Lawand ethics

The legal and ethical issues at hand in the Tidmore discussion are complex and under current scrutiny in California and other areas where the concept of “duty” as it applies to the law are under assault.  As determined by the California appellate court in 1998, Fiss had a contractual duty to respond to Tidmore’s call for assistance in changing the flat tire.  However, from there the ethical and legal considerations get complicated in a mess that it is difficult to interpret and explains why juries often do things that seem to make no sense at all.

The first issue to be discussed in the Tidmore cases was if the auto club could have refused to send Tidmore assistance when he called. Yes, they could have, but Tidmore would have had an excellent case under contract law statutes for breach of contract. Tidmore has paid for a service from the auto club and is entitled to that service. This may be the single easiest to determine point of law in the entire discussion, but even this one can get murky when circumstances are applied. Ultimately, the appellate court used this contractual obligation as a major factor in determining the law with regard to the Tidmore case.

Specifically, attorneys for the respondent (the auto club) had argued that they bore no responsibility or Tidmore’s injuries because his injuries resulted from his own neglect, i.e. he allowed the conditions to occur that resulted in the flat tire and therefore, under negligence laws was responsible for his own injuries. While this argument seems questionable given that Tidmore had a contract with the auto club for just this sort of problem, the trial judge accepted the argument and the respondent’s request for summary judgment dismissing the case. Tidmore had to take his case to the appellate court to get the matters of law clarified.

In its ruling, the appellate court said that the trial judge had misapplied California’s “rescue doctrine” and remanded the case back to the trial court for hearing. The trial court relied on existing case law to make the decision, but it is very complicated. The law states that when a person is in a situation caused by negligence and a second person is injured while rescuing from that situation, the second person may recover damages from the person who was negligent. The trial court asserted that the rescue doctrine by its very nature implies the existence of a third party which was negligent.

The trail c0ourt ruled that since the negligence was, depending on the side being argued either Fiss’ for improper use of the jack, or Tidmore’s for creating the circumstance by allowing his tire to go flat, there was no third party involvement and the rescue doctrine did not apply,  Tidmore stipulated to the auto club’s assertion of facts but argued with their application of the law and won on the appellate level. But this issue is far from resolved. The question still revolves around the concept of duty as it applies to personal injury law.

In the Law Review of Southern California, attorneys recently noted a disturbing trend among southern California courts to rule, as the trial court in the Tidmore cases did initially, that there is no special duty associated with a case and therefore, no one can be held responsible. The law review article argues that this is not the intent of California law and is an attempt to undermine juries and confuse the roles of juries and judges in negligence cases. Indeed, it is an effect tool of defense attorneys attempting to skirt responsibility for their clients’ actions.

While the law varies state to state, many states including California, have laws which provide that the citizen has a moral duty to prevent injury to others when possible.  While the legalities of the issue are complex, but ultimately should result with Tidmore being able to sue the auto club for his injuries and should have also allowed for Fiss to sue Tidmore had he ignored her pleas for help, the ethics are much less sketchy.

Ethically, the auto club was required by virtue of the contractual agreement to assist Tidmore when he asked for it and Tidmore was required to attempt to assist Fiss. Though her legal remedies had he chosen not to assist her would have been on shaky ground, he had some legal responsibility as well under California law as discussed previously. Regardless though of the perceived legal duty, Tidmore had an ethical responsibility to attempt to prevent injury to a fellow human being if it was within his perview.

Even if Tidmore had been able to anticipate the injury to himself in doing so, his ethical responsibility was to attempt to assist Fiss so long as doing so did not put him in mortal danger. This sense of duty is born out of the nature of humanity and the reality that no one would willingly choose monetary issues over their own health and well-being.

The argument that the alw review writers rely on is accurate though flawed. Citing the old comedy routine of Jack Benny in which a thief says “Your money or your life” and Benny replies, “I’m thinking, I’m thinking”, the article asserts that no one would ever actually reply in a manner indicating a true willingness to give up their life. However, we know that despite the authors assertion, people often choose money over health in everything from buying the cheapest, and sometimes least nutritious foods, to choosing to make a new car payment rather than buy health insurance. However, even if the reasoning is wrong, the ethics remain constant, we must as empathetic creatures attempt to prevent injury to others when we can reasonably do so. The only question for debate should be regarding what effort is reasonable.

