Top 10 in torts: evolution in the common law.
To mark ATLA's 50th anniversary TRIAL asked a number of tort lawyers and law professors to identify the most significant developments in tort law A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. during the past half century.
It's a different world from 1946. Technology, from the photocopier photocopier
Device for producing copies of text or graphic material by the use of light, heat, chemicals, or electrostatic charge. Most modern copiers use a method called xerography. and computer to the fax machine and cellular phone, has changed the practice of law. Vast social and political changes have reshaped much of the legal landscape. Compared to the dramatic developments in civil rights, criminal procedure, and environmental law, it is fair to say that change in tort law has been evolutionary, not revolutionary.
Our expert were nearly unanimous in their selections of the first 5 of the top 10 developments in tort law. Generally, these changes reflect the remarkable capacity of the common law to renew itself and address the realities of life outside the courthouse. Even more significantly, they evince e·vince
tr.v. e·vinced, e·vinc·ing, e·vinc·es
To show or demonstrate clearly; manifest: evince distaste by grimacing. a basic trust in jurors.
Emergence of strict products liability. By mid-century, strict liability was clearly an idea whose time had come. Mass production and marketing of increasingly complex products had made the notions of privity A close, direct, or successive relationship; having a mutual interest or right.
Privity refers to a connection or bond between parties to a particular transaction. Privity of contract is the relationship that exists between two or more parties to an agreement. of warranty and proof of specific negligence unworkable. Justice Roger Traynor's landmark pronouncement on strict liability came in Greenman v. Yuba Power Products' in 1963, and its formulation in the Restatement (Second) of Torts [sections]402A followed soon after.(2) Within two decades, nearly every state had adopted strict products liability.
As former ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender President Larry Stewart of Miami points out, this development represented the "conceptual recognition that society was best served by making the cost of injury a cost of doing business." By supplying the financial incentive for manufacturers to invest in product safety, tort law rescued the free market system from its own excesses.
If tort law had failed to address the problem of unsafe products, the law would not have reverted to caveat emptor [Latin, Let the buyer beware.] A warning that notifies a buyer that the goods he or she is buying are "as is," or subject to all defects.
When a sale is subject to this warning the purchaser assumes the risk that the product might be either defective or , as Peter Huber and other critics of the tort system surmise. The alternative to tort liability is more likely to be government regulation on a grand scale.
Demise of immunities. Tort law was barely 100 years old in 1946. The negligence principle had emerged as the dominant basis of liability, imposing a duty of reasonable care on those who engage in activities that present a risk of foreseeable harm to others. Still, large islands of immunity remained, based on outmoded "no-duty" rules.
Much of the expansion of tort law during the past half century, consisted of narrowing or abolishing these rules. They include sovereign immunity The legal protection that prevents a sovereign state or person from being sued without consent.
Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. , charitable immunity, and the limited liability of landowners to trespassers or licensees.
Elimination of "no-duty" rules was not limited to personal injury Former ATLA President Roxanne Barton Conlin of Des Moines, Iowa “Des Moines” redirects here. For other uses, see Des Moines (disambiguation).
Des Moines (pronounced /dɪˈmɔɪn/ in English, , observes that erosion of the employment-at-mill doctrine has expanded the rights of workers who face discharge.
Adoption of comparative negligence comparative negligence n. a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. . Fifty years ago, most states retained the harsh all-or-nothing rule of contributory negligence contributory negligence
In law, behaviour that contributes to one's own injury or loss and fails to meet the standard of prudence that one should observe for one's own good. Contributory negligence of the plaintiff is frequently pleaded in defense to a charge of negligence. . Since that time, comparative fault has swept the country, permitting injured claimants in a made variety of cases to hold wrongdoers at least partially accountable.
v. lib·er·al·ized, lib·er·al·iz·ing, lib·er·al·iz·es
To make liberal or more liberal: "Our standards of private conduct have been greatly liberalized . . . of admissibility of evidence. There has been a strong movement in evidence law and practice toward greater admissibility of relevant evidence. To paraphrase criminal defense attorney Johnnie Cochran in his closing argument in the O.J. Simpson trial, "If it shows how they did it, you gotta admit it."
