AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
First, I live in the state of Connecticut in the United States.
General question on liability. I am a computer consultant. One of my friends lives about 20 miles from my home but works about 3 miles from my home. He owns a 2000 or 2001 BMW 325i series with 223000 miles on it.
Back in the beginning of this year my Mother in law moved in with my wife and I and therefore added a third car to our household that she no longer drove. So, my friend occasionally asked if he could “borrow” my Pathfinder if the weather was going to be bad or he was having work done on his car. I always said yes and there were never any problems.
On Friday, July 6th he called and asked if he could borrow my car until that Sunday. He said that he would drive his BMW to my house and leave me the keys in case I need to use it and then on Sunday he would drop off my car and pick his up. Well, Sunday morning arrives and he calls me and asks if I could drive his car to where he lives because of some reason or another. I said sure. So I got into his car and started driving to his house. About half way there the car just died…lost all power so I pulled over to the side of the road and got out of the car, I walked around the car and saw that under the front of the car there was some liquid leaking. I touched it and knew it was not oil but antifreeze. I had about another 5 miles to go to his house so I got back into the car and it started right up. I drove for about one mile when the car died again. This time there was a little smoke coming from under the hood. I opened the hood and saw that the radiator hose that attaches to the top of the radiator had totally come off and radiator fluid was spilling out all over the place. I called my friend and told him what happened. I then called a tow truck company to tow his car (which I paid for) and had it towed to his local repair shop. He met me on the highway and gave me my Pathfinder back. He told me he would call me when he got to the repair shop.
About 2 hours later I got a call from him yelling and screaming at me that I blew his cars engine because I drove it for a mile with no antifreeze in it. I told him what had happened. I told him that there were no lights lighting up on the dash. The temp indicator light never went into the red zone until the second time the car died on me at which time the car was never driven again.
So, my question is, am I responsible to but him a new car or a new BMW 325i engine because I was the one driving the car at the time this happened? My next question is how did the clamp that holds the hose onto the radiator become so loose that it literally came totally off of the radiator? I am not a mechanic so I don’t know anything about cars. Computers I can work with….car’s I can’t.
Any advice would be appreciated.
Thanks,
Paul
Answer Thank you for your question!
I just received notice this morning from ALLexperts of your question -- sorry if there has been a delay, this happens sometimes.
Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
I am not an attorney, but I can answer your question from my mediation experience. The case you describe here is VERY common and is a good mediation candidate if you wished to engage a mediator.
It is well for everyone here, despite the immediate problem of costs, to step back and understand the dynamics of the relationship.
The truth is, that for various reasons, you were asked to go out of your way -- not once but may times to help out your friend and provide a vehicle for him to use. I would absolutely believe that chief among the reasons you were asked to help out was the fact that the "problem" car has nearly a half million miles on it and is a BMW to boot -- famous for repair problems.
So this is the context of the relationship. You were asked to help out your friend, you did not ask for his help. This was, as we say, not a quid pro quo, but a gift needed and provided without strings.
In fact, on the day in question, this was also the scenario. In addition, not only were you asked to loan your vehicle, but when it came time to swap them you were ALSO asked to take your time to drive over to retrieve your own vehicle.
It would be completely reasonable to worry about possible problems arising on any vehicle with such high mileage, yet your friend did not consider this a risk when asking you to drive the car. You are not a mechanic and should not be expected to be able to make completely correct operating decisions if problems such as this arise.
Given this context: the fact that your dealings were not a "fair exchange" but a service you provided many times to your friend; the fact that problems with the vehicle were not only well known, but were often the reason you provided the service; the fact that you were specifically asked to drive the car and were not just racing around in it on a Saturday night; and finally that fact that you have acted completely in the service of your friend without getting or expecting a benefit and that you were acting with care and consideration and in good faith the whole time as best you knew how, even during the breakdown crisis. You would not have driven the car had you known it would have damaged the car.
Therefore, I would argue strongly that you are not responsible for paying for the repairs and that your friend has no one to blame but himself. I would remind your friend that he has a duty as a friend to you not to turn your goodwill into a service that he "relies on" for his day to day needs. He should not expect to both rely on you and others to be helping him, and then blaming these same people when the unwise situation they helped you prolong blows up (ie. keeping such a scary vehicle for so long). If it makes him feel better, he should consider the fair market value of the use of your car (what he would have had to pay to rent a car) as your contribution to his overall situation. This is a real-world economic value you provided to him.
You can be my friend anytime!
As to the loose clamp, there is no telling about those things -- they just sometime happen, but a lesson for you is that overheating can never be compromised with -- even for a few miles. I would say that it is VERY likely that the engine was damaged the first time when it died anyways.
These are some ideas. Feel free to follow up with additional questions.
For your general information, the pros and cons of the types of dispute resolution methods follows.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no 0 winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85 of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
