Saturday, April 14, 2018

Conceptualizing injury: When and who gets to hurt?

By Flannery Rogers

To have such pervasive and compelling rhetoric of out-of-control tort litigation at the same time as research shows that fewer and fewer people are actually making claims suggests that something deeper may be at stake than simply making injured bodies whole. David Engel says as much in the introduction to his book, The Myth of the Litigious Society: Why We Don’t Sue. As he traces the evolution of tort law from strict liability, to a negligence standard, to the mid-20th century almost-distributive approach, to today’s damage’s caps and re-affirmation of no-fault liability, he is also tracing the socio-cultural view of personal responsibility in the United States.  David M. Engel, The Myth of the Litigious Society: Why We Don’t Sue 9-10 (2016).

Engel gives compelling reasons for the failure of injury victims to claim. Claiming requires affirmative action, and some research suggests a “status quo bias.” That is to say, even when an injury has made the status quo objectively less positive than the subject’s state before the injury, plaintiffs tend not to seek change. Id. at 63. A plaintiff’s conceptions of causation works similarly to favor lumping over claiming: without a direct causal link, plaintiffs are unwilling to look for blame farther than a direct physical link between their bodily experience and their injury. Id. at 87. The latter, Engel says, is correlated to how plaintiffs understand causal metaphors primarily as a moral cosmology. Id. 93. See also Laura Nader, The Life of the Law 168-171 (2002) (arguing that styles of law vary in relation to the social and cultural environment and that the legal form is directed by the motivations of those who seek to use it). To this point, Engel frames a propensity to lump within an American ethos of self-sufficiency and individualism. Engel, supra at 95. This is a crucial point in understanding how both legal and individual conceptions of causality work within culturally normative frameworks. The theoretical link between conduct and injury is co-produced by law and culture.

The ways in which injury comes to be seen as actionable interests me the most, and I credit Engel for bringing it to the fore. Sarah S. Lochlann Jain (cited in Engel) notes that “[i]njury is a project of translation through which the co-constitutive effects of agency are interpreted and distinguished.” The Politics of Product Design and Safety Law in the United States 17 (2006). Jain’s point can be read to encompass how it is that some injuries, and that mechanism which caused the injury (products, or conduct, or social conditions), come to be understood as actionable. In the 1950s and 1960s, cars without seatbelts were the norm; today the vehicle would be considered defective without them. A chainsaw sold without a chain brake? Prescription drugs without a child-proof lid?

Of course, notable about those three examples is that they would all fall under the rubric products liability, and therefore the no-fault state of culpability that is strict liability. I suspect that much of the reason for the dearth of personal injury litigation can be explained by insurance schemes that so often apply when fault is attributed to the accident. Car accidents provide an illustration – most coverage includes compensation for bodily injury. Although, as Engel argues, an insurance settlement may be less than a victim would receive had they lodged a formal claim, a potential claimant is less likely to pursue a claim once they have a check in their hands. Engel, supra at 165. Workplace accidents, another example where injury-causing mishaps are common, are covered by the state-sponsored insurance program of workers' compensation.

While I think that Engel’s premise presents a much-needed contribution to the debate between excessive litigation and tort reform, the book overall left me unfulfilled. I attribute this response more to my dissatisfaction with tort law itself than with Engel’s thesis. While I understand that tort concerns itself with disputes (that result in harm) between two individuals (or corporate bodies), most of what harms bodies comes not from the snow left un-shoveled by the neighbor, but rather by the harmful environments, chemicals, foods, and occupations that are disproportionately used, encountered, eaten, and undertaken by people with disproportionately fewer recourses. Not every potential tort claim is treated equally, or even recognized, in civil litigation. Not every person is positioned equally in relation to access to the civil legal system. And not every person faces the same likelihood of injury. Those who inflict injury are likely to be wealthy, those who sustain injury are likely to be poor. Id. at 139. If the goal of tort law is to redress wrongs and compensate victims that are unfairly harmed, then it is worth asking what its role can be when wrongs are systemic rather than accidental.

To that end, envisioning a tort system that is able to redress wrongs with equity but without disturbing the sacred corrective and distributive dichotomy is a challenge. My initial reaction is to push for an expanded conception of duty, or a flexible interpretation of causation. Let wide the gates! Tear down the wall! However, even my bleeding-heart balks a little at this proposition. The tort system is not and should not be, fundamentally, a system that seeks to punish. Further, to put people back in the place they were before the injury may be a desirable aim, but not one that is necessarily has a lasting effect. Had the Pelman plaintiffs been awarded damages for the harmful effects of chicken nuggets and French fries, McDonald's may have been forced by public pressure to change the nutritional content of their product. But cigarettes can still be purchased at the corner store.

More significant would be a socio-economic shift that brought affordable and healthy options to neighborhoods where fast food is the only option. And that is not the purview of tort. I would like to see a New Zealand-style system of compensation played out alongside a robust welfare state while retaining tort law that allows for egregious wrongs to be remedied through civil litigation.  As seen in the Stella Liebeck case, tort law can be enormously effective in changing injurious practices. Such monumental changes, however, are rare, and as Engel shows, the majority of injury victims go uncompensated. Compensating those victims, so they can return to being productive members of society, is the responsibility of the State, but should not perhaps take place in the courtroom.

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