A Tort Law Perspective-Let’s Talk Tort Reform

Written by Melissa Gaye
January 2, 2007

What exactly is tort law? You’ve probably stumbled across some article or heard a debate concerning tort reform and a cap on damages- a proposal highly supported by your brilliant President Bush (hope you heard my sarcasm). So although I just finished finals and could give you my concise definition of tort law a la Professor Joseph King-tort extraordinaire-I decided to play it safe and go for the Gilbert’s law dictionary definition first. A tort is defined as “A wrongful injury; a private or civil wrong which is not a breach of contract. A tort is some action or conduct by the defendant which results from a breach of a legal duty owed by the defendant to the plaintiff, which proximately causes injury or damage to the plaintiff. Torts may be “intentional” (when the defendant intends to violate a legal duty) or “negligent” (when the defendant fails to exercise the proper degree of care established by law).”

Prior to law school the topic of tort reform was of some interest to me. After two years working as a litigation paralegal in personal injury I went to law school with mediocre expectations for my interest in torts. Torts was my absolute favorite class this semester. I mean how can you not be intrigued by the notion of a standard of care owed to others (especially when you think about how we frequently get caught up in our own lives-do we ever stop to think about our duties or a standard of care?) From intentional torts like battery, false imprisonment, intentional infliction of emotional distress to non-intentional torts dealing with issues like self-defense, negligence, causation, procreation and end of life decisions-have you ever thought about how our legal system compensates for such injuries to ensure that justice prevails?

Much of recent tort reform discussions were centered on medical malpractice and doctors’ convictions that lawyers and the legal system are responsible for their high malpractice insurance rates with increasing lawsuits etc. Of course lawyers don’t skip a beat to tell you that insurance companies and not the legal system are responsible for the malpractice insurance doctors pay. Within my two years of drafting and filing Complaints I can’t tell you how many times I filed lawsuits that I knew very well should not be going to court. I had a woman call me one day distraught when I told her we wouldn’t be able to file a suit and she would have to take the last offer the insurance company made. I read her medical records, saw the photos of her car accident, she had a significant gap in treatment between the time of her accident and first seeing the physician and in every way it was a defense attorney’s dream of a case. Desperate for more than what they were offering she quickly began to tell me about a slip and fall injury she had in a dry cleaners about a year before and asked if there was anyway we could file suit for her fall. As much as I tried not to pass judgments about the sincerity of people’s injuries the truth is there are always those that want to take advantage of the system. Hence, all the frivolous lawsuits crowding our courts and causing people with real matters to suffer extenuating delays for trial. And I’ll be the first to admit that I’ve certainly come across a few lawyers who add to the problem by filing these suits all in the name of greed and money. I do think there is need for tort reform however; I don’t think capping damages is the answer to the problem. Capping damages (which is limiting the amount people can be awarded in certain cases) is only another capitalist ploy to protect the big guy and screw the little guy. Or rather, let me rephrase that blanket statement and say the president’s suggestion of capping damages to $250,000 is a senseless notion. The system already fails to protect so many people who should be protected and much of the hum drum about ridiculous awards etc. is overblown. If you want to talk capping damages I think there needs to be more discussion and analysis by legal and political scholars before assigning some generic limit-in short the situation should be assessed. Honestly, I really don’t have too many specific suggestions or ideas re tort reform- I think if I knew the solutions I should be a Supreme Court justice or maybe its just way too early in my legal profession for profound theories of reform.

What I do know is that between 1920 and 1969 a few states began utilizing comparative fault in tort litigation and between 1969 and 1984 comparative fault replaced contributory negligence in 37 additional states. In 1992 Tennessee became the 46^th state to adopt comparative fault and North Carolina is one of four states that still uses the 400 year old law of contributory negligence (along with Virginia and Maryland). Contributory negligence is a strict bar to recover damages when the plaintiff is found to be any percentage at fault. What that means is that if we meet in a car accident and it is determined that you were 90% at fault and I was only 10% at fault in states like North Carolina I will not be able to recover any damages from you for my injuries because I was 10% at fault although you were clearly responsible for the accident. Think about that for a minute and think about how it supports the tort policy goals of fairness, loss allocation, and loss spreading. Don’t you think it’s about time North Carolina changed this doctrine-I certainly think its time we become the 47^th state to jump on the bandwagon in this case. Anyhow, I think I’ve said way too much for one entry and my apologies for the tortious length. But before I exit I urge you to spend a day consciously thinking about your duty to others around you and the amount of times you find yourself doing something that violates that duty. If you’ve managed to avoid being named party to a suit give yourself a pat on the back and if you’re no stranger to the court system then you might want to make this more than a day’s exercise.

- CGMY