Three Years Ago Today...

Post by **Edi** » 2006-03-20 03:42pm

Elfdart, you fucked up the link. The correct thread is here.

Edi

Elfdart · Post by **Elfdart** » 2006-03-20 04:01pm

Thanks.

Faqa · Post by **Faqa** » 2006-03-20 04:26pm

Ah, I see. So you're just strawmandering then. I guess you missed the fucking part of the text where he acknowledged that it was possible and probable that the crowd was throwing rocks, but that they were no threat to the NG.

I don't quite get what you think I'm saying, Mike. I've already pointed out I wasn't defending the troops.

My whole point is to prove there was violence and provocation in the air. Rock throwing is a good example of that.

The only reason I acknowledged the Kent riots at ALL, if you'll recall, is to provide an example of stupid protest. Such as provoking nervous armed soldiers. That the soldiers were also poorly disciplined does not change that.

It's an example of someone dying stupidly instead of for their cause. Get it? That's all I was showing with that. If you thought differently, I'm sorry for the implication.

No, you're failing to read what you're attempting to refute.

For my purposes, that quote was all I needed. I fail to see the problem.

CmdrWilkens · Post by **CmdrWilkens** » 2006-03-20 11:46pm

Darth Wong wrote: None of which disproves or even vaguely addresses my argument which is NOT based on him being able to directly see Corrie. Pay some fucking attention.

Fine lets take your argument in its most recent and simplest form:

Darth Wong wrote:Corrie's only "stupidity" was in assuming that the driver of the bulldozer would be concerned about human life and would therefore act accordingly (and that means taking actual precautions to avoid fatalities, as I outlined earlier, not just taking a peek through the visor and saying "nope, I don't see nuthin'").

The bulldozer operator is:
1) Operating in a warzone and thus his precautions and actions are dictated by the Army ROE
2) Operating within a preset mission plan for the uncovering of insurgent tunnels which are presumed to contain weapons and explosives (and thus must principally take precautions to ensure his own force is not damaged by his actions)

The operators principal duties extend towards properly ensuring the safety of his own forces and then ensuring the safety of civilians. Within the confines of that duty the operator is under no obligation to make excessive calls on his own forces to guard against foreign nationals interfering with military operations. The operator has no duty to exceed normal operational safety requirements in order to protect Corrie and her fellow activists. If the operator is acting within the ROE proscribed by the Israeli Army then he owes no additional duty of care and thus is not liable if she, through her own negligence, places herself in a position to be subject to harm.

3) All of what I've just said is easily invalidated if there was in fact a radio link between the operator and other observers who could see Corrie and failed to inform the oeprator (or informed him to proceed anyway and he obeyed). Short of these personnel being present the oeprator could do everything in his power to avoid this incident and yet the likelyhood of it happening remains, it is also the reason why the concept of contributory negligence exists. Certainly the operator owes a duty of care to be cautious in the avoidance of civilian casualties and take all precautions possible with the strictures of the equipment provided to him by his command. Within that framework unless he had ground guides who failed to act the operator appears to have fufilled his duty of care and Corrie would be contributorily negligent for placing herself in a position of danger from which reasonable care on the operators part could still cause her harm.
If there was no observer, then the bulldozer operator was negligent, plain and simple. If I'm backing a large vehicle out of a parking spot and I can't see shit, what do I do? I get someone to signal me. Don't tell me that someone in a potentially lethal situation has a reduced duty of care compared to some guy parking a vehicle.

A guy parking a vehicle isn't operating in a warzone according to a military ROE so try and find a comparison that is based on military operations in a warzone and THEN you might have a valid comparison.

Now this isn't to say the incdent is not tragic but was this a situation of gross negligence on the operator's part? Not unless he failed to heed warnings of ground guides available to him. I honestly would like to hear his side of the story because it could be damn revealing.
I honestly would like to hear where the fuck your idea of negligence came from.

If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable. My idea of negligence comes from the idea that you can only be negligent when you owe a duty of care and in this case I have seen nothing to disuade me from the idea that the operator fufilled his duty of care and rather Corrie was contributorily negligent in palcing herself in a position from which a reasonable person would expect harm to come to her. The ONLY thing which would render the operator negligent is if he had a last reasonable chance to avoid the incident and again nothing I've seen or heard has disuaded me from the idea that the operator did not have such an opportunity.

