By Hannah Ahern
Chairs, stairs, and automobiles are a few items on a list of things that Professor David Engel suggests are discretely victimizing society on a daily basis. Not only does he discuss how society is a victim to the man-made objects that fill our environment; he also states that society is victim to the mindset of the community. As there are many reasons why tort claims have dramatically dropped in today’s society, not being able to pinpoint blame and fear to make a claim are very viable reasons why we have a missing plaintiff.
Technology and man-made objects have completely taken over modern day society. There is almost nothing that one can do throughout the day that does not involve the use of or interaction with a man-made item. As Engel discussed on page 114, “the naturalization of chairs as part of our physical environment tends to suppress both naming and blaming and it makes claiming even more rare … lumping of these injuries occurs as a matter or course, not as a conscious decision by the victim. Litigation is literally unthinkable.” We are completely normalized to items such as chairs that even thinking about something as simple as a chair causing a debilitating injury seems absurd. I agree with the fact that many claims are not brought because they are not identified purely because of the common nature of the object that caused the injury.
Pointing blame to an everyday object, even when there is an identifiable injury that occurs on or with the object, is something that is also uncommon. As Engel pointed out we tend to blame ourselves for the wrongdoing when it is as simple as falling down the stairs as stating on page 109, “they don’t blame the architect… people explain most stairway injuries as accidents that inevitably accompany human movement from place to place.” I agree that the normalization and length of time that we have been exposed to these objects, along with the easy recognition of human error, are the reasons why there is never any blame attributed to their wrongdoing. Faulting human error is an easier alternative than pinpointing the wrong in the architecture or design of an object and bringing an uncertain claim.
As I do agree with Engel that everyday objects tend to cause more harm than we think they do, and lawsuits are uncommon as we do blame ourselves for their wrongdoing, I also believe that we cannot begin to try to attribute blame to everything we interact with. If society starts analyzing its everyday interactions with man-made objects to pinpoint their harm, then society becomes a victim to everything we have created. If that is the case, the average person would begin to blame every man-made object they interact with for their pain and suffering. Not only would that be an excessive number of claims flooding into the court, the burden of proof for tort claims would substantially increase in order to ensure that one is properly attributing blame for injury. As burden of proof for tort claims escalates, the number of plaintiffs willing to bring claims for actual wrongdoings deescalates as a result, and we are back where we began with a missing plaintiff.
Another reason presented for the missing plaintiff results from people falling victim to the views of their friends, family, and community. As Engel discussed on pages 136-137, “lumping emerges as a culturally appropriate means of resolving some of the contradictions between self-interest and the collective good.” The balance between self-interest and the public good does not always seem to weigh out, as Engel presented it. While society does greatly value acceptance, we also greatly idolize money and the ability for personal gratification.
There may be a slight majority that favors the greater good; I do believe that more of modern society in America is focused on personal gain. The missing plaintiff seems more likely to be amiss because of factors other than their concern for the greater interest and their belief that family and friends will not approve. My view results from my personal experience working in a law firm that deals mainly with estate planning. I witnessed cases in which families fought mercilessly over deceased parent’s property and assets. Seeing this kind of behavior and greed overcome a family relationship leads me to believe that if family members are willing to go to these lengths for some kind of monetary gain, than the plaintiffs with a claim would be willing to do the same regardless of their friends and families’ concerns. As Engel did provide evidence for the influence that society and family can have, I still do believe that there is a large portion of society that would not be as significantly influenced by these people to give up their personal gains.
As Engel identified possible reasons for why the plaintiff is missing, he also presented ways in which we can find the plaintiff and bring them back into court. I found Engel’s point on high profile litigation interesting, in that he believes that we should continue to publicize certain cases that make a good display of acceptable tort claims. I agree with his point, that not only will this help other potential claimants realize their own viable claims, but it also can spark significant public policy changes. Throughout many of the high profile litigation cases, criticism to companies and governmental agencies has come to light, in turn initiating new policy change, which is something that is necessary in our changing times. As our technology is advancing every day, we need to be cognizant of the shift in our public policy as well. Even though claims can be brought for these wrong doings and victims can be compensated, the courts can only do so much to stop the source of the problem. The legislature needs to take on the root of the problem, doing so through policy change that can be initiated through the publicity of high profile claims.
My view on the tort system in the United States has definitely changed after reading Engel’s reasoning on why claims are at a significant downfall. Prior to reading the book, I was not aware of the significant decrease in claims being brought after wrong doings. After presenting the statistics and real life stories of why people do not bring claims for their injuries I definitely view the system as something that can look harsh from the layperson looking in with the persistent television ads for injury attorneys doing more to deter potential plaintiffs than invite them in. I also did not realize that there is such an extensive psychological thought process that goes into the decision in whether to bring a claim for an injury. Engel has helped me realize that there is more than just a direct fixation on monetary compensation in the journey to bring a tort claim to court.
Reforming the tort system in the United States would be a near impossible task, but if I had the option to do so I would separate tort claims against individuals and claims against corporations or government agencies. In courtrooms that hear tort claims against individuals for menial torts such as assault, or a car accident, the same jury trial would remain in place. In courtrooms where claims are heard against employers or product manufacturers, the jury would consist of a panel consisting of experts regarding whatever industry is the subject of the topic at hand. By allowing experts to make the determination on situations of this nature there could be a better outcome because experts would be able to better understand the propensity of the injury at hand, and to what extent the damages should be awarded. Additionally these experts would be able to utilize the cases and do something to correct the wrongs by shaping policy within their industry to prevent any further injuries. This possible reform for the tort system is not viable because enlisting a panel of experts for a particular case would be expensive and time consuming to reach out and find a time that experts would all be available for a trial that could take weeks to resolve.
Reading Engel’s novel has presented me with many different reasons why claims are not brought to court. Not only is naming and blaming a problem, but being subliminally victimized by our environment also brings another factor into the search of the missing plaintiff. As lumping of claims becomes a norm, the tort system and the attorneys employed by it need to start making changes before people feel like they have the viable opportunity to bring a claim. As Engel indicated, the goal for reform involves good policy to reduce the frivolous claims while encouraging victims to bring viable claims in order to get the justice they deserve.