# Foiled Terrorist Attack



## Asterix (Jun 7, 2005)

So I happened to have had a couple of friends on the flight that a botched attack took place on. This morning a local NEWS station said the father of the terror suspect called the US embassy to express concerns about his son's extremist views and requested that his son be denied a visa into the US but much later the same boy is on his way to the US; passes 2 countries' airport security stations and later attempts to detonate a makeshift explosive in Detroit's airspace. 

Would I be wrong to think that the passengers on that plane should be suing the 3 countries (US, Nigeria & Netherlands) and maybe the airline?


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## sowilson (Jul 27, 2009)

Yes you're wrong. The attacker was put on a list that happens to have 500000 individuals on it. He was not enough of a credible threat (so it seems) to have been put on the no fly list. You're expecting perfect security, perfect prevention. Sorry to bust your bubble, but that is something you have never and will never have. Unfortunately it appears that we don't have the technical means necessary to properly detect the substances he was carrying. Of course we could strip search everyone for every flight - but no one is willing to pay that cost.


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## Scotch&Cigars (Dec 27, 2009)

sowilson said:


> Unfortunately it appears that we don't have the technical means necessary to properly detect the substances he was carrying.


Actually we do--by several means. Puffer machines and bomb-sniffing dogs both would have detected the substance. This was a clear-cut, complete and utter failing of all security measures.


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## Relayer (Nov 9, 2005)

Not to worry.

Homeland Security Secretary Janet Napolitano said the system worked. Screening procedures were followed and all Americans should feel perfectly safe flying. After all, this is just one instance and the plane did not crash.

I feel better already.


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## Scotch&Cigars (Dec 27, 2009)

Relayer said:


> Not to worry.
> 
> Homeland Security Secretary Janet Napolitano said the system worked. Screening procedures were followed and all Americans should feel perfectly safe flying. After all, this is just one instance and the plane did not crash.
> 
> I feel better already.


Right? My head nearly detached from my neck when I first read her comments. Even given that her comment was meant to ensure that the public did not panic, it was still outrageously imbecilic.


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## Jovan (Mar 7, 2006)

That is one huge miscarriage of security.

Glad that your friends and all other passengers are okay.


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## theCardiffGiant (Sep 16, 2007)

Your suggestion that one might sue over such a matter almost disgusted me. Am I right in thinking that I should be able to sue you for negligent tastelessness?


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## Corcovado (Nov 24, 2007)

To me the major factor is the failure to heed good human intelligence. One would think that a person's own father has no reason to falsify a threat about his own son. Yet the father's comments were not taken seriously it seems. Perhaps there are many more false alarms than I can imagine.


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## JohnRov (Sep 3, 2008)

Corcovado said:


> To me the major factor is the failure to heed good human intelligence. One would think that a person's own father has no reason to falsify a threat about his own son. Yet the father's comments were not taken seriously it seems. Perhaps there are many more false alarms than I can imagine.


Exactly, this is a failure of intelligence, not security.


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## Asterix (Jun 7, 2005)

sowilson said:


> Yes you're wrong. The attacker was put on a list that happens to have 500000 individuals on it. He was not enough of a credible threat (so it seems) to have been put on the no fly list. You're expecting perfect security, perfect prevention. Sorry to bust your bubble, but that is something you have never and will never have. Unfortunately it appears that we don't have the technical means necessary to properly detect the substances he was carrying. Of course we could strip search everyone for every flight - but no one is willing to pay that cost.


Thanks for your response but if the attempt has been successful with the plane getting blown up in Detroit, would you be telling me or anyone else how inconsequential the information is just because he is supposedly one of over 500K suspects? So didn't he just show how stupid the notion that he is not a "credible threat" is? The fact that he only failed due to a defective mechanism/concoction not due to the effective security/intelligence services provided by 3 countries shows a huge security failure.

If a father tells a country's embassy that he is worried about his son's radical/inflammatory views, don't you thinking any right thinking person would be concerned enough to at least decline him entry into America?


