Thursday, March 19, 2009
Apologies and Tort Law
My state senator, Pat Vance, has proposed a bill that would make Pennsylvania the 36th state to provide some sort of apology immunity. (The Scranton Times has the details. SorryWorks! has a list of states with apology immunity laws here.)
People involved in accidents often appreciate speaking with the other party. Injured victims frequently state that they desire an explanation and, if appropriate, an apology. Similarly, injurers frequently state they would like the chance to talk to victims. This is particularly true if there is a pre-existing relationship, such as physician-patient. However, the incentives of the litigation system force people in another direction. Attorneys often counsel their clients to avoid contact with the other party, and under no circumstances discuss the details of the case or apologize. The main legal issue is that many apologies are seen as admissions and are admissible to prove liability.
These circumstances have led to the states' 35 apology immunity laws, almost all of which were passed in the last decade. The laws have generated several controversies in the academic literature. First, should a state protect "full," fault-admitting apologies or only "expressions of benevolence," such as "I'm sorry that you are hurt." Most state laws protect only statements of benevolence, allowing a fault-admitting apology to prove liability. Second, the literature indicates that people receiving an apology are less likely to sue. Scholars debate whether that is a good result; several argue that an apology is inadequate consideration for many injuries. Third, a similar debate is joined over whether apology immunity laws provide potential defendants incentives for purely strategic behavior. In other words, there is a concern about the sincerity of the apologies being offered.
Thanks to Jennifer Robbennolt (Illinois) for guiding me through the field. The literature is fascinating, and, in a later post, I will offer a bibliography.