In the last six weeks, four people died of elevator accidents in Israel. One was a worker apparently crushed by faulty elevator doors. Two weeks before that, an elderly woman was killed when an elevator apparently malfunctioned and plunged to the ground. And on Sunday, two young people drowned in a Tel Aviv elevator.
By comparison, in the US, elevator deaths are extremely rare. With 300,000,000 people and 18 billion passenger trips per year, the US reports 27 deaths annually. In fact, the fatality rate in the US is so uncommon (at 0.00000015% per trip), that very little is written about it. Likely, at least the elderly woman would have survived her accident in the US. According to a report in Occupational Health and Safety, American “elevators are equipped with “automatic braking systems” backed up by “electromagnetic brakes,” and, if all else fails “at the bottom of the shaft is a heavy-duty shock absorber system designed to save passengers.”
Where Are All the Lawyers?
When we first arrived in Israel as new Olim, one question I frequently was asked was what do you miss from “the Old Country?” TARGET? Pickle relish? A good dry cleaners? As I began to acclimate, I have come to mostly miss – the lawyers. Yes, that’s right. I miss the lawyers. As I became more exposed to shoddy products, duplicitous business practices of phone companies and banks, sloppy building practices, and tactics designed to rape the consumer – I lament the absence of a strong and skillful plaintiff’s bar – whose mission it is to protect the consumer, the injured, the person at the mercy of greedy industrialists and utilities. Now, Israel has more lawyers per capita than any other country in the world. But quantity is not quality. (Full disclosure, in my prior life I was a defense attorney for product liability and medical malpractice).
So what do good lawyers have to do with the tragic elevator accidents?
It is often said that tort law is the poor man’s attorney general. When the government doesn’t monitor, enact or enforce laws, it is the fear of lawsuits that keep providers and manufacturers on the up and up. To do this, one needs a good lawyer – one adept enough to elicit a hefty enough damage award, not just for the purposes of retribution – but for the purposes of deterrence. Fear of a big judgment is what keeps the line.
So, what makes a good lawyer? Good laws? No. Israel has very good product liability laws, a bit outdated perhaps, but they are on the books. There are also laws to protect the consumer. And tort laws. Some of the relevant laws provide for criminal penalties. Israeli judges are not afraid of exacting tribute or creating new means of doing so. So, what’s the rub?
A good lawyer can ferret out the root and changeable cause of an accident, which not only exposes the person(s) at fault, but alerts government as to what needs to be changed. Not only do we get retribution and deterrence, but government is on notice it must enact preventative laws. A good lawyer knows who to target in a lawsuit. And a good lawyer knows how to cross-examine the opponent’s expert, to demonstrate the flaws in the defense argument – to identify excuses that have become so ubiquitous here -along with the exculpatory phrase “Az Mah La-asot?” So, what can be done?
It turns out in this case, plenty. And it’s not replacing the pipes or ragging on the rescuers.
“They heard banging on the doors:” Identifying Causation:
Contrary to public outcry, the flooding rain is not what killed this couple; what killed them is not delay in rescue. What killed them is that the elevator failed and the doors didn’t open. And going after the mayor or rescue facilities will do diddly-squat to prevent this from happening again. As I said, a good lawyer identifies causal factors that are addressable and preventable. Blaming (acts of) God (who, by the way, is sui generis, meaning S/He can’t be sued) won’t help. Neither will suing the Mayor for bad pipes. He’s obviously already got his defense ready: good pipes wouldn’t have made a difference.
Question: So what did kill this couple?
Answer: The malfunctioning elevator. (Duh).
- Failure of the Backup System
Elevators work on electricity. From reading the news stories, there was a short in the electrical circuit of the elevator, a foreseeable occurrence. That’s why we have backups. In most places, elevators are supposed to have battery backups. The batteries should have a backup of their own, called a UPS device. Once the electricity failed, the battery should have kicked in. And if that failed, a UPS could have restarted the battery. The backup is designed – if it’s working properly — to bring the elevator to the nearest floor — and open the door!!
- They Heard Banging on the Doors
This is perhaps one of the most horrifying parts of the story. Elevators are supposed to have alarms – two kinds. One is the kind that makes a blaring siren noise. The second is supposed to connect to an elevator monitoring company – which is supposed to be on standby in case of emergency. Some elevators also have intercoms- so people outside the elevator can communicate with someone trapped inside.
Obviously, the alarm system wasn’t working – if indeed the elevator had one. The building residents would have heard a siren, not doors-banging; the emergency company would have been notified. Hopefully, they would have dispatched a rescue crew.
Elevators are Supposed to be Inspected
Elevators are supposed to be insured. Every six months the insurance company is supposed to dispatch an engineer to inspect the elevator. His report is sent to management, which calls a technician to make needed repairs. Sadly, from my experience, these technicians delay inspections, and when they do repair, they fail to do them properly. Or they send poorly trained techies. Then they say all is in order. Who’s to know better? Surely we don’t expect the Vaad to second-guess the technician? Since there is no requirement for the engineer to re-inspect (which would cost money and dilute profits), negligent and shoddy practice appears to be the norm.
Now, rather than hand-wringing over the pipes, the municipality should call in a forensic engineer and determine the exact reason the elevator malfunctioned. Who did the last inspection? Who did the last repair? Was the UPS working? Were there any indications of problems (warning bells before the elevator failed?) This information would be critical, not just to assess blame in this case, but to prevent or curtail the recent epidemic in elevator failures.
