March 10, 2006
Guest Post from Andrew McClurg on Humanizing Torts
As I mentioned, Andrew McClurg offered to provide a post on this ongoing topic (thanks, Andrew!). I plan to leave it up as the top post through the weekend, and I invite further responses, either in the comments field or via e-mail for posting. Here is is Andrew's response:
Re: Humanizing Torts and Student Reactions to “Dead Sorrow”
I want to thank Bill Childs for this opportunity to comment on the general issue of humanizing Torts for law students, as well as his students’ thoughtful comments regarding my article, Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages in the B.U. Law Review.
The article tells the story of the tortiously caused death of Kody Linn Logan, my best friend and fiancé, including its impact on Kody’s survivors, and sets forth a two-part proposal to: (1) award damages for the intrinsic value of life; and (2) use such damages for the exclusive purpose of establishing a socially useful “living memorial” to the decedent.
I presented the article at the 2006 AALS Conference as part of the Tort and Compensation Systems Section panel What It Means to Compensate an Injured Person, moderated by Judge Guido Calabresi.
As Judge Calabresi noted in his introductory remarks at AALS, it is a grand tradition among Torts professors to have fun with the interesting, sometimes wacky, fact patterns of tort cases. I still do it (although I suffered a brief crisis of conscience about the issue after Kody’s accident). But we shouldn’t lose sight of the fact that the cases involve real people with real, often serious and life-altering, injuries.
Interestingly, the most prominent response from attendees at my AALS presentation focused on this human element, rather than the merits (or lack thereof) of my proposal. Several professors approached me at the conference or via email afterwards and said they intended to change the way they teach Torts to try to put a human face on it.
Bill deserves credit for “taking a chance” (as his student put it in email) in assigning my unusual article to his class. It’s always easier and safer to stick to doctrine. He asked me if I assigned Dead Sorrow to my own students. No way. It’s far too personal. When I was writing it, I wouldn’t even let my research assistants read it. Instead, I’d tear off the bottom of a page and say, “Go research this.” Ironically, Bill’s experiment with my article taught me that I need to do more to humanize Torts.
But Bill has raised the question, “How do we do it?” Here are some possibilities:
- One way is to assign independent materials that bring the issue into focus, as Bill did with Dead Sorrow. Some professors assign The Buffalo Creek Disaster for the same purpose.
- Another way is to supplement the discussion of existing materials with humanizing commentary. I use the Prosser, Wade & Schwartz casebook. It contains Breunig v. American Family Ins. Co., about a woman with schizophrenia who suffered a psychotic episode and drove into another vehicle. It’s impossible for students not to have fun with a case in which the plaintiff “knew she could fly because Batman does it.” I confess that I have guilty fun with the case in class. But afterwards, I explain to the students a little about schizophrenia—about how it’s a cruel, scary neurological disease that affects 2.7 million Americans. I tell them that, of course, there’s nothing funny about Mrs. Breunig’s condition. I remind them that the plaintiffs in all of our cases are real people who have suffered. Perhaps it’s an empty excuse, but I tell them one reason we have fun with the cases is because we wouldn’t be able to deal with all the real tragedy on a day-to-day basis.
- A picture really can be worth a thousand words. I used to play video clips for my class from a series of “Day in the Life” films provided to me by a personal injury lawyer. Showing film of a quadriplegic being fed and turned in his bed and a mutated child struggling with her mother’s help to put on her nightgown and say her prayers at night makes a law school classroom the quietest spot on the planet. I’ve pondered bringing in a real tort victim with catastrophic injuries, such as a paraplegic or quadriplegic, to talk to the class about their lives, but have never known how to go about finding or approaching such a person. Has anyone ever done that?
Bill is doing a service to Torts professors and law students by attempting to start a dialogue on this issue.
