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 during the past half century.

It's a different world from 1946. Technology, from the photocopier 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 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 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 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, 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, 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, observes that erosion of the employment-at-mill doctrine has expanded the rights of workers who face discharge.

Adoption of comparative negligence. Fifty years ago, most states retained the harsh all-or-nothing rule of contributory 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.

Liberalization 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 at Davis points to the adoption of the Federal Rules of Evidence 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 and, in limited circumstances, negligent infliction of emotional distress. Attorney Stuart Speiser of Highland Beach, Florida, termed the general trend the "humanization" 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 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. 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 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 Justice Robert Utter's powerful 1989 opinion in Sofie v. Fibreboard 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 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 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.

Notes

(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 v. State Bar of Arizona, 433 U.S. 350 1977)