If you step in front of a moving car (operating within the law) and the driver doesn't have the ability to respond in time to avoid hitting you then its your own fault for placing yourself in a position to recieve the injury not the drivers for inflicting it. Corrie placed herself in a position akin to that in front of the moving vehicle and until something comes up which would show that the driver had the opportunity to react in time to avoid the injury then the fault remains with her.

Post by **Darth Wong** » 2006-03-21 02:35am

CmdrWilkens wrote:The bulldozer operator is:
1) Operating in a warzone and thus his precautions and actions are dictated by the Army ROE

No, the bulldozer operator is operating in occupied territory under the constraints imposed by the Geneva Convention for occupied territories. One of which includes safeguarding civilian life.

2) Operating within a preset mission plan for the uncovering of insurgent tunnels which are presumed to contain weapons and explosives (and thus must principally take precautions to ensure his own force is not damaged by his actions)

What does that have to do with somehow having an inferior duty of care compared to some ordinary clown in a car?

The operators principal duties extend towards properly ensuring the safety of his own forces and then ensuring the safety of civilians.

Why not the other way around? And what was the danger to his forces? Or is this just another layer of bullshit you wish to add onto the situation even though there was no indication of any clear and present danger whatsoever?

Within the confines of that duty the operator is under no obligation to make excessive calls on his own forces to guard against foreign nationals interfering with military operations. The operator has no duty to exceed normal operational safety requirements in order to protect Corrie and her fellow activists. If the operator is acting within the ROE proscribed by the Israeli Army then he owes no additional duty of care and thus is not liable if she, through her own negligence, places herself in a position to be subject to harm.

What a gigantic load of bullshit; the operator is still a human fucking being, isn't he? Do you really think that a human being is completely absolved of any charge of negligence as long as written regulations did not require him to do any more than he did?

A guy parking a vehicle isn't operating in a warzone according to a military ROE so try and find a comparison that is based on military operations in a warzone and THEN you might have a valid comparison.

Occupied territory, no warzone. And you can't hide behind ROE when charged with negligence rather than war crimes.

I honestly would like to hear where the fuck your idea of negligence came from.
If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable. My idea of negligence comes from the idea that you can only be negligent when you owe a duty of care and in this case I have seen nothing to disuade me from the idea that the operator fufilled his duty of care and rather Corrie was contributorily negligent in palcing herself in a position from which a reasonable person would expect harm to come to her. The ONLY thing which would render the operator negligent is if he had a last reasonable chance to avoid the incident and again nothing I've seen or heard has disuaded me from the idea that the operator did not have such an opportunity.

If you step in front of a moving car (operating within the law) and the driver doesn't have the ability to respond in time to avoid hitting you then its your own fault for placing yourself in a position to recieve the injury not the drivers for inflicting it. Corrie placed herself in a position akin to that in front of the moving vehicle and until something comes up which would show that the driver had the opportunity to react in time to avoid the injury then the fault remains with her.

As I expected, you have no idea what negligence means. You think there's such a thing as "contributory negligence" when in fact a charge of negligence focuses only on your own inactions, not the foolishness of the other party. You think that you can absolve someone of negligence if you can show that the other person should have been smarter; once again you demonstrate a schoolyard grasp of the concept of negligence.

Patrick Degan · Post by **Patrick Degan** » 2006-03-21 08:11am

CmdrWilkins wrote: If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable.

In a word, bullshit —try running that past any JAG officer and he'll laugh in your face. Military personnel are still subject to civil and criminal law for their conduct whether or not certain actions are not written in the regs, whether or not certain actions are covered by ROE, and can be held liable.

Rogue 9 · Post by **Rogue 9** » 2006-03-21 09:08am

Elfdart wrote:
Rogue 9 wrote:When you're through impugning my character,
What character?

you might take the time to note that there is not, nor has there ever been a country called Palestine.
The Palestinians would beg to differ.

And they'd be demonstrably incorrect. In what year was Palestine as an independent nation established? What were it's borders? Who were it's rulers/what was it's form of government? You can't answer, because none of those things ever existed except form of government, which has been imperial government by foreign empires since 67 AD.

The name "Palestine" derives from the Latin "Palaestina," which is what the Romans renamed Judea after... ethnically cleansing the Jews.
And?

