Today marks the opening of the American Museum of Tort Law, founded by consumer advocate Ralph Nader. The museum showcases the good changes that our civil jury system has brought about—such as safer cars, the end of asbestos, and drugs with fewer harmful side effects. It is located in Winsted, Connecticut, Nader’s hometown. Mr. Nader asked Jeb Butler of Butler Tobin to speak to about what it would take to protect our civil justice system going forward.
Ralph Nader looks on as Jeb Butler addresses the jury system.
As wrongful death and personal injury lawyers, we at Butler Tobin have learned a thing or two about the positive changes that lawsuits can bring about. For instance, earlier this year, Butler Tobin teamed up with Butler, Wooten, Cheeley & Peak to try Walden v. Chrysler, a trial in which a four-year-old boy was tragically killed by a dangerous, defective gas tank design. In certain Jeep SUVs—including the one that this boy was riding in—Chrysler had placed the gas tank behind the rear axle, at the extreme rear of the vehicle, where Chrysler knew it was vulnerable to rear impact. When another driver rear-ended this particular Jeep Grand Cherokee, the Jeep exploded into flames. Butler Tobin took this wrongful death case to trial, obtaining a verdict of $150 million. News outlets across the country picked up the story. The word about this dangerous gas tank design spread to the public. Now, in part because of the Walden trial, manufacturers will think twice before designing their cars with dangerous gas tanks. In that way, the tragedy of this case will protect other drivers—which proves the power of the American jury system.
The American Museum of Tort Law will show visitors about similar cases that demonstrate the power of our jury system. Read below to learn more about the museum’s vision.
Why we need the American Museum of Tort Law
By Professor Joseph A. Page
Tort law is the system of law that governs claims by victims for harm caused by wrongdoing. It is a wide tent that covers automobile collisions, airplane crashes, slips and falls in supermarkets, mishaps caused by defective products, faulty treatment by health-care providers, toxic chemical spills, loud noise made by inconsiderate neighbors, police brutality, dog bites, gruesome practical jokes, sexual harassment, false statements ruining a person’s reputation, violations of an individual’s right to be left alone, the theft of trade secrets, fraudulent business practices perpetrated by one competitor against another, and a host of other situations that result in the infliction of bodily, emotional or purely financial harm.
The law of torts operates through the judicial system, which brings the authority of government to bear upon the resolution of disputes that cannot be settled by negotiations between the affected parties, but it also relies on citizen participation in several important ways. Tort law moves into direct action only after the filing of a lawsuit by a private individual; unlike the criminal law, which must await a decision by a government prosecutor before a prosecution can be initiated. In addition, the outcome of the lawsuit often depends on a verdict reached by a group of ordinary citizens, sitting as jurors, who determine what facts to believe and then apply them to the legal rules given to them by the trial judge.
Tort law provides the principles and rules that determine whether or not the person against whom the suit is filed (the defendant) should be liable to the person bringing the suit (the plaintiff). If the plaintiff wins, the principles and rules of tort law will also determine the dollars-and-cents amount of the defendant’s liability.
Tort law is as ancient as society itself, since every organized community has had to develop some kind of institutional mechanism to handle disputes arising from injuries that its members inevitably inflicted upon one another. We can trace our tort law back to Anglo-Saxon England, where the justice system permitted an injured person to recover compensation from the perpetrator of harm or his kinsmen. The Normans who conquered England in 1066 A.D. left this system in place, although they did introduce a French word, “tort,” that would later be used to describe a wrong that might give rise to victim compensation.
Tort law was relatively simple in medieval England. If one person inflicted harm upon another, he would be liable to pay damages, unless he could prove some kind of justification for his conduct. The rules applied by the legal system were developed and refined by judges as they decided individual cases, a unique phenomenon known as the common law. The first British colonists brought this system with them when they arrived in North America, and it remained in effect even after the American Revolution.
