they had build for their use. They selected the parts, the specs of the parts, and the suppliers for the parts.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 12:24am PT
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I haven't read all of the posts, but from reading page one I'm a little bothered that people are so quick to spew such venom at REI when their level of fault is unclear. It is clear, however, that the manufacturer is to blame. I guess REI is an easy target because, for many here, all big corporations are evil. Seems like the venom should be more directed at the known bad guy. I see no reason to pass such judgment on REI from I've read so far.
This is funny, two courts have already passed judgment against REI. REI is trying to argue that the first two courts are wrong.
Also, don't blame the lawyers. Don't blame the insurance companies. Full responsibility for the decisions made by REI lies with the people in this picture.
The 2010 REI board of directors. Back row: left to right — Cheryl Scott, José Ignacio Lozano, Joanne Harrell, Brenda Davis, Anne Farrell, Charles Katz, Jr., Stephen Lockhart, Michael Smith. Front row: left to right — Jesse King, Sally Jewell, John Hamlin
REI is the nation's largest consumer cooperative with more than 4 million active members. A professional management team and staff operate REI, and a board of directors selected from REI's membership oversees the company.
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Port
Trad climber
San Diego
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May 20, 2011 - 12:26am PT
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a board of directors selected from REI's membership oversees the company.
yea right!
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Rankin
Social climber
Greensboro, North Carolina
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May 20, 2011 - 12:30am PT
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reddirt,
REI is strictly liable for the bike accident under Washington Products Liability Act, even though they did not manufacture the fork. The WLPA holds sellers responsible for manufacturing defects if their brand name is on it. That is not so much at issue in this case.
The trial court held for Johnson on her motion for summary judgment. REI appealed, requesting to join the actual manufacturer to the suit or to allow a jury to allocate damages between the two parties. The Ct. of App. affirmed, holding that the WLPA was intended to deny joint and several liability to sophisticated business parties like REI, since it is more than likely that REI has already allocated the risk of manufacturing defects by contract.
Washington is a comparative fault jurisdiction. Normally, REI's request would be granted, and the other manufacturer would be joined and liability would be apportioned by jury. However, the WLPA is an exception to the general rule of comparative fault in Washington. It was enacted to favor the quick and speedy resolutions for plaintiffs like Johnson, who I remind you, has won on summary judgment. It's not like her estate is not going to get paid. They will, and more than likely, with costs.
I'll be curious to see if the Supreme Court of WA will hear the case. Regardless, this is much more of a legal issue than a moral one. I'd suggest taking your moral outrage somewhere else, where you may have more of an understanding of what's going on.
There's much more to it than REI is evil, all corporations are evil. You make a childish strawman argument. And it begs the question, how many corporate products have you used today?
edit: By the way, when you win at summary judgment, the case doesn't go to a jury. So, in reality, they lost on summary judgment, lost on appeal to summary judgment, are now appealing again to the Supreme Court, who may or may not grant certiorari.
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blahblah
Gym climber
Boulder
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May 20, 2011 - 12:35am PT
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No that was not excellent, you fools should get down on your hands and knees thanking the first lawyer that you see for protecting you from the ravages of large corporations and their insurance companies!
Poor Ms. Johnson (now her estate) would have got NOTHING from REI but for the effective assistance of her attorney, who was able to prevail over REI's evil insurance company (according you some of you--there's actually no evidence of any insurance company involvement, but why let facts intrude into your fantasies) at both the trial and appellate courts. Yes the attorney will take 40% of any recovery, but that's still far better than the goose egg she would have got without her lawyer!
And you would do well to keep in mind there has no been finding whatsoever that REI has been at "fault" for anything in this process. The case was decided under the doctrine of strict liability, which does not require a showing of "fault."
I think REI should pay for Ms. Johnson's injuries (in an amount to be determined at trial or as settled by the parties), and because of a (I am sure) hard-working, diligent attorney, that is what will happen.
How the f*#k much did any you blowhards do for Ms. Johnson?! Have fun getting drunk you drunk as#@&%e!
Edit--I hadn't read the above post when I posted--that's a good summary of the legal issue decided by the Washington Court of Appeals.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 12:40am PT
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Rankin, why personally attack me? why conflate the issue of REI dodging their responsibility as ruled by the court w/ other corporate issues?
rhetorical question... I don't actually care that you attack me personally, its just kinda curious thing to do.
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atchafalaya
Boulder climber
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May 20, 2011 - 12:42am PT
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"This is funny, two courts have already passed judgment against REI. REI is trying to argue that the first two courts are wrong."
Should we do away with the Supreme Court of the US because two courts are enough? The argument that the bike accident may have impaired her judgment resulting in her death is even more bizarre. That evidence would be barred as too speculative.
The appeals may have worked to lower the damages if those have not yet been determined. The argument that she suffered brain damage from her five mile an hour accident is an argument to raise damages, and possibly ask a jury to award past and future wages, past and future medical bills, and past and future pain and suffering. This wasn't about $5000. Surely, her attorneys have invested tons of money into making this very profitable for them.
What I would like to know is if a settlement amount has been offered, but rejected as too low. What if she already passed on six figures? Her case doesn't have that value now. Was her deposition videotaped?
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John Moosie
climber
Beautiful California
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May 20, 2011 - 12:44am PT
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There's much more to it than REI is evil, all corporations are evil. You make a childish strawman argument. And it begs the question, how many corporate products have you used today?
Show one place where Reddirt says "all" corporations are evil. Just one. That is your bias.
....
Blah blah.. So because REI has lawyers, we should bow down to all lawyers. hmmm. no thanks.
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blahblah
Gym climber
Boulder
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May 20, 2011 - 12:52am PT
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John M--yes, there are lawyers on both sides, but it is solely the existence of the legal system that allows people like Ms. Johnson to recover anything from REI or other powerful entities.
Without a legal system, I suppose we would be in a world of caveat emptor and might-makes-right, and REI's got a whole lot more might than Ms. Johnson.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 12:52am PT
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The argument that the bike accident may have impaired her judgment resulting in her death is even more bizarre. That evidence would be barred as too speculative.
I'll totally grant that... I would never say "resulted"... more like "potentially contributed".
I've never condemned all corporations nor do I even condemn all manufacturing in in China. QA/QC Six sigma crapola determines manufacturing quality.
I do feel that it's important for entities & people live up to their word. And to not cause further damage by making unreasonable appeals just because they can.
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Gene
climber
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May 20, 2011 - 01:01am PT
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What I would like to know is if a settlement amount has been offered, but rejected as too low. What if she already passed on six figures? Her case doesn't have that value now. Was her deposition videotaped?
Curious about this. Why doesn’t her case have that value now? Because she can’t testify? Or because of her early death? Or what?
The defective part was manufactured by a Taiwanese owned company, not a Chinese firm.
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Srbphoto
climber
Kennewick wa
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May 20, 2011 - 01:10am PT
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For Locker:
let's say you use 5.10 Stealth glue (made by Sniffies Glues, but 5.10 says it is "theirs" on the label) for resoling. Since you don't have proper ventilation you generally get a nice buzz while "working". You get low and buy a new tube. You begin using the new tube and start really freaking out. 2 days later Cosmic comes by and finds you in a milk crate, crying. After testing the new tube you both figure out (3 days later) something is wrong.
Do you call 5.10 or Sniffies?
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Rankin
Social climber
Greensboro, North Carolina
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May 20, 2011 - 01:10am PT
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reddirt, I don't intend a personal attack. I just call it like I see it. Sorry if you feel disrespected, but you're overly simplistic take on this case is childish. The appeal is about third party cross claims and joint and several liability under the WLPA. REI is not making much of an argument denying fault. They want the actual manufacturer to share in liability, and I don't blame them.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 01:14am PT
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Should we do away with the Supreme Court of the US because two courts are enough?
Should we do away with the first amendment and prohibit people from voicing their own person opinions because there are courts?
Also, they aren't appealing to the Supreme Court of the US. They are appealing to the Washington (State) Supreme Court.
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Port
Trad climber
San Diego
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May 20, 2011 - 01:18am PT
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I don't intend a personal attack but you're overly simplistic take on this case is childish
He didn't make a legal argument in the first place, which you seem intent on making. He's saying REI f*#ked over this girl, which they did. End of story. I don't intend a personal attack, but you sound like a jackass.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 01:23am PT
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they're fuking her over... twice... and they'll try a 3rd time if they can.
If REI wants to sell that fork as theirs, the onus is on REI to ensure the contractor manufactures the fork to spec.
REI could have cut their losses & just settle. They didn't.
Not sure how that's a jackass commentary.
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Port
Trad climber
San Diego
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May 20, 2011 - 01:25am PT
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My comment was directed at Rankin
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John Moosie
climber
Beautiful California
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May 20, 2011 - 01:38am PT
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Blah Blah..I agree that we need a legal system. I just don't like how it has come to the point where we need to spend so much money on lawyers. Where often your case stems on how competent your lawyer is. Where if you can't afford the best lawyer, then you have little to no chance against the big dogs unless your case is very black and white. I don't know what the solution is, I just don't like what we have now.
Plus I get really annoyed when lawyers play the.. you aren't a lawyer, so you couldn't possibly understand the complexities of this case.. argument. What a load. Rankin's explanation was not particularly hard to understand, though I realize that there are other complications. I'm not saying that you made that argument. It was made earlier.
Twice in my life I needed to sue a doctor, but didn't have the funds to hire one and couldn't get one on a contingency basis because my case was not black and white, though it felt like it to me.
And please don't think that I hate all lawyers, or all corporations. I have family members in Texas who are lawyers. A few are people I deeply deeply love. Another is someone that I will never talk to again because he has abused his power as an attorney and put my family through hell more then once. Thankfully I believe in karma, and know that I don't have to do anything to him. I wish more people believed in Karma, then maybe we wouldn't need lawyers so much.
....
reddirt, I don't intend a personal attack. I just call it like I see it. Sorry if you feel disrespected, but you're overly simplistic take on this case is childish. The appeal is about third party cross claims and joint and several liability under the WLPA. REI is not making much of an argument denying fault. They want the actual manufacturer to share in liability, and I don't blame them.
You call it like you see it?? where exactly did Reddirt say or imply that all corporations were evil? That was part of your attack on her. Wasn't it?
...
Atch brings up a good point earlier. REI might have made an offer which was refused. We don't know. I like what JohnE said about them paying up and suing the manufacturer. As Reddirt is saying, that shouldn't necessarily be the responsibility of the person who was injured. REI chose the manufacturer and chose to put their name on the product.
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Mighty Hiker
climber
Vancouver, B.C.
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May 20, 2011 - 01:56am PT
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Do we agree that we'd rather have Jeff (Pinnacle Capital Management) as lead sponsor of the FaceLift, instead of REI? Assuming it's actually going to happen and not just more Jeff-spew, that is?
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JEleazarian
Trad climber
Fresno CA
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May 20, 2011 - 02:10am PT
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Rankin,
Does the WLPA apply comparative fault in a strict liability tort? Wouldn't that make the liability something other than strict?
That's why REI's (or its insurer's) argument strikes me as contrary to established tort law. If the liability results from negligence, we don't need strict liability at all. The whole point of strict liability for defective products is to allocate liability where proving negligence is difficult, and would otherwise be a bar to recovery.
If this were a negligence case where comparative fault has relevance, then I don't see how the trial court could resolve it on summary judgment. It's almost always possible to manufacture some disputed issue of material fact.
John
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GDavis
Social climber
SOL CAL
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May 20, 2011 - 02:14am PT
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whats with graniteclimber and linking pictures to people?????
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Rankin
Social climber
Greensboro, North Carolina
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May 20, 2011 - 09:44am PT
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John,
You're exactly right.
It's hard to imagine comparative fault in a case of strict liability. However, given the legal fiction of the WLPA exception--that a seller is treated as a manufacturer--it's not surprising that the issue would be raised. REI argued that even if they are treated as strictly liable, causation is even more at issue because of the constructive nature of the WLPA and, therefore, the legislature must have intended for the defendants to bring in the actual manufacturer.
However, the Ct. of App. in Johnson's case was very clear using precedent and the statute's language that REI is deemed to be strictly liable as a manufacturer and causation need not be proven. Also, the court reasoned that joining 3rd parties or doing a comparative analysis would prejudice Johnson's case as much more would be needed in discovery. In essence, the ruling was much in line with your post's reasoning--that by deeming strict liability, the legislature intended the courts to attach all of the tenants of the doctrine. Creative lawyering getting shot down, and now I doubt the Supreme Court wil grant cert.
Neil
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 10:58am PT
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given the legal fiction of the WLPA exception--that a seller is treated as a manufacturer
That's the crux of your argument?... REI is not merely the seller. They are the manufacturer (and decided to subcontract). REI is where the buck stops.
What you've deemed "legal fiction" the court has deemed legal reality.
In your world, where would the buck stop? how about with the provider of the carbon sheets... or even more upstream, whatever entity provided the raw carbon (or whatever the fck carbon sheets are made of)... or dissipate all responsibility & call it a freak of nature that the carbon molecules misbehaved & did not bond properly? That's just fcking fabulous for all future consumers...
The consumer should not have the burden of taking all this into account when buying a bike. The consumer should have faith in a company that claims to stand by & back all the products they make (& in REI's sales line, make & sell).
The buck stops at REI who, since branding the fork as theirs, should have done their due diligence when they contracted w/ the fork manufacturer.
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EWG
Trad climber
Vermont
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May 20, 2011 - 11:17am PT
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"Problem is the way the legal system works. Say REI admits fault, and pays for the medical costs in an effort to be reasonable. Lawyers now have REI admitting fault, so they decide to go for a bigger suit w/ punitive damages, etc. Of course they sue the subcontractors and anyone peripherally related also..."
no.
too many of you think you're an expert on everything.
REI paying the medical costs would almost certainly not be usable as evidence of fault.
Federal Rule of Evidence 409: "[G]enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person." I'm too lazy to check which court system this case is in (with the apparent cross claims and efforts to indemnify it could very well be federal), but most jurisdictions have a rule like 409.
Unfortunately, REI has not shown such "humane impulses."
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EWG
Trad climber
Vermont
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May 20, 2011 - 11:26am PT
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Chief sez:
"PS: No REI around my neck of the woods nor do I have/own any BD cams etc."
oh thank god you're safe you ridiculous fanatic.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 11:33am PT
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I am the absolute furthest thing from a lawyer so just curious if Federal rules of evidence applies to a WA state case. Further curiosity makes me wonder what the next court is.... and the court beyond that court?
(edited to expand question)
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PAUL SOUZA
Trad climber
Clovis, CA
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May 20, 2011 - 12:15pm PT
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REI came to ABQ and all the mom and pop (3 at the time) climbing/outdoor shops closed down.
Is it REI's fault? The city has to approve before a company can establish itself.
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 12:23pm PT
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In your world, [...]
[reddirt proceeds to describe how the rules would work in his world]
How about the rules in the real world?
But let's keep the legal arguments to the lawyers. What about the ethical arguments? I say they are completely skewed by prior bias.
There are so many reasons to give REI the benefit of the doubt: REI sells thousands of products every day. How often are they sued? Do we judge them based upon the body of all their decisions, or only focus on one controversial one? Did the board ever even hear about this particular case? (They meet a few times a year.) Maybe the management actually believed their insurance company was dealing with the situation in an ethical way. Who actually made the decisions, and what were their reasons? Was it pure greed, as has been implied? If it was greed, how did the individuals actually intend to profit?
But forget all that. It goes like this: One person buys a product at REI. Product breaks. REI doesn't immediately dole out some cash, and therefore everything about REI is evil.
The way this story is presented and judged, one would think that the board had a meeting specifically to discuss this case, and they all yelled "f*#k her" in unison.
The actual chain of events, the people involved, the decisions that were made, and the reasons they were made, were possibly a little different.
This "outrage" is just a bunch of rationalization to support the fashionable opinion that REI is somehow "bad." A lot of climbers don't like REI because they make outdoor activities a little more mainstream. Climbing is not as "exclusive" as it once was, because now climbing gear is sold in in a department store in a shopping mall. So now we are a little less cool. And it's all REI's fault.
The hilarious and sad part is that people take this foundation based upon shallow elitism and build upon it - to extreme levels.
This woman's death is a result of REI's evil? (Can REI even be evil, if it is not a human?)
No, she died because she engaged in a dangerous activity and got a bad break from mother nature.
Trying to blame a climbing accident on a bike manufacturer is also "shirking responsibility."
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Ken M
Mountain climber
Los Angeles, Ca
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May 20, 2011 - 12:46pm PT
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just one comment.
The tactic of GraniteClimber is exactly what plaintiff attorneys do in court......bring out the photos to attempt to create sympathy beyond looking at the facts of the situation. Turn it into an emotional thing, and sway the verdict.
This is what happens, and you are all witnesses as to how the system works.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 12:52pm PT
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Why must Mangy Peasant conflate my point (REI, court says you as the manufacturer are responsible, accept the courts decision & quit hiding behind insurance companies & attorneys drawing it out) with a bunch of sh#t I never said?
Would you still give REI the benefit of the doubt had this been the fork of your bike had to shell out $10K for the engineering tests & lived w/ the initial & lasting physical consequences of having your face suddenly & w/o warning impaled...
You are totally entitled to your opinions & they serve as a reminder & warning that people like you, Rankin, etc exist.
Taking this convo to the philosophical level, esp w/o stating your philosophical framework is a useless pedantic exercise.
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EWG
Trad climber
Vermont
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May 20, 2011 - 12:55pm PT
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Ken, that tactic doesn't matter here. Two summary judgements, and there is no jury for appeals. Unless this gets remanded, the plaintiffs lawyers won't even have a chance to use such heart-wrenching-emotionally-exploitative tactics.
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mojede
Trad climber
Butte, America
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May 20, 2011 - 12:56pm PT
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reddirt--do you honestly believe that lawyers (in this case and commenting) COULD have a philosophy?
Their impeccable training has "philosophy" steam-rolled out of them in Contracts 101 :-)
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Ken M
Mountain climber
Los Angeles, Ca
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May 20, 2011 - 01:02pm PT
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John, even assuming that you (and others) are correct in assuming that REI's hands are tied with regard to the insurance company's decision to appeal, I disagree with your last comment.
While REI may not have been able to prevent its insurer from acting as it did, REI certainly could have done many things to show that it actually cared. If it could not legally pay the woman's medical bills, it could have started, or backed, some kind of campaign to help her. Or taken any number of other steps to show that it understood the difference between legal and moral obligations.
By hiding behind its insurance contract it has made a very public statement that it doesn't give a sh#t about what happened to Monika Johnson. Something which could just as easily have happened to your daughter, btw.
I'm no REI hater, but this is not right.
This is an unsophisticated understanding of the situation from REI's standpoint.
I serve on several corporate boards, and the realitity is that you MUST give your loyalty to the best interest of your corporation, as defined by the best information that you have. (now, that info may be faulty). So if your corporate atty, who you trust, explains to you that by taking action that supports this person, you place the corp at grave legal risk, your OBLIGATION would be to not do so. You have a legal, moral, and ethical obligation to do this, as a director of a corporation. This is what is meant by a fiduciary responsibility, in this case, of loyalty.
I am just really sad about Monika Johnson... What horrible bad luck. First to suffer from this accident and later to lose her life in the mountains. If anything, we should at least sit still for five minutes in her honor.
Beyond any doubt
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John Moosie
climber
Beautiful California
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May 20, 2011 - 01:19pm PT
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Yes this is the primary mechanism behind which corporations hide all personal and ethical responsibility.
We all know it. It has to change.
The owners MUST be held personally liable for the actions of their company, or this will get far worse before it gets better.
Amen to that.
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Ken M
Mountain climber
Los Angeles, Ca
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May 20, 2011 - 01:21pm PT
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Co-ops were a great resource when they were available. They fed MANY people when the economy was putting millions out on the street. Most Co-ops had provision for you to work the registers, or in the back, if you had no money, and they would pay you with grub for you and your kids. Volunteer 3-4 hours a week, and you could feed your family.
And......they.......all.......failed..........
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Ken M
Mountain climber
Los Angeles, Ca
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May 20, 2011 - 01:26pm PT
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The insurer is advised throughout the litigation and instructs its attorneys to fight the various legal battles and appeals.
No, the attorney represents the insured, not the insurance company, although the attorney and insured may be required to report to the insurance company according to the terms of the policy.
It's obvious you've never dealt with this. The insurance company is paying the attorneys. The insurance company selects the attorneys. The insurance company will be deciding if the attorney will be getting the next 50 cases, the insured will never see the attorney again.....
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 01:33pm PT
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[...] with a bunch of sh#t I never said? You said in the OP that this bike accident contributed to her death. It is a bunch of sh#t, and you said it.
Would you still give REI the benefit of the doubt had this [...]
When something happens personally to me, I know all the facts, and I form my opinion based on the facts. None of us really have a complete understanding of "this" story, do we?
You are totally entitled to your opinions & they serve as a reminder & warning that people like you, Rankin, etc exist. Yes, people who objectively consider both sides of a controversial story do exist.
Taking this convo to the philosophical level, esp w/o stating your philosophical framework is a useless pedantic exercise.
My philosophical framework? WTF?
Um...btw, perhaps you should re-read the title of your thread.
You started this thread with the intentions of declaring REI to be evil based upon a sketchy version of a story posted on the internet. You probably hoped to get a chorus of responses along the lines of "yeah man, they really suck!" What you got was a mix of agreement, along with some well-reasoned skepticism and dissent.
Sorry 'bout that. Welcome to the internet.
Not everyone who disagrees with you is a horrible person.
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blahblah
Gym climber
Boulder
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May 20, 2011 - 01:37pm PT
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It's obvious you've never dealt with this. The insurance company is paying the attorneys. The insurance company selects the attorneys. The insurance company will be deciding if the attorney will be getting the next 50 cases, the insured will never see the attorney again.....
Not much is obvious except you're generally clueless.
No one posting here has any idea what insurance involvement, if any, has been in this case.
You're writing as if the insured is Joe Blow car owner who gets into a crash. In that situation, I generally agree with your thoughts. But that has little if anything to do with a products liability suit when the insured is a megacorop such as REI.
This notion that REI has no control over how product liability suits filed against it are resolved is flat out absurd--I'm not going to waste time bickering with you about that.
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John Moosie
climber
Beautiful California
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May 20, 2011 - 01:47pm PT
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You said in the OP that this bike accident contributed to her death. It is a bunch of sh#t, and you said it.
Just to be clear, she said that it may have contributed to her death. In a later post she then pointed out her thinking behind this. It sounds possible. If you don't think it sounds possible, then argue that, but don't overstate her position which you have done more then once.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 01:49pm PT
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Mangy: You said in the OP that this bike accident contributed to her death. It is a bunch of sh#t, and you said it.
What the OP said was this:
" Monika has since died in an unrelated incident (unless you consider how the fork failure may have contributed to cognitive function damage) this past season."
Sounds reasonable to me.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 01:53pm PT
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This notion that REI has no control over how product liability suits filed against it are resolved is flat out absurd--I'm not going to waste time bickering with you about that.
If you do happen to have time to waste, could be worth it to enlighten the enlightenable... as MANY on this forum & others believe it is now all out of REI's hands.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 01:53pm PT
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You're writing as if the insured is Joe Blow car owner who gets into a crash. In that situation, I generally agree with your thoughts. But that has little if anything to do with a products liability suit when the insured is a megacorop such as REI.