Historical information; Palestine was a province of Rome and was under the rule of a succession of empires up until 1948. It was never independent. Rant otherwise all you want. The facts won't change no matter how much you scream about it.

As the territory is currently under Israeli jurisdiction, Israeli law means everything there.
No, the territory is under Israeli occupation. To be under Israel's jurisdiction, Israel would have to be there legally.

Okay, so it should give the West Bank back to Jordan (even though it's Jordan's fault they lost the land to begin with). But wait. They don't want it back.

You asked what crime she committed, and I answered.
Bullshitted is more like it.

Whatever, moron.

and the fact that I did not at any point cheer Rachel Corrie's death. I don't even know who Marla Ruzicka is (or was).
Liar. If you didn't know who she was, why did you start this thread about her?

http://bbs.stardestroyer.net/posting.ph ... &p=2005938

You know, the one where you posted the article about Ruzicka's death and were in Durandal's words, "basking in it".

Oh, that. You think I remember every news story I post eleven months after the fact? As for why, it was a news story and I posted it. Durandal's opinion is worth jack next to mine, because I know what I was thinking and he doesn't. I stand by my statement that it is ironic for someone working to help and document civilian casualties to become a civilian casualty. This does not mean it's funny or desirable.

I do not, in fact, wish for the ISM to continue duping college students into outright aiding terrorists through actively interfering with IDF military operations, nor do I wish them to die. Feel free to continue your paranoid delusions, though. That's amusing, although tragic deaths are not.
Translation: "I despise college students who risk their lives to try to stop war crimes because (a) I support those war crimes and (b) it shames me that they have the courage to do so while I don't have the balls to own up my own disgraceful fucking posts."

You asshole!

No, that is not what I said, nor is it even remotely close to what I meant. Let me know when you're through misrepresenting what I say; you're not worth dealing with again if this is all the substance you can manage.

CarsonPalmer · Post by **CarsonPalmer** » 2006-03-21 06:39pm

Mike, the soldiers were scared, poorly trained troops. A reasonable, poorly trained person would have acted the same way. In the case of Kent State, the fault, I would say, does not lie so much with the Guardsmen or the students.

Aaron · Post by **Aaron** » 2006-03-21 06:51pm

CarsonPalmer wrote:Mike, the soldiers were scared, poorly trained troops. A reasonable, poorly trained person would have acted the same way. In the case of Kent State, the fault, I would say, does not lie so much with the Guardsmen or the students.

Thats absolute crap, the students had rocks. How the fuck is it reasonable for them to be shot, regardless of the training level of the troops? And exactly what the hell where they scared of? They had guns and helmets, the kids could have thrown dozens of rocks at them and not seriously injured them.

And if the Guardsmen nor the students weren't at fault, then who is?

Spetulhu · Post by **Spetulhu** » 2006-03-21 07:19pm

Cpl Kendall wrote:And if the Guardsmen nor the students weren't at fault, then who is?

Probably the idiot who ordered poorly trained and poorly led guardsmen to enter the area carrying weapons and ammunition.

Aaron · Post by **Aaron** » 2006-03-21 07:24pm

Spetulhu wrote: Probably the idiot who ordered poorly trained and poorly led guardsmen to enter the area carrying weapons and ammunition.

That would be the govenor I presume?

Aaron · Post by **Aaron** » 2006-03-21 07:32pm

While we're on the topic of the shootings, what was the end result? Was anyone charged/jailed/impeached etc over it?

CarsonPalmer · Post by **CarsonPalmer** » 2006-03-21 07:41pm

I'm not sure if anyone was jailed, but Spetulhu basically summed up what I was trying to say. These Guardsman were really just kids who hadn't been trained to deal with what they faced, so they panicked.

Stark · Post by **Stark** » 2006-03-21 08:11pm

Are you seriously saying it's not really that bad that armed soldiers fired on civilians because they were crap? That's absurd. What was their briefing? 'Look out for the hippies, they may have bombs'?

Spetulhu · Post by **Spetulhu** » 2006-03-21 10:05pm

Stark wrote:Are you seriously saying it's not really that bad that armed soldiers fired on civilians because they were crap? That's absurd. What was their briefing? 'Look out for the hippies, they may have bombs'?

That may well be exactly the briefing they got.

Sure, the soldiers are still at fault. But the guy who sent them in knowing they're not trained for the task is the one they should haul in first.