The Student Responses to Bill’s Experiment
I wanted to briefly address the comments from Bill’s students about Dead Sorrow. As noted, I argued in my article that wrongful death statutes should be amended to authorize the recovery of “lost life” damages (often called “hedonic damages”), which is not new. Departing from the orthodox view, however, I suggest that such damages be devoted to the establishing a socially useful memorial to the decedent. I argue that this approach would further both the deterrence and corrective justice models of tort law, and, specifically, that it would: (1) give official recognition to the fact that life itself has value, which the current wrongful death damages regime overlooks; (2) serve as a kind of indirect compensation to the decedent; (3) offer a “free” grief-healing mechanism for the decedent’s survivors; and (4) allocate tort damages in a way that enhances the net benefit of the tort system to society.
Responding to the student comments in order:
- I can relate to the student who finds comfort in a simple bench created as a memorial for a murdered sorority sister fifteen years ago. More than seven years after Kody’s death, her family and I still get solace from the animal adoption room dedicated to Kody at the Pulaski County (Ark.) Humane Society. My article contains quite a bit of information about the grief-healing powers of memorials.
- The observation by the “conservative Republican” student (“Who would oppose [the proposal]?”) is interesting. “Tort reform,” promoted primarily by Republicans, currently travels in only one direction: enhancing protection for tort defendants. In Dead Sorrow, I make the point that for tort reform to have legitimacy as a national movement, attention must also be given repairing defects in the law affecting victims.
- The concern about family and friends being unable to agree about the type of memorial is insightful. A veteran wrongful death litigator wrote me about the same point. He said that leaving the decision to the survivors could, in his experience, lead to terrible infighting. One resolution would be to amend the specifics of my proposal to say that if the survivors can’t agree, the court would decide. Alternatively, I noted that people should be able to make advance directives as to how they would like to be memorialized in the event of a tortious death.
- The student is right that the footnotes are very sad. They still make me sad. They are where I “hid” a large portion of human component.
- The student is correct to be skeptical of the life valuation process. Valuing intangible loss is always going to be speculative. I offered the alternative of setting statutory caps for lost life damages. As for his comment that a living memorial would not have helped him deal with his ongoing grief from the loss of his father, I regret his loss. I don’t argue that memorials eliminate or even greatly reduce grief, but I do believe they fill greater therapeutic and spiritual needs and carry deeper restorative power than money damages awards for intangible harm from wrongful death.
- The comment about gaining a greater appreciation of “why lawyers do what they do after deaths,” may relate to my comments about how I quickly recommended that Kody’s family hire an expert personal injury lawyer in the wake of the chaotic 14-vehicle accident in which Kody died. [Bill notes: that was indeed what they related to.] My footnote on this point said in part: “Laypersons sometimes misconstrue the motives behind filing lawsuits so quickly in the wake of tragedy. They don’t realize that the need to preserve evidence from calamitous events often requires immediate legal action. Physical evidence easily gets lost or destroyed. Witness memories fade rapidly.”
- The comment about whether the value of the memorials would be cheapened by the sheer number of them is another interesting one. My memorial proposal excludes purely physical memorials such as statues. It contemplates memorials such as dedicated portions of charitable, community or educational facilities, park and garden spaces, scholarships, etc. Thousands of such memorials are established each year in memory of loved ones who have died non-tortiously. As Bill’s response suggests, the memorial aspect of these contributions is probably noted first and foremost by the survivors.
Kudos to Bill’s students for their excellent insights.
More on Humanizing Torts
Christine Hurt at Marquette wrote this interesting piece about a personal experience with teaching Torts with a student who had suffered a personal tragedy during the term. You should read it -- it's quite short -- to get the specifics, but she ends with this conclusion:
On the last day of class, as I was wrapping up, I attempted to rectify the situation [described earlier in the piece] somewhat. I reminded my students that every person in our textbook's cases, whether plaintiff or defendant, was a real person who had either been injured, or caused injury to others, and would therefore never be the same.
