The Land of Hobbits, Elves, and No-Fault Injury Compensation Schemes

February 23, 2018 by Samantha Bates in Theories of Torts

I have a friend from New Zealand, let’s call him Tommy. Tommy is a very rough-and-tumble person, a person who works with his hands by day and coaches rugby by night. If Tommy were to lose an eye in a rugby match or a finger on the job, nobody who knows him would be surprised if he said “ah, it don't matter” and just kept on doing whatever he was doing. I used to think that this was particular to Tommy’s individual spirit. But lately I’ve been thinking that perhaps there’s something particular not to Tommy, but to New Zealand and its people, that impacts how they handle injuries. It turns out that New Zealand has a peculiar and fascinating approach to personal injury compensation, a system that wholeheartedly rejects Civil Recourse and focuses entirely on Remediation. It’s not quite a torts system because it eschews concepts like liability and fault. But New Zealand’s personal injury compensation system will be the subject of the last installment of our series on Theories of Torts nonetheless, because it draws a very big circle around the fact that our torts system reflects a number of societal choices--and that other modern societies could opt for something completely different.

When one thinks of New Zealand, the first thing that comes to mind might be that it’s Australia’s little brother or that it’s the setting for all of the Lord of the Rings movies. But while (or because) the rest of the world may not be paying attention to the country, they’ve quietly become a laboratory for testing out ideas that would only appear in fanciful law review articles in the United States. Once upon a time, New Zealand’s court system looked a lot like ours. That’s not surprising given that both are the offspring of the British common law system. If a person suffered an injury they could turn to the courts to seek redress from the person who caused the harm. In certain circumstances the injured person might have had access to private insurance, but for the most part it was a liability/fault-based system. Around the time that the United States started to explore slight alterations to this simple formula such as workers’ compensation, so too did New Zealand.

In the USA, when industrial accidents happen there's workers comp

It varies from state to state, but in the United States, workers’ compensation is generally a state-mandated private insurance scheme that compensates people injured as part of their employment for lost income. The key is that workers’ comp is a “no-fault” system. If you want to make a claim for your injury you must go through the workers’ compensation process and generally cannot sue your employer in court. In some ways, this system benefits both the worker and the employer. It benefits the worker in that it can provide access to compensatory funds more rapidly than if tort law was the only option and it benefits employers by providing predictability and stability. In essence, workers' compensation is a legally-mandated insurance scheme that insures both employees and employers.

This brings us back to New Zealand. In the early 1900s, the country created a national no-fault workers’ compensation scheme for industrial accidents. Then in a fit of reform in the 1960s, the government appointed a commission, led by the Supreme Court Judge Owen Woodhouse, to investigate whether the country should expand the workers’ comp system to cover all personal injuries, not just those related to work. Even though there was no great public clamor on the issue, the commission still proposed a sweeping no-fault system based on five principles: community responsibility, comprehensive entitlement, complete rehabilitation, real compensation, and administrative efficiency. Critically, the commission argued that a no-fault compensation scheme would offer better coverage with much lower transaction costs, and without establishing a “false morality” that is characteristic of tort law. Without involving the court system, a greater portion of every NZ Dollar spent in compensating injuries would go to the victims and they would get it much faster.

In 1972 the New Zealand Parliament adopted the commission’s finding and passed the Accident Compensation Act. The act prohibited most personal injury tort claims from appearing in court. Instead, the injured would have to turn to the Accident Compensation Corporation (ACC), a government entity created to handle all personal injury claims, to be compensated for injuries that fall into one of five categories:

“injuries from motor vehicle accidents on public roads
work-related injuries to employees and self-employed people
workers injured outside the workplace
medical treatment injuries
injuries to those who are not in the active labor force” such as children (source)

Unlike many/most workers’ compensation systems in the United States, the ACC is essentially a public pot of money, funded by general taxation and an employer levy, that makes payments to claimants. The ACC pays for things like “hospital and medical costs; wage replacement, starting only one week after injury, at a rate of 80% of average weekly earnings; rehabilitation and transportation costs; lump sum payments for permanent loss or impairment; and entitlements for surviving spouses and children.” In most circumstances, if you’re injured in New Zealand (even as a visitor!) you can likely receive some kind of compensation in a rote, mechanical fashion without the need for court or blame.

