In an update to yesterday's post, I mentioned the the West Coast's "brush" with earthquake-triggered ocean waves not big enough to be called a true Tsunami. While the damage was minor in comparison to Japan, the West Coast nevertheless suffered millions in damage, and a man trying to take photos of incoming waves was swept away and killed near the mouth of the Klamath River.

Early Friday evening, the U.S. Coast Guard announced it was suspending the search for a 25-year-old man who was swept off the beach near the mouth of the Klamath River. According to officials, the man and two other people had traveled to the coast to take photos of the incoming waves when all three were swept out to sea. According to the Coast Guard, two of the people were able to get safely back to shore but the third man was not.

Authorities had not released the man's identity as of the Times-Standard's deadline Friday.

According to the dispatch center for the Curry County Sheriff's Office in Oregon, four people were also swept off a beach near Brookings after venturing down to the shore to get a closer look at the surge waves. All were able to make it back to shore, and only minor injuries were reported, according to the dispatch center.

And in Santa Cruz, boats and docks were destroyed, while risk-taking surfers enjoyed the fun:

On the central coast in Santa Cruz, loose fishing boats crashed into one another and docks broke away from the shore. The water rushed out as quickly as it poured in, leaving the boats tipped over in mud. The Santa Cruz Sentinel reported that 30-40 boats were damaged or destroyed.

Some surfers ignored evacuation warnings and took advantage of the waves ahead of the tsunami.

It doesn't appear that any of them were killed. But let's just suppose hypothetically that they were.

Should they and the family of the photographer be able to sue?

Many readers would laugh, and they would say that individuals should take personal responsibility, but there is no such legal doctrine or defense. Instead, where there is an injury or a death, there is often a lawsuit. Especially when someone drowns.

A California wrongful death trial is scheduled to start next month against Stanislaus County over the drowning of Crows Landing resident Hector Alvarez. The 41-year-old man died after rescuing his daughter from a car, which had gone into a creek in 2005. Alvarez's family claims that the county knew that Eastin Road would get flooded during storms yet neglected to close the road.

Alvarez and his daughter Brisa Alvarez Garcia were returning from a party when she lost control of the 2001 Kia Rio, which was swept into the stream. By then storms had caused water to rise to about four feet across the road.

Garcia says that her father got out of the car and helped her escape before he drowned. Her mother and brother, who arrived to the rescue, were also swept into the creek in their car. Newman firefighters would later use rope to rescue them.

The county's attorneys are claiming that public agencies cannot be held accountable for storms and their effects. Also, a CHP officer found that Garcia was at fault for failing to ignore the warning sign that said that Eastin Road was subject to flooding. They say that Alvarez's blood-alcohol level on the night of his drowning accident was .26%.

The fact that water can drown people is widely known, but that doesn't stop people from suing after a loved one drowns. I blogged about a Philadelphia area case in which a family sued after their 5-year old daughter waded into the Schuylkill River and drowned; they claimed there should have been a "NO SWIMMING" sign nearby to warn them. I dissented -- from what I see as a system which encourages nanny state tyranny:

Rivers are dangerous, whether there are signs there or not. While I haven't visited River Front Park, I'm willing to bet there are "No Swimming" signs posted there, because it's in a heavily populated area. Personally, I'm against such signs. Rivers are part of nature, and nature -- if it is public property -- should be free to use at your own risk. A tree can fall on you, lightning can strike you, and of course, water can drown you. Signs warning about these things are superfluous. The duty is not that of the state to warn parents.

Ironically, the placement of "No Swimming" signs in one place could be interpreted as meaning that without a "No Swimming" sign, swimming is safe. So, does this mean that the entire 130 miles of the Schuylkill River should be plastered with signs on both sides lest people imagine it is safe to swim? (And what about the many unsigned lakes and coasts?)

What about the fact that this five year old girl didn't know how to swim? Isn't that a more significant factor than the presence or absence of a sign? I may be crazy, but it seems that if you have a child who cannot swim, whether there's a sign is completely superfluous.

I think incidents like this lead to overprotection from the top down, by the nanny state. The overprotective parents buy into it and support it, while at the other end the underprotective parents become victims.

Talking on a cell phone while driving can be dangerous too. But should a cell phone manufacturer be liable for an accident caused by a distracted driver? Some people (including at least one distinguished law professor) think so, and voiced support for a lawsuit by a grieving woman who wanted Samsung held liable for her daughter's death. Again, I disagreed.