I admitted that in the interest of being able to discuss theoretically the issues posed by the cases that we had distanced ourselves from these people and had even used humor to disarm both the physically grisly and emotionally wrenching scenarios. However, as lawyers, we have to be sensitive to the fact that we are not dealing with fictional characters but real human beings. No one ever anticipates being a tort victim, I told them, but obviously some of us will be.
New professors learn a lot the first time that they teach a course, and my first semester in "Torts" was no exception. So as I swap topics around in my syllabus for next year, I am putting that speech into my notes for the first day of class.
It's certainly one way to address the problem. Others?
March 9, 2006
Update: Here's a PDF of the article cited: Download DeadSorrow.pdf [PDF].
I've been thinking lately about the process of teaching Torts and what it might do to the way students (and professors, for that matter) think about injuries and deaths caused by negligence or intentional conduct. I'd like to try to start a dialogue about what we are doing and what, perhaps, we ought to be doing, in terms of remembering the human impact of the cases we're discussing.
For proper reasons, we focus on teaching and learning the critical and doctrinal approaches to fact patterns, and put those into the context of often-wacky fact patterns. (See my exam last fall for an example.)
Since my evening class on Monday involving Andrew McClurg's Dead Sorrow (summary here), I've had some conversations with students about it, and with Andrew as well. Perhaps a good way to start the dialogue is to pass along some comments, first my summary of in-class discussion and second a couple of e-mails from students.
- One student discussed the value of a bench that was created for a sorority sister who was murdered, and how it continues to help her and others, fifteen years later;
- One student (involved in legislative politics) was surprised that nobody's at least proposed it -- as he put it, "Who would oppose it? I'm a conservative Republican and I wouldn't oppose it!"
- One student said one thing he kept thinking about was the likely arguing within the family and friends about what sort of memorial was appropriate;
- One student (prior to class) said she could barely read the footnotes, they made her so sad;
- One student was skeptical of the valuation process and of the value of a memorial in the grieving process, saying that a utilitarian memorial wouldn't have helped him in his ongoing grief over his father's death a dozen years ago;
- One student appreciated the deeper understanding of why lawyers do what they do after deaths;
- One questioned whether the value of such memorials would be cheapened by the sheer numbers of them. On this one, I suggested that the memorials would largely be noticed by the people who were involved and asked if anyone could, without looking, tell me who had donated the money for the classroom we were in. Out of 45+ students, 2 could -- one works for the corporate donor and the other has a day job doing major gift fundraising for an educational institution.
- Speaking of the major gifts coordinator, he told us about the work he was doing before coming to the college, which was coordinating the $7 million in fundraising for a new community facility built in memory of two little girls who were killed in a car accident. The parents donated $1 million and the balance was all raised through fundraising, and he spoke quite compellingly about the value of the process of developing the memorial for the family -- that process was perhaps as important to them as the actual result.
Now, the first of two e-mails I received:
The inclusion of the law review article in the Torts curriculum put a more human face on the study of Torts. I believe many of us starting our law school careers are so focused on learning the material and doing well that we forget that lawyers are really part of the "helping professions." Reading "Deep Sorrow" gives us as students the chance to step back and see the real world we will enter in a few years as lawyers.
I personally feel that more humanizing type of material should be included in the curriculum for all law courses. This would develop a more human race of lawyers. Something that I feel has been lacking in the legal community as a whole based on personal experience.
Thanks for including the article as part of Torts education.
Between your class and [another] class, last night was one of the most thought provoking I have had in school so far.
The discussion last night was insightful. I was talking to my brother about it (he graduated from [law school] last May) and I was telling him about the emotional impact of the law review article. He said that his torts class really glossed over death and survival benefits and he would have enjoyed more discussion.
I remember you sayingn that it was difficult to predict how the discussion would go. I think it was great. Thanks for taking a chance with that assignment. It helps remind us that these aren't just abstract cases. These are real people with real pain.
