• No, no one has ever filed a lawsuit after using a lawn mower as a hedge trimmer–yet the story keeps being told Wednesday, May 30, 2012

    It’s the urban legend that refuses to die…never mind that it was debunked in 1977.

    A story posted May 29 on the website of Advisen addressed the state of the product liability insurance market. The story, credited to BestWire Services, originated from the offices of A.M. Best, “a full-service credit rating organization dedicated to serving the¬†insurance industry,” and was written by Meg Green, senior associate editor of BestWeek, the company’s subscription publication that contains ratings information and analysis.

    Green wrote that product liability “was the least profitable line among property/casualty insurers from 2001 to 2010, according to A.M. Best data.” She described the business as “beset by high costs,” for reasons one insurance executive spelled out in simple English.

    “When you deal with product liability, that is synonymous with bodily injury. When people get hurt, it costs a lot of money,” said Rob Lala, senior vice president of primary casualty for Liberty International Underwriters.

    The story went on to quote Bob Nevin, vice president of product liability for Lexington Insurance Co., who said legal expenses have “skyrocketed.” He seemed to blame consumers (“In some of these cases, people are fighting where they would have settled in the past”), before pointing out that insurance companies are reluctant to settle because of the potential for what Green termed “dangerous precedents” (from the insurance company’s point of view).

    Which led to this passage:

    “You have to pick and choose which cases you are going to fight, because settling a case can result in more litigation. We have some insureds that want to defend their product and they believe their product didn’t cause injury. They believe it was human error, not product error.”

    For example, take a push lawn mower that someone put on top of a hedge and attempted to use it as a hedge trimmer, but was injured.

    “Unfortunately, common sense doesn’t always exist. It’s amazing the number of claims that are reported because of the misuse of the product. If a manufacturer didn’t provide a sufficient warning against every improbable misuse of a product, and a case is brought before a jury, especially in certain venues, it can be very difficult to escape liability,” Nevin said.

    The reference to the lawn mower wasn’t included in quotation marks as coming directly from Nevin; I’ve sent an email to Green asking for clarification. (ADDED 5/31/12: Green told me, “I had asked Bob for a quick example off the top of his head, and that’s the scenario he gave me. I thought it was purely a hypothetical situation, and he never indicated that he thought it was based on a real case. ” She said it was the first time she’d heard this tale.)

    It’s amazing that this example is still being held up to ridicule consumers, because there is no evidence that such an incident has ever been the basis of any lawsuit, let alone a successful one.

    The tale may well have been in circulation in some form even earlier, but it moved into the national consciousness in 1977, when the Crum & Forster Insurance Companies took out a full-page ad on the inside front cover of the September 12 issue of TIME magazine. In that day and age, that was about as prime a piece of advertising real estate as there was to reach thought leaders and decision makers. The ad (at right) was part of a campaign that has never ended to convince Americans that “frivolous lawsuits” are the source of unnecessarily high insurance premiums. Included in the ad copy:

    “A man who lifted a rotary lawn mower to cut hedges injured himself. He sued the lawn mower manufacturer and won.”

    But in July 1978, the Kansas state insurance commissioner, Republican Fletcher Bell, issued an order demanding Crum & Forster cease and desist “from using advertising which is deceptive,” according to an Associated Press story, making specific reference to the September 12 TIME ad. From the story: “Bell said Crum and Forster were…unable to substantiate [a] lawsuit described in the ad concerning a person’s recovery for injuries received while using a rotary lawnmower to cut hedges.” According to another account, Crum and Forster waived its right to a formal hearing and consented to the order.

    The lawnmower lawsuit claim wasn’t the only part of the ad that drew Commissioner Bell’s wrath. You’ll note the photo in the ad appears to be an x-ray of someone with a safety pin in his or her esophagus. “Even a safety pin manufacturer may not be safe today from misuse of his product,” the ad copy begins. While the copy never said anyone had sued a safety pin manufacturer for an incident that led to the x-ray image, Bell “concluded a reader could believe from the ad that a safety pin manufacturer was responsible to an individual swallowing a safety pin,” according to the AP story. The ad also included an claim that could not be substantiated about the number of product liability claims filed in 1976.

    Given the deception that was found in the Crum & Forster ad — in the case of the alleged lawnmower lawsuit, an absolute lie — it’s interesting to see that the final words of the copy were, “we’re telling it straight.”

    Even before Fletcher Bell weighed in, the lawnmower lawsuit claim had been deemed a phony. In his book “Too Good To be True: The Colossal Book of Urban Legends,” Jan Harold Brunvald reported an article in the Oct. 31, 1977, issue of Advertising Age referred to it as “the case of the missing case”:

    The article traced the story to an insurance executive who said he read a newspaper account of the accident in either late 1975 or early ’76. He repeated the story to business and political acquaintances, and they in turn repeated it to others, varying the details as they did so.

    Neither the original news story nor records of any such court case were ever found.

    Consumer Reports also examined the claim in an August 1986 article, “The Manufactured Crisis”: “The tale has been repeated dozens of times in support of the notion that consumers injure themselves foolishly and then seek out greedy lawyers to bring groundless lawsuits. But the story was purely apocryphal.”

    Yet that bell couldn’t be unrung…

    A lawn-mower company was sued by a user who picked up the mower to use as a hedge trimmer and proceeded to cut several of his fingers. The user’s lawyers argued that nothing told the user the whirling blades were not to be used to cut hedges.

    We don’t have the November 1989 issue of Machine Digest, but according to a 1990 column by Brunvald, industrial designer and product engineer James A. Martin wrote the above passage in that magazine. Brunvald said Martin was trying to make a case for good product design, not a case against “frivolous lawsuits.” But Brunvald added the story remained in wide circulation, 13 years after it had been found to be imaginary:

    I’ve collected several variations of “The Lawn Mower Accident.” Sometimes people say that two men lifted the machine and cut off all 16 of their fingertips.

    The stories usually conclude by describing a lawsuit against the manufacturer that resulted in a massive settlement.

    I’ve heard that lawn-mower salesmen tell the story to teach customers proper use of their machines. Hospital personnel repeat the grisly tale – always heard from a supposed witness – in order to illustrate the kind of domestic accidents that fill emergency rooms.

    The legend of the lawnmower lawsuit has had its own page on the myth-busting Snopes.com website since August 2007. And yet some in the insurance industry continue to present the story as the truth. In September 2007, Rick Werstein, who was at that time and remains today the director of major cases for Zurich Staff Legal Services (part of Zurich Financial Services, “an insurance-based financial services provider”), included the nonexistent lawnmower suit as part of his presentation on “frivolous lawsuits” in a talk at a risk engineering conference (see slide 20 of this PowerPoint presentation that remains on Zurich’s website).

    And now — 35 years after it was debunked — an insurance company vice president drags out the story of a lawnmower used as a hedge trimmer to explain why legal expenses are so high.

    This is just one of the myths of “frivolous lawsuits” that continue to be perpetuated; Consumer Attorneys of California has more on its website. (I serve as press secretary for Consumer Attorneys of California, and members of the association also sit on the board of the Civil Justice Research & Education Project, the organization that funds this website.)

    –J.G. Preston

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