It was not until the growth of industry on both sides of the Atlantic in the nineteenth century, when societies that were once predominantly agrarian became urbanized and mechanized, and oil, steam and electricity replaced animal-drawn plows, that judges began to lay the foundations for the modern law of torts. They made it clear that unless a person intentionally inflicted harm upon another, there could be no liability without proof of fault by the defendant. Thus, much of liability in tort was based on what came to be known as negligence, or unreasonably risky conduct. At the same time, judges carved out certain limited areas of liability without fault, such as in cases where livestock belonging to one person strayed upon land of another and caused damage, or where the building of a reservoir caused water to escape and flood a neighbor’s land, and or where dynamite blasting damaged nearby property.
The rule of liability based on fault in many instances shielded new industrial enterprises from liability, both to the public at large and to workers injured or killed on the job. The building of railroads, for example, meant that people would be injured or killed at crossings, but a railroad would not be responsible in the absence of proof of some kind of carelessness by the company. Workers in the new mills faced all kinds of risks of serious harm on the job, but they could not recover for injuries unless they could prove that the negligence of the employer caused their harm. In addition, the courts recognized defenses that would relieve companies from liability. These included the contributing fault of the victim, the victim’s willingness to expose himself to a known risk of harm, and, most devastating from the employee’s point of view, the fact that the injury was due to the carelessness of a co-worker. Uncompensated industrial accidents leaving crippled workers and their families destitute became such a serious social problem by the beginning of the twentieth century that state legislatures finally intervened and enacted worker compensation statutes, which became substitutes for tort law and gave employees a statutory right to recover limited amounts of damages for workplace accidents and illnesses without having to prove fault on the part of the employer.
Another early rule that shielded businesses from liability made it impossible for a consumer to sue a manufacturer in tort for harm caused by a defective product unless the victim bought the product directly from the manufacturer. The courts themselves eliminated this obstacle. In 1916 the influential New York Court of Appeals permitted the purchaser of an automobile that had defective wooden spokes on one of its wheels to recover directly from the manufacturer for injuries suffered when the wheel collapsed and the vehicle tipped over, if the purchaser could prove some kind of carelessness on the part of the manufacturer, and the highest tribunals in other states soon adopted the same rule. In the 1960s the courts expanded the rights of consumers even further by dispensing with the requirement of proof of fault and holding that persons injured by products could recover from manufacturers merely by proving that something was wrong with the product causing the harm.
These developments demonstrate the dynamic nature of the common law of torts. The legal system has always valued stability and continuity, and has rung the bells of the future with the ropes of the past, but at the same time it has maintained the power to adapt itself to change. Since courts made the rules of tort law, they also could alter these rules if the latter turned out to be grossly unfair, outmoded or illogical, or if there were substantial modifications in the circumstances or conditions that had influenced the original creation of the rules. For example, the rule that a husband could recover for the loss of the services of an injured wife but a wife could not recover for the loss of the services of an injured husband had as its source the medieval notion that a wife was the virtual property of her husband. As society consigned this idea to history’s dustbin, courts changed the rule and allowed wives to collect damages for disabling injuries to their husbands. Another example was the rule that citizens could not sue the government for harm caused by the carelessness of government employees – a legal doctrine that originally came from the English belief that “The King can do no wrong,” and that unaccountably survived the American Revolution. Eventually most American courts rejected this immunity and permitted tort suits against state and local governments.
Although tort law has traditionally formed a part of the common law, which means that it has been created, applied and modified by judges as they decide individual cases brought before them, the legislative branch of government also plays an important role, in that elected lawmakers have the authority to enact statutes that create, modify or even nullify tort law. An early example has already been mentioned – the passage of worker compensation laws that govern the rights of employers to recover damages from their employers for job-related injuries or illnesses. Other examples include guest statutes, which limit the rights of guest passengers in automobiles to sue the host-driver, and so-called Dram Shop Acts, permitting persons injured by drunk drivers to recover damages against tavern owners who served the beverages that inebriated the drivers.
