Tuesday, September 14, 2010

Sometimes it’s the plaintiff’s fault;
sometimes stuff just happens

Commentary by James H. Shott


A major landmark along the road of America’s devolution from a nation of responsible individuals to becoming a people looking for someone to blame for their problems is the ridiculous nature of cases that now clog our legal system.

Let’s stipulate that sometimes people are negligent in making a product, in delivering a service, or in some other way, and when innocent people are harmed through negligence they should be compensated for their injury. Maybe a surgeon operates on the wrong knee, or a company makes a product that is defective, or some other instance of true negligence occurs. In such cases a wrong needs to be righted and perhaps legal action is the only way to remedy the wrong.

But these days, you can find someone who wants to sue somebody for just about any idiotic thing you can dream up, and there seems always to be a lawyer willing to represent them. Don’t believe it? Consider the following:

• A woman sued Universal Studios for $15,000 claiming to have suffered "extreme fear, mental anguish, and emotional distress" after voluntarily visiting the Halloween Horror Nights haunted house.

• A couple sued American Airlines for $100,000 because the leg room was smaller than they expected.

• A man sued a dry cleaner for $54 million over a lost pair of pants, alleging its “Satisfaction Guaranteed” sign was a fraud.

• A Connecticut woman sued a hair products company saying it ruined her social life when she accidentally dyed her hair brunette with one of its products and was so traumatized that she needed anti-depressants and had to stay home and wear hats most of the time.

• A New York City woman was awarded $14.1 million by a state Supreme Court jury after she was hit by a subway train as she was patiently laying on the tracks in an apparent suicide attempt. Later, the reward was cut 30 percent, to a mere $9.9 million, because of her own “negligence.”

Cases like those five are as goofy and frivolous as cases of true negligence and harm are valid. Idiotic cases like these have a humorous element, but can cause tremendous harm, because frivolous lawsuits cost the defendant money to defend, and that has repercussions. In the above case of the dry cleaner, after two years the owners of the cleaners won the case, but were forced to close one of their three stores because of the cost of the lawsuit.

The Sick of Lawsuits project, an arm of Citizens Against Lawsuit Abuse, states, “Our civil justice system is under attack by personal injury lawyers who game the legal system for personal profit in the name of ‘consumer protection.’ The reality is that consumers are the ones getting fleeced. These abusive lawsuits harm the economy and job creation, threaten our access to affordable, quality health care, and delay justice for the truly injured by clogging our courts. Ultimately, lawsuit abuse hurts all of us.”

A man appeared on TV recently defending suing the manufacturers of step ladders for making an unsafe product. The ladders didn’t break, dumping users onto the ground from the heights. No, even though you don’t need a PhD. in physics to realize that a ladder will fall over if you lean very far to one side, he said the ladder makers didn’t take adequate steps to warn users about the dangers of ladder use, despite mandated warning labels on every ladder sold. Perhaps he would prefer that every ladder came with its own consultant to advise the purchaser how to use the product safely, at the manufacturer’s expense, of course.

We need tort reform in this country, not to stop legitimate law suits seeking just restitution, but to prevent people and their attorneys from prospecting for an easy settlement or a lucky verdict at trial for an injury that is more a matter of a failure of personal responsibility than of actual negligence on the part of the defendant.

A good start would be a law that charges the costs of lawsuits to the loser. Under such a system it is fair to suppose that the lady who picked up the wrong bottle of hair coloring might have reconsidered her lawsuit against the hair products company and the lady who went to a haunted house and got scared might also have been more circumspect.

The reality is that sometimes the plaintiff bears some or all of the responsibility for an injury. And sometimes, despite the best efforts of everyone involved, something goes wrong and someone gets hurt. No one did anything wrong; there was no negligence, and therefore no one should have to pay anything in such cases. Sometimes stuff just happens.

The legal system ought not to be a lottery. Cases with no real merit or questionable merit clog court dockets, and cost every man, woman and child in the U.S. a yearly “tort tax” of $835, according to The 2008 Update on U.S. Tort Cost Trends. That’s ridiculous and it’s not acceptable.

Cross-posted from Observations

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