This notion that REI has no control over how product liability suits filed against it are resolved is flat out absurd--I'm not going to waste time bickering with you about that.
I agree with this, except that even Joe Blow the car owner has complete control over his defense except to the extent he voluntarily turns it over to the insurance company's lawyers. The insurance policy may have a clause specifying that he won't be covered unless he allows the insurance company to control his defense, but Joe Blow always has a choice.
And has already been pointed out, even if REI has turned this over to insurance company lawyers (but that is just speculation), they could still have assisted with medical costs without in any way undermining their case.
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 01:58pm PT
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Yes this is the primary mechanism behind which corporations hide all personal and ethical responsibility.
We all know it. It has to change.
The owners MUST be held personally liable for the actions of their company, or this will get far worse before it gets better.
Corporations, and the legal notion of limited liability, have been around for about 300 years or so. Mostly in the western world.
During that time, in the societies that have had corporations, have things gotten far better, or far worse?
What was the world like before corporations?
In what part of the world was climbing developed? Why did these folks have the time and economic resources to pursue these types of leisure activities? Is there any relationship to corporations? (so how id nylon and aluminum alloys come about, anyway?)
What would the world be like without corporations?
In the past century or so, some societies made efforts to rid themselves of corporations. How did that work out? Were these societies more ethical?
Are corporations really all about hiding ethical responsibility? So why do all credible business schools require training in ethics? (Is it really just window dressing?) MBAs and lawyers generally have put more effort into studying the rules of ethics than the rest of the population. Why are they paying expensive tuition to take business ethics class instead of a "how to screw everyone" class?
Sorry DMT. I know you're a smart guy, but this anti-corporate rhetoric lacks any substance. The history of the world proves it.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 02:01pm PT
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You started this thread with the intentions of declaring REI to be evil based upon a sketchy version of a story posted on the internet. You probably hoped to get a chorus of responses along the lines of "yeah man, they really suck!" What you got was a mix of agreement, along with some well-reasoned skepticism and dissent.
Sorry 'bout that. Welcome to the internet.
Not everyone who disagrees with you is a horrible person.
Please recheck your powers of telepathy as you missed the mark w/ trying to articulate my intentions & hope. The mind reading machine you bought (from REI?) is obviously broken.
What would potentially make you a horrible person are your sketchy assumptions & inability to sac up & back up. And your annoying habit of misattributing words.
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 02:30pm PT
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the bike fiasco left her
1. some head trauma, potentially impaired judgement
2. needing to wear a full face helmet, potentially reducing her field of view when she was on Red Mtn
I don't think I'm "misattributing."
Here's my issue with the reasoning:
#1 is a guess.
#2 is a pure speculation.
And there is an implied #3: The conclusion that REI contributed to her death.
Keep this in mind: REI did not force her to go alpine climbing. It's her decision to climb that was the overwhelming factor leading to her death.
If they had paid her bills, would #1 and #2 would still be true? Would she still have gone climbing?
I think it's a little ironic that you use the term "shirking responsibility" to describe REI's position.
I'm not trying to be callous. There is a tragedy in this story and we shouldn't forget that. But I don't think casting blame in the wrong direction and proclaiming it on the internet is a respectful way to deal with it.
Apologies for the sarcasm. I can get carried away.
Best wishes, climb safe.
 Dave
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 02:51pm PT
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I am not an "REI basher." I consider REI to be a "good" organization, but in this case they are not being as good as I would like.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 03:00pm PT
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the bike fiasco left her
1. some head trauma, potentially impaired judgement
2. needing to wear a full face helmet, potentially reducing her field of view when she was on Red Mtn
I don't think I'm "misattributing."
Here's my issue with the reasoning:
#1 is a guess.
#2 is a pure speculation.
Mangy, look at the language you quoted. It is not guesswork. It is not speculation. It is not reasoning. It consists of two factual statements.
But if those factual statements are CORRECT, then it is REASONABLE to state that the accident MAY HAVE indirectly contributed towards her fatal accident.
The way it was put in the OP was not unreasonable:
Monika has since died in an unrelated incident (unless you consider how the fork failure may have contributed to cognitive function damage) this past season.
In any case this is a red herring because no one is attempting to recover damages for wrongful death from REI, simply medical expenses and other costs directly attributable to the accident.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 03:07pm PT
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There's a difference b/t "contributed" & "caused". I stand by what I said. Stepping off a cornice is not a rare way to die.
You are crossing the line when you attribute #3 to me. Do you always shove words in other peoples mouths or more importantly, you really ought to quit for your own sake if nothing at all.
The fact still remains that REI has chosen to not pay claims, has been found responsible by the court in accordance w/ the law, and is SHIRKING that responsibility by choosing to appeal.
Even if you are playing devil's advocate Mangy, you are not doing a good job when you chose to focus on a tangential point & keep making false assumptions.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 03:13pm PT
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The tactic of GraniteClimber is exactly what plaintiff attorneys do in court......bring out the photos to attempt to create sympathy beyond looking at the facts of the situation. Turn it into an emotional thing, and sway the verdict.
The pictures are relevant, but are only a factor with regard to REI to the extent REI is responsible. I believe that REI is responsible both legally and ethically. Two courts have agreed that REI is responsible legally, but it is now in the hands of the Wash. Supreme Court, and we have to wait for their determination.
Please view the REI Novara web site:
http://www.rei.com/novara/novara-bikes
REI uses pictures for their emotional impact to sell their bicycles for their business advantage. They will also use pictures in the lawsuit if it is to their advantage to do so. So why there the implication here that it is unfair for the victim to do so?
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 03:15pm PT
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reddirt,
If her death after the bike accident is a "tangental point", then why do you mention it, more than once?
What was your motivation for starting this thread? To help recover financial damages for Monika's estate?
Or is it to spread negative information about REI in order to hurt their business?
I may be a poor devil's advocate. I may be the devil himself. But I'm afraid you are no saint either.
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reddirt
climber
PNW
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Topic Author's Reply - May 20, 2011 - 03:23pm PT
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I bring up the case as it should be known that REI keeps refusing to do the right thing as dictated by the court of law.
I bring up her death b/c inevitably there may be people referring to her in the present tense. In various legal & outdoor industry blogs & newsletters they do the same. It is to prevent confusion.
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atchafalaya
Boulder climber
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May 20, 2011 - 03:51pm PT
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"The fact still remains that REI has chosen to not pay claims, has been found responsible by the court in accordance w/ the law, and is SHIRKING that responsibility by choosing to appeal."
Whats the rush? There is no need to pay now reddirt, Ms. Johnson will never see a dime of the recovery. Let em sort out the legal issues fer chrissakes. If the court of appeal gets reversed, will you start a new thread apologizing to REI for exercising its legal rights?
I understand you and GC love to cry loudest for the alleged victim. But without any facts and a really weak understanding of our legal system, it's hard to take you two seriously.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 03:53pm PT
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If her death after the bike accident is a "tangental point", then why do you mention it, more than once?
Because you and others keep bringing it up and asking him/her about this.
Edit: Reread all of reddirt's posts. Other then in the OP which called the accident "unrelated" reddirt is only responding to you and others on this.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 04:06pm PT
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Whats the rush?
This is what I would expect a insurance defense litigator to say.
There's certainly no rush for REI's lawyers. They will continue to accrue billable hours.
There is also no rush for REI. "Never" would be good time for them.
REI is certainly within its legal rights to refuse to pay a dime and appeal the case all the way up to the Supreme Court. In this case, this is not hyperbole because that is exactly what they are doing.
Aatchafalaya, if you borrow your partner's rack to lead a pitch and then proceed to drop it while putting him on belay, what would you do? Would you offer to replace the gear you damaged and follow through? Or would you insist to litigate the matter all the way to the Supreme Court (or as far as the appellate courts will allow it to go)?
I believe you are confusing "doing the right thing" morally with "exercising all possible avenues of appeal" legally. Just because you CAN refuse to pay someone until absolutely forced to by the court of last appeal, does not mean that this is something you SHOULD do.
Edit: Point taken about her death reducing the urgency. But she only died a few months ago. What was there excuse before the accident?
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 04:14pm PT
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If her death after the bike accident is a "tangental point", then why do you mention it, more than once?
Because you and others keep bringing it up and asking him/her about this.
Um..no..she brought it up in the very first post. Not only brought it up, but linked the two events.
But since you like simplistic climbing metaphors, let's try this one:
If you decide to lead a route at your limit, can't do the moves, take a fall and hurt yourself, do you blame the guy who caused the the rockfall that hit your head a few months earlier?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 04:21pm PT
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Um..no..she brought it up in the very first post.
This is like arguing with, well, a mangy peasant. You asked why she mentioned it more than once. She only mentioned it once, calling it unrelated, but suggesting that there was a POSSIBLE link -- all very reasonable. The only other times she discussed this was in direct response to people putting words into her mouth - insinuating that she had argued a direct casual relationship when she did no such thing. No one is claiming that REI is "responsible" for Johnson's death ethically or legally. Stop trying to put words in her mouth.
If you decide to lead a route at your limit, can't do the moves, take a fall and hurt yourself, do you blame the guy who caused the the rockfall that hit your head a few months earlier?
Again, no one is blaming REI for the accident. When we go and do risky things in the mountains, we are responsible for our safety. This includes taking into account any weaknesses or limitations we have, regardless of how those weaknesses or limitations were acquired.
But to adopt your analogy to what REI is being held responsible for:
If your rope fails under bodyweight and the failure is due to manufacturing defect can you blame the manufacturer (or the company holding itself out as the manufacturer who subcontracted the manufacture of the rope overseas and sold you the rope using their good name and reputation, and which is legally responsible under the applicable product liability laws)?
Pretty easy question to answer.
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atchafalaya
Boulder climber
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May 20, 2011 - 04:37pm PT
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I do defense work but not insurance defense. I also represent plaintiffs.
I think its important from both perspectives to slow the case down to address liability and damages. There was no rush while Ms. Johnson was alive, as healthcare providers serve liens and we are required to pay the bills (at a significantly reduced percentage) once the case settles or after judgment. There is no reason to pretend immediate payment should be required once someone alleges an injury. Too many questions need to be answered.
Now that she is deceased the urgency (which never existed) is surely gone.
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Mangy Peasant
Social climber
Riverside, CA
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May 20, 2011 - 04:48pm PT
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gc,
Let's review:
FYI note the dedication of the website. Monika has since died in an unrelated incident (unless you consider how the fork failure may have contributed to cognitive function damage) this past season.
People need to know what kind of a company REI really is...
Allow me to emphasize a phrase:
"unless you consider how the fork failure may have contributed to cognitive function damage"
Why is that phrase included in the post? These are not my words - didn't "put them in anyone's mouth." They are the OP's words.
Don't try to argue that that phrase isn't about linking the bike accident with the climbing accident. You lose all credibility if you go there.
Clearly, the intention of this thread is to present one side of the story and cast judgement without any attempt to consider another point of view.
And the ultimate goal is to carry out the sentence - to hurt REI's business by spreading internet myths.
"Did you hear about that girl that REI killed...yeah, bogus!"
If this were really about $10K in medical expenses, I doubt anyone would find it so necessary for "People need to know what kind of a company REI really is..."
The whole point of this thread is to suggest that REI's "greed" got someone killed.
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happiegrrrl
Trad climber
www.climbaddictdesigns.com
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May 20, 2011 - 05:07pm PT
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"Now that she is deceased the urgency (which never existed) is surely gone."
I think a lot of people suffer greatly from the stress of having to deal with attornies, court dates, afadavits and all those matters which are part and parcel with lawsuits. As well, many people don't "know the ropes" such as the person working in the industry who made this statements. They may very well feel a sense of urgency. OR they might view the whole procedure as an ordeal they'd like to get through quickly, so they can close the door and move on.
From an industry-inside perspective, no urgency. But from a human side, it's not an unreasonable desire.
This is the first I have heard about this tragedy. I send condolences to the family and friends of Ms. Johnson.
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blahblah
Gym climber
Boulder
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May 20, 2011 - 05:15pm PT
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I'm not on board with the argument that failure to consent to the existing judgments is failure to "do the right thing".
From my perspective, a ruling isn't final until it's been exhaustively argued, and that means in all available courts.
Realistically, it hasn't yet been fully decided in a court of law that REI is responsible, because the full court process is not complete.
What's the point of having an appeals process if defendants are expected to not use it? How is this different than someone being convicted of a crime? Doesn't the defendant have the right to explore all legal avenues of opposition?
As an abstract principle, I fully agree.
When you look at the uncontested facts, however, REI sold a defective bike under it's trademark and is denying liability, saying in effect that the plaintiff should recover from REI's Chinese manufacturer?!
(Apparently REI did rather meekly attempt to contest liability by providing an expert who speculated that perhaps a separate accident from years before could have caused the bike failure--the court found that REI's expert's testimony was so speculative that it was essentially useless and that there was no need for a trial to determine liability.)
Lots of misinformation on this thread, but I think the above is both accurate and explains why many people are rightfully pissed at REI for this. We don't need to indict the legal system, the insurance industry, the principles of limited liability upon which modern society is founded, etc. etc. to see that REI is acting like crap in this instance. I suppose if people want to wait until the judgment is final, that is fair enough, but remember the case will probably settle after REI loses the next appeal, and that will be that.
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Largo
Sport climber
The Big Wide Open Face
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May 20, 2011 - 05:16pm PT
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The simple and incontrovertible fact in most of these cases is that the public tends to think of this as a moral or even a legal issue, but the entire mo fo is driven exclusively by finances.
REI's job is to limit their payout. That's what a company does for the most part. The attorneys will wrangle the cases this way and that so long as money is flowing their way. Cut the flow and they are gone, as is their "concern," which is a commodity, not a sentiment.
The reason REI doesn't "do the right thing" pay their claim is that involves money transferring from their hands to others, and REI is a ratailer who collects money. They do not disbuse it. Their whole business is set up like that. It's not personal. It's business. Expecting REI to be person is absurd. They won't pay a red cent till the last moment. Watch and see.
There's no morality play here. There should be, but as is, it's just dollars and cents.
JL
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Rankin
Social climber
Greensboro, North Carolina
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May 20, 2011 - 05:57pm PT
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Well said Largo.
reddirt, when I describe a "legal fiction" it doesn't mean that I believe it isn't true or right. Rather, a "legal fiction" is the law deeming an event to meet a legal standard when it does not (ie REI is treated as manufacturer even though they did not manufacture the fork). The WLPA seems like a very good statute, as far as I'm concerned.
Washington state has two appellate courts: the Ct. of Appeals, and the Supreme Court. This appeal is the end of the line for REI and the Supreme Court is not obligated to hear the case. Since both parties are citizens of Washington and there is no federal issue, this case cannot be brought in federal court, because tort claims are substantive state law.
So, I don't think your argument is defying their legal obligations is a weak one. REI has the right to appeal. While it is hard not to feel sorry for Johnson, I don't think your assessment of REI is a fair one. As Largo has pointed out, they are acting as any business would.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 20, 2011 - 11:33pm PT
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As an abstract principle, I fully agree.
When you look at the uncontested facts, however, REI sold a defective bike under it's trademark and is denying liability, saying in effect that the plaintiff should recover from REI's Chinese manufacturer?!
(Apparently REI did rather meekly attempt to contest liability by providing an expert who speculated that perhaps a separate accident from years before could have caused the bike failure--the court found that REI's expert's testimony was so speculative that it was essentially useless and that there was no need for a trial to determine liability.)
Lots of misinformation on this thread, but I think the above is both accurate and explains why many people are rightfully pissed at REI for this. We don't need to indict the legal system, the insurance industry, the principles of limited liability upon which modern society is founded, etc. etc. to see that REI is acting like crap in this instance.
blahblah nails it.
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Ken M
Mountain climber
Los Angeles, Ca
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May 21, 2011 - 01:50am PT
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You're writing as if the insured is Joe Blow car owner who gets into a crash. In that situation, I generally agree with your thoughts. But that has little if anything to do with a products liability suit when the insured is a megacorop such as REI.
If you think that REI is a "megacorp", then you have never looked at the balance sheets of insurance corps.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 02:52am PT
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I do defense work but not insurance defense. I also represent plaintiffs.
I think its important from both perspectives to slow the case down to address liability and damages. There was no rush while Ms. Johnson was alive, as healthcare providers serve liens and we are required to pay the bills (at a significantly reduced percentage) once the case settles or after judgment. There is no reason to pretend immediate payment should be required once someone alleges an injury. Too many questions need to be answered.
Now that she is deceased the urgency (which never existed) is surely gone.
I don't know what kind of plaintiffs you represent, but I can think of a dozen reasons why resolution would be urgent to the plaintiff in this case. Remember that there is more at stake than bills from healthcare providers--there is also expenses relating to her disability, including not being able to work.
How urgent is payment for you? When you invoice a client for services, do you hope to be paid promptly or in 2-3 years?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 02:56am PT
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The simple and incontrovertible fact in most of these cases is that the public tends to think of this as a moral or even a legal issue, but the entire mo fo is driven exclusively by finances.
REI's job is to limit their payout. That's what a company does for the most part. The attorneys will wrangle the cases this way and that so long as money is flowing their way. Cut the flow and they are gone, as is their "concern," which is a commodity, not a sentiment.
The reason REI doesn't "do the right thing" pay their claim is that involves money transferring from their hands to others, and REI is a ratailer who collects money. They do not disbuse it. Their whole business is set up like that. It's not personal. It's business. Expecting REI to be person is absurd. They won't pay a red cent till the last moment. Watch and see.
There's no morality play here. There should be, but as is, it's just dollars and cents.
JL
So are we wrong to expect any sense of morality from REI or other companies?
If so, should REI expect us to exercise any morality in using its return policy?
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slayton
Trad climber
Here and There
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May 21, 2011 - 05:10am PT
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REI f*#ked up by trying to be something that they're not. They sell stuff. They don't make it. As soon as you paste your name on a product (especially something that might get the user hurt) as a company you damn well better vet the manufacturer. It's YOUR name and your reputation that is at stake.
This is all about responsibility. REI screwed up when they put they're name on a product that they didn't make in an attempt to make money off of their own branding. To now shirk the responsibility of the quality of that product onto the manufacturer might be the responsible thing to do in terms of the company shareholders but any customer would disagree.
I know nothing of the law surrounding this. But if you put your name on a product and claim it as your own. .. . .STAND BEHIND IT. At some point REI called in the insurance company to deal with this shite. They didn't have to. They could have settled.
Now their name is soiled. Not that it matters because most people don't really give a shite.
Sean
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JEleazarian
Trad climber
Fresno CA
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May 21, 2011 - 07:11am PT
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I base my criticism of REI on its business model, not on any morality. Frankly, when I saw this thread's title, I assumed that this was a construct of a plaintiff's lawyer. After all, it's within a defendant's right to appeal. Reading the comments made me think differently.
I think it's generally good business to stand behind the product you sell, and particularly so if it's your exclusive brand. Think of the Craftsman tool guarantee. Sears will replace a broken Craftsman tool for free, period. Dan Smith (for you Indian Rockers from 40+ years ago who may remember him) found a Craftsman screwdriver with a broken blade on the side of the road in Berkeley. It was rusted and had obviously been there a while. He took it to Sears, who replaced it with a brand new one, no questions asked.
REI's actions here tell me that it doesn't really stand behind Novarra bicycles. Forks and headsets shouldn't break like that. To the public, this looks like a defective product. REI, instead of taking responsibiity for the product it sold, is telling their buyers "get your remedy from the manufacturer. This isn't our problem." The comments on this thread demonstrate what a lot of the potential buyers think about that.
John
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spidey
Trad climber
Berkeley CA
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May 21, 2011 - 09:44am PT
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All you people boycotting REI for this...go for it if you feel you must. It is very sad what happened to her. But know that:
1. They are busier than ever
2. They will not feel it, even a little bit.
3. DMT, Largo, etc are right - it's all about the money, the insurance co. gets to call the shots, and that is not going to change one bit if a bunch of climbers who shop on the internet anyway stop going to REI to check out their stuff before ordering it from some online retailer because its cheaper. (kind of like how REI has their bike parts made in china...because its cheaper).
4. They have to do what they can to limit their liability, otherwise they risk losing the entire business, which employs THOUSANDS of people.
5. In the end they will end up paying, most likely a very large sum.
6. Yes, REI is big. But they are a mom&pop shop in comparison to the mega-insurance corporations that as others have said, are really running sh#t in this country and probably calling the shots in this case.
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spidey
Trad climber
Berkeley CA
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May 21, 2011 - 09:51am PT
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Also, REI's guarantee is to refund or replace any item they sell if you are not satisfied. It does not say anything about paying your medical bills or other expenses if it breaks on you. That is what the court system (however broken it may be) is for. If they just paid her, it would be considered an admission of guilt and would encourage a LOT more lawsuits that would quite conceivably put them out of business. But in the end they will have to pay so it is kind of a moot point. Hopefully they will learn from this and change/fix their outsourcing MO so as to prevent this from ever happening again.
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spidey
Trad climber
Berkeley CA
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May 21, 2011 - 09:56am PT
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Also, does anyone else see the irony in Fattrad's apparent outrage at REI? His motto seems to be "Greed is Good", so one would think he would support a company's right to act in their own perceived self interest.
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Mangy Peasant
Social climber
Riverside, CA
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May 21, 2011 - 10:04am PT
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I think it's generally good business to stand behind the product you sell, and particularly so if it's your exclusive brand. Think of the Craftsman tool guarantee. [...]
REI's actions here tell me that it doesn't really stand behind Novarra bicycles. Forks and headsets shouldn't break like that. [...]
John, that's an apples and oranges comparison. Sears will replace the old screwdriver, but if the screwdriver breaks and hurts someone, will they pay medical bills, etc?. We don't know.
That's the question here, not whether REI should replace the bike. We don't know if REI did replace the bike in this case, but REI's replacement policy is known to be just as liberal as Sears' - to the point the many people abuse it.
BTW, Returning a screwdriver you found on the road is an interesting example...is the warranty transferable through "finder's keepers?"...if so, could someone return climbing booty to REI for replacement? ;)
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Tony Bird
climber
Northridge, CA
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May 21, 2011 - 10:54am PT
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i have to reiterate an incident i reported on another let's-rag-REI thread. i bought a thermos from them which had a loose rubber gasket and would frequently leak. i suffered with it for several months, finally brought it in to exchange. they were still selling the same thermos, but the price had gone up slightly. the clerk wanted to give me credit for the old price and have me pay the difference. it led to an unpleasant confrontation in which he called the manager and i threatened to take them to small claims court. it must have been very entertaining to others waiting in line. i did get the new thermos without having to pay more.
it was particularly galling to me, since i had had a pleasant conversation in the same store about a week previous in which a clerk boasted about their "guarantee" in order to get someone to sign up as a member, and i told about my long membership and how sweet the annual dividend checks are. yes, they have not become a very nice outfit.
god created insurance companies to cover cases like monika's, but insurance companies have become real hardasses. generally, you have to sue the insurance company to get a reasonable settlement in a big case. see y'all in court.
got time for another gripe? i splurged on a $10 bottle of australian red wine at the convenience store in downtown josh a few weeks ago. i went to pull the cork at the campground, and the neck of the bottle broke off. nobody wanted to risk drinking wine with glass in it, so i boogied down to the store and asked for another bottle. not her responsibility, said the hardass foreign lady running the joint. the distributor will be by next monday. if they will reimburse her, she might give me a refund.
enough to make a grown man cry.