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## Asterix (Jun 7, 2005)

theCardiffGiant said:


> Your suggestion that one might sue over such a matter almost disgusted me. Am I right in thinking that I should be able to sue you for negligent tastelessness?


Disgusted you? You are amusingly ridiculous with your feeble attempt at being a smartass. :icon_smile_big:

Maybe if your friends, family members or you had been on the plane you would have a reason to think otherwise especially when the whole crap could have been averted by any of the 3 countries or do we have to wait for something like that to actually happen before we know that such security lapses shouldn't be allowed and if it happens it should be severely punished?


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## Asterix (Jun 7, 2005)

Jovan said:


> That is one huge miscarriage of security.
> 
> Glad that your friends and all other passengers are okay.


Thanks Jovan.


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## Scotch&Cigars (Dec 27, 2009)

Asterix said:


> Disgusted you? You are amusingly ridiculous with your feeble attempt at being a smartass. :icon_smile_big:
> 
> Maybe if your friends, family members or you had been on the plane you would have a reason to think otherwise especially when the whole crap could have been averted by any of the 3 countries or do we have to wait for something like that to actually happen before we know that such security lapses shouldn't be allowed and if it happens it should be severely punished?


An attempt to milk cash out of a nearly-successful attempt is distasteful. And pray tell, what cause of action would you have for such an event? Hint: none. At all.


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## Phinn (Apr 18, 2006)

Scotch&Cigars said:


> An attempt to milk cash out of a nearly-successful attempt is distasteful. And pray tell, what cause of action would you have for such an event? Hint: none. At all.


I have often wondered about this issue. In airline crashes, the decedents' survivors can sue the airlines for the time that the decedent expected he was going to die. Survivors are not only compensated for the death itself, but also for the mental pain and suffering the decedent experienced in the moments before death.

Now, what happens when a person reasonably expects to die, but doesn't? Is not a genuine, reasonable apprehension of imminent death the same kind of pain and suffering, regardless of whether one ends up actually dying?

In any event, it's a largely academic question in this case. Our ever-watchful benefactor -- the US government -- took over airline security functions and gave it all to the Department of Fatherland Security.

And those guys are (conveniently) immune from liability arising from the conduct of their official duties.

(I am not sure if that includes protecting the gropers and foot fetishists, though.)


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## Scotch&Cigars (Dec 27, 2009)

Phinn said:


> I have often wondered about this issue. In airline crashes, the decedents' survivors can sue the airlines for the time that the decedent expected he was going to die. Survivors are not only compensated for the death itself, but also for the mental pain and suffering the decedent experienced in the moments before death.
> 
> Now, what happens when a person reasonably expects to die, but doesn't? Is not a genuine, reasonable apprehension of imminent death the same kind of pain and suffering, regardless of whether one ends up actually dying?


The key is that the decedents had actually perished, thus opening the door to a damages. To recover on the pure expectation of death would seem to require recognition of some form of "Negligent Infliction of Emotional Distress" cause of action; to say this is a controversial theory would be a great understatement. Even in the limited jurisdictions that recognize such a claim, there may be a requirement of some physical injury to a person or property.

And you are correct regarding sovereign immunity, though I'm not sure to what extent that absolves the airlines. It's an interesting question.


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## Mike Petrik (Jul 5, 2005)

Asterix said:


> So I happened to have had a couple of friends on the flight that a botched attack took place on. This morning a local NEWS station said the father of the terror suspect called the US embassy to express concerns about his son's extremist views and requested that his son be denied a visa into the US but much later the same boy is on his way to the US; passes 2 countries' airport security stations and later attempts to detonate a makeshift explosive in Detroit's airspace.
> 
> Would I be wrong to think that the passengers on that plane should be suing the 3 countries (US, Nigeria & Netherlands) and maybe the airline?


I just find this line of reasoning odd. Dad calls US embassy to warn them about giving his son a visa to the US. Son nonetheless apparently secures such a visa. So folks should sue Nigeria, Netherlands and the airline? I can see how the US state dep't seemingly may have committed error in retrospect, but how so anyone else?

