By Tim Robinson
The most compelling section of Professor Engel’s book was Chapter Seven. Not due to the discussion about stairs, chairs, or keyboards, but the analysis of our society’s way of thinking. Engel discusses early in the chapter about how humans have “deep rooted assumptions about harm” that lead to a “process of naturalizing injury.” When I first read this opening excerpt I failed to give it much thought, my eyes already began to look ahead to the following section entitled “STAIRS.” I began to think ahead and wonder what path Engel was going to go down, how is he going to show chairs as a great wrongdoer in our society? As I read about Mrs. Montesinos’s fall, the perfect posture of the chair-less natives of Upper Volta, and the unavoidable risks of QWERTY, I almost laughed. I disagreed, and mostly still do, with Engel’s attempt to code these as unknown injuries due to being “culturally normative.” Yet, as I read onto the section “. . . AND AUTOMOBILES” I started to at least understand the argument Engel was trying to make.
As stated, I still mostly disagree with Engel’s view. I don’t see these injuries as something we should consider for litigation and therefore as a form of lumping when a claim is not brought. Early in the book Engel dismissed the thought that America is a society saturated with litigation. As early as page 22 Engel discusses the RAND research which claimed that over 90 percent of injury victims lump by never making a claim against their injurer. But if someone slips on stairs and feels pain in their hip sometime later, or a student suffers from chronic back pain from sitting for too long, or an office worker develops carpal tunnel syndrome, they may never report these as an injury, as they don’t see it that way. If this is the case then these “injuries” he speaks of actually are not injuries at all and therefore are never actually “lumped.” They don’t coincide with his statistics, and therefore don’t really have a place in his book. His strongest argument is the statistics of lumping and how they paint a very different picture from what Americans, and the world, view as a litigious society. I think by discussing the “injuries” that society does not view as injuries and making an argument that these should be claimed gives some understanding as to why American Tort Law is viewed in a negative light.
I don’t believe that our perception as a litigious society is as far-fetched as Engel believes. I came into this reading believe that it is not the volume of claims that leads to this perception, but the frivolousness of the claims. I still feel this way now. Nearly everyone who works in an office building sits in a chair and uses a Qwerty Keyboard. If every office worker brought claims for their sciatic pain or arthritis in their knuckles, the ramifications to the corporate culture and to our economy would be immense. Not to mention that nearly all these people have different backgrounds and beliefs. Who is to say that the chair is the main source of the perceived injury? Maybe one employee was a longtime athlete; can his back pain be attributed to his participation in contact sports? If so, is it fair for him to receive less compensation for his back pain due to the chair? What if he has worked in the office for 15 years longer than a counterpart who was less active and therefore could more likely contribute their injury to the chair specifically? This would not be fair, would lead to windfalls, and would puzzle the other 99% of chair users who sought alternative means to alleviate their pain without blaming an everyday device. This is exactly what leads to the idea of a litigious society. It is not the legitimate claims, such as an innocent family blindsided by a distracted driver running a red light, or a father who losses the use of an arm due to a botched surgical procedure. It is the claimants who find fault in everyday products and seeks a cash payout, even though these products do not “injure” the rest of the users.
Engel did mention that making claims on these issues, which are normally not seen as injuries, can bring about change and a societal understanding that a problem exists. But seeking and receiving a windfall leaves a sour taste for those who did not claim that their pain was an injury or that it was the fault of any specific product. And there are other ways to go about seeking change and improvement in society, even for things seen as normative. In Chapter Seven, Engle also discussed the sad story of Dr. Gulbransen, who accidently killed his son when backing up his automobile in his driveway. Gulbransen, like potential chair plaintiffs, did not see the accident as a needed natural event. Yet, unlike those pesky chair users seeking a windfall, Gulbransen sought the help of the legislature. He avoided the courts and tort action and instead chose to change society’s view through activism and a bill that would honor his son and prevent future accidents. Sure, if Dr. Gulbransen sued the car company he may have achieved a similar change in society’s view on automobile safety, but it could have done the opposite. A win in court against the big mean automotive company could have led to a windfall, but it would not have brought back his son. This windfall could have led to a negative perception of the situation and resulting tort litigation, and instead of society asking for change in automobile safety, they may have blamed Gulbransen himself. Many people who never had issues backing up their car would blame the driver; ask who was watching the kid, or state that his “cash prize” was unnecessary for someone who should have just been more cautious. But by “lumping” his claim and instead, seeking the support of legislature and society, he showed that the potential for future accidents could be prevented at a small cost to automobile companies. This led to a change in society’s view of normative auto safety which helped enact the “Cameron Gulbransen Kids Transportation Safety Act of 2007” which rightfully honored the legacy of his son and brought about the change he desired without the despised tort litigation.
