The Steel Kiss

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

————————————— x

SANDRA MARGARET FROMMER,

Plaintiff,

COMPLAINT

— vs.

— Index No.:

CIR MICROSYSTEMS, INC.,

Defendant.

————————————— x

TO THE SUPREME COURT OF THE

STATE OF NEW YORK

The complaint of the Plaintiff, SANDY MARGARET FROMMER, respectfully shows and alleges as follows:

With his right hand Rhyme clumsily flipped through the lengthy complaint. There was a second batch of documents, similar, in the name of her son, for wrongful death, and a third in the name of Greg Frommer himself for the pain and suffering in his last fifteen minutes on earth. And many, many adjunct documents.

The demand for judgment—the ad damnum clause—was for fifty million dollars.

Rhyme looked up from the documents. “But…  I assumed there was no suit against the controller manufacturer. I thought the DataWise wasn’t defective.”

“Why would you think that?”

Rhyme shrugged. “Vernon Griffith was—”

“An intervening cause?”

“Yes.”

“Ah, but a foreseeable intervening cause, one they should have guarded against. Negligence is determined by multiplying the likelihood of injury by the severity of that injury and comparing that against how much it would have cost to prevent it. Learned Hand. Second Circuit Court of Appeals. United States v. Carroll Company.

“Applying that rule, I take the position that, one, the probability of hacking a smart product is extremely high, given the number, ingenuity and motivation of hackers today. Two, the gravity of the injury can be extremely high. Mr. Frommer and Abe Benkoff are dead. Res ispa loquitur. And, three, the burden of adequate precautions is minimal. CIR could easily have provided for automatic security updates, as they themselves admitted and, indeed, are doing just now. They should have foreseen that a hacker would cause serious injury and it would have been a simple fix for them. So, CIR is negligent in the deaths.

“I’ll also claim the controllers are defective under the law of strict products liability. Your associate told me—and I have experts researching this further—that the software in embedded products is antiquated.”

True. Rodney Szarnek had told them that it was cheaper and easier for the smart controller companies to use old, easily hacked software, stripped of certain functions, than write new code, to save money and get the products to market sooner.

The spamming refrigerators…

“So, negligence and strict liability. I’ll probably add a breach of warranty claim too. There’s nothing wrong with the kitchen sink strategy when suing a wealthy defendant.”

“You’ll try for a settlement, of course.”

“Yes. They know I’d bring into evidence all of the other incidents—Mr. Benkoff’s stove, the microwave in the theater, the cars taken control of. It would be a public relations nightmare for CIR to fight it in court. And I could get a jury to bleed them anemic, if not dry, with punitive damages. Like a vampire.”

Ah, the somber lawyer had a sense of humor after all.

“I won’t get fifty million but I’ll negotiate a reasonable amount. Which brings me to why I’m here. There are some evidentiary issues that you’ll have to address before I send the complaint to Mr. Frost, the CIR attorney, and begin the horse trading.”

A pause.

“I’m afraid I can’t help you with that.”

“No? May I ask why not?”

“I’m helping the DA prepare the criminal case. There’d be a conflict of interest if I were to continue helping you.”

“I see. Of course. I’m sorry to hear that. True, I don’t want to jeopardize the civil trial.”

“No.”

“I must say, though, it’s important to marshal our case as formidably as we can. There cannot be any gaps in the case we present to the defendant. And the evidence is vital to that. I need an expert. Is there anyone you can think of, Mr. Rhyme? Anyone at all?”

* * *

“Hello, Rose.”

The elderly woman opened her eyes. “Lincoln. You came for a visit. Good to see you.”

With her non-IV’d arm she brushed at her hair, though it was perfectly well assembled. Amelia Sachs had fixed her sleeping mother’s coiffure when she and Rhyme had arrived in the recovery room not long before.

“Where’s Amie?”

“Talking to the doctor about when you get to go home. What you can do and can’t.”

“I’m supposed to start walking tomorrow. Who would have thought? Cut you open, fix your ticker…  and start you on marathons. Hardly fair.”