Tort law serves three major and three minor goals. It seeks to deter accidents by the threat of liability, since a failure to take reasonable precautions may result in the payment of money damages by individuals or corporations if harm results; to apply as well as to reinforce the community’s sense of fairness; and to provide adequate compensation for the victims of accidents that could and should have been prevented. In addition, tort law serves as an instrument to punish wrongdoers, and to provide victims with personal vindication for the wrongs inflicted upon them. It enables ordinary people to participate in the process that gives meaning to the ideas of civil justice and democracy. And finally, it generates information that the public can use to protect itself against dangerous activities or products, and that government safety agencies can use in regulating risks. Whether and to what extent tort law effectively meets its goals are questions that have provoked vigorous debate in recent years.
Tort law embodies the conviction that it is better to build a fence at the top of a cliff than to keep an ambulance parked at the bottom. The threat of legal liability can serve as an incentive for the taking of safety precautions that will not only protect potential victims from risks of harm but also will protect those who take proper precautions from the risk of having to pay damages to those who might otherwise have been injured. The prudent businessman considers the possibility of legal liability, both past and potential, when making all kinds of decisions that might affect the health and safety of the general public. One of the more dramatic examples was the redesign of a steam vaporizer that had tipped over and spilled scalding water on a child. In response to a judicial decision holding the manufacturer of the product liable for harm to the child, a cover-lock safety feature was incorporated into the vaporizer to prevent future spills.
In addition to making products safer, liability concerns can help keep drunk drivers off the highways, encourage newspapers to check the accuracy of the stories they publish and motivate landlords to maintain hallways and stairways in good repair. Tort law may also influence individual behavior. The rule that people whose carelessness contributes to their injuries cannot collect full compensation from wrongdoers, but must bear some of the loss themselves, can spur passengers in vehicles to wear seat belts and shoulder harnesses.
Those who question tort law’s capacity to deter argue that vague liability standards applied by the courts have at times produced over-deterrence, keeping useful products such as vaccines off the market and discouraging activities such as municipality-sponsored fireworks. Moreover, the availability of liability insurance, which shifts losses from culpable defendants to their insurance companies, lessens the potential sting of tort liability.
Tort law incorporates the community’s sense of fairness in several ways. Many of the rules that govern tort cases reflect how people generally feel about what is right and wrong. A strong belief in the value of personal accountability underlies the conviction that people, including corporations, should be liable for harm caused by their wrongdoing. The idea of personal responsibility can cut both ways, as it lies at the heart of the tort rule designed to support the right of people to make choices. This rule provides that a person who makes a free, fully informed decision to subject himself or herself to a risk of harm will normally not be permitted to recover damages from a defendant if that risk in fact causes harm.
Tort law also promotes fairness by giving individuals the right to bring to the bar of justice persons or corporations who may have been responsible for harm, and then letting an impartial tribunal decide the case according to rules and procedures applicable to everyone. The contingent fee system, by which an injured person may engage an attorney who will charge only a percentage of any verdict won by the plaintiff, and will not demand payment if the plaintiff loses, gives access to the courthouse to individuals who might otherwise not be able to afford legal representation, and thus helps promote equal justice for all citizens.
Tort law provides a vehicle for public vindication that can serve both plaintiffs and defendants. An injured victim or the family of a deceased victim can never be made whole by an award of money damages, but a favorable jury verdict may bestow a powerful psychological benefit by assigning blame to the responsible party. Similarly, a jury verdict in a defendant’s favor can amount to a meaningful public exoneration.
Tort law enables victims of wrongdoing to obtain compensation from wrongdoers. Injured plaintiffs can recover for their medical expenses, their lost wages and their pain and suffering. Damages include not only losses incurred up to the time of the trial but also losses likely to be incurred in the future. In cases of wrongful death, the families of victims can sue for what they have lost as a result of the fatality. Beginning in the mid-twentieth century verdicts in tort cases began to reflect more accurately the true extent of injuries suffered by victims, as courts permitted the expanded utilization of what was called demonstrative evidence to prove damages. Such evidence included color photographs of injuries, which prosecutors had always used in criminal cases, and “day-in-the-life” films, which allowed jurors to appreciate exactly what daily life is like for a seriously disabled victim.