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Damn this looks high
climber
Temecula, CA
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May 21, 2011 - 11:02am PT
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The wine's an easy one--pour it through a coffee filter!
As for the bike, she sued REI because you sue EVERYONE including the ones with the deepest pockets.
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blahblah
Gym climber
Boulder
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May 21, 2011 - 12:25pm PT
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Time to shut down this nonsense about insurance once and for all.
I checked the law firm that handled this case: it's Perkins Coie.
That's REI's regular law firm
(REI may use other firms, but they regularly use Perkins Coie). It's a large, prestigious, "white shoe" firm. I recently saw it's name in another matter--when President Obama sent his lawyer to pick up the long firm birth certificate--guess what law firm his lawyer his with?
So all of you who think that REI turned this to over to an insurance company who got a lawyer beholden to the insurance co. and not REI--you're just flat out wrong. Time to move on.
I'm keeping this a polite post but if anyone posts anything further on this thread about an insurance company handling this rather than REI I'm going to call you out on it and it may get ugly.
By the way--to the smart ass who called me out on calling REI a "megacorp"--its last reported revenue was $1.45 billion in 2009. I suppose you can argue about what a "megacorp" is but I'm feeling pretty good about this, relative to the issue we're talking about (whether REI controlled this case or was at the mercy of the big, bad insurance company).
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 12:40pm PT
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Time to shut down this nonsense about insurance once and for all.
I checked the law firm that handled this case: it's Perkins Coie.
That's REI's regular law firm
(REI may use other firms, but they regularly use Perkins Coie). It's a large, prestigious, "white shoe" firm. I recently saw it's name in another matter--when President Obama sent his lawyer to pick up the long firm birth certificate--guess what law firm his lawyer his with?
So all of you who think that REI turned this to over to an insurance company who got a lawyer beholden to the insurance co. and not REI--you're just flat out wrong. Time to move on.
Thank you, blahblah.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 12:48pm PT
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Perkins Coie has REI all over its web site. Here's just one example.
http://www.perkinscoie.com/labor_employment/
We're proud to represent some of the best known, fastest growing, and most interesting clients in the American economy, including Boeing, UPS, REI, Microsoft, Weyerhaeuser, Puget Sound Energy, Qwest, Smart & Final, Starbucks, Vulcan and the Baseball Club of Seattle.
While our lawyers offer a full range of services, we are first and foremost trial lawyers with formidable experience trying cases, small and large, in federal and state courts throughout the country. Indeed, our lawyers are among the handful of lawyers anywhere in the nation who have taken employment class actions to trial – and prevailed. Moreover, we have a unique depth of experience with negotiating and administering collective bargaining agreements for some of the largest union employers in America.
Also, whoever is arguing that REI is not a Megacorp cannot argue that they do not have Megacorp legal representation.
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ryanl
climber
seattle
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May 21, 2011 - 12:59pm PT
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A friend just told me about this thread so I'm only now reading it for the first time.
I would like to offer a few things that I think are relevant.
It's my opinion, from having dated Monika for the last three years and from having recovered her body after she died, that the injuries related to her bike accident in no way contributed to her death. She was taking a picture on a beautiful day when the cornice she was standing upon collapsed, causing her to fall about 1800'.
Leaving all the medical expenses to the side (only for a moment), REI refused to reimburse Monika for her fairly expensive carbon fiber bike. It refused to reimburse or even share costs for the forensic bike test that determined cause of failure. Even though REI requested the test, which cost Monika close to 10k. Neither of these reimbursements amount to an admission of guilt.
-As to the spirit of REI throughout this whole mess, I was questioned on the phone by REI's lawyers about matters relating to the case, and the impression I got was that REI was exploring every possible angle for pinning the injury onto anyone other than itself, including Monika. REI requested Monika's personal journals, from before the accident, that she kept while going through a difficult divorce. How that relates to her bike injury is beyond me. How it relates to the psychological well being of a woman who had gone through some traumatic events in her life, on the other hand, and who only wanted to get on with her life....that is and was painfully apparent.
-Big Steve (from the original ski thread) raised very good points about the insurance carrier calling the shots. I don't doubt what he has said, and am thankful for his patience in sharing his knowledge. What bothers me, though, is that his emphasis flat out ignores the fact that REI has, has always had, and always will have, the power to act differently than the way the insurance carrier demands. The petitioner in this case is REI, not REI's insurance carrier. It seems more to the point, in my opinion, to discuss whether it's worth it for REI to breach its contract-- and I've completely lost sense of the currency of worth in this case-- than it is to say that REI isn't responsible for the appeal.
One last point, which I also feel is important. REI could have avoided this whole mess had they done due diligence and signed a contract with Fairly Bike Manufacturing Co that gave them recourse in the event of a part defect by a manufacturer sub contracted by Fairly. (Aprebic manufactured the fork.) REI falied to do this. It's their own fault that "their hands are tied".
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Ghost
climber
A long way from where I started
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May 21, 2011 - 01:11pm PT
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There are two separate issues here, and as long as people keep trying to push them together into a single issue, nothing but silly arguments will ensue.
The first issue is the legal one, and as the legally-aware have pointed out, there will be long-term ramifications from whatever decision is made, and to demand an instant conclusion is a mistake.
The second issue is REI's ethical stance. They are a big company now, but they continue to say something like "We're really just a bunch of super-nice outdoor folks who, even though we've grown huge, are still the same honest bunch we always were."
I think they could have done the right thing here on the ethical issue without prejudicing the legal outcome. That is, without admitting guilt or fault, they could very easily have supported -- or even spearheaded -- some kind of help campaign for the injured woman. "We won't know the legal outcome for many years, but we want to help one of our members."
Would that have been so difficult?
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Toker Villain
Big Wall climber
Toquerville, Utah
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May 21, 2011 - 01:15pm PT
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The problem with that, ghost, is that it makes them look culpable.
The real problem here; contingency fees.
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Ghost
climber
A long way from where I started
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May 21, 2011 - 01:24pm PT
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Ron, I disagree. I think it would not have affected the legal outcome, and would have made them look compassionate.
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Mighty Hiker
climber
Vancouver, B.C.
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May 21, 2011 - 01:45pm PT
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Preface: I don't do litigation, or that sort of law.
They've done studies of medical negligence cases. Often at the start, the patient more than anything wants only sympathy, an apology, whatever treatment might help, and reimbursement for expenses. Once you get lawyers involved, whether they're your own or an insurance company's, most of that isn't possible - it may be construed as an admission of liability. Which in turn may lead to what it is intended to prevent, a lawsuit.
So whether the law firm mentioned is directly retained by REI, or simply the 'usual' firm retained by REI's insurers to defend it, may be moot. Once it's gone legal, it in effect freezes things until the case is heard or settled. And "gone legal" is as soon as the prospective defendant notifies its insurer or lawyer that there may be a claim. At that point, the defendant may simply have to do what it's told.
In this case, REI is a fairly large and sophisticated corporation, and it sounds like the lawyer may be REI's own, not that of an insurance company. That might give it a bit more flexibility. If the lawyer is retained ('instructed') by an insurance company, that's who calls the shots. If you don't do what your (the insurance company's) lawyer tells you, you may not be covered.
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reddirt
climber
PNW
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Topic Author's Reply - May 21, 2011 - 01:55pm PT
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Based on how the taco highlights the OP's post, I'm reposting ryanl's msg so that people who want to read facts before posting their comments can do so more easily.
May 21, 2011 - 09:59am PT
A friend just told me about this thread so I'm only now reading it for the first time.
I would like to offer a few things that I think are relevant.
It's my opinion, from having dated Monika for the last four years and from having recovered her body after she died, that the injuries related to her bike accident in no way contributed to her death. She was taking a picture on a beautiful day when the cornice she was standing upon collapsed, causing her to fall about 1800'.
Leaving all the medical expenses to the side (only for a moment), REI refused to reimburse Monika for her fairly expensive carbon fiber bike. It refused to reimburse or even share costs for the forensic bike test that determined cause of failure. Even though REI requested the test, which cost Monika close to 10k. Neither of this reimbursements amount to an admission of guilt.
-As to the spirit of REI throughout this whole mess, I was questioned on the phone by REI's lawyers about matters relating to the case, and the impression I got was that REI was exploring every possible angle for pinning the injury onto anyone other than itself, including Monika. REI requested Monika's personal journals, from before the accident, that she kept while going through a difficult divorce. How that relates to her bike injury is beyond me. How it relates to the psychological well being of a woman who had gone through some traumatic events in her life, on the other hand, and who only wanted to get on with her life....that is and was painfully apparent.
-Big Steve (from the original ski thread) raised very good points about the insurance carrier calling the shots. I don't doubt what he has said, and am thankful for his patience in sharing his knowledge. What bothers me, though, is that his emphasis flat out ignores the fact that REI has, has always had, and always will have, the power to act differently than the way the insurance carrier demands. The petitioner in this case is REI, not REI's insurance carrier. It seems more to the point, in my opinion, to discuss whether it's worth it for REI to breach its contract-- and I've completely lost sense of the currency of worth in this case-- than it is to say that REI isn't responsible for the appeal.
One last point, which I also feel is important. REI could have avoided this whole mess had they done due diligence and signed a contract with Fairly Bike Manufacturing Co that gave them recourse in the event of a part defect by a manufacturer sub contracted by Fairly. (Aprebic manufactured the fork.) REI falied to do this. It's their own fault that "their hands are tied".
I can totally appreciate the sentiment behind a boycott or Return Every Item campaign but am pretty pessimistic that it will have little effect.... and what effect it will have will really only be on W coast states.
As for the REI fork-induced head trauma as it relates to her ski related death, it is a non-issue w/r/t the legal proceedings. I do however think it could never be ruled out. I didn't have a chance to formulate that correlation myself... it came up in a convo when a physician skier friend of mine was initially telling me about the incident.
All I would like to see is justice for the original plaintiff & for news of REI stringing this case out to be known to a wider consumer audience (like a climbing forum where many buy from REI) so people can make informed decisions.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 02:30pm PT
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Piton Ron:
The real problem here; contingency fees.
Look at this!
The guy who sued a friend in court for the few cents (what was it fifty cents? a dollar?) for the cost of a single collect phone call thinks he has a solution for the problem of litigation.
The truth is that without contingency fees, people like Monika would not have a chance to recover ANYTHING from a big company like REI, no mater how egregious the offense.
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Mighty Hiker
climber
Vancouver, B.C.
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May 21, 2011 - 03:09pm PT
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Perhaps the difficulty is that we're speaking two apparently similar but actually quite different languages. One is the language of those who are advocating justice, by which they apparently mean that REI should apologize, cover all the medical and other bills, not bother with what seems a weak defence or the precedent that might be sent, and not make use of its legal rights. (In a few cases, that REI or its insurer should admit liability, write Ms. Johnson's lawyer a large cheque, abase itself in public, and admit that it's no longer a small folksy community co-op but a large corporation.) The other language is "lawyer", which is to say that REI should act as any large corporation, in its economic interests only. The amoral stance of corporate America.
Neither is ideal. The legal system is at most an imperfect reflection of society, and an attempt at justice.
I wonder what REI's overall litigation record shows about how it approaches these matters, or at least how its insurer does? It has what seems a generous return policy.
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Mangy Peasant
Social climber
Riverside, CA
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May 21, 2011 - 07:27pm PT
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It refused to reimburse or even share costs for the forensic bike test that determined cause of failure. Even though REI requested the test, which cost Monika close to 10k.
I appreciate that someone is bringing more facts into the discussion, but the part above creates more confusion, IMO.
She needed money for medical expenses, but REI asked her to do a forensic test on her bike. So she agreed, and paid $10K.
In other words, REI sent her a letter saying, "please do this test, at your own expense, and we'll get back to you." And at that point she wrote a check for ten thousand dollars, just to move the matter forward?
Or do forensic labs typically extend $10K credit to first-time customers?
Doesn't make sense.
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Ken M
Mountain climber
Los Angeles, Ca
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May 21, 2011 - 07:40pm PT
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All I would like to see is justice for the original plaintiff & for news of REI stringing this case out to be known to a wider consumer audience (like a climbing forum where many buy from REI) so people can make informed decisions.
If this is your public stance, then what does REI gain by doing the first, since you are going to do the second, anyway?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 07:57pm PT
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If this is your public stance, then what does REI gain by doing the first, since you are going to do the second, anyway?
Doing the second increases the chances of REI doing the first. It increases the cost to REI. REI spends millions to create a certain "image" because they believe that image is of economic benefit to them. I think the facts here severely undermine that image.
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Ken M
Mountain climber
Los Angeles, Ca
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May 21, 2011 - 08:09pm PT
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I'm keeping this a polite post but if anyone posts anything further on this thread about an insurance company handling this rather than REI I'm going to call you out on it and it may get ugly.
By the way--to the smart ass who called me out on calling REI a "megacorp"--its last reported revenue was $1.45 billion in 2009. I suppose you can argue about what a "megacorp" is but I'm feeling pretty good about this, relative to the issue we're talking about (whether REI controlled this case or was at the mercy of the big, bad insurance company).
Blithering anonymous jerks that are unwilling to put their names to their statments, then make threats, have little meaning to me.
I don't know who REI's insurer is, but Chubb, for example, not a particularly large insurer, had income in 2009 of THIRTEEN BILLION, making it TEN TIME BIGGER than REI. It's also been around for 130 years.
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Ken M
Mountain climber
Los Angeles, Ca
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May 21, 2011 - 08:44pm PT
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Doing the second increases the chances of REI doing the first. It increases the cost to REI. REI spends millions to create a certain "image" because they believe that image is of economic benefit to them. I think the facts here severely undermine that image.
Doing the second, when doing it is going to happen whether or not the first happens, makes the first almost certain to never happen.
If you and I were involved in litigation, and instead of allowing the courts to decide and in the middle of the litigation, you went out to undertake a public smear campaign against me, it would become my mission in life to see that you never see one penny, if it cost me a million to make that happen.
So what you have done is to screw the estate of Monika. Nice way to f**k a dead person.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2011 - 11:50pm PT
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Doing the second, when doing it is going to happen whether or not the first happens, makes the first almost certain to never happen.
It depends on what kind of people we are dealing with here.
If you and I were involved in litigation, and instead of allowing the courts to decide and in the middle of the litigation, you went out to undertake a public smear campaign against me, it would become my mission in life to see that you never see one penny, if it cost me a million to make that happen.
First I wouldn't call it a "smear" campaign. That implies that false or libelous statements are being made, and I haven't seen that.
Second, it may be tempting to have this attitude ("it would become my mission in life to see that you never see one penny, if it cost me a million to make that happen.") but those who easily succumb to to are unlikely to succeed in business. The CEO's "mission in life" in his job at REI is to keep the company profitable and this includes protecting its reputation. If he decides his "mission in life" it engage in a vindictive feud, he'll be eased out the door.
Anyway, if they made it their mission in life to see that Monika never saw one penny, they succeeded.
So Monika's friends probably don't care whether or not her estate or lawyers recover anything. It's probably now more about "justice" and "making them pay." So if REI want to pay a million fighting this and further damage their reputation in the process, I don't think Monika's friends will be sorry about that.
So what you have done is to screw the estate of Monika. Nice way to f**k a dead person.
Way to keep it classy! Her friends are behind this and I'm sure her family is also. Nice of you to accuse them of this.
If anyone is getting screwed (and I'd agree that that is happening), its REI that's doing it, and you seem to forget that they already (before this "campaign began) appealed it to the Supreme Court. Can you explain what MORE REI can do? REI is already going all out against them. Her friends and family don't have anything to lose.
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Port
Trad climber
San Diego
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May 22, 2011 - 12:51am PT
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And at that point she wrote a check for ten thousand dollars
You assume its her money. It could just as easily have been family or friends who supported her.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 01:00am PT
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First I wouldn't call it a "smear" campaign. That implies that false or libelous statements are being made, and I haven't seen that.
Actually, that has been exactly what I've seen.
I went to the site that was linked, and about two posts in a see a post by a lawyer, who was a bike maker, who knew Monika. He fairly totally refutes every thing that you say about the law in Wa, and how product liability works.
As for her friends and family carrying this on, which are you?
With your ignorance of law, you don't know that these things tend to be negotiated away at some point. However, the more that the smear goes on, the more unlikely that is to happen.
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frog-e
Trad climber
Imperial Beach California
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May 22, 2011 - 01:07am PT
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#1 REI defines (in writing) the manufacturing specifications of what
Their contractors produce for their (assorted) brands. They ARE accoutable
For defects/liability.
#2 REI could have chosen to settle OUT OF COURT thus avoiding setting
A legal precedent; this is what Coleman does when someone suffocates
In one of their tents (happens every year).
#3 Mighty Hiker is FULL Of SH*t. (No question on that one, this thread
proves it.
#4 REI is a just another blood sucking nit-picking representative of the
Full on corporate adjendaists (and Wall street blow job artists) who now
Own many of their vendors; think Vanity Fair, etc.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 01:55am PT
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http://www.seattleweekly.com/2003-06-18/news/who-owns-rei/4/
AT SOME point, REI's board of directors changed the bylaws to make it virtually impossible for anyone not of their choosing to join their ranks. These days, if you'd like to get onto the boardand you might, because its members are paid $15,000 a year, the chairman $20,000you must win the approval of its nominating committee, a subcommittee of the board. Failing that, you must gather the signatures of 1 percent of the co-op's active membershipabout 21,000 names. To make things just a little more challenging, the co-op won't let you even peek at the membership list, which they say is not released for privacy reasons.]/b]
But let's say you're stubborn and willing to stand outside an REI store and gather member signatures for six months or so. Your name will, indeed, be placed on the ballotclearly distinguishable from the board-nominated, board-endorsed candidates. In the words of a straight-faced corporate spokesperson, "the petition process sets a high threshold for those who wish to be placed on the ballot by petition, to ensure serious candidates."
DENNIS MADSEN AND I are having a civil but strained go-round over REI's refusal to share financial information. I own one share in this co-op, and because publicly traded companies like Nordstrom and Weyerhaeuser are required by law to make such information public, I think I have a right to see this stuff.
Q: "You don't disclose certain financial information, such as executive compensation, which under law is freely disclosed for all publicly traded companies. It surprised me that in a company which is purportedly owned by consumers, that information is not available."
A: "We don't disclose any. . . . "
Q: "What's the rationale for that?"
A: "Why would we want to?"
Q: "Because we're democratic?"
A: "I guess we'll disagree on that one. I can't think there's any reason we want to disclose confidential information like thator about where the company is going or headed. . . . This is a highly competitive business, retailing is today. There are folks out there, across the nation, who are teeing up. The outdoor industry is the next thing that they want to go after. And for us to share sensitive information about the company to our competitors would compromise our ability to sustain this organization."
UW BUSINESS ethics professor Jones rolls his eyes when I tell him REI won't disclose how much its officers are being paid. "Does your tape recorder capture me rolling my eyes? You can say, 'Professor Jones rolled his eyes when he heard that lame excuse.'
"They don't want you to know how much they're making because they don't want it publicized. Is there any other reasonable conclusion to reach?"
Says David Ortman, executive director of the Northwest Corporate Accountability Project and a longtime REI member: "It is disturbing to learn that REI is unwilling to make its financial information available to its members and the public. The basic definition of a cooperative is that of a jointly owned and democratically controlled enterprise. That means a co-op such as REI must be accountable to its members and to the public."
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 02:50am PT
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^^^^^
Not even worth responding to.
Ken M.:
I went to the site that was linked, and about two posts in a see a post by a lawyer, who was a bike maker, who knew Monika. He fairly totally refutes every thing that you say about the law in Wa, and how product liability works.
How about a link or a quote? I can't find anything two posts in or even ten posts in.
At last count, at least five lawyers (that I know of) have weighed in on this thread. This isn't counting people who aren't lawyers but who have taken some law classes.
Edit: Never mind, I see the post you're talking about, but it's TWENTY POSTS down, not two. So you were only off by an order of magnitude. Lack of attention to detail?
What that poster states regarding the law is not inconsistent with what blahblah and others stated here. I don't see him "totally refuting" anything what blahblah says and in fact they appear to be in agreement. You call blahblah ignorant of the law, but he is a lawyer who has read and understands the court of appeals decision.
That poster does speculate that the insurance company is making all the decisions, but this is just, as has been noted here, speculation. The poster does not appear to be aware that the litigation is being handled by REI's regular outside law firm, which indicates that this case is less controlled by an insurance company then may be expected.
Otherwise, I agree with his assessment:
Division I ruled in favor of Monika, rejecting REI’s argument that the CF provisions of RCW Ch. 22 trumped the WPLA imposition of manufacturer liability on private label sellers. Division I reasoned, among other things, that allowing REI to allocate fault would have the effect of abrogating the private labeler liability of the WPLC. Division I’s opinion is very well reasoned and well written. While it is difficult to forecast what WA Supreme Court will do, I am optimistic that Division I’s ruling will be affirmed.
Translation: REI is up sh#t creek without a paddle. They should expect to lose this case.
Ken M.:
The insurance company is paying the attorneys. The insurance company selects the attorneys. The insurance company will be deciding if the attorney will be getting the next 50 cases, the insured will never see the attorney again.....
Ken M., are you willing to admit that you were wrong on this? The attorneys are from REI's regular law firm, Perkins Coie. Perkins Coie advertising its affiliation with REI all over its web site and in other places on the Internet. Example "Perkins Coie: Legal Counsel to great companies like Recreational Equipment, Inc. (REI)." Blahblah--the lawyer you accuse of being ignorant of the law--took the initiative in finding this out.
Also Ken M., why the vitriol towards Monika's friends? Do you really think the Monika's friends are "f*#king a dead person?" Why that choice in words?
You have shown in other threads that you can be rational and reasonable, but are choosing not to be so in this thread. What emotional buttons have been pushed here on this thread?
Me: First I wouldn't call it a "smear" campaign. That implies that false or libelous statements are being made, and I haven't seen that.
Ken. M.: Actually, that has been exactly what I've seen.
Can you identify even ONE? Or are you just making emotional statements you cannot substantiate again?
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Fig's Lady
Sport climber
Bishop, CA
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May 22, 2011 - 03:19am PT
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My sympathies on the death of the plaintiff, friend, etc.
Our society functions on one level regarding law suits and on another level pertaining to simple decency.
I sincerely hope REI evaluates what is their function in all of this.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 22, 2011 - 05:06am PT
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This thread has really opened my eyes about the vast difference between the REI of my long-time perception and the reality of what REI is. I'll buy my gear elsewhere from now on.
And, btw, this...
Ultimately, you are responsible for one thing in this world. Yourself!
...is arguably the single stupidest statement I've read on the Taco, and that's saying something!
"Yourself" is also responsible for the causal chains you put into motion, along with the reasonably foreseeable consequences of those causal chains. What you're saying amounts to: "Hey, trundle a huge boulder that takes out a houseful of people, and you have no responsibility! Maybe the boulder or gravity is responsible, but you're only responsible for yourself!" What a septic tank full!
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madbolter1
Big Wall climber
Walla Walla, WA
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May 22, 2011 - 11:16am PT
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I am not going to get into a WOS thread or circular religious discussion here.
Amazing! So even YOU are able to detect the utter irrelevancy of those topics to this thread. What self-control on your part to not drag us down to quite that level of irrelevancy!
So, on THIS topic, if I get your babbling correctly, you seem to think that the gross negligence of other people is something you can foresee and protect yourself against? Even a drunk driver?