This case represents a situation where the law has not been able to keep pace with the ethics in regard to a situation. In years past it was assumed that people would naturally attempt to help one another and the only laws needed in this regard were to prevent the “Good Samaritan” from being sued for inability to assist or for taking action that though well-intended resulted in an unintended consequence.

Now, society has changed to the point where it might be necessary for the ethical response to a situation to be encoded as law.  People can no longer be relied on to do the right thing, if they ever truly could be, and the law must change in response. If Tidmore had taken no action to assist Fiss, his actions would have been reprehensible, but possibly perfectly legal. While it is reasonable to advocate caution in legislating ethics, these issues must be addressed to maintain order and empathy within society.

Chapter 2, Question #9

Large corporations could benefit highly from tactics taken to combat group-think and institionalized ideas which run counter to corporate mandate. Perhaps the greatest evidence of this comes int eh form of a Harvard Business Review article, “Disruptive Technologies:Catching the Wave”. T

hoguh the article specifically discusses the problem of group-think in researcha dn design, the methodology suggested with the article could contribute to healthier corporate environments. Too often, newcomers with great ideas about corporate procedures are told that the reason an activity is done a certain way is that “we’ve always done it that way.” Having a system in place to challenge those presumptive behaviors can lead to longevity in the business world and better ethical practices in general.

How then does a company encourage re-evaluation without undermining itself? The authors of “Disruptive technologies” suggest having a separate entity responsible for new product development that is kept complete away from existing preconceived notions sot aht it is not corrupted by them. (Harvard Business Review, March, 2002) To be fair, this approach could work in most corporations as well, if modified. An internal audit, not financial but operational, could be conducted within the firm.

By having the audit conducted by mid-level managers instead of upper management, employees would be more lively to contribute to the discussion of how things operate. By taking an internal employee and placing them in a position to audit a completely different department, the company could assure that its procedures are seen with fresh eyes.

This system will only work, however, if a company allows complete transparency in its operations and if management means exactly what it says it means. Too often the internal corporate culture runs contrary to the written code of conduct. For example, in many work places, it is officially the policy that every minute worked must be documented, but the unofficial policy is that the work has to get done or people lose their jobs and there is no approved overtime. These policies are contradictory, but all too common.

The key then to preventing group-think is to have procedures honestly and thoroughly reviewed by someone who has never done the job and who has no vested interest in the manner in which it is currently being done and to promote transparency in management. The company must say what it means and mean what it says, even if that means a slight increase in overtime or an acknowledgement of the need for additional staff.

Chapter 3, #5

There is no Constitution right to privacy in a strict constructionalist view of the Constitution. The right to privacy was a creation of the Warren Court and a justification for judicial action which in reality fell outside of the realm of the things covered by the Constitution, specifically Roe V. Wade. At that point in history, the Supreme Court argued that the rights guaranteed by the Constitution and the Bill of Rights was not inclusive of all rights the individual could and should have. Privacy was at the top of the list of unenumerated rights.

Given the Warren Court’s view, there could be an argument that Garden city law requiring video surveillance of cybercafés violated basic rights to freedom of expression and to privacy. However, what is more intriguing is the dissenting judge’s opinion regarding the role of the internet as a means of free speech and freedom of the press.

The concept that the internet is an open forum for the free discussion is one of the drawbacks that researchers face when using the internet for academic reasons. So then respecting the internet, as the judge suggested, as a forum for free speech and free press is not an unappreciable argument. However, what the judge fails to address is why videotaping people while they are exercising these freedoms. American law has long held that a person could be held responsible after the fact for the things that they publish. As long as there is no prior restraint, there is no reason to view the use of the video cameras is a violation of the rights to free speech or freedom of the press.