establishing standards of reasonable care

5

Click here to load reader

Upload: c-a

Post on 18-Mar-2017

215 views

Category:

Documents


1 download

TRANSCRIPT

Page 1: Establishing Standards of Reasonable Care

httpergsagepubcomFactors Applications

Ergonomics in Design The Quarterly of Human

httpergsagepubcomcontent10215The online version of this article can be found at

DOI 101177106480460201000205

2002 10 15Ergonomics in Design The Quarterly of Human Factors ApplicationsH Harvey Cohen and Cindy A Larue

Reasonable CareEstablishing Standards of

Published by

httpwwwsagepublicationscom

On behalf of

Human Factors and Ergonomics Society

can be found atErgonomics in Design The Quarterly of Human Factors ApplicationsAdditional services and information for

httpergsagepubcomcgialertsEmail Alerts

httpergsagepubcomsubscriptionsSubscriptions

httpwwwsagepubcomjournalsReprintsnavReprints

httpwwwsagepubcomjournalsPermissionsnavPermissions

httpergsagepubcomcontent10215refshtmlCitations

What is This

- Apr 1 2002Version of Record gtgt

at UQ Library on November 14 2014ergsagepubcomDownloaded from at UQ Library on November 14 2014ergsagepubcomDownloaded from

Establish middotngS andards

Human factorsergonomicsprofessionals can help to determinethe scientific basis behind the successor failure of standards of care

of Reasonable CareBY H HARVEY COHEN amp CINDY A LARUE

I

I

NegligenceThe tort of negligence consists of four elements legal

duty breach of the standard of care causation and damageIn order to recover monetary damages the plaintiff (theinjured party) must prove each of these elements Legalduty is established when it is determined that the defendant(alleged injuring party) owes a duty to the plaintiffGenerally a breach of standard of care exists when a personfails to act with ordinary or reasonable care When thisaction or nonaction results in injury or damage to someoneelse causation is proven

Finally damages are the negative results of the action ornonaction usually physical injuries or property damages Ifit is disputed whether the conduct in question violated thestandard of care the case is submitted to a trier of fact usu-ally a jury

Because the field of human factorsergonomics is con-cerned with how people interact within their environmentsit can provide valuable testimony in assisting the trier of factin deciding whether a particular conduct met or breachedthe legal standard of care HFE can also be used to provethat failure to adhere to the standard of care caused thedamages

and injuries the courts willaddress These wrongful actsare called torts In generala person is required to useordinary or reasonable care(BAJI 310 California CivilCode Section 1714) Thoughthe case law referenced here islargely illustrative of that inCalifornia similar law existsin other US jurisdictions

Negligence is a term used to define the failure to useordinary care The tort of negligence may occur whensomeone unintentionally harms another by not exercisingordinary care

One evening an elderly couple was maneuveringtheir recreational vehicle onto a terraced padat a campground While the husband wasbacking up the wife was walking backward atthe rear of the vehicle directing her husband

As she continued walking backward toward the rear of thepad she fell off a four-foot drop onto the RV pad belowsuffering a severe blow to the head Who is to blame for thisaccident Is it the fault of the campground operators for nothaving a railing or warning at the back of the pad to preventsuch a fall Or is it the womans fault for not paying atten-tion to where she was going walking backward in an unfa-miliar setting

These types of issues and questions are common tothose human factorsergonomics (HFE) professionals whoprovide forensic consulting It is not always easy to deter-mine who is at fault for a particular event It is even harderto explain scientifically why a certain party mayor may notbe at fault In this article we address some of the legal termsused to determine the cause of an accident and if partiesinvolved acted reasonably under the prevailing conditions(meeting a standard of reasonable care) Case studies arepresented that show how human factorsergonomics princi-ples have proven effective in defining many of these legalterms scientifically and with a strong basis in experimentalresults Through the use of forensic HFE investigation andtestimony standards of reasonable care in various situationscan be developed and applied within the legal system and inthe interest of public safety

Laws exist to govern human conduct and therefore mustreflect societal expectations for individual behavior Par-ticularly unacceptable behavior may be considered criminalresulting in punishment by the government The law alsorecognizes private wrongs and gives citizens a method forresolving these private disputes Frequently the remedy forsuch civil injuries is monetary compensation

People are expected to honor their promises so theuse of contracts is common However even without acontractual relationship there are certain civil wrongs

SPRING 2002 bull ERGONOMICS IN DESIGN IS

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Standard of CareWhen a dispute exists as to whether a person has violated

a standard of care the judge must determine the appropriatestandard of care and instruct the jury of its responsibility inrelation to that standard (Luther Survey of Torts Section612 p 66) The jury once presented with the general legalprinciples must then examine and analyze evidence todetermine whether or not the defendant met the appropriatestandard of care

The issue of breaching the standard of care arises whenit has been alleged that the defendant violated a certainstatute or code For instance in California the absenceof due care is presumed if a person violates a statuteordinance or law and the violation causes an injury(California Evidence Code Section 669) In such an instancethe judge instructs the jury that if it finds that a partyviolated the particular law then the party was negligent(BAJJ 345)

Case 1Breach of the standard of care The following isan example of a case in which our forensic HFE consultingfirm was retained The case involved a slip-and-fall incident

of tort negligence legal duty breach of the standard of carecausation and damage HFE cannot address the issues ofwhether a legal duty is owed and the monetary extent of thedamages incurred However our firms expertise in HFEhelped to prove that the landlord breached the standardof care by not providing a building in compliance withthe applicable code requirements In addition our firmaddressed the issue of causation and showed that thenoncompliance of the stairway more likely than not causedthe misstep and resulting injuries

Case 2 Meeting the standard of care In another case inwhich our firm was retained we concluded that the ownerof a premise did not breach the standard of care The defen-dant was a gas station owner The plaintiff claimed to haveslipped and fallen in spilled gasoline but maintenancerecords at the gas station indicated that the station had ameticulous inspection procedure and maintained excellentrecords of its cleaning and maintenance The gas stationpersonnel conducted periodic routine inspections of theproperty and remedied potentially dangerous conditions(eg use of an absorbent on beverages spilled by customers)

HFE can also be used to prove that failureto adhere to the standard of care causedthe damages

on an apartment complex stairway The possible breach of astandard of care in the building industry was at issue Theplaintiff was descending the stairs when he misstepped andfell from the bottom step Inspection of the stairway re-vealed that the top six risers measured approximately5-14 inches high whereas the seventh (bottom) risermeasured only 4 inches This variation of 1-14 inches farexceeded the minimum acceptable variation of 38 inch aspermitted by the Uniform Building Code (VBC) The suddenchange in riser height led to a disruption of the plaintiffsgait causing him to lose his balance fall and seriously injurehis kneecap

The basis for the stairway section of the VBC is groundedin sound HFE principles (Templer 1992) Experience overtime creates and reinforces certain expectations for stairusers regarding the stair riser and tread dimensions and howthey place their feet without looking down in anticipationof these dimensions Therefore large variations in both riserand tread dimensions may seriously disrupt a persons nor-mal gait based on these expectations The VBC realizes thisconcept by setting the allowed variation in stairway risersand treads to be no greater than 38 inch

Because the stairway was not built or maintainedaccording to the prevailing code the plaintiffs lawyerattempted to prove the defendant was negligent Thisrequired the plaintiffs attorney to prove the four elements