Wow... so if a drunk driver suddenly swerves and head-ons your kids, and kills them all at the same time, YOUR brilliant response would be this? "Stupid kids! I tried to teach them to protect themselves, but they just failed miserably. Not the drunk's fault; he was just doing what drunks do. But my stupid kids should have known better, and their failure to take responsibility for THEMSELVES is what killed them."
Are you REALLY trying to float something this insane?
Or, some guy goes postal in some place where your kids are and kills them all. Again, all you can say is: "Stupid kids! I tried to teach them to protect themselves, but their pathetic failure is what killed them."
So, on your view, NOBODY has any responsibility whatsoever for the things they do that negatively affect other people? We can just do whatever we feel like doing to anybody at any time? If I trundle a boulder through your house, killing all of your kids, you are really going to "man up" and respond by saying, "Dumb kids failed to protect themselves?"
And on your view, you wouldn't even imagine to retaliate, even if I trundled the boulder intentionally to hurt your family? You would even walk up to me, shake my hand, and say, "NICE trundle, dude! You got everybody but me in one shot!"
Come ON! You cannot be this stupid! CAN you???
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Mangy Peasant
Social climber
Riverside, CA
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May 22, 2011 - 02:16pm PT
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Did REI ever issue a recall for these forks?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 03:34pm PT
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They issued a recall for the bicycles.
http://www.cpsc.gov/cpscpub/prerel/prhtml09/09234.html
FOR IMMEDIATE RELEASE
June 2, 2009
Release # 09-234 Firm’s Recall Hotline: (800) 426-4840
CPSC Recall Hotline: (800) 638-2772
CPSC Media Contact: (301) 504-7908
Bicycles Recalled by REI Due to Fork Failure
WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.
Name of Product: 2005 Novara Trionfo Bicycles
Units: About 260
Distributor: Recreational Equipment Inc. (REI), of Kent, Wash.
Hazard: The fork can separate from the steerer tube which can cause the rider to lose control, posing a fall hazard.
Incidents/Injuries: The firm has received two reports of forks separating causing riders to fall. Injuries reported include a fractured clavicle, broken teeth, facial damage and head injuries.
Description: This recall involves 2005 Novara Trionfo bicycles with Aprebic carbon fiber forks. The bicycles are blue and white with black forks, and have the name “Novara” printed on the bars.
Sold at: REI retail stores nationwide from January 2005 through August 2006 for between $720 and $1,900.
Manufactured in: Taiwan
Remedy: Consumers should immediately stop using the recalled bicycles and return them to an REI retail store a free repair.
Consumer Contact: For additional information, contact REI at (800) 426-4840 between 7 a.m. and 2 a.m. ET Monday through Friday, or visit the firm’s Web site at www.rei.com
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 03:54pm PT
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#2 REI could have chosen to settle OUT OF COURT thus avoiding setting
A legal precedent; this is what Coleman does when someone suffocates
In one of their tents (happens every year).
Frog-e, when you said the above, I am curious when you passed the Bar in the State of Washington? In the OP, the link led to the 20th post by an attorney, who rode with Monika, who wrote:
I am an attorney and a former bicycle framebuilder (now a hobby). Some of these issues lie outside the sweet spot of my legal expertise, but I'll offer these comments:
1. I highly doubt that the decision to appeal is in REI's control. It is more likely in the control of REI's product liability insurance carrier. The policy likely provides that the carrier (who is ultimately on the hook to pay) controls all decisions re settlement and litigation. I've never heard of a PL policy that gives control over such matters to the insured. Such a rare provision might exist in some rare policy, but I've never seen one nor have I heard of one. So, I will assume that REI has no control over the decision to appeal.
So it would seem that your legal *opinion* is rather worthless, which means that any other opinions that you have on any other technical matters are worth about as much.......
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madbolter1
Big Wall climber
Walla Walla, WA
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May 22, 2011 - 03:54pm PT
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Let's check your facts, Riley:
Thread starts discussing legal/moral RESPONSIBILITY in Monica's case. Back and forth about REI's RESPONSIBILITY in the case, with pretty overwhelming weight of evidence (as substantiated by TWO courts) that REI is legally responsible in the case. Emphasis on legal/moral RESPONSIBILITY throughout the thread.
You post up with an apparent non-sequitur (which you apparently teach your kids, God help 'em) to the effect that something is "fishy" about the case because the poor woman later died from entirely unrelated causes. You state that the ONLY responsibility to be discussed in the case is PERSONAL responsibility. Context is clear: legal/moral responsibility.... Thread is clear: legal/moral responsibility. YOUR answer? It's HER problem; she has to be responsible for what happens to her in ANY event. Ridiculous lines about "shoulder rolling," etc. (gag!)
I respond stating that your "answer" in context is insane (and God help your kids (and us) if this is the world-view of legal/moral responsibility you teach them)! I point out that your "answer" basically flies in the face of millennia of legal/moral intuitions and tort law spanning EVERY known civilization: we are responsible NOT ONLY for our own selves but for the causal chains and their consequences that we set into motion.
YOU respond that basically Monica evidences a living "train wreck" to the effect that she has basically been selected out. This is, of course, completely irrelevant to the discussion at hand, as the issue at hand is manufacturing defect and who is responsible for it. You reiterate your twisted notion of personal (only) responsibility, citing absurdities: you are responsible for the drunk driver taking you out; you are responsible for any injury you might incur as a result of similar defects as in Monica's case; etc.
I respond with clear-cut counter-examples to your absolutely insane perspective of personal responsibility.
You finally respond with, basically, "I didn't mean it! You have completely misunderstood me. You are the bad one for missing my points so completely."
Okay, now we're up to the present, so let's look at some of your (insane) points as written to see who is misunderstanding reality.
Only you have the ability to not be there that day. Whether it be luck or fate or instincts or common sense or Zen balance. Something about your survival instincts will hopefully tell you " this doesn't feel right."
Okay, so it's Monica's fault that she didn't perceive "something doesn't feel right" about her bicycle fork suddenly and catastrophically sheering. I guess that her major shortcoming was that she didn't exercise the sort of omniscience that you apparently possess, as it would have taken Godlike perception to detect the manufacturing defect prior to the sudden shearing. How am I misunderstanding this? You flat-out state that SHE should have realized "something's not right" or had some karma or zen or some other septic-tank-full way of perceiving life as you do. HER fault; HER responsibility; NOT REI's.
Anyone can be at fault- legally, physically, morally, ethically, etc- but so what- if you are dead- SO WHAT. Only you are ultimately responsible for your own life.
So, presumably, this is the place in which you are "clearly" making a different point than the legal/moral responsibility that the entire rest of the thread has been about. Here you are simply stating the truism: You're gonna die. Perhaps you MIGHT have some capacity to avoid it in some contexts, and if you could have and didn't, then "you are responsible." But this truism has NOTHING whatsoever to do with the content of this thread. The question of this thread is to what extent REI is responsible for this woman's injuries. Your truisms don't speak to that question at all; and when you put them in the CONTEXT of the surrounding discussion, they do worse than contribute nothing: they amount to a sweeping generalization about tort responsibility that is plainly ridiculous. If you didn't intend to be speaking to the issues of tort, then go find yourself another thread, because that is what THIS thread is about. And don't complain when somebody calls you out for making a sweeping, ridiculous claim that in context is apparently about the present discussion. On the other hand, if you are now simply back-peddling... well, then it's pathetic.
You guys are asking us to not buy from REI because a girl fell on her face while riding a bike?
Oh, okay, we're back to the tort context after all. I guess I wasn't confused! So, your take on literally hundreds of posts, including links to court documents, etc. is that "the girl fell on her face." Uhhhh, dude, you seem to be intentionally missing a few pertinent points: 1) Her fork sheared due to (professionally determined) manufacturing defect; 2) the failure was apparently sudden and without warning; 3) REI has a prima facie legal responsibility (determined by two courts) to "back" the manufacture of a product bearing their brand and sold exclusively by them. And YOU can sum everything up as: "The girl fell on her face?" That hyper-over-simplification is so crass that it is beyond belief. I mean, seriously, if you can sum up the known facts that way, you are so out of touch with normal human perception that it is frightening! So, when I trundle a massive boulder through your house, sum THAT up as, "We got ourselves crushed." That would be an EXACTLY comparable summation of the situation.
Don't give people or REI's or cornices or whatever the chance to kill you. If I let some drunk driver hit me while riding my bike on the side of the road- in my way of thinking- I f*#ked up- I protect myself and I am responsible for myself. It is certainly what I teach my kids.
Your summation paragraph. In this paragraph you tell us that you teach your kids to be God. They must be God in order to foresee all of the dangers stalking them at any given moment: manufacturing defects undetectable in advance by anybody but God; drunk drivers suddenly swerving into your lane that are undetectable in advance by anybody but God; massive boulders trundling through your house that are undetectable in advance by anybody but God; entire floors collapsing out from under you (which does actually happen) that are undetectable in advance by anybody but God; and the litany of deaths, that only a Godlike being could detect in advance fast enough to avoid, goes on and on.
And the reaction time of you and your kids must also be Godlike! Even if you get that requisite split second to detect that something's amiss, you must be prepared to "shoulder roll it out," whatever 'it' might be at any given second! In that split second as the drunk swerves into your lane, INSTANTLY you must know how to "shoulder roll" your way out of that situation. And if you simply don't react fast enough (the typical human condition), well then, the results of accident to YOU were YOUR fault because ONLY YOU can EVER be responsible for what happens to you!
Riley, not only is your blathering not even remotely on track with the surrounding discussion, it reveals (an apparently unrelated, by your own claims) amazing stupidity as an overarching world-view; and, seriously, God help your kids and us that they grow up sharing this distorted and impossible notion of reality.
The FACTS of life include that many people die through NO fault of their own. It is flatly impossible to have the level of awareness/reactions to avoid trauma that you state is the SOLE and PERSONAL responsibility of every person. The REASON why we have the same basic tort intuitions across cultures and times is that WE (that is, we NORMAL human beings) recognize that OTHERS can well be responsible for events that damage or kill us; that had they NOT ACTED as they did, the events that damaged or killed us would not have occurred! Causal chains can be set in motion through negligence or malice that UNAVOIDABLY result in damage or death to us; and, here's the kicker that you NEED to get your mind around, THEY (not the damaged or dead persons) are RESPONSIBLE for the results!
I literally cannot imagine the world you apparently live in. But, whatever, that view is irrelevant to this present discussion, because THIS discussion presumes the FACTS of my foregoing paragraph, and these are FACTS that you apparently do not subscribe to (God help your kids!).
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 04:05pm PT
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But it simply comes down to natural selection
You get trundled by a boulder and killed?
You are dead...it is over and it doesn't matter whose fault it is..
You are dead....
-Riley Wyna what a reminder to check on Pete Absolon's widow's thread.
Sounds like this girl had at least a few chances to learn this and failed.
-Riley Wyna
Radical, I feel sorry for those whose lives intertwine w/ yours. I feel sorry for you daughters & your patients.
Fortunately you are not the State of WA nor her medic.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:08pm PT
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Graniteclimber says
Edit: Never mind, I see the post you're talking about, but it's TWENTY POSTS down, not two. So you were only off by an order of magnitude. Lack of attention to detail?
What that poster states regarding the law is not inconsistent with what blahblah and others stated here. I don't see him "totally refuting" anything what blahblah says and in fact they appear to be in agreement. You call blahblah ignorant of the law, but he is a lawyer who has read and understands the court of appeals decision.
That poster does speculate that the insurance company is making all the decisions, but this is just, as has been noted here, speculation. The poster does not appear to be aware that the litigation is being handled by REI's regular outside law firm, which indicates that this case is less controlled by an insurance company then may be expected.
Amazing, you have to defend blahblah. Never knew a lawyer who needed someone to speak for them. Interesting that you describe the lawyer that rode with Monika as "speculating, and that what blahblah, who doesn't appear to have a license to practice in that state "has read and understands" the decision.
So, you take the lawyer who is most likely to be sympathetic to Monika and try to pull his words down....."speculating" (most would call it a legal opinion).
Ken M., are you willing to admit that you were wrong on this? The attorneys are from REI's regular law firm, Perkins Coie. Perkins Coie advertising its affiliation with REI all over its web site and in other places on the Internet. Example "Perkins Coie: Legal Counsel to great companies like Recreational Equipment, Inc. (REI)." Blahblah--the lawyer you accuse of being ignorant of the law--took the initiative in finding this out.
No. My actual experience is that law firms do business with many companies, AS YOU'VE QUOTED ABOVE. They are NOT an "in house" firm. My experience is that Corps often have a number of firms that they do business with, as well. It keeps everyone on their toes, and is a good business practice.
Also Ken M., why the vitriol towards Monika's friends? Do you really think the Monika's friends are "f*#king a dead person?" Why that choice in words?
Identify one of Monika's friends, and my vitriol against them? So far, no one will confess to being one of her friends.
Can you identify even ONE? Or are you just making emotional statements you cannot substantiate again?
REI could have chosen to settle OUT OF COURT thus avoiding setting
A legal precedent; this is what Coleman does when someone suffocates
In one of their tents (happens every year).
I am an attorney and a former bicycle framebuilder (now a hobby). Some of these issues lie outside the sweet spot of my legal expertise, but I'll offer these comments:
1. I highly doubt that the decision to appeal is in REI's control. It is more likely in the control of REI's product liability insurance carrier. The policy likely provides that the carrier (who is ultimately on the hook to pay) controls all decisions re settlement and litigation. I've never heard of a PL policy that gives control over such matters to the insured. Such a rare provision might exist in some rare policy, but I've never seen one nor have I heard of one. So, I will assume that REI has no control over the decision to appeal.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:10pm PT
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This was the best thing I've read:
Now can someone highlight actual facts of this case?
Because all I have read is that REI this and REI that and they didnt help the poor girl, blah blah blah
You guys are asking us to not buy from REI because a girl fell on her face while riding a bike? A girl who is now dead because she fell off a cornice?
I read that somebody wants to even blame her falling off a cornice on REI.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:26pm PT
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Riley, no kidding.
It's best to keep the arguments on contentious issues pretty tight.
BTW, for what it is worth, Monika was a fellow health care worker.
-------------
Locker, with that, I totally agree.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 04:29pm PT
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2, 2011 - 12:54pm PT
#2 REI could have chosen to settle OUT OF COURT thus avoiding setting
A legal precedent; this is what Coleman does when someone suffocates
In one of their tents (happens every year).
Frog-e, when you said the above, I am curious when you passed the Bar in the State of Washington? In the OP, the link led to the 20th post by an attorney, who rode with Monika, who wrote:
I am an attorney and a former bicycle framebuilder (now a hobby). Some of these issues lie outside the sweet spot of my legal expertise, but I'll offer these comments:
1. I highly doubt that the decision to appeal is in REI's control. It is more likely in the control of REI's product liability insurance carrier. The policy likely provides that the carrier (who is ultimately on the hook to pay) controls all decisions re settlement and litigation. I've never heard of a PL policy that gives control over such matters to the insured. Such a rare provision might exist in some rare policy, but I've never seen one nor have I heard of one. So, I will assume that REI has no control over the decision to appeal.
So it would seem that your legal *opinion* is rather worthless, which means that any other opinions that you have on any other technical matters are worth about as much.......
Frog-e is correct. Many manufacturers settle out of court to avoid setting legal precedent. But its clear they are responsible under Wash product liability law. Also in the recall notice they estimate only 260 units being effected, and most of them were probably taken care of in the recall. So precedent won't be a major concern.
The speculation about REI's attorney controlling the decisions is just speculation, and it's very speculative now that its established that REI's regular law firm is handling the case.
REI may not even have insurance coverage for this case. They did not think things through in setting up the Novara brand and taking credit for "making" the bikes on their web site--they have removed this from their web site. If they didn't get proper insurance coverage either, that shouldn't come as a shock.
I've emailed REI and asked if an insurance company is making the decisions. If will post their answer.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 04:36pm PT
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This was the best thing I've read:
Now can someone highlight actual facts of this case?
Because all I have read is that REI this and REI that and they didnt help the poor girl, blah blah blah
You guys are asking us to not buy from REI because a girl fell on her face while riding a bike? A girl who is now dead because she fell off a cornice?
I read that somebody wants to even blame her falling off a cornice on REI.
It was one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument. Also, there have been plenty of facts posted by people on both sides, including a link to the court decision.
If you don't realize this, it's not even worth discussing this with you.
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 04:37pm PT
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Riley, do you know what a hyperlink is?
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:43pm PT
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REI may not even have insurance coverage for this case. They did not think things through in setting up the Novara brand and taking credit for "making" the bikes on their web site--they have removed this from their web site. If they didn't get proper insurance coverage either, that shouldn't come as a shock.
I've emailed REI and asked if an insurance company is making the decisions. If will post their answer
WRT the first paragraph, who is speculating now, and without even the benefit of a legal license?
WRT the second, you are really a piece of sh*t. You ALREADY KNOW that they will not be commenting on an ongoing legal matter.
You are simply trying to throw gasoline onto the flame, as much as possible. You could not CARE LESS about any facts, any issues of law.
Crawl back under your rock.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 04:48pm PT
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Preface: I don't do litigation, or that sort of law.
They've done studies of medical negligence cases. Often at the start, the patient more than anything wants only sympathy, an apology, whatever treatment might help, and reimbursement for expenses. Once you get lawyers involved, whether they're your own or an insurance company's, most of that isn't possible - it may be construed as an admission of liability. Which in turn may lead to what it is intended to prevent, a lawsuit.
So whether the law firm mentioned is directly retained by REI, or simply the 'usual' firm retained by REI's insurers to defend it, may be moot. Once it's gone legal, it in effect freezes things until the case is heard or settled. And "gone legal" is as soon as the prospective defendant notifies its insurer or lawyer that there may be a claim. At that point, the defendant may simply have to do what it's told.
Mighty, I think it may have been in a thread on this in another forum, but an American lawyer was explaining that most states do have evidentiary rules that makes it possible for the company to help out without fear of it being used as evidence of liability. Maybe its different in Canada?
Monika's friends say that REI was very unhelpful right from the start, refusing to help out or even have an analysis done of the failed fork. They should have have helped out right away and taken the fork and had an analysis done by a firm they retained and at their cost.
In this case, REI is a fairly large and sophisticated corporation, and it sounds like the lawyer may be REI's own, not that of an insurance company. That might give it a bit more flexibility. If the lawyer is retained ('instructed') by an insurance company, that's who calls the shots. If you don't do what your (the insurance company's) lawyer tells you, you may not be covered.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:51pm PT
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It was one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument. Also, there have been plenty of facts posted by people on both sides, including a link to the court decision.
If you don't realize this, it's not even worth discussing this with you.
GC, your biggest problem is that you confuse the concept of facts with opinions. You think that if you post something, and someone agrees with it, it is a *confirmed fact*. It is not.
Opinions are fine. But they are only that.
The FACT that you attack someone who asks for facts, by characterizing their request as "one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument", seems to be an attempt to steer people away from talking about facts.
Note that an *argument* is ALSO NOT a *fact*!!
Actually, you have no interest in "facts":
there have been plenty of facts posted by people on both sides
What does that mean? We don't need to talk about facts anymore? We don't need any more facts? Facts shouldn't be the basis of discussion?
I get REALLY suspicious when people DONT want to talk about the facts.....when they want to divert people from the FACTS.
What is your agenda?
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 04:54pm PT
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Monika's friends say that REI was very unhelpful right from the start, refusing to help out or even have an analysis done of the failed fork. They should have have helped out right away and taken the fork and had an analysis done by a firm they retained and at their cost.
Granite, time for some disclosure: What is your relationship to this case?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 04:57pm PT
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without even the benefit of a legal license?
Are you a lawyer? You sure don't sound like one. Business law classes may not lead to a J.D. but you learn enough to see when someone doesn't know what he's talking about. The others who have identified themselves as lawyers make sense. You do not.
All you do is make emotional personal attacks and accusations that you can not substantiate.
You ALREADY KNOW that they will not be commenting on an ongoing legal matter.
They have been commenting on this and have been responding. Also, the involvement of an insurance company would not be confidential. Companies that have product liability insurance will tell their shareholders and business partners that.
The only reason that REI would have in not talking about having product liability insurance would be if they do not have any. This would be embarrassing for them, so they would want to cover it up.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 05:04pm PT
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Wisdom from Ken M.
you are really a piece of sh*t.
Crawl back under your rock.
screw the estate of Monika.
Nice way to f**k a dead person
.
I asked Ken M. some questions earlier, and asked him to substantiate some of his accusations.
He was not able to answer. He just responds with more attacks.
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John Moosie
climber
Beautiful California
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May 22, 2011 - 05:06pm PT
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Don't get suspicious Ken. The friend posted on this thread and on other forums.
The things that would help me decide whether REI really screwed the pooch or not is whether they made an offer or not, and how good it was. Plus I would like to hear from them why they didn't offer to pay to have the fork looked at, or if they did offer and were refused. That would seem to be in their interest as right now I lean towards believing that they acted like a large corporation and threw this woman to the sharks.
I would also like to know if they really did refuse to replace the bike. I'm betting they offered to replace, but not pay medical. So the offer to replace was refused until the decision about medical was finalized in the courts. If they truly did not offer to replace the bike, or refund, then I think that they really screwed the pooch.
...
Riley, when you said it was ALL about personal responsibility, you made it sound like she was responsible for the bike being poorly made, which brought madguys response.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 05:20pm PT
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Ken M.:
This was the best thing I've read:
Now can someone highlight actual facts of this case?
Because all I have read is that REI this and REI that and they didnt help the poor girl, blah blah blah
You guys are asking us to not buy from REI because a girl fell on her face while riding a bike? A girl who is now dead because she fell off a cornice?
I read that somebody wants to even blame her falling off a cornice on REI.
Ken M.:
It was one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument. Also, there have been plenty of facts posted by people on both sides, including a link to the court decision.
If you don't realize this, it's not even worth discussing this with you.
GC, your biggest problem is that you confuse the concept of facts with opinions. You think that if you post something, and someone agrees with it, it is a *confirmed fact*. It is not.
Opinions are fine. But they are only that.
The FACT that you attack someone who asks for facts, by characterizing their request as "one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument", seems to be an attempt to steer people away from talking about facts.
Note that an *argument* is ALSO NOT a *fact*!!
Actually, you have no interest in "facts":
there have been plenty of facts posted by people on both sides
What does that mean? We don't need to talk about facts anymore? We don't need any more facts? Facts shouldn't be the basis of discussion?
I get REALLY suspicious when people DONT want to talk about the facts.....when they want to divert people from the FACTS.
What is your agenda?
I've included two of Ken's posts above.
I know the difference between facts and arguments. Plenty of both have been posted. There is always room for more and I am interested in hearing more facts and more arguments.
Ken M's friend Riley made a post implying that there weren't ANY "actual facts" included and mischaracterizing the arguement against REI as "You guys are asking us to not buy from REI because a girl fell on her face while riding a bike? A girl who is now dead because she fell off a cornice?" This is such a gross distortion as to be dishonest.
How does Ken M. respond? He says, "This was the best thing I've read."
I responded, "It was one of the most ignorant posts on this thread and completely mischaracterizes the OP's argument. Also, there have been plenty of facts posted by people on both sides, including a link to the court decision. If you don't realize this, it's not even worth discussing this with you."
Ken M. states that this "seems to be an attempt to steer people away from talking about facts." He asks "We don't need to talk about facts anymore? We don't need any more facts?"
