Saturday, August 02, 2014

Not Responsible

It was a stupid television commercial, no different from a hundred others. Actually, on second thought, it was stupider than most. A guy having lunch at an outdoor café with his friends. As he takes a bite, a splotch of tomato sauce falls from above onto his shirt. He looks up to see a giant meatball parachuting onto his table, there to do battle with him. As they begin to tussle, an announcer intones "When your favorite food starts a fight, fight back with TUMS." The spot cuts to a pit of fire, into which a TUMS tablet drops, extinguishing the flames. And on screen, a graphic with one word: "Dramatization."

Really? You're kidding me, right? It doesn't happen like this in real life?

And yet it's hard to find something, anything, that doesn't sport some kind of disclaimer. It used to be just ladders, the poster child for "things that have warnings telling you all the things you already know not to do or we won't be responsible." The one in our garage has a half dozen stickers, including ones telling me that the top is "not a step," that the feet should be "firmly on the ground and level," one even providing a geometric model of how to lean it correctly. There's also a note that I should "keep ladder clean of foreign materials" which precludes getting paint on it, which is the reason I bought the thing in the first place.

That being said, it's not like there haven't been warnings on things before. But if there' a "patient zero" to the current epidemic, it's Stella Liebeck. Liebeck was the 81 year-old woman who spilled hot McDonald's coffee on herself back in 1992. When she sought $20,000 to cover her injuries and expenses, the company offered just $800. She brought in a personal injury lawyer who tried to settle, but the company also rebuffed him, opting for a trial. But that didn't work out so well: even though it was subsequently reduced, the initial jury award was $200,000 for compensatory damages and $2.7 million for punitive damages. (On the bright side, it did produce a memorable "Seinfeld" episode, which sported the line, "You get me one coffee drinker on that jury, you gonna walk outta there a rich man.")

Since then, everything carries a disclaimer. There's obvious stuff like machinery: "Stay away from moving parts." And diet plans: "Your results may vary." And cleaning supplies: "Keep away from eyes." But it goes further. Emails: "This email was intended for the recipient only." Good point ,that. Or movies: "The events portrayed are fictitious." That's why I go to the movies! Or almonds: "May contain nuts." Uh, OK.

It's tempting to blame all you lawyers out there for this mess, and to be honest, there's little downside to that approach. But the evidence doesn't really bear that out. According to recent data, just 10% of injured Americans ever file a claim for compensation, and only 2% file lawsuits. All told, tort cases represent just 4.4% of all civil caseloads, a number that has been steadily declining for years. Still, the perception of Americans has having their doctor in the second speed dial position while their personal injury attorney is in the first is the one that stays with us. Hence the continuing expansion of disclaimers.  

But it's not like they actually work. After all, they don't stop people from doing something they shouldn't, and courts and juries tend to look at individuals harmed in spite of the notices as clueless rubes. While James Sinclair was writing about the email variant in "McSweeney's Internet Tendency," his comments are applicable to all of the genre: "This disclaimer is not unlike the ceaseless blaring of a distant car alarm—a once-sincere warning that has evolved into an unpleasant nuisance, rendered meaningless by its own ubiquity."

Still, you can't be too careful. And so before we move on to other things, let me say this explicitly: "Any action you take upon the information you find herein is strictly at your own risk, and we will not be liable for any losses and/or damages in connection with said information." Now, where were we? Oh yes. If you stand on the top step of your ladder, you can usually reach the highest shelf in your closet. But be careful. And don't say I didn't warn you.


Marc Wollin of Bedford sometimes wonders how stupid we really are. His column appears regularly in The Record-Review, The Scarsdale Inquirer and online at, as well as via Facebook, LinkedIn and Twitter.

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