...is it really fair to see the telephone or the service provider as the distraction? Isn't the object or source of the conversation at least as culpable?

I realize people will say that the driver is responsible, but under our legal system, that does not end the inquiry. It only begins it.

The problem is that whenever anyone dies, it is a tragedy, and it is natural for the grieving people they leave behind to seek some sort of remedy.

As I have lamented repeatedly, I watched many people I loved die of AIDS. A close friend shot himself to death in 1973. None of their families ever sued anyone.

But under the present scheme of things, should they have?

Who or what is fault when someone takes a risk? I understand that if you're walking down the street and a sinkhole suddenly opens and you fall in, that is no fault of your own. But if you're in or near the water, that's a little different, because water can drown people. You need to be more careful, and you need to take better care of children if you have them.

Trying to photograph a Tsunami or ride its waves is a dangerous and hazardous activity. So is having sex with strangers without a condom. Ditto playing Russian roulette, which many people who should have known better have done.

British author Graham Greene claimed that in his youth he often played Russian roulette as a means to provide "excitement and get away from the boredom". But he later decided that "it was no more exciting than taking aspirin for a headache".[2]

As a libertarian, I don't think the state has a right to preemptively stop people from engaging in such activities. But I think that when they do, they have assumed the risks, and while it's tragic if they die, I don't think it should give rise to legal liability.

Not that it matters to the legal system.

Turning tragedy into money is what it's all about.

(I'd call it a tidal wave of litigation, but that phrase is hardly original. And where's the warning sign?)

MORE: I forgot to mention that precisely the same sort of misdirected grief I discussed here fueled the New York push to make it illegal to use cell phones while walking.

"As a parent I am definitely in favor of banning these things," [cell phones] Tullia Tabasso said.

As a parent of a 14 year old, you already can ban "these things" lady! It is called parenting. What has happened?

Is parenting no longer for parents?

But maybe I should cut it out with these sarcastic rhetorical questions, and try to analyze the problem in a calm and logical manner. The reasoning seems to be that because there are people who either have no sense in their little heads or else they're so stupid and uncoordinated that they can't walk and chew gum at the same time, then I shouldn't be allowed to walk around while talking on a cell phone or listening to an mp3 player.

It's also driven by the fact that children do in fact walk right into traffic listening to and staring into these things. I live near the University of Michigan campus and I see it all the time. I regard them as fools, yet others regard them as victims in need of protection. The old "if we could save just one child" thinking. These mindsets are incompatible and irreconcilable; the nanny staters see my thinking as cruel, heartless, and dangerous to society, while I see theirs as deluded, irrational, and dangerous to freedom. So I write blog posts, and involve myself in local Tea Party politics.

Similar thinking drives gun control, bans on pit bulls, attempts to regulate people's sex lives, and prohibition of substances like alcohol, drugs and even foods. Because some people cannot handle their whatever, the government is going to preempt the problem by taking away your whatever.

It is easy to ridicule this particular ban, and clearly it goes too far for most people, so I think it's unlikely to pass.

But the mindset behind it will not go gently into the good night

No, it won't. When grieving people get together, they start to behave like activists. The grief is then misdirected, and the predictable result is more prohibition.

But that's an old story.

posted by Eric on 03.12.11 at 10:52 AM


I disagree with little you say. However, I'm afraid the TPers are a little too ready to jump into bed with socially conservative Republicans, if you'll pardon my little jab.

Jenny   ·  March 12, 2011 7:11 PM


I completely agree. It's turning tragedy into money at anyone's expense.

Let's take your thought one step further. Re: the cell phone. Is it really the cell-phone which is at fault for a car accident? After all, if one is not in a car, speaking on a cell phone is safe. AHA! The car company is responsible for the accident because it had the temerity to manufacture a car in the first place (or for failing to put a sticker on the steering wheel that says "Using a cell phone while driving can be hazaderous to your health." Sue the car company!

And what about all of these lawsuits which seek to place responsibility on anyone but the individual. If someone loses their case shouldn't the losing attorney be liable for the loss because s/he failed to have a client sign a disclosure that points out "Winning past cases does not guarantee future results?" I think we should file a class action suit against attorneys and make the bastards pay up, after all, it's clearly their fault that good people lose cases. (sarc)

T   ·  March 13, 2011 10:53 AM

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