From the rudimentary models pioneered by former ATLA President Melvin Belli of San Francisco in the early 1950s to the latest "virtual reality" computerized exhibits, trial lawyers have continually expanded their use of demonstrative evidence to communicate effectively to juries. Courts also have liberalized the admissibility of expert testimony, weakening the ability of some defendants to prevent plaintiffs from obtaining testimony of qualified experts.
Professor Edward Imwinkelried of the University of California The University of California has a combined student body of more than 191,000 students, over 1,340,000 living alumni, and a combined systemwide and campus endowment of just over $7.3 billion (8th largest in the United States). at Davis points to the adoption of the Federal Rules of Evidence The Federal Rules of Evidence generally govern civil and criminal proceedings in the courts of the United States and proceedings before U.S. Bankruptcy judges and U.S. magistrates, to the extent and with the exceptions stated in the rules. Promulgated by the U.S. in 1975 as a significant landmark in this trend. Philadelphia attorney Donald Farage adds, however, that the U.S. Supreme Court decision in Daubert P. Merrell Dow Pharmaceuticals, Inc.(3) left many, uncertainties with respect to admissibility of expert opinion testimony under the rules.
Acceptance of damages for emotional harm. There has been no more eloquent advocate than Suffolk University law professor Tom Lambert Jr. for the principle that injury to the mind is as real as bodily harm. It is a subject he has revisited often in his columns in the ATLA Law Reporter. Lambert says that during the past 50 years courts have been increasingly receptive to awards for noneconomic damages accompanying physical injury, such as pain and suffering, loss of consortium, and loss of enjoyment of fife.
Many courts have also discarded the "impact rule," which permitted awards for emotional harm only when accompanied by physical injury. Courts now permit recovery for intentional infliction of emotional distress The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page. and, in limited circumstances, negligent infliction of emotional distress The tort of negligent infliction of emotional distress (NIED) is a controversial legal theory and is not accepted in many United States jurisdictions. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another . Attorney Stuart Speiser of Highland Beach, Florida Highland Beach is a town in Palm Beach County, Florida, in the United States. As of 2004, the population recorded by the U.S. Census Bureau was 4,126. Geography
Highland Beach is located at (26.399710, -80. , termed the general trend the "humanization Humanization
Fusing the constant and variable framework region of one or more human immunoglobulins with the binding region of an animal immunoglobulin, done to reduce human reaction against the fusion antibody.
Mentioned in: Alemtuzumab " of the law of damages.
Shaping Tort Law
The panel identified another group of important legal developments. These reflect change in the roles state and federal legislatures play in shaping tort law. Traditionally, tort law has been state common law, molded by judges. The past several decades have witnessed an organized campaign to get state legislatures into the business of making tort law and federal judges into unmaking it.
Spread of "tort reform." Waves of "tort reform" statutes swept through state legislatures in the mid-1970s, mid-1980s, and mid-1990s. This drive was powered by a massive campaign on the part of the insurance, manufacturing, and health care industries to promote the idea that less responsibility and accountability on their part was good for America.
This development has eroded the fragile and hard-won protection of wrongfully injured people. But the most severe damage has come from the portrayal of juries, long revered as representing the common sense of the community, as emotional and irrational. Through a steady drumbeat See Drumbeat 2000. of jury bashing, the most powerful institutions of society undermine one of the few ways ordinary Americans can send a message to corporations that put profits ahead of people.
Revival of state constitutionalism con·sti·tu·tion·al·ism
1. Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.
a. A constitutional system of government.
b. . One positive consequence of the "tort reform" campaign has been a reinvigoration of state constitutional law after a long period of disuse and disfavor. This trend began in 1980 with the landmark decision by the New Hampshire Supreme Court The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord. in Carson P. Maurer, invalidating a broad "tort reform" statute on state constitutional grounds.(4) Since then, a significant number of state courts have recognized that state charters may afford greater legal protections than the minimum provided by the U.S. Constitution.