16 SPRING 2002 bull ERGONOMICS IN DESIGN

in a timely and appropriate manner Based on an inspectionof the facility and a review of the station owners mainte-nance policies and inspection records we concluded thatthe defendant met and actually exceeded the standard of carefor the gas station industry

Reasonable BehaviorNegligence occurs when someone does something that a

reasonably prudent person would not do or fails to dosomething that a reasonably prudent person would do underthe circumstances (BAJI 310) For example if a reasonablebuilding owner recognized the existence of a hazard on hisproperty and had the ability to eliminate that hazard hewould be negligent if someone was injured as a result of hisnot taking reasonable steps to reduce or eliminate thehazard

Numerous factors may be examined when determiningwhether or not a reasonable person would recognize andappreciate the unreasonable risk that his or her conductposed to another These (human) factors include but arenot limited to the attention perception of the circum-stances memory knowledge intelligence and judgmentof a reasonable person (Restatement of the Law SecondTorts 2nd Vol 2 Section 289 pp 41-43) In order for aperson to be considered negligent her action or inaction(errors of omission or commission) which caused the

at UQ Library on November 14 2014ergsagepubcomDownloaded from

injury must be avoidable (BAH 311) The jury may considera standard custom or practice when deciding whether or nota person recognized and fIxed a hazard in compliance withstandard practices Although this method uses inconclusiveevidence it is relevant and may be used as a guidepost inmaking a determination (BAH 316)

Case 3 Reasonable behavior The following is an exam-ple of a case involving the issue of reasonable behavior inwhich our fIrm was retained The driver of a tractor-trailerwas traveling on a busy freeway before dawn when hisengine suddenly stopped causing him to stall in one of thefreeway lanes He attempted to set out reflective trianglesand flares but was frightened by the fast-moving traffic andclimbed back into the cab turned on his emergency flashersand waited for help Shortly after the driver returned to thecab a driver in an Isuzu Rodeo quickly switched lanes andrear-ended the tractor-trailer The driver of the Isuzu diedupon impact

Attorneys for the Isuzu drivers survivors argued that itwas inappropriate for the tractor-trailer driver to stop in alane of traffic and that he failed to make his presence known

The defendant provided a safe environment and based onanthropometric data and measurements we determinedthat the slight defect in a non structural member of the stoolcould not possibly have contributed to her fall

Contributory NegligenceComparative Fault andAssumption of the Risk

Prior to 1975 in California a defendant could assert thedefense of contributory negligence to prevent the plaintifffrom receiving any compensation for damages In this situ-ation it was recognized that the plaintiff had a responsibilityto take care of himself If the plaintiff failed to act as anordinarily prudent person then it was his own negligencethat contributed to his injury So even if the defendant waspartially responsible for the injury any negligence con-tributing to the accident - no matter how slight - barredrecovery of damages

In 1975 California adopted the comparative faultstandard Under this type of system fault is allocated on apercentage basis and the plaintiffs recovery is reduced

HFE cannot address the issues of whethera legal duty is owed and the monetaryextent of the damages incurred

to other drivers because of dim andor ineffective emergencyflashers Attorneys for the defense of the tractor-trailer driverrequested that our firm address issues of attentivenessperception-reaction and appropriateness of behavior

By applying HFE principles we determined that thedriver of the tractor-trailer had behaved reasonably underthe circumstances Illumination measurements indicatedthat the emergency flashers were bright enough to be seenby other drivers witnesses and emergency crews In addi-tion the alternating lights of the emergency flashers weremore visually compelling than a static warning signal(Woodson 1998) The investigation results indicated thatthe fatality was caused by the impatience and inattentivenessof the Isuzu driver and his failure to notice the visual cuesof the stalled vehicle

Case 4 Unreasonable behavior One case involvingwhat we considered unreasonable behavior dealt with a fallincident that occurred in a casino The plaintiff claimedthat her fall from a barstool and the resulting injuries werecaused by a broken weld in the foot ring of the stool whichcould swivel 90 degrees in either direction Our review of thecase facts and investigation of the stool led to the opinionthat the plaintiff did not exercise reasonable care while dis-mounting from the stool She claimed she dismounted whilepushing off the footrest ring with both feet - an impossibility

accordingly For example if the damages are $100000 andthe jury finds the defendant 75 responsible and theplaintiff 25 responsible the plaintiff will receive $75000

A separate but related defense is assumption of the riskAssumption of the risk like contributory negligence acts asa complete bar to recovery A person assumes the risk whenshe voluntarily and knowingly exposes herself to discern ablehazards incident to certain activities (Witkin Summary ofCA Law 9th ed Torts 1104 p 515) Whereas comparativeand contributory negligence by definition involve un-reasonable conduct a person may act in a completelyreasonable manner and still assume the risk for her actions(Fouseca v Orange 1972 28 Cal App 3d 361 at 368) If aperson signs a release prior to engaging in an activity hemay assume the risk for any normal hazards inherent insuch an activity However the assumption may be impliedeven if there is no written release

In California the law recognizes a distinction betweenprimary and secondary assumption of the risk (WitkinSummary of CA Law 9th ed Supplement Torts 1090Knight v Jewett [1992] ed Cal 4th 296) Primary assump-tion of the risk acts as a complete bar to recovery whereassecondary assumption of the risk apportions the liabilitybased on fault Primary assumption of the risk entails casesin which a defendant does not owe the plaintiff any legal dutyOne example is participation in sports activities California

SPRING 2002 bull ERGONOMICS IN DESIGN 17

at UQ Library on November 14 2014ergsagepubcomDownloaded from

courts have stated that a person does not have a duty toguard against the risk of injury to another when those risksare inherent in the sport

Case 5 Comparative fault and assumption of the riskIn the following case in which our expert opinions weresought with respect to the issues of comparative fault andassumption of the risk a man was jogging in the earlymorning hours near a road under construction Barricadesand signs indicated that the road was closed to all trafficConstruction equipment was parked at the site The plaintiffsaw the signs indicating the road was closed but instead ofcontinuing on a readily available alternative route away fromthe construction he failed to heed the signs and jogged pastthem onto the construction site As he was running on thesite he fell into a six-foot-deep trench and suffered severeinjuries

The first area of concern was whether the people responsi-ble for the site took adequate measures to secure the area (iereasonable care) HFE principles provide a hierarchicalframework to assist in answering this question The preventiveoptions in the preferred order are (a) eliminate the danger(b) reduce the risk of injury by guarding against entry and(c) warn about the danger (Cohen amp LaRue 1997)

In this case eliminating the risk was infeasible Researchin human factors and applied experimental psychology hasshown that as the size of an impediment increases thenumber of people who will alter their behavior in responseto the impediment increases as well (this is referred to as theprinciple of response cost) The barricades and warnings wereenough of an impediment that a reasonable person wouldalter his behavior and take the designated alternative routeThis HFE concept also bears on the plaintiffs comparativefault The jogger took deliberate steps to defeat the barricadeinferring that he understood the risks and still ventured ontothe site At this point the assumption of risk and theamount of comparative fault by the plaintiff become issues

Case 6 No comparative fault Our opinions were theopposite on another case in which our firm was retained Anelderly plaintiff went on an overnight deep-sea fishing tripwith his grown grandson He was in the process of removingice from an ice chest on the boat when a large swell causedthe boat to pitch The plaintiff fell across the galley anddown a staircase fatally striking his head

Our investigation determined that the design of the icechest required the plaintiff to bend precariously at the waistwithout any handhold In addition there were insufficienthandholds throughout the galley unlike on other charter

