Re: shielding from liability

[Paul Serice <ugs@laci.net>]

john@win.bright.net wrote:
> 
> Paul Serice writes:
> > Suppose, Bruce is "going to drive tomorrow to Santa Cruz (from
> > Berkeley) to participate in a meeting for Debian," and on the way
> > he causes an accident.  Before incorporation, no one knew how far
> > the liability tail extended.
> 
> Are you an attorney? I'm not.  I find it hard to believe that there
> is no case law on this.

I'm looking here through Prosser on Torts regarding the "Joint
Enterprise." It states as follows:

         [The joint enterprise] is an undertaking to carry
         out a small number of acts or objectives, which is
         entered into by associates under such
         circumstances that all have an equal voice in
         directing the conduct of the enterprise.  The law
         then considers . . . that the act of any one
         within the scope of the enterprise is to be
         charged to the rest.  Nearly all courts have
         accepted the principle of vicarious tort
         responsibility in such a case. . . . Considerable
         confusion still surrounds the doctrine, which no
         one has succeeded in reducing to any very exact
         formula or definition.

Prosser then makes a distinction between business and non-business
joint enterprises.  Two cases it cites found enterprise liability for
members of a hunting party and for people involved with dismantling a
sawmill.  I'm out of my depth here, but based on the above, it's
arguable that, prior to incorporation, Debian could have been
classified as some type of joint enterprise.


> I also find it hard to believe that any court could be convinced
> that the maintainers had either the opportunity or the duty to
> prevent Bruce from driving drunk :)

I agree, but I don't think that's an issue in this type of
hypothetical case.  I think the courts are faced with the problem of
who should pay as between innocent parties.  Should the injured party
pay, or should the other innocent people associated with the
enterprise pay?  All U.S. jurisdictions place the burden on the other
members of a business enterprise regardless of opportunity or duty to
prevent the member who was at fault from causing the harm. 
Non-business enterprises may well cause a court to fall back on the
usual duty-risk (etc.) analysis, but it looks like it is impossible
to know for sure.


> > By the way, last time I checked, in all 50 states, anarchists
> > have no special exemptions.
> 

> I'm sure Dave will be glad to know that.  BTW, I am not opposed to
> incorporation.  I merely expressed skepticism about the liability
> paranoia.

Sorry about that.  I certainly didn't mean to imply anything.  It was
just a remark for Dave.  I was hoping he might be reading this
thread.

I also sometimes wonder about the liability paranoia, but I think it
is probably justified, especially from the point of view of the
general liability that any organization faces.


Paul Serice


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