Where are the lumps?

By MaryAnn Lemon

The conclusion of David Engel’s book, The Myth of the Litigious Society, reminds us that it seeks to answer the question – Why is it that injury victims seldom press claims against their injurers and almost never take legal action? It seems that I, along with most of society, were under the belief that the American society was more likely to sue for injuries than not.  I was quite ready to delve into this book and find out just what “lumping” was and how it was such an epidemic in the United States.

The first thing that really struck me as interesting was the causation aspect. While the story was old, the case of New York Central Railroad v. Grimstad (p. 97), described a widow who sued the railroad company for failure to provide adequate lifesaving equipment on the barge. Mrs. Grimstad’s husband could not swim but was hired as the captain. He had fallen off the side of the barge and drowned while she looked for something to throw to him. The court determined that it was not the absence of the safety equipment but the fact that he couldn’t swim that caused him to drown. What!? Of course the boat should have had life preservers and safety equipment! But this was the 1920s, it was a time of economic and industrial growth. Safety wasn’t a big deal back then. Safety wasn’t even a big deal in the late 1970s or early ’80s. I spent a great many fun road trips sitting on the arm rest of my family’s Buick station wagon or having my dad’s arm reach out in front of me as my “seat belt” when coming to a short stop. I’m not sure that I see this incident as a part of causation or as a part of the cultural evolutionary change. By the time my daughter was born she was in the back seat, in some type of car seat, until she was ten.

Later on the book discusses how the backup cameras were installed in automobiles due to the negligence of manufactures and the “built in” blind zones design of the vehicles. How can it be considered “lumping” when a person negligently operates the vehicle, causes injury to a child, then fails to sue the manufacturer? Dr. Gulbransen did a great thing by campaigning for better safety from the manufacturer, but once again it is coming from a cultural evolutionary change, not a failure to do anything in the past.  My mom, who is 4'11", used to drive that same Buick station wagon sitting on a phone book with a pillow behind her back so that she could see over the steering wheel and reach the pedals. As technology evolves, so does our ability to create resolutions to issues. We are no longer required to have seats that only adjust in two positions. We can now move them up or down, and tilt them forward or back. I’m sure a great many people see this as a luxury feature but my mother sees it as a much safer way to drive. I’m not sure I believe these “lumping examples” to be a perceptional shift from something being a natural phenomenon to an actionable incident or if it’s just advancement in technology.

I did enjoy the McDonald's hot coffee story; I remember when it came out (p. 122). My whole perspective of the lawsuit was “Woman sues McDonald's for Hot Coffee.” I don’t recall ever hearing anything about McDonald's having their coffee hotter than other restaurants. Nor was it ever announced that they had been put on notice that there were other similar accidents. It was just a crazy lady who sued because her coffee cup didn’t say “Caution: Contents Hot.” This does put a potential perspective on “lumping” and the media. Most of the stories we hear are just spun one sided and are dependent upon how the news media wants to spin it.  

As the book moves to quote David Foster Wallace my hope for some lumping substance perks up (p. 126). I find something that I can agree with - “the ideas and perceptions of injury victims emerge from the organic connection of mind and culture.” (p. 127). In "Lumping by those who don’t think they were injured," the discussion focuses on different cultural beliefs, such as foot binding and circumcision. Perhaps he is trying to say that some cultures accept other painful experiences because of these painful experiences but I don’t think that this should be qualified as part of the potential lumping problem.

The most common sense portion of lumping is the cultural aspect. A woman doesn’t want to sue, her husband wants her to sue, so she does (p. 150). After a divorce and finding God, she realizes that she should have been watching her child so that the accident didn’t occur in the first place. Perhaps the dumpster owner was negligent, but isn’t that the bigger picture anyway? Where was she when the five-year-old was playing on the dumpster? Her new reverend explains to her that she needs to accept and forgive the incident. So, based on her new influence, if something similar were to happen she would decide not to sue. I’m sure there is plenty of lumping in small towns where everyone knows everyone. Who wants to sue their neighbor and start a feud for falling down their stairs? I’m reminded of the time I was Easter shopping, probably 20 years ago now. I was leaving the store with my carriage full of goodies, when a woman turned the corner in her car. She was speeding and I started to run backwards as she barreled toward me. She ended up hitting my shopping cart, which came back and threw me to the ground. I ended up with a fractured wrist. I’m not sure what compelled me to file a lawsuit, but I did. I knew she never saw me as she drove toward me. Insurance took care of all of my medical benefits but I was angry. I knew she was at fault and simply picked a lawyer out of the phone book. Perhaps if it was a small town or if I knew her I would have felt differently but I had no qualms about filing a lawsuit for pain and suffering because she was clearly at fault. 

When I started the book, I was ready to buy in to the lumping aspect and the lack of litigation in the United States but I’m not really sure there is enough substance in the book to prove that it exists. As technology evolves, so does our everyday equipment. I think the majority of the examples in the book reflect evolution and technological advances as opposed to lumping.