The Business Rusch: A Lawsuit Waiting To Happen

The Business Rusch: A Lawsuit Waiting To Happen

Kristine Kathryn Rusch

I knew I’d get ideas for this blog while I was here in Germany.  I just didn’t realize I wouldn’t have time to write them.  Tonight, after I finish this, I must make notes about Nuremberg and maybe try to get some sleep.

I learn a lot about myself and my own country when I travel.  Even though I try to do a one-size-fits-all business blog, I’m acutely aware that one size does not fit all when we’re talking about a worldwide readership, which this blog has.  I think of it most in the areas of taxes, which are different in every country, and health insurance, which also differs from country to country.

But I forget about the little things, until I come to Europe.  I’ve noticed this before, but forgot it, and then thought about it again once I got here on Sunday: The tort laws are different here.  Now, before you American folks go all nuts in the comments section about tort reform, I am not going let this blog devolve into a political conversation.  So keep your opinions on tort reform to yourself.

Tort laws are the laws that govern what is and is not a legal injury.  A legal injury might have to do with an actual injury, like the kind you would get in an automobile accident.  Legal injury might be libel or slander.  It might be product liability.  Like so many things in the law, it is broad and encompasses too many things to deal with here.  Remember too that I am not a lawyer, and am often wrong.

What I mean by tort law here, though, is the kind that deals with things like personal injury which happens in a public place.  Let me give you today’s litany.

In the middle of the night, I hit the bathroom doorstop with my heel and fell backwards—the toilet literally saved my ass.  Had I fallen another way, I would have seriously hurt myself.  The doorstop in this hotel bathroom is exactly between your feet if you’re using that toilet (male or female).  The stop sticks up two inches from the floor, and is impossible to see in the dark.

The offending doorstop below. Looks a tad rude in this photo, but I assure you. It is a doorstop.

Because I am an American (seriously!), I do not expect a doorstop in the middle of the bathroom floor where I might trip over it.

I also stepped out of a store today and caught myself before falling a foot to the sidewalk.  I used a handrail every time I am on stairs here because the stairs are often uneven, particularly in older buildings.

Germany is actually better than other countries I’ve been to. The bathroom appliances are fairly uniform, and so are the stairs in newer buildings.  Most new things (less than 60 years old) are in some sort of uniform shape.

But one of the reasons that  businesses here do not follow some kind of uniform code is age.  Are you going to monkey with a 500-year-old building so that it comes up to a building code designed in the 21st century? I think not.

Other examples though don’t have to do with buildings.  Here the water for my tea arrives exceedingly hot, but no one gives me a goofy warning on the label that tea water is hot.  There is a kind of buyer beware attitude throughout Europe that as an American, I simply do not expect.

My culture babies me.  And not because it thinks I am stupid, but because the lawyers think—and they’re right—that if someone doesn’t give a warning before the bad thing happens, someone else will (and note I stress “will”) sue when that bad thing does happen.  You can argue all you want that people understand that tea water is hot and putting a cup of hot water between your legs while you drive is stupid, but someone did just that (with coffee) and sued.  Lawsuits in and of themselves are expensive, win or lose.  They take time. So in America, we do everything we can to make sure the lawsuit never gets filed.

Which leads to warning signs and perfectly flat sidewalks, and uniform stair lengths.

It also leads to a kind of hazard thinking.  In France a few years ago, I went down a flight of stairs a restaurant and noticed that not only could I have hit my head, but I could have fallen onto a pile of glassware if I missed a step.  I mentioned it to my friends when I got back. (I was at a convention.)  The Americans expressed disbelief.  The French people at the table wanted to know what was wrong with that?  I should watch my head and make sure I don’t trip.  And where else would the glasses have been stored?

Won’t someone sue? I asked.  My friend gave an eloquent shrug.  “Let them sue,” he said.  “It is stupid.  People will think them stupid.”  As if that is the worst thing in the world.

In the States, we live our lives trying to prevent a problem.  Here, they seem to understand that problems are a part of life.

I’m not saying one or the other is better.  Now that I’ve been here a few days, I move like a little old lady going in and out of buildings and up and down stairs.  I turn on the bathroom light rather than stumble around in the dark. But at home I don’t because I know someone has already made sure there is nothing to trip on or to hit my head with.

