Fear-Mongering Torts and the Exaggerated Death of Diving
Bogus, Carl T., Harvard Journal of Law & Public Policy
The tort system is causing havoc, we are told. Skyrocketing malpractice premiums are driving physicians from practice. (1) Litigation is chilling the development of desperately needed new medicines, (2) enriching people who stupidly spill hot coffee on themselves, (3) and imposing a "tort tax" on consumer products that is putting American companies at a competitive disadvantage in the global economy. (4) And the tort system is even squeezing the fun out of everyday life. As Judge Edith H. Jones put it at this symposium's conference at Vanderbilt University: "I would say, I think there have been dramatic changes in behavior as a result of lawsuits. We can't get hot coffee at McDonald's anymore. On playgrounds they don't have seesaws, they don't have sliding boards, they don't have real high swings that we used to enjoy. We don't have diving boards on swimming pools; a lot of fun is taken out of life." (5)
It is easy to understand why Judge Jones believes the tort system is taking the fun out of life. Claims that the tort system is driving the diving board into oblivion have been made repeatedly by tort fear mongers, (6) journalists, and even scholars. The Washington Post, for example, has reported:
Prompted initially by exponential increases in insurance rates and liability exposure--and then, in many cases, an inability to find coverage at any cost-public and private pools across the country have closed their three-meter boards. Some also have taken down one-meter boards, as well as slides, leaving only rafts, noodles, and repetitious gaines of sharks and minnows as diversions in the water. (7)
Is it indeed true that the tort system is depriving us of the joy of springing off diving boards? Does the tort system seek to ruthlessly extinguish activities that involve any risk--even small risks that provide more joy than pain--with crushing liability costs? Is the tort system a mindless agent of the "nanny state"? (8)
I have elsewhere made the bold claim that the tort system works so well--among other things, because it benefits from so many self-correcting mechanisms--that "while it can and occasionally does produce wrong results, it is almost incapable of flatly irrational results." (9)
It was, therefore, no surprise to those who knew my work that I expressed some dubiousness about Judge Jones's claims, (10) However, my co-panelist, Professor George L. Priest of Yale Law School, declared:
I have looked at diving board injuries and Judge Jones is right. Diving boards have been removed from all public pools. The leading diving board manufacturer, Duraflex, went out of business. I talked to their officials and it was because of lawsuits. Prior to the increase in lawsuits against the diving board manufacturers and the diving board industry generally, there was no increase in accidents related to diving boards. Actually, the number of diving board accidents has been declining steadily since World War II because diving boards were getting better and they were installing them in better ways, but liability increased and companies went out of business. (11)
In the face of this authoritative onslaught, Judge Jones asked whether I wanted to concede my position on diving boards. (12) I demurred, but promised to review what Professor Priest had written and look at the area more closely.
This article is my report. I think the reader may find that the reality is both more complicated--and far more sensible--than what we have been led to believe.
II. DIVING BOARDS
Litigation resulting from injuries involving swimming pools and diving boards is not new, (13) not extensive, and--contrary to Professor Priest's claim--not increasing. According to an exhaustive survey by Professor Gregory S. Munro of the University of Montana School of Law, t4 in the last half of the twentieth century there were a total of 52 reported case decisions involving diving boards in all courts in the United States, both state and federal. …