18 SPRING 2002 bull ERGONOMICS IN DESIGN

fishing boats It was our opinion that the defendants did nottake reasonable care to ensure the safety of the passengersThe risk of seawater action is foreseeable and cannot beeliminated on a boat however reducing the risk by equip-ping the boat with adequate handrails would have provideda reasonable person the opportunity to maintain or regainhis or her balance in order to arrest a fall

ConclusionAlthough the field of human factorsergonomics does

not create the laws pertaining to standards of care it hasproven effective in assisting the trier of fact to define themscientifically Through the use of forensic HFE investiga-tion and testimony standards of reasonable care in varioussituations and contexts can be further developed evaluatedand refined within the legal system and in the interest ofpublic safety

ReferencesAmerican Law Institute (1965) Restatement of the Law Second (Torts 2d

Vol 2) St Paul MN American Law Institute PublishersCalifornia Jury Instructions Book of Approved Jury Instructions (BAJI)

(1994 Supplement January 1996) Committee on Standard JuryInstructions Civil Superior Court of Los Angeles County CA Vol J8th ed St Paul MN West Publishing

Cohen H amp LaRue C (1997) A hierarchy of bases for expert opinion inforensic human factors Advice from an expert witness Ergonomics inDesign 5(4) 19-24

International Conference of Building Officials (1997) Uniform building codeVolume I Whittier CA Author

Luther C (1984) Survey of torts (4th ed) Fair Oaks CA CharterPublishing

Templer J (1992) The staircase Studies of hazards falls and safer designCambridge Massachusetts Institute of Technology Press

Witkin B (1988) Summary of California Law Vol 6 Torts (9th ed) SanFrancisco Bancroft-Whitney Co

Woodson W (1998) Human factors engineering for forensic and safetyspecialists Tucson Lawyers and Judges Publishing

Cases and Statutes CitedCalifornia Civil Code Section 1714California Evidence Code Section 669Fouseca v Orange (1972) 28 Cal App 3d 361Knight v Jewett (1992) 3 Cal 4th 296 11 CalRptr2d 2

H Harvey Cohen CPE is president of Error Analysis Inca forensic human factorsergonomics research and consultingfirm 5811 Amaya Dr Suite 205 La Mesa CA 91942-4156He is a Fellow of the Human Factors and Ergonomics SocietyCindy A LaRue CPE is a vice president of Error Analysis anda frequent coauthor of publications with Cohen mil

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Page 2: Establishing Standards of Reasonable Care

Establish middotngS andards

Human factorsergonomicsprofessionals can help to determinethe scientific basis behind the successor failure of standards of care

of Reasonable CareBY H HARVEY COHEN amp CINDY A LARUE

I

I

NegligenceThe tort of negligence consists of four elements legal

duty breach of the standard of care causation and damageIn order to recover monetary damages the plaintiff (theinjured party) must prove each of these elements Legalduty is established when it is determined that the defendant(alleged injuring party) owes a duty to the plaintiffGenerally a breach of standard of care exists when a personfails to act with ordinary or reasonable care When thisaction or nonaction results in injury or damage to someoneelse causation is proven

Finally damages are the negative results of the action ornonaction usually physical injuries or property damages Ifit is disputed whether the conduct in question violated thestandard of care the case is submitted to a trier of fact usu-ally a jury

Because the field of human factorsergonomics is con-cerned with how people interact within their environmentsit can provide valuable testimony in assisting the trier of factin deciding whether a particular conduct met or breachedthe legal standard of care HFE can also be used to provethat failure to adhere to the standard of care caused thedamages

and injuries the courts willaddress These wrongful actsare called torts In generala person is required to useordinary or reasonable care(BAJI 310 California CivilCode Section 1714) Thoughthe case law referenced here islargely illustrative of that inCalifornia similar law existsin other US jurisdictions

Negligence is a term used to define the failure to useordinary care The tort of negligence may occur whensomeone unintentionally harms another by not exercisingordinary care

One evening an elderly couple was maneuveringtheir recreational vehicle onto a terraced padat a campground While the husband wasbacking up the wife was walking backward atthe rear of the vehicle directing her husband

As she continued walking backward toward the rear of thepad she fell off a four-foot drop onto the RV pad belowsuffering a severe blow to the head Who is to blame for thisaccident Is it the fault of the campground operators for nothaving a railing or warning at the back of the pad to preventsuch a fall Or is it the womans fault for not paying atten-tion to where she was going walking backward in an unfa-miliar setting

These types of issues and questions are common tothose human factorsergonomics (HFE) professionals whoprovide forensic consulting It is not always easy to deter-mine who is at fault for a particular event It is even harderto explain scientifically why a certain party mayor may notbe at fault In this article we address some of the legal termsused to determine the cause of an accident and if partiesinvolved acted reasonably under the prevailing conditions(meeting a standard of reasonable care) Case studies arepresented that show how human factorsergonomics princi-ples have proven effective in defining many of these legalterms scientifically and with a strong basis in experimentalresults Through the use of forensic HFE investigation andtestimony standards of reasonable care in various situationscan be developed and applied within the legal system and inthe interest of public safety

Laws exist to govern human conduct and therefore mustreflect societal expectations for individual behavior Par-ticularly unacceptable behavior may be considered criminalresulting in punishment by the government The law alsorecognizes private wrongs and gives citizens a method forresolving these private disputes Frequently the remedy forsuch civil injuries is monetary compensation

People are expected to honor their promises so theuse of contracts is common However even without acontractual relationship there are certain civil wrongs

SPRING 2002 bull ERGONOMICS IN DESIGN IS

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Standard of CareWhen a dispute exists as to whether a person has violated

a standard of care the judge must determine the appropriatestandard of care and instruct the jury of its responsibility inrelation to that standard (Luther Survey of Torts Section612 p 66) The jury once presented with the general legalprinciples must then examine and analyze evidence todetermine whether or not the defendant met the appropriatestandard of care

The issue of breaching the standard of care arises whenit has been alleged that the defendant violated a certainstatute or code For instance in California the absenceof due care is presumed if a person violates a statuteordinance or law and the violation causes an injury(California Evidence Code Section 669) In such an instancethe judge instructs the jury that if it finds that a partyviolated the particular law then the party was negligent(BAJJ 345)

Case 1Breach of the standard of care The following isan example of a case in which our forensic HFE consultingfirm was retained The case involved a slip-and-fall incident

of tort negligence legal duty breach of the standard of carecausation and damage HFE cannot address the issues ofwhether a legal duty is owed and the monetary extent of thedamages incurred However our firms expertise in HFEhelped to prove that the landlord breached the standardof care by not providing a building in compliance withthe applicable code requirements In addition our firmaddressed the issue of causation and showed that thenoncompliance of the stairway more likely than not causedthe misstep and resulting injuries

Case 2 Meeting the standard of care In another case inwhich our firm was retained we concluded that the ownerof a premise did not breach the standard of care The defen-dant was a gas station owner The plaintiff claimed to haveslipped and fallen in spilled gasoline but maintenancerecords at the gas station indicated that the station had ameticulous inspection procedure and maintained excellentrecords of its cleaning and maintenance The gas stationpersonnel conducted periodic routine inspections of theproperty and remedied potentially dangerous conditions(eg use of an absorbent on beverages spilled by customers)

