In Defense of Tort Law

Thomas Koenig, Michael Rustad

• Publisher: NYU Press
• Year: 2001
• ISBN:
  9780814748992
• Topic: Droit
• Subtopic: Droit de la responsabilité délictuelle

Late night comedians and journalists eagerly seized upon the case of an elderly woman who sued McDonald’s when she spilled hot coffee in her lap as a prime example of frivolous litigation. But as Rustad and Koenig argue, cases such as these are an incomplete and misleading characterization of tort law. Corporations have successfully waged a public relations battle to create the impression that most lawsuits are spurious, when in fact the opposite is true: tort law plays a crucial role in protecting consumers from dangerous and sometimes life-threatening hazards. Without legal remedies, corporations would suffer no penalty for choosing profits over public health and safely.

In Defense of Tort Law is the first book to systematically examine the social, legal and policy dimensions of the tort reform debate. This insightful analysis of solid empirical data looks beyond popular myths about frivolous lawsuits, and tackles a variety of contentious issues: Should punitive damages be capped? Who is favored by tort law? Who loses, and why?

Koenig and Rustad’s detailed case study analysis also reveals disturbing gender inequities in a legal system that is largely dominated by men. Because women are disproportionately injured by medical products, impermissible HMO cost cutting, medical malpractice and sexual exploitation, restrictions on the rights to recovery in these fields inevitably creates gender injustice. Engaging and up to date, In Defense of Tort Law also identifies aspects of the current law that require further elaboration, including the need for measures to combat cybercrime against consumers.

1: The Path of Tort Law

§1.1. Introduction

The legal historian William Nelson argues that “no topic has captured the attention of private law theorists in America more than the law of tort.”¹ This chapter is a study of the rise, fall, and future of tort law in American society. The word tort is “derived from the Latin ‘tortus’ or twisted.”² The history of tort law can be summarized as the evolution of ever more effective remedies to control wrongdoing, from pre-industrial England to the age of the Internet.³

William Prosser begins his classic tort treatise with the statement that “[a] really satisfactory definition of a tort has yet to be found.”⁴ In order for a tort to exist, “two things must concur, actual or legal damages to the plaintiff and a wrongful act committed by the defendant.”⁵ Tort law assigns responsibility for injuries to the wrongdoer by requiring the payment of compensation. Injunctive relief and other equitable remedies may be ordered where legal remedies are inadequate. In some nuisance cases, a defendant’s activities may be enjoined if they interfere with the possessor’s use and enjoyment of land. In all tort cases, the actor is liable because his conduct (a) was intended to cause harm; (b) was negligent; or (c) created extra-hazardous risks to others.⁶ Tort damages are broadly divided into three categories: economic, non-economic, and punitive. Economic damages compensate the plaintiff for injuries to person or property and may include medical bills, past and future earnings, and other direct economic expenses.⁷ Non-economic damages, often referred to as “pain and suffering” damages, are also compensatory.⁸ Pain-and-suffering awards include compensation for disfigurement, infertility, or reproductive injuries.

Tort remedies are chiefly monetary damages for personal injury though a plaintiff may receive a recovery for an injury in the form of personal or real property. Punitive damages, sometimes referred to as exemplary damages, are awarded above and beyond compensatory damages to punish the defendant for torts committed intentionally or with a spirit of reckless indifference to public safety, as well as to deter such future misbehavior. Punitive damages fulfill the latent function of sending a message to the entire community that torts do not pay. Punitive damages are especially warranted where there is deliberate concealed harm and the probability of detection by government regulators is low.⁹ Punitive damages have been assessed in the United States for more than two hundred years, long before torts evolved as a separate branch of the law.

Tort law did not develop as a separate doctrinal field until the middle of the nineteenth century. In 1852, when torts were still in their infancy, Joseph Story called for law to be “forever be in a state of progress or change, to adapt itself to the exigencies and changes of society.”¹⁰ The path of tort law, from the pre-tort era of Blackstone to the new millennium, is thus a story of the progressive unfolding of new tort remedies to counter new social hazards.

Tort law’s “continuous and profound effect upon the everyday life … makes it critical to chart its course.”¹¹ Tort law is a “cultural mirror” that reflects changing societal conditions.¹² The touchstone of tort liability is not found in rigid rules of law but in protecting the way of life in a particular historical epoch. The tort timelines in this chapter depict the evolving nature of tort law and its relationship to changing social institutions.¹³ In the pre-industrial period, tort law redressed seduction, criminal conversation, and other affronts to the individual, family, and community.