There are obvious pluses and minuses to this system. First among the positives is that it is extremely efficient when compared to a common law tort system. Claims are processed relatively quickly and are typically resolved within 9 months. The transaction costs are vastly lower because you don’t have to hire a lawyer or go to court. And critically, there is no moral interplay between fault and injury. Both of these last two factors make it vastly more likely that an injured person WILL seek compensation for their injuries. Without any data to back this up, I would imagine that the vast, vast majority of injuries suffered in the United States never lead to any sort of compensation. So in many ways, it is far better to be injured in New Zealand than it is to be injured in the United States.

But given some thought, the negatives of New Zealand’s system also become quickly apparent. First, the system’s reliance on a set of reward guidelines makes it less flexible than a tort system, covering fewer problems with less nuance. For example, the ACC limits compensation for emotional harm to mental injuries caused by “a covered physical injury,” work related trauma (which has only recently been covered by the ACC) or specific sex crimes. As a result, many people suffering emotional harm have brought their claims through the court system, but the majority have been rejected, in part due to the mere existence of the ACC. More critically, the lack of flexibility and a relative lack of funds means that the average claim payout is significantly less than a person might expect to be awarded in a jury-based tort law system. Though it’s difficult to find strict data on average claim payouts, we know that in 2006, the ACC received 1.6 million claims and paid “NZ$569 million on new claims and NZ$964 million on pre-existing claims.” However one breaks that down, the payouts likely look more like the awards we see in small claims court in the United States than in a standard tort case.

When we think about the New Zealand system with respect to TWiT’s Theories of Torts series, we can see that the government and people of New Zealand made a major decision based on Social Utility Theory to do away with a fault-based system and focus just on Remediation Theory. As we’ve seen above, one could argue about whether they’re doing a good job with this--on the one hand, people are compensated far less in New Zealand than if they had successfully brought a claim in the United States. But on the other hand, far, far more people have access to Remediation under the New Zealand system.

“[I]n focusing on Social Utility and Remediation, New Zealand is essentially removing the concept of Norm Setting...from their compensatory system”

But in focusing on Social Utility and Remediation, New Zealand is essentially removing the concept of Norm Setting Theory from their compensatory system. A no-fault system yields actors who are not motivated to change their behavior, to do better. Further, the New Zealand system almost completely removes the concept of Civil Recourse and Corrective Justice. In New Zealand, if you want your day in court, well, too bad.

As you might see, the New Zealand ACC system is a tremendous tool for understanding our own torts system and assessing its own strengths and weaknesses. As we’ve been preparing the articles in our Theories of Torts series, we can’t help but remark on the human power of Civil Recourse Theory. Sometimes, having your day in court IS just compensation, and no amount of money paid through a compulsory insurance scheme will make up for it. At the same time, there is exceptional clarity in the way that New Zealand compensates most injuries. One need not hire a lawyer, march down to court, and go to war in order to make up for your losses.

In our first article on Theories of Torts I wrote about the series of medical mistakes that led to me being confined to a wheelchair for a long period of time, and how I decided that I did not want to seek compensation because of all that entailed. I wanted compensation, but I specifically did not want my day in court. And so I received nothing for my loss. In New Zealand, I would have been paid something. Perhaps not enough to make up for everything I went through, but something. It’s enough to make us think about whether New Zealand’s approach might be a better system. We’re not at all convinced. But at a very minimum, it helps us see that when it comes to tort law, we shouldn't make any assumptions as to what is just.

-Ellis and Acton

... And Justice for All?

January 24, 2018 by Samantha Bates in Theories of Torts

Today we’re going to take another stop on our abridged tour of theories of tort law with a look at Social Utility Theory. To this point we’ve talked a lot about why people sue or don’t sue, but you can’t really understand tort law without understanding why people win or don’t win. In theory, people should win based on the merit of their claim, fairness, justice, equity, righting wrongs, etc. But we’ve all seen or heard about cases that seemingly defied equity and did not go in the way of justice. When that happens, often it is because the court is focused on more than just the parties before them. It is debatable whether they should be in the business of looking outside the courtroom, but judges do sometimes focus on what is best for society at large. And when they do, it is an expression of what we’re calling Social Utility Theory.

