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.