It’s one of those stories that just screams “corporate waste and greed” or possibly “managerial incompetence” – at least, the headline does. Wal-Mart is spending somewhere on the order of $2 million fighting a $7,000 fine slapped onto them by OSHA as the result of a seasonal worker being trampled to death on “Black Friday” last year. Any rational person reading the story will probably wonder why the company doesn’t just save itself the $1,993,000 and pay the fine; certainly it makes no sense to spend 286 times more to fight a penalty than to just accept it. One could almost imagine a stockholder’s revolt, like the one Disney had when they gave Michael Ovitz $76 million in a termination package after less than one (unproductive) year with the company, breaking out over this. It’s when you read down past the headline and find out what the fine is actually about that things become rather murky…
As recounted on the NBC New York site , the fine in question is intended to punish the retail giant for unsafe working conditions that led to its employee’s wrongful death. The headlines imply that Wal-Mart is trying to get out of having to pay anything over this episode, but the full story establishes that the company has already paid out $400,000 for a victims’ compensation fund and donated $1.5 million to the community, as well as developing and implementing new crowd management plans for next year. The real issue here is that OSHA is attempting to classify “crowd trampling” as an occupational hazard for the first time in history – and that has implications that reach far beyond $7,000 in fines or even $2 million in legal fees…
What a lot of people in this country fail to realize is that OSHA is not a legislative body; no one within the organization will ever stand for election and most of its personnel are simply career civil servants – employees of the Federal government, or technically, you (assuming you are a U.S. citizen). They serve at the pleasure of the President, and while it is possible for their regulations to be struck down by the Federal courts as illegal or unconstitutional, this rarely happens. The facts of the matter are that a group of people who were not elected to office, by you or anyone else, are creating laws out of thin air that could negatively impact a company which has already gone above and beyond anything specified in the existing laws to handle the situation…
To take this situation to its logical conclusion, suppose some minor bureaucrat from your local government decided that exposure to water should be considered a hazardous working condition, because someone in your state had drowned once. This individual states that water is now a work hazard, and because you have a drinking fountain in your place of business, you are in violation of the law and must pay a fine. Would you whip out your checkbook and pay the fine, knowing that tomorrow the same petty official could declare pencils, photocopiers or breathing to be workplace hazards and enact another fine? Or would you draw your line in the sand and say “no?” Is this actually an effort to avoid senseless loss of life in the workplace, or a heavy-handed power grab by unelected Executive Branch personnel ?
Of course, it’s possible that Wal-Mart would never have run afoul of the new anti-trampling laws; that their new management plans would have been accepted by the courts as a reasonable response to an unavoidable workplace hazard, and no ambulance-chasing lawyer or power-grubbing bureaucrat would ever have attempted to shake them down for further funds, settlements, or sanctions…
But all things considered, I don’t think we can reasonably blame them for contesting this OSHA ruling…
Thursday, July 8, 2010
Wednesday, July 7, 2010
Payback
I saw a story online this week that brought back a memory of an even funnier (and nastier) story, and I thought it was time I shared it with you. The original story comes to us from the local television station in Edmund, Oklahoma; it seems that a local pharmacist got tired of a serial burglar stealing painkillers and filled up a bunch of hydrocodone bottles with M & Ms. Sure enough, the thief broke in grabbed the bottles without looking, and ran off with them. The local police still have no suspects, which suggests an inside job (or possibly a police officer doing the stealing), but I was immediately struck by the fact that the pharmacist could easily have left something worse than chocolate candy in the purloined bottles…
While I was working in the drug store, my senior pharmacist told me a story about one day a few years earlier when a man walked up to the Pharmacy counter, pointed a gun at the doc, and demanded drugs. The pharmacist, a quick-thinking man, reached under the counter and handed the man a large bottle of pills, saying “Here, take these; they will really f**k you up!” The gunman opened the bottle, dumped all of the pills into his mouth, swallowed them, and ran out of the store without another word…
By this point I was staring at the doc in disbelief. “What kind of pills were they?” I asked.
