Big businesses and their lobby groups have spent decades and hundreds of millions of dollars trying to convince the American people that civil lawsuits are frivolous and should be limited. So called “tort reform” laws have been enacted in most states across the country over the last few years using a few overblown examples.
But what do we really mean when we talk about tort reform?
The history of tort law is a history of the everyman triumphing over institutional power. It’s a lengthy history. The word “tort” derives from Old French, meaning “very lengthy negligence fact pattern.” Recorded tort cases date back to medieval times, when fourteenth century courts held that “so long as it could be alleged that the plaintiff had suffered some harm as a result of wrongful conduct on the part of the defendant, it could be argued that a remedy should be given.”
In the U.S., modern tort law is the product of more than a century of David vs. Goliath battles pitting consumer watchdogs against the moneyed interests colluding to undermine the rights of ordinary citizens. In 1916, the New York Court of Appeals ruled for Donald C. MacPherson, a stonecutter, in a precedent-setting case against Buick Motor Company in which the plaintiff suffered injuries when the wooden wheels of his car collapsed while driving. Buick argued it wasn’t at fault because another manufacturer had built the wheels. Judge Benjamin Cardozo rejected that line of reasoning, stating it was the carmaker’s responsibility to ensure the quality of the parts in its automobiles.
A more recent example is the famous McDonald’s hot coffee case. In Liebeck v. McDonald’s Restaurants, the jury heard testimony over the eleven day trial. Ms. Liebeck was a passenger in a car with her son. After they got the coffee from the drive-thru window, they pulled over and parked to add sugar and cream. The evidence showed that McDonald’s coffee was 180-190 degrees Fahrenheit. At 190 degrees, coffee causes third degree burns in as little as two seconds. Other similar restaurants served coffee at 140 degrees and anything hotter than 130 degrees is a burn hazard. The jury heard that Ms. Liebeck was burned on 16% of her body and was hospitalized for at least 8 days. She was partially disabled for two years going through treatment and painful skin grafts. After hearing all of the evidence, the jury found that the fast food chain was 80 percent responsible for the third-degree burns. The drink was so hot, the ruling stated, it could reasonably be considered defective.
The Liebeck case became a turning point in the national conversation on tort reform. In the aftermath, corporations and mainstream media alike cited the trial as a poster child for frivolous litigation and companies spent millions distorting the facts of the case. Media reports drastically downplayed the severity of Liebeck’s injuries, as well as the extent of her treatment, which included skin grafts and years of subsequent medical care. Few also noted that in the end, her settlement provided for little more than a live-in nurse. Liebeck died in 2004.
Nonetheless, in the public consciousness, the case came to symbolize not a victory for consumer rights, but a win for unscrupulous plaintiffs and their greedy lawyers. By extension, the very notion of a tort action became something inherently disingenuous. As a result of the Liebeck ruling, tort reform activists called for limiting damages (as if Liebeck was awarded substantial money), sanctioning attorneys who brought what they deemed frivolous cases to court (as if the Liebeck case could in any way be construed as meritless) and perhaps most egregiously, spun the narrative that Liebeck’s injuries were minimal (as if she hadn’t suffered third-degree burns).
As the politicized rally cries and media distortions grew over time, the essential nature of tort law was lost — that it’s neither fundamentally good nor bad, but simply a tool for institutional accountability. There is an excellent documentary about this case and the efforts to politicize it to the benefit of big businesses. Click here to see “Hot Coffee.”
“Tort law empowers individuals to take action in response to having been wrongfully injured. It confers on ordinary citizens a legal power — the power to commence a lawsuit, which, if successful, entitles them to a remedy from the defendant: there is no need to convince a prosecutor or regulator to pursue a tort case, it is entirely up to the person who believes she has been victimized by another’s wrongful conduct,” explained John Goldberg, Eli Goldston Professor of Law at Harvard University. “This conferral of power on individual citizens is unusual — we have no similar power when it comes to, say, regulating the environment or seeing to it that criminals get punished.”
Unlike criminal law, where we depend on law enforcement to protect our rights, we have precious few safeguards in civil law against those in a position to do us harm. So what do we mean when we say “tort reform?” Why do we oppose a legal mechanism built expressly to empower us in seeking redress when we’re wronged?
To be sure, tort law, like any other legal or political institution, has the potential for abuse. We’ve all heard the jokes about stereotypical ambulance chasers. Perhaps the relevant question isn’t whether abuse exists. As in every industry, somebody can and will take advantage of the system. The more important question is whether bad apples represent the exception or the rule.
“The data on these issues are not great, but it seems unlikely that there is an avalanche of frivolous claims, or that frivolous claims routinely result in large settlements or judgments,” Goldberg said.
“There is probably as much or more non-claiming as there is frivolous claiming — i.e., many tort plaintiffs who have valid claims don’t bring them because litigation is no fun, because the stakes are too small, etc.,” Goldberg said. “Few people talk about ‘rampant’ under-litigation, but it may be just as much of a problem, or more of a problem, than frivolous litigation.”
And so we come back to the central question: what does tort reform mean to most people? For the vast majority, the answer hinges on values like fairness, proportionality, pragmatism — decent, American values. Let’s not allow those values to be co-opted by corporations which only care about one value: money.