No, the more facts the better. What I was saying is that the implication that there were no "actual facts" provided was false. But if anyone is not interested in facts it is Ken M. The only thing he is interested in is shitting all over the victim and her friends and family.
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Mighty Hiker
climber
Vancouver, B.C.
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May 22, 2011 - 05:22pm PT
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In most Canadian provinces and territories, there is a statute applying to all retail products, which requires that they be "reasonably fit for the purpose intended". Naturally with exceptions, but that's the general principle. It's essentially a codification of a common law principle, going back about a century.
Perhaps it's different in the US, with the Uniform Commercial Code and such. Probably not. It sounds like Washington's code is based on this, and various doctrines relating to branding, strict liability, and apportionment of loss. In other words, law that is well-established, and usually not worth litigating. (Which is what good law is - it reflects social and economic reality, is stable, and is soundly based.) It's not clear what if any real defence REI had, apart from one based on the facts, and how the law should be applied to them, or perhaps contributory negligence. But they are entitled to their defence, subject to being penalized by the courts (and the court of public opinion) for putting up one utterly lacking in substance.
It's no news that frames sometimes catastrophically fail - less often than when I was bike racing, perhaps, but it happens. It's sad that a young woman should have to suffer the consequences, and perhaps also from an overly "corporate" defence, if that's what happened.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 05:22pm PT
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Riley: which is why
I am trying hard to be done with this place.
Try harder, please.
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John Moosie
climber
Beautiful California
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May 22, 2011 - 05:47pm PT
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Yup, but that is because people would rather tell someone what they are saying from thier own angry perspective instead of stopping and trying to understand what is bring communicated.
agreed.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 05:51pm PT
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Granite, time for some disclosure
I am not at liberty to identify myself, but I have been accused of being:
"an Illuminati mole" heading "funded disinformation efforts"
"working on a government disinformation campaign"
"a paid DISINFO agent"
"a team masquerading as granite."
Most of these accusations were made by people who believe in huge alien arks on the backside of the moon, that our government is run by evil reptilian aliens, that ordinary contrails are part of a depopulation conspiracy, and that alien abductions are real and happen all the time.
But all of that was just cover to "plant" my team as a "mole" for this thread. After the accident the lawyers decided that a Supertopo mole was needed, so they took my team back in their time machine and planted my my team on Supertopo 5 years ago so we would be there for them to "handle" this thread. Talk to Klimmer. He will back me up.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 05:57pm PT
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Yup, but that is because people would rather tell someone what they are saying from thier own angry perspective instead of stopping and trying to understand what is bring communicated.
If you read this thread through from beginning to end, paying attention to what people are saying, Riley would be the best example of this. Ken M. is also a good example but doesn't come close to matching Riley. Most of the people who were able to make real contributions have already left.
I know from email that someone who contributed a lot of the factual context left after Ken M's comments about "f*#king dead people" which may have been his intention. It certainty wasn't to engage in a meaningful discussion.
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 06:26pm PT
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why repost w/o posting the extensive preceeding paragraph.... and upstream where it states, "In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs."
Please stop posting before you're done reading & perhaps think things through. It's a great disservice to everyone, especially yourself.
edit to add: totally asinine to post only the defense's submission.
The point is that two courts have already sided against REI & they are choosing to draw this out. They can make decisions independent of their ins co, atty's etc
and it would be unwise to post opinions such as yours prior to reading & comprehending the facts.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 06:34pm PT
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John Moosie wrote:
Don't get suspicious Ken. The friend posted on this thread and on other forums.
The things that would help me decide whether REI really screwed the pooch or not is whether they made an offer or not, and how good it was. Plus I would like to hear from them why they didn't offer to pay to have the fork looked at, or if they did offer and were refused. That would seem to be in their interest as right now I lean towards believing that they acted like a large corporation and threw this woman to the sharks.
I would also like to know if they really did refuse to replace the bike. I'm betting they offered to replace, but not pay medical. So the offer to replace was refused until the decision about medical was finalized in the courts. If they truly did not offer to replace the bike, or refund, then I think that they really screwed the pooch.
John, I really like your reasoning. Of course, REI cannot comment on any of this while it is in litigation, on advice of counsel. So we won't hear about all that, until it is finally done.
I, also, suspect that there is more than what we know, and that while REI is in this situation where they cannot comment, the other side is taking advantage to hint all sorts of things that make it look especially dark. For all we know, they made a generous offer of settlement.
What I don't understand is the need to unleash this attack at this time. It certainly doesn't benefit Monika. It appears to attempt to take advantage of the sympathy from her death...and I'm not sure I even want to get into what I think of that.
From what I read, there is a fairly clear legal case of REI's liability for the failure of the bike fork, whether I think that is entirely fair or not.
There is a large body of facts missing, despite what GC says. I would be very interested in the decision from the actual lower trial court, rather than just the appeals court.
For example, in reading the appeals decision, it mentions that this fork was not the original fork, it was a replacement fork put in after an accident that Monika had destroying the first. Perhaps minor, but I hadn't seen that fact disclosed in any of the discussion. I wonder what else we might find in the original decision?
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 06:38pm PT
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Reddirt, what is your relation to this case?
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 06:39pm PT
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what's yours to REI?
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 06:42pm PT
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It's a story local to me, been following along with everyone (BC skiers) around here & shocked to learn of further stringing out a really bad situation.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 06:45pm PT
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Since people won't follow a link, pretend like it isn't there, and then accuse everyone who HAS read the link of obfuscating, here is the decision.
Date: 02-07-2011
Case Style: Monika Johnson v. Recreational Equipment, Inc.
Case Number: We reverse and remand.
Judge: Dwyer
Court: Washington Court of Appeals, Division One on appeal from the Superior Court, King County
Plaintiff's Attorney: Robert L. Christie, Jason Marc Rosen and Thomas P. Miller, Christie Law Group, PLLC, Seattle, Washington
Defendant's Attorney: V. L. Woolsten, Perkins Coie, L.L.P., Seattle, Washington and Paul Spencer Graves, Seattle, Washington
Description: The Washington product liability act (WPLA), chapter 7.72 RCW, sets forth a statutory form of vicarious liability whereby a product seller assumes the liability of a manufacturer where a product is marketed under the seller’s brand name. Because permitting the product seller to attribute fault to the actual manufacturer would abrogate this provision of the WPLA, principles of comparative fault do not apply, notwithstanding the possibility that statutory contribution may thereby be precluded. Such a result is not in contravention of our state’s statutory comparative fault system, as commercial entities can themselves contract to allocate liability where the WPLA’s vicarious liability provision applies.
Accordingly, we affirm the trial court’s ruling that Recreational Equipment, Inc. (REI) is not entitled to seek to allocate fault to the manufacturer of the defective product that REI branded as its own. We also conclude that the trial court erred neither by finding REI strictly liable for the injuries caused by the defective product nor by ruling that any third party claim by REI against the manufacturer would be severed for trial.
I
In November 2007, Monika Johnson was riding her bicycle along a downtown Seattle sidewalk when the front carbon fiber fork of the bicycle, which attaches the bicycle’s front wheel to its frame, “sheared from the steer tube suddenly and without warning.” Clerk’s Papers (CP) at 57. The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.
Johnson brought an action against REI pursuant to the WPLA, alleging that her injuries were caused by a defect in the carbon fiber fork. Both the bicycle and the carbon fiber fork, although not manufactured by REI, were marketed under REI’s brand name, Novara. Johnson had purchased the Novara brand bicycle from REI in 2002. In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs.
Johnson did not name the manufacturer of the fork, Aprebic Industry Company, Ltd., as a defendant in the action. REI filed a motion for partial summary judgment, seeking a ruling that it was entitled to ask the jury to allocate fault to Aprebic pursuant to Washington’s comparative fault system, set forth in chapter 4.22 RCW, or, in the alternative, requesting leave to file a third party complaint against Aprebic. In response, Johnson filed a motion for partial summary judgment, asserting that REI was strictly liable for her injuries.
In support of her summary judgment motion, Johnson submitted to the trial court the declaration of Gerald Zaminski, a professional engineer, who examined the bicycle and the carbon fiber fork and destructively tested the fork.
He found that the section of the fork where the fracture occurred “was manufactured using a relatively small number of [carbon fiber] layers.” CP at 106. He concluded that “[t]he small number of carbon fiber layers and their orientation interface resulted in the nucleation and propagation of cracking” and that this cracking “led to the catastrophic fracture and failure of the fork.” CP at 106. According to Zaminski, the thickness of the carbon fiber layering where the fracture occurred was “just a fraction of the thickness of the carbon fiber layup elsewhere in the fork and steerer tube.” CP at 106. He stated that the carbon fiber layers also “displayed voids, gaps, separations, and kinks, which are all indicative of defective manufacturing.” CP at 106. Zaminski also observed that the carbon fiber layers at the point of the fracture were “starved of epoxy,” making them “more susceptible to failure.” CP at 107. Zaminski declared that “[t]he orientation and makeup of the carbon fiber layers can only occur during manufacturing; they are not defects that can occur after the product has been manufactured.” CP at 107.
In response, REI submitted the declaration of David Mitchell, also a professional engineer, who inspected the bicycle and carbon fiber fork. Mitchell asserted that “there is presently insufficient information to rule out the accumulation of prior damage to the front fork as the cause of ultimate fork separation.” CP at 178. He stated that “the nature of the fracture was not determined” and that additional laboratory testing should be conducted, including loading an examplar fork to determine its breaking strength. CP at 177. He also noted that the bicycle itself was “clearly a high mileage vehicle” that displayed “substantial wear and tear.” CP at 176. Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178.
The trial court denied REI’s motion to be permitted to seek to have the jury allocate fault to Aprebic and granted Johnson’s motion for summary judgment on the issue of strict liability. The trial court ruled that “[d]efendant REI has the liability of a ‘manufacturer’ as set forth in RCW 7.72.040(2)(e) and is strictly liable as a matter of law for all damages and injuries that plaintiff REI sought discretionary review of the trial court’s rulings. A commissioner of this court granted discretionary review of the trial court’s rulings on three issues: (1) whether comparative fault principles apply to Johnson’s claims, (2) whether REI is strictly liable for Johnson’s injuries, and (3) whether any third party claim brought by REI against Aprebic should be severed for trial.
II
REI first contends that the statutory comparative fault system adopted by our legislature in 1986 demands that it be permitted to ask the jury to allocate fault to Aprebic for the fork’s manufacturing defect. Because the WPLA expressly provides that REI, by selling the defective product under its own brand name, assumes the liability of the manufacturer, we disagree.
Questions of statutory interpretation are reviewed de novo. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007). Whether the WPLA permits a product seller that brands a defective product as its own to attribute fault to the actual manufacturer is a question of statutory interpretation; thus, we review the question de novo.
Our primary duty in interpreting a statute is to discern and implement legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Where a statute is unambiguous, we derive its meaning from the plain language of the statute. Campbell & Gwinn, 146 Wn.2d at 9-10. Moreover, we must construe statutes such that no provision is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
In 1981, our legislature codified the law of product liability by enacting the Washington product liability act (WPLA), chapter 7.72 RCW. The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2).2 (a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line. In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation. RCW 7.72.040(1). In limited circumstances, however, product sellers are subject to “the liability of a manufacturer,” including where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e).3 The WPLA explicitly provides that “[a] product seller, other than a manufacturer, [has] the liability of a manufacturer” where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). Although, absent this provision, only a manufacturer could be held liable for a manufacturing defect, RCW 7.72.030(2), our legislature has chosen to hold particular product sellers liable for such acts—despite the fact that the manufacturer of the product is necessarily the entity that actually caused the defect where a product is defectively manufactured. Thus, by imposing liability on sellers of branded products for manufacturing defects—which, inevitably, are caused by acts of the manufacturer—our legislature created a statutory form of vicarious liability that enables the claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law & Practice, § 3.1, at 116 (3d ed. 2006) (“In contrast to direct liability, which is liability for breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care.”). Because a seller of a branded product is vicariously liable for manufacturing defects, permitting REI—the product seller liable as the manufacturer pursuant to RCW 7.72.040(2)(e)—to seek to allocate fault to Aprebic—the actual manufacturer of the defective product—would undermine the statutory scheme of the WPLA.
REI incorrectly contends that RCW 7.72.040(2)(e), rather than creating a statutory form of vicarious liability, instead merely imposes on sellers of branded products the liability standard to which manufacturers are held. Thus, according to REI, although product sellers are ordinarily liable only for negligence, breach of an express warranty, or intentional misrepresentation, pursuant to RCW 7.72.040(1), sellers of branded products may also be found liable, pursuant to RCW 7.72.040(2)(e), for design and construction defects, inadequate warnings, or breach of an implied warranty—acts for which generally only manufacturers are held liable. See RCW 7.72.030(1), (2). For this reason, REI argues that it should be permitted to attribute fault to Aprebic. This contention fails for two reasons.
First, had our legislature merely imposed on sellers of branded products the liability standard of manufacturers, as REI contends that it did, the legislature would have engaged in a meaningless act. RCW 7.72.030(2) provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” The statute defines a manufacturer as “a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product . . . before its sale to a user or consumer.” RCW 7.72.010(2).
Here, REI, because it does not design, make, fabricate, construct, or remanufacture bicycle forks, could never be found by a trier of fact to have acted as an actual manufacturer. Thus, it could never be proved to have acted in such a way so as to expose it to direct liability as a manufacturer. Indeed, were it otherwise, the legislature would not have needed to enact RCW 7.72.040(2)(e)—by acting as a manufacturer, REI would be subject to direct manufacturer liability pursuant to RCW 7.72.030(2), rendering RCW 7.72.040(2)(e) superfluous. We will not assume that the legislature, by enacting RCW 7.72.040(2)(e), engaged in a meaningless act. See JJR Inc. v. City of Seattle, 126 Wn.2d 1, 10, 891 P.2d 720 (1995) (“When interpreting statutes, the court must assume that the Legislature does not engage in meaningless acts.”).
Similarly, construing RCW 7.72.040(2)(e) such that a product seller could seek to allocate fault to a manufacturer would render the provision itself meaningless, as the product seller could always avoid the allocation of any fault to it simply by attributing fault to the actual manufacturer. See Whatcom County, 128 Wn.2d. at 546 (noting that statutes must be construed such that all language is given effect and no provision in rendered meaningless or superfluous). Certainly, as a factual matter, where a manufacturing defect is at issue, the manufacturer—not the product seller—actually caused the defect.
Thus, were allocation of fault principles to apply, the manufacturer would necessarily be 100 percent responsible for the defectively manufactured product. Also necessarily, the product seller would avoid all such liability. Such a result would contravene our legislature’s clear intent that a product seller that brands a product as its own assumes the liability of the manufacturer.4
Although RCW 7.72.040(2)(e) does not permit the product seller to seek to allocate fault to the manufacturer, this provision is not inconsistent with Washington’s comparative fault system, set forth in chapter 4.22 RCW. REI argues to the contrary, contending that our legislature, by adopting comparative fault as the general rule for tort liability, endorsed the principle that “every entity responsible for committing a tort should be liable to the plaintiff based on its own individual share of the total fault, no more and no less.” Br. of Pet’r at 16. This overly broad assertion assumes that, by enacting RCW 4.22.070, our legislature eliminated vicarious liability, which it expressly did not do. Indeed, this specific statute itself explicitly retains principles of common law vicarious liability, in that it provides that “[a] party shall be responsible for the fault of another . . . where both were acting in concert or when a person was acting as an agent or servant of the party.” RCW 4.22.070(1)(a). Similarly, the WPLA provision at issue here is a statutory imposition of vicarious liability wherein the seller of a branded product is held liable for the actions of the manufacturer, notwithstanding that the product seller did not actually manufacture the defective product.
Permitting REI to attribute fault to Aprebic would effectively abrogate RCW 7.72.040(2)(e), as the product seller would never assume the liability that the legislature intended the seller to bear where the seller brands the product as its own. “Authority is legion that implied repeals of statutes are disfavored and courts have a duty to interpret statutes so as to give them effect.” Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 122, 691 P.2d 178 (1984).
Because the WPLA and our state’s statutory comparative fault system can be reconciled, we will not hold that our legislature intended, by passing the tort reform act of 1986, to impliedly repeal RCW 7.72.040(2)(e). See Bellevue Sch. Dist., 103 Wn.2d at 123 (“Repeals by implication are not favored and will not be found to exist where earlier and later statutes may logically stand side by side and be held valid.”). We are loathe to find a silent repeal, and we decline to do so here.
Moreover, the fact that a product seller such as REI is not permitted to seek to allocate fault to the product manufacturer does not suggest an oversight by the legislature. Rather, it suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The WPLA presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves. Were we to hold that the WPLA permits REI to attribute fault to Aprebic, we would not only be acting in contradiction to the legislature’s clear intent—we would also be upsetting three decades of reliance on a statute that allows product sellers and manufacturers to themselves determine how best to allocate risk.
REI incorrectly asserts that Washington case law requires that it be permitted to attribute fault to Aprebic. REI cites Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 978 P.2d 505 (1999), for the proposition that comparative fault principles apply in all product liability cases. The plaintiff therein, a motorist injured in a collision, brought a product liability suit against the manufacturer of the snow tires that had been installed only on the vehicle’s front wheels. Hiner, 138 Wn.2d at 251. The snow tire manufacturer raised the affirmative defense of entity liability, “arguing that liability should be shared by the installer of the studded snow tires, the manufacturer of the Goodyear tires on the rear wheels, and the manufacturer of the Hyundai automobile.” Hiner, 138 Wn.2d at 259.
The Court of Appeals affirmed the trial court’s dismissal of the affirmative defense, reasoning that the comparative fault statute permitted a defendant manufacturer to apportion fault only to those entities liable to the plaintiff pursuant to the WPLA. Hiner v. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 736, 959 P.2d 1158 (1998). Our Supreme Court reversed, holding that “[t]he plain language of the contributory fault statute does not limit apportioning fault only to other manufacturers and product sellers in a product liability case.” Hiner, 138 Wn.2d at 264. The court based its reasoning on the broad definition of “fault” set forth in Washington’s comparative fault statute, which states that “fault” includes “acts or omissions . . . that subject a person to strict tort liability or liability on a product liability claim.” RCW 4.22.015.
The Hiner decision is inapposite. In Hiner, the manufacturer of the snow tires sought to attribute fault to other entities that, if found to be at fault, would be liable pursuant to theories of liability different than the theory of liability pursuant to which the manufacturer was liable. Here, REI contends that it should be permitted to attribute fault to another entity that, if found to be at fault, would be liable pursuant to precisely the same theory of liability—“the liability of a manufacturer”—as that of REI. REI, which pursuant to the WPLA has the liability of the manufacturer, seeks to attribute fault to Aprebic based on the theory that Aprebic is the actual manufacturer. Because REI is vicariously liable for Aprebic’s acts, the basis of both entities’ alleged liability is the same. Put another way, in Hiner the fault sought to be allocated was not the same fault. In Hiner, the fault sought to be allocated resulted from different acts; here, the fault sought to be allocated arises from the same acts. Hiner is not inconsistent with the decision we reach today.5
Moreover, the purpose of the comparative fault statute is “that fault be apportioned and . . . an entity be required to pay that entity’s proportionate share of damages only.” Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992). Pursuant to RCW 7.72.040(2)(e), REI’s proportionate share of damages is the full amount of damages. Thus, unlike in Hiner, no apportionment of fault is necessary to ensure that the defendant pays only its share of damages.
Applicable case law further undermines REI’s assertion that it should be permitted to attribute fault to Aprebic. In Farmers Insurance Co. of Washington v. Waxman Industries, Inc., 132 Wn. App. 142, 148, 130 P.3d 874 (2006), we reversed vacation of a default judgment holding Waxman strictly liable as the “manufacturer” of a defective water supply line that was sold under the Waxman trade name. Waxman’s motion to vacate stated that “defects in hoses ‘often’ can be attributed to component parts of the hose manufactured by some other entity.” Waxman, 132 Wn. App. at 146. Waxman further contended that it did not manufacture the allegedly defective water supply line. Waxman, 132 Wn. App. at 146.
We held that Waxman’s evidence was insufficient to support a meritorious defense as required for vacation of a default judgment. Waxman, 132 Wn. App. at 145. Given that a product seller that brands a product under its trade name is subject to the liability of the manufacturer pursuant to RCW 7.72.040(2)(e), we concluded that “[t]he materials submitted by Waxman do not explain how Waxman could avoid a finding of liability simply by proving that some other entity actually manufactured the supply line.” Waxman, 132 Wn. App. at 147.
Furthermore, we determined that “whatever right of indemnity and contribution Waxman may be able to establish against other entities is not a defense to Waxman’s own liability.” Waxman, 132 Wn. App. at 148. The principles we set forth in Waxman support the conclusion that REI may not seek to allocate fault to Aprebic, the manufacturer, where it assumed the liability of the manufacturer. RCW 7.72.040(2)(e) creates a statutory form of vicarious liability whereby the seller of a branded product assumes the liability of the manufacturer. Because permitting such a product seller to seek to allocate fault to the actual manufacturer pursuant to comparative fault principles would undermine our legislature’s intent in enacting this statutory provision, the trial court did not err by concluding that REI could not seek to allocate fault to Aprebic.
III
REI next contends that the trial court erred by concluding that REI is strictly liable for Johnson’s injuries. Specifically, REI asserts that the trial court erred by resolving issues of material fact in favor of Johnson and by finding that the alleged manufacturing defects were the cause of her injuries. We disagree.
“In reviewing a summary judgment order, the appellate court evaluates the matter de novo, performing the same inquiry as the trial court.” Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” CR 56(c). The moving party bears the burden of demonstrating that there is no genuine issue as to any material fact. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). All reasonable inferences must be considered in the light most favorable to the nonmoving party, and summary judgment may be granted only if a reasonable person could reach but one conclusion. Rugg, 115 Wn. App. at 224. A material fact “‘is a fact upon which the outcome of the litigation depends, in whole or in part.’” Lamon, 91 Wn.2d at 349 (quoting Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974)). An affidavit submitted in support of or in response to a motion for summary judgment “does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion.” Rugg, 115 Wn. App. at 224. “ltimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.” Rugg, 115 Wn. App. at 224.
The WPLA provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” RCW 7.72.030(2). A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line. RCW 7.72.030(2)(a). REI first contends that, because the statutory definition of a manufacturing defect requires that the product deviate from the manufacturer’s design specifications or performance standards, Johnson cannot prove that the bicycle’s fork contained a manufacturing defect without submitting to the court direct evidence of Aprebic’s design specifications or performance standards.
REI asserts that “there is no evidence in the record to establish that the fork at issue deviated from Aprebic’s design standards.” Br. of Pet’r at 34. To the contrary, Johnson submitted to the trial court evidence—in the form of Zaminski’s declaration—that the fork fractured due to insufficient carbon fiber layering. This evidence itself supports the conclusion that the fork “deviated in some material way from the design specifications or performance standards of the manufacturer,” RCW 7.72.030(2)(a), as no conceivable performance standard would call for the manufacture of a carbon fiber fork that fractures as Johnson’s did. Although on summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, Rugg, 115 Wn. App. at 224, no reasonable inference can be drawn that a carbon fiber fork that fractures in this way performed in accordance with any manufacturer’s performance standards.6 REI next contends that genuine issues of material fact regarding causation remain, thus precluding summary judgment. However, despite REI’s assertion that the bicycle displayed “substantial wear and tear,” REI does not establish how the fact that the bicycle was a “high mileage vehicle” explains the fracture of the carbon fiber fork. See CP at 176. Thus, the alleged “wear and tear” on the bicycle is not a “‘fact upon which the outcome of the litigation depends.’” See Lamon, 91 Wn.2d at 349 (quoting Morris, 83 Wn.2d at 494-95).
