I met with my professor to talk about some of my blog entries on torts. The first one we reviewed was the one on Vosburg v. Putney. Although that case is good law, were it to be decided again today my professor wasn't sure which way it would come out. On one hand, he said, tort feasors (someone who commits a tortious wrong) "take their victims as they are." In other words, just because the younger kid committed battery against someone with a disproportionate reaction (e.g., rather than no reaction or a minor bruise the older kid's leg nearly fell off...), the disproportionate nature of the reaction doesn't excuse the act of the battery itself (in this case the younger boy kicking the older one.)
On the other hand, causation is a factor in deciding torts cases (we've just begun to cover that type of issue in class.) If the defense, with today's available medical knowledge could show that the magnitude of the injury suffered by the older boy was caused by the original injury and not the younger boy's kick, then the younger one may have not been judged liable.
I'm not sure I feel any better about any of this though, and I stand by one of my earliest posts on the subject:
"Torts also bothers me for some of those macro reasons. The sense I've gotten so far is that one should never leave the house. Nearly everything you might do could be a tort and someone could sue you. To a layman I think there's some sense that the tort liability system may be out of control. As part of this Great Change I'm learning that it's not actually out of control - it actually seems fairly normalized and regimented - but it's nonetheless fairly insane and potentially socially destructive. As a society, do we want liabilities to be so easily applied? Yes we don't want people to be able to do bad things, but innocuously bad things seem to generate as great a liability as maliciously bad things. The effect of this would appear to be that we have a society which has no incentive to forgive culprits for their accidents."
We turned our attention next to the post on res ipsa loquitur which also bothered me on the same meta level. Nearly everything seems to be a tort. Everything. Egregious conduct, and innocent ordinary conduct. In theory you could sue anybody for anything. You could BE sued by anybody for anything. I'm finding it hard to find an upside for society with this arrangement, not because I'd want to deprive innocent victims of their opportunity for legal redress to a significant wrong but because the torts themselves don't seem to differentiate the incidental from the glaring in terms of transgressions.
What my professor basically said, echoing what we've also been learning in Civil Procedure, is that tort litigiousness boils down to the economics of using the court system. In Civil Procedure we've done some analysis on where the burdens of pleading, proof, and persuasion need to be in order to maximize the number of correct outcomes and minimize the numer of false ones.
(Actually, that's not entirely correctly stated. What we are trying to eliminate is error cost. So 100 incorrect verdicts that cost $1 each may be more desireable than one incorrect verdict that costs $1000.)
Cost analysis enters into the thinking of any trial lawyer. What will it cost to sue? What can be hoped to gain? Frivilous suits get filed because plaintiffs calculate that it will be cheaper for the defendant to pay off in a settlement than go all the way to trial. On the other hand, lots and lots of torts suits DON'T apparently get filed because even though the tort claim may be easy to prevail on, the possible payoff is dwarfed by the cost of pursuing it.
What my torts professor suggested is that the reason we don't all necessarily have to fear excessive amounts of lawsuits is because it's not economically viable for that many to be pursued.
But I still don't feel good about this. The fact that it's not cost-effective to pursue a tort claim doesn't make the claim go away. What concerns me is that there are so many plausible claims out there, and people are vulnerable to them. The fact that economic realities may effectively prevent excessive amounts of suing does not provide nearly as a reliable societal defense to them as it would if the tort claims didn't even exist at all.
Edit: this really applied to 10/15 so I changed the date.