New Directions in Liability Law

By Walter Olson | Go to book overview

The Crisis Is Injuries, Not Liability

RICHARD L. ABEL

Most commentators who invoke the shibboleth "tort crisis" maintain that the problem is too much liability and that this is a recent and temporary phenomenon. They blame trigger-happy litigants, greedy lawyers, irresponsible juries, and bleeding-heart judges. They deplore the increased cost of insurance, its unavailability to some, the willingness of others to "go bare," and the impact of all this on the production of vital goods and services. Like all effective propaganda, this account contains a kernel of truth. Victims obtain more favorable outcomes in the tort system today than they did in the past—although recovery is still based on fault. Juries occasionally award large verdicts, but many are reduced by judges, and most verdicts are small (for example, half were less than $8,000 in Cook County, Illinois, between 1960 and 1979). Indeed, if the largest verdicts are excluded, the median has actually been declining. 1

Propaganda does not mislead through lies, however, but through partial truths. The jeremiads about the "tort crisis" ignore the fact that fluctuations in insurance premiums, which affect everyone, are at least as much a function of interest-rate cycles as of changes in liability rules or jury awards. And they greatly exaggerate the extent to which inflation in the price of goods and services is attributable to higher insurance premiums, which normally constitute an insignificant fraction of total costs. 2

I see the problem very differently—as an epidemic of injuries with deep historical roots and structural causes. Successful tort claims do not create accident costs; they merely shift them from victims to tortfeasors. It is tortfeasors who inflict costs on society by injuring victims. Liability costs are high because injuries are frequent and serious. Several independent surveys reveal that a majority of people suffer at least one serious injury during their lives. 3 Far too few of them recover damages from a tortfeasor. The present tort system is largely responsible for this failure, which leaves victims uncompensated, allows entrepreneurs to continue creating unreasonable risks and causing injuries, and permits moral dereliction to go unpunished.

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