REI further speculates that the 2006 collision, which resulted in damage to the back tire of the bicycle, may have been a contributing cause of the fracture of the fork. However, REI’s evidence does not explain how that collision could have contributed to the fracture. Moreover, REI’s evidence refutes neither Johnson’s expert’s assertion that the insufficient carbon fiber layering is a defect that can occur only during manufacture nor the same expert’s conclusion that this particular defect caused the fork to fracture. Rather, REI conjectures that “f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178. REI cannot rely on speculation and conjecture to raise a genuine issue of material fact. See Rugg, 115 Wn. App. at 224.
The trial court did not erroneously resolve issues of material fact in favor of Johnson. To the contrary, its grant of summary judgment was appropriate because REI failed to raise any genuine issue of material fact as to its liability for Johnson’s injuries.
IV
Finally, REI contends that the trial court erred by ruling that any claim brought by REI against Aprebic would be bifurcated for trial from Johnson’s claim. We disagree.
A trial court’s decision to order separate trials is reviewed for an abuse of discretion. Maki v. Aluminum Bldg. Prods., 73 Wn.2d 23, 25, 436 P.2d 186 (1968) (“The right to order separate trials is a matter of discretion vested in the trial court by the rules.”). Civil Rule 20(b) permits the trial court to order separate trials to prevent delay or prejudice where a party would be delayed or “put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him.” Here, the trial court acted well within its discretion in finding that permitting REI to join Aprebic as a third party defendant would delay and prejudice the adjudication of Johnson’s claim and, thus, ruling that any claim brought by REI against Aprebic should be bifurcated for trial.
Notwithstanding that the trial court acted within its discretion pursuant to CR 20(b), REI contends that the trial court’s bifurcation ruling was erroneous because the court “appeared to be unaware of the impact such bifurcation would have on the viability of REI’s contribution claim.” Br. of Pet’r at 41-42. REI and Aprebic cannot be jointly and severally liable for Johnson’s injuries, as required to establish a statutory right to contribution, unless a judgment is entered against both parties in Johnson’s suit. See RCW 4.22.040 (noting that a right to contribution exists where the parties are jointly and severally liable); RCW 4.22.070(1)(b) (providing that only those defendants against whom judgment is entered may be jointly and severally liable for the claimant’s injuries). Thus, REI contends that the trial court abused its discretion by misapplying the law in issuing a ruling that would compromise REI’s right to seek contribution from Aprebic.
However, notwithstanding that REI may be precluded from seeking statutory contribution from Aprebic, the trial court did not abuse its discretion by misapplying the law. Indeed, this is not the first time that a court has upheld a proper application of the law despite negative consequences for a party’s contribution rights. In Kottler v. State, 136 Wn.2d 437, 439, 963 P.2d 834 (1998), our Supreme Court held that a settling party in a civil tort action is not entitled to seek contribution from another alleged tortfeasor where joint and several liability did not arise pursuant to the exceptions set forth in RCW 4.22.070. Because no judgment had been entered against the settling defendant, and, thus, joint and several liability did not arise, RCW 4.22.040 precluded the settling party from seeking contribution. See Kottler, 136 Wn.2d at 439; RCW 4.22.040 (“A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury.”).
Justice Talmadge wrote separately “to urge legislative attention toward the anomalous result this case requires.” Kottler, 136 Wn.2d at 450 (Talmadge, J., concurring). Although he “agree[d] with the majority’s resolution because the statutory language and our case law compel its result,” Kottler, 136 Wn.2d at 450, Justice Talmadge remarked that it appeared that proper application of the
1981 and 1986 tort reform acts effected a result that contradicted the legislature’s intent in enacting those very statutes. Kottler, 136 Wn.2d at 450. Thus, “[t]o more effectively execute [the legislature’s] intent,” Justice Talmadge implored the legislature to “address[] and correct[] this unfortunate situation in the tort law.” Kottler, 136 Wn.2d at 453. Notwithstanding Justice Talmadge’s appeal to the legislature, it has amended neither the 1981 nor the 1986 act to address this “anomalous result.”
Here, as in Kottler, a result dictated by proper application of the law leads to an “anomalous result” in that REI’s contribution rights are compromised. Here, also as in Kottler, the existence of such an anomaly suggests neither a misunderstanding nor a misapplication of the law. Rather, the trial court here properly understood and applied the law, notwithstanding that REI’s right to seek contribution may have been thereby compromised.
The trial court did not abuse its discretion by ruling that any claim by REI against Aprebic would be bifurcated for trial from Johnson’s claim.7
Outcome: Affirmed.
Plaintiff's Experts: Gerald Zaminski, Engineer
Defendant's Experts: David Mitchell, Engineer
Comments:
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 06:48pm PT
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Ken M.: Reddirt, what is your relation to this case?
Reddirt, you should not answer this or reveal anything about yourself personally. Also don't message him or he will receive your personal email address.
He's more interested in attacking you personally then in having an honest discussion. He will say anything he thinks will make you angry or hurt you.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 06:49pm PT
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GC, that is the APPEALS decision you have copied. You can tell, by the word APPEALS in the first page.
I have suggested it would be good to look at the actual TRIAL decision, where they would have detailed the specifics of the facts. In appeals, they detail the issues of law, not of facts, althought they may be mentioned.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 06:52pm PT
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Disclosure: I have no personal interest in this case. I am a member of REI, but use the stores infrequently, and don't consider myself a booster.
I do have a number of friends who work for one store or another.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 06:57pm PT
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This is turning into a WEIRD thread...
No kidding. I've never seen someone supporting a thread spam it before with a super-long post.
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John Moosie
climber
Beautiful California
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May 22, 2011 - 07:10pm PT
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Its clear to me why he posted the whole thing. He posted a link earlier, but based on questions that have been asked, it appears that few read the link.
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John Moosie
climber
Beautiful California
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May 22, 2011 - 07:14pm PT
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Sh#t happens girl- it is dangerous stuff we play with- if you get the chop it is just part of the game. You don't like it then take up chess and don't climb. There are many dangers we assume and if you don't get that then you shouldn't be climbing.
If I get the chop it is my fault!
Riley, this is just crap. The girl was riding on city streets doing less then 5 miles an hour. Her fork broke, not because of anything she did, but because of poor manufacturing. If a piece of equipment you used broke in a manner it shouldn't have and caused you serious injury, and you discovered through expensive tests that it was poorly manufactured, would you just say.. oh well, its dangerous stuff we do.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 07:15pm PT
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John, I know it's asking a lot, but could you be less vague. I don't really want to go back and read the whole thread, trying to find the specific link you mean, then reading another whole thread or whatever.....
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 07:19pm PT
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Riley, this is just crap. The girl was riding on city streets doing less then 5 miles an hour. Her fork broke, not because of anything she did, but because of poor manufacturing. If a piece of equipment you used broke in a manner it shouldn't have and caused you serious injury, and you discovered through expensive tests that it was poorly manufactured, would you just say.. oh well, its dangerous stuff we do.
I agree with this, pretty much, accepting the assumptions.
The scenario makes no sense to me, but I'm not really interested in trying to parse that at this point. Presumably that was done in the trial that we aren't supposed to see.
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John Moosie
climber
Beautiful California
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May 22, 2011 - 07:26pm PT
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Take a few breaths everyone....
I will if you will.
By the way.. your communicate hasn't been the clearest today. Its also been full of the attacks that you have complained about. Just saying bro.. might want to rewind yourself.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 07:31pm PT
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GC, that is the APPEALS decision you have copied. You can tell, by the word APPEALS in the first page.
No kidding. I've never seen someone supporting a thread spam it before with a super-long post.
No kidding its an "APPEALS decision" That's why everyone has been calling it the "Court of Appeals decision." This has been discussed fairly extensively. How many times do you have to hear "Court of Appeals" before you figue out its what you call an "APPEALS decision."
You accuse people of not posting facts and not posting links, but you don't read posts or links.
I'd already posted a cut and paste excerpt showing the court, parties, and their respective legal counsel. An online version was already linked to by one of the lawyers.
But it was not until I reposted it that you finally got it that it's a Court of Appeals decision. And then two posts later you call it "spam". That is after you all but accuse of "hiding" facts presented in the opinion.
The reason I had to post it was for people like you and Riley.
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Mangy Peasant
Social climber
Riverside, CA
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May 22, 2011 - 07:31pm PT
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The point is that two courts have already sided against REI & they are choosing to draw this out.
Reminds me of another case.
Brown shirks responsibility & appeals Board of Education case
The District Court ruled in favor of the Board of Education, citing the U.S. Supreme Court precedent set in Plessy v. Ferguson, 163 U.S. 537 (1896), which had upheld a state law requiring "separate but equal" segregated facilities for blacks and whites in railway cars.[15] The three-judge District Court panel found that segregation in public education has a detrimental effect upon negro children, but denied relief on the ground that the negro and white schools in Topeka were substantially equal with respect to buildings, transportation, curricular, and educational qualifications of teachers.
They lost the appeal...but still continued to drag it out...
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 07:39pm PT
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Riley, if you go back & read what you wrote & when you wrote it, paying attn to chronology, you will see that you wrote things that can be construed as extremely callous & not factual before you read the facts... and then proceeded to post excerpts out of context.
I suspect that the key is in the sentence 1st engineer that the fork was sent to: "He found that the section of the fork where the fracture occurred “was manufactured using a relatively small number of [carbon fiber] layers.”"
Even in light of the defendant's engineer (rear wheel blah blah, even in light that this is a carbon frame), this suggests poor manufacturing, thus potentially poor due diligence on REI's behalf thus REI's responsibility for the failure.
2 courts seem to see it this way. REI chooses to string it out to a 3rd.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 07:45pm PT
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Common sense is the fork is loose
It wasn't "loose." It broke suddenly and catastrophically. It was to all appearances fine one second and the next second it was broken and Monika was on the sidewalk.
Ms. Johnson never noticed anything amiss or out of the ordinary with respect to the Fork before the accident. (CP 57.) She did not notice any cracks, dings or irregularity in shape. (ld.) From her perspective, the Fork looked completely normal and just the same as a front fork on any other road bicycle. (Id.) Similarly, she did not notice any flaws or irregularity with the performance of the Fork when she rode. (Id.) Ms. Johnson's bicycle did not exhibit any outward signs of damage or defect prior to the November 19,2007 accident. (Id.)
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reddirt
climber
PNW
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Topic Author's Reply - May 22, 2011 - 07:45pm PT
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At what point do you have a pesonal responsiblity to look at your bike?
she had the fork looked at & replaced by REI before the accident.
Even after the accident, REI had her to pay 10K for engineering tests, presumably electron microscopy & such. Perhaps REI thought she'd not fight it & walk away given the cost, a tactic (force petitioner to do time/$consuming work up front) used by, ironically insurance companies.
It came back to bite them in the a$$. They could have chosen an easier route for themselves by backing up their product like they said they would. REI lost. REI chose to apppeal. REI lost again. REI appeals again. Yes it's w/in their right but it sure as hell isn't the right thing to do, business-wise nor morally.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 07:49pm PT
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you wrote things that can be construed as extremely callous & not factual before you read the facts... and then proceeded to post excerpts out of context.
Riley jumped in after 200 posts and without reading anything claimed that there were no facts, blamed everything on the innocent victim. And Ken M. found that the "best thing he ever read."
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 07:53pm PT
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your communicate hasn't been the clearest today
?????
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aspendougy
Trad climber
Los Angeles, CA
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May 22, 2011 - 08:01pm PT
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REI sells so much stuff, like any retailer, it is hard to imagine a system where they could check for manufacturing defects on all their products.
It seems to me the fork manufacturer should be sued and not REI.
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Rankin
Social climber
Greensboro, North Carolina
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May 22, 2011 - 08:09pm PT
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This is turning into a WEIRD thread...
Hahahahahaha. Locker, I think it's been there for awhile. I checked in for the first time in a few days and was shocked to see people still kicking the ball around. Hell, I read the court's opinion because I think it's interesting...but c'mon people. Get a room!
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John Moosie
climber
Beautiful California
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May 22, 2011 - 08:10pm PT
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The problem is you folks can not juggle more then one thought at a time.
Read instead of reacting angrily.
I thought you said you were going to chill out. This isn't chilling out. And the "you" part is offensive because no one knows who you are talking about. So man up and point specifically to whom you mean. I'm tired of guessing.
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Mangy Peasant
Social climber
Riverside, CA
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May 22, 2011 - 08:16pm PT
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why repost w/o posting the extensive preceeding paragraph.... and upstream where it states, "In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs."
No one is disputing that the fork came from REI or that the expert hired by the defense claims that there is was a manufacturing defect.
I don't think anyone here even disputes that claim the fork was a piece of sh#t.
More importantly, no one is disputing that Monika should be reimbursed for the accident. Not even REI.
The question is: whether REI should pay, of the bike manufacturer?
I don't don't see any facts that support the idea REI thinks that she shouldn't get squat from anyone. REI is only arguing that the manufacturer should cut the check, not REI.
As long as she is compensated by the responsible party, then there is justice.
Who is the responsible party? I don't care. I'm not interested enough in product liability law to follow the details. The court will decide.
REI is not arguing that an injured person should not be compensated, they are arguing that the injury should not be compensated with REI's money. They are not trying to deny Monika justice. REI is trying to prevent what they perceive as an injustice against them.
Think about this: If REI pays, then the bike manufacturer (the people who clearly made a few extra bucks by skimping on the materials) won't have to pay.
Is that fair? Is that the "correct" outcome?
Ultimately, what is being disputed in this thread [edit] is the claim that this incident demonstrates that REI engages in unethical business practices.
There's way too much going on here to come to that conclusion based on one story.
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Mangy Peasant
Social climber
Riverside, CA
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May 22, 2011 - 08:25pm PT
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Hahahahahaha. Locker, I think it's been there for awhile. I checked in for the first time in a few days and was shocked to see people still kicking the ball around. Hell, I read the court's opinion because I think it's interesting...but c'mon people. Get a room!
Dude, it's the internet.
It's ST...the home of the "Republicans" thread.
And just because you are only watching doesn't mean you aren't a perv also.
And I'm stuck in an airport...
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 09:42pm PT
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But it was not until I reposted it that you finally got it that it's a Court of Appeals decision. And then two posts later you call it "spam". That is after you all but accuse of "hiding" facts presented in the opinion.
GC, I have read the opinion, and quoted the APPEALS opinion. I have repeatedly asked for the ORIGINAL court opinion, NOT the APPEALS opinion, which you repeatly put up in it's place.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 09:46pm PT
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Even after the accident, REI had her to pay 10K for engineering tests, presumably electron microscopy & such. Perhaps REI thought she'd not fight it & walk away given the cost, a tactic (force petitioner to do time/$consuming work up front) used by, ironically insurance companies.
See, this is where I start to have trouble: Presumably. I am not interested in presuming things. I'd like to see the testimony of the expert, or at least the decision of the court, (NOT APPEALS!), where they should lay it all out.
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Ken M
Mountain climber
Los Angeles, Ca
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May 22, 2011 - 09:54pm PT
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you wrote things that can be construed as extremely callous & not factual before you read the facts... and then proceeded to post excerpts out of context.
Riley jumped in after 200 posts and without reading anything claimed that there were no facts, blamed everything on the innocent victim. And Ken M. found that the "best thing he ever read."
GC, you are really determined to win people to your side, aren't you?
You have someone "jump in after 200 posts"
(here is where you start manufacturing facts)
blames everything on the innocent victim. and Ken M. found that the "best thing he ever read.
No, that is where I praised her asking for facts. Is your argument so weak that you have to lie? Here is my post:
This was the best thing I've read:
Now can someone highlight actual facts of this case?
Because all I have read is that REI this and REI that and they didnt help the poor girl, blah blah blah
You guys are asking us to not buy from REI because a girl fell on her face while riding a bike? A girl who is now dead because she fell off a cornice?
I read that somebody wants to even blame her falling off a cornice on REI.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 10:35pm PT
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I have repeatedly asked for the ORIGINAL court opinion, NOT the APPEALS opinion, which you repeatly put up in it's place.
Huh? I only posted the Wash Court of Appeals opinion once and not in response to your petulant "demands." I posted it for people who hadn't bothered to read it and coudn't be bothered to follow the link, while simultaneously accusing everyone else of not having any facts. The link had been posted earlier by someone else before you joined the thread, but you didn't read that. Again lack of attention to detail.
I've noticed that you spew a lot vitriol, make accusations you can't substantiate and don't contribute anything of value. Why can't you find anything useful to post? Why are you just acting like a helpless baby stamping your feet and demanding things. I've already posted the Wash Court of Appeals and links to both appellate briefs? What have you contributed? You haven't brought anything to the table but hatred and irrational ranting.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 22, 2011 - 10:39pm PT
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Not talking about what you "think," Riley, as I'm not at all clear that that is happening at all. I'm only talking about what you WROTE and how insane and offensive THAT was.
Regarding facts, that's exactly what I supplied. You didn't catch them, though, because you seem to live in some alternate universe where "personal responsibility" means something like rising above causal chains in Godlike fashion.
Here's two FACTS for ya, "bra." One: Monica suffered severe injuries as a direct result of manufacturing defect. Two: in the REAL WORLD we hold said manufacturer responsible for such defects, NOT the victim of such defects.
Chew on those FACTS for awhile and see if a light bulb doesn't come on somewhere in the murk for ya "bra!"
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 10:40pm PT
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Riley jumped in after 200 posts and without reading anything claimed that there were no facts, blamed everything on the innocent victim. And Ken M. found that the "best thing he ever read."
In support I posted Ken M.'s entire message so everything would be in context and the accuracy of this would be self-evident.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2011 - 11:29pm PT
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mad bolter is an utter loon and religious fanatic incapable of rational thought or self examination
Book author, professor of philosophy at a respected college. I've always found his posts to be very rational and intelligent, even when I don't agree with him.
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Ken M
Mountain climber
Los Angeles, Ca
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May 23, 2011 - 12:22am PT
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Huh? I only posted the Wash Court of Appeals opinion once and not in response to your petulant "demands." I posted it for people who hadn't bothered to read it and coudn't be bothered to follow the link, while simultaneously accusing everyone else of not having any facts. The link had been posted earlier by someone else before you joined the thread, but you didn't read that. Again lack of attention to detail.
Is it Graniteclimber, or GraniteBrain? I read every post in this thread, and followed the links to the Appeal, and read every word. I don't need you re-referring me to it, nor posting it. Is that clear? what detail in what I've just written is unclear to you?
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Ken M
Mountain climber
Los Angeles, Ca
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May 23, 2011 - 12:34am PT
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I've noticed that you spew a lot vitriol, make accusations you can't substantiate and don't contribute anything of value. Why can't you find anything useful to post? Why are you just acting like a helpless baby stamping your feet and demanding things. I've already posted the Wash Court of Appeals and links to both appellate briefs? What have you contributed? You haven't brought anything to the table but hatred and irrational ranting.
Well, pardon me for questioning your perfectionness.
However, you are apparently advocating the climbing community take action, based upon what you are posting. I personally find that information wanting, in terms of your assertions.
I also don't know your motives. I've asked for you to disclose your relationship to the case, and you've responded with rude remarks, and cautions others to not respond, also.....while at the same time I was challenged, and did respond.
You appear to be involved in trying to exaggerate an unfortunate situation, and take advantage of a person's death. That is the appearance, I don't know the truth.
Let's just have some transparency and openness, and perhaps I'll be on your side, as well.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 23, 2011 - 12:34am PT
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It is easy to hate big companies and feel bad for hurt people but the reality is often far more complex.
You're starting to sing a bit different tune now, old boy. Finally you are starting to talk about this a bit like an actual tort case, instead of your previous septic-tank-fill: "Her fault she fell on her own face instead of doing a cool shoulder roll."
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 12:57am PT
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My earlier post:
Ken M.:
I have repeatedly asked for the ORIGINAL court opinion, NOT the APPEALS opinion, which you repeatly put up in it's place.
Huh? I only posted the Wash Court of Appeals opinion once and not in response to your petulant "demands." I posted it for people who hadn't bothered to read it and coudn't be bothered to follow the link, while simultaneously accusing everyone else of not having any facts. The link had been posted earlier by someone else before you joined the thread, but you didn't read that. Again lack of attention to detail.
I've noticed that you spew a lot vitriol, make accusations you can't substantiate and don't contribute anything of value. Why can't you find anything useful to post? Why are you just acting like a helpless baby stamping your feet and demanding things. I've already posted the Wash Court of Appeals and links to both appellate briefs? What have you contributed? You haven't brought anything to the table but hatred and irrational ranting
To this post, Ken M. responds:
Is it Graniteclimber, or GraniteBrain? I read every post in this thread, and followed the links to the Appeal, and read every word. I don't need you re-referring me to it, nor posting it. Is that clear? what detail in what I've just written is unclear to you?
I thought I'd made it pretty clear that I'd posted the Court of Appeal opinion ONCE and not repeatedly like you accused me of doing. (And you claim you read every post?)
Also, I thought I made it pretty clear that the Court of Appeals opinion was not posted in response to your "demands." I had Riley more in mind as being able to benefit from it.
I have to say that Riley started out with one of the most ignorant and callous posts that I"ve seen on this thread, but he's been learning and thinking and his post quality is improving. I don't agree with him, but at least he's starting to make a contribution. On the other hand, your posts just went from low to lower.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 01:09am PT
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Let's just have some transparency and openness, and perhaps I'll be on your side, as well.
What I've noticed about you, Ken M. is that you are willing to ignore the facts and arguments, tear into the victim and her friends just to score points against someone you are carrying out a vendetta against. I believe that you really don't care about the facts--it's just about tearing people down you are angry at. I already posted who I was earlier. You can confirm with Klimmer if you do not believe me.
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apogee
climber
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May 23, 2011 - 01:24am PT
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Wow. I thought the drama-queen repetitiveness of polititard threads was over the top.
I stand corrected.
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Ken M
Mountain climber
Los Angeles, Ca
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May 23, 2011 - 01:57am PT
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I believe that you really don't care about the facts--it's just about tearing people down you are angry at. I already posted who I was earlier. You can confirm with Klimmer if you do not believe me
Third time. I am NOT asking who you are. I could not care less who you are. I am asking what your relationship to this case is. Just like I was asked about, and responded.
That would be a fact that I am caring about.
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John_Box
climber
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May 23, 2011 - 03:00am PT
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I don't really even want to post in this thread but here goes. Remember you are talking about a person that was involved in the PacNW ski community and that what you are writing may be read by some very close friends/family of hers. It's just the internet, don't be afraid to be "wrong" and step away from the thread and let the argument die.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 03:08am PT
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I am asking what your relationship to this case is.
Asked and answered. (Caught you! You haven't read every post on this thread like you claimed! I'll bet you missed my post where I described my attitude towards REI also.)
Locker even posted my picture.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 03:21am PT
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The appellate briefs are interesting. Read both REI's and Monika's.