This puts me in mind of all the protection I do for my own business and makes me wonder if I would do the same if I had come of business age in Europe.  I have a business rider over the top of my homeowner’s insurance that protects me from lawsuits, frivolous or otherwise.  Whenever Dean and I do work on our offices or on the house, we’re constantly asking if someone will get hurt because of the design.  We have a missing railing near one of our staircases now—we want a special design, and since we’re the only ones in the house, we think it doesn’t matter until we buy the railing.  But our friends always comment on how dangerous that missing railing is.  (And we always warn them if they go anywhere near the stairs.)

I see something in a blog or on twitter—a comment that’s possibly libelous—and I often mutter, “That’s a lawsuit waiting to happen.”  I censure myself when in the public arena to avoid just that.

There are countless other ways I protect my business by altering my behavior or altering speech.  I have a hunch this may also creep into my fiction as well.

I wonder how different I would be if I lived in Europe, if I had grown up in Europe, if I weren’t constantly looking over my shoulder, wondering if there is a lawsuit coming at me.  In America, I consider that part of the cost of doing business.  But is it?

I know that there is tort law here in Germany.  I saw reference to it when I double-checked myself on Google a minute ago. (I’m going through a German server, so I get German results.)  I have no idea what German tort law is and how pervasive it is.

And I have no idea whether or not German business owners worry about those lawsuits waiting to happen.  I wonder what makes them stay awake in the middle of the night.  Not hot water, and not building design. There’s probably something else equally scary, something I’m unaware of.

Which is one reason I like to travel.  It makes me think about such things.  And honestly, as a science fiction writer, I should be thinking about such cultural differences all the time.

Today’s post is purposefully short because I’m out of time (and still have jet-lag brain).  I have made a  list of nearly a dozen possible topics for the blog while I’m here, and I’m sure I’ll think of more when I get home.  Please feel free to suggest some as well.  Also, I’ve put up the donate button.  I’m keeping track of which posts generate the most comment/donations, so if you particularly like something, send me a few bucks to keep me going in the write direction.  Thanks!


“The Business Rusch: A Lawsuit Waiting To Happen” copyright 2010 by Kristine Kathryn Rusch.

12 responses to “The Business Rusch: A Lawsuit Waiting To Happen”

  1. Tom Mannon says:

    The warnings differ even through out the USA.
    In CA a sign will warn against running near a pool.
    In GA a warning sign will also explain the danger: Do not run near pool, you may slip and fall and occur injury and or death.

  2. Cora says:

    Wilko, in the Jörg Kachelmann trial (TV weatherman accused of raping his girlfriend), the woman is always referred to as the “presumed victim” in the media, though that’s likely more to protect themselves from a potential lawsuit by Kachelmann than to protect the woman.

    Speaking as a European, I always get a giggle out of the more ridiculous warning labels and signs in the US. Though we do see more of those warning labels as well, due to corporations doing international business and using the same labels, packaging, etc… everywhere. I spent a lot of time removing a big “Deactivate airbag when using a childseat on the passenger seat” label from the dashboard of my car – I don’t have children, don’t use childseats and I know that airbags must be deactivated when using a passenger side chidseat. On the other hand, when buying any kind of medicine in Germany, there’s always a lengthy list, often in tiny print, of possible side-effects and warnings included in the packaging. I have never seen a similar list included in US medications.

    And while Germany does have tort laws, it is much more difficult to win such a lawsuit and the payouts are much lower. Basically, you have to prove gross neglect on the part of the party that caused the injury (being stupid doesn’t count) and even then you don’t always win. I know a family whose child was born disabled due to a doctor’s neglect (the doctor misdiagnosed a pregnancy as an inflamed ovary and prescribed meds that harmed the fetus). They sued the doctor. The case went all the way to the supreme court, yet the family lost.

    Anyway, Kristine, welcome to Germany. Enjoy your stay and keep clear of doorstops.

    • Kris says:

      Thanks, Cora. I’ve enjoyed Germany very much. I leave in 11 hours (not that I’m counting the time until I head home to Dean or anything) but I’ll miss the people I met here. It’s been quite fun.

  3. Dayle says:

    Yep, came across the same thing time and time again when we lived in Wales (and traveled all over Britain and most of Europe). There’s something about standing on the top of a very high castle tower and looking at the little wall that comes up just to your knees, right where, if you walked into it, it was perfectly positioned for maximum tippage of your body over the edge. The idea is, you know going up there that the tower is very high. Don’t want to fall over the edge? Then don’t get to close to the edge.