Now, I concede that the facts above don't represent the entirety of relevant information, but unless one can identify some type of fault or negligence isn't a lawsuit inapproproate?

Of course I realize that some folks believe that a lawsuit is appropriate any time person A is harmed and needs money and person B is nearby and has some.


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## Asterix (Jun 7, 2005)

Scotch&Cigars said:


> An attempt to milk cash out of a nearly-successful attempt is distasteful. And pray tell, what cause of action would you have for such an event? Hint: none. At all.


Milking as you call it is the norm in America and as far as I know the fact that due diligence was not sufficiently carried out to prevent such a traumatic thing to happen to the passengers then they should (if they chose to) be able to sue for some form of damage(s). Btw, I'm not a legal luminary so pardon my limited use of legal terminology.


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## Asterix (Jun 7, 2005)

Mike Petrik said:


> I just find this line of reasoning odd. Dad calls US embassy to warn them about giving his son a visa to the US. Son nonetheless apparently secures such a visa. So folks should sue Nigeria, Netherlands and the airline? I can see how the US state dep't seemingly may have committed error in retrospect, but how so anyone else?
> 
> Now, I concede that the facts above don't represent the entirety of relevant information, but unless one can identify some type of fault or negligence isn't a lawsuit inapproproate?
> 
> Of course I realize that some folks believe that a lawsuit is appropriate any time person A is harmed and needs money and person B is nearby and has some.


You think it is odd for Nigeria and Amsterdam (maybe the Airline) to be sued but US may qualify by virtue of their being negligent with the information that was given to them in advance by the young man's dad? Wasn't Nigeria and Netherlands careless in their security screening? If both countries had provided the required level of security, would that idiot have been able to board that flight?

Btw, I threw out the question because I feel some people have to be punished for this carelessness. The whole thing was a very crude terrorist attempt that was averted only by God/Allah/Fate/Whatever else anyone wishes to call it.


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## Phinn (Apr 18, 2006)

Scotch&Cigars said:


> The key is that the decedents had actually perished, thus opening the door to a damages. To recover on the pure expectation of death would seem to require recognition of some form of "Negligent Infliction of Emotional Distress" cause of action; to say this is a controversial theory would be a great understatement. Even in the limited jurisdictions that recognize such a claim, there may be a requirement of some physical injury to a person or property.


Yes, I understand that in my hypothetical scenario there is no actual death, but that's precisely why I find the question moderately interesting. Why should the expectation of death be compensable when death actually results, but the expectation of death be considered a worthless claim when the person lives? Should that be the rule even when the expectation of death was both genuine and reasonable? When the outcome of the experience (life or death) is out of the control of the plaintiff, and he is just a passive observer to events that may or may not kill him?

If the expectation of death is not compensable (or even actionable) with regard to a person who lives, then the expectation of death is a bogus measure of damages in cases where the person dies.


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## Scotch&Cigars (Dec 27, 2009)

Asterix said:


> Milking as you call it is the norm in America


So are a lot of other things; that doesn't make them right or tasteful.



Asterix said:


> and as far as I know the fact that due diligence was not sufficiently carried out to prevent such a traumatic thing to happen to the passengers then they should (if they chose to) be able to sue for some form of damage(s).


Incorrect.


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## Mike Petrik (Jul 5, 2005)

Phinn said:


> Yes, I understand that in my hypothetical scenario there is no actual death, but that's precisely why I find the question moderately interesting. Why should the expectation of death be compensable when death actually results, but the expectation of death be considered a worthless claim when the person lives? Should that be the rule even when the expectation of death was both genuine and reasonable? When the outcome of the experience (life or death) is out of the control of the plaintiff, and he is just a passive observer to events that may or may not kill him?
> 
> If the expectation of death is not compensable (or even actionable) with regard to a person who lives, then the expectation of death is a bogus measure of damages in cases where the person dies.


