A Quick Tort-Related Thought Experiment

Read this story at Overlawyered.com (you are welcome to try the linked article in the KC newspaper, but take my word for it, the registration is a pain with lots of attempted spamming (you might try bugmenot instead).  Here is the gist:

Car veers into truck's lane...and so a jury has ordered the trucking company, Auction Transport Inc., to pay $22.5 million over the resulting injuries to a young passenger in the accident, which occurred at rush hour on Kansas City's I-435. Mary Coleman's car, allegedly sideswiped by a third vehicle, had careened in front of the truck, but attorneys argued that the truck driver had been "driving too fast in congested traffic and not watching the road." The jury found the trucking company responsible for just less than half the fault of the accident -- a greater share of fault than the allegedly sideswiping driver -- and Coleman for hardly any of it.

So, surprisingly enough, three vehicles involved, two with limited resources and one with deep pockets.  Guess who is liable - the deep pockets of course, despite the fact that he was the only driver among the three who stayed in his lane!

Now, here is the thought experiment.  Move the truck with deep pockets into any of the other two roles.  Imagine first that it was the car that nudged the plaintiff into the other lane.  Imagine next that the truck was the one nudged into oncoming traffic and hit the plaintiff.  In these two cases, if they had gone to trial, who would have gotten the blame?  I would bet you that in either case, the truck with the deep pockets would have been given most of the blame in either of these cases.

So where is the fairness?  Why should blame be based on bank account size, and not actual actions?  Is there anything more than coercive wealth transfer going on here?  Does this constitute justice? 

By the way, I continue to say that limiting damages misses the point of what is wrong with the tort system and the malpractice system.  Congress and state legislatures have got to find a way to bring some sanity to the tort process, where legitimately harmed people can still get compensated for damages, however large those damages may be, but otherwise innocent people who happen to have deep pockets and somehow find themselves nearby a legitimate accident don't have to worry about being held at fault.  Babies are sometimes born with birth defects, people sometimes slip on perfectly safe sidewalks, and car accidents are sometimes just that: accidents.  I make this same point over and over here.

Update:  oops, left off the link.  Fixed now


  1. Sammler:

    Sometimes accidents are just accidents. But people do not want to accept tragedy. It is very easy to slide from preventing tragedy to denying it; and the easiest way to deny tragedy is to ascribe everything to malice.

    Also, once you discard God and community as judges, the law is the only remaining source of legitimacy -- so people seek vindication through lawsuits. And who doesn't like vindication?

  2. Bill:

    You can lay almost all of this at the feet of Guido Calabresi, Yale Law Professor and author of "The Cost of Accidents: A Legal and Economic Analysis."
    Calabresi's argument, probably over-simplified, was that "fault" is a quaint historical notion that should be abandoned. He wanted to put liability on the party in the best position to spread the risk, e.g., through insurance. He would applaud the results of your thought experiment, because the trucking company occupies that position.
    Only a professor of law could be so cavalier about basic human instincts and dismissive about the effect of his theory on accountable behavior.
    Naturally, his theory has been taught to law students for nearly 40 years.

  3. markm:

    Bill: Thanks for that info. Now we just need the team of trial lawyers that will sue Calabresi and Yale (especially Yale) in a class action suit on behalf of every consumer in the country. ;-)

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