On July 13, 1977, the lights went out in New York. The city that never sleeps was rendered a convoluted mess. People got stuck in elevators, people got stuck in trains. Traffic snarled as all the signals went blank. Looters emerged and violence erupted. The health care system plunged into chaos, as patients lay on the operating table with only emergency backup lights to guide their surgeons’ hands. There were around 7 million people living in New York City in 1977, and you can imagine far more than 7 million instances of damage and loss due to that blackout.

But when injured parties tried to sue Consolidated Edison, the city’s electric company, they were largely shut out from recovery. In Straus v. Belle Realty Company and Consolidated Edison Company, a man fell down the stairs in his apartment building’s darkened stairwell as he attempted to recover his emergency water supply in the basement. The man sued both his landlord and also ConEd on the theory that both of their negligence led to his injury.

The court determined that while ConEd may have owed a duty to the plaintiff, it should not be held liable due to policy concerns about overextending liability:

“... while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, ‘to limit the legal consequences of wrongs to a controllable degree’... and to protect against crushing exposure to liability. ‘In fixing the bounds of that duty, not only logic and science, but policy play an important role’... The courts' definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.”

The court in Strauss basically said that while the plaintiff has a reasonable case in theory, in practice it would establish a precedent that might create boundless liability that would ultimately be injurious to society at large. For the torts system to work, the scope of liability must be limited to certain bounds. This line of reasoning has a long history, exercised by some of the most distinguished judges ever to don the robe. The classic example is the opinion by Benjamin Cardozo, a Lion of the Law™ if there ever was one, in Moch vs. Rensselaer. In this case, the defendant, the Rensselaer Water Company, had a contract to supply water to the city of Rensselaer. While the contract was in force, a building set on fire and the fire spread to the plaintiff’s warehouse and destroyed it. The plaintiff sued the water company for failing to supply them with enough water to put out the fire and prevent the destruction of their property. However, the court disagreed, explaining that allowing the plaintiff to recover in this case would overextend liability:

“We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, ‘The law does not spread its protection so far.’”

Both Moch and Strauss involve liability stemming from the failure of public utilities (water and electricity), but we might argue that the entire field of law and economics adopts similar legal reasoning. Law and economics is a gigantic field full of people who think very deeply about these things, and we cannot possibly do justice to describing the bounds of the field. But put most simply, law and economic theory states “that law is best viewed as a social tool that promotes economic efficiency, that economic analysis and efficiency as an ideal can guide legal practice.”

It would be reasonable to say that the law and econ movement saw its genesis when Lion of the Law™ Learned Hand created the “B<PL” formula in United States et. al. v. Carroll Towing Company. When assessing duty, hand stated that:

“[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that [a harm will happen]; (2) the gravity of the resulting injury...; (3) the burden of adequate precautions.”

That is, multiply the gravity of an injury and the burden of adequate precautions the defendant could have taken, and compare that to the probability of an injury. By including the burden of taking precautions into account, Hand seems to have formally introduced social utility into the courtroom.

We might see a modern example in McCarty v. Pheasant Run. In Pheasant Run, a woman was assaulted in her room at the Pheasant Run Resort, by an intruder who entered the room through a sliding glass door behind a drawn curtain. Judge Richard Posner, yet another Lion of the Law™, explicitly pursued a BPL analysis even though it was not the law in Illinois, which he was supposed to apply. Posner looked at the cost of better locks and the burden of the hotel installing the locks relative to the harm suffered by the plaintiff. Even though hotels owe a heightened duty of care to their customers in Illinois, the judge still found that the hotel had not violated its duty by neglecting to lock or check the lock on the door. Basically, the plaintiff was out of luck because Poser determined it would have cost the hotel too much to install adequate locks. It is an outcome that many might dispute, but is at least theoretically based on some kind of analysis that promotes the best outcome for society.

Cases like Strauss, Moch, and Pheasant Run show that in our torts system social utility and justice can sometimes seem opposed to one another. It is always important to remember that our torts system is a creation of humans and of our society. People in another place could choose a completely different system that might create a better, or at least different, balance between justice and social utility. In our upcoming fifth and final installment of Theories of Torts, we leave these shores altogether and travel to middle Earth (aka New Zealand) which has a novel approach to torts.

