Windfall

“Lucky you! You just won the lottery and your windfall will make life very comfortable for you and your family. A windfall is a crazy bit of unexpected good fortune. First used in the fifteenth century, the word windfall originally referred to fruit that the wind blew from the trees.”

I just found that definition on line. I was looking for it because I wanted to confirm my understanding of the word. It seems only to have positive connotations, though it derives from damage to a tree. And many trees have suffered from all sorts of insults since the fifteenth century.

I heard yesterday that a woman was suing the city of New York because a tree fell on her and caused significant injury. It's a real tragedy and brings up the question of what is an accident or an Act of G-d and what is someone's responsibility. There were times when the former concept – an accident – was accepted as a reality, an unavoidable fact of life, but those days have passed. Now everything is someone's fault and the deeper his pockets the better. A falling tree can provide a real windfall, especially if its owner has a big bankroll.

Let me provide a little context:

According to The Associated Press, “[Hurricane] Harvey has so far killed at least 70 people who drowned in floods, got crushed by trees and died during power outages -- a surprisingly low toll that experts say reflects heeded warnings, swift action by first responders and volunteers, and no small amount of luck. … In 2005, Hurricane Katrina claimed more than 1,800 lives. Hurricane Ike was blamed for at least 20 deaths after hitting the Texas coast in 2008.”

Other reports tell us that the cost of the hurricane may be as much as $11 billion. That's an early estimate and it will certainly be many times higher, but no one struck by a tree is suing the United States and increasing the cost.

The tree in this case was in Central Park which is under the control of the NYC Department of Parks and Recreation. Its budget for 2017 was $480 million. “According to the Parks Department, street trees in New York City are pruned every 15 years; in the past, each tree was pruned on average every 7 years. In 2012, the tree trimming budget was $1.45 million per year … In 2013 the Parks Department had fewer than 100 climbers and pruners to maintain all of the City’s 2.5 million trees.” (That note comes from ekilaw.com, a law firm soliciting suits related to NYC tree damage – damage by trees, not to them .)

Acknowledging those facts, it's interesting to note that the woman is suing for $200 million. That's nearly 42% of the Parks Department's entire 2017 budget. The stated goal is to force the city to take better care of its trees. But I wonder if the possibility of a windfall wasn't part of the calculus in embarking on this noble crusade.

Many were killed by falling trees during Hurricane Harvey, and in other storms. No one was killed by this incident which involved one of two and a half million trees. Was it an accident or a result of negligence?

Should taxpayers bear any burden, especially one of this size, for they provide the contents of the city's “deep pockets?” The results were certainly tragic, but concern for the victim, by itself, doesn't justify a lawsuit and payoff. And if the department's budget for tree trimming is one and a half million dollars, even if is decided that the department was at fault for this accident, a suit for $200 million seems disproportionate.

Companies have been put out of business or damaged badly by this kind of vindictive lawsuit. While the suit is presented as a public service, I wonder how often it is simply viewed as a big money maker – a windfall for plaintiff and lawyer alike. And a sympathetic jury is manipulated into facilitating what some may view as extortion. (And lawsuits are sometimes used to delay or destroy projects often because of the ideology of the plaintiff, not the facts. Pier 55 in New York – a $250 million dollar project approved by both the public and political leaders – was stopped after six years of lawsuits by a few people. I read about it today.)

Life doesn't come with a guarantee. It has risks to which we're all subject. There are those guilty of acts that cause harm, but the public shouldn't always be held responsible for unavoidable acts and accidents. (Is the city to blame if someone is murdered within its boundaries?) Notwithstanding the view that it's invariably “someone's fault,” we can't always ensure happy lives or compensation for everything viewed as actionable by a lawyer.

We waste enough money on the whims of our “representatives.” We needn't do it on the whines of all our citizens and their lawyers. Their windfalls are often our losses. A windfall was originally an unexpected benefit. Now it's a business.

September 14, 2017

9/11, Guilt, And Pseudoscience

Today (at least the day this was written) is 9/11. It is a day that all of us who lived through it, especially the families of those directly affected, will always remember. It will be noted in future history books, and as part of the American heritage; it is be part of what our children will be taught as they learn of the travails through which we have gone.

