A Civil Action?
According to this BBC report, relatives of American peace activist Rachel Corrie are now suing heavy equipment maker Caterpillar for selling Israel a specially-armored tank that it should have known would be used in situations (e.g., bulldozing homes of accused Palestinian terrorists/insurgents -- let's not get into that semantic argument right now) where people's lives would be put in danger. I certainly don't want to get into a blog discussion about the Israeli-Palestinian conflict, which way outside of my area of competence (assuming I still have an area of competence -- 1st year of law school introduces these kind of doubts in all of us). Just from a legal perspective, however, this seems like a rather novel and particularly tenuous claim, but one that could be interesting to follow in the future. Check out the article, and I invite comments on how successful you think the Corries will be.
posted by Anonymous at 12:02 PM
6 Comments:
I actually had this dicussion with a 2L yesterday who thought the claim was rather firvolous. I pointed out that the only weakness is probably proximate cause. But if you argue that they should have constructed a machine that let's say had a better view of those below, or something along those lines, then the claim is not half bad. I don't know if it will be winnable, but it'd have a decent shot of avoiding Rule 11 sanctions.
And don't forget contributory negligence and maybe assumption of risk...you know, willfully placing yourself between a terrorist refuge and the Israeli military and all.
I'm curious where Earl Warren gets his information that the home Rachel Corrie died defending was, in fact, a "terrorist refuge." The home belonged to a Palestinian physician, and no smuggling tunnels were ever found beneath it by the military or the press. Certainly Corrie assumed a risk, though I don't believe it's the risk Earl Warren defined. Furthermore, there are public policy exceptions to assumption of risk. Liability is not waived when an individual is harmed as a result of intentionally tortious conduct, regardless of assumed risk. The actions of the bulldozer operator who killed Rachel Corrie were arguably intentional. She was unarmed, visible and posed no threat to the driver.
I can't see where contributory negligence comes into play at all. It doesn't apply where there is a conscious / willful act--by definition such an act is not negligence. Assuming Corrie was, somehow, contributorily negligent, if you read the accounts of what happened it's evident the bulldozer operator had the last clear chance to prevent her death by merely lifting the blade on the bulldozer or stopping. Or, alternately, not running over her twice.
I realize this doesn't address the issue of whether Caterpillar can be held responsible. I just wanted to call into question the previous comment from Earl Warren. It's too easy to throw around the "terrorist" label these days to rationalize ugly acts.
A little helpful background from Amnesty International:
According to an October 2003 Amnesty International report: “In the past three years the Israeli army has destroyed some 4,000 Palestinian homes in the West Bank and Gaza Strip, as well as vast areas of cultivated land, hundreds of factories and other commercial properties, roads and public buildings... The Israeli army says it has uncovered 70 smuggling tunnels in Rafah in the past three years and in the same period it has destroyed more than 1, 000 homes in the area.”
Perhaps if you'd read our post and comments carefully you would have noticed that we don't give a rat's ass about the underlying conflict but rather are thoroughly fascinated by the suit against CAT. In that vein, I don't care if she was standing in front of the Pearly Gates, there's still an assumption of risk argument to be made.
I'm sorry, you're simply incorrect. The Israeli Judge Advocate's office, which has never been afraid to go after IDF excesses, exonerated the operators in a report last year.
Indeed, the claim that this was "intentional" has been thoroughly discredited by pretty much everyone, including even the far-left Mother Jones in an otherwise sharply critical article last year. See:
http://192.211.16.13/a/asdf/dumb_mother_jones_article.html
Thus, w/o intentional acts, you're left with what I said: a woman deliberately standing in front of a bulldozer. It's hard to think of a more obvious example of contributory negligence.
*PS -- I encourage everyone to read the "response" to the article above. If you have any experience in journalism at all, you'll see the "critique" pretty much proves the article's truth. There's nothing like an embarassingly bad rebuttal to clinch an argument.
Hey, if this goes through, maybe Israeli families can finally sue French arms manufacturers for selling explosives to the terrorists. But then the author of the 10:43 PM comment, being a terrorist sympathizer, would have to rescind his/her "public policy exceptions to assumption of risk" argument. Unless, ofcourse, blowing yourself up in a nightclub, or a pizzeria, or a city bus, or a wedding is somehow not "intentionally tortious [sic] conduct."
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