Critics of tort law, however, maintain that the high administrative costs of the tort system absorb an excessive amount of money that might otherwise be used to compensate injured persons. Moreover, they insist that in principle persons injured through no legal fault on the part of others (such as in natural disasters) are as deserving of compensation as tort victims.
In cases where a victim suffers harm as a result of the intentional or reckless misbehavior of a defendant, the law permits recovery not only of money damages that will compensate the plaintiff for what she has lost but also additional damages (called punitive damages) that will punish the wrongdoer. This enables society to express its outrage at callous indifference to the well-being of others and to send a message that such conduct will not be tolerated. It also creates an incentive for victims and their attorneys to do the type of in-depth investigating that will ferret out evidence of gross misconduct that might otherwise have gone undetected. An example that demonstrates the importance of this incentive is how information about the asbestos industry’s intentional suppression of data showing a connection between the inhalation of asbestos fibers and lung cancer came to light during tort suits by victims.
Critics complain, however, that the standards some courts use for imposing punitive damages are indeterminate, permitting juries to make awards that are grossly out of proportion to defendants’ guilt – a problem that has been addressed by decisions of the United States Supreme Court.
Tort law involves ordinary citizens in the administration of justice. Unless both the plaintiff and the defendant agree to permit the judge alone to decide their case, most tort cases that go to trial are decided by civil juries made up of a cross-section of the community. The trial judge instructs the jury about the legal rules that govern the case, while the jury resolves disputes about the facts, applies the rules to the facts, and renders a verdict. When they decide a case in favor of a defendant or a plaintiff, jurors are acting as the voice of the community in holding individuals or corporations accountable for damage that has been suffered. They are often permitted to pass judgment on the reasonableness of important corporate decisions affecting health and safety, which brings an important element of democracy into an area where the bottom line of a balance sheet might otherwise govern. Juries bring a humanizing element to the civil justice system.
Tort law serves as an important supplement to government regulation. Public authorities do not have the resources to take action against all those whose activities or products subject others to unreasonable risks of harm, so accident victims can perform the important function of serving as private prosecutors. Moreover, serious dangers are often first identified as a result of lawsuits. Information that comes to light during trials can be useful to regulators who may not have the tools or the resources to gather all the data necessary for the setting of health and safety standards.
Tort law can pit an individual against an individual, an individual against a corporation or government entity, a group of individuals against a corporation (such as the class action claim of women against the manufacturer of breast implants), a corporation against another corporation, or even the government against a corporation (such as occurred when the federal and state governments brought claims against tobacco companies for reimbursement for health benefits paid to victims of smoking-related diseases).
Tort law governs cases based on facts that are as simple and direct as a punch in the face, or are so bizarre that they would strain credulity if they appeared in a novel. Could anyone possibly have imagined the famous incident in which a ship tore loose from its moorings because of the carelessness of its crew, careened down the ice-strewn Buffalo River in mid-winter, hit another ship and caused it too to break free of its moorings, the two vessels then smashing into a drawbridge and coming to a halt together in a way that dammed the flow of the river and caused water to flood a farm three miles upstream? Or the classic case that has befuddled generations of law students, involving a railroad employee who pushed a passenger with a package as he was about to board a train, the package then falling to the ground and exploding, sending a rocket down to the far end of the platform and dislodging a scale that fell on top of the unfortunate plaintiff?
Tort law provides ordinary people with a means to seek justice from large corporations. This is especially true when injured consumers sue for damages caused by defective products. Examples of dangerous products that have occasioned lawsuits by consumers include: an early-model color television set that burst into flames hours after it had been turned off; implanted heart devices with defective component parts that caused them to malfunction; school buses with a fuel tank that exploded during a collision; toy building blocks of a size and shape that made them susceptible of being swallowed by small children; exploding soft-drink bottles; power punch presses without safety guards to keep the operator’s hands away from moving parts; a broad-spectrum antibiotic drug promoted in a way that downplayed the risk of fatal aplastic anemia; highly flammable cotton pajamas; intrauterine contraceptive devices designed in a way that permitted bacteria to infect the uterus and cause pelvic inflammatory disease; an automobile with a “Ben Hur”-like hub cap designed with sharp protrusions that severely cut the legs of a motorcycle passenger; a herbicide used during the Vietnam War, causing harm to veterans exposed to it.
