Defending Torts

The civil legal system has increasingly come under fire. It is widely believed that our tort system has become a flawed mess of un-meritorious lawsuits and greedy lawyers searching for any theory for which to bring a claim. The statement, “lawsuits are out of control,” is rarely, if ever questioned in the current environment.

I was perusing the comments in a recent article on about a potential wrongful death claim and found frequent displeasure with the existence of the lawsuit. Here is a sampling of some of the comments:

“Sorry. If he did something criminal, then GO AFTER HIM IN CRIMINAL COURT AND PROVE IT. Otherwise, you’re money-grubbing bottom feeders.”“TriMet and D*# are already suffering punishment for this tragedy, but not nearly as much as the Plaintiffs. TriMet has already practically admitted to negligence and has taken steps to prevent future incidents. If money is all it takes to make the Plaintiffs feel redemption, then I feel sorry for their empty souls.”“No amount of money is bring back these people, its all about money money money!!! just adds to the operation of TRI-MET!!!Bottom Feeders is the least these people are!!! Do they think this driver did this intentionally,why ruin someones life!!!”

These are just a few of the comments on one article about a tort claim. The facts of that particular case involve the death of two women in their mid-twenties, one if which was a mother. The women, along with five other people were crossing in a crosswalk when they were struck by a bus. The police determined the accident was caused solely by the negligence of the bus driver. The two women that were killed were stuck underneath the tires of the bus until emergency crews arrived because the bus driver was in shock and unable to move the bus.

No doubt this is a horrific set of facts. One in which claims by injured parties are entirely appropriate.

The comments are clearly an emotional reaction to the reporting of another lawsuit, but they help demonstrate a fundamental lack of understanding of our civil legal system that is all too prevalent today.

Put simply, the tort system is designed to provide compensation for wrongful losses. By requiring responsible parties to compensate others for injuries, the system creates an incentive for avoiding harmful behavior. In turn, creating greater societal health and safety standards. Money is generally how the system provides compensation, although other methods are sometimes implemented. Money is most often used because quantifying injuries through monetary means is the only practical way to address past problems. If courts had the ability to heal injuries or revive the dead, money damages wouldn’t be necessary.

Jury trials, or something like them, are not a recent invention, but have existed for centuries. King Solomon dispensed his wisdom in a trial-like setting and Socrates met his fate at the hands of an Athenian jury, though we don’t agree with the verdict reached. The tried and discarded alternatives to having disinterested community members decide disputes- such as dueling and trial by fire- have obvious flaws. In representing both plaintiffs and defendants, we have found that almost all juries use common sense to reach fair results.

For someone to recover for harm done to them there must be a legally cognizable theory, meaning that the law recognizes the type of harm. In the example provided above, the families of the victims are suing Tri-met under a theory of wrongful death. Wrongful death is a common law claim originally created because a dead person cannot sue, creating a loophole in the legal system that allowed people that caused someone’s death to avoid liability. A wrongful death claim allows the family of the victim to sue the person who caused the injuries. The families claim is probably worth a good deal of money. Enough to raise the eye-brows of critics, like the commentators quoted above. But the claim is potentially worth a lot because of the tragedy of the events. In calculating damage awards in wrongful death claims, the law recognizes both the emotional difficulty and financial difficulty of losing a close relative.

The media has no incentive for explaining the intricacies of the tort system or the public policies driving it. They are more interested in the headline grabbing, eye-popping numbers, and the emotional reactions those numbers create. It’s just unfortunate that most people don’t understand that most of the time those numbers have been arrived at through a just and logical process, one that usually makes sense when properly explained.