    I remember debating with someone whether an unexpectedly dangerous situation would be grounds for a lawsuit. Yes, I know the tower is high, etc. However, I don’t expect a giant pit in the middle of the lower bailey. Is a sign needed (“Warning: We’re excavating. There may be giant pits.”)? A fence around it?

    Still, I was always embarrassed to be viewed as someone coming from the place where everyone’s considered to be sue-happy.

    On another note, I’m not a lawyer because I ran screaming from law school after the first year, but I do know that there’s usually a lot more to suits than what you see in the news. Re: the McDonald’s hot coffee lawsuit you mentioned: 700 people had been seriously burned by their coffee, which was served at 180-190°–a burn hazard exists for anything over 140°. Also, the woman in the lawsuit wasn’t driving; someone else was, but had pulled over to allow her to open the cup and add cream. (http://www.lectlaw.com/files/cur78.htm)

    (Sorry. I’m geeky about these things.)

    At any rate, I’m enjoying your posts immensely. I’ve long said that Germans are like Klingons (and I mean that in the nicest possible way!). 🙂

    • Kris says:

      Thanks for the correction, Dayle. See what I get for using shorthand? Incorrect facts! I’m glad you’re enjoying the blog.

      I’m finding Germans very welcoming. Not just the convention folks who are by far the kindest convention organizers I’ve encountered (and I’ve encountered some great ones elsewhere), but also the people on the street and in the hotels. It’s been utterly lovely so far. So I’m glad I can share in some small way.

  4. Wilko says:

    There is tort law in Germany as well, even if it is different. Some consequences are funny or maybe annoying, depending on how you see it. In the media suspects of a crime and even criminals who have been caught in the act are only called “presumed thief” as an example. That “presumed” this and that is something almost automatically done to “protect the identity rights” of the thief. You are only a thief if a judge says so, not if someone sees you stealing. But what of the victims? Are they also only presumedly dead? I am annoyed by this you see.
    The big difference is that Germans don’t sue each other so readily. Maybe because it is complicated and expensive to do so. Maybe because there is a saying like “To be justified is nice, to get justice is hard.” Well, it doesn’t translate so easily.

    But welcome to Germany, Mrs. Rush. We will meet on Saturday.

    • Kris says:

      I’m looking forward to our interview on Saturday, Wilko. (And it’s Kris, please.) It should be fun. And I look forward to continuing the conversation, Ortwin, here at the convention. I hope I get to meet a number of folks who follow the blog!

      Patrick, in the United States, that doorstop would be a legal issue. People would sue because it is the design that is counterintuitive. But then, that design wouldn’t get past the lawyers who looked at the architectural plans.

      I love all the points everyone has made here–the differences are subtle, but subtle is can be large sometimes. But fun. It makes me think, and realize how much I am a product of my environment. All of us are, I guess.

  5. Ortwin says:

    I live in Germany for many years now 😉 but I think Patrick is wrong in one point: the employee has no privacy rights on the companies equipment – the company owns it, but the employee ist not allowed to use it for private purposes (private email, surfing during lunchbreak). On the other hand the companies are not allowed to spy on their employees – but that has nothing to do with the equipment, rather with personal rights.

    Kris, you mention one point: German stuff is often older than anything you find in the US. As for old houses you are legally not allowed to alter them – you have to preserve their original state, which often costs a lot of money. In some cases you are not allowed to drill a hole or put a nail in the wall to fasten a pictureframe. These old houses are considered historical markers or monuments.
    Regarding danger: I was shocked to see that there were no rails around the rim of the Grand Canyon and no signs either ;-).
    But lets discuss the legal issues during the breaks of the con tomorrow (I talk faster than I type). I’m looking forward to meet you there 😉

  6. Mary Jo Rabe says:

    Indeed. Living in a culture that is similar but not identical to the one you grew up in makes you aware of different ways of doing things. Almost every aspect of life is regulated down to the last period and comma in Germany, and Germans love to sue (which is why you invest in legal insurance as soon as you can afford it), but there is never that much money involved (as contrasted to the U.S.).

    There are, for all practical purposes, no jury trials; generally a panel of judges, sometimes with a few token non-lawyers in an advisory capacity, decides everything. These judges go by the standard of “Could a reasonably responsible person have avoided this injury?” They almost never reward people for being inattentive or just plain stupid. If a child is hurt on playground equipment, as long as the equipment is in proper functioning condition, the courts are of the opinion that parents should make sure that their young children don’t play on some equipment that they aren’t old enough for. Even if you should win some judgment, you can’t influence the amount of damages you might collect; everything is regulated in codes and tables of how much any injury is worth.