HFE can also be used to prove that failureto adhere to the standard of care causedthe damages

on an apartment complex stairway The possible breach of astandard of care in the building industry was at issue Theplaintiff was descending the stairs when he misstepped andfell from the bottom step Inspection of the stairway re-vealed that the top six risers measured approximately5-14 inches high whereas the seventh (bottom) risermeasured only 4 inches This variation of 1-14 inches farexceeded the minimum acceptable variation of 38 inch aspermitted by the Uniform Building Code (VBC) The suddenchange in riser height led to a disruption of the plaintiffsgait causing him to lose his balance fall and seriously injurehis kneecap

The basis for the stairway section of the VBC is groundedin sound HFE principles (Templer 1992) Experience overtime creates and reinforces certain expectations for stairusers regarding the stair riser and tread dimensions and howthey place their feet without looking down in anticipationof these dimensions Therefore large variations in both riserand tread dimensions may seriously disrupt a persons nor-mal gait based on these expectations The VBC realizes thisconcept by setting the allowed variation in stairway risersand treads to be no greater than 38 inch

Because the stairway was not built or maintainedaccording to the prevailing code the plaintiffs lawyerattempted to prove the defendant was negligent Thisrequired the plaintiffs attorney to prove the four elements

16 SPRING 2002 bull ERGONOMICS IN DESIGN

in a timely and appropriate manner Based on an inspectionof the facility and a review of the station owners mainte-nance policies and inspection records we concluded thatthe defendant met and actually exceeded the standard of carefor the gas station industry

Reasonable BehaviorNegligence occurs when someone does something that a

reasonably prudent person would not do or fails to dosomething that a reasonably prudent person would do underthe circumstances (BAJI 310) For example if a reasonablebuilding owner recognized the existence of a hazard on hisproperty and had the ability to eliminate that hazard hewould be negligent if someone was injured as a result of hisnot taking reasonable steps to reduce or eliminate thehazard

Numerous factors may be examined when determiningwhether or not a reasonable person would recognize andappreciate the unreasonable risk that his or her conductposed to another These (human) factors include but arenot limited to the attention perception of the circum-stances memory knowledge intelligence and judgmentof a reasonable person (Restatement of the Law SecondTorts 2nd Vol 2 Section 289 pp 41-43) In order for aperson to be considered negligent her action or inaction(errors of omission or commission) which caused the

at UQ Library on November 14 2014ergsagepubcomDownloaded from

injury must be avoidable (BAH 311) The jury may considera standard custom or practice when deciding whether or nota person recognized and fIxed a hazard in compliance withstandard practices Although this method uses inconclusiveevidence it is relevant and may be used as a guidepost inmaking a determination (BAH 316)

Case 3 Reasonable behavior The following is an exam-ple of a case involving the issue of reasonable behavior inwhich our fIrm was retained The driver of a tractor-trailerwas traveling on a busy freeway before dawn when hisengine suddenly stopped causing him to stall in one of thefreeway lanes He attempted to set out reflective trianglesand flares but was frightened by the fast-moving traffic andclimbed back into the cab turned on his emergency flashersand waited for help Shortly after the driver returned to thecab a driver in an Isuzu Rodeo quickly switched lanes andrear-ended the tractor-trailer The driver of the Isuzu diedupon impact

Attorneys for the Isuzu drivers survivors argued that itwas inappropriate for the tractor-trailer driver to stop in alane of traffic and that he failed to make his presence known

The defendant provided a safe environment and based onanthropometric data and measurements we determinedthat the slight defect in a non structural member of the stoolcould not possibly have contributed to her fall

Contributory NegligenceComparative Fault andAssumption of the Risk

Prior to 1975 in California a defendant could assert thedefense of contributory negligence to prevent the plaintifffrom receiving any compensation for damages In this situ-ation it was recognized that the plaintiff had a responsibilityto take care of himself If the plaintiff failed to act as anordinarily prudent person then it was his own negligencethat contributed to his injury So even if the defendant waspartially responsible for the injury any negligence con-tributing to the accident - no matter how slight - barredrecovery of damages

In 1975 California adopted the comparative faultstandard Under this type of system fault is allocated on apercentage basis and the plaintiffs recovery is reduced

HFE cannot address the issues of whethera legal duty is owed and the monetaryextent of the damages incurred

to other drivers because of dim andor ineffective emergencyflashers Attorneys for the defense of the tractor-trailer driverrequested that our firm address issues of attentivenessperception-reaction and appropriateness of behavior

By applying HFE principles we determined that thedriver of the tractor-trailer had behaved reasonably underthe circumstances Illumination measurements indicatedthat the emergency flashers were bright enough to be seenby other drivers witnesses and emergency crews In addi-tion the alternating lights of the emergency flashers weremore visually compelling than a static warning signal(Woodson 1998) The investigation results indicated thatthe fatality was caused by the impatience and inattentivenessof the Isuzu driver and his failure to notice the visual cuesof the stalled vehicle

Case 4 Unreasonable behavior One case involvingwhat we considered unreasonable behavior dealt with a fallincident that occurred in a casino The plaintiff claimedthat her fall from a barstool and the resulting injuries werecaused by a broken weld in the foot ring of the stool whichcould swivel 90 degrees in either direction Our review of thecase facts and investigation of the stool led to the opinionthat the plaintiff did not exercise reasonable care while dis-mounting from the stool She claimed she dismounted whilepushing off the footrest ring with both feet - an impossibility

accordingly For example if the damages are $100000 andthe jury finds the defendant 75 responsible and theplaintiff 25 responsible the plaintiff will receive $75000

A separate but related defense is assumption of the riskAssumption of the risk like contributory negligence acts asa complete bar to recovery A person assumes the risk whenshe voluntarily and knowingly exposes herself to discern ablehazards incident to certain activities (Witkin Summary ofCA Law 9th ed Torts 1104 p 515) Whereas comparativeand contributory negligence by definition involve un-reasonable conduct a person may act in a completelyreasonable manner and still assume the risk for her actions(Fouseca v Orange 1972 28 Cal App 3d 361 at 368) If aperson signs a release prior to engaging in an activity hemay assume the risk for any normal hazards inherent insuch an activity However the assumption may be impliedeven if there is no written release

In California the law recognizes a distinction betweenprimary and secondary assumption of the risk (WitkinSummary of CA Law 9th ed Supplement Torts 1090Knight v Jewett [1992] ed Cal 4th 296) Primary assump-tion of the risk acts as a complete bar to recovery whereassecondary assumption of the risk apportions the liabilitybased on fault Primary assumption of the risk entails casesin which a defendant does not owe the plaintiff any legal dutyOne example is participation in sports activities California

SPRING 2002 bull ERGONOMICS IN DESIGN 17

at UQ Library on November 14 2014ergsagepubcomDownloaded from

courts have stated that a person does not have a duty toguard against the risk of injury to another when those risksare inherent in the sport

Case 5 Comparative fault and assumption of the riskIn the following case in which our expert opinions weresought with respect to the issues of comparative fault andassumption of the risk a man was jogging in the earlymorning hours near a road under construction Barricadesand signs indicated that the road was closed to all trafficConstruction equipment was parked at the site The plaintiffsaw the signs indicating the road was closed but instead ofcontinuing on a readily available alternative route away fromthe construction he failed to heed the signs and jogged pastthem onto the construction site As he was running on thesite he fell into a six-foot-deep trench and suffered severeinjuries

The first area of concern was whether the people responsi-ble for the site took adequate measures to secure the area (iereasonable care) HFE principles provide a hierarchicalframework to assist in answering this question The preventiveoptions in the preferred order are (a) eliminate the danger(b) reduce the risk of injury by guarding against entry and(c) warn about the danger (Cohen amp LaRue 1997)