And if the municipality won’t do it – then it’s up to the lawyer.
Deep Pockets: Who Do You Sue?
- The Vaad?
The news story I read says “experts” place the blame on the Vaad. The Vaad??? Surely, the Vaad has responsibility — what in law is called a duty to act — but that’s not enough to prove negligence. Besides duty and an injury, you also need to prove someone acted improperly, carelessly or wrongfully (or failed to act properly), and that this action or inaction CAUSED the harm. So, what did the Vaad do wrong, I wonder? And even if they did, what would suing them accomplish?
This is South Tel Aviv, remember. Is it likely the Vaad has sufficient funds to appropriately compensate the families for their loss? Is it likely that suing the Vaad would prevent future accidents? (OK, maybe in this building – that is if they did something wrong. But, I don’t see that they did, at least from what I read in the papers).
Now elevators are required to be insured. Maybe the Vaad has insurance for the elevator? Problem is: a. the insurance is limited, and b. the elevator company will try to get out of paying, perhaps blaming the technician (see below). Or the inspector (who works for the insurance company) will say when he did the inspection, all was fine. If he proves there was no negligence, or no wrongfulness – there’s no recovery.
- The Builder?
The builder, who also may have responsibility, will say (yes, a good lawyer anticipates the other side), that he procured the elevator from the best elevator manufacturer that sells to Israel. In fact, that may be the case. In which case, what did he do wrong? No wrongfulness — no recovery.
There have been anecdotal reports that the repair technicians and the insurance inspectors have been in cahoots in the past; covering for the errors and omissions of the other. One scenario: the technicians will claim that any problems were not identified by the inspector, and the inspector will claim that the technicians didn’t fix them right. This is good. The more each side points fingers at the other, the more the trier of fact (here the judge) figures someone goofed.
Alternatively, the two entities collude and claim all was well at the last inspection. Then, that means they did nothing wrong. (A good expert engineer might be able to prove otherwise, if that was the case). But this brings us to the manufacturer, who produced a product that shorted out in a rainstorm- with a backup and alarm system that didn’t work.
4. So, Should Suit Be Brought Against the Elevator Manufacturer?
Now here we hit paydirt. The elevator manufacturer could be held liable – even if he didn’t do anything wrong!! In other words, here we can bring a product liability claim, which, simply stated, only requires proving that the product is defective (i.e., that the elevator didn’t work right) and that this caused the injury. It gets better. If there was a malfunction in the parts (the battery or the UPS), the manufacturer would be responsible for that as well. He couldn’t pawn his liability off on component part manufacturers or importers, although those entities would have independent liability as well.
Sounds good. Right?
Only one problem. In the news report I read, I didn’t see the elevator manufacturer on the list of those “on the chain of blame.” And if he isn’t sued, justice isn’t being done. (By the way, the builder could also be sued for product liability – in addition to negligence).
What goes down must come up: (Or How to Make Things Better)
What perhaps is most troubling is why the so-called “experts” are pointing their hands at the Vaad? Perhaps that’s one part of the problems? Perhaps these “experts” are hopelessly ignorant of the law and its ability to redress personal and societal harm? Pointing to the wrong suspect allows negligent inspections, careless technical repair, and perhaps continued use of sub-optimal elevators or parts, to continue– and with this, so do accidents.
Perhaps community misfocus on the municipality (bad pipes, faulty rescue) is a transference of overall dissatisfaction with Israeli government, in general, these days? Don’t know. But there is, however, much government can do going forward, both at the State and City Level – and it has nothing to do with the pipes. Here are five regulatory suggestions:
- Require functioning elevator backup systems (battery and UBS), including retrofitting existing elevators.
- Require insurance inspectors to re-inspect after technician repair.
- Require certification to be done by the insurance inspectors, NOT by the technicians.
- Require filing of inspection reports and compliance certification with the municipalities.
- Require additional, random, and independent safety inspections by municipal inspectors.
You have to be carefully taught:
But, how come no one is focusing on the real culprits? And what of the legal/tort approach?Perhaps all this points to inadequacies in Israeli legal training, which is manifesting in many other legal problems the country is facing.
Admittedly, in my analysis, I am relying on a news report, and the lawyer involved may have much more up his sleeve. I doubt it. If product liability suits were the vogue in Israel, we wouldn’t have four elevator accidents in six weeks, or not uncommon building failures or collapses. In fact, the number of product liability cases in Israel is quite small, say compared to medical malpractice or general liability. And when they do bring these cases, the lawyers often don’t cross-examine opposing technical experts (which would be considered legal malpractice in the US). Instead, they defer to their own experts and dump conflicting opinions in the judges’ hands. And then they bemoan the unacceptable results. (One sad example is the Kishon cases, where the court denied recovery to navy divers and fishermen exposed to noxious pollutants in the Kishon river, holding that – as a matter of law – these chemicals can’t cause certain diseases, when major scientific bodies in the US and UK have ruled that they do).
What can you expect? With the exception of two or three cases in the general torts curriculum – no law school in Israel has a course on product liability.
For further reading:
Barbara Pfeffer, Billauer, Primacy in Products Liability: A comparison of Israeli and American Law, 51 Tort, Trial & Insurance Practice J., of the ABA (2016)
Barbara Pfeffer Billauer, The Causal Conundrum: Examining Medical-Legal Disconnects from a Cultural Perspective – or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail: 51 Creighton Law Review, (March, 2018).