It has been many years since law school, but I'm pretty sure not all states recognize the tort known as "negligent infliction of emotional distress," though many do -- most notably California. I think historically courts were not disposed to consider emotional distress alone a sufficient "injury" to satisfy that element in a negligence claim. As a consequence the modern tort know as "intential affliction of emotional distress" eventually emerged followed by the still newer tort (independent of common law "negligence") known as "negligent affliction of emotional distress." Even in states that do recognize emotional distress as a sufficient injury to satisfy a some type of tort claim some measure of culpability must be proven, either intent or negligence. Finally, it is conceivable that airlines are immune from normal state tort rules via preemptive federal legislation or related FAA regulations, but I have no idea.


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## Asterix (Jun 7, 2005)

Scotch&Cigars said:


> So are a lot of other things; that doesn't make them right or tasteful.
> 
> Incorrect.


Please enlighten me as to what makes it wrong to sue a government you pay taxes to to protect you when it fails in its duty or to sue a government that fails to do its duty of protecting people in its territory by providing security. Also enlighten me as to what taste has to do with this? :icon_smile:


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## Scotch&Cigars (Dec 27, 2009)

Phinn said:


> Yes, I understand that in my hypothetical scenario there is no actual death, but that's precisely why I find the question moderately interesting. Why should the expectation of death be compensable when death actually results, but the expectation of death be considered a worthless claim when the person lives? Should that be the rule even when the expectation of death was both genuine and reasonable? When the outcome of the experience (life or death) is out of the control of the plaintiff, and he is just a passive observer to events that may or may not kill him?
> 
> If the expectation of death is not compensable (or even actionable) with regard to a person who lives, then the expectation of death is a bogus measure of damages in cases where the person dies.


It probably comes from the hesitance to adopt NIED generally, which is a potentially limitless theory of recovery with difficult line-drawing (as if society wasn't litigious enough) and lots of potential for abuse. I'm not a P.I. attorney so I'm not entirely familiar with the reasoning, but that's what strikes me. Perhaps a little illogical, but then again, so are a lot of things in the law.


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## Scotch&Cigars (Dec 27, 2009)

Asterix said:


> Please enlighten me as to what makes it wrong to sue a government you pay taxes to to protect you when it fails in its duty or to sue a government that fails to do its duty of protecting people in its territory by providing security. Also enlighten me as to what taste has to do with this? :icon_smile:


To begin with, you have to have cause of action... You can't just sue for anything.

Taste and class would have gone a long way in preventing American society from becoming as overly and unnecessarily litigious as it has become. Put simply, it was a close call, but (thankfully) no harm came to your friends. They weren't injured, so stop trying to make a quick buck off of every unfortunate situation.


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## Henry346 (Oct 31, 2009)

Scotch&Cigars said:


> To begin with, you have to have cause of action... You can't just sue for anything.
> 
> Taste and class would have gone a long way in preventing American society from becoming as overly and unnecessarily litigious as it has become. Put simply, it was a close call, but (thankfully) no harm came to your friends. They weren't injured, so stop trying to make a quick buck off of every unfortunate situation.


Make a quick buck? It's punishing the responsible party. This is how change is affected.


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## Scotch&Cigars (Dec 27, 2009)

Henry346 said:


> Make a quick buck? It's punishing the responsible party. This is how change is affected.


The airlines are not responsible for security, and thus are not liable. The government is immune. Further, change is unlikely to come from suing the government over a matter like this.

You can justify any lawsuit by that logic, no matter how stupid the actions of the plaintiff. And then everyone complains about the unethical lawyers and "ambulance chasers." Nobody considers that clients are the problem...


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## Asterix (Jun 7, 2005)

Scotch&Cigars said:


> To begin with, you have to have cause of action... You can't just sue for anything.
> 
> Taste and class would have gone a long way in preventing American society from becoming as overly and unnecessarily litigious as it has become. Put simply, it was a close call, but (thankfully) no harm came to your friends. They weren't injured, so stop trying to make a quick buck off of every unfortunate situation.


Pardon my limited knowledge of the legal jargon but what cause of action are you supposed to be looking for?

No offense but I have reservations about your use of taste or class contextually in the sentence above.