In this case eliminating the risk was infeasible Researchin human factors and applied experimental psychology hasshown that as the size of an impediment increases thenumber of people who will alter their behavior in responseto the impediment increases as well (this is referred to as theprinciple of response cost) The barricades and warnings wereenough of an impediment that a reasonable person wouldalter his behavior and take the designated alternative routeThis HFE concept also bears on the plaintiffs comparativefault The jogger took deliberate steps to defeat the barricadeinferring that he understood the risks and still ventured ontothe site At this point the assumption of risk and theamount of comparative fault by the plaintiff become issues

Case 6 No comparative fault Our opinions were theopposite on another case in which our firm was retained Anelderly plaintiff went on an overnight deep-sea fishing tripwith his grown grandson He was in the process of removingice from an ice chest on the boat when a large swell causedthe boat to pitch The plaintiff fell across the galley anddown a staircase fatally striking his head

Our investigation determined that the design of the icechest required the plaintiff to bend precariously at the waistwithout any handhold In addition there were insufficienthandholds throughout the galley unlike on other charter

18 SPRING 2002 bull ERGONOMICS IN DESIGN

fishing boats It was our opinion that the defendants did nottake reasonable care to ensure the safety of the passengersThe risk of seawater action is foreseeable and cannot beeliminated on a boat however reducing the risk by equip-ping the boat with adequate handrails would have provideda reasonable person the opportunity to maintain or regainhis or her balance in order to arrest a fall

ConclusionAlthough the field of human factorsergonomics does

not create the laws pertaining to standards of care it hasproven effective in assisting the trier of fact to define themscientifically Through the use of forensic HFE investiga-tion and testimony standards of reasonable care in varioussituations and contexts can be further developed evaluatedand refined within the legal system and in the interest ofpublic safety

ReferencesAmerican Law Institute (1965) Restatement of the Law Second (Torts 2d

Vol 2) St Paul MN American Law Institute PublishersCalifornia Jury Instructions Book of Approved Jury Instructions (BAJI)

(1994 Supplement January 1996) Committee on Standard JuryInstructions Civil Superior Court of Los Angeles County CA Vol J8th ed St Paul MN West Publishing

Cohen H amp LaRue C (1997) A hierarchy of bases for expert opinion inforensic human factors Advice from an expert witness Ergonomics inDesign 5(4) 19-24

International Conference of Building Officials (1997) Uniform building codeVolume I Whittier CA Author

Luther C (1984) Survey of torts (4th ed) Fair Oaks CA CharterPublishing

Templer J (1992) The staircase Studies of hazards falls and safer designCambridge Massachusetts Institute of Technology Press

Witkin B (1988) Summary of California Law Vol 6 Torts (9th ed) SanFrancisco Bancroft-Whitney Co

Woodson W (1998) Human factors engineering for forensic and safetyspecialists Tucson Lawyers and Judges Publishing

Cases and Statutes CitedCalifornia Civil Code Section 1714California Evidence Code Section 669Fouseca v Orange (1972) 28 Cal App 3d 361Knight v Jewett (1992) 3 Cal 4th 296 11 CalRptr2d 2

H Harvey Cohen CPE is president of Error Analysis Inca forensic human factorsergonomics research and consultingfirm 5811 Amaya Dr Suite 205 La Mesa CA 91942-4156He is a Fellow of the Human Factors and Ergonomics SocietyCindy A LaRue CPE is a vice president of Error Analysis anda frequent coauthor of publications with Cohen mil

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Page 3: Establishing Standards of Reasonable Care

Standard of CareWhen a dispute exists as to whether a person has violated

a standard of care the judge must determine the appropriatestandard of care and instruct the jury of its responsibility inrelation to that standard (Luther Survey of Torts Section612 p 66) The jury once presented with the general legalprinciples must then examine and analyze evidence todetermine whether or not the defendant met the appropriatestandard of care

The issue of breaching the standard of care arises whenit has been alleged that the defendant violated a certainstatute or code For instance in California the absenceof due care is presumed if a person violates a statuteordinance or law and the violation causes an injury(California Evidence Code Section 669) In such an instancethe judge instructs the jury that if it finds that a partyviolated the particular law then the party was negligent(BAJJ 345)

Case 1Breach of the standard of care The following isan example of a case in which our forensic HFE consultingfirm was retained The case involved a slip-and-fall incident

of tort negligence legal duty breach of the standard of carecausation and damage HFE cannot address the issues ofwhether a legal duty is owed and the monetary extent of thedamages incurred However our firms expertise in HFEhelped to prove that the landlord breached the standardof care by not providing a building in compliance withthe applicable code requirements In addition our firmaddressed the issue of causation and showed that thenoncompliance of the stairway more likely than not causedthe misstep and resulting injuries

Case 2 Meeting the standard of care In another case inwhich our firm was retained we concluded that the ownerof a premise did not breach the standard of care The defen-dant was a gas station owner The plaintiff claimed to haveslipped and fallen in spilled gasoline but maintenancerecords at the gas station indicated that the station had ameticulous inspection procedure and maintained excellentrecords of its cleaning and maintenance The gas stationpersonnel conducted periodic routine inspections of theproperty and remedied potentially dangerous conditions(eg use of an absorbent on beverages spilled by customers)

HFE can also be used to prove that failureto adhere to the standard of care causedthe damages

on an apartment complex stairway The possible breach of astandard of care in the building industry was at issue Theplaintiff was descending the stairs when he misstepped andfell from the bottom step Inspection of the stairway re-vealed that the top six risers measured approximately5-14 inches high whereas the seventh (bottom) risermeasured only 4 inches This variation of 1-14 inches farexceeded the minimum acceptable variation of 38 inch aspermitted by the Uniform Building Code (VBC) The suddenchange in riser height led to a disruption of the plaintiffsgait causing him to lose his balance fall and seriously injurehis kneecap

The basis for the stairway section of the VBC is groundedin sound HFE principles (Templer 1992) Experience overtime creates and reinforces certain expectations for stairusers regarding the stair riser and tread dimensions and howthey place their feet without looking down in anticipationof these dimensions Therefore large variations in both riserand tread dimensions may seriously disrupt a persons nor-mal gait based on these expectations The VBC realizes thisconcept by setting the allowed variation in stairway risersand treads to be no greater than 38 inch

Because the stairway was not built or maintainedaccording to the prevailing code the plaintiffs lawyerattempted to prove the defendant was negligent Thisrequired the plaintiffs attorney to prove the four elements

16 SPRING 2002 bull ERGONOMICS IN DESIGN

in a timely and appropriate manner Based on an inspectionof the facility and a review of the station owners mainte-nance policies and inspection records we concluded thatthe defendant met and actually exceeded the standard of carefor the gas station industry

Reasonable BehaviorNegligence occurs when someone does something that a

reasonably prudent person would not do or fails to dosomething that a reasonably prudent person would do underthe circumstances (BAJI 310) For example if a reasonablebuilding owner recognized the existence of a hazard on hisproperty and had the ability to eliminate that hazard hewould be negligent if someone was injured as a result of hisnot taking reasonable steps to reduce or eliminate thehazard