"On Me Fait Tort!"

January 05, 2018 by Samantha Bates in Theories of Torts

When you think of the English Channel, you might conjure up an image of a person trying to swim across it, or perhaps the “Chunnel” comes to mind. Less well-known, but perhaps more interesting, are the Channel Islands. Although physically much closer to France, the Channel Islands combine English culture with their own brand of independence, as the islands are a Crown Dependency of the United Kingdom but retain a tremendous amount of sovereignty (for example, they neither are nor ever were a part of the EU). The names of the islands are even less familiar to most people than their existence: Jersey, Guernsey, Alderney, and Sark being the largest. Jersey and Guernsey may be best known for what’s been named after them: the former is the namesake of the Garden State and the latter has lent its name to a type of cow. But almost nobody has ever heard of Alderney or Sark. And that’s a shame, because Sark is fascinating.

The one thing you really need to know about Sark to appreciate its special place in the world is that it operated as a legitimate, medieval-style feudal state until 2008. It was lorded over not by a lord but by “the Seigneur,” who, until 2008, lived with fun privileges like being the only person on the island allowed to own pigeons or an unspayed dog. The Seigneur presided over a population of 600, but among them only 40 were allowed to own land. These 40 landholders, called Tenants, comprised most of the government’s formerly unelected parliament. Until 1999, women were not allowed to inherit if they had a brother. And before 2002, divorce was only allowed if one of the parties left the island for a year. Sark! You can’t make it up.

Among the totally unusual customs and traditions in Sark (as well as in the other Channel Islands) is something called the Clameur de Haro, which can be invoked when a person believes his (and we do mean “his”!) property rights have been violated by another citizen by reciting the Lord’s Prayer in French and crying out: "Haro! Haro! Haro! A l'aide mon Prince! On me fait tort!" which roughly translates to, "Hear-ye! Hear-ye! Hear-ye! Come to my aid, my Prince, I am being wronged by a tortious act.” According to tradition, the wronged party must recite the clameur while kneeling on the “threatened property,... bareheaded, hands clasped, in the presence of two witnesses and [within] the hearing of the alleged wrongdoer.”

“Haro! Haro! Haro! A l’aide mon Prince! On me fait tort!”

Once the wronged party invokes the Clameur de Haro, all actions against the person and their property must cease until the matter is heard by the courts. This practice originates from Norman law as the Channel Islands were once part of the Duchy de Normandy, and the last time the Clameur was invoked in Sark was in 1970 when one Sarkese was building a wall on another Sarkese’s property (presumably these were two of the 40 designated tenants).

There is something special about the Clameur de Haro. It is a way of not just seeking compensation for wrongs, but actually proclaiming them in front of the world, which has its own intrinsic value. In a way, a lawsuit is nothing more than a lengthy and complicated version of the Clameur de Haro because is also is a statement that says, “I’ve been wronged.” And many people sue one another not for money, but for the opportunity to “have their day in court” and face the person who has injured them.

As we continue our tour of Theories of Torts, it is crucial to understand that a lawsuit is, in and of itself, an end for many people. To this point we’ve discussed how tort law can make the injured whole and we’ve talked about how it can change behavior. This article is about something even less tangible. It is about dignity. Broadly speaking this is sometimes called Civil Recourse Theory, because it emphasizes that when a person is wronged, they can and should have a recourse to address the wrongdoer.

From our cases, we might see Werth v. Taylor as an example of a plaintiff pursuing a lawsuit in order to state that they were wronged. The plaintiff in Werth v. Taylor was a Jehovah’s Witness who underwent a dilation and curettage (D&C) procedure, a typically safe and uncomplicated operation, after the birth of her twins. Due to the plaintiff’s religious beliefs, she did not want a blood transfusion should it be necessary because Jehovah’s Witnesses believe that receiving blood transfusions is a sin. Unfortunately, the D&C did not go as planned and the mother started seriously bleeding. Normally, doctors could control this with a blood transfusion. And although the mother informed her doctors that she did not want a blood transfusion, they did it anyway to save her life.