Tort law is egalitarian, as it also can provide relief for celebrities and public figures, such as actress Bette Davis, who was permitted to recover against a realtor who was showing a house to the actress and failed to warn her of a hidden stairway, causing her to fall and suffer harm; Jacqueline Kennedy Onassis, who utilized the tort law of privacy to obtain a restraining order against a photographer who was constantly following her and frightening her children; tennis champion Maureen Connolly, who recovered damages for serious leg injuries from the owner of a cement truck that was operated in a careless way, causing the horse she was riding to throw her against the truck; singer Connie Francis, who won a large verdict from a motel whose carelessness was found to have contributed to a sexual assault she suffered while on the motel’s premises; superstar Bette Midler, who recovered damages against an advertiser who used an imitation of her singing voice, without her consent, in a commercial; comedian Carol Burnett, who won a tort suit against a tabloid that published a false report about her drunkenness in a restaurant; and Senator Barry Goldwater, who prevailed in a tort suit against the owner of a publication that falsely accused him of being mentally ill.
One corner of tort law (we might label it “Sports in the Courts” or “The Wide World of Torts”) touches upon an important institution in American life – organized sports. A landmark decision involving a Denver Broncos linebacker injured when intentionally struck in the neck from behind by the forearm of a frustrated Cincinnati Bengals running back held that the rules of tort law do not end where the chalk lines of the playing field begin, and that tort liability might be imposed as a result of the incident. A famous episode in which San Francisco Giants pitcher Juan Marichal intentionally hit Los Angeles Dodgers catcher John Roseboro with a bat resulted in a tort suit and an eventual settlement in Roseboro’s favor. A number of tort suits have been filed by spectators injured by batted or thrown balls at baseball games or errant pucks at hockey games have forced courts to decide what risks spectators at these event may fairly be said to have assumed.
Tort cases can turn on relatively simple questions such as whether a merchant had reason to believe that a customer was shoplifting and therefore had a right to use reasonable force to prevent her from leaving the premises. They can also turn on difficult questions, requiring the judge and the jury to weigh competing interests and to balance the benefits and the burdens that the outcome of the case might create. Some perplexing issues with which courts have had to deal in tort cases include:
Should a therapist have a legal duty to give a personal warning to someone threatened with harm by a patient during a private session with the therapist? (A warning might save someone from harm, but it might also destroy the confidential relationship that is essential if therapy is to be effective);
Should shopping centers have a legal duty to provide security in parking lots for customers, in order to protect them against criminal assailants and if so, how much security should be provided? (Security might prevent injuries, but putting too much of a burden on merchants might discourage them from locating in certain urban areas);
Should a newspaper be privileged to publish the name of someone who was the last person in the state to be whipped as punishment for a crime, in an article about a proposed law that would restore whipping as a punishment for certain crimes, where the whipping took place ten years ago and the person whipped has led an exemplary life ever since? (The mentioning of the name adds credibility to the story, but it also subjects the person involved to considerable embarrassment);
Under what circumstances should manufacturers be required to place warnings in languages other than English, or in the form of symbols, on products that are inherently dangerous or dangerous if used in a certain way? (A warning might prevent harm, but there is limited space available for product warnings, and too many warnings might dilute their effectiveness);
Should someone who suffers harm from the shock of witnessing an accident involving a family member be allowed to recover damages from the wrongdoer who caused the accident? (This is an area where it is difficult to draw lines; for example, how close a family member? Does the witness have to see the actual accident, or just the results? Suppose the plaintiff hears about it and suffers shock?);
Should the publisher of a how-to-do-it manual for “hit men” be liable to the family of the victim of a murder committed by a book purchaser who followed its directions? (Publishers have protection under the First Amendment, which guarantees freedom of the press; is this the kind of a case where some restriction should be placed on this right?)
