Tort law is simple at a general level and difficult to precisely define. Tort comes from a Latin word meaning “twisted” or “turned aside”, so by this meaning a tort is an act that is turned aside from the standard of conduct that is considered proper – a wrongful act. If you run an old lady down in a crosswalk by driving like an idiot, punch your neighbor in the nose (something I’ve considered with respect to my neighbor) you have committed a tort. All of these are wrongful acts for which the victim can receive an award of money damages.
You get a pretty good idea of what tort law is about from the before-mentioned cases but you’ll notice that something is missing from them because they don’t answer the fundamental question about tort law: if tort law is a sanction against wrongful conduct, how do you know what wrongful conduct is? Have I committed a tort when I punched my neighbor in the nose (next time he plays that god awful reggaeton too loud I’ll consider it)? How about if I drove too fast, too recklessly and ran down that old lady in the street?
Questions like these point out two important features of tort law. First, some cases are easy to decide and some cases are hard. Second, tort law is as much a process as it is a body of rules. The essence of tort law is the application of general principle – “everyone must use reasonable care not to injure someone else” – to particular cases, like a car accident on a rainy night. How these rules are applied – the system in which responsibility is shared by courts and juries – is just as important in tort law as the rules themselves.
For the longest time, tort litigation nearly involved cases brought by an individual plaintiff against an individual defendant stemming from an individual event. At most, small groups would be on one side of the litigation or the other; the driver and his three passengers would sue the driver of the other car who caused the accident, or a patient in a hospital injured by an operation would sue the surgeon, the anesthesiologist and the hospital. These cases still represent the bulk of tort litigation, but recently, cases involving many people (mass torts) have become more important.
Mass torts involve multiple injuries produced by a single accident like an explosion from a chemical company (such as the infamous Union Carbide accident in Bhopal, India) or the same kind of conduct repeated over time, such as the use of asbestos or the sale of a defective and dangerous drug.
The results are always dramatic: 6000 victims of the September 11th tragedy, 20,000 breast implant cases, almost 800,000 asbestos cases, 600,000 claiming injury from the diet drug fen-phen (with the potential of another five million) and, recently, 306 cases against Purdue Pharma, the company that makes the painkiller OxyContin (with the recent admissions from Purdue the number of complaints is expected to rise).
A mass tort poses a unique set of challenges to the system. One challenge is dealing with the sheer number of cases that can easily create a bulge of litigation that threatens to overwhelm the courts and delay adjudication of other cases. Another problem is dispensing justice to victims with different injuries who sue at different times.
Defendants in mass tort claims often resort to bankruptcy to escape the burden of liability. The court then has the burden of determining who gets what; if early plaintiffs are compensated there may be little or nothing left for those whose injuries manifest later.
Toxic torts – mass torts arising from exposure to dangerous chemicals, drugs or other substances – pose problems of causation because it’s difficult to tie the risk posed to specific injuries which may have complicated origins which may come up long after exposure.
Here’s why we need tort law:
Injuries happen. People die. A driver falls asleep at the wheel and veers his truck into oncoming traffic and wipes out your family. Someone falls down a flight of stairs. Operations aren’t always successful.
All too often, however, people are injured or killed when someone else is responsible. A homeowner fails to repair cracks in his sidewalk and a passerby trips and falls. Doctors misdiagnose and mistreat patients. Passengers are killed in an apparent minor car crash because the gas tank ruptures and explodes. Shipyard workers who use asbestos contract horrible diseases of the lung.
Sometimes a bizarre series of unfortunate events occurs: A ship tears loose from its moorings, drifts downstream and crashes into another ship, causing that ship to break loose from its moorings; both ships continue downstream and collide with a bridge that forms a dam causing ice and water to back up, flooding property upstream and delaying an ambulance carrying a vital organ needed for a patient in the hospital on the other side of that bridge who subsequently dies as a result of that delay.
There are three reasons why we need tort law. First, people would have little or no incentive to avoid injuring other people. Secondly, the victims of accidents would be left to their own devices to cover medical expenses, lost wages, property damage and other consequences of injuries they suffer (for most the cost would be significant; for the unlucky few, catastrophic). Third, it wouldn’t be fair that people could freely inflict harm on others, intentionally or otherwise, and not have to suffer the consequences.
Sometimes there is a perception that tort law is out of control and that it needs to be reformed. Recognizing this, it’s nearly impossible to speak of tort reform without referring to that most famous case of “lawsuit abuse”; I speak of none other than the Evil One, The Daughter Of Satan herself – Stella Liebeck!
GASP!!
Okay, that’s a little over the top. Stella’s parentage not withstanding, I don’t think she’s evil but there are those who see her as the poster girl of a system gone horribly wrong and in dire need of an overhaul.
Ms. Liebeck, seventy-nine years old, was a passenger in her nephew’s car when they decided to stop off at a McDonald’s in Albuquerque, New Mexico to purchase a forty-nine cent cup of coffee. As she placed the cup between her legs to remove the lid to add cream and sugar, she dumped the coffee in her lap and burned herself – badly.
Quite badly. As in, third-degree burns requiring a painful skin-graft procedure and a week in the hospital.
What follows is a picture of the injuries sustained by Ms. Liebeck. I have, for decency's sake, wrapped this image in a NSFW flag. If you're the kind of person who is squeamish or easily upset by images of human injury and suffering, please look away.
I don’t see it that way. In fact, I take the contrary position that Ms. Liebeck’s case is evidence of how well the system works.
What is not generally known outside the circles of judges and attorneys is that McDonald’s had received over 700 complaints about the temperature of the coffee it served and had quietly settled many of these complaints to the tune of $500,000. The company served its coffee at a temperature twenty degrees hotter than its competitors, a temperature that its managers admitted was too hot to drink right away and hot enough to cause burns.
Liebeck initially was willing to settle the case for the cost of her medical expenses, but McDonald’s decided to play hardball and refused. The jury in the resulting trial figured that $2.7 million was the amount McDonald’s made from two days of coffee sales so it used that amount to factor the punitive damage award. The jury also found that Liebeck was 20% responsible for her injuries because she wasn’t careful, so it reduced the damages awarded to her accordingly, and the judge further reduced the damage award to $480,000. Only after this case and the publicity it generated did McDonald’s turn down the temperature on its coffee. This case also influenced other potentially dangerous conduct: Wendy’s reduced the temperature of its hot chocolate – hot chocolate served mostly to children.
In my opinion, the system worked. A wrongdoer was forced to compensate an injured victim and remedy its dangerous conduct. Any changes in tort law that come ought to come through a time-honored and tested process of methodical development.
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