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From: riddle@hoss.unl.edu (Michael H. Riddle)
Newsgroups: comp.dcom.telecom
Subject: Re: Massive Service Outage in Northern Illinois!
Message-ID: <13885@accuvax.nwu.edu>
Date: 21 Oct 90 14:25:56 GMT
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In <13826@accuvax.nwu.edu> floyd@hayes.ims.alaska.edu (Floyd Davidson)
writes:

>All of the above sounds reasonable to me, *except* that last line.

>What I object to is going after the cost of lost service.  That was
>caused by proven bad management and bad planning. 

>[Moderator's Note:

(Pat goes on to mention a lot of valid costs occasioned by the cable cut
that IBT would not otherwise have incurred.)

What we have here seems to be the technological equivalent of the
classic "thin-skull" law school tort problem.  The tortfeasor "takes
their victim as they find them."  If an ordinary person, negligently
bumped on the skull, would only have a headache, it's no defense when
the actual victim suffers a fractured skull and dies.
 
"But for the action of the tortfeasor, the injury would not have
occured, and the tortfeasor is liable for the total damage."
 
In the case of the cable cut, the cut did occur, the contractor was
responsible, an ordinary contractor following the customs of the
profession would have "done a JULIE," and then there would have been
at least some legal protection.  One could still argue that when a
excavator encounters an unknown obstacle, they should give it at least
some cursory examination before using brute force to remove it.

In this case, no JULIE was done, no examination of the obstacle was
made, and the contractor is likely to pay a *lot* of money to
compensate for the resulting damages.  (Or the contractor's insurance
company!)


riddle@hoss.unl.edu                  |   University of Nebraska 
riddle@crchpux.unl.edu               |   College of Law
mike.riddle@f27.n285.z1.fidonet.org  |   Lincoln, Nebraska, USA