This is a spiritual wound of the highest order. If we are to credit a Jehovah’s Witness’ faith, one might interpret the doctors’ decision to perform the blood transfusion against the plaintiff’s wishes as a nearly mortal injury to her soul. Clearly, no amount of money will ever make up for that type of injury. This case is unusual in that there is no cause of action for wounding one’s soul (perhaps NIED?). Instead, the plaintiff sued for battery, but we might as well think of this as a type of “wrongful life” case. And while we don’t know for sure, we have every reason to believe that Werth v. Taylor falls into the category of civil recourse cases. The plaintiff was wronged in a way that could never be recompensed in her eyes. However, she still wanted her day in court even though no amount of damages could ever “make her whole.”

A close cousin of Civil Recourse Theory is C orrective Justice Theory, which states that just as the plaintiff needs their day in court to state their grievances, so too does the defendant in order to accept responsibility for the harm inflicted.

Again, looking to our cases we might find an example of Corrective Justice in Alcorn v. Mitchell. In this case from 1872, the defendant was fined a $1,000 for spitting in the face of the plaintiff on the courthouse steps. That’s a lot of money for one expectoration! According to one of the internet’s mildly-misleading inflation calculators, that’s $18,341 (the cost of a Subaru Impreza!) in today’s world. The defendant claimed that $1,000 was an excessive fine, but the judge strongly disagreed, using a number of florid phrases to talk about the “malignant” act that the defendant committed:

“The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved.”

“[T]hat single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women.”

— Taylor Swift's Attorney

He went on to describe the courtroom as a “temple of justice” that was disrespected by the defendant’s act. In this instance, the judgment seems to be not for the plaintiff as much as against the defendant. It’s a good example of Corrective Justice Theory, as Alcorn was not so much about compensating a loss as it was about punishing the defendant to a degree that was commensurate with the indecency of his act.

A modern day example of a Civil Recourse and Corrective Justice case might be Taylor Swift’s sexual harassment suit against former radio DJ David Mueller. Swift claimed that Mueller sexually harassed her during a photo shoot and saw her day in court as an opportunity to stand up for women’s rights in the workplace. Rather than demand significant damages, she asked for only a dollar because she saw the lawsuit as a symbolic gesture of support for other women. During closing arguments, Taylor Swift’s lawyer explained, "that single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women."

From the Clameur de Haro to the Taylor Swift action, some cases seem to be more about honor and dignity than about collecting money damages. Because while money is fleeting, respect and self-respect have an eternal quality. It would be naive to think that this doesn’t play a massive role in most tort actions, and it’s yet another example of how tort law is about so much more than making the injured whole.

-Ellis & Acton

The Bags Won't Label Themselves...

December 20, 2017 by Samantha Bates in Theories of Torts

Matriculating in law school is not all sunshine and roses. The first year has a well-deserved reputation for being brutal, a cross between boot camp and the Hunger Games. Anecdote and evidence both suggest that the process somehow turns well-adjusted high achievers into a crowded field of anxious paper-pushers. Debts pile up. And yet so many people choose to partake in law school for so many reasons. Students sign up for pride, for achievement, and for the thrill of the [Paper] Chase. More than a few sign up in order to have a positive impact on the world. And many look forward to an ancillary benefit that will come regardless of whether they want it: the respect of their family and friends. Like it or not, our world is complicated, and lawyers know how it works better than most. And so there are exceptionally few lawyers (and even law students) who don’t regularly have friends and family ask “legal” questions.

There’s a whole breed of these “family lawyer” questions that starts with “is it legal to…?” Google autocomplete suggests people want to know “is it legal to record a conversation?” (editor’s note: depends on the state, but usually no). “Is it legal to smoke weed in Boston?” (yes, unless you’re driving), and my favorite “is it legal to own a fox?” (nope!). All three of these questions concern topics for which there are statutes, but often family “is it legal” questions involve topics a little too unusual for there to be a specific statute. And in those circumstances we have to look to torts and the common law. It’s a bit unwieldy, because tort law deals with civil rights of action between citizens rather than criminal actions by the state, but a civil precedent is still a binding judicial decree that a certain activity is considered outside the bounds of acceptable behavior.

