The Bags Won't Label Themselves...

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.

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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

A Look at How the Common Law Evolves

The study of torts can often feel like a history lesson. So many cases take place on the barges and trains of a bygone era that one can fall into a trap of thinking that it's a fairly static subject. But the dynamism of the common law really becomes apparent when we study something like emotional harm. Cases like Falzone v. Busch, Portee v. Jaffee, and Gammon v. Osteopathic Hospital of Maine, Inc. illustrate that the judicial system is willing to adjust the law to adapt to modern sensibilities.

Historically, plaintiffs could not be compensated for purely emotional harm.  Some evidence of physical harm was necessary in order for plaintiffs to recover.  From a policy perspective, courts worried that without any physical evidence of harm, plaintiffs could more easily feign injury and claim the right to compensation.  However, this trend began to change as medical research revealed that mental injuries and distress could cause psychological damage. In some cases, mental injuries could even manifest themselves in physical symptoms, a disorder sometimes known as somatization. Today, the medical profession and society at large recognize the extraordinary impact emotional harm can have on a person.

Courts have slowly but steadily been following this societal trend. In Falzone v. Busch, we start to see the shift in how courts characterized emotional harm. The plaintiff in Falzone watched from her car as her husband, standing some distance away from her in a nearby field was hit and injured by a negligent driver.  The plaintiff became sick and afraid for her own safety when the negligent driver veered towards her car and narrowly missed running into her. The plaintiff required medical attention, but did not have any lasting injuries. Although there was no physical contact, the court determined that the plaintiff suffered physically from fright caused by the negligent driver and should be compensated. However, the opinion in Falzone still required that any physical symptoms resulting from fright be “substantial” in order to impose liability on the defendant:

We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause Substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.

We see the law continue to evolve in Portee v. Jaffee, a horrible case in which a mother helplessly watched as her seven year-old son died while trapped between the outer door of an elevator and the elevator shaft.  In contrast to the fact pattern in Falzone, the plaintiff in Portee had no fear of injury to herself, rather, her distress resulted from watching her own son die. The court determined that in some situations plaintiffs should recover even when they do not fear for their own physical safety. However, the Portee court remained concerned about overextending the scope of liability, so it limited recovering to cases that met four requirements:

(1) the death or serious physical injury of another caused by defendant's negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress.  

The leap between Falzone and Portee is quite extraordinary, because it severs the direct link between the defendant’s actions and the plaintiff’s injuries. Seeming to recognize this, the court went out of its way to limit the new standard--only those directly witnessing a serious injury to a close relative could claim emotional harm. For a while, this remained the standard. For example, in Pizarro v. 421 Port Associates, the plaintiff suffered from severe shock after a man standing next to her in an elevator was decapitated. Although the unfortunate plaintiff was likely emotionally scarred for life, she wasn’t able to recover because the deceased was not a close relative. Courts around the country were trying to recognize and compensate emotional harm, but in their trepidation had created a swirling set of rules involving physical manifestations and witnessed harm committed to close relations. That all changed with the onset of cases like Gammon v. Osteopathic Hospital of Maine, Inc..

In Gammon, the plaintiff received a bag of personal effects from the hospital where his father had recently died. Instead of finding the usual assortment of clothing and accessories, the son instead opened the bag only to find a severed, bloody leg. The plaintiff believed the leg was his father’s, although he later learned that it had belonged to another, likely more unlucky patient.  The plaintiff did not suffer physically but had nightmares for several months and his relationship with his family deteriorated. The court in Gammon disregarded the rules set by prior emotional harm cases and declared that “these more or less arbitrary requirements should not bar Gammon’s claim for compensation for severe emotional distress.”  Essentially, the circumstances in Gammon were so extreme that the court was willing to allow for more flexibility in emotional harm cases despite the legal system’s prior concerns about expanding the scope of liability.

Both the Falzone and Portee courts created new, but still limited, rules precisely because they wanted to change the common law. Perhaps in giving due deference to previous decisions, they opted for bright line rules that would edge the law just far enough to encompass the particulars of their cases. However, once the law was sufficiently nudged, the Gammon court was able to break through these bright lines entirely and set a new standard for emotional harm. This is legal evolution at its finest, and shows how entirely new law may be made without any legislation. It is evidence that the American torts system, while flawed, is remarkably adaptive to changes in society.

-Ellis & Acton