Profs: What do you do, and what do you think about doing, to put a human face on your cases? Do you think there's value in spending some time on efforts like this? How much time?
Students and lawyers: What did you do in your Torts class that put a human face on the cases? Do you wish you'd done more? Less? What sort of discussion would have helped?
I've used some parts from Torts Stories, which certainly provides a lot of background, but it's not quite what I'm talking about. Similarly, I've taken some discussions out of a critical race theory book (I'm not in my office so I can't cite it precisely right now), in particular in discussing consent to intentional torts in the context of power imbalances (O'Brien v. Cunard S.S. Co., for example), and that, too, gives some useful perspective.
And while I really appreciated what happened on Monday evening, I am hesitant to do a lot more -- spending too much time talking about how the facts of the case affected the people involved could, of course, get in the way of what I think the primary goal has to be, that of teaching the law of torts.
So how should the balance be struck? Should case books do more to introduce these concepts? (Are there case books that already do?)
The comments field is a great way to continue the discussion, or you can send me an e-mail (wchilds AT law DOT wnec DOT edu).
(All comments above are included with the permission of their authors.)
ATLA Beats ATRA
...in trademark and service mark registrations, anyway.
ATLA has seventeen:
March 8, 2006
Another Resource for your Newsreader
It's not torts-specific, but it frequently has relevant news and is consistently interesting -- the Scientific American Blog.
One of the stories that could have torts relevance is a recent one about malware/crimeware and the substantial shift towards viruses and such having a criminal intent (stealing personal information, etc.) rather than simply being a "Let me show you how smart I am" effort.
The SciAm podcast is quite good too.
March 7, 2006
Can I File an FTC Complaint for that Terrible Styx Album I Bought in 1980?
The nine-strong group, listing themselves as "aggrieved consumers," allege that employees of RCA, Sony/BMG, and Aiken himself "engaged in collusion to prevent public disclosures they believed might be harmful to their product." The angry ladies go on to state, "This is tantamount to a manufacturer concealing information about a defective product. Therefore these actions were both unfair and deceptive to consumers."
A spokeswoman for the group says, "As consumers, we feel ripped off. It is obvious now that the private Clay is very different from the manufactured packaged public Clay that was marketed to us." The group is asking the FTC to investigate the practices of the record companies, to invoke civil penalties where appropriate, and to enjoin the companies from violating the Federal Trade Commission Act.
Wrongful Death & Grief
One of my first posts had to do with Andrew McClurg's terrific piece Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U.L.Rev. 1 (2005). As I noted there, I assigned it to my evening section and we finally got to that section of the course last night.
My students can correct me if I'm wrong via the comments field, but I thought it was a fascinating discussion, well worth the time. We had comments ranging from fairly technical discussion of the proposal to rather personal stories of grief and remembrance, and while I might not want that mix every night, it seemed to work.
At three-fourths of the way through the school year (it's true, you can look it up), and finishing up most of our discussion on damages, it was a useful time to remind people what it is we're talking about -- harms to people. The combination of a wrenching personal narrative with a modest suggestion for a change in the law is effective and highly readable.
I would encourage Torts profs to consider assigning the article, or excerpts of it, in future years, if you can fit it in. It really did serve a useful purpose.
March 6, 2006
Florida & Joint & Several Liability
I mentioned it before (including the statutory language) but this article has a better-than-average summary of the arguments for and against the elimination of joint and several liability. It looks likely to pass Florida this year according to most observers.
'The way the system is right now, you can pay more than what you're adjudicated guilty of. That's not American,'' said Barney T. Bishop III, president of Associated Industries of Florida, a business lobbying group.
Business groups claim so-called ''deep-pocket'' rules encourage speculative lawsuits. Opponents counter that doing away with joint and several liability will shift the burden to the injured party and possibly taxpayers.
Paul Jess, general counsel for the Academy of Florida Trial Lawyers, offered this example: A patient goes into the hospital to have a leg amputated. The nurse marks the wrong leg and the mistake isn't caught by the doctor, who doesn't have enough insurance to cover his share of fault.