The beauty of our common-law torts system is that it is flexible. Judges and juries can take precedents and apply them to novel fact patterns that have never before been considered. In a way, a tort lawsuit can be an end-around the legislative process. It is a way that even a single ordinary citizen can change what is or isn’t “legal.”

This is a very long-winded way of bringing us to our next theory of torts, Norm Setting. In our last theory of torts article we said that while many tort cases are about making the injured whole, there are still many other cases in which we observe other motivations at play. And very high on that list of motivations is the desire to change the behavior of a particular party or class of actors. Ralph Nader’s amazing American Tort Law Museum in Connecticut has a number of exhibits dedicated to just these kinds of cases.

The classic example is Grimshaw v. Ford Motor Company, in which the plaintiff sued Ford regarding the disastrously-designed Ford Pinto. Ford had rushed the Pinto to market despite knowing that it had a tendency to explode if its gas tank was punctured in a collision. The 1978 jury awarded $2.5 million in damages and an additional $125 million in punitive damages. According to the Tort Law Museum,

“The Grimshaw case sent a message to automakers that if they chose to ignore safety considerations, it would be at their own financial peril. This case helped push the automobile industry away from 'safety doesn’t sell' and toward emphasizing new safety features in their marketing.”

From our own files, we have the case Emery vs. Federated Foods. As we discussed in a different article, in Emery, a three year old boy choked on a marshmallow and was left with severe, irreparable brain damage. When teaching this case we discuss whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. Although we haven’t been able to find direct proof of a link between the Emery decision and the current practice of marshmallow manufacturers putting warning labels on their products, there’s a very good chance that there is a causal connection. If so, it’s an excellent example of tort law changing behavior, in this case the behavior of manufacturers adding warnings to marshmallow bags.

But warnings don’t matter if no one heeds them. While we want tort law to influence the behavior of manufacturers, we also want it to ultimately change the behavior of end users. We want manufacturers to make their products safer and to alert us to inherent dangers, but we also want end users to change how they handle the goods. A helpful example here might be plastic bags and children. Parents far and wide now know that plastic bags are little death traps for a small child because the thin plastic easily sticks to their mouth and nose, causing them to suffocate. But plastic bags aren’t that old (in the grand scheme of things), and the nearly-ubiquitous warnings on the bags themselves have undoubtedly played a role in educating parents.

According to the Consumer Products Safety Commission, around 25 children still die every year from bag asphyxiations. But that number would certainly be higher without the warnings. Currently only five states require warnings: California, Massachusetts, Rhode Island, New York, and Virginia. But a quick survey of bags from friends and relatives indicates that even outside of these states, bags have warnings without there being a statute in place. For example, a bag from New Hampshire we looked at had the following warning:

"WARNING: To avoid danger of suffocation, keep this plastic bag away from babies and children. Do not use this bag in cribs, beds, carriages or play pens. This bag is not a toy."

If there is no statute, tort law has played a role in the presence of that warning. It has established a norm among bag manufacturers and/or retail stores that says we need to have warnings on plastic bags. These companies know that if they don’t have the warning and something bad happens, they likely will be found to be negligent in the eyes of a court, even if there is no statutory requirement. And we might then say to our friends and relatives that handing out plastic bags without such a warning is “illegal.”

Torts is a direct way that citizens can change the law. It is a way we can make something that would otherwise be legal illegal. In the last article that we wrote about theories of torts, we talked about why you might not sue even when you have suffered harm. This article demonstrates that you might sue for an entirely different reason: because you want to change the law. And in those cases, being “made whole” may have nothing to do with it at all.

-Ellis

Why We [Don't] Sue

December 18, 2017 by Samantha Bates in Theories of Torts

Several years ago I was watching a basketball game when I noticed a headache coming on. The headache got worse and worse and I decided to throw some painkillers at it, but after about 12 hours I could barely stand. So I made my annual trip to the emergency room and after some tests was told, “congratulations, you’ve got meningitis.” Well, maybe not “congratulations.” The next several months would be a typhoon of maladies, all stemming from my meningitis (itself a product of my Multiple Sclerosis treatments). I will leave out all the gory details and skip ahead to my visit to the infectious disease department several months later to address yet another health complication indirectly caused by my meningitis.