This is what I understood most from Engel’s arguments and also what I agreed with the most; that what we as a society see as normal can adapt over time. As Engel states, seatbelts are an obvious safety structure required in automobiles, but at one point they were not. Surely the first person injured due to not having a seatbelt did not seek to sue, but nowadays an automobile without a seatbelt would not even make it off the production line. So it is likely incorrect to say that the design of a chair or keyboard is perfect. They could certainly be better, lead to less pain or perceived injuries, and one day these new designs and models will be seen as the new norm. Future generations will look back and laugh at the design of the Qwerty Keyboard and will sit in chairs at museums and joke about how awkward and uncomfortable they are. But is tort litigation the best way to clear this path? I think not. For anyone to make money, muck up the courts, and claim injury for something that all of society uses on a daily basis is ridiculous. There has to be a better way to push for a change. Seeking support from the legislature and society may be drawn out, but if it is for the better, it will garner the most widespread acceptance of the change. Instead of bringing a claim someone could create a new design, leading to safer models and a windfall through hard work, which nobody in society would mock.
Lastly, I also agree with Engel’s decision not to approach the subject of tort reform. Engel made it very clear that his intentions were only to ask the correct question, which as he put it was: Why doesn’t the dog bark? This refers directly to the fact that we actually don’t sue, and that this should be the real question when we attempt to approach the subject of tort reform: Why do so many people lump and how do we prevent them from doing so? I think the historical feeling in our society is that if you are not majorly setback or injured from a “wrong” that you should lump or reasonably attempt to overcome the loss on your own. The injured and injurer should be encouraged to settle or work through their differences to come to a common solution that is the best for both sides. This is the most beneficial remedy for both parties and society. It seems as though this is the outcome that most parties do reach as the low claim percentage (less than 10% per the RAND research Engel uses) shows that many either feel that their injury was not egregious enough to seek a reward, or that tort litigation will not make them “whole” and therefore is not worth their time and effort. These plaintiffs may feel defeated and deterred from future litigation after not being fully compensated. Added with the fact that frivolous claims are constantly seen throughout media and these wronged plaintiffs will start to view the process as unfair and inconsistent.
When looking into tort reform these are the questions I would ask: Why those who claim are so seldom made whole and why frivolous claims still find their way into the courts? In our first week of classes we discussed Tort Law in New Zealand. Their Accident Compensation Act eliminates the litigation process which leads to less transactional and litigation costs and therefore a quicker and more whole payment to the injured party. Yet, this is not perfect either. This form of compensation has led to diminished deterrence as the fear of litigation and punishment that the injurer would face is all but eliminated. If I had the ability I would look to find something between this approach and the current American approach. Common injuries such as automobile accidents, medical malpractice, or common law forms of trespass (assault, battery, etc.), don’t need long drawn out litigation. Accidents of this nature should be able to be quickly settled. Some sort of accident compensation plan should be ironed out to make these settlements quick, efficient, and therefore more beneficial to those in need of the compensation. Accidents that are more questionable or imprecise, and therefore more likely to be frivolous, would still require litigation to allow for a fair and distinct outcome. For these types of cases we should require an extra level of checks and balances that permits society to have a say. If we could have something like a Grand Jury to review these cases before allowing them to even go in front of the court than we may eliminate a good portion of frivolous claims. For those claims that do reach court, anyone who states that the claim is frivolous would be reminded that a Grand Jury reviewed and agreed that a claim was acceptable.
I see this as a plausible solution. You would quickly resolve the obvious claims while adding a layer of checks and balances to the more complex claims allowing society to have their input before the claim spirals out of control. This idea is not far from the scope of similar processes we have now, like workman’s compensation and the Grand Jury system, which is already in place for criminal cases. The negative would be who decides what constitutes a simple claim that receives set compensation, and what goes to Grand Jury review. With this process you would certainly have automobile accident parties seeking to go to court so that their insurance companies can fight over who is at fault. This could lead to higher insurance premiums as insurance companies would not be happy about losing their day in court to attempt to save a dime. Furthermore, Grand Jury is a timely process for those selected. Asking citizens to take time from their lives to discuss what could be miniscule and baseless claims could be seen as a waste of time and resources. This idea is not perfect, and honestly I don’t know what would be. The process today leads many injured parties to be under compensation and unjustly left at a loss while others seemingly walk away with unfair windfalls for laugh worthy claims. The fact of the matter is that tort reform will go through multiple iterations over many years, being shaped and molded over time, unlikely to ever be set in stone. But what Engel did is important. Right or wrong, he asked another question which helps us view this issue from another side. The hope would be that his question about the missing plaintiff leads to another question, possibly my question about why frivolous claims make it so far in the current system. This will then to another with each question brining about some change that will eventually lead to a happy medium for all of society, however short that may last until a new norm is set and agreed upon. This is the unfortunate process of tort reform, an ever changing system for the ever changing problems within our complex society.