* * *
''If you're the guy with no legs, wouldn't you want to be compensated by the wrongdoers?'' Jess asked. ``Why would you want to be on Medicare or welfare? Why would you as a taxpayer want to pay for someone else's wrongdoing?''
As the story points out, Florida already has fairly significant restrictions on joint & several liability, with no imposition on defendants found 10% or less at fault and caps on exposure for up to 50% at fault (and some limitations even above 50%).
I still haven't seen any data on the impact of abandoning or limiting joint & several liability in states like Arizona. Anyone?
Fee Shifting in Georgia
An unintended consequence of tort reform in a sexual assault case? A woman has sued three people involved in an alleged sexual assault:
The incident occurred on Feb. 16, 2002, when the victim attended a party with about 20 other teens and passed out after having too much to drink. When she awoke, she found obscenities written on her body and a sexually explicit drawing on her face. She left quickly, unaware she had been sexually assaulted. But later that week at school, details of the assault emerged as students who had witnessed the incident came forward.
Three people involved were arrested; she has sued all three...
With the case headed toward trial, Ignotz's lawyer recently offered to settle the case for $35,000 and Cate's attorney offered $10,000, the victim's lawyer, Michael Sullivan, said. Shipp has not responded to the lawsuit.
* * *
But one provision of the Tort Reform Act of 2005 says that even if the victim wins at trial, she can be forced to pay Ignotz's and Cate's attorneys' fees if the jury does not award damages that are at least 25 percent more than the offers.
One legislator has introduced changing the formula from fee-shifting if the verdict is less than 125% of the offer to fee-shifting if the verdict is less than 75% of the offer, and the provision is under constitutional challenge as well.
(Another provision of the Georgia tort reform statute was struck down last month.)
March 5, 2006
An interesting fact pattern from one of my odder interests in tort law, amusement park safety:
What risks are inherent in riding roller coasters? According to Six Flags, getting hit by random items. A jury rejected that defense and awarded a total of $3.6 million to a woman injured on the Villain wooden coaster at Six Flags Ohio (formerly, and now again, Geagua Lake):
Six Flags Inc. bought Geauga Lake Park in Aurora and built four rides in 2000, including a large wooden roller coaster called the Villain. Rocks, a few inches in size, covered the ground below the coaster, near a walkway to a picnic area.
According to testimony and court records, employees notified park officials four times in May and June 2000 that people were throwing rocks at riders. Rocks were found on the Villain's catwalk and tracks. A supervisor ordered the rocks replaced by mulch, but employees put mulch over the rocks and increased patrols.
* * *
Six Flags maintained the park was not negligent because Wang assumed risks inherent in riding a roller coaster. Six Flags attorney Patrick McCaffrey said park officials believed Wang was struck by a cell phone carried by someone on the ride. The object that caused her injury was never recovered.
Arguing that getting hit by a cell phone is an inherent risk seems like a tough argument to make, especially in the face of the documents that evidently strongly suggested that there was a problem with rocks there...and I'd really hate to have to make the argument that there's an inherent risk of getting hit by thrown rocks, especially when you had evidence in the record from which a jury could conclude that the park didn't do enough in response to the knowledge of patrons throwing rocks at the coaster.
The damages include $1.1 million in actual damages and $2.5 in punitives. As the story notes, the plaintiff suffered fairly serious injuries (the coaster was going around 60 m.p.h. at the time she was hit by whatever it was) and underwent surgery to remove pieces of bone from her brain.
Note: The source story got the ownership chronology wrong. Premier Parks bought Geagua Lake, then bought Six Flags, before 2000. The company then converted the park to a Six Flags park-branded park in 2000. Doesn't much matter, of course, but since it was pointed out to me, I figured I'd correct it.
If for whatever reason, you find amusement park safety interesting, I do more on it at MassTort.org.