    I could continue for thousands of words, but you have an excellent point. Depending on life experiences, everyone has a feeling for how things should be. It is often a shock to experience how people in very similar cultures feel that things should be quite different when it gets down to details. Germans feel it is completely reasonable and desirable that everyone have a government-issued identity card and that everyone be required to report his address to the local police whenever he moves. Americans would find this idea objectionable.

    Anyway, often it is the tiny and subtle differences that shake you up and make you realize you aren’t in Kansas any more.

    Across the street from our apartment building is a huge school center with many different schools. I am always amused by the very pragmatic sign which says (roughly translated): Attention, school grounds. Non-school personnel proceed at your own risk!

  7. Matt Buchman says:

    The third world is a level yet again. Guard rails, rare. Little wire barricades at the edge of sheer drop-offs, non-existent. In Indonesia it is very common to climb a volcano in the dark to see the sunrise over the top (well worth the 5 hour hike). However, when I reached the top, I decided to check a well-worn side trail revealed by the starlight. It appeared to end and I hesitated. I turned on a flashlight revealing that I was 1′ from a 600′ drop-off into the cone…and the edge was crumbly.

    Even in Australia, I climb Uluru (Ayer’s rock) in the dark. There’s only 1 path up and it has a chain for the first few hundred feet. In the dark some used it, some didn’t. Coming back down, I absolutely used it. There was a several hundred foot dropoff 5′ to one side. No warning, no second chain. At the bottom of that cliff was a plaque of each person who had died on the climb (about a dozen, mostly from heatstroke, 2 from falls).

    You are responsible for your own actions. When I returned to the US I felt overly protected. Overly boxed in by warning signs and guard rails and watchful eyes. It’s as if America trusts us less than other countries trust their citizens. Partly because we are such a litigious society (what a thing to be a world leader in), but also a mindset that I think reaches right back to the Puritans (which is how much of the world sees us), too afraid of doing the “wrong” thing to act on our behalf.

    Does that creep into our fiction? Cool question. I’d say that our written heroes are the ones who abandon or fight back against that safety, but does that translate overseas as well? Do foreigners think, “well, duh!” when they read the level of travails we heap upon our characters?

  8. Kris, I grew up (on and off) in England. I can certainly understand them NOT raising the header on that 5’9″ door frame leading into that pub that was established in the year 1236 (that is an actual example from Bristol).

    On the other hand, one must wonder if that understandable aversion to updating safety standards does not engender a sort of recklessness in the culture in general…. such as the asininity of placing a door stop square in the middle of the floor. I mean, if you’re going to do that, at least put a blinking LED light on the thing! 😉

  9. Patrick says:

    I’ve been to Germany once. What a blast and cultural shock. The perspective on things is humorously different. Bringing dogs into the restaurants seems like a health code violation to me. Not sure why it bothers me, because my friend’s dog walks through their kitchen when I am eating there.

    The real fun part was cultural discussions with my foreign co-workers. We were sitting in a diner after the meal, having coffee and just chatting away. That’s when the Germans and French explained to me that because of tipping in the US, we would never be allowed to sit in the restaraunt just chatting like we were. They weren’t even offered coffee after their meal.

    I was baffled so I asked. They explained how they had been rushed out of a restaurant when in the US for a conference. I asked which restaurant. Planet Hollywood in Orlando.

    When I stopped laughing, I asked how long the line was at the door. They said it was well more than an hour wait. I’m pretty sure it wasn’t the tipping that was making them be rushed out.

    Got to love cultural differences.

    Another interesting thing about the differences of laws. In the US, there is a job perception that your employer owns the phone, phone line, computer, email server, etc. Therefore, you are not entitled to any privacy. They can read your email, record, track or listen to any call you make on their equipment.

    In Germany, it’s not viewed that way. In Germany, the employee has privacy rights on the companies equipment… It sort of baffles me, but that’s the way their laws are set up. But at the same time, I suspect there are more laws protecting companies from lawsuits caused by the response of one employee in Germany.

    I never really thought of placement of a doorstop as a legal issue. I assumed odd design things like that were due to age and space. Those rooms are all tiny and I suspect many many years older than the US.

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