Sunday, May 6, 2018

Injuries and Tort System: The Social Construct

By Nayomi Vázquez-Berríos
Going into Prof. Engel’s book I was definitely one of those who thought that the tort system was saturated with claims and cases of people looking for “justice” and for ways to make money.  Nonetheless, while I read Prof. Engel’s book I realized the situation is another completely.  Around the world our tort system has been of constant debate, whether that be in a good way or a bad way.  Most believe that we find ourselves at the point where our courts are not doing enough to correct social wrongs and are also being, maybe, too forgiving to defendants or even overcompensating plaintiffs.  It does not matter if our system is being glorified or bashed; the one thing that is a constant is that many believe that Americans sue for anything and everything, and at every chance they get.

Prof. Engel’s book does a really good job at explaining why it is that society has the wrong conception of our tort and court system in general.  Most of us were made to believe, and we have accepted it as true, blindly, that the majority of people that get injured in society usually go after the entity that wronged them in order to be whole again.  But as Prof. Engel says, nine out of ten people who suffer injuries do not assert any claims against the person or entity that wronged them, instead they choose to absorb the losses and avoid any type of claim and dispute, what Prof. Engel calls lumping. David M. Engel, The Myth of Litigious Society: Why we Don’s Sue 22-25 (2016).  There are many reasons, which Prof. Engel discusses fully in his book, as to why this happens.  Or in his own words, why the dog does not bark.

One of the reasons as to why people do not claim against the person or entity that wronged them that stood out for me is the fact that injuries can be seen as social constructs and may have been caused by items of our everyday life that we might not give a second thought to.  Injuries as a social construct means that as a collective society thinks as certain types of “injuries” as non-injuries that do not merit litigation or any type of claim.  In other words, we naturalize certain injuries and make them seem trivial when they are in fact a civil wrong.  Like for example injuries sustained in stairs, chairs, and keyboards, oh my! David M. Engel, The Myth of Litigious Society: Why we Don’t Sue 105-125 (2016).  Back pain and spinal deformities may fall within the injuries that we have naturalized and do not think of as civil wrongs.  We might consider back pain or spinal deformities as a result of poor posture or as a result of genetics, but we usually do not think of back pain as a result of the poor design of the chairs we have been sitting on since pre-school, all the way to the labor force after graduation.  Never before reading Prof. Engel’s book had I given much thought to back pain as a consequence to faulty or even defective chairs.  Most of us have used chairs for everything in life, whether we like it or not.  Our normal day to day life requires us to sit most of the time, for humans are pretty sedentary.  Since we were children, the norm was to sit in class, and after we graduate the norm is to find a job behind a desk.  These behaviors have caused chair-related injuries to be normalized to a point where, like Prof. Engel says, until we get rid of the chair-sitting cultural norm, we as a society will not be able to rightly identify these injuries as a civil wrong worthy of correction through our tort and litigation system.

Like I said before, going into this book I was very oblivious as to the number of potential claims that are not brought before the civil dispute resolution system in the United States.  Our tort system and our whole civil dispute resolution system were built to do something about wrongs that have a solution and have the potential of righting the wrongs that go unnoticed by society.  I think that wrongs like the ones caused by chairs, stairs, and other objects in our immediate environment that we have normalized to the point where we do not associate any type of injury to them, should have their day in court and society should be aware that belittling any type of injury only harms society itself.  Like Prof. Engel says when potential plaintiffs absorb their losses and do not claim, it not only affects them, but our tort system and litigation system cannot fulfill their principal purpose of compensation, deterrence, loss distribution, and corrective justice. Id. at 177-78.  Regardless, I think the most important aspect, which is being lost in translation, is that if claims such as the ones mentioned above are not brought to the attention of courts then the tort system cannot alert state agencies and officials of potential wrongs that must be corrected for the greater good. Id. After reading Engel’s book, I think that our litigation system should be more accessible and should encourage people to bring their claims because it is the only way to make sure in the end society is the true winner behind every righted wrong.

I believe that it is our job as future lawyers and present lawyers, at every level of our judicial system, to let society know that the wrongs being committed against them have solutions.  If I could reform the United States tort system, I would definitely start by educating people on what torts are.  Honesty time, personally, I did not know what torts were, and coming from Puerto Rico, I had no translation for it either.  Now I know they are “agravios,” but it took a while.  I think that if people were aware of what torts were and what was needed to bring their claims to court, they might not absorb their losses because they would feel like our tort system is accessible and understands their woes.  The problem with this is that it is not cost effective to educate all of the United States on torts.  Also, lawyers would be out of a job.  Nonetheless, something must be done to help society understand that wrongs are not always their fault and we should allow those who do not feel like they have a voice to denounce those wrongs, be heard.  Isn’t life just like school? My questions might help someone with the same uncertainties.  This is what would happen if every single wrong in America is encouraged to be righted, others would be encouraged to bring their wrongs to court because they know that they will have a chance to be heard and with every effort possible, hopefully be made whole again.

No comments:

Post a Comment