The Psychology of Tort Law

Jennifer K. Robbennolt, Valerie P. Hans

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9780814724804
• Topic: Derecho
• Subtopic: Legislación de agravios

Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge collapses, adverse reactions to a medication, bar fights, oil spills, and more all implicate the law of torts. The rules and procedures by which tort cases are resolved engage deeply-held intuitions about justice, causation, intentionality, and the obligations that we owe to one another. Tort rules and procedures also generate significant controversy—most visibly in political debates over tort reform. The Psychology of Tort Law explores tort law through the lens of psychological science. Drawing on a wealth of psychological research and their own experiences teaching and researching tort law, Jennifer K. Robbennolt and Valerie P. Hans examine the psychological assumptions that underlie doctrinal rules. They explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants, examining how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law. They show how the judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law. Robbennolt and Hans here shed fascinating light on the tort system, and on the psychological dynamics which undergird its functioning.

1

The Real World of Torts

At 7:34 a.m. on September 22, 1989, twenty-one middle school and high school students in Alton, Texas, died and forty-nine others were injured when their school bus collided with a Coca-Cola delivery truck, fell twenty-four feet into a gravel pit, and was submerged in water. The National Transportation and Safety Board investigation found that each of the students died as a result of “drowning or complications related to the submersion” and that “the probable cause of the accident was the truckdriver’s inattention and subsequent failure to maintain sufficient control of his vehicle to stop at [a] stop sign. Contributing to the severity of the accident was the lack of a sufficient number of emergency exits on the school bus to accommodate the rapid egress of all . . . students.”1

Like most tort plaintiffs, the parents of the victims did not immediately turn their thoughts toward tort lawsuits. “‘I didn’t want a lawyer,’ said Carmen Cruz, whose 17-year-old daughter was killed in the crash and whose 14-year-old daughter was injured. ‘I said, “The first lawyer who can bring my daughter back, I’ll hire.”’”2 But lawsuits were eventually filed—lawsuits involving allegations about the negligence of the truck driver, the poor design of the school bus, the dangerousness of the intersection, and the lack of guard rails near the pit.3 Like most lawsuits, the cases ultimately settled.4

Social scientists have studied how disputes, including those like this tragic bus accident (which inspired the movie The Sweet Hereafter), arise and are pursued. Popular images of tort plaintiffs suggest that people sue over any small injury, no matter whose fault it is. And torts casebooks can give the impression that most tort disputes are resolved through trial (if not on appeal). But one of the striking discoveries of the real world of torts is that most people “lump it” rather than sue.

The starting point of a potential tort case is the experience of an injury, and it is easy to see how a psychological perspective is inherent in this experience. But the transformation of an injury into a tort claim involves multiple stages, each also involving psychology. For an injury to become a dispute, an injured party must first recognize that she has been injured—a process of naming. Next, she must attribute the source of the harm to the fault of another—blaming. And then she must approach that other to ask for reparation of some kind—claiming a need for redress. Only when such a request has been in some way denied does a dispute emerge.5 And, as we will see, only some of these disputes will formally make their way into the tort system.

The Pattern of Tort Disputes

The Real Worlds of Torts

As we describe the real world of torts, it is worth noting that tort cases do not constitute a single, monolithic world. Instead, the tort system consists of several worlds.6 Automobile accidents make up the biggest category of tort cases, accounting for almost 60 percent of tort trials. These cases tend to involve more routinized claiming processes, often through insurance companies. Perhaps as a result, these cases tend to have higher rates of claiming and are less likely to involve lawyers. These cases also tend to involve fairly modest claims and to have higher plaintiff win rates in comparison to other types of cases.7 In contrast, high-stakes medical malpractice or products liability claims involve more complex issues, are more expensive to bring to trial, have lower rates of claiming and lower plaintiff win rates, and tend to result in higher awards.8 Mass torts make up yet another distinct world of tort litigation, one that involves class actions and multidistrict litigation, difficult issues of law and fact, and particular tension between the efficient resolution of cases and individualized justice (see chapter 8).9 There is, of course, additional variation among cases within each of these worlds, but paying attention to these broad categories helps to highlight the different ways that distinct types of cases tend to make their way through the system.