Numerous factors may be examined when determiningwhether or not a reasonable person would recognize andappreciate the unreasonable risk that his or her conductposed to another These (human) factors include but arenot limited to the attention perception of the circum-stances memory knowledge intelligence and judgmentof a reasonable person (Restatement of the Law SecondTorts 2nd Vol 2 Section 289 pp 41-43) In order for aperson to be considered negligent her action or inaction(errors of omission or commission) which caused the

at UQ Library on November 14 2014ergsagepubcomDownloaded from

injury must be avoidable (BAH 311) The jury may considera standard custom or practice when deciding whether or nota person recognized and fIxed a hazard in compliance withstandard practices Although this method uses inconclusiveevidence it is relevant and may be used as a guidepost inmaking a determination (BAH 316)

Case 3 Reasonable behavior The following is an exam-ple of a case involving the issue of reasonable behavior inwhich our fIrm was retained The driver of a tractor-trailerwas traveling on a busy freeway before dawn when hisengine suddenly stopped causing him to stall in one of thefreeway lanes He attempted to set out reflective trianglesand flares but was frightened by the fast-moving traffic andclimbed back into the cab turned on his emergency flashersand waited for help Shortly after the driver returned to thecab a driver in an Isuzu Rodeo quickly switched lanes andrear-ended the tractor-trailer The driver of the Isuzu diedupon impact

Attorneys for the Isuzu drivers survivors argued that itwas inappropriate for the tractor-trailer driver to stop in alane of traffic and that he failed to make his presence known

The defendant provided a safe environment and based onanthropometric data and measurements we determinedthat the slight defect in a non structural member of the stoolcould not possibly have contributed to her fall

Contributory NegligenceComparative Fault andAssumption of the Risk

Prior to 1975 in California a defendant could assert thedefense of contributory negligence to prevent the plaintifffrom receiving any compensation for damages In this situ-ation it was recognized that the plaintiff had a responsibilityto take care of himself If the plaintiff failed to act as anordinarily prudent person then it was his own negligencethat contributed to his injury So even if the defendant waspartially responsible for the injury any negligence con-tributing to the accident - no matter how slight - barredrecovery of damages

In 1975 California adopted the comparative faultstandard Under this type of system fault is allocated on apercentage basis and the plaintiffs recovery is reduced

HFE cannot address the issues of whethera legal duty is owed and the monetaryextent of the damages incurred

to other drivers because of dim andor ineffective emergencyflashers Attorneys for the defense of the tractor-trailer driverrequested that our firm address issues of attentivenessperception-reaction and appropriateness of behavior

By applying HFE principles we determined that thedriver of the tractor-trailer had behaved reasonably underthe circumstances Illumination measurements indicatedthat the emergency flashers were bright enough to be seenby other drivers witnesses and emergency crews In addi-tion the alternating lights of the emergency flashers weremore visually compelling than a static warning signal(Woodson 1998) The investigation results indicated thatthe fatality was caused by the impatience and inattentivenessof the Isuzu driver and his failure to notice the visual cuesof the stalled vehicle

Case 4 Unreasonable behavior One case involvingwhat we considered unreasonable behavior dealt with a fallincident that occurred in a casino The plaintiff claimedthat her fall from a barstool and the resulting injuries werecaused by a broken weld in the foot ring of the stool whichcould swivel 90 degrees in either direction Our review of thecase facts and investigation of the stool led to the opinionthat the plaintiff did not exercise reasonable care while dis-mounting from the stool She claimed she dismounted whilepushing off the footrest ring with both feet - an impossibility

accordingly For example if the damages are $100000 andthe jury finds the defendant 75 responsible and theplaintiff 25 responsible the plaintiff will receive $75000

A separate but related defense is assumption of the riskAssumption of the risk like contributory negligence acts asa complete bar to recovery A person assumes the risk whenshe voluntarily and knowingly exposes herself to discern ablehazards incident to certain activities (Witkin Summary ofCA Law 9th ed Torts 1104 p 515) Whereas comparativeand contributory negligence by definition involve un-reasonable conduct a person may act in a completelyreasonable manner and still assume the risk for her actions(Fouseca v Orange 1972 28 Cal App 3d 361 at 368) If aperson signs a release prior to engaging in an activity hemay assume the risk for any normal hazards inherent insuch an activity However the assumption may be impliedeven if there is no written release

In California the law recognizes a distinction betweenprimary and secondary assumption of the risk (WitkinSummary of CA Law 9th ed Supplement Torts 1090Knight v Jewett [1992] ed Cal 4th 296) Primary assump-tion of the risk acts as a complete bar to recovery whereassecondary assumption of the risk apportions the liabilitybased on fault Primary assumption of the risk entails casesin which a defendant does not owe the plaintiff any legal dutyOne example is participation in sports activities California

SPRING 2002 bull ERGONOMICS IN DESIGN 17

at UQ Library on November 14 2014ergsagepubcomDownloaded from

courts have stated that a person does not have a duty toguard against the risk of injury to another when those risksare inherent in the sport

Case 5 Comparative fault and assumption of the riskIn the following case in which our expert opinions weresought with respect to the issues of comparative fault andassumption of the risk a man was jogging in the earlymorning hours near a road under construction Barricadesand signs indicated that the road was closed to all trafficConstruction equipment was parked at the site The plaintiffsaw the signs indicating the road was closed but instead ofcontinuing on a readily available alternative route away fromthe construction he failed to heed the signs and jogged pastthem onto the construction site As he was running on thesite he fell into a six-foot-deep trench and suffered severeinjuries

The first area of concern was whether the people responsi-ble for the site took adequate measures to secure the area (iereasonable care) HFE principles provide a hierarchicalframework to assist in answering this question The preventiveoptions in the preferred order are (a) eliminate the danger(b) reduce the risk of injury by guarding against entry and(c) warn about the danger (Cohen amp LaRue 1997)

In this case eliminating the risk was infeasible Researchin human factors and applied experimental psychology hasshown that as the size of an impediment increases thenumber of people who will alter their behavior in responseto the impediment increases as well (this is referred to as theprinciple of response cost) The barricades and warnings wereenough of an impediment that a reasonable person wouldalter his behavior and take the designated alternative routeThis HFE concept also bears on the plaintiffs comparativefault The jogger took deliberate steps to defeat the barricadeinferring that he understood the risks and still ventured ontothe site At this point the assumption of risk and theamount of comparative fault by the plaintiff become issues

Case 6 No comparative fault Our opinions were theopposite on another case in which our firm was retained Anelderly plaintiff went on an overnight deep-sea fishing tripwith his grown grandson He was in the process of removingice from an ice chest on the boat when a large swell causedthe boat to pitch The plaintiff fell across the galley anddown a staircase fatally striking his head

Our investigation determined that the design of the icechest required the plaintiff to bend precariously at the waistwithout any handhold In addition there were insufficienthandholds throughout the galley unlike on other charter

18 SPRING 2002 bull ERGONOMICS IN DESIGN

fishing boats It was our opinion that the defendants did nottake reasonable care to ensure the safety of the passengersThe risk of seawater action is foreseeable and cannot beeliminated on a boat however reducing the risk by equip-ping the boat with adequate handrails would have provideda reasonable person the opportunity to maintain or regainhis or her balance in order to arrest a fall

ConclusionAlthough the field of human factorsergonomics does

not create the laws pertaining to standards of care it hasproven effective in assisting the trier of fact to define themscientifically Through the use of forensic HFE investiga-tion and testimony standards of reasonable care in varioussituations and contexts can be further developed evaluatedand refined within the legal system and in the interest ofpublic safety

ReferencesAmerican Law Institute (1965) Restatement of the Law Second (Torts 2d

Vol 2) St Paul MN American Law Institute PublishersCalifornia Jury Instructions Book of Approved Jury Instructions (BAJI)