CmdrWilkens · Post by **CmdrWilkens** » 2006-03-22 01:53am

Just as a matter of simplicity I think the heart of the disagreement is contained below but if you'd like a point by point rebuttal I can offer one up. As a side note I will concede that we're dealing with occupied territory not a warzone.

Darth Wong wrote:
CmdrWilkens wrote: If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable. My idea of negligence comes from the idea that you can only be negligent when you owe a duty of care and in this case I have seen nothing to disuade me from the idea that the operator fufilled his duty of care and rather Corrie was contributorily negligent in palcing herself in a position from which a reasonable person would expect harm to come to her. The ONLY thing which would render the operator negligent is if he had a last reasonable chance to avoid the incident and again nothing I've seen or heard has disuaded me from the idea that the operator did not have such an opportunity.

If you step in front of a moving car (operating within the law) and the driver doesn't have the ability to respond in time to avoid hitting you then its your own fault for placing yourself in a position to recieve the injury not the drivers for inflicting it. Corrie placed herself in a position akin to that in front of the moving vehicle and until something comes up which would show that the driver had the opportunity to react in time to avoid the injury then the fault remains with her.
As I expected, you have no idea what negligence means. You think there's such a thing as "contributory negligence" when in fact a charge of negligence focuses only on your own inactions, not the foolishness of the other party. You think that you can absolve someone of negligence if you can show that the other person should have been smarter; once again you demonstrate a schoolyard grasp of the concept of negligence.

from the following source:
Law.com

contributory negligence
n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.

Now, not all jurisdictions still hold this as the case I'll grant you (though Maryland is one) but it remains the case that contributing to the fault for much of the history of English law would completely absolve the defendant of responsibility though now comparative negligence is more common. Still if you want to claim I have a schoolyard concept because I actually understand some legal defenses to charges of negligence all I can say is someone should have been paying attention in their Intro to Law class or whatever equivalent you seem to be claiming knowledge from. Next time you want to insult my intelligence try to actually be correct. I don't mind admitting when I'm wrong but I really don't like to be told I am when I'm not. Moreover if you want to hit me with "once again" try to show that I've been wrong more than once or else can the rhetorical bullshit.

Now that said the real question is whether the operator was negligent, so lets go find a good neutral definition of negligence before you start claiming I have no fucking clue what I'm talking about.

from Law.com again

negligence
n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from "intentional torts" (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another's negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, b) that the defendant's action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused ("proximately caused") by the negligence.

We can both agree that Corrie suffered injuy and that the operator caused it and that the operator owed a duty of care to Corrie.

The disagreement is to whether the operator breached that duty of care. Nothing I've yet seen has shown the operator to have acted in any way not consistent with the reasonable care all heavy equipment operators are expected to take. A car driver is expected to be able to perate his vehicle wihtin the law and with due care for pedestrians not prepare for people to jump in front of the vehicle, in such a situation the driver woudl not be begligent because he fullfilled his duty of care. Given that I would be judged under the exact same doctrine for my own conduct and my own conduct would be used as part of the basis for determining reasonable conduct for a heavy equipment operator I'd say I might have a slightly more informed opinion than you. That is unless you want to claim you actually know how to safely operate an armored D7. Barring that I'd like to see the minimum standard of proof that the operator breached the duty he owed to Corrie and the injury itself is not proof of that. You have gone on that the oeprator owed a duty of care and yes he did but you haven't yet shown how he breached it. So if you want to claim the operator was negligent then show me how a reasonable operator would have acted in a way that he did not which would have prevented her injury.

CmdrWilkens · Post by **CmdrWilkens** » 2006-03-22 02:00am

Patrick Degan wrote:
CmdrWilkins wrote: If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable.
In a word, bullshit —try running that past any JAG officer and he'll laugh in your face. Military personnel are still subject to civil and criminal law for their conduct whether or not certain actions are not written in the regs, whether or not certain actions are covered by ROE, and can be held liable.

sigh... The duties the operator owes are those which a reasonable person would be expected to hold under the circumstances. The ROE for the mission defines the threat to the unit and the safety presumptions to be taken to prevent injury. While not a perfect tool they are drafted by fucking JAG lawyers so I'd like to see a JAG lawyer who tells me that following his advice would not result in a reasonable expectation on my part that I have remained within the confines of the law. Being a military heavy equipment operator I'd say I have a bit of an understanding of these concepts.