Nineteenth-century tort law “belonged to the corporate defense.”¹⁴ With the post–Civil War rise of the railroads, the doctrinal development of negligence burst onto the scene. In this “negligence era,” tort law assumed that certain injuries were “unavoidable costs of industrialization.”¹⁵ Prosser stated that the “law of negligence in the late nineteenth century was to a considerable extent the law of railway accidents.”¹⁶ Negligence was a byproduct of the social, economic, political, and technological changes that accompanied large-scale industrialization.¹⁷ During this period, courts developed a number of regressive doctrines such as contributory negligence, the assumption of risk, and the fellow servant rule to promote industrial development.¹⁸ The public policy impact of broad employer immunities left the burden of injury entirely upon the victim.

Many such immunities and defenses were either rolled back or eliminated after World War II.¹⁹ The law of torts expanded substantially during the progressive tort law era (1945–80), creating many new possibilities for obtaining redress and reparations for injuries. Since the early 1980s, this liberalizing trend has largely reversed course.²⁰ Forty-six states have enacted at least one new limitation on the tort remedies available to injured consumers and patients since 1980.²¹ Today, the further expansion of torts is required for the Age of the Internet.²²

The tort law timelines below traces the rise, fall, and uncertain future of progressive tort remedies from the dawn of common law to the dawn of the twenty-first century. The first part of the timeline traces the rise of medieval English law, whose shadow is still cast upon the present.²³ English tort law originally redressed only intentional injuries to persons and property, although defendants were held strictly liable for trespass to property.

§1.2. The Intentional Torts Era: 1200 to 1825

Intentional torts were first developed at early common law to provide plaintiffs with remedies for misconduct that threatened the public order, such as battery,²⁴ assault,²⁵ false imprisonment,²⁶ and trespass.²⁷ Intentional torts included injuries against the person as well as invasions against property interests.²⁸ Tort law later evolved to compensate a broader range of harms such as mental distress, prenatal injuries, and social dislocation.²⁹

The “intent” in intentional torts refers to the state of mind of the defendant. Intentional torts redressed deliberate physical injuries to the person or invasions of common law property rights.³⁰ At early common law, torts preserved the social order of a pre-industrial age dominated by disputes in the local community.

Exemplary damages, the precursor of contemporary punitive damages, punished wrongdoers who maliciously committed torts that upset community tranquility. As Oliver Wendell Holmes, Jr., observed, “the first requirement of sound law is that it correspond with the actual feelings and demands of the community, whether right of wrong.”³¹ Tort law expanded to provide the ordinary citizen with more effective remedies against abuses of power.

[A] Intentional Tort Law Timeline

1066—The Norman institution of the jury is incorporated into the English legal system by William the Conqueror.³²

1348 or 1349—I de S et ux. v. W de S³³ recognizes assault as a form of trespass to the person.³⁴

1616—Weaver v. Ward³⁵ is first case to hold “that a defendant might not be liable, even in a trespass action, for a purely accidental injury occurring entirely without his fault.”³⁶

1647—Court rules that a man carried onto the plaintiff’s land against his will by third parties is not liable for trespass.³⁷

1669—Court holds that conditional threats unaccompanied by immanent hostile action do not constitute an assault.³⁸

1697—The Statute of 5-6 William and Mary c. 12 abolishes the criminal side of the writ of trespass, leaving it as a purely civil action.³⁹

1704—Court rules that the least touching of another in anger constitutes a battery.⁴⁰

1763—First court to use the phrase exemplary damages to describe a monetary penalty paid to the plaintiff above and beyond compensatory damages.⁴¹

1768—Sir William Blackstone publishes Commentaries on the Law of England.

1784—First American court to award punitive damages, in a case involving a physician spiking his rival’s wine with Spanish fly, a pain-causing cantharide.⁴²

1799—The defense of assumption of risk is applied for the first time.⁴³

1799—The English case of Merryweather v. Nixon⁴⁴ is the first to recognize the doctrine of joint and several liability in ruling that wrongdoers cannot have redress or contribution against each other.

1808—English court rules that there is no recovery for wrongful death absent a specific statute.⁴⁵

1846—The English Fatal Accidents Act of 1846, referred to as Lord Campbell’s Act, provides a statutory remedy for wrongful death.⁴⁶

1809—Butterfield v. Forrester⁴⁷ devises rule of contributory negligence barring actions where “a party …[who] contributes to his own injury…may not recover anything from the defendant.”⁴⁸

1814—Court upholds exemplary damages award wh...