He explained that they were a kind of super-laxative – something they give patients the night before abdominal surgery, to clean them out. There was no way to overdose on them, the doc told me; if you took too much the extras would just flush out of your system along with everything else. But even on a regular dose, they worked very quickly; he usually told his customers not to take these pills unless already at home or near an available toilet…
When the police were summoned, they found the gunman two blocks from the store, holding on tight to a telephone pole and trying desperately not to foul himself – a fight which he lost when one of the police officers tapped him on the shoulder. There was some delay while they found a tarp for him to sit on, so as to avoid getting the inside of their vehicle dirty. Fortunately, the pharmacist who told me the story was more than happy to loan them one from out of his trunk…
Now, given the recent trend of people suing companies when they manage to hurt themselves doing things no sane person would ever do (see yesterday’s post), it’s probably best if the pharmacist in Edmund doesn’t use this tactic; staking out the pharmacy and catching the thief in the act would leave him open to less legal liability, and installing a hidden camera would probably be safer. Still, I can’t help thinking that whoever the serial thief is, he’s pushing his luck – for all we know, the injured pharmacist might be reading this very post right now…
While I was working in the drug store, my senior pharmacist told me a story about one day a few years earlier when a man walked up to the Pharmacy counter, pointed a gun at the doc, and demanded drugs. The pharmacist, a quick-thinking man, reached under the counter and handed the man a large bottle of pills, saying “Here, take these; they will really f**k you up!” The gunman opened the bottle, dumped all of the pills into his mouth, swallowed them, and ran out of the store without another word…
By this point I was staring at the doc in disbelief. “What kind of pills were they?” I asked.
He explained that they were a kind of super-laxative – something they give patients the night before abdominal surgery, to clean them out. There was no way to overdose on them, the doc told me; if you took too much the extras would just flush out of your system along with everything else. But even on a regular dose, they worked very quickly; he usually told his customers not to take these pills unless already at home or near an available toilet…
When the police were summoned, they found the gunman two blocks from the store, holding on tight to a telephone pole and trying desperately not to foul himself – a fight which he lost when one of the police officers tapped him on the shoulder. There was some delay while they found a tarp for him to sit on, so as to avoid getting the inside of their vehicle dirty. Fortunately, the pharmacist who told me the story was more than happy to loan them one from out of his trunk…
Now, given the recent trend of people suing companies when they manage to hurt themselves doing things no sane person would ever do (see yesterday’s post), it’s probably best if the pharmacist in Edmund doesn’t use this tactic; staking out the pharmacy and catching the thief in the act would leave him open to less legal liability, and installing a hidden camera would probably be safer. Still, I can’t help thinking that whoever the serial thief is, he’s pushing his luck – for all we know, the injured pharmacist might be reading this very post right now…
Tuesday, July 6, 2010
Personal Responsibility?