So lets repeat: If the operator obeyed the reaosnable safety procedures for his vehicle (operating procedures) and any additional safety strictures imposed by the ROE (following the ROE) then he would be fulfilling the duty of care expected of him as that is what a reasonable operator would be expected to do.

As a side note I like how you siezed on the part of my explanation dealing with ROE when the critical part was dealing with oeprating the vehicle within the confines of safe operating procedure, the ROE is just safety requirements palced as a cherry on top of the requirments of normal safe operation. Next time deal with the entirety of my explanation not just one part.

Patrick Degan · Post by **Patrick Degan** » 2006-03-22 03:00am

CmdrWilkens wrote:
Patrick Degan wrote:
CmdrWilkins wrote: If he followed the ROE and the operating procedure for his vehicle then he, the operator, owes no additional duty of care and thus can not be held liable.
In a word, bullshit —try running that past any JAG officer and he'll laugh in your face. Military personnel are still subject to civil and criminal law for their conduct whether or not certain actions are not written in the regs, whether or not certain actions are covered by ROE, and can be held liable.
sigh... The duties the operator owes are those which a reasonable person would be expected to hold under the circumstances. The ROE for the mission defines the threat to the unit and the safety presumptions to be taken to prevent injury. While not a perfect tool they are drafted by fucking JAG lawyers so I'd like to see a JAG lawyer who tells me that following his advice would not result in a reasonable expectation on my part that I have remained within the confines of the law. Being a military heavy equipment operator I'd say I have a bit of an understanding of these concepts.

I would dearly love to be on-site the day you put that theory to the test.

So lets repeat: If the operator obeyed the reaosnable safety procedures for his vehicle (operating procedures) and any additional safety strictures imposed by the ROE (following the ROE) then he would be fulfilling the duty of care expected of him as that is what a reasonable operator would be expected to do.

Bull and shit: none of this flapdoodle of yours exempts an operator from possible criminal liability for negligent homicide (at the least) if he runs over someone with his bulldozer in a situation where he knows there is the possibility of a person or persons being at-risk and fails to take this risk into account in the shaping of his own actions. He doesn't get to hide behind ROE or "reasonable safety procedures" or "expected duty" as an excuse. Under circumstances where there are volatile protesters on-site and willing to block bulldozers with their own bodies, a "reasonable" person is expected, under the law, to conclude that attemting to operate a bulldozer in such a situation will possibly result in someone's death and that his only safe course of action is to not try to drive the damn thing.

As a side note I like how you siezed on the part of my explanation dealing with ROE when the critical part was dealing with oeprating the vehicle within the confines of safe operating procedure, the ROE is just safety requirements palced as a cherry on top of the requirments of normal safe operation. Next time deal with the entirety of my explanation not just one part.

No, Wilkins, I seized on the relevant fact that a book of regulations or procedure DOES NOT TRUMP THE FUCKING LAW NO MATTER HOW MUCH YOU DEARLY WISH TO BELIEVE IT DOES.

Elfdart · Post by **Elfdart** » 2006-03-22 04:02am

I found this timeline about the legal proceedings informative:

http://members.aol.com/nrbooks/chronol.htm

Here's a couple of money quotes:

October 16
The "special" state grand jury exonerates the Guardsmen, but indicts 25 individuals, mostly students, for a variety of offenses that occurred on campus before the shootings.

Late October-November Demands for a federal grand jury mount after it is revealed that the "special" state grand jury ignored key evidence and that one of the "special" prosecutors told a newsman he felt the Guardsmen should have shot more students.

This one is also interesting:

Money quote:

August 3, 1973 (Friday)

The Justice Department announces it will reopen the May 4, 1970 case. The announcement is made almost two years after the department rejected further federal inquiries into the case.

In his written statement, Attorney General Elliot Richardson does not mention new evidence but states that the decision to start a new inquiry rests on "the need to exhaust every potential for acquiring facts relating to this tragedy."

Assistant Attorney General J. Stanley Pottinger, head of the Civil Rights Division, will conduct the investigation.

Pottinger said he could "not speculate on any new evidence we may or may not have" but suggested that the decision have been prompted by other events, including civil suits filed by parents of victims, Congressional inquiries, student petitions, and pressure for reform of National Guard procedures.