(1994 Supplement January 1996) Committee on Standard JuryInstructions Civil Superior Court of Los Angeles County CA Vol J8th ed St Paul MN West Publishing

Cohen H amp LaRue C (1997) A hierarchy of bases for expert opinion inforensic human factors Advice from an expert witness Ergonomics inDesign 5(4) 19-24

International Conference of Building Officials (1997) Uniform building codeVolume I Whittier CA Author

Luther C (1984) Survey of torts (4th ed) Fair Oaks CA CharterPublishing

Templer J (1992) The staircase Studies of hazards falls and safer designCambridge Massachusetts Institute of Technology Press

Witkin B (1988) Summary of California Law Vol 6 Torts (9th ed) SanFrancisco Bancroft-Whitney Co

Woodson W (1998) Human factors engineering for forensic and safetyspecialists Tucson Lawyers and Judges Publishing

Cases and Statutes CitedCalifornia Civil Code Section 1714California Evidence Code Section 669Fouseca v Orange (1972) 28 Cal App 3d 361Knight v Jewett (1992) 3 Cal 4th 296 11 CalRptr2d 2

H Harvey Cohen CPE is president of Error Analysis Inca forensic human factorsergonomics research and consultingfirm 5811 Amaya Dr Suite 205 La Mesa CA 91942-4156He is a Fellow of the Human Factors and Ergonomics SocietyCindy A LaRue CPE is a vice president of Error Analysis anda frequent coauthor of publications with Cohen mil

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Page 4: Establishing Standards of Reasonable Care

injury must be avoidable (BAH 311) The jury may considera standard custom or practice when deciding whether or nota person recognized and fIxed a hazard in compliance withstandard practices Although this method uses inconclusiveevidence it is relevant and may be used as a guidepost inmaking a determination (BAH 316)

Case 3 Reasonable behavior The following is an exam-ple of a case involving the issue of reasonable behavior inwhich our fIrm was retained The driver of a tractor-trailerwas traveling on a busy freeway before dawn when hisengine suddenly stopped causing him to stall in one of thefreeway lanes He attempted to set out reflective trianglesand flares but was frightened by the fast-moving traffic andclimbed back into the cab turned on his emergency flashersand waited for help Shortly after the driver returned to thecab a driver in an Isuzu Rodeo quickly switched lanes andrear-ended the tractor-trailer The driver of the Isuzu diedupon impact

Attorneys for the Isuzu drivers survivors argued that itwas inappropriate for the tractor-trailer driver to stop in alane of traffic and that he failed to make his presence known

The defendant provided a safe environment and based onanthropometric data and measurements we determinedthat the slight defect in a non structural member of the stoolcould not possibly have contributed to her fall

Contributory NegligenceComparative Fault andAssumption of the Risk

Prior to 1975 in California a defendant could assert thedefense of contributory negligence to prevent the plaintifffrom receiving any compensation for damages In this situ-ation it was recognized that the plaintiff had a responsibilityto take care of himself If the plaintiff failed to act as anordinarily prudent person then it was his own negligencethat contributed to his injury So even if the defendant waspartially responsible for the injury any negligence con-tributing to the accident - no matter how slight - barredrecovery of damages

In 1975 California adopted the comparative faultstandard Under this type of system fault is allocated on apercentage basis and the plaintiffs recovery is reduced

HFE cannot address the issues of whethera legal duty is owed and the monetaryextent of the damages incurred

to other drivers because of dim andor ineffective emergencyflashers Attorneys for the defense of the tractor-trailer driverrequested that our firm address issues of attentivenessperception-reaction and appropriateness of behavior

By applying HFE principles we determined that thedriver of the tractor-trailer had behaved reasonably underthe circumstances Illumination measurements indicatedthat the emergency flashers were bright enough to be seenby other drivers witnesses and emergency crews In addi-tion the alternating lights of the emergency flashers weremore visually compelling than a static warning signal(Woodson 1998) The investigation results indicated thatthe fatality was caused by the impatience and inattentivenessof the Isuzu driver and his failure to notice the visual cuesof the stalled vehicle

Case 4 Unreasonable behavior One case involvingwhat we considered unreasonable behavior dealt with a fallincident that occurred in a casino The plaintiff claimedthat her fall from a barstool and the resulting injuries werecaused by a broken weld in the foot ring of the stool whichcould swivel 90 degrees in either direction Our review of thecase facts and investigation of the stool led to the opinionthat the plaintiff did not exercise reasonable care while dis-mounting from the stool She claimed she dismounted whilepushing off the footrest ring with both feet - an impossibility

accordingly For example if the damages are $100000 andthe jury finds the defendant 75 responsible and theplaintiff 25 responsible the plaintiff will receive $75000

A separate but related defense is assumption of the riskAssumption of the risk like contributory negligence acts asa complete bar to recovery A person assumes the risk whenshe voluntarily and knowingly exposes herself to discern ablehazards incident to certain activities (Witkin Summary ofCA Law 9th ed Torts 1104 p 515) Whereas comparativeand contributory negligence by definition involve un-reasonable conduct a person may act in a completelyreasonable manner and still assume the risk for her actions(Fouseca v Orange 1972 28 Cal App 3d 361 at 368) If aperson signs a release prior to engaging in an activity hemay assume the risk for any normal hazards inherent insuch an activity However the assumption may be impliedeven if there is no written release

In California the law recognizes a distinction betweenprimary and secondary assumption of the risk (WitkinSummary of CA Law 9th ed Supplement Torts 1090Knight v Jewett [1992] ed Cal 4th 296) Primary assump-tion of the risk acts as a complete bar to recovery whereassecondary assumption of the risk apportions the liabilitybased on fault Primary assumption of the risk entails casesin which a defendant does not owe the plaintiff any legal dutyOne example is participation in sports activities California

SPRING 2002 bull ERGONOMICS IN DESIGN 17

at UQ Library on November 14 2014ergsagepubcomDownloaded from

courts have stated that a person does not have a duty toguard against the risk of injury to another when those risksare inherent in the sport

Case 5 Comparative fault and assumption of the riskIn the following case in which our expert opinions weresought with respect to the issues of comparative fault andassumption of the risk a man was jogging in the earlymorning hours near a road under construction Barricadesand signs indicated that the road was closed to all trafficConstruction equipment was parked at the site The plaintiffsaw the signs indicating the road was closed but instead ofcontinuing on a readily available alternative route away fromthe construction he failed to heed the signs and jogged pastthem onto the construction site As he was running on thesite he fell into a six-foot-deep trench and suffered severeinjuries

The first area of concern was whether the people responsi-ble for the site took adequate measures to secure the area (iereasonable care) HFE principles provide a hierarchicalframework to assist in answering this question The preventiveoptions in the preferred order are (a) eliminate the danger(b) reduce the risk of injury by guarding against entry and(c) warn about the danger (Cohen amp LaRue 1997)

In this case eliminating the risk was infeasible Researchin human factors and applied experimental psychology hasshown that as the size of an impediment increases thenumber of people who will alter their behavior in responseto the impediment increases as well (this is referred to as theprinciple of response cost) The barricades and warnings wereenough of an impediment that a reasonable person wouldalter his behavior and take the designated alternative routeThis HFE concept also bears on the plaintiffs comparativefault The jogger took deliberate steps to defeat the barricadeinferring that he understood the risks and still ventured ontothe site At this point the assumption of risk and theamount of comparative fault by the plaintiff become issues

