Daniel G. Kagan, trial lawyer and partner at Berman & Simmons
Attorney Daniel G. Kagan

Identifying System Failures and Organized Chaos

Every tort lawyer knows the simple definition of negligence: “failure to use ordinary care under the circumstances.” When presented with a new case, we are trained to look at an individual’s behavior and see where it failed to meet this familiar standard. Identifying failures of relevant individuals is an appropriate starting place, but the wise tort lawyer goes beyond this to look for the system failure that caused the harm or injury.

Importance of System Failure Analysis

System failure analysis is rooted in the engineering principle of Failure Modes and Effects Analysis (FMEA). FMEA is a systematic, proactive method of evaluating a process to identify where and how it might fail, what could happen when it fails, and what can be done to prevent failures. FMEA differs from system failure analysis in the timing: engineers apply FMEA proactively, whereas tort lawyers identify failures in systems that have already occurred.

There are pragmatic reasons to apply a disciplined system failure analysis in every tort case. While Maine’s joint and several liability law allows recovering one hundred percent from any tortfeasor, many tortfeasors have insufficient insurance or assets to satisfy a judgment for the plaintiff’s full damages. While jurors may identify with and resist assessing significant damages against an individual tortfeasor, a well-developed analysis can shift juror focus to the system failures of a faceless entity.

Role of Organized Chaos in Tort Cases

Sometimes system failure analysis in tort cases requires unraveling the “organized chaos” inherent in certain endeavors. The Oxford Dictionary defines organized chaos as a “situation or process that appears chaotic while having enough order to achieve progress or goals.” It is up to the tort lawyer to identify when the evident chaos is real and has caused harm. System failure analysis can help with this determination.

Brake Failure and Wrongful Death

A lawsuit we filed arising out of a 2013 tragedy in Bangor highlights the importance of system failure analysis. The City of Bangor’s prized antique fire truck lost its brakes while participating in the Fourth of July parade. Without brakes, the fire truck ran over another parade entrant, killing him. The obvious tortfeasor, the driver of the fire truck, was very sympathetic: a firefighter in the community who was distraught over his role in the tragedy. He had limited insurance protection and pursuing his assets was outside the plaintiff estate’s comfort zone. We sued the driver, but believed our case should not focus on him. In order to identify alternatives we developed and applied a system failure analysis.

Creating a flow diagram is a key step in effective system failure analysis. Exhibit 1 is the flow diagram we developed in this case. Analyzing each step critically helped us identify and name two institutional defendants whose causal role might otherwise have been overlooked.

Exhibit 1. System failure analysis is rooted in the engineering principle of Failure Modes and Effects
Analysis (FMEA). Creating a flow diagram is a key step in effective system failure analysis.

System Failure Analysis Aids Identification of Institutional Defendants

One institutional defendant named was the City of Bangor. The firefighter was acting within the scope of his employment at the time of the tragedy, so we brought a claim against the city on a theory of vicarious liability. This approach would include the city as a defendant but would keep the case focused on the actions of the sympathetic firefighter. We wanted to pursue a claim of direct negligence against the city. Through system failure analysis we focused on the firetruck’s maintenance—we knew the brakes had failed, and that this failure caused the tragedy.

System failure analysis led us to discover that there was no system in place to check the brakes and ensure they would stop the vehicle. The fire truck’s maintenance was a classic example of failed “organized chaos,” as there were multiple individual actors involved in caring for the antique fire truck, but no one was tasked with checking the brakes. Therefore the brake failure was not just an accident but the inevitable result of a failed system.

System failure analysis led us to a second institutional defendant: Kiwanis, the parade organizer. We knew that a parade involving more than a thousand entrants and 30,000 spectators required careful planning and organization. We focused our discovery on the many tasks required to hold a safe and successful event of this magnitude. In doing so we discovered specific safety rules that the event organizer had promised to follow, and brought forward evidence confirming it had not. The parade had many independent actors performing individual tasks, but no one took responsibility for assuring that the safety rules were followed. We knew we had identified a system failure and felt confident we could prove it at trial.

Resolution

Our wrongful death case resolved out of court for a confidential settlement amount.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.