I noted with great interest this week the story in the New York Post about a woman who is suing Starbuck’s because they served her a cup of hot tea, which she then dropped on her infant son. The woman’s attorney is claiming that the company was negligent because it should have been served in a cup with an insulated sleeve and stuck in one of those brown cardboard trays that make it impossible to get the cup out of without splashing your beverage across the ceiling of whatever room you are in. It does raise an interesting question about product safety laws; unfortunately, it also raises a few questions about consumer intelligence and personal responsibility…
It’s the second case this year where the plaintiff is claiming to have been injured because a cup of tea was too hot; you can read about an earlier case in New York off of the Reuters website if you’d like to. Now, if all of this sounds familiar, it’s probably because of the well-travelled legend about Stella Liebeck the woman supposedly awarded millions of dollars (some versions of the story put the final award at $18 million or more) after she was scalded by a cup of McDonald’s coffee. But the facts of that case don’t really match the urban legend – Stella attempted to settle with McDonald’s for the cost of her medical treatment ($20,000 – not very much even in 1994 dollars), the jury eventually ruled her 20% to blame for the accident, there had been over 700 similar cases in the previous 10 years (that’s right; over 70 times a year!) and the courts were frankly sick of McDonald’s claiming that they weren’t doing anything wrong. Most importantly, perhaps, the product liability cited in the case was the cup (which could easily pop open and douse the user), not the temperature of the liquid itself…
In the Starbuck’s cases, there’s no question of the containers being faulty; both plaintiffs only came to grief after dropping their cups, not having them pop open. There’s also no real question about the temperature of the beverage; tea is customarily made from boiling water (in order to get the leaves to steep properly) and anyone who drinks tea should already know that. The real question in both of these cases is whether the Starbuck’s people should have known to put insulators on the cups before the customer could pick up the beverage and burn him- or herself, or if the customer should have known better than to pick up a paper cup full of scalding hot liquid in the first place. And, in the more recent lawsuit, whether any reasonably sane person would be holding a cup of scalding liquid over a five-month-old infant in the first place…
Now, personally, I’ve had to get an insulator before picking up a cup of hot liquid; I’ve even had to reach over a counter to get one. And I’ve never been dim enough to hold boiling-hot beverages over a baby (what if you slip, or trip?). More to the point, perhaps, I can usually figure out that a cup of hot beverage is going to be, you know, HOT before I touch it – even if the cup doesn’t have “Warning: The beverage you are about to enjoy is quite hot!” written on it the way all Starbuck’s cups do. In the long run, the juries in both cases are going to have to decide where the company’s responsibility to produce a product that no customer can possibly hurt anyone with ends, and where the customer’s personal responsibility begins. All I can say is it’s probably a good thing that I’m not on either of those panels…
It’s the second case this year where the plaintiff is claiming to have been injured because a cup of tea was too hot; you can read about an earlier case in New York off of the Reuters website if you’d like to. Now, if all of this sounds familiar, it’s probably because of the well-travelled legend about Stella Liebeck the woman supposedly awarded millions of dollars (some versions of the story put the final award at $18 million or more) after she was scalded by a cup of McDonald’s coffee. But the facts of that case don’t really match the urban legend – Stella attempted to settle with McDonald’s for the cost of her medical treatment ($20,000 – not very much even in 1994 dollars), the jury eventually ruled her 20% to blame for the accident, there had been over 700 similar cases in the previous 10 years (that’s right; over 70 times a year!) and the courts were frankly sick of McDonald’s claiming that they weren’t doing anything wrong. Most importantly, perhaps, the product liability cited in the case was the cup (which could easily pop open and douse the user), not the temperature of the liquid itself…
In the Starbuck’s cases, there’s no question of the containers being faulty; both plaintiffs only came to grief after dropping their cups, not having them pop open. There’s also no real question about the temperature of the beverage; tea is customarily made from boiling water (in order to get the leaves to steep properly) and anyone who drinks tea should already know that. The real question in both of these cases is whether the Starbuck’s people should have known to put insulators on the cups before the customer could pick up the beverage and burn him- or herself, or if the customer should have known better than to pick up a paper cup full of scalding hot liquid in the first place. And, in the more recent lawsuit, whether any reasonably sane person would be holding a cup of scalding liquid over a five-month-old infant in the first place…
Now, personally, I’ve had to get an insulator before picking up a cup of hot liquid; I’ve even had to reach over a counter to get one. And I’ve never been dim enough to hold boiling-hot beverages over a baby (what if you slip, or trip?). More to the point, perhaps, I can usually figure out that a cup of hot beverage is going to be, you know, HOT before I touch it – even if the cup doesn’t have “Warning: The beverage you are about to enjoy is quite hot!” written on it the way all Starbuck’s cups do. In the long run, the juries in both cases are going to have to decide where the company’s responsibility to produce a product that no customer can possibly hurt anyone with ends, and where the customer’s personal responsibility begins. All I can say is it’s probably a good thing that I’m not on either of those panels…
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