Case 6 No comparative fault Our opinions were theopposite on another case in which our firm was retained Anelderly plaintiff went on an overnight deep-sea fishing tripwith his grown grandson He was in the process of removingice from an ice chest on the boat when a large swell causedthe boat to pitch The plaintiff fell across the galley anddown a staircase fatally striking his head

Our investigation determined that the design of the icechest required the plaintiff to bend precariously at the waistwithout any handhold In addition there were insufficienthandholds throughout the galley unlike on other charter

18 SPRING 2002 bull ERGONOMICS IN DESIGN

fishing boats It was our opinion that the defendants did nottake reasonable care to ensure the safety of the passengersThe risk of seawater action is foreseeable and cannot beeliminated on a boat however reducing the risk by equip-ping the boat with adequate handrails would have provideda reasonable person the opportunity to maintain or regainhis or her balance in order to arrest a fall

ConclusionAlthough the field of human factorsergonomics does

not create the laws pertaining to standards of care it hasproven effective in assisting the trier of fact to define themscientifically Through the use of forensic HFE investiga-tion and testimony standards of reasonable care in varioussituations and contexts can be further developed evaluatedand refined within the legal system and in the interest ofpublic safety

ReferencesAmerican Law Institute (1965) Restatement of the Law Second (Torts 2d

Vol 2) St Paul MN American Law Institute PublishersCalifornia Jury Instructions Book of Approved Jury Instructions (BAJI)

(1994 Supplement January 1996) Committee on Standard JuryInstructions Civil Superior Court of Los Angeles County CA Vol J8th ed St Paul MN West Publishing

Cohen H amp LaRue C (1997) A hierarchy of bases for expert opinion inforensic human factors Advice from an expert witness Ergonomics inDesign 5(4) 19-24

International Conference of Building Officials (1997) Uniform building codeVolume I Whittier CA Author

Luther C (1984) Survey of torts (4th ed) Fair Oaks CA CharterPublishing

Templer J (1992) The staircase Studies of hazards falls and safer designCambridge Massachusetts Institute of Technology Press

Witkin B (1988) Summary of California Law Vol 6 Torts (9th ed) SanFrancisco Bancroft-Whitney Co

Woodson W (1998) Human factors engineering for forensic and safetyspecialists Tucson Lawyers and Judges Publishing

Cases and Statutes CitedCalifornia Civil Code Section 1714California Evidence Code Section 669Fouseca v Orange (1972) 28 Cal App 3d 361Knight v Jewett (1992) 3 Cal 4th 296 11 CalRptr2d 2

H Harvey Cohen CPE is president of Error Analysis Inca forensic human factorsergonomics research and consultingfirm 5811 Amaya Dr Suite 205 La Mesa CA 91942-4156He is a Fellow of the Human Factors and Ergonomics SocietyCindy A LaRue CPE is a vice president of Error Analysis anda frequent coauthor of publications with Cohen mil

at UQ Library on November 14 2014ergsagepubcomDownloaded from

Page 5: Establishing Standards of Reasonable Care

courts have stated that a person does not have a duty toguard against the risk of injury to another when those risksare inherent in the sport

Case 5 Comparative fault and assumption of the riskIn the following case in which our expert opinions weresought with respect to the issues of comparative fault andassumption of the risk a man was jogging in the earlymorning hours near a road under construction Barricadesand signs indicated that the road was closed to all trafficConstruction equipment was parked at the site The plaintiffsaw the signs indicating the road was closed but instead ofcontinuing on a readily available alternative route away fromthe construction he failed to heed the signs and jogged pastthem onto the construction site As he was running on thesite he fell into a six-foot-deep trench and suffered severeinjuries

The first area of concern was whether the people responsi-ble for the site took adequate measures to secure the area (iereasonable care) HFE principles provide a hierarchicalframework to assist in answering this question The preventiveoptions in the preferred order are (a) eliminate the danger(b) reduce the risk of injury by guarding against entry and(c) warn about the danger (Cohen amp LaRue 1997)

In this case eliminating the risk was infeasible Researchin human factors and applied experimental psychology hasshown that as the size of an impediment increases thenumber of people who will alter their behavior in responseto the impediment increases as well (this is referred to as theprinciple of response cost) The barricades and warnings wereenough of an impediment that a reasonable person wouldalter his behavior and take the designated alternative routeThis HFE concept also bears on the plaintiffs comparativefault The jogger took deliberate steps to defeat the barricadeinferring that he understood the risks and still ventured ontothe site At this point the assumption of risk and theamount of comparative fault by the plaintiff become issues

Case 6 No comparative fault Our opinions were theopposite on another case in which our firm was retained Anelderly plaintiff went on an overnight deep-sea fishing tripwith his grown grandson He was in the process of removingice from an ice chest on the boat when a large swell causedthe boat to pitch The plaintiff fell across the galley anddown a staircase fatally striking his head

Our investigation determined that the design of the icechest required the plaintiff to bend precariously at the waistwithout any handhold In addition there were insufficienthandholds throughout the galley unlike on other charter

18 SPRING 2002 bull ERGONOMICS IN DESIGN

fishing boats It was our opinion that the defendants did nottake reasonable care to ensure the safety of the passengersThe risk of seawater action is foreseeable and cannot beeliminated on a boat however reducing the risk by equip-ping the boat with adequate handrails would have provideda reasonable person the opportunity to maintain or regainhis or her balance in order to arrest a fall

ConclusionAlthough the field of human factorsergonomics does

not create the laws pertaining to standards of care it hasproven effective in assisting the trier of fact to define themscientifically Through the use of forensic HFE investiga-tion and testimony standards of reasonable care in varioussituations and contexts can be further developed evaluatedand refined within the legal system and in the interest ofpublic safety

ReferencesAmerican Law Institute (1965) Restatement of the Law Second (Torts 2d

Vol 2) St Paul MN American Law Institute PublishersCalifornia Jury Instructions Book of Approved Jury Instructions (BAJI)

(1994 Supplement January 1996) Committee on Standard JuryInstructions Civil Superior Court of Los Angeles County CA Vol J8th ed St Paul MN West Publishing

Cohen H amp LaRue C (1997) A hierarchy of bases for expert opinion inforensic human factors Advice from an expert witness Ergonomics inDesign 5(4) 19-24

International Conference of Building Officials (1997) Uniform building codeVolume I Whittier CA Author

Luther C (1984) Survey of torts (4th ed) Fair Oaks CA CharterPublishing

Templer J (1992) The staircase Studies of hazards falls and safer designCambridge Massachusetts Institute of Technology Press

Witkin B (1988) Summary of California Law Vol 6 Torts (9th ed) SanFrancisco Bancroft-Whitney Co

Woodson W (1998) Human factors engineering for forensic and safetyspecialists Tucson Lawyers and Judges Publishing

Cases and Statutes CitedCalifornia Civil Code Section 1714California Evidence Code Section 669Fouseca v Orange (1972) 28 Cal App 3d 361Knight v Jewett (1992) 3 Cal 4th 296 11 CalRptr2d 2

H Harvey Cohen CPE is president of Error Analysis Inca forensic human factorsergonomics research and consultingfirm 5811 Amaya Dr Suite 205 La Mesa CA 91942-4156He is a Fellow of the Human Factors and Ergonomics SocietyCindy A LaRue CPE is a vice president of Error Analysis anda frequent coauthor of publications with Cohen mil

at UQ Library on November 14 2014ergsagepubcomDownloaded from