The doctor prescribed me ciprofloxacin, aka cipro. I went to the pharmacy, picked up the medicine, and took my first pill. That night I took another, and then another the following morning (as directed). And then, as I was walking to the kitchen, my left achilles tendon tore. And before I knew it my OTHER achilles tore as well. I later discovered through my own research that there is an FDA "black box warning" against mixing floroquinolone antibiotics like cipro and the steroids I had also been prescribed, because it can cause acute tendonopathy. Basically the cipro attacked my tendons and the steroids prevented my body from fixing it. I spent the next several months in a wheelchair, which was an incredibly good experience because it helped me empathize with my fellow man. But it was not so great otherwise.

More than a few people suggested that I sue the doctor or hospital for prescribing me this antibiotic given the black box warning-level interaction with another drug they had prescribed me. It’s pretty clear to me that there was some kind of negligence and I suffered a lot, in a way that has greatly impacted my life. But actually sending a demand letter never crossed my mind.

If you ask a law student, professor, or lawyer “what is the purpose of torts?,” there’s a really good chance they will say “to make a person injured by another whole.” But it’s got to be more than that. I was very injured, and I know exactly why. My doctor had a duty, he seems to have breached it, and that breach caused severe harm. Open and shut, right? So if this were just about making me whole, I should have just sent that letter and made it happen.

But it turns out that torts does so much more than make the injured whole. This article is the first in a series that will discuss the purpose and reality of tort law on a theoretical level. Today we will talk about torts’ most famous purpose, its role in remediating wrongs and making the injured whole. Subsequent articles in our Theories of Torts series will focus on the social utility, norm setting, and civil recourse functions of tort law. Our series will end with a look at New Zealand, whose exceptionally different compensation system will help us understand both the strengths and weaknesses of the American torts system.

As I said, today we’ll start with a look at how the torts system is supposed to make the injured whole. The concept is pretty straightforward: if an incident causes a loss to an innocent victim, that victim should not be forced to bear the cost of the loss. Instead, the loss should be recouped from the perpetrator. If a drunk driver swerves off the street and careens into your living room, the drunk driver should have to pay to replace your ruined sofa. Despite the power of the alternative theories of torts that we will talk about later in this series, this remediative theory of torts is the most powerful and is the basis of a huge portion of tort claims.

There are many, many flaws with this theory of torts, but we will only focus on two here. The first is that so many losses in life are not easily compensable. What would have been a fair payout to make up for my time in the wheelchair? Sure, the wheelchair itself was quite expensive. But my loss was far greater than the cost of the wheelchair, and it’s really hard for me to give you a number. My case would have been relatively easy, but there are many cases that ask something much more difficult, such as “how much is a life worth?” And once you start down that path, the law can start to look very ugly. In America, courts regularly have to determine the worth of a life or even the worth of a child’s life. They will consider things like life expectancy and earning potential in order to assign a monetary value to a life, and then subtract things like living expenses from that value. It is an icy-cold, chilling calculus, and exactly the kind of thing that makes laymen uncomfortable with the legal profession.

But it’s the best we can do. In McDougald v. Garber Judge Sol Wachtler said:

“An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyme[nt] of life rests on ‘the legal fiction that money damages can compensate for a victim's injury’...We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace.”

The fact that so many tort claims involve noneconomic incidents does serious damage to the argument that tort is about making the injured whole. Another problem was the basis of why I chose not to file a suit against my doctor and hospital when I was injured: lawsuits are difficult, creating perhaps artificially hostile conditions between otherwise agreeable people. As a former litigator, I know very well the social cost of participating in a lawsuit, both as a plaintiff and as defense counsel. In my case, I was coming off of a horrible year that was filled with many bleak days. Initiating a lawsuit was the last thing I wanted to do. And while to me it seemed clear that my injury could and should have been prevented by my doctor, I didn’t personally blame him. He was trying the best he could and made a mistake. Even if I had the emotional wherewithal, I did not feel comfortable going to war with my doctor.

So while the notion that tort law is about making the injured whole is probably the most accurate single view of this huge corner of our civil justice system, it can’t explain away everything that does or does not happen following an injury. Money damages are often completely inadequate to repair a wrong, and the process has transaction costs that often dissuade victims from attempting to remediate their loss.

-Ellis