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Monday, November 30, 2009

Guest Blogger Jason Solomon: Thanksgiving, Football and Torts

Thanksgiving, Football and Torts


If you're a real Torts person -- not someone who just happens to teach the class, take it as a first-year student, or practice in the area -- you see the world as one big kaleidoscope of ever-shifting opportunities for tort claims. Our recent holiday of Thanksgiving and its football tradition is no exception.


Let's start with the recreational. One of my favorite cases is Knight v. Jewett, a 1992 CA Supreme Court case on the difficult issue of how assumption of risk fits into a comparative negligence regime.  It arises out of a touch-football game with a group of friends, the kind of game that might happen on Thanksgiving (though this one was at halftime of the Super Bowl). The game was co-ed, and I never know with whom to be more annoyed: the defendant Michael Jewett, who appears to have taken the game a bit too seriously; or plaintiff Kendra Knight, for seeking legal recourse after a touch football injury.


Another big Thanksgiving football tradition now is the televised professional games that offer a great escape at family gatherings. And the major pro football case in torts (in coursebooks at least) is Hackbart v. Cincinnati Bengals.This case involves the question of whether pro football players – in taking the field -- implicitly consent to random, intentional acts of violence, like the gratuitous forearm to the back of the neck that Dale Hackbart of the Denver Broncos took in a 1973 game against the Bengals.


The main pro football player I think of these days, though, when I think about torts is Ben Roethlisberger, the defending champion Pittsburgh Steelers’ quarterback.  Before the start of this season, Roethlisberger was accused of rape by a hotel employee in Nevada. She did not go to the police at the time of the incident, apparently because she feared the hotel’s management would side with the celebrity athlete, but later brought a civil suit. A similar scenario played out with basketball star Kobe Bryant a few years ago.


This raises an interesting issue on the boundary of crime and tort, which is: why do these Jane Does get to bring tort suits? If the victim declines to complain to the police, or even if she had and the prosecutor declined to bring the case, shouldn’t that be the end of the matter? Is this the torts system run amok again, with a young woman seeing some deep pockets to go after?

Ellen Bublick has documented the growth in civil suits by sexual assault victims, and offers some thoughts on the advantages and disadvantages of bringing such claims, in an interesting piece available here.  From a policy perspective, though, why even allow such suits? I suppose one can tell a typical compensation/deterrence story: because the “reasonable doubt” burden is so high in criminal proceedings, we need an extra measure of deterrence, and because compensation is not generally available in criminal proceedings, tort fills a gap there as well. 


I find neither rationale very compelling. We could make any number of changes to the criminal justice system itself to increase deterrence -- changes to the substantive elements of the crime, the severity of the sentence, enforcement resources -- without deploying a separate legal regime. And the increased prevalence of victim compensation funds in criminal justice means that this remedy can be pursued by prosecutors as well.


A more appealing explanation lies in the civil-recourse theory developed initially by Ben Zipursky, and elaborated on in work co-authored with John Goldberg and by Goldberg himself. If tort provides the means for individuals to act against those who have wronged them, as recourse theory tells us, we can see why we might provide such a right of action: so the hotel employee need not depend on prosecutorial discretion to be able to hold her wrongdoer accountable. 

To be sure, we can’t make it too easy to bring these lawsuits, or else people might be held accountable, or forced to settle accounts, when they have not behaved wrongfully towards anyone. Indeed, Roethlisberger’s lawyer would say that is exactly what happened here, and has produced emails which, if legitimate, serve to undermine the plaintiff’s account.  But those who say the hotel employee was just out to “extort” the wealthy athlete need to explain why her lawyer offered to settle with an apology and donation to charity from Roethlisberger.


What purpose do such lawsuits serve? Assume the hotel employee was indeed raped. A tort claim allows her to stand up to the wealthy, physically imposing man who might have said “Do you know who I am?” or “Who’s going to believe you?” in response to the threat of complaint.  Giving Jane Doe recourse here reinforces a norm of social equality, and her own moral worth. It allows her to say to Roethlisberger: “You can’t do that to me,” and for the statement to have real force to it.


This view of tort is less safety net, and more slingshot. Individuals who have been pushed back or thrown down can come right back at their wrongdoer, with the help of an advocate.  Many will no doubt see this as an overly romanticized view of tort law and one at odds with much of contemporary practice.  But I’d welcome your thoughts, either on the specific sexual assault context or the broader theoretical account of tort, discussed a bit more here. 


--Jason Solomon

Assistant Professor of Law

University of Georgia School of Law

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The ability to bring a civil suit when the desired results are not found in the criminal justice system makes a mockery of that system, and gives an easy shot at deep pockets...a scam for easy money.


Posted by: Steven Tenenbaum | Nov 30, 2009 4:38:08 PM

Why did I know without checking that this post was written by a man? Ask a woman why the system should remain as it is and she'll explain it to you.

Posted by: malk | Dec 10, 2009 10:18:27 PM

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