Rebuttal to my rebuttal

My dear friend who is aspiring to that most noble profession of Lawyer rebutted my last blog post. So I am rebutting his rebuttal. But with passion, instead of an actual knowledge of what the hell I am talking about. Which makes mine way more valid. And interesting.

I still feel like getting eaten by a bear is an inherent risk one takes upon adventuring into the wild. Not to mention, when people have food in their tents, as ubiquitous warning signs inform them not to, bears want to go in and eat it. And then when they find fresh meat AND potato chips...well you know. So I guess maybe my argument isn't so much as to whether or not this lawsuit is actually legal or frivolous...my question is, is it right? Again, will suing the government, and ultimately you and I, bring back their son? Will it bring them comfort? Will it soothe their angry hearts and take away the pain? Certainly not. Only the Mormons can provide that true release from pain (tongue in cheek.) I guess the question is, when does it stop? When do we, as humans, accept the fact that we don't need a damn baby sitter in the form of the government for every single thing that we do? How much are we willing to degrade the wilderness and tame it until it isn't even the bloody wilderness anymore? Wilderness...lets break down this word. Wild= untamed, uncultivated, unrestrained, uncivilized. Er= the place you go when injured by the untamed, uncultivated, unrestrained, and uncivilized area a.k.a. the wild. Ness= a state of being. And in this case, the state of being wild. Hence, WILDERNESS.

My point is, when the so-called wilderness is completely regulated, it looses that wild quality which makes it truly sublime. I am sorry that people go into the wild unprepared, and do foolish things. I am sorry that wild animals act like wild animals. But really, should bear protection fall under the blanket of government regulation? Here is a novel idea--read that damn signs that the government already put up informing you to NOT bring food in your tent and to NOT leave garbage strewn about your camp and to NOT put your baby on top of a buffalo and to NOT do a myriad of other stupid things that idiotic campers seem to constantly do.

It is time that we take responsibility for our actions, and not expect the government to swoop on in and save the day in every situation. And when the government for whatever reason fails to do so, maybe we should think of distancing ourselves from said over-protection instead of suing and calling for even more protective regulations.

1 comment:

Dave said...

Fish, I totally agree with you. I was just pointing out the other side of the argument. In fact, the argument you make here is actually a recognized kind of argument in these disputes: it is called the "primary assumption of risk." That is, it is unreasonable to require people to mitigate the obvious, irreducible, inherent risks of a given, socially valuable activity--therefore, there should be no tort liability. I agree with this argument--you can't take the downhill out of downhill skiing, you can't take the hitting out of boxing, and you cant take the wild out of the wilderness. (but can you take the trailer park out of the boy? still an undecided legal question). Undoubtedly, this will be one of the arguments that the forest service makes. BUT it won't be dispositive. The family will agree that taking the wild out of wilderness would be unreasonable--impossible, in fact (unless you go camping at a Bass Pro Shop, something that I have always wanted to do). but the family will argue that the forest service could have done something more that would have been reasonable that would have prevented the death. it will be a hard case for them. they will have to prove, as i mentioned before that the forest service had some kind of duty to do more than they did (which is a hard case to make, considering your primary assumption of the risk argument: there can be no duty to take the wild out of wilderness), and that not doing that very thing was the actual and proximate cause of the death. THEN they will have to sell the idea of a 2M dollar verdict to a jury of you's and me's. I think they have a chance at least for a settlement--probably slightly better than the classic snowball in hell, probably more like a snowman in hell.

Enough about the legal analysis. The issue that you are mostly concered with in your posts is more general: the purposes of tort liability. this is a constantly debated topic--do we let people blame others too much for life's misfortunes. The answer is probably yes. But look at it this way: between the two parties (the family and the forest service) there has been a single loss, the life of the boy--lets say it is valued at 2M, just to be callous. so because there is a single loss, either the family can bear all of the loss (no puns intended here, please) by not suing or by losing the lawsuit. Or the forest service can bear all of the loss by losing the lawsuit for the full 2M. Or they can both bear some of the loss by the jury coming back with a reduced damages figure because of the boy's own contributory negligence and/or assumption of the risk.

between those three options, which seems more fair? the forest service bearing the whole 2M loss is unlikely. the other two are more likely, and the split liability is probably the most fair. Now, in order to achieve that result, the family has to sue. that will probably result in some kind of settlement that offsets some of the loss--after all, there may well have been some fault involved if the forest service did have a clear duty which they could have discharged easily and which they simply didn't do. anyway. i'm SURE that your readers wish I would just go away. So I won't bring my crappy law perspective to your blog anymore, if I can help it.