I would love to read the discovery materials, the submissions to the trial court judge and the trial court's opinion. From what's in the appellate briefs, it sure sounds like REI's lawyers really screwed the pooch at the trial court level. How did it come to pass that REI found itself trying to defend itself without it's own analysis of the failed fork!? But it's just speculation without seeing the trial court materials.
Bike was bought in 2002
The first required an entirely new frame and the fork in 2005
REI's lawyers harp on this, but it's not that relevant since it was the fork that failed. She got a brand new fork in 2005 and that was the fork that failed. So while the bike may have suffered wear and tear (including the accident necessitating the new fork), none of that affected the fork. She got it July 2005 and it failed November 2007.
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blahblah
Gym climber
Boulder
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May 23, 2011 - 11:08am PT
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If justice is what was wanted I do not know why the bike manufacturer or the part maker was not listed in the law suit. I think she probably ended up very pissed at REI.
Well REI was the "bike manufacturer" as most people would use that term--it was sold under REI's trademark. I know that my Toyota contains parts made by many different companies, but Toyota is the "manufacturer" of the vehicle from my perspective.
As to why the plaintiff didn't sue the Taiwanese company that made the fork--my guess is that there was no jurisdiction over that company in Washington (or anywhere in the US), or even if there was jurisdiction, suing and then collecting against a foreign defendant can be difficult or impossible. I have no idea what laws in Taiwan may apply, but good luck bringing that suit.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 23, 2011 - 11:50am PT
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Riley, your recent points are much appreciated! It seems to me that those sorts of points and questions are really productive.
I, too, think that the apparent failure rate we're seeing with these forks is abominable. And, yes, how would somebody go after the "manufacturer" if it's not the branding/selling company here in the USA?
Points about Toyota as "manufacturer" also well taken.
My "take" so far is that, regardless of what all the material facts might turn out to be, REI did not handle this well even from a PR perspective! As a manufacturer/distributor, what you want to do in a case like this is tell the injured party: "Without any admission of culpability in this matter, just as a 'good-natured' company, we want to step up and help you get to the facts. Let's start by paying for TWO forensic analyses: one by 'your guy' and one by 'our guy.' Let's see what turns up there. And meanwhile, here's a significant chunk of change to help with your medical bills until we can sort this out. And please accept our sincerest sympathy for your injuries!"
Naive, I know, in our present litigious society. But, seriously, this sort of approach is how I run my company, and I hope we don't lose some of our basic principles as we grow and become more of a "target."
I'd be curious to know how often REI has been sued over product liability issues during the course of its history. I would guess not very often. Recreational gear is amazingly reliable in general.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 06:07pm PT
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But if REI sells Omega link cams that fail is REI liable? Same thing goes for Walmart selling some bad Chinese product or a bad Good Year tire product.
Or is it just the fact that REI had the REI name on the box? Did they in fact? I'm confused about that?
To me this is the KEY point. If REI sells Omega link cams that fail, REI should not be liable, Omega should. Same with Walmart selling a bad Good Year product. No argument from me there.
But Novarra is an REI brand.
Go to google right now and search for "novara rei" but without the quotation marks. Your first result will be this:
Novara bikes for road, mountain and commuting, plus cycling - REI.com
REI makes top-rated Novara bikes for all types of cycling including mountain, road, touring and commuting, plus bikes for designed for women and kids.
http://www.rei.com/brand/Novara - Cached - Similar
Or just click here: http://lmgtfy.com/?q=novara+rei
I find the Toyota analogy persuasive. If you buy a Toyota and then a wheel falls off, should you be able to go after Toyota? What if Toyota tells you that they are not responsible because the bolts that broke were sub-contracted to some firm in Vietnam - should you still be able to go after Toyota, or should start looking on the Net for Vietnamese law firms and hope that you will be able to successfully sue them?
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Ain't no flatlander
climber
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May 23, 2011 - 07:01pm PT
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So the take away from all this: people who abuse bikes shouldn't buy cheap carbon fiber. Multiple crashes after the frame and fork were replaced is the real issue. Not manufacturing defects. Blaming the "evil corporation" is a nice sentiment but really doesn't improve safety or help anyone but greedy lawyers.
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blahblah
Gym climber
Boulder
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May 23, 2011 - 07:44pm PT
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Riley your last post was just a mess.
For starters, there was no jury in this case, as the trial court found that there were no genuinely disputed facts that would require a jury's fact finding ability. The Court of Appeals agreed. Apparently the case is still under appeal to the Washington Supreme Court, but I'm taking other people's word for that--I haven't reviewed the records.
Anyway, the judge would never have met or seen the plaintiff in all likelihood, as there was no trial--the case was decided on written documents (that's essentially what "summary judgment" means, which is what happened in this case).
Further, for better or worse, there is generally no provision for any "third party" examination of the fork: each side has its experts--there are no truly independent experts. Maybe there should be, but that's not how the game is played.
Don't mean to flame you too bad and I'm sure you have some good thoughts on this, but your lack of knowledge of how a lawsuit works causes you to make some crazy, flat-out wrong assumptions about what went on.
Edit--actually after re-reading my post, it doesn't perfectly describe the posture of the case, which is complicated. The case isn't over yet--the trial court made certain, important rulings that were appealed before the case was concluded (that's relatively unusual), and that's where things are now.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 07:56pm PT
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The Toyota analogy is poor.
She bought a Toyota, crashes it, then bought a defective replacement part and places it on her Toyota- say for the purpose of analogy she bought a new frontaxle.
She then got in another accident, a year later, in which she needed more replacement parts- a rear axle.
Then, another year later, the front axle failed.
This is a better match to the facts:
She bought a Toyota, crashes it, then took it back to Toyota for a warranty repair. They replace the front axle.
She then got in a minor accident which caused only a flat tire.
Then, another year later, the front axle failed.
Read pages 3 & 4 here:
http://www.courts.wa.gov/content/Briefs/A01/654632%20Appellant's.pdf
Also read pages 3 & 4 here:
http://www.courts.wa.gov/content/Briefs/A01/654632%20Respondent's.pdf
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Ken M
Mountain climber
Los Angeles, Ca
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May 23, 2011 - 08:05pm PT
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I am asking what your relationship to this case is.
Asked and answered. (Caught you! You haven't read every post on this thread like you claimed! I'll bet you missed my post where I described my attitude towards REI also.)
Graniteclimber, I'm now calling you out for the liar that you are.
Just to be sure, I reread the entire thread. As I accurately remembered, you have never identified your relationship to this case, other than to not answer in various creative ways.
I have to assume that you are doing this for a reason, and it must be somthing that would embarrass you if it were known, or you'd just answer.
So, if you contest me, quote the phrase where you answered. There isn't one, except for your non-answers.
Putz.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 08:18pm PT
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So the take away from all this: people who abuse bikes shouldn't buy cheap carbon fiber. Multiple crashes after the frame and fork were replaced is the real issue. Not manufacturing defects.
Were buyers of the bike aware they were buying a "cheap carbon fiber" fork that wouldn't hold up to hard use, or did buyers think they were getting an REI made "top-rated Novara bicycle?" (Again, REI's marketing line: "REI makes top-rated Novara bikes for all types of cycling including mountain, road, touring and commuting, plus bikes for designed for women and kids." http://www.lmgtfy.com/?q=novara+rei);
How common is it for forks to fail? There were 260 units sold in 2005 (or around there) and by 2009 there were two failures that we know of, both of which resulted in significant injuries. "Injuries reported include a fractured clavicle, broken teeth, facial damage and head injuries." I didn't see anything saying that Monika broker her clavicle, so that must have happened to the second person.
2 out of 260 -- Is this a high number or a low number for bicycle forks? I'm asking because I don't know. This isn't my thing. A lot of my friends ride but none of them have mentioned anything about breaking a fork.
http://www.cpsc.gov/cpscpub/prerel/prhtml09/09234.html
Office of Information and Public Affairs Washington, DC 20207
FOR IMMEDIATE RELEASE
June 2, 2009
Release # 09-234 Firm’s Recall Hotline: (800) 426-4840
CPSC Recall Hotline: (800) 638-2772
CPSC Media Contact: (301) 504-7908
Bicycles Recalled by REI Due to Fork Failure
WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.
Name of Product: 2005 Novara Trionfo Bicycles
Units: About 260
Distributor: Recreational Equipment Inc. (REI), of Kent, Wash.
Hazard: The fork can separate from the steerer tube which can cause the rider to lose control, posing a fall hazard.
Incidents/Injuries: The firm has received two reports of forks separating causing riders to fall. Injuries reported include a fractured clavicle, broken teeth, facial damage and head injuries.
Description: This recall involves 2005 Novara Trionfo bicycles with Aprebic carbon fiber forks. The bicycles are blue and white with black forks, and have the name “Novara” printed on the bars.
Sold at: REI retail stores nationwide from January 2005 through August 2006 for between $720 and $1,900.
Manufactured in: Taiwan
Remedy: Consumers should immediately stop using the recalled bicycles and return them to an REI retail store a free repair.
Consumer Contact: For additional information, contact REI at (800) 426-4840 between 7 a.m. and 2 a.m. ET Monday through Friday, or visit the firm’s Web site at www.rei.com
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apogee
climber
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May 23, 2011 - 08:28pm PT
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Hey, gc, it seems like your MO in this ridiculously long and repetitive thread is to keep it on the front page as long as possible.
Suggestion: just type 'Bump'. It'll save you a lot of typing.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 08:35pm PT
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Hey, gc, it seems like your MO in this ridiculously long and repetitive thread is to keep it on the front page as long as possible.
Apogee, that's funny coming from someone who just posted to the 8,000+ post Death of the Republicans Wrong Thread and various other ridiculously long and repetitive politard threads.
Date Forum Topic Author
May 23, 2011
05:28pm PST REI shirks responsibility & appeals Monika Johnson case
Hey, gc, it seems like your MO in this ridiculously long and repetitive thread is to keep it on the front page as long as possible. Suggestion: just type 'Bump'. It'll save you a lot of typing.... apogee
May 23, 2011
02:38pm PST Death of the Republicans Wrong Thread
"But we have today a generation of spoiled brats, all brought up within the benefits of capitalism, whining about how bad it is." Really? 'all of them' are spoiled brats? Don't you think that's a hyperbolic oversimplification? After all, you and the rest of the Repubs are part of that all, you kn... apogee
May 23, 2011
01:38pm PST My prom date is poor... (OT)
Now this thread is gonna get some legs.... Credit: apogee ... apogee
May 23, 2011
01:27pm PST Death of the Republicans Wrong Thread
suap, not sure I ever saw an answer to this question regarding the NR article you posted: So, suap...do you really feel the same way? That capitalism has bred a bunch of selfish, spoiled brats and that it is a woefully misunderstood system that has brought our society nothing but positive gains?... apogee
May 23, 2011
01:12pm PST would you TRUST these rap anchors?
"Also as far as the low inpact, webbing and tat will hopefully flush out after a few flash floods while bolts (possibly useless) will remain for much longer." Flush out to where? They don't just dissolve into nothing. Just about any kind of passage through technical terrain is going to involve... apogee
May 23, 2011
12:24pm PST Death of the Republicans Wrong Thread
Looks like Pawlenty is out of the gate... http://www.cnn.com/2011/POLITICS/05/23/pawlenty.announcement/index.html Credit: apogee ... apogee
May 23, 2011
12:19pm PST Death of the Republicans Wrong Thread
Credit: apogee A Higher Standard Discourse that assumes Americans have a brain between their ears. Credit: apogee ... apogee
May 23, 2011
11:57am PST Obama is finished
Credit: apogee A Higher Standard Discourse that assumes Americans have a brain between their ears. Credit: apogee ... apogee
May 23, 2011
11:47am PST Obama is finished
Credit: apogee Fiscally Responsible. Making the GOP look like a bunch of drunk teenagers with their daddy's credit card. Credit: apogee ... apogee
May 23, 2011
11:40am PST Obama is finished
Credit: apogee Strong on Defense. Making the GOP look like whining pussies.... apogee
May 23, 2011
11:37am PST Death of the Republicans Wrong Thread
Credit: apogee Fiscally Responsible. Making the GOP look like a bunch of drunk teenagers with their daddy's credit card. Credit: apogee ... apogee
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blahblah
Gym climber
Boulder
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May 23, 2011 - 08:45pm PT
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Apogee's brilliant contribution to this thread was the following:
As a dedicated REI hater, I'd love to pin this on them, but in this case, MH & JE nail the reality right between the eyes.
If you want to hate anyone in this tragic situation, hate the insurance industry.
There was never any evidence whatsoever that an insurance company was involved in settling the claim against REI or directing the litigation.
There's plenty of evidence to the contrary--that REI itself and not an insurance company is in charge of the case (to wit, the involvement of Perkins Coie, a law firm in thick with REI--there are other reasons that let me to suspect that REI was handling this directly, but the Perkins Coie connection is all you need to know.)
Apogee--maybe you're happy to both be and remain ignorant of what's going on here, but others want to discuss it, maybe learn something, maybe share what they know. So take a hike if you're not interested.
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Mangy Peasant
Social climber
Riverside, CA
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May 23, 2011 - 08:46pm PT
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gc, don't you know?
apogee is the self-appointed ST thread moderator - he alone determines a thread's merit.
No matter what you think of REI - it still has some relationship to climbing.
Floyd Landis and Lance Armstrong on the other hand....
EDIT: BTW, hating an entire "industry" that provides such a basic service as insurance is idiotic. I have no doubt every one of us can tell a few stories about friends and acquaintances that would have been financially devastated if it weren't for the insurance industry. I can name a few thousand in the midwest right now...
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Gene
climber
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May 23, 2011 - 08:50pm PT
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I wonder which will last longer, this thread or the legal process.
Anyone have anything new to add?
g
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apogee
climber
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May 23, 2011 - 09:05pm PT
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Bump!
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Mangy Peasant
Social climber
Riverside, CA
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May 23, 2011 - 09:10pm PT
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Are we gonna get another "DELETE THIS THREAD" tantrum?
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Gene
climber
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May 23, 2011 - 09:14pm PT
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Are we gonna get another "DELETE THIS THREAD" tantrum?
No. Anyone have anything new to add?
g
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klk
Trad climber
cali
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May 23, 2011 - 09:17pm PT
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this thread is worse than bleak house
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Mangy Peasant
Social climber
Riverside, CA
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May 23, 2011 - 09:20pm PT
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Gene, my question wasn't directed at you.
As for your question: "Anyone have anything new to add?"
Why not ask the same in all the other threads where folks just banter?
The forum is just a place to shoot the sh#t. Occasionally we learn something.
Just like most conversation.
EDIT: See, I just learned something: http://en.wikipedia.org/wiki/Bleak_House
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 09:45pm PT
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There's plenty of evidence to the contrary--that REI itself and not an insurance company is in charge of the case (to wit, the involvement of Perkins Coie, a law firm in thick with REI--there are other reasons that let me to suspect that REI was handling this directly, but the Perkins Coie connection is all you need to know.)
I agree with you, blahblah. This is speculation, but the best explanation of how this came to be bungled so badly may be that REI was self-insuring and then tried handle this internally at first. After they realized they were in over their heads they ran to Perkins Coie, but it was too late.
I don't know what insurance REI has or does not have, but there are a lot of companies out there which do not carry proper insurance. REI many not have even thought of itself as not being a "manufactuer" and may have believed it didn't need product liability coverage.
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apogee
climber
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May 23, 2011 - 10:01pm PT
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Bumpity!
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Mangy Peasant
Social climber
Riverside, CA
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May 23, 2011 - 10:06pm PT
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Get ready! Full on tantrum is imminent...
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 23, 2011 - 10:15pm PT
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Granite- the tire was not flat it was replaced and it was an auto vs bike accident.
Her words- minor accident- but she was hit by a car.
I posted links to BOTH REI's and Monika's appellate briefs with the page numbers. Here they are so you don't have to backtrack.
From Monika's brief:
Ms. Johnson was involved in a very minor accident on the bike on September 13, 2006. (ld.) The bike only sustained a flat front tire. (Id.)She took the bike to REI and the technician there fixed the flat tire, inspected the bike, and found no other damage. (Id.) The accident was so minor, the front wheel did not even need to be re-trued. (Id.) Aside from this minor accident, the bike did not sustain any damage of any kind between the rebuild in 2005 and November 19, 2007. (Id.) There is no evidence that indicates otherwise.
It does not help REI that after this accident, Monika took it REI for inspection and repair and REI didn't find any problems other then the flat tire. So for them to claim that the fork was damaged in the accident and needed replacing they would have to be negligent in their inspection of it.
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apogee
climber
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May 23, 2011 - 10:45pm PT
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By any chance, R Wyna/gc/M Peasant/et. al., are you one of those former REI employees who left the company under unfortunate or embarassing circumstances?
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madbolter1
Big Wall climber
Walla Walla, WA
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May 23, 2011 - 10:50pm PT
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The only problem with the "smoking gun" is that the gun is in REI's hands. If she took the bike back to REI for inspection, and they signed off on it, claiming no apparent damage, then from a legal perspective, they were "the last one to see the fork alive."
I don't see how REI gets out of that post-accident inspection. But, this case has more twists and turns than a gopher snake on acid.
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Mustang
climber
From the wild, not the ranch
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May 23, 2011 - 11:02pm PT
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Pretty sure this case falls under the FTC, Uniform Commercial Code, U.C.C. article 2.
"Implied Merchantability"
Seller basically enters into a binding contract with buyer that implies the item sold, whether it is food, or goods, intrinsically will not harm the user when the item used or consumed within ordinary use.
http://www.caddenfuller.com/CM/Articles/Articles34.asp
short and succinct.
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madbolter1
Big Wall climber
Walla Walla, WA
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May 23, 2011 - 11:58pm PT
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Read excerpt from the brief a few posts above, Rile. REI inspected the bike and found no other damage. If said inspection and the "no other damage" report is in fact substantiated, the "smoking gun" IS in REI's hands.
It is often the case that careful reading before talking/writing can save you from spewing your own nonsense. Highly recommended!
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 24, 2011 - 12:04am PT
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Granite- that is interesting.
I had read a back tire...
And read other arguments to to effect..
Monika's brief says it was the front wheel but the Court of Appeals decision mentions a report that says it was the back wheel. That may have been where you saw that.
See p. 4 http://www.courts.wa.gov/opinions/pdf/65463-2.pub.doc.pdf
Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “if an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 17
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John Moosie
climber
Beautiful California
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May 24, 2011 - 12:06am PT
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I don't understand why you guys seem to be blowing off the report that Monika paid for. The one that said there was insufficient glue and layers of carbon fiber.
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JEleazarian
Trad climber
Fresno CA
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May 24, 2011 - 02:08am PT
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This thread fascinates me. A lot of REI defenders are normally in the "businesses are bad" camp, and a lot of REI deteractors, like me, are normally in the "businesses are good" one.
Was Perkins, Coie in this case from the beginning? The resaon I ask is that I've worked with them in several matters, and they are first-rate lawyers who, I suspect, also have first-rate billing rates. Insurance companies are notorious for paying low hourly rates, and often (though certainly not always, in a lower-rate area like Fresno) get what they pay for.
I've seen several defendants win tort cases on summary judgment, but very seldom have I seen a plaintiff do so. Aside from the issue of REI standing behind its products and services, it sounds to me like REI also got out-lawyered. It's inconceivable that they had no evidence to present on the summary judgment motion to dispute a finding of a defective product on a used bicycle. If they really thought it wasn't their fault, but failed to present their evidence in response to the summary judgment motion, someone was asleep at the discovery switch. I wouldn't expect Perkins, Coie to be asleep there or then.
Just curious, so I'll read the appellate briefs to see.
John
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Mangy Peasant
Social climber
Riverside, CA
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May 24, 2011 - 07:54am PT
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By any chance, R Wyna/gc/M Peasant/et. al., are you one of those former REI employees who left the company under unfortunate or embarassing circumstances?
John, so you've decided to join the circle jerk?
Never worked there, rarely shop there (read the whole thread next time.)
So how about some disclosure from your end John - are you perhaps in a similar line of business as REI?
Dave
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Ain't no flatlander
climber
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May 24, 2011 - 10:40am PT
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I don't understand why you guys seem to be blowing off the report that Monika paid for. The one that said there was insufficient glue and layers of carbon fiber.
Because you can get a paid expert to find any conclusion you want. Doesn't mean it's correct. I'm sure the same expert would say our carabiners are under-designed for climbing too.
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blahblah
Gym climber
Boulder
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May 24, 2011 - 11:02am PT
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Riley, perhaps this is the section of REI's brief to which you're referring:
Johnson purchased the fork over two years before the accident.
During that time, the bicycle was struck in traffic by a moving car. As
Mitchell testified by declaration, this case involves "a bicycle that had
been subjected to substantial use and abuse. It was clearly a high mileage
vehicle displaying substantial wear and tear[.]" (CP 176.) The bicycle
"exhibited significant wear and lack of maintenance." (Id.) At the time
the trial court decided the causation issue as a matter of law, there was
"insufficient information to rule out the accumulation of prior damage to
the front fork as the cause of the ultimate fork separation." (CP 178.)
Under these circumstances, the trier of fact should have been permitted to
weigh the conflicting evidence and decide how an ordinary consumer
would expect a carbon fiber fork to perform after it had been subjected to
heavy use and abuse for more than two years, including a traffic accident
in which it was struck by a moving car. Taking that issue away from the
jury was clear error.
(That's from REI's Sep. 27, 2010 brief, p. 39).
What's going on is that REI is arguing that it should have been allowed to argue causation to a jury, but was not allowed to do so because the judge decided that issue on summary judgment.
There's been no jury in this case because there's been no trial yet--so far, the judge has been deciding certain issues as a matter of law, and the Court of Appeals has upheld those decisions. I can see how the brief makes it seem like there is in fact an existing jury (the reference is to "the jury"), but that's not the case.
If the parties don't settle, there will be a trial to determine damages, and that will be decided by a jury (assuming either party asked for a jury--plaintiff, at least, almost certainly did). Remember most cases settle, even after there has been some preliminary litigation.
Unfortunately, it doesn't seem that Washington puts pleadings from its trial courts online, so the only way to get more insight as to whether Perkins Coie was handling the case from the beginning, etc., is to contact the court and get copies of desired pleadings. That's not particularly difficult, but it's not free and is a bit of a time suck.
If I'm wrong and we can get pleadings from the trial court online for (for free or nominal cost), someone let me know--I'm sure we can have hundreds of new and interesting posts after we review those docs!
(I do have a bit more sympathy for REI after reading its appellate brief, and I can't say I really have a good handle on why the judge decided this case in light of REI's seemingly reasonable request for discovery. But I didn't read Monika's brief, and reading just one side's brief is a terrible way to get a handle on what' going on.)
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apogee
climber
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May 24, 2011 - 12:37pm PT
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MP, believe-you-me, if I had had access to my computer somewhere near the start of this thread, I'd have been right in there...at least for a while. At this point, though, this thread (like so many others, esp. my beloved polititard threads) has become a(nother) pointless circular rant.
My background, you ask? Well, I have a longstanding history here at ST of championing the smaller, local outdoor retailer, and US/Canadian/etc.-made outdoor retail products in general. I have been involved in the outdoor/adventure education industry for most of my professional life. As many here can attest, I have been a detractor of the advent of big-box outdoor retail, offshore manufacturing, and the dilution of the ideals of adventure education, and there are lots of posts here that illustrate this.