Now as per the bit about my friends, I doubt that they would be suing for a quick buck as you coined it if they even think of suing at all. Again I asked the question to get the various perspectives and as with the other folks, I appreciate yours too.


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## Asterix (Jun 7, 2005)

Scotch&Cigars said:


> The airlines are not responsible for security, and thus are not liable. * The government is immune. * Further, change is unlikely to come from suing the government over a matter like this.
> 
> You can justify any lawsuit by that logic, no matter how stupid the actions of the plaintiff. And then everyone complains about the unethical lawyers and "ambulance chasers." Nobody considers that clients are the problem...


Officially yes but in many cases, some governments have waived this immunity to allow for suits which is not to say they'd do this in this situation.


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## Scotch&Cigars (Dec 27, 2009)

Asterix said:


> Pardon my limited knowledge of the legal jargon but what cause of action are you supposed to be looking for?
> 
> No offense but I have reservations about your use of taste or class contextually in the sentence above.
> 
> Now as per the bit about my friends, I doubt that they would be suing for a quick buck as you coined it if they even think of suing at all. Again I asked the question to get the various perspectives and as with the other folks, I appreciate yours too.


A cause of action is a legal theory for recovery, e.g., negligence, wrongful death, or intentional infliction of emotional distress. Emotional distress is typically only actionable when accompanied by some sort of physical harm. As it stands right now, the passengers have not been harmed in any legally actionable way.

No offense taken; I am not particularly concerned.

I can see no real purpose of filing a lawsuit here unless the goal is to profit from it. I know that the lawsuit was your hypothetical question, and not a real idea of your friends, and thus my comments are not at all directed toward them. But I must reiterate the position that contrary to the societal norm these days, the answer to every unfortunate incident that befalls one is not a lawsuit.


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## Mike Petrik (Jul 5, 2005)

Scotch&Cigars said:


> A cause of action is a legal theory for recovery, e.g., negligence, wrongful death, or intentional infliction of emotional distress. Emotional distress is typically only actionable when accompanied by some sort of physical harm. As it stands right now, the passengers have not been harmed in any legally actionable way.
> 
> No offense taken; I am not particularly concerned.
> 
> I can see no real purpose of filing a lawsuit here unless the goal is to profit from it. I know that the lawsuit was your hypothetical question, and not a real idea of your friends, and thus my comments are not at all directed toward them. But I must reiterate the position that contrary to the societal norm these days, the answer to every unfortunate incident that befalls one is not a lawsuit.


While I agree that the matter is probably not actionable, I don't think that the statement that "emotional distress is typically only actionable when accompanied by some sort of physical harm" is correct. Virtually every state recognizes the tort of intentional infliction of emotional distress and I believe more than one-half now recognize the tort of negligent infliction of emotional distress. The elements of these torts do not include a physical injury. That said, I do believe that the modern development of these torts is in response to the fact that traditional negligence claims did normally require a physical injury.

Finally, I agree with S&C that we are too quick in the US in thinking any distasteful event must be caused by someone's negligence. Not all injuries are caused by mistakes and not all mistakes constitute negligence. The cause of the distress of passengers in this case is the Nigerian who brought the bomb onto the aircraft and any accomplices. The impulsive need to find others to blame is perverse and usually unfair. Security procedures are necessarily imperfect given competing considerations and the human condition. Like most things in life they evolve by trial and error.

And yes, I am a lawyer, but I'm old and relying on imperfect memory.


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## Scotch&Cigars (Dec 27, 2009)

Mike Petrik said:


> While I agree that the matter is probably not actionable, I don't think that the statement that "emotional distress is typically only actionable when accompanied by some sort of physical harm" is correct. Virtually every state recognizes the tort of intentional infliction of emotional distress and I believe more than one-half now recognize the tort of negligent infliction of emotional distress. The elements of these torts do not include a physical injury. That said, I do believe that the modern development of these torts is in response to the fact that traditional negligence claims did normally require a physical injury.


My comment about emotional distress only being actionable when accompanied by a physical harm was meant to apply only to the claims at hand in this case. IIED obviously does not require the physical injury, but it is also thoroughly inapplicable if one looks at the governments and airline as the potential defendants. Apologies for not being more clear.

