Legally Speaking; Sue the bulldozer company, and get crushed by common sense

John G. Browning Sep. 11, 2007, 7:56am

The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 has been trying-to date unsuccessfully-to sue Caterpillar, Inc., the American manufacturer of the bulldozer used in the demolition.

Cindy and Craig Corrie of Washington are the parents of Rachel Corrie, a 23-year-old student and peace activist who was crushed by an Israeli bulldozer on March 16, 2003, as she stood in front of a Palestinian home in the Gaza Strip. They filed a lawsuit in Haifa, Israel, against the Israeli government and Israeli Defense Forces in 2005-unsurprising since the bulldozer was allegedly being operated by an Israeli soldier.

However, the Corrie family, along with four Palestinian families whose relatives were injured or killed when the Israelis demolished their homes, also filed a wrongful death lawsuit in the United States against Caterpillar. They argued that the company knew or should have known the Israeli government would use the bulldozer to commit human rights violations-the destruction of civilian homes-and that therefore Caterpillar should be civilly liable.

In response to the lawsuit, a spokesman for Peoria, Ill.-based Caterpillar released a statement. It read, in part, "Caterpillar shares the world's concern over unrest in the Middle East and we certainly have compassion for all those affected by political strife. However, more than 2 million Caterpillar machines and engines are at work in virtually every region of the world each day. We have neither the legal right nor the means to police individual use of that equipment."

No doubt Caterpillar appeared to be a deep pocket to the Corrie family: the company claims to be the world's largest manufacturer of earthmoving and mining equipment, diesel and natural gas engines and industrial gas turbines. In 2003 alone, Caterpillar posted sales and revenues of $22.76 billion, and approximately half of all the sales were to customers outside the U.S.

Caterpillar's sales of the bulldozers in question were conducted through the Foreign Military Sales Program, in which the U.S. Department of Defense purchased the construction equipment and resold them to foreign governments. The particular model involved in the Corrie incident, the Caterpillar D9, is a 60-ton bulldozer with the innocuous nickname "Teddy Bear." The Israeli Defense Forces modify it with armor and bulletproof glass, and use it to knock down structures, transport debris, plow for mines, and shred roads.

The lawsuit, filed in federal court in Tacoma, Wash., was dismissed within months of being filed by a U.S. district judge who agreed that Caterpillar couldn't be responsible for how the Israeli army used its product.

To say that the case was politically charged would be an understatement: dozens of protesters came to the courthouse, some of them carrying black silhouettes of Rachel Corrie or paintings of a diminutive figure standing in front of an oncoming bulldozer. The Corrie family was represented by the Center for Constitutional Rights and Seattle University Law School's Human Rights Clinic.

When the Corries appealed the judge's decision to the 9th U.S. Circuit Court of Appeals (which heard oral arguments in July 2007), the legal team was joined by renowned liberal constitutional law scholar and Duke University Law School Professor Erwin Chemerinsky. On appeal, Chemerinsky argued that holding Caterpillar responsible not only made legal sense, but was supported by historical precedent. After all, corporations were held accountable after World War II for their complicity in the Holocaust. More recently, companies like Shell Oil and Unocal have faced lawsuits over their alleged ties to human rights violations in Africa and Asia.

Lawyers for Caterpillar and the U.S. Justice Department (which filed a friend-of-the-court brief in support of Caterpillar) responded that allowing the lawsuit to go forward would not only require American courts to improperly intervene in political issues reserved for Congress and the President, but would also place U.S. judges in the awkward position of passing judgment on Israeli policies in the Gaza Strip, second-guessing a foreign government.

While I agree with this, there are other issues involved, ones involving common sense and personal responsibility.

If we permit companies to be sued for the often political uses to which their products have been used overseas, where does it end? Should airlines be sued because we now know, in the wake of the September 11 attacks, that planes can be used as jet fuel-filled guided missiles? Should we allow a garden hose manufacturer to be sued because South American death squads used its product to torture political dissidents?

And how about Rachel Corrie's own responsibility? While I applaud the lone figure in Tiananmen Square who defiantly stared down the tank representing the might of the Chinese government, had the tank run him over I don't think I'd support a lawsuit by his widow against the tank's manufacturer.

Rachel Corrie knew what she was doing-according to eyewitnesses, she stood directly in the bulldozer's path with a megaphone. Moreover, at the heart of the protest was her group's awareness of the Israeli government's actions in knowingly demolishing residences and agricultural operations.

According to Professor Chemerinsky, this case is "about holding corporations liable when they aid and abet violations of human rights." However, selling construction equipment is a legal activity, and as Caterpillar attorney Robert Abrams points out, "You can't aid and abet a legal activity."

Chemerinsky is no doubt aware that misuse of a product is potent defense for companies in product liability actions. We don't hold a rodenticide manufacturer liable when a homicidal husband decides to kill his wife with rat poison, for example.

Let the Corrie family sue Israel and the IDF in an Israeli court. However, allowing them to sue an American company in an American court for a foreign country's alleged misuse of that product will only allow the floodgates of litigation to open. The first thing that will be crushed in the process will be common sense.

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