Our resolve has stiffened. We will not succumb to the fear that those who attacked us sought. We will pay the price necessary, whatever it is, to shore up our defenses against future attacks. And we will remember those who perished in the attack, and those who risked, and often gave, their lives to protect us (and that includes those who fight to protect us) – the police, firefighters, private citizens, the military, and anyone who participated. They have made us stronger and more determined, and our gratitude is without bounds.

And that's the problem.

I don't mean it that way, but this will sound heretical. It's likely to be considered insensitive, blasphemous, and unappreciative. But we sometimes don't know how to react to tragedy so we try to pay our way out. We try to assuage our guilt with ceremony, and money. I can't fault the ceremony: it's good for the families of survivors, for politicians, and as a public penance for our remorse. It serves many purposes the most important of which – for the country at least – is the show of unity and determination, lest those who oppose us would be tempted to repeat their act.

I understand the grief felt by the survivors and by the families of those who perished. They're entitled to the recognition they have received, and there is no way we can fully express our gratitude to them. But we try. Indeed, as I noted above, “our gratitude is without bounds.”

So we try to payoff those who have suffered. We do that by designating the sickness and death of participants, whatever the cause, as “9/11 related.” Perhaps sometimes it is. But simply because something happened to those we revere – to people who selflessly struggled to save strangers and to protect us all – doesn't mean that the cause was that act. People get diseases, people die all the time. They suffer from processes that afflict those who were never involved in the courageous acts of these heroes, people who are often afflicted with the same ailments. Which means that some of the first-responders probably would have suffered from them and, perhaps, died even if they had stayed home. But we'll never know which ones.

We have adopted a post hoc propter hoc mentality. Out of sympathy, gratitude, and guilt we have chosen to set up funds for those involved to show that we care. It's unscientific, but it's probably necessary and appropriate. Whether there is any relationship between the initial incident and the current suffering cannot be ascertained, so we assume that one exists and, out of taxpayer money, we pay for it. We owe it to them. The politicians who support legislation to do so are recognized as caring; those who might prefer better scientific evidence of a relationship remain quiet. Scientific caution would be seen as unpatriotic, and they would suffer in the next election.

If this were an isolated incident it would be tolerable. If we simply honored those who had acted bravely and on our behalf we could justify our generosity. Rewarding those whose concern was for others – for us – seems a matter of virtue.

Unfortunately the linking of events and responsibilities has become an industry. It may be a chronic systemic autoimmune disease which follows breast enhancement, or bleeding following the use of a (necessary) anticoagulant; it may be the presence of ovarian cancer in a woman who has used talcum powder, or a heart attack in a policeman. Whether any of these events represents cause and effect is not known. In some case the answer is unequivocally “no” since, despite newspaper articles and public suspicions, there is no scientific evidence of a relationship, but there is always some “scientist” willing to testify to cause based on anecdotal evidence, or to testify at least to the possibility of a relationship. And a sympathetic jury is willing to draw from the deepest pockets around to pay off the victim of some horrible disease or other event.

There are many to blame for the phenomenon. It's not simply a matter of public guilt and solicitude, though these play a large part. After all, who – what jury member – in the position of the plaintiff, wouldn't want a large windfall. But there are other contributors. These include less than candid corporations that withhold information, law firms that will benefit from the payout (you hear their ads on the radio all the time advising us that we may be entitled to compensation from some company), and “experts” who testify to the possibility of a relationship even when there is no proof. But the plaintiff is suffering whether or not there is unequivocal proof, so let's just pay.

Like the sympathy for 9/11 victims, we show our concern for all who suffer – as long as we don't have to pay for it ourselves. We feel virtuous and it doesn't cost us. And the litigators make out like bandits, through law suits or the threat of such suits. Meanwhile we have no need to feel any guilt. Society has done its part to correct the situation. And if someone has to pay the price, that's all right. Even if there was no responsibility in this particular instance, it existed elsewhere and wasn't punished. We'll help even the score.