Incurable Romantic (It Takes Two: Baby!")

ASSUMPTION OF RISK

In court, especially on appeal, the only thing you read in law school, a lot depends upon how the controversy was brought to the court, and, in an appeal, you are not dealing with the original controversy de novo, but rather just those assignments of error that arose during the course of the trial, or, in pre-trial motions, brought in interlocutory appeals, or after a dismissal (demurrer) or summary judgment. Bottom line: on appeal, you just have a slice of the pie, which is often concluded not with a victory, but an order for reversal and remand, to do it all over again, without the corrected error.

And, in court, an adversarial system, it is usually an argument of pointing fingers as to who is to blame, with the hope of an attorney's client to be able to claim not innocence, but a decision of not guilty, and there is a difference with distinction. In court, it is not what happened, but what you can prove.

Take for instance Roe v. Wade. It began with a plaintiff, but quickly found a bunch of doctors getting involved, which resulted in a decision at the Supreme Court about a doctor's permitted choices, not a woman's choice, which, understandably, performs better in focus groups. The FACE Act came into enactment after popular support was galvanized not upon the death or injury of an expectant mother, but the tragic deaths of two doctors.

But, at the root level, in an "unplanned pregnancy", were one to go to the beginning of the transaction, as had occurred in the court in the matter of Featherall v. Firestone, decided in 1979, stating the facts, the Virginia State Supreme Court wrote: "On July 30, 1971, plaintiff Thomas R. Featherall was severely injured on the premises of his employer, the Pepsi-Cola Bottling Company, located in Alexandria, when a stainless steel lid exploded from a syrup tank and struck him in the head. At the time, plaintiff was in the process of cleaning a soft-drink dispensing unit by means of a pressurized system. Among the components of the system were a cylindrical pressure tank containing carbon dioxide, a pair of pressure-reducing regulators with gauges, two flexible hoses, the syrup tank, the lid, and the drink dispensing unit."

The litigation had crystalized the issue as one of products liability, with the plaintiff's theory of latent defect, or a defect that could not have been discovered by the manufacturer of the equipment upon reasonable inquiry, a basic duty in tort for a person presumed to be reasonable. However, upon review of that products liability case the plaintiff was found contributorily negligent, and, hence, barred from recovery of damages incurred when the pressure tank exploded.

If you have an unplanned pregnancy, is there a negligent party? Did a party, or parties assume a risk when engaging in conduct that had contributed to the injury, defined as a "clump of cells" in a woman's womb? This would be the normal tort analysis, but rather, in abortion, we have a reasonable person, or persons, shifting the cost to the "resulting condition", which is not even afforded a guardian ad litem to represent its interests because it has, at least since Roe v. Wade, been determined to be property and not human life, under the law, property that may be bought, sold, discarded, or whatever.

Despite the many complications associated with a novel coronavirus, at least to date there have not been any reports of new creatures even more intelligent than a virus that isn't stupid evolving into existence, nor is this found with cancer or any other human affliction treated by a doctor. So, this bifurcation in classification arises from convenience, at the expense of a being that has far more than a bare expectancy of becoming a fully functioning resident of a state, a person entitled to rights and a citizen.

And such is often the way the blame game is played in court, where, at least in criminal law, you have a right to remain silent, to avoid self-incrimination.