I’m not Chicken Little, and the sky is not falling. But something very bad is happening to American tort law. Private resolution of individual conflicts is, slowly but surely, giving way to undemocratic legislation‐through‐litigation. Due process of law and individual freedom are the principal casualties. Consider two examples of the current folly:
(1) Jeffrey Minton was driving his 1990 Honda Accord in Miami County, Ohio, when a vehicle traveling in the opposite direction suddenly crossed the center line and collided virtually head‐on with his automobile. Minton was tragically killed. In times past, the negligent driver of the oncoming car would have been the sole defendant in a tort suit. Not today. A wrongful death suit was filed against deep‐pocketed Honda, on the ground that the Accord it sold to Minton was not equipped with air bags. (Honda did not ship any Accords with air bags until 1992. Its 1990 Honda was equipped with seat belts and shoulder harnesses, in strict conformity with existing law.) But, you exclaim, Minton knew when he purchased his 1990 Accord that he was not getting any air bags! He did not pay for any air bags! He did not elect to buy a competing brand equipped with air bags! Can Minton possibly get via tort law something he never thought he was buying via contract? Yes, said the Ohio Supreme Court last year. [Hint: Want a car as safe as a Volvo? Go buy a Hyundai; if you’re injured, sue in tort for the lack of side air bags!] (2) Cities and counties across the country are filing suit against firearms manufacturers. Are the cities and counties complaining that the defendants shot them, or at them? No. They are complaining that somebody other than the defendants shot somebody other than the plaintiffs. If that sounds like a claim by an insurer seeking indemnity from a bad guy who injured his insured, notice the big difference. Insurers seeking indemnity have to stand in the shoes of their insured. But a person who is shot with a gun that had at one time been lawfully purchased does not have a cause of action against the person who sold that gun. So cities and counties are asserting that firearms manufacturers create a “nuisance” — because they legally sell “too many” guns to willing buyers.
As those examples should suggest, we are a long way today from having a body of tort law that reflects principles of individual responsibility. Under the old common law, for the most part, those who harmed their neighbors without justification were held responsible for making them whole again. The law presumed that people were free to act, but it also held them liable for the harmful consequences of wrongful actions. One of the principal ways traditional tort law controlled the freedom to act was through close connection with the law of contract. People were free to associate with others and to agree, through contracts, to allocate as they wished the risks of harm that might arise. By limiting their freedom through binding contract, people actually expanded their freedom: they did not have to leave everything to chance and then try to sort things out only after something went wrong. They could anticipate ahead of time what might go awry and allocate those risks in a way that seemed best to serve their interests.
That contractual freedom no longer exists under “torts‐as‐legislation.” A company held liable for legally selling certain products — because a jury has determined those products are “too dangerous,” even though the dangers were willingly accepted by consumers legally purchasing them — may decide to remove that legal product from the market. Do the masses want to buy an inexpensive car? Let them eat Mercedes.
Today’s torts “crisis” doesn’t exist because corporations are oppressing individuals, nor because we need federal regulations to replace common law rules. The crisis exists because our rights to contract have been given increasingly less respect by courts. The crisis exists because we have not allowed tort to be tort, and contract to be contract.
Proponents of the “new tort” suits say they have been “forced” into bringing them because the democratic process has failed to get their desired reforms adopted. What they really mean by that is that legislatures and electorates tend to reject the goofy idea of forcing restraints on unwilling consumers. The social reformers’ only chance is to find a few “friendly” judges and jurors willing to use tort law to change the rules of engagement.
Stop the madness — before it’s too late.