Ironically, from what I can glean from the few objective facts that have been presented in this thread, combined with the rational, qualified legal views of a very few (JE & KM), I find myself somewhat in REI's corner on this one- an odd place to be for me. The fact is that even the REI big-box is relatively small potatoes in the realm of the insurance industry, and the norm for liability cases is for the insurance company to manage the legal interactions, and make the decisions about whether/how to pursue or defend against litigation. This is unfortunate, because even an organization (the insured) with the highest ideals will be pushed aside as the issue is taken from their hands by the insurance company. Even if REI had wanted to take a different approach with Monika (and they may well have), it was a moot point.
At this point in this thread's life, I get the distinct impression that there is an underlying anti-REI motivation that is driving this exercise in dead-horse-beating and wild-assed uninformed speculation. This happens here at ST from time to time, and there are a few (yep, myself included) who have had unfortunate professional or employment histories with REI who jump at the chance to be REI-hatin' when given the chance. The persistence of some of these posters brought me to ask about their backgrounds, as this thread now seems to be driven by some unstated, underlying motivations.
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JEleazarian
Trad climber
Fresno CA
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May 24, 2011 - 02:06pm PT
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Mangy Peasant,
I gave my opinions about REI much earlier in this thread. To spare you trying to find it, I resent its yuppification, and its second-rate selection of climbing gear -- particularly at their Fresno store. I'm an econometrician, but I also practiced law for about 30 years, and have been involved in plenty of summary judgment motions in the commercial law context.
Again, the issue to me isn't in the courtroom. For whatever reason, REI didn't do the discovery it should have soon enough, and the trial court granted summary judgment on liability in the plaintiff's favor. The Court of Appeals affirmed, and the case may or may not be heard by the Washington Supreme Court. Denial of a continuance to obtain additional discovery is in the discretion of the trial court, and REI has a very difficult road to travel on appeal.
The issue remains whether REI was standing behind its product both before the suit, and in the suit. To me, saying "yeah we sold it, but it wasn't our fault that it broke" is a rather weak endorsement of its product. If exotic forks have a very brief service life, REI should say so. If not, it should man up.
John
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blahblah
Gym climber
Boulder
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May 24, 2011 - 03:05pm PT
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For whatever reason, REI didn't do the discovery it should have soon enough, and the trial court granted summary judgment on liability in the plaintiff's favor. The Court of Appeals affirmed, and the case may or may not be heard by the Washington Supreme Court. Denial of a continuance to obtain additional discovery is in the discretion of the trial court, and REI has a very difficult road to travel on appeal.
That's hard to say--as an interesting plot twist, the Court of Appeals refused to address the discovery issues at all:
REI additionally contends that the trial court erred by denying REI’s request to conduct additional discovery prior to the summary judgment ruling. Because discretionary review was not granted on this issue, we will not reach it. City of Bothell v. Barnhart, 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (noting that, pursuant to RAP 2.3(e), the appellate court may specify the issue or issues as to which discretionary review is granted), review granted, No. 84907-2
(Wash. Nov. 3, 2010).
(The above is from n.7 of the Court of Appeals decision.)
So while I agree that the trial court found that REI didn't timely conduct the discovery it later claimed that it wanted to take, I don't think it's quite accurate to say that Court of Appeals affirmed the trial court on that point. But I do agree that an appeal on the basis that the trial court abused it's discretion re: discovery sounds like a long shot.
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Mangy Peasant
Social climber
Riverside, CA
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May 24, 2011 - 05:55pm PT
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John E: My last question was actually for apogee (another John), but I appreciate your response.
I understand what you mean about "yuppification" - I get that sense as well when I'm in an REI these days, but I try and remind myself not to be bothered by these sorts of superficial things.
Apogee: Thanks for your response as well. I think we are actually in violent agreement on this one.
This thread definitely got carried away with some folks playing amateur lawyer. People like to do that. It's fun. Perhaps it contributes to a little "clutter" on ST's front page, but we're plenty used to that.
I'm not really so interested in the legal/courtroom aspect of the issue.
My issue with the OP's original posting is this:
There are really two cases going on here. One is a complicated legal case involving outsourced manufacturing, insurance companies, etc. REI will probably lose. They will pay compensation as required by law, and justice will be served, as best it can be by financial compensation in these situations.
The other "trial" going on here is one that the OP is attempting to manufacture by trying REI in the court of public opinion. Like I said earlier: The OP accuses REI of being an unethical organization, gives one side of the evidence, issues the verdict, and expects all of us to carry out the sentence (by not shopping at REI.) I don't think this is an appropriate way to present this situation.
As a juror in the court of public opinion - we all get to decide in this court - I see plenty of "reasonable doubt" regarding REI's "guilt" to the charges of lack of ethics. So, until I see evidence of a pattern of greed/corruption/callousness from REI in other situations as well, my attitude toward the chain isn't going to change. I believe others should apply the same standard.
Dave
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John Moosie
climber
Beautiful California
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May 24, 2011 - 06:33pm PT
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(by not shopping at REI.)
She did no such thing. This is the third time you have overstate her position. I think the title of the thread is inflammatory, but her posts have not been. She did go after Riley, but I believe that was out of frustration at all the times she has been sneered at on this thread. And by how many different people, including you, have overstated her position.
At no point can I find anyplace where the OP suggest that you do anything other then come to your own conclusion. She stated her position, you are free to state yours. Argue her point that REI has shirked its responsibility, but don't put words in her mouth, don't belittle her just because you disagree with her, and stop the nonsense that only a lawyer could understand this. Rankin started out with a good cogent point, but then added in that the OP was childish. You have implied more then once that only a lawyer could understand this. And so have others with snide comments such as "jailhouse lawyer".
The funny part was that Rankin boiled this down and put it into words that anyone could understand, and yet we are suppose to think that only a lawyer could understand this.
I started out agreeing with Reddirt, but Atch brought up a good point and I now I have some misgivings. I still think REI has dropped the ball until I hear from them that they made an offer that was refused. But this accident happened in 2007. How long does it take for them to get an expert to figure any of this out?
REI bills itself as a co op. Its not really, but thats how it portrays itself. If it is a co op, then its members should have a say in how it handles itself. I can't come to a conclusion about what I think about this situation, until I understand it better, but I do know that overstating the OPs position serves nothing.
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Rankin
Social climber
Greensboro, North Carolina
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May 24, 2011 - 07:18pm PT
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And just because you are only watching doesn't mean you aren't a perv also.
Pretty funny Mangy, but I'm not only watching. I have made contributions to the discussion. Just don't think there is much more to be said. I think it's hilarious how people get so wrapped up in a thread that mostly consists of repetitive bickering. Has anyone posted a photo of someone beating a dead horse yet? If not, they should.
Also, I'm not a "perv." But if I was, this would be last place I'd come. I stop by occasionally to see if:
(a) anyone I know has croaked; or
(b) one of my heroes has something to say (eg Largo, WBraun, Mark Hudon, etc); or
(c) Russ Walling is still the funniest human alive (I know that he is, but I like to check); or
(d) God forbid, there is actually a cool thread about climbing
Just in case you missed it, perving is not on the list. However, if there is an influx of hotties posting pics, this could change. :)
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 03:23pm PT
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here are really two cases going on here. One is a complicated legal case involving outsourced manufacturing, insurance companies, etc. REI will probably lose. They will pay compensation as required by law, and justice will be served, as best it can be by financial compensation in these situations.
The other "trial" going on here is one that the OP is attempting to manufacture by trying REI in the court of public opinion. Like I said earlier: The OP accuses REI of being an unethical organization, gives one side of the evidence, issues the verdict, and expects all of us to carry out the sentence (by not shopping at REI.) I don't think this is an appropriate way to present this situation.
As a juror in the court of public opinion - we all get to decide in this court
This describes the situation.
We each get to decide. I do not think they are worse than other organizations, but they are not as good as they would have us believe. In other words, they are just another big amoral corporation, no worse than their competitors, but probably not worse either.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 03:47pm PT
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I sent this to REI:
Hi, I've read a lot about REI's litigation with Monika Johnson.
Is REI in control of its own defense of this, or is an insurance company in the driver's seat?
Thanks!
REI' response:
Monika Johnson was highly regarded in the outdoor community, a member of the REI community, and a dear friend of many REI employees. Please know that we have expressed our condolences to Monika's family.
The issues addressed in any lawsuit are often complex and sometimes, as is the case here, have broad impacts beyond just the parties. I’d like to stress that REI's appeal is not about the amount of money Monika's estate should receive through either a trial or a settlement. Instead, it is about the degree to which responsibility should be shared between a private label seller, like REI, and the manufacturer who designed and made the bike component. REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible.
As we have since REI was founded in 1938, we stand behind our products, and we are committed to acting in accordance with the co-op’s values. We have kept those values front and center throughout this case, and we will continue to do so through final resolution. I can assure you that REI will do the right thing.
This is similar, if not identical, to the responses that other people have gotten when asking about the case.
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atchafalaya
Boulder climber
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May 25, 2011 - 04:02pm PT
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"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are usually irrelevant once the lawyers get involved.
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Fat Dad
Trad climber
Los Angeles, CA
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May 25, 2011 - 04:07pm PT
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I'm clearly really late to this thread but, as a former products liability associate at a large firm, I can comfortably say that this discussion would have been moot had it happened in CA since the product liability cases here permit the injured party to sue anyone in the manufacturer/retail chain. At least that was the case the last time I checked (though that was probably a good 15 yrs. ago).
The policy behind that theory is that the injured party shouldn't have to conduct extensive discovery to determine who is at fault. Since all the entities in the chain benefitted from the purchase, any or all can be properly named as a defendant. If one party in the chain is truly at fault for the injury, then that defendant has a right to cross claim and sue them for indemnification.
Edit:
"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are uually irrelevant once the lawyers get involved. Kind of a riduclous comment. The whole post, not just the quotes. Still, what the quoted sentence really means is that she was demanding too much. End of story.
Also, good lawyers represent their clients. Even when he or she has a good case, ironically, that plaintiff can present the biggest obstacle to resolution--unrealistic expectations, failing to respond to requests for information, changing their version of the events, saying completely different things at depo and trial than what they've consistently said sitting in your office, etc. While some plaintiffs are deserving of your sympathy, it's important to remember that they went to a lawyer because they wanted MONEY.
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JEleazarian
Trad climber
Fresno CA
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May 25, 2011 - 04:18pm PT
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Also, good lawyers represent their clients. Even when he or she has a good case, ironically, that plaintiff can present the biggest obstacle to resolution--unrealistic expectations, failing to respond to requests for information, changing their version of the events, saying completely different things at depo and trial than what they've consistently said sitting in your office, etc. While some plaintiffs are deserving of your sympathy, it's important to remember that they went to a lawyer because they wanted MONEY.
Truth. Some of my biggest battles in my 30 years of practice were trying to get clients to act reasonably (or sometimes to act at all). There's a saying in the legal profession: No client ever lost a case, and no lawyer ever won one.
That's obviously from a client's perspective.
John
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 04:40pm PT
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"REI would have preferred to resolve Monika’s case early on, but circumstances beyond our control made this impossible."
That means an unreasonable demand from the unreasonable lawyers representing plaintiff. Remember, this aint about Monika. The plaintiffs are uually irrelevant once the lawyers get involved.
Atcha, remember there are two sides to this. It could mean an unreasonable demand from unreasonable lawyers representing the plaintiff, but it could just as likely mean an unreasonable offer from unreasonable lawyers representing the defendant.
Or, if an insurance company is involved, it could mean that REI wanted to settle on terms different from that allowed by the insurance company.
Edit: Also, REI claims that it is not about the money but about the precedent. If we believe them, then it's not about there being an unreasonable demand. See my next post.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 25, 2011 - 04:47pm PT
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The issues addressed in any lawsuit are often complex and sometimes, as is the case here, have broad impacts beyond just the parties. I’d like to stress that REI's appeal is not about the amount of money Monika's estate should receive through either a trial or a settlement. Instead, it is about the degree to which responsibility should be shared between a private label seller, like REI, and the manufacturer who designed and made the bike component.
If this is really an important issue to REI, and they stress that it is, then they should not have pushed the matter in such a way as to create a court of appeals precedent against their position. There is a reason why the bigger more sophisticated companies often prefer to pay what it takes to settle out of court via confidential settlement agreements.
If you believe REI's official statement on this, overturning the precedent is more important to them then any amount of cash they might need to settle the case. But it was the appeal by REI' that created the precedent. There was nothing directly on point before and now they have a published Court of Appeals decision.
They screwed the pooch on this one, and their appeal to the Supreme Court is a "Hail Mary" pass at trying to do damage control.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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Nov 16, 2012 - 10:24pm PT
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Did REI lose their appeal?
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apogee
climber
Technically expert, safe belayer, can lead if easy
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Nov 16, 2012 - 10:37pm PT
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REI lost their appeal a looooong time ago.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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Nov 16, 2012 - 11:13pm PT
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What did Monika win? Well, not Monika, because she is dead, but her family?
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atchafalaya
Boulder climber
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May 21, 2013 - 07:09pm PT
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zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz...
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 21, 2013 - 07:43pm PT
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Thanks for posting that. Don't be fooled by atchafalaya's fake snoring, he's more interested in this then most.
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Pennsylenvy
Gym climber
A dingy corner in your refrigerator
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May 21, 2013 - 08:59pm PT
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REI invading Flagstaff.....so they say. Seems the 3 very active (viable??) downtown businesses are outdoor shops. I wonder what goes on behind closed doors in city coucil meetings. Seems they trade sales tax revenue directly for anything. Mixed feelings at best after seeing big box after big box move in.
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couchmaster
climber
pdx
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May 21, 2013 - 10:55pm PT
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Interesting thread revival Dane. Did they settle? I see the earlier case.
Johnson v. R.E.I., in the Court of Appeals of the
State of Washington (Case No. 65463-2-I, February
7, 2011).
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RDB
Social climber
wa
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May 21, 2013 - 11:20pm PT
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Turns out this is a much hotter topic than I ever thought it might be. The aftermath will be interesting.
Sadly, we all should be attentive.
REI? Black Diamond? Responisble corporate citizens? Your decision.
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10b4me
Ice climber
Soon 2B Arizona
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May 21, 2013 - 11:55pm PT
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I am an ex REI employee, and glad to be. Everyone who thinks REI is a great company needs to get their head out of the sand.
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RDB
Social climber
wa
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May 22, 2013 - 01:09am PT
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ouch!
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Dapper Dan
Trad climber
Menlo Park
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May 22, 2013 - 01:43am PT
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RDB , is that a broken REI bike ?
At this point , doesn't the consumer bear much of the responsibility for any injuries sustained on their shity bikes ? I mean some cursory research and an Internet search will alert you to previous issues and complaints with their bicycle line . So I don't see what the point of showing another broken bike is ... inform me .
Doesn't that make you dumb for purchasing it ...?
Just curious .
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 04:25am PT
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This is the link to use:
http://www.komonews.com/news/local/REI-defends-reputation-despite-claims-of-broken-bikes-and-injured-riders-208380251.html
even though REI sells the Novara brand bike as its own, the member-owned co-op argued any alleged defects were the responsibility of the Taiwan manufacturers.
Imagine that your new iPad was defective and the guy at the Apple Store says, "Sorry it's the Chinese-made screen. It's not our problem--go to China and sue the company that we hired to build the screen for us."
Imagine that your new No. 4 Camalot was defective, causing your partner to deck and Black Diamond said, "Not our problem. Go to China and sue the company we contracted with to build it."
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beaner
Social climber
Maine
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May 22, 2013 - 05:35am PT
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Imagine that your new No. 4 Camalot was defective, causing your partner to deck and Black Diamond said, "Not our problem. Go to China and sue the company we contracted with to build it."
I get the point you are trying to make but while Camalots are made in China they are still made by Black Diamond by BD employees in a factory BD owns. BD doesn't contract out the manufacturing process for hardware. BD wants to own the entire process to avoid contractors that cut corners, steal intellectual property, or sell lower quality/defective units on the black market (didn't that happen with Petzl?).
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 11:27am PT
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I get the point you are trying to make but while Camalots are made in China they are still made by Black Diamond by BD employees in a factory BD owns. BD doesn't contract out the manufacturing process for hardware. BD wants to own the entire process to avoid contractors that cut corners, steal intellectual property, or sell lower quality/defective units on the black market (didn't that happen with Petzl?).
If REI management took over Black Diamond, they could just say that it was manufactured by a different company BD Asia, not BD America, and you have to go to China and sue BD Asia.
Once you decide to shirk responsibility for your products, there's no end of excuses.
If REI ever puts out their own climbing gear again, don't buy it. Go with BD or something instead.
Does anyone else remember how much REI's gold gate carabiners sucked?
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 12:10pm PT
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^^^scaredtodeath is confused.
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Friedo
Trad climber
South Lake Tahoe
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May 22, 2013 - 12:24pm PT
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I enjoy looking around REI from time to time, but what this thread is suggesting is that you shouldn't buy any gear from REI that you would be entrusting your life to. (i.e. climbing gear!!!)
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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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May 22, 2013 - 12:27pm PT
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Um, I could regurgitate some first year torts or civil procedure but don't have time. The short answer is companies can't shirk liability for their products and any entity in the chain can be sued. If the company is foreign and does biz in your state (i.e. puts its products in the stream of commerce) then you'd have federal diversity jurisdiction. No need to go to Asia.
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Don Paul
Big Wall climber
Colombia, South America
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May 22, 2013 - 12:27pm PT
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I'm just reading this for the first time but from the OP I gather that this girl's bike frame broke while she was riding on the sidewalk at 5mph, she hit her head on the pavement and had some kind of head trauma. Did she die from the injury? The first article doesnt mention it. To me this seems incredibly trivial, I would never take a case like this. Its not trivial that someone (may have) died, but the case seems to be. Someone is suing the Yosemite concession owner that manages Curry Village because she got Hanta Virus. That's a b.s. case too.
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mynameismud
climber
backseat
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May 22, 2013 - 01:54pm PT
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I have no problem boycotting REI
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apogee
climber
Technically expert, safe belayer, can lead if easy
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May 22, 2013 - 02:42pm PT
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^^^
Tell a friend...
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10b4me
Ice climber
Soon 2B Arizona
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May 22, 2013 - 02:50pm PT
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^^^what he said
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Elcapinyoazz
Social climber
Joshua Tree
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May 22, 2013 - 03:04pm PT
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Slightly amazed by Dane's latest pic there. Aluminum frame broke before the carbonfiber fork. I'm surprised to see failure of the frame tubing itself. Probably undersized the tubing relative to the wall thickness or got a bad batch of tubing.
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Anastasia
climber
Home
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May 22, 2013 - 03:13pm PT
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All I know is... The REI store I worked at many years ago didn't know it's head from the rear. I had three store managers in less than six months. I pissed one of them off for keeping the store open and extra 15 minutes to sell over a 2,000 dollars worth of gear. (I was told next time I was to make them leave.) Plus I was told I wasn't dedicated enough since my priorities was my college classes, "not them." :) They were right on that!
All I can say is as an ex-worker, I wasn't treated well. Now Real Cheap Sports, now that is a great store. I was treated very well and I will never forget that. Tim is a great guy and he won't carry anything in the store without fully backing it up. Plus, he has a really nice climbing gear collection.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 05:10pm PT
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Um, I could regurgitate some first year torts or civil procedure but don't have time. The short answer is companies can't shirk liability for their products and any entity in the chain can be sued. If the company is foreign and does biz in your state (i.e. puts its products in the stream of commerce) then you'd have federal diversity jurisdiction. No need to go to Asia.
scaredtodeath, like I said you are confused. If you are going to succeed as a lawyer you will need to sharpen your reading and analytic skills.
I was giving examples how absurd their defenses are. I never said these were winning arguments. REI has a history of making stupid losing arguments. That's the whole point.
Also, I don't know what kind of grade you got in first year torts, but a parent company can avoid being liable for negligence of its subsidiaries. It depends on the circumstances and the jurisdictions.
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 05:15pm PT
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If you're an attorney you're an extremely bad example I suspect.
If you are a human being you are a piss poor example of one.
Agreed, there's something wrong with anyone who thinks that permanent brain damage is "incredibly trivial."
The real issue was if it was REI's fault. They lost on that issue.
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blahblah
Gym climber
Boulder
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May 22, 2013 - 05:22pm PT
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Um, I could regurgitate some first year torts or civil procedure but don't have time. The short answer is companies can't shirk liability for their products and any entity in the chain can be sued. If the company is foreign and does biz in your state (i.e. puts its products in the stream of commerce) then you'd have federal diversity jurisdiction. No need to go to Asia.
I think the above is probably right in its conclusion with respect to the hypothetical BD example, but not for the reasons written above, and it may not be generally correct.
There would be federal diversity jurisdiction against an Asian manufacturer, but that just means you can proceed in federal, rather than state, court. You still need to establish personal jurisdiction over a defendant (the Asian manufacturer).
Whether you can get personal jurisdiction in the US over an Asian entity that does no business in the US isn't an obvious question (at least not to me), and in any event the answer isn't determined by diversity.
I don't think REI would get any traction in the hypothetical BD example because the entities are commonly controlled, but that's just semi-informed speculation on my part.
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10b4me
Ice climber
Soon 2B Arizona
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May 22, 2013 - 05:25pm PT
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All I know is... The REI store I worked at many years ago didn't know it's head from the rear.
All I can say is as an ex-worker, I wasn't treated well.
ditto
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atchafalaya
Boulder climber
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May 22, 2013 - 05:27pm PT
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"The real issue was if it was REI's fault."
Actually, thats not the issue, but carry-on. Hi GC!
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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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May 22, 2013 - 05:34pm PT
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I've litigated against foreign entities and individuals in federal and state court.
If they make stuff that purposefully ends up in the U.S. a court will exercise jurisdiction. Obviously there are matters of degree, but that is not a supertopo discussion.
Service is done per the Hague convention.
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blahblah
Gym climber
Boulder
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May 22, 2013 - 05:44pm PT
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I've litigated against foreign entities and individuals in federal court.
If they make stuff that purposefully ends up in the U.S. a district court will exercise jurisdiction. Obviously there are matters of degree, but that is not a supertopo discussion.
Service is done per the Hague convention.
Service, like federal diversity, is a different issue from personal jurisdiction. (And service can only be done via Hague convention if the defendant's country is a treaty member.)
You seem to think the "stream of commerce" theory is sufficient for personal jurisdiction. Some courts may agree, but that's far from settled law.
Relatively recent Supreme Court cases have significantly curtailed the "stream of commerce" theory--perhaps your case(es) preceded those cases.
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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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May 22, 2013 - 05:48pm PT
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It depends on the stream... I need to get back to work.
edit: I should have said personal jurisdiction instead of diversity upthread. You get what you pay for herein!
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graniteclimber
Trad climber
The Illuminati -- S.P.E.C.T.R.E. Division
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May 22, 2013 - 06:28pm PT
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I don't think REI would get any traction in the hypothetical BD example because the entities are commonly controlled,
Control would be an important factor in building a case for liability under an agent, common enterprise, or alter ego theory, but it wouldn't in and of itself be dispositive.
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JEleazarian
Trad climber
Fresno CA
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May 22, 2013 - 06:49pm PT
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Diversity jurisdiction isn't so simple in chain-of-commerce cases, because there's usually a defendant with the same citizenship as a plaintiff, thereby destroying diversity.
Frankly, in this division of the Eastern District of California, you're better off in state court as a plaintiff. The federal juries tend to be much more tight in awarding money.
Of course, none of this has anything to do with the OP.
John
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