Sen. Birch Bayh of Indiana reveals he had informed Richardson of a letter sent to Bayh by a National Guard company commander suggesting that a police informer, Terrence B. Norman, might have precipitated the National Guard fire by firing his own revolver at students.

According to Bayh, the commander said Norman was posing as a newsman and had run up to guardsmen after the shootings, handed over a revolver and said he had shot a student.

Bayh also said that FBI director Clarence M. Kelley told him on July 9 that Norman had once been an FBI informer in an unrelated matter but had not been questioned on the Kent case. A Justice Department spokesman said Aug. 3 that the FBI had interviewed Norman twice about the May 4 incident.

The more you read about this incident, the more sinister it looks.

Elfdart · Post by **Elfdart** » 2006-03-22 04:06am

The last quote is from this page:

http://speccoll.library.kent.edu/4may70 ... ology.html

MKSheppard · Post by **MKSheppard** » 2006-03-22 01:43pm

I hate to jump into this really enlightening discussion on Military Law and Ethics; but I just remembered a case from many years ago

Linka

Basically, the widow of a US Army Special Forces Soldier was suing the State of Maryland over the death of her husband.

He was participiating in an exercise at night in Georgia or Florida; and got run over by a truck driven by MD Guardsmen; the truck did not have it's headlights on, and the driver and passenger were not wearing night vision devices, because they hadn't been trained in their use; and basically the courts ruled that the Army/Guard was not liable.

Today, a Montgomery County Circuit Court judge will consider a motion to dismiss a $6 million lawsuit filed by Burris's widow, Karen, accusing the Maryland National Guard of negligence for failing to properly train and equip its soldiers. A similar suit has been filed against the Florida National Guard, which was also involved in the incident. Maryland is claiming immunity under the Feres Doctrine, a Supreme Court ruling from a half-century ago that precludes members of the military from suing over matters incident to service.

An investigation by the Maryland Guard cleared the guardsmen and said Burris bore responsibility. "Major Burris' death resulted most directly from his lack of situational awareness," Maj. Gen. James Fretterd, adjutant general of Maryland, wrote in response to the Army findings.

Linka

September 14, 2000:

ANNAPOLIS, Maryland - The state of Maryland and the Maryland National Guard cannot be held liable in the 1997 death of an Army major who was run over by a truck driven by two guardsmen during training exercises, Maryland's highest court ruled Thursday.

The state Court of Appeals unanimously upheld a 1999 Montgomery County Circuit Court decision in a $6 million lawsuit brought by Major Andrew Burris' widow against the state and the Guard.

Elfdart · Post by **Elfdart** » 2006-03-22 02:38pm

Wow Shep! That's a good one. A SOLDIER is killed in an exercise when he's hit by a Maryland National Guard vehicle. The State of Maryland is sued by the man's family, then the state holds its own investigation and clears itself. Then the state courts rule that Maryland shouldn't have to pay. How convenient!

But then what the case of a SOLDIER being killed in the line of duty has to do with the case of 13 STUDENTS being shot on campus, or a PROTESTER being killed with a bulldozer is a real mystery for the ages.

MKSheppard · Post by **MKSheppard** » 2006-03-22 03:15pm

Elfdart wrote:But then what the case of a SOLDIER being killed in the line of duty has to do with the case of 13 STUDENTS being shot on campus, or a PROTESTER being killed with a bulldozer is a real mystery for the ages.

It was an example of military ethics and liability; since this debate got sidetracked onto it by the Degan/Wong/Wilkens discussion anyway.

Post by **Edi** » 2006-03-22 04:26pm

Did either one of you two pay enough attention to notice that the circumstances of that event were different? The people driving the truck did not and could not know that there would be a soldier on the road, and since they could not notice him, they can't be held to the same degree of responsibility.

The thing is that it is standard operating procedure in night time excercises to often drive with the lights off so that you don't make for such a visible target. Violating those orders would get the truck crew into trouble. The infantry man knows, or is supposed to know these operating procedures, and is also supposed to stay the fuck off the road unless moving along the road somewhere, and he is supposed to pay close attention to his surroundings. The noise of a big truck at night is not something you easily miss, even with hearing protection. And when you're infantry, vehicles have right of way to the degree that when you hear them coming, you simply jump into the ditch or otherwise clear the road. Especially special forces personnel are supposed to know what they are doing.