There is probably no better example of this development than Washington Supreme Court The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington. The Court is composed of a Chief Justice and eight Justices. Members of the Court are elected to six-year terms. Justices must retire at the age of 75. Justice Robert Utter's powerful 1989 opinion in Sofie v. Fibreboard fibreboard
a building material made of compressed wood
Noun 1. fibreboard - wallboard composed of wood chips or shavings bonded together with resin and compressed into rigid sheets
fiberboard, particle board Corp.(5) This decision struck down Washington's cap on noneconomic damages as violative of the state constitutional guarantee of the right to trial by jury.
Campaign for federal preemption preemption
U.S. policy that allowed the first settlers, or squatters, on public land to buy the land they had improved. Since improved land, coveted by speculators, was often priced too high for squatters to buy at auction, temporary preemptive laws allowed them to acquire of tort law. More disturbing than state "tort reform" is a trend during the past decade to shut the courthouse door entirely. Defendants in industries regulated by the federal government - automakers, airlines, railroads, manufacturers of medical devices, and others - have argued that federal regulation eliminates state tort liability.
In none of the federal enactments can it honestly be said that Congress intended to abolish state tort causes of action. Most often, Congress gave the matter little consideration. Nevertheless, a number of federal courts, through tortured reading of the statutory text and legislative history, have discovered this intent.
The most vociferous advocates of federal preemption include industries and corporations that have fought federal regulation at every opportunity. Ironically, if they succeed in winning absolute immunity from liability through federal judicial fiat, the result may well be expanded federal regulation.
Positives and Negatives
Finally, there are two developments that have both positive and negative implications for trial lawyers. Their effects will extend into the next century.
Emergence of toxic and mass torts. The mass marketing of dangerous products has led to the potential for massive harm - and massive liability. The saga of asbestos litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. is but one example. The use of lead paint, the Dalkon Shield, cigarettes, breast implants, and other widely distributed products has resulted in thousands of claims. Through a variety of mechanisms, the tort system has attempted to accommodate the large numbers of claims while retaining the ideal of individual access to justice. Large case-loads present administrative challenges to the legal system, and courts and attorneys are struggling to find creative solutions to ensure that legal remedies remain available to those who need them.
Growth of public awareness of the law. The amount of information presented to the public concerning the legal system has grown tremendously, as has the public's attention to legal matters. One source of public information and awareness is attorney advertising, which the Supreme Court permitted in 1977.(6)
Informing people of their legal rights is particularly important in the personal injury field as a counter to insurance company representatives who routinely seek to persuade injured people to agree to releases and low settlements. On the other hand, many in the profession see the commercialization of the law and aggressive solicitation as reasons why attacks on lawyers resonate with the public. Unfortunately, the public perception of plaintiffs' lawyers can taint their clients in the eyes of jurors.
Another phenomenal development is the increased media coverage of legal matters, most spectacularly with the advent of cameras in the courtroom. Televised coverage of trials clearly educates Americans and provides a sense of participation in the judicial process. However, there is a danger that the process can become contaminated when participants play to the cameras and networks distort coverage to enhance its entertainment value.
The next 50 years will undoubtedly bring new developments in tort law. Some can already be perceived, if only dimly. Others we cannot yet guess. But two constants will remain: the ideal that the law provides recourse to individuals who have been harmed, and the mission of the trial lawyer to assist people in exercising that right.
(1) 377 P.2d 897 (Cal. 1963) (a manufacturer is strictly liable in tort when an article it markets, knowing the product is to be used without inspection for defects, has a defect that causes injury). (2) RESTATEMENT (SECOND) OF TORTS [sections]402A (1965). (3) 113 S. Ct. 2786 (1993) (holding that expert opinion testimony need not be generally accepted in the scientific community to be allowed in court). (4) 424 A.2d 825 (N.H. 1980). (5) 771 P.2d 711 (Wash. 1989). (6) Bates Bates , Katherine Lee 1859-1929.
American educator and writer best known for her poem "America the Beautiful," written in 1893 and revised in 1904 and 1911. v. State Bar of Arizona The State Bar of Arizona regulates the practice of law in Arizona. It licenses lawyers and establishes procedures for the discipline of misconduct by lawyers.
The Bar promotes its "Wills for Heroes" program and other pro bono volunteer work by Arizona lawyers. , 433 U.S. 350 1977)