As I said, since I don't do P.I., I may be slightly behind changes in the law, but I am under the impression that NIED is indeed still very controversial and not close to a 50-50 divide. And in many states that do allow it, there is a physical injury rule which limits the application (for the sake of line-drawing, rather than any logical underpinning).



Mike Petrik said:


> Finally, I agree with S&C that we are too quick in the US in thinking any distasteful event must be caused by someone's negligence. Not all injuries are caused by mistakes and not all mistakes constitute negligence. The cause of the distress of passengers in this case is the Nigerian who brought the bomb onto the aircraft and any accomplices. The impulsive need to find others to blame is perverse and usually unfair. Security procedures are necessarily imperfect given competing considerations and the human condition. Like most things in life they evolve by trial and error.


Very eloquently stated.


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## PetroLandman (Apr 21, 2006)

*Great thread:*

First, I thank God that the flight ended as it did and all are well.
Second, after spending the day in a deposition, I am predisposed to think ill of lawyers this evening, but am intrigued by the direction taken in this thread. I find myself agreeing with Scotch & Cigars (I am sipping Balvenie and puffing a Rocky Patel Decade as I type) as to the coarseness of our society vis-a-vis frivolous lawsuits. Taste and class would probably not have been the words I would have pulled from the shelf, but upon thinking about it, I think they fit nicely. Last year a family member was driving along a two-lane road, cresting a hill and found himself hurtling headlong into the front grill of a Peterbilt. The driver of the truck had been forced to make a decision whether to rear-end three cars or swerve and pray no one was in the oncoming lane. Robert was. His pickup was so unrecognizable that his nephew who is a deputy sheriff and present at the scene did not realize it was his uncle who he saw virtually every day. Except for a broken femur, NO injuries! His truck was replaced, his medical bills were paid, his flatbed trailer and the tractor he was pulling on it were replaced and he is happy. Yet we have some family members who, in their words, would 'own that damn trucking company'. I have to leave the room when the subject comes up. As mentioned above, not all mistakes demand a lawsuit and compensation.


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## Scotch&Cigars (Dec 27, 2009)

PetroLandman said:


> First, I thank God that the flight ended as it did and all are well.


Amen.



PetroLandman said:


> I find myself agreeing with Scotch & Cigars (I am sipping Balvenie and puffing a Rocky Patel Decade as I type)


Both excellent choices. While I much prefer the peat smoke of Islay malts, I have been caught sipping on a glass of the Balvenie 21-year portwood finish. After spending a day in a deposition (either as a deponent or an attorney), I would be doing the same thing (more likely, times two)



PetroLandman said:


> Taste and class would probably not have been the words I would have pulled from the shelf, but upon thinking about it, I think they fit nicely.


While I do stand by my initial word choice, upon reflection, I might have also chosen the words tact and sensibility.



PetroLandman said:


> Last year a family member was driving along a two-lane road, cresting a hill and found himself hurtling headlong into the front grill of a Peterbilt. The driver of the truck had been forced to make a decision whether to rear-end three cars or swerve and pray no one was in the oncoming lane. Robert was. His pickup was so unrecognizable that his nephew who is a deputy sheriff and present at the scene did not realize it was his uncle who he saw virtually every day. Except for a broken femur, NO injuries! His truck was replaced, his medical bills were paid, his flatbed trailer and the tractor he was pulling on it were replaced and he is happy. Yet we have some family members who, in their words, would 'own that damn trucking company'. I have to leave the room when the subject comes up. As mentioned above, not all mistakes demand a lawsuit and compensation.


Thankfully your family member was relatively unscathed. I would feel the same as you (if that were not obvious). There is a distinction between a person who does injury to another via conduct calculated (or otherwise) to consider only his best interests, and a person who does injury via conduct which, while legally might be negligent, was calculated in a good-faith effort to do the proper thing. The latter typically does not call for the abrasiveness of a lawsuit, in my opinion.


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