Neither one of you has been in the armed forces or taken part in any kind of combat excercises, much less night time ones. I have and with the sparse accounting of the situation in those snippets, it sounds more like the soldier who got killed neglecting standard safety procedures to a degree sufficient to significantly reduce any culpability on part of the truck crew than anything else.

So why don't both of you try again.

Edi

Post by **Darth Wong** » 2006-03-22 04:41pm

CmdrWilkens wrote:from the following source:
Law.com
contributory negligence
n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.

Wow, your Google-fu is so impressive. Unfortunately, countless precedents in actual liability lawsuits contradict this "oh I'm so smart I googled it" technique of argument. Drunk drivers who crashed their cars while driving at twice the speed limit have successfully sued manufacturers of automobiles for failing to provide proper warnings about their performance capabilities. Morons who left cans of paint thinner open next to a furnace despite warnings to avoid open flames have successfully sued the paint thinner manufacturer for failing to warn that a furnace was an example of an open flame. If you hit a jaywalker you can be criminally charged if you didn't make enough of an effort to avoid the collision.

You have a duty to mitigate your own damages, which can factor into the size of an award, but saying "he was a dumb-ass, so I was not negligent" will not fly in a court of law. Just try it sometime and see how far it gets you.

Now, not all jurisdictions still hold this as the case I'll grant you (though Maryland is one) but it remains the case that contributing to the fault for much of the history of English law would completely absolve the defendant of responsibility though now comparative negligence is more common. Still if you want to claim I have a schoolyard concept because I actually understand some legal defenses to charges of negligence all I can say is someone should have been paying attention in their Intro to Law class or whatever equivalent you seem to be claiming knowledge from. Next time you want to insult my intelligence try to actually be correct. I don't mind admitting when I'm wrong but I really don't like to be told I am when I'm not. Moreover if you want to hit me with "once again" try to show that I've been wrong more than once or else can the rhetorical bullshit.

No, you only demonstrated that you can Google something and then massively misinterpret it, dipshit. How the fuck do you explain all of those precedents if your interpretation is correct? I love the way you Google something and then figure that's the same as (or superior to) actually studying the matter from a textbook. How the fuck do you think robbers have successfully sued homeowners for having unsafe premises and then injuring themselves on those premises? Have you honestly NEVER paid any attention to lawsuits?

Now that said the real question is whether the operator was negligent, so lets go find a good neutral definition of negligence before you start claiming I have no fucking clue what I'm talking about.

from Law.com again
negligence
n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from "intentional torts" (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another's negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, b) that the defendant's action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused ("proximately caused") by the negligence.
We can both agree that Corrie suffered injuy and that the operator caused it and that the operator owed a duty of care to Corrie.

The disagreement is to whether the operator breached that duty of care. Nothing I've yet seen has shown the operator to have acted in any way not consistent with the reasonable care all heavy equipment operators are expected to take.

Bullshit. If a heavy machine operator on a construction site knew that trespassers were milling around his machine, he would stop operating the machine until those trespassers could be removed.

A car driver is expected to be able to perate his vehicle wihtin the law and with due care for pedestrians not prepare for people to jump in front of the vehicle, in such a situation the driver woudl not be begligent because he fullfilled his duty of care. Given that I would be judged under the exact same doctrine for my own conduct and my own conduct would be used as part of the basis for determining reasonable conduct for a heavy equipment operator I'd say I might have a slightly more informed opinion than you.

More bullshit; you know perfectly well that if you were on a civilian construction site and you knew a bunch of people were milling around your vehicle, you would stop the machine until those people could be removed. You would not just continue operating your front-end loader or dump truck or whatever as if those people weren't there.

That is unless you want to claim you actually know how to safely operate an armored D7. Barring that I'd like to see the minimum standard of proof that the operator breached the duty he owed to Corrie and the injury itself is not proof of that. You have gone on that the oeprator owed a duty of care and yes he did but you haven't yet shown how he breached it. So if you want to claim the operator was negligent then show me how a reasonable operator would have acted in a way that he did not which would have prevented her injury.

I've already pointed out how he breached his duty of care several times, fucktard. What you're saying is that he was within his rules of engagement, which is a complete RED HERRING.

But by all means, if you're so sure that your Google version of law is superior to my textbook-based version, please explain the Lambert vs Lastoplex Chemicals Co 1972 ruling.