The Disputing Pyramid

As cases evolve from injuries to formal tort cases, there is a significant amount of attrition—many cases fall away at each stage. Social scientific research suggests that the pattern of tort disputes resembles a pyramid, which starts from a baseline set of grievances and shows increasing attrition as cases develop into claims, disputes, and formal legal matters, with cases dropping out of the system as they are abandoned or settled. In a classic study using data collected as part of the Civil Litigation Research Project in 1980, Richard Miller and Austin Sarat estimated that for every 1,000 grievances, only about 200 became disputes, only 116 made their way to a lawyer, and only 38 (fewer than 4 percent of grievances and fewer than 19 percent of disputes) became formal filed cases (see figure 1.1).10 More recent data—primarily in specialized contexts such as medical malpractice11 or from countries other than the United States12—corroborate this pattern of significant attrition and few filed cases. In short, lumping it is the norm.

Figure 1.1. Pattern of tort disputes. Data source: Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 LAW & SOC’Y REV. 52 (1981).

Why might this pattern of attrition occur? A psychological perspective offers some explanations. First, some injuries are not identified as injuries by those who are injured. An injury might be too minor to be noticed. Its effects might not be discernible until some later point in time. It might be difficult to distinguish from symptoms that are not considered injurious (“Is this pain a normal effect of my surgery or was I injured in some unexpected way?”).13

Empirical Studies of Claiming Rates

• A RAND study estimated that one in six persons in the United States experienced economic loss during 1989 as a result of a nonfatal injury, including injuries caused by tortious and nontortious conduct. Only 10 percent claimed in some way. Just 5 percent sought the assistance of a lawyer, and fewer than 1 percent filed suit. Claiming rates varied by the source of the injury: approximately 50 percent of those injured in a motor vehicle accident made a formal or informal claim, while only 3 percent claimed for nonvehicular, nonwork injuries.a

• The Harvard Medical Practice Study estimated that adverse medical outcomes occurred in 3.7 percent of hospital admissions and that 27.6 percent of these adverse outcomes were due to professional negligence. Only 14 percent, or one in seven, of these negligently caused injuries became the subject of a filed claim.b

a. DEBORAH R. HENSLER, M. SUSAN MARQUIS, ALLAN ABRAHAMSE, SANDRA H. BARRY, PATRICIA A. EBENER, ELIZABETH LEWIS, EDGAR LIND, ROBERT J. MACCOUN, WILLARD G. MANNING, JEANNETTE ROGOWSKI & MARY E. VAIANA, COMPENSATION FOR ACCIDENTAL INJURIES IN THE UNITED STATES 124 (1991).

b. Troyen A. Brennan, Lucian L. Leape, Nan M. Laird, Liesi Hebert, A. Russell Localio, Ann G. Lawthers, Joseph P. Newhouse, Paul C. Weiler & Howard H. Hiatt, Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I, 324 NEW ENGLAND J. MED. 370 (1991).

Second, even when the injured person recognizes that she has been injured, she may not blame another for her harm. She might not realize she was entitled not to be injured in this way. She might blame the injury on herself rather than another person or entity. Or she might chalk her injury up to bad luck, deem it to be simply an “accident,” or believe that the act that led to the injury was the kind of thing that “could have happened to anyone.” Psychologists have found that blame attributions—the ways people do or do not blame others—are influenced by factors that signal the degree of control the other had over the situation and its outcome. Thus, judgments about the degree to which the other desired or planned the outcome, the degree to which the other was a unique cause of the outcome, and the degree to which the other foresaw (or should have foreseen) the outcome all contribute to whether or not the other is blamed. Similarly, perceived constraints on the other’s degree of control—for example, incapacities or excuses—tend to mitigate blaming.14 Unless blame is attributed to another, claiming redress is unlikely.15

Third, even if she does attribute blame to another person, the injured party may still choose not to ask for redress. She might decide that confrontation is not worth it (in terms of time, money, or psychic energy) given the magnitude of the injury, or that such a request would damage her relationship with the injurer or have other negative consequences. She might choose not to sue because she has sufficient insurance or other resources to cover the costs of the injury. She might believe that to complain would do little to remedy the harm. She might not know to whom to make her claim or how to go about making it. Or she might react as did residents of “Sander County,” Illinois, who, when interviewed about their interaction with tort law, explained why victims seldom made claims:

Even when someone else’s negligence had clearly caused an injury, according to one farmer, “Most of us would just think it’s one of life’s little accidents.” Another farmer added, “Farm kids, you know, are quite prone to having accidents, and they’re kind of used to it, I think. Usually just pick up and go o...