To what extent should parents be liable for the violent acts of their children?
Here is where the idea of a museum for tort law comes in:
An American Museum of Tort Law should convey to the general public its stake in the civil justice system. The Museum should demonstrate how tort law can help make people’s lives more secure by imposing legal liability, or by creating a threat of legal liability, that can affect the behavior of individuals, corporations and institutions whose conduct and decisions generate risks of harm. The Museum should explain how tort law provides compensation for those unfortunate enough to suffer actual harm. It should demonstrate how tort law enhances civic life and promotes democracy by allowing people from all walks of life to participate in reaching judgments that embody the community’s highest ideals of justice. And it should permit visitors to try their hand at resolving some of the knotty issues that can arise in tort cases, so that they can appreciate the challenges that judges and jurors often have to confront.
Exhibits might include:
(1) The anatomy of a torts lawsuit. How a torts suit unfolds, from the happening of an accident to the final verdict in a trial. This could be done by the use of videotapes and live demonstrations of aspects of the suit (for example, the first meeting with an attorney, the investigation of the facts, the selection of a jury, etc.).
(2) How tort law promotes safety. The exhibition of actual products that gave rise to torts lawsuits, alongside subsequent versions of the same product, made safer because of the lawsuits; photographs of dangerous conditions that caused accidents which gave rise to torts suits, alongside photos of subsequent improvements in these conditions.
(3) How tort law compensates. An interactive exhibit that would enable visitors to view evidence about the extent of accident victims’ injuries, be instructed in the law of tort damages, and determine for themselves how much they would have awarded. Once the visitor reaches her own verdict, she would find out how much a real-life jury actually awarded for the same injuries.
(4) Great closing arguments. Videotapes of classic closing arguments actually made in torts cases, with visitors recording whether they would have found the defendant liable or not.
(5) The story of famous tort cases. This could be a rotating exhibit that would feature, each month or so, a new torts classic, making use of multi-media mechanisms to explain why the case was important.
(6) You make the call. Visitors are presented with the legal questions listed above, in the context of actual cases in which they have been raised, are given in succinct form the arguments of both sides of the issue, and are asked to make a decision.
The Museum would feature practical and visual displays of torts and their place in society.
Professor Joseph A. Page holds an A.B., LL.B. and LL.M. from Harvard. He served for several years as Assistant Editor-in-Chief of a journal published by the National Association of Claimants’ Counsel of America (currently known as the American Association for Justice). He began teaching at the University of Denver College of Law in 1964, and has been on the faculty of the Georgetown University Law Center since 1968.
Professor Page’s academic work lies in the fields of torts, products liability, and food, drug and cosmetics regulation. His most recent scholarship includes a book entitled Torts: Proximate Cause (2003); articles entitled “Roscoe Pound, Melvin Belli and the Personal-Injury Bar: The Tale of an Odd Coupling,’ in 26 Thomas M. Cooley Law Review 639 (2009), and “The Voice of Reason: The Products Liability Scholarship of Gary T. Schwartz,” in 53 South Carolina Law Review 797 (2002); and chapters entitled “American Tort Law and the Right to Privacy,” in Personality Rights in European Tort Law (G. Bruggemeier et al. Eds., 2010), and “Reflections on Pain-and-Suffering Damages in the United States,” in Liability in the Third Millennium (A. Ciacchi et al. Eds., 2009). He is also a co-director of the Products Liability Study undertaken as part of the Common Core of European Private Law Project.
Professor Page has engaged in advocacy promoting consumer product safety and workplace health and safety before committees of Congress and in the national media, has served on the Board of Directors of Public Citizen, Inc., and is currently the faculty advisor to the Stabile Graduate Law Fellow, dealing with issues relating to the safety of personal-care products.
Jeb Butler speaks as Ralph Naders looks on at the opening of the American Museum of Tort Law.