Now that the weather has, at least temporarily, returned to normal and the recriminations from an angry public have died down, it’s time for more serious complaining. And what form does that take? Well, most humans have a predetermined biological response to natural disasters: first they get scared, then angry, then they file insurance claims and sue someone.
The capital’s expressway management found themselves under fire on Sunday from 80 angry vehicle owners who are filing for compensation in the wake of the heavy rainstorm on July 21.
The owners are complaining that they were charged at toll booths which allowed them to enter the flooded section of the Beijing-Hong Kong-Macao Expressway. Hundreds of buses and cars found themselves stranded on the expressway for two days after the rain. Many were damaged or waterlogged.
One car owner surnamed Shi, a businessman from Inner Mongolia Autonomous Region, spent about 90,000 yuan ($14,286) on a new car two month ago. Shi told the Global Times that he and other drivers had been to Beijing Capital Highway Development Co., Ltd twice last week to claim compensation over the company’s negligence.
“We went to demand an answer and recompense for our damaged cars on Wednesday and were told we would get a result on Friday. However, we were told on Friday that they couldn’t release details of a compensation plan until the government had sorted everything out,” Shi said.
Shi claimed that the tragedy could have been avoided if there had been any traffic management at the scene.
“No staff came to stop more cars entering the flooded section. If someone had dealt with this in time, or made space for cars to turn around in both directions, there would have been fewer losses,” he said.
Standard negligence argument, right? a) company had duty of care regarding management of the highway in question; b) rainstorm and related problems were foreseeable; c) company was negligent in allowing traffic onto the road given the flooding; and d) company was negligent in not having additional staff on hand to deal with storm-related issues.
Sounds like a pretty good case. I don’t think the “We haven’t had rain like this in X number of years” defense against foreseeability holds up. Moreover, even if the company wasn’t aware of the specific traffic conditions on all parts of the road when motorists were being charged tolls and allowed to drive on, I assume that the company ought to have known.
Here’s a second opinion on the case:
Yue Cheng, founder of the Yuecheng Law Firm based in Beijing, suggested that the company was responsible for the loss that many of the car owners have suffered.
“Not mentioning the design defects of the expressway, they have to admit their mistake in allowing vehicles to pass without giving any warning about the hazards ahead,” said Yue.
“The company does not bear any liability in case of an unpredictable natural disaster. However, rainstorms are not an unpredictable phenomena, so the company has no right to evade its responsibility,” he said.
There you have it. Bad news for the company, although a good “design defect” argument might be a mitigating factor.
Heck, who am I kidding? If this whole thing goes down the same way as other natural disasters, also food scandals, the government will get directly involved in an overall settlement, pooling compensation on the one side and qualified victims on the other. The companies involved will piss and moan, and then go on about their business, and the victims will bitterly complain about insufficient damages. Mission accomplished, in terms of a harmonious-ish settlement.
While this goes on, many of these individual complaints, some of which will be filed in Beijing courts, will be quietly dismissed pending formal action on the settlement fund. (I’m assuming, by the way, that these companies are private. If they are part of the municipal or State government, then that throws a wrench into the litigation analysis of course.)
Is that the best possible outcome? Well, I’m biased in favor of tort cases. In addition to being a U.S. lawyer, I grew up in the Ralph Nader age, where public interest lawyers used tort to get bad actor corporations to learn the error of their ways. There are only two ways to do that, you know. First, government can regulate. This doesn’t work so well in some places and with certain industries. In the U.S., the government has been “captured” by companies in many industrial sectors, precluding effective enforcement.
Second, the tort system can be wielded by individuals in court, given legal standing, as a weapon against misbehaving companies. The business end of that weapon is, of course, punitive damages, which can be high enough to hurt these guys’ bottom lines.
The U.S. tort system is aggressive and has often been abused. However, that’s what judges are for (and an independent judiciary), but that’s a long discussion. Suffice it to say that in my opinion, the good has outweighed the bad. The modern American environmental movement, for example, owes a very great deal to the tort system.
China also has a tort system, and a fairly new tort law, but we do not have anything here resembling the structure that Ralph Nader used to such great effect. The entire system is different here, including trial procedure and discovery, which precludes the kind of tort litigation for which America has become famous (or infamous).
And the goals here are different. With a large-scale problem like some of the food scandals or a natural disaster, the priority is to get some compensation to the victims in an efficient, non-confrontational manner. No fighting, no disharmony, and certainly none of the U.S.-style litigation ugliness, including the siphoning away of a lot of compensation to plaintiffs’ attorneys. We don’t have punitive damages here, and if companies do bad things, well, that’s a problem for prosecutors and administrative enforcement.
Will we see the usual settlement fund for the floods? I’d expect that, yes. Will this change the bad behavior of companies like this highway management firm? I doubt it, and I’d rather see a hefty civil complaint that makes them hurt and scares other companies out there. But that isn’t going to happen, and at least with a settlement fund, some folks will come away with something